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1989
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[1989] ZASCA 93
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S v Simons (122/89) [1989] ZASCA 93 (4 September 1989)
122/89
N v H
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter
between:
LESLIE BASIL SIMONS
Appellant
and
THE STATE
Respondent
SMALBERGER, JA :-
122/89
N v H
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
LESLIE BASIL SIMONS
Appellant
and
THE
STATE
Respondent
CORAM
: VAN HEERDEN, SMALBERGER,'
et EKSTEEN,
JJA
HEARD
: 29 August 1989
DELIVERED
: 4 SEPTEMBER 1989
JUDGMENT
SMALBERGER, JA:-
The appellant was convicted in the Durban
and Coast Local Division by WILSON, J and two assessors of murdering his wife
(the deceased)
and raping his 8 year
.../2
2 old daughter. No extenuating circumstances were found and
he was sentenced to death on the murder charge. On the rape charge he
was
sentenced to 10 years imprisonment. With leave of the judge a
quo
he
appeals against his conviction and sentence on the murder charge only.
It is
common cause that the deceased died on 29 July 1987 as a result of multiple
injuries inflicted upon her by the appellant. She
had been subjected to a severe
and brutal beating. The chief
post-mortem
findings revealed that she had
multiple scalp lacerations; a fractured skull with subdural haemorrhage and
contusions of the brain;
multiple bruises over the body with subcutaneous
haemorrhages; multiple rib fractures; a lacerated liver and contusion of the
mesentery.
According to the district surgeon who testified, the injuries were
caused by the
..../3
3 application of blunt force, and for the infliction of
certain of the injuries a severe to extreme degree of force would have been
required. Death would have occurred shortly after the infliction of the
injuries. The deceased's death occurred on a Wednesday. There
were no
eye-witnessês to the assault upon her , and the State's case against the
appellant was based on circumstantial evidence.
The appellant claims to have
been drinking heavily over a period of days preceding the Wednesday. There had
been a series of arguments
between himself and the deceased, whom he suspected
of having an affair with another man. This suspicion had taken root the previous
Saturday when the appellant, the deceased and a Miss van der Westhuizen, a
friend of the deceased, had gone dancing. At the dance
the deceased spent most
of the time dancing with another man. This prompted the appellant to speak to
the man
..../4
4 in question about his conduct. Despite this the man
later resumed dancing with the deceased. The appellant then told the deceased
that they must leave, which they did. On the way home he went to a nearby cafe
to buy cigarettes. There he was involved in an altercation
with the same man who
had earlier danced with the deceased. This led to the man and some of his
friends assaulting the appellant.
According to the appellant, he left the
common home the following Tuesday evening after an argument with the deceased,
and went and
spent the night at his father's house. The next morning he returned
home at about 7 a m. On entering the house he discovered the
deceased in bed
with the man she had danced with the previous Saturday night. The man was only
wearing a pair of short pyjama trousers.
The man got up and attacked him with a
piece of electric cord.
..../5
5 The appellant picked up a pick-handle, which he kept in
the kitchen, and hit the man. He was felled by the blow. As the appellant
was
preparing to deliver a further blow at the man the deceased grabbed hold of him
(the appellant) from behind. This enabled the
man to get up and make good his
escape through the back yard. The appellant proceeded to testify as
follows:-
"As I was losing control I turned round and I struck her a couple of shots. I
wouldn't know how many shots I struck her, but I did
give her a good couple of
shots. Not knowing that I did kill her I left the house. I just pulled the door
closed and I disappeared.
I was fully in my temper at that time. I was very
cross. I just thought maybe that I will be teaching her a lesson, not knowing
that
I would kill her.
This passage from the
appellant's evidence gives the impression that he launched an uhpremeditated
assault upon the deceased in a
jealous rage occasioned
..../6
6 by considerable provocation - an assault which was not of long duration. He
further testified that he left the house without locking
the door. He also
claimed that he was under the influence of liquor at the time. The trial court
found the appellant to be an unimpressive
witness and rejected his evidence. Its
findings in this regard cannot be faulted. The appellant's evidence was refuted
in a number
of important respects by witnesses who were patently honest and
reliable. In addition, there are aspects of his evidence which are
totally
lacking in probability. His suggestion that the deceased was having an affair,
and his evidence concerning the events which
allegedly occurred on the Saturday
night, were obviously intended to set the scene for his later allegation that he
caught the deceased
in
flagrante delicto.
