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[2016] ZAWCHC 141
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Novella v S (A340/16) [2016] ZAWCHC 141 (12 October 2016)
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
number: A340/16
In
the matter between:
DIEGO
DOUGHERTY NOVELLA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
– 12 OCTOBER 2016
Le Grange, J
[1]
This is an appeal against the refusal by the Magistrate at Cape Town
to release the appellant on bail. The Appellant is charged
with one
count of murder. According to the indictment the charge of murder
stems from the allegation that on or about 28 July 2015,
the
Appellant unlawfully assaulted and strangled his girlfriend, causing
her death. The Appellant will stand trial in the
High Court.
[2]
The offence the Appellant is charged with is listed in Schedule 5 to
the Criminal Procedure Act, 51 of 1977 (“the CPA”).
Accordingly there is an onus on the Appellant to discharge on a
balance of probabilities that the interests of justice permit his
release on bail.
[3]
The Appellant advanced several grounds upon which it was submitted
that the Magistrate had erred in finding that he failed to
show that
the interests of justice permits his release on bail.
[4]
Mr. Booth, a local attorney, who appeared on behalf of the Appellant,
argued that the Magistrate erred in coming to the conclusion
that the
Appellant is a flight risk. According to Mr. Booth, the State failed
to establish any grounds for such a finding. Furthermore,
it was
contended that the Appellant has shown he will stand his trial by
demonstrating his willingness to be placed under ‘unique
circumstances’ if released on bail. It was advanced in argument
that the ‘unique circumstances’ will
inter
alia
include the payment of bail in the amount of R 100 000 to secure the
Appellant’s attendance at trial, the willingness to
report at a
local police station and his preparedness to be monitored by private
security and by an electronic device. It was also
contended that the
local Guatemalan Ambassador and Professor Zabow, (who was one of the
forensic psychiatrist who examined the
Appellant as to his mental
condition and ability to stand trial), supported his release on
bail. Furthermore, it was argued
that the M
agistrate
erred
and misdirected himself in not correctly balancing the relevant
factors and rights of the Appellant against the interests
of justice.
[5] The State, in opposing the
appeal, argued that the Magistrate properly considered all the
relevant factors pertaining to bail
and correctly determined that the
interests of justice does not permit the appellant’s release on
bail. It was also contended
that the Appellant, as a foreigner, has
no real roots and interest in the country and can easily abscond his
trial. Furthermore,
it was argued the Appellant has the lifestyle of
a constant traveller and frequently abused illicit drugs, and if
released on bail
would undermine or jeopardize the objectives or
proper functioning of the criminal justice system.
[6] The
circumstances under which the alleged offence was committed,
according to the papers filed of record, briefly stated are
the
following. The Appellant and the deceased, an American citizen,
booked into a
local hotel, in Camps Bay on 26 July 2015. According to the
statements provided to the police, no person other
than the Appellant
and the deceased stayed in the room. By all accounts no staff entered
the room occupied by the two, on the evening
before the body of the
deceased was discovered. The deceased was only discovered after
members of the hotel staff enquired from
the Appellant as to her
whereabouts. According to the reports from the hotel staff, the
Appellant reportedly answered that she
was dead. Upon this
revelation, they immediately checked the appellant’s room and
discovered the deceased.
[7] The police were called and the
Appellant was immediately arrested. According to the police, the
scene of the crime was chaotic
with clothing and food substances
strewn on the floor. The manner in which the body of the deceased
presented to forensic staff,
indicated that the perpetrator was known
to the deceased. At the scene a number of exhibits were seized
including a large quantity
of foreign currency belonging to the
Appellant. Electronic devices including iPhones and tablets were also
seized by the police.
The pathologist recorded the cause of death as
being “
UNNATURAL: Consistent with strangulation in a person
with signs of blunt head injury.”
[8] Soon after his arrest, and upon
the insistence by his legal team, the Appellant was referred to
Professor Zabow, a forensic
psychiatrist, who compiled a provisional
psychiatric report into the mental state of the Appellant. Professor
Zabow was also part
of the forensic psychiatric panel who compiled a
unanimous report in terms of section 77 of the CPA. The said panel
found the Appellant
is fit to stand trial.
