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[2013] ZASCA 92
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McLaggan v S (084/13) [2013] ZASCA 92 (3 June 2013)
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SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 084/13
Not Reportable
In the matter between:
IAIN CAMERON MCLAGGAN
.......................................................................
APPELLANT
and
THE STATE
................................................................................................
RESPONDENT
Neutral citation:
McLaggan v The State
(084/13) [2013] ZACSA 92 (June 2013)
Coram:
Mthiyane
DP, Majiedt, Pillay JJA et Willis, Saldulker AJJA
Heard: 17 May 2013
Delivered: 03 June
2013
Summary:
Rape –
evidence - complainant single witness – sufficient
corroboration - all evidence, not only parts of it, to be
taken into
account when determining the guilt of accused – accused’s
version not reasonably possibly true - appeal
against conviction
dismissed.
Sentence –
Prescribed sentence in terms of
Criminal Law Amendment Act 105 of
1997
– appeal by State against sentence - finding of existence
of substantial and compelling circumstances as envisaged in
subsection
52(3) attacked by State – court below misdirected
itself in finding substantial and compelling circumstances –
appeal
upheld.
ORDER
On appeal from:
Eastern Cape High Court, Grahamstown (Goosen J sitting as court
of first instance)
1 The appeal against
conviction is dismissed.
2 The appeal against
sentence is upheld.
3 The sentence imposed by
the court below is set aside and substituted with the following:
‘
The
accused is sentenced to 10 years’ imprisonment.’
JUDGMENT
PILLAY JA (MTHIYANE
DP, MAJIEDT JA ET WILLIS, SALDULKER AJJA CONCURRING)
[1] This is an appeal
against conviction. The appellant, Iain Cameron McLaggan, was
convicted in the High Court, Grahamstown (Goosen
J) of one count of
rape in the contravention of
s 3
, read with
s 1
,
56
(1),
57
(1),
58
,
59
and
60
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
. He was sentenced to a term of 8 years’
imprisonment.
[2] Leave to this court
was granted by the court below, which also granted the Director of
Prosecutions leave to appeal against
the sentence. In order to avoid
any confusion, I will hereinafter refer to the appellant (on the
merits) and the Director of Prosecutions
as they were referred to in
the court below viz accused and the State.
The following are
facts which are common cause or undisputed:
[3] At the age of 7 years
old, the complainant was diagnosed with a brain tumour behind the
left eye. Her condition was not treated
by way of surgery but with
vigorous radiation over a number of years. This treatment affected
her control hormone levels which
made her prone to stress and its
consequences: It also had an effect on her bodily sugar levels. At
the age of 18, she undertook
a trip to South Africa under the
auspices of Worldwide Experiences, a British institution, in order to
enhance her chances for
admission to a university in the United
Kingdom to persue studies in Veterinary Science. Worldwide
Experiences had established
a working relationship with Shamwari Game
Reserve (‘Shamwari’) which is located near Grahamstown.
The complainant was
placed there with some fourteen other foreigners
to complete courses which, inter alia, included dealing with large
animals.
[4] The group was
entrusted to the accused and one Conrad Muller both of whom seemed to
be experienced in working at Shamwari and
were to co-ordinate the
course. The complainant and the other international students started
the program on 30 August 2010. Some
of these students had been at
Shamwari for about a week before then. Towards the end of that week a
social outing was arranged
at a tavern in Paterson. Because she felt
tired, she was reluctant to go on this outing, but felt in necessary
to socialise with
the others. The group went to the tavern where they
enjoyed some drinks. The complainant bought a glass of red wine which
she was
sipping in front of the fire place with some of the members
of the group. When one of the girls remarked that she was drinking
her wine very slowly the complainant finished her glass of wine and
purchased another. She then continued to consume the wine and
joined
other members of the group in playing pool. By the time she started
to drink the third glass of wine, she had also consumed
a single shot
of Sambuca which the accused had bought. She then started to feel hot
and removed the long sleeved top which she
was wearing over another
top.
[5] She then became
emotional because she started to think of her failure in obtaining
university entrance while some of her friends
had succeeded in doing
so. She did not feel too well and went outside with Ms Laura Sloan,
her older roommate and with whom she
had struck up a good sisterly
relationship, to get some fresh air. Once outside, she started to
vomit a few times. So violent was
the vomiting that she soiled her
hair and part of her clothing. She could not remember for how long
she was outside. She was unable
to get up from where she was sitting
and had to be carried to the taxi commissioned to convey them back to
the lodge. She has vague
memories of the trip back to the lodge.
Thereagain, she had to be carried from the taxi to her bed by the
accused. As soon as she
had been placed on the bed, she suffered a
seizure. She was gasping for air, her head was jerking and her back
was arched. Amidst
this trauma however the complainant remembers that
the accused asked some of the girls to put her to bed and make her
comfortable
as he ‘does not want a lawsuit’. She was put
into bed after two of her female friends had taken off some of her
clothes
and made her comfortable in bed wearing only a top and her
panties. The complainant then again suffered another seizure which
lasted
a bit longer. The accused told the others to bring him a spoon
and to leave the room while he attended to the complainant. He
emerged
from the room shortly thereafter reporting to the others that
she was fine. Later, at about 2h30, the group discovered that she
had
fallen out of bed and she was helped back into it. She was then left
alone in the room so that she could rest. At the time
the complainant
could hear the voices of members of the group including that of the
accused, but she could not make out everything
that was being said.
