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[2013] ZASCA 193
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Herman v S (948/12) [2013] ZASCA 193 (29 November 2013)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 948/12
NOT REPORTABLE
In the matter between:
ZAIBONISHA
HERMAN
.........................................................................
Appellant
AND
THE
STATE
.............................................................................................
Respondent
Neutral citation
: Herman v The State (948/2012)
[2013] ZASCA
193
(29 November 2013)
Coram
: Lewis, Tshiqi and Theron JJA
Heard
: 25 November 2013
Delivered
: 29 November 2013
Summary
: Appeal against convictions - the evidence of the
State and the accused to be considered - no basis to interfere with
the conviction
- appeal dismissed.
ORDER
On appeal from
: South Gauteng High Court, Johannesburg (Willis
J and Randera AJ sitting as a court of appeal):
The appeal is dismissed.
JUDGMENT
Tshiqi JA (Lewis and Theron JJA concurring):
[1]
On the
evening of 18 January 2006 around 20h00, Tamsin Herman (Tamsin), an
adopted 21 month old child was brought by her parents,
the appellant
and her husband, Mr Herman, to the Garden City Hospital. Upon arrival
nurse L Van der Linde, who admitted her, and
later, Dr Moosa, who
attended to her, observed that Tamsin was very ill; she was extremely
pale, anaemic, cold to the touch, dehydrated,
had a poor pulse, a dry
tongue and had difficulty breathing. She had bruises on various parts
of her body.
[2]
Despite
attempts by doctors and staff at Garden City Hospital to save her
life, she sadly died following surgery to repair her ruptured
liver
on 21 January 2006. On 23 January 2006, Dr Kevin Fourie, a state
forensic pathologist performed an autopsy and found the
following
injuries:
(i)
An old
elbow fracture;
(ii)
Fresh
bruising of the scalp on the left parietal region on the left upper
part of the head;
(iii)
Fresh
bruising of the brain corresponding with the bruised scalp;
(iv)
Several
healing and fresh fractures of ribs on both sides of the chest; and
(v)
A large
sub-capsular haematoma of the liver.
[3]
Dr
Fourie attributed the cause of death to ‘a blunt force of
injury of the liver with hypovolaemic shock’. In his opinion
severe force must have been visited upon Tamsin.
[4]
On 18
October 2006, the appellant was arrested and charged with three
counts of assault with intent to do grievous bodily harm,
alternatively ill-treatment of a child, and a further count of
murder, alternatively culpable homicide. The first count related
to
an unspecified date in October 2004, it being alleged that she caused
fractures to the left elbow and/or the proximal shaft
of the shaft of
the left arm of Tamsin, then a seven month old baby; the second count
related to the period between December 2005
to January 2006, it being
alleged that she caused fractures to the ribs of Tamsin, then a 21
month old toddler; the third count
related to an unspecified date in
January 2006, it being alleged that she caused bruises to the then 21
month old toddler on her
neck, arm, forehead and spine, fractures to
the ribs and haemorrhage in the parietal region of the scalp and/or
cortical contusion
of her brain. The fourth count concerned the
child’s death, it being alleged that the appellant unlawfully
and intentionally
killed her alternatively, that she unlawfully and
negligently caused her death.
[5]
The
appellant pleaded not guilty to all the charges and tendered no s 115
plea explanation.
[I]
She was convicted on all three main counts of assault with intent to
cause grievous bodily harm and on count four, of the alternative
count of culpable homicide. On each of the three counts of assault
with intent to do grievous bodily harm she was sentenced to
five
years’ imprisonment, all these sentences to run concurrently
and on count 4, to ten years’ imprisonment. She was,
therefore,
effectively sentenced to a term of 15 years’ imprisonment.