[9] The personal
circumstances of the Appellant, in summary are the following. He is
single and has no dependant
children.
He was born and raised in Guatemala City, in Central America. The
Appellant is the 5
th
of 7 children. He received schooling in Guatemala and the United
States of America. His family controls a group of companies which
is
a diversified conglomerate with its main focus on production of
construction materials. Apparently the main company was founded
in
Guatemala by the Appellant’s great-grandfather and has been in
operation for more than 117 years. It is the principal
provider of
cement in Central America as well as being involved in the retail of
construction materials with more than 5000 employees.
The Appellant’s
inheritance allowed him to travel extensively all over the world. He
also receives a monthly allowance of
10 000 US dollars per month. He
is currently 42 years’ old and not dependant on casual or
permanent employment for his financial
well-being.
[10] The Appellant experimented with
illicit drugs from the age of 21. He also used it on occasions as
part of his spiritual rituals.
The Appellant has over the
years’ tried to address his drug dependence and attended a few
rehabilitation centres. At
one stage he spent about 5 months in
a Buddhist retreat in Barcelona.
[11] The Appellant
has
been issued with two passports, namely, a Guatemalan as well as an
Italian passport.
[12] The Appellant arrived in South
Africa in April 2015 and joined a party in Nelspruit that was
exploring various spiritual nature
sites, especially ‘high-energy
places’ such as the Cradle of Humankind and the Tsodilo Hills.
In May 2015 he booked
into a retreat in Magaliesburg for a week to
undergo spiritual treatment. At this centre he apparently received a
single dose of
a natural occurring psychoactive substance called
Ibogaine to help with his addiction difficulties. The Appellant
thereafter stayed
at a number of places in and around Cape Town.
[13] According to the psychiatric
reports compiled by the panel in terms of s 79(4) of the CPA, the
Appellant has led a somewhat
unstable lifestyle in which he has
abused a variety of illicit substances often in pursuit of spiritual
enlightenment and lived
in many places around the world.
[14] The Magistrate, at page 143 of
the record made the following remarks:
“
I am
duty-bound to consider the following facts:
1.
The
accused has never had any formal employment, or at least for a long
period of time. The indication is that the accused has only
worked
for a period of 2 to 3 years for a particular company.
2.
The
accused has no immediate family roots, referring to a wife and
children in the country.
3.
The
accused has travelled the globe extensively.
4.
The
accused has the financial means to hide anywhere in the world, should
the need arise.
5.
The
accused could very easily afford to forfeit any amount of bail which
may be granted.
6.
There
is no extradition treaty between South Africa and Guatemala.
7.
Lastly,
to my mind, the state has a very strong circumstantial case against
the accused.
Having
considered all the facts placed before me, as well as the law, I am
of the opinion that the accused is indeed a flight risk,
despite the
assurances provided by his legal team.”
[15] It is now
trite that our Constitution and the common law value personal
freedom, protect the presumption of innocence and make
express
provision for an accused person to be released from detention if the
interests of justice permits same. In this regard
see Hiemstra’s
Criminal Procedure [Issue 9] at 9-23 and the cases referred to
therein.
[16] The offence with which the
Appellant is charged, as mentioned earlier, falls within the ambit of
schedule 5 of the CPA. In
the result, sections 60(11)(b), 60(4),
60(6), 60(8) and 60(9) of the CPA are applicable.
1.
Section
60(11)
of the
Criminal Procedure Act provides
as follows:
60(11) Notwithstanding any
provision of this Act, where an accused is charged with an offence
referred to-
(a)….
(b) in
Schedule 5, but not in Schedule 6, the court shall order that
the accused be
detained in custody until he or she is dealt with in accordance with
the law, unless the accused, having been given
a reasonable
opportunity to do so, adduces evidence which satisfies the court that
the interests of justice permit his or her release.
2.
