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[1992] ZASCA 235
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S v Kalogoropoulos (85/1990) [1992] ZASCA 235; [1993] 1 All SA 472 (A) (30 November 1992)

LL
Case No 85/1990
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ARTHUR KALOGOROPOULOS
Appellant
and
THE
STATE
Respondent
CORAM
: BOTHA, EKSTEEN et VAN DEN HEEVER JJA
HEARD
: 13
NOVEMBER 1992
DELIVERED
: 30 NOVEMBER 1992
JUDGMENT
BOTHA
JA
:-
2
This is a Greek tragedy, in which the
dramatis personae
are:
Athanasius Kalogoropoulos, a 52-year old
baker, the appellant. Dafni, his wife, some 21 years younger. Dimitra, his
13-year old daughter. Macheras, his business partner and
friend
(but suspected by the appellant
of
having an affair with Dafni). Charitomeni, wife of Macheras. Dora, housemaid in
the appellant's home. Julia, her cousin.
Stefanos,
husband of Dafni's sister. Stergiou, husband of the appellant's sister
(and self-confessed erstwhile lover
of Dafni). The scene alternates between the appellant's home in Craighall
Park, Johannesburg, and a
3 nearby supermarket run by the appellant and
Macheras, assisted by Dafni and Charitomeni. The time is the afternoon of 16
February
1988. The appellant, on an errand to buy something for the shop, drives
past his home and sees Macheras's car parked in the yard.
He thinks that
Macheras is visiting Dafni with improper intentions, and resolves to question
them on their return to the shop. Later
he does this, but discreetly. The
answers he gets make him believe that Dafni and Macheras are hiding the fact
that they spent time
together at the house earlier in the afternoon. The
appellant goes to the house and questions Dora about visitors. Dora insists that
no one visited the home during the afternoon. Then the appellant finds, on the
ground outside the kitchen door, a number of cigarette
stubs of the brand
habitually smoked by Macheras. He now believes that his suspicions are
well-founded. He is overcome with
4 jealousy and despair. He finds a bottle
of vodka, half filled with the liquor, and gulps down all of it. He goes back to
the shop.
He has with him a revolver, which it is his habit to carry on him
always. At the shop, he finds Dafni and Macheras in the small office
of the
business, drinking whisky. (It is now near the closing time of the shop, and it
is the custom of the two couples to have drinks
in the office at that time.) The
appellant pours himself a glass nearly full of whisky and drinks it down. He
takes out the revolver
and cocks it. He accuses Dafni and Macheras of having had
sexual relations that afternoon. They deny it. A heated altercation ensues,
lasting some time. In the course of it Dafni and the appellant swear at each
other; the appellant threatens to shoot Dafni; Macheras
moves towards the
appellant, but is pushed back onto a chair; Charitomeni enters; and the
appellant
5 waves the revolver in his hand to and fro, pointing it between
Dafni and Macheras. A shot goes off, hitting Dafni and wounding her.
As she
falls to the floor, Charitomeni shouts: "You have killed her!" Further shots are
fired in rapid succession. Two of them strike
Macheras in the chest, killing
him. Another hits and wounds Charitomeni. The revolver is now empty. The
appellant throws it down
on the desk and leaves the office and the building,
damaging the outside door in his exit.
On to the next act of the drama. The
appellant drives home and parks his car outside the house. He goes inside, opens
the safe where
the fire-arms are kept, and arms himself with a pistol. Dimitra
is present. He asks her where Dora is, and is told that she is in
her room,
which is in an outbuilding at' the back of a courtyard. The appellant goes into
the yard, where the family dog
6
playfully jumps against him. He shoots the dog, firing two shots and fatally
wounding it. In Dora's room he finds Dora and Julia.
He tells Dora: "I shoot you
because I will not trust you again". He fires two shots into her chest, killing
her. He leaves the room,
but returns after a short while and instructs Julia to
go to the TV room in the house and to look after the children, explaining
that
he has killed Dafni and Macheras in the shop. He also asks Julia whether Dora is
dead, and is told that she is. Back in the
house, he makes telephone calls to a
number of relatives, telling them that he has shot Dafni, Macheras and
Charitomeni. He drinks
some whisky from a bottle. He takes a shotgun, loads it,
and sits down with it on his lap. At some stage he fires a shot into the
ceiling. Enter Stefanos, his wife and his father-in-law. The appellant threatens
to kill them and aims the gun at them. Stefanos
7 tries to take the gun away,
but fails, the appellant holding on to it. A telephone call is received from the
appellant's brother.
The appellant tells him that he has killed Macheras. He
also says to Stefanos: "I killed George", referring to Macheras. On being
asked
why he did so, the appellant replies that he caught "them" sleeping together all
afternoon on the sofa. He tells Stefanos that
he also shot the maid and that he
emptied the pistol on her (which is true). He offers to show Stefanos where he
shot the maid, and
they go into the courtyard. On seeing the dog, apparently
dead, Stefanos declines to go further and they go back into the house.
In the
meantime all the other people in the house have slipped out. Stefanos, at an
opportune moment, while the appellant's back
is turned, does the same. The
police arrive and surround the house. After a while the appellant comes out, his
hands in the air.
He is
8 arrested and taken away. The curtain falls.
