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1994
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[1994] ZASCA 61
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S v Larsen (78/92) [1994] ZASCA 61; [1994] 4 All SA 380 (A) (5 May 1994)
CASE NO 78/92 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between
WESSELINA ANDRIAS JOHANNA LARSEN
APPELLANT
- and -
THE STATE
RESPONDENT
CORAM
: NESTADT, P H GROSSKOPF JJA et
NICHOLAS AJA.
HEARD
: 15 March 1994.
DELIVERED
: 5 May 1994.
JUDGMENT
NICHOLAS AJA
/
2
NICHOLAS AJA
:
Michael Larsen (known as "Mike") and Andrias Larsen (known as "Adrian")
were married to each other in 1971. In 1989 they were living
in a house in
Weltevreden Park in the Roodepoort district together with their children,
Jennifer aged 19, Keith aged 18 and Michelle
aged 8. Mike was a successful and
hardworking dental mechanic with his own laboratory, and Adrian had employment
in a clerical capacity.
At the beginning of November 1989 the marriage was under severe strain.
Each of the spouses was suspicious of the fidelity of the
other. It had been
planned that Mike should set out on Friday 3 November on a fishing week-end at
the Loskop Dam with his cousin,
James ("Jimmy") Dennison. Mike had asked Adrian
to accompany them, with the object, it would seem, of keeping her under his eye
during
the week-end.
3
She refused and that probably fuelled Mike's suspicions. In the event the
fishing trip was cancelled because of a report of bad weather
in the area of the
dam.
On the evening of Friday 3 November Mike and Adrian quarrelled.
This erupted into physical violence. Adrian spent the night in Michelle's
bedroom after she had taken Mike's 9 mm Browning Short semiautomatic pistol from
the safe where it was kept and placed it under the
mattress of Michelle's bed.
The safe was in the main bedroom, which she normally shared with
Mike.
At about 7 am on the Saturday morning Adrian went to the main
bedroom and found that the bed had been made and Mike had already left.
During
the day she made a number of telephone calls, presumably in order to check up on
Mike. In one of them she spoke to Susanna
Dennison, Jimmy Dennison's wife, and
told
4
her what had happened during the previous evening.
Mike came
home at about 8 o'clock on the Saturday evening. He was churlish and
foul-mouthed and went into the kitchen. Adrian was
consumed with jealous
suspicion and was overwrought. She fetched the Browning from Michelle's room and
went to the kitchen, holding
it behind her back. She closed the sliding door
leading to the dining room, and shortly afterwards three shots were
fired.
The police having been summoned at about 8.45 p.m, Det. Sgt Bakkes went
to the scene. Inside the house he encountered Adrian. She
was hysterical and in
a state of shock. He found a man (it was Mike) lying on the floor of the
kitchen. There was blood everywhere.
The man was already dead. As a result of a
report from Adrian he went to the kitchen door and found the Browning pistol
lying on
the steps outside it. There were four rounds in the magazine.
5
On post mortem examination it was ascertained that the cause of Mike's
death was a gunshot wound through the brain. In the forehead
was an entrance
wound which appeared to have been caused by a point-blank shot, fired with the
muzzle of the gun in contact with
the skin.
The scene was visited on
6 November by Lieut Visser, an examiner of firearms and ammunition with the
ballistics unit of the Forensic
Science Laboratory. In the kitchen he observed a
bullet hole in the one side of a metal cupboard and two bullet holes in the
tiled
floor, which had resulted from shots which must have been fired nearly
vertically from above.
Arising out of this incident Adrian was arraigned in the Witwatersrand
Local Division on 25 March 1991 on a charge of murdering Mike.
She pleaded not
guilty and confirmed a statement handed in in terms
6
of
s.115 cf the Criminal Procedure Act 51 of 19 , which reads as follows -
"1. The above-named accused admits that:
1.1
on the 4th
November 1989 and at 1123 Knobthorn Street, Weltevreden Park, in the district of
Roodepoort, a shot was discharged from
a firearm which was then in her
possession.
1.2
the shot
aforementioned struck the
deceased.
1.3
besides the
shot referred to above, two other shots were discharged from the said firearm at
the aforesaid time and place whilst the
firearm was in her
possession.
1.4
the deceased
died as a result of a gunshot wound of the head/brain and ... death was
instantaneous.
