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[1997] ZASCA 5
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S v Thomson (80/96) [1997] ZASCA 5; [1997] 2 All SA 127 (A) (10 March 1997)

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Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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Policy
Case No
80/96
IN THE
SUPREME COURT OF APPEAL
In the
matter between:
CRAIG
KENNETH THOMSON
APPELLANT
And
THE
STATE
RESPONDENT
BEFORE
:
EMGROSSKOPF, SCHUTZ JJAand STREICHER
AJA
DATE
HEARD
: 17 FEBRUARY
1997
DATE
DELIVERED:
10 MARCH
1997
JUDGMENT
STREICHER. AJA
:
I have had the benefit of reading
the judgment, to which
2
I
shall refer as the main judgment, prepared by my brother Schutz
JA.
For the reasons that follow, I am unable to agree with the
conclusion
reached by him.
The
appellant, a first offender, at the age of 23, committed a revolting
crime. The details of the crime are fully
described
in the main judgment and need not be repeated. There can
be
no doubt that the crime committed by the appellant warranted a
very
severe sentence and that the only appropriate sentence was one
of
long term imprisonment.
The
trial judge was of the view that the imprisonment
should
be for life. In imposing this sentence she was clearly
influenced
by her finding that the psychiatrists Teggin and Jedaar,
and
the psychologist, Lay, were of the view that the appellant would
repeat his conduct and
that given a similar situation it was probable
3
that
he would act in the same way. I agree with the statement in the
main
judgment that the trial judge misdirected herself in this regard and
that we are therefore at large as far as sentence is concerned.
Teggin,
Jedaar and Lay diagnosed a mixed personality
disorder
which according to Teggin showed features of, inter alia, a
borderline personality disorder. They did not diagnose a full
blown
borderline personality
disorder. Teggin was of the view that no
matter how long the
appellant was imprisoned he would remain a danger after release. That
view was however predicated on the
assumption
that he would not receive treatment in prison. Lay was not prepared
to speculate as to whether the appellant would again
commit
a crime like this. Jedaar testified that there was a risk of
future
violent behaviour on the part of the appellant and that he, to
a
certain extent, fitted the profile of a dangerous individual.
4
The
trial judge was also influenced by the evidence that
even if the appellant were to receive treatment the prognosis was
poor. Although the prognosis is poor it is not hopeless. According
to Teggin the borderline and narcissistic personality disorders are
amenable to treatment by therapy. Due to the mixed nature of the
personality disorder of the appellant he was, however, not able to
give an opinion as to whether the appellant was amenable to
treatment. He also said that some of the personality disorders abated
with age. Lay thought that it would be difficult to establish a
meaningful therapeutic relationship with the appellant and was
sceptical about the appellant's prognosis. However, asked whether the
appellant could be helped he stated:
"It
would be difficult and even then we cannot be certain
whether
there will be any benefits, I can say one thing, with
these
types of individuals we usually find that as they mature,
5
they
tend to what we call mellow, usually after the age of 30 we find
their behaviour becomes a little less disruptive, the
extremities
of their behaviour tends to quieten down a little bit,
so just
with the maturing process there might be some improvements."
Jedaar
was also of the view that the prognosis was poor
and
stated that significant changes could not be guaranteed. He did
however think it would be
doing a disservice to the appellant not to
try treatment.
This
evidence justified a finding that there was a
possibility
that the appellant could, after he had served a term of
imprisonment,
commit a similar bizarre crime but not that it was
probable
that he would do so. Moreover, on the evidence there is a
possibility
that the appellant's condition may, either as a result of
treatment,
or as a result of his greater maturity improve to such an
extent
that the appellant no longer constitutes a danger to other
6
persons.
The trial judge recognized this possibility in that she, when
imposing the sentence of
life imprisonment, directed the Department
of
Correctional Services to ensure that the appellant got adequate
psychological and
psychiatric treatment and stated that she took
comfort
in the fact, that in terms of section 64 of the Correctional
Services
Act, 1959 he might be released in the future and that the
release
could be made conditional upon the appellant receiving continuing
psychiatric treatment.
In
my view the trial judge misdirected herself in taking
comfort
in the fact that the appellant may in future be released in
terms
of the Correctional Services Act, 1959.
A
sentence of life imprisonment authorises the state to
keep
the person sentenced in prison for the rest of his life. Unless
this
result is considered to be appropriate, life imprisonment is not
7
appropriate
and should not be imposed. The fact that the judge
sought
comfort in the fact that the appellant could in future be
released
in terms of the Correctional Services Act, 1959 is in my
view
an indication that she thought that life imprisonment could
prove
not to have been the appropriate punishment.
The
crime itself, although very serious, does not warrant
the
imposition of life imprisonment. It is not contended in the
judgment
of the trial court or the main judgment that it does. As is
apparent
from the main judgment the appellant does however, on the
evidence,
represent a danger to the physical and mental well-being of
other
persons and may even after an extended period of imprisonment
represent such a danger.
In these circumstances life imprisonment
may have been the
only appropriate sentence, if there was no
alternative.
Section 286A and B of the
Criminal Procedure Act, 1977
8
may
however provide sun alternative.
Section 286A
makes provision
for
the declaration of a person as a dangerous criminal if the court is
satisfied that such person represents a danger to the physical
or
mental well-being of
other persons. As stated in the main judgment
the
Court has a discretion to set the procedure in motion after
conviction, either mere
motu or in response to an allegation that the
accused is a
dangerous criminal.
Section 286B
provides for the
imposition
of imprisonment for an indefinite period upon a person
who
has been declared a dangerous criminal. In terms of the latter
section the court should
direct that such person be brought before the
court
on the expiration of a period determined by it. When such
person
is brought before the court in terms of the direction his
sentence
is reconsidered by the court. Upon reconsideration the court
may
extend the sentence of imprisonment for an indefinite period and
9
determine
another date in the future for the person to be brought
before
the court for the reconsideration of his sentence, convert the
sentence into
correctional supervision or release the person on such
conditions
as it deems fit. This procedure and punishment are ideally
suited
to a case such as the present one where the crime itself is not
so
serious as to warrant a sentence of life imprisonment, where the
convicted person
represents a danger to the physical and mental well-
being
of other persons sufficiently serious to warrant his detention for an
indefinite period and where there is a possibility that
his condition
may improve to such an
extent that that would no longer be the case.
