About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 236
|
|
Phillips v S (A58/2021) [2021] ZAWCHC 236 (18 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: A 58
/2021
In
the matter between:
TARARIQ
PHILLIPS
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Saldanha, Henney
et
Wille, JJ
Heard:
19
th
of July 2021
Delivered:
18
th
of November 2021
JUDGMENT
HENNEY
et
WILLE, JJ:
(concurring
and Saldanha J, dissenting)
INTRODUCTION
[1]
This
is an appeal essentially about ‘evidential’ criteria.
Including, inter alia, the factual evaluation of the
probabilities,
credibility, bias, demeanour, appearance, behaviour and
circumstantial evidence, coupled with the appellant’s
refusal
to testify. Stratford CJ, defines the law of evidence as that
part of the law which has a bearing on the manner of
how facts are
proved.
[1]
Put in another
way, the primary role of the law of evidence is the determination of
which evidence may be put to a court
to prove a fact, as well as to
determine how and by whom the evidence may be presented.
[2]
The
appellant was convicted in the court of first instance on two counts
of rape. This, as defined in
the
Act
[2]
.
The appellant was acquitted on the charge of murder preferred against
him and was sentenced to (10) years imprisonment.
[3]
These sentences were ordered to run concurrently with each other.
[3]
Leave
to appeal was applied for and was refused. An application was
piloted to the Supreme Court of Appeal.
[4]
Subsequently, leave was granted against the appellant’s
convictions on the charges of rape. The appellant is
now on
bail pending the outcome of this appeal. The record of appeal
is voluminous and certain aspects of the expert evidence
remain
complicated and are technical in nature. In our view, this
matters not. We take the view that this appeal falls
to be
dealt with primarily on the facts. Most of the essential facts,
are in our view, common cause, alternatively, undisputed.
[4]
Besides,
the appeal falls to be dealt with only on the issues that presented
before us on appeal. As mentioned, this is a
complex matter and
accordingly, we have discussed in this judgment what seems to us to
be of the greatest importance. It
must not be inferred that
from our failure to refer specifically to any argument or contention,
that we were unaware of it, or
that we ignored it.
[5]
The
victim of the alleged rape is since deceased. She passed way in
a local hospital about (18) hours after the alleged rape.
The
appellant and the deceased were in a romantic relationship for
approximately (3) years, prior to her death. They, together
with several of their friends attended a ‘rave festival’
in Paarl. Their intention was to overnight together
in a small
tent at a camping site nearby to the festival. Tragically
things went awry and events took a turn for the worst
culminating in
the tragic death of the deceased.
THE
GROUNDS OF APPEAL
[6]
The
judgment on the application for leave to appeal in the court
a
quo,
succinctly sets out the grounds of appeal that were advanced by the
appellant. The grounds of appeal are these: that
it was
argued that the court
a
quo
wrongly interpreted the facts, specifically in not finding that it
was ‘reasonably possibly true’ that the deceased’s
vaginal and anal injuries could have been self-inflicted and not
caused as a result of any rape: that the court
a
quo
wrongly rejected certain expert evidence regarding certain ‘other’
injuries to the deceased’s body: that
the evidence
pointed away from non-consensual sex and finally that the evidence of
one of the state witnesses was not credible
and fell to be discarded
and rejected outright.
[7]
This.
all in the context of the appellant having denied (to the
respondents’ witnesses), that any sexual intercourse occurred
between him and the deceased. We accept that the respondent
bears the onus of proof beyond a reasonable doubt in connection
with
all the elements of the crime as formulated in the indictment.
That having been said, we hold the view that it was not
for the trial
court to speculate on defences that may have been open to the
appellant to have been advanced at the trial and even
more so, it is
not for this appeal court to speculate for any possible defences in
favour of the appellant. This, particularly
when these
‘defences’ are not squarely before us as ‘issues’
on appeal.
THE
CASE FOR THE RESPONDENT
THE
FACTUAL EVIDENTIAL MATERIAL
MS
LALLOO
[8]
Present
at the venue were,
inter
alia
,
the deceased, the appellant, Ms Lalloo, Ms Martin and Mr Wagiet.
[5]
The group made a decision to purchase certain recreational drugs at
the venue.
[6]
Ms Lalloo,
the appellant and the deceased went to seek out the purchase of these
drugs in the vicinity of the dance floor.
The appellant
approached an unknown man with a ‘moon bag’ and purchased
what they ‘assumed’ to be these
recreational drugs.
[9]
This
group again met up at the camp site. The deceased handed a
piece of ‘cardboard’ to Ms Lalloo, which she assumed
was
the drug LSD. This because, it looked like a postage stamp, was
perforated, each portion depicted a different picture
and one portion
had already been removed from this sheet containing a number of
portions. Ms Lalloo tore off a piece, placed
it on her tongue
and gave the remainder back to the deceased. Ms Lalloo
testified that she assumed that the deceased had
also consumed this
drug. She never observed this, but mentioned that it was the
plan that everyone would partake in the use
of these recreational
drugs that they had collectively purchased.
[10]
Ms
Lalloo testified that it was the first time she had consumed these
recreational drugs and confirmed that the only effect that
it had on
her was that it brought to bear a ‘numbness’ to her
tongue. Ms Lalloo also consumed some alcoholic
beer during this
time, but was unable to confirm whether the deceased had also
consumed any alcohol during this time.
[11]
This
group then descended onto the dance floor. On route, they
stopped at the restrooms before reaching the dance floor.
The
deceased complained that she felt unwell. The appellant then
handed certain further drugs to the group.
[7]
Ms Lalloo, consumed this drug with water and assumed everyone else
also did so, but she did not specifically observe that
everyone else
in the group had consumed these drugs. Ms Lalloo testified that
she felt ‘energized’ after having
consumed these drugs.
[12]
Moreover,
she had injured her foot during the course of the evening and sought
assistance at the medical tent. While she was
at this medical
tent, she observed the deceased being carried on a stretcher into the
medical tent. She thereafter spoke
with the appellant.
The appellant stated that the deceased wished to have sexual
intercourse with him but he refused because
she was acting
strangely. He showed her a scratch mark on his stomach.
Thereafter, when she spoke to the appellant
at the hospital,
the appellant remarked that it appeared that the deceased had been
raped.
[8]
She asked the
appellant if he had sexual intercourse with the deceased and the
appellant stated that the last time they had
sexual intercourse, was
prior to Christmas.
[9]
MR
MARTIN
[13]
He and
his girlfriend, Ms
Grey also attended the rave festival. They knew both the
appellant and the deceased. He observed
the appellant and the
deceased nearby the restroom area in close proximity to the dance
floor. He noticed that the deceased
was unwell and the deceased
said she was nauseas and felt ‘dizzy’. The
appellant told him that the deceased took
‘acid’ and that
is probably why she was unwell. The deceased said she felt cold
and wanted to return to their
camping tent.
[10]
The deceased was unable to walk by herself and they accordingly
both assisted her to get to the tent.
[14]
The
appellant and the deceased entered into the tent and the tent door
was closed. He, together with Ms Grey returned to the
dance
floor so to enjoy the celebrations. He admitted to having
enjoyed alcohol, but denied having taken any drugs on the
evening in
question. Sometime later, when they returned to the tent, a
crowd had gathered. He observed the deceased
inside the tent
and noticed that she was experiencing convulsions. The
appellant was present during this time.
MR
MANUAL
[15]
He
also attended this rave festival. His tent was located adjacent
to the tent shared by the appellant and the deceased.
He
returned to his tent just after midnight. Upon his return, he
heard noises coming from the deceased’s tent. He
made the
assumption that they were having sexual intercourse as he knew they
were in a relationship. He heard these noises
for about (10)
minutes before he returned to the dance floor.
[16]
About
an hour later he received a phone call and he immediately returned to
the deceased’s tent. He was requested to
summon the
paramedics as the deceased was lying naked on the tent floor and was
experiencing convulsions. He alerted the
paramedics and
assisted them in placing the deceased onto a stretcher and taking her
to the medical tent. The deceased did
not sustain any injuries
whilst being transported from her tent to the medical tent. The
appellant was not present at that
time and only he re-appeared about
(30) minutes later.
[11]
Certain other paramedics took over and loaded the deceased into an
ambulance.
MR
INGLIS
[17]
He was
a friend to Mr Manual. He was at the deceased’s tent when
the paramedics were present. He assisted in the
loading of the
deceased onto a stretcher. He confirmed that the deceased did
not sustain any injuries during this process
and that the deceased
was busy convulsing whilst in the medical tent and had to be
restrained.
MRS
DEVA
[18]
The
deceased was her mother. The deceased and the appellant were in
a romantic relationship for about (3) years prior to this
tragic
event. The deceased was living at home as she was furthering
her studies. The deceased was generally in good
health.
She received a phone call during the early hours of the morning of
the 1
st
of January 2014 and she rushed to the local hospital in the area. Dr
Franklin kept her informed of the deceased’s medical
condition
from time to time. She had reason to be in discussion with the
appellant. The appellant also told her that
the deceased had
consumed recreational drugs. A witness statement was taken from
the appellant and he requested that she
be in attendance during this
process. The appellant showed her a scratch mark on his stomach
and told her that the deceased
had scratched him whilst they were
inside the tent. Finally, she testified that she never
recovered the deceased’s
bikini bottom after unpacking her
clothes from her backpack.
MS
GORDON
[19]
She is
a high ranking police officer. She received a phone call from
the hospital and she dispatched police to attend at the
hospital.
She also visited the hospital and later attended on the scene.
She made contact with the appellant and asked
him to meet her at the
campsite. At the tent the appellant informed her that the
deceased had consumed recreational drugs
and that the deceased had
undressed herself and insisted on having sexual intercourse with
him. The deceased rolled around
inside the tent and then
masturbated herself. She started having convulsions and he
called for assistance. According
to Ms Gordon, the tent was
very neat and tidy inside with no indications that anybody had been
rolling around inside the tent.
MS
MORRISON
[20]
She is
a police officer and she was initially the investigating officer.
She went to the hospital and she, inter alia, obtained
a ‘witness
statement’ from the appellant. The witness statement made
by the appellant was admitted into evidence
and was recorded as an
exhibit. The witness statement was admitted into evidence for a
very limited and specific purpose.
The statement was not
admitted for the ‘truth of the content’ thereof and was
admitted solely for the purpose of possible
use in the
cross-examination of the appellant. This, in the event that the
appellant should elect to testify in his defence.
THE
MEDICAL EVIDENTIAL MATERIAL
MR
DRIESSEN
[21]
He is
a qualified paramedic and was on duty at the rave festival. He
was at the medical tent when he was approached by a ‘tall’
man who requested urgent assistance. He identified the
appellant as the person who approached him, but it is clear that this
person was Mr Manual. He rushed to the tent and noticed that
the deceased was naked on the tent floor, whilst having convulsions.