1.5 no further injuries were
inflicted
on the deceased after death had
occurred as
aforementioned.
7
2. The accused states that:
2.1 she had
no intention to discharge
the firearm on the three occasions referred to above.
2.2
she had no
intention to kill or injure the
deceased.
2.3
she had no
intention of firing a shot or shots at the
deceased.
3. The accused will state that
all three
shots referred to aforementioned were
discharged from the said firearm in the course of a scuffle with the
deceased.
4. The accused accordingly denies that she
is criminally
liable for the death of the
deceased."
She was found guilty of murder and was sentenced to five years
imprisonment, of which one half was suspended conditionally for five
years. With
leave granted on a petition to the Chief Justice she now
8
appeals to this Court against the conviction and
sentence.
There were no eye-witnesses to the shooting, and the State
relied on circumstantial evidence to prove its case. Adrian gave evidence
in her
own defence. In many respects her evidence stands alone and it is necessary, in
order to assess it properly, to examine in
some detail the events of the period
between the evening of Friday 3 November and the evening of Saturday 4 November.
Friday 3 November.
Adrian said in her evidence that Mike had informed her during the course
of the day that he was not going fishing because of the weather.
They had then
arranged that he would go with her and the children to a Christmas office party
to be held on the Saturday evening
at Florida Lake. When Mike came home at about
7 pm she was sitting in the lounge watching TV. His
9
normal coming-home time was between 5.00 and 5.30 pm, and she asked him
where he had been. His only reply was, "Sorry I spoiled your
week-end", and then
he went to the main bedroom. She followed and asked him what he meant by his
reply. He answered to this effect:
"Yes, you want to go to the party. You did
not want to go fishing with me. You have known about the party for a long time."
It seems
clear that in uttering his initial remark Mike was being sarcastic. A
quarrel developed and Mike assaulted her - not for the first
time in their
married life. He caught hold of her, and pulled her hair, and began striking her
with his fists. Her body was sore
and bruised. She tried to stop him by striking
back at him. She went to the bathroom to clean herself up, but Mike banged on
the
door and told her that if she did not come out, he would break the door
down. When she emerged, he assaulted her again. She went
to the bedroom and
started packing her clothes
10
because she felt she could not stay in the house any longer. She went
outside to put her suitcase in the boot of the car but returned
because a
terrible storm was brewing and she decided not to leave. She took the Browning
pistol from the safe for self-protection
in case Mike started to assault her
again. She put it under the mattress and went to sleep on Michelle's
bed.
In her evidence-in-chief Adrian did not mention an incident which was a
further indication that Mike had suspicions as to her fidelity.
When she was
asked in cross-examination whether it was correct that in the course of the
quarrel with Mike she took off her clothes,
she denied it, saying "Not at all".
The cross-examination continued:
"So as dit vir my gesê is, is dit leuens, dat u op die Vrydagaand
toe jou man vir jou gesê het jy wil net na die partytjie
gaan om jouself
te exhibit ..(tussenbei)--Kan ek dit regstel daarso?
11
Asseblief? -- Asseblief. Nadat my man my
geslaan net, toe
sê hy vir my ek is 'n f-ing
hoer, toe sê ek vir horn:
Weet jy hoe lyk 'n
hoer?
Ja? — Toe trek ek my
klere uit. Dit was
voor, nadat hy, voor, net nadat hy na die
TV-
kamer gegaan het, voordat hy soontoe geloop
het.
Ja? — Toe staan ek by my voordeur. En dit
is
wat hy vir my gesê het ja, ek is 'n hoer, toe
sê ek vir horn: Weet jy hoe lyk 'n hoer?
Ja. — Toe trek ek my klere uit, my skirt,
want dit was helfte van my afgeskeur gewees in
elk geval.
Dit is die eerste wat ons daarvan hoor, moet
ek meld. — Toe het ek dit uitgetrek, ja, dit
is reg en ek het buitekant toe gestap, buite
my deur, en my seun [Keith] het buitekant toe
gekom en my toegemaak en my teruggebring in
die huis.
Jy was naak, met ander woorde, jy het naak ..
(tussenbei) -- Ek was nie kaal-kaal nie, ek
het my bra en my pantie aangehad, om dit te
korigeer, asseblief.
En jy het met jou bra en pantie na die hek
gestap en dit is waar jou seun jou gekry het?