The
appellant was charged in the Witwaters-rand Local Division before GORDON AJ and
two assessors, as follows:
Count 1: Murder - the killing of
Macheras. Count 2: Murder - the killing of Dora. Count 3: Attempted murder - the
wounding
of Dafni. Count 4: Attempted murder - the
wounding of Charitomeni. He was convicted and sentenced as follows:
Count 1: Culpable homicide - 5 years' imprisonment, to run
concurrently with the sentence on Count 2. Count 2: Murder - 8 years'
imprisonment.
Count 3: Common assault - 2 years' imprisonment, to run
concurrently with
9
the sentence on Count 1. Count 4: Common assault - 2 years' imprisonment, to
run concurrently with the sentence on Count 1. An application
to the trial Judge
for leave to appeal against the convictions on Counts 1, 2 and 4 and the
sentences on all the counts was granted.
At the commencement of the trial,
following upon the appellant's plea of not guilty on all the counts, a statement
signed by the appellant
and stating the basis of his defence was handed in, in
terms of
section 115
of the
Criminal Procedure Act 51 of 1977
. The statement
records the events of the earlier part of the fateful afternoon and then
continues, from the point when the appellant
returned to the shop, found Dafni
and Macheras drinking whisky, and he himself swallowed a glass of whisky, as
follows:
10
"7. The accused habitually carried a revolver on his person for security
reasons. He drew the revolver and cocked it with the intention
of frightening
his wife into admitting that she had in fact spent time with the deceased at his
home earlier that afternoon.
8.
An altercation took place
between the accused, his wife and the deceased. The deceased's wife,
Charitomeni, came into the small office
where the altercation was taking place
at some stage.
9.
During the altercation the
accused was shaking the cocked revolver at his wife, and a shot went
off.
10.
The deceased's wife exclaimed,
'You've killed her!'
11.
The accused has no
recollection of any of the events that may have occurred subsequent to this
exclamation up to the time that he
found himself as a patient at the
Johannesburg Hospital in Parktown.
12.
The
accused did not intend to shoot his wife, Dafni, nor to injure her, but merely
frighten her to induce her to admit that the deceased
was her
lover.
13.
The accused says that having
suffered from retrograde amnesia, he
was informed
when at the hospital and thereafter that he had committed the acts which have
given rise to the charges against him.
11
14.
The events of the 16th Feb
1988 were a culmination of numerous other provocative acts by the accused's wife
who habitually and derisively
referred to the twenty-one years difference in
their ages; rejected him both publicly and privately; spurned, ridiculed and
taunted
him with increasing intensity; and, knowing that he was jealous and
deeply in love with her, fanned his jealousy by her
conduct.
15.
The accused contends that due to
the vast quantity of liquor which he consumed in a short period of time, more
particularly having
regard to the provocation referred to in paragraph 14 above
and (save in relation to the facts set out in paragraphs 7, 8 and 9 above)
, the
exclamation in paragraph 10 above, he was
unable:
(a)
to form the intention
required to commit the alleged crimes; and
(b)
to appreciate the wrongfulness of his actions or act in accordance
with such appreciation; and
(c)
to engage in
any purposeful behaviour."
In regard
to this defence the trial Court
heard the evidence of two psychiatrists, Dr B Jeppe,
12 called by the
appellant, and Dr M Vorster, called by the State. For the moment it will suffice
to mention the tenor of their evidence
in broad terms. (I shall consider it in
more detail later.) Dr Jeppe and Dr Vorster were agreed that the appellant
experienced a
genuine amnesia as from the moment when the first shot was fired
and Charitomeni exclaimed "You have killed her". Dr Jeppe was of
the view that
as from that moment the appellant was "totally unable to exert proper control
over his actions" and that this condition
subsisted when he shot Dora. Dr
Vorster differentiated between the shooting in the office and the shooting of
Dora. Her view was
that in the office, more or less from the time the first shot
was fired, the appellant was unable to act in accordance with an appreciation
of
the wrongfulness of what he was doing, but that when he left the office, he was
once again "in control", and that he was not
13
experiencing a "loss of control" when he shot Dora.
It is now necessary to
consider the basis upon which the trial Court returned the verdicts mentioned
above. Regrettably, it is no
easy task to discover what that basis was, as will
appear from what follows. The trial Judge and the assessors were unanimous in
respect of the verdict of murder on Count 2 (the killing of Dora), but there was
a difference of opinion in regard to the other counts.
The verdicts on Counts 1,
3 and 4 were returned by the majority of the Court, the majority being the
assessors. It appears from the
judgment of the trial Judge that his view was
that the appellant should be convicted on those counts respectively of murder
(Macheras),
attempted murder (Dafni) and assault with intent to do grievous
bodily harm (Charitomeni). The assessors, as we now know, voted for
culpable
homicide (Macheras) and common assault (Dafni and
14 Charitomeni). The
difficulty in ascertaining the reasoning on which the assessors' verdicts were
based arises from the judgment
delivered by the trial Judge. In a judgment
running into nearly 90 pages he refers to the views of the assessors in only the
last
two of those - and then in no more than three sentences. Moreover, in the
earlier parts of his judgment, when dealing with the impressions
made by the lay
witnesses in the case and in making findings of credibility and reliability, he
speaks throughout in the first person
singular; and again, when commenting on
the expert evidence of the psychiatrists and on the principles of law to be
applied, the
phraseology is the same.
