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[2019] ZASCA 52
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Naidoo v S (333/2018) [2019] ZASCA 52 (1 April 2019)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
Not Reportable
Case No: 333/2018
In the matter between:
JASON
NAIDOO APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Jason Naidoo v The State
(333/2018)
[2019] ZASCA 52
(1 April
2019)
Coram:
Majiedt, Van Der Merwe and Mocumie JJA
and Carelse and Matojane AJJA
Heard:
12 March
2019
Delivered:
1 April 2019
Summary:
Evidence – single child witness
who was under the influence of alcohol at the time of the alleged
sexual assault and attempted
murder – corroboration and
evidential duties in criminal trials.
ORDER
On
appeal from:
Western Cape Division,
Cape Town (Samela and Wille JJ):
The
appeal is dismissed.
JUDGMENT
Matojane
AJA
Introduction
[1]
The appellant was convicted in the regional court, Cape Town (the
trial court) on one count of sexual assault in terms of s
5(1) of the
Criminal Law Amendment (Sexual Offences and Related Matters) Act 32
of 2007 and one count of attempted murder. He was
sentenced as
follows, on count 1 (sexual assault) to R10 000 or 36 months’
imprisonment, plus a further 24 months’
imprisonment which is
wholly suspended for a period of five years; and on count 2
(attempted murder) to 3 years’ imprisonment
wholly
suspended for a period of five years on condition that he is not
convicted of attempted murder or assault with intent
to do grievous
bodily harm, and 24 months correctional supervision in terms of s
276(1)
(h)
of
the Criminal Procedure act 51 of 1977 (the CPA).
[2]
The trial court granted the appellant leave to appeal against his
convictions. The appellant's appeal on conviction to the Western
Cape
Division of the High Court, Cape Town (the high court) was dismissed
on 15 December 2017. Special leave was granted by this
court in terms
of
s 16(1)
(b)
of
the
Superior Courts Act 10 of 2013
to the Supreme Court of Appeal.
[3] The issue in this appeal is
whether the trial court erred in accepting the evidence of a single
child witness, who was under
the influence of alcohol at the time of
the alleged incident.
Background
[4]
The evidence of the complainant, accepted as credible by the
trial court, was, in essence, the following: the appellant, contacted
complainant suggesting that the two meet later that evening. The
complainant was a part-time waitress at the […] restaurant.
After her shift ended at 21h00 the complainant
went home and waited for her mother to fall asleep. At about 01h30
she sneaked out
of her bedroom window to meet with the appellant who
was waiting outside on his motorbike. The appellant suggested that
they go
either to his house to swim or to the […] bar in the
Table View area, Cape Town. The complainant suggested that they go to
the […] bar.
[5] It is common cause that the
appellant and the complainant were friends. She was 16 years old and
the appellant was 18 years
old at the time of the alleged incident.
The complainant testified that it was the first time that she
consumed alcohol. After
she drank a litre of beer and two ‘hand
grenades’ which consisted of a measure of tequila and
jägermeister mixed
with an energy drink, Red Bull, she started
to feel unsteady.
[6] The appellant acceded to the
complainant’s request that they meet up with L, her boyfriend,
who was at his cousin’s
house around the corner. The three of
them went to a local park where the complainant started feeling
nauseous and began vomiting.
While vomiting the appellant rubbed her
back and then pressed on her stomach to make her vomit more. Later
the complainant's boyfriend
left, and the appellant accompanied the
complainant to a second park close to the complainant’s
residence, where she started
vomiting again prompting the appellant
to rub her back while she was on her hands and knees and to put his
hands on her stomach
to make her vomit more. The appellant then moved
his hands under her brassiere and touched her breasts. The appellant
allegedly
tried to kiss her and put his hand down the back of her
pants over her underwear. A struggle ensued during which the
appellant
allegedly attempted to strangle the complainant. The
complainant testified that she thereafter passed out.
[7] When she woke up she discovered
that her underwear and pants were pulled down to her ankles. The
appellant was then speaking
to a member of the neighbourhood watch,
Mr Jones. The complainant did not inform Mr Jones that anything was
wrong and indicated
to him that she was the appellant's girlfriend.
The complainant left the park with the appellant and went to her home
where she
sneaked back in.
[8] She messaged her friend C and
informed her that the appellant attacked and raped her. When she
looked into the mirror, she saw
dark spots on her forehead, and her
left eye was bruised. Her eyes started getting yellow. She messaged
the appellant and asked
him what she was going to tell her mother.
She told the appellant never to contact her again and deleted his
number from her phone.
For the third time she vomited and noticed
blood in the vomit.
[9] The appellant's version of what
happened at the second park was that after the complainant started to
vomit again, he tried
to assist her, but she told him that she did
not need help and pushed him away. He then laid on the grass smoking
a cigarette and
fell asleep. When he awoke approximately 30 to 40
minutes later, he saw the complainant asleep some distance away with
her pants
and her underwear around her ankles. The appellant saw
faeces next to her and a smudge on her thigh.
[10] Mr Jones entered the park before
05h00 and saw the appellant and the complainant sitting and chatting.
When he returned at
05h30, the appellant told him that the
complainant was his girlfriend which she confirmed. The appellant and
the complainant then
left the park.
[11] Mr Jones was called by the court
as a witness in terms of
s 186
of the CPA. He testified that
while patrolling the area, he came across the appellant and
complainant sitting on the bench
chatting before 05h00. When he
returned to the area again at 05h30 he noticed that the complainant
was naked from her waist down.
He did not gain the impression that
anything was wrong. At that stage, the complainant was getting
dressed. She did not make any
report to him and was only concerned
about the time and wanted to go home. The appellant and the
complainant left the park together.