She however remembers him saying that he did not want a law suit. At
about 3 am the accused sent one of the
students to go check on her
and it was reported that she was sleeping peacefully.
[6] At 5h00, when all the
students had gone to sleep, including her roommate, who had gone to
sleep with another student in light
of the circumstances, the accused
decided to go to the complainant’s room himself. He entered and
at some stage, he had sexual
intercourse with her. She thereafter
went to the bathroom and cleaned herself of the semen and blood which
was a result of her
hymen being ruptured. She went back into the
bedroom and saw him dressing. He left the room soon thereafter –
at about 5h30
am. She then went back to bed and fell asleep. She was
later woken up by Laura Sloan, the complainant’s erstwhile
roommate,
and reminded they were scheduled to go to the Addo Elephant
Park. The complainant did this and the group were taken to the
Elephant
Park in two groups. She rode with Conrad Muller. During the
lunch break at the Elephant Park she had a conversation with Sloan
and asked her for information relating to what had happened to her
the previous night and in particular what she was wearing when
she
was put to bed. She then told Sloan that she had been raped by the
accused. After a brief discussion between them, it became
apparent
that the complainant was especially concerned about whether the
accused had used a condom when he had raped her and was
focussed on
getting to a hospital to get treatment to contend with any virus or
germ she might have been contaminated with during
the rape.
[7] The group was taken
back to the lodge and the complainant took the rest of the day to
consider ways to get medical attention.
On the Sunday morning she
eventually approached Nadia Muller, a permanent employee at Shamwari
and told her what had happened.
Nadia then immediately reported the
event to Conrad Muller. Upon hearing about the complaint, he called
his supervisor, Qiunton
Gillson. As a result of what was explained to
him, he decided to conduct a preliminary investigation for purposes
of reporting
to his employers. Upon his request, the complainant
penned a statement of what had occurred to her. On considering the
content
of the statement, he called upon the accused and informed him
that the complainant had alleged that he had raped her. The accused
first responded that he knew ‘it would come to this’. In
order to equip himself to report to his employers and probably
to
cover himself, he asked the accused to make a written statement in
response to the allegations in terms of company policy regarding
complaints by a student guest. After the complainant had completed
her statement, she was taken to a private doctor who said he
was
unable to treat her properly. She was then referred to the Greenacres
Private hospital in Port Elizabeth to which she was then
taken. There
she was examined by Dr Conradie who recorded his finding on the
customary medico-legal form. She then went to the
police station in
Port Elizabeth to lay a charge of rape. She was referred to the
Paterson Police Station because it had jurisdiction
over the area
where the alleged offence occurred. She was taken to the Paterson
Police Station where she laid a charge of rape
against the accused.
As a result the accused was arrested and this culminated in his
appearance in the High Court in Grahamstown.
The Trial
[8] The accused pleaded
not guilty and explained that he indeed engaged in sexual intercourse
with the complainant but it was consensual.
During the trial the
State sought to admit the statement made by the accused to Gillson,
even though it was exculpatory. It turned
out that Gillson had told
the accused that no charges had been laid – indeed none had
been laid at that time. Its admissibility
was contested and this
resulted in a trial-within-a-trial. In the end the statement was
admitted into evidence. It afforded the
State a tool to cross examine
the accused. The statement was indeed used to cross-examine the
accused but fortunately the judge
in the court below chose to ignore
the contents of the statement and, it seems, all that flowed from
cross-examination regarding
the statement. It is just as well that
this was ignored in assessing the evidence because I have serious
reservations as to the
correctness of the admissibility of that
statement into evidence. A number of other exhibits were admitted by
agreement and included
a photograph album and the medico-legal
report.
[9] The State lead the
evidence of Laura Sloan. The evidence was essentially common cause
and it basically related to the events
of the night of 3 to 4
September 2010 at the lodge prior to the alleged rape. Her evidence
was not seriously challenged and was
correctly accepted as the truth.
[10] The complainant also
testified at the trial. She confirmed the evidence about her trip to
South Africa and her placement at
Shamwari. She also confirmed the
evidence of what occurred on the Friday night – early Saturday
morning – as far as
she could remember. She also testified
about her illness regarding the brain tumour, the treatment and the
effects thereof. She
explained that at times she would become
susceptible to stress and consequently, had been granted special
allowances during school
hours and additional time to complete
examinations. She also said that during her short period at Shamwari,
she found the physical
activities exhausting but had nonetheless
enjoyed them.
[11] She confirmed that
during the outing she became ill after consuming some alcohol and as
far as she could remember, she experienced
the symptoms of seizure.
In particular she testified about the period when she was alone in
bed at about 5h00 on the Saturday morning.
She said that she woke up
when she became aware that her panties were being pulled down her
legs and that when she opened her eyes,
she saw that it was the
accused who was doing it. He was alone with her in the bedroom. She
pulled her legs up but he pulled them
down by pulling at her ankles.
