Shaw v S [2011] ZAKZPHC 32; AR342/10 (1 August 2011)

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[2011] ZAKZPHC 32
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Shaw v S [2011] ZAKZPHC 32; AR342/10 (1 August 2011)

IN THE KWAZULU NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO.: AR342/10
In the matter between:
HILTON CRAWFORD SHAW
…........................................................................
APPELLANT
and
THE STATE
…..................................................................................................
DEFENDANT
JUDGMENT
D PILLAY J
Introduction
On 15 June 2009, the appellant was
convicted and sentenced to twelve years imprisonment for the murder
of his wife Susan Shaw
on 3 June 2007. Without direct evidence as to
how the deceased met her demise, three possibilities emerged at the
trial:
The deceased shot herself.
An intruder shot the deceased.
The appellant shot the deceased.
The learned Judge in the trial court
rejected the first two possibilities and found on the circumstantial
evidence that the only
reasonable inference to be drawn was that the
appellant possessed the direct intention to kill the deceased.
Appellant’s version
The appellant presented a picture of
his life with the deceased as that of a normal middle-aged couple
with their share of troubles
and triumphs. They had been married to
each other by antenuptial contract for about three years. They lived
on his homestead
at Lake Lyndhurst. Each had children from previous
marriages. The deceased’s sons, seventeen year old Nicholas
and fourteen
year old Cameron, were in the care of her
ex-mother-in-law, Mrs Felicity Smith.
On Thursday before she died, the
deceased discovered that Mrs Smith had taken half the deceased’s
Workman’s Compensation
Pension. She telephoned Mrs Smith. They
argued. The deceased remained upset. Later, whilst at the home of
friends in Nottingham
Road, the deceased had a telephonic
conversation with Nicholas, which upset her further to the extent
that she cried most of
the drive home.
On Friday morning, the deceased did
not feel well. She was deflated and concerned about issues with Mrs
Smith. She spent most
of the day in bed reading and arose in the
early evening. The couple had much to discuss as the following week
they were busy
with burning firebreaks and receiving paying guests.
On Saturday morning, as usual, the
appellant gave the deceased coffee followed by breakfast in bed
before setting out to Nottingham
Road to receive a fax from his son.
His son had information about property the appellant was trying to
buy and the appellant
wanted to know whether Investec had approved
the finances for the purchase.
He received the fax. He also made an
appointment with the deceased’s attorney for 4 June 2007 to
discuss her claim against
Vodacom for damages arising from its
failed attempt to prosecute her for fraud. When he returned home,
the deceased was reading
in the lounge. They discussed their plans
for the following week and the deceased retired early after supper.
On Sunday morning, he gave her coffee
and breakfast in bed again. He set her up with her book and her
glasses. She complained
of a stomach ache. She was menstruating. He
drove to point K which was a spot about three kilometers from his
house where he
could get a signal and exchanged several cellular
phone calls with his son and his advocate friend about the property
transaction.
Back at the homestead he fixed a
broken window pane. The deceased emerged from the bedroom with her
book and complained of being
cold. He made a fire whilst she lay on
the couch in front of the fireplace reading her book.
In the afternoon, the deceased got
up, declared that she was bored and tired of reading and was going
to make supper. Shortly
thereafter she was at the bar with a five
litre box of wine from which she poured a glass for herself. He
commented to her that
she was ‘starting early’. She
replied that she was going to use the wine in the food. He cautioned
her not to drink
as it would exacerbate her stomach complaint.
The appellant continued to repair the
window. He put the tools away and returned to the house to find the
deceased still sitting
at the bar. She invited him to join her with
a glass of wine and to talk to her.
Although the deceased had been upset
after her discussion with Mrs Smith and her son, she appeared to
have recovered, as those
issues did not arise over the weekend until
Sunday afternoon when the deceased said: ‘Do you think
Felicity knows what
she is doing to my children?’ They had a
brief discussion during the course of which he told her that if she
wanted to
go back to town to start life again and to look after her
children as her mother had suggested days before, she would have his

blessing.
Just as the appellant was about to
return to point K to check on more short message services (sms) from
his son so that if there
was a problem with the property transaction
he would have the evening to think it over, the deceased got up from
the bar stool,
hugged and kissed him, told him that she loved him
very much and that she was not going anywhere without him.
He drove to point K and waited there
for about 10 to 15 minutes. He received no sms and returned to the
house. As he put down
his keys and cellular phone, he saw the
deceased lying face down on the veranda. He thought that she might
have had an epileptic
fit or had slipped and fallen. He turned her
around and saw a bullet wound in her right shoulder. Instantly he
thought that she
had tried to ‘do something to herself’.
At the time he did not think that an
intruder shot her because in the thirty-odd years that he owned the
farm, there had never
been a problem. There had been many break-ins
when they were not in residence.
As he held and kissed her he asked
why she had done this to herself. Feeling her breath on his cheek he
assumed that she was still
alive. Realising she needed medical
attention he started to drive back to point K. In his haste to call
Mr Kobus Kruger, his
friend and neighbour, he omitted to take his
cellular phone. Remembering this halfway up the driveway, he
returned to the house,
searched under the car seat and finally found
it still inside the house.
Distressed and hysterical he called
Mr Kruger at 16:59. As the chairman of the Property Owners’
Association he knew the
GPS co-ordinates of the property; he would
therefore have been able to direct a helicopter or air ambulance to
the property.
On returning to the house, the
appellant knelt on the floor beside the deceased. Her Croc shoes got
in the way and he threw them
aside. He could not feel her breath
anymore but he was not sure that she was dead. He tried to take her
pulse, but he was shaking
too much himself.
At about 17:50 he returned to point K
to telephone Mrs Smith, Michael Lambert the deceased’s
brother-in-law, and Marcel
Du Preez an inspector at Nottingham Road
Police Station. Neither Mrs Smith nor Inspector Du Preez answered
his calls. Mr Kruger
informed him that as the air ambulance would
not take off after 17:00 another ambulance had been arranged.
When he returned to the house he knew
that the deceased had passed away. He looked for a weapon around the
veranda and in the
room next to their bedroom where the safe was.
The safe door was unlocked. Opening it he noticed that the firearm
was missing.
In the main bedroom, he found the firearm on the floor
next to the bathroom. For the first time he noticed a trail of blood
on
the cream carpet leading through to the tiled thoroughfare from
the house onto the veranda.
He returned to point K where he
received a sms from Mr Kruger that the ambulance and the police
would be there shortly. Remembering
that he had to open the gate, he
drove to it and found the deceased’s brother-in-law Mr Craig
Bricknell, the ambulance
and the police already waiting there. As
the driveway was a one-car lane which made it difficult to turn
around his vehicle,
he got into Mr Bricknell’s car and
travelled back with him to the house.
His sons arrived later that evening.
It occurred to him then that when he first found the deceased he did
not recall seeing the
dogs around. (Again the appellant was asked to
speak loudly.) The dogs returned sometime later.
Inspector Du Preez arrived at some
stage; he ignored the appellant’s greeting. The appellant
assisted the mortuary attendants
to put the deceased into a bag and
onto a stretcher. Constable van de Merwe tested the appellant’s
hands for primer residue
after 17:00 that evening. The following day
the police took the clothes that he had worn for testing.
The next morning when he had to go to
the mortuary to identify the deceased, he searched for her handbag
to find her identity
book. Her handbag was missing. He also could
not find any of her jewellery and her watch. His sons drove him to
Nottingham Road
Police Station where Officer Marius van de Skyff
informed him that Mr Bricknell had taken the handbag and its
contents which
were given to the deceased’s sons. They were
returned to him after the funeral.
As a habit, whenever the appellant
left the deceased alone, he left a loaded firearm for her
protection. He had trained her to
use it. On Saturday morning when
he went to Nottingham Road, he had left the firearm beneath her
clothing in her cupboard. That
was the last he saw of the firearm
until the shooting. He assumed that she had put it back into the
safe after he returned.
He denied having an acrimonious or
abusive relationship with the deceased. When they lived in Durban,
she used to have two to
four epileptic episodes a week. Over
indulgence in alcohol also induced epileptic attacks. That
afternoon, he did not watch her
all the time and did not see her
drink the quantity of wine that was found in her system.
Furthermore, it was not normal for
her to drink on her own. Because
of her epilepsy, he was always aware of her state of sobriety and
signs of inebriation. Hence,
if she was inebriated when he left for
point K the first time that afternoon he would have known. It did
not occur to him whilst
he was talking to her at the bar that she
had over-consumed.
The appellant denied that Mr
Bricknell searched him. He would have objected to being searched.
When he returned to the house with
Mr Bricknell, he stood next to
the bar but he did not consume alcohol. He denied going down to the
lake that afternoon either
before or after discovering the deceased.
The state’s case
Craig Denton Bricknell
Craig Denton Bricknell, who was
married to the deceased’s sister, was the first visitor to the
scene after the incident.
He testified that on Thursday before she
was shot, the deceased and the appellant visited him and his wife at
their home in Dargle
about 30 kilometres away from Lake Lyndhurst.
On this occasion she visited because she was angry about Mrs Smith
taking her money.
On Sunday he received a call from his
brother-in-law, Michael Lambert, informing him that the deceased had
been involved in an
accident with a firearm and that he should go to
her. He arrived at the gate to the appellant’s property, found
it chained
and padlocked. He hooted for what seemed like an
eternity. He had just started walking to the homestead when he
received a call
from Mr Lambert informing him that the deceased had
passed away.
Just then he saw the appellant
driving up to the gate. As the appellant walked to open the padlock,
Mr Bricknell told him to stay
where he was as he wanted to search
him, first, because it was by then pitch dark; second, he had just
been told his sister-in-law
died; third, he was a bit nervous; and
last, he wanted to know where the firearm was. In his evidence in
chief, he did not say
whether he in fact searched the appellant. He
also asked Donovan Wilson, his daughter’s boyfriend, to search
the appellant’s
bakkie.
The appellant opened the gate and
tried to reverse his bakkie, which got stuck. He told the appellant
to leave the bakkie and
accompany him to the homestead in his car.
The police had also arrived.
On the drive to the house, the
appellant narrated the circumstances of the shooting. Mr Bricknell
alleged that the appellant’s
version ‘just jump[ed]
around’. He then summarised the appellant’s version for
the trial court. Although Mr
Bricknell conceded that he was
struggling to remember when the appellant said that she died, he
nevertheless concluded that the
appellant had various versions. Once
the appellant said that she had died in his arms; on another
occasion he said she was dead
when he got back from getting his
sms’. Furthermore, in order to show that the deceased was in a
good mood, the appellant
reported that the deceased was being
typically herself on Sunday by lying on one spot and directing him
to rearrange the house
for the following weekend’s guests.
This contradicted his evidence that she was depressed.
Mr Bricknell described the Shaw
residence as private and secluded, with no neighbours to speak of.
When they reached the homestead
they walked around the grass in
front of the porch. The appellant cried. Mr Wilson sat with the
appellant whilst Mr Bricknell
remained outside with the police and
Captain van de Skyff. Mr Bricknell asked Captain van de Skyff to ask
the appellant to stop
drinking and to leave the bar because he, Mr
Bricknell, noted blood in the bar and considered it inappropriate
that the appellant
should be sitting there. The appellant then moved
to the back of the house.
Using the appellant’s torch, Mr
Bricknell walked around the premises, found the firearm in the
deceased’s bedroom
and noted the blood trail. Later that
evening, Mr Wilson informed him that the accused was acting
strangely by going to the toilet
all the time. Out of curiosity, Mr
Bricknell investigated and found tissue with blood on it in the
waste basket in one of the
bathrooms at the back of the house.
Mr Bricknell remained at the house
from about 6 pm to 11 pm. At first, the appellant was shaky and
distressed but communicative.
He observed blood on the seat and
knees of the appellant’s pants and the tips of his sleeves.
There was a bullet hole in
the door of the shower and blood in the
bar. The window pane in the bar had been freshly replaced with the
glass lying outside.
A pot of very stodgy pasta was on the stove.
Two dirty plates were in the kitchen. A fire had been made in the
lounge. The house
was neat with no signs of any struggle having
taken place.
Mr Bricknell did not get the
impression that anything had gone missing. The deceased’s
handbag was in her bedroom along
with her diamond earrings. Her
clothing was neatly folded on a chair in her bedroom. Her bed was
made. Wet washing hung in the
lounge. No drawers were open. The
deceased’s body was ice cold.
Noticing that there was blood
splattered beneath the bar stool and at the bottom of the bar Mr
Bricknell asked the appellant why
he had tidied the bar; the
appellant emphatically denied cleaning up anything before Mr
Bricknell arrived.
About the end of his examination in
chief, Mr Bricknell was asked whether he had questioned the
appellant about his firearm at
any stage. He replied that he did so
the following day. The learned Judge reminded him that he had
mentioned earlier in his evidence
that he had asked him for a
firearm when they met at the gate. Furthermore, only when the Judge
enquired whether he actually
searched the appellant did he clarify
that he did so.
Under cross-examination he testified
that his relationship with the appellant was ‘fine’. He
was the closest family
member to assist the appellant and had done
so in the past. He confirmed that he removed the deceased’s
handbag, with her
identity document and wallet, which he gave to his
wife, the deceased’s sister. She had asked him to get hold of
her identity
document because she believed the appellant would not
cooperate with the family. Later that week, when the appellant
telephoned
him about the handbag, he informed the appellant that he
had given it to the deceased’s son. He also admitted telling
the
appellant that the appellant could charge him with theft;
however, he had mentioned to a police officer that he had taken the
handbag. He did not trust the appellant because of ‘a gut
instinct’ and he remained ‘sceptical’. He conceded

