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[1987] ZASCA 121
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S v Goosen (129/1986) [1987] ZASCA 121 (30 September 1987)
LL
Case No 129/1986
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
PERCIVAL ROBERT GOOSEN
Appellant
and
THE STATE Respondent
CORAM
: JOUBERT, BOTHA et NESTADT JJA
HEARD
: 21 SEPTEMBER 1987
DELIVERED
: 30 SEPTEMBER 1987
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
The appellant was convicted of murder with ex-tenuating circumstances by
SPOELSTRA J and assessors in the Circuit Court at Potchefstroom.
He was
sentenced to 5 years' imprisonment. With the leave of the trial Judge, he
appeals against his conviction.
It is common cause that the appellant killed his wife (the deceased) on 16
April 1985 at about 8 o'clock in the evening, in their
joint bedroom of the
house in which they were living in Fochville. The following facts are also
common cause. Immediately prior to
the killing the deceased and the appellant
were lying on the double bed in their bedroom, talking to each other. She was
dressed
in a gown and he in a pair of trousers. Under the mattress of the bed,
on his side of it, the appellant was wont to keep a revolver
and a bayonet. He
reached out, took the revolver from under the mattress and at close range fired
two shots into the deceased's chest.
/One ...
3.
One bullet entered the deceased's body just under the left clavicle and the
other went through her left breast. Then the appellant
removed the bayonet from
under the mattress and stabbed the deceased three times with it, on the left
side of her chest. Each of
the five wounds inflicted upon the deceased could in
itself have been fatal. There-after the appellant went into the kitchen of the
house, where there were three young children present'(two were children of the
deceased from a previous marriage, and one was a boy
born out of the marriage
between the appel-lant and the deceased, named Adlen). One of the children asked
the appellant whether they
might have Milo to drink, whereupon the appellant
gave them permission to do so. The appellant took from the kitchen a bottle
containing
some brandy and returned to the bedroom, where he poured himself a
drink and drank it. The appellant also tele-phoned his mother.
He told her that
he had killed the deceased and asked her to come and fetch the children.
/At ...
4.
At 9.30 p m the police arrived at the house, and shortly
thereafter, a doctor. The appellant was found lying on the double bed, next
to the body of the deceased. On a bed-table next to the
appellant a container of
Halcion tablets was found. It was empty. Halcion is a seda-tive, a
sleep-inducing drug. The appellant was
in a comatose condition, resulting from
the synergistic effect of his intake during that afternoon and evening of liquor
and Halcion
tablets. On the bed-table next to the ap-pellant there was also
found a piece of paper (some kind of circular letter) on which the
appellant had
scribbled some notes. This was exh F. On the following morning at about 10 a m
the appellant made a statement to the
police. That was exh G. These exhibits
will be dealt with later.
At the commencement of the trial counsel who appeared for the appellant
handed up to the Court a writ-ten statement in terms of section
115 of the
Criminal
/Procedure ...
5.
Procedure Act 51 of 1977, In which the basis of the appel-lant's defence to
the charge was set out. The appellant confirmed the contents
of the statement
and signed it in Court. It reads as follows:
"1. The accused and the deceased, Lea Jacoba Goosen, were married to each
other.
2. The marriage relationship was marred by
a long
history of marital problems, brought about by a drinking problem and the
infi-delity of the deceased.
3. On the 16 April 1985 and at the common
home of the accused and the
deceased at
Fochville, an argument broke out between
them during the
course of which the de-
ceased acted in a manner constituting
intense
provocation.
4. Both the accused and the deceased had
had a considerable quantity of
alcohol
at the time of the argument. The accused had also taken four sleeping tablets
which the deceased had given to him.
5. The accused admits that during the argument
he shot the deceased twice
with a revolver,
and that he stabbed her with a bayonet,
thereby causing
her death.
6. The accused denies, however, that he is
criminally responsible for his
acts as
set out in paragraph 5 above, and states that the cumulative effect
of:
(i) his intoxication;
/(ii) ...
6.
(ii) the intake of sleeping tablets; (iii) provocation by the deceased; (iv)
and his severe emotional stress
was such that he did not act voluntarily; that he did not have the necessary
criminal capacity at the time of the act, and that he
was unable to form the
requisite intention to kill the deceased."