[12]
An appellate court’s limited powers to interfere with a trial
court’s finding of fact is well established. In
the
absence of a demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and
will be
disregarded if the recorded evidence shows them to be wrong.
[1]
[13]
In
Minister
of Safety and Security & others v Craig & others NNO
[2]
Navsa
JA stated that although courts of appeal are slow to disturb findings
of credibility, they generally have greater liberty
to do so where a
finding of fact does not essentially depend on the personal
impression made by a witness’ demeanour, but
predominantly upon
inferences and other facts and upon probabilities. In such a case a
court of appeal with the benefit of a full
record may often be in a
better position to draw inferences.
[14] The trial court, in the present
case, stated correctly that the evidence of the complainant, who is a
single child witness,
must be treated with caution. It, however,
failed to critically evaluate the discrepancies and inconsistencies
in the complainant’s
evidence, but merely accepted her evidence
based on the good impression she made on the court long after the
incident. The trial
court ignored the evidence of the complainant
under cross-examination when asked that somebody must have told the
doctor that she
was unsure whether she was strangled. The complaint’s
reply was:
‘
Yes,
I am sure that I have, that I did speak to him. As I say, I don't
recall everything I say. The reason why I would have
said
unsure is because I wasn't telling the truth to the doctors or my mom
about what happened
.’
[15] Dr Liang confirmed the evidence
of the complainant that she told him that she was unsure if she was
strangled . He testified
as follows:
‘
Sorry.
Ja, sorry. What you have done in your notes, was question marks in
front of this strangled. - - -Question - she said, she
was not sure.
Oh,
I see. Okay, that is why . . . ( Intervention).- - - I have on
all these- going down the pub, getting to the pub,
being
strangled, none of that is clear. Everything is hazy.
Oh,
I see.- - - That is her own words.
So,
as a result of that - we go back to your J88 now. You have
written there, unsure if she was strangled. - - - Correct.
Was
that as a result of the report that she made or as a result of the
examination that you wrote it down there? - - - Well,
the J88
was only brought to me three days after this examination.
Oh.-
- - So, the J88 is completed using my clinical notes and
obviously on what I recalled. So, basically, it is transposing
what
is on my notes onto the J88.
Okay.
So, but your conclusion was, she was unsure whether she was
strangled? - - - She was unsure. Yes.’
[16] Contrary to the complainant’s
evidence above and that of Dr Liang, the trial court concluded that
the only way the complainant
could have told the doctor of the
alleged strangulation is if it indeed happened. The court reasoned
that the doctor who filled
in the J88 form after three days could
have made a mistake when he recorded that the complainant was unsure
that she was strangled.
In failing to treat the evidence of the
complainant with caution in the particular circumstances of this case
where the complainant
was heavily intoxicated, the trial court
committed a material misdirection in the evaluation of the evidence
which error constituted
an infringement of the appellant’s fair
trial rights and a failure of justice.
[17] The trial court also overlooked
the evidence of the complainant that she was told when photos of her
were taken that the red
and black spots on her face were caused by
burst blood vessels which could have been caused by strangulation.
[18] The magistrate accepted the
complainant's explanation that she did not disclose the appellant's
name to her mother and the
doctor because she wanted to protect him
as she knew that he had a short temper and that he was suicidal.
This explanation
is contradicted by her ‘first report’ to
her friend, C in which she accused the appellant of rape.
[19]
The trial court gave two reasons for ignoring the rest of the
evidence of Mr Jones. That court stated that contrary to
the
evidence of the complainant and the appellant, Mr Jones testified
that when he arrived at the park for the second time, the
complainant
was partially naked.Her pants and underwear were entangled and was
about a metre from the complainant. Secondly, Mr
Jones
testified that the complainant was awake on his arrival.
[20] The trial court failed to
consider the improbabilities inherent in the complainant’s
version, in particular, the absence
of evidence of distress and
emotional agitation on the part of the complainant after the
incident. The court never took into account
the fact that the
complainant had consumed an excessive amount of alcohol that clouded
her memory of what happened on the day of
the alleged incident.
[21]
The finding by the trial court that the complainant’s evidence
was credible is untenable. The complainant made contradictory
statements to the police and contradicted other witnesses. According
to her when she got back to her room, she smsed her friend
C and
informed her that she thinks that the appellant raped her. C
testified that complainant never texted her but rather phoned
her.
The complainant ended the call when she heard her mother waking up.
She testified that from the hospital they went directly
to the police
station, whereas her mother testified that she was worried about her
state and decided rather to go home and tuck
the complainant in.
[22]
In evaluating the evidence, the court must account for all the
evidence tendered irrespective of the nature and quality of
such
evidence. Independently verifiable evidence, if any, should be
weighed to see if it supports any of the evidence tendered.
Nugent J
in
S
v Van der Meyden
[3]
said the following:
‘
A
court does not base its conclusion, whether it be to convict or to
acquit, on only part of the evidence. The conclusion which
it arrives
at must account for all the evidence. . . .The proper test is that an
accused is bound to be convicted if the evidence
establishes his
guilt beyond reasonable doubt, and the logical corollary is that he
must be acquitted if it is reasonably possible
that he might be
innocent. The process of reasoning which is appropriate to the
application of that test in any particular case
will depend on the
nature of the evidence which the court has before it. What must be
borne in mind, however, is that the conclusion
which is reached
(whether it be to convict or to acquit) must account for all the
evidence. Some of the evidence might be found
to be false; some of it
might be found to be unreliable, and some of it might be found to be
only possibly false or unreliable,
but none of it may simply be
ignored
.’