She blacked out again. She was then again awoken by a pain in the
region of her lower stomach. She
opened her eyes and she discovered
the accused on top of her and he was rocking back and forth. His
mouth was on one of her breasts.
She realised that she was completely
naked. As he lifted his body – probably when she felt less
pressure of his body on her
– she tried to fight him off by
pushing him away. He pushed her hands away from him. She stated that
she said ‘no,
no, no’. The accused told her to stop that
and put his hand over her mouth. He told her to put her arms around
him and moved
one of her arms onto his shoulder. When she removed it,
he slapped her lightly on the cheek. He then told her to kiss him.
When
he moved his lips towards her mouth, she turned her head to the
side. She then managed to pull some of the bedding over her face.
She
realised that she was being raped. She lay still in that position
until he stopped. When he got off her, she immediately sat
on the
side of the bed and faced the window. She explained that she was
extremely confused and that she remembers that she was
concerned
about whether he had used a condom or not. She started looking for it
on the floor and in the bin.
[12] She remembers that
the accused asked her what was wrong. She did not respond. In looking
for the condom, she saw her brassiere
on Sloan’s bed, and put
it on. She then went to the bathroom in order to clean herself. She
did so with toilet paper and
discovered a white mucous on the toilet
paper. On emerging from the bathroom again, she went to sit on the
bed. The accused was
still in the room. According to her, she had
difficulty in conceptualising why and how this rape occurred. She
asked him what just
happened. In response, the accused asked her what
had happened a few times. She described how the accused then sat down
next to
her on the bed when she started to shake. He put his arm
around her and told her to lean her head on his shoulder. She did not
do so and he then tilted her head against his shoulder with his hand.
He then asked her if she wanted him to leave and invited her
to say
whatever she wanted to about him and call him whatever she wanted to
call him. She in fact referred to him by a crude slang
reference to a
penis to which he just laughed. She then told him that she could not
believe that he had just 'taken advantage'
of her. The accused
responded by saying that it was a harsh accusation to make and became
angry. At the same time he told her how
he had looked after her the
whole night, how he had saved her life by putting a spoon in her
mouth to prevent her swallowing her
tongue during the seizures. He
asked sarcastically if that was the gratitude she had for all that he
had done for her. As he left
she sarcastically said to him 'thanks
for the spoon'.
[13]
The State also called Dr Conradie to testify. He had noted in the
medico-legal report general redness around the labia of the
vagina of
the complainant, generalised redness and swelling in the entire fossa
navicularis in the area of where the hymen is expected
to be found as
well as two small superficial tears on the posterior of the
fourchette, from which there was bleeding. Further internal
gynaecological examination was not done because the complainant was
experiencing pain and discomfort in the area which required
examinations. He concluded that full sexual intercourse with full
penetration had occurred with the complainant. He prescribed
anti-retroviral treatment as a precaution as well as antibiotics.
Pregnancy and what is known as
Human
Immunodeficiency Virus
(
HIV
)
tests
were also conducted by way of blood tests. He conceded that from his
findings, he could not exclude the possibility that the
injuries and
symptoms which he noted could also have been caused during consensual
sexual intercourse.
[14] Quinton Gillson also
testified. His evidence was unchallenged and was essentially as set
out above. It was correctly accepted
as the truth in the court below.
[15] The State also lead
the evidence of Detective Warrant Officer Marshall, the commanding
officer of the Paterson detective unit,
who had arrested the accused.
The State sought to rely on his evidence as to what transpired
between him and the accused. The court
below rejected his evidence
and did not rely on anything he testified to. Nothing more need be
said about his evidence.
[16] The State sought to
lead the evidence of Dr Helen Spoudeas a medical specialist
paediatrician and endocrinologist who focuses
on brain tumours. She
holds a doctorate in the diagnosis and treatment of children with
brain tumours. She is recognised internationally
and is a European
expert in the field particularly on the late effects of brain tumours
and the related treatment as well as the
long term assessment and
treatment of children who have survived brain tumours. She is
involved in research with about 200 child
patients. Her credentials
were not questioned in the court below nor on appeal. However because
Dr Spoudeas was very much sought
after and is so committed that she
was unable to travel to South Africa to testify, an application to
lead her evidence by way
of what is referred to as a video-conference
was launched by the State in terms of
s 158
of the
Criminal Procedure
Act 51 of 1977
. The application was opposed on various grounds. After
argument, the application was granted and the evidence of Dr Spoudeas
was
received by video-conference. On appeal the ruling to receive her
evidence was not attacked and there is no reason to deal with
this
aspect any further.
[17] Dr Spoudeas
testified that she was very familiar with the situation of the
complainant and had been treating her since she
was 7 or 8 years old.
She was accordingly also familiar with the pathology experienced by
the complainant.
[18] It is perhaps
prudent to deal with her evidence relating to endocrinology. She
explained that endocrinology is the study of
hormones. In particular
she explained that hormones which originate from the central
pituitary axes, (the central area of the brain
which controls the
essential rhythms relating to one’s conscious cycles - sleeping
patterns and also body responses to certain
stimuli) convey vital
information from the central pituitary axes to certain parts of the
body and facilitate body reactions to
various conditions and stimuli.