that there were problems in his relationship with the appellant.
Cross-examined as
to whether the appellant resisted, Mr Bricknell evaded the question.
Mr Matthews put to him that the appellant
recalled Mr Wilson sitting
in the back seat of Mr Bricknell’s car. Mr Bricknell persisted
that Mr Wilson travelled in the
police car. When it was pointed out
to him that the appellant’s evidence accorded with Mr
Bricknell’s statement to
the police, Mr Bricknell said that he
must have made an error in his statement. Pressed further, Mr
Bricknell conceded that because
he saw the appellant holding a glass
at the bar, he assumed that he was drinking alcohol. As for the
blood stained tissues in
the waste basket he conceded that he did
not point them out to the photographer but mentioned it to
Inspector
Marcel
Du Preez
.
Evidence of Neighbours
Forty-eight year old Mr Simon Madlala
worked as a caretaker for the neighbouring cottage for twenty years.
On 3 June 2007, he
was on the upper level of the cottage painting a
membrane onto the ridging on the roof to waterproof it. As he
worked, he continuously
looked around and could see the neighbours.
He could see shadows of people in front of the appellant’s
house, next to the
veranda on the side facing the lake. Although he
could not see how many people were there, it looked to him ‘like
there
was quite some movement.’
After some time and at about 17:00 he
heard the sound of an explosion. A short while later he saw the
appellant’s white
bakkie leave the premises; he did not see
where it went. About thirty minutes later he got off the roof. It
was a windy day with
the wind blowing over the dam wall toward him.
Sixty-four year old Mrs Dorris Ndlovu
was employed at Mr Kruger’s cottage at Lake Lyndhurst. That
afternoon, she was in
the garden cutting off dried flowers when she
heard dogs barking and noise emanating from the Shaw residence. The
noise sounded
like children chasing each other outside around the
house. She thought it was children because at times there were
children who
visited the house and played there. It was the sound of
‘running, footsteps, etcetera and the (Shaw’s) dogs were

also barking at the same time.’ Because it was windy it was
not easy to ascertain whether it was children or adults making
the
noise.
In her written statement she made to
Inspector Mchunu dated 7 June 2007 she had said that she heard the
sound of ‘very high
noise of cry (screaming) at the Hilton’s
house I (presume) there were crying simultaneously I heard dogs
b(ar)king all
of a sudden the gunshot heard.’(
sic
)
After her employer told her that the deceased died she ‘realized
the screaming noise was produced by the same Susan (deceased)
when
she met up with her death’.
Mr Kruger’s
house is across the lake from the Shaw residence. She testified that
the incident happened ‘before five
but anywhere towards
there’. At around ‘five exactly or within that time’
she heard the sound of gunfire coming
from the Shaw residence. The
noise she had heard earlier ended. The dogs also stopped barking and
started howling. The dogs did
not chase anyone but the barking
seemed to emanate from one place at all times, even after the shot.
She saw the appellant go down the
stairs towards the lake. A short while later he walked up the
stairs, went to the dogs and quietened
them down. Not long after she
heard the gunshot, the appellant proceeded into the veranda of his
house.
In her written statement she
mentioned nothing about the appellant walking down to the lake. She
explained that this omission
occurred because she was in shock when
she wrote the statement and might have forgotten to mention it. It
was put to her that
in a joint consultation between the prosecution
and the defence with Mr Kruger who was listed as a state witness, Mr
Kruger did
not mention anything about her reporting that she saw the
appellant walking to the lake. All she mentioned to him was the
sound
of children playing outside. She persisted that she did see
the appellant walk to the lake.
She was not wearing glasses that
afternoon but started wearing them sometime after the incident. She
has diabetes. Even after
it was put to her that it was common cause
that from where she stood she could not make out the gender or race
of a person at
the Shaw residence, she persisted that she saw the
appellant.
Evidence of the Experts
Dr Perumal, a pathologist engaged by
the deceased’s mother, discovered that the deceased was
‘heavily intoxicated’
with the equivalent of 0.30 grams
of alcohol in her blood, implying that she must have consumed about
1.5 litres of wine. Her
liver had undergone mild fatty change, which
was most likely a result of alcohol use or abuse as the deceased had
developed some
tolerance for it.
In explaining the track of the wound
from the front of the deceased to her back and slightly downwards,
Doctor Perumal presented
two variables: (1) the gun was placed at
ninety degrees to the body but the body could have moved by the
deceased flexing her
knees and (2) if the deceased shot herself, she
would have used her left hand to hold the firearm with the thumb or,
with some
difficulty, her index finger on the trigger. Using the
right index finger would have been ‘almost impossible’
but
using the right thumb would have been possible. The deceased
sustained a contact gunshot wound meaning that there was no gap

