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[2021] ZASCA 134
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Rohde v S (815/2019) [2021] ZASCA 134; 2021 (2) SACR 565 (SCA); [2021] 4 All SA 710 (SCA) (5 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 815/2019
In
the matter between:
JASON
THOMAS ROHDE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Rohde
v The State
(Case no 815/2019)
[2021]
ZASCA 134
(5 October 2021)
Coram:
SALDULKER, VAN DER MERWE, MOCUMIE and MOKGOHLOA
JJA and POTTERILL AJA
Heard:
16
August 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email. It
has been published
on the Supreme Court of Appeal website and
released to SAFLII. The date and time for hand-down is deemed to be
09h45 on 5 October
2021.
Summary:
Criminal law – correctness of
conviction of murder and obstructing the course of justice –
dependent on whether deceased
was manually strangulated –
proved beyond reasonable doubt on evaluation of forensic
pathologists’ evidence –
own observations of trial court
in respect of exhibit not put to witnesses – deceased not
victim of sustained assault –
sentence imposed afresh.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Salie-Hlophe J sitting as court of first
instance):
1
The appeal against the convictions on counts 1 and 2 is dismissed.
2
The appeal against the sentences is upheld.
3
The order of the court a quo in respect of sentence is set aside and
replaced with the following:
‘
(a)
On count 1 the accused is sentenced to 15 years’ imprisonment.
(b)
On count 2 the accused is sentenced
to three years’ imprisonment.
(c)
The sentence on count 2 is ordered to run concurrently with the
sentence on count 1.
(d)
The accused is declared unfit to possess a fire-arm.’
4
The abovementioned sentences are deemed to have been imposed on 27
February 2019.
JUDGMENT
Saldulker
and Van der Merwe JJA (Mocumie and Mokgohloa JJA and Potteril AJA
concurring)
Introduction
[1]
Over the weekend of Friday 22 July 2016 to Sunday 24 July 2016, a
well-known real
estate company held its annual conference at the
Spier Hotel near Stellenbosch in the Western Cape. Mr Jason Thomas
Rohde, the
chief executive officer of the company, attended the
conference. His wife, Ms Susan Francis Rohde, accompanied him to the
venue
and attended the social events associated with the conference.
During the morning of 24 July 2016, however, Ms Rohde (the deceased)
was found dead in the bathroom of their suite at the hotel. This was
shocking news, all the more so because the deceased was only
47 years
of age; the caring mother of three adolescent daughters; in excellent
health and a strong-willed and tenacious person.
[2]
In due course Mr Rohde (the appellant) was charged in the Western
Cape Division of
the High Court with the murder of the deceased
(count 1) and with defeating or obstructing the course of justice
(count 2). Count
2 was based on the allegation that subsequent to the
murder of the deceased, the appellant had rearranged the scene of the
crime
in an attempt to represent that the deceased had committed
suicide. The matter proceeded to trial before Salie-Hlophe J. After a
protracted hearing the trial court convicted the appellant on both
counts. It sentenced him to an effective term of imprisonment
of
20 years, that is, 18
years’ imprisonment on count 1 and five years’
imprisonment on count 2, of which three
years’ imprisonment were ordered to be served concurrently
with
the sentence on count 1. The trial court refused the appellant’s
application for leave to appeal against the convictions
and
sentences, but this Court subsequently granted him such leave to
appeal.
[3]
The issue at the heart of the appeal is whether the deceased died as
a result of smothering
and/or manual strangulation, as the respondent
alleged, or whether she committed suicide by hanging herself from a
hook affixed
to the inside of the bathroom door with the use of the
cord of an electric hair curler, as was the appellant’s case.
The
central question is whether the respondent proved beyond a
reasonable doubt that the deceased had been killed or whether there
was a reasonable possibility that she might have committed suicide.
If it was proved that the deceased had been smothered and/or
throttled to death by hand, the convictions on both counts must
stand. That is so because there is no doubt that only the appellant
could have killed the deceased and altered the crime scene to
resemble a suicide by hanging. If, on the other hand, there is a
reasonable possibility that the deceased took her own life, the
appellant, would, of course, be entitled to an acquittal on both
counts. As we shall show, the answer to the question turns
principally on the expert forensic pathological evidence, which we
analyse in detail below. The evidence of the pathologists must be
considered against the background and in the context of the evidence
set out below.
Background
[4]
During the middle of 2015, the appellant entered into a clandestine
extramarital affair
with a co-employee, Ms Jolene Alterskye. This was
revealed to the deceased on 28
February 2016, when she discovered a card that Ms Alterskye had left
for the appellant in his luggage. True to her character, the
deceased
immediately confronted the appellant. The appellant admitted the love
affair. On the instructions of the deceased he called
Ms
Alterskye there and then, with his cell phone on speaker, and
called
off the affair. Nevertheless, as could be expected, the appellant’s
affair had a profound effect on the deceased’s
emotional state
and on the state of their matrimonial relationship. As a result, the
deceased attended several sessions with a
psychologist, Ms Jane
Francis Newcombe. The couple also underwent marriage counselling
under the guidance of Ms Carol Nader. Both
Ms Newcombe and Ms Nader
testified at the trial. Unbeknown to the deceased and to Ms Newcombe
and Ms Nader, however, the appellant
had in the meantime rekindled
the love affair with Ms Alterskye.
Evidence
concerning the deceased’s mental state
[5]
Ms Newcombe is a psychologist that the deceased consulted. They had
eight sessions
since May 2016. During these sessions the deceased
informed Ms Newcombe that her husband had an extramarital
relationship with
Ms Alterskye. The affair had begun in June 2015.
Although the appellant made a commitment to stop the affair, the
deceased found
it difficult to cope with the fact that the appellant
had lied to her, struggled to overcome the appellant’s
infidelity and
to cope with the hurt and anguish caused thereby.
[6]
The deceased said that the appellant was frustrated about her
anxieties and was irritated
with her constantly talking about the
affair. The deceased wanted to repair the relationship with the
appellant but found it difficult
to manage the anger and the turmoil
that she felt. She said that the affair had turned her life upside
down. The deceased feared
that she and the appellant would continue
to treat each other badly, that she would continue to live in fear
and that her family
would be exposed to the tension at home. Their
marital relationship had been loving, but became distant.
[7]
The deceased was anxious when the appellant travelled to Cape Town
for his work. She
did not tell her family or friends about the affair
lest the appellant would be held responsible or disliked. All their
friends
saw them as a perfect couple. There was no one to talk to
about what was happening to her emotionally. This was distressing to
her as she was trying to deal with her problems on her own.
[8]
The deceased informed Ms Newcombe that the appellant was angry
because she wanted
to accompany him to the conference in Stellenbosch
and was looking for reasons for her not to attend. The deceased
wanted to attend
the conference for her and the appellant to be seen
as a strong, intimate couple and so that Ms Alterskye would not think
that
there was space for her to be in a relationship with the
appellant.
