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[2018] ZAKZPHC 70
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Shepard v S (AR369/2016) [2018] ZAKZPHC 70 (7 December 2018)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR369/2016
In
the matter between:
BLAYNE
SHEPARD
Appellant
and
THE STATE
Respondent
ORDER
The following order is made:
(1)
The appeal is
upheld to the extent that the conviction of culpable homicide is set
aside and replaced with one of assault with intent
to do grievous
bodily harm.
(2)
The appellant is
sentenced to two years correctional supervision in terms of section
276(1)(h) of the Criminal Procedure Act on
the conditions set out in
the annexure to this order.
JUDGMENT
Delivered on: FRIDAY,
07 DECEMBER 2018
K
Pillay J (Olsen J concurring)
[1]
On 23 March 2013, Bret Williams (the deceased) was killed after an
altercation with various persons at the Kings Park Rugby
Stadium.
This was a sad and unnecessary death that had its origins in the
deceased meddling in the affairs of others.
The deceased was
aptly referred to by the learned Regional Magistrate as a “nosey
parker”, as “an aggressor”
and “provocative”.
Indisputably this vituperative conduct set in motion a chain of
events that had fatal consequences
for the deceased. How and by
whom he was killed was what the learned Regional Magistrate had to
grapple with when faced with
conflicting medical evidence on the
mechanism of death, and of contradictory eyewitness testimony.
At the end of a lengthy
trial only the appellant who was one of four
accused in the court a quo, was convicted of culpable homicide and
sentenced to three
years’ imprisonment. His three
co-accused were
discharged at the close of the State case. Prior to the commencement
of the trial, charges were withdrawn against
Grant Cramer (Cramer),
who subsequently became a State witness. The appellant was
initially charged with murder and various
other charges but was, at
the end of the State case, acquitted of all but the murder charge.
[2] Pursuant to leave being granted by
the court a quo, the appellant now appeals against the conviction and
sentence. The
facts giving rise to this appeal are summarised
as follows. There were two incidents involving the deceased on that
evening.
The first incident involved an altercation with Cramer
and one Kirsten Cooper (Cooper). The second incident involved
the
appellant and others. I will, for ease of reference, refer
to them as the first and second incidents respectively.
The First Incident
[3] On the aforesaid date, after the
Sharks victory against the Rebels, Cramer who is a close friend of
the appellant celebrated
with various persons at bars within or near
the precincts of the Kings Park Rugby Stadium. Amongst the
people he was with
or met along the way were his girlfriend, Cooper,
Timothy Creighton and his girlfriend, Jessica Brown (Brown), the
appellant and
his erstwhile co-accused Travin Lee Martin, Ross
Hamilton and others. At some stage Ross Hamilton and accused 2 were
embroiled
in an argument. Cooper wanted to intervene resulting
in Cooper and the appellant exchanging insults. The deceased,
who had just emerged from the toilets, enquired aggressively as to
what was going on. Cramer told the deceased to “piss off,
it
doesn’t concern you”. Cooper did not respond to the
deceased prompting the latter to confront her aggressively
with
insulting words. Aggrieved by the insult directed at his girlfriend,
Cramer joined in the brawl. The deceased punched
Cramer and as
he attempted to do so a second time he fell on the tarmac. Cramer
grabbed the deceased and held him in a chokehold
until he was asked
by Cooper to release him as the deceased appeared to lose
consciousness. Cramer did not dispute that the
deceased might
have sustained an abrasion to his left knee. After this
altercation he discovered that a gold neck chain which
was of great
sentimental value to him was missing. Cooper, Travin Martin,
accused 2 and 4 then joined him in the search of
this chain.
Travin Martin and Timothy Creighton, who were also present,
corroborated Cramer on the events surrounding the
first incident.
The Second Incident
[4] Cramer later noticed that
paramedics were attending to the deceased. He heard the
deceased refer to accused 2 in derogatory
terms using sexual slang.
The deceased then punched accused 2, causing the appellant to
intervene. A fight then broke
out involving all the accused.
He saw the appellant, accused 2 and 3 throw punches at the deceased
but was not sure if they
landed. He was engrossed in looking
for his chain. He interrupted his search to notice accused 2
outside the fight,
and attempted to hold him but the latter shrugged
him off and returned to the affray. He particularly took notice
of the
deceased. The deceased was upright, in the vicinity of
the trailer. He later noticed the deceased lying on the ground,
with his feet towards the shed. The appellant and the other
accused had left. He continued the search for five to ten minutes.
He and his companions were then confronted by the security officer
and a Neil Burger (Burger) who was on a golf cart. A report
was
made that the deceased had suffered brain damage. He conceded
that he had sight of statements and photographs of the
deceased
before writing his own statement. He had no discussions with Dr
Hammond or Dr Hattingh. He could not dispute
that the appellant
was wearing slip slops.
[5] With regard to the second
incident, Timothy Creighton stated that when he saw the deceased, he
was lying in a supine position,
with the appellant and accused 2,
stomping and kicking on the deceased who was surrounded by a group of
men. He also saw
accused 4 pick up a piece of concrete.
He was however concentrating on the search for Cramer’s chain.
He did
make a statement, at Cooper’s suggestion, exculpating
Cramer. He did not see the deceased strike accused 2 or hear
the appellant say “Do you want to hit my brother”. He
also did not observe the guards and the paramedics pushing the
deceased or the deceased fall and hit his head on the edge of the
trailer. He had imbibed five double brandies.
[6] Travin Martins saw the paramedics
treat the deceased and saw the appellant and other accused in the
vicinity of the trailer’s
gooseneck. This witness clearly
did not see much of what occurred during the second incident.
Prior to recording his
statement, he was interviewed by Attorney
Jooste and Advocate Jorgensen. Written notes were taken.
About a week later
he was presented with a typed statement which he
had to check and correct before it was commissioned. He stated
that he was
not instructed on the contents of the statement.
This witness was not interviewed by the South African Police
Service.
The trial court accepted that this witness’s
statement was obtained for the purposes of a bail application in
respect of
Cramer.
[7] Cameron Hamilton is a former
police reservist. This witness’s recollection of events
appeared patchy and not too
reliable given that he was on medication
and had consumed alcohol.
[8] Baolo Ifomba (Ifomba) is a
security guard in the employ of Fidelity Security Reaction Unit. He
was called to gate 4 to attend
to an altercation. This witness
also had an imperfect recollection of the persons and events of the
night in question.
He did however confirm a search for a chain,
a verbal argument between the deceased and some men, necessitating
Mike Norman (Norman),
Erick Tshinyama (Tshinyama) and himself forming
a protective barrier around the accused. He heard the deceased
say something
which seemed to annoy one member of the crowd prompting
a person dressed in black, later identified from a photograph as
accused
3, asking the deceased “what did you say”,
repeatedly. The witness was pushed. He fell over the
trailer.
