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[2014] ZAGPPHC 452
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Van Vuuren v S (A259/2013) [2014] ZAGPPHC 452 (11 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A259/2013
D
ate:
11/6/2014
In
the matter between:
ALBERT
PETRUS VAN
VUUREN
.................................................................................
APPELLANT
And
THE
STATE
...................................................................................................................
RESPONDENT
JUDGMENT
Fabricius
J,
1.
The
Appellant was convicted of murdering his wife (“the deceased”),
found guilty and sentenced to life imprisonment
on 30 August 2011.
The honourable trial Judge Kubushi J granted leave to appeal to the
Full Court against the conviction and sentence.
2.
In
the relevant charge sheet, no reference was made to the provisions of
the
Criminal Law Amendment Act 105 of 1997
, relating to
any possible minimum sentence.
It
was not specifically stated that the State would rely on the fact
that the murder had been planned or premeditated. This arose
during
argument on sentence and in the application for leave to appeal it
was contended that such a duty rested upon the State
in the drawing
of the particular charge sheet, and it was, one of the bases upon
which the learned Judge granted leave to appeal.
However, at the plea
stage, the State Advocate said that he would rely on the provisions
of
s. 51
of Act 105 of 1997
“dealing with the
minimum sentences.” No sub-section was referred to nor was any
further detail provided of the State’s
reliance on
s. 51.
3.
Before
dealing with certain parts of the evidence presented by the State, it
will be convenient to specify the facts that were common
cause during
the trial:
3.1
The
deceased died in her house of multiple stab wounds and a cervical
spine injury on the evening of 11 July 2010. In fact, according
to
the post-mortem examination report she was stabbed 25 times with a
sharp object. These stab wounds varied in depth from superficial
to
deep. Three of the stab wounds were on the left, back and upper arm.
There were also wounds on the palm surface of each index
finger, one
above the right clavicle and one on the abdomen. All other stab
wounds were mainly on the chest. Six of these wounds
were inflicted
while she must have been dead. She also suffered a fractured jaw and
there was a dislocation of the neck at the
c1/2 level. Dr Lombard,
the State Pathologist, attributed four stab wounds as the ones that
caused death. These stab wounds penetrated
her heart muscles and both
the right and left lungs;
3.2
During
the evening of 11 July 2010, at least four people were present in the
house where the deceased was murdered, namely the deceased,
the
Appellant, Mr Gordon McCallum (“McCallum”) and a worker
of the deceased known only as Thomas. This Thomas disappeared
after
the murder and was not seen or heard of since;
3.3
The
Appellant sustained serious injuries on his left hand and at the back
of his head during the evening in question. Both of these
wounds had
been bleeding profusely;
3.4
No
explanation for these injuries sustained by the Appellant was
presented during the trial;
3.5
McCallum
reported the incident to the owners of the property on which they
were staying, and a Mr Strauss Junior called the police.
The first
police officer attending to the crime scene at approximately 23:35 on
the evening of the 11
th
of July 2010 was a Detective
Warrant Officer Du Plessis;
3.6
When
McCallum arrived at the Strauss’ house, his trousers and shoes
were stained with a substance resembling blood. There
is however no
doubt that this was in fact blood in my opinion, but for some
inexplicable reason these stains on McCallum’s
clothing were
never examined by the police;
3.7
McCallum
washed these stains from his jeans and shoes after the incident;
3.8
Mr
Strauss Junior accompanied the police to the crime scene on the night
in question. He was at the scene for about 30 minutes,
and left
together with McCallum and went to sleep. The next morning when he
returned to the scene, he found McCallum outside as
he could not
enter because the house had been locked, as he did not know that
Warrant Officer Du Plessis had made an arrangement
with Mr Strauss
Junior that she would leave the key in a basket;
3.9
Appellant
was arrested on the crime scene and detained at the Bronkhorstspruit
police cells, where his clothing was changed the
next morning which
had been brought to the cells by McCallum. Photographs were also
taken of the blood stained clothes;
3.10
The
crime scene was not preserved by the police and no forensic
investigation of any kind was conducted during that night on the
scene. This astounding failure was not explained by the police;
3.11
Somebody
partially cleaned the crime scene during the night after Appellant
had been arrested. It could allegedly not have been
McCallum who did
not have the key of the house after Warrant Officer Du Plessis left.
