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[1994] ZASCA 116
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S v Ingram (62/93) [1994] ZASCA 116; [1995] 3 All SA 121 (A) (15 September 1994)
SAFLII
Note:
SAFLII
has been notified that the Appellantâs criminal record has been
expunged in terms of
section 271B
of the
Criminal Procedure Act, 51
of 1977
.
CASE
NO
:
62/93
N v H
IN THE
SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the
matter between:
GORDON
ALAN INGRAM
Appellant
and
THE
STATE
Respondent
CORAM
:
HEFER, SMALBERGER et
NIENABER,
JJA
HEARD
:
30 AUGUST 1994
DELIVERED
:
15 SEPTEMBER 1994
J U D G M
E N T
SMALBERGER,
JA:
On the night of 31 March 1991 the
appellant fatally shot his wife, Gillian Deborah Ingram ("the
deceased"), at their home
in
Bryanston. Consequent
thereon the appellant was indicted in the Witwatersrand Local
Division on a charge of murder. He raised the
defence of
non-pathological criminal incapacity. This defence was rejected by
the Court a quo (GORDON, AJ, and assessors) and the
appellant was
found guilty as charged. He was sentenced to 8 years imprisonment,
half of which was conditionally suspended. He now
appeals with the
necessary leave against both his conviction and sentence.
The following facts are either
common cause or not in dispute for the purposes of the present
appeal. The appellant and the deceased
were married in 1972. They had
two teenage children, Dagny and Dylan (both of whom testified at the
trial). The marriage was essentially
an unhappy and tempestuous one.
The deceased had an alcohol problem and periodically formed liaisons
with other men. She received
treatment for alcoholism in 1988 and
1990 but without lasting success. By the time of her death she had
reverted to her old drinking
habits. When under the influence of
liquor she frequently used to be abusive towards the appellant and
the children. Her conduct
towards the latter particularly distressed
the appellant. The children at times had to assist the deceased to
bed because of her
inebriated condition, using some measure of force
when necessary. The appellant and the deceased were in the throes of
protracted
divorce proceedings although they still shared a common
bedroom. Despite all their problems and marital friction the
appellant still
held out hope for a reconciliation.
He described their relationship as
a "love/hate" one.
At about noon on the day of the
shooting the appellant and the children went to a barbecue at his
parents' home, which was some distance
away. The deceased, as was her
practice, stayed at home. (This was due, at least in part, to the
strained relationships that existed
between the appellant and the
deceased and their respective parents-in-law.) By that time the
deceased already
showed signs of
intoxication. In the course of the visit to his parents' home the
appellant consumed a considerable amount of alcohol.
He drank
regularly, and at times heavily, but apparently had a high tolerance
to alcohol - in colloquial terms he could "hold
his liquor".
The appellant and the children eventually returned home at about
20:00.
The
sequence of events that occurred from the time of their return home
until the shooting of the deceased is as follows. On their
arrival
the deceased was in her bedroom. She was under the influence of
liquor. She eventually went to the kitchen where she and
the
appellant became involved in a heated argument. At that stage the
children were in the lounge. They heard crockery breaking in
the
kitchen. When the arguing stopped they went to the kitchen. By that
time the appellant had gone outside with a drink (alcoholic)
in his
hand. The children decided, after picking up the broken crockery, to
take the deceased to her bedroom. She resisted violently
and hurled
abuse at them. They managed to drag her along the passage. As they
passed the bathroom the appellant appeared. He pushed
the deceased
into the bathroom and tried to close the door behind her. She put her
hand between the door and the frame to prevent
it from closing. The
appellant did not persist with his attempt to shut her up in the
bathroom. She managed to open the door. The
children ultimately
succeeded in getting her to the bedroom, using handcuffs for this
purpose (a strategy successfully employed previously).
The
subsequent events appear from the following passage in Dagny's
evidence:
"Then
Dagny? -- Then when we got her to the bedroom, the main bedroom, she
wanted to go back to the kitchen and fetch cigarettes
and a drink, so
I said that I would go and I went and on the way that is when I saw
that the safe door was open. I did not take any
notice of that and I
went through to the kitchen and my dad was standing there drinking
something. I did not speak to him and I fetched
her cigarettes and I
went back to the bedroom.
COURT
:
What about the drink, did you fetch her a drink? -- No. And well,
then I was standing in the doorway and my mom and my brother were
in
front of me and then my dad was behind me and he had his hands behind
his back and he had like a strange look on his face.
MR
HANNON
:
Yes? --And so I said to my mom and my brother, you know, I tried to
tell them that something was wrong but they could not hear me
so 1
tried to tell them again and then I looked at my dad again and he had
the gun. And then he fired a shot and me and my brother
ran. My mom
sort of fell one way and we passed my dad and we ran to the office
and then I phoned the police."