between the muzzle of the firearm and the deceased’s garments
to allow gases to escape.
As regards the fresh injury to the
left side of her forehead and her left middle finger, in Dr
Perumal’s opinion, these
injuries would not have been
sustained from her having fallen face down on the veranda because,
first, she would not have collapsed
suddenly and, second, the
injuries were not in the prominences, that is, on her eyebrow, cheek
or chin. These injuries would
have been inflicted at or about the
time of her death.
The deceased had a healing bruise on
her left leg anteriorly above her heel. This bruise could have been
sustained a few days
before her death. She could have injured
herself with the cross-members of the barstool, which were about the
height of her injuries
from the ground.
According to Jakobus Steyl, a private
ballistic specialist engaged by the state, the location of the wound
on the deceased’s
right shoulder indicated that if she shot
herself she must have used her left hand to hold the firearm pressed
against that shoulder.
Holding the firearm in her right hand and
pulling the trigger would have been awkward and difficult because
she would have had
to apply pressure to the trigger. It was also
possible that she fired the shot using both thumbs to pull the
trigger. Eight pounds
or 3.5 kilograms of pressure had to be applied
to the trigger to fire a shot.
Mr Steyl testified that primer
residue cannot be traced once a shottist washes his hands. Primer
residue could also fall simply
off by movement of the hand. In any
event within 10 minutes of hand activity primer residue could be
disregarded. The same does
not apply to primer residue on clothing.
Mr Steyl discounted any inaccuracy in the state laboratory’s
finding of no primer
residue in the microscopic examination of the
clothing.
Mr Steyl acknowledged that the
splatter of blood on the veranda could have been caused by the
appellant trampling on the blood
when he initially arrived on the
scene or by the paramedics when they moved the deceased. According
to Dr Perumal the splatter
was caused either by the deceased being
lifted and dropped onto the blood or because someone ‘just
stomped onto the blood,
for reasons unknown’. When Mr Steyl’s
version was put to Dr Perumal, the latter downplayed the
significance of the
blood splatter on the veranda by acknowledging
that it was unrelated to the shooting which did not occur in that
spot.
In the corroborating opinion of Dr
Perumal, the deceased would have found it ‘a little difficult’
to pull the trigger
herself; suicide was therefore not the reason
for the shooting. He cited the results of research recorded in
Gunshot Wounds
,
1
which show that in cases of suicide
by firearms, 72% of females shot themselves in the head, 22% in the
chest and 6% in the abdomen.
In
contrast, Mr Steyl questioned the validity of that survey of 700 men
and only 200 women.
Whilst conceding that the evidence
did not exclude suicide, Mr Steyl pointed out that it was not a
typical suicide. It was not
typical because suicides usually
involved multiple gunshot wounds and, considering all the facts of
this case, it did not lean
towards suicide.
Police Witness
Jabulani Mfanafuti Mchunu, a
detective inspector in the South African Police Service stationed at
Nottingham Road, was assigned
the docket for investigation on 4 June
2006. He visited the scene with Inspector van de Skyff and Inspector
Du Preez at about
21h00 on 3 June 2006. He examined the rooms and
was surprised to find that there was blood on the wall of the guest
room. He
discovered this by following a trail of blood. He also
found blood on the carpet, on the sink and droplets on the carpet in
the
back room. He acknowledged that Mr Bricknell informed him about
the blood-stained tissues but he himself did not observe them.
Under cross-examination he conceded
that he did not direct the photographer to take photographs of the
substance he saw in the
backroom. Pressed that the two experts who
testified before him did not give evidence about this, he replied
that other police
officers who were present at the scene with him
would corroborate him. He did not take swabs of the substance he saw
on the floor
because it was no longer in liquid form. This indicated
to him that it had been cleaned off by 4 June 2007.
When Mr Paver put to him that the
appellant’s statements suggest that the deceased might have
been attacked by an intruder,
Detective Inspector Mchunu replied
that he knew nothing about this and that it was new to him.
Trial court’s findings
The trial court rejected the suicide
hypothesis for the following reasons: the appellant disavowed
reliance on this defence. Furthermore,
although the deceased was a
bit deflated after her altercation with Mrs Smith, there were
positive developments in her life.
She was angry with her
ex-mother-in-law rather than depressed. She was not on any
medication. The appellant had left her alone
previously without any
incident. A meeting was set up with her attorney for Monday. All in
all, the appellant and the deceased
had a normal weekend.
In the opinion of the two experts, it
was unlikely that the deceased fired the shot. If the deceased was
determined to end her
own life, she had enough time to fire again
into a more definitive location. Other fresh injuries were
inconsistent with suicide.
For these reasons, the trial court
excluded suicide as a possibility.
The trial court could not understand
how the appellant could have jumped to the conclusion that she
committed suicide, having
regard to her relaxed disposition
immediately before the shooting. It found that his explanation that
he did not see anybody
else, and that confrontation with intruders
was not normal flew in the face of his evidence that he was aware
that the deceased
might be attacked in his absence; after all, he
had trained her to use a firearm for that very purpose.
His evidence that it was still light
when he discovered the deceased conflicted with his evidence that
because it was dark he
could not see the abrasions on the deceased’s
forehead and on her eye, which, in the opinion of the trial court,
were obvious.
It found it inconceivable that he did not notice the
abrasions on her face and her finger which would have indicated to
him that
she did not shoot herself and that those injuries could not
have been self inflicted.
On seeing the bullet hole in the
bathroom door, the appellant ought to have recalled immediately
their contingency plan and realised
that the deceased had been
surprised by an intruder and had tried to lock herself in the
bathroom. However, the intruder theory
occurred to him only a few
days later. The trial court rejected this theory as false, as well
as the appellant’s theory
that the deceased could not have
been surprised in the bathroom.
It also rejected the appellant’s
explanation as to how the deceased’s blood got onto the safe
door as ‘wholly
improbable, particularly given the position of
the blood smudges which were said to go from right to left across
the front’.
It also found it significant that there was no
blood on the handle of the safe door or on its opening edge. It
found that if
the appellant wanted to find the firearm, he should
obviously have followed the blood trail from the veranda to the main
bedroom
where the firearm was lying on the floor.
The trial court disbelieved the
appellant’s reason for making his trip at about 4:30 pm to
point K on Sunday. As nothing
further could arise with Investec over
the weekend, it found it strange that the accused thought there
could be a problem on
Sunday afternoon that had not already been
discussed between himself and his advocate either on the Saturday or
Sunday morning.
It could not understand why he sat at point K
‘achieving nothing’ for ten minutes for a sms to
download without dialling
his son to clarify whether there was a
problem with the property transaction.
The trial court found that the
appellant clearly tried to convey that there had in fact been an
intruder. It based this finding
on the appellant’s evidence as
to how the dogs had behaved if an intruder entered the house and
shot the deceased. It found
that the appellant could not have known
how the dogs would have behaved because on his own evidence there
had never been any
confrontation with an intruder whilst they were
in residence, all burglaries having occurred in their absence.
Dr Perumal’s evidence that
there was no back splatter explained the absence of back splatter on
the appellant’s clothing.
However, the trial court considered
it a ‘remarkable feat’ to get the deceased’s blood
only on the tips of
his sleeves after holding her whilst her
clothing was blood drenched.
It considered the evidence of the
contingency plan to be an afterthought because the appellant did not
give this evidence on the
first day of his testimony. It was an
attempt at explaining how the pistol got into the bathroom
It was not surprising that Mr
Bricknell searched the appellant. As the Shaws were alone he would
have thought that the appellant
had been involved in the deceased’s
death. It discounted the likelihood of Mr Bricknell fabricating this
evidence by noting
that this evidence was of no significance. It
found him to be a good witness who, unshaken in cross-examination,
honestly endeavoured
to remember as accurately as possible the
events of that evening. It could not understand the appellant’s
denial that Mr
Bricknell searched him. It preferred Mr Bricknell’s
evidence over the appellant’s.
It agreed with Mr Bricknell that the
appellant’s version that the deceased was depressed on Friday
and Saturday but in a
good mood on Sunday, was inconsistent. It also
found that Mr Bricknell did not lie about Mr Wilson finding
blood-stained tissues
in a waste basket in the bathroom; if he
wanted to lie it was ‘unlikely that he would have said that
initiative came from
his daughter’s boyfriend’ but would
have presented it as his own observation.
Correctly, with respect, it doubted
the usefulness of Mr Madladla’s observation following the
in
loco
inspection, the lapse of 18 months after the incident
and the environmental changes since. Cautioning itself that Mrs
Ndlovu
was a single witness, it nevertheless could not understand
why she would add the apparently worthless snippet of evidence that