It is clear that the trial Judge has
not complied with the duty to give reasons for the decisions or findings of the
majority of the
Court upon questions of fact (see section 146 of the
15
Criminal Procedure Act 51 of 1977
and
S v Masuku and Others
1985 (3) SA
908
(A) at 912 C-J). His failure to do so has caused needless problems for all
concerned in the appeal. In this unfortunate state of
affairs, we are called
upon to consider the appellant's defence afresh, in the light of the evidence on
the record. As to the basis
upon which the assessors arrived at their verdicts
on Counts 1, 3 and 4, counsel for the appellant argued that they must have found
as a fact that the appellant was unable at the time of the shooting in the shop
to act in accordance with his appreciation of the
wrongfulness of his actions.
On that basis, counsel said, the verdicts of common assault on Counts 3 and 4
were explicable as having
been founded on the appellant's pointing of the
fire-arm prior to the shooting itself; but the verdict of culpable homicide on
Count
1 was insupportable and (so it was contended)
16 the trial Judge must
have misdirected the assessors as to the legal principles relating to criminal
incapacity. I cannot agree.
It is elementary that the appellant could not have
been found guilty of any offence in respect of the killing of Macheras if at
that
time he was unable to act in accordance with his appreciation of the
wrongfulness of his actions (i e if the second leg of the test
for criminal
capacity was not satisfied). This proposition was in the forefront throughout
the trial: it was put forward pertinently
in the appellant's statement in terms
of
section 115
; and it was canvassed at length in the evidence of the two
psychiatrists. In the circumstances it is inconceivable, I consider, that
the
trial Judge could have misdirected the assessors on the law, or that they could
have laboured under any misapprehension about
it (they were both practising
counsel of long standing at the Bar).
17 The real basis for the assessors'
verdicts lies more readily at hand: it can be gathered with sufficient
certainty, I think, from
the cursory remarks of the trial Judge in the
concluding passages of his judgment. They read as follows:
"There are however differences in degree. Although I find that there was
control, the extent of that control may be a factor which
has to be borne in
mind. Indeed in this case there are differences between my own view and the
views of my assessors on certain aspects
of responsibility in regard to the
shooting in the office.
On counts 1 and 3, count 1 being the killing of George Macheras, count 3, the
attempt to kill Dafni, I am of opinion that these charges
have been proved
beyond reasonable doubt. In my view, the anger of the accused was directed
equally against both these persons. He
was so aroused that he shot and intended
to kill. Luckily for him, he did not kill Dafni. Both my assessors, however, are
of the
view that while accepting his capacity to act, while accepting his
knowledge and appreciation that what he did was wrong, because
of stress and his
alcoholic condition, on count 1, the finding should be one of culpable homicide
and on count 3, one of common assault.
I am of course bound
by
18
their decision as it is the majority decision.
Dealing with count 4, the
attempt to kill Charitomeni Macheras, there is also a difference. I am of
opinion that a distinction must
be drawn between the intention to kill George
and Dafni on the one hand and the intention to act against Charitomeni on the
other.
While he did become angry sufficiently so as to shoot her, on the facts I
disagree with Dr Vorster if she says that he had nothing
against her, although
at one stage Dr Vorster was constrained to admit that he might have had
something against her. In view of the
fact that she was shot in the arm from
such close quarters and in view of what preceded this act, I cannot find that
the only inference
in this instance was to murder her. He may possibly have had
a lesser intent. But by the use of a fire-arm, the least of such intent
would be
an intent to do grievous bodily harm. In my judgment, I find that he is guilty
of an assault with intent to do grievous
bodily harm on count 4. My assessors,
however, for similar reasoning as set out previously, have come to the
conclusion that the
finding should be one of common assault. I am similarly
bound by this finding.
On count 2 we are all unanimously of the view that the
accused is guilty of the charge as charged, that is the charge of wrongfully,
unlawfully and intentionally killing Dora Seleke and therefore guilty on
19
count 2 as charged." It will be seen that, in relation to the killing of
Macheras, the trial Judge expresses the view that the
appellant had "shot and
intended to kill", while directly afterwards he records that the assessors' view
was that the finding on
that count should be one of culpable homicide. The point
of contrast is obviously the intention to kill. The assessors found that
the
intention to kill had not been proved "because of stress and his alcoholic
condition"; I take this to mean that the facts of
the case did not justify the
inference of an intention to kill, either direct or indirect. That the
appellant's intention, as an
inference of fact, was the point of difference
between the trial Judge and the assessors appears again, in relation to count 4,
from
the trial Judge's references to an intention to kill and to a "lesser
intent", and to the assessors' "similar reasoning" as
20 before in bringing
in their verdict. In the context, therefore, it seems to me that the trial
Judge's mention of the acceptance
by the assessors of the appellant's "capacity
to act" and "his knowledge and appreciation that what he did was wrong" can only
be
understood as meaning that the assessors were satisfied (as was the trial
Judge) that both legs of the test for criminal capacity
were satisfied.
Accordingly they must have rejected the appellant's defence in that respect, as
also the opinions of the psychiatrists,
to the extent that these purported to
support the defence.
It follows, therefore, that the enquiry before this
Court is whether the evidence before the trial Court warranted its rejection of
the appel-lant's defence of lack of criminal capacity. In this enquiry it is of
no moment whether or not the appel-lant intended
to kill Macheras when he shot
at him,
21
for, on the hypothesis that the trial Judge was right in finding such an
intention, the assessors' verdict of culpable homicide would
nonetheless be
unassailable, in accordance with the judgment in
S v Nqubane
1985 (3) SA
677
(A). Similarly, if it is supposed, hypothetically, that the assessors were
wrong, in fact or in law, in convicting the appellant
of no more than common
assault in respect of the shooting of Dafni and Charitomeni and not of the more
serious offences of attempted
murder or assault with intent to do grievous
bodily harm, that would not be a ground for setting aside the verdicts on Counts
3 and
4. Consequently the differences of view between the trial Judge and the
assessors in regard to the verdicts on Counts 1, 3 and 4
can be left out of
further consideration.
