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
>>
2010
>>
[2010] ZAWCHC 440
|
|
Thompson v S (A596/2008) [2010] ZAWCHC 440 (13 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A596/2008
DATE
:
13 AUGUST 2010
In
the matter between:
DIGBY
THOMPSON
…..................................................................
Appellant
and
THE
STATE
…
....................................................................................................
Respondent
JUDGMENT
BAARTMAN.
J
:
[1]
The Magistrate at Bellville convicted the appellant on one count of
murder, one count of infringement of Section 2 of Act
75 of 1969
(illegal possession of a firearm, one infringement of Section 36 of
Act 75 of 1969 (illegal possession of ammunition)
and a fourth count
of pointing of a firearm. The magistrate sentenced the appellant to
an effective term of eight years direct
imprisonment. This is an
appeal against the convictions in respect of the counts of murder
and the pointing of a firearm.
[2]
In his application for leave to appeal against his conviction, the
appellant also sought leave to lead new evidence. The court
a
quo
granted
leave to lead new evidence and heard the further evidence. It is
therefore necessary to first deal with that application
and
thereafter with the merits of the appeal. However, I first set out
the facts that were not in dispute at the trial as that
leads to a
better understanding of the application to lead further evidence.
BACKGROUND
[3]
The appellant and Francina Julius
(the
deceased)
cohabited
in Parow in the Western Cape, during November 1997. They were not
married to each other. The deceased, who was married
to a third
party, had a minor daughter, Rosemary Julius
(Rosemary)
who
lived with her father in Elsies River also in the Western Cape.
[4]
Rosemary spent the weekend of 2 November 1997 with the deceased at
the residence she shared with the appellant. She was 13
years old at
the time. Rosemary arrived at the residence on the Saturday morning.
It was common cause that there was a braai
at the residence that
Saturday evening and that the deceased was fatally wounded in the
early hours of the Sunday morning.
[5]
The shot was fired from a home-made zip gun. The appellant had taken
the gun from a cupboard in their bedroom, his and the
deceased's,
prior to the incident and was in possession of it when the shot went
off. The appellant and the deceased, as well
as Rosemary, were in
the passage between the bedroom and the lounge when the shot went
off. At that stage, some of their guests
were still in the lounge.
[6]
The appellant and Rosemary were the only witnesses to the shooting
incident. The appellant, at the trial, indicated that he
had no
memory of the shooting incident because he had consumed a large
quantity of alcohol together with flu medication. According
to the
appellant, the guests and members of the public assaulted him after
the shooting and that assault contributed to his memory
loss.
Therefore, Rosemary was a single witness to the shooting incident.
[7]
After undergoing an operation on 2 November 2008, the appellant
allegedly regained his memory and therefore applied to lead
the
evidence regarding his version of the shooting incident.
The
application to lead new evidence
[8]
The appellant alleged that he had regained his memory after the
second of two operations he had undergone after doctors had
diagnosed him with cancer. He alleged that he regained a clear
memory of the shooting incident after the 2 November 2008 operation.
[9]
A court faced with an application to lead new evidence on appeal
will only allow such an application in exceptional circumstances.
The principles guiding an application to lead further evidence in
such circumstances are: (See
Principles
of Evidence
3
rd
Edition
Schwikkard and Van der Merwe
at
438).
"(a)
There should be some reasonably sufficient explanation, based on
allegations that may be true, why the evidence which
it sought to
lead was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the
evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial."
[10]
Counsel for the State accepted that the applicant hadmet the
requirements referred to in paragraphs (a) and (c) above, although
further argued that the court a
quo
had
erred in allowing the evidence because the appellant had not
established a
prima
facie
likelihood
of the truth of the evidence. Counsel was sceptical of the
possibility that the appellant could have regained his memory
in the
circumstances alleged. The latter argument may not be without merit.
[11]
However, I cannot agree with counsel's criticism of the magistrate
for having accepted the evidence. The likelihood of the
truth was
dependent upon factors such as credibility findings that the
magistrate could only make after receiving the evidence.