[23] The magistrate ignored the
crucial evidence of Mr Jones that he did not observe any injury to
the complainant when he met the
complainant and the appellant at the
park at 05h30. Mr Jones testified that it was already daylight and he
had a good look at the
complainant’s face. He was a metre or
two from her and did not observe any unusual marks or spots on her
face. There was
no physical indication that something had happened to
her which she did not consent to. He was shown the photos of
the complainant
and asked if he saw the bruises and ‘blueness’
around the complainant’s eyes. He was adamant that the
complainant
did not have any marks on her face. All he could say was
that the complainant was very dazed and half-asleep.
[24] The trial court did not account
for the evidence of Mr Jones which supported the appellant’s
version. Mr Jones testified
that he was under the impression that the
appellant had just woken up when he saw him at the park at 05h30 and
that he saw faeces
close to the complainant.
[25] If the complainant was strangled
at the park, and accepting Dr Liang’s evidence, that the trauma
would have been immediate,
one would have expected Mr Jones to have
seen the symptoms.
[26] The evidence of the complainant’s
mother shows that the injuries became evident in her presence, not at
the time of the
alleged strangulation. She testified that she
observed the complainant vomiting, holding her neck with one hand as
if struggling
to swallow, that the complainant was rubbing her eyes
which filled with blood within minutes in front of her. By the time
they
got to the hospital, she testified that there was bruising on
her eye and her neck. Her eyelids became swollen later on. She
testified
that:
‘
Ja.—
and then I was thinking Ebola, what the hell, you know, this is
weird; that’s what came into my head, seriously,
like where did
she get this. Have you seen the outbreak?
’
[27] The trial court misdirected
itself by ignoring or failing to recognise the obvious relevance and
significant probative value
of such evidence in evaluating her oral
evidence. The magistrate did not seek corroboration extraneous to the
complainant’s
evidence regarding the sexual assault. The effect
was to compartmentalize the complainant’s evidence and this
materially
affected the trial court’s evaluation of the
reliability of her evidence. As a result, the evidence as a whole was
never
fully considered.
[28] The trial court regarded as
improbable that the appellant would fall asleep while the
complainant, whom he was concerned about,
was violently sick next to
him. I do not find the appellant’s entire version including the
possibility of how the complainant
could have sustained injuries as
far-fetched (as the trial court did). I find nothing “inherently
improbable” in the
evidence of the appellant to the effect that
having consumed alcohol until the early hours of the morning, he fell
asleep at the
second park and when he woke up he saw the complainant,
who had also consumed an excessive amount of alcohol, asleep some ten
metres
away with her pants and her underwear around her ankles with
faeces next to her and a smudge on her thigh. Corroborating the
appellant’s
version, Mr Jones said that the appellant had just
gotten up when he saw him in the park at around 05h30. Further
corroborating
the appellant, he said that he saw faeces close to the
complainant who was not wearing pants or underwear.
[29] The trial court reasoned that if
the appellant strangled the complainant, he must also have pulled
down her pants. Such reasoning
is problematic. The trial court does
not refer to any evidence corroborating the complainant’s
specific allegation that the
appellant touched her breast and
buttocks and put his hands down the back of her pants without her
consent. He makes no reference
to the appellant’s state of
excessive intoxication but makes a factual finding, with no evidence,
that the appellant pulled
down the complainant’s pants and
stated that this in itself constituted sexual assault.
[30]
The two cardinal rules to be observed when seeking to draw inferences
from circumstantial evidence were set out by Watermeyer
JA in the
following often cited passage in
R
v Blom
[4]
,
as follows:
‘
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct
.'
[31] The complainant testified that
she did not know how her pants and underwear were pulled down.
The appellant testified
that when he woke up he saw that her pants
were pulled down and there was faeces close to her. His evidence was
corroborated by
that of Mr Jones from the neighbourhood watch. The
trial court misdirected itself in finding that the only inference
that could
be drawn was that the accused was the one who pulled down
the complainant’s pants to her ankles. The proved facts do not
exclude the possibility that the complainant in her drunken state
could have pulled down her underwear and pants to relieve herself.
[32] The trial court found sufficient
corroboration in the testimony of Dr Liang on the charge of attempted
murder. In doing so,
the trial court ignored the evidence of Dr Liang
under cross-examination that the complainant consumed a substantial
amount
of alcohol and did not have a clear idea of the events of 5
January 2014. Dr Liang went on to explain that the complainant
was not sure if she was strangled. He testified as follows:
‘
All
right. The patient is verbalising that she went out to a pub and that
is about one o’clock in the morning on 5th January
and she went
alone. She said that she consumed a lot of alcohol there. That she
stayed until the pub was about to close.
Just
hang on. Yes?
--- Thereafter, she says that everything was hazy after that. So, it
was bits and pieces – some of what she
recalled. She
recalls walking down the steps of the pub. She recalls being in
a park.
Just
hang on. Just hang on doctor. I am sorry. She remembers bits and
pieces … Yes? --- She said in her own words:
Everything
was hazy after that.
You
said, she
remembered bits and pieces. --- Yes. She said, basically, she –
everything was a bit blurry, but she remembers going
down the steps
of the pub.
Yes?
--- Then she recalls being in a park. Then she says, she thinks she
was being strangled, but it was hazy. She does not know
by who.
.
. . .
Okay.
So, but your conclusion was, she was unsure whether she was
strangled? --- She was unsure. Yes.’