Should
the condition of the person imprisoned in terms of these
sections
not improve he will remain in prison. Should his condition improve
sufficiently for him no longer to represent a danger
to the
physical
or mental well-being of other persons he will be released.
10
The
trial court had a discretion to utilize
section 286A
and,
on the evidence should have considered doing so. Any doubt
that
there may have been in this regard has been dispelled by the
further
evidence allowed by the trial judge after sentence had been
passed.
Borchardt, the head psychologist of the Department of
Correctional
Services, testified that he considered the appellant to be a positive
case for psychotherapy and that he did not find
it difficult
to
establish a good psychotherapeutic relationship with him.
According
to Borchardt the appellant developed some insight into his
condition,
showed some empathy for the victim, to a certain extent
owned
his own behaviour and showed a certain level of motivation
to
improve his condition. Borchardt stated furthermore that repetitive
aggressive behaviour was
expected to start at the age of 17 to 19 and
pointed out that
the appellant had not committed any serious
11
aggressive
acts of sexual intercourse before, whereas rapists were
most
prominent between the ages of 17 and 25. He testified that the
appellant was
well-behaved in prison and expressed the view that the
punishment
served as a deterrent. Jedaar's evidence was to the effect
that
if Borchardt's evidence were to be accepted there were many
favourable signs. Borchardt is an independent person. Apart from
the
fact that some allowance has to be made for a propensity to look
for
positive signs in dealing with patients and for the fact that his
period of observation was relatively short, there is no reason
not to
accept his evidence.
Jedaar was nevertheless still guarded in his
prognosis
and so was Lay. Lay did however state that there was a strong
possibility that the punishment appellant received would
militate
against him repeating the crime he had committed.
In the
main judgment it is said that, on the face of it, a
12
resort
to
sections 286A
and B might well have been appropriate to
appellant's case but that this court should not interfere with the
sentence imposed by the trial judge and refer the matter back
because:
The
trial court had a discretion. The trial judge may have
considered
the matter and may have regarded it as
inappropriate.
If the matter were to be referred back the
sections
may nevertheless not be utilized as the discretion is
that of
the trial judge.
Litigation
must have an end. It is not in the interest of the
administration
of justice that the trial be started up yet again.
It
is not known why the defence did not seek to resort to the sections.
There may have been a deliberate decision not to do
so.
No attempt has been made to present evidence motivating
13
a referral
back.
I
shall deal with each of these reasons in turn:
1. In my view
it is apparent from the trial judge's reasoning referred to above
that she did not consider utilizing the
sections.
Her remarks indicate that she thought there should at
least
be a possibility that the appellant be released from prison
should
his future condition justify such release.
Section 286A
and
B could have been utilised for that purpose. If the trial
judge
was alive to that possibility she would, in my view, have
considered
utilising the sections. She was not alive to that
possibility
and as a result misdirected herself in finding comfort in the fact
that the appellant could in future be
released
in terms of the Correctional Services Act, 1959.
It
is true that the discretion to utilise S 286A is that of the trial
14
judge.
But, by failing to consider the possibility of utilising
section
286A and if necessary section 286B, which, on the
evidence,
seemed to be appropriate, the trial judge failed to
exercise
a proper discretion in regard to sentence.
In
my view it is in the interests of justice and of the appellant
that
the matter be referred back to the trial court with a
direction
that the trial court should consider acting in terms of
section
286A and thereafter impose an appropriate sentence.
The
administration of justice can only benefit from the
correction
of what was probably an oversight on the part of the
trial
court.
Counsel
who appeared for the appellant in the appeal and
in
the hearing when further evidence was led after sentence,
stated
that he had not considered the provisions of section
15
286A
and B. Counsel who appeared for the appellant at the
trial
tried to make out a case that imprisonment was not an
appropriate
punishment. He should have known better. Those
probably
were the reasons for the defence's failure to seek to
resort
to the sections at the triad and before this court. In my
view
those reasons in no way militate against referring the
matter
back to the trial court. Motivation for doing so appears
from
the evidence that has already been led.
I
would therefore set the sentence aside and refer the
matter
back to the trial court with a direction that the trial judge
should
consider acting in terms of
section 286A
of the
Criminal
Procedure
Act, 1977
and thereafter impose the appropriate sentence.
P E
STREICHER
ACTING
JUDGE OF APPEAL
E M
GROSSKOPF JA – Concurs
IN THE
SUPREME COURT OF APPEAL
CASE NO.
80/96
In the
matter between
CRAIG
KENNETH THOMSON
APPELLANT
AND
THE
STATE
RESPONDENT
BEFORE
:
EMGROSSKOPF, SCHUTZJJA and
STRETCHER AJA
HEARD
:
17 FEBRUARY 1997
DELIVERED
:
10 MARCH 1997
SCHUTZ JA
2
JUDGMENT
SCHUTZ
JA
:
The
appellant, Craig Thomson, pleaded guilty to and was convicted
of
rape and indecent assault on a 15 year old girl, D.F., on 8
July
1993. Both charges arose out of the same series of events at
Milnerton Beach, during which the appellant grossly abused the
complainant over a period
of four or five hours, ending at about 06.00
h.
The appellant was sentenced to life imprisonment, the two convictions
being taken together for
purposes of sentence. In imposing life
imprisonment
rather than some lesser but still heavy sentence of
imprisonment,
Traverso J placed decisive emphasis upon evidence that
3
there
was little prospect of the appellant's being cured of his affliction,
mixed personality
disorder, and that upon release from prison he would
be a
danger to the public.
Leave
to appeal against sentence was granted by the trial Judge,
who
also heard extensive post-sentence evidence, which forms part of the
record now before us.
Before
proceeding to the psychiatric and psychological evidence
led
at length both before and after sentence, it is desirable to describe
briefly the events that
took place during the dark hours of the morning
of
8 July. The version that I set out is that of the complainant. Her
evidence was accepted and
that of the appellant rejected in so far as it
differed
from hers. A basic reason why his evidence had to be rejected
4
was
that it failed to account for the brutal injuries that the
complainant
suffered at
his hands. On appeal there was no attempt to rely on his
version.
She was a
15 year old virgin, small for her age. The Judge
described
her as a quietly spoken girl who gave evidence in a barely
audible
voice. By contrast the appellant was 23 years old, tall and
strong.