[9]
In the last session with Ms Newcombe, there was a discussion to the
effect that if
she discovered that the affair was still ongoing, the
deceased planned to leave the conference and go to her sister who
resided
in Cape Town. On the Friday evening of the conference, the
deceased called her from the Spier Hotel and told her that she had
been
complimented at the conference for being beautiful and that she
had no reason to feel threatened by younger women. Ms Newcombe
considered that the deceased was distressed, anxious but not
depressed. They had discussed that the deceased had nothing to be
ashamed about and was entitled to be there. During the conversation
between her and the deceased, which lasted about ten minutes,
the
deceased came across as being in control and ready to engage in the
activities of the evening at the hotel. Later that same
evening, she
received a message from the deceased that said that she had greeted
Ms
Alterskye and that she wished she never had to meet her again.
[10]
Ms Newcombe was of the view that the deceased had not given up on
life and had several protective factors
which would have prevented
her from being suicidal. The
deceased was very involved with and invested in her children. She
cared about their development and discipline. She was involved
in
charitable work in her community. She
had close friends and was
well liked by others. There was no evidence
of impulsivity or acting out behaviour. She progressed well during
therapeutic sessions,
and had no chronic mental challenges. She gave
no indication of potential suicidal behaviour.
[11]
Ms Nader was a marriage counsellor to the appellant and the deceased.
They had engaged her in marriage
counselling sessions with a view to
restoring their marriage relationship. Their marriage had taken a
strain as a result of the
appellant’s extramarital affair. Her
early impressions of the behaviour of the deceased during the
sessions concerned her,
and she referred the deceased for onward
psychological and medical intervention. Despite Ms Nader’s
advice not to do so,
the deceased insisted to attend the upcoming
conference at Spier. This took place during their last session on 20
July 2016. She
was informed by the appellant on 27 July 2016 that the
deceased had committed suicide.
[12]
Dr
Larissa Panieri-Peter is a forensic psychiatrist. She confirmed that
the appellant had during September 2016 been referred to
her for an
independent psychiatric evaluation. The purpose was for her to
conduct a broad forensic psychiatric assessment as well
as to comment
on any findings that might or might not in forensic psychiatric terms
be congruent or incongruent with an intimate
partner homicide. In
addition, she was requested to conduct a retrospective independent
psychiatric assessment, a so-called psychological
autopsy, of the
deceased, based on her known history. She was also specifically
requested to comment on any features pertaining
to the deceased that
might or might not, in forensic psychiatric terms, be congruent or
incongruent with suicide.
[1]
[13]
According to Dr Panieri-Peter, there was evidence from observed
facts, reports of professionals, the
appellant, other persons closely
linked to the appellant and previous witness testimonies, that the
affair resulted in a drastic
change in the deceased’s
demeanour. In addition, Dr Panieri-Peter considered that the
deceased’s insecurities, vulnerabilities,
genetic risk factors
to suicide, narcissistic traits, perfectionism and need for the world
to see her as being perfect, resulted
in the deceased suffering from
major depression which increased her risk of suicide.
[14]
She disagreed with Ms Newcombe that the deceased was not a suicide
risk. Even though she confirmed
that Ms Newcombe was in a better
position than her to make an assessment, because she had consulted
with the deceased personally,
she believed that the deceased was not
properly assessed by the psychologist. However, Dr Panieri-Peter’s
evidence was based
on what she had been told by unidentified and
identified people. The identified
persons did
not include family or close friends of the deceased,
except for one of her daughters. They elected not to be interviewed
by Dr
Panieri-Peter.
[15]
Prior to the commencement of the evidence of Dr Panieri-Peter,
counsel for the respondent, who had
been furnished with her report,
indicated that he objected to admission of evidence in accordance
with the report. The trial court
ruled, however, that it would allow
the evidence and that it would ‘decide ultimately what weight
to attach to the evidence
of this witness’. The witness
proceeded to give the evidence set out above. She
was nevertheless not permitted to conclude her evidence. When the
court reconvened on the following morning, the trial judge, without
affording counsel an opportunity to address her, made the following
ruling:
‘
In
view of the fact that this is my attitude, and unless there’s
anything that this witness would like to draw to the Court’s
attention other than what’s set out in the report further
examination is disallowed. It follows that Mr van Niekerk is not
required to cross-examine this witness and this Court furthermore has
no questions for this witness.
Accordingly
this witness would be excused, thank you.’
We
shall revert to the reasons for and the effect of this ruling.
Factual
evidence
[16]
It is common cause that the appellant called the reception desk at
the hotel at 08h22 on 24 July 2016
for assistance to open the
bathroom door of the suite. Mr Desmond Daniels, a maintenance worker,
was dispatched to unlock the door.
He testified that he had received
a report that the bathroom door could not open. He went to
the
room and knocked on the door, which was opened by the appellant
.
He testified that the appellant
informed him that the bathroom door could not open. He turned the
handle of the door but the door
could not open. He used a screwdriver
to open the door.
[17]
On opening the door, he saw a person’s legs on the floor under
the basin. He opened the door
approximately 15 centimeters.
The
door opened with ease and there was no resistance when he pushed the
door open.
He saw the person’s legs
from the knees to the feet. The appellant called out to the deceased
and went past Mr Daniels into
the bathroom. He waited outside the
bathroom, where he faced the wall. After the appellant went into the
bathroom, there was silence
for about 2 to 3 seconds, then the
appellant called him to come and help him.
[18]
When he entered the bathroom the appellant asked him to assist in
removing an electric cord from the
neck of the deceased. The
appellant held her under the arms from the back so that she faced the
witness. The deceased was completely
naked and not breathing, and
there was a cord around her neck. He illustrated how the cord
was hanging around the deceased’s
neck and from the hook behind
the door. The cord was not tight around the neck as he could remove
it easily with the appellant
holding the deceased. Mr
Daniels removed the cord and then went out of the bathroom. The
appellant remained in the bathroom with the deceased in his arms.
[19]
He confirmed that the door could be unlocked or locked from the
outside by using a screwdriver, teaspoon
or coin.
Under
cross-examination, he said that he was not told by the appellant that
there was someone inside the bathroom. He opened the
door and the
body was not against the door.
[20]
Mr Mark Thompson knew
the appellant and worked with him. He attended the conference at the
Spier Hotel. After breakfast on Sunday
24 July 2016 he heard from
colleagues that there was trouble in the appellant’s room. He
went there and arrived at the room
at approximately 08h32. He saw the
deceased’s body lying on the bathroom floor and the appellant
seated next to her. The
appellant asked for help. He had never
performed
cardiopulmonary resuscitation
(
CPR), but he felt he had to do something
and proceeded to heavily compress the deceased’s chest and to
blow into her mouth.
He attempted to resuscitate her for between half
an hour and 45 minutes. He realised that the deceased’s body
was cold and
that she was dead. During this time the appellant also
blew into the deceased’s mouth. The deceased’s nose began
to
bleed and the witness wiped off the blood with a tissue and
started to compress her chest again. Under cross-examination he said
that even though his arms were aching and he knew that the deceased
was dead, he kept going with the CPR-attempt.
[21]
Mr Peter Norton, who is married to the
deceased’s sister, was notified on the Sunday morning of the
death of the deceased.
He went to the Spier Hotel and found the
appellant there with other relatives, including the father of the
deceased, Mr Neville
Holmes. Mr
Holmes enquired from the appellant
as to what had happened. The
appellant explained that he and the deceased had had a fight. Mr
Holmes asked to see the appellant’s
hands. Mr Norton said that
he looked at the appellant’s hands when he showed them to Mr
Holmes, and that there were no marks
on his hands. The evidence of Mr
Norton was not disputed.
