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[1999] ZASCA 34
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S v Hughes (648/97) [1999] ZASCA 34 (26 May 1999)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No. 648/97
In
the matter between:
DANIEL
JOSEPH HUGHES Appellant
and
THE
STATE Respondent
Coram: HOWIE, PLEWMAN JJA and MELUNSKY AJA
Heard: 4 MAY 1999
Delivered: 26 MAY 1999
________________________________________________________
JUDGMENT
_________________________________________________
MELUNSKY
AJA/
MELUNSKY
AJA:
[1] The
deceased died shortly before 6 am on 23 September 1993. On the
previous evening he had been to a place of entertainment
known as
the Sports Cafe, Village Walk, Sandton. The appellant was one of a
number of security officers (colloquially known as
"bouncers")
on duty at the Sports Cafe on the night of 22 to 23 September. He
was employed by Tri-Falcon CC, a close
corporation which supplied
security personnel to various night clubs including the Sports Cafe.
At some time after midnight
the deceased was involved in a fight
inside the night club. As a result two of the security officers,
Shane Cass and Brian Kimmel,
asked him to leave and escorted him
outside. The appellant followed them. The deceased was a
well-built young man in his early
twenties. At the time of the
incident he was under the influence of liquor. He became aggressive
and, possibly egged on by
one of his companions, taunted some of the
security officers and challenged them to fight him. Eventually he
and the appellant
became engaged in a fight in the car park area of
the night club, in the course of which the deceased fell to the
ground. Whether
this was due to the appellant punching or kicking
him is in dispute. What seems to be certain is that he fell onto
the back
of his head and lost consciousness. Some twenty minutes
later he was taken by ambulance to the Sandton Clinic. Initially he
appeared to respond to treatment but he suffered a relapse and died
without regaining consciousness.
[2] The
appellant was charged in the Randburg regional court with culpable
homicide arising out of the deceased's death. Despite
his plea of
not guilty he was convicted and sentenced to a fine of R3000 or
eighteen months imprisonment. A further three years
imprisonment was
conditionally suspended. The appellant's appeal to the
Witwatersrand Local Division (Joffe and Cassim JJ) was
unsuccessful
but he was granted leave to appeal to this Court against his
conviction.
[3] The
State case, in short, is that after the appellant and the deceased
had fought, and while the deceased was lying on the
ground, the
appellant kicked and tramped on him (the word "stomped"
was used by some of the witnesses), that the kicks
caused internal
haemorrhaging which, in turn, led to cardiac arrest and the death of
the deceased. All of the above-mentioned
facts are in issue and it
becomes necessary to analyse the events in more detail. A convenient
starting point is the medical
evidence.
[4] Paramedic
personnel of the Sandton Fire and Emergency Services, including Ian
Rex, commenced resuscitating the deceased at
the car park. The
deceased was in a serious condition, with a markedly depressed level
of consciousness, no recordable blood
pressure and very weak
peripheral pulses. He was admitted to the Sandton Clinic at 02:41
where he came under the care of Dr
Soicher. There was no noticeable
improvement in his condition. X-Rays of his chest and cervical
spine showed no abnormalities
and clinical examination of his chest
and abdomen did not reveal blood loss or internal injuries. A
computerised brain scan
was obtained and this, too, was normal. Dr
Zwonnikoff, a neurosurgeon, arrived at the clinic while the deceased
was still on
the scanning machine. He saw to the deceased's removal
to the intensive care unit. By this time the deceased's blood
pressure
had improved, his peripheral pulses were satisfactory and
his level of consciousness showed considerable improvement, so much
so that Dr Zwonnikoff was able to return to his home for about 30
minutes. At about 04:30, and while Dr Zwonnikoff was driving
into
the clinic to commence his early morning ward rounds, the deceased's
condition deteriorated. His blood pressure fell and
he showed no
response to painful stimuli. He was placed on a ventilator and was
given blood intravenously. At about 04:45 he
suffered a cardiac
arrest. Cardio-respiratory resuscitation was commenced. It was
noted that the deceased's abdomen had become
slightly distended.
Despite all attempts at resuscitation, including intravenous
infusions, defibrillation and the administration
of intra-cardiac
adrenalin, he died at 05:50. Dr Zwonnikoff and Dr Soicher assisted
in the resuscitation process and called
in a general surgeon when
the distension of the deceased's abdomen gave rise to a suspicion
that there might be a source of haemorrhage
in his abdomen. The
surgeon arrived when it was too late to provide any effective
treatment for the abdominal injuries.