-- Halfpad na my hek toe, dit is reg, en my
12
seun het my daar gekry en my
toegemaak."
The day of 4
November.
Adrian said that in the morning she 'phoned the
laboratory. Her object was to find out if Mike was at work, because she was very
concerned
about him and she only wanted to hear if he was all right. When Mike
answered the phone, she just said, "Sorry, wrong number", and
put the receiver
down. This is a strange story. After the treatment she says that she received
from Mike the previous night, it is
curious that she should have been worried
about him. The probability is that she 'phoned in order to check up on Mike, as
she did
several times later during the day. In the afternoon she again 'phoned
the laboratory and asked Solly Moloto, Mike's assistant, where
Mike was and was
told that he was not there. She also telephoned her mother, a Mrs Pappadopoulos,
who told her that she
13
thought Mike was at work. At about 6 pm she telephoned Susanna Dennison,
Jimmy's wife, who was a state witness.
Mrs Dennison referred to this
conversation in detail in her evidence. She said that Adrian told her about a
quarrel on the previous
evening which had arisen because Adrian did not want to
take Mike with her to the party. Mike had told her that she only wanted to
go to
the party in order "to expose herself". She then said to him, "Okay, I will show
you how to expose myself", and took her clothes
off and walked out into the
street, naked. When she returned, Mike assaulted her. Adrian had then told Mrs
Dennison that she was
going to shoot Mike. She was only waiting for him to come
home and she was going to shoot him. Adrian told Mrs Dennison that the
previous
night (the Friday), she had taken the pistol out of the safe and put it under
Michelle's mattress and was waiting for Mike
to come
14
home and she would then shook him.
Adrian gave a somewhat
different version. She telephoned the Dennison house and asked Susanna Dennison
if Mike was there and she said
"No". She asked her if Mike was with Jimmy and
the reply was that Susanna did not know. Adrian had then told Mrs Dennison that
if
she found out that Mike had a relationship with a woman, she would shoot
him.
It was submitted by counsel that Adrian's evidence regarding this
telephone conversation was to be preferred to that of Mrs Dennison:
that both
Mrs Dennison and her husband had a motive to falsely implicate Adrian. This
motive was said to reside in the circumstances
of Adrian's involvement, shortly
after Mike's death, with a man named Hans.
The first question put to Adrian in cross-examination was whether it was
correct that about two years before Mike's death she had
met Hans in
prison
15
where she was visiting her cousin. Her first reaction was
bo deny that she had met Hans in prison. This was followed immediately by
an
acknowledgement that that was where they met. After their meeting there was no
contact, she said, between them until 6 January
1990, which was Jennifer's
birthday. Hans had telephoned that morning and said he had heard of Mike's death
and offered his sympathy.
He asked if he could come round for a cup of tea.
Adrian agreed because she could see nothing wrong in that. Immediately after he
arrived at her house the Dennison's arrived. Naturally, she said, she got a
fright. She did not know what to do and she told Hans
to hide in the
bedroom.
Dennison said in his evidence that on the occasion of Jennifer's
birthday, he and his wife visited the Larsen house together with
two friends.
They had tea and later Susanna Dennison noticed Hans lying on the bed in one of
the bedrooms. Shortly afterwards the
16
Dennison party left. That was the last occasion on which they visited the
house. Dennison said that he and his wife were up to that
stage still friendly
with Adrian. Although he felt bad because Adrian had taken away his cousin who
was like a brother to him there
were no ill-feelings. whatever happened, it
could not bring Mike back. Later Adrian 'phoned a couple of times. He
said,
" she told us she is sorry and all that
and I said to her straight out ....: 'Adrian, you have got your life to
lead, you must lead it as you see fit.'"
The trial judge did not made a finding
in
regard to the credibility of the Dennisons, but
the
impression I gain from a reading of their evidence
is
that they were both truthful witnesses without
ill-
17
feelings towards Adrian. Certainly they were not people who would
fabricate a story in order to falsely implicate Adrian. In so far
as they
differ, I have no hesitation in accepting Mrs Dennison's account of the
telephone conversation and rejecting that of Adrian.
Evening of Saturday 4 November.
Adrian gave evidence
that she left the house with her children to go to the Christmas party at about
5.45 pm. Mike had not then returned.