She went further to explain that these hormones control body rhythms
and accordingly permit the
habits of waking up and going to sleep.
Many of these functions are vital and any imbalance or deficiency in
regard thereto would
cause abnormality which could be life
threatening. She said that children who are treated for cancer, in
particular brain tumours
are prone to develop pituitary axes
deficiencies as a result of the treatment they receive to deal with
the tumours. This, in turn,
affects the glands which produce the
hormones and, as I understand this evidence, results in imbalances in
these important hormonal
requirements.
[19] Dr Spoudeas
testified that in 2000, the complainant presented with an optic
glaucoma which required high dose radiation therapy.
As a result of
receiving this treatment she suffered from a permanent growth hormone
deficiency. Tests have also shown that the
complainant has a marginal
response in her cortisol, the stress hormone. She explained that
cortisol, an important life saving
hormone, is essential for one’s
daily rhythm. Cortisol levels also play an important role in dealing
with stress. She testified
that the complainant’s cortisol
level tested at 480 while the normal level should read between 500
and 550. She further testified
that both the aforementioned hormones
affect the production of blood sugar. The effect of the medical
regime (as was required by
the complainant), is that if confronted
with a stressful situation, she would be unable call on sufficient
cortisol to respond
to the stress and this would in turn induce a low
blood sugar level. The deficiencies would restrict any reversal of
the low blood
sugar level which would occur in normal circumstances.
According to Dr Spoudeas, low blood sugar level could lead to fitting
or
epilepsy or seizures and if left untreated, could lead to deep
coma and even death.
[20] Dr Spoudeas took
into consideration that prior to the seizures, the complainant had
(a) consumed some liquor – intoxication
occurs more readily and
quicker in females than in males (this she said, was based on
clinical evidence) and (b) had not eaten
very much – her
glucose levels would already be low and the intake of alcohol would
have stunted the production of body glucose
and concluded that the
complainant’s pathology regarding the brain tumour, were
alcohol related. She described a seizure
where the person’s
limbs move involuntarily and where the head jerks as a clonic tonic
seizure. She said that in such an
event, it was to be expected that
the person would be in a post-ictal state – state of mind of a
person just after suffering
a seizure. She explained that a person in
a post-ictal state would be conscious of having experienced the
seizure and may typically
have a blurred memory of what had occurred.
She further describes that in a post-ictal state, the person may be
in a deep sleep
and may appear not fully conscious though such a
person may become aware of some sensation such as touch or pain and
could respond
to this. However the person would still be in a state
of confusion during the recovery period though the effects of the
alcohol
would be wearing off. She stated that given the history of
the intake of alcohol late the Friday night, and the seizures at
approximately
2h30, it was to be expected that by 5h30, the
complainant would be in the latter stages of a post-ictal state. The
reaction to
pain and touch would be greater, her memory would be less
blurred and her confusion would be less obvious than it was during
its
peak period of the pathology.
[21] Dr Spoudeas said the
account of the complainant that she was slipping in and out of
consciousness and that she was not aware
of certain events she was
told of is consistent with a person, having suffered a series of
seizures, in a post-ictal state. In
response to being asked to
comment on certain aspects which were raised with the complainant on
behalf of the accused, she explained
that the sensation the
complainant felt when her panties were being removed is suggestive of
her being in a post-ictal state but
more conscious than earlier after
the seizures (clearly in a state of recovery). She also explained
that in the post-ictal state,
even during a state of recovery, a
measure of confusion is to be expected. As I understand her evidence
the confusion would diminish
in the process of recovery and
simultaneously her reaction to pain would also improve.
[22] The accused also
testified and essentially confirmed the evidence about the
occurrences that night and early morning as already
set out, save for
what occurred in the complainant’s room when he was alone with
her at about 5h00. He stated that at about
4h30 that morning, he went
outside from the lounge of the lodge where he was sitting with some
of the students listening to music
to smoke and relieve himself. When
he returned, he found that the students had all gone to sleep. He
packed up and went to his
room. It then dawned on him that he should
again go and check on the complainant for his own peace of mind. When
he opened her
bedroom door, he found her awake and sitting up on the
edge of the bed. The bedside light was on and she had wrapped the
duvet
around herself. He enquired about her health. She said she was
feeling better but wanted to know what had happened. He then went
to
sit next to her on the bed and briefly explained that she had become
heavily intoxicated and he had carried her to her bed and
asked some
of the girls to make her comfortable.
[23] He further explained
that after informing her of what had happened, she leaned her head
against his shoulder and he placed
his arm around her shoulder. They
remained sitting like that until the complainant turned her head
towards him and kissed him passionately.
He reacted positively to
this by kissing her with equal passion. As he put it, as this
developed both of them continued kissing
each other while laying on
the bed and that the passion then heigtened to the extent that they
started caressing each other. He
testified that she then loosened his
belt. This led to him removing his trousers. The kissing and
caressing then intensified. At
some point he rolled onto her and
started having sexual intercourse with her. She did not object to or
protest against this. The
import of his testimony in this regard is
that she was an active participant and was not a dispassionate
partner. He added that
she asked him not to ejaculate inside her, a
request he adhered to. Afterwards, they lay next to each other until
he noticed that
the sun was beginning to rise. He then decided to
leave and got up. When he began to dress the complainant covered
herself with
the duvet and went to the bathroom. By the time she
returned, he had already put on his clothes he kissed her on the
forehead and
then left.