In the
circumstances of this matter, in my view, it was in the interest of
justice to have allowed the further evidence. I am
satisfied that
the magistrate correctly allowed the further evidence and that the
further evidence forms part of the record for
consideration in this
appeal.
The
new evidence led by the appellant
[12]
The appellant testified and gave the following version of the
shooting incident:
(a)
He and the deceased had allowed a friend to have a braai at their
residence on the Saturday night. The braai commenced at
approximately 17h00 on the Saturday night. Several people were at
their residence.
(b)
However, the appellant and the deceased had already started drinking
before the braai commenced and the appellant, in particular,
had
consumed a large amount of alcohol before the braai.
(c)
When the appellant went to bed, later that Saturday evening, the
deceased and some of the guests were still in the living
room area.
While in bed, the appellant heard one of the guest urge the deceased
to go to a nightclub.
(d)
This angered the appellant and prompted him to take the firearm out
of the cupboard and load it. The firearm was a zip gun,
a homemade
device consisting of two pieces of pipe.
(e)
The appellant intended to scare the guest off and so prevent the
deceased from going out at that hour of the night. However,
on his
way to the living room, he met the deceased in the passage and she
grabbed the firearm from him and in doing so caused
the shot to be
fired. He denied that he shot at the deceased as testified to during
the trial. The magistrate, after receiving
the further evidence,
confirmed his initial finding of guilty in respect of the murder and
the pointing of a firearm charges.
The
merits of the appeal
[13]
I have indicated above that Rosemary was a single witness in respect
of the shooting incident The appellant raised various
critiques
against her evidence and alleged that the trial court had erred in
accepting her evidence because she was a single
witness, of tender
age, testifying years after the incident and hostile towards the
appellant.
Discussion
[14]
The principles applicable to this appeal are: (See Du Toit
-
Commentary on the Criminal Procedure Act
at
30-37)
"A
Court of Appeal is aware that in principle a trial court is in a
better position than the court of appeal to make reliable
findings
of fact. The court a quo indeed sees and hears the witnesses and is
steeped in the atmosphere of the trial. In addition
the trial judge
is in a position to take into account a witness's appearance,
demeanour and personality. For these reasons a
court of appeal would
not be inclined to reject a trial judge's findings of fact
(S
v Robinson & Others
1968(1)
SA 666 (A) 675G-H)...
An
appeal court's approach to the findings of fact by a trial court was
crisply summarised in
S
v Hadebe & Others
1997(2)
SACR 641 (SCA) 645e-f: '...in the absence of demonstrable and
material misdirection by the trial court, its findings of
fact were
presumed to be correct, and would only be disregarded if the
recorded evidence show them to be clearly wrong'. The
court
emphasised that it could be useful for the understanding of the
evidence as a whole to break it down into components. But
the court
should, in assessing whether a trial court's findings of fact were
wrong, be careful not to focus to intently on separate
parts losing
sight of the fact that the whole body of evidence might shed
valuable light on the evidential value of its components."
(See
also
S
v Hadebe & Others
1998(1)
SACR 422 (SCA) 426a-b.)
Rosemary's
evidence
[15]
I only deal with the evidence to the extent relevant for purposes of
this judgment.
(a)
Rosemary testified that she knew the appellant and that he lived
with her mother in Parow in rented accommodation. She confirmed
her
arrival at the deceased and the appellant's residence as set out
above. She intended to spend the weekend as she had done
on a number
of occasions over the period of approximately 2 years that the
appellant and the deceased had lived together.
(b)
She described the morning activities and said that they had included
shopping. She said she went to the shops accompanied
by the deceased
and the latter's friend, Jeanie. She said that the appellant was at
home during the day. She also confirmed that
there had been a braai
later that evening and that the appellant and her mother had
consumed alcohol both before and during the
braai.
(c)
Rosemary said that she went to bed later that evening and that the
deceased joined her in the bed that she, the deceased,
usually
shared with the appellant The appellant also joined them in the same
room later on but went to lie on a couch. While
lying on the couch,
the appellant spoke to himself and the deceased requested him to
keep quiet. An exchange of words between
the two followed.