After
midnight she heard a knock on her window, where she found
a
friend, Martin, and his brother's girl friend. They induced her to
join
them. She pulled a
top over her pyjamas and put on tackles. Outside
she
found one Phillip and the appellant in his car. He was a stranger to
her. Phillip was taken to
Martin's parent's flat as he was drunk. Arrived
5
there,
Martin's father signalled that Martin had to remain at home. Only
she
and the appellant were left in his car. He set forth in the direction
of her home but after a
time turned off towards the beach. She asked
him
if he was not going to take her home, but he said he was first going
to drink some brandy and
coke. She requested him to take her home
first,
but he refused, saying he would take about ten minutes to have his
drink. He continued on
his way and she became frightened, as he was
a
stranger. Arrived at the beach he took two swigs of brandy and coke
from a bottle. He leaned
over and tried to kiss her, but she turned her
head
away and got out of the car. She started walking but he followed
her
in the car. She broke into a run. He drew level, opened the door
and
said he would take her home. She got in and he drove off slowly.
6
Upon
her request that he go a little faster, he started swerving and
playing the fool with the
car at a fast speed. She told him to stop and
when
he did she tried to get out again. He grabbed her arm and pulled
her
back, so that she hit her head on the handbrake. Upon which she bit
his hand. He hit her head, ordered her to bring her foot in
and
threatened that if she tried
to escape again he would drive over her and
then
reverse back over her. She complied. He drove back to the beach.
After another swig from
the bottle he put down the 6ont seat and kissed her. When she averted
her head he threatened to hit her.
After that she
allowed
him to kiss her, whereupon he stripped off her top and started
fondling her breasts.
Fearing that he would hurt her, she did not say or
do
anything. Upon her affirmative reply to his question whether she was
7
a
virgin, he said "What a pity!" Her pants came next and when
they
hooked on her shoe
he made her take them off. "And then he took his
pants
off and he raped me" proceeded her account, penetrating her
vagina. Next he put his
penis in her anus. She moved in her seat
because
she was being hurt and he kept telling her to move down. He
again
raped her in the vagina and the anus, without having an orgasm.
Then
he produced what she called a pipe. This metal object was
produced
in evidence. It is 52 cm long, 3 cm in diameter and weighs
over
five kg. According to the appellant, some time before he had
turned
it into the shape of a cannon or culverin preparatory to mounting it.
However, it was now brought into use in its unfinished
form. He told
her to shut her eyes and
put it into her hands in order to feel how heavy
8
it
was. She described it as having "like bumps." By this I
think she
meant the
raised rings or bands around the barrel, particularly at the
muzzle
end, as is depicted on photograph 6. This object he tried to twist
into her vagina, and when
he failed he tried again. After that he thrust
it
into her anus. After a while he desisted because he couldn't get it
in.
He then raped her
again. Next he took a razor from the cubby hole,
stuck
the handle up her vagina and after extracting it started shaving her
pubic hairs. This hurt,
so he required her to shave herself. At some
stage
he forced her to have oral sex with him, and he then had oral sex
with her. After this he raped her again. Wishing to deflect
him and
not
wishing to be hurt
anymore, she said that she was tired. He lay back with her on top of
him. She did not sleep and when she moved
he held
9
her
tighter. Later he became active again. Yet again he raped her. She
complained that she was
being hurt but he carried on. After a time he withdrew, masturbated
himself, ejaculated on her stomach and
gave her
a piece of
newspaper to wipe herself.
These
bizarre and almost never ending events were now drawing
to
a close. He put his trousers on. Her pet duck, which had been
abducted from her house
just before Martin knocked at her window, was
retrieved
from the floor of the car. The appellant drove her home. His
parting
word was "Bye". She got out of the car and walked. Her
mother
said she was in a
state of shock, she was shaking a lot. All in all she
had been
raped four or five times.
There
would be no difficulty in finding the appellant. He was
10
arrested
that evening.
The
hurt which she suffered was both physical and psychological.
The
district surgeon said that her injuries showed that she had been
savagely raped and
sodomised. After 20 years experience it was, he
said,
one of the worst cases he had seen in a child of her age. Of her
genitalia he said that
they looked as if she had been kicked. The
photographs
bear that out. There were massive haematomas of the labia
majora
on both sides. The hymen was freshly torn. The vagina
exhibited
a 1½ cm fresh tear. There was also a tear of the anus.
The
psychological damage has been more lasting. The clinical
psychologist, Mrs
Strydom, gave the following prognosis about a year
after the
rape:
11
"The
psychological damage caused by the rape was so
devastating
that it is impossible to say at this stage whether
D. will
ever recover enough to lead a reasonably normal life.
One
thing is clear: irrespective of how well D.
learns
to cope with the trauma, the horrendous psychological
scars
will remain with her forever."
Underlying
this prognosis there is evidence of the complainant's
constant
thinking back to the incident, of uncertainty and apprehension,
of
shame and fear, difficulty in concentration, a marked drop in school
marks, anger, difficulty in forming trusting relationships,
and
anxiety
towards males.
What sort
of man is it who did things like this? There is a plethora of
evidence on the subject.
At the
trial the appellant was defended pro deo by
12
Mr
van Niekerk. He was at least the fourth counsel to be engaged. This
state of affairs seems to
have resulted from the appellant's mother's
constant
intrusions (or attempts to assist). She also seemed to have laid
down
the law as to medical advisers. The medical staff at Valkenberg
Hospital found her to be
an aggressive and disruptive personality. Mr
van
Niekerk, presumably tried to the limit, instructed that neither she
nor
appellant's father
should attend the trial, and that is what happened.
Three
professional witnesses gave evidence on the appellant's
mental
state: dr Teggin, a psychiatrist in private practice for the defence;
and dr Jedaar, a
psychiatrist, and mr Lay, a clinical psychologist and
qualified
social worker, for the State. The latter two gentlemen were part
of
a team who observed the appellant for two successive periods in April
13
and
May 1994 at Valkenberg Hospital, after the Court had referred him
for observation before his trial. There was a great measure of
agreement
between
the three experts, both as to diagnosis and as to prognosis. The
prognosis was black.
A
condensed description of his behaviour at the hospital is to be
found in mr Lay's report:
"His
general behaviour in the unit is noteworthy. He
displayed
a marked sense of entitlement, demanding special
privileges
and preferential treatment from the moment he
arrived.