The question of the appellant's criminal capacity
falls to be considered with reference to the
22
circumstances leading up to the shootings and the appellant's conduct before,
during and after the shootings, on the one hand, and
on the other, the evidence
of the psychiatrists. As to the former, a number of factual issues arose from
the evidence of the State
witnesses and the evidence given by the appellant. I
mention some of them, briefly. Dimitra testified that she was present in the
house with the appellant at the time just before he went to the shop and the
shooting there took place. She said that the appellant
told her he was going to
kill someone, that he gave her R2 to keep it a secret, and that he said she
would read about it in the papers.
The appellant denied that Dimitra was present
in the house at the time and that such a conversation ever took place. Dafni in
her
evidence gave an account of the causes of unhappiness'in the marriage that
was wholly at variance with the evidence given by the
appellant in
23
that regard, the gist of which is reflected in para 14 of the appellant's
statement in terms of
section 115
, quoted above. She denied that the appellant
had any reason to be jealous. The appellant testified that Dafni had had a
sexual affair
with Stergiou some years before, and Stergiou, called as a witness
by the appellant, confirmed it. Dafni denied it. As to the events
in the office
before the first shot was fired, the evidence of Dafni and Charitomeni differed
from that of the appellant in regard
to sequence and some details. In regard to
the firing of the first shot, the appellant's evidence that Charitomeni shouted
"You have
killed her" was denied by Dafni and Charitomeni.
In his judgment
the trial Judge said that Dafni, in first denying and then playing down the
affair with Stergiou, had not been frank
with the Court, although her reluctance
to admit an intimate
24
relationship could readily be appreciated. Apart from that mild criticism the
trial Judge found that Dimitra, Dafni and Charitomeni
were all impressive,
honest and credible witnesses. Consequently he rejected the appellant's evidence
on all the points of conflict.
As has been mentioned earlier, the trial Judge's
comments and findings on the witnesses were without exception couched in the
first
person singular. There is no hint in the judgment of the trial Judge that
the assessors shared his views in this regard. It is difficult
to imagine that
the Judge did not discuss these matters with his assessors before delivering
judgment, but there are, in my view,
insuperable difficulties in the way of
surmising that the assessors agreed with the Judge's assessment of the
witnesses. Firstly,
the tenor of the judgment as a whole strongly suggests the
contrary. Secondly, if the assessors had accepted
25
Dimitra's evidence referred to above, (ie that the appellant had told her he
was going to kill someone) it would be difficult to understand
their verdicts on
Counts 1 and 3. Thirdly, and most importantly, the trial Judge's findings under
discussion are, with respect, unsatisfactory
on the face of the record. To begin
with Dafni. At the time of her affair with Stergiou the appellant secretly
recorded some of her
telephone conversations with Stergiou on a tape, which he
kept. At the trial the tape was produced and played. Dafni flatly denied
that it
was her voice that was recorded on it. After an adjournment overnight, she
admitted that it was her voice, but explained
that she had merely been playing
up to Stergiou at the request of the appellant, in order to maintain the family
ties. With this
she persisted at length, even though further parts of the tape
revealed more and more exchanges of undoubted
26
intimacy and amorousness. On the record, she was a blatant and persistent
liar. Moreover, on reading her lengthy evidence in the record
I have a clear
impression of a woman filled with bitterness, hatred and bias against the
appellant. Shortly before the trial the
appellant's attorney sought permission
from Dafni to interview Dimitra. Dafni did not comply with the request, but
instead promptly
took Dimitra to counsel for the State for an interview, and in
that way she became a State witness. The danger that the 13-year old
child might
have been influenced by her mother was inherent in the situation, and very real.
There was thus an additional reason
for treating her evidence with caution,
apart from the usual cautionary approach to youthful witnesses (which was not
alluded to
by the trial Judge). On paper her evidence is anything but
convincing, particularly in regard to the inherently unlikely
27
account of how the appellant confided in her and then bribed her to keep
quiet. As to Charitomeni, the record of her evidence reveals
a distinct weakness
of memory in regard to the details of the events in the office. As for the
appellant, there are unsatisfactory
passages in his evidence, but on the whole
the record does not reveal that he was caught out in any deliberate
falsehoods.
Counsel for the State, stressing the advantages of the trial
Judge in having heard and seen the witnesses, urged us not to discard
his
findings in that respect. I cannot accede to the argument. The question is not
whether there is sufficient warrant in the record
for us to disregard the
credibility findings of the Court
a quo
. The question is whether we are
entitled to assume that the assessors, being the majority or the Court
a
quo
, shared the views expressed by the trial Judge, being the minority,
in
28
the extraordinary circumstances of this case, as outlined above. For the
reasons given above, I am of the view that we are not so
entitled. In my opinion
we are bound to consider the appeal on the record and without having regard to
the credibility findings of
the trial Judge. In regard to the disputes of fact
arising from the evidence of the State witnesses as opposed to the evidence of
the appellant, I am unable on the record to find that the appellant's evidence
cannot reasonably be true. It follows, therefore,
that in the area where there
are such disputes of fact the defence of criminal incapacity must be considered
on the basis of the
facts deposed to by the appellant.