Whether or not he had his own separate key
was not investigated.
There is no explanation about this mystery at all;
3.12
Somebody
also removed a blood drenched jacket from the main bedroom and placed
it in the kitchen during that night, also after the
Appellant had
been arrested. This jacket had been given to McCallum by the
Appellant prior to the night in question;
3.13
McCallum
was not interviewed by the police on the night and neither was the
said Thomas who, as I have said, disappeared shortly
after the
incident;
3.14
The
jacket worn by McCallum on the night in question was never
confiscated nor examined by the police;
3.15
Only
one speck of the deceased’s blood was discovered on the knee
area of the Appellant’s jeans worn during the night
in
question. Dr Lombard was never asked whether, having regard to the
number of stab wounds and the violence involved, one would
have
expected more blood to have appeared on the particular assailant’s
clothing, if indeed it was the Appellant;
3.16
The
Appellant’s jeans, shoes, shirt and jacket were stained with
blood that did not originate from the deceased;
3.17
The
actual murder weapon was never found nor identified, and the blood
that was recovered from a knife in the kitchen did not originate
from
the deceased;
3.18
R13 000
was found missing from a kitchen cupboard, and it was never explained
how this could have occurred;
3.19
Both
McCallum and Appellant had consumed alcohol during the afternoon and
evening of that night and according to Warrant Officer
Du Plessis the
Appellant had been clearly drunk;
3.20
McCallum
had for years consumed medicine/tranquilisers for bipolar disorder
which he had mixed with alcohol, and had also done so
during that
particular evening;
3.21
McCallum
had also handed the Appellant a tranquiliser tablet during the
evening in question.
4.
Looking
at these common cause facts coldly one would obviously be inclined to
think that the murderer must have been Appellant,
or McCallum or
Thomas, were it not for one other important fact that was also simply
left hanging in the air by both Counsel for
the State, the defence
and the Court, namely that the following morning Appellant told
McCallum that they had been attacked. This
communication should have
rung cathedral bells in everyone’s mind, but these bells did
not ring, they remained silent, and
this topic was never raised
again. Any alert Counsel ought to have immediately solicited further
details.
5.
Keeping
the abovementioned common cause facts in mind, it is then necessary
to look at the evidence of McCallum critically. Both
Warrant Officer
Basson and Mr Strauss had described him as an unstable person with a
long history of alcohol abuse, controlled
medicine abuse and
aggression. On his own version he had been drinking brandy habitually
every evening and had mixed the tranquiliser
prescribed to him with
the alcohol. McCallum testified, as had done the Appellant, that
during that particular afternoon/evening
they had been watching dvds
and drinking brandy and coca cola in the lounge whilst deceased was
busy in the kitchen. According
to McCallum he and the Appellant had
consumed about three quarters of a litre brandy between about 16:00
and 20:00. He testified
that at some stage he had heard the deceased
and the Appellant arguing, but could not hear what they were saying,
and because he
thought that the Appellant had become aggressive he
gave him the tranquilising pill to calm him down, as he put it. In
this context
he presented three different versions as to what had
happened after he had handed the pill to the Appellant namely:
5.1
“
He
took it in his hand and he threw it down on the chair next to him”;
5.2
“
He
did not take it when I gave it to him because he did throw it on the
floor”;
5.3
“
He
took the pills and put them in his pocket”.
He
then said that he himself had taken a sleeping tablet (that is after
all the alcohol) and went to bed at about 20:00. He then
gave the
following versions as to how he was woken up by the Appellant:
5.3.1
He
was woken up by his light being switched on;
5.3.2
“
I
heard my bedroom door opening and the light was switched on”;
“
No
I did not [hear the bedroom door opening]. I only woke up when he
switched on the light”;
5.3.3
“
He
touched me to waken me up”;
5.3.4
“
He
did not touch me. He sat on the bed.”
5.4
It
is clear from a sketch of the house that was presented to the Court
that the bedroom was only a few meters from the kitchen.
McCallum was
not asked whether he had heard any screams emanating from the
deceased when she had been so brutally and repeatedly
attacked by
someone. It was also clear from the record in any event that this
topic was not raised by anyone.
6.