[22]
The
deceased was placed on a stretcher and conveyed to the medical tent.
She did not sustain any injuries during this process.
When the
appellant was in attendance at the medical tent he uttered the words
‘
sorry
baby, sorry baby’
.
The appellant also said that the deceased ‘
conked
in’ w
hilst
they were having sexual intercourse.
MR
BARLING
[23]
He was
a third-year medical student at the time. He testified that he
was also an advanced life-support paramedic. He
was on duty at
the festival, but not as a paramedic. He struggled to find a
vein so as to administer certain drugs to the
deceased. This
medication sedated the deceased and her convulsions subsided. He
was the author of a written document
[12]
,
which he confirmed as a true reflection of the treatment he
administered and injuries that he observed to the deceased. The
deceased had sustained injuries to her knees, hips and elbows.
MRS
MAKIER
[24]
She
was a paramedic in the employ of the ‘Metro Ambulance’
services. The deceased was loaded into the ambulance,
was
sedated and did not suffer from any convulsions. She inserted
an endotracheal tube into the deceased. She did not
cause any
injury during this procedure.
MRS
BAM AND MRS TROSKIE
[25]
These
two nurses received the deceased from the ambulance. The
deceased was wearing a pair of shorts which was far to big
for her
and was clearly not her clothing. She had injuries to her
knees, elbows and hips. As they were washing the
deceased they
noticed vaginal injuries and this was reported to the attending
physician.
[13]
Blood and
urine samples were taken from the deceased. The appellant
advised that he was in the company of the deceased
at all times, but
denied having had sexual intercourse with her during the course of
this incident. He advised that the deceased
had consumed
recreational drugs. In addition, he explained that the deceased
fell outside the tent and that is how she sustained
her injuries.
Mrs Bam testified that the appellant had a rucksack with him and that
he advised her that it contained the
deceased’s clothing.
MS
BARTLEMAN
[26]
She is
a general practitioner and was on stand-by duty on the day of the
incident. She examined the deceased both vaginally
and anally
and thereafter completed the medical legal form.
[14]
She testified that the deceased was sedated and she conducted a very
shallow vaginal swab. She did not cause any further
injuries to
the deceased.
MR
FRANKLIN
[27]
He
was the main attending physician
.
The appellant informed him that the deceased had consumed
recreational drugs, had felt hot, started rolling around on the
ground in the tent, had visual disturbances, felt ‘turned on’
and had undressed herself. The appellant further
stated that
the deceased had fallen down a few times on her way to the tent. The
appellant denied having had sexual intercourse
with the deceased and
stated that he never left her alone whilst they were in the camping
tent. She had suffered from convulsions
inside the tent and he
then called upon the assistance of the paramedics.
[28]
Significantly,
there were bruises on the deceased’s pelvis, knees and a small
puncture mark in the vicinity of her neck.
Above her pubic rim,
on the left hand side, was a small bleeding spot. She had been
sedated and there was no sign of ‘brain
death’ upon her
admission. However, neurologically, there were nevertheless
some features of damage to her brain. Her
potassium count was
very high, she developed severe bleeding, exhibited signs of renal
failure and she was sent for a scan which,
in turn, rendered as
normal.
[29]
A
urine test recorded positive for opioids. The opioids in her
system were directly connected with the sedatives and other
medication that was administered to her. She was tested for the
presence of other narcotic drugs but only rendered positive
for
opioids. By noon, she had suffered some organ failure.
She passed away at midnight and had suffered from no further
injuries
whilst she was under his care.
MS
ABRAHAMS
[30]
She
conducted the post-mortem on the deceased on the 2
nd
of January 2014. She concluded, inter alia, that some drug
usage may have played a contributory role in the cause of the
deceased’s death. In the final analysis she concluded
that the cause of the deceased’s death was consistent with
manual strangulation and the consequences thereof. She
explained that all the bruises and injuries to the neck of the
deceased
were as a result of manual strangulation. There was
severe pressure to the neck area which resulted in hypoxia.
This,
translated to a lack of oxygen to the brain and other organs of
the body which, in turn, triggered a chain of events leading to
the
death of the deceased. She strongly denied that the injuries to
the appellant could have been caused by the attending
paramedics.
[31]
In
addition, she also made mention of the fact that the deceased had
bruising to her arms, hips, knees and elbows. In connection
with the knee and elbow bruising, she opined that this would be
consistent with the deceased being on ‘all fours’.
The bruising of the upper arms is consistent with someone grabbing
the deceased by the arms with a firm grip and holding on to
the
deceased.
[32]
Most
significantly, she testified about the vaginal and anal injuries and
described the injuries as being due to tearing, friction
abrasions
and rubbing abrasions. According to her, the vaginal injuries
to the deceased were not consistent with any self-inflicted
masturbation. This, because it would be extremely painful and
one would expect sufficient lubrication in the event of any
self-inflicted masturbation. She described these injuries as
typically being caused by forceful non-consensual sexual
penetration.
[33]
In
connection with the anal injuries, she vehemently denied that this
could have been caused by constipation. This would in
turn,
cause tearing to the inner and not the outer part of the anus.
She also testified that the depth of the penetration
to the vagina
and the anus were (7) centimetres in extent and were most likely
caused by the same object. She noted sand
grains deep into the
vagina and explained that this was consistent with someone having
sexual intercourse with the deceased whilst
in the camping tent. In
addition, she procured blood samples during the post mortem which she
dispatched for analysis.
Both were rendered negative for
alcohol or narcotic drugs.
DR
MARTIN
[34]
She is
a professor that
specializes in forensic clinical medical examinations. She
based her opinion on her clinical expertise and
experience and has
examined, inter alia, more than (2000) rape victims. Amongst
other numerous achievements and accolades
she penned the ‘National
South African Protocol’ on the guidelines for the treatment of
rape survivors. She was
steadfast in her testimony that the
injuries caused to the anus and genitalia of the deceased were caused
due to blunt force trauma.
Specifically, not blunt force trauma
that could have been caused by self-inflicted masturbation,
alternatively, by constipation.
MR
SMITH
[35]
He is
registered with the Health Professions Council of South Africa as a
Medical Biological Scientist and has been the director
of the
‘Clinical Pharmacology Drug Monitoring Laboratory’ at
Groote Schuur Hospital for the past (25) years.
He received
both a blood and urine sample of the deceased. He found no
objective evidence that the deceased had consumed
any narcotic drugs.
MR
BLOCKMAN
[36]
He
holds a Masters of Medicine from the University of Cape Town and is
an Associate of the Fellow of the College of Clinical
Pharmacologists.
According to him, it was very difficult to
verify whether the deceased actually ingested any narcotic drugs.
This also because
it was not clear what dosage the deceased may
or may not have ingested. The finding which exhibited ‘trace
cocaine
metabolites’, could be indicative that cocaine was
taken some days before the incident, alternatively, could indicate
that
the deceased may not have ingested any cocaine at all.
THE
CASE FOR THE APPELLANT
THE
MEDICAL EVIDENTIAL MATERIAL
MR
NAIDOO
[37]
He is
a medical doctor and an expert witness. He opined that the
deceased was not raped and that the deceased’s vaginal
injuries
could have been caused due to self-inflicted masturbation and her
anal injuries due to constipation. He could not
explain the
absence of any narcotic drugs in the blood and urine samples of the
deceased. Significantly, he conceded that
the bruising on the
arms of the deceased were consistent with somebody holding onto or
grabbing the deceased by her arms.
THE
FACTUAL EVIDENTIAL MATERIAL
MS
MARTIN
[38]
She
was part of the group on the night in question at the camping site.
She consumed alcohol and purchased what she assumed
were recreational
drugs. She felt unwell after she had consumed these
recreational drugs. She did not observe the deceased
taking any
of the drugs that they had purchased, but noticed that the deceased
took ill in the vicinity of the restrooms on route
to the dance
floor.
MS
GRAY
[39]
She
was initially a witness for the respondent but, her statement was
handed over and she was made available to the appellant, to
testify
in his defence. Some arguments followed at the hearing of the
appeal and certain averments were made about the respondent’s
conduct in this connection. In our view, nothing turns on this
and we find nothing untoward by the prosecutor in this connection.
She testified she had consumed alcohol and was ‘tipsy’ as
a result. She approached the deceased while she was
sitting
down in the vicinity of the restrooms. She testified that the
deceased said she was feeling nauseous. The deceased
could not
stand upright without assistance and stated that she wanted to go to
the tent to have sexual intercourse with the appellant.
She
confirmed that the deceased was not in a physical state to have
sexual intercourse, but that whilst at the tent, the deceased
opined
that the deceased was ‘fine’.
[40]
The
appellant elected not to testify and elected to exercise his
constitutional right to remain silent. The import and the
possible consequence of this decision was meticulously and carefully
explained to him by the trial judge in the court a
quo
.
In any event, the appellant was legally represented and his clear
instructions were that he elected not to testify.
We mention
this because at the hearing of the appeal, it was suggested that the
appellant may not have enjoyed a fair trial.
There is no merit
in this, particularly in view of the fact that at all material times,
the appellant was legally represented and
himself made a positive
election not to testify in this context.
[15]
DISCUSSION
THE
GROUNDS OF APPEAL
THE
EVIDENCE POINTED AWAY FROM ‘NON-CONSENSUAL’ SEX
[41]
One of
the core issues advanced by the appellant at the hearing of this
appeal was that the respondent failed to prove beyond a
reasonable
doubt, the lack of consent to the alleged rape of the deceased.
This, because of the reasoning that the ‘lack
of consent’
is an element of the crime of rape as formulated. Further, that
the respondent bears the onus of proof,
beyond a reasonable doubt, in
order to sustain a conviction against the appellant. This is
undoubtedly so, but this must
be carefully analysed in view of the
evidence by the respondents’ witnesses to the effect that the
appellant told them outright
that he did not have sexual intercourse
with the appellant at all on that fateful night. Also, the
appellant was with her
all the time whilst they were inside the
tent. This issue bears more scrutiny in view of the fact that
the appellant elected
not to testify in his defence, which we
nevertheless undoubtedly accept is his constitutionally enshrined
right.
[42]
It
is apparent
that
the appellant and the deceased were in a romantic and consensual
sexual relationship. According to the respondents’
witnesses the last time that the appellant and the deceased had
sexual intercourse was about a week before the tragic events that
subsequently unfolded.