Those facts have been
summarized at the commencement of this judgment, in describing the events up to
and including Charitomeni's
shout on the first shot being fired in the office.
From that
29
point on it will be recalled that the appellant, according to his evidence,
suffered from amnesia. My summary of the facts over the
second period rests
mainly on the evidence of Julia and Stefanos, which was rightly not challenged
by counsel for the appellant.
To the limited extent that it rests on other
evidence, it is not controversial and was also not challenged. I accept,
furthermore,
the evidence given by the appellant in regard to what is said in
para 14 of his
section 115
statement. It is not necessary to enter upon the
details of that evidence.
In one respect I disagree with the argument on the facts presented by counsel
for the appellant. He submitted that we should find
that the first shot in the
office was fired accidentally. In my opinion the appellant's own evidence does
not permit of such a finding.
The appellant is an expert with fire-
30
arms; target shooting was his hobby. It appears from his evidence that when
he took out the revolver, cocked it and pointed it at
the space between Dafni
and Macheras, he was confident, by reason of his expertise, that he would not
harm either of them. He explained
with precision that he kept his finger, not on
the trigger, but well behind it, within the encasement housing the trigger. It
is
clear that in order to fire, that finger had to be moved deliberately, away
from where it was and onto the trigger. The appellant
could not explain how that
had happened. In the absence of such an explanation there is, in my view, no
basis in fact for displacing
the
prima facie
inference flowing from the
known facts, viz that the shot was fired deliberately. There are no facts in
evidence (as opposed to conjecture)
upon which the possibility of an accident
could be based. Consequently, while I shall accept, on the
31
footing of it being reasonably possible, the appellant's evidence that he did
not go to the office and did not confront Dafni with
the intention of shooting
her (see para 12 of the
section 115
statement, quoted earlier), I am unable to
find that it is reasonably possible that the first shot was fired
accidentally.
The appellant said in evidence that he felt dizzy in the
office, due to the liquor he had imbibed. It is clear on the record that
he was
accustomed to regular and heavy drinking. The State witnesses who observed him
in the office and subsequently at the house
differed widely in their perceptions
of his state of sobriety or inebriation. It would serve no purpose to enter upon
the details
of their evidence in this regard. The appellant was injured in the
course of his arrest and was taken to hospital. There a sample
of his blood was
taken, which was later tested for alcohol level. On the
32
basis of the result and of the facts relating to the quantities of liquor
consumed by the appellant, the time periods involved, and
so forth, expert
medical evidence was received by the trial Court which showed that the
appellant's blood alcohol level both at the
time of the shooting in the office
and at the time of the shooting of Dora was probably about 0,24 gram per 100 ml.
This evidence
was undisputed. What effect the intake of liquor had on the
appellant falls to be determined with reference to the evidence of his
actual
conduct and to the evidence of the psychiatrists.
I turn, then, to a
consideration of the evidence of Dr Jeppe and Dr Vorster. In this regard we are
not hampered, nor assisted, by
findings of credibility or reliability on the
part of the trial Judge. It is common cause that both the psychiatrists were
well qualified
to give expert evidence in
33
their field, and that they did so in good faith, honestly and without bias.
We are in as good a position to assess the evidence on
its merits as was the
Court
a quo
.
The doctors were agreed that the appellant did not suffer
from any mental illness or defect. Psychologically he presented as a normal
individual with normal intelligence and sound judgment. The only comments
forthcoming about his personality which are worth mentioning
are, from Dr Jeppe,
that he is "rather a timid individual, especially in regard to
his
relationship with his wife, by whom he
appeared to feel emasculated,
although he appeared to be desperately attached to her", and, from Dr Vorster,
that "in his personality
he feels a little inadequate"; "he was able to assert
himself, but in terms of his relationship with his wife, his feeling of
inadequacy
made that assertion more difficult".
34
The doctors were also agreed that the
appellant genuinely suffered from amnesia as claimed
by him. It was
caused, they said, by the intake of
alcohol (possibly coupled with emotional
stress,
according to Dr Jeppe). The appellant had what is
generally known
as an alcoholic black-out. It
differs vitally from automatism. This was
explained
in clear terms by Dr Vorster. In automatism there is
no conscious thought,
but as to a black-out she
said:
"A blackout or a blankout as Dr Jeppe used the term, occurs in people who are
either heavy drinkers or alcoholics, where they act
quite normally and they are
quite normal, but afterwards have no memory for what they have done. So, during
the time that they are
performing the actions, they are conscious, they are
voluntary. They can perform any kind of actions, but the only difference is
that
afterwards they cannot remember what they have done. So, during that time that
they have performed those' actions, they are
liable for every-thing they are
doing, because there is conscious
thought."
35
Again:
" the salient point about blankout, is
that the person is quite normal. They are simply not laying down memory
banks. So, they could be doing any kind of work, any kind
of task. The only
difference is they are not laying down memory banks, so they are capable of
performing any actions and are liable
for those actions. (Court intervenes)
COURT
They are what? — They are liable for those actions in an
alcoholic blackout."