After she
telephoned the police the appellant came to the study. Her evidence
proceeds:
"My
dad came back and he was crying and he like took me and my brother on
his knee and he hugged us and he said:
What
have I done and he just kept repeating it.
COURT
:
He said what? -- What have I done, what have I done.
MR
HANNON
:
He kept repeating it, m'lord. -- Over and over again.
Yes? â
And he said something to the effect of: I could not stand what she
was doing to you anymore.
Yes. Was
he crying - upset I think you said? -- Ja, he was crying, shaking and
he was crying a lot ...."
After a
while the appellant made arrangements to take the children to their
paternal grandparents. He drove them there. Later he handed
himself
over to the police. He was taken to a district surgeon in the early
hours of the morning. He was found to be under the influence
of
liquor and emotionally blunted. A blood sample was taken (this
occurred some four hours after the shooting). The blood sample
was
later found to contain a concentration of alcohol of .27 grams per
100 millilitre unit which would ordinarily be indicative of
someone
well under the influence of liquor.
When the
appellant left home with his children the fatally injured deceased
was left behind. The only other person on the premises
was a certain
Lovemore who worked for the appellant as a gardener. It is not clear
from the evidence who telephoned for medical assistance.
When the
police arrived the paramedics were in the process of removing the
deceased to hospital. She was still alive. An emergency
operation was
performed upon her. Postoperatively her condition deteriorated
and she died a few hours later. Her cause of death
was found to be
"gunshot wound of shoulder : haemorrhage".
The events
that immediately preceded and followed upon the shooting of the
deceased, as set out above, appear from the undisputed
and acceptable
evidence of Dagny and Dylan. The appellant claimed a partial amnesia
in respect of such events, having only a patchy
recall of what
occurred. It is unnecessary to set out the extent of such recall. It
can be accepted that the appellant has a partial
amnesia for the
events in question. Such amnesia, however, is not diagnostically
significant. It is common cause that the appellant
drank heavily on
the afternoon and evening of the shooting and was intoxicated,
probably significantly so, when the shooting occurred.
He was also in
a heightened emotional state.
His
partial amnesia is attributable to these factors. It is also common
cause that such amnesia per se is not relevant to the issue
of his
culpability. The guilt or innocence of the appellant depends upon
whether, as put forward in his defence, he was suffering
from a
temporary non-pathological incapacity when he shot the deceased and
was therefore criminally unaccountable for his conduct.
Accountability in this context depends upon a person's ability to (1)
distinguish between right and wrong and (2) exercise restraint
or
control over his or her actions which are unlawful. If either of
these psychological characteristics is absent the person concerned
would not be criminally responsible for his conduct (
S v Laubscher
1988(1) SA 163 (A) at 166F-J).
The
legal position with regard to the defence of non-pathological
criminal incapacity has recently been dealt with authoritatively
by
this Court in
S
v Kalogoropoulos
1993(1) SACR 12(A) and
S
v Poteieter
1994(1) SACR 61(A). As appears from these decisions it is ultimately
"for the Court to decide the issue of the accused's criminal
responsibility for his actions, having regard to the expert evidence
and to all the facts of the case, including the nature of the
accused's actions during the relevant period"
(S
v Kalogoropoulos
at
21j - 22a;
S
v Potgieter
at 73a). Once the evidential foundation is laid the onus is on the
State to rebut the defence; if on the totality of the evidence
doubt
exists as to whether an accused's claim that he acted involuntarily
could reasonably be true, the accused is entitled to the
benefit of
such doubt (
S
v Potgieter
at 73e). A matter such as the present calls for a careful
consideration of the evidence. As pointed out in
S
v Potgieter (at 73j to 74b):
"The
need for careful scrutiny of such evidence is rightly stressed. Facts
which can be relied upon as indicating that a person
was acting in a
state of automatism are often consistent with, in fact the reason
for, the commission of a deliberate, unlawful act.
Thus - as one
knows â stress, frustration, fatigue and provocation, for instance,
may diminish self-control to the extent that,
colloquially put, a
person 'snaps' and a conscious act amounting to a crime results.
Similarly, subsequent manifestations of certain
emotions, such as
fear, panic, guilt and shame, may be present after either a
deliberate or an involuntary act has been committed.
The facts -
particularly those summarised thus far - must therefore be closely
examined to determine where the truth lies."