[33] The J88 form completed by Dr
Liang from his clinical notes indicate that he observed bruising
around the complainant’s
neck, petechial spots on the
complainant's forehead, bruising of the eyelids and bilateral
sub-conjunctival haemorrhages. The form
further indicates that these
injuries were in keeping with the above-alleged assault.
[34] Dr Liang testified that the
bruising on the complainant’s neck could have been caused by
her holding her throat while
vomiting. Her mother testified that she
was awakened by the complainant’s vomiting and found her
holding her throat while
vomiting. The doctor conceded that the
petechial spots might have many different causes, including, in
exceptional circumstances,
vomiting. The sub-conjunctival haemorrhage
could be caused by strangulation but also by vigorous rubbing of the
eyelids and excessive
coughing. The doctor testified that while this
haemorrhage would not normally be caused by vomiting, it may result
from a combination
of vomiting and, for example, vigorous rubbing of
the eyes.
[35] When the doctor was asked whether
the bruising of the eyelids could be caused by strangulation he
answered as follows:
‘
You
would
not get bruising of the eyelids just by strangulation. You will also
get particular haemorrhages or spots there. Bruising
of the eyes can
be due to other trauma. It can also be caused by forcefully rubbing
your eyelids.
Oh,
I see.- - - In my notes here, she does testify which is on my J88, as
well. Further down here. Basically, after her memory of
maybe being
strangled, waking up later, going home and specifically saying, she
was rubbing her eyes a lot. So, the bruising
could be caused by
that, which is not on the record.
By
the rubbing of her eyelids. - - - Correct.’
[36] The high court and the trial
court failed to properly appreciate the significance of the onus
which rested upon the State to
prove its case beyond a reasonable
doubt. In its reasons the high court stated:
‘
The
ultimate test is whether a court is satisfied beyond all reasonable
doubt that in its essential features the version given by
the
witnesses is a truthful one.’
[37] The high court stated further
that:
‘
The
crisp issue in this appeal is whether in these circumstances, it is
reasonably possibly true that the complainant had an interest
in
creating a false impression and giving false testimony in order to
falsely implicate appellant.’
[38]
A court is not entitled to convict unless it is satisfied, not only
that the accused’s explanation is improbable, but
that beyond
any reasonable doubt it is false. The dictum of Brand AJA, in
S
v Shackell
[5]
is helpful in
explaining the standard of proof in criminal cases. It reads as
follows:
‘
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused's version it true. If the accused's version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course, it is permissible to
test the
accused's version against the inherent probabilities. But it cannot
be rejected merely because it is improbable; it can
only be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly
be true.’
[39] The high court is incorrect when
it states in its judgment that Dr Laing recorded the words ‘was
being strangled’.
The doctor recorded in the J88 that the
complainant thought that she was being strangled. The high court
again incorrectly stated
that Miss Du Toit, who appeared for the
appellant ‘did, however, concede that an alternative to
strangulation was exceptional’.
This is a misdirection as
there is no such evidence on record.
[40]
The high court further misdirected itself in holding that ‘[the
complainant], immediately, once in the safety of her
home, made a
“first report” to C’ implying that this amounts to
corroboration of the alleged sexual assault.
The so-called
first report is admitted only as evidence of consistency in the
account given by the complainant it does not corroborate
the
allegation of sexual assault. (see
S
v Hammond.)
[6]
I
t
cannot be argued that because the complainant complained shortly
after the incident, it is probable that the incident took place
without her consent.
[7]
Corroboration is
independent evidence that shows that the commission of an act charged
or that shows the existence of some essential
element in dispute.
(see
S
v V).
[8]
[41] In all of the circumstances I
find that there was a misdirection by the trial court and the high
court in accepting the uncorroborated
evidence of a single child
witness, who was under the influence of alcohol at the time of the
alleged incident. The high court
should have found that the State had
failed to prove its case beyond reasonable doubt.
[42] For these reasons I would have
allowed the appeal.
________________________
K
E Matojane
Acting
Judge of Appeal
Majiedt JA (Van der Merwe and
Mocumie JJA and Carelse AJA concurring):
[43]
I respectfully disagree with my colleague, Matojane AJA. I am of the
view that the appeal should be dismissed. My colleague
has given a
comprehensive exposition of the facts and my narrative will
consequently be limited to aspects which require further
elucidation
or which bear repetition.
[44]
At the outset, three important observations must be made: first, the
complainant and the appellant had a strong platonic relationship
at
the time of the incident. Second, both of them were heavily
inebriated at the time. And third, the complainant initially found
herself having to perpetuate a lie when she had to make reports
regarding the incident to her mother, the police and Dr Liang.
[45]
The events leading up to the incident at the second park were mostly
common cause. The two different versions concerning events
at the
second park are mutually destructive. Only the complainant and the
appellant testified about it. But, as a single witness,
the
complainant’s testimony was required to be satisfactory in all
material respects, or there had to adequate corroboration
for it. The
corroboration required is evidence implicating the appellant, not
merely confirming what the complainant had reported.
[9]
Such evidence must support the
complainant’s version and render the appellant’s
conflicting version less probable on
the issues in dispute.
[10]
[46]
As an appellate court it
is essential that we remain cognisant of the strictures on us as far
as the trial court’s factual
findings are concerned. Absent
demonstrable, material misdirections and clearly erroneous findings,
we are bound by the trial court’s
factual findings.
[11]
It is not for an appellate court ‘to
second-guess the well-reasoned factual findings of the trial
court’.
[12]
We are not the triers of fact at first
instance. I briefly recap the events as narrated by the two main
protagonists, restricted
to the latter events which have a bearing on
the issues in dispute.