He looked backwards, saw the deceased had also fallen
and was being attacked by the crowd who were kicking and stamping the
deceased
on his ribs and stomach area. He saw one person hold a
brick which he was stopped from throwing. The crowd then moved
away. Paramedics attended to the deceased who subsequently
died. He attended an identification parade but it is common
cause that he identified a person who was not a suspect. He did not
view any CCTV footage.
[9] Tshinyama was also employed as a
security guard by Fidelity. He was with Ifomba and Norman on
roving duties when he was
summoned to the tractor shed to attend to a
fight. He arrived shortly after Ifomba and Norman. On arrival
he found the deceased
seated and being attended to by paramedics. He
could not recall the precise spot where he saw the deceased. He found
Norman and
Ifomba facing four men who wanted to attack the deceased.
There were other civilians standing around. He did not hear the
deceased
insult anyone as he concentrated on the four who were trying
to force themselves past the guards to get to the deceased. He heard
a discussion about a missing chain. The group still wanted to
attack the deceased who was now standing on the pavement near
the
tractor shed wall. In the process, he and the other security guards
were pushing against the appellant’s group causing
Tshinyama to
fall against the trailer thereby injuring his shoulder. Ifomba too
fell onto the trailer. As he lay where he had fallen
he turned his
head to see the deceased standing against the wall but when he got up
the deceased was lying on the ground. He noticed
that the deceased
was being kicked at a speed, too fast to see where the kicks had
landed. He did not see, the deceased (as was
suggested to him) being
pushed and falling against the trailer. As for identifying the
persons he saw kicking the deceased, he
could only recall that one of
them was a well-built male dressed in a pink shirt. This was also one
of the males who pushed at
them earlier. He could not however
identify any suspect in an identification parade. He was not shown
any photograph or CCTV
footage prior to his testifying.
[10] Burger is the general manager of
Fidelity Security Services. On the night of the match he was
patrolling on fields KP6
and 7, on his golf cart when he received a
radio message of a fight near the supporter’s club, to where he
proceeded.
Upon arrival he observed a crowd in front of the
tractor shed. By then the first fight was over. Ifomba,
Norman and
Tshinyama were trying to prevent an attack on the deceased
who stood near the trailer. He saw Cramer looking for his chain
and he proceeded to help him. He suddenly heard a commotion and
noticed that all hell had “broken loose” as a
group of
people rushed towards the tractor shed door where a trailer was
parked. He alighted to intervene but was struck
by someone on
the right side of his face, causing him to fall onto his derriere.
His view was obscured. He lay there
for ten to fifteen seconds
and when he again looked in the direction of the noise he noticed the
deceased lying on his back with
his head towards the east as depicted
in photograph E2. He noticed the appellant kicking and stomping
on the deceased’s
torso. He conceded however that he only
saw the deceased’s body between the pelvis and neck. He
did not see where
the kicks actually landed. He saw Geraldine
Roberts (Roberts), a paramedic kneeling next to the deceased when he
was being
kicked. The witness was confronted about the
different versions regarding the incident which he gave in various
statements
as well as important omissions. The responses
furnished were far from satisfactory.
[11] Keith Stanley Seach was
moonlighting for Fidelity as supervisor/manager of security guards.
He saw the deceased after the first
incident, stand-up before
proceeding, unsteadily towards the pump house, accompanied by Derrick
Banks (Banks) and Roberts, where
he stood against a wall. At that
stage, four men accompanied by Cramer arrived and one of them asked
for a chain. Cramer was also
looking for a chain. The person who
asked for the chain accused the security guards of stealing the
chain. One of the four men
dressed in a pink shirt similar to that in
exhibit “H6”, came around and started speaking to the
deceased. He looked
away to see if the police arrived, when he looked
back to the scene, he saw the deceased standing behind guards. He
initially said
he saw Burger walk past him and proceed to the scene
of the incident, but later recalled seeing Burger being punched and
falling
down. He then concentrated his sight on the man with the pink
shirt. He saw the deceased walk towards the tractor shed where
another fight broke out. He saw the appellant throw a punch at
the temple of the deceased and the deceased fall in front
of the
gooseneck of the trailer. The deceased was kicked. He called for help
but kept his eye on the unfolding scene. He saw the
deceased lying on
the ground being kicked and stamped on the head and chest by persons.
Security guards who attempted to intervene
were pushed and one was
thrown against the trailer. He did not see anyone else falling.
He saw Burger, Norman and Banks being
punched. Banks and Roberts
tried to protect the deceased. He proceeded to the North East corner
of the trailer. The kicking
had stopped, but pushing and
shoving continued. The deceased was now lying with his head
close to the trailer. One member
of the group also picked up a brick
but was stopped from throwing it by Roberts. He noticed the appellant
and others walk away
and give themselves “high five”
gestures.
[12] He could only recall making a
verbal report about the incident. He was not interviewed by
stadium management, Fidelity
or any medical specialist. No CCTV
footage was shown to him. He recalled making a written
statement to Warrant Officer
Pillay. He did not identify anyone
at an identification parade. When confronted by his statement,
he conceded that
he did not mention that one member of the group wore
a pink shirt. Seach’s memory in this regard was only
refreshed
when shown a photograph exhibit “H”. He
stated that he did not mention this because he had “blanked out
quite a bit” which he went on to explain meant that he sought
merely to remember the main points. He disputed that
the reason
for the omission in his statement was due to his being selective or
concocting a story. He could not dispute that
the appellant did
nothing to the deceased or that all four males were involved in the
kicking and stamping. The State recalled
Seach after a
statement exhibit “Q” came to light.
[13] According to the learned
Magistrate this witness was reluctant to return to the witness stand
because he wanted to put the
incident behind him. He stated he
could not recall providing a written statement. He confirmed
that exhibit “QQ”
bore his signature and surmised that he
must have made it in the early hours of the morning following the
incident. The statement
was not in his handwriting. In
response to counsel’s questions whether the statement in
question reflected the truth,
his response was that it could be five
percent of the truth. He conceded also that the information
contained in the statement
could have emanated from someone else.
He highlighted the parts which he believed to be the truth.
[14] Kevin Breckle was at the time of
the incident, employed by Fidelity Security to manage the electronics
division at all their
sites including Kings Park. His role was
to uplift camera footage of the tractor shed area and of the
supporter’s club.
He presented their footage in the form
of exhibit “Z”, which was exhibited to the trial court.
It showed, inter
alia, the appellant and his erstwhile co-accused
leave the stadium. It showed two of the appellant’s former
co-accused mimic
a stamping/stomping action with one leg.
[15] Kim De Villiers, was employed by
a taxi service for inebriated drivers and was at the Kings Park
Stadium on the night in question.