Asked
as to what happened immediately after he had woken up and had been
told by the Appellant that he had killed his wife (on his
version) he
gave the following three versions:
6.1
“
I
got dressed and I ran through to the kitchen”;
6.2
“
When
I went through to the kitchen he was sitting and drinking and just
staring at her while she was lying there”;
6.3
“
I
stood up and went with him to the kitchen…”
7.
Having
regard to McCallum’s memory of that specific evening it is
important to consider the evidence of Dr Lombard who had
testified
about the interaction between alcohol and a so-called hypnotic
sleeping tablet. He said that this was unpredictable and
one would
expect that a person would pass out or sleep for an extended period.
Further, even though such person may appear to be
awake, it would not
necessarily imply that he had the reasoning or cognitive ability of a
sober person. It is clear from the record
that McCallum contradicted
himself in his evidence pertaining to what the Appellant did with the
sleeping tablet, what had woken
him up, and what had transpired
immediately after he had woken up. There is of course also no
explanation how his jacket that he
had worn that evening had been
drenched in blood. Most importantly however it is common cause that
he had lied to Constable Zwane
about this. Why would he say that
Appellant had worn it but admit in Court that he had worn it? So,
having regard to the mentioned
evidence of Warrant Officer Du
Plessis, Mr Strauss and Dr Lombard, McCallum could not by any means
of the imagination be described
as a reliable person, let alone a
reliable witness as to the events of that evening. Warrant Officer
Basson also testified that
McCallum was an unstable person who had
abused alcohol and medication for years and was aggressive when under
the influence of
these substances. The learned Judge a quo found that
the mentioned contradictions were not material. She found that
McCallum’s
evidence was clear, and that the defence had not
shown that McCallum had been an aggressive person despite the
evidence of the
State witness Basson. She was satisfied that his
version could be relied upon. Of course, the essential part of
McCallum’s
evidence in this context was that the Appellant had
woken him up and told him that he had killed the deceased. This
evidence was
inadmissible as against the accused she held. Quite
apart from the fact that Appellant denied having made the statement
it is common
cause from the evidence of Warrant Officer Du Plessis
and Mr Strauss, that Appellant had been heavily under the influence
of alcohol
and could not speak properly or coherently. Furthermore,
McCallum had also testified about informing the investigating officer
Constable Zwane about a knife that he had discovered on the scene
after the incident. Zwane had denied this. Having regard to the
evidence as a whole, and especially those facts that I have mentioned
that are common cause, the state of intoxication of McCallum
(alcohol
mixed with hypnotic sleeping tablets), the unexplained presence of
blood on McCallum’s jacket, and his behaviour
after the police
arrived, I am unable to agree that McCallum could be regarded as a
reliable witness under those circumstances.
He was obviously also a
single witness, and on the totality of facts I would not have
accepted the evidence of McCallum without
any corroboration by any
other reliable extraneous or objective facts.
8.
As
I have said, Detective Warrant Officer Du Plessis was the first
police official attending to the crime scene that night. She
deposed
to an affidavit that what was commissioned at 2:07 on the morning of
the 12
th
of July 2010. She had testified that the accused
had said to her, whilst he was sitting drunk in the kitchen, that he
had killed
the deceased because she wanted to divorce him and she was
also poisoning him. These words were not mentioned in her statement
to the police. In the statement she only mentioned that the Appellant
had told her that he had killed his wife. It is common cause
that
this confession that the State relied upon was not put in writing as
required by the provisions of
s. 217 (1) (a) of the Criminal
Procedure Act
. The Court a quo quite rightly held that this
confession was inadmissible, although Counsel for the State on appeal
contended that
it was not a confession inasmuch as reference had been
made to an exculpatory motive. I do not agree with that contention at
all.
A confession is a statement that admits all the material
elements of a particular offence.
See:
Du Toit et al, Commentary on the Criminal Procedure Act, Juta &
Co, at 24 - 51
The
fact that reference was made to a possible motive, does not make a
statement of this nature admissible. Warrant Officer Du Plessis,
as I
have said testified that the Appellant was clearly drunk and had
spoken with a slurred tongue. He was dressed in jeans, a
grey shirt
and a blue and maroon jacket. His left hand was bleeding and there
was blood on his clothes and chair where he was sitting.