[24] Another significant
part of his evidence was that when he was confronted by Gillson with
the complaint, he thought it related
to having sexual intercourse
with a student guest and it was in response to that notion that he
prefaced his response with the
exclamation that ‘he expected it
to come to this’. He explained that he felt obliged to make a
statement (in regard
to his employment status) and did not mention
the sexual intercourse with the complainant as he did not want to
risk his occupation
or his marriage. In addition he testified that he
did not want to say too much as it might be used to his prejudice. He
therefore
made an exculpatory statement.
On Appeal
[25] As is apparent from
the above, the version of the accused is substantially different from
that of the complainant’s.
The issue on the merits is therefore
whether there was consensual sexual intercourse between the
complainant and the accused. In
other words whether the State has
discharged the onus resting upon it to prove beyond a reasonable
doubt that the accused had raped
the complainant.
[26] Mr Price who
appeared for the accused submitted that the court below had
misdirected itself firstly, by ignoring the many inconsistencies
in
the complainant's testimony when measured against her statement to
the police and also her statement to Gillson and secondly,
by relying
on the evidence of Dr Spoudeas who had not examined the complainant
after the alleged rape and was therefore not in
a position to testify
about her condition at the time it occurred or shortly thereafter. He
submitted that if these aspects had
properly been considered by the
court below, it would have concluded that the State had not
discharged the onus of proving the
accused's guilt or that the
version of the accused was reasonably possibly true in the
circumstances and therefore entitled to
be acquitted of the charge.
[27] As was pointed out
in the judgment of the court below that earlier the accused was wary
that he should be cautious in his dealing
with the complainant so as
to avoid any suggestion of impropriety on his part. Quite apart from
the legal problems he might face,
he was also mindful of company
policy prohibiting any relationship with students. The accused had
nevertheless gone to the complainant’s
room alone in the early
hours of the morning. He chose to go and sit next to her on the bed
when, if he was only interested in
her health, he need not have
entered the bedroom as if he thought he should, he could have sat on
the stool which is clearly depicted
in one of the photographs of the
inside of her room. His version that it was the complainant who had
initiated the kissing, that
she had loosened his belt and that she
was a willing participant in this occurrence which culminated in
sexual intercourse is improbable.
It is so because it is hardly
likely that a person that had just been through multiple seizures and
had vomited on herself, and
in particular her hair, would have
developed an urge to engage in sexual intercourse in those
circumstances.
[28] Mr Price submitted
further that it was improbable that the accused would have raped the
complainant with the bedroom light
on and the door unlocked and
consequently his version should be accepted as reasonably possibly
true. The flaw in this argument
is that it is common cause that
sexual intercourse occurred between them while the light was on and
the door unlocked. Yet he knew
that even on his version he was
transgressing company policy in those circumstances. The
probabilities in this regard therefore
do not detract from the
complainant’s version and consequently this factor does not
enhance his version at all since if this
event was consensual, the
ever mindful accused would have taken the trouble of locking the door
at heart when he took off his trousers.
Furthermore, his evidence
that he did not have a conversation about how he saved her life with
the spoon cannot be true. Her knowledge
of the significance of the
spoon, which she saw in her room, begs the question as to how she got
to know why it was in her room.
His explanation that he thought that
Gillson was referring to consensual intercourse with the complainant
is disingenuous simply
because he was confronted with the complaint
of rape. If he had not committed rape then he could hardly have
‘expected’
to be confronted with such allegations. The
accused was a poor witness. The rejection of his evidence as being
improbable and not
being reasonably possibly true cannot be faulted.
There was no misdirection in arriving at that conclusion.
[29] That however is not
the end of the matter. It still remains for the State to discharge
the onus it carries. As Maya JA stated
at para [14] of
Monageng
v S
[2009] I All SA 237 (SCA) –
‘
[14]
But
whilst it is entirely permissible for a court to test an accused’s
evidence against the probabilities, it is improper
to determine his
or her guilt on a balance of probabilities. The standard of proof
remains proof beyond reasonable doubt, ie evidence
with such a high
degree of probability 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.’
[30] In assessing whether
the State has discharged the onus of proving its case against the
accused beyond a reasonable doubt, it
must consider all the evidence
in arriving at a conclusion whether to convict or acquit an accused.
In
S v Van der Meyden
1999
(1) SACR 447
(WLD) at 449h – 450b, Nugent J said the following:
‘
A court does
not base its conclusion, whether it be to convict or to acquit, on
only part of the evidence. The conclusion which
it arrives at must
account for all the evidence. Although the
dictum
of Van der Spuy AJ was cited without comment in
S
v Jaffer
1988 (2) SA 84
(C), it is apparent from the reasoning in that case
that the Court did not weigh the 'defence case' in isolation. It was
only by
accepting that the prosecution witness might have been
mistaken (see especially at 89J - 90B) that the Court was able to
conclude
that the accused's evidence might be true.