He witnessed parts of the
first incident involving Cramer. After Cramer had released his
hold on the deceased, the deceased
fell to the ground. He
approached the deceased to enquire if the latter was all right but
found that the deceased had passed
out. Five to ten minutes
later he noticed a scuffle erupt between a few white males and four
to ten security officers who
seemed not to have control over the
situation. He did see someone pick up a brick but dropped it
when admonished. He
noticed the deceased lying to the right of
a white trailer bay depicted in photographs exhibit “E13”
and “E2”
and being surrounded by security officers and
paramedics. He did however see a very thick – set bald
man in a pink
shirt, rant and rave whilst flexing his muscles,
uttering threatening words in vulgar language. He left
his card with
a security officer if he needed to be called as a
witness. He did not attend an identification parade enquiry or
view CCTV
footage relating to the incident.
[16] Banks was employed as an
ambulance attendant. He was qualified in intermediate life
support. He attended to the
deceased after the first incident.
He was with Roberts on the night in question. He did a proper
examination of the
deceased, from head to foot. He noticed an
abrasion to one of the deceased’s elbows. He did not
notice any abrasions
on the neck, head or knees. If there were
he would have noticed them. Whilst repacking his medical
equipment, he heard
an argument about a missing chain. A fight
broke out between members of the public and security officers.
The deceased
walked towards the steel door of the tractor shed.
When he looked again he observed the deceased lying on the ground
between
the trailer and the kerb (photograph S4). He advanced
towards the deceased who was being assaulted by white males, one of
whom was the appellant whom he identified as having a large built,
bald head and wearing a pink shirt. The appellant was
stomping
on the deceased’s head with his feet. He was the only one
seen doing so, although his statement refers to
seeing white males
kicking him several times. He also noticed accused 4 holding a
concrete object above his head. However
the latter put it down
without using it.
[17] The fight was over within
seconds. The deceased lay motionless on his left side. It
appeared to the witness that
the deceased tried to get under the
trailer as his head was already underneath it. It would be
incorrect for anyone to suggest
that the deceased was pushed under
the trailer. He rolled the witness onto his back. He
noticed an abrasion to the
deceased’s face and that it bore
parallel lines. He did not determine what caused it. The
deceased was blue around
the mouth. He had no pulse. He
noticed no injuries on the deceased when the latter’s shirt was
lifted.
Despite intervention by a life support paramedic, the
deceased was declared dead. According to the witness the
deceased was
clinically dead before the arrival of the paramedic.
When it was suggested during cross examination that he was lying and
did not know what happened, his response was “I could be
uncertain as to what happened”. He did attend an
identification
parade but did not correctly identify any of the
implicated persons.
[18] The appellant’s version is
that he is a qualified personal trainer. Accused 2 is his elder
brother. He attended
school with accused 3 and 4 and Cramer was
his gym partner. He also knows Cooper, Cameron Hamilton and
Travin Martin but
not Timothy Creighton. He also knew Burger
through an ex-girlfriend. He worked as a Fidelity security
guard in the
past and was given a white short sleeves shirt with the
Fidelity logo on the pocket. He did not meet Keith Seach or any
of
the other security guards. He wore a pink t-shirt on the
night in question and black shoes with back laces as featured in
exhibit “SS”. He confirmed being with accused 2, 3,
4 and Cameron Hamilton at the stadium where, they had a beer
each.
At some stage they proceeded to the Coyote Bar where they imbibed
more liquor. The witness consumed three single
brandies and a
beer at Coyote Bar and a further three to four double brandies and
coke later at Rovers Club. The consumption
of alcohol did not
affect his powers of recollection. He confirmed, in a material
way, most of the sequence of events testified
to by Cramer relating
to the first incident. On his arrival he noticed the deceased
lying in a supine or a starfish position,
with a whitish
form/fluid/substance on his right cheek. He did not have an
opportunity of asking Cramer or Cooper what had
happened as they were
engrossed in looking for a chain. He saw two paramedics
standing nearby with a number of security guards.
They were not
attending to the deceased. He did not approach the deceased but
accused 4, picked up a pair of slops and placed
it near the
deceased’s feat.
[19] During the search for the chain
the witness advanced forwards the guards. He did not know where
the others in his party
were. He noticed Burger standing to his
right next to his golf cart. He did not see Seach or Norman.
He heard
someone suggest that the guards should be searched.
This caused the latter to take offence and become upset. They
advanced
until three or four were, as he described, “in his
face”. The guards began pushing/shoving him and others
with
force. This resulted in chaos with people shouting and
swearing. He could not dispute Ifomba’s evidence that the
crowd and deceased exchanged words or that Ifomba, Tshinyama and
Norman formed a line keeping the deceased and crowd apart, or
that
Ifomba was pushed and fell against the trailer. He pushed back
but saw no guard fall. He noticed the paramedics
pushing but
not at whom. The deceased got up from the first place he had
lain which was three metres diagonally to his left
and walk off
towards the left of the trailer. The deceased then turned and
advanced aggressively towards them. He did
not hear the
deceased say refer to his brother using vulgar language, nor see the
deceased throw a punch at his brother.
The deceased did however
join in the chaos, pushing and shoving and being pushed and shoved in
return. He denied intervening
on behalf of his brother.
[20] According to the witness,
everyone, including the paramedics, guards and members of the public
were pushing and shoving.
He was pushed by a guard against the
trailer and he pushed back. It was pointed out that this
version was not put to any
of the witnesses by his counsel. He
stated that everything happened very fast and he next saw the
deceased lying next to
the trailer from where he never moved again.
Although the fight ended the guards continued shouting and swearing.
He
recalled shouting threatening words back , whilst flexing his
right arm.
[21] He disputed, as was suggested to
him by the State’s counsel, that he had been the aggressor, or
that he assaulted the
deceased in any manner whatsoever. He and
his co-accused thereafter left. He heard the following morning,
that the
deceased had died and contacted Cramer to enquire what had
happened to the deceased. He did not conceal evidence or
persuade
anyone to lie about the matter. Amongst his group, he
was the only one with a bald head and a distinctive pink shirt.
He agreed with the prosecutor that a blow to the head could be
dangerous and that repeated blows could cause death.
Medical evidence
[22] Dr Ashley Sherwin Hammond holds
an MBChB and a diploma in Forensic Medicine. He has been a
full-time medical practitioner
from 1997. He is not a qualified
specialist forensic pathologist. On 28 March 2013 he examined the
body of the deceased.
He recorded his findings on form G7/15
(exhibit “HH”). He confirmed the correctness of the said
findings and that the
photographs in exhibit “F”
correctly reflected the injuries to the deceased as observed by him.
His chief findings
as tabled in exhibit “HH” were:
‘
Deep
scalp bruising left frontal scalp. Subdural haemorrhage and
subarachnoid haemorrhage to the interior temporal lobe. Blood clot
in
the ventricles. Abrasion to the knees and left frontal scalp.’