He told her
that he had killed the deceased and thereafter she informed him about
his rights and arrested him. She did not notice
the head wound. She
also identified the particular jacket I have mentioned that was later
found next to the safe on the floor in
the main bedroom of the home.
She also testified that the Appellant had told her that he had
received documents that his wife had
wanted to leave him and that he
had killed her because she had wanted to poison him. Asked why she
did not mention this in her
written statement to the police, she said
that in her opinion these statements were not admissible, as she was
not a commissioned
officer in the police. She did not consider it
necessary to have contacted an officer to take down a written
statement such as
envisaged by
s. 217
(1) (a) of the Criminal Procedure Act
.
Further, between 2:00 am and 3:00 am on the morning of the 12
th
,
the Appellant was still under the influence of alcohol and she
thought it would be better to wait until he was sober again before
attempting to explain his rights to him. After he had sobered up to
the extent that he could understand his rights being explained
to
him, he made no admissions or confessions. She also testified that
she had requested Mr Strauss to send McCallum back to the
scene
during the evening in question, but Mr Strauss denied this. The Court
a quo accepted the evidence of Warrant Officer Du Plessis
as being
reliable. It did so despite the mentioned discrepancies, but the
material parts of her evidence were that Appellant was
clearly drunk,
that he had not worn the blue blood-stained jacket, that Appellant
had bled profusely from his hand, that there
was blood everywhere,
and that no proper forensic tests or examinations had been conducted
by the police that night
9.
Strauss
Junior testified that when McCallum entered the door at his home that
evening in his father’s house, he saw blood
on his trousers and
on his shoes. The blood smear on the jeans was not consistent with
the trousers lying on the floor and blood
dripping onto it, he said.
He took Warrant Officer Du Plessis to the scene of the crime and
waited in his bakkie. He returned to
his home hardly half an hour
later and found his father and McCallum asleep. He also testified
that when he saw Appellant, he was
clearly drunk, staggering and
unable to walk properly. He returned to the crime scene at about 8:00
am on the morning of the 12
th
of July and found McCallum there. I must note that McCallum in turn
had said that he only arrived at about 10:00 am. He also found
that
the blood in the kitchen had been partially mopped up. There was also
no blood against the walls of the kitchen. He was asked
as to who had
cleaned the house and replied that McCallum had still been living
there and that the farm workers had helped him
clean the house.
McCallum gave three versions as to when this was done and by whom.
This of course could not be reconciled with
the evidence of Warrant
Officer Du Plessis who had said that McCallum did not have access to
the locked house that morning, but
in my view it is probable that
McCallum did have his own key to the house, having resided there for
some months. Further, on the
next day, 13 July 2010, Strauss found
McCallum at the scene of the crime and the kitchen was then clean. He
also testified that
the said Thomas had run away two to three days
after the event and had not been seen since. He denied that Warrant
Officer Du Plessis
sent him to call McCallum back to the scene on the
evening of the murder. Warrant Officer Basson testified that he took
Appellant’s
clothing on 12 July and that a police officer also
took pictures of the Appellant dressed in those clothes. The jacket
worn by
the Appellant was not confiscated by him. He also testified
that when Appellant changed clothes he was sober and denied killing
his wife.
10.
Detective
Constable Zwane arrived at the scene on 12 July 2010 looking for
clues and the murder weapon. The scene had been cleaned.
He testified
that he found the jacket that was “soaking something presumed
to be blood” at the kitchen on the crime
scene. McCallum stated
to Zwane that this jacket belonged to Appellant and that he, the
Appellant, had worn it prior to the murder.
This statement of
McCallum is untrue, but it is significant when regard must be had to
his credibility and general reliability.
This was found by Warrant
Officer Du Plessis in the main bedroom on the floor next to the safe
on the night of the murder. This
was conceded by Zwane and it is not
an issue on my reading of the evidence as a whole, that Appellant had
lent this jacket to McCallum
prior to the murder and that McCallum
had been wearing that on that particular evening. As I have said, the
blood on the jacket
remained unexplained. On 13 July Zwane returned
to the crime scene and collected the suspected murder weapon, a
knife, from a certain
Mr Delport who had reported finding it outside
the house. The relevant knife that was produced in Court had
bloodstains on it,
but this did not originate from the deceased. This
is a further unexplained mystery in this case.