He appeared to anger and alienate the majority of
staff
who dealt with him. He was seen to be aggressive
towards
certain patients. After a short stay in a medium-
secure
ward, at the request of the nursing staff, he was
moved
back to a maximum-secure ward as they anticipated
his
inciting other patients and being generally problematic.
At
the core of Mr Thomson's difficulties, it is believed, lies
an
extremely poor self-esteem and fragile sense of self.
Much
of his behaviour could be understood when regarded
14
an
extremely poor self-esteem and fragile sense of self.
Much of his behaviour could be understood when regarded
as extreme defensiveness against feelings of rejection and
worthlessness.
Mr
Thomson's arrogance and haughtiness is understood to
be compensatory behaviour for feelings of worthlessness .
Mr Thomson
appears to have a 'paranoid cast' to his
personality
organization. At times this appears to border on the delusional. He
describes himself as a 'loner' who craves
acceptance
by others, but is unable to have sustained
relationships.
He is constantly wary, anticipating rejection
and
deception, and appears hypersensitive to perceived
slights
and criticisms. Again this factor is understood to
relate
to his feelings of extreme emotional vulnerability. In
order
to avert anticipated rejection, he defends through
haughtiness,
isolation and ongoing attempts to undermine
others, thereby
gaining the upper-hand. His seeming
indifference
regarding the assessment procedure is believed
to
be feigned indifference to deal with his marked anxiety
regarding
the outcome of the case."
The
appellant was found to be not suffering from a mental disease,
15
was not
certifiable. His intelligence was a little above average.
The
diagnosis of the Valkenberg team was "Personality Disordered
(mixed type with
pronounced Narcissistic traits)." Dr Teggin agreed with
this
diagnosis and expanded upon it, saying that there were features of
at
least four personality disorders, first a paranoid personality
disorder,
secondly an
anti-social personality disorder (psychopathy), thirdly a
narcissistic personality
disorder, and borderline personality disorder (the
border-line
being between normality and psychosis). Dr Jedaar said that
the
initial diagnosis had been one of psychopathy, but that this had been
dropped, as all the criteria for it were not present. The
ultimate
diagnosis had been, as
already stated, mixed personality disorder. In dr
Jedaar's
view he had features of the antisocial type (psychopathy), of the
16
borderline
type ("which is probably the strongest"), as well as of the
narcissistic type.
The
Diagnostic and Statistical Manual ("DSM4") is in general
use in South Africa as providing guidelines for diagnosis
and
professional
communication. It sets out the diagnostic criteria for borderline
personality disorder as follows:
"A
pervasive pattern of instability of interpersonal relationships,
self-image, and affects,
and marked impulsivity beginning by early
adulthood
and present in a variety of contexts, as indicated by five
(or
more) of the following:
frantic
efforts to avoid real or imagined abandonment.
Note:
Do not include suicidal or self-mutilating
behaviour covered
in Criterion 5.
a
pattern of unstable and intense interpersonal
relationships
characterized by alternating between
extremes
of idealization and devaluation
identity
disturbance: markedly and persistently
unstable self-image or
sense of self
17
impulsivity
in at least two areas that are potentially
self-damaging
(e.g., spending, sex, substance abuse,
reckless
driving, binge eating). Note: Do not include
suicidal
or self-mutilating behaviour covered in
Criterion 5.
recurrent
suicidal behaviour, gestures, or threats, or
self-mutilating
behaviour
affective
instability due to a marked reactivity of
mood
(e.g., intense episodic dysphoria, irritability, or
anxiety
usually lasting a few hours and only rarely
more than a few
days)
chronic
feeling of emptiness
inappropriate,
intense anger or difficulty controlling
anger
(e.g., frequent displays of temper, constant
anger, recurrent
physical fights)
transient,
stress-related paranoid ideation or severe
dissociative
symptoms"
Dr
Teggin remarked that persons with a borderline personality
disorder (further in this judgment "bpd") often act in
bizarre ways, often
impulsively attempt suicide, and are often aggressive by nature. The
18
appellant's
conduct on the night was bizarre. On his own admission he
had
attempted suicide four times, twice seriously and twice
manipulatively. Whether
the appellant was aggressive by nature was a
matter
for some debate and I shall leave it over for the moment.
There
was agreement among the experts that personality disorders
tend
to be difficult to treat, and bpd particularly so. Whether the
appellant was in or out
of gaol the prospects were poor, incarceration
being
marginally worse in this regard. Dr Jedaar referred to the acronym
SEMI, used in assessing
prognosis. S stands for social support system,
E for emotional
maturity, M for motivation and I for insight and
intelligence.
On each of the four the appellant fell short, so that the
prognosis
for him was poor or very poor (in the jargon of psychiatry
19
the
prognosis was "guarded").
As
might have been expected, all three experts placed emphasis
upon remorse: in the full sense of deep regret and repentance. The
first step towards this condition for the appellant was insight
-
insight into
the awful
thing that he had done to the complainant. The experts found
his insight to be woefully absent. Consistently with the pressures of
his
disorder, he tended
to blame the complainant, or at least everybody but
himself, for what had happened. His extraordinary conduct in finally
taking the complainant home as if nothing had happened is
underlined
by this passage in his evidence in Court:
"Did
you have any idea that you will be arrested at that
stage?
I felt I had done wrong, but I didn't feel I had
actually
raped, her, no. So I didn't feel I would be arrested."
20
To this
may be added Jedaar's evidence:
"[S]o
there was complete lack of insight and remorse for his
own
behaviour. In other words he did not take
responsibility
for his behaviour. He immediately went on to
add
that I have been a productive member of society who
employs
others and therefore do no; deserve the treatment
fo
be incarcerated in an institution for this length of period
of
time, and was very indignant in fact at this incarceration
of
Valkenberg hospital for the period of 30 days, in other
words,
to quote him 'I've paid my dues'. How about the
remorse
for the victim? He says that all the inconsistencies
that
are contained in your reports that you've submitted to
me
at that stage and his account indicated that this was a fabrication
and that this person , and should prove in a court of
law that he actully raped Aer. In other words again a
complete
lack of empathy for the suffering and pain of the
victim
at that stage as well as the remorse for his behaviour"
(own
emphasis).
Although
there was some small improvement, all three experts
were cautious to attach much weight to it. He was seen to be serving
his
21
own
interests and attempting to manipulate the medicals rather than as
advancing in insight.