[43]
It is
common cause that the group decided to purchase these recreational
drugs at the rave festival as they desired to experiment
with these
drugs. The appellant and the deceased (amongst others),
specifically proceeded to the dance floor in order to
purchase these
recreational drugs. None of this group had used these drugs
before and were not in a position to positively
testify as to exactly
what recreational drugs they had consumed. Significantly, those
of the group who took the drugs did
not experience the ‘usual’
symptoms associated with the intake of these recreational drugs.
[44]
Consent
arises in various forms in our law. Consent in criminal law
matters more so because to locate consent in connection
with sexual
intercourse is to locate the normative boundary between criminal rape
and consensual sexual intercourse. Consent
is not solely a
generic concept. Generically, to have consented to sexual
intercourse in law is to acquiesce to the sexual
intercourse in some
way whether by virtue of doing so subjectively or as a matter of
law.
[45]
I say
this also because ‘intention’ is specifically indicated
in the definition
[16]
, as a
requirement for a conviction. However, it suffices to prove
dolus
eventualis
in
that it is sufficient to prove that the appellant, in these
circumstances, foresaw the possibility that the deceased’s
free
and conscious consent might be lacking, but nevertheless continued to
have sexual intercourse with her.
[46]
The
(2) counts of unlawful sexual penetration in the indictment against
the appellant allege that the appellant did so without the
consent of
the deceased or under circumstances when the deceased was unable to
give such consent. This concept of consent
in relation to the
offence is defined in section 1(2) of the Act
[17]
as ‘voluntary or uncoerced agreement’.
[47]
Section
1(3) contains a provision dealing specifically with the
interpretation of the words ‘voluntary or uncoerced’.
It indicates, inter alia, as follows:
‘
(3)
Circumstances … in respect of which a person ('B') (the
complainant) does not voluntarily
or without coercion agree to an act
of sexual penetration … include, but are not limited to, the
following:
…
(d) where B is incapable
in law of appreciating the nature of the sexual act, including where
B is, at the time of the commission
of such sexual act -
…
(iii) in an
altered state of consciousness, including under the influence of any
medicine, drug, alcohol or other substance,
to the extent that B's
consciousness or judgement is adversely affected;’
[48]
In our
view, taking into account the circumstances of this case, in order
for the deceased to have consented to sexual intercourse
with the
appellant, her acquiescence must have been sufficiently free,
informed and competent to enable her to take responsibility
in the
eyes of the law for her choice.
THE
COURT A
QUO
WRONGLY REJECTED EXPERT EVIDENCE REGARDING THE
‘OTHER INJURIES’ TO THE DECEASED
[49]
The
credibility of the respondents witnesses was not the subject of any
dissent during cross examination on the following issues,
namely:
that the deceased never fell down at the restroom area adjacent to
the dance floor: that the deceased did not
sustain any injuries
on the way to the tent: that the deceased had no visible
injuries at midnight when she and the appellant
entered the tent:
that the appellant closed the tent and that Mr Manual heard
noises of a sexual nature emanating from the
tent. This
evidence accordingly, as a matter of law falls to be accepted.
Moreover, the appellant’s ‘alternative
suggestions’
on this score were never sufficiently indicated to these witnesses.
[50]
The
evidence presented by the paramedics and the nurses, viewed
holistically, clearly demonstrates that the deceased did not sustain
any injuries whilst in their care and the treatment which they
administered to her. In addition, there is corroboration for
their evidence in the testimony of the other medical experts called
by the respondent. These experts independently indicated
that
they had not before witnessed the injuries described in the
post-mortem report as being consistent with injuries caused by
paramedics. The (2) nurses who testified made a good impression
on the trial judge and their evidence was never the subject
of
dispute during cross-examination. They observed injuries in the
vaginal and anal area of the deceased and that is precisely
the
reason why a physician was summoned to assist.
[51]
It is
so that the majority of the medical evidence that was tendered was
inextricably linked to the ‘rape homicide’
crime with
which the appellant was indicted. On the homicide charge he was
acquitted. However, some of the medical
evidence that was
tendered in this connection, remains crucially relevant to the crimes
upon which the offender was convicted.
[52]
Ms
Abrahams was clearly in the best position to render expert evidence
in connection with the injuries to the deceased. Her
evidence
was supported and corroborated by Dr Martin. She testified
about bruises sustained by the deceased to her arms,
hips, knees and
elbows. Specifically in connection with the bruising to the
knees and elbows, she expressed the view that
it was consistent with
‘somebody being on all fours’.
[53]
Significantly,
she described the vaginal injuries as being ‘
tears,
friction abrasion and rubbing abrasion’
.
Further, that these injuries were not consistent with masturbation.
She opined that the anal injuries could not have
been the cause of
constipation. This because, constipation would cause tearing to
the inner and not the outer part of the
anus. In addition, the
depth of the penetration of both the vaginal and the anus is
indicative of the fact that these injuries
were most likely caused by
the same object.
[54]
Ms
Troskie and Ms Bam confirmed that the deceased had injuries to her
knees, elbows and hips. When they were washing the deceased,
they noticed vaginal injuries and reported this to the attending
physician, Mr Franklin.
[55]
Mr
Martin confirmed that when he took the deceased to the tent she was
unable to walk by herself, but that she did not fall on her
way to
the tent and had no visible injuries. Mr Manuel also confirmed
that the deceased did not sustain any injuries whilst
being
transported from the tent to the medical tent. This, in turn
was also confirmed by Mr Inglis and Mr Driessen.
[56]
Mr
Barling confirmed that the deceased had injuries to her knees, hips
and elbows when she was brought into the medical tent.
She did
not sustain any further injuries whilst in his care. Mrs Makier
transported the deceased from the festival to the
hospital. During
this process the deceased did not suffer any further injuries.
[57]
Mr
Franklin confirmed that the deceased had bruises to her pelvis
[18]
and also to her knees. Ms Martin also confirmed that in her
opinion the injuries caused to the anus and the vagina of the
deceased were due to blunt force trauma and not blunt force trauma
that could have been caused by self-inflicted masturbation and/or
by
constipation.
THE
RESPONDENT’S WITNESS MR DRIESSEN WAS NOT ‘CREDIBLE’
[58]
In a
final throw of the dice the appellant contends for the position that
the evidence of Mr Driessen was not credible and falls
to be
rejected. Again this evidence must not be viewed in isolation,
but must be viewed within its proper context.
[59]
After
the deceased was placed on a stretcher and taken to the medical tent,
Ms Lalloo and the appellant had a discussion.
The appellant
showed her a scratch mark on his stomach. The appellant stated
that the deceased wanted to have sex, but he
refused because the
deceased was acting in a ‘weird’ fashion. Moreover,
at the hospital the appellant told her
that it appeared that the
deceased had been raped. Furthermore, the appellant stated that
the last time that the appellant
and the deceased had sexual
intercourse was before Christmas a few days before.
[60]
Mr
Manual testified that he heard noises from the tent solely occupied
by the appellant and the deceased and he assumed that they
were
having sexual intercourse. He heard these noises for about (10)
minutes. After the appellant had accompanied the
deceased to
the medical tent, Mr Manual testified that the appellant looked
‘worried’ and disappeared for about (30)
minutes while
the deceased was being treated by the paramedics.
[61]
Mrs
Deva testified that the appellant told her that the deceased had
taken drugs. The appellant showed her the scratch mark
on his
stomach and told Mrs Deva that the deceased had scratched him while
they were inside the tent.
[62]
It is
against this backdrop of evidence that the testimony of Mr Driessen
needs to be critically evaluated. Mr Driessen identified
the
appellant as the person who approached him. This was
incorrect. He was mistaken. He spoke to Mr Manual.
Mr Manual is a very tall person, whilst the appellant is short in
stature. Whilst at the medical tent the appellant uttered
the
words ‘
sorry
baby, sorry baby’
.
Mr Driessen recalls the appellant stating that the deceased ‘
conked
in’
whilst the appellant and the deceased were having sexual intercourse
in the camping tent. Lastly, Mr Driessen remarked that
the tent
was very ‘neat’ on the inside thereof.
[63]
Mr
Driessen omitted to mention in his witness statement the fact that
the appellant stated ‘
sorry
baby, sorry baby’
and that the deceased had ‘
conked
in’
during
sex with the appellant. Despite this, the trial judge held that
Mr Driessen made a good impression, this despite his
error relating
to Mr Manual. In addition, there was absolutely no reason
apparent from the factual matrix and peculiar circumstances
of this
case, why Mr Driessen would deliberately fabricate evidence to
falsely implicate the appellant.
THE
TWO CARDINAL RULES OF LOGIC IN REASONING BY ‘INFERENCE’
[64]
In
Blom
,
Watermeyer JA, eloquently set out the (2) cardinal rules of logic as
follows:
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
the inference sought to be drawn must be consistent with all the
proved facts. If
it is not, the inference cannot be drawn.
(2)
the proved facts should be such that they exclude every reasonable
inference from them save
the one sought to be drawn. It they do
not exclude other reasonable inferences, then there must be a doubt
whether the inference
sought to be drawn is correct’
[19]
[65]
It was
contended by the appellant that the deceased’s vaginal and anal
injuries could have been self-inflicted and not caused
as a result of
sexual intercourse. This, it was asserted was another
reasonable inference which could not be excluded in
an evaluation of
the facts.
[66]
The
main difficulty with this argument is the lack of any evidence, or at
the very least, a substantiated version, from the appellant.
The appellant is and was the sole person who could actually give
evidence to the effect that these injuries were inflicted due
to
self-masturbation by the deceased.
[67]
Moreover,
the condition wherein a body’s bleeding mechanism is out of
control and there is a lot of bleeding for no apparent
reason, which
in this case eventually happened to the deceased, was fully taken
into account in the court
a
quo
,
when determining the cause of the vaginal and anal injuries to the
deceased.
[68]
Besides,
the factual evidence supports the fact that these injuries amounted
to tears and abrasions which were caused by blunt trauma.
In
addition, this is supported by the factual evidence of Mr Manual and
Mr Driessen as to what they say transpired between the
deceased and
the appellant, this whilst they were in the tent.
[69]
The
appellant never contended for the position of consensual sexual
intercourse with the deceased. What was suggested to the
respondents’ witnesses was that there was no sexual intercourse
between himself and the deceased. Furthermore, it was
never
suggested to Mr Manual that the noises he heard were those of the
deceased indulging in self-masturbation.
[70]
The
argument that little or no probative weight may be attached to the
evidence of Mr Driessen because of his mistaken identity
of Mr Manual
for the appellant is not sustainable because, this confusion occurred
during their first meeting and not what the
appellant said at the
paramedics tent. Further, when this statement was made by the
appellant, Mr Manual without hesitation
uttered the words ‘
Nai
Bru’
.
This euthanizes the mistaken identity issue.