11.
Having
regard to the injuries sustained by the deceased, Dr Lombard
testified that whoever had committed this murder “must
have
lost it”. I will return to this evidence later on read together
with the evidence of Warrant Officer Du Plessis and
Mr Strauss
Junior, regarding Appellant’s state of sobriety. At the very
least, in my view, this common cause evidence ought
to have been an
extremely weighty factor in the mind of the Court a quo when it
imposed sentence. He testified that a person who
is under the
influence of alcohol to such an extent that his speech is slurred,
that he walks with a staggering gait, is highly
intoxicated, cannot
talk sense, has to a large extent lost control over his motor
functions and ability to speak logically and
to relate events in a
logical sequence. I have already mentioned his view about the effect
of a hypnotic sleeping tablet combined
with alcohol. On the facts of
this case, as I have said, I would not have regarded McCallum as a
reliable witness. I may mention
at this stage that Appellant had also
consumed alcohol, was found to be drunk by a number of witnesses and
on his own version also
took the particular tablet given to him by
McCallum. In that context it was contended by his Counsel that he
could also not give
a reliable version of events and that it was very
likely that he could not even remember what had happened on the
evening in question.
Reading the judgment of the Court a quo I am of
the view that the learned Judge failed to take the proper approach in
this context.
The Appellant, like the other witnesses, gave evidence
through an interpreter. It is extremely difficult to make any
reliable finding
as to a person’s demeanour under such
circumstances. The difficulty becomes even more substantial where a
person is asked
to testify about facts whilst he was deeply under the
influence of alcohol. In my view the Appellant’s demeanour
during the
trial should not have been a factor at all that ought to
have influenced the Court to come to a finding as to the Appellant’s
guilt or otherwise. Except in very clear circumstances, demeanour as
a fact indicating the untruthfulness of a person, is a horse
that I
would not ride as a judicial officer, especially not where a person
is giving evidence through an interpreter. It is not
unusual at all
that persons testifying are ill at ease. Some may be overwhelmed by
the occasion, some may be afraid, some may be
uncertain of certain
facts, but certain about others.
In
S v Kelly
1980 (3) SA 301
AD
Diemont JA referred to
this fact as “at best, a tricky horse to ride.”
In
R v Lekoata
1947 (4) SA 258
(O) at 263
, Horwitz AJ said
that demeanour is “that vague and indefinable fact in
estimating a witness’s credibility.”
Diemont
JA (at 308) said that the hallmark of a truthful witness is not
always a confident or courteous manner or an appearance
of frankness
and candour. An honest witness may be shy and nervous by nature and
may show hesitation and discomfort. However, as
I have said, an
experienced trial officer may ride this tricky horse confidently at
times, and, if alert, may observe evasions,
hesitations and reactions
to awkward questions. This would however not absolve the Court from
examining the totality of evidence
critically, keeping in mind which
party bears the onus of proof.
See
also:
S v V
2000 (1) SACR 453
SCA at 455
and
H.
C. Nicholas ‘Credibility of Witnesses 32 (1985) SALJ at 36 37.
In
the present instance, given the unreliability of McCallum, and the
objective facts, the Court a quo should have left this horse
in the
stable.
12.
Captain
Mashigwana testified as a forensic expert employed by the SAPS
Forensic Science Laboratory. The significant part of his
evidence, as
I have said, is that the only blood from the deceased could be found
in one stain on the Appellant’s jeans near
the knee area. All
the other stains on the jeans and other clothing of the Appellant, as
well as the blood drenched jacket and
the knife, contained blood, but
that did not originate from the deceased. It has not been explained
by anyone how only one blood
stain, and a small one at that, could be
found on an assailant’s jeans in the knee area under
circumstances where the victim
had been stabbed at least 25 times.