[47]
It appears as if the mood at the first park was convivial and
light-hearted. The complainant testified that the three of them
enjoyed themselves and ‘had fun’. She and the appellant
playfully ran through the sprinklers (there is a dispute as
to
whether she did so dressed only in her underwear or not). After she
vomited there for the first time, the complainant expressed
a desire
to go home. L left them to go to his cousin’s house which was
close to the first park.
[48]
The evidence suggests that it was the appellant’s idea to go to
the second park. The complainant adhered to his request
to sit there
for a while to smoke and to talk. According to the complainant, when
she vomited again, the appellant rubbed her stomach
and thereafter
allegedly moved his hands under her brassiere and touched her
breasts. She pushed him away, but he managed to pin
her down and
allegedly pushed his hand under her pants and touched her buttocks.
When afterwards she started walking away, heading
home, the appellant
allegedly threw her down on the ground and choked her until she lost
consciousness. When she regained consciousness,
her bottom was
completely exposed, with her pants and panties around her ankles. She
saw the appellant speaking to a man, Mr Bobby
Jones.
[49]
The appellant’s version is completely different – he did
not touch her on her breasts or buttocks, nor did he strangle
her.
During the complainant’s vomiting spell at that second park, he
laid down, gazed at the stars and fell asleep for around
30 to 40
minutes. He suggested that her semi-nakedness from the waist down was
as a result of her having defecated there. The appellant’s
account of events glaringly leaves the injuries to the complainant
unexplained. As I see it, the J88 medical report, the clinical
notes
and Dr Liang’s evidence are decisively against the appellant’s
version. But before I deal with that, it is necessary
first to
consider the trial court’s factual and credibility findings.
[50]
The Regional Magistrate gave a detailed judgment. He was mindful of
the cautionary rules which applied to the complainant’s
evidence as a single, child witness. He was acutely aware of the
shortcomings in her testimony – as he said: ‘it cannot
go
[unscathed]’. He enumerated the various contradictions between
her evidence and her police statements and between the
evidence of
other witnesses and hers. But he found her truthful, reliable and
credible. He held as follows:
‘
The quality of her evidence was
of a high standard. She impressed with her demeanour. She did not shy
away in answering questions
no matter the nature and she was equal to
the task at hand.’
[51]
The Regional Magistrate was justifiably subjected to trenchant
criticism by appellant’s counsel for not having mentioned
in
his judgment the complainant’s undoubtedly high level of
inebriation. But a careful reading of her evidence portrays a
coherent, detailed and consistent narration of events. There is not a
single part of her version which warrants outright rejection.
There
certainly were a number of contradictions between her evidence and
her statements and between her evidence and that of other
witnesses.
Most of these had been satisfactorily explained by her and those that
remained unexplained, do not impact so adversely
on the quality of
her evidence that it renders her testimony as a whole unreliable or
untruthful.
[52]
The complainant made her first statement to Constable Nangu at the
Table View police station after 18h00 on the day of the
incident (the
statement was commissioned at 18h50). Constable Nangu’s first
language is Xhosa, that of the complainant, English.
The complainant
herself observed under cross-examination in relation to the contents
of the first statement that ‘. . . I
see there is quite a
language barrier here’. By that time the complainant must have
been awake for more than 30 hours, as
a conservative estimate. It
will be recalled that she sneaked out of her house through a bedroom
window during the early hours
of the morning. Before that, she was
working at the […] restaurant as a waitress until nine pm. She
was clearly very tired
and emotionally drained after the day’s
events – first the traumatic encounter in the second park, then
having to explain
to her mother, the police and Dr Liang. Through it
all she had to maintain her initial false version of what had
happened.
[53]
The evidence of the investigating officer, warrant officer August, is
striking in this regard. He saw the complainant at around
11 o’clock
that evening. He described the complainant’s condition as ‘very
drowsy’ (‘baie lomerig’)
and that she appeared to
him as if she was under the influence of drugs or alcohol. Whenever
her mother roused her from her intermittent
sleeping bouts, the
complainant would start crying. She was unable to sit up straight and
was slouched forward. When it was explained
to him that the
complainant had already made a statement earlier at around 18h50,
warrant officer August was adamant that he would
not have taken a
statement from her, given her condition. In his view she was not in
her sound and sober senses.
[54]
The complainant’s first statement must be viewed in this
context. Tellingly, as the complainant herself pointed out in
her
testimony, the statement contains details which she would not have
been able to furnish herself. These include street names
and a
description of the appellant’s motorcycle’s make and
model (‘red Honda 125’). Her second statement,
made some
five months later, is consistent in all material respects with her
oral evidence.
[55]
Many of the contradictions and inconsistencies between her version
and that of her mother and Dr Liang can be ascribed to her
initial
false version regarding the events. The Regional Magistrate accepted
the complainant’s explanation for these falsehoods,
in
particular why she did not mention the appellant’s name at the
outset. She said that she did not want to get him into
trouble, given
their strong bond of friendship before the incident. In my view the
Regional Magistrate cannot be faulted in this
regard.
[56]
The Regional Magistrate rejected appellant’s version as false
beyond reasonable doubt. He said that it militated ‘against
the
possibilities’ (he may have meant the probabilities) and that
‘(h)is version does not make sense.’ The Regional
Magistrate was aware of the fact that he had to make a choice between
the two conflicting versions before him. In making that choice
in
favour of the complainant’s version, he understood that it
meant he had to accept that version in its entirety:
‘
.
. . if I accept the complainant’s version and reject the
accused’s version which I am going to do then it means that
I
need to accept the evidence of her in its entirety . .
.’