[6]
She
appealed to the South Gauteng High Court, with the leave of the trial
court. Willis J (Randera AJ concurring) upheld the appeal
in part and
set aside the convictions in respect of counts 2 and 3 but dismissed
the appeal in respect of counts 1 and 4 and set
aside the sentences
imposed and remitted the matter to the trial court to reconsider the
imposition of an appropriate sentence
with regard to those remaining
counts. This appeal is with the leave of this court against the
convictions on counts 1 (the assault
committed in October 2004 when
Tamsin was seven months old) and 4 (the culpable homicide). We were
informed by counsel from the
Bar that the trial court, before the
appeal against conviction was heard, had already dealt with the
sentence and the appellant
was sentenced to an effective term of 12
years’ imprisonment.
[7]
As is
apparent from the charge sheet, the injuries sustained by Tamsin
occurred over a period of time, the first when she was seven
months
old. During October 2004, when the first offence charged was
committed, it was the appellant, then on maternity leave, who
was the
primary caregiver. She was at times assisted by her husband. When the
fourth offence charged was committed the appellant
and her husband
were assisted by their domestic helper Ms Franscina Makara. She took
care of the child during the day until the
appellant and her husband
came back from work in the early evenings after which she would again
leave her in their care until the
following day.
[8]
The
injuries forming the basis of the first count consisted of a
fractured elbow and would, according to the medical evidence, have
been excruciatingly painful for Tamsin. According to the appellant
she did not observe the injuries. The appellant’s brother
noticed that Tamsin could not move her arm. The appellant herself
claimed not to have noticed this despite the fact that she said
she
bathed and dressed the child daily. Tamsin was taken to a doctor by
her father. Since no mention was made of any incident that
could have
given rise to a fractured elbow, the doctor did not suspect a
fracture and prescribed medication. When Tamsin still
showed signs of
discomfort her father took her to a surgeon who detected the
fracture. The injury could not have been caused by
anything but force
inflicted on the baby, then seven months old: she was not mobile,
there was no evidence that she had fallen
from a height, such as a
bed, when unsupervised and there was no suggestion of any incident
where she had fallen when in the presence
of either parent. Yet the
appellant did nothing about the pain that must have manifested
itself. It follows that her evidence that
she did not notice any
discomfort was correctly rejected by the trial court. She was the
only person who could have inflicted the
injury on Tamsin, and there
is no basis to interfere with the conviction on count 1.
[9]
Regarding
the fourth count, the State led the medical evidence on the probable
cause of the injuries sustained by the child and
the cause of death
and also the evidence of Ms Makara. The appellant argued on appeal
that the State had not proved beyond reasonable
doubt that it was the
appellant who had caused the injuries that led to the death of
Tamsin. The argument was essentially that
the State had not excluded
Mr Herman and Ms Makara as suspects.
[10]
It was
not in dispute that when Ms Makara left Tamsin on 18 October 2006,
she left her in the care of the appellant’s husband.
There is
no evidence that there was anything visibly wrong with the child at
that stage. According to the evidence of the appellant
her husband
must have been with the child for approximately 15 minutes from the
time Ms Makara left until she came home.
[11]
On any
of the appellant’s versions (they changed during the course of
evidence in chief and under cross-examination), there
was nothing
wrong with Tamsin when she came home that evening other than that she
seemed slow. If either of her husband or Ms Makara
had inflicted the
injuries on Tamsin that presented when she was admitted to hospital
(severe bruising, broken ribs, and, above
all, a ruptured liver) the
appellant would have noticed the pain and discomfort that the child
must have suffered and would have
said so. Yet she claimed no more
than that Tamsin seemed slow - a version given only when
cross-examined. Moreover, she did not
attempt to suggest that either
her husband or Ms Makara inflicted the injuries on Tamsin and did
not, after Tamsin died, and before
the trial, ask Ms Makara what had
happened. The obvious inference is that she did not suspect Ms Makara
of anything and knew precisely
what had happened to Tamsin because
she was responsible for it. Indeed, it was never put to Ms Makara
when she was cross examined
that she was responsible for any of the
injuries.
[12]
Thus
the principal argument on appeal that the State did not prove beyond
reasonable doubt that the appellant was guilty of inflicting
those
injuries, and that either Mr Herman or Ms Makara, who were not
charged, could have been responsible for them, falls to be
rejected.