(d)
Rosemary was not able to relate the exact exchange of words between
the deceased and appellant but remembered the deceased
saying to the
appellant, "Hy moet sy mond hou." She further remembered
the appellant saying to her mother "Hy
het ges§ vat hier
jou kind en druk dan jy dit op in jou. In jou gat in op."
(e)
Rosemary said that after the exchange of words, the deceased left
the room. Thereafter, the appellant jumped up from the couch
and
went to the cupboard where he got the firearm. She explained that
the appellant assembled the firearm in the following terms:
"...
daar so in die vuurwapen geskroef." The appellant left the room
in possession of the firearm.
(f)
Rosemary said that she had been frightened, "Ek het gestaan,
ge-shiver en gebewe". She said that she had followed
the
appellant out of the room into the passage where they encountered
the deceased, who was holding a plate of chicken bones
that Rosemary
suspected was intended either for the dog or to be thrown into the
dustbin. The deceased was heading towards the
kitchen and the
appellant in the opposite direction towards the lounge. The two
passed each other without any exchange of words
but when they were
approximately 7 metres apart, the deceased turned around and the
appellant shot her.
(g)
After
the appellant fired the shot, the guests who were still in the
lounge came into the passage and the appellant pointed the
firearm
at Rosemary and one of the guests, which caused Rosemary to lock
herself into the toilet where she stayed until things
had calmed
down. It is common cause, that the persons who were present
assaulted the appellant. They hit him on the head with
a brick.
(h)
Rosemary
further testified that she had never had problems with the appellant
nor had she witnessed problems between the appellant
and the
deceased prior to that evening. She also testified that she had
never seen the appellant drunk.
(I)
Rosemary
thought that the appellant was under the influence at the time of
the incident but said that he was not drunk. She explained
that, to
her, being drunk meant slurring.
The
appellant's representativecross-examined
Rosemary
extensively about this aspect of her evidence. She said that the
appellant was not drunk because, "Hy was nie in
'n sleeptong
praat of taal...".
Critique
against the above evidence
The
appellant's state of intoxication
[16]
The first criticism against Rosemary's evidence was that she was
ambivalent about the appellant's state of intoxication.
Rosemary
acknowledged that the appellant had consumed alcohol prior to the
shooting. However, she also said that the appellant
had been under
the influence of alcohol but not drunk. It is evident from the
record of the proceedings in the court a
quo
that
the appellant's legal representative interrogated this aspect of
Rosemary's evidence in cross-examination. I am satisfied
that the
magistrate did not err in accepting her evidence in this respect.
[17]
Having regard to Rosemary's evidence as a whole, I find no merit in
the submission that:
"Arguably
because she had been advised that appellant might be able to utilise
his intoxication to evade the charges she
sought to downplay the
role alcohol played. Initially she claimed not to have seen
appellant drinking. Later, she testified that,
although he had been
drinking, appellant was not so drunk that he did not know what he
was doing."
[18]
There is no evidence on this record to suggest that Rosemary knew or
that anybody informed her that the appellant had an
opportunity to
evade criminal sanction depending on his level of intoxication.
Rosemary
was not biased against the appellant
[19]
Rosemary further testified that she had not witnessed any arguments
or fighting between the appellant and the deceased during
the period
that they lived together. It is so that they lived together for a
period of approximately 2 years. She also indicated
that on the
night in question, the appellant and the deceased were not annoyed
with each other. She did not attempt to turn the
exchange of words
between the deceased and the appellant into more than she perceived
it to be and did not suggest that there
was any argument between the
appellant and the deceased when they were in the passage prior to
the shooting.
[20]
Therefore, I cannot agree with the appellant's legal
representative's submission that
"...the
magistrate erred in uncritically accepting the evidence of Rosemary
Julius, a single juvenile witness with a bias
or interest against
the appellant."
Rosemary
had the opportunity to paint a bleak picture of the relationship
between the deceased and the appellant but did not.
