REGINA v CHINYERERE 1980 ZLR 3 (A)

REGINA v CHINYERERE 1980 ZLR 3 (A)

Citation 1980 ZLR 3 (A)

Case No Details not supplied

Court Appellate Division, Salisbury

Judge Macdonald, CJ, Lewis, JP and Davies, JA

Heard 16th January, 1980

Judgment 16th January, 1980

Counsel Appellant in person.

J H C Friedman, for the respondent.

Case Type Criminal Appeal

Annotations Link to case annotations

Flynote

Criminal law — conspiracy — liability of conspirator who withdraws from conspiracy before commission of offence

— liability of conspirator who withdraws after housebreaking but before theft of H goods from premises.

Headnote

A conspirator who withdraws from the conspiracy to commit a crime before the conspiracy is

consummated may be found guilty only of conspiracy to commit the crime even if the crime is

subsequently committed, unless he also incited, commanded or procured the other conspirators

to commit the crime.

Lewis JP

Housebreaking with intent to steal and theft are two separate offences, so a conspirator who assists

in the breaking and entering of premises but dissociates himself from the theft of goods

therefrom may be convicted of housebreaking with intent to steal and conspiracy to commit theft.

Cases cited

R v Njenje & Ors 1965 RLR 586 (AD); 1966 (1) SA 369 (SRAD);

R v Nyamande & Ors AD 166/67 (unreported);

Books cited

Burchell & Hunt, South African Criminal Law and Procedure, volume I, pages 406 and 410;

Hunt, South African Criminal Law and Procedure, volume II, page 664. B

Case information

Appellant in person.

J H C Friedman, for the respondent. The extent of the appellant’s assistance as a lookout and of his

consequent liability is that envisaged in the passages cited from R v Mbande & Ors 1933 AD 382 at

393. C The appellant’s participation was as much intended to assist his accomplices in the offence of

theft, which was the ultimate purpose, as in the incidental preliminary offence of breaking into the

premises; it would be artificial and illogical to confine his liability only to the breaking, especially

since it is not clear whether when he withdrew his accomplices D had yet completed the breaking.

As a matter of general principle with regard to the inchoate offences of attempt, incitement and

conspiracy, if the offence is consummated the participant is liable to conviction for the completed

offence itself: E Burchell and Hunt, South African Criminal Law and Procedure, volume 1 at page 406,

note 255; R v Njenje &Ors (supra), R v Nkwane & Ors 1969 (2) RLR 530 (GD) at 533GH;

1970 (2) SA 165 (R) at 168. Withdrawal by an accomplice from a criminal enterprise before the

completion of the offence as a means of avoiding liability is postulated by F W J Millar in Rhodesian

Accomplice Law (unpublished thesis, 1969) at pages 147151 on the basis of the following cases: R v

Njenje & Ors (supra); R v Nyamande & Ors (supra) at pages 46; R v Mkize &

Ors 1960 (1) SA 276 (N) at 282 EH; S v Malinga & Ors 1963 (1) SA 692 (AD). Also cited are a

number of English and American authorities. G It is there submitted on the basis of these authorities

that before a person can withdraw from a criminal purpose he must effectively negative the

consequences flowing from his own previous participation, for example, by preventing or

endeavouring to prevent the commission of the offence or by giving timely warning to the

authorities. Even where H a person does withdraw in this manner, and whether or not the offence is

then committed, he may be held liable for his own participation prior to his withdrawal and be

convicted of any of the inchoate offences of incitement, conspiracy or attempt.

Lewis JP

There are the following criticisms against the proposition that an accomplice who withdraws from an

offence which is subsequently A committed may escape liability for that offence, or be convicted of

only a conspiracy or incitement to commit it

(a) it offends against the general principle that where the offence is completed the

participant is liable for the completed offence; B

(b) of the cases cited, only that of R v NyamandeOrs (supra) really supports the acceptance

of withdrawal,

prevent the completion of the offence is too much dependent on the factual variations of

individual cases C to be elevated to the level of a general principle. Of course, where the

main offence is not completed there is only liability for the inchoate offence anyway.

Accordingly, where a conspirator withdraws in circumstances where the D normal incidents of

participation and of mens rea would give rise to full liability, his withdrawal should be accorded

recognition rather in a reduction in sentence or in a decision by the relevant authorities not to

prosecute. A decision not to prosecute would normally occur where the erstwhile accomplice

becomes a witness for the prosecution. E

Judgment

Lewis JP: The appellant in this case was convicted in the magistrates Court of the crime of

housebreaking with intent to steal and theft. He was sentenced to 12 months’ imprisonment with

labour, three F months of which were ordered to run concurrently with the sentence he was already

serving for another offence at the time when he was convicted. That sentence was one of two years’

imprisonment with labour, of which 15 months were suspended on certain conditions. In other

words, an effective sentence of nine months. The net effect, G therefore, of the sentence in this case

was that he received an additional effective period of nine months’ imprisonment with labour. He

has appealed to this Court against his conviction.