Citing
authority, the Regional Magistrate pointed out that a finding that an
accused’s version is reasonably possibly true
must be based on
positive evidence, not on conjecture or far-fetched possibilities.
[57]
Save for the omission to deal with the complainant’s state of
intoxication as a factor weighing against the reliability
of her
evidence, I cannot fault the Regional Magistrate’s approach. As
stated, the complainant gave a detailed, coherent
account of the
events. And most of it up until the crucial events at the second
park, accorded anyway with that of the appellant.
It is, as the
Regional Magistrate correctly found, highly improbable that the
appellant, despite his alleged concern for the complainant’s
well-being, would simply saunter away and casually lie down and fall
asleep at the second park. The probabilities and the inherent
strengths and weaknesses of the two conflicting versions had to be
considered in weighing up the elements which point towards the
appellant’s guilt as against those indicative of his
innocence.
[13]
I am not persuaded that the trial
court was wrong in accepting the complainant’s version and
rejecting that of the appellant
as false beyond reasonable doubt. I
can find no material misdirection or clearly erroneous finding on
fact in his judgment. But,
in any event, the medical evidence in my
view puts the matter beyond reasonable doubt.
[58]
Photographs of the complainant’s injuries, taken at the
hospital during the morning of the incident, were handed in as
exhibits. The photographs in the record are of poor quality and not
very clear. They do, however, depict blotches all over the
complainant’s face (particularly her forehead), blue and purple
bruising around both eyes, bruising on her neck and the whites
of her
eyes had turned red. All of these, said Dr Liang, were consistent
with strangulation.
[59]
Dr Liang saw the complainant at the Netcare Blaauwberg hospital at
around 08h10 on the day of the incident. He first made
contemporaneous clinical notes on a standard form apparently used by
that hospital. He completed the official J88 medical report
three
days later, using his clinical notes. Counsel for the appellant
placed much emphasis on the inscription in the J88 which
reads
‘unsure if she was strangled’, relating to the
complainant’s report to Dr Liang. But that entry does not
accord with the contemporaneous clinical note which reads:
‘
??
Was being strangled
’.
The
doctor explained that the question marks depicted the context in
which the narrative was made – the complainant had indicated
to
him that after she left the pub events were ‘hazy’ and
‘everything was blurry’. Where there is a difference
between the two documents, the clinical notes, as a contemporaneous
recordal, must plainly take precedence. After all, as Dr Liang
himself testified:
‘
Well
the J88 was only brought to me three days after this examination. . .
. So, the J88 is completed using my clinical notes and
obviously on
what I recalled. So, basically, it is transposing what is on my notes
onto the J88
’.
It
must, of course, be borne in mind that at the time of the examination
the complainant was still maintaining the initial falsehood
of
omitting the appellant’s name as the perpetrator. In his
judgment the Regional Magistrate correctly summarized the position
as
follows:
‘
I
am in possession of both the clinical notes as well as the J88 and on
the clinical notes it states that she indicated she was
strangled. So
from the first instance she saw him, she made the allegation that she
was strangled by this assailant who was then
still unknown to
everybody and I place great emphasis on the clinical notes due to the
fact that the clinical notes were filled
in the morning of the
examination and the J88 only afterwards.
So
indeed and I come to the conclusion that there is some independent
corroboration for the complainant’s version of the
strangulation and how she sustained the injuries and the support she
finds is that in Dr Liang’s evidence and as well as EXHIBT
E
and then EXHIBIT D
inter
alia
the J88 and the
clinical notes. So there is some independent support there
.’
[60]
Dr Liang was extensively cross-examined on the injuries sustained by
the complainant, visible on the photographs. Several notional
causes
for them were postulated during cross-examination. Chief amongst
these was that the complainant’s vomiting, combined
with her
coughing and the rubbing of her eyes could have caused these
injuries. Despite the frequent exhortation by our courts
that
evidence be viewed holistically, appellant’s counsel sought to
compartmentalize the injuries to conjure up reasonable
doubt as to
the origin of such injuries.
[61]
The prosecutor, probably anticipating this line of cross-examination,
explored the possible causes with Dr Liang in his evidence
in chief.
Dr Liang explained that the red blotches on especially the
complainant’s forehead were petechial spots. These are
caused
by tiny capillaries which leak blood. The two most common causes of
petechial spots are strangulation and a viral infection.
In the
latter instance, petechial spots would appear all over the body, but
with strangulation, these would be mostly in the area
of the
forehead, as is the case here. The reason for this is that blood
which flows in the arteries up to the head cannot return
down to the
body, as its flow is obstructed by the constriction in the throat
area. This exerts pressure on the blood vessels,
causing them to
burst, leak blood and form the petechial spots.
[62]
The next set of injuries was what is described in lay terms as ‘the
whites of the eyes turning red’. Dr Liang testified
that this
bilateral subconjunctival haemorrhage (both eyes had blood under the
conjunctivae) can be caused by extensive rubbing
of the eyes, blunt
force to the eyes or by strangulation. Given the extent of the
haemorrhage, Dr Liang excluded vomiting as a
possible cause. When
asked by the prosecutor, he also excluded vomiting as a cause for the
petechial spots. In concluding his examination
in chief, Dr Liang was
asked:
‘
Now,
if you take the petechial spots and you take the blood in the eye and
you take the bruising on the neck. What would your conclusion
be?
Well, the clinical findings are in keeping with the patient that has
been strangled.