a person at the appellant’s residence walked down to the lake
and up again if she did not see this happen.
The significance for the trial court
of the evidence of Mrs Ndlovu and Mr Madlala was that they both
observed and heard some kind
of noisy activity at the Shaw residence
immediately before hearing the gunshot. Mr Madladla’s evidence
that the appellant
left the premises for the first time only after
the shot was fired was inconsistent with the appellant’s
evidence.
Inspector Mchunu confirmed that from
the outset the appellant presented that the deceased committed
suicide and he had never been
informed that the police should start
investigating an attack by an intruder. He was aware of the blood
stained tissue in the
waste paper basket.
Accordingly, having excluded as
reasonable possibilities the suicide and intruder theories, the
trial court accepted as the only
reasonable inference that the
appellant shot the deceased and that he inflicted the fresh injuries
found on her face and on her
finger. It concluded that the appellant
pressed his firearm up against the deceased and shot her whilst
forcing her against the
open bathroom door, with the intention of
not merely injuring her but to kill her because, if she lived to
tell the tale, she
would testify against him. From her position and
her fresh injuries, the trial court concluded that there was some
sort of struggle
between the appellant and the deceased which
resulted in him shooting her in the position that he did. It
concluded that the
only reasonable inference was that he had the
direct intention to kill her.
Demeanour as a guide to credibility
The trial court drew inferences
favourable to the credibility of state witnesses and fatal to the
appellant on the basis of their
demeanour. How do the authorities
approach demeanour evidence?
Demeanour means much more than the
appearance of a witness in the box. It includes witnesses’
manner of testifying, character,
personality and the impression they
create. Whether they are candid or evasive, ready or reluctant in
giving their version, whether
they hesitate unnecessarily, fidget
nervously, twitch facially in response to straight forward
questions, and ‘a thousand
other considerations’
cumulatively contribute to shaping demeanour.
2
The triers of fact are best placed to
make findings on demeanour and to factor such findings in assessing
credibility. However,
in making such findings, they should be
mindful that demeanour in itself is a fallible guide to credibility.
It can mislead.
3
Demeanour is seldom ever decisive in
determining the outcome of a case. On their own, findings on
demeanour have limited value.
4
Demeanour should be considered with
all other factors,
5
including the probability of the
witness’ story, the reasonableness of his conduct, his memory,
the consistency of his version,
and his interest in the matter.
6
As the Constitutional Court has
pointed out,
7
it is dangerous to assume that all
triers of fact have the ability to interpret correctly the behaviour
of witnesses; a trier
of fact may miss entirely the nuances in the
testimony of someone whose life experience differs fundamentally
from that of the
trier of fact. Conduct that elicits empathy from
one adjudicator may seem irrational, inexplicable, odd and even
suspicious to
another adjudicator. Harder still is to anticipate let
alone judge how people behave in the trauma of life and death
situations.
Some comfort can be drawn from the fact that judicial
discipline, the rule of law and the right to appeal itself filter
out as
far as possible the subjective personal predilections and
sensitivities of individual adjudicators. However, these tools are

not foolproof.
The risks of accepting demeanour
evidence is diminished if the evidence accords with the inherent
probabilities, is corroborated,
is not contradicted, or if it is
contradicted then only by evidence of poor quality given.
8
Demeanour should be measured against
adequate facts and tested against probabilities and improbabilities
of the case as a whole.
9
An appellate court must attach weight
but not excessive weight to a trial court’s finding on
demeanour because that court
is in a better position to make such
findings.
10
However, it may interfere with a
trial court’s evaluation of testimony in exceptional
circumstances.
11
In that event, it is not obliged to
accept a trial court’s finding on demeanour as conclusive. In
this case, the trial court
helpfully recorded its impression of the
demeanour of some of the witnesses.
12
Were the inferences the trial court
drew from its observations of witness’ demeanour the only
reasonable inferences?
Credibility and reliability
Mr Bricknell’s relationship
with the appellant was not ‘fine’. It was palpably tense
and riddled with suspicion.
He arrived on the scene with a request
from his wife to take the deceased’s identity book because she
expected the appellant
to be difficult. Mr Bricknell proffered no
rational basis for his suspicion other than his ‘gut
instinct’. For no
reason other than that he had just learnt
that his wife’s sister had died as a result of a firearm
accident he wanted to
search the appellant immediately after meeting
him at the gate. He presented as if he was close family to the Shaws
but he led
no evidence to support the insinuation that the appellant
abused the deceased.
He assumed the role of investigator
notwithstanding the presence of the police. He cast the appellant in
a bad light, without
fully exploring all the possibilities. For
instance, he assumed that the appellant was consuming alcohol
without making any attempt
to ascertain whether the glass he held in
his hand at the bar contained alcohol.
Mr Bricknell discovered the
blood-stained tissues after Mr Wilson told him that the appellant
was acting strangely by going to
the toilet frequently. Although Mr
Wilson initiated the suspicion about the frequent toilet visits, it
was Mr Bricknell who linked
them to the blood-stained tissues. That
Detective Inspector Mchunu did not trouble himself to even view the
tissues let alone
subject them to forensic analysis confirms that
the police did not consider this material to their investigation.
Furthermore,
the fact that the appellant was not cross-examined to
explain this reinforces my view that even the prosecution placed
little
store on the bloodied tissues. Notwithstanding his
suspicions, Mr Bricknell made no effort to ascertain when and who
threw them
there. Many people were in the house from 6pm to 11pm;
anyone could have thrown them there. The trial court heard the
appellant
denying that he even had a box of tissues in the house;
others who were on the scene did not mention the tissues.
Mr Bricknell tried to imply that
there was a sinister reason for the appellant not contacting him
first as he was a relative living
closest to them. The appellant’s
explanation for contacting Mr Kruger first was logical: the latter
knew the co-ordinates
of the area to direct an air ambulance.
Mr Bricknell contradicted himself
about whether he questioned the appellant about the firearm and
about where Mr Wilson sat when
they drove from the gate to the
house. He was also evasive and contradicted himself about searching
the appellant for a firearm.
Initially he testified that he told the
appellant that he wanted to search him. Only in response to
questions from the court
did he say that he actually searched him.
Under cross-examination he evaded the question whether the appellant
consented to being
searched. He contradicted himself about when he
asked the appellant about the firearm, until the learned Judge
corrected him.
Mr Bricknell was unlikely to have
searched or asked to search the appellant because he had no
authority or basis to do so other
than being irrationally suspicious
from the moment he met the appellant at the gate, if not before.
Furthermore, the police were
already there. Being reluctant to ask
the appellant to even move away from the bar, he was unlikely to
indulge in the more invasive
and offensive act of searching him,
especially as the appellant would have resisted being search.
Contrary to the trial court’s finding that
this evidence was insignificant, whether Mr Bricknell searched the
appellant
was material not only to fortifying the reasonableness of
his suspicions but also to defining his relationship with the
appellant,
and consequently, his impartiality and credibility as a
witness.
Significantly, Mr Bricknell tried to
influence the court by opining that the appellant’s narrative
of the events of that
afternoon was inherently inconsistent. He
proffered little detail to demonstrate the basis of his opinion. He
persisted in this
view, notwithstanding his concession that he was
‘battling to remember’. Such evidence as he did proffer
proved the
opposite. The appellant’s narrative immediately
after the incident and in court remained consistent. His
uncontradicted
evidence was that the deceased’s mood was
initially deflated and depressed but she improved to being relaxed
and loving.
Mr Bricknell’s recollection of the appellant’s
account that she died in his arms after he retrieved his sms’

is also consistent with the latter’s evidence in court.
Inadvertently, Mr Bricknell corroborated the appellant’s

evidence that he cared for the deceased when he testified that he
went out to buy the deceased medication for her menstrual pains.
Mr Madlala was on the roof of a house
about 1.1 kilometres away. He saw the appellant’s bakkie being
driven out once but
not when it returned. Following the
in loco
inspection the parties agreed that from point H where Mr Madlala
was, no vehicles could be seen or heard leaving point G, the

