Brief Summary

Criminal Law — Murder — Appeal against conviction and sentence — Appellants charged with murder of Brendan Pompie — Appellant 1 admitted to being present and engaging in a physical altercation, while Appellant 2 remained silent — Evidence presented by witnesses indicating a sustained assault by both appellants — Medical testimony confirming death resulted from injuries inflicted during the assault — Appellants contended misdirection in the trial court's findings — Court upheld conviction and sentence, finding no misdirection in the assessment of evidence or application of law.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an appeal to the Gauteng High Court, Johannesburg Local Division against convictions and sentences imposed by the Regional Court. The appellants, Paddy Hicks (first appellant) and Granwell Hicks (second appellant), had been convicted of murder and each sentenced to 12 years’ imprisonment.

The respondent was the State. The appellants had been indicted in the Regional Court on 22 June 2005 for the murder of Brendan Eugene Ian Pompie arising from events on 26 October 2003 at La Rochelle. They were informed that section 51 and Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (minimum sentence regime) applied if convicted. They pleaded not guilty. On 29 March 2007 they were convicted of murder and on 30 March 2007 sentenced to 12 years’ imprisonment each. With leave of the Regional Court, they appealed.

The general subject-matter of the dispute was whether the State proved murder, in particular whether the appellants had the requisite intention (relying on dolus eventualis), and if not, whether the evidence justified a competent verdict of culpable homicide. The appeal also traversed issues about the identity of the body examined post-mortem and the causal connection between the assault and the eventual death after hospitalisation.

Material Facts

It was common cause (including by way of the first appellant’s plea explanation under section 220 of the Criminal Procedure Act 51 of 1977) that the incident occurred on 26 October 2003 at approximately 20h00 at La Rochelle, and that the deceased referred to in the indictment was Mr Pompie. The first appellant’s plea explanation further admitted that there was an interaction outside in which the deceased grabbed him and struck him, and that the first appellant struck the deceased once, after which the deceased went into the house and the appellants left. The second appellant made no admissions and exercised his right to silence.

The State’s case was based primarily on the evidence of Ms Melinine Sinisello, who was the only eyewitness to the assault as it unfolded, supported by objective medical evidence and contextual evidence from other witnesses who arrived after the assault. Ms Sinisello testified that the appellants visited Mr Pompie at his home to confront him about an affair with their sister. After speaking inside, the appellants asked Mr Pompie to accompany them outside. From a balcony, Ms Sinisello observed the appellants assaulting Mr Pompie for 10 to 15 minutes. She could not say whether the appellants initiated the assault or whether it followed an initial assault by Mr Pompie on the first appellant, but she testified that during the assault she witnessed, Mr Pompie did not retaliate.

According to Ms Sinisello, the assault included multiple blows; a forceful push of Mr Pompie against a wall such that the back of his head struck the wall; Mr Pompie falling first to his knees and then onto the tarmac; and both appellants kicking him several times while he was on the ground. She testified that after the appellants left, Mr Pompie managed to get up and walk into the house but was bleeding (including from his left eye and the back of his head), collapsed, and later experienced convulsions. No further injuries were inflicted after the appellants departed. Mr Pompie was taken to hospital (after an ambulance response was delayed) and was in intensive care the next day.

The medical evidence was given by Dr Kevin James Fourie, who conducted the post-mortem examination on 21 November 2003 (body number 2721/2003). He concluded that the cause of death was complications following a head injury caused by blunt force, including brain swelling and bruising. The post-mortem findings included, among other injuries, subcutaneous haemorrhage over the left parietal region, abrasions on knees, and scattered abrasions on limbs and body. The hospital record (introduced during cross-examination) recorded injuries and complications including periorbital bruising, adult respiratory distress syndrome, frank haematuria, subsequent acute renal failure, and infections including MRSA (a hospital-acquired infection). Dr Fourie accepted the existence of hospital complications but maintained that the initiating cause remained the head injury from the assault and that, but for the initial injuries, death would not have ensued. Mr Pompie died on 19 November 2003, having never regained full consciousness after admission.

The evidence of Mr Leon Wade, reconstructed due to a lost recording, corroborated that shortly after the assault Mr Pompie was bleeding from the left eye and the back of the head, could not communicate meaningfully, experienced convulsions, and was taken to hospital by private vehicle due to ambulance delays.

The defence version was advanced only through the first appellant’s testimony. He stated that the appellants went to Mr Pompie’s home to persuade him to end a relationship with their sister. He alleged that outside near the vehicle Mr Pompie pushed him and said he was “a big man”, whereafter the first appellant punched him once in the face, causing Mr Pompie to fall against the vehicle/bullbar and then to the ground, after which Mr Pompie got up, said “it is all right”, walked into the house, and the appellants left. The second appellant did not testify and did not place an affirmative version before the court through his own evidence.