[71]
Moreover,
the factual evidence to the effect that Mr Manual heard the sounds of
people having sexual intercourse in the tent, does
not exclude the
inescapable inference of sexual intercourse with someone who is
incapable of giving consent thereto.
[72]
The
reasonable inference contended for by the appellant is the position
where no intercourse occurred between the appellant and
the deceased
and all her vaginal and anal injuries were inflicted due to
self-masturbation. This, against the canvass of
the fact that
the appellant declined to offer up any evidence in this connection
and the nature and severity of the injuries found
on the deceased
exhibit an inherent probability that these injuries could not have
been self-inflicted.
THE
FAILURE OF THE APPELLANT TO TESTIFY
[73]
Circumstantial
evidence supplies proof in an indirect manner. The distinction
between direct and circumstantial evidence is
of crucial importance
in cases where an appellant does not testify himself.
[20]
[74]
It is
undoubtedly so that an accused person enjoys the right to remain
silent, and not testify during any criminal proceedings against
him
or her. Does this decision not to testify mean that the
decision so made is devoid of all legal consequences. We
say in
this case – ‘No’.
[75]
In
Boesak
[21]
,
the following penchant observation was made namely, that if there is
evidence at a trial calling for an answer and an appellant
person
chooses to remain silent in the face of such evidence, a court may
well be entitled to conclude that the evidence is sufficient,
in the
absence of an explanation, so as to prove the guilt of the
appellant. This, bearing in mind always that such a failure
to
testify does not relieve the prosecution of its duty to prove guilt
beyond reasonable doubt.
[76]
What
is stated above is totally consistent with the remarks by Madala, J
in
Osman.
[22]
Writing for the court, he said the following:
‘
An
accused, however, always runs the risk that, absent any rebuttal, the
prosecution’s case may be sufficient to prove the
elements of
the offence. The fact that an accused has to make such an
election is not a breach of the right to silence.
If the right
to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal
justice’
[77]
Of
significance and relevant to the facts and circumstances of this case
is precisely what was indicated by Diemont JA, in
Sauls
[23]
,
as follows:
‘
The
State is, however, not obliged to indulge in conjecture and find an
answer to every possible inference which ingenuity may suggest
any
more than the Court is called on to seek speculative
explanations for
conduct which on the face of it, is incriminating’
[78]
Put in
another way, this does not mean, as has sometimes been suggested,
that the trier of fact is entitled to speculate as to the
possible
existence of facts which, together with the proved facts, would
justify a conclusion that an accused person may be innocent.
[79]
In
Mlambo
[24]
,
Malan JA, set out in our view the true test to be applied in the
circumstances of this case, namely:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It
is sufficient for the Crown to produce evidence by means of which
such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused has committed
the crime charged’
[80]
These
features
of
logical reasoning in circumstances similar to the legal reasoning
required in this case, were echoed in
Boesak
[25]
,
as follows:
‘
It
is clear law that a cross-examiner should put his defence on each and
every aspect which he wishes to place in issue .......a
criminal
trial is not a game of catch-as-catch can……’
WHAT
DO WE MAKE OF THE ‘SUGGESTIONS’ PUT TO THE WITNESSES FOR
THE RESPONDENT?
[81]
It is
trite law that any exculpatory suggestions or explanations that may
have been put to the respondents’ witnesses by the
appellant’s
legal team, do not amount to ‘evidence’ and to this
attaches no probative weight.
[82]
The
enquiry however does not end here. We say this because certain
material statements were made by the appellant to the respondents’
witnesses who testified about these statements. This ‘evidence’
was not engaged with or subject to any material challenge.
These ‘statements’ may be properly defined as an
acceptance by the appellant of the certain facts which may be
prejudicial
to him.
[83]
When
judging these ‘statements’
[26]
,
the question arises whether it should be done objectively (in other
words, whether one should assess what the words intended to
convey),
or whether the declarant meant something, but did not say it
expressly, in other words ‘subjectively’.
The
solution is found in an objective approach where provision is made
for subjective factors in certain instances.
[27]
Most significantly, if it does appear that the statements made are or
may be exculpatory, judged from the words and the intention
of the
declarant, then these statements amount in law to informal
admissions.
[84]
Ludorf
J, in
Motara
[28]
,
indicated this approach most eloquently as follows:
‘
Surrounding
circumstances may be looked at, but only those circumstances which
help to ascertain the true meaning of the words used’
[85]
Besides,
even if the appellant tried to give an exculpatory explanation, it
can still for the purposes of -
evidential
material
- amount to an informal admission.
[29]
The acceptance of an informal admission can occur by means of words,
conduct, action or demeanour. The testimony by
the respondents’
witnesses of statements made by the appellant indicate clearly that
these statements were made by the appellant,
absent any restraint.
[86]
The
following material statements, were inter alia, made by the appellant
to the respondent’s witnesses which were not materially
engaged
with by the appellant: that the appellant told Ms Lalloo that
the deceased wanted to have sexual intercourse, but
he refused
because the deceased was acting weird
[30]
:
that when Ms Lalloo asked the appellant at the hospital how the
deceased was doing, the appellant remarked that it appeared
as if the
deceased had been raped
[31]
:
that Ms Lalloo asked the appellant if he had sexual intercourse with
the deceased and he replied that the last time that they
had sexual
intercourse was before Christmas: that the appellant told Mr
Martin that the deceased had taken acid and that
is why she was
unwell
[32]
: that Mr
Manual testified that the appellant looked ‘worried’ at
the medical tent and disappeared for about (30)
minutes: that
the appellant, whilst at the medical tent, uttered the words ‘
sorry
baby, sorry baby’
:
that the appellant stated that the deceased had ‘
conked
in’
while they (the deceased and appellant) had sexual intercourse inside
the tent: that the appellant told Mrs Deva that the
deceased
had taken drugs and that the appellant told Mrs Deva that the
deceased had scratched the appellant on his stomach while
they were
inside the tent.
[87]
Moreover,
the appellant told Mr Franklin that the deceased felt hot, started
rolling around in the tent, the deceased had visual
disturbances,
felt ‘turned on’ and undressed herself. Further,
the deceased fell down a few times on the way
to the tent
[33]
.
The appellant denied having sexual intercourse with the deceased, but
never left her alone for a period of about (90) minutes,
this whilst
they were both inside the tent with no other person present.
[88]
These
statements by the respondents’ witnesses were not materially
engaged with by the appellant. Accordingly, in our
view the
correct test to be applied in the evaluation of these statements is
what was indicated by Grosskoff J, in
Cloete
[34]
,
as follows:
‘
Of
course, even if an exculpatory statement has no evidential weight,
it may still serve its primary purpose of indicating
the line of
defence on which the accused relies. A court would clearly have
to bear the statement in mind for this purpose
when evaluating the
evidence before it’
THE
WRITTEN STATEMENT BY THE APPELLANT
[89]
The
appellant’s legal team at the hearing of the appeal, abandoned
their efforts to in any manner or form rely on the written
statement
made by the appellant. We agree with this wise course of
action. Accordingly, we do not deem it necessary to deal
with this
‘issue’ in this judgment.
CONCLUSION
[90]
Of
equal importance is that the appellant’s legal team chartered
the issue of the ‘defence’ of the lack of the
proof of
consent with vigour for the first time on appeal. On this
score, the respondent is not required to:
‘…
plug
every loophole, counter every speculative argument and parry every
defence which can be conceived by imaginative counsel without
a scrap
of evidence to substantiate it’
.
[35]
[91]
In our
view, it is clear from the mosaic of circumstantial evidence
presented by the respondent, that undoubtedly the appellant
was
solely to blame for what happened to the deceased inside the camping
tent on that fateful night. The medical evidence
demonstrably
shows that the deceased was forcefully raped both vaginally and
anally. The statements made by the appellant
to the
respondents’ witnesses indicate undoubtedly that the deceased
was not in a position to consent to sexual intercourse
as indicated
in Section 1(3) (d) (iii) of Act, 32 of 2007.
[92]
At
some stage the deceased was grabbed by the arms and must have been on
‘all fours’ inside the camping tent.
Mr Manual
heard noises indicating sexual intercourse. The appellant
subsequently disappeared from the medical tent for approximately
(30)
minutes and the deceased’s bikini bottom was never recovered.
The tent was found neat and tidy inside and exhibited
no signs of any
person rolling around inside the camping tent.
[93]
It is
trite that in the absence of demonstrable and material misdirection a
trial court’s findings of fact are presumed to
be correct and
that they will only be disregarded on appeal if the recorded evidence
shows them to be clearly wrong. It is
against this principle
that the credibility and factual findings made by the trial court,
and decried by the appellant, must be
considered. In our view,
the inferences drawn by the judge in the trial court were correct.
This, based on the factual,
medical and circumstantial evidence. On
this score it is significant to once again emphasize that marked
difference in the
legal concepts of an inference as opposed to
conjecture or speculation. We find that the what is contended
for by the appellant
amounts to speculation and conjecture. Put
in another way, there are no positive facts underpinning or in favour
of the position
and stance chartered by the appellant. We find
that the appellant had sexual intercourse with the deceased at a time
when
she was unable to consent thereto.
[94]
In the
result the following order is granted, namely:
1.
That
the appeal against the appellants convictions is dismissed.
2.
That
the convictions and sentences imposed upon the appellant are hereby
confirmed.
__________________
HENNEY, J
__________________
WILLE, J
SALDANHA
J, dissenting
[1]
This is a matter in which a young woman lost her life in tragic
circumstances. The
appeal relates to the question as to whether she
had been raped by the appellant several hours prior to her
unfortunate death.
I have had the benefit of considering the
judgment by the majority in this appeal. I respectfully
dissent therefrom.
In my view, the appeal turns upon the
central issue as to whether the deceased, at the time of sexual
intercourse both vaginally
and anally, was able to have consented
thereto.
[2]
The evidence tendered by the State in the court a quo failed, in my
view, to establish
beyond reasonable doubt that the deceased was not
able to have consented to sexual intercourse with the appellant.
To the
contrary, the State in the court a quo relied on a theory
bolstered by various expert witnesses called by it , in particular,
Dr.
Deidre Abrahams and Dr. Lorna Martin, that the appellant had
strangled the deceased in an attempt to subdue her while forcefully
having sexual intercourse with her against her will. Central to
the State’s case was the claim of the alleged strangulation
of
the deceased, at the hands of the appellant, in order to subdue her.