When cross-examined about the appellant's alleged lack of control at the time
when he shot Dora, Dr Vorster repeatedly refuted the
notion that the
appel-lant's black-out had anything to do with the question of control; she
stressed that it merely explains the
memory loss and that it was not a factor to
be taken into account in regard to the question of control at all. There is
nothing in
Dr Jeppe's evidence to controvert these views of Dr Vorster. (Dr
Jeppe referred at some length to scientific literature on
36 automatic
actions and automatism, but since it is common cause that the appellant was not
acting in a state of automatism this
evidence takes the matter no further.)
Consequently, on the expert evidence in this case the appellant's amnesia has no
direct bearing
at all on the issue of his criminal capacity.
The criminal
incapacity which is relied on in this case is of the kind which is described in
judgments of this Court as non-pathological
criminal incapacity (see e g
S v
Laubscher
1988 (1) SA 163
(A),
S v Calitz
1990 (1) SACR 119
(A), and
S v Wild
1990 (1) SACR 561
(A)). It has been said that in a case of this
kind psychiatric evidence is not as indispensable as it is when criminal
incapacity
is sought to be attributed to pathological causes. On the other hand,
an accused person who relies on non-pathological causes in
support of a defence
of crimi-
37
nal incapacity is required in evidence to lay a factual foundation for it,
sufficient at least to create a reasonable doubt on the
point. And ultimately,
always, it is for the Court to decide the issue of the accused's criminal
responsibility for his actions,
having regard to the expert evidence and to all
the facts of the case, including the nature of the accused's actions during the
relevant
period. These observations taken from the decided cases lead me to pass
some preliminary comments on the nature of the psychiatric
evidence which is to
be considered in this particular case. Both Dr Jeppe and Dr Vorster in
expressing their opinions about the appellant's
mental state at the relevant
time focussed attention mainly on the appellant's loss of control. This must be
taken to pertain to
the second leg of the test for criminal capacity, viz the
ability to act in accordance with an appreciation of wrongfulness. A perusal
38
of the evidence on the record shows that the opinions expressed concerning
the appellant's control over his actions did not purport
to rest on the exercise
of any specialized scientific or technical procedures or expertise. The opinions
were certainly not presented
in that way. The expression "loss of control" was
not put forward as a term of art peculiar to the discipline of psychiatry or
perhaps
psychology. It was not suggested that the views expressed were derived
from arcane knowledge of the workings of the human mind, to
which psychiatrists
alone have access by virtue of their training or experience. Instead, what the
doctors were about in their evidence
in this case was to take the facts deposed
to in the trial and to draw inferences therefrom as to the appellant's control
over his
actions, or the lack of it. Drawing inferences as to the state of a
normal man's mind from the objective facts relating
39
to his conduct is an exercise which is not unique to the psychiatric or
psychological professions. Courts of law perform the exercise
daily, constantly.
In the circumstances of this case I perceive no cause for this Court to have any
hesitancy in considering the
opinions of the psychiatrists on their merits, in
accordance with our own experience of, and insight into, human behaviour, and in
deciding itself upon the inferences that are to be drawn from the objective
facts relating to the appellant's actions.
The above remarks are appropriate to substantially the whole of the
psychiatrists' evidence regarding the appellant's loss of control.
(I am leaving
aside now the evidence relating to the appellant's amnesia, referred to
earlier.) By way of illustration it will be
convenient to refer now to their
treatment of one particular fact: the appellant's shooting of the dog. It will
be recalled that
40 the appellant shot the dog very shortly before he shot
Dora. In regard to the question of the appellant's loss of control at the
time
of the shooting of Dora, the doctors disagreed in their views. Their
disagreement centred around the inferences that could be
drawn from the fact
that the appellant had shot the dog. Dr Jeppe's view appears from the closing
passages of his evidence, when
he was being questioned by the trial Judge. In
regard to the shooting in the office, Dr Jeppe had told the trial Judge that he
believed
the appellant was "not fully aware of what was going on" and that he
could not "fully control his behaviour at that time". The trial
Judge then
proceeded to question him about the shooting of Dora, as follows:
"Now, I go to the next part. Would you say the same conditions apply bearing in
mind all the factors that you have heard in cross-examination
and in
examination-in-chief, the same factors would apply to the shooting of Dora in
the field that he is
41
not aware, not fully controlled, anger yes, emotion yes. All those things to
the nth degree, but the dividing line, where the curtain
drops between that and
a non-appreciation of his act, would that apply to Dora? — My lord, I find
it difficult to separate
that shooting, the shooting of Dora, from the shooting
of the dog, which to me is an indication of his unawareness of the whole
situation.
I mean that was such a pointless, purposeless action that to me it
was a part of the same thing.
Well, the dog jumped on him according to the child and he shot the dog and
that ... — He need not have, my lord.
But while he was on his way to
perform this act or something or other, but with Dora there is a suggested
reason as put in cross-examination.
All this is hypothetical. — Yes, my
lord.
That there is a suggested reason. Now, would you say that that would
apply or would you say it does not apply here? — It must
have applied to a
certain degree, my lord. There seems to be, as I have said, when I replied to
the prosecutor, a certain purposefulness
in asking where she was, taking out the
gun. There was a certain purpose to it, but my feeling about it is, that the
balance of his
mind was still disturbed. That I think that because of the
shooting of the dog, which seemed to me so to be an indication of his
state of
mind at the time."