It will be seen from the concluding part of the statement that the
appellant's defence rested on three grounds, namely, that at the
time of the
killing of the deceased there was on his part an absence of (1) any voluntary
act, (2) criminal capacity, and (3) an
in-tention to kill. As to (3), the onus
was, of course, on the State to prove that the appellant had the requisite
intention. As
to (2) and (3), I shall assume, for the purposes of this judgment
(but without expressing any opinion thereon), that the onus was
also on the
State. to prove that the appellant acted voluntarily and that he had criminal
capacity ("toerekeningsvatbaarheid"). In
the latter regard there was no
suggestion that the appellant
/was ...
7.
was suffering from any mental disorder of a pathological nature at the time
of the killing. The crux of his case, in relation to all
three of the grounds of
defence raised, was that immediately before the killing of the deceased she had
said something to him whlch
caused him to "break down" and to lose his
self-control, with the result that he was temporarily unable to control his
acts. On this
score the defence case perforce rested primarily on the evidence
of the appellant himself. On the basis of the remarks I have made
regarding the
onus, the enquiry must be whether the appellant's evidence could reasonably
possibly be true, and that requires an
assessment of his conduct before, during
and after his assault on the deceased. The appellant's evidence will be examined
presently.
Apart from his own evidence, the appellant re-lied on the evidence of two
expert witnesses called on his behalf. The one was Dr Klatzow,
an expert in
bio-chemistry. He testified that the combined intake of
/alcohol ...
8.
alcohol and Halcion tablets could result in the diminishing of one's social
and moral inhibitions, the impairment of one's ability
to make a rational
judgment, and,some-times,in paradoxical reactions such as rage and aggression.
He was not, however, qualified
to express an opinion on the condition of the
appellant at the time of, the killing of the deceased. The other expert was Mr
Carnie,
a clinical psychologist, who had had a number of interviews with the
appellant with a view to evaluating his personality traits and
his psychological
condition at the time of the killing of the deceased. In brief, the opinions
expressed by Carnie were the following:
the appellant's personality traits were
such that he was especially susceptible to a loss of self-control caused by
emotional stress;
on the basis of the appellant's account to him of certain
events and incidents over a few weeks before the day of the killing, these
were
of sufficient intensity to have induced feelings of severe emotional
/stress ...
9.
stress in the appellant; on the basis of the appellant's account to him, and
his evidence in Court, as to the events immediately preceding
the killing and
the killing itself, the appellant at the time of the killing had lost inner
control over his conscious actions, to
the extent that the entire act of killing
was beyond his consclous control (at one stage the witness said his reactions
were totally
out of control, but later he said that there was not a total loss
of control, but a loss of effective, conscious control); the appellant's
loss of
control was the cumu-lative effect of his pre-existing personality structure,
his intake of liquor and of Halcion tablets
before the event, serious
provocation by the deceased, and his severe emotional distress. In his written
report compiled before the
trial Carnie had stated that at the time of the
killing the appellant, whilst able to appreciate the wrong-fulness of his
actions,
was unable to act in accordance with that appreciation due to severe
emotional stress.
/In ...
10.
In his evidence at the trial Carnie testified that he had come to the
conclusion, having heard the evidence of the appellant and Dr
Klatzow, that the
appellant at the time of the killing was not able to appreciate the wrongfulness
of his acts, nor even to act consciously.
I turn to the evidence of the appellant, and I refer first to some matters of
background mentioned in his statement in terms of section
115, as quoted
earlier. With regard to the marriage relationship (para 2) the appellant
testified that the deceased frequently drank
to excess and that she had had an
adulterous affair with one Van der Sandt. The appellant described a number of
events and incidents
in which the behaviour of the deceased caused embarrassment
and problems in the marriage. It is not necessary to go into details,
but it
must be observed that the appellant did not say in his evidence that the conduct
of the deceased prior to the day on which
she was killed had caused him to
suffer emotional stress,
/whether ...
11.
whether severe or otherwise. His evidence
rather conveys the impression
that he was well able to
cope with the problems as they arose. He said
that
he loved the deceased and that he believed that she would
overcome
her drinking problem and her infatuation with
Van der Sandt. With regard to
the reference in para
4 to the quantity of alcohol the appellant and the deceased
had consumed
before the argument between them arose (the
argument is also mentioned in
para 3), it should be noted
first that the appellant's evidence did not, in fact,
reflect that there was any "argument" before the killing,
as will appear presently. As to the alcohol, the appel-
lant testified that the deceased arrived at his place
of business on the fateful day at about 4.30 in the after-
noon. She was under the influence of liquor. She bought
a bottle of brandy and poured drinks for the appellant,
herself and others who were present. Over a period of
about 1½ hours the appellant and the deceased each had 3
/double ...