Two
psychiatrists, Dr Shevel (for the appellant) and Dr Vorster (for the
State) testified with regard to the appellant's mental capacity
at
the time of the shooting. After setting out the two elements of
accountability referred to above, the Court a guo remarked:
"On
the facts of this case it is clear that the accused had the volition,
the intent, to commit the deed. Both psychiatrists
are of the firm
view that this was the case and it was not contended otherwise. The
issue in the case lies in the ambit of the second
of the above
elements, the element put forward by Dr Shevel, with strong
disagreement by Dr Vorster, namely that there was an inability
to
exercise restraint or control after he had formed the intent to shoot
and kill her."
Mr Harmon, for the appellant,
accepted this as a correct summation of the position.
Dr Shevel, a practising
psychiatrist, conducted lengthy interviews with the appellant and
Dagny. He compiled a comprehensive report
which he handed in at the
trial. His evidence is encapsulated in the concluding portion of his
report. It reads:
"I can only infer that at
some stage while the deceased was taken to the bedroom by her
children or was in the bedroom, the accused
went to the study, took
the pistol and returned to the bedroom where he shot the deceased. In
the past the accused had previously
isolated the deceased and this
had been successful in giving everyone breathing space. On this
occasion the accused was unable to
isolate the deceased in the
bathroom and she was taken to the bedroom by Dylan or Dylan and Dagny
together. The most likely trigger
mechanism would have been at the
point where the accused realised his attempts at isolating his wife
had failed, a method which had
been successful in the past. This
implies that there must have been some volition on the part of the
accused and that he was most
likely able to form some intent,
although he has amnesia for these specific actions. From Dagny's
report of the argument between
the accused and the deceased and
Dagny's perception of the accused's emotional
state
on different occasions at significant times, the accused was most
probably in a heightened emotional state. This heightened
emotional
state had been aggravated by a slow build-up of stress over the
preceding months due to the marital disharmony, and had
been
precipitated by the argument between the accused and the deceased.
The accused had been drinking during the afternoon and the
early part
of the evening. He most probably continued drinking during the
argument with the deceased in the kitchen. This, in addition
to other
information available to me, would imply that at the material time
the accused was intoxicated. The accused's heightened
emotional state
combined with the intoxicating and disinhibitory effects of alcohol
would almost certainly render the accused incapable
of exercising
self-control or restraint. His inability to correctly monitor his
actions in order to resist his intentions, was not
due to any
pathological state."
Dr Vorster
is the senior psychiatrist and head of the forensic unit at
Sterkfontein Hospital. She did not consult with the appellant
but had
been provided with a transcript of his evidence. She was present in
court throughout the hearing. She disagreed with Dr Shevel
in two
basic respects:
"Firstly
1 disagree with the fact that there was a trigger which heightened
his emotional tension and secondly I disagree with
the fact that he
was unable to stop himself because of this heightened emotional
state."
In the
course of her evidence Dr Vorster handed in a diagram in the nature
of a flow sheet in which she analysed the relevant events
of the
afternoon and evening, with particular reference to the appellant's
conduct. These events, according to Dr Vorster, illustrated
that the
appellant had acted in a purposeful manner throughout and negated any
suggestion of there having been a trigger mechanism.
She concluded:
"If
one looks at the actions of the evening from the argument on that
background one sees rather an intentional, purposeful activity.
As Dr
Shevel said, he formed the intention to shoot his wife. He embarked
on a series of complex activities in order to reach that
goal. He did
not simply say in some inebriated fashion stagger up to the bedroom
and let off a series of shots at random but shot
once and missed and
then followed her into the bedroom to shoot the second time. In
addition we have his actions after the shooting
which were
also
purposeful and goal-directed. From this one must conclude that his
mental state was such that he knew what he was doing was wrong
and
could act in accordance with such appreciation."
The Court a quo gave careful
consideration to the respective views of Dr Shevel and Dr Vorster. It
ultimately concluded that on an
overall conspectus of all the
evidence the views of Dr Vorster were preferable to those of Dr
Shevel. I am unpersuaded, for the reasons
that follow, that it erred
in coming to that conclusion.
The underlying premise of Dr
Shevel's evidence is the existence of some trigger mechanism. This
mechanism, according to Dr Shevel,
was the appellant's inability to
isolate the deceased (in this case, in the bathroom), something he
had succeeded in doing previously
and which had helped to subdue her.
But as Dr Vorster correctly pointed out, this was by no means a
unique situation. The appellant
had on previous occasions failed to
isolate and restrain the deceased. There is no rational reason why on
this
particular occasion such
failure should have operated as a trigger mechanism when it had not
done so before. And in any event his
subsequent conduct, in my view
correctly designated by Dr Vorster as purposeful, militates against
there being any such trigger mechanism.