[22]
It is necessary to make reference to the evidence of Captain Marius
Petrus Joubert and of Colonel Sharlene
Otto. Captain Joubert is an
expert in forensic crime scene and bloodstain pattern analysis.
Colonel Otto is an expert in DNA analysis.
The evidence of these
witnesses was not disputed. Captain Joubert attended the scene on the
afternoon of 24 July 2016. He found
the body of the deceased still
lying on the bathroom floor. He
observed several bloodstains at the scene. A number of the
bloodstains were on the floor in the bedroom, in the passage between
the bedroom and the bathroom and in the bathroom. He also found
bloodstains on a pillowcase on the right-hand side of the bed
(looking at it from the foot), on a pillowcase on the floor to the
right of the bed, as well as on the bedsheet and duvet cover.
Captain
Joubert took extensive photographs of the scene, including of the
body of the deceased and of the bloodstains.
[23]
Colonel Otto analysed samples that had been taken from the
bloodstains. She found the DNA of the deceased
in the bloodstains on
the floor of the passageway and bathroom, as well as on the duvet
cover, the bedsheet, the pillowcase on
the bed and the pillowcase on
the bedroom floor. She also detected the DNA of the appellant in
samples taken from the bloodstains
on the bathroom floor, the duvet
cover and the pillowcase on the bedroom floor. Captain Joubert
expressed the opinion that the
bloodstains that had emanated from the
appellant were caused by ‘most probably a very insignificant
small cut’ that
the appellant may not have been aware of at the
time. He also said that the appellant’s blood may have been
deposited at
any stage during his stay in the room, that is, from
Friday 22 July 2016. It was common cause that scrapings that had been
taken
from underneath the fingernails of the deceased contained only
her DNA.
[24]
In his defence, t
he appellant testified
that he had met the deceased in 1989, and they had married in 1993.
They lived in Australia for some years,
after which they returned to
South Africa. They had three daughters: their first daughter and then
twin daughters. He
described the deceased as a
perfectionist who was committed to her goals. She would deal with
confrontation head on, whilst he
would shy away from it. He testified
that their relationship had its ups and downs. Whilst their verbal
altercations were awful,
they never escalated into physical violence.
He said that the deceased was devastated and was consumed by his
affair with Ms Alterskye.
Their relationship suffered as the deceased
vacillated between anger and anxiety, which was exacerbated by him
withdrawing emotionally
from her. Although they attended sessions
with a marriage counsellor, he continued with the extra-marital
affair. He admitted that
he had led a double life, lying to the
deceased, his therapist and the marriage counsellor. He testified
that the deceased had
insisted on attending the conference at the
Spier Hotel. The deceased wanted to ensure that he was not seeing Ms
Alterskye and
also to show that he and the deceased were together.
However, the appellant was afraid that the deceased would confront Ms
Alterskye
and cause a scene.
[25]
They arrived at the Spier Hotel at noon on the Friday. They attended
the award ceremony on the Saturday
evening, which ended at about
22h30. On their way to their hotel room, two co-employees who passed
them, invited him to join them
at an after-party. The
deceased insisted that they return to the suite and would not let
him
go. Whilst the deceased was undressing he went into the bathroom and
began to type a message to Ms
Alterskye on his cell phone. The deceased became aware thereof. The
deceased was enraged. He retaliated verbally, and wanted to
leave the
suite. The deceased attempted to physically prevent him from leaving
the room. They physically grabbed at and pushed
each other. In order
to get her out of his way, the appellant grabbed the deceased by the
neck and shoved her. During the altercation
she was also struck on
the side of her face by the soft part of his forearm. He insisted
that the deceased had not been injured
by these actions at all.
[26]
He managed to leave the suite. The deceased followed him. She was
wearing a white towelling gown and
no shoes. He got to the room where
the after-party was being held and sat on the bed opposite Ms
Alterskye. The deceased stood
in the doorway telling him to leave the
room. He was embarrassed and was afraid that there would be an
altercation between Ms Alterskye
and the deceased. He got up and left
the room. On the way to their room, the deceased grabbed him from
behind. He swung his arm
back and hit her on the nose with his elbow.
Her nose did not bleed. On the way the deceased also fell between a
small ledge and
a flower bed and cut her toe. In the hotel room the
deceased complained about her bleeding toe. He also noticed a graze
on her
left eyebrow. He
undressed
and got into the bed. He told the deceased that they were
‘finished’. She
continued to rant, calling him an adulterer and a cheat.
[27]
He fell asleep and did not know at what time the deceased went to
bed. The following morning at 7 am,
the deceased woke him up and
informed him that she had received messages from Ms Alterskye. The
deceased was furious and continued
to rant. He saw the deceased walk
towards the bathroom and heard her shut the door. He fell asleep
again. Sometime later he woke
up, and tried to get into the bathroom
to prepare for the conference breakfast programme. He called out to
the deceased to open
the door. He thought she was having a bath. He
got dressed. He then phoned the deceased and heard her phone ringing
in the bathroom.
He became concerned and called reception for a
maintenance person. He then tried to push the bathroom door
open, kicked it
and nudged it with his shoulder.
[28]
Mr Daniels arrived and the appellant informed him that the bathroom
door was locked. Mr Daniels unlocked
the door and stepped back. The
appellant opened the door a couple of inches, until the door was
blocked. The door only partially
opened as the deceased was behind
the door. The deceased was hanging behind the door in a crouched
position. He picked up the deceased
and called Daniels to assist him,
as he would not have been able to remove the cord from her neck. It
was not a loose knot but
was very tight around her neck. He testified
that Mr Daniels ‘wiggled’ the knot and slipped it over
her head.
[29]
He testified that the cord depicted in photographs taken by the
police is exactly how the cord was
tied to the hook and how the cord
was left. He indicated that he had no recollection of how many times
the cord was wrapped around
her neck. However, he was certain that
the tension was taut. He immediately laid the deceased down. Before
he proceeded with mouth-to-mouth
breathing and chest compressions, he
noticed saliva coming out of the left side of the deceased’s
mouth. He had not previously
done CPR. He
blew into her mouth and continued to do this until Mr Thompson
arrived. He, together
with Mr Thompson, continued performing CPR
until the paramedics arrived, who after performing certain tests
declared the deceased
dead on the scene. He denied having caused the
deceased's death, in any manner, and further denied obstructing the
course of justice
by tampering with the scene.
Pathologists’
evidence
[30]
Four specialist pathologists testified at the trial. The respondent
called Dr Akmal Coetzee-Khan and
Dr Deidrè Kay Abrahams. Dr
Geanas Perumal and Dr Isak Adriaan Johannes Loftus testified for the
defence.
[31]
Dr Coetzee-Khan testified that he was employed by the Department of
Health of the Western Cape Provincial
Government at the Vredenburg
Forensic Pathology Laboratory. Its area of responsibility included
the district of Stellenbosch. Dr
Coetzee-Khan is an experienced
forensic pathologist. By July 2016 he had performed nearly 3 000
medical-legal post-mortem
examinations. These included a significant
number of cases of hanging, strangulation and suffocation.