The evidence established that on the night of the 1st February, 1979, H a gang of persons broke into

a shop known as Sanremo Take Aways in Rezende Street, Salisbury, and stole a large quantity of

goods valued at $841,81, none of which was recovered. Members of the gang made a hole in the

security fence surrounding the property and then drilled a series of small holes in the wooden door

of the shop in order to form a large hole

Lewis JP

big enough to allow a person to crawl through. The only evidence connecting the appellant with the

offence was his own extracurial statement to the police which was put in as Exhibit 1. That reads

as follows: A

“We approached from the back, Benjamin and Robert, I was standing outside I did not get inside they

broke the back door. It took quite a long time to break the door. It was too late in the night. I got scared

and decided to leave them. After an hour I was apprehended by a night watchman at the Bus Stop for

attempting to break into Emen Stores, a case for which I am in custody. I did not see any of the goods.” B

When the appellant applied for a certificate enabling him to prosecute this appeal in person, I

referred the matter to the AttorneyGeneral for his views as to whether the appellant should have

been convicted of the actual theft of the property rather than of conspiracy to steal and

housebreaking C with intent to steal. A law officer in the department of the AttorneyGeneral, in his

reply on behalf of the AttorneyGeneral, said the following:

“In our respectful submission, the appellant’s presence as a lookout or as D a ready means of help was an

assistance to the main offenders. For example, it must have been of comfort to them to know that one

aspect of approach was sealed by him and that he would be able to help carry the bulky goods at a later

stage.

It is accordingly respectfully submitted that the appellant is guilty of housebreaking with intent to steal. E

We are of the view that his running away, coming, apparently, soon after the breakin was effected, was

sufficient dissociation from the theft and that he should only have been found guilty of conspiracy to

commit the theft. At the stage of the theft any assistance to be gained from his presence had obviously

fallen away with his departure.” F

In granting a certificate, I remarked that the arguable point was that raised in the Attorney-

General’s minute. Today, Mr Friedman, who appears for the Crown, has expressed his disagreement

with the views expressed in that minute and has made the submission that the appellant G was

properly convicted as charged, in other words, of the crime of housebreaking with intent to steal

and theft. He concedes that the interpretation to be placed on the extracurial statement is that the

appellant ran away before the goods were stolen. H

Mr Friedman made the broad submission that as a matter of general principle a participant in the

inchoate offences of attempt, incitement and conspiracy is liable to be convicted of the completed

offence itself if that offence is consummated, and he relied on a passage in Burchell and

Lewis JP

Hunt’s South African Criminal Law and Procedure, volume I at page 406, note 255. That passage

does not support the proposition that a mere A conspirator, who is not also guilty of incitement, may

not escape conviction of the ultimate offence which is the subject of the conspiracy by withdrawing

from the enterprise before that offence is committed. A similar submission in that form was

rejected by this Court in the case of R v Njenje & Ors 1965 RLR 586 (AD) at 594CE;

1966 (1) SA 369 (SRAD) at B page 376B and C The learned authors Burchell and Hunt, in the same

volume at page 410, go on to say:

“Where the crime which is the subject of the conspiracy is in fact committed the question of whether a

conspirator is liable as a principal offender or only liable for conspiracy depends upon the degree of his

participation in C the crime. LEWIS, AJA., expressed the law as follows in R v Njenje:

‘If . . . the conspirator also incites, commands or procures the other conspirators to commit the

crime, it seems that he may be liable to conviction as a principal offender, even though he is not

present when the crime is committed. If, on the other hand, he is not that type of conspirator, then

it D seems that he can only be convicted as a principal offender if it is proved that he otherwise aided

and abetted in the actual commission of the crime.’.”

It seems to me that the policy of the law must be to encourage people to refrain from crime by

having a change of heart, whether through fear or E for some other motive, and to eschew the

crimes which they have conspired to commit even at the last stage before the actual commission of

the crime. This view of the law is also borne out by the decision of a full bench of this Court,

consisting of QUENET JP MACDONALD F JA (as he then was), and FIELDSEND AJA in the case of

Regina v Nyamande& Others, Appellate Division Judgment No. 166/67 dated the 22nd December,

1967 (not reported). That case concerned the conviction of six appellants under section 37 (1) (a) of

the Law and Order (Maintenance) Act [Chapter 39] as it was then. The offence consisted of setting G

on fire, or attempting to set on fire, a motoromnibus belonging to the Salisbury United Omnibus

Company Limited, in which there were passengers, by the use of petrol or other inflammable liquid,

in other words, by the use of petrol bombs. In the case of the sixth appellant, the Court was

constrained to rely solely upon his own extracurial confession, H which read as follows:

“Before the arrival of the bus we talked amongst ourselves that we would be arrested. I and David told

Francis and Lovemore that when the bus came they should break the bottles. George and Cassion were

standing at the bus stop with some other people. Nyamande and other were on the way coming.