[23]
He conceded that, bruising under the right eye and to the cheek, as
reflected in the photographs, was not recorded in his report
and
attributed this to confusion caused by lividity. No skull fractures
were noted, although deep scalp bruising was present. An
examination
of the intra cranial contents of the brain revealed a subarachnoid
haemorrhage and subdural haemorrhage on the front
temporal lobes,
both left and right. There was bleeding inside the dura and in the
subarachnoid space towards the front of the
brain. A blood clot was
present in the ventricles, caused by a sudden or violent shaking,
which caused the brain to hit against
the inside of the skull causing
a shearing or rupture of the small blood vessels in the brain.
He opined that this could
have been caused by a severe blow or a kick
to the head or through a motor vehicle collision. The witness
did not believe,
having regard to the injuries and the shape of the
trailer that it was likely that the deceased fell against it.
He felt
that if that happened he would have expected an imprint
abrasion or fracture at the point of contact as the trailer is a
sharp
force. The injuries were more in keeping with blunt force
to the head. He was of the view that had the deceased hit the trailer
that would not have caused such severe injury to the subarachnoid,
subdural and the intra ventricular
aspects
of the brain. He stated that the whole scalp was dissected.
[24] Apart from the injuries noted
there were no others, in particular, to the back of the head. The
blue discolouration of the
lips indicated that the deceased’s
neck had been compressed, causing venous blood to build up in the
head and neck. The neck
structures were intact however and there was
no tracheal haemorrhage. The compression to the neck made no
contribution to the death.
He said that stomping and kicking to the
chest area, could but did not necessarily cause bruising, contusions
and fractures to
the ribs. He attributed its absence to the deceased
anticipating the injuries and tensing his muscles. There were no
obvious fractures
of any bones in the head nor any skull distortion.
According to the witness the bleeding into the ventricles of the
brain was the
more serious of the three injuries and death would have
followed within twenty five or thirty minutes.
[25] The witness was concerned that
the blood sample taken from the deceased had not made its way to the
Forensic Laboratory prompting
him to request an investigation. He did
not record the dimensions of any of the injuries as he regarded them
as superficial and
minor. No x-rays were ordered as there was no
indication that it was necessary. He agreed that the abrasion to the
left frontal
temporal scalp under which he found deep scalp bruising,
appeared to come from four directions. He did not correlate it to a
diamond
pattern. He did not discount the suggestion that this injury
was compatible with a hard impact on grid-like surface, such as found
on the trailer.
[26] Dr Hammond was not asked to
compare the injury on the deceased with the sole imprint of any
shoe. When shown a shoe identified
as the one worn by the
appellant, he stated that he did not consider the markings associated
with the injury to have been caused
by the appellant’s shoe.
The witness was not aware of the practice of taking photographs of a
deceased’s body
prior to rinsing.
[27] Dr Christa Hattingh is a
specialist forensic pathologist employed by the Department of Health
in the Forensic Pathology Services.
She has completed approximately
three thousand post mortems. She was approached for an opinion on two
issues namely:
(i)
The cause and
mechanism of death of the deceased and to comment on the injuries.
(ii)
To comment on
whether the sole cause of the deceased’s death could be
attributed to the assault at the stadium.
[28] She was present during some of Dr
Hammond’s testimony. She was furnished with Dr Hammond’s
post mortem report,
a copy of a photo album compiled by the
investigating officer and the statements of witnesses, Cramer,
Norman, Banks and Roberts.
She was not furnished with Cooper’s
statement. Her conclusion in the report, (exhibit “J”),
which she confirmed
in court was that the deceased’s injury was
caused by head injury, which was due to the application of force.
This
was evidenced by the scalp abrasion, deep scalp bruising and
intracranial haemorrhages. In this case there were no shoe
patterns
which evidenced injuries caused by kicking and stomping.
She stated that the head is very vulnerable to injury, particularly
to acceleration/deceleration and rotational forces because it is
heavy in relation to its size, is freely mobile in three dimensions
and occupies a relatively unstable position.
[29] She agreed with Dr Hammond that
the absence of any wounds, abrasions or contusions to the body and
the limited injuries to
the deceased’s head did not support a
history of prolonged kicking and stomping. She testified that
examination of
the deceased’s clothing was essential to
determine if any injuries correlated with any marks on the fabrics.
It is
not in dispute that in this case there were no marks on the
deceased’s shirt. She conceded that it was possible that
the deceased fell against the bar of the trailer as depicted in the
photographs shown to her. She also agreed that Dr Hammond’s
post-mortem report lacked detail. The skull thickness was not
measured as it should have been done neither did Dr Hammond
measure
the abrasions. With regard to the abrasions to the deceased’s
knees, she stated that they simply indicated
that at some stage
pre-mortem, the deceased had been on both knees.
[30] Dr Steven Naidoo is specialist
forensic pathologist with approximately 20 years’ experience as
a specialist. He
was Professor of Forensic Medicine from 2003
to 2011 but is now in private practise. He is an independent
consultant and
trainer. He has concluded between 10 000 to
12 000 autopsy examinations. His speciality is the
pathology
of trauma and of sudden death. His other interest is
in head injury. He has also contributed to a medical text book,
“Introduction to Medico-Legal Practise” by Professors
Dada ad McQuiod-Mason. In anticipation of testifying in
this
matter the witness read the reports of Dr Hammond and Hattingh,
Professor Botha’s opinion, attorneys notes to him, notes
on the
evidence of Drs Hammond and Hattingh, and Cooper’s statement.
He also had sight of a selection of photographs
and the appellant’s
shoe before compiling his own report (exhibit “TT”).
In addition he had sight of the
trailer depicted on exhibit “S2”
and the instructing attorney’s trial notes on the evidence of
witnesses.
Prior to testifying he also consulted a book on
forensic pathology by Bernard Knight, Mayo and clinical books by
Hutchenson and
Byton as well as physiology books by Hall.
[31] He then compiled a report exhibit
“TT”. He knew both Dr Hattingh and Hammond.
Dr Hattingh was his post-graduate
student. Dr Hammond
occasionally sought his guidance during a post-mortem. Dr
Naidoo did not examine the body of the
deceased nor was he present
during the post-mortem examination. He did not dispute that the
cause of death was a blunt type
head injury. According to him
the injury sustained by the deceased in this case was a high velocity
deceleration injury typically
seen in a motor vehicle accident where
someone crashes against a brick wall and the head hits the windscreen
or the dashboard.
[32] The witness states in his report:
‘
The
intra-ventricular haemorrhage is, in fact, most crucial evidence of
the nature of this brain injury. It donates a deep
type of
shear strain injury which must be considered most typically of a
moving head (not just a mobile one) undergoing either
sudden
acceleration or sudden deceleration strain. Acceleration strain
(mobile head set into very rapid motion) is less likely
in the
context of the scenario of this case. If deceleration (rapidly
moving head coming to sudden rest) is the likely scenario,
the court
must seriously consider an unsupported and
unbroken
fall
to
the ground or against an object. The haemorrhage is due to
bleeding from within the ventricles and the source is not always
clear but may be from the septum pellucidum (midline membrane between
left and right ventricles) or from the corpus callosum.’