It is
common cause that the appellant was initially able to form the
necessary intent to shoot and kill the deceased. This intention
was
formed after the bathroom episode. The appellant was at the time,
according to Dr Shevel, able to distinguish between right and
wrong.
I have difficulty in appreciating why, if he was able to do so, he
was not equally capable of exercising the necessary restraint.
There
was no subsequent incident which could have accounted for, or
contributed to, an inability to control his actions. If he was
incapable of restraint one would have expected him to act in a manner
consonant with such inability - to fetch his pistol, return
to the
deceased and shoot her without any significant
intervening
pauses. This, however, is not what happened. The longer the time
lapse before the shooting, the more complex the intervening
actions,
the less likely it becomes that the appellant acted out of control
because of an inability to restrain himself.
After the bathroom incident the
appellant went to fetch his pistol. He testified that he had earlier
that day taken the pistol out
of the gun safe in his study in order
to clean it. He intended using it for target practice the following
day. When he left the house
with the children he locked the study
door (which had a special safety insert in the lock) leaving the
loaded and ready-to-fire pistol
on his study desk. If that is so, he
presumably also left the gun safe, which contained two shotguns and
an additional firearm, open,
because when Dagny went to fetch the
deceased's cigarettes in the kitchen she noticed that its door was
standing open. The appellant
appears to have been extremely careful
with firearms, particularly after the deceased once obtained
possession of his pistol and
threatened
to shoot the children. He dismantled the pistol and hid its various
pieces in different places. However, the deceased managed
to find
each piece and re-assemble the pistol. He then entrusted the pistol
to the police for safekeeping until he had a gun safe
installed. It
seems highly unlikely, and out of character, that he would have left
the pistol lying on the study desk and the gun
safe open when he
departed the house, leaving the deceased there alone, even allowing
for the fact that he had locked the study door.
The probabilities are
that his pistol was not where he claimed it was when he went to fetch
it that night, and that he only removed
it from the gun safe then. In
any event, on a proper evaluation of the evidence, the very least he
did was to first unlock the study
door, a task made more complex than
usual because of the special nature of the lock. After taking the
pistol he did not proceed forthwith
to the bedroom to shoot the
deceased as one might have expected if he was acting without
restraint. Instead he went to the
kitchen to have a drink.
That is where Dagny saw him. Only then did he go to the bedroom.
There Dagny, who was standing in the bedroom
door, noticed him behind
her with his hands behind his back. This suggests that he was trying
to hide the pistol from sight - a consideration
which points strongly
to his being conscious of what he was about. The appellant then fired
the first shot, missing the deceased.
The second shot was not fired
immediately thereafter, but only after he had entered the bedroom. He
did not fire continuously as
one might have expected from someone
with no control over his actions. The fact that he must have stopped
firing because he saw that
the deceased had been hit shows an
understanding of what was happening and an ability to exercise
control. His later remarks in the
study to the children also indicate
an awareness of what he had done and an appreciation of his wrongful
conduct. He thereafter continued
to act in a purposeful manner -
enquiring whether the police had been telephoned,
restraining
Dagny from going to the deceased, contacting his parents, making
arrangements with regard to the children and driving
them
approximately 30 kilometres to his parents' home. Overall there was
no manifestation in his conduct of a total loss of control.
In
the circumstances the court a quo was entitled to accept the evidence
of Dr Vorster in preference to that of Dr Shevel and consequently
to
hold that the appellant was able throughout to distinguish between
right and wrong and to exercise restraint or control over his
unlawful actions. He was therefore criminally accountable for his
conduct. It follows that the appellant's appeal against his
conviction
must fail.
I turn now
to the question of sentence. The appellant's circumstances evoke
strong feelings of sympathy. He was the victim of unhappy
home
circumstances which impinged upon the welfare of his children whom,
it can be accepted, he loves dearly.
The tragic
consequences of his deed will probably live with him forever. The
learned trial judge correctly held that the appellant
had acted under
circumstances of diminished responsibility. He appreciated the need
to give full effect thereto in arriving at a
proper sentence. He
sought guidance in relation to the vexed question of sentence in
certain past decisions of this Court. He no
doubt bore in mind that a
sentence must be individualised and eachmatter dealt with according
to its own peculiar facts. He then
went
on to say:
"What
distinguishes this case from the cases quoted is the behaviour of the
accused after the shooting. His conduct, his emotions
indicated an
awareness of his acts. In my view there was a refusal to come to the
assistance of this woman whose suffering at the
time must have been
extreme. This is an important factor that [must] be borne in mind."