Mashigwana in fact agreed that one would have expected more blood,
and, even as a layman, it
seems highly probable. The blood stained
jacket worn by McCallum was not examined, nor is there any
explanation as to who had moved
it from the main bedroom to the
kitchen. It is in my view a serious indictment of McCallum’s
credibility and reliability
that he had tried to convince Constable
Zwane that this jacket had been worn by Appellant on the day of the
murder. Also, and I
have mentioned this, but it is important to
repeat it in the present context, the bloodstains on McCallum’s
clothing were
never examined. He also admitted having washed the
jeans and his shoes afterwards. Blood on the knife, to complicate
issues, did
not originate from the deceased. It is not in dispute
that large blood deposits were found in the kitchen, hallway,
bathroom basins,
bedroom and spare bedroom, McCallum’s room as
well as on his bedding and computer. No samples were taken from the
crime scene
and one is forced to conclude that the police had
forgotten that justice applies to all. It is often notable in Court
that the
police provide tremendous resources and effort for certain
cases, whereas a case such as the present received scant attention.
This is not what justice demands. The general public cries out for
proper investigation of crimes, and for efficient prosecutions,
where
circumstances warrant it thereafter. In this case it is a sad
reflection on the police force that they obviously dismally
failed in
their statutory duties. I only need to refer to the provisions of
s.
205 (3) of the Constitution
.
13.
The
learned Judge a quo put it as follows, but then thereafter did not
arrive at the conclusion that ought to have followed: “If
it
was properly investigated it could have taken the case either way,
but because of the poor investigation by the police we will
never
know”. This was said in the context of the absence of proper
physical evidence that could have been found and analysed
at the
crime scene. Counsel for Appellant therefore contended that none of
the physical evidence presented could support the version
of the
State that the Appellant had stabbed the deceased 25 times with a
knife. I agree with that contention. The evidence of Captain
Mashigwana and common sense excludes the probability that Appellant
had inflicted the injuries to the deceased. It is certainly
not a
conclusion that can be arrived at beyond a reasonable doubt.
14.
In
the context of all of the above, it is then necessary to examine the
version of the Appellant. He of course bears no onus at
all. It is
merely necessary that his evidence could reasonably possibly be true.
See:
S v Van der Meyden
1999 (2) SA 79
WLD at 81
for a
number of interesting examples of this trite test.
The
Court a quo, as did the State, relied on the circumstantial evidence
to point to the guilt of the accused.
See:
R v Blom
1939 AD 188
at 202 to 203
.
In
this context a Court cannot convict an accused unless on the proven
facts the inference of guilt is not alone a reasonable inference,
but
is the only reasonable inference. Obviously, all the evidence must be
considered in its totality in this context.
Appellant
testified that he and the deceased had been in a loveless marriage
for a number of years. They had never assaulted each
other and he was
in fact glad when ultimately he was notified that the deceased had
sought advice with the view to a divorce. He
gave evidence about his
drinking with McCallum that particular afternoon/evening, what
clothing they had worn and the presence
of the worker Thomas. He said
that McCallum had told him that he suspected that the deceased was
busy poisoning him. He denied
that an argument had occurred between
him and the deceased that evening. He testified about McCallum’s
habit of mixing hypnotic
sleeping pills with alcohol and added that
when McCallum gave him this particular tablet he put it in his
pocket. Later on, when
he had another drink, he took this sleeping
tablet. He remembered going to the kitchen and again leaving it.
McCallum was in the
lounge at that time. He could still remember
clearly that McCallum had been drinking a number of pills with his
brandy that evening.
Thereafter he only remembered waking up in the
police cells with injuries on his hand and head. McCallum had visited
him at the
police cells and repeatedly told him that he had murdered
his wife. He denied having done that, but McCallum kept on reminding
him of that fact. He said that he had denied killing the deceased to
McCallum, Warrant Officer Du Plessis, Warrant Officer Basson
and Mrs
Hannah White, who had confirmed this. On the next morning 12 July he
accompanied police to the house, found McCallum there
in the house,
and there was no blood in the kitchen. He had never taken the
so-called psychiatric tablets before. Another disturbing
aspect was
his evidence about his small cupboard in the kitchen wherein the
deceased had placed her money and various invoices
pertaining to her
small business. This cupboard was broken and about R13 000 that
had been placed therein was missing. He
had asked McCallum about this
cupboard who had told them that the police had broken it. This aspect
was also not taken further
by the State and what its possible
implication could have been under the particular circumstances.
15.
It
was contended by Counsel for the Appellant that he had never
essentially deviated from his version. Of all the facts of the case
it could reasonably possibly be true.