The
trial Judge, who had the opportunity also to observe him, said
this on the subject of remorse:
"The
accused expressed deep remorse for his deeds. He
was
however, in my view, paying mere lip-service. He gave
his
evidence in an arrogant manner and at times became aggressive towards
Mrs Teunissen, who appeared for the
State.
He went to extreme lengths to exaggerate his state of
intoxication
and the amount of liquor consumed. By the same token he went to
extreme lengths to play down the
violence
which he had used during this savage attack."
Given
what has gone before, it comes as no surprise that two of
the experts are of the view that the appellant at large would present
a
potential threat to the
public. Dr Teggin said:
"If
we were to view it from just one aspect, that is
22
the
protection of society, viewed from that aspect alone the
question
that hasn't been put to me yet, but I would expect
that
I would probably be asked under cross-examination, is
do
I consider the accused would re-offend in a similar
manner,
and the answer to that question would have to be
yes
if similar circumstances, in similar circumstances given
his
personality disorder, one could expect bizarre or aggressive
behaviour. I believe that if one views this
situation
purely from society's point of view, no matter how long the accused
is in prison, I believe that he would remain a dangerr
after being
released
" (own
emphasis).
Dr Jedaar
had the following to say in answer to state counsel's
question:
"We've
heard from my colleagues and my conviction
that
you're really alluding to is is this man a danger to
himself
or to society? I'm in no position to actually say that
in
other words I cannot predict as you well know that
psychiatrists
are probably at predicting dangerousness, however all I can comment
on is is he at risk of repetitive aggressive behaviour,
the risk I
think also sort of needs
some
sort of defining. The one thing that if we look at
23
profiles
of so-called dangerous individuals or people at risk
of
future violence, he does fit to a certain extent that profile,
what
is the profile. Usually a young individual, young
male,
with personality disorder together with substance
abuse
and then as we've heard now, that of no remorse for
his
actions. However if we were to examine further the one
thing
is first of all to examine the nature of the present
offence,
was there any violence associated in the present
offence
and here I peruse the records and heard from my
colleagues,
the district surgeon and the gynaecologist who
were unanimous
that there was a certain amount of
excessive
force and violence used in the actual rape and
indecent
assault and of course the whole act of impulsivity
in
the action itself, but then to make use of available
resources
during the course of the evening also indicated a
goal-directed
behaviour during that evening. So the collousness of the actions
itself indicates that this man is
potentially
dangerous.
The next thing that all of the
authorities
comment on is is there a longitudinal pattern of either
aggressive
or violent behaviour and as it's not only my observation but that of
my colleagues in the past, has
indicated
that there have been acts of aggression throughout his
development. Earlier in childhood we heard of issues
like
attention deficit with hyperactivity, in other words again
24
behavioural
difficulties in childhood, we heard of impulsive aggressive acts
against the self, in other words we heard of
the
para-suicide attempts in other words the overdoses,
which
are acts of aggression as well. We heard of rather
impulsive
activities as a young man in other words we heard
of
his behavioural difficulties in work areas, behavioural difficulties
in the army, behavioural difficulties with relationships
in the
community, and so all in all again acts of aggression of a
longitudinal oasis. So given then those
factors,
yes it influences his risk of repeat behaviour, to add
to
that we have then the influence of substances and that is
again
as we've heard of alcohol, more particularly but also
that of
dagga and methaqualone or Mandrax as it's
commonly
known. If we accept and it is by his claim or
report that he
has stopped the abuse of dagga and
methaqualone,
we can dismiss the effect of that, but alcohol
as
a disinhibitor or in other words an exaggeration of an
already
underlying aggressive personality would actually
aggravate
then his aggressive impulses. Again as we've
heard,
as I said before remorse being a very critical factor in assessing
the risk M'Lady and we accept that not only by
my
observation but that of my colleagues that he lacks adequat
e
remorse, I think he is at risk of future violent behaviour and that
should be considered"(own em
phasis).
25
Mr Lay was
less inclined to commit himself:
"You
heard that the Court's main concern, which is a very prominent aspect
to think about when you send this person, is the
question of
rehabilitation, do you want to
make
any comments on that? ... Mr Thomson's problem is
essentially
one of personality, personality is an incredibly
complex
concept, it's not changing one minor factor of a
person's
life or one minor behaviour, I think the chances are
that
he will always have difficulties in his life, whether he'll
do
something like this again I can't begin to speculate on I
think
it's likely that he will continue to have difficult
relationships,
probably have difficulties working under
people, difficulties
with authority figures."
In
S v Nyhwagi
1988 (3) SA 118
(A) this Court held that where
leave to appeal has been granted and in addition further evidence has
been allowed, it may sometimes be convenient to first consider the
original evidence, and if that consideration does not lead to the
appeal
26
succeeding,
then to proceed to a consideration of the further evidence.
That
seems to me to be the convenient procedure in this case.
On
appeal it was argued that the Court below had misdirected
itself
in placing too little emphasis on the individual and his possible
rehabilitation after
treatment, and had focused excessively on the need to
remove
him from society. I do not agree.
The Judge
below gave full consideration to the history and
personal
circumstances of the appellant. He is indeed, to borrow a phrase, one
who has travelled in the guards van of life. The
Judge
referred
to the fact that he had had a miserable childhood and had grown
up
in a home where there was conflict, alcohol abuse and at times
violence; as also to the fact
that his mother herself appears to suffer from
27
a
severe personality disorder. The Judge also substantially accepted
his
version of what had
happened to him on the day before the rape. He had
been
expelled from his work under acrimonious circumstances. His
employer
had threatened to assault him and refused to give him his tools. He
had had to resort to the police in order to get his
tools back. He
was
unhappy. Some time
later he went to the residence of his former girl
friend,
Tanya Mudge. It had been she who had ended their affair, but he
had
remained deeply in love with her. He invited her out but she
refused,
with what Lay was later to describe as a very light excuse, that
she
had to wash her hair. He felt humiliated and rejected and went
drinking with
acquaintances. This led on to his appearance at the
complainant's
house after midnight in the company of others, as already
28
described.
Whilst
accepting that he had been drinking, the Court declined to
accept
that he was as much under the influence as he claimed, and
rightly
so, particularly having regard to the detailed account that he gave
of his doings and movements. The Judge did, however, allow
that
alcohol did tend to
disinhibit resistance to an already underlying
aggressive
streak. She also took into account that he was a first
offender.