’
[63]
Under cross-examination Dr Liang explained that in severe cases of
strangulation, one may encounter fractured bones, fractured
cartilage
and voice changes. The bruises on the complainant’s neck, as
seen on the photographs (which were shown to the doctor)
by
themselves are inadequate to determine the severity of the
strangulation. As he put it – one ‘can have quite severe
strangulation with minimal [bruising]’. Dr Liang conceded that
bruising in the neck area may occur if a person holds her
neck while
vomiting. I must point out that there was no such evidence in this
case, nor was such a suggestion made to the complainant
or any other
witness in cross-examination. And there was no such evidence from the
appellant himself. On the evidence, the complainant
vomited thrice –
once each in the two parks and lastly at home. The complainant’s
mother testified that after she heard
the complainant vomiting, she
went to investigate. She saw the complainant holding her neck and it
appeared as if she had difficulty
swallowing. She also saw the
complainant’s eyes turn red. When asked under cross-examination
whether she thinks the complainant
was holding her neck because she
felt nauseous, her mother answered ‘No, no she touched her neck
because she’d been
strangled’. Asked to explain she said
‘[b]ecause if you think about it why else would she stand there
and touch her
neck, no other reason. If you’re nauseous and you
puke, what do you hold? You hold your stomach’. When the
appellant’s
denial of having perpetrated the offences were put
to her in cross-examination, she stated:
‘
Well
Sir she didn’t strangle herself and she did not put blotches
and punch herself in the face and two years later I can’t
even
touch her on her neck. It’s actually ridiculous
.’
This
notional cause for the bruising around her neck was thus a mere
hypothesis and no more.
[64]
The next area of exploration under cross-examination was the
bilateral subconjunctival haemorrhage. It was suggested to Dr
Liang
that vomiting causes increased pressure in the abdominal cavities
which, in turn, can cause the tiny blood vessels in the
membranes of
the eyes to burst (ie bilateral subconjunctival haemorrhage). I deem
it necessary to repeat Dr Liang’s response
in full:
‘
With
vomiting, generally, the amount of pressure that you have results in
none of the above. However, in certain cases of severe
vomiting you
do get small haemorrhages in the subconjunctival haemorrhages, but
generally it is just one small vessel that could
– that would
burst or get a small area of the white of the eye that would be red.
You would never get what we see in the
pictures here, bilateral and
almost entirely the entire white part of her eye. So, to answer your
question more directly. You can
get sub-conjunctival haemorrhages,
with vomiting. However, it is only – it would be localised,
normally the one side only.
Normally a small area of the white is
red
’.
[65]
When asked if one were to ‘combine the vomiting with coughing
and things like that, can that be more severe’, Dr
Liang
replied ‘not to this extent . . . ‘ He was pressed
repeatedly on this, but remained adamant that ‘(y)ou
will not
get anybody vomiting and coughing with this type of subconjunctival
haemorrhage’. He emphasized that in such instances
the
haemorrhage would normally be localized and not be as extensive as in
this case where virtually the entire conjunctivae had
haemorrhaged.
He summed it up as follows:
‘
The
majority of cases of people that vomit, result in no haemorrhage. No
petechial haemorrhages. No sub-conjunctival haemorrhages.
So nothing
happens. In very few cases, you get unilateral, small, tiny
haemorrhages on one side of the eye, but that is an exception.
Did it
clarify . . . (indistinct)? It is in exceptional cases you will get a
minor (?) sub-conjunctival haemorrhages
.’
[66]
With regard to the haemorrhaging in the eyes, Dr Liang explained that
extreme vomiting can in exceptional cases be the cause
thereof. And
then, vigorous, prolonged rubbing of the eyes would also play a role.
He said this occurrence is not impossible, but
‘highly
unlikely’. When asked if excessive vomiting can cause petechial
spots on the face, Dr Liang agreed, adding
‘[a]gain, it is an
exception. It is not commonly seen’. There was no evidence at
all of excessive vomiting, let alone
in conjunction with prolonged
vigorous rubbing of the complainant’s eyes.
[67]
I have quoted extensively from the record to demonstrate the
following. First, the cross-examination was largely directed at
extracting concessions based on scientific, not legal, exactitude, on
the separate injuries. This court has cautioned that courts
must
remain mindful of the cardinal difference between the scientific and
the judicial measures of proof.
[14]
In this instance it is beyond
reasonable doubt that strangulation was the cause of the
complainant’s injuries. Dr Liang’s
evidence was very
clear on that. At the end of his evidence Dr Liang stated that, as an
emergency unit doctor since 2009, he has
seen hundreds of cases where
drunk patients (including teenagers) had vomited. His evidence must
in my view be accepted without
hesitation or any reservation. The
Regional Magistrate was right in doing so.
[68]
Secondly, the medical evidence as a whole, is what is to be
considered. The overall picture is, as Dr Liang said, consistent
only
with strangulation. Early on during examination in chief, the
following exchange occurred between the prosecutor and Dr Liang:
‘
Now
doctor, I suppose here in Court we always look at the evidence as a
whole. There is totality. We do not look at that specific
and that
specific. I suppose you do that as well? . . . Right. To get to a
conclusion. Whatever conclusion. . . .Yes’
.
This
passage conclusively demonstrates why the doctor was able to state
immediately thereafter that the clinical findings as a whole
(the
petechial spots, the bilateral subconjunctival haemorrhage and the
bruising on the neck) were consistent with strangulation.
[69]
My colleague makes reference to the ‘concessions’ made by
Dr Liang and to the observations of the complainant’s
mother
and Mr Jones regarding the lack of injuries. With respect, my
colleague makes the same mistake as appellant’s counsel
by
compartmentalising the various injuries and elevating what Dr Liang
described as being possible in ‘exceptional’
cases, to a
level of reasonable possibility. The ‘concessions’ must
be properly understood – I have already cited
the various
passages where Dr Liang stated that these injuries can possibly occur
in exceptional cases. It is, with respect, improper
to transfigure
those exceptional occurrences into reasonable possibilities. And, as
stated, one must not lose sight of the complete,
overall picture. In
S v Hadebe
[15]
,
Marais JA cited the following passage
in
Moshepi & others v R
(1980 –
1984) LAC 57
at 59F–H:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.