Nowhere in the State’s evidence in the court
a quo did it seek
to prove that the deceased lacked the mental capacity to consent to
sexual intercourse. On appeal the State
adopted the same theory
as it had in the court a quo, as was apparent from the heads of
argument filed by counsel for the State,
much of which again
concentrated on the evidence that related to the alleged
strangulation and the alleged injuries associated
therewith found on
the deceased. When I asked counsel for the State, during
argument on appeal, as to what the State’s
actual position was,
given that very little of the contents of the heads of argument dealt
with the actual analysis and findings
of the court a quo, relating to
the issue of consent, and what appeared to be no more than a
regurgitation of the argument on conviction
in respect of the count
of murder in the court a quo, counsel for the State submitted that it
remained of the view that the strangulation
of the deceased and the
alleged injuries associated therewith ‘was intertwined’
with the claim that the deceased had
been raped by the appellant.
Notwithstanding the finding by the court a quo that the consumption
of drugs by the deceased
may have played a role in her death, the
State maintained, in its heads of argument on appeal, that it had
‘proved beyond
a reasonable doubt that there was no drugs in
the blood or urine of Sarisha. There is no objective or
subjective evidence
to support that. Five different tests were
done which were all negative’
.
In this regard
counsel for the State referred the court on appeal, as she had done
in the court a quo, to the 5 point tests
done by Dr. Craig Franklin,
that of PathCare, that of the UCT laboratory, and the tests conducted
by the Department of Health and
the state laboratory.
[3]
The State also maintained that Dr. Segaran Naidoo, who testified on
behalf of the
appellant, was unable to explain the absence of drugs.
The State contended that the effect the ‘so-called LSD and
MDMA’
had on Ms Vanika Lalloo and Ms Lameez Martin, was also
not consistent with what would have been expected (sic) based on the
evidence
of Professor Marc Blockman.
[4]
At the outset I wish to state that this dissenting judgment is based
on what I regard
as the correct findings by the court a quo, that,
based on the circumstantial and other evidence, there had in fact
been sexual
intercourse between the appellant and the deceased and
that the injuries sustained by the deceased, both vaginally and
anally,
were as a result of penile penetration by the appellant. The
state had on the evidence, both direct and indirect in nature, prima
facie proved that there was sexual intercourse between the appellant
and the deceased. The point of departure with the findings
of
the court a quo relates to the evidence presented at the trial, as to
whether the State had in fact proved that the deceased,
when entering
the tent with the appellant, had not been in a mental condition to
have consented to sexual intercourse with him.
This dissenting
judgment of course flies in the face of what appeared to have been
the avowed version of the appellant throughout
the trial,
notwithstanding his failure to testify. That version, put to
the various witnesses for the State, and which
also emanated
from some of the state witnesses themselves, such as Dr. Franklin, Ms
Manakshi Deva, Ms Vanika Lalloo, Inspector
Marissa Gordon and
Sergeant Ronel Morrison, amongst others, and so too that of Dr.
Naidoo, was that the appellant denied that he
had had sexual
intercourse with the complainant, but rather that the deceased had
self-inflicted the injuries to both her vagina
and anus in the course
of masturbation while in a state of heightened sexual arousal.
Dr. Naidoo further contended that the
injuries to the anus could be
attributed to a constipated condition on the part of the deceased.
[5]
For the purpose of this judgment, it is not necessary to repeat all
of the evidence
tendered in the court a quo, inasmuch as such
evidence has been extensively set out in the judgment of that court.
There
are, however, crucial aspects of the evidence relating to the
question of consent which this judgment will refer to, and which,
in
my view, had not been adequately dealt with and considered by the
court a quo, in arriving at its findings. Moreover,
the court a
quo had, correctly in my view, meticulously dealt with the evidence
relating to the alleged strangulation of the deceased
by the
appellant and all of the injuries which may have been associated
therewith.
[6]
In relation to the question of consent the court
a quo
relied
principally on the evidence of Mr Pallo Manual, that shortly after
midnight he had heard sounds of sexual intercourse coming
from the
tent occupied by the accused and the deceased. The court also
relied on the evidence of Mr Sebastiaan Driessen,
who claimed that he
had heard the appellant say to Mr Manual that the deceased had
‘conked’ out while they were having
sexual intercourse.
[7]
The court also relied on the testimony of Ms Jade Gray who, albeit in
regard to a
different physical context, testified that ‘she did
not think that the deceased was in a position to have consented to
intercourse.’
The court also relied on a view expressed
by Dr. Naidoo, that if the deceased had been under the influence of
LSD and MDMA, as
was the appellant`s version, ‘her confused and
disorientated state rendered it highly questionable whether she could
consent
to intercourse.’ Moreover the court sought to
rely on its finding with regard to the state of consciousness of the
deceased as ‘described by the accused (second-hand) and by
those who were with her before she entered the tent and who assisted
her from the dance floor to the tent, together with the evidence
given by the various experts on the effects of a drug such as
MDMA’,
all of which, the court found, brought the deceased squarely within
the category set out in section 1 (3) (d) (iii)
of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the
Act”) which provides:
‘
(d)
where B is incapable in law of appreciating the nature of the sexual
act, including where B is, at the time of the
commission of such
sexual act-
…
(iii)
in an altered state of consciousness, including under the influence
of any medicine, drug, alcohol or other
substance, to the extent that
B’s consciousness or judgment is adversely affected;. . .’
[8]
The common law definition of rape, which was applicable until the
adoption of the
Act, was the ‘unlawful, intentional sexual
intercourse with a woman without her consent.’
[36]
Snyman
[37]
points out that the
definition of rape in the Act does not contain anything new as far as
the legal rules relating to sexual offences
are concerned. He
states though, that the Act merely codifies the law in respect of the
absence of consent which applied
in the previous common law crime of
rape. Likewise, Schwikkard
[38]
correctly points out that the definition of consent as voluntary or
uncoerced agreement, does not appear to constitute a substantive
departure from the common law definition of consent, and no more than
highlights the presence of coercion and the absence of consent.
Section 1(3) consolidates and expands the common law in providing a
list of circumstances in which consent will not be found to
exist.
[39]
[9]
The State, as under the common law, retains the burden under the Act
of proving the
absence of consent beyond reasonable doubt. The
evidential burden on accused, to show that they believed that the
complainant
consented, will only arise once the prosecution has
established a prima facie case that the complainant did not consent.
[10]
In
Otto v S
(988/2016)
[2017] ZASCA 114
(21 September 2017)
the Supreme Court of Appeal held:
‘
The onus
rests on the State to prove all of the elements of the offence of
rape, including the absence of consent and intention.
That is
so even where, as in this case, the version put to the complainant by
the appellant’s legal representative was a
denial of any sexual
contact with her. That false version makes the State’s
task a great deal easier, as does the fact
that the appellant decided
not to testify
[40]
.’
(Internal footnotes partially omitted.)
[11]
The case law is however sparse on the relevant subsections, i.e.
section 1 (2) of the Act, which
defines consent as voluntary and
uncoerced agreement, and section 1 (3) which provides the list of
circumstances in which consent
will be involuntary and coerced and in
particular (d) (iii). The State would nonetheless have to prove
that the complainant/victim
of a sexual assault had both the ability
to consent (conative) and the ability to exercise her free will in
making such a choice.
[12]
The authors in the Sexual Offences Commentary
[41]
,
in dealing with the issue of consent, correctly point out that valid
consent cannot be given by a person who is in a state of
intoxication
or whose senses are numb as a result of drugs or hypnosis. That
is uncontroversial and will always be the case
where a complainant
has been reduced to a state of insensibility as a result of
intoxication, whether voluntarily or not.
[42]
The authors point out that depending on the facts of the case, it
might also be that the complainant was so drunk that she/he
was not
fully capable of consenting, since as ‘a matter of practical
reality, capacity to consent may evaporate well before
a complainant
becomes unconscious’
[43]
.
The phrase in the Act ‘to the extent B’s consciousness or
judgment is adversely affected’ illustrates
that either
cognitive (consciousness) or conative (judgment) can be lacking for a
presumption of lack of consent to operate.
They further point
out that when deciding whether intoxication vitiates consent, the
courts would have to look at all of the surrounding
circumstances and
draw inferences from the facts. They reference the matter of S
v Hammond
[44]
where, amongst
other considerations and evidence, the combination of the
complainant’s drunkenness at the time of the incident,
and her
irrational behaviour earlier that day led the court to find consent.
Similarly, they refer to
R
v K
[45]
where
the court found that the complainant’s alcohol consumption and
untruthfulness created a reasonable doubt about a lack of
consent.
The writers add that in cases decided under the Act, intoxication
will not lightly lead to a reasonable doubt of
lack of consent.
The wording of subsection 1 (3) (d) (iii) will require a court to
look beyond whether the complainant was
reduced to a state of
insensibility, to whether the complainant lacked capacity to consent
on the facts. Arguably, the writers
contend, in circumstances
involving intoxicants there is now a greater responsibility on the
accused to have clearly established
consent before proceeding with
the sexual encounter.
[46]
[13]
It is in the context of these codified provisions of the Act relating
to mental capacity, and
the sparse case law on the issue, that the
court a quo had to consider whether the deceased had the necessary
mental capacity to
consent to sexual intercourse and, moreover, in
circumstances in which there was a paucity of evidence relating to
consent, and
where the State, to the contrary, sought to prove that
the deceased was not under the influence of any intoxicant that
affected
her mental condition.
[14]
The evidence tendered by the State in respect of the two counts of
rape was circumstantial and
of a medical nature and, as pointed out
by the court a quo, not exclusively so. The further
circumstantial evidence was that
from a number of non-medical
witnesses, such as Mr Manuel, Mr Driessen, Ms Lalloo and Ms Deva, and
that of the statements made
by the appellant to the various police
officers and others who testified.
[15]
The dicta in
R v Blom
1939 AD 188
, at 202-203, applicable to
the findings of the court a quo in respect of the murder charge, were
in my view equally applicable
to the two counts of rape. The
two cardinal rules of logic could not be ignored when considering the
circumstantial evidence;
firstly, that the inferences sought to be
drawn must be consistent with all the proved facts; and secondly, the
proved facts should
be such that ‘they exclude every reasonable
inference from them save the one sought to be drawn’. In
this regard
the remarks of Davis AJA in
R v De Villiers
remain
instructive:
‘
The Court
must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken. It must carefully weigh the cumulative
effect of all of them together, and it is only
after it has done so
that the accused is entitled to the benefit of any reasonable doubt
which it may have as to whether the inference
of guilt is the only
inference which can reasonably be drawn. To put the matter in
another way; the Crown must satisfy the
Court, not that each separate
fact is inconsistent with the innocence of the accused, but that the
evidence as a whole is beyond
reasonable doubt inconsistent with such
innocence.’
[47]
The court a quo was
alive to the application of these principles, inasmuch as it also
referred to the decision in
S v Reddy and Others
1996 (2) SACR
(1) (A), which also dealt with circumstantial evidence and in which
the following was stated:
‘
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration of whether its excludes the reasonable
possibility that the explanation given
by an accused is true.