appellant’s house. From point H only the movement of a vehicle
could be observed at point G if it was against the white
background
of the house. Therefore, he could have seen the roof of the
appellant’s bakkie as it went up the driveway for
about ten to
twelve metres only. He could not have seen how many people were in
the house and what gender or race they were.
He would not have been
able to see the main entrance, the kitchen door or a person on the
veranda but he would have been able
to see a person exiting the
house from the veranda.
Mr Madlala did not observe the Shaw
residence the entire time that he was on the roof; waterproofing the
roof on a windy winter
afternoon with the sun setting would have
required concentration. If he had been attentive to the goings-on at
the Shaw residence
he would have noticed the white bakkie go up the
driveway from about 4:30 pm on at least three occasions.
Mr Madlala made his statement to the
police three months after the incident. There were material
differences between his statement
to the police and his evidence in
court. Even if his evidence is accepted, it has to be weighed
against the appellant’s
evidence. His evidence does not assist
the court to draw reliable inferences that point to the appellant
killing the deceased
intentionally. However, he corroborates the
appellant in two respects, namely, that the appellant drove out in
his bakkie just
before 5 pm and that there were shadows over the
Shaw residence.
If Mrs Ndlovu did see the appellant
walk to and from the lake, it would shatter his credibility. For
that, Mrs Ndlovu’s
evidence has to be accepted as true beyond
a reasonable doubt. She had not mentioned seeing the appellant walk
down to the lake
either in her statement to the police or in
discussion with Mr Kruger. Arising from the
in loco
inspection it was common cause that from point J where she stood
neither the main entrance nor the appellant’s kitchen
door
could be seen; a person exiting the house from the veranda could be
seen; however, it was not possible to distinguish between
gender,
race or identity of a person at the appellant’s
house.Therefore she could not positively identify that person as
the
appellant from that distance, especially as she, as a diabetic with
poor eyesight, did not wear glasses at that stage. If
she saw a
person she could only assume that it was the appellant. She could be
wrong in making such an assumption, just as she
wrongly assumed that
the noise she heard came from children playing. Her evidence about
hearing children chasing each other around
the house at such a
distance is so improbable that it taints the reliability of other
observations she allegedly made.
To the extent that her evidence is
corroborated by the inspection
in loco
it is admissible. Her
evidence that a person exiting the house from the veranda could be
seen, is therefore admissible. However,
on the whole her evidence is
so unreliable that no inferences can safely be drawn from it.
However, like the trial court, I doubt
that Mrs Ndlovu had a motive
to be deliberately untruthful. Whether she testified about matters
she could not have witnessed
because she wanted to be helpful or for
other reasons are best known to her.
Mr Madlala and Mrs Ndlovu
corroborated each other to the extent that they confirmed that it
was windy that day; so it was possible
that the wind carried the
sound of the gunfire in their direction, as the
in loco
inspection confirmed. They did not corroborate each other about
whether a man exited the Shaw’s house and walked to the
lake
and whether there were people or children running around the house.
Little reliance can be placed on the evidence of Mr
Madlala and Mrs
Ndlovu to contradict the appellant’s version.
Turning to the
experts, the general rule is that opinion evidence is inadmissible
because it lacks probative value and is therefore
irrelevant.
13
However, as an
exception to the general rule, opinion evidence is readily received
on ballistics, medicine, psychiatry and other
fields in which the
skills and knowledge of the court could be supplemented.
14
In a murder case
which must be decided substantially on circumstantial evidence,
credible and reliable expert opinion
evidence
on ballistics and forensic pathology is indispensable.
15
However, the relevance and
admissibility of their opinions are confined exclusively to matters
specifically within their expertise.
Having established facts within
the realm of their expertise, the inferences they draw from those
facts to found their opinions
are relevant only to the extent that
they fall within the scope of their expertise. Opinions expressed
beyond the scope of their
expertise are unreliable, irrelevant, and
inadmissible.
16
T
he qualifications
and expertise of both experts in this case were accepted.
On
the whole
both experts were independent and
impartial. However, the weight to attach to their findings, opinions
and inferences fall exclusively
upon the court to evaluate in the
context of all the evidence and the law.
Detective Inspector Mchunu should
have been another key witness as the investigating officer in a case
built exclusively on circumstantial
evidence. His contribution has
been shoddy and haphazard. He did not investigate the possibility of
the deceased being shot by
an intruder. He heard about the intruder
theory for the first time when it was put to him in examination in
chief. Despite being
present from about 21:00 on the night of the
shooting, and finding blood on the carpet and the safe curious, he
took no samples
of it for forensic testing. Neither did he trouble
himself to investigate the blood-stained tissues in the wastebasket.
He did
not test the firearm for fingerprints. Without a full
investigation of the intruder hypothesis, the evidence for and
against
such a possibility is incomplete. His evidence about the
blood stains in the back room was not corroborated by the experts.
If
those stains could have been corroborated by other policemen they
were not called. Disappointingly, Detective Inspector Mchunu
added
little value in a case where the investigating officer had a
critical role.
Except for his ‘excessive and
irritating’ use of the word ‘certainly’ the trial
court could not fault
the appellant’s demeanour. As a ‘highly
intelligent individual’ who had ‘considered every
aspect’
and ‘all the objective evidence’, he had a
‘ready answer for all questions’, the trial court
opined.
Inferring that his ‘intelligence and sophistication’
enabled his faultless demeanour, the trial court questioned his

truthfulness. It found his evidence to be ‘patently a
fabrication’.
With respect, the appellant’s
intelligence, sophistication and ready answers cannot without more
count against his credibility.
Usually, having ready answers count
in favour of the credibility of a witness. Guilty or not he would
have considered every aspect
of the incident. His evidence should be
rejected if it is materially contradictory, improbable, incredible,
unreliable or otherwise
unsatisfactory.
I find that his recollection of the
events of that afternoon was lucid notwithstanding his distress and
trauma.
Nowhere in the entire record did the
appellant contradict himself. The same cannot be said of the
evidence of Mr Bricknell and
the neighbours. The appellant’s
evidence in cross-examination is almost identical to his evidence in
chief and his report
to Mr Bricknell. He repeatedly resisted
invitations to speculate when responding to questions for which he
himself might have
been searching for answers.
As elucidated
below,
corroboration
for the appellant’s version emerges from
Mr
Bricknell, the cellular phone records, the photographic exhibits,
the
in
loco
inspection
report, Dr Perumal, the blood stains, the absence of primer residue
on his hands and clothing, and, to a lesser extent,
the neighbours.
Overall, t
he
appellant’s evidence is consistent both within the content and
structure of his own evidence and with the objective facts.
17
Even if he did
shoot the deceased, some aspects of his version ring true. He
narrated such details of the incident that they must
have happened.
For instance, her Croc shoes getting in the way when he knelt on the
floor to kiss her, was an irrelevant detail
that stood out in his
recollection of the events of that afternoon. Notwithstanding the
brevity of his statement in terms of
s 115
of the
Criminal Procedure
Act 51 of 1977
, he mentioned it there and repeated it in his
examination in chief. He was shaking too much to take her pulse.
Panicked, he did
not pick up his cellular phone with his keys.
He wiped her
blood from his hands on the seat of his pants in the urgency of the
moment. She was not dead when he found her. He
volunteered evidence
that Inspector Du Preez who knew him and the deceased
cold-shouldered him, an irrelevant detail which did
not support him.
In so far as the appellant’s
evidence conflicts with evidence of Mr Madlala and Mrs Ndlovu, his
evidence should be preferred
as I have found the latter to be
unreliable. As Mr Bricknell was suspicious of the appellant from the
outset, he was not independent;
his evidence has to be approached
with caution. In any case, like the investigating officer, he shed
little light on how the
shooting occurred. In summary, mainly the
evidence of the experts establishes a case for the appellant to
meet.
Circumstantial evidence
On the facts, many permutations of
possible inferences arise to fire the imagination of any murder
mystery writer. However, speculating
and fantasising about facts not
proved or selecting some reasonable inferences and ignoring others
is firmly disallowed by the
authorities discussed below.
Circumstantial
evidence is any fact from which a fact in dispute may be inferred.
18
Such facts have to
be proved by direct evidence.
19
Conclusions drawn
from evidence not proven or admitted are speculation not inference.
20
The challenge is
to draw the most reasonable inferences from the proven facts to
establish the guilt of the appellant beyond reasonable
doubt,
without overlooking the possibility of other equally probable or
reasonably possible inferences.
This approach to
circumstantial evidence constrains adjudicators of fact from
over-zealously exercising their imagination by filling
the
information gaps to construct theories to explain their conclusions.
Such creative enterprises risk overlooking inconsistent

circumstances or assuming facts which have not been proved or cannot
legitimately be inferred.
21
Referring to
R
v Blom
1939
AD 188
at pp 202 and 203,
22
The South
African Law of Evidence
encapsulates
an enduring rule of logic applied to circumstantial evidence in
criminal trials in the following extract:
23
‘
a.
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
b.
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.’
It follows that it
is not for the trier of fact to speculate ‘as to the possible
existence of facts which together with
the proved facts, would
justify a conclusion that the (appellant) is innocent.’
24
In a murder case
in which the state has not established the cause of death and the
guilt of the appellant rested on circumstantial
evidence, the
majority in the erstwhile Appellate Division held that other
indications of an intent to kill had to be very strong
if they are
to make up for serious deficiency and leave no reasonable doubt.
Inferences cannot
be drawn from conjecture or speculation.
25
In
R
v De Villiers
1944 AD 493
at 508 – 9, it was held that a court should not consider each
circumstance in isolation and draw inferences from each single

