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1993
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[1993] ZASCA 111
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S v Krieling and Another (62/92) [1993] ZASCA 111 (6 September 1993)
Case No : 62/92
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
A C KRIELING AND
ANOTHER
APPELLANTS
and
THE
STATE
RESPONDENT
SMALBERGER JA -
Case No : 62/92 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
ALAN CHRISTOPHER KRIELING
First Appellant
DANIEL
VAN ROOI
Second Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, GOLDSTONE,
et VAN DEN HEEVER, JJA
HEARD
: 25 August
1993
DELIVERED
: 6 September 1993
JUDGMENT
SMALBERGER, JA :-
The appellants, both
policemen, pleaded guilty in the Regional Court, Paarl, to a charge of assault
with intent to do grievous bodily
harm. The basis of their plea was contained in
a joint written statement handed in on their behalf in terms of s 112 of
the
2
Criminal Procedure Act 51 of 1977
. The relevant
portion of the statement reads:
"1. Die klaer, Eugene Wayne Davey, is deur die polisie te Paarl op 26 Mei
1990 aangehou, as gevolg van die feit dat hy 'n verdagte
was in 'n aantal
diefstal sake.
2. Ons is belas met die ondersoek van
genoemde diefstal
sake.
3. Ons het die klaer gedurende die tydperk
wat hy aangehou was
ondervra te Paarl
polisiestasie. Hy het geweier om
enige
inligting te verstrek - op 27 Mei 1990
het ons hom
weer ondervra.
4. Ons het gefrustreerd geraak aangesien die
klaer se volgehoue
stilswye ons ondersoek
belemmer het en het hom aangerand in
'n
poging om inligting van hom te bekom.
5. Ons het hom vasgeboei en sy kop met ' n
sak bedek. Ons het 'n
paal tussen sy
bene en arms gedruk en hom
opgehang op
die paal. Ons het hom laat heen en
weer op
die paal swaai.
6. Hy was ook met 'n elektriese ets-masjien
wat 'n lae
stroomsterkte elektriese
stroom ontwikkel het
geskok.
7. Sekere houe met die hand en vuis is hom ook
toegedien.
3
8. Die apparaat wat ons gebruik het om hom
aan te rand is alles
alledaagse
toerusting wat ons in die
polisiestasie
gevind het en aangewend het in
ons
aanranding op die klaer.
9. Ons het nie bedoel om die klaer ernstig
te beseer nie, maar
wou slegs inligting
van hom bekom. Tog het ons die
klaer
sekere letsels, beserings en kneusings
toegedien,
soos blyk uit die fotos hierby
angeheg, wat ons erken fotos is van
die
klaer wat sy genoemde letsels, beserings
en
kneusings toon. Inderdaad het. ons
geensins bedoel om die klaer te
beseer.
10. Ons het wel besef dat ons optrede die klaer mag beseer, maar het gehoop
dat dit nie die geval sou wees nie. Ons het 'n kans gewaag
dat die klaer nie
beseer sou word nie.
11. Ons het besef dat ons optrede onwettig was, maar was tot so 'n mate
gefrusteer dat ons onvermoe om inligting in te win oor die
reeks diefstalle dat
ons desnieteenstaande die feit voortgegaan het met ons optrede teen die
klaer.
12. Die klaer is wel later deur inligting
deur
'n ander polisiebeampte ingewin verbind met die reeks diefstalle, is vervolg
in die Distrikshof te Paarl en is skuldigbevind op 'n
aanklag van diefstal (3
(drie) aanklagtes). Ons optrede
op
4
27 Mei 1990 het nie bygedra tot die suksesvolle vervolging van die klaer
nie. Hy het volgehou in sy weiering om inligting te verskaf."
The appellants were duly convicted and, after evidence in mitigation was
given by their commanding officer, Capt Visagie, they were
each sentenced to
three years' imprisonment, half of which was conditionally suspended for five
years. They appealed against their
sentences to the Cape of Good Hope Provincial
Division. Their appeals were dismissed, but they were granted leave to appeal to
this
Court. Hence the present appeal.