There
would appear to be implicit in this statement a finding that the
appellant acted in callous and wilful disregard of the plight
of the
deceased. The evidence does not, in my view, justify such finding
beyond all reasonable doubt. From what the appellant said
and did
immediately after the shooting it may be inferred that he genuinely
believed at the time that the deceased was dead. True,
later events
must have made him realise that she was not. But he may well still
have thought that she was beyond human assistance.
When he stopped
Dagny from going to the deceased he was probably acting in Dagny's
interests by preventing her from being exposed
to the traumatic sight
of her dying mother rather than restraining her from going to the
deceased's assistance. His state of intoxication
and emotional stress
at the time was not conducive to totally rational thought and
behaviour. His primary concern at that stage appears
to have been the
immediate welfare of the children. In the circumstances it is not the
only reasonable inference that he callously
refused to go to her
assistance, or deliberately stopped anyone else from doing so. There
was accordingly a material misdirection
by the trial judge which
leaves this Court at large to consider the question of sentence
afresh.
It is
trite law that the determination of an appropriate sentence requires
that proper regard be had to the triad of the crime, the
criminal and
the interests of society. A sentence must also, in fitting cases, be
tempered with mercy. Murder, in any form, remains
a serious crime
which usually calls for severe punishment. Circumstances, however,
vary and the punishment must ultimately fit the
true nature and
seriousness of the crime. The interests of society are not best
served by too harsh a sentence; but equally so they
are not properly
served by one that is too lenient. One must always strive for a
proper balance. In doing so due regard must be had
to the objects of
punishment. In this respect the trial judge held, in my view
correctly, that the deterrent aspect of punishment
does not play a
major role in the present instance. The appellant is not ever likely
to repeat what he did. Deterrence is therefore
only relevant in the
context of the effect any sentence may have on prospective offenders.
A suspended period of imprisonment is
accordingly rendered largely
superfluous.
It was
urged upon us in argument that correctional supervision in terms of
sec 276(1
)(h) of the
Criminal Procedure Act 51 of 1977
would be an
appropriate sentence for the appellant. This sentencing option was
not applicable at the time when sentence was passed,
but has became
available since. It would therefore be competent for the trial judge
to consider the suitability of such a sentence
if the matter were
remitted to him to pass sentence afresh
fS v R
1993(1) SA 476
(A) at 485;
S v Poteieter (supra
) at 86j).
As was
pointed out in
S v R
(at 488G) the legislature, by the
introduction of this option, has sought to distinguish between two
types of offenders: those who
ought to be removed from society and
imprisoned and those who, although deserving of punishment, should
not be so removed. Correctional
supervision can be coupled with
appropriate conditions to make it a suitably severe sentence even for
serious offenders. It therefore
allows for the imposition of an
adequate sentence without resorting to imprisonment with all its
attendant negative consequences
for both the prisoner and society. As
correctional supervision under
sec 276(l)(h)
can, in terms of
sec
276A(l)(b)
, only be imposed for a period not exceeding three years,
it is not a sentence that readily lends itself to the very serious
category
of crimes (which would normally call for higher sentences)
and should therefore not be too lightly imposed in such cases.
It
seems to me, taking all relevant considerations into account, that
punishment for an effective period of more than three years
is not
required in the present case. Equally so it seems to me that the
circumstances do not necessitate the removal of the appellant
from
society; provided he otherwise qualifies for correctional supervision
he can be suitably punished using the means available
under that
sentencing option (cf
S
v Potgieter (supra
):
S
v Larsen
1994(2) SACR 149(A)). To adopt the words of KUMLEBEN, JA, in the
Potgieter
case
at 88d:
"If a
correctional supervision order is found to be the appropriate one,
and if stringent conditions are imposed, I venture to
suggest that
such a sentence would commend itself as fair and just to a person
conversant with all the facts."
As
correctional supervision can only be imposed after a report of a
probation officer or a correctional official has been obtained
the
proper course to adopt is to remit the matter to the trial Court to
sentence the appellant afresh. In the result 1 propose making
an
order similar to that made in
S v Potgieter
(
supra
) at
88e.
The appeal
succeeds in part. The conviction is confirmed, but the sentence is
set aside. The matter is remitted to the trial Court
to sentence the
appellant afresh, after due compliance with the provisions of
s
276A(l)(a)
of the
Criminal Procedure Act, and
after receiving such
further evidence as may be profferred, to correctional supervision in
terms of
s 276(l)(h)
of that Act or, if for good reason the appellant
is found not to be fit for such a sentence, to otherwise sentence him
in the light
of the views expressed in this judgment.
J W
SMALBERGER JUDGE OF APPEAL
HEFER, JA)
NIENABER, JA ) CONCUR