1980 ZLR p8

Lewis JP

The bus arrived. George entered in the bus. It was between Francis and Lovemore, one of them broke a

bottle near the front of the bus on the side of the driver. We then ran away and the driver drove the bus

away. I threw the matches away.” A

After quoting from the confession, QUENET JP expressed the view that the meaning was equivocal

but went on to say:

“Since the extracurial statement is capable of an innocent interpretation B the fact that in his statement

from the dock he repudiated the whole of it does not fill the gap left by the absence of sufficient evidence of

his participation. His failure to give evidence is consistent not only with a consciousness of guilt but with

the fear, if he gave evidence, of implicating his coaccused. In the circumstances, I am of the opinion the

sixth appellant should have been convicted not on the main count but on the alternative charge of

conspiring C to contravene section 37 (1) (a) of the Law and Order (Maintenance) Act [Chapter 39].”

In dealing with sentence, the learned JUDGE PRESIDENT said:

“The extent of his responsibility must be limited to his agreeing to D accompany the other conspirators to

the scene, and actually accompanying them there. Before the bus arrived he decided not to go on with the

attack, and from that moment he attempted to frustrate the plan,”

That is clear authority, therefore, for the proposition that a conspirator E can withdraw from the

enterprise even at the last moment, and in the event of his withdrawal he is entitled to his acquittal

on the main charge, and is liable to be convicted only of the offence of conspiring to commit the

crime in question. It has been suggested in the course of Mr Friedman’s argument that it is

necessary at the same time for the person withdrawing F to attempt to frustrate the plan which is

the subject of the conspiracy. It seems to me, however, that QUENET JP was not laying this down as

a condition. He had concurred in the judgment in Njenje’s case (supra) the previous year, in which

no such condition had been suggested. He merely referred to the sixth appellant’s conduct in

frustrating his own G attempts to set fire to the bus by throwing away the matches and breaking the

bottle of petrol on something outside the bus, as evidence of the fact that he had decided to

withdraw from participation in the whole enterprise, albeit at the last moment. H

Mr Friedman also submitted that the assistance given by the appellant in the initial stages of the

housebreaking was such that it must be considered as assistance in the achievement of the ultimate

result, which was the theft of the goods from the shop, and that consequently he could

Lewis JP

not at that late stage escape conviction of the crime of theft by withdrawing before the final object

of the conspiracy had been achieved. One A has to bear in mind, however, that housebreaking with

intent to steal and theft are two separate offences. This is made clear in Hunt’s South African

Criminal Law and Procedure, volume II. The learned author traces the history of housebreaking with

intent to steal and theft and points out that under the old RomanDutch law housebreaking with

intent to steal and B theft was simply regarded as an aggravated form of theft. However, in the

modern South African law this is no longer the case. The learned author at page 664 says this:

“The effect of this development is that, unlike RomanDutch law, house breaking is no longer regarded as

an aggravated form of theft. The housebreaking with intent to steal and the theft are two separate

offences, though C they are in practice charged and punished as one offence, so that in such cases the

result is the same.”

Since there are two offences involved, there does not seem to be any reason in principle why a

person who has aided and abetted in the initial D stage of housebreaking with intent to steal and

theft should not dissociate himself from the ultimate offence, that is the theft of goods from the

premises broken into, before that theft has been perpetrated and thus escape conviction of that

offence as a principal. E

There is nothing to suggest that the appellant in this case was anything more than a metre co-

conspirator with the others who broke into these premises. There is no basis for finding that he

incited the others to commit the crime or that he was in any way a ringleader in the enterprise. In

the circumstances, therefore, it seems to me that the opinion expressed on F behalf of the Attorney-

General in the minute in response to my query, from which I have already quoted above, was the

correct view of the matter.

In the result, therefore, I would allow the appeal against conviction to G the limited extent of

altering the conviction from one of guilty of housebreaking with intent to steal and theft to one of

guilty of housebreaking with intent to steal and conspiracy to commit theft. As in Nyamande’s case

(supra), this reduction in the verdict entitles the appellant to some reduction in the sentence. It

does not seem to me that the reduction H should be a substantial one because he has a record of

crimes of dishonesty. As I have already said, at the time he was convicted of the current offence,

he was already serving a sentence of two years’ imprisonment with labour, of which 15 months was

suspended, and prior to that he had the following previous convictions: on the 30th April, 1975, he

Lewis JP

was convicted in the magistrates court of theft by pocketpicking and was sentenced to six months’

imprisonment with labour; and on the 5th December, 1977, he received nine months’ imprisonment

with labour for attempted theft. However, he is entitled, as I have said, to some slight A reduction in

the sentence. It seems to me that the appropriate form which this reduction should take would be to

suspend a portion of the 12 months’ imprisonment with labour imposed for the current offence

(instead of ordering a part of it to run concurrently). This will mean that B although his effective

sentence will be less, he will have a greater period of imprisonment suspended and hanging over his

head, to deter him from committing further crimes of dishonesty when he comes out of gaol. I

would, therefore, set aside the sentence and substitute the following sentence: C

Twelve months imprisonment with labour, six months of which will be suspended for five years on

condition that the appellant is not again convicted of any crime involving dishonesty committed

within that period for which he is sentenced to imprisonment without the option D of a fine.

Macdonald CJ: I agree.

Davies JA: I agree.