The witness testified that Dr
Hammond’s testimony with regard to “a violent shaking
type of injury must be qualified
as the fatal injury in this case was
not due to a “shaken acute syndrome” type of injury but
from severe acceleration-deceleration
type of injury imparted to a
mobile head as in a fall or in a motor-vehicle collision.
[33] He also found it difficult to
reconcile the absence of grime marks on the shirt and the minimal
surface injuries to the head
and torso with possible impacts by fists
and shod feet. He however added the disclaimer that not every contact
blow will cause
bodily injury. Variables such as site of the
body surface, thickness of skin, amount of and nature of underlying
tissue,
age, sex and nature of impact and nature of surface against
which the body surface rests or is propelled can have an effect on
the appearance or not of bodily injuries.
[34]
According to the witness, Dr Hattingh did not clarify the mechanism
of death as opposed to the cause of death which she found
was due to
blunt force injury. He did however agree with Dr Hammond’s
findings that bi-frontal and bi-temporal frontal contusions
are
“characteristically a manifestation of the brain in motion
injury, seen in the mobile head that is moving and coming
to rest
characteristically, or starting from rest and being kicked into
acceleration”.
[1]
With regards to the
bruising noted on the left cheekbone, right lower eyelid, thigh,
elbow and on the side and back of the neck
and forehead, documented
by Dr Hammond, his opinion was that this was normal post-mortem
lividity. This was accentuated because
of the likelihood that
the deceased was positioned with his head slightly lower than his
body due to the sloping surface on which
he lay, although he could
not dispute that the bruising was in keeping with a head injury or
being punched in the face. Dr Hammond’s
report did not,
regrettably, record the presence or absence of post-mortem lividity.
He also conceded that it was unlikely
that a simple drunken fall
would result in the abrasions found on the deceased’s knees
because they were what he termed,
moving abrasions.
[35] The witness pointed out that even
though the survival period between the last alleged stomping on the
deceased and being declared
dead was short, one would still expect to
see bruises to the face and torso and possibly rib fractures even if
they were in the
early stage of development. He would also have
expected to see resistance impact injuries to the deceased’s
back given
that he was lying against coarse gravel. He stated
that the injury on the deceased’s eyelid was more likely to be
lividity
as if it was bruising there would in all likelihood be
fractures to the fragile sinuses. This would have been observed
when
the skull is opened during the post-mortem examination and the
dura removed. It was therefore his conclusion that this injury
was lividity and not bruising. During his evidence in chief the
witness was referred to the statement of Cooper, who stated
that the
deceased appeared to have lost his balance and fell to the ground
with a thud. It looked to Cooper that he hit his
head and that
she never saw him move after that.
[36] Confronted with this version of
events, the witness seemed to suggest that the fact that the deceased
fell, striking the ground
from a standing position is a major
acceleration of the head. The inability of the deceased to move after
that fall typifies brain
stem concussion. His conclusion was that the
direct cause of death was a deceleration head injury and its
occurrence upon impact
from a fall from an upright position,
contributed to by the likely state of the deceased’s
drunkenness, was the only mechanism
of injury. He was of the
opinion that the direct impact of blows or kicks to the head and body
themselves did not cause the
fatal head injury. Although a blow
may have partly contributed to propelling such a fall, he believed
that no single blow
or accommodation of blows or totality of blows
directly caused the deceased’s death in this case.
[37] Despite his strongly held beliefs
on the mechanism of death the witness made concessions during
cross-examination as illustrated
by counsel for the State:
(i)
According to the
learned author Bernard Knight, a mobile head kicked on the floor, may
exhibit the same injuries as one could sustain
in a drunken fall.
(ii)
That impact
abrasions could be consistent with being kicked.
(iii)
That the
discolouration below both of the deceased’s eyes as seen in
exhibit “F” could be bruising.
(iv)
That some of the
abrasions could have been caused by the deceased being kicked with
the front of the shoe worn by the appellant
at the time.
(v)
Significantly he
stated that where there is rapid death there would not be a
manifestation of bruising.
(vi)
Bruising to the
back of the deceased’s arm was typical of a person using elbows
to break ones fall.
(vii)
That the fall
against the trailer scenario is incompatible with the series of
abrasions on the deceased’s left temporal area
as seen in
exhibit “F”.
[38] Whilst Naidoo is clearly an
experienced pathologist, his evidence, like that of Dr Hattingh, has
to be viewed against the fact
that he did not conduct the post-mortem
examination. He based his conclusion primarily or largely from
witnesses evidence,
what he was told by the appellant’s legal
representative, photographs and medical reports
[39]
It is well-established that a trial court not having the benefit of
seeing and hearing witnesses, will largely defer to the
trial court’s
impressions of them. It is only in exceptional cases that a
court of appeal will interfere with a trial
court’s assessment
of oral testimony. This was emphasised in
Parkes
v Parkes
[2]
which quoted with
approval the following passage from a decision of the Privy
Council:
[3]
‘
Of
course, it may be that in deciding between witnesses he has clearly
failed on some point to take account of particular circumstances
or
probabilities material to an estimate of the evidence, or has given
credence to testimony, perhaps plausibly put forward, which
turns out
on more careful analysis to be substantially inconsistent with
itself, or with indisputable fact, but except in rare
cases of that
character, cases which are susceptible of being dealt with wholly by
argument, a Court of Appeal will hesitate long
before it disturbs the
findings of a trial judge based on verbal testimony.’
[40] The appellant in his s 115
statement attacked the investigative process on the basis that there
was a “lack of objective,
unbiased and constitutional
investigative process which impacted on his rights to a fair trial”,
specifically with regard
to the following:
(i)
The failure to
collect, preserve and test tissue and blood samples at the
post-mortem.
(ii)
The failure to
photograph or record the post-mortem process.
(iii)
The conducting of
the post-mortem itself.
(iv)
The holding of an
identification parade after the identities of the accused had been
made public in the press and in open court.
(v)
Investigating any
previous alleged assault of the deceased and the possible effects
thereof on cause and mechanism of death.
Though
these issues were pursued in this appeal as well, the main basis on
which the judgment of the trial court is impugned is
that the State
failed to present sufficient evidence to overcome the onus incumbent
upon it to “prove the guilt of the accused
to the standard of
beyond a reasonable doubt”.
[4]
[41] It is apparent from the judgment
that the learned Magistrate applied his mind to the issues raised but
found that the appellant’s
rights to a fair trial were not
infringed. There is no doubt that the state pathologist’s
functions are curtailed in
some respects by a lack of resources.
Whilst personal initiative could have ensured more was done, for
instance bringing
in a kitchen scale to weigh organs, the alleged
failures in my view, did not impact materially on the appellant’s
right to
a fair trial, given his defence that he did not commit the
offence in question.