42
Dr Vorster's evidence on this aspect reads as follows
(under cross-examination):
MR BIZOS
But now, Dr Vorster, assume that you and Dr Jeppe are correct
that there was this condition present at the time when the accused
did whatever
he did in the office. Let us assume that. Would it, that act in itself, the
injuring of his wife, the shooting of George
Macheras, seeing them both on the
floor, seeing Mrs Macheras's arm bleeding, would that not have added to his loss
of control? What
I mean by that is, was that not an additional stimulus to
enhance the loss of control, if that was possible? — It may have
been, but
if one looks at his subsequent actions, they are not the actions of a person who
has a loss of control.
Now, let us just examine
that. (Court intervenes)
COURT
Do you say that, I am sorry, but you say that the subsequent
actions, what did you, what were your words about that? — Are
not the
actions of a person who has a loss of control.
MR
BIZOS
Let us assume that the shooting of the late Dora Seleke was within
minutes, three to five minutes of the first shooting, the shooting
of the dog
was 30 seconds or at the most a minute before the shooting of Dora Seleke. Would
that not indicate that there was this,
this loss of control that was present at
the office, continued right up to the time of the shooting of the
43
dog and the shooting of the late Dora Seleke? — No, it is not the time
period that impresses me. It is his activities during
that time. Had he had a
continued loss of control, in fact one would have expected random shootings of
everybody he met. Not intentional
actions as have been described over the past
few days.
Well, let us have a look. What intentional actions do you say there
were? -- The discussion of the shootings with persons at the house.
The
approaching of the daughter and asking her where the maid was, the going to the
safe to collect firearms, the walking to the
room, shooting the dog on the way,
the ordering out of Julia out of the room and then the shooting of Dora.
Well
... — Subsequent to that the return to the house and the telling of the
persons there what he had done. His actions to
me sound logical, planned and
intended.
Well ... (Court intervenes)
COURT
Logical, sorry? — Planned and
intended.
MR BIZOS
How does the ...
COURT
Logical, planned? — And intended.
MR BIZOS
What,
how does the killing of the dog fit into this picture? — I am not saying
Mr Kalogoropoulos was not angry anymore. I feel
that he was still angry and he
was still jealous but he did not have the same loss of control. I can only
speculate that perhaps
the dog jumped up on
44
him and he was irritated.
But ... — I cannot answer that question with facts. I am not saying
that Mr Kalogoropoulos was not angry at that point. What
I am saying was that he
had not lost control."
These passages speak for themselves as illustrating the nature of the
evidence under consideration, and as remarked upon above. I
agree entirely with
the views and the conclusion of Dr Vorster on this point. But I would have
rejected the contrary views and conclusion
of Dr Jeppe in any event, even if Dr
Vorster had not given voice to her disagreement.
Having said that, the issue
of the appellant's criminal capacity at the time when he shot Dora can be
disposed of at once, and briefly.
All of his actions after he left the office,
and the whole of his outward conduct then, proclaim that he was well aware of
what he
was doing and that he was well
45
in control of himself. There is no need to list his actions here; they appear
from the summary given at the outset of this judgment,
and most of them are
mentioned in the extract from Dr Vorster's evidence quoted above. The
manifestation of rational, planned and
controlled conduct is not disturbed by
his shooting of the dog. To suggest otherwise is no more than pure theory, and
fanciful at
that. And so there is no foundation of fact for the notion that the
appellant, when he shot Dora, was unable to control his action
in so doing, that
he was unable to act in accordance with his appreciation of the wrongfulness of
his conduct. Such a notion does
not arise by inference from the facts; it is no
more than pure conjecture. As such it cannot sustain a reasonable possibility of
criminal incapacity.
What, then, of the shooting in the office? In his written report, confirmed
in evidence, Dr
46 Jeppe concluded as follows (his mention of "a tremendous
emotional blow" refers to Charitomeni's shout "You have killed her"):
"It is my opinion that as a result of emotional stress, extending over many
months, intensified by the excessive use of alcohol and
brought to a climax by a
tremendous emotional blow, the accused was precipitated into a state of
dissociation in which he had a diminished
awareness of what was going on and he
became totally unable to exert proper control over his actions on the evening of
Tuesday, 16
February, 1988, which eventuated in the death of George Macheras and
Dora Seleke and the injuries to Dafni Kalogoropoulos and Charitomeni
Macheras."
It will be seen that Dr Jeppe spoke of
"diminished
awareness" and "proper control". His understanding
of these
concepts became clear in the course of his
evidence, in a manner detracting
very substantially
from the initial impact of his opinion. So, at
the
conclusion of his evidence-in-chief, he replied to a
question of the
trial Judge:
"He was shattered psychologically, my lord,
47
by what he thought had happened, that he had killed his wife, because he had
heard the shout, you have killed her. And of course
the effect of the alcohol
blurred his control in any event. I believe that the combination of the two, my
lord, made it, diminished
his ability to be fully aware of what was happening
and certainly diminished his ability to control his
behaviour."
In my view this statement of Dr Jeppe's
opinion falls clearly short of signifying a lack of criminal capacity, for it
does not postulate
an inability to appreciate wrongfulness, nor an inability to
act in accordance with such appreciation, but merely a diminishment
of awareness
and control. And that this was indeed Dr Jeppe's stand becomes abundantly clear
on reading his evidence under cross-examination,
from which I quote, by way of
illustration, the following statements:
"I have no doubt that his responsibility
was diminished It is difficult
real
ly, my lord, to work it back and assess
what degree of responsibility
there was
I cannot really put a
percentage
48
onto it. Obviously that is the sort of thing the court will have to
decide."