[32]
At the request of the South African Police Service (SAPS), Dr
Coetzee-Khan attended the scene at the
Spier Hotel on 24 July 2016.
He arrived there at approximately 12h45. He made notes of his
observations immediately after the completion
of his inspection of
the scene. He made use of these notes to compile an incident scene
report on 28 July 2016. The injuries to
the deceased that he had
observed on the scene were more fully described in the report of the
post-mortem examination of the body
of the deceased that we shall
refer to shortly. However, there are a few aspects of Dr
Coetzee-Khan’s incident scene report
and his evidence in
respect thereto, that need mentioning in the light of the argument
presented to us on behalf of the appellant.
[33]
In the incident scene report, Dr Coetzee-Khan stated that the death
of the deceased took place at approximately
05h40 on 24 July 2016. In
his evidence in chief he explained that he had based this estimation
on a calculation that death had
occurred 7 hours and 30
minutes prior to 13h10 (when the calculation was made). He said that
this meant
that there was a 95 percent probability that death
occurred at 05h40, with the possibility of a 2.8 hour (2 hours
and 48
minutes) deviation either way.
[34]
During cross-examination, however, he conceded that he had
misinterpreted the chart generally used
for calculating estimations
of this nature (referred to as a nomogram). The nomogram provides a
crude estimate of time of death
based on the actual or adjusted
rectal temperature of the body, the mass of the body and the relevant
ambient temperature. Dr Coetzee-Khan
conceded that on the
temperatures and mass that he had applied to the nomogram, he should
have said that there was a 95 percent
probability that death had
occurred during the period from 2 hours 48 minutes prior to 05h40 to
2 hours 48 minutes subsequent to
05h40, that is, between 02h52 and
08h28.
[35]
Dr Coetzee-Khan also stated in the incident report:
‘
Post-mortem
lividity is well established, fixed and located posteriorly with
contact pallor over the shoulder blades and buttocks.
There is no
lividity noted anteriorly over the lower limbs. The features of
lividity is not consistent with death in an upright
position. The
post-mortem lividity would indicate death in a supine and lying
position.’
He
reiterated this position in his evidence in chief.
[36]
Lividity is reddish or blueish colouring caused by hypostasis.
Hypostasis can for present purposes
be described as the accumulation
of blood in the lower parts of a body after death, as a result of
gravity. The parts of the body
that were in contact with the relevant
surface at the time when hypostasis developed would typically not
exhibit lividity but pallor
(paleness). Post-mortem lividity
generally commences within 30 to 60 minutes after death, takes about
three to four hours to establish
and should be completely established
after about six hours.
[37]
During cross-examination Dr Coetzee-Khan accepted that hypostasis and
lividity could only indicate
the position of the body at the time
when they developed. Thus, if a person dies in a vertical position
but the body is within
30 to 60 minutes thereafter placed in a
horizontal position, lividity would be established in the horizontal
position. In the light
hereof, Dr Coetzee-Khan conceded that the
lividity that he had observed could be consistent with the deceased
being placed on her
back on the bathroom floor within 30 to 60
minutes after she had died as a result of hanging.
[38]
In the incident scene report Dr Coetzee-Khan stated that he had
recommended to the SAPS that the case
be investigated as a possible
homicide, that the appellant be examined for injuries and that his
passport ‘be removed until
investigative process is complete to
prevent him fleeing the country’. When he was taken to task in
cross-examination for
making these recommendations, he said that the
first two recommendations had been based on his observations at the
scene and the
last on his previous experiences when potential
suspects had fled the country. He commented that it was up to the
SAPS to accept
or ignore the recommendations.
[39]
Dr Coetzee-Khan performed the autopsy on the deceased on 26 July 2016
at the Paarl Forensic Pathology
Laboratory. He continuously made
contemporaneous notes of his observations and findings during the
procedure. He used these notes
to compile the formal medical-legal
post-mortem examination report that was handed in as an exhibit at
the trial. More than 150
colour photographs that had been taken
during the autopsy, were also handed in as exhibits.
[40]
External examination of the body by Dr Coetzee-Khan revealed that the
deceased had sustained multiple
fresh bruises, abrasions and scratch
marks. In view of the findings of the court a quo that we shall deal
with in due course, it
is necessary to tabulate these injuries. There
were abrasions to the right inferior temporal scalp and right lateral
upper neck.
There was a scratch mark on the angle of the right lower
jaw, a scratch mark on the left lower jaw and three scratch marks on
the
left interior neck. Dr Coetzee-Khan opined that the scratch marks
were caused by fingernails. He also observed a haematoma to the
left
upper eyelid with an associated abrasion. This indicated blunt trauma
to the face.
[41]
He noted an abrasion on the left shoulder with associated bruising.
These injuries indicated blunt
trauma in the nature of having fallen
on or been dragged over a rough surface. There was bruising of the
left knee and anterior
lower legs. He found bruising and abrasion
marks on the knuckles of the left hand, as well as bruising of the
left wrist and forearm.
The injuries to the arm, wrist and hand were
defence type injuries. Dr Coetzee-Khan noted small abrasions on the
big toe and second
toe of the left foot and the second toe of the
right foot. It was accepted at the trial that the deceased was a
person that bruised
easily. When the appellant’s aforesaid
version was put to Dr Coetzee-Khan, his response was to the effect
that he accepted
that most of the aforementioned bruises and
abrasions (but not the scratch marks) could be consistent therewith.
[42]
Dr Coetzee-Khan testified that there was a contusion of the posterior
scalp. A
contusion usually means a bruise (haematoma) that does not involve
the skin. This was an indication of blunt force to the back
of the
head. When this was questioned in cross-examination, Dr Coetzee-Khan
convincingly explained that he had cut into the scalp
contusion to
ensure that it was not an artefact (a defect or abnormality that
occurred after death).
[43]
He detected fractures of the third, fourth and fifth ribs anteriorly
on the right-hand side, with surrounding
haemorrhages (bleeding) of
the intercostal muscles. He also observed haemorrhages of the right
anterior chest wall which was indicative
of blunt force or trauma to
that side of the chest. He conceded that the rib fractures and
associated haemorrhages might have been
caused by a vigorous attempt
at CPR, especially by an unskilled person. He said that there was no
fracture of the left ribs and
pointed out that this was borne out by
the relevant photographs. He further testified that there was
contusion of both lungs anteriorly.
He accepted, however, that CPR
could also have caused the bruising of the lungs.
[44]
Dr Coetzee-Khan noted pallor over the tip of the nose, as well as the
upper and lower lips. The nose
was also slightly deviated to the
right. He said that in combination with pharyngeal soft tissue
haemorrhages and congestion (increased
blood circulation) at the base
of the tongue, these features were consistent with external airway
obstruction (smothering). He
did also say, however, that on its own,
pallor is not diagnostic of smothering and that congestion is a
non-specific indication
of asphyxia (lack of oxygen).
[45]
There was no food in the stomach. It did, however, contain
approximately 100 millilitres of fluid consisting
predominantly of
blood. In addition, the small intestines contained 100 to 200
millilitres of altered blood. As there was no source
of this blood in
the digestive channel (such as an ulcer), the deceased must have
swallowed the blood. This
meant that over a period of time she had swallowed what was referred
to in evidence as a cup of blood (the ingested blood). She
could only
have done so whilst alive. Dr
Coetzee-Khan’s opinion was that the contusions of the lungs had
been the source of the ingested blood. He said that she had
most
likely coughed up the blood before ingesting it.