[42] On the evidence of the
appellant’s own expert witness, the prior assault (first
incident) had no effect on the cause
and mechanism of death.
Clearly the investigative process was not perfect in this case,
however the failures complained of,
in my view, are not so
fundamental as to have tainted the verdict in any way. The
learned Magistrate comprehensively analysed
the law and facts on this
issue. I find no need to do likewise as it would be a task of
supererogation to undertake such
an exercise.
[43] On the appellant’s version
his face was blurred in the photograph included in the newspaper
articles concerning the incident.
In the circumstances, it is
highly unlikely that the identification of the appellant at any
subsequent identification parade would
have been compromised.
The issue of the trailer being regarded as a vital piece of evidence
only came to light after Cooper
made a statement. By then the
trailer was no longer available to be subjected to inspection. As
correctly pointed out by
the learned Magistrate, there was no
suggestion or allegation by the defence of any irregularity or
impropriety on the part of
the investigating officer or for that
matter of the prosecution.
[44]
The State
prosecutor chose not to call Cooper but made her available to the
defence. The defence did not call her as witness
despite using
the contents of her statement extensively to cross-examine State
witnesses and contending that her statement was
of fundamental and
far reaching forensic significance. The state is not obliged to
call all witnesses, even those adverse
to its case. This was
emphasised in
S
v Van der Westhuizen
[5]
as follows:
‘
Where
an accused is represented, it is not the function of a prosecutor to
call evidence which is destructive of the State's case,
or which
advances the case of the accused. The duty of a prosecutor, to see
that all available legal proof of the facts is presented,
is
discharged by making the evidence available to the accused's legal
representatives; the prosecutor's obligation is not to put
the
information before the court. There is therefore no substance in the
argument that the appellant did not receive a fair trial
because the
State called some witnesses, and not others.’
[45] Cooper is alleged to have stated
in her statement “the guard and the medics were pushing
everyone when the deceased appeared
to lose his balance and fell to
the ground with a thud, it looked like he hit the edge of the
trailer, and I never saw him move
after that”.
[46] Section 186 of the Criminal
Procedure Act (CPA) permits a judicial officer to call a witness if
he/she believes that such a
witness is essential to its decision.
It reads as follows:
‘
The
court may at any stage of criminal proceedings subpoena or cause to
be subpoenaed any person as a witness at such proceedings,
and the
court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the
court
essential to the just decision of the case.’
[47]
It is, as pointed out by the learned Magistrate, that in order to
exercise that discretion judiciously he had to “hold
the belief
that the witness can contribute value to the matter and that his or
her evidence is essential to a just decision.”
[6]
[48]
As emphasised in a number of decisions
[7]
this section
introduces an inquisitorial element to an essentially adversarial
criminal justice system. It perhaps bears repeating
the sage
words of Curlewis JA in
R
v Hepworth
[8]
in relation to the
function of a judge:
‘
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge's position in a criminal trial is not merely that of an umpire
to see that the rules of the game are observed by both
sides. A judge
is an administrator of justice, he is not merely a figure head, he
has not only to direct and control the proceedings
according to
recognised rules of procedure but to see that justice is done.’
[49]
Section 186 clearly affords a trial court a wide discretion to invoke
its provisions which discretion must be exercised judicially
and
reasonably. However as was affirmed in
S
v Gerbers:
[9]
‘…
a
Court of Appeal should remind itself that there were well-known
limits to its powers to gainsay the bona fide exercise by a trial
Court of a judicial discretion vested in it.’
The
need for impartiality when deciding to invoke s 186 to call a witness
has been emphasised in a number of decisions.
[10]
[50]
As to what is essential to the just decision of the case, Heher AJA
in
S
v Gabaatlholwe & another
[11]
stated, inter alia:
‘…
If
the statement of the proposed witness is not unequivocal or is
non-specific in relation to relevant issues it is difficult
to
justify the witness as essential rather than of potential value.’
[51]
In
R
v Jonathan,
[12]
the following
paragraph is of relevance:
‘
But
I repeat that I know of no case, where counsel for the accused
deliberately refrains from calling a witness, in which it has
been
held that it then becomes obligatory on the Court itself to call such
witness.’
[52]
In
Sithole
v S
[13]
a potentially
crucial witness was not called by the state and defence.
‘
[30]
In this case, neither party wished to rely upon the evidence of Mr
Xaba. Neither wanted to call him as their witness. If he
had been
called by the prosecution and he had testified to the version which
the prosecution had expected from his statement, then
the defence
would have attempted to destroy his reliability. If he had been
called by the prosecution and he had not adhered to
the version which
had been expected from his statement, then the prosecution would have
challenged him as a perjurer or, at the
least, as a contradictory and
unreliable witness. If he had been called by the defence and had not
adhered to the statement he
had made, then the prosecution would have
challenged him on the same basis.
[31]
In summary, Mr Xaba was a witness whom neither the prosecution nor
the defence wanted to give evidence and both parties would,
quite
rightly, have done their best to destroy his credibility and the
reliability of his evidence. The court would have been left
with
nothing – no evidence upon which it could rely.’
In this case the trial court felt it
was not entitled to invoke the provisions of section 186 “with
a view to providing the
defence with a possible explanation for the
deceased’s fatal injury or even defence” because to do so
would be “contrary
to well-established procedural principles
that a court should not descend into the dust of the arena”.
[14]
[53] Having considered the above
decisions and the Magistrate’s reasons for not calling Cooper
as a witness in terms of s
186 of the CPA, I conclude that no
misdirection has been established.
[54]
The State in this case bears the onerous burden of proving its case
beyond a reasonable doubt. This was aptly stated
by Plasket J
in
S
v T
[15]
as follows:
‘
The
State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond
a reasonable
doubt. This high standard of proof - universally required in
civilised systems of criminal justice - is a core component
of the
fundamental right that every person enjoys under the Constitution,
and under the common law prior to 1994, to a fair trial.
It is not part of a charter for criminals and neither is it a
mere technicality. When a court finds that the guilt of an accused
has not been proved beyond reasonable doubt, that accused is entitled
to an acquittal, even if there may be suspicions that he
or she was,
indeed, the perpetrator of the crime in question. That is an
inevitable consequence of living in a society in which
the freedom
and the dignity of the individual are properly protected and are
respected. The inverse - convictions based on
suspicion or
speculation - is the hallmark of a tyrannical system of law. South
Africans have bitter experience of such a system
and where it leads
to.’ (Footnotes omitted.)
[55]
There is no concomitant duty on an accused to prove his innocence.