I am not sure that elaboration upon a
well-established test is necessarily helpful. On the contrary, it
might at times contribute
to confusion by diverting the focus of the
test. The proper test is that an accused is bound to be convicted if
the evidence establishes
his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he
might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case
will depend
on the nature of the evidence which the court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or to acquit) must account for
all the evidence. Some of the evidence might be found to be
false;
some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none
of it may
simply be ignored.’
This approach was
followed and approved in
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15. It was stated therein as follows:
‘
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 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 (such as
the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence.
’
1
[31]
Mr
Price argued that the complainant was a single witness in regard to
the material aspects involved in this event. He argued that
the
circumstances are such that the evidence of the complainant requires
to be examined very carefully before it can be accepted
so as to form
a foundation by which the State could discharge the onus of proving
the guilt of the accused beyond a reasonable
doubt. He submitted that
her evidence required to be corroborated. He correctly did not argue
that this was more so because the
matter at hand was one involving an
alleged sexual violation (See:
S
v Jackson
1998
(1) SACR 470
(SCA)).
[32]
Mr Price referred to inconsistencies in the complainant’s
evidence when measured against the contents of the two statements
she
had previously made. He attacked her evidence on the basis that she
resorted to an alleged confused state of mind at the material
time in
attempting to explain away these discrepancies.
His
submission in this regard is consistent with the version of the
accused that the complainant was in fact conscious at the time
and
was alert to what she was doing and what was happening.
[33] Save to say that
absent an acceptable explanation for the discrepencies, the State
might very well have had difficulty in discharging
the required onus.
The discrepencies referred to by Mr Price included matters such as
her failure to mention certain aspects in
either of her statements,
such as where her panties were, where her brassiere was found, and so
forth. In what follows, it is unnecessary
to deal with the details of
the contradictions referred to by Mr Price.
[34] Mr Price also argued
that if the complainant was indeed in a state of confusion, how is it
possible that she able to remember
certain aspects of what occurred
to her that morning viz that it was the accused who was raping her,
that she was unable to scream;
how in this confused state she had the
presence of mind to look for a condom; that she put on a brassiere
just after being raped
and that she had the presence of mind to check
the time.
[35] The explanation for
her inability to testify about certain details is to be found in the
evidence of Dr Spoudeas. Immediately
prior to Dr Spoudeas’
evidence being lead, Mr Price objected to it being taken by way of
video transmission. The court below
ruled that application to do so
be granted. He wisely did not raise that objection on appeal. What he
did submit however is that
the court below misdirected itself in
having regard to her evidence because she had not examined the
complainant after the incident.
This submission is clearly wrong as
it misconstrues the nature of the evidence of Dr Spoudeas. Dr
Spoudeas did not suggest that
her testimony was complainant specific
about the rape. Her evidence was indeed of a clinical nature
explaining the chemical reactions
to the treatment of a brain tumour.
Furthermore she testified to the effects of such treatment in
particular the effects of essential
hormones which generally control
human life eg. sleeping and waking up. Of note is her evidence that
the effects of alcohol intake
by a person presenting with the ailment
the complainant was treated for, was that the already dangerous
levels of these important
hormones and also the sugar levels, was
exactly as the complainant described – experiencing violent
vomiting and seizures,
falling in and out of a conscious state,
improving with time and after approximately 5 hours she would have
been more alert than
earlier, capable of better bodily feeling than
earlier and capable of sporadic memory. Her memory would be blurry in
regard to
certain aspects of her experience while in regard to
others, it would be non-existent and even further it would be quite
clear.
[36] The evidence of Dr
Spoudeas was accepted as providing an understanding of the condition
of the complainant and explains her
reactions to the intake of
alcohol. The court below was correct in accepting the evidence of Dr
Spoudeas. Consequently, taking
into consideration her evidence, it
becomes clear that the complainant was still suffering from the
effects of the intake of alcohol
and in particular the seizures. She
was clearly not in a condition to realise everything that was
happening to her and hence her
inability to give a clear account of
events. She readily conceded that in the circumstances she had, in
trying to understand what
had happened to her, resorted to some
reconstruction of events. However, what is significant is that from
the time she felt the
pain in her lower stomach until the time when
the sexual intercourse ended and the accused left, she was awake and
alert. While
her memory might be blurred, she was not unconscious at
the material time. Her version of the evening’s events prior to
her
being raped is corroborated by Sloan. Her inability to give a
cohesive account of certain insignificant details when she was raped
gels with the evidence of Dr Spoudeas. The court below who saw the
complainant when she testified, found her to be a candid and
truthful
witness and the record certainly lends itself to that conclusion.
There is no reason to conclude that her evidence is
false or
incorrect on the material aspects. Her evidence can therefore be
relied upon as being satisfactory in all material respects.
Taking a
holistic view of all the evidence, it is clear that the State proved
the guilt of the accused beyond a reasonable doubt
and the appeal
against the conviction falls to be dismissed.
[37] I come now to the
State’s appeal against the sentence. At the commencement of the
trial, the accused was aware that in
the event of a conviction, the
State would seek to invoke
s 51(2)
of the
Criminal Law Amendment Act
105 of 1997
. The sub-section provides for the imposition of a minimum
sentence of 10 years’ imprisonment if no substantial and
compelling
circumstances as envisaged in subsection 51(3), which
would otherwise allow for a deviation of the prescribed sentence, are
found
to exist.