As a consequence of the
assault upon him the complainant sustained widespread albeit not unduly severe
injuries. There were abrasions
of both forearms and both lower legs. One assumes
these were sustained when he was swung from the pole inserted between his
handcuffed
legs and arms. The inside of his upper lip
5
was cut; there was a large bruise on the right side of his face behind
and below the right ear; his left eye was swollen, with a large
subconjunctival
haemorrhage and bleeding of the eye; there were electrical burn wounds on the
web spaces between the fingers of both
hands and on top of the right middle
finger; he had abrasions at the back of both his upper thighs, and both his
wrists were swollen
and tender.
The appellants, both first
offenders, were 23 and 28 years old respectively at the time of the commission
of the offence. Both had
served for some years in the police force and had
studied to advance their positions. According to Capt Visagie, both appellants
were conscientious and dedicated policemen who worked hard, often under
difficult conditions. Both have family commitments, and homes
of their own in
respect of which they receive housing allowances. The trial magistrate accepted,
in their favour, that both
6
were remorseful for their conduct.
While it is a salutary principle of sentencing that a first offender
should, as far as possible, be kept out of prison, it is well
recognized that in
appropriate cases first offenders may, and indeed should, be incarcerated.
Whether or not imprisonment is indicated
depends essentially upon the facts of
each particular case. It is true that imprisonment will cause the appellants
great hardship.
It will effectively terminate their careers, they will probably
lose their homes, their families will unfortunately suffer and they
will be
exposed to all the negative influences of prison - possibly even to acts of
revenge and vindictiveness by certain elements
in prison in consequence of their
previous police connections. One is not unmindful of these considerations. No
court would deliberately
seek to harm a convicted person or cause him undue
hardship - no enlightened system of
7
justice would tolerate that. But harm or hardship may be the unavoidable
consequence of an otherwise fair and proper sentence. A balanced
approach to
sentencing requires that not only the appellants' personal circumstances and the
potential hardship to them be given
due weight, but also the nature of their
crime and the interests of the community.
The crime committed was a
serious one having regard both to its nature and the identity of its
perpetrators. It involved an assault
by policemen on a prisoner in their custody
who was powerless to protect himself. The assault itself was unprovoked,
calculated,
callous and prolonged. It resulted in the injuries to the
complainant which I have detailed. The appellants did not act on the spur
of the
moment and had ample time to reflect upon what they were doing. Their purpose
was to extract information from an uncooperative
suspect. No right thinking
community can
8
tolerate conduct of this kind on the part of members of its police
force.
The police operate under difficult and often dangerous
conditions. It is understandable that, given the pressures and circumstances
of
their work, a lack of co-operation on the part of a suspect can lead to
frustration. But with the wide powers of arrest and detention
enjoyed by the
police come a concomitant responsibility. They are, in keeping with their
training, required to act throughout in
a disciplined and professional manner,
with due regard to the rights of citizens and, in particular, those in their
custody. Every
suspect has a fundamental right to remain silent if he so
chooses, and no policeman may be permitted or encouraged to extract information
from a suspect by unlawful, and least of all violent, means. That such person
has a long record of crime, or his complicity in other
crimes is suspected,
makes no difference. He
9
is nevertheless entitled to protection from such conduct. Where a
policeman abuses his authority and assaults a suspect in his custody,
right
thinking members of the community will demand appropriate action and adequate
punishment.
As appears from Capt Visagie's evidence, frequent
warnings were issued against conduct of the kind the appellants indulged in.
They
failed to heed these warnings. Their conduct constituted a denial of the
rights of the complainant and an abuse of their authority.
They acted in breach
of their police duties and functions. What they did undermines the proper
administration of justice and is detrimental
not only to the image and interests
of the police force generally, but to the interests of the many policemen in
particular who strive
to carry out their duties in an exemplary manner. Any
sentence imposed on them should reflect society's concern at such a state of
affairs.
10
This Court can only interfere on limited grounds with the exercise of a
trial court's discretion in regard to sentence. None of the
recognised grounds
for interference are present. The trial magistrate, in a careful judgment, has
shown himself to be well aware
of the objects of punishment and the need, in
assessing an appropriate sentence, to balance the nature of the crime, the
personal
circumstances of the appellants and the interests of the community. He
has not misdirected himself in any material respect. Nor,
in the light of the
considerations that have been mentioned can the sentence imposed be said to be
one which creates a sense of shock.
The appeals are dismissed.
J W
SMALBERGER
JUDGE OF APPEAL GOLDSTONE, JA) VAN DEN HEEVER, JA)
concur