Further, that his army service was terminated after a finding
of
drug abuse and what was perceived as psychopathic behaviour. It was
while he was in the army
that the four suicide attempts already referred
to took place.
I do not
find it necessary to repeat everything that the Judge below
29
said.
It suffices to say that she had full regard to the mitigating
features
in the case.
In
considering the aggravating circumstances she referred to the
callous
and violent nature of the offences, the damage that they had
caused
and the appellant's lack of remorse. All these things emerge
clearly
from the facts set out earlier.
There
had to be a severe sentence. What tipped the scales towards life
imprisonment was the interests of the community. The Judge
rightly
said that those interests
should never be over-emphasised, but also that they cannot be
ignored. The evidence was that there was
very little hope
of
rehabilitation and the community was entitled to protection against
persons such as the
appellant. In those circumstances a life sentence was
30
the only
appropriate sentence.
Mr
Saner, for the appellant, contended that the trial Judge had
misdirected herself as to the unanimity of view of the three experts
in the
following passage:
"In
considering an appropriate sentence, I cannot
ignore
the unanimous view of both the psychiatrists and the
psychologist,
that you are a danger unto yourself and to
society.
I cannot ignore the fact that they perceive you as
a
person who will repeat your conduct, and that given a
similar
situation, it is probable that you will act in the same
way.
I cannot ignore the evidence that even if you should
get
treatment, the prognosis is extremely poor."
The
statement that there was agreement as to the poor prognosis, even
with treatment, is, I think, a fair reflection of the
evidence.
But it is not correct that Lay is to be included among the number who
are said to have stated that the appellant is a
danger to
31
society
or that it is probable that he will repeat his conduct, given a
similar situation. He did
not take an opposite view but said that he could
not
express an opinion. As far as Teggin and Jedaar are concerned it is
correct that they were of
the view that the appellant is a danger to
society.
But it was an exaggeration to say that they expressly stated that
it
is probable that he will repeat his conduct, given similar
circumstances.
Accordingly
a distinct measure of misdirection has been established.
We
are therefore at large as far as sentence is concerned. In
deciding
what the appropriate sentence is I shall confine myself to the
weight
to be attached to the public interest as I do not consider that the
judgment a quo is open to
criticism in any other respect.
I accept
the evidence of Teggin and Jedaar that the appellant is a
32
danger
to society. There is ample evidence to support that conclusion.
The
brutal and protracted attack upon a defenceless girl speaks for
itself.
The lack of
remorse, associated as it is with an almost total lack of
insight
into the feelings of others is baleful. Particularly striking, to my
mind, is the casual
manner in which the appellant eventually returned the
complainant
home as if nothing had happened or was going to happen,
and
his attempts at Valkenberg to shift the blame from himself to her.
To
say that he is a danger is not to say that he will necessarily repeat
his
conduct or even that
it is probable that he will do so. To my mind the
danger
of repetititon is real. It was argued that it is very unlikely that
the circumstances
preceding the attack will be repeated. That may be.
But
what is not improbable is that he will again be presented with real
33
or
imagined abandonment, which, on the evidence, may lead a person
with
borderline personality disorder to frantic and impulsive action
(including violence) in
order somehow to avoid this state. To this must
be
added that the prognosis is poor, so that his bpd is likely to remain
with the appellant.
On
the other hand, the evidence is that the adverse manifestations
of
bpd tend to abate with age. Also, the appellant may have learned
something from his incarceration in Valkenberg and in prison.
These
facts may ameliorate the
danger to the public but they do not have the
effect,
in my opinion, of altering the situation, that the danger is real.
The
interests of the public have to be weighed against all the other
factors, which I need not
set out again. This does not necessarily entail
34
that
a sentence should always be somewhere in the middle. If it were
otherwise there would never be room for a life sentence.
Having
weighed all the factors I
consider that the seriousness of the offence that
may
be repeated and the real danger that it will be are of preponderating
weight so that the
appropriate sentence is life imprisonment.
Accordingly,
if regard be had only to the evidence led at the trial, the
appeal
should fail.
The
question then is whether the post-sentence evidence heard by
the
trial Judge affects that conclusion. No further findings were made by
her on this evidence and
we do not know whether it would have altered
her original
views.
Before
entering upon this additional evidence I would make some
35
comments
about whether it should have been allowed at all. The defence
was
allowed to call mr Collis, a clinical psychologist, and Major
Borchardt, head psychologist at
Pollsmoor prison. Thereafter the State
recalled dr Jedaar and
mr Lay.
Mr
Collis made an affidavit in support of the application to lead
further evidence. The
thrust of it was that the experts at the trial had
misdiagnosed
the appellant's condition. In truth it was not bpd but
something
called attention deficit hyperactivity disorder (hereinafter
"adhd").
He had diagnosed this state as far back as 1990 and the
appellant
had responded positively to the drug treatment which he had
prescribed and which been administered for a month or two.
The beauty
of this diagnosis was
that it much increased the prospects of successful
36
treatment
and therefore of rehabilitation. Mr Collis also said that he had
established a good and
trusting relationship with the appellant in 1990.
The
three earlier experts had all stressed how difficult it was to
establish
such a
relationship with him, which relationship was the foundation for
successful psychotherapy.
It also appeared that the appellant's attorneys
had
obtained a report from Collis but that for reasons unknown to him
he
had not been called as a witness.
Borchardt's
supporting affidavit reflected that he had been
counselling
the appellant for about six months in gaol, that his insight
was
improving, that there were signs of remorse and that he was a good
psychotherapeutic subject with a good prognosis. His diagnosis
was
bpd
with narcissistic traits with a possible histrionic
element (thus
37
substantially
agreeing with the three experts and disagreeing with Collis's
diagnosis of adhd). Both
Collis and Borchardt appeared to proceed from
the
premise that the three experts had diagnosed psychopathy, which was
not the case.
The
appellant's parents made a joint affidavit saying that their
absence
from the trial was not the result of disinterest, but of Mr van
Niekerk's insistence that
it was in the best interest of the appellant that
they neither
attend the trial nor give evidence.