The evidence needs to be considered in its totality. It is only
then that one can apply the
oft quoted
dictum
in
R
v Blom
.
. .’
It is equally trite
that the State bears at all times the onus of proving the accused’s
guilt beyond reasonable doubt, although,
as it was put in
S
v Ntsele
1998 (2) SACR 178
(SCA) ‘nie bo elke sweempie van twyfel
nie’
[48]
.
‘
[237]
In performing the exercise of evaluating the evidence and determining
whether the State has discharged its onus a Court
must approach the
evidence holistically. See
S
v Van Aswegen
2001 SACR 97
(SCA) and
S
v Chabalala
2003 (1) SACR 134
(SCA) at 139H:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State so as to exclude any reasonable doubt about
the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party . .
. was
decisive but that can only be an ex post facto determination and a
trial court (and counsel) should avoid the temptation
to latch onto
one (apparently) obvious aspect without assessing it in the context
of the full picture presented in evidence.”
[238]
Finally, it must be borne in mind that an accused’s failure to
testify does not necessarily fill all
gaps in the State’s
case. As was stated by Holmes AJA (as he then was) in
S v
Khoza
1982 (3) SA 1019
(A) at 1043 C-E:
“
The
fact that the appellant did not give evidence does not result in
proof beyond reasonable doubt that he murdered or attempted
to murder
the deceased. I say this because, before the absence of
gainsaying testimony from an accused can be said to carry
the day
against him, there must first be a prima facie case against him.’’
.
[239]
And further:
“
The mere fact
that the accused has been prosecuted, or shown to have behaved
suspiciously, does not make it necessary for him to
elect to deny the
charge under oath and
his
failure to testify cannot be treated as an independent item of
evidence capable of curing the deficiency in the prosecution’s
case. Furthermore, in considering what weight may be given to
the accused’s failure to explain, it is important to
consider
whether an explanation could reasonably have been expected. For
example, if the accused is shown to have committed
some act not
ordinarily done except with a guilty state of mind, it will normally
be reasonable to expect the accused to explain
why he did it and, in
the absence of explanation, to draw an inference of guilt –
depending, of course, on the quality of
evidence and the weight to be
given to that evidence by a Court”
.’
(Own emphasis added.)
[16]
The question arises as to whether the circumstantial evidence
tendered by the State on the rape
charges excludes, firstly, that the
appellant and the deceased had sexual intercourse, and secondly,
whether such sexual intercourse
could have occurred with her
consent. It is the second question, which in my view and as
already indicated, that is central
to the determination of the
outcome of the appeal. In this regard the evidence relied upon
by the court a quo, of Mr Pallo
Manual, must be considered in its
proper context and as testified to by him. When led by the
State in chief Mr Manuel stated:
‘
Ms
Erasmus: And what happened on your way to your tent?
Mr
Manuel: Well, when I got back to my tent I heard what sounded as
though people were having sex inside the tent next to mine.’
[49]
The evidence goes on
further:
‘
Ms
Erasmus: Then coming back to what you heard. Can you describe
to the Court what you heard?
Mr
Manuel: I heard moaning and groaning from a male and a female, and to
me that – I assumed that it sounded like they were
having
sex.’
[50]
[17]
In cross-examination he explained that he had been about ten minutes
in his tent while changing
his clothes, and the following was asked
of him:
‘
Mr
Moses: And during that time, did you hear – or, well, from what
you understand, you didn’t hear anybody crying or
shouting for
help.
Mr
Manuel: No.
Mr
Moses: And it clearly didn’t sound as if somebody was being
assaulted in any way in the tent from the sounds that you’ve
heard and what you have described here to Court.
Mr
Manuel: No.’
[51]
[18]
It was apparent from Mr Manuel’s evidence that the noises that
he had heard emanating from
that of the appellant’s and the
deceased’s tent, was not evidence or indicative of
non-consensual sex taking place.
For that reason, he said that
it did not bother him and he went on his way back to the dance floor.
[19]
The second non-medical witness the court a quo sought to rely upon
for the appellant having had
sexual intercourse with the deceased,
was that of Mr Sebastian Driessen. He claimed that the
appellant had said to Mr Manuel
that he and the deceased were having
sex, and at some stage she had ‘conked in’. It was
not clear from his evidence
as to exactly what was meant by the words
‘conked’ out, as he himself seemed unfamiliar with the
term. Nonetheless,
it is not evidence that the deceased had
been assaulted or was coerced during the sexual intercourse. I
might at this stage
also point out some difficulties that I had with
the evidence of Mr Driessen. He was the senior security officer
appointed
as the safety officer at the rave event on the night.
He was therefore responsible for ensuring that neither alcohol nor
any drugs were brought onto the premises. He explained in his
evidence how motor vehicles of patrons were searched on entry
to the
site, with the use of sniffer dogs, but that this had proved
inadequate given the limitations on the use of the dogs as
the
searches progressed. What was particularly significant about
his evidence, was that he had not recorded in his written
statement
the alleged utterance by the appellant to Mr Manuel. Neither
had Mr Manuel himself testified about such an utterance
made to him
by the appellant. Needless to say it would not have been
something that would have easily slipped the mind of
Mr Manual, to
have recorded it in his statement shortly after the incident and
notwithstanding the effusion of time since the incident.
In
fact, during the course of the oral argument on appeal, counsel for
the State (who was the same counsel that had appeared in
the court a
quo) informed the court that Mr Driessen had not disclosed to her in
a preparatory consultation that the appellant
had claimed that the
deceased had ‘conked in’ while they were having sexual
intercourse. Needless to say, the
State was as surprised as the
defense about his claim by Mr Driessen. It was also put to
counsel for the State that Mr Driessen
had not been an entirely
credible witness when considering his testimony overall, given the
circumstances in which he found himself,
as the safety officer
relating to an event in which someone had tragically died as a result
of the use of illicit drugs, and the
very concerns raised by Dr.
Franklin himself about the prevalence of such substances at the rave
events in that area on the very
night. Counsel for the State’s
response to the court was that she had ‘taken the evidence of
Driessen with a
pinch of salt’.
[52]
Clearly the version that he proffered with regard to the appellant
having sexual intercourse with the deceased and that she
had ‘conked
in’ was not in line with the theory of the State.
Nonetheless, the court a quo accepted the evidence
of Mr Driessen,
somewhat uncritically, despite the critique put to Mr Driessen by the
defence counsel that he was in a compromised
state as the safety
officer at the event at which the incident occurred. Even so, nothing
much turns on this critique of Mr Driessen’s
evidence, inasmuch
as his claims were not supportive of a finding of any lack of consent
on the part of the deceased to have had
sexual intercourse with the
appellant.
[20]
The State, in reliance on the evidence of Ms Vanika Lalloo, sought to
raise a suspicion about
the appellant, in the context of a
conversation he had with her in which he had said that ‘it
appeared that the deceased
had been raped.’ In this
regard the transcript read as follows:
‘
Ms
Lalloo: I asked him how she was and he said it appeared that she had
been raped. So . . . (intervention).
Ms
Erasmus: Just stop there. Yes.
Ms
Lalloo: And then I asked him if they did have sex that night and he
replied saying that they didn’t and the last time that
they did
have sex was before Christmas, around that time.
Ms
Erasmus: Was that the extent of the conversation?
Ms
Lalloo: Yes.’
[53]
[21]
It is not clear on what basis the State sought to raise any suspicion
about an utterance by the
appellant, who would in all probability
have heard from the medical staff that there were injuries found to
the vagina of the deceased
which had made them suspicious about a
possible sexual assault. More importantly, even before Ms
Lalloo was able to continue
with the conversation about the comment,
she was interrupted by the State itself. In my view there is no
basis for any suspicion
to have been cast upon the appellant arising
from that conversation, which incidentally also seems to be relied
upon in the majority
judgment.
[22]
The State in its heads of argument also sought to suggest suspicious
conduct on the part of the
appellant, because of the deceased’s
bikini bottom not having been recovered. The majority likewise
finds support in
that suggestion. Ms Deva had testified that
the deceased’s bikini bottom had not been recovered.
Clearly that
could not have been indicative of any suspicious conduct
on the part of the appellant, and the circumstances in which he had
found
himself when he went to pack up at the tent. It is not
even clear as to whether the deceased had her bikini bottom on, given
that earlier in the day she, together with the appellant and their
other friends, had gone for a swim in the river. The suspicion
sought to be cast upon the appellant with regard to the bikini bottom
was, in my view, equally without any merit.
[23]
In the evidence of Ms Manakshi Deva, the deceased’s mother, she
explained that the accused
had said to her that he and the deceased
had taken drugs for the first time and that the deceased had been
sexually aroused by
it. She claimed that the deceased and the
appellant had been in an intimate relationship and she was not aware
of an abuse
on his part. The appellant also denied to Ms Deva
that they had sexual intercourse and explained that the deceased had
scratched
him on his stomach. The scratch mark had also been
shown to Ms Lalloo by the appellant. With regard to the mental
state
of the deceased on entering the tent, the State led no direct
evidence. The defence, however, led the evidence of Ms Jade
Gray, who had been poised to be called as a witness by the State and
with who the State had consulted in preparation for her testimony.
In her testimony for the defence, Ms Gray stated that when she
initially saw the deceased near the toilets sitting on the ground,
the deceased did not ‘look herself’. She claimed
that the deceased was completely different and had said to her
that
she was not feeling well; ‘she told me that she felt like she
was melting’. She also explained that the
deceased was
wobbly on her legs, could not stand and had repeatedly fallen down.
The recordal of her evidence is as follows:
‘
Mr
Moses: And what else happened? What did she tell you?
Ms
Gray: She said to me that she wanted to go to the tent, and I told
her it’s not a good idea. She seemed completely
out of it
when I was talking to her. She told me that she wanted to go to
the tent and have sex with her boyfriend.
Court:
Just one moment. She said she wanted to go to the tent and have
sex with her boyfriend.
Ms
Gray: Yes.’
[54]
Ms
Gray’s utterance with regard to the deceased having said that
she wanted to have sex with the appellant, was not contained
in her
written statement. She was cross-examined at length by the
State with regard to this omission in her written statement,
to which
she claimed that she had been scared to have told that to the
police. She also explained that at that stage she
had been
young, when pressed by the State as to why she had been scared.
Interestingly, this very utterance was conveyed
to the State during
their consultation prior to the State deciding not to call her as a
witness. Needless to state it would
not have supported the
State’s case. Moreover, the utterance of Ms Gray was not
communicated to the defence team by
the State, and it appeared that
they only got wind of it after the State made Ms Gray available to
the defence and only during
the course of the defence case. In
fact, it was only put to Dr. Naidoo during the course of his
re-examination by the defence,
as that was what they had heard from
Ms Gray that the deceased was alleged to have said. In response
to a question from the
court about the utterance and its source,
counsel for the defence assured the court that such evidence would be
led from Ms Gray.