12.
double tots of brandy. They then went home. There, at the request of the
deceased the appellant poured each of them another drink
of brandy, consisting
of more than a double tot, which they drank. (Later, at 9.45 p m, the doctor who
had gone to the house and
found the appel-lant in a coma took a blood sample of
the appellant, which was subsequently analysed to reveal that the alcohol
con-tent
of the appellant's blood, expressed in the usual way, was 0,20. An
analysis of the deceased's blood showed that in her case the alcohol
content,
expressed in the same way, was 0,32.) Finally, in para 4 of the appellant's
statement it is mentioned that he had taken
4 sleeping tablets which the
deceased had given him. This is an absolutely vital feature of the case, and I
shall deal fully with
the appellant's evidence in regard thereto in a moment. At
this stage it will be convenient to mention that the trial Court disbelleved
and
rejected the appellant's evldence on this point. It found that the appellant had
taken the sleeping tablets (Halcion)
/after ...
13.
after he had killed the deceased.
I come now to the appellant's evidence as to what happened at the crucial
time just before and during his killing of the deceased.
The account he gave in
examination-in-chief was quite brief. Taking up his account at the stage where
he had poured drinks for him-self
and the deceased in the kitchen, his evidence
con-tinued as follows:
"What happened then? Then I went back
to the bedroom with the drinks, and then she burnt some photographs out. She
burnt - I smelt something burning and when I got into
the room I saw that she
had burnt some photo-graphs out. Then she said 'to me "Seeing that you are tired
here are some pills, then
you will have a good sleep tonight", which she drank
every night she drank of these pills.
How many did
she give you? Four.
Did you have any suspicion at all that
it might have been too many? No.
Are you accustomed to taking sleeping
pills? No, no tablets.
Did you not think that you would have
a good night's sleep in any event
because you
were tired? No."
/The ...
14.
The appellant then went on to say that he finished his drink, that he took
off his shirt, shoes and socks, and that he lay down on
the bed. The deceased
showed him a dress that she had bought and then changed into her gown. His
evidence continued:
"Yes? Then she got into bed. Then
she said there is something she wants to tell me. Then she told me about Mr Van
der Sandt. And I asked her "Now what about the kids,
you cannot just leave the
kids?"
COURT
: What did she say in regard to Van der
Sandt? She loves this Van der Sandt, she
loves me and she loves Van der Sandt, and ob-viously I will fall into a deep
sleep, if I wake up she will be gone with the kids with
Van der
Sandt.
MR VERMEULEN
Yes? —- Your
Honour, then I just broke down.
COURT
: You broke down? Yes.
MR VERMEULEN
: In what way? I took the
pistol and I shot her. I just lost self-control and I stabbed
her.
COURT
: And after you had lost your
self-control
and ..? I stabbed her.
After you shot ... (intervention) ... I lost self-control and I shot her, I was
not myself.
Yes? And then I saw what I had
done
and I phoned my mother."
/The ...
15.
The tenor of this evidence is quite clear. The
deceased gave the appellant
sleeping pills in order to
cause him to fall into a deep sleep. When he
awoke, j
she would have left him with the children and Van der Sandt. It was
this prospect that caused him to break down and to lose his self-control.
There
is no suggestion here that the deceased gave him the tablets with the in-tention
of killing him. When he used the expression
"if I wake up", it was in the sense
of "when I wake up." That is perfectly plain.
In cross-examination, however, the appellant changed his evidence
drastically. This came about when he was confronted with the notes
he had
written on the piece of paper that was found next to his bed (exh F), as
referred to earlier. The appellant had made no men-tion
of this in his
evidence-in-chief. On the paper, in three different places, the appellant had
written the following:
/"All ...
16.
"All money due
to me must
go to Adlen
and my Mom must look after (him)."
"My maat
George (
nie my broer
)
kry die man
asb vir my wat
my huwelik so gemaak het Percy."
"His phone no. 01491-2161
Ask for
Cheeta v,.d. Sandt him
W D
Levels
pone this
He was the
cause
!
Percy."
There can be no doubt at all that these notes were writ-ten in contemplation
of the appellant's own imminent death. The notes themselves
proclaim this so
clearly that no further elaboration is necessary. Exh F is obviously not
compatible with the appellant's evidence-in-chief
as to why he had broken down
and lost control over himself.
/The ...
17.
The trial Judge observed in his judgment that the appel-lant "was most
unhappy" when confronted with this docu-ment. His attempted
explanation of the
notes was that the deceased had conveyed to him that it was her intention to
kill him when she gave him the tablets
to drink. Part of the appellant's
evidence, when questioned by the trial Judge, reads as follows:
"Let us regard that as the front or the first page. If one reads these words
"All money due to me must go to Adlen, and my mom must
look after him" - why do
you think you
would have written these words? Because
of her
saying to me if I ever wake up with the tablets I had.