In order to escape conviction, an accused merely has
to give an
explanation that is reasonably possibly true. In criminal cases
the State is not required to overcome every instant
of doubt but
merely to prove its case beyond a reasonable doubt. It simply
requires a judicial officer to be firmly convinced
of the accused’s
guilt. The defence have criticised the trial court’s
findings of “moral certainty”
as to the guilt of the
appellant but this approach is endorsed by the Supreme Court of
Appeal in
S
v Mavinini
:
[16]
‘
It
is sometimes said that proof beyond reasonable doubt requires the
decision-maker to have 'moral certainty' of the guilt of the
accused.
Though the notion of 'moral certainty' has been criticised as
importing potential confusion in jury trials, it may
be helpful
in providing a contrast with mathematical or logical or 'complete'
certainty. It comes down to this: even if there is
some measure of
doubt, the decision-maker must be prepared not only to take moral
responsibility on the evidence and inferences
for convicting the
accused, but to vouch that the integrity of the system that has
produced the conviction - in our case, the rules
of evidence
interpreted within the precepts of the Bill of Rights - remains
intact. Differently put, subjective moral satisfaction
of guilt is
not enough: it must be subjective satisfaction attained through
proper application of the rules of the system.’
(Footnote
omitted.)
[56] In evaluating the evidence of the
witness the learned Magistrate correctly reasoned thus:
‘
In
assessing the evidence, all of it must be considered, that is the
state witnesses and the defence witnesses. Any witness taken
in
isolation may not meet the required standard of proof but when his or
her evidence is considered collectively as part of the
mosaic a
different picture can and often emerge. That is what has transpired
here. Assessed and judged individually it is unlikely
that it can
safely be stated that any state witnesses has established the guilt
of the accused beyond reasonable doubt but collectively,
together
with that part of the accused’s testimony which is not in
conflict with the state case, a picture has emerged which
fits like a
hand into a glove enabling the court to find with the requisite
degree of certainty whether the accused was involved
in the final
conduct.’
[57] In this case the witnesses indeed
gave varying accounts of what precisely happened during the second
incident. These
variations must be viewed against the mobility
of the events that unfolded, the limited visibility and the number of
persons involved
in the affray. Witnesses were viewing the
incident from different vantage points. Some were also worn
down by repetitive
questioning. The appellant himself did not
fare well under cross-examination. He in my view feebly,
attempted to distance
himself from any involvement in the assault.
Despite all the criticisms against the evidence of the State
witnesses, what
was a golden thread amongst some of the witnesses’
evidence is that a big built bald man in a pink shirt was seen
kicking
at the deceased’s upper torso. It was common
cause that the appellant fitted that description. Burger and
Cramer
know the appellant. Whatever flaws there might have been
in their evidence, both identified the appellant as being part of
the
group who were assaulting the deceased. The magistrate’s
finding that the appellant participated in the assault
cannot be
faulted.
[58] Seach’s evidence was, in my
view correctly assessed with caution. This witness was
certainly subjected to intensive
cross-examination to the extent
where he seemed to simply agree with everything put to him.
However, given the various shortcomings
in his evidence which cannot
simply be glossed over, my view is that only parts of his evidence
that are supported by other witnesses
can be believed.
[59]
Medical evidence in a criminal trial has immense corroborative value,
and is often used to demonstrate consistency or inconsistency
with
ocular testimony, as the case may be. The value of such evidence was
stated in the case of
Solanki
Chimanbhai Ukabhai v State Of Gujarat
[17]
as follows:
‘
Ordinarily,
the value of medical evidence is only corroborative. It proves that
the injuries could have been caused in the manner
alleged and nothing
more. The use which the defence can make of the medical evidence is
to prove that the injuries could not possibly
have been caused in the
manner alleged and thereby discredit the eye witnesses. Unless,
however the medical evidence in its turn
goes so far that it
completely rules out all possibilities whatsoever of injuries: taking
place in the manner alleged by eye witnesses,
the testimony of the
eye witnesses cannot be thrown out on the ground of alleged
inconsistency between it and the medical evidence.’
[60] Whilst there is assonance on the
cause of death, the medical evidence viewed in totality does not in
my view establish beyond
a reasonable doubt that the mechanism of
death was as postulated by the State, namely the kicking and stomping
on the deceased’s
head and upper torso. The reason I say
so is that, Dr Hattingh herself conceded that there was no certainly
on the mechanism
of death. According to her whilst the deceased
could have sustained the injury as a result of falling from his own
height
and hitting his head on the trailer this was unlikely because
there was insufficient external bruising to the site of the injury.
Nor was there a skull fracture.
[61] It is so that Dr Hammond found no
corroborating injuries to the deceased in respect of the version of
the state witnesses regarding
the kicking and stomping on the
deceased after he had fallen down.
[62] Doctors Hattingh and Naidoo
expected there to have been, injuries to the upper torso of the
deceased consistent with an aggressive
kicking and stomping as
testified to by some of the witnesses. There were none.
The white t-shirt of the deceased bore
no evidence of shoe or other
marks consistent with shod feet kicking at that apparel. The
deceased had no defence-type injuries
to his arms and shoulders.
Neither were there any rib fractures, skull fractures or
extensive bruising to the head/skull
of the deceased according to
Naidoo. The only significant injury to the head was the injury
to the left parietal area of
the skull of the deceased.
Significantly there were no soft tissues injuries to the delicate
areas of the face of the deceased
either.
[63] It is not in dispute that the
deceased fell close to a trailer. Apart from Seach, whose evidence in
my view was sufficiently
discredited, none of the witnesses saw how
the deceased actually fell during the struggle. The mechanism
of death proffered
by Dr Naidoo, namely the deceased falling and
hitting his head on the trailer or the ground, causing a brain stem
injury resulting
in death is as consistent with the evidence as is
the version of Dr Hattingh, that the kicking and stomping would have
caused the
same result. This dissonance creates doubt about the
actual mechanism of death.
[64] The events surrounding the second
incident were, beset with various problems namely lack of adequate
lighting, the mobility
of the scene, the attack of the deceased by a
crowd of persons, the intervention by security guards and the pushing
and pulling.
There was unfortunately no clear or credible
evidence on exactly when and how the deceased fell. There were
certainly flaws
or deficiencies in the eyewitnesses’ testimony
which the learned Magistrate was alive to.
[65]
It follows that even if this court disbelieves the appellant, the
State still bore the onus of proving each element of the
offence
beyond a reasonable doubt. This was emphasised as follows in
Juggan
v S:
[18]
‘
Although
the appellant was untruthful in regard to the visit to the lonely
spot as has been repeatedly stated, the untruthfulness
of an accused
person must not be taken to the point of relieving the State of the
burden of discharging the onus resting upon it.’
[66] In this case, the State relied on
the so called doctrine of common purpose to prove that the appellant
was a part of a group
that kicked and stomped at the deceased, which
conduct resulted in the deceased’s death. Reverting to
the issue of
onus, here too it was incumbent on the State to
demonstrate how the conduct of each of the participants contributed
to the death
of the deceased, given the evidence that it was not only
the appellant who was kicking at the deceased.