The
deceased was shot from a distance of 7 metres
[21]
Rosemary testified that the distance between the appellant and the
deceased had been approximately 7 metres when the appellant
shot at
the deceased. Counsel criticised this evidence and said:
"The
forensic evidence suggested that the shooting took place a far more
shorter distance than that testified to by such
witness."
[22]
I
cannot agree with that submission. Doctor Pienaar testified that he
was not able to say the exact distance between the appellant
and the
deceased at the time when he shot at her. He said the following:
"Ek
kan net vir u algemene riglyne gee, maar vir die spesifieke
antwoorde op die afstand sal proefskote geskiet moet word,
maar wat
algemene riglyne betref, as 'n mens kyk na die vorm van die wond
self, tot op n afstand van een meter met h haelgeweer
is dear nie
satellietgaatjies teenwoordig nie en in hierdie geval was daar nie
satellietgaatjies teenwoordig nie. So dit sou
aandui op h afstand
van minder as h meter."
[23]
The magistrate clarified the evidence and asked Dr Pienaar:
"So
u kan nie se of dit nader as een meter of verder as een meter was
nie?"
[24]
Dr Pienaar responded by saying:
"Ek
dink my persepsie op algemene bevindinge is dat min of meer h meter
afstand is, maar vir spesifieke afstande moet proefskote
geskiet
word."
[25]
In my view, the criticism levelled at the court's finding in respect
of the distance between the appellant and the deceased
at the time
of the shooting is without merit.
[26]
The appellant further argued that the court a
quo
erred
in finding that:
"The
upward trajectory of the wound to the deceased's neck as testified
to by the doctor was inexplicable by the fact that
fire arms are
usually fired from the hip. It is submitted that a more probable
explanation, and particularly taking into account
the doctor's
evidence that the shot appeared to have been fired at a range of
less than a metre, was that the deceased and the
appellant were in
closer proximity at the time that the shot was fired and that this
occurred in circumstances significantly
different from those
testified to by Rosemary."
[27]
In
my view, this criticism is without merit. Doctor Pienaar never said
that the appellant and the deceased were less than a metre
from each
other when the shot was fired. Instead, he said that based on
general principles, the shape of the wound suggested
that the shot
had been fired at a closer range than testified to by Rosemary.
However, he said that it would be necessary to
conduct trial shots
to determine exact distance between the two.
Rosemary
did not understand the mechanics of a zip-gun
[28]
The appellant further alleged that the court a
quo
erred:
"...by
discounting the argument of the appellant's erstwhile legal
representative regarding Rosemary's assertion that the
appellant
pulled a trigger. In disingenuous fashion, the magistrate explains
away this and other contradictions on the basis
of wrong assumptions
on Rosemary's part and faults of reconstruction."
[29]
Rosemary testified that the appellant moved towards the cupboard and
removed the firearm from it, which firearm she described
as two
pipes. Rosemary further said that the appellant screwed ("skroef")
something onto the firearm and that the firearm
looked like a gun
that she had seen on television. She further indicated that the gun
was approximately 18 centimetres long.
[30]
The expert witnesses and the appellant testified and said that the
firearm had consisted of two pipes and that the parts
had first to
be dismantled before the bullet could be placed in it and that the
firearm thereafter had to be assembled. In cross-examination,
Rosemary said that the pieces of pipe had initially resembled two
long knives. There is no evidence on this record to indicate
that
Rosemary knew how to load and assemble a zip gun prior to the
shooting. Her evidence that the appellant screwed something
into the
firearm is a remarkably accurate description of the mechanism
required to load and assemble the firearm. I say this
bearing her
age in mind and her evidence that the firearm was similar to
firearms that she had seen on television.
[31]
In my view, the court a
quo
approached
Rosemary's evidence with caution, appreciating her tender years and
status as a single witness. It is correct that
the court a
quo
did
not specifically mention the cautionary rules applicable in respect
of a single witness. However, it is clear from the record
that the
court a
quo
applied
the principles. I find the criticism against the trial court's
judgment in this respect without merit.