Why did you think the tablets were going
to affect you? She said to me that she doubts
if I will wake up with the tablets.
She doubts ..? If I will wake up with
the tablets, she is going to leave with this other man and the
kids.
When did she say that? She said that
in the bed that night.
When she gave the tablets to you?
No, when she was speaking about Van der Sandt.
Was that after you had the tablets?
Just before it happened.
Do you say that at that stage you were
/of ...
18.
of the view that she was busy poisoning you?
Trying to kill you? It would be.
Well, did you think that or did you not
think that? I must have, if I
wrote this
I must have. Like I say I did not have ... (intervention).
Well, if you thought that why did you
never suggest that before this moment? Your
Honour, like I said earlier,
she said if I ever wake up.
Well, you said that - if I recall correctly
you were going to fall in a
very deep sleep
and ... (intervention) ... That is if I
ever wake up.
And when you wake up she will be gone
with Van der Sandt and the kids?
And the
kids, that is correct.
Do these words suggest to you that she
was trying to kill you or to poison
you?
Or take my life, or take my life.
That she was busy taking your life?
It could have been. I mean that is what she said to me.
But why - if you inferred that at the time and if you are still of the view,
why did you not suggest that before I started question-
ing you on this document? Yes, but I did
suggest that. I said she said if you ever wake up, if you ever ...
(intervention).
She said when you wake up? Or when
you wake up.
She will be gone with Van der Sandt and
the kids? That is correct.
/Not ...
19.
Not if ever. Yes, yes.
Your evidence never suggested, and I am sure Counsel appearing for you never
were of the view that your evidence would be to the
effect that you were of the
view that you are
not going to wake up again? Like I say I
was not in my state of mind when this was writ-ten. I mean I must have thought
then well, Percy, you are not going to ever wake up,
if I wrote things like
this.
If it was not any action on her part then
it must have been some other action? Well,
no, it is from her part.
What other action could
have endangered
your life on that particular evening? The
thing is with the alcohol and the pills she gave me, telling me that if you ever
wake up."
This evidence of the appellant cannot
possibly be true, for a number of reasons. In the first place the appellant did
not mention
to his mother, when he tele-phoned her, that he was facing death
because the deceased had given him an overdose of tablets, as one
would
cer-tainly have expected him to do if it were the truth. In the second place the
appellant made no mention of the taking of
the tablets at all in the statement
he made to the police on the following day, exh G. That statement
/reads ...
20.
reads as follows:
"Ja, op bg. datum en ongeveer 16h00 het ek en my vrou (oorledene) konst. Botha
en sy vrou in my besigheid gesit en gesels. Op daardie
stadium het my vrou 'n
liter Richeleu brandewyn bestel. Ons het toe gesit en gesels en kort-kort 'n
drankie gedrink. Om ongeveer
18h00 is ek en my vrou toe weg huis toe. Ek het vir
my vrou gesê ek is moeg en wil vroeg gaan slaap. Ons was om ongeveer 18h30
in ons kamer waar ons in die bed gelê en gesels het. Ek het toe weer vir
ek en my vrou 'n drankie inge-gooi. Op daardie stadium
het my vrou vir my
gesê daar is iets wat sy my wil sê. Ek het haar toe gevra wat dit is
waarop sy gesê het sy is
verlief op 'n ander man. Ek het haar gevra nou
wat van ons kinders waarop sy gesê het die ander persoon aanvaar hulle. Ek
het
toe gesê nie my seun nie. Ek het my rewolwer onder die bed uitgehaal
en my vrou twee skote in die bors geskiet. Nadat ek die
tweede skoot geskiet
het, het ek eers besef wat ek gedoen het. Ek het toe my bayonet onder die bed
uit-gehaal en my vrou in die bors
gesteek. Ek kan nie sê hoekom ek haar
met die bayonet ge-steek het nie.
Ek het toe my moeder gekontak en vir haar gesê ek het my vrou geskiet. Ek
kan onthou ek het baie gehuil. My moeder het vir
my gevra waar is die kinders
waarop ek gesê het hulle is in die huis. Sy het toe gesê sy kom
hulle haal.
Ek het toe vir my weer 'n dop brandewyn
ingegooi en weet nie wat verder gebeur het nie."
/His ...
21 .