[13]
The
appellant’s version of what transpired on the evening that
Tamsin was admitted to hospital is as follows:
‘When I came home after 17:00 I found my husband with my baby.
They were sitting in the lounge watching TV. He was up and
down and
she was walking after him and I noted that and I just made myself
comfortable to make myself ready to cook and he said
he came from
training and he was going to run again and they were sitting in the
lounge and she was like crying and I told my husband
not to go and
run he said he had to go. I said to him the baby, she wants you to
stay, but he went. I took my baby to the kitchen
where I started to
cook and she was fiddling with my legs and playing there and I picked
her up and I put her on the surface of
my unit, the kitchen unit and
I was going to cook. When I was done with the cooking I dished up for
her. I did not wash her at
that time. I dished up for her in her own
bakkie and in my plate. We were then to go and sit in front of the TV
and she ate from
my plate as well. I fed her from my plate and then
all of a sudden there was a loud burp....
And then she burped and she vomited and it was quite loud because it
was all over the table. I was in shock myself. I just looked
at her
and I grabbed her and I ran to the shower and I went in with one
foot....’
[14]
Her
evidence in that regard suggested that the child who had been playing
happily suddenly became ill. During cross-examination,
probably
realising the difficulties with her earlier version and seemingly in
order to align this version with the medical evidence,
she changed
her version and suggested that when she arrived the child was slow
but not critically ill. She attempted to explain
the injuries by
saying that when she took Tamsin into the shower to clean her after
vomiting, Tamsin fell in the shower.
[15]
Much
of the evidence on the cause of the injuries to Tamsin related to the
appellant’s version of what happened in the shower.
I shall not
deal with it in any detail since it has been more than adequately
traversed in the judgments of the regional court
and the full bench.
Suffice it to say that the appellant’s explanation of why
Tamsin was cold when she was admitted to hospital
was that she had
taken her into the shower to clean off the vomit. Somehow Tamsin had
fallen when in the shower, thus sustaining
various injuries. However,
the appellant made no mention of any fall at all to the hospital
staff when Tamsin was admitted. She
testified also that she did not
tell her husband about the fall either, and that he was angry with
her for not doing so. Tellingly,
when asked in cross-examination why
she did not mention that Tamsin had fallen in the shower, she said:
‘At that moment I
was very scared knowing that she is a healthy
child.’ And ‘Knowing that she is a healthy child and
everything would
face me.’ And ‘Everything would face
myself. Everything would point to me to say that I was negligent.’
[16]
Moreover,
her version of how the fall occurred differed at various stages. A
statement made by her some months after the death of
Tamsin to an
Inspector Johnson, admitted into evidence, gave one version. In
evidence in chief she gave another. And when cross-examined
yet
another. Her version, in the light of the other evidence, was neither
credible nor consistent. It was plainly a fabrication
to give an
apparently innocent explanation of the injuries that were inflicted
on Tamsin in the period between her husband’s
departure from
the house and his return some two hours later. Most sadly, the
doctors testified that had they been told of the
fall when Tamsin was
admitted to hospital, and thus had reason to suspect fractures and a
ruptured liver, they would have treated
her differently and could
have saved her life.
[17]
Of the
appellant’s version the court below correctly stated:
‘By the end of the trial, the appellant’s version of
events was that the injuries which the child sustained and resulted
in her being admitted to hospital on 18
th
January, 2006
(and from which injuries she died) could have resulted from a fall in
the shower by the child while her husband was
absent, taking
exercise. No one else was in the home at the critical time. The
evidence of Dr Fourie is that the injury of the
liver which resulted
in Tamsin’s death could, quite, simply not have been caused by
a child of this age falling in the shower.