See:
S v Shackell at
2011 (2) SACR 185
(SCA) at par. 30
.
The
Court a quo did not accept that Appellant’s version could be
reasonably possibly true. There were a number of aspects
in
Appellant’s evidence that were never put to McCallum. This
related to the cupboard that was broken into, the missing money,
the
fact that McCallum had removed a cell phone from under the carpet and
the fact that the R13 000 that was missing had not
been reported
to the police. The learned Judge accepted the evidence of McCallum
that Appellant had not taken the particular hypnotic
sleeping tablet.
In the context of that finding the Court a quo found that the State
had not proven that
s. 1 of Act 1 of 1988
was
applicable. This section provides that a person who consumes or uses
any substance which impairs his or her faculties knowing
that such
substances have that effect, and then commits an offence whilst such
faculties are impaired, shall be guilty of an offence
and shall be
liable on conviction to a penalty which may be imposed in respect of
the commission of that act. On Appellant’s
own evidence he had
never taken such a tablet before. Quite apart from that McCallum had
three different versions and, Appellant
said he took the tablet at
some stage not knowing what its effect would be. As far as this
aspect is concerned I am of the view
that the State had not proven
the applicability of the section on the present facts. There was also
no evidence that the Appellant
tended to be aggressive when he had
consumed alcohol. Despite the fact that Warrant Officer Du Plessis
and Mr Strauss Junior testified
that the Accused was clearly drunk,
the Court a quo held that the alcohol consumed by the Accused did not
affect his faculties
to such an extent that he did not appreciate the
wrongfulness of his actions. I have serious doubts about this finding
but on the
present facts, and on my view of the matter, it is not
necessary to deal therewith any further except so far as to repeat
that
Appellant’s state that evening was clearly a compelling
mitigating factor. Having analysed the evidence the Court a quo then
found Appellant guilty of murder. Nothing was said in the main
judgment about premeditation or planning of the crime, but during
argument on sentence counsel for the State submitted that the offence
was premeditated. This had never been put to Appellant, to
exacerbate
this unfairness. Accordingly the minimum sentence was one of life
imprisonment. In giving judgment on sentence the learned
Judge
accepted that premeditation had been proven on the basis that
Appellant had known that his wife had wanted to divorce him.
In my
view there is no justification for this finding. There is certainly
furthermore no justification for dealing with this topic
after
argument on sentence. In any event, a planned or premeditated murder
being something completely different in my view.
“
Premeditate”
means “think about with the view to subsequent action”,
or “think out beforehand” or
“plan in advance”.
See:
Shorter Oxford Dictionary 6
th
Edition p 2327
.
“
Plan”,
in turn means, according to the same dictionary at p. 2230 “an
organized and especially detailed method according
to which something
is to be done; a scheme of action, a design; an intention; a proposed
proceeding.”
A
number of questions relevant to the present proceedings were dealt
with by the Full Bench in
S v Raath 2009 (2) SACR at 46 CPD
.
The charge sheet in that case had not indicated whether the State
viewed the particular murder charge as planned or premeditated
and
attracting a life sentence, or simply an unplanned murder attracting
a minimum 15 year sentence. However, in Appellant’s
plea
explanation it was obvious that he denied planning or premeditating
the crime. The Court held that it was clear from this,
and from the
conduct of his defence, that Appellant was fully aware that the State
intended to make out a case for planned or premeditated
murder. As a
result, any fair trial rights were in no way infringed, and it was
decided that it had been open to the trial Court
to impose a life
sentence on conviction.
As
I have said, in this case the whole question of a planned or
premeditated murder only arose during argument on sentence. In the
present case the charge sheet made no mention of this nor indeed
referred to any applicable section of the
Criminal
Procedure Act
or any other Act at
all. A summary of substantial facts in terms of
s.
144 (3) (a) of the Criminal Procedure Act
was annexed and in this brief exposition of the State said only the
following: “During the night of 11 July 2010 an argument
ensued
between the accused and the deceased. The accused attacked the
deceased and assaulted her and stabbed her with a sharp object.”
One certainly cannot gather from this summary that the State intended
to rely on a planned or premeditated murder at all. When
the
proceedings commenced before the Court a quo Counsel for the State
said that he would rely on the provisions of
s.