His failure to mention the tablets in this statement,the appellant sought to
explain by saying that he was shocked and not himself
when he made it. The
explanation is un-acceptable. The policeman who took down the statement
testified that although the appellant
might have been shocked, he had no
difficulty or problem in recounting the events in a coherent, logical and
chronological manner.
The statement itself proclaims that the appellant must
have been in full possession of all his faculties when he made it. The omission
to make any mention of the tablets is a very weighty pointer to the fact that
the tablets played no role at all in the killing of
the de-ceased. In the third
place, if the deceased had tried to kill the appellant, to his knowledge, by
giving him an overdose of
tablets, it is inconceivable that he would have acted
in the way he did after he had killed her. As stated earlier, it was common
cause (the appellant admitted it in his evidence) that he went into the
kitchen,
/spoke ...
22.
spoke to the children, fetched some brandy, returned to the bedroom, and
drank it. On his evidence the appellant must have done these
things, expecting
that he was golng to die, and he must then have lain down on the bed, awaiting
his death. That cannot be beliêved
and is not reasonably possible.
The conclusion is that the whole of the appel-lant's evidence relating to the
conduct of the deceased in giving the Halcion tablets
to him was patently false.
The trial Court was fully justified in rejecting it. On that footing exh F was
in fact what on the face
of it it clearly purports to be: a suicide note. The
appellant emphatically and repeatedly denled that it was such, but in the
context
of the appellant's other evldence his de-nial must suffer the same fate
as his other evidence: it must be rejected as false beyond
reasonable doubt.
That being so, the inference is inescapable that the ap-pellant took the Halcion
tablets after he had killed the
deceased. The trial Court's finding to that
effect is
/unassailable ...
23.
unassailable.
The result of the above analysis is that the very foundation of the
appellant's defence is wholly destroyed. That applies to all three
of the
grounds on which the defence was sought to be based. In vlew of the fact that
the appellant's evidence does not afford any
acceptable explanation for his
alleged breaking down and loss of self-control, there is no evidential basis for
sustaining a reasonable
possibility that he was acting involuntarily, or
unconsciously, or without criminal capa-city, when he killed the deceased, nor
is
there any basis for displacing the inference that he intended to kill her,
which arises from the manner in which he did so. In the
latter regard I would
cite two further passages from his evidence (which must be compared with what he
had said in his statement
to the police, exh G):
"Did you experience any physical effects of the sleeping tablets and the
alcohol when
you in fact shot the deceased? No well,
like I say I just lost control, it ... (pause).
/But ...
24.
But you did not feel drowsy or anything
like that? I did feel drowsy, I mean I was
numb at my cheeks.
Going through your evidence-in-chief one seemed to gain the impression that you
still knew what was going on when you shot the de-
ceased? Is that the correct impression?
Yes, but I could not control myself."
"Now can you say whether the shooting and the stabbing took place in one course
of action, or was it divided into separate com-partments?
Did you first shoot
and then have
a look and then stab? I shot her and then
I saw what I had done and I just took the knife and I - the bayonet and I
stabbed her.
Well, what do you mean when you say
you
saw what you had done after having shot her?
I could not control myself.
COURT
: What was your last reply? I could
nOt control myself. I could not ..? Con-
trol myself.
MR. VERMEULEN
: Can you think of any explana-
tion or reason why you
stabbed as well as shot?
I have got no explanation for
that."
It follows from what has been said above that
the evidence of Mr Carnie cannot avail the appellant. The factual basis on which
his
opinions were based having fallen away, his opinions must necessarily fall
away too.
/I ...
25.
I would add that he made it clear in his evidence that his opinions were
based on the cumulative effect of the various factors enumerated
earlier in this
judgment, and that he was unable to ascribe any separate value to any individual
factor. Hence, when once it appears
that one important factor taken into account
by Carnie must be left out of consideration, namely that the appellant had been
influenced
by the taking of the Halción tablets before the killing, his
oplnlons are perforce deprived of any validity they might have
had otherwise. I
would . add also that Carnie was not aware of the suicide note when he
interviewed the appellant and prepared his
report. In his evidence he was unable
to provide a rational expla-, nation of the suicide note. He said that it
reflected ambivalent
feelings on the part of the appellant, that it showed a
state of panic and an hysterical reaction. However, none of these comments
can
resolve the problems created for the appellant by the existence of the
suicide
/note ....
26.
note, as discussed above.
For the above reasons the appellant was correctly convicted of murder.
The appeal is dismissed.
A.S. BOTHA JA
JOUBERT JA
CONCUR
NESTADT JA