Although the focus on the
alleged fall in the shower seemed to shift with the passage of time,
by the end of the trial, her version
seemed to be: one simply does
not know how the child sustained the fatal injuries to the liver (as
well as other visible, non-fatal
injuries such as bruises on her
back, both eyelids and nose as well as superficial lacerations on her
lip) on the 18
th
January 2006. Put differently, her case
was this: they could have been attributed to anyone or any other
accidental cause.
Although Dr Fourie conceded that the injury to the liver could have
been caused several hours before the time of the alleged shower
or
even a day before, he was adamant that the child would have
manifested obvious symptoms of severe distress beforehand. Similar
evidence was given by Dr Banieghbal, a paediatric surgeon, also a
witness called by the state. Dr Banieghbal was explicit that
T.H
would have been in severe pain which should have been obvious. These
symptoms, the appellant, on her own version, did not see.
Professor Gert Saayman, head of Forensic Medicine at the University
of Pretoria, testified in the defence of the appellant. He
was forced
to concede that no matter how many hours beforehand the fatal injury
had been inflicted, symptoms would have been manifest
at the critical
time, i.e. when the appellant was with Tamsin when she came home on
18
th
January 2008. He attempted, however, to minimise the
extent to which they would have been apparent to a lay person such as
the
appellant. Although the appellant’s version at another
stage was that her child was not well when she (the appellant) came
home on the fateful day, she says the child ate supper from her own
plate and the appellant’s plate as well. Although Dr
Banieghbal
conceded that symptoms such as lethargy and nausea (described by the
appellant) could be consistent with liver injury,
his firm opinion
was that the child, having the kind of liver injury in question,
would not have been able to eat. Moreover, as
mentioned earlier, the
child would have been in severe pain which should have been obvious.
When asked to describe how the child appeared when she came home on
18
th
January, the appellant said she was “sulky”,
had a runny nose and was “just very slow that day”. The
appellant
made no mention of any injuries to the child’s eye or
lip. Furthermore, as the learned magistrate observed, there are
contradictions
and discrepancies in her evidence relating to her
encounters with Drs Bhutt and Moosajee [the doctors who attended to
the fractured
arm].’
[18]
For
the reasons stated by the court below the appellant’s version
on how the child sustained the injuries is not reasonably
possibly
true and stands to be rejected. The medical evidence presented by the
State, and the facts that are not in dispute as
to who had charge of
Tamsin when she was injured, on the other hand, point only to one
conclusion, ie that it was the appellant
who caused the injuries to
the child. Counsel for the appellant submitted that the
improbabilities in the version of the appellant
should be ignored
because it is the State that bears the onus of proving the guilt of
the accused beyond any reasonable doubt.
However, she was constrained
to concede that the conclusion that a court reaches must take into
account all the evidence presented.
Once the State has made a prima
facie case against an accused, that accused must also proffer a
reasonably possible version to
meet that case. As Nugent JA stated in
S v Van der Meyden
1999 (1) SACR 447
(W) at 448F-H:
The
onus
of proof in a criminal
case is discharged by the state if the evidence establishes the guilt
of the accused beyond reasonable doubt.
The corollary is that he is
entitled to be acquitted if it is reasonably possible that he might
be innocent (see, for example,
R v Difford
1937
AD 370
at 373 and 383). These are not separate and independent tests,
but the expression of the same test when viewed from opposite
perspectives.’
Further at 449I-B he stated that:
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.’
[19]
In the
light of the medical evidence and the evidence about the events of
the evening when Tamsin was injured; the inconsistencies
in the
appellant’s evidence and the improbability of her version of
what happened, her version cannot be reasonably possibly
true. It
follows that the appeal must fail on both counts.
[20]
I
accordingly make the following order:
The appeal is dismissed.
ZLL TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: M Kolbe SC
Instructed by:
David H Botha, Du Plessis & Kruger Attorneys, Johannesburg
c/o Symington & De Kock, Bloemfontein
For Respondent: C Coetzee
Instructed by:
The Director of Public Prosecutions, South Gauteng High Court
c/o The Director of Public Prosecutions, Bloemfontein
[I]
Section
115
of the
Criminal Procedure Act 51 of 1977
.