circumstance. The onus on the state is not to prove that each
separate item of evidence is inconsistent with the innocence of
the
accused, but that taken as a whole, the evidence is beyond
reasonable doubt inconsistent with such innocence.
26
Other commonwealth
jurisdictions adopt a similar approach to circumstantial evidence in
criminal cases. In
Shepherd
v R
[1990]
HCA 56
;
(1990) 170 CLR 573
(19 December 1990), the High Court of
Australia confirmed that in cases based on circumstantial evidence,
juries cannot use a
fact as a basis for inferring guilt unless that
fact is proved beyond reasonable doubt. Likewise, in the United
Kingdom, facts
which establish a link in the chain of reasoning
towards an inference of guilt must be proved beyond reasonable
doubt.
27
Chamberlain v R
(2)
[1984]
HCA 7
;
[1984] 153 CLR 521
, colloquially renowned internationally as
‘the dingo case’, cautioned that facts considered in
isolation may not
lead to any inference of guilt or innocence;
however, when evidence is considered together, its probative force
is greatly increased.
28
As this was not a
unanimous decision, it poses another question: Can guilt be found to
be proved beyond a reasonable doubt if
there is a dissent? If the
dissent is based on inferences drawn from the circumstances by
adopting the approach outlined above,
the answer might well be ‘no’.
Put differently, the dissent has to be wholly irrational in order
for the majority
guilty finding to prevail.
Adducing evidence in chief and
cross-examination effectively in cases where the evidence is
entirely circumstantial assumes special
importance. Testing all
reasonable possibilities fully is indispensable not only for
discrediting evidence and for enabling the
witnesses to refute
attacks on their credibility,
29
but also for eliciting for the trier
of fact, not speculation, but explanations which, if reasonable,
would enable appropriate
inferences to be drawn. Failure to examine
and cross-examine effectively may not only bar a party from later
seeking to draw
inferences from facts not attested to or disputing
the truth of a witness’ evidence,
30
but also impair the ability of the
trier of fact to draw the most reasonable inferences.
Does the circumstantial evidence
elevate the
possibility that the appellant shot
the deceased intentionally to a certainty? In other words, do the
material circumstantial
facts, viewed cumulatively, establish this
as the only reasonable inference? To answer this question the facts
and inferences
for and against each of the three possibilities are
assessed.
The intruder theory
On the available evidence this theory
is weak. Nothing was missing from the house, not even the firearm
used to shoot the deceased.
Mr Bricknell who accounted for the
deceased’s handbag and its contents had no knowledge of the
missing jewellery, which
could have been mislaid or stolen by
someone other than an intruder.
There were no signs whatsoever of a
third party having entered the premises. The best evidence of this
fact came from the appellant
himself when, on discovering the
deceased, he entertained no thought of a third party being involved.
He agreed that it would
have been fortuitous that an intruder would
break in during the 15 minutes he was away checking his sms. An
intruder would have
had to observe the house to time his entry at
just the moment when he was away. Having
observed
the house an intruder would also know that the appellant would be
away for no more than 20 minutes. Furthermore, the
gruelling terrain
counted against the intruder theory, which I agree with the trial
court, should be rejected as improbable.
The suicide theory
The deceased
had
attempted suicide twice before by overdosing herself with tablets.
In the past, she had consulted a psychotherapist and a
psychiatrist.
She suffered from depression. Although she was no
longer on medication, her condition had been serious enough for her
to have
received medication and professional treatment before.
She was a mother
of two teenage sons from whom she was unhappily separated.
Anxiety, perhaps even guilt, could have contributed to her distress.
Her conflict with Mrs Smith ran deep, especially
as it related to her children. She invited herself over to discuss
it with her
sister, Mrs Bricknell. On Friday she was deflated. Even
though she appeared to have recovered from her altercation with Mrs
Smith
and seemed relaxed, she also mused over the issue again on
Sunday afternoon with the appellant. She was so deeply conflicted

about Mrs Smith caring for her sons that the appellant was moved to
suggest that she return to Durban to be with them.
She was menstruating, in pain and
could have been more emotional than usual. She either had an
unusually high tolerance for or
she abused alcohol, which also
suggests emotional and psychological instability.
Although her work and financial
interests were on a positive path, there is no evidence that she
showed any interest or enthusiasm
in these developments. It was the
appellant who moved matters along for her by setting up appointments
with her lawyers. When
they discussed their plans for the following
week shortly before she died, her dilemma about her children
continued to trouble
her to the point that she reintroduced the
topic.
Although shooting herself on her
right shoulder would have been awkward, it was not impossible,
especially if she used both thumbs
to pull the trigger. The angle
and direction of the shot also did not exclude suicide. The opinion
evidence that firing only
one shot is atypical of women who commit
suicide by shooting themselves is a generalisation which cannot,
without more, be admitted
as a fact from which any reasonable
inference can be drawn in this case. Besides, to be admissible, such
evidence must emanate
from experts in the field if say psychology or
psychoanalysis. Furthermore, if the deceased was as intoxicated as
Dr Perumal
testified, to predict how she would have held the gun
would amount to pure speculation.
The experts on ballistics and
pathology did not know the deceased and were not aware of her mental
state. They were especially
not aware that the deceased had twice
attempted suicide. Or that the appellant had saved her on both
occasions. Surprisingly,
the judgment of the trial court also does
not refer to the deceased’s failed suicide attempts. For
reasons not apparent
from the evidence, the previous suicide
attempts were downplayed before the trial court.
The trial court
found that shooting herself once in the shoulder did not signal a
suicidal intention. Having regard to her two
previous suicide
attempts, it is an open question as to whether she really intended
to end her life. As with her two previous
suicide attempts, when the
appellant rescued her, she knew that he would return soon to save
her. In the circumstances, t
he suicide theory is a real
possibility.
Murder
State’s Case
The high water mark of the state’s
case is the circumstantial evidence and the opinions of the experts
based on it. The
inference they drew that the shooting was
inconsistent with suicide is admitted insofar as it is drawn
exclusively from the narrow
perspective of their respective
expertise. However, the court must weigh their opinion against all
other evidence before it concludes
that the only reasonable
inference is that the deceased did not commit suicide but was shot.
Neither expert was qualified to
express a reliable and admissible opinion on the mental and
emotional state of the deceased and,
from that perspective, her
propensity to commit suicide. If they had been aware that the
deceased had attempted suicide twice
before, they might have drawn
other inferences or been less convinced that she did not commit
suicide. Furthermore, unlike the
court, they did not have the
benefit of all the available facts from which to draw the most
reasonable inferences. Ultimately,
the experts could neither exclude
the possibility of suicide nor point to the appellant as the
murderer.
Upon my finding that the suicide
theory is a possibility it follows automatically
that
there is reasonable doubt about whether the appellant shot the
deceased. Weighing in the defence below fortifies this conclusion.
The Defence
Critical to the credibility of the
appellant is proof of the nature of his relationship with the
deceased. The appellant painted
a picture of an ordinary middle-aged
couple living together, sharing the pleasures and problems that many
couples experience.
He loved and cared for her. The slightest
evidence to gainsay this image of normality and harmony would
destroy his defence.
For reasons unknown to the court,
independent witnesses gave evidence that shrouds appellant in
suspicion; in the case of Mrs
Ndlovu, it is even incriminating. The
deceased’s mother was prepared to incur the cost of a forensic
pathologist instead
of accepting the appellant’s explanation.
This milieu of suspicion suggests that there could be more to the
appellant’s
relationship with the deceased than he disclosed
to the court. However, although the state put to him that he abused
the deceased,
it led no evidence in support of this proposition.
Even Mr Bricknell, who was disposed to painting the appellant in a
bad light,
failed to advance this evidence. On his version too, the
appellant was not the cause of her emotional distress, Mrs Smith
was.
Without reliable evidence to the contrary, I must accept that
the relationship was loving and harmonious.
Other than a vague
insinuation that the appellant abused the deceased, no motive for
killing her was canvassed at all.
Proof
of motive for committing a crime is highly desirable to establish
the intention.
31
Without proof of
any motive the state fails to prove an intention to kill which is an
element of the crime of murder. Why the
appellant would shoot the
deceased when he had saved her life twice before remains
unexplained. Instead, corroboration for the
appellant emerged from
several sources.
Evidence that he pampered the
deceased emerged from an unexpected source. Mr Bricknell was neither
surprised nor did he dispute
that the deceased directed the
appellant to ready the house for paying guests whilst she lay on the
couch. That the appellant
served her coffee and breakfast in bed
went unchallenged. Mr Bricknell confirmed that the fire had been lit
in the lounge. The
appellant testified that he lit the fire because
the deceased felt cold. Mr Bricknell seemed to accept the
appellant’s
description of the deceased being her usual self.
Evidence that the appellant reported that he went to Nottingham to
buy medication
to ease the deceased’s menstrual pains came
from Mr Bricknell himself and not the appellant who did not repeat
that evidence
in court even though it favoured him.
Blood stains on
the safe door also corroborated the appellant’s testimony that
he did not immediately see the trail of blood
from the veranda into
the house where the deceased was shot and where he found the pistol.
In his evidence in chief the appellant was not invited to
explain the blood stains on the safe door. When cross-examined about
it, he seemed to search for an explanation. If he deliberately
smeared blood on the safe door to corroborate his version that
he
went in search of the weapon, he would have put that version upfront
at the first opportunity in examination in chief instead
of hoping
for an opportunity to give this explanation under cross-examination.
Photographic Exhibits B 11 and 12
show the smudges on the opening edge of the safe door, extending
from left to right for some
150 millimetres, and not ‘from
right to left’ as the trial court erroneously found.
Furthermore, the fact that there
was no blood on the handle of the
door corroborates the appellant’s evidence that the safe door
was unlocked and could
be opened by holding the edge; hence he had
no need to touch the handle of the door. As for the apparent absence
of blood on
the edge of the door, holding it on its narrow edge to
pry it open might not have left visible signs of blood. Other than
the
photographic evidence of the door, no other evidence was adduced
to prove that there was no blood on the edge of the door.
The appellant proffered the only
explanation for the blood stains on the safe. No other version was
canvassed during the trial.
His explanation that he opened the safe
in search of the gun is plausible and has not been gainsaid. To
reject this explanation
the court must find that it is inherently
improbable and that the appellant is lying. The court has no basis
to do that. Conjuring
any other explanation would be speculation.
Photographic exhibits 14 and 15 show that the deceased had no blood
on her clothing
on her left side. This explains why he had no blood
stains on the front of his jacket as a result of holding and kissing
the
deceased, he must have knelt on her left as he bent over her.
Dr Perumal also corroborated the
appellant in at least two respects: after looking at the
photographic exhibits, he confirmed
that it was not easy to see the
high velocity splatter of blood on the dark paving where the
deceased lay. Furthermore, his evidence
that she would have survived
for about 10 to 15 minutes corresponds with the appellant’s
evidence that he returned to the
house in about 15 minutes to find
her still breathing.
The appellant’s
cellular phone records also corroborate his version not only about
the calls he made but also about the times he was at point
K.
Although they do not confirm that at the most crucial moment of the
shooting he was at point K because he neither sent nor
received
messages, it does confirm that from 16:59:10 he made the calls he
attested to.
Corroboration also emerges from the
in loco
inspection which confirmed that from point K one
could not see the Shaws’ house (point G). More importantly,
gunshots fired
at the house from the bathroom with the windows
closed and open could not be heard at point K. This explains why the
appellant
did not hear the shooting. As only a dull sound was heard
at point J (Mrs Ndlovu’s viewpoint) and at point H (Mr
Madlala’s
viewpoint), it is doubtful that Mr Madlala and Mrs
Ndlovu recognised it at the time as a gun shot or been particularly
disturbed
on hearing the ‘explosion’. Neither reported
nor investigated the cause of the explosion probably because neither
considered the sounds and movement unusual.
If Mr Madlala is to be believed he
also corroborated the appellant about seeing shadows at the Shaw
homestead. However, how he
could distinguish those to be of people
from a distance of 1.1km is hard to fathom.
The absence of primer on the
appellant’s hands and clothing corroborates his evidence that
he did not shoot the deceased.
However, this is not decisive proof
because the deceased sustained a contact shot and his hands were
tested long after primer
residue became untraceable.
As for the quality of the police
investigation, the state failed to investigate and adduce better
evidence. The police did not
even entertain the possibility of an
intruder shooting the deceased let alone investigate it. Amongst
other things, the police
failed to take finger prints off the
firearm, to test the appellant’s clothing sooner, to assess
the crime scene immediately,
to take samples of the blood that
Inspector Mchunu said was smudged by the following day, and to
photograph the bar which Mr
Bricknell alleged had been cleared by
the appellant. No evidence was led to rebut the appellant’s
evidence of the two previous
suicides. The insinuation that the
appellant abused the deceased was not supported by any evidence.
As for the prosecution’s
failure to cross-examine on material issues, it indicates not only
short comings in the state’s
case, but also acceptance of the
appellant’s version. The prosecution failed to cross-examine
the appellant about waiting
for a sms instead of dialling his son
for information; and about his contingency plan in the event of his
homestead being attacked;
about how his dogs would have behaved at
the time of the shooting, all facts from which the trial court drew
adverse inferences
without his evidence being challenged and without
him having an opportunity to explain himself fully. They were not
the only
or most reasonable inferences. Crucially, he was not
cross-examined about the two prior suicide attempt, why he could not
explain
the deceased’s high level of inebriation, despite
consenting to the ethanol test being admitted without proof and why
he
persisted that he was always aware of her level of inebriation
when he did not explain how she could have consumed such a huge