’
[70]
The evidence of the complainant’s mother that she saw her
daughter’s eyes suddenly turn red does not appear to
me to be a
reliable observation. It can, in any event, not disturb Dr Liang’s
clear evidence on this aspect. Mr Jones did
not have any need to pay
close attention to the complainant’s face. He saw nothing
untoward on the second occasion –
to him they were just two
teenagers in a park, albeit at an unusual hour. He did not get up
close to the complainant because of
her semi-nudity. He said he felt
awkward approaching her and wanted to respect her dignity. Again, Dr
Liang’s evidence must
hold sway over that of Mr Jones on this
aspect. It is not strictly correct to say that Mr Jones corroborated
the appellant on the
aspect of the human faeces close to the
complainant. Mr Jones was unable to state whether that was human
faeces or not, and he
pointed out that many people walk their dogs in
that park. And, unlike the appellant, he did not see a smudge or a
smear on the
complainant’s thigh.
[71]
Lastly, there is the evidence of Ms C. My colleague is critical of
the high court’s finding that ‘(the complainant),
immediately, once in the safety of her home, made a “first
report” to [C]’ (the words first report were placed
in
inverted commas by the high court). My learned colleague understands
this to imply that the high court regarded this as corroboration
of
the alleged sexual assault. But the high court did not say so at all;
in fact, when read in context, it seems to me that the
high court
interpreted that evidence correctly for what it was – a mere
“first report”. The Regional Magistrate
evaluated the
purpose of this evidence correctly, ie not to corroborate the
complaint’s version, but to enhance her credibility.
The
Regional Magistrate stated as follows:
‘
I
am also mindful of what was said in
S
v Gentle
matter
supra,
I
also referred to it. It is a Supreme Court of Appeal matter where it
is very important to know that first reports never serves
as
corroboration for the complainant’s version. That is not the
purpose of first reports in the law. The purpose of first
reports is
there and it contributes to the credibility of the complainant, never
to confirm a version, but rather it contributes
to the credibility
and one must keep that in mind when you deal with sexual offences and
the purpose of first reports, because
a first report is in any
[event] hearsay evidence which in all other instances would have been
inadmissible, but it is only allowed
in sexual offences, because it
contributes to the credibility of the complainant
per
se
and
that is the purpose of first reports and that was confirmed by the
Supreme Court of Appeal in
S
v Gentle
.
’
[72]
The Regional Magistrate therefore correctly rejected the appellant’s
version as false beyond reasonable doubt. In my
view he was also
correct in drawing the ineluctable inference that the appellant,
having been the only other person in that park,
was the one who had
strangled the complainant. Mr Jones testified that he did not see any
other persons on either of the two occasions
in that park. One must
therefore also accept the complainant’s evidence regarding the
sexual assault perpetrated upon her
by the appellant. It was
contended, without much vigour it must be said, that an unknown
passerby could have perpetrated these
offences while the appellant
was asleep. The submission can be rejected without more. The law does
not require the prosecution
to close every possible loophole, even
more so those based on sheer conjecture and which is utterly
fanciful.
[16]
[73]
The appeal is devoid of merit. The following order issues:
The
appeal is dismissed.
________________________
S
A Majiedt
Judge
of Appeal
APPEARANCES:
For
Appellant: A du Toit
Instructed
by: Laubscher & Hatting Inc, Bellville
Webbers
Attorneys, Bloemfontein
For
Respondent: M Jacobs
Instructed
by: Director of Public Prosecutions, Western Cape
[1]
S v Hadebe
&
others
1997 (2) SACR 641
(SCA) at 645;
S
v Kekana
[2012] ZASCA 75
;
2013 (1) SACR 101
(SCA) para 8.
[2]
Minister
of Safety and Security & others v Craig & others NNO
[2009]
ZASCA 97
; 2011 (1) SACR 469 (SCA) para 58.
[3]
S v Van der
Meyden
1999
(1) SACR 447
(W) at 449G-450B.
[4]
R v Blom
1939
A
D
188
at 202-203.
[5]
S v Shackell
2001 (2) SACR 185
(SCA) para 30.
[6]
S v Hammond
2004 (2) SACR 303
(SCA) at 308J-309A, 309C and 310C-E.
[7]
S v Gentle
[2005] ZASCA 26;
2005 (1) SACR 420 (SCA).
[8]
S v V
1995 (1) SACR 173
(T) at 177G-I.
[9]
S v Hammond
[2004]
4 All SA 5
(SCA) paras 11 – 17.
[10]
S v Gentle
[2005]
ZASCA 26
;
2005 (1) SACR 429
(SCA) para 18.
[11]
S v Hadebe & others
1997 (2) SACR 641
(SCA) at 645E-F;
S
v Modiga
[2015] ZASCA 94
;
[2015] 4 All SA 13
(SCA) para 23.
[12]
Mashongwa v PRASA
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 45.
[13]
S v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[14]
Michael & another v Linksfield
Park Clinic (Pty) Ltd & another
[2002]
1 All SA 384
(A) para 40.
[15]
S v Hadebe
and
others
1998 (1) SACR 422
(SCA) at 426E–H.
[16]
S v Sauls &
others
1981
(3) SA 172
(A) at 182G–H.