They only stayed an hour at the party and
returned home at 7 pm. They took fire-works outside and let them off. Mike
arrived at about
8.30 pm. He was very angry when he got out of his car. He
greeted no one and walked into the house. Adrian followed him into the
bedroom
and asked him where he had been. He replied, "It has got f- all to do with you,
I went whoring", and poked his
18
middle finger into her bosom. She said again that she wanted to know
where he had been, and Mike gave the same reply. She then went
to Michelle's
room and fetched the pistol. She said she wanted to force him to tell her where
he had been. She knew that the pistol
was unloaded, although Mike did not. She
did not intend to fire it. She would never hurt him or kill him.
Adrian found Mike in the kitchen. She aimed the pistol towards his
stomach and put her question again and he gave a strange laugh
and walked into
the pistol. She asked him, "Are you crazy?" and he replied that if she wanted to
shoot him she should make a good
job of it. He put his hands over her gun-hand
and lifted it to his head. She jerked it away, and he jerked it back again and
it was
then that the fatal shot went off.
Adrian said in her evidence-in-chief that she had never handled the
pistol except for an occasion
19
nine years before, when she had fired three shots and just missed hitting
Mike's foot. She did not know how it worked. She said that
on the Friday
evening, the gun did not have the magazine in it, or at any rate she thought it
was empty because Mike always kept
the pistol and the magazine
separate.
It is not clear on the evidence whether Mike was in fact
accustomed to keeping gun and magazine separate. Jimmy Dennison gave evidence
that it was he who had trained Mike in the use of the firearm and how to leave
it when it was not in use. He said that he always
trained Mike to remove the
magazine from it, cock it, make sure that the chamber was safe, put the magazine
back in it and then put
it on safe. He said that Mike was too scared of a
firearm ever to have a round in the chamber. "He was terrified of guns
actually."
It is not acceptable that Adrian believed
or
20
thought that the gun was not loaded. Her assertions to that effect became
less and less convincing as her cross-examination proceeded.
Asked whether she
made certain that the pistol was not loaded, she said she just took it out of
the safe and did not look. Pressed
on this point, she said that she did not see
because the light was off and it was dark in her room when she opened the safe.
As the
following extract from the record shows, this story of the unloaded gun
finally disintegrated :
"Nou hoe het jy geweet of die vuurwapen
gelaai
was of nie gelaai was nie? — Ek het nie
geweet nie.
Met ander woorde, die moontlikheid kon
bestaan
dat die vuurwapen wel gelaai was? — Moontlik,
ja.
En jy het eintlik nie daarop gesteur nie? --
Hmm-hmm."
Nor is her story acceptable that she did
not
21
intend to kill Mike, but intended only to frighten him. On her own
version she told Susanna Dennison that she Intended to kill Mike
if she found he
was having an affair. Her whole conduct is consistent only with such an
intention. Her story that her purpose was
to force Mike to tell her where he had
been is fatuous. On the Friday she took possession of a gun which she must have
known was
loaded. She hid it under Michelle's mattress. On the Saturday evening
she took it out and went to the kitchen to confront Mike, and
aimed it at his
stomach.
It is clear from the record that Adrian was no friend of the truth. That
is shown by her initial response to the questions about Hans
and by her
duplicity when the Dennisons arrived; by her denial at first that she had taken
her clothes off on the Friday night; by
her false account of the telephone
conversation with Susanna Dennison on the Saturday; by
22
her untrue evidence that she thought that the gun was not loaded; and by
her false statement that she did not intend to kill Mike
but wished only to
force him to answer her question. Her story that Mike caught hold of her
gun-hand so that the weapon was pointed
at his head and told her to do the job
properly is inherently improbable and in the light of Adrian's many deficiencies
as a witness
it cannot be reasonably possibly true.
The learned trial judge said in his. judgment :
"On the review of all the aforegoing evidence
I find the inference irresistible that she deliberately fired at the
deceased with intent to kill him if he did not answer her question
satisfactorily. She was no doubt in a state of mounting rage when she acted in
this manner, but that is a matter more for mitigation
and not for
exoneration."
23
And again,
"My finding is that the accused loaded the fire-arm, slid the safety
device into the firing position, aimed it at the deceased and
fired it. This
action is not explicable simply by reference to an attempt to scare. The single
fatal shot was the first shot which
the accused fired."
I do not agree that these are the only reasonable inferences from the
proved facts, or that they are the most probable inferences.