[38] The evidence of
State witness, Ms Smit, Neuro-Psychologist attached to the University
College, London College, was also received
by way of video-conference
in terms of
s 158
of Act 51 of 1977. Her evidence is relevant because
Ms Smit was part of the team which treated the complainant in respect
of her
brain tumour. It seems that after the accused was convicted,
Ms Smit was requested by the State to prepare and submit an updated
report focussing on the rape of the complainant. Such evidence is
undoubtedly relevant in considering whether substantial and
compelling circumstances exists and, if so, in considering an
appropriate sentence.
[39] The personal
circumstances of the accused which were taken into account by the
court below are the following. At the time of
sentencing he was a 30
year old male with a clean record. He is a university graduate having
read for a Bachelors degree in Media
Studies. He was married and his
family and social circumstances were accepted as good. He was a high
achiever at school both academically
and in sport. He was a talented
musician and is evidently an able leader. When he was employed at the
Philharmonic Society in Port
Elizabeth he was involved in teaching
music in underprivileged communities. It also seems that he
apologised for his indiscretion
of having sexual intercourse with the
complainant. The court below accepted that to this extent he had
taken responsibility for
the situation he finds himself in.
[40] On the other hand,
the accused was employed at the material time as a student
co-ordinator and the 18 year old complainant,
together with the other
students, was placed in his trust and care.
[41] Ms Smit having
examined the complainant, testified that the complainant will suffer
negatively from the rape, both on a long
and short-term basis. She
concluded that the complainant is putting up a veil of defence to
protect herself against the full impact
of the rape on her by
repressing her emotional responses thereto and to an extent, was in a
state of denial. According to Ms Smit,
these protection techniques
allow her to function with apparent ease in her day to day life but
they stunt her ability to process
the effect of the rape. She states
that in repressing her emotions, the complainant becomes
self-critical and has negative thoughts
about herself. This is
consistent with a cognitive response to her trauma and while they
assist her on a day to day basis, they
are destructive and have the
distinct capability of affecting her negatively in the long-term. Ms
Smit testified that the complainant
regards this rape as a serious
setback in her quest to build an independent life as a survivor of a
life threatening illness.
[42] Ms Smit stated that
generally, the state of mind of victims of rape are not fully
restored. Therapy and counselling may ameliorate
the effect of the
rape trauma but it cannot be completely undone. The complainant, she
suggested, would require such therapy but
added that she will
continue to have long-term traumatic consequences.
[43] It seems that the
court below found that, (a) the accused had the ability to contribute
to society; (b) that he was not an
obvious threat to society; (c) the
rape was not accompanied by additional violence; (d) there was no
threat of violence during
or after the rape and (e) this kind of
conduct was not expected of a person of the character and background
of the accused, taken
cumulatively, constituted mitigation which
would render the imposition of the minimum sentence of 10 years’
imprisonment
an injustice, destructive of his person and would defeat
the overriding interest of society to rehabilitate the offender back
into
society. In light hereof and the fact that the learned judge in
the court below deviated from the prescribed minimum sentence, it
is
obvious that he found substantial and compelling circumstances to
exist. There are two other factors which the learned judge
in the
court below mentioned viz that he was a first offender and that he
had expressed some remorse to his mother in regard to
his conduct.
The court accepted that he took responsibility for the situation he
found himself in. I will assume in his favour
that these two factors
were also considered as mitigating.
[44] Ms Turner for the
State contended that the court below had misdirected itself in taking
into account as mitigating factors
that (a) there was a lack of
additional violence other than that inherently involved in the rape
(b) regarding his character and
his background as a mitigating factor
and (c) the remorse attributed to the accused was not related to the
crime but more self
pity.
[45] On the other hand Mr
Price submitted that the court below had taken everything into
account and that this court should be loathe
to interfere therewith
and punish the accused even more than he has already been.
[46] The approach to
substantial and compelling circumstances was dealt with in
S
v Malgas
2001 (1) SACR 469
(SCA). At para 25
Marais JA, writing for the court set out what has essentially become
a guideline approach to sentences for listed
offences as follows:
‘
[25] What
stands out quite clearly is that courts are a good deal freer to
depart from the prescribed sentences than has been supposed
in some
of the preciously decided cases and that it is they who are to judge
whether or not the circumstances of any particular
case are such as
to justify a departure. However, in doing so, they are to respect,
and not merely pay lip service to, the Legislature’s
view that
the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when crimes of the specified kind
are
committed. In summary –
A. Section 51 has limited but
eliminated the courts’ discretion in imposing sentence in
respect of offences referred to in
Part I of Schedule 2 (or
imprisonment for other specified periods for offences listed in other
part of Schedule 2).
B. Courts are required to approach the
imposition of sentence conscious that the Legislature has ordained
life imprisonment (or
the particular prescribed period of
imprisonment) as the sentence that should
ordinarily
and in
the absence of weighty justification be imposed for the listed crimes
in the specified circumstances.