[5] The
post-mortem examination on the deceased's body was conducted by the
district surgeon of Randburg, Dr Wilken, on 27 September.
This
disclosed a 3,5cm horizontal tear of the abdominal aorta, extensive
bleeding into the peritoneal cavity, into the liver
and duodenal
region and around the pancreas and anterior pericardial sac. The
aorta was not ruptured but the tear is indicative
of the amount of
force that was applied. The cause of death was described as
catastrophic abdominal bleeding. In evidence Dr
Wilken explained
that the bleeding was due to the rupture of the mesenteric vessels.
The abdominal injuries were consistent
with the application of
considerable blunt force to the abdomen. The post-mortem
examination also disclosed a small subarachnoid
haematoma to the
left temporal region of the skull which was too small to be picked
up by the scan. Although the head injury
probably caused the
deceased to lose consciousness it did not cause his death. Dr
Zwonnikoff agreed with Dr Wilken's view that
the most likely cause
of death was the abdominal bleeding which resulted in inadequate
cardiac output to perfuse the body and,
more importantly,
inadequate blood pressure and blood volume to perfuse the heart
itself, thus leading to cardiac arrest.
[6] Dr
Milroy, a pathologist, and Dr Moyes, a specialist anaesthetist, who
gave evidence for the defence, doubted whether the
deceased's
abdominal haemorrhage had caused the cardiac arrest. They suggested
that a 2.5 milligram dosage of a drug known as
Dormicum, which was
administered intravenously to the deceased in order to sedate him
before undergoing the brain scan, could
have resulted in the cardiac
arrest particularly because it was given to a patient who had
consumed a considerable quantity of
alcohol. It may be observed
that the deceased's blood alcohol content at the time was estimated
to be in excess of 0.20 grams
per 100 millilitres and that,
according to Dr Moyes, the combination of Dormicum and alcohol
created a high risk of cardiac arrest.
He added, however, that the
risk would be greatly diminished "if you have an anaesthetist
or experienced person to pump
oxygen into his lungs".
[7] Dr Moyes was under the
impression that the improvement in the deceased's condition, which
was commented on by Dr Zwonnikoff,
had occurred before he underwent
the brain scan. This was not so. It is quite clear that Dr Soicher
telephoned Dr Zwonnikoff
immediately after he examined the deceased
for the first time, that Dr Zwonnikoff recommended a scan and that
Dr Soicher made
the necessary arrangements for the scan to be taken.
When Dr Zwonnikoff arrived at the clinic, at about 03:00 or 03:15,
the
deceased was already on the scanning machine, under the care of
a radiologist, Dr Papert, who had been called in by Dr Soicher.
It
was
after
the scan that the deceased's condition improved and he was admitted
to the intensive care unit in an improved condition. He
maintained
his improvement, according to Dr Zwonnikoff, for about 45 minutes to
an hour. Any adverse side-effects of Dormicum
would have become
apparent within fifteen minutes of the administration of the drug.
It seems to be inconceivable that Dormicum
could have played any
part in the deceased's death, for not only did no ill-effects
manifest themselves immediately after its
administration but the
indications were that the deceased might have been on the road to
recovery after the scan. It is probable
that Dr Moyes' supposition
that Dormicum was administered to the deceased after the improvement
in his condition might have led
him to believe that the drug had
caused the relapse.
[8] Dr
Moyes, moreover, was under the impression that the deceased was
first admitted to the intensive care unit at 04:15 and
that he was
then in an "unsalvageable" condition. He reached this
conclusion on the strength of notes apparently made
by members of
the clinic's nursing staff. At the trial the notes were admitted
provisionally, at the instance of the defence,
and subject to later
proof. However, Dr Zwonnikoff testified that he saw to the
deceased's admission to the intensive care unit
and it is clear
that, at that stage, the deceased's condition was still improving.
Moreover the deceased must have been admitted
to the unit well
before 04:15. Dr Zwonnikoff must have left the clinic at about
04:00, some time after he had taken the deceased
to the intensive
care section. (Dr Soicher's statement that he first saw the
deceased at 03:15 was clearly wrong. The deceased
arrived at the
clinic at 02:41 and Dr Soicher saw him almost immediately
thereafter. He then telephoned Dr Zwonnikoff and arranged
for the
scan and Dr Zwonnikoff arrived at the clinic at about 03:00 or
03:15.) It is necessary to add that the nursing notes
were not
proved and, consequently, no weight can be attached to their
contents, where they were in conflict with the evidence
of Dr
Zwonnikoff. What is more it was never suggested to Dr Zwonnikoff
that Dormicum could have been responsible for the deceased's
death.