[46]
Dr Coetzee-Khan proceeded to give a detailed description of a
ligature imprint on the neck of the deceased.
In this regard the
expert witnesses were agreed that in the case of hanging with a
ligature around the neck, friction would generally
cause abrasion
(removal of the superficial layer of the skin), leading to vital
reaction of the skin and tissue affected by the
ligature. The vital
reaction would cause the ligature imprint post mortem to have a
parchment-like (parched) and leathery appearance.
If, on the other
hand, a ligature was applied post mortem, there could be no vital
reaction and the ligature imprint would have
a blanched or pale
character. There may in such a case be some redness above and below
the ligature mark, but that would not be
vital reaction but simply
displacement of the blood from the blanched area (hyperaemia). One
could feel the parched and leathery
character of an ante-mortem
ligature mark. It therefore goes without saying that for purposes of
determining whether a ligature
imprint was made before or after
death, a physical examination thereof should be preferred over the
viewing of photographs of the
ligature imprint.
[47]
The witness testified that the ligature mark was incomplete. It was
situated only on the front and
left sides of the neck. It was put to
Dr Coetzee-Khan that Dr Perumal had observed a more or less
horizontal linear mark at the
back of the neck and he was shown
photographs thereof. He responded that the mark might have been an
artefact caused by the wooden
block that had been placed underneath
the neck/shoulder area for purposes of dissection of the neck. He
pointed out that the mark
at the back of the neck on the photographs
did not appear parched or leathery.
[48]
The mark was more or less horizontal but sloped slightly upwards
where it terminated just before the
right ear. On the left, it did
not enter into the hairline. He said that the mark was not parched or
leathery. He testified that
the reddened area that could be seen
above and below the ligature mark on the left side of the neck, was
not vital reaction but
post-mortem displacement of blood. He said
that in his experience the use of the cord of the electric hair
curler on the scene
for hanging, would, unlike a softer ligature such
as a scarf, have caused friction abrasion. Thus, the absence of vital
reaction
and resultant parched and leathery imprint was not
consistent with ante-mortem application of the ligature.
[49]
The experts also agreed that in attempting to determine whether this
was a case of hanging or manual
strangulation, it was crucial to
perform a bloodless neck dissection. The essence of
this procedure is the creation
of a bloodless field by draining as
much blood as possible from the neck area, followed by a layered
dissection of the muscles
and tissue of the neck. Because the neck
tissue is dissected layer by layer, it is not possible to repeat this
procedure.
[50]
During the bloodless neck dissection performed by Dr Coetzee-Khan, he
detected multiple haemorrhages.
He detected these haemorrhages at the
following locations in the neck: (a) the right sternocleidomastoid
muscles; (b) the left
sternocleidomastoid muscles; (c) the left
anterior neck muscle under the jaw; (d) the left anterior muscles of
the cervical spine
column; (e) the right submandibular gland; (f) the
left para-tracheal lymph node and soft tissue; and (g) the left
thyroid-hyoid
ligaments and left side of the thyroid gland.
[51]
He also observed a fracture of the left superior horn of the thyroid
cartilage, with surrounding haemorrhages,
indicative of ante-mortem
fracture. He dissected the hyoid bone out. This is a u-shaped bone
between the chin and the thyroid gland
that supports the tongue
muscles. The hyoid bone was intact. This was clearly depicted on a
photograph. There were, however, haemorrhages
to the left of the
hyoid bone.
[52]
For convenience, and unless the context indicates otherwise, we refer
to the fracture of the thyroid
cartilage and the aforesaid
haemorrhages collectively as ‘the neck injuries’. All the
neck injuries were located well
above the ligature mark. Some of them
were directly underneath scratch marks that we have referred to.
Importantly, a number of
the neck injuries were situated deep into
the structures of the neck. The neck injuries thus indicated that
considerable force
had been applied to the neck that was unrelated to
the ligature imprint. The neck injuries were situated on both sides
of the neck
and were consistent with strangulation by hand. Dr
Coetzee-Khan concluded that these observations were consistent with
asphyxia
following manual strangulation and external airway
obstruction and that the features of the ligature imprint were
consistent with
post-mortem application to the neck.
[53]
Dr Abrahams testified that she was the head of the clinical unit of
the Paarl Forensic Pathology Laboratory
and as such she was the
superior of Dr Coetzee-Khan. She said that she had performed
approximately 9 000 autopsies, many of
which were similar to the
case in question. She attended the autopsy of the body of the
deceased at the request of Dr
Coetzee-Khan, to provide ‘a second pair of eyes’, as it
was presumed that the case would attract a lot of attention.
Dr
Abrahams confirmed the observations of Dr Coetzee-Khan at the autopsy
in all respects. She said that they found that the deceased
had been
manually strangled and that there was evidence of external airway
obstruction or suffocation.
[54]
Dr Perumal had been in private practice as a forensic pathologist
from 1994 to 2016. During 2016 he
took up an appointment as chief
forensic pathologist of the Department of Health of the Mpumalanga
Province. He is a very experienced
forensic pathologist, having
performed in excess of 10 000 autopsies.
[55]
Dr Perumal performed a second autopsy on the body of the deceased on
1
August 2016 in Braamfontein. He also took photographs of the body. He
explained that for various reasons a second autopsy is not
ideal.
These reasons include that in the reconstruction process (stitching
up) of the body after an autopsy, it is not fully returned
to the
original anatomical position, that it is not easy or at times
possible to reconstitute dissected organs or tissue to their
original
state and that changes are brought about by the onset of
decomposition. To this may be added that some features observed
at
the first autopsy may no longer be available, such as, in this case,
the ingested blood. Nevertheless, Dr Perumal’s autopsy
confirmed the major part of what had been observed at the first
autopsy. At the conclusion of Dr Perumal’s evidence much
of the
evidence of Dr Coetzee-Khan and Dr Abrahams that had been disputed
during cross-examination, were no longer in dispute.
In what follows
we discuss the remaining areas of dispute, difference or uncertainty.
[56]
Dr Perumal observed that the sixth rib on the right had also been
fractured, in addition to the three
rib fractures detected at the
first autopsy. He observed ‘a bit of haemorrhage’
associated with these fractures, which
indicated that they had
occurred whilst there was some blood circulation. He also noticed
fractures of the second to fifth ribs
on the left. There was no
haemorrhage associated with these fractures, which indicated that
they had been sustained after blood
circulation ceased. In addition,
he observed a fracture of the middle part of the sternum, also with
no associated haemorrhage.
[57]
He expressed the opinion that the fractures of the ribs and sternum,
the lung contusions and the haemorrhages
of the right interior chest
wall could have been caused by attempted CPR. He said that it was not
apparent from the photographs
that there was pallor of the tip of the
nose or the lips. He stated that he did not regard pallor of the nose
and lips as objective
indicators of smothering. A facial flap
dissection, on the other hand, would reveal whether there were
underlying bruises of the
facial tissue. Unlike Dr Coetzee-Khan, Dr
Perumal performed a facial flap dissection and found no evidence of
smothering.