quantity of alcohol without him knowing.
As for the fresh injuries to her
forehead and finger, the deceased could have sustained them if she
stumbled from the bathroom
where the shooting occurred onto the
veranda. He did not observe these injuries initially possibly
because there was not enough
light; her hair might have obscured the
injuries to her face or, because he was so traumatised, he did not
notice such detail.
In his own search for explanations he assumed
that she had sustained these injuries when she fell because he knew
that he did
not cause them.
Are there inconsistencies in the
appellant’s evidence?
The appellant
described his state on discovering the deceased as shocked and
extremely traumatised, unable to apply logic, distressed,
hysterical
and distraught. Mr Bricknell corroborated that he was distressed and
crying. In that mental state his ‘instant
conclusion’
was that ‘she had done something to herself’. He could
not understand why but he came to that conclusion
because he had not
seen any one else around; nor had there been a confrontation while
they were in residence in the thirty years
he had the property.
Hence he factored out a third person. And he knew where he had been
and that he had not shot her.
By the end of the week he revised his
initial deduction that she had ‘done something to herself’
and entertained the
possibility of ‘something else’. As
he had not been cross-examined on this issue, the trial court erred
in finding
that he abandoned the theory that she shot herself after
seeing that the experts did not support it. He did abandon it but
there
was no evidence that he did so because he had seen the
experts’ reports. His counsel nevertheless persisted with it
as
a possibility. Although his search for answers led him to
consider the intruder theory, he showed no conviction in it.
Unequivocally,
he conceded that an intruder shooting her would have
been purely fortuitous. His instant assumption that she had ‘done

something to herself’ is corroborated by his search for the
firearm which, in turn, is corroborated by the blood on the safe

door; if he shot her he would have known where the firearm was
without having to search for it. Viewing his evidence as a whole,
he
had not totally relinquished this assumption.
The appellant
noticed the blood stains for the first time on the cream carpet near
the bathroom when, almost an hour after he
found the deceased, he
went in search of the weapon.
That
was when he saw the trail lead on to the quarry tiles. His
explanation for not seeing the trail earlier was that the blood
was
on dark quarry tiles, a fact corroborated by Dr Perumal.
Furthermore, when he entered the house he was not looking at the

floor but ahead for the deceased. As it was getting dark the shadows
were also long on the floor inside, a fact corroborated
by Mr
Madlala. Therefore this does not contradict the appellant’s
earlier evidence that with the sun setting at 17:05 it
was light
outside.
The appellant attested in chief to
the contingency plan if they were attacked on the first day of his
testimony. The trial court
first erred in finding that he attested
to this only on the second day of his evidence. Second, based on
this erroneous finding,
it also inferred that he must have contrived
the contingency plan. His explanation that as a habit he left a
loaded firearm for
the deceased’s protection whenever he left
her alone and went to Nottingham Road was neither unreasonable nor
contradicted.
The trial court
rejected the appellant’s theory that the deceased could not
have been surprised in the bathroom because
if she had been
surprised she would not have had an opportunity to take out the
firearm from her cupboard.
Invited to speculate under
cross-examination, the appellant opined that the deceased might have
taken the firearm from her cupboard
as she ran into the bathroom but
the intruder caught up with her. That either she or the intruder
already had the pistol when
she got to the bathroom is an objective
fact. It is unlikely that an intruder would have found it concealed
in her cupboard in
such a sort time. Therefore, his theory that she
could not have been surprised in the bathroom because she must have
taken the
pistol from her cupboard is plausible.
Undoubtedly, the shot was fired in
the doorway of the bathroom. The experts agreed that she was not
immediately incapacitated.
The droplets of blood suggest that the
deceased moved from the
en suite
bathroom through the main
bedroom, past the adjoining bedroom, past another bathroom, into the
bar adjoining the lounge, where
she u-turned and exited onto the
veranda. With no signs of a struggle, the droplets of blood, the
absence of more blood stains
on the appellant’s clothing and
the fact that the deceased was not immediately incapacitated tend
towards proving that
the deceased made her way unassisted from the
bathroom to the veranda. This supports an inference that the
appellant was not
there when the shot was fired. Importantly, it
also corroborates the appellant’s denial that he caused the
fresh wounds.
If the appellant was not there when the shot was fired
and there was no evidence of any sign of a struggle, better evidence
was
required to exclude the possibility that the deceased did not
injure herself by, for example, bumping herself against the walls

and furniture as she stumbled on to the veranda. The trial court
erred in finding that the appellant inflicted the fresh injuries.
According to Dr Perumal, the deceased
bled to death from the gun shot wound. There is no evidence that the
appellant allowed her
to bleed to death or that he did anything to
expedite her demise. On the contrary, on discovering that she was
shot but alive,
the appellant concentrated on keeping her alive.
Discovering who shot her and where the weapon was were not his
primary concern.
After telephoning Mr Kruger the first time the
appellant contacted him twice more within the hour to check whether
an air ambulance
was on its way. He was anxious to get medical
attention to her. If he had shot her he would not want her alive to
tell the tale.
Insofar as the shot in the shoulder suggests that he
might have shot her unintentionally, perhaps in a drunken brawl,
this was
not canvassed at the trial. An accidental shooting was not
the state’s case. The only mention of an accident came from Mr