The exchange is recorded as follows:
‘
Court:
Ja, I don’t want to hear about statements. You say such
evidence is going to be led that the deceased told Jade
Gray what
you’ve just heard. And the question then is?
Mr
Moses: In the context of Your Lordship’s question and the
answer that the witness has given, what would his response then
be in
the context of that evidence which I have referred to now, M’Lord.
Court:
Yes.
Mr
Naidoo: M’Lord, my response would be if that was submitted as
evidence, it would reconcile with what [I] know has been
reported, I
don’t have any experience of it, [indistinct] experience, but
being reported has the effects of stimulant drugs,
mainly MDMA,
that’s Ecstasy, or is slight derivatives, MDEA, MDA and also
cocaine and, of course, the combination of cocaine
and LSD –
MDMA and LSD, where there is increase sexual arousal.
Court:
That would reinforce what you know . . . [intervenes].
Mr
Naidoo: It would just tie in.
Court:
. . . what we’ve heard that MDMA can lead to, I don’t
know, social disinhibition or sexual creased(?), hyper
sexuality or
whatever you want to call it, is that right?
Mr
Naidoo: Yes, it would just tie in with that, yes.’
[55]
[24]
There is, however, in my view, a more crucial aspect to the evidence
of Ms Gray, which was not
contested by the State, and which read as
follows:
‘
Ms
Gray: We got to the tent and she looked quite fine, actually, she was
calm.
Court:
You got to the tent and she looked quite fine, you say?
Ms
Gray: Ja. She – at that stage she could stand and she could
walk.
Court:
She was calm, you say, and she could stand and walk?
Ms
Gray: Ja, ja.’
[56]
[25]
In response to questions by counsel for the State in the
cross-examination of Ms Gray, the following
is recorded:
‘
Ms
Erasmus: Then at the tent, did she go inside the tent?
Ms
Gray: Yes, she went inside the tent?
Ms
Erasmus: And Taariq, what happened to him?
Ms
Gray: They were both inside the tent.
Ms
Erasmus: And what time was it then?
Ms
Gray: I can’t remember what the time was.
Ms
Erasmus: Did you guys leave them there?
Ms
Gray: We did, yes.
Ms
Erasmus: Why is that?
Ms
Gray: Sarisha was quite calm, and I was confident leaving her there.
She looked okay.
Ms
Erasmus: So all of a sudden she looked okay, compared to what you’ve
just described? Was there any difference, like
in a miraculous
difference now as to how she looked the previous 15 minutes?
Ms
Gray: Yes, there was a difference. She was very calm. I
asked her if she was okay, and she said she was.
Ms
Erasmus: And was – did she sit in the tent? What did she
do?
Ms
Gray: She was sitting in the tent, yes.’
[57]
[26]
Also, in the further cross-examination of Ms Gray, when asked about
the utterance which the deceased
made with regard to having sex with
the appellant, the questioning is recorded as follows:
‘
Ms
Erasmus: Right. And then you said she was – her legs were
jelly. Then you said that she, according –
she said she
wanted to go to the tent and have sex with Taariq.
Ms
Gray: Yes, that’s what she said.
Ms
Erasmus: Did she just say that out of the blue, or how did it come
about that she said it?
Ms
Gray: I asked her what she wanted to do, and that’s what she
said to me.
Ms
Erasmus: Was she at that stage still confused.?
Ms
Gray: I wouldn’t say she was confused.
Ms
Erasmus: How was she then?
Ms
Gray: She just seemed . . . I don’t know, she just seemed like
she wasn’t herself.
Ms
Erasmus: So she wasn’t confused then?
Ms
Gray: Confused is not a word that I’d use to describe her.
Ms
Erasmus: But then what would you use?
Ms
Gray: I’d say she was under the influence of something. I
don’t know. Ja.
Ms
Erasmus: Is that it? You can’t describe it any other way?
Ms
Gray: That’s it, ja.’
[58]
[27]
From this exchange it appears that the witness was of the view that
the deceased was not confused,
or at least that’s not how she
would describe it, but that she was, as she put it, under the
influence of ‘something’.
This was her observation
while the deceased was still seated near the toilets when she first
encountered her. Ms Gray’s
response to the question by
the court, referred to earlier, was also made in the context of what
she observed at the toilet area.
[28]
The State had also taken her at length through her written statement,
regarding the incident
while still at the toilets, and what she had
meant by stating that the appellant had been stressed out, to which
she explained
that she thought that he was ‘worried about her’,
in reference to the deceased.
[29]
Later, in questions for clarity from the court, about when she
returned to the scene of the tent,
whether she had been surprised to
see the deceased naked, she claimed that she had not been, because ‘I
was under the impression
that they were going to the tent to go and
have sex so I wasn’t surprised that she was naked when I saw
her’.
She was also asked by the court with regard to her
impression that the deceased had been under the influence of drugs,
and what
had given her that impression, to which she responded:
‘
Ms
Gray: When I saw her outside the toilets, she really didn’t
look herself. I looked into her eyes, and she just didn’t
look like the Sarisha that I know. And when she said that she
felt like she was melting and she kind of fell down –
not fell
down, but she kind of went down like that, it was kind of consistent
with what she said. It looked like . . . it
literally looked
like she was melting. That’s why I was under the
impression that there was something else going on.
Court:
I take it . . . [intervenes]
Ms
Gray: She was . . .
Court:
You didn’t ask her about that?
Ms
Gray: No, I didn’t ask her.
Court:
You’ve said somewhere in this statement . . . I’m just
looking for it. Yes. In paragraph 7, you say
here: “Tried
to get up, but couldn’t. I asked her to give her hands to
me so I could help her stand up, but she
couldn’t. She
was beginning to get . . .”
It
says “exited”, but I take it, it means “excited”.
What did you mean when you told that to the police?
“
She
was beginning to get excited”.
Ms
Gray: I don’t remember why.
Court:
Can you not give any sense to what you were saying there?
Ms
Gray: Possibly because she wanted to go to the tent, and we were
about to take her to the tent. But I . . . I don’t
know
why.’
[59]
[30]
In reliance on the testimony of Dr. Naidoo with regard to whether the
deceased could have consented
to sexual intercourse, the following
passage appears from Dr. Naidoo’s evidence:
‘
Court:
If you’re (sic) theory that this is a drug induced death is
accepted, then it would follow, I presume, that before
– would
it follow before unconsciousness and convulsions, the deceased must
have been in a very disorientated state.
Mr
Naidoo: Yes, M’Lord, agitated, disorientated, confused,
incoherent, restless, that’s the typical picture of a person
who is under the influence of such a drug and possibly . . .
[intervenes]
Court:
And you’ve already told the court that in those situations a
large question mark is raised about questions of consent,
if there
was sexual intercourse.
Mr
Naidoo: Yes.’
[31]
Dr. Naidoo, of course, while maintaining that the deceased had
consumed drugs which had subsequently
led to her condition and
subsequent death, was as unable as any of the other witnesses to
testify with regard to exactly what drugs
the deceased had consumed,
the quantity and the effect that such drugs would have had with
regard to her ability to consent to
sexual intercourse.
[32]
The State had not led any medical evidence with regard to the
deceased’s state of mind
at the time when she entered the tent,
or whether she had been able to consent. Neither the evidence
of Dr. Abrahams, nor
that of Dr. Martin, supports any theory that the
deceased had not been able to consent to sexual intercourse. In
fact, all
of them, based on the toxicology reports, were adamant that
the deceased had not been under the influence of any intoxicant and
that the use of drugs had not in any way contributed to her physical
condition.
[33]
The State, however contended in it heads of argument that it was
clear from the evidence ‘that
she [with reference to the
deceased] was in no physical state to have sexual intercourse and
that she was grabbed by the arms and
must have been on all fours at
some stage inside the tent’. The State then goes on to
refer to the evidence of Mr Manual,
that he heard sexual noises and
contends that ‘the hand of the appellant had to have been
covering the mouth of Sarisha in
order to have caused to (sic) the
injuries to the inner mouth and lips. The only reasonable
inference to be drawn from this
is that he wanted to cover her mouth
in order to prevent her from crying for help’. Needless
to say, that theory was
not sustained by the court a quo in its
findings nor by the evidence of Mr Manual.
[34]
The State, on appeal, persisted in its view that the appellant had
raped the deceased, and in
the process had strangled her in an
attempt to prevent her from crying out. The contention by the State
that the deceased would
have been able to cry out for help further
undermines the notion that she lacked the mental ability to consent
to sexual intercourse
and the physical ability to have resisted the
alleged assault.
[35]
The accused elected not to testify. Suffice to say, as the
court a quo correctly remarked,
he was in a dilemma. Had he
entered the witness box he would have been confronted with the
evidence of the deceased’s
injuries which he would have been
required to explain.
[36]
The court a quo however makes the following remarks:
‘
[283]
As stated previously there is no direct evidence from the accused
that no sexual intercourse took place. Nor is
there any
apparent reason why the accused did not give this evidence or, if
this was not the case, and he did have consensual intercourse
with
the deceased, why he did not testify to this effect. He was in
a long term relationship with the deceased and by all
accounts it was
an intimate relationship. If he had testified the he had had
consensual sex with the deceased there could
have been no one who
could have testified directly to the contrary.’
[60]
[37]
With regard to the injuries which the deceased had sustained, the
court a quo was of the view
that it was only the deceased who could
testify first hand as to what had happened in the tent during the
critical period.
Such an explanation, the court a quo was of
the view, was expected from the accused. The court remarked
further:
‘
Moreover, had
the injuries been caused by the accused during consensual intercourse
or sexual activity with the deceased no adverse
consequences could
follow nor any adverse inference be held against him: he was in an
intimate relationship with the deceased and
were he to testify that
there was consensual sexual intercourse between them in the tent no
witness would be able to directly contradict
him.’
[61]
[38]
Clearly the court a quo was of the view that all the appellant had to
do was to explain how the
injuries took place, and if his version
that it was during the course of sexual intercourse no witness, in
the court’s view,
would have been able to have directly
contradicted the appellant.
[39]
The court a quo deals at length in its judgment, somewhat
rhetorically, with the question as
to why the appellant did not
testify. It was clear that the appellant would have been
confronted with the statement that
he had made to the police and also
all of the medical evidence. Needless to say, in the absence of
him admitting to having
had sexual intercourse with the deceased, the
appellant would have had great difficulty in explaining the
injuries. It bears
mention though that the injuries described
by Dr. Abrahams were exacerbated by the DIC condition which the
deceased suffered prior
to her death. The court a quo was of
the view that if there was ‘some credence in the evidence that
the ingestion of
MDMA can lead to such behaviour modification it must
not be forgotten that all the evidence suggests that the accused
himself ingested
MDMA and would therefore be equally prone to
inappropriate sexual conduct or hyper sexuality. If this were
the case it would
go some way to explaining his sexual assault upon
the deceased notwithstanding that she was no longer in no state to
consent to
intercourse.’