[58]
Dr Perumal testified that the blood in the stomach and altered blood
in the small intestines indicated
that there had been two episodes of
ingestion of blood. He said that it was virtually impossible for the
ingested blood to have
emanated from the pulmonary contusions, as
opposed to a vascular injury in the lung. His opinion was that the
ingested blood had
emanated from bleeding of the deviated nose.
[59]
Dr Perumal accepted that the application of a smooth ligature after
death, would leave an imprint that
was not parched or leathery. In
his evidence, Dr Perumal glossed over what he had recorded in his
autopsy report in respect of
the ligature mark, an aspect that we
shall return to. He said that ‘making room for changes in the
few days . . . I’d
rather defer to the photos taken earlier’.
He proceeded to give evidence to the effect that these photographs
(taken by Captain
Joubert and at the first autopsy) showed that the
bulk of the ligature mark had a parched and leathery appearance. This
formed
the basis of his evidence that, for the most part, the
ligature imprint exhibited ante-mortem vital reaction.
[60]
Importantly, Dr Perumal did not dispute the evidence that the neck
injuries were not situated underneath
the ligature mark but were
located well above it. Although he repeatedly stated that these types
of injuries were frequently seen
in cases of hanging, he did not
provide an explanation for their distant location from the ligature
mark until right at the end
of his evidence in re-examination. There
he said that as a result of the pull of the body in hanging and the
convulsions that occur
as part of the process of death ‘a lot
of the injuries that are observed, if not all that were observed can
be observed in
hanging’.
[61]
Dr Perumal also referred to the evidence of the appellant that he had
observed that a trickle of saliva
flowed from the left corner of the
mouth of the deceased. Ultimately his opinion was encapsulated in the
following:
‘
I
just want to say because, as I explained at various stages, the
findings in the neck could well be as a result of throttling or
manual strangulation and I indicate to the Court there are two
competing causes . . ., and the injuries that we see could be seen
in
both scenarios, but because of the appearance of the ligature mark
and the saliva, I favoured the version that, or the cause
of death
that it is more likely to be hanging. The probability is more likely
to be hanging. But there is no way I can stand before
this Court and
say that manual strangulation . . ., is excluded beyond any
reasonable doubt. So . . ., I’m not saying in
this report that
that’s the only diagnosis that I’m entertaining.’
[62]
Dr Loftus is a forensic and anatomical pathologist. Since 1994 he
practiced predominantly as an anatomical
pathologist. He did not
perform an autopsy on the body of the deceased. His opinions were
based on the evidence that had been presented
in the case, especially
the photographic evidence.
[63]
He agreed with Dr Perumal that the contusions of both lungs could be
related to CPR attempts. He also
said that in his opinion the
ingested blood did not emanate from the lung contusions. The reason
for this was that had the lung
injuries been so serious as to cause
the deceased to cough up and swallow the said quantity of the
ingested blood, she would in
all probability also have aspirated
(inhaled) blood. Aspirated blood would have caused a leopard skin
appearance of the surface
of the lungs and there was no sign thereof.
[64]
Unlike Dr Perumal, Dr Loftus was adamant that there was no fracture
of the left superior horn of the
thyroid cartilage. He insisted that
the defect in the cartilage was an artefact, caused by an incision
during the first autopsy.
Also, unlike Dr Perumal, he attempted to
show that some of the neck injuries corresponded directly to the
ligature imprint. We
shall analyse this evidence shortly.
Trial
court judgment
[65]
The trial court found that Ms Newcombe and Ms Nader were reliable
witnesses who gave evidence in a
credible and trustworthy manner. In
respect of Mr Daniels, it held that the differences between his
statements and his evidence
were not material. It said that
notwithstanding the shortcomings in his evidence, it was reliable and
credible in all material
respects. The court a quo also accepted the
evidence of Mr Thompson. The expert evidence of Dr Coetzee-Khan and
Dr Abrahams impressed
the court. It found their evidence to be
trustworthy. It held that the same could not be said of the evidence
of Dr
Perumal and Dr Loftus. In essence, the court regarded their evidence
as not objective. Finally, it rejected the evidence of the
appellant
as not reasonably possibly true.
[66]
The court referred to the pillowcase on the bed with bloodstains that
had emanated from the deceased.
It can be accepted that two further
marks on this pillow were mascara marks that had originated from the
deceased as well. The
court said that this pillowcase had been on the
side of the bed where the appellant slept and that the deceased had
not slept on
it. The court proceeded to say:
‘
The
Court is able to see for itself that the markings on this pillow are
identical to the markings on the face of the deceased,
as noted at
the time of her death. The bloodstain on the left of the pillow,
consistent with the abrasion on her left eye, is imprinted
twice on
the pillow, one slightly above that of the other. This is consistent
with the imprint caused by a repeat smothering action,
consistent
with the pillow being pushed down more than once in order to sustain
the pressure on the face of the deceased and to
get a further grip in
the course of smothering her.’
[67]
As to what had transpired after 07h00 on the morning of 24 July 2016,
the court a quo said that the
evidence painted a ‘vivid
picture’, which included the following:
‘
Heated
exchanges on the bed must have led to physical violence. At this
point the deceased is on the right of the accused and in
all
likelihood he struck a punch at her, whilst on the bed, hitting her
left eye and causing the abrasion to her left occipital
bridge with
his ring bearing fist. At some point during this “
wrestling
match”
the
accused manually strangled the deceased. The evidence clearly reveals
that the accused manually strangled the deceased and smothered
her
with a pillow and exerted pressure on her chest resulting in her ribs
being broken. Possibly it was at this point that the
accused
sustained a bleeding defensive wound to his finger. For how long he
remained in this position is uncertain, but when he
got up, he
devised a plan to set a scene telling a story of the deceased ending
her own life.’
Fair
trial
[68]
In its aforesaid ruling during the testimony of Dr Panieri-Peter, the
trial court held that the whole
of her evidence, including the
evidence foreshadowed in her report, was inadmissible. It essentially
reasoned that the witness
purported to usurp the function of the
court and that the evidence was irrelevant. This was true of some,
but not all, of the evidence
of Dr Panieri-Peter. The appellant
correctly contended that the evidence of Dr
Panieri-Peter as to whether the deceased had been depressed and had
been a suicide risk, was relevant and admissible. The appellant
was
entitled to lead this evidence, at least to counter the contrary
evidence of Ms Newcombe and Ms Nader. The court a quo therefore
erred
in not allowing this part of the evidence of Dr Panieri-Peter.
[69]
We are satisfied, however, that this irregularity did not result in
an unfair trial. The
important point is that in her evidence prior to the ruling, Dr
Panieri-Peter fully set out her opinion in this regard and the
reasons therefor. That evidence forms part of the record before us
and we are able to afford it the weight that it would deserve.
And in
the light of the conclusion that we have reached, it is not necessary
to analyse this evidence.