51 of Act 105 of 1997
, being the
Act dealing with minimum sentences as he put it and, as I have
pointed out also relied on the provisions of
s.
1 of Act 1 1998
, being the
Criminal
Law Amendment Act
which
deals with
acts being punishable if committed by persons whose mental faculties
had been impaired by the consumption or use of
certain substances.
The Appellant thereafter pleaded not guilty and preferred not to give
an explanation for his plea. In
S v
Raath supra
at
53 par.16
it was held that planning
and premeditation have long been recognised as aggravating factors in
the case of murder. See for instance
S
v Khiba
1993 (2) SACR 1
(A) at 4
and
S v Malgas
2001 (1) SACR 469
(SCA) at par. 34.
It was held by
the Full Bench however that there must be evidence that the murder
was indeed premeditated or planned. The concept
of a planned or
premeditated murder is not statutorily defined. The Full Bench was
not referred to, nor was able to find any authoritative
pronouncement
in our case law concerning this concept. It however held that by
large it would seem that the question of whether
a murder was planned
or premeditated has been dealt with by a Court casuistic basis. It
also made reference to the
Concise
Oxford Dictionary
, as I have done.
It held that the concept suggests a deliberate weighing-up of the
proposed criminal conduct as opposed to the
commission of a crime on
the spur of the moment or in unexpected circumstances. There is,
however, a broad continuum between the
two poles of murder committed
in the heat of the moment and a murder which may have been conceived
and planned over months or even
years before its execution. The
author of the judgment, Bozalek J, held that only an examination of
all the circumstances surrounding
any particular murder, including
not least the accused’s state of mind, will allow one to arrive
at a conclusion as to whether
a particular murder is “planned
or premeditated”. In such an evaluation the period of time
between the accused forming
the intent to commit the murder and
carrying out this intention is obviously of cardinal importance but,
equally, does not at some
arbitrary point, provide a ready-made
answer to the question of whether a murder was “planned or
premeditated”. I agree
with this reasoning. In the present case
there is in my view no evidence at all that the Appellant planned or
premeditated the
relevant attack. In my view therefore the learned
Judge a quo erred in finding that this murder was planned or
premeditated, and
Counsel for the State had no basis at all for
suggesting such during argument on sentence. It was opportunistic and
unfair, and
especially so as it had not even been put to Appellant
during cross-examination. For purposes of a fair trial and for
purposes
of the relevant provision relating to the sentence that must
be imposed under such circumstances, it is my view that an accused
must be made aware of the fact that the State intends relying on
such, either by stating so in the charge sheet, alternatively
during
the plea stage of the proceedings. In other words, an accused must in
my view be made aware of such an allegation timeously
so that he can
consult thereon with his or her Counsel, and prepare his defence
accordingly and appropriately. I find support for
this conclusion in
the dictum of Wallis JA in
DPP, WP v
Prins
2012 (2) SACR 183
at 198 a – b
.
An accused must therefore be forewarned of the potential consequences
of conviction, if that may affect the manner in which the
defence is
conducted. This did not occur in the present instance, but in view of
my ultimate finding, it is not necessary to decide
whether the
proceedings were unfair as a result.
16.
In
the context of all of the above, and looking at the evidence (or
rather the lack thereof) holistically, I am of the view that
a
reasonable doubt exists whether or not the Appellant committed the
murder on the night in question. The inference made by the
learned
Judge a quo is not the only reasonable inference in the light of the
absence of a proper investigation by the police, and
the absence of
proper forensic investigations, which were only sought to be
conducted some months later. The result is that the
Appellant was
wrongly convicted.
The
conviction and sentence is accordingly set aside and in its place the
following order is made:
The
Accused is found not guilty and discharged
.
_____________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA
And
I
Agree
____________________________
JUDGE
N. KOLLAPEN
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA
And
I
Agree
____________________________
ACTING
JUDGE S. A. THOBANE
ACTING
JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA
Case
no.:
A259/2013
Counsel
for the Appellant: Adv J. J. Greeff
Instructed
by: Johann Scheepers Attorney
C/O
Serfontein Viljoen & Swart
Counsel
for the Respondent: Adv E. V. Sihlangu
Director
of Public Prosecution
Heard
on: 04/06/2014
Date
of Judgment: 11/06/2014 at 10:00