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[2018] ZAWCHC 183
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S v Packham (CC50/2018) [2018] ZAWCHC 183 (20 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: CC50/2018
In
the matter between:
The
State
Applicant
And
Robin
Leslie William Packham
Respondent
JUDGMENT
DELIVERED ON 20 DECEMBER 2018
BAARTMAN,J
[1]
This is an application in terms of section 66 of the Criminal
Procedure Act, 51 of 1977 (
the CPA
). On 28 September 2018 this
court, per Erasmus J, amended the respondent’s bail conditions
after finding that he had breached
the conditions that had been
imposed on him on 9 March 2018, following his arrest on charges
of murder and defeating the ends
of justice. In these proceedings,
the state has alleged that the respondent has breached the amended
conditions and requested that
his bail be revoked. I deal with the
relevant bail conditions below.
[2]
Sergeant Sonnenberg (
Sonnenberg
), the investigating officer,
attested to an affidavit in which he alleged that he had received
numerous telephonic complaints from
the respondent’s neighbours
reporting that the respondent was moving freely about when he was
meant to be under house arrest.
The complaints did not always have
merit, although, there were occasions when they did.
[3]
In addition, he annexed an affidavit from which it appeared that the
respondent had contacted Ms F, a mutual friend of a state
witness –
L (
L
) – and the respondent. In sending the message, the
respondent breached his bail conditions by having an electronic
device
capable of sending or receiving electronic communications. The
state further alleged that the respondent contacted L in direct
violation of his bail conditions. Therefore, on 11 December 2018,
Erasmus J authorised a warrant for the respondent’s arrest.
He
appeared in these proceedings pursuant to that warrant and denied the
allegations.
[4]
Sonnenberg testified as indicated above. On 5 December 2018, L
complained to the state as follows:
‘
Please find attached a letter
received today via post to my work address from the alleged Richard J
Hopkins (RJH-W). The post mark
appears to be December 2018, although
the letter is typed in November 2018. This is therefore a direct
contact from him.’
[5]
The following appears from the letter:
‘
Hullo L
I write this to remedy the mistruths
created following my prior emails. I wrote them nobody else did. I so
regret the damage caused.
I know this must have been so hard on
you. It has been a very difficult period for him too, on multiple
levels. He is hurting.
I was with him in the car that day. I
cautioned him but he was determined. I tried to pretend it was me to
protect him. Honestly
no harm was meant. Any talk of a threat or
intimidation is utter nonsense. It was just him reaching out.
He wears his heart on his sleeve for
you. I honestly don’t know whether to go punch him or to admire
his naïve honesty.
…
He dared show his vulnerability,
stupid maybe, but at a real personal cost both to his girls and
himself. …
He says he often finds himself
suddenly thinking about you when he least expects it. He misses you.
As mentioned, he 100% understood the
need to step back but not the subsequent tone and character change,
i.e. the sudden hardness,
apparent anger and hurtful bitterness. He
says his heart knows a very different you. He said something about
you and a small piece
of his heart. I didn’t follow this, maybe
you will know the meaning. It seemed significant for him.
He says he cannot wait to clear his
name and claim his life and honour back.
Do keep an open mind. Don’t
judge. I do not for a second doubt him. Have you stopped to consider
that he is an innocent target
of cynical police work? Or have you
bought into the spin, the press’ presumption of guilt via
unfounded speculation? He deserves
better. You know this. He is the
same genuine and kind person he always was.
Take care, best wishes
RJH-W’
[6]
The respondent went on oath and denied the allegations against him.
He said that he had ‘not been moving freely around
the area
other than in the manner prescribed by [his] bail conditions.’
[7]
He stated that he had complied with his bail conditions.
‘
My movements around the area
consist of my daily reporting to Diep River police station between
08h00 and 09h00. I am allowed to
do shopping once a week for no
longer than three (3) hours. I am further allowed to consult with my
counsellor in Rondebosch area.
On Sundays, I am allowed to attend a
church service, which I do. …
I further wish to bring it to the
Court’s attention, …that I constantly receive
threatening mail from whom I can only
assume is either a person, a
group of people or a lobby group which has concluded that I am guilty
of the offence…
Post that is sent to me or purportedly
on my behalf in acts of malice, I cannot prevent. I have no control
of malicious acts such
as these.’
[8]
In respect of the complaint that he had contacted F, the respondent
said:
‘…
F is not a witness on
the witness list and any contact with her other than through
electronic devices after 25 July 2018 is not
a breach of any bail
condition.