C. Unless there are, and can be seen
to be, truly convincing reasons for a different response, the crimes
in question are therefore
required to elicit a severe, standardised
and consistent response from the courts.
D. The specified sentences are not to
be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the
offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying
the legislation, and marginal differences in
personal circumstances or degrees of participation between
co-offenders are to be
excluded.
E. The Legislature has however
deliberately left it to the courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and
the need for effective sanctions
against it, this does not mean that all other considerations are to
be ignored.
F. All factors (other than those set
out in D above) traditionally taken into account in sentencing
(whether or not they diminish
moral guilt) thus continue to play a
role; none is excluded at the outset from consideration in the
sentencing process.
G. The ultimate impact of all the
circumstances relevant to sentencing must be measured against the
composite yardstick ('substantial
and compelling') and must be such
as cumulatively justify a departure from the standardised response
that the Legislature has ordained.
H. In applying the statutory
provisions, it is inappropriately constricting to use the concepts
developed in dealing with appeals
against sentence as the sole
criterion.
I. If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing, account must be taken
of the fact that crime of that particular kind has been singled out
for severe punishment
and that the sentence to be imposed in lieu of
the prescribed sentence should be assessed paying due regard to the
bench mark which
the Legislature has provided.’
[47] It is noteworthy
that in part ‘D’, it is clearly stated that specified
sentences should not be departed from lightly
and for flimsy reasons.
It further sets out which types of factors should be excluded from
consideration. On the other hand, in
part ‘E’, the
approach also allows for all the factors traditionally considered in
respect of sentence, to be included
in the overall consideration in
the sentencing process. The general approach as set out in
Malgas
found support and approval in
S v Fatyi
2001 (1) SACR 485
(SCA) and has been followed since.
[48] In this case, the
lack of evidence that the accused did not have a propensity for such
conduct is of no moment. While the legislature
has essentially left
it for the courts to deal with sentence, is has ordained prescribed
sentences. In particular, it has provided
a sentence for first
offenders and consequently, being a first offender does not justify
taking into account the fact that he may
or may not have a propensity
to commit a crime of this nature. Indeed sentence for second and
subsequent offenders are specifically
provided for in the subsection.
The court below clearly misdirected itself in adopting this approach
in regard to this factor.
It similarly misdirected itself by
concluding that the absence of additional violence constituted a
mitigating factor. The fact
of the matter is that rape is itself a
violent intrusion of the rights of the victim. The lack of a threat
of violence or aggression
afterwards also does not favour the
accused. Such factors if they existed, may well have lead to a
harsher sentence. However their
absence cannot serve to benefit the
accused in deciding whether substantial and compelling circumstances
exist.
[49] It is not clear from
the judgment whether the learned judge in the court below actually
put all the factors, both aggravating
and mitigating, into the
melting pot as suggested in
Malgas
.
[50] The accused, a
stranger to the complainant, raped her soon after she had multiple
seizures and when she was, at best for him,
asleep. He did so when he
was in a position of trust and indeed betrayed that trust. The
complainant has been traumatised by the
rape and is likely to have
long-term residual effects as alluded to by Ms Smit.
[51] On the other hand,
it is true that the accused had the potential to contribute to
society and that he has a good family and
social background. However,
the accused’s remorse was not directed at either the
complainant or the actual crime itself.
It was more a matter of
apologising for being in the predicament. To the extent that it was
used to favour the accused, it should
not have been considered as a
mitigating factor in the circumstances.
[52] The mitigating
factors and the aggravating circumstances, especially the residual
effects on the complainant as explained by
Ms Smit, ought to have
been balanced against each other in assessing whether substantial and
compelling circumstances existed or
not. Even if all the mitigating
and aggravating factors were balanced by the court below, measured
against the guidelines as set
out in
Malgas,
it was wrong to
conclude that substantial and compelling circumstances do exist.
Neither would the imposition of the prescribed
minimum sentence be
disproportionate to the offence itself and the circumstances in which
this offence was committed. The court
below therefore misdirected
itself in concluding that substantial and compelling circumstances
indeed exist and ought to have found
that none existed.
[53] The effect of this
is that the accused must be sentenced in terms of s 51(2) of Act 105
of 1997. The minimum period of imprisonment
in the case of a first
offender, as is the accused, is 10 years.
[54] The State contented
itself with the minimum prescribed sentence of 10 years’
imprisonment and did not suggest a harsher
period of imprisonment.
The appeal against sentence therefore succeeds.
[55] In the result, the
following order is made:
1 The appeal against
conviction is dismissed.
2 The appeal against
sentence is upheld.
3 The sentence imposed by
the court below is set aside and substituted with the following:
‘
The
accused is sentenced to 10 years’ imprisonment.’
R PILLAY
JUDGE OF APPEAL
Appearances:
For Appellant: Mr T N
Price (appearing pro bono)
Instructed by
Legal Aid South Africa,
Grahamstown
Legal Aid South Africa,
Bloemfontein
For Respondent: Ms N
Turner
Instructed by
Director of Public
Prosecutions, Grahamstown
Director of Public
Prosecutions, Bloemfontein
1
See
also:
S v Van Aswegen
2001
(2) SACR 97
(SCA)