A further factual issue arose on appeal: the appellants contended belatedly that there was no evidence that the post-mortem was conducted on Mr Pompie’s body. The High Court treated this as a factual point inconsistent with the stance adopted at trial, including the use of the hospital record linked to body number 2721/2003, and held that the appellants could not reopen this issue on appeal.

Legal Issues

The central legal questions were whether the proven assault and subsequent death established murder and, in particular, whether the State proved intention in the form of dolus eventualis beyond reasonable doubt. This required determination of a mixed question of application of law to fact, involving inferential reasoning about subjective foresight and reconciliation with the risk of death.

If murder was not proved, the court had to decide whether a competent verdict of culpable homicide could be returned on the murder charge under section 258 of the Criminal Procedure Act 51 of 1977, which depends materially on whether the appellants negligently caused death. This posed an evaluative question about the standard of the reasonable person in the appellants’ position, applied to the established facts.

A subsidiary issue (raised belatedly) was whether the State proved the identity of the deceased’s body examined post-mortem. This was essentially a factual and procedural issue linked to concessions and how the case was conducted at trial.

Finally, once the court substituted culpable homicide, it had to decide the appropriate approach to sentence, including whether the matter should be remitted for further evidence due to the delay and alleged changed personal circumstances, engaging the sentencing court’s discretion and the standard sentencing triad.

Court’s Reasoning

The High Court accepted Ms Sinisello as a credible witness. It reasoned that the criticism that she was a single witness did not justify rejecting her evidence because there were no inherent contradictions and because her account was materially supported by objective evidence, including the hospital record, the post-mortem report, and Dr Fourie’s viva voce testimony. The court drew specific support from the persistence of abrasions recorded post-mortem (including scabbed abrasions on the knees and scattered abrasions on limbs and body) as being consistent with Ms Sinisello’s description of Mr Pompie falling to his knees and being assaulted over a period.

The court rejected the first appellant’s version as not reasonably possibly true. It held that the version of a single retaliatory punch and a fall against the bullbar could not be reconciled with the nature and extent of the injuries shown by the medical and objective evidence, and it was further inconsistent with the evidence of bleeding and severity described by Ms Sinisello and Mr Wade shortly after the assault. The court treated the assault proven on the accepted evidence as a brutal joint assault involving pushing Mr Pompie into a wall causing a serious head injury, multiple blows, and kicks while he was on the ground.

On causation, the High Court accepted Dr Fourie’s evidence that the head injury initiated the cascade of medical complications culminating in death, and that the complications (including hospital-acquired infection) did not displace the initiating injury as the causal origin of death on the evidence before the court. The court noted that a possible argument about a novus actus interveniens was not definitively pursued at trial or on appeal, and thus no definitive finding in that regard was made.

The appellants’ belated contention that the State failed to prove that the post-mortem was conducted on Mr Pompie’s body was rejected. The court reasoned that the trial had been conducted on the common footing that the deceased was Mr Pompie and that Dr Fourie examined the relevant body, including reliance on the hospital records linked to body number 2721/2003, the chain evidence reflected in a section 212(7) affidavit, and the absence of challenge at trial. The court characterised the attempt to raise the point late as an impermissible effort to reopen a factual issue and as a form of attempted ambush, which it disapproved.

Turning to intention, the court articulated the two-stage enquiry for dolus eventualis: whether each appellant subjectively foresaw the possibility of death resulting from their conduct, and whether each appellant reconciled himself to that outcome (took it “into the bargain”). Because neither appellant provided direct evidence of their state of mind (the second appellant not testifying, and the first appellant advancing a materially different narrative rather than addressing foresight), the court approached intention through inference. It emphasised that where subjective foresight is inferred, it must be the only reasonable inference from the facts.

Despite the brutality of the assault, the court was not satisfied that the only reasonable inference was that the appellants subjectively foresaw death and reconciled themselves with it. The court treated as relevant that no weapons were used beyond fists and shod feet, and that after the assault Mr Pompie was at least able to stand and walk into the house unaided. On those facts, it concluded that murder was not proved beyond reasonable doubt because the dolus eventualis requirements were not established as the sole reasonable inference.

Having found that murder was not proved, the court considered the statutory scheme for a competent verdict. Applying section 258 of the Criminal Procedure Act 51 of 1977, it held that a conviction for culpable homicide was competent if proved on the evidence. The court adopted the accepted definition of culpable homicide as the unlawful negligent causing of death and held that unlawfulness, causation, and death were established; the remaining question was negligence.

