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[2019] ZAWCHC 51
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Packham v S (CC50/2018) [2019] ZAWCHC 51 (27 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: CC50/2018
In
the matter between:
Robin
Leslie William Packham
Applicant
And
The
State
Respondent
JUDGMENT DELIVERED ON 27 FEBRUARY
2019
BAARTMAN,
J
[1]
On 20 December 2018, the
appellant’s bail was revoked and returned to the depositor.
This is an application for leave to appeal
against that decision. The
parties are in agreement that the decision to revoke the applicant’s
bail is appealable
[1]
.
I agree.
[2]
On 1 March 2018, the applicant was arrested on charges of murder and
defeating or obstructing the administration of justice.
On 9 March
2018, he was released on bail. On 28 September 2018, Erasmus J found
that the applicant had breached his bail conditions.
He increased the
bail amount from R50 000 to R75 000 and placed the
applicant under house arrest with stringent conditions.
I found
that the applicant nevertheless breached those conditions.
[3]
It is convenient to deal with the fifth of the applicant’s
grounds of appeal first. Mr Mathewson, the appellant’s
counsel,
submitted:
‘
37. …the learned Judge
misdirected herself in holding that any perceived breach to be
deserving of the onerous sanction of
cancellation of bail.
38. Without conceding that the
[applicant] was the author of the alleged communications, it is
submitted that the tone and content
of such
communications
appeared overwhelmingly affectionate and loving in nature
; were
not threatening, intimidating or attempting to influence L or
manifesting any such intention to appear to try or do so.’
[4]
It is correct that the communications to L, a potential state
witness, have different undertones to the hate mail the applicant
had
received from members of the public. I found as much in paragraphs 15
and 16 of the December judgment. It bears repeating:
‘
[15]… The 5 December
correspondence is self-serving and seeks to exonerate the
[applicant]. 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.’
[5]
The applicant seeks to reduce this contravention of his bail
conditions to insignificance, without admitting it. If one bears
in
mind that the contravention was committed after a court had found
that the applicant had breached the original bail conditions,
increased the bail amount and imposed house arrest with stringent
conditions, the seriousness of the breach is obvious. In those
circumstances, the applicant’s attitude towards the court
orders defies logic and is an indication of his attitude towards
it.
It is not in the interest of justice to allow the applicant to
persistently contravene his bail conditions because his intentions
are honourable. There is no merit in this ground of appeal.
[6]
The applicant further denies that he was the author of the
communications ascribed to him, the first ground of appeal. As
indicated
above, the distinct difference between the hate mail and
the ‘love letters’ belies the denial. The applicant’s
attitude to date has been an indication of his inability to respect
the court order. There is no merit in this ground of appeal.
[7]
The applicant further claimed, the second ground, that the court
misdirected itself in finding ‘that a breach of the conditions
had been proven by the state’ (the applicant then). Mr
Mathewson submitted:
‘…
30. Without conceding
that the [applicant ] had authored such communications, the relevant
bail condition prohibited the [applicant]
from “making contact
or communicating in any way, directly or indirectly, with [L]”,
accordingly could not be an arbitrary
or gratuitous impediment to the
freedom of an accused but had to be interpreted purposively so as to
reflect the requirement that
a particular condition needs to be both
reasonable and necessary to counter or minimise a bail risk.
It is submitted that the State did not
prove on a balance of probabilities that L was in any manner
intimidated or influenced by
such correspondence, this is supported
by an email sent by L to State Advocate Susan Galloway on 5 December
2018. In which she
states that she received a letter via post from
Richard J Hopkins and that
“I do not find the letter
intimidating,
however this constant contact whether “allegedly
indirect” or direct is still harassing in nature” (own
emphasis
added).’
[8]
Mr Mathewson chooses to ignore the fact that the witness complains
about being harassed; therefore, as she complained to the
state
advocate, seeking to be protected from what she experienced as
harassment. It follows that she was influenced. I do not understand
how it can be in the interest of justice to allow an accused to
harass a potential witness in his upcoming trial. It is the court’s
duty to protect the rights of both the accused and the witness to
ensure the integrity of the process. There is no merit in this
ground
of appeal.
[9]
The applicant further complained that the court erred in (the third
ground):
’
32...failing to find that in
proceedings under Section 66 of the CPA, the State had misconstrued
its remedy, and ought to have proceeded
in terms of Section 68 of the
CPA. Further, in holding, expressly or impliedly, that the
communications delivered to Ms F, but
not actually conveyed to L,
constituted a breach of the bail conditions.
33. …Although Section 60(4)(c)
of the CPA …seems to contemplate actual and attempted contact
or communication with
State witnesses, and to distinguish between act
and attempt, in terms of his bail conditions, the Applicant was
prohibited in the
actual “making “of any contact or
communication with State witnesses therefore not a mere attempt.’
[10]
In paragraphs 18–23 of the December judgment, I dealt with the
mail sent to F and concluded:
‘
[20] …I am persuaded
that in July, the [applicant] 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….
[23] If the respondent sent the
October mail, he breached the bail condition that prohibited him from
possessing electronic devices
capable of sending or receiving
electronic communication….’
It
follows that there is no merit in this ground of appeal
.
[11]
Fourthly, the appellant alleged that the court erred in:
‘
34. …cancelling the
Applicant’s bail, in negation of the constitutional right to
liberty, on the appearance that such
order was by wish to punish
rather than apply the requirements of Chapter 9 of the CPD and the
considerations of the interest of
justice.
35. It is trite that the denial of
bail should never be used as a method of punishment of an accused
that is awaiting-trial…’
[12]
Paragraphs 27 and 28 of the December judgment bear repeating:
‘
[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. ‘
There
is no merit in this ground of appeal.
[13]
I am persuaded that there is no sound or rational basis to conclude
that there are prospects of success on appeal.
(a) The application is refused.
_____________________________
BAARTMAN
J
[1]
Section 16(1)
of the
Superior Courts Act, 10 of 2013
;
S
v Kheswa and Another
2008
(2) SACR 123
(N) at para 27 and S v
Porrit
2018 (2) SACR 274
.