I do not deem it necessary to admit or
deny whether I sent the letter referred to in paragraph 4 as it was
not a contravention of
any bail condition to contact F or to WhatsApp
her at that stage. The bail condition that I was not allowed to make
any contact
with [L] was only added as a condition on 25 July 2018…’
[9]
The respondent further denied that he sent email correspondence to F.
He said that he did not have an email address for her
and the police
had seized all electronic devices he could have used for that
purpose. On 18 October 2018, the police arrived at
his home, shortly
after F deposed to her affidavit, and searched the house but found no
electronic devices from which he could
have sent mail to F.
[10]
Instead, the respondent alleged that he had also received unwanted
mail – ‘threatening mail’ – and
that the mail
to F and L was part of a campaign against him. The respondent has
received a photograph depicting him with triple
6 superimposed on his
forehead. He further received a newspaper article about his court
appearance with a typed message:
‘
Dearest Richard
Your last free Xmas and New Year for
25 years. Hon. Judge …who nailed Jason Rhode is going NAIL you
too…Lucy Allan,
[…] Road, Constantia’
[11]
A third letter warns as follows:
‘…
I hear Ben Mathewson
won’t take your case, as he doesn’t like losing and wants
to keep his unbeaten record in tact.
Adv Pieter Botha is the most expensive
guy in town and if you don’t believe me ask Henri van Breda as
he represented him,
for callously killing his parents and brother.
Something like was the case with dear Gill….
But, as I was taught at school actions
have consequences.
Enjoy this Christmas and New Year Rob
as this is your last one for a considerable length of time !!!Savour
every moment while it
lasts.
…
Next year is going to be a
lousy one, but then that’s what you wanted and meticulously
planned?...Byron Williams, […],
Stellenbosch, 7600.’
Discussion
[12]
The bail conditions relevant to these proceedings are as follows:
(28 September 2018)
‘
2. The accused shall remain
under house arrest and may not leave his home …under any
circumstances other than the following,
…
3. Prior to the accused departing from
his home (and again upon his return), …the accused shall
contact the Investigating
Officer…from his Telkom landline on
[Sonnenberg’s] mobile phone and inform him of his departure and
return. If [Sonnenberg’s]
mobile phone is switched off, the
accused shall leave a voice mail regarding his departure or return…
4. The accused shall forthwith hand
over all electronic communication data (electronic devices) to his
attorney …
5. Until the final determination of
his criminal trial, the accused may not be in possession and/or make
use of any electronic devices.
…
7. The accused may not make contact or
communicate in any way, directly or indirectly, with any private
State witness, …’
[13]
The state has to prove on a balance of probabilities that the
respondent has breached his bail conditions. It has to show
dolus
or
culpa
on the respondent’s part. The communication to
L on 5 December would be a breach of his bail conditions if the
respondent
had sent the mail.
[14]
When Erasmus J amended the respondent’s bail conditions, he had
an affidavit from L in which she alleged that she had
received a
parcel at her work place containing a ‘plant with a card
reading “love makes all things beautiful”’.
The
camera footage depicted the respondent delivering the parcel. L said
that she had received correspondence on 3 and 4 September
from
Richard Hopkins. Regarding the 4 September correspondence, she said
that it was: ‘a long email from this same person,
Richard J
Hopkins, …with details pertaining to the relationship between
[respondent] and I that I truly believe [respondent]
would not share
with anybody.’
[15]
The court found that the respondent was Richard J Hopkins. The letter
received on 5 December was signed by RJH-W. The respondent
denies
that he is the author. A comparison of the correspondence belies the
denial. There are insignificant differences. The latest
mail was sent
by snail mail. The reason is obvious. The respondent has been caught
out with email and self-deliveries. The
5 December
correspondence is self-serving and seeks to exonerate the respondent.
The theme is personal and intimate, and clearly
directed at gaining
favour with his former lover, L.
[16]
The letter is in stark contrast to the ‘threatening mail’
referred to above. The ‘threatening mail’
was vindictive.
Unlike the letters to L, the ‘threatening mail’ is a call
for justice. The letters to L are personal
and a cry for attention.
In the circumstances of this matter, the submission that the letters
to L originate from members of the
public is completely unfounded.
[17]
L further said that she had received a ‘
message from a
number […]47, which I verily believe was from [the
respondent]. He, however denied same, and as the number
was not
RICA-registered, I could not prove that it was him.
’ The
style and sentiment of this correspondence is similar to the other
correspondence addressed to L. I am persuaded that
they originate
from the same author.