On negligence, the court evaluated the assault cumulatively as severe, prolonged, and inflicted by both appellants on a victim who did not resist during the assault as observed. It held that a reasonable person in each appellant’s position would have foreseen the risk of death from such a sustained and violent assault, and would have taken steps to prevent that outcome, at least by not persisting for as long and not assaulting with such severity. The appellants did not do so. Accordingly, both appellants were found guilty of culpable homicide.

On sentence, the court recorded the personal circumstances placed before the trial court and the appellants’ request on appeal that, due to the significant delay in finalisation, the matter be returned to the Regional Court to receive further evidence of changed circumstances before sentencing on the substituted conviction. The High Court accepted that, given the passage of time and fairness considerations, the Regional Court was best placed to hear further evidence and submissions and determine an appropriate sentence.

The court also expressed concern about the magistrate’s conduct towards Ms Sinisello, describing it as rude, sarcastic, and involving irrelevant questioning. This observation was recorded as a general comment about the trial proceedings.

Outcome and Relief

The High Court upheld both appellants’ appeals against their convictions for murder and the sentences of 12 years’ imprisonment imposed in consequence of those convictions. It substituted the convictions with culpable homicide for each appellant, as a competent verdict on the murder charge.

The matter was remitted to the Regional Court for the Regional Division of Gauteng, Johannesburg for determination of an appropriate sentence on the substituted convictions.

No separate costs order was recorded in the judgment.

Cases Cited

S v Balkwell [2007] 3 All SA 465 (SCA).

S v Van Wyk 1992 (1) SACR 147 (NmS).

S v Humphreys 2013 (2) SACR 1 (SCA).

S v Tonkin 2014 (1) SACR 583 (SCA).

S v Makghtho 2013 (2) SACR 13 (SCA).

S v Sigwahla 1967 (4) SA 566 (A).

R v Mohr 1944 TPD 105.

R v Deetlefs 1953 (1) SA 418 (A).

S v Kola 1966 (4) SA 322 (A).

S v Mtzhiza 1970 (3) SA 747 (A).

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51 and Schedule 2.

Criminal Procedure Act 51 of 1977, section 220.

Criminal Procedure Act 51 of 1977, section 174.

Criminal Procedure Act 51 of 1977, section 175.

Criminal Procedure Act 51 of 1977, section 212(7).

Criminal Procedure Act 51 of 1977, section 258.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the State proved beyond reasonable doubt that both appellants participated in an unlawful and severe assault on Mr Pompie on 26 October 2003, and that this assault was causally linked to his death on 19 November 2003 following complications from a head injury.

It held, however, that the State failed to prove murder because the evidence did not establish, as the only reasonable inference, that either appellant had dolus eventualis, namely subjective foresight of death and reconciliation to that outcome.

Applying section 258 of the Criminal Procedure Act, the court held that culpable homicide was proved as a competent verdict, because the appellants unlawfully and negligently caused the deceased’s death. The murder convictions and attendant sentences were set aside, culpable homicide convictions were substituted, and the matter was remitted to the Regional Court for sentencing.

LEGAL PRINCIPLES

The judgment applied the principle that dolus eventualis requires proof of two subjective elements: the accused must have subjectively foreseen the possibility that the prohibited consequence (death) might result, and must have reconciled himself with that possibility (taken it into the bargain), persisting regardless. Both elements must be proved beyond reasonable doubt, and where subjective foresight is proved by inference, it must be the only reasonable inference from the established facts.

It reiterated that motive is distinct from intention: motive explains why an accused acted, but does not itself establish the legally required intention for murder.

The judgment applied section 258 of the Criminal Procedure Act 51 of 1977, confirming that where murder is not proved on the evidence, a court may return a competent verdict of culpable homicide if that offence is proved by the evidence led on the murder charge.

It applied the established definition of culpable homicide as the unlawful negligent causing of the death of another person, and assessed negligence with reference to whether a reasonable person in the accused’s position would have foreseen the risk of death and taken steps to guard against it.

On appellate procedure and trial conduct, the judgment treated the identity of the body examined post-mortem as a factual issue which could not be reopened on appeal where the case was conducted on accepted concessions and where the point was not properly raised at trial; it disapproved the late attempt to raise such a point as an ambush.

On sentence, the judgment applied the principle that sentencing requires consideration of the triad of the interests of society, the seriousness of the offence, and the personal circumstances of the offender, and accepted that where there has been a substantial delay and alleged change in circumstances, remittal to the trial court for sentencing may be appropriate to enable proper evidence and submissions.

Hicks and Another v S (A609/2008) [2015] ZAGPJHC 65 (20 April 2015)