[62]
[40]
In my view it was nothing more than speculative on the part of the
court a quo that the appellant
himself was equally prone to
‘inappropriate sexual conduct or hyper sexuality.’
There was no evidence tendered
by the State, through any of its
witnesses, that the accused himself at the scene appeared to be under
the influence of a drug
that had altered his behavior, or that he
appeared to have acted aggressively, to have warranted the court a
quo`s speculative
conclusion of a “sexual assault”. It
does not help to speculate on the effects of psychedelic drugs
( such
as MDA and LSD) and its experimental use without
proper expert evidence to assist a court on its use( for
amongst others,
in quantity and form ) and its likely impact.
The
State also relied on the decision, as did the court a quo, in
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC), in which the court found that an adverse inference
could be made against an accused where, in the case of a prima facie
case,
he failed to testify. Langa DP (as he then was) stated
at
paragraph 24:
‘
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to
remain
silent and may not be compelled to make any confession or admission
that could be used in evidence against that person.
It arises
again at the trial stage when an accused has the right to be presumed
innocent, to remain silent, and not to testify
during proceedings.
The fact that an accused person is under no obligation to testify
does not mean that there are no consequences
attaching to a decision
to remain silent during the trial. If there is evidence calling
for an answer, and an accused person
chooses to remain silent in the
face of such evidence, a court may well be entitled to conclude that
the evidence is sufficient
in the absence of an explanation to prove
the guilt of the accused. Whether such a conclusion is
justified will depend on
the weight of the evidence.’
(Internal footnotes omitted.)
In
this regard the court a quo also referred to the decision of
Osman
and Another v Attorney General, Transvaal
[1998] ZACC 14
;
1998 (2) SACR 493
(CC),
where the following was stated at paragraph 22:
‘
Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a
prima
facie
case, an accused who fails to produce evidence to rebut that case is
at risk. The failure to testify does not relieve the
prosecution of its duty to prove guilt beyond reasonable doubt.
An accused, however, always runs the risk that absent any
rebuttal,
the prosecution’s case may be sufficient to prove the elements
of the offence. The fact that an accused has
to make such an
election is not a breach of the right to silence. If the right
to silence were to be so interpreted, it would
destroy the
fundamental nature of our adversarial system of criminal justice.
The circumstances in which it would be constitutionally
permissible
for a court to draw an adverse inference from the failure of an
accused person to testify personally is not a matter
which we are
called upon to decide in this case and therefore I expressly refrain
from doing so.’
[41]
In my respectful view, the circumstances in which the applicant in
the matter of
S v Boesak
found himself are very different to
that of the appellant in this matter. Needless to say, each
case must be judged on its
own facts. In this matter is was
evident why the appellant had elected not to testify, given his
dilemma, and he may probably
have been advised not to have done so by
his legal team, who sought to argue in the court a quo that the
statement that the appellant
had made to the police and admitted into
evidence was sufficient evidence of his version. The court a
quo, correctly in my
view, dealt with why that statement was not
evidence before the court. That, an adverse inference was to be drawn
against the appellant
for having failed to have testified did not in
my view trump or displace all of the other evidence relating to the
element of the
lack of consent that the state was required but failed
to have proved. While the state had established a prima facie
case
that the appellant had sexual intercourse with the deceased it
had in my view not established that the deceased was not able to
have
consented thereto. All of the evidence and the inferences to be
drawn (both adverse and that favourable to the appellant)
had to be
considered in the determination as to whether the state had proved
beyond reasonable doubt the lack of the ability of
the deceased to
have consented to sexual intercourse with the appellant.
[42]
In my view, the evidence with regard to whether the deceased was able
to consent to sexual intercourse,
in the circumstances of this
matter, was wholly inadequate to sustain a conviction of the rapes
beyond a reasonable doubt.
There remained no onus on the
appellant, given the circumstances, and the evidence tendered by the
State, in particular that of
Mr Manual and Ms Jade Gray to have had
to literally plug the hole in the state’s case. The state
had not at any stage
contended that the deceased was not mentally
able to have consented to sexual intercourse and, to the contrary,
the State maintained
(even on appeal and despite the findings of the
court a quo) that the deceased was not under the influence of any
drugs based on
its toxicology evidence.
[43]
In conclusion, in my view and on the application of the principles in
R v Blom
and on the direct evidence of Mr Manual and Ms Gray
and all of the other relevant evidence and the inferences to be drawn
therefrom,
it cannot reasonably be ruled out that the deceased was in
a position to have consented to sexual intercourse with the
appellant.
Moreover, the appellant was in my view entitled to
the benefit of the doubt that existed on the evidence with regard to
what exactly
the mental condition of the deceased was when she
entered the tent, and whether she was in fact able to have consented
to sexual
intercourse. I would have upheld the appeal on the
conviction on counts 1 and 2.
V C SALDANHA
JUDGE
OF THE HIGH COURT
[1]
Tregea
v Godart
1939
(AD) 16, 30 -1.
[2]
Section
3 of Act 32 of 2007 (the ‘Act’).
[3]
Taken
together for the for the purposes of sentence.
[4]
The
‘SCA’
[5]
The
‘group’.
[6]
‘
LSD’
and ‘MDMA’.
[7]
They
assumed that this was the ‘MDMA’ drug.
[8]
The
undisputed evidence was that the appellant and the deceased were
alone in their tent during this time.
[9]
This
was not meaningfully engaged with or disputed.
[10]
If
she felt cold, it was unlikely that she would have taken all her
clothes off and remain naked in the tent.
[11]
This
absence remains unexplained.
[12]
Exhibit
‘O’
[13]
Dr
Franklin.
[14]
The
‘J88’ that was entered into the record and marked as an
exhibit.
[15]
R
v Matonsi
1958 (2) SA 450
(A).
[16]
In
section 3.
[17]
Act
32 of 2007.
[18]
These
injuries remain unexplained.
[19]
R
v Blom
1939 (AD) 188 page 202-203.
[20]
S
v
Mthetwa
1972
SA 766 (A) 769.
[21]
S
v Boesak
2001
(1) SACR 1(CC).
[22]
Osman
and Another v Attorney-General,
Transvaal
1988 (4) SA 1224
at para [22].
[23]
S
v Sauls and Others
1981
(3) SA 172
(A) at 182 G – H.
[24]
R
v Mlambo
1957
(4) SA 727
(A) at 738 B.
[25]
S
v Boesak
[2000] ZASCA 112
;
2000
(1) SACR 633
(SCA) at 647-C.
[26]
There
are many of them prejudicial to the appellant.
[27]
If
the statement has a detrimental result, it should be construed
subjectively.
[28]
S
v Motara
1963
(2) SA 579
at 585A.
[29]
S
v Barlin
1926
AD 439.
[30]
This
goes to lack of consent.
[31]
This
euthanizes his theory that the injuries to the vagina and anus of
the deceased were self-inflicted.
Further,
the appellant was the only person in the tent with the deceased for
(1½) hours prior to her hospitalization.
[32]
This
goes to lack of consent.
[33]
All
this goes to lack of consent.
[34]
S
v Cloete
1994
(1) SACR 420
(A) at 428 G
[35]
S
v Ntsele
1988
(2) SACR 178 (SCA).
[36]
J Burchell:
Principles
of Criminal Law
5 Ed (Juta, 2016)
p613.
[37]
Snyman:
Criminal Law
7
th
Ed (LexisNexis, 2020) p316:
‘
Section
1(3)(d) deals with cases in which Y is “incapable in law of
appreciating the nature of the sexual act”.
Once again
these provisions contain no principles which have not already been
recognised previously under the common law.
There is no valid
consent if X performs an act of sexual penetration in respect of Y
if Y is asleep, unless, of course, Y has
previously, whilst awake,
given consent. The same applies to a situation where Y is
unconscious. Paragraph (iii)
of subsection (3)(d) provides
further that consent is not valid if Y is “in an altered state
of consciousness, including
under the influence of any medicine,
drug, alcohol or other substance, to the extent the (Y)’s
consciousness or judgment
is adversely affected”.’
Footnote 41
to the text: ‘For the recognition of this principle under the
previous common law, see
Ryperd Boesman
supra
, K
1958
3 SA 420
(A) 422, 424-426.’ (Remainder of footnotes
omitted.)
[38]
PJ Schwikkard: ‘Rape: An unreasonable
belief in consent should not be a defence’ (2021)
SACJ
76.
[39]
Ibid,
paragraph 2.1 ‘Lack of consent
retained.’
[40]
S v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) para 24;
S v Vilakazi
2009 (1) SACR 552
(SCA) para 48.
[41]
D Smythe & B Pithey: ‘Sexual Offences Commentary’,
Chapter 2 Section 3: Rape.
[42]
R v K
1958 (3)
SA 420
(A). To borrow the terminology from
S
v Chretien
1981 (1) SA 1097
(A),
decided in a different context of the defence of intoxication, where
the complainant is ‘dead-drunk’ she/he
is clearly
incapable of consenting to sexual intercourse.
[43]
R v Benjamin Bree
2007
EWCA Crim 804, para 13.
[44]
2004 (2) SACR 303
(SCA) at para 25.
[45]
1958 (3) All SA 420 (A)
[46]
Sexual Offences Commentary, Chapter 2, fn 110 to the text: ‘
This
will also potentially affect the consideration of the accused’s
mens rea. An accused will lack intention if s/he
did not
foresee the possibility that the complainant was not consenting:
Burchell
Principles of Criminal Law
(2014) 713. Where significant intoxication is involved it may
be harder for an accused to argue that s/he did not foresee
a
possibility that consent was lacking in the absence of clear
positive indicators of consent.’
[47]
R v De Villiers
1944 AD 493
, at p 508-509.
See
record page 4594.
[48]
See record page 4595.
[49]
See record page 320.
[50]
See record page 320-321.
[51]
See r
ecord page 342-343.
[52]
Despite this claim in argument by counsel for the
State, she had nonetheless in her Heads of Argument on appeal
contended that
the evidence of Mr Driessen was credible.
[53]
See record page 1683.
[54]
See record page 3174.
[55]
See record page 3091.
[56]
See record page 3174.
[57]
See record page 3188-3189.
[58]
See record page 3186 to 3187.
[59]
See record page 3218-3219.
[60]
See record page 4615.
[61]
See record page 4621.
[62]
See record page 4623.