BLOEMFONTEIN – The Supreme Court of Appeal (SCA) has set aside the attempted murder conviction and five-year prison sentence of SAPS Captain Quentin Arlow. Reconsidering its earlier refusal of special leave to appeal, the appellate court admitted fresh expert forensic and medical evidence that undermined the state’s case, holding that the prosecution failed to prove Arlow’s guilt beyond a reasonable doubt.

The incident, and dismissal of appeal

The criminal charge stemmed from an incident on 12 July 2016 at Mkhuhlu, near the Kruger National Park, where Arlow with 25 years service in the police was deployed on anti-rhino poaching operations. Arlow chased a vehicle driven by Leonard Last Nkosi after Nkosi sped away from a park gate.

Arlow testified that when he blocked the vehicle, Nkosi attempted to drive over him, causing Arlow to stumble while holding his service pistol, which accidentally discharged through the car door panel into Nkosi’s right ankle. However, the Mhala Regional Magistrates’ Court rejected Arlow’s accidental discharge defence, convicted him of attempted murder, and sentenced him to five years’ imprisonment. The Mpumalanga High Court subsequently dismissed Arlow’s appeal.

After two SCA judges initially dismissed his petition for special leave in August 2023, Arlow applied to the SCA President for a reconsideration under section 17(2)(f) of the Superior Courts Act. Accompanying his application was a petition to adduce new evidence under section 316(5)(a) of the Criminal Procedure Act, sourced from a subsequent civil lawsuit where Nkosi sued the Minister of Police for R27 million.

“This appeal was previously postponed because the record was incomplete in that a substantial part of the applicant’s evidence-in-chief had not been transcribed. That portion of the record has now been furnished to this court. The applicant’s evidence was in Afrikaans. What is disconcerting is that the English translation of his evidence, which is also part of the transcript, leaves much to be desired. A considerable part of the applicant’s testimony in Afrikaans was inaccurately conveyed to the trial court in English. This is a matter of serious concern and is strongly deprecated,” the court found.

Physical impossibilities in state’s original evidence

During that civil trial, SAPS forensic ballistic examiner Lt. Col Willem Visser and orthopaedic surgeon Dr Deodat Maré testified as expert witnesses. Their expert findings revealed critical physical impossibilities in the state’s original criminal trial evidence.

The medical report (J88) recorded Nkosi’s ankle entry wound at 0,5 cm (5 mm) and exit wound at 0,3 cm (3 mm) along a horizontal trajectory. However, Lt. Col Visser demonstrated that the bullet hole through the car door travelled at a downward angle of 63 degrees. Furthermore, both experts testified that a 9 mm Parabellum bullet destabilises when penetrating metal and plastic, making it physically impossible for a 9 mm projectile to produce a 5 mm entry wound and an even smaller 3 mm exit wound on a parallel line.

The applicant further argued that his legal representative, appointed for him by the state during the criminal trial, did not clear up a question that was glaring, namely, how it was possible for an object with a diameter of 9 mm to cause the entrance and exit wounds of 5 mm and 3 mm diameter, respectively.

“It is disquieting that the state omitted to present ballistic expert testimony that could have resolved these apparent inconsistencies,” the judges found.

‘Prosecutorial and investigative failures’ revealed

Writing for a unanimous court, Acting Judge Violet Phatshoane noted that this uncontradicted expert evidence revealed severe prosecutorial and investigative failures, establishing a reasonable possibility that Arlow’s account of an accidental discharge was true.

“It is trite that a court of appeal should not readily interfere with the factual findings of a trial court. Such findings will, however, be upset if they are clearly wrong, particularly if they are based on recorded evidence rather than the demeanour of witnesses. The further evidence reveals gaps and deficiencies in both the prosecutorial and investigative processes. The alleged offence was not properly investigated; as a result, insufficient evidence was made available to the prosecution and ultimately, placed before the trial court. To illustrate the point, the medical report, which recorded the entrance and exit wounds as measuring 5 mm and 3 mm respectively, was not properly interrogated to determine their probable cause.

“It is lamentable that the trial court merely noted that the medical report indicated the injuries sustained by the complainant and that the parties did not dispute it,” the judgement reads.

“The fresh evidence points to a reasonable possibility that the applicant’s version of an accidental discharge may be true. An accused person is bound to be convicted if the evidence establishes his guilt beyond a reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The absence of intention on the applicant’s part calls into question the soundness of the conviction, and therefore it must be set aside.”

The further evidence raises a fundamental uncertainty regarding the factual basis upon which the State’s case rested, namely whether the complainant’s injury was caused by a bullet fired from the applicant’s firearm.

The SCA held that in the absence of proof that Nkosi’s injury was caused by a bullet intentionally fired from Arlow’s firearm, no conviction, including competent verdicts such as assault, could stand. Granting special leave and accepting the new evidence, the SCA upheld Arlow’s appeal and formally set aside both his conviction and five-year prison sentence.

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