It is reasonably
possible that the magazine was in the gun when Adrian took it from the safe and
that she did not load it. It is
reasonably possible that the fatal shot was the
last shot which was fired. In regard to the shooting there is another scenario
which
is largely consistent with Adrian's story and with all the proved facts.
It is in my view more probable than that described by the
trial judge.
24
The setting was the kitchen, which is a room 5,80 m long and 2,80 m in
width, and the floor space is limited by furniture alongside
the walls - a
refrigerator, a freezer, shelving and a stove on one side and a table on the
other - so that there was little room
for two people to manoeuvre. All the
action took place in the half of the kitchen next to the sliding door to the
dining room. It
appears that at the beginning of the episode Adrian and Mike
were standing about half a meter apart from each other. When she aimed
the
pistol at him, it would have been natural for him to grab her pistol hand and to
try to disarm her. That indeed was the effect
of something she said under
cross-examination:
"Nou wat sou u gedink het wat u man se reaksie gaan wees as hy die vuurwapen
sien? -- Hy sou dit by my gevat het, sal ek dink, want
hy is bale bang vir 'n
geweer."
25
They grappled with each other and in the course of the ensuing scuffle
two shots went off, which hit the tiled floor. Then the fatal
shot was fired at
a time when the muzzle was in contact with the skin of Mike's forehead.
Consistently with a struggle for possession
of the gun was the post mortem
finding of an area of bruising 3 cm by 2 cm on the back of the deceased's right
hand over the knuckle
of the right index finger. In the view of the district
surgeon that could have been sustained prior to the gunshot wound.
It was argued by counsel for the State that this was an execution type of
killing. I do not think that that was proved. The probabilities
are rather in
favour of the fatal shot being fired in the course of a struggle for the
possession of the gun.
In my opinion the question of Adrian's guilt should be approached on the
basis of this scenario.
She entered the kitchen intending to
kill
26
Mike. She aimed the pistol at him. There was no
novus actus
interveniens
. Mike's reaction was a normal reaction for a man faced at close
quarters with a pistol. And the fact (if it be the fact) that the
shot which
killed him was fired in the course of a scuffle for possession, does not affect
Adrian's guilt.
In my view she was correctly convicted.
In regard to the appeal against sentence, I am of the opinion that the
trial judge misdirected himself in the respects I have referred
to, and that as
a result the question of sentence should be considered afresh. In the
circumstances of this case I think that the
proper course is to remit the matter
to the trial court.
The circumstances are these. The appellant was convicted on 12 April
1991. In order to assess a proper sentence it should be known
what has happened
to her in the last three years. Since she was sentenced,
27
a sentence of correctional supervision under
s.276(l)(h)
of the
Criminal
Procedure Act 1977
has become a sentencing option. The fact that she was
convicted before
s.276(1)(h)
came into operation does not prevent the imposition
now of such a sentence. See S v R 1993(1) SA 476(A) at 484J-485A. Correctional
supervision may be an appropriate sentence in the case of a conviction for
murder. See S v Potgieter 1994(1) SACR 61(A). The appellant
was 38 years old at
the time of her conviction. She had no relevant previous convictions. She was in
full-time employment. She has
three children including Michelle who was eight
years old. There was a history of assaults on the appellant by Larsen, of which
that
on 3 November 1989 was only the last. When she entered the kitchen on the
evening of Saturday 4 November she was probably in a state
of towering rage,
stemming from the incidents of the Friday, her jealous suspicions, and her
increasing
28
frustration and Mike's taunting and abusive attitude. It may be that she
does not fall into the category of persons who ought to be
removed from society
by a sentence of imprisonment.
Counsel referred to a possible
difficulty which lies in the fact that the trial judge has now retired and might
not be available to
reconsider the matter. In my view however it would not be
profitable to speculate in this regard.
The following order is made :
(a)
The appeal
against the conviction is
dismissed.
(b)
The sentence
is set aside and the matter is remitted to the trial court to sentence the
appellant afresh after receiving such further
evidence as may be proffered, and
complying with
the
29
provisions of
s.276
A(l)(a) of the
Criminal Procedure Act in
regard to
correctional supervision under
s.276(l)(h)
of the Act.
H C NICHOLAS AJA.
NESTADT JA)
F H GROSSKOPF JA) Concurred.