[67]
In
S
v Maxaba en andere
[19]
the court held:
‘
There
is no magic spell contained in the so-called doctrine of "common
purpose". Where there is participation in a crime
then each one
of the participants must satisfy all the requirements of the relevant
definition of the crime before he can be convicted
as an accomplice.
Murder is a consequence crime (gevolgsmisdaad). If the State wishes
to prove common purpose, then it must prove,
not only that each
participant had the necessary intention to kill the victim, but also
that his part therein contributed, actually
or psychically, to the
cause of death.’
[68] In my view the evidence was such
that it did not unequivocally establish that the appellant wrongfully
or negligently caused
the death of the deceased. However what
has been established is that he was kicking at the upper torso of the
deceased.
The extent and force, given the dearth of credible
evidence in this regard has not been established. However
kicking someone
with booted foot is likely to cause serious injuries.
[69] In the circumstances I am
satisfied that an assault with intent to do grievous bodily harm was
proved beyond a reasonable doubt.
The conviction of culpable
homicide has to accordingly be set aside and replaced with one of
assault with intent to do grievous
bodily harm.
[70] Turning to the sentence imposed,
in view of this court setting aside the conviction of culpable
homicide and replacing it with
assault with intent to do grievous
bodily harm it is now free to assess sentence on this offence anew.
It is accepted by
the state that the deceased’s behaviour set
in motion a chain of events that had devastating consequences for
him, regrettably
so.
[71] In respect of the appellant, the
following was submitted:
(i)
He had no previous
convictions nor demonstrated any tendency towards repeated criminal
conduct or violence.
(ii)
Society does not
require protection from the appellant.
(iii)
He is gainfully
employed and therefore a productive member of society.
(iv)
He can be
rehabilitated and catered for outside the prison environment.
(v)
The appellant
should not be punished to assuage the anger of ill-informed members
engaged in social media, nor for any acts committed
by third parties.
[72]
It is always sad when any person unnecessarily loses his/her life.
The effects on loved ones, is devastating. The
anger it
engenders against supposed perpetrators is understandable.
However courts have a duty to achieve a balance when
meting out
sentence by considering the crime, the interests of society including
the victims and the personal interests of the
offender equally.
In this case I accept that there is no evidence that the appellant
has a propensity for committing crimes
of violence. On this
fatal evening, there was much going on. The deceased
unfortunately placed himself at the centre
of issues he had no
business being in. That of course did not justify his death.
Neither did it justify the appellant
and others acting aggressively.
We live in a society where respect for law and order should be
paramount. Knee jerk
reactions to a person clearly under the
influence and behaving badly should as far as possible be avoided,
especially if there
are security guards, as there were in this case,
whose intervention should have been sought. There is no doubt
that the death
of the deceased had a severe impact on the life of the
deceased’s partner, Louise Jane Scott and her minor child, as
set
out in her victim impact statement.
[20]
[73]
In my view no purpose will be served by the incarceration of the
appellant. The conviction of culpable homicide is to be replaced
with
assault with intent to do grievous bodily harm. However the
appellant’s actions require a measure of censure which
will
ensure that he is sufficiently deterred from committing similar acts
in future. Given especially his age, it strikes
me that the
positive intervention which correctional supervision offers is
preferable to the non- proactive approach to reform
reflected in a
suspended sentence, with or without the reinforcement of a fine.
In the court
a
quo
the
defence proposed correctional supervision on the conditions proposed
by the correctional service official whose report was Exhibit
“UU”
before the court. Subject to minor alterations, those
conditions appear to me to be appropriate.
The following order is made:
(1)
The appeal is
upheld to the extent that the conviction of culpable homicide is set
aside and replaced with one of assault with intent
to do grievous
bodily harm.
(2)
The appellant is
sentenced to two years correctional supervision in terms of section
276(1)(h) of the Criminal Procedure Act on
the conditions set out in
the annexure to this order.
K Pillay J
Olsen J
Appearances:
Counsel for
Appellant
: Advocate L Barnard
Instructed
by :
Jaques Botha and Associates
Counsel for State
: Advocate Shah
Instructed
by
: Director of Public Prosecution
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR369/2016
In
the matter between:
BLAYNE
SHEPARD
Appellant
and
THE STATE
Respondent
ANNEXURE
TO APPEAL COURT ORDER
CONDITIONS OF CORRECTIONAL SUPERVISION
[1] With due consideration to his work / general co-operation, and
other relevant circumstances the accused is placed under house
arrest
for the duration of his sentence.
[2] The accused may not change or leave his place of residence
without prior approval except for purposes of essential work or other
reasons as the Commissioner may deem fit.
[3] The accused shall perform sixteen (16) hours of free community
service for each month of the sentence.
[4] The accused shall attend the Orientation Programme of the
Department of Correctional Services, and submit to assessment and
attend other programmes aimed at improving his identified problem
areas, which may be deemed necessary whilst serving his sentence.
[5] The accused shall refrain from using alcohol and/or drugs.
[6] The Commissioner shall ensure that these conditions are
complied with.
DATE
:
07 DECEMBER 2018
[1]
Page 2683 of the record.
[2]
Parkes v Parkes
1921 AD 69
at 77.
[3]
Khoo
Sit Hoh v Lim Thean Tong
[1912]
AC 323
at 325.
[4]
Heads of argument para 19.1 page 38.
[5]
S v Van der
Westhuizen
2011 (2)
SACR 26
(SCA) at 27A-B.
[6]
Page 3004 of the record, page 70 of
the judgment.
[7]
S v Von Molendorff &
another
1987
(1) SA 135
(T);
Ngobeni
v S
(741/13)
[2014] ZASCA 59
(2 May 2014).
[8]
R v Hepworth
1928 AD 265
at 277.
[9]
S v Gerbers
1997 (2) SACR 601
(SCA) at 602F-G.
[10]
S v Masooa
2016 (2) SACR 224
(GJ);
S
v Le Grange & others
[2008] ZASCA 102
;
2009
(1) SACR 125
(SCA)
;
Ngobeni
v S
note
7.
[11]
S v
Gabaatlholwe & another
2003
(1) SACR 313
(SCA) para 6.
[12]
R v Jonathan
1932 TPD 44
at 47.
[13]
Sithole v S
(A149/2010) [2012] ZAGPJHC 158
(12 September 2012).
[14]
Page 3004 of the record.
[15]
S v T
2005 (2) SACR 318
(E) para 37.
[16]
S v Mavinini
2009 (1) SACR 523
(SCA) para 26.
[17]
Solanki
Chimanbhai Ukabhai v State Of Gujarat
(1983)
2 SCC 174
para 13.
[18]
Juggan v S
[2000] JOL 7459
(A) para 12.
[19]
S v Maxaba en
andere
1981 (1) SA
1148
(A) at 1149A-B.
[20]
Exhibit “WW” at page 3269
of the record.