The
court accepted Rosemary's version of the shooting incident
[32]
Counsel further argued that the magistrate erred in finding that the
appellant had not been able to contradict
Rosemary's evidence.
Counsel
submitted that Rosemary's evidence was inadequate and unreliable and
that the court should have rejected her evidence.
It is so that at
the time when the court made that finding, the appellant's version
was not before the court. At that point,
the appellant had indicated
that due to amnesia he was unable to remember the incident. However,
in cross-examination, Rosemary
testified and said that prior to the
shooting, her mother and the appellant had moved pased each other in
the passage. She said
the following:
"Sy
het
net omgedraai, ek weet nie vir hoekom nie. Sy het omgedraai en toe
staan hy saam met die pistool".
[33]
Counsel further asked her:
"Het
dit nie miskien gebeur dat hulle met mekaar gestry het en u moeder
miskien na die gun gevat het nie?"
[34]
Rosemary denied that version. It is therefore not surprising that
the magistrate did not alter his finding once that the
court
received a more detailed explanation of that version from the
appellant. I cannot fault that finding.
Chicken
bones and plate not depicted in photos
[35]
The appellant further criticised the court a
quo
for
not rejecting Rosemary's evidence because none of the photographs
showed the plate of chicken bones that she alleged that
the deceased
had been carrying when the gun went off. There is no explanation as
to why the chicken bones and the plate were
not photographed. There
is equally no evidence that they were never there. There is,
however, evidence that when the police arrived,
there were several
people on the scene. It is not necessary to speculate in this
regard. In my view, the magistrate correctly
did not place undue
significance on this aspect.
The
appellant's ability to appreciate wrongfulness
[36]
The appellant's counsel suggested that the magistrate had been wrong
in finding that the appellant's loading and putting
together of the
zip gun was significant in that it pointed to an ability to handle
the firearm.
[37]
Rosemary testified that the appellant ran around the house after he
had shot the deceased. It appears as if the appellant
was bewildered
at the time. The court a
quo
found
that this reaction indicated that the appellant had appreciated the
wrongfulness of his actions at the time. The appellant's
counsel
criticised the magistrate for rejecting the argument by the
appellant's attorney that the appellant's "wild rushing
around
after the incident again as testified to by Rosemary suggested an
inability to resist the temptation to act unlawfully."
The
appellant said the following about the firearm:
"Then
I got upset and I flew up to the cupboard and I grabbed the zip gun.
A 12/gauge zip gun. Well, it's two pipes, the
one where you put the
bullet in and the other pipe goes over it and that's got the firing
pin in the back. So when you knock
the two together, the shot goes
off...no the bullets was standing there. I grabbed the bullets in my
hand... and then I went
to go and chase the lady Jenny out of the
house."
[38]
The appellant further agreed with the following proposition put to
him by his attorney:
"Now
you had, in your hands you had the zip gun and you had some bullets
as well."
[39]
The appellant further testified that:
j
"...and
I came out of the room with the gun and I put the bullet in it... I
am left handed and I had to hold the zip gun
like this, because it
kicks when you fire it like that."
[40]
The appellant's attorney placed the following explanation for the
demonstration on record:
"...The
appellant held the gun in front of him with both hands. He had a
piece of pipe in each hand because "you have
to bang it now to
go off".
[41]
The magistrate was correct in finding that significant handling of
this firearm was necessary. On the appellant's own version,
Rosemary's evidence stands to be accepted. I cannot fault the
magistrate's finding.
CONCLUSION
The merits
[42]
It is so that Rosemary was a single witness with respect to the
shooting incident. It is further correct that the State had
to prove
its case beyond a reasonable doubt. I am satisfied that the
magistrate approached Rosemary's evidence with the necessary
caution. It is so that a court of appeal will not interfere with the
credibility findings of the trial court unless convinced
that it is
wrong. I cannot make such a finding on these facts.
Sentence
[43]
The appellant correctly in my view did not appeal against the
sentence.
ORDER
[44]
In the circumstances, I propose that the appeal be dismissed.
E
D BAARTMAN, J
I
agree and it is so ordered.
P
GOLIATH, J