Bricknell who testified that Mr Lambert had initially informed him
that the deceased had been shot accidentally. Mr Lambert was
not
called to expatiate on this hearsay evidence.
The trial court found that if the
deceased was determined to end her own life, she had enough time to
fire again into a more definitive
location. On analogous reasoning,
if the appellant had killed her intentionally, he would have chosen
a more fatal spot to shoot
her so that her death would have been
instant and certain.
The reason he went to point K on
Sunday morning was to discuss the property transaction with his
advocate and his son who had
taken documents to the advocate. Whilst
it is improbable, though not impossible, that he would have access
to an Investec employee
on a Sunday, access to his advocate, who was
also his friend was not improbable. His cellular phone records show
that he contacted
his advocate and his son on that Sunday morning.
Expecting a communication form them on Sunday afternoon is possibly
true. Furthermore,
as he was not cross-examined as to why on a
non-business day he went up the hill to point K, to wait for a sms
that did not come,
no adverse inference should have been drawn by
the trial court, especially as his evidence that his trips to point
K were routine
was also not challenged.
The appellant volunteered information
that he became aware that the dogs were not around when he found the
deceased. At the invitation
of his counsel to describe the dogs he
explained that they were not vicious. In expatiation, he speculated
that they would have
barked and followed someone off the property.
He could only speculate because something like this had not happened
before. His
speculation should therefore not have attracted an
adverse credibility finding. The more obvious explanation that dogs
usually
flee at the sound of an explosion such as gun shots and fire
crackers was not canvassed in the trial court.
A careful trawl through the
appellant’s evidence suggests that he downplayed the
possibility that the deceased abused alcohol
and committed suicide.
Notwithstanding his puzzlement about the high level of alcohol, the
appellant accepted the results of
the ethanol tests without evidence
being led to prove them. Consequently, the court is bound to also
accept Dr Perumal’s
inference that she had consumed about 1.5
litres of wine.
The deceased either abused alcohol or
had a high tolerance for it. Her drinking habits were a concern to
the appellant as it induced
her epileptic fits. His comment that she
was starting rather early also suggests that he might have had more
reasons than her
epilepsy to caution her about drinking. She could
consume as much as twenty glasses without collapsing. Dr Perumal
also did not
discount alcohol abuse. Significantly, one of the first
questions Mr Bricknell asked the appellant was whether he and the
deceased
had been drinking. The consumption of alcohol by the
deceased and the appellant was a concern for Mr Bricknell for
reasons he
did not explain.
Notwithstanding
his persistence that he was always aware of her level of
inebriation, the appellant did not proffer any explanation
for the
deceased being so inebriated without his knowledge. He avoided
acknowledging that she abused alcohol.
He maintained that it
was not normal for her to drink on her own. Although he found her
standing at the bar when he returned
from putting away his tools, he
immediately clarified that the bar was a ‘convenient sitting
talking place…not necessarily
a place where we only…drank.’
Acknowledging her alcohol abuse would have
presented the deceased as emotionally unstable and fortified the
suicide theory. This
is not how he articulated his defence when he
testified. He invoked it in his affidavit in support of his petition
for special
leave to appeal. Significantly, his affidavit was made
in August 2009 after a lapse of more than 2 years after the deceased
died
and when he faced the prospect of imprisonment.
He disclosed her
previous suicides only at the end of his evidence in chief and on
being asked specifically about them. As a result,
state witnesses
were not cross-examined about it. The state neither cross-examined
him nor rebutted this evidence.
From the outset he said that
the deceased had done something to herself rather than that she had
committed suicide. His description
kept open possibilities other
than suicide to explain the shooting.
He was not
probed either in examination in chief or cross-examination to
explain his choice of terminology.
Notwithstanding the appellant
downplaying and rejecting the suicide theory even when his counsel
relied on it, it was his instantaneous
assumption she had done
something to herself. Only later when the ‘blur’ abated
and he was psychologically more stable
did he entertain the intruder
theory in his own pursuit for an explanation. This was his
uncontroverted evidence from which the
trial court drew an adverse
inference.
The deceased’s apparent good
mood was as much for him as for Mr Bricknell and the trial court,
irreconcilable with the suicide.
However, according to ‘Gunshot
Wounds’, to which Mr Pitman referred, it is not uncommon for
suicide victims to be
relaxed and happy immediately before
committing suicide because they have found a solution to their
troubles in the suicide.
Therein might be an explanation but not one
from which the court can draw any inference in the absence of expert
evidence.
The appellant’s
apparent reluctance to rely on the deceased’s previous
suicides and his inability to explain her level
of inebriation, both
of which ironically reinforce his defence, calls for explanations
which are not forthcoming from the record.
Shock,
denial, disbelief that a loved one is dead, and in the case of
suicide, even
shame,
guilt and a sense of having wronged the deceased could overwhelm
survivors to the point of them falsifying the reasons
for the death.
An explanation for the link between appellant’s conduct, his
emotions and his thoughts immediately after
the incident to his
testimony in court might have been forthcoming if he had been
examined and cross-examined to that effect,
or better still if he
had been assessed by a psychologist, psychiatrist or ideally a
thanatologist. It might also explain whether
and why he was
reluctant to accept the deceased’s level of inebriation
despite the forensic evidence, and whether his conduct
and
observations could be a consequence of trauma, distress and nervous
shock.
The appellant almost did not proceed
with this appeal because he had no funds to pay for his legal
representation. Consequently,
the possibility of being
psychologically evaluated and leading that evidence eluded him. As
the evidence stands, the court has
no explanation as to why he would
downplay evidence that reinforced his defence.
Acknowledging that she abused alcohol
and committed suicide implied that she was unhappy and emotionally
unstable, which in turn
reflected badly on him as her husband. It
implied that he might have contributed to or been responsible for
her distress, that
he did not take care of her properly, that he
failed to save her as he did previously. The possibilities are
endless. As he was
not examined or cross-examined about why he
downplayed her possible emotional instability, the court cannot draw
any inferences.
Conclusion
Having accepted the suicide theory,
it follows automatically that there is reasonable doubt as to the
guilt of the appellant.
The appellant’s own version fortifies
this conclusion. As a credible witness, his evidence that he did not
shoot the deceased
must therefore be accepted. The state has not
proved the appellant’s guilt beyond a reasonable doubt.
Cumulatively, the
evidence supports the conclusion that the
appellant is not guilty. The appeal succeeds.
The order I propose is the following:
The appeal is upheld.
The conviction and sentence are set
aside.
DHAYA PILLAY J ______________________
C PATEL DJP
______________________
I agree
GRAHAM LOPES J
_______________________
I agree
1
Vincent
J. M. Di Maio
Gunshot Wounds: Practical Aspects of Firearms,
Ballistics, and Forensic Techniques
(1998) 2 Ed, p 358.
2
Cloete
NO and Others v Birch
R and Another
1993 2 PH F17 (E) 51;
R v Haefele
1938 SWA 21; Schwikkard and Van de Mervwe
Principles of Evidence
(2002) Juta 2 Ed, p 502.
3
Cloete
NO and Others v Birch
R and Another
1993 2 PH F17 (E) 51
4
S
v Malepane and Another
1979 (1) SA 1009
(W) 1016H – 1017H
in which the WLD had to evaluate the evidence of a single accused
testifying through an interpreter.
S v V
2000 (1) SACR 453
(SCA) 455F.
5
R
v Masemang
1950 (2) SA 488
(A) at 495;
R v Momekela and
Another
1936 OPD 23.
6
Cloete
NO and Others v Birch R and Another
1993 2 PH F17 (E);
7
President
of the RSA and Others v SARFU
2000 (1) SA 1
(CC) at 79;
Patel
v Patel
1946 CPD 46.
8
Cloete
NO and Others v Birch
R and Another
1993 2 PH F17 (E) 51
9
Cloete
NO and Others v Birch
R and Another
above
10
Koekemoer
v Marais
1934 2 PH J27 (C).
11
S
v Francis
1991 (1) SACR 198
(E) 204 e.
12
Schwikkard
and Van de Mervwe
Principles of Evidence
(2002) Juta 2 Ed, pp
201 – 203.
S v Mwanyekanga and Three Others
1993 2 PH
H54 (C) 143.
13
Schwikkard
and Van Der Merwe
Pinciples of Evidence
8 3.
14
Schwikkard
and Van Der Merwe
Pinciples of Evidence
8 6
15
Schwikkard
and Van Der Merwe
Pinciples of Evidence
8 6
16
Schwikkard
and Van Der Merwe
Pinciples of Evidence
8 2 citing Nicholas J “Some aspects of
Opinion Evidence” in Kahn (ed)
Fiat
Justitia: Essays in Memory of Oliver Deneys Schreiner
(1983) at p 225.
17
Heef
v Nel
1994 (1) PH F11 (TPD) cited in Schwikkard and Van de Merwe
Principles of Evidence,
p 501.
18
L
Hoffmann & D T Zeffertt,
The South
African Law of Evidence
(1988)
Butterworths 4 Ed, p 588.
19
L
Hoffmann & D T Zeffertt,
The South
African Law of Evidence
(1988)
Butterworths 4 Ed, p 589.
20
Cloete
NO and Others v Birch
R and Another
1993 2 PH F17 (E) 51.
21
Ibid.
22
R
v Blom
1939 AD 188
at 202-203;
Isaacs
v S
(039/10)
[2010] ZASCA 87
(31 May
2010).
23
L
Hoffmann & D T Zeffertt,
The South
African Law of Evidence
(1988)
Butterworths 4 Ed, p 589.
24
L
Hoffmann & D T Zeffertt,
The South
African Law of Evidence
(1988)
Butterworths 4 Ed, p 592.
25
R
v Mlambo
1957 (4) SA 727
(A) 738 A. at
737 D-F; L Hoffmann & D T Zeffertt,
The
South African Law of Evidence
(1988)
Butterworths 4 Ed, p 593.
26
Schwikkard
and Van de Merwe
Principles of Evidence
at p 505;
R v
Mthembu
1950 (1) SA 670
(A);
R v De Villiers, supra,
508
– 9.
27
Shepherd
para 5 per Dawson J;
Director
of Public Prosecutions v Kilbourne
[1973]
1 ALL ER 440 (HL) 462.
28
Chamberlain
at 568.
29
S
v Xoswa & Others
1965 (1) SA 267
(C) 273c;
R v Ngema
1960
(2) SA 263
(T).
30
L
Hoffmann & D T Zeffertt,
The South
African Law of Evidence
p
461;
S v Manicum
1998 (2) SACR 400
(N) 404. per Broome DJP and
Booysen J.
31
R
v Mlambo
1957 (4) SA 727
(A) at 737C.