The evidence establishes that
the deceased
..../7
7 had only recently been discharged from hospital after
prolonged treatment for tuberculosis. The probabilities are strongly against
her
having formed a liaison since her discharge; if she had she is unlikely to have
flaunted that fact in front of the appellant,
whom she apparehtly feared, at the
dance on the Saturday night. Equally improbable is the fact that when the
appellant left the common
home on Tuesday evening she would have summoned her
paramour knowing full well that the appellant could return home at any time.
The
appellant's evidence of the compromising situation in which he found the
deceased is further given the lie by the fact that,
despite his claim that the
man concerned ran away wearing only a pair of short pyjama trousers, no clothes
belonging to such a person
were ever found in the house either by the appellant
or anyone else. Add to this the fact that Miss van der
. . . . / 8
8
Westhuizen, whose evidence was accepted by the trial court, denied that the
deceased had danced with another man on the Saturday night,
and the inevitable
conclusion is that the appellant lied about the situation he claims he
encountered at his house on the Wednesday
morning.
The appellant's evidence
that he lost control of himself and assaulted the deceased in a jealous rage is
further refuted by the evidence
of his neighbour, Craddock, and the witness,
Miss Michaels. From the former's evidence it is apparent that the appellant
embarked
upon a persistent and prolonged assault on the deceased - one that
extended over a period of approximately 45 minutes. The latter,
who went to the
house of the deceased shortly before 8 a m, and heard the deceased's cries for
help, testified that the appellant
opened the front door in response to her
.../9
9
knocking. Her evidence paints a picture of the appellant being fully rational
and in control of both himself as well as the situation
inside the house.
Although the appellant later sought to deny Miss Michael's evidence, it was
never challenged under cross-examination.
The appellant's denial that the
deceased was dead, or that he knew she was dieing, when he left the house
conflicts with the medical
evidence that she would have died very soon after the
assault. One has but to look at the photographs of the deceased taken at the
scene to realise that the appellant could not other than have appreciated that
the deceased, if not dead, was at least in a critical
condition when he left the
house. He was further untruthful in claiming that he had left the door unlocked
when leaving. The evidence
clearly establishes that the door was locked, and
that later entry into the house to reach the
..../10
10 deceased was thereby impeded. In all the circumstances
the appellant was quite clearly an untruthful witness whose version of the
events was rightly rejected by the trial court.
The State case established
the following: The deceased had laid a charge against the appellant for raping
their daughter. The trial
date had been fixed for 13 August 1987. The appellant
had threatened that he would kill the deceased before standing trial. The
deceased
was subjected on the day of her death to a severe and brutal assault
over a prolonged period. She was small of stature and was struck,
inter
alia
, with a pick-handle, which is an inherently dangerous weapon. After the
assault the appellant left her, dead or dieing, in a locked
house as he went his
way. If the appellant had consumed liquor, a matter to which I shall revert
later, it was not to the extent
where he
..../11
11
was incapable of forming the requisite intention to kill. In the absence of
any acceptable explanation for his conduct the only reasonable
inference to be
drawn from the proved facts is that the appellant assaulted the deceased with
the actual intention of killing her.
In the result he was correctly found guilty
of murder.
The onus of proving extenuating circumstances rested upon the
appellant. It was argued that he was under the influence of liquor when
he
killed the deceased. It can be accepted that he drank heavily for some days
preceding the assault. However, there is no evidence
that he drank any liquor on
the morning of the crime before its commission some time after 7 a m. He himself
never specifically claimed
that he did so. Neither Miss Michaels (who saw him at
about 8 a m) nor Miss van der Westhuizen (who saw him approximately two
..../12
12 hours later) suggested that he was under the influence
of liquor. His conduct, apart from the assault, was rational throughout.
If he
was under the influence of liquor, it was not to the extent that it can be said
to have amounted to an extenuating circumstance.
The fact that his emotions may
have been clouded by the pending rape case (which charge against him was fully
justified) cannot serve
to reduce his moral blameworthiness. In my view it has
not been shown that the trial court misdirected itself in any respect in
concluding
that there were no extenuating circumstances, and no basis exists for
interfering with its finding in that regard.
In the result the appellant's appeal against his conviction and sentence is
dismissed.
JUDGE OF APPEAL
J W SMALBERGER
VAN HEERDEN, JA )
)CONCUR EKSTEEN, JA )