And although Dr Soicher was asked whether any negative effect was
observed after the administration of the drug, his
response, that no
negative effect was noted, was not challenged by the cross-examiner.
[9] Another
issue relating to the medical aspect raised in this Court concerned
the assumption made by Dr Moyes to the effect
that the deceased was
not properly monitored and that ventilation was not properly applied
after the administration of Dormicum.
Once it is accepted, as I do,
that the drug was not causally connected to the deceased's cardiac
arrest, the failure to monitor
or to provide ventilation would
appear to be irrelevant in relation to the issues to be decided. In
any event there was no evidence
to support the inferences raised by
Dr Moyes. On the contrary Dr Soicher stated that the deceased was
monitored by Dr Papert
and members of the Sandton Fire and Emergency
Services during the scan and it is quite clear that he suffered no
ill-effect while
undergoing the scan. Nor was it ever put to either
Dr Soicher or Dr Zwannikoff that the deceased was not ventilated.
Dr Moyes'
assumption in this regard was based solely on the unproved
and untested nursing notes and no regard should be had to them.
[10] In
the trial court it was suggested by the defence witnesses that the
abdominal bleeding could have been caused by forceful
external
cardiac massage which was employed during the attempt to revive the
deceased. This submission was not argued in this
Court and it is
therefore not necessary to deal with it in any detail. It is
sufficient to say that the abdominal haemorrhage
was the cause, and
not the effect, of the cardiac arrest. This is obvious from the
evidence of Dr Zwonnikoff. Indeed no other
reason for the cardiac
arrest was advanced on the appellant's behalf - apart from the
question of Dormicum. Moreover Dr Zwonnikoff
made it perfectly
clear that the nature and severity of the internal injuries could
not reasonably have been incurred during
the application of external
cardiac massage.
[11] In
the result it has, in my view, been established beyond reasonable
doubt that it was the abdominal bleeding which resulted
in the
cardiac arrest.
[12] The only other matter raised
in this Court in relation to the medical evidence was whether the
failure of the doctors at
the Sandton Clinic to detect the abdominal
bleeding before it was too late to save the deceased's life was a
novus actus
interveniens
.
Counsel for the appellant argued that it was. He submitted that
while Rex detected tenderness in the area of the deceased's
liver
when he examined him in the parking area of the Sports Cafe, the
doctors who attended the deceased at the clinic failed
to notice
this on palpation of the patient's abdomen. He also submitted that
internal investigations of the deceased's abdomen
would probably
have revealed the presence of blood but the doctors concentrated on
the deceased's head and chest and failed to
carry out any abdominal
procedures. In the circumstances, according to the argument, the
doctors were grossly negligent.
[13] Assuming, without deciding,
that negligence of the medical practitioners would, if established,
amount to a
novus
actus
as contended
for on the appellant's behalf, it is clear that the evidence falls
far short of showing that the doctors were negligent.
What is more,
it was not suggested to either Dr Zwonnikoff or Dr Soicher in
cross-examination that they were negligent in the
respects relied
upon by the appellant's counsel. In the circumstances the arguments
raised by counsel must fail.
[14] The
evidence relating to the events at the Sports Cafe do not have to be
recounted in detail in this judgment. It may be
noted that there
were almost as many versions as there were observers, possibly
because the view of some of the witnesses was
partially obscured by
parked cars. In essence, however, there are only two issues that
need to be decided - to what extent and
under what circumstances did
the appellant kick the deceased and whether Kimmel kicked the
deceased after he was lying on the
ground.
[15] The
second matter can be disposed of with relative ease. One of the
witnesses - Robert Anderson - testified that after
the deceased fell
it appeared to him that the appellant kicked him as he lay on the
ground. Anderson did not see the kicks landing
as a parked car
obscured his view but he added that Kimmel then "came in and
kicked the deceased as well." The appellant's
counsel
submitted that if it was reasonably possible that Kimmel had kicked
the deceased, the State had not excluded the possibility
that the
deceased's death was caused by Kimmel and not the appellant. The
magistrate held that while Anderson was a "good"
and
honest witness, there were shortcomings in his evidence which might
have been due to the fact that he had drunk a considerable
amount of
liquor during the evening. Kimmel, perhaps not unexpectedly, denied
that he had kicked the deceased. He was, however,
an unsatisfactory
witness. What is important is that no other witness supported
Anderson's version concerning Kimmel's alleged
assault on the
deceased. In particular neither Romy Nomis nor her brother, Gary,
both of whom witnessed the incident, saw Kimmel
kick the deceased.
