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[2006] ZAWCHC 81
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Birch v S (SS118/1999) [2006] ZAWCHC 81 (24 March 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER:
SS118/1999
DATE:
24
MARCH 2006
In
the matter between:
CLAUDE
BIRCH
…...........................................................................
APPELLANT
and
THE
STATE
….............................................................................
RESPONDENT
JUDGMENT
(Application
for Leave to Appeal)
DAVIS.
J
:
This
is an appeal against a judgment in Magistrate's Court on the 20
th
April
1999 in which the appellant was convicted of a range of offences
including two of rape, robbery, two counts of attempted murder
and a
series of other offences.
The
matter then was referred to this Court for sentence in terms of the
minimum sentence legislation under the
Criminal Procedure Amendment
Act of 1997
. The date of sentence was the 27
th
November
2000 in which this Court confirmed the conviction and imposed a
sentence of 20 years cumulatively The basis upon which
the sentence
was formulated is as follows. On the two counts of rape 20 years for
each count, on
the
count of assault with intent four years, on the two counts of robbery
seven years on each count, on the count of arson six years
and on the
three counts of attempted murder six years for each count all to run
cumulatively.
The
appellant has been seeking to bring this matter on appeal for quite
a considerable amount of time and it is most unfortunate
that it has
taken this length of time, that is on the 20
th
November
2000 until the 24
th
April
2006 for the appellant to come before Court to present his appeal.
The State, represented by Mr
Theron
,
quite sensibly did not oppose an application for condonation of the
appeal. Accordingly
I
advised
Mr Birch, who appeared on his own behalf, that I was prepared to
hear the appeal.
Mr
Birch produced very competent and comprehensive heads of argument,
indeed the quality of which sometimes is not achieved by
many
counsel who appear in this court. For this reason I was afforded the
opportunity of being guided through each and every
aspect of the
appeal which Mr Birch has brought. In essence, the foundational
argument of appeal concerns the defence which was
raised by Mr Birch
who was represented by counsel Mr
Eia
at
the hearing, namely that Mr Birch was so intoxicated and so under
the influence of drugs which he had consumed prior to the
events
which led up to the crimes which he committed that he was
doli
incapax
at
the time of the offence.
The
problem which faces this Court, both at the time when it confirmed
the conviction and now, is that there was no evidence which
was
produced by the defence to substantiate or support the claim that
the accused at the time had acted
doli
incapax.
The
only evidence which was made available to the Court concerned a
report which had been produced upon the request of the Court
by a
specialist psychiatrist Dr E Jedaar on the 15
th
April
1999. That report was produced because during the course of the
trial the magistrate, acting in terms of
section 78(1)
of the
Criminal Procedure Act 51 of 1977
, directed that the issue of
doli
incapax
be
subjected to an enquiry and that a report be produced by a
psychiatrist.
There
is some dispute as to whether the appellant was remanded for the
necessary 30 day period but suffice it to say that Dr Jedaar
produced his report and concluded thus:
"He
displayed a full range of appropriate emotion and engaged
satisfactorily in conversations. He is not thought-disordered
and
provided a detailed and coherent account of himself. He alleged
amnesia for the offences in question but this was inconsistent
with
any pathological nor non-
pathological
causes (sic)". Accordingly, Dr Jedaar concluded:
"There
was no objective evidence of mental illness nor any elicited despite
his claim to hearing voices intermittently and
this was assessed as
pseudo hallucinations. He was cognitively intact and impressed as
functioning in the average range of intelligence".
There
is no question that there is no evidence which would support the
finding that the appellant discharged the
onus
of
proving that he was
doli
incapax
when
the offences were committed.
The
magistrate in his judgment went further and sought to substantiate
the finding that the accused was "goal-directed throughout"
by reference to evidence of a number of the witnesses, evidence
which I might add remained uncontested through cross-examination.
For example, there was the evidence of Mr Oranges who testified that
the appellant had come to him on that evening and informed
him that
the police were looking for him, that he was in trouble and that he
was in danger of being charged with rape. He sought
money from Mr
Oranges. There was further evidence of witnesses Nurse and Benner
Smith who testified that they were assaulted
and watches, one of
which was produced before Mr Oranges, were taken from them. If one
examines the evidence of Mr Oranges the
account he produces shows
explicitly how the appellant described the events that occurred. But
there is further evidence which
also supports this version of
events.
Ms
Swanepoel testified how their house was petrol-bombed. There was
evidence that it was the appellant who was in possession of
the
sherry bottle which was the instrument of the petrol bomb. In short,
when one examines the evidence as a whole there is indeed
justification for the conclusion reached by the magistrate that the
appellant's actions were "goal-directed throughout".
One
passage of the evidence of Mr Oranges which remains uncontested
suffices, he testified:
"He
(appellant) said to me they're interfering in his life and he didn't
like that so then he told me he took the Old Brown
Sherry bottle, it
was a brown bottle he explained to me, he put a cloth inside and
there was stuff inside that he lit and he
ran past and he threw it
through the window". Uncontested, that evidence does not
indicate that someone was
doli
incapax
or
did not know what he was doing at the time, nor that he had no
recollection of the events. In short, I am satisfied that no
Court
could reasonably come to a conclusion on the evidence which was
available on the record that the appellant was not guilty
of the
charges on which he was convicted.
As
I stated at the outset, the main defence, which is produced in the
heads of argument, turn on the question of whether the appellant
was
doli
incapax.
There
is indeed a subsidiary argument with regard to the second rape count
that the 12 year old child who was raped did not precisely
describe
how the appellant inserted his penis into her vagina. It is true
that the description is perhaps less lucid than the
account of the
first rape but, in my view, it is sufficiently coherent,
particularly coming from the mouth of a 12 year old child,
to
indicate that there were two separate occasions when the appellant
had sexual intercourse in forcible fashion with the 12
year old
child.
I
now turn to the question of sentence. This is a shocking crime.
According to the evidence of the complainant she was threatened
with
her life, the events took place where a small baby saw the events as
they unfolded. The complainant was 12 at the time,
it was a vicious
crime. It was not an ordinary rape, if any rape can be considered to
be ordinary, the Appellate Division has
already indicated that when
rape, as horrendous a crime as it is, comes before these courts, the
courts when it comes to sentence
need to take account of the nature
of the rape. This was a rape which, if it could be suggested as
such, must be located on the
worst end of the spectrum. I can see
nothing shocking, nor unfair, nor unjustifiable in having sentenced
this appellant to 20
years cumulatively for all the crimes that were
committed. Indeed, there is nothing which would suggest that this
sentence would
induce another Court in coming to a different
conclusion to the one which is reached in sentencing the appellant
to the terms
of imprisonment as indicated in the sentence.
For
all of these reasons therefore the appeal against both conviction
and sentence are dismissed.
DAVIS,
J