In R v
Carr
1949 (2) SA 693
(A) at 699 Greenberg JA said:
"[I]t
must be emphasised that the inadequate presentation of
the
defence case at the trial will only in the rarest instances
be
remediable by the adduction of further evidence at the
appeal
stage. However serious the consequences may be to
the
party concerned of a refusal to permit such evidence to
be
led the due administration of justice would be greatly
38
prejudiced
if such permission were lightly granted."
This
passage was cited with approval by Hoexter JA in S v Louw
1990(3) SA 116 (A) at 123 H-I That learned judge went on to point
out that before further evidence would be allowed on appeal, certain
initial requirements had to be satisfied, the very first of which was
that
some explanation
must be offered which the Court regards as reasonably
sufficient to account for the fact that the evidence in question was
not
given at the trial
(at 123 J - 124 A).
In Deintje
v Gratus &Gratus
1929 AD 1
at 6 de Villiers ACJ
adopted the rule which had earlier been enunciated by Lord
Chelmsford:
"It
is an invariable rule in all the Courts, and one focused
on
the clearest principles of reason and justice that if
evidence
which either was in the possession of the parties
at
the time of a trial, or by proper diligence might have been
39
obtained,
is either not produced or has not been procured, and the case is
decided adversely to the side to which the
evidence
was available, no opportunity for producing that
evidence
ought to be given by the granting of a new trial."
That
passage was approved in Staatspresident en 'n Ander v Lefuo
[1990] ZASCA 6
;
1990
(2) SA 679
(A) at 691 H-I.
In
Simpson v Selfmed Medical Scheme and Anoter
1995 (3) SA
816
(A) at 825 A-B Hoexter JA reaffirmed that a Court will be
particularly chary of granting
an application to produce fresh evidence
where
the evidence sought to be brought forward involves points
contested
and decided upon at the trial.
In
considering the application to lead further evidence the Judge below
referred to the requirements set out in S v de Jager 1965
(2) SA
612
(A) at 613 C-D (reasonably sufficient explanation why the evidence
40
was
not led before, prima facie likelihood of its truth and material
relevance to the outcome
of the trial) and expressed the view that each
had been met.
In so holding she conceded that she was "perhaps
stretch[ing]
the guidelines somewhat." Her reason for doing so was that
there
was before her a young man whose life lay in tatters, and if she did
not allow his application
"there may well be a terrible miscarriage of
justice."
I respect the sentiment even though I do not think that the
criteria
have been met in both cases.
The
admission of Borchardt's evidence was opposed by the State
on
the ground that it related to events that occurred after sentence had
been passed. The general, if not necessarily invariable,
rule is that
an
appeal court decides
whether a judgment appealed from is right or wrong
41
according
to the facts in existence at the time it was given and not
according
to new circumstances which came into existent afterwards: Goodr
ich
v Botha and others
1954 (2) SA 540
(A) at 546 A. This is
true
also where sentence is concerned: R v Hobson
1953 (4) SA 464
(A). But
new evidence that casts light on facts that did exist at the time of
judgment may fall into a
different class:R v Verster
1952 (2) SA 231
(A) at 236 A-B.
One of the issues before the Court a quo was the
reformability
of the appellant and it is arguable that that part of
Borchardt's
evidence that deals with that issue is admissible. Whether a court
should allow further evidence of this kind, in the
exercise of its
discretion, raises
questions of policy. The trial Judge justified the calling
of
Borchardt by saying that none of the three experts had had the
42
opportunity
of treating the appellant and seeing how he responded to counselling
and therapy. The implications of this reasoning
are far-
reaching.
Carried to its conclusion it would mean that in every similar
case,
up to the point that the appeal has been finally disposed of, it
would be possible to
present the court of appeal with a commentary on
how
the prisoner is faring and progressing in gaol. This is not our
procedure, and there
would be no end to it if it were. The prognosis
must
be established at the trial, and if more time is needed to establish
it, the Court should be
requested to grant time. For these reasons I doubt
the
correctness of the decision to allow Borchardt's evidence.
The
case of Collis is much simpler. That part of his evidence
which
dealt with the Appellant's amenability to and reaction to treatment
43
was
available at the trial. A decision was taken not to call him. It
seems to me that the
remarks of Greenberg JA in Carr's case are directly
apposite.
The trial Judge recognized that Collis' evidence had been
available,
but justified his being called after the trial, because, "this
is an
extraordinary
case." This is no doubt a reference to the "exceptional
case" envisaged by
S 316
(3) of the Criminal Procedure Act 51 of
1977
("the Act")
or the "rarest case" envisaged by Greenberg JA I do not
agree with the view expressed.
The
other important part of Collis's evidence, if it were to be
given,
was that relating to his contrasted diagnosis - of adhd. That
evidence also was available, as adhd had been diagnosed in
1990.
Again, the evidence was
not led. Instead the defence led an expert who
44
gave
quite a different diagnosis, which accorded with that of the State
experts. The matter of
adhd was not canvassed with them. Had it been,
as
we know from Jedaar's later evidence, the diagnosis would have been
contested. The Valkenberg
team specifically looked for adhd but found
it
not to be present. Again, I do not think that the circumstances were
so exceptional as to
allow the fundamental issues in the trial - what was
wrong
with the appellant and what was his prognosis - to be tried de novo
.
So that in my opinion the defence should not have been allowed
to
call Collis.
Be
all that as it may, the evidence of Collis and Borchardt, as also
the
further evidence of Jedaar and Lay, is before us. In terms of s 316
(4) of the Act it is
deemed to be evidence taken or admitted at the trial.
45
That
does not make it any less vulnerable to challenge than evidence led
during the trial. Like
that evidence, whatever the trial judge has decided,
if
it is inadmissible it is inadmissible and if it is irrelevant it is
irrelevant.
I am prepared
to assume that it was admissible and that it was relevant.
That
leaves over the question of weight. What does the additional evidence
amount to?
We
have no finding by the trial Judge as to what sort of witness
Collis
was. Being driven to the record, I am not impressed by him.