They were regarded as satisfactory and reliable witnesses and it is
clear that they would have seen Kimmel
kick the deceased had this
occurred. In the circumstances Anderson's evidence on this point is
not acceptable. It is therefore
unnecessary to consider the
possibility that even on Anderson's version the appellant and Kimmel
may have acted with the common
purpose of injuring the deceased.
[16] There is some dispute on
whether the deceased or the appellant issued the challenge that
resulted in the fight that ensued.
Everything points to the
likelihood that it was the deceased, and not the appellant, who was
the aggressor in this respect.
However, the appellant's version
went further. He claimed that the deceased attacked him when he
requested the deceased to
leave the parking lot and that the
appellant, in fighting back, acted in self-defence. This version
was correctly rejected by
the trial magistrate and by the court
a quo.
There is
no need to set out the reasons for the rejection of the appellant's
version as nothing was said to persuade us that his
evidence could
reasonably possibly be true in this respect.
[17] Romy
Nomis testified that the appellant "stomped" the deceased
on his stomach after he fell to the ground. Her
brother Gary agreed
that the deceased was "stomped" by the appellant but he
did not see what part of the deceased's
body was tramped on because
of the presence of parked cars which interfered with his view.
Anderson and André Barnard,
another witness, also confirmed
that the appellant had kicked the deceased after he had fallen to
the ground. Anderson's evidence
should, in my view, be treated with
care and although Barnard was found to be an honest witness his
evidence was regarded as
unreliable because of his state of
intoxication. Anderson and Barnard do, however, provide some
support for the evidence of
Romy and Gary Nomis and in my judgment
it was clearly established on the evidence as a whole that the
appellant had kicked the
deceased after he had been knocked down.
The appellant, Kimmel and Cass denied that the appellant had kicked
the deceased while
he was lying down. Their evidence was
unsatisfactory and was rightly rejected by the magistrate. What is
more, the nature and
severity of the deceased's abdominal injuries
provide powerful confirmation for the fact that he was kick or
tramped on while
he was on the ground. There was some evidence that
the appellant might have kicked the deceased during the course of
the fight.
In fact the appellant said that he had kicked the
deceased twice as they fought. I assume that it is possible, but
unlikely,
that kicks during the course of the fight could have
caused some of the abdominal injuries which Dr Wilken described in
his evidence.
But as it was established that the appellant did not
kick the deceased in self-defence, he cannot escape legal
responsibility
for inflicting any of the injuries during the course
of the fight as there was absolutely no reason for him to accept the
deceased's
challenge. There can be little doubt, moreover, that the
kicking and/or "stomping" while the deceased was lying on
the ground at least contributed to the abdominal injuries if it was
not the sole cause thereof.
[18] The
state has therefore established that the deceased died as a result
of an abdominal haemorrhage which was due to the
appellant
unlawfully kicking or tramping on the deceased's abdomen.
[19] The
only other matter that has to be dealt with arises out of the fact
that after the appellant's conviction but before
sentence in the
regional court, the magistrate disclosed, after a query raised by
the appellant's attorney, that Dr Wilken had
become the magistrate's
house doctor "long after" he had testified in the trial.
The magistrate explained that he
had lost confidence in his previous
doctor's approach to medicine and emphasized that the doctor/patient
relationship with Dr
Wilken had not affected his assessment and
evaluation of his evidence. After receiving this information, the
appellant's attorney
stated that he accepted the magistrate's
explanation and added that he would not take matters any further.
[20] The
appellant's counsel suggested that the attorney's acceptance of the
magistrate's explanation did not bind the appellant.
It is difficult
to see why this should be the case. The matter was dealt with in
open court in the presence of the appellant
and the attorney,
according to the record, informed the court that he raised the
matter at the request of his client and that
he would accept
whatever answer was given by the court. It is obvious that the
appellant was satisfied with his attorney's approach
to the matter
and it is not open to him to now contend that he is not bound by the
way in which his attorney dealt with it.
[21] The
appeal is therefore dismissed.
_________________________
L
S MELUNSKY
ACTING
JUDGE OF APPEAL
CONCUR
:
HOWIE JA
PLEWMAN
JA