Section
60(4)
of the
Criminal Procedure Act provides
as follows:
The interests of justice do not
permit the release from detention of an accused where one or more of
the following grounds are established:
(a)…
(b)
where
there is the likelihood that the accused, if he or she were released
on bail, will attempt to evade his or her trial; …
3.
Section
60(9)
of the
Criminal Procedure Act provides
as follows:
In considering the question in
subsection (4) the court shall decide the matter by weighing the
interests of justice against the
right of the accused to his or her
personal freedom and in particular the prejudice he or she is likely
to suffer if he or she
were to be detained in custody, taking into
account, where applicable, the following factors, namely-
(a)
the
period for which the accused has already been in custody since his or
her arrest;
(b)
the
probable period of detention until the disposal or conclusion of the
trial if the accused is not released on bail;
(c)
the
reason for any delay in the disposal or conclusion of the trial and
any fault on the part of the accused with regard to such
delay;
(d)
any
financial loss which the accused may suffer owing to his or her
detention;
(e)
any
impediment to the preparation of the accused's defence or any delay
in obtaining legal representation which may be brought about
by the
detention of the accused;
(f) the
state of health of the accused; or
(g)
any
other factor which in the opinion of the court should be taken into
account.
4.
Section
60(6)
of the
Criminal Procedure Act provides
as follows:
In considering whether the ground
in subsection (4) (b) has been established, the court may, where
applicable, take into account
the following factors, namely-
(a)
the
emotional, family, community or occupational ties of the accused to
the place at which he or she is to be tried;
(b)
the
assets held by the accused and where such assets are situated;
(c)
the
means, and travel documents held by the accused, which may enable him
or her to leave the country;
(d)
the
extent, if any, to which the accused can afford to forfeit the amount
of bail which may be set;
(e)
the
question whether the extradition of the accused could readily be
effected should he or she flee across the borders of the Republic
in
an attempt to evade his or her trial;
(f)
the
nature and the gravity of the charge on which the accused is to be
tried;
(g)
the
strength of the case against the accused and the incentive that he or
she may in consequence have to attempt to evade his or
her trial;
(h)
the
nature and gravity of the punishment which is likely to be imposed
should the accused be convicted of the charges against him
or her;
(i)
the
binding effect and enforceability of bail conditions which may be
imposed and the ease with which such conditions could be breached;
or
(j)
any
other factor which in the opinion of the court should be taken into
account.
5.
Section
60(8)
of the
Criminal Procedure Act provides
as follows:
In considering
whether the ground in subsection 4(d) has been
established,
the court may, where applicable, take into account the following
factors, namely-
(a)
the
fact that the accused, knowing it to be false, supplied false
information at the time of his or her arrest or during the bail
proceedings;
(b)
whether
the accused is in custody on another charge or whether the accused is
on parole;
(c)
any
previous failure on the part of the accused to comply with bail
conditions or any indication that he or she will not comply
with any
bail conditions; or
(d)
any
other factor which in the opinion of the court should be taken into
account.
[17] In
determining whether or not an applicant for bail has established or
adduced evidence which satisfy the court that the interests
of
justice permits his release on bail, within the meaning of
s 60
(11)(b) of the CPA, the court has to make a decision on the facts
judged within the context of the particular case. Facts which
might
be sufficient in one case, might not be enough to warrant the grant
of bail in the particular context of another matter.
[18] With regard
to an appeal, as in this instance, to a Superior Court in respect of
a refusal by a Lower Court to grant an accused
person bail,
s 65
(4)
of the CPA provides as follows:
“
The
court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court or
judge is
satisfied that the decision was wrong, in which event the court or
judge shall give the decision which in its or his opinion
the lower
court should have given.”
[19] In
S v Barber
1979 (4) SA
218
(D
)
Hefer J held at 220 E – H:
“
It is
well-known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
although this Court may have a different view, it should
not substitute its own view for that of the magistrate because that
would
be an unfair interference with the magistrate’s exercise
of his discretion. I think it should be stressed that, no matter
what
this Court’s own views are, the real question is whether it can
be said that the magistrate who had the discretion to
grant bail
exercised that discretion wrongly.”