"Yes, there is a gray area between the two,
I suspect, my lord, between
diminished
responsibility and how diminished it is,
but diminished
responsibility I have no
doubt about. How diminished I am less
certain
about "
(Questioned by the trial Judge about the
shooting of Macheras:)
" are you contending for the medico
legal proposition that he did not
appre
ciate that what he was doing was wrong? —
I think it was a
part of this whole
emotional explosion, my lord. I do not
think it was
sort of singled out as a
separate, deliberate act. He was in, I
used the
term 'unhinged'. He was not fully
aware of what was going on. It is not,
I
believe that - this is in fact my belief -
that he was not aware of the
fact that he
was, of the enormity of the situation. I
do not believe he
could fully control his
behaviour at that time.
Yes, not fully control would be a difficult medico-legal angle in solving the
problem that I have to decide here. Yes, my
lord."
Dr Vorster's opinions on the
shooting in
the office appear from the following extracts from
49
her evidence-in-chief and under cross-examination:
"I think we have a build-up of anger here. We have a build-up of alcohol and
therefore we have a gradual build-up of loss of control.
While he was pointing
the firearm between two of the victims, there we still see that the accused is
in control."
(With reference to Charitomeni's
shout:)
"I think he had his finger on the trigger at that stage. It was at that point
where he lost control and that is exactly why he carried
on shooting and did not
stop. If he had been controlled, he would have then stopped."
"A man who loses his temper, does that man lose control? — He was no
longer able to act in accordance with his appreciation
of wrongfulness."
"What does this loss of self-control of whatever stage amount to in your
opinion? — In my opinion. It would amount to an inability
to act in
accordance with appreciation of wrongfulness.
Is
that comment made in view of the facts and circumstances before this court?
— Yes."
"Yes, and the combination of anger, alcohol and the fact that he was still in
this alcoholic blankout, how could he really have controlled
himself, if he
was
50
unable to control himself earlier, Dr Vorster? — First of all, one must
not add in the alcoholic blankout, as I have stressed
on so many occasions. It
merely explains the memory loss. As to the anger, the extreme anger, as I see it
at the office, was with
all the shouting and the swearing and the arguing,
jealousy, all combined to make him lose control. (Court intervenes)
COURT
All combined? — All combined to make him lose control at that
point, but that when he left the office, he once again was in
control. The
blankout, the alcoholic blankout is not a factor to be taken into account here
at all. Not at all. It is merely an explanation
of the memory
loss."
Reading these passages it is clear that Dr
Vorster's opinion about the appellant's loss of control in the office, in
contradistinction
to the position when he shot Dora, was based upon two facts
only: first, that he kept on shooting; and second, that there was shouting,
swearing and arguing. These are the only reasons which can be gleaned from her
evidence as a whole for differentiating between the
51 situation in the
office and the situation when he shot Dora. I do not agree with Dr Vorster's
interpretation of these facts, nor
with the inference she draws from them, for
the reasons following.
The shooting in the office could not have lasted for
more than a couple of seconds. Imme-diately before that short space of time the
appellant was in control of himself; that is not in doubt. Immediately after it
he was again in control of himself; so Dr Vorster
says herself (as I have
indicated, for good and compelling reasons). He then replaces the emptied
revolver with a loaded pistol and,
having just shot three people, proceeds to
shoot a fourth. On the face of his conduct before and after, it seems to me
almost inconceivable
that in the brief interval in between he was deprived of
self-control. I cannot see any significance in the fact that he "kept on"
shooting in the office. The
52
firing there ceased when the revolver was empty; but it did not stop
altogether. It was resumed when the appellant fetched a replacement
and found
his next victim; and again he shot until the fire-arm was empty (it just
happened to have less ammunition in it) . If he
had lost control in the office,
I cannot accept that, on regaining control, he would simply carry on shooting.
Viewed in that light,
the fact of the shouting, swearing and arguing in the
office is not of any significance either. The appellant shot Dora (and the
dog)
because he was angry and emotionally upset, but while in a frame of mind where
he could exert self-control. I can see no reason
for surmising that he did not
shoot Dafni, Macheras and Charitomeni for the same reasons and while in exactly
the same frame of mind.
There is, indeed, no foundation in fact for
differentiating between the appellant's state of mind during the couple of
seconds
53
that it took him to fire the shots in the office, and his state of mind
before and after that episode. Such a differentiation can
only be a matter for
conjecture. It cannot give rise to an inference, and it cannot constitute a
reasonable possibility.
For these reasons the defence of criminal incapacity
fails, and so does the appeal against the convictions.
Finally, I turn to the
appeal against the sentences. Counsel for the appellant was not able to point to
any misdirection in the remarks
made by the trial Judge when passing sentence.
He submitted that it could be inferred from the sentences imposed that the trial
Judge
was giving effect to his own view of what the verdicts should have been,
and relied in this respect on the sentences of 2 years'
imprisonment for common
assault on Counts 3 and 4. He also urged that the effective period of
imprisonment of 8
54
years was unduly harsh. I cannot agree. The infer-ence contended for is
wholly unwarranted. The sen-tences on Counts 3 and 4 are not
excessive, and the
trial Judge was lenient in allowing them, as well as the sentence on Count 1, to
run concurrently with the sentence
on Count 2. And in my view due recognition is
given to the mitigating circumstances of the case in the effective period of
imprisonment
imposed. The appeal is dismissed.
A S BOTHA JA
EKSTEEN JA
CONCUR
VAN DEN HEEVER JA