[18]
As indicated above, the respondent said he did not deem it
necessary to admit or deny that he had contacted F in April
2018. F
said the following about the correspondence:
‘
In April 2018 I became aware
that L had blocked [respondent] from all her social media
accounts…[The respondent] then began
contacting me on
‘WhatsApp’ requesting me to forward messages and
correspondence to L…which I did.
[19]
F said the following about further correspondence:
‘
In July I received a letter
from [respondent], which was delivered to the security desk at my
complex, and requested to forward
it to L. I did not pass on the
letter to L as I was aware she did not want any contact with [the
respondent] and instead forwarded
it to L’s Attorney.
[20]
That letter gives a very graphic account of the respondent’s
mood and frustration at being unable to see L. The letter
also
relates details of the respondent’s therapy sessions with his
counsellor. It is not clear when in July F received the
letter. The
respondent deals specifically with the April correspondence but not
the July correspondence. I am persuaded that in
July, the respondent
was still trying to make contact with L through F. However, it is not
clear whether it was after she had been
added to the list of
witnesses.
[21]
On 14 October 2018, F received 2 emails, allegedly from the
respondent. He expressed a desire to have sexual intercourse with
F
to ease his frustrations. The author expressed his desire as follows:
‘
Don’t shut me down and
block me like all my so called friends, please. …I am
deprived. I crave intimacy, raw, primal
sex.
…
Keen? …Relax, this is
not about LK.
I am in a dark hole, you know this…R’
[22]
In the second October mail, the author says:
‘
Hi C
Can we just see each other – no
agenda, no pressure.…I just want to connect. I won’t
pester you for info re L,
I understand that is a “no go zone”.’
[23]
If the respondent sent the October mail, he breached the bail
conditions that prohibit him from possessing electronic devices
capable of sending or receiving electronic communication.
Mr Mathewson, the respondent’s counsel, submitted that the
police searched the respondent’s home shortly after F made her
statement but found no ‘prohibited device’. Therefore,
so
the submission went, the respondent was not the author of the
messages.
[24]
The respondent alleges that these messages were sent by members of L
and F’s social group. There is no basis for that
allegation.
Conversely, the indications are that the respondent was the author of
the October messages. F received the messages
on 14 October but only
made her statement, which caused the police to search the
respondent’s house, on 18 October 2018.
In the circumstances of
this matter, the content points to respondent having been the author
of the October correspondence. It
follows that he had an electronic
device from which he sent the mail. That was a contravention of his
bail conditions.
[25]
As indicated above, Sonnenberg testified that he had received
complaints from neighbours indicating that the respondent was
venturing about in contravention of his bail conditions. He said some
of the complaints had merit. However, without a record indicating
when the respondent had contravened the evidence is of no assistance
in this enquiry. Although, the state’s burden of proof
is on a
balance of probabilities, it still has to present evidence of the
facts alleged. A generalisation will not suffice.
[26]
In the result, I am persuaded
that on a balance of probabilities the state has shown that the
respondent was the author of the December
correspondence to L. He did
so in contravention of his bail conditions. He is also the author of
the correspondence to F, in particular
the October correspondence
which was sent via electronic mail. It was in contravention of his
bail conditions. These were deliberate
calculated actions
[1]
.
Does
the finding warrant withdrawal of the respondent’s bail?
[27]
L is a state witness who finds the respondent’s continued
contact harassing. Her attorney has requested the respondent
to
desist but not even a court order could persuade him. The
respondent’s bail has been increased from R50 000 to
R75 000
in an attempt to impress on him the need to comply with
his bail conditions. He was placed under house arrest with stringent
conditions.
Despite the measures put in place, the respondent is in
flagrant disregard for the orders of this court.
[28]
I have considered the effect his actions may have on L and other
witnesses. It is not in the interest of the justice to allow
an
accused to abuse his bail conditions with no consequences. I will
heed the call not to declare the bail money forfeit as it
was paid by
a third party.
ORDER:
[29]
I, for the reasons stated above make the following order:
(a) The respondent has breached his
bail conditions;
(b) The bail, R75 000, is revoked
and to be returned to the depositor.
(c) The respondent is held in custody
pending finalisation of the trial unless a competent court orders
otherwise.
(d) The matter is postponed to 11
March 2019.
_____________________________
BAARTMAN
J
[1]
Jack v Vermeulen NO and Another
1979 (1) SA 659
at 662 D-E: ‘…It
is clear that, …the legislator intended that all that the
magistrate was required to be satisfied
of before exercising his
discretion was that the bail condition had been breached and that
such breach was due to the fault of
the accused.’