[20]
The abovementioned approach has been approved in a number of
decisions. Accordingly, in a case like the present where the
Magistrate refused bail because he found that the Appellant had not
discharged the onus on him in terms of
s 60(11)(b)
of the CPA, and if
this court, on its assessment of the evidence comes to the conclusion
that the Appellant did discharge the burden
of proof it must follow
that the Magistrate’s decision was wrong within the meaning of
section 65(4)
, and that this court can substitute it with its own
decision in the matter. In this regard see
S
v Porthen and others
2004 (2) SACR 242
(C) at pa
r
[11].
[21] In casu, the sting of the
Appellant’s attack is against the Magistrate’s finding
that the Appellant is a flight
risk and will evade his trial despite
the assurances that he will remain in the country and stand trial if
released on bail.
[22] The Magistrate gave a
well-reasoned and detailed judgment. The criticism that the
Magistrate’s decision was wrong within
the meaning of
section
65(4)
and that it will be in the interest of justice to permit the
release of the Appellant on bail, is in my view without merit.
[23] The Appellant is currently 42
years old. He is a Guatemalan by birth. He comes from an extremely
wealthy family. After formal
schooling he travelled extensively. He
lived in various parts of the world. The Appellant is single with no
dependants to maintain.
He receives a monthly allowance of
approximately USD 10 000 and does not require casual or permanent
employment to continue living
his current lifestyle. It appears that
the Appellant is in a permanent state of transition. In fact
according to the psychiatric
report compiled by the forensic
psychiatric panel at Valkenberg Hospital, the Appellant ‘
has
led a somewhat unstable lifestyle in which he has abused a variety of
substances (often in pursuit of spiritual enlightenment)
and lived in
many places.’
[24] On the established facts it
appears the Appellant is in pursuit of some form of spiritual
enlightenment and will not hesitate
to move around the world and to
stay at various retreats or places to achieve his spiritual goals.
The Appellant has also been
using a variety of illicit drugs, as so
called tools, to assist in raising his consciousness. In fact
Professor Zabow who compiled
a provisional psychiatric report on 27
August 2015 described the Appellant, at the time, as ‘grandiose
and that his affect
is incongruous’.
[25] The criticism
that the Magistrate erred and misdirected himself in not attaching
sufficient weight to the various guarantees
that the Appellant had
put in place for securing his attendance at the trial, is unfounded.
Upon a careful reading of the judgment
,
the
Magistrate did consider
inter
alia
the
suggested electronic tagging device, house arrest at the premises
that was leased from a South African citizen, security surveillance
and psychiatric care at home.
[26] The fact that most of these
guarantees will be financed either by the Appellant or his family
does create a sense of unease
as it could be open to manipulation and
may well bring the administration of justice into disrepute.
[27] The assertion
that the Appellant could have fled the country if that is what he
sets out to do, is contrived. The Appellant
was arrested
shortly after the discovery of the deceased. There was thus no time
for him to have escaped. Moreover, according to
Professor Zabow’s
provisional psychiatric report of August 2015, the Appellant’s
account of events regarding the incident
was variable and somewhat
bizarre.
[28] The retention of the Appellant’s
travel documents is also of cold comfort as the lack of travel
documents in recent times
is hardly a deterrent to persons who are
serious and have the means to skip the country. Experiences in courts
have shown that
these documents can readily be obtained and one may
depart the Country with ease.
[29] On a
conspectus of all the facts and the law, I am unconvinced that the
Magistrate was wrong in his findings. Moreover, the
State’s
case, although circumstantial, points prima facie strongly to the
guilt of the accused. In weighing up all the relevant
factors
pertaining to the Appellant which may favour his release on bail, he
has in my view failed to show that the interests of
justice in this
instance permits his release on bail.
[30] In lieu of
the above the appeal cannot succeed.
[31] In the result
the following order is made.
The appeal is dismissed.
_____________________
LE
GRANGE, J