Evaluation
of pathologists’ evidence
[70]
We now turn to an evaluation of the divergent opinions of the
pathologists. It is well established
that this requires a
determination of whether and to what extent their opinions are
founded on logical reasoning or are otherwise
valid. It is about the
cogency of the underlying reasoning which lead the experts to their
conflicting opinions. See
Michael and Another v Linksfield Park
Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) paras 36-39;
Minister of Transport NO and Another v Du Toit and Another
2007
(1) SA 322
(SCA) para 16; and
Buthelezi v Ndaba
2013 (5) SA
437
(SCA) para 14.
[71]
It is true that Dr Coetzee-Khan erred in respect of the estimation of
the time of death and the role
of lividity in respect of the cause of
death. However, the calculation in terms of the nomogram could
provide no more than a crude
estimation. Dr Coetzee-Khan’s
incorrect estimation was made without knowledge of the appellant’s
version and could
not have been aimed at discrediting it. We cannot
fathom how this could detract from the reliability of the
observations at the
first autopsy and resultant conclusions. The same
applies to the error in respect of the role of lividity in the
incident scene
report. On the evidence as a whole the contention that
the recommendations to the SAPS indicated that Dr Coetzee-Khan had
prejudged
the matter, is baseless. At best for the appellant, Dr
Coetzee-Khan might have missed the ligature mark at the back of the
neck
and/or the post-mortem fractures of the ribs on the left and the
sternum. Even so, in our view, nothing turns hereon.
[72]
There were some troubling aspects of the evidence of Dr Abrahams.
These included her stance that a
forensic pathologist employed by an
accused person would invariably not be impartial, her attempt to
defend the errors in respect
of the time of death and the role of
lividity that Dr Coetzee-Khan had conceded and the general rigidity
of her opinions. There
is, however, no
reason to question the factual corroboration that her evidence
provided to that of Dr Coetzee-Khan.
[73]
It will be recalled that Dr Loftus did not perform an autopsy. His
suggestion that he performed a digital
bloodless field dissection,
was quite inaccurate; he only viewed photographs. He jumped to
conclusions, which he then expressed
in the strongest of terms. To
illustrate, he pointed to a darkened area between the clay tiles on
the bathroom floor that was visible
on photographs taken by Captain
Joubert. There were several such areas visible on the photograph, but
he pointed to the one between
the knees of the body of the deceased
on the floor. He not only said that that was fluid, but that it was
urine that the deceased
had passed at that spot at the moment when
she died. He said:
‘
M’Lady,
I believe that and I’m saying it from a position of after
taking everything into account, I believe that beyond
reasonable
doubt the deceased on that morning hanged herself in the bathroom,
she didn’t die, she didn’t die instantaneously,
she was
rescued if I can call it or taken off from the ligature mark, off
from ligature and she was unsuccessfully resuscitated.
In that period
taken off or let’s say since the ligature exerted its face
until whenever she passed the urine that was the
process of dying.’
[74]
Dr Perumal initially also said that, in his opinion, the thyroid
cartilage had inadvertently been incised
during the neck dissection.
In his later evidence he made it clear that he accepted that this was
an ante-mortem fracture. This
concession had a sound foundation. Both
Dr Coetzee-Khan and Dr Abrahams testified that the neck dissection
had been performed with
care, there were haemorrhages associated with
the fracture and the jagged edges thereof could be seen on a close up
photograph
taken at the first autopsy. Dr Loftus’s insistence
that this was an artefact was not founded on logical reasoning.
[75]
As we have said, Dr Loftus attempted to show that (some of) the neck
injuries were in fact spatially
related to the ligature mark. In an
attempt to show why Dr Coetzee-Khan and Dr Abrahams had erred in this
regard, he said that
it was technically difficult to correlate the
external neck injuries with the internal injuries, because of what he
termed the
hyperextension of the neck during the bloodless neck
dissection. That he had erred in this regard or why, was not put to
Dr Coetzee-Khan
in cross examination. Dr Abrahams was confronted with
this but testified that they had taken the possibility of distortion
into
account. It apparently did not occur to Dr Loftus that it was
infinitely more difficult for him to perform the correlation exercise
at least because, as he lamented, the photographs had been taken from
different angles and distances.
[76]
In a presentation that formed part of his evidence, Dr Loftus
indicated that the haemorrhages of the
left sternocleidomastoid
corresponded with or appeared to correspond with the ligature mark.
His presentation did not deal with
any of the other neck injuries in
this manner. In evidence he said that the ‘quite extensive’
haemorrhages of the submandibular
gland were in line with the
ligature mark. This was plainly wrong. When he dealt in evidence with
the aforesaid presentation in
respect of the haemorrhages of the left
neck muscles, he unexpectedly said that they were in fact not in line
with the ligature
mark. He suggested that this did not matter, as
these haemorrhages had probably been caused by severe muscle
contractions during
a convulsive death. His evidence in respect of
the location of the other neck haemorrhages in relation to the
ligature mark was
vague and inconclusive. His evidence on this
subject was unconvincing, to say the least.
[77]
For these reasons the opinions of Dr Loftus that differed from that
of the other pathologists were
unacceptable.
[78]
As we have said, for Dr Perumal the parched and leathery appearance
of the ligature mark and the alleged
dribbling of saliva tipped the
scale in favour of hanging. But this is what he had to say in respect
of the ligature mark in his
autopsy report:
‘
Ligature
imprint, almost circumferential around the neck. The imprint was for
the most part, comprised of a centrally blanched area,
averaging 5mm
wide. Parts of these blanched areas had associated hyperaemic areas
above and below the blanched imprint. The imprint
anteriorly sloped
upwards towards the right. The imprint on the back of the neck was
almost transverse but sloped upwards towards
the right. The lack of
friction abrasions related to the ligature and the lack of associated
oozing of serous fluid, is the reason
why there is no dry, parched
leathery ligature mark. There were bruises in the imprint on the left
side anterolaterally. The imprint
in this case is consistent with a
smooth ligature like an electrical cord. There were no abrasions or
bruises related to the superior
or inferior aspects of the ligature
imprint.’
[79]
According to the evidence a parched and leathery ligature mark is
created when the ‘oozing of
serous fluid’ as a result of
friction abrasion dries out. Thus, two important observations must be
made. First, this description
of the appearance of the ligature mark
was almost identical to that of Dr Coetzee-Khan. Secondly, as we have
demonstrated,
Dr Perumal’s
evidence was that the smooth electrical cord in question had caused
extensive friction abrasion and a parched
and leathery appearance of
the ligature imprint.
[80]
There was no suggestion in the evidence that the ligature mark could
have undergone a metamorphosis
during the period between the first
and second autopsies. By latching onto the earlier
photographs to support
an opinion directly contrary to his detailed
written report, Dr Perumal illogically and unacceptably adjusted his
opinion on a
crucial aspect of the case. It follows that the evidence
of Dr Coetzee-Khan and Dr
Abrahams as to the appearance of the ligature mark was correctly
accepted.
[81]
Only the appellant testified that saliva had dribbled from the
deceased’s mouth. Whatever the
reliability of this observation,
it could have little weight on its own. Thus, the main pillar of Dr
Perumal’s essential
reasoning crumbled. In the circumstances
logical reasoning dictates that the neck injuries were caused by
manual strangulation
and that the ligature was applied post mortem.
Final
analysis
[82]
On the evidence it is reasonably possible that all or most of the
bruises and abrasions that the deceased
sustained, could have been
caused by the fall and the altercations that the appellant described.