Apart
from evasion and signs of bias, he seemed to be unable to accept
that
the appellants' version had been rejected and that he had to express
his opinion in the stark
light of the complainant's evidence. Thus, for
instance,
his claim that the appellant was now showing remorse was
46
premised
upon the appellant's assertion that he was not aware that she
objected to what he was
doing to her, and that he had not used assertion
or
force! Moreover, according to Collis, it was not the appellant's
intention to harm her. That would not have been consistent with
his
temperament, which is not
violent! During his evidence the appellant
had
sought to explain his conduct as being part of a "game" -
pushing
the complainant
to see how far she would let him go. "The motive here"
said
Collis "was not to harm or injure, but was rather, as he put it
himself, a game, simply a challenge. But I don't think he was
irresponsible outside of the
occasion of the crime." It is difficult to take
this
at all seriously. Yet it is developed further into the two moods
theory. On the night of
the rape the appellant was not in his gentle
47
mood,
so that he did what he did. But when he is in his gentle mood he
shows empathy. And when
he is not, what then? An so on.
Basic
to Collis's prognosis is his adhd diagnosis. According to
him
there is "no need" to see the appellant's symptoms as
adding up to
bpd. He would "prefer" not to interpret
them in that way. From a
therapist's
point of view and that of his clients that may be so. Adhd is
treatable by means of
drugs and therapy and the prognosis is fairly good.
Although
he does not use the word it is clear that Jedaar sees a diagnosis
of
adhd in an adult as being frequently a "soft" one. It is a
more
welcome diagnosis,
and is, in his view over-diagnosed, even abused as
a
diagnosis. In the appellant's case he disagrees with Collis and
stands
by his original
diagnosis. So does Lay. At Valkenberg they looked out
48
for
adhd and found it not to be present. As they stressed, the appellant
is an adult, and in the
case of an adult bpd was the most appropriate
diagnosis.
Collis
ventured that the Valkenberg interviews were not best
designed
to bring out the inward goodness in the appellant. The person
under
observation is not under treatment with drugs, and he may find the
atmosphere threatening,
so that his gentler side is not displayed. If this
be so then
it seems that much of the procedure for referral for observation is
pointless.
He
was cross-examined in detail as to whether the criteria for bdp
were
not in fact present. Without going into detail I may say that he
came
off a bad second.
49
He
placed stress on the fact that the appellant has, so he says,
developed a trustful
relationship with himself and two prison
psychologists.
He was cross-examined, again at some length, to show
how,
in many instances, the appellant had been dishonest with him and
had
indeed manipulated him. He resisted the cross-examination valiantly
but not effectively.
At
the end he was unable to explain the crime consistently with his
diagnosis. He conceded as
much. Nonetheless he was not prepared to
accept Lay's theory,
in terms of which Lay claimed to explain it
consistently
with a diagnosis of bpd. Lay's theory in short is, that after
all
the rejection and humiliation which he had suffered on the previous
day, his conduct towards the complainant was a reprisal aimed
at
50
restoring
his battered ego. To my mind this accords well with a classic
behaviour pattern of a
bpd sufferer and the facts of the case.
Collis
was of the view that the appellant would not re-offend and
was
not a danger to the public. This view was based on his diagnosis of
adhd, which I do not
accept to be the correct diagnosis.
Much
to be preferred is the evidence of Jedaar and Lay. Their
prognosis
remains "guarded". They are of the opinion that there is no
genuine remorse, and that
apparent improvements in insight are most
probably
the product of manipulation. They stand by their original
diagnosis
and prognosis.
As
far as Borchardt is concerned, they consider that there is no
evidence of real
personality change, and that in any event the period of
51
observation
is too short to arrive at a reliable conclusion as to such
change.
They suspect that much, at least, of the apparent improvement is due
to manipulation by the appellant, something he had
admitted to
practising in the past.
His motive to manipulate and to feign insight and
remorse
is a strong one. I accept their evidence. Borchardt's evidence, on
the other hand, does not impress me, mainly because of
his readiness
to seize on hopeful signs
without sufficient attentiveness to negative
factors.
To quote his own words "I tend to look at my patient as though
he is a favourable
candidate for psychotherapy and as though he will
improve
. . .". Admirable no doubt from a therapist's point of view, but
to be treated with
caution when the interests of the appellant and of the
public
are weighed against each other. Nor does he seem to attach
52
sufficient
importance to the fact that the appellant does not always tell
his
therapists the truth.
In
the result, I do not think that the further evidence advances the
appellant's case to any significant degree.
During
argument in this Court one of its members raised the
question
whether, because of the existence of the issue as to the appellant's
reformability, s 286 A of the Act should not have
been
utilized.
The section, which came into force on 1 November, 1993, sets
out
a procedure which may culminate in a court declaring an accused "a
dangerous criminal."
The court has a discretion to set the procedure in
motion
after conviction, either mero mofw or in response to an allegation
that the accused is a
dangerous criminal. In terms of s 286 B, once an
53
accused
has been subjected to such a declaration he is sentenced to
imprisonment for an
indefinite period. At the same time the court orders
that
he be brought before it again after a stated period. Upon his
re­
appearance the
court has a wide discretion: to impose sentence in the
usual
way, to impose a further indefinite period of imprisonment, to
convert the sentence to
correctional supervision or release the prisoner,
either
conditionally or unconditionally.
The
procedure was designed for persons suffering from
psychopathy
and related disorders. On the face of it a resort to these two
sections might well have
been appropriate to appellant's case. But the
matter
has not been explored in the Court below. Neither of the parties
asked for it. The learned
Judge may have considered it and may have
54
regarded
it as inappropriate. We do not know. If we were to refer the
matter
back for the application of the sections to be considered, there is
no knowing whether they will be utilized, as the discretion
is that
of the
trial Judge.
The
potential advantage which the sections confer on an accused
is
that instead of his sentence being finally determined (as far as the
courts are concerned) he
has the prospect that after serving the initial
period there
may be some amelioration of his sentence. He may even
gain
his release. It seems to me that before these advantages were to be
gained, absent an iniative by the Court, they had to be
asked for by
the
defence. Litigation
must have an end. I do not consider that it is in the
interests
of the administration of justice that the trial be started up yet
55
again.
Moreover, we do not know why the defence did not seek to resort
to the sections. For all we know there was a deliberate decision not
to
do do. The way that
Teggin's evidence was presented suggests that the
defence was hoping to escape gaol altogether. We simply do not know.
No attempt has been made to present evidence motivating a referral
back.
Indeed, as I have
said, the matter was raised for the first time by a
member of this Court. The absence of motivation is a further reason
why I consider that we should not refer the matter back to the trial
Court
to consider the
application of S 286 A.
I would
dismiss the appeal.
W P SCHUTZ
JUDGE OF
APPEAL