It is not possible to determine
how the scalp injury could have been
sustained. Dr Coetzee-Khan conceded that the right rib fractures and
the contusions of the
lungs could have been caused by attempted CPR.
The opinion of Dr
Perumal that the same could apply to the bleeding of the right
anterior chest wall was well supported by authority.
[83]
The trial court erred in finding that the deceased had been
smothered. There are three reasons why
this finding cannot stand. The
first is that the trial court made a material factual error. The
pillowcase that it examined had
been found on the right hand side of
the bed where the deceased slept. The evidence of the appellant in
this regard was supported
by that of Captain Joubert. Secondly, we
accept that there may be circumstances in which a court may have
regard to its own observations
in respect of an exhibit before it.
But save in exceptional circumstances where the observation is clear
for all to see (including
an appeal court), it should not be relied
upon unless it was put to the relevant witnesses and/or the accused
person to afford
them an opportunity to respond thereto. The
far-reaching observations of the trial court in respect of the
photograph of the pillowcase
were not put to any witnesses or to the
appellant and could by no means be said to be clear. The trial
court’s reliance on
its own observations was wholly
unjustified. In the third place, the aforesaid evaluation of the
expert evidence demonstrated that
external airway obstruction was not
proved beyond reasonable doubt.
[84]
That the deceased did not hang herself, is also
supported by the following factors. It is not
possible to
find beyond reasonable doubt that the source of the ingested blood
was the lung contusions. Thus, it is reasonably
possible that the
ingested blood emanated from nose bleeds. But this also must count
against the appellant. According to the evidence
the deceased took
good care of herself and of her appearance and was not a person to
delay things. It is not conceivable that she
would not attend to two
episodes of nose bleeds but would rather swallow 200 to 250
millilitres of blood, unless she was somehow
incapacitated. That is
an indication that she did not hang herself.
[85]
Counsel for the appellant fairly conceded that there was no reason to
doubt the evidence of Mr Daniels
in respect of the removal of the
cord from the neck of the deceased. He said that the cord had been
loosely around her neck and
that he easily removed it without having
to untie any knot. This too, points away from suicide by hanging.
Finally, the fingernail
scratch marks that were related to the neck
haemorrhages correspond with strangulation by hand.
[86]
For these reasons we are satisfied that the respondent proved beyond
reasonable doubt that the deceased
was killed by manual strangulation
and that only thereafter the ligature was applied to her neck. It
follows that the court a quo
correctly convicted the appellant on
both counts.
[87]
However, it must regrettably be said that save for the findings that
the appellant strangled the deceased
and attempted to stage her
suicide, the court a quo’s ‘vivid picture’
constituted speculation in respect of both
content and sequence.
There was no evidential basis for the finding that the appellant had
punched the deceased with his ring bearing
fist. We have already
pointed out that it is reasonably possible that the deceased was not
smothered and that the right rib fractures
were caused by attempted
CPR. It will be recalled that Mr Norton testified that the appellant
had no injury on his hands shortly
after the incident and that
Captain Joubert said that the minute quantities of the appellant’s
blood could have been deposited
at any stage during his stay in the
room. These matters need mentioning because they impact on the
question of an appropriate sentence,
to which we now turn.
Sentence
[88]
It will be recalled that the trial court sentenced
the appellant to an effective term of 20 years’
imprisonment.
The trial court, of course, sentenced the appellant on the basis of
its factual findings referred to above. In its
judgment on sentence,
the court a quo accordingly said that the injuries that the appellant
had inflicted on the deceased ‘were
successive and incremental’
until they were fatal. On the trial court’s findings, the
appellant executed a sustained
assault on the deceased that included
hitting her with his fist, repeatedly smothering her and applying
such force to her chest
that she suffered rib fractures and lung
contusions.
[89]
For the reasons already mentioned, these findings do not withstand
scrutiny. The
appellant must be sentenced on count 1 on the basis that he
unlawfully and intentionally killed the deceased by manual
strangulation
but did not assault her in any other way. It follows
that this Court should consider sentence afresh.
[90]
Section 51(2)
(a)
of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence of 15 years’ imprisonment in
respect of count 1, unless there are substantial and compelling
circumstances that justify a departure from the prescribed sentence.
In
S v Malgas
2001 (1) SACR 469
(SCA), Marais JA said that
courts should not depart from the prescribed sentence lightly and for
flimsy reasons which could not
withstand scrutiny. Substantial
circumstances must compel a departure from the prescribed sentence on
the basis that it would be
disproportionate in the circumstances of
the case.
[91]
The appellant’s personal circumstances are on record. He was 47
years of age at the time of the
commission of the offence. He has
three adult daughters. He has been a successful businessman and is
capable of making a valuable
contribution to society. He is a first
offender.
[92]
However, the appellant committed a very serious crime. He murdered
his wife in a brutal and callous
manner. The deceased’s death
must be devastating to her daughters and those who loved her.
Regrettably violence against women
and children has become a
pervasive phenomenon internationally and this country has in recent
times seen gender-based violence
increase to intolerable and
unacceptable proportions. The sentence of this Court must reflect the
abhorrence of society with regard
to violence against women.
Furthermore, it is very important to bear in mind that the appellant
is unrepentant and takes no responsibility
for his crimes.
[93]
After due consideration of all the relevant facts and circumstances,
we find no substantial and compelling
circumstances that justify a
departure from the prescribed sentence of 15 years’
imprisonment on count 1. In our view a sentence
of three years’
imprisonment is appropriate in respect of count 2. In the light of
the cumulative effect of the sentences
imposed, the sentence on count
2 should in terms of
s 280(2)
of the
Criminal Procedure Act 51 of
1977
be ordered to run concurrently with the sentence on count 1.
As the appellant served part of his sentence
prior to his release on bail pending the appeal, the sentences must
in terms of
s 282
of the
Criminal Procedure Act be
deemed to have
been imposed on 27 February 2019.
[94]
In the result the following order is made:
1
The appeal against the convictions on counts 1 and 2 is dismissed.
2
The appeal against the sentences is upheld.
3
The order of the court a quo in respect of sentence is set aside and
replaced with the following:
‘
(a)
On count 1 the accused is sentenced to 15 years’ imprisonment.
(c)
On count 2 the accused is sentenced
to three years’ imprisonment.
(c) The sentence on count 2
is ordered to run concurrently with the sentence on count 1.
(d) The accused is declared
unfit to possess a fire-arm.’
4
The abovementioned sentences are deemed to have been imposed on 27
February 2019.
H
SALDULKER
JUDGE
OF APPEAL
C H G VAN DER MERWE
JUDGE OF APPEAL
Appearances:
For
appellant:
F van Zyl SC and W King SC
Instructed
by:
Witz Inc Attorneys, Johannesburg
Michael du
Plessis Attorneys, Bloemfontein
For
respondent:
L J van Niekerk
Instructed
by:
Director of Public Prosecutions: Western Cape, Cape Town
Director
of Public Prosecutions: Free State, Bloemfontein
[1]
Psychological
autopsy, psychiatric autopsy, retrospective death assessment,
reconstructive evaluation and equivocal death analysis.
This is a
procedure for investigating a person's death by reconstructing what
the person thought, felt and did preceding his
or her death.