|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter
between
APPELLANT DENVER JOSHUA
FRANCIS
AND
RESPONDENT THE
STATE
BEFORE: SCHUTZ JA, MELUNSKY AND MADLANGA AJJA
DELIVERED: 18 MARCH 1999
_______________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ JA:
[1] On 27 February 1995 the appellant fired two
shots at Allan Gobey at or near the latter’s home in Syringa road,
Woodlands,
Pietermaritzburg. The first passed close to his head. The second
struck him in the left elbow. Some hours later the appellant
shot Gobey’s
daughter Melanie and killed her. The debate in the appeal is concerned
principally with the appellant’s
state of mind on the evening. He
contends that he acted in a state of non-pathological criminal incapacity
(“sane automatism”)
with the results that either he was unable to
distinguish right from wrong; or, if he could, that he was unable to control his
actions.
The court a quo, Shearer J sitting with assessors, held that
the first shot fired at Gobey constituted an assault with intent to do grievous
bodily
harm, whilst the second shot might have been fired accidentally. The
fatal shot fired at Melanie led to a murder conviction, the
form of intent being
dolus eventualis. The sentence for the murder was 14 years imprisonment
and for the assault six months imprisonment.
[2] With leave granted by the
trial judge the appellant appeals against the convictions and the sentences.
Apart from resisting the
appeal, the State contends that on the murder charge it
has proved intent in the form of dolus directus; and that the firing of
the second shot at Gobey was deliberate and not accidental and amounted to the
crime of attempted murder,
which was the crime charged, and not merely assault
with intent . The State asked that the sentence on the Gobey conviction should
be increased because of the substitution of the more serious offence. At the
request of the court counsel argued the applicability
of s 1 of the Criminal
Law Amendment Act 1 of 1988, in the event of a finding that the appellant was
not criminally liable whilst
his faculties were impaired by alcohol to the
extent contemplated by that section.
[3] The following passage in the
judgment of Kumleben JA in S v Potgieter 1994 (1) SACR 61 (A) at 72 j -
74 b (which includes a quotation) is a useful starting point:
“ ‘. . . On the other hand, an accused person who relies on non-pathological causes in support of a defence of criminal 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 all the facts of the case, including the nature of the accused’s actions during the relevant period’
“The reliability and truthfulness of the alleged offender is in the nature of the defence a crucial factor in laying such a foundation. This fact, and hence the need to closely examine such evidence, has been stressed in earlier decisions of this Court. . . . The ipse dixit of an accused person that the act was involuntarily and unconsciously committed, based on the evidence tendered in support of such assertion, is to be accepted unless it can be said that such evidence ‘cannot reasonably be true.’
“The need for careful scrutiny of such evidence is rightly stressed. Facts which can be relied upon as indicating that a person was acting in a state of automatism are often consistent with and may, in fact be the reason for, the commission of a deliberate, unlawful act. Thus - as one knows - stress, frustration, fatigue and provocation, for instance, may diminish self-control to the extent that, colloquially put, a person ‘snaps’ and a conscious act amounting to a crime results.”
[4] By contrast with cases of pathological
disturbance of the mental faculties, in cases of “sane automatism”
the onus
is on the State to establish voluntariness of the accused’s act
beyond a reasonable doubt: S v Cunningham 1996 (1) SACR 631 (A) at 635 I.
But, as appears in the immediately following passage in the judgment in that
case, in discharging
that onus the State is assisted by the natural inference
that in the absence of exceptional circumstances a sane person who engages
in
conduct which would ordinarily give rise to criminal liability does so
consciously and voluntarily.
[5] Before embarking upon the appellant’s
version of events and the evidence of others which may support or contradict his
evidence,
three uncontentious facts may be mentioned. The appellant has an
immature personality. He was obsessed with the deceased, with
whom he had a
discontinuous love affair. And on the night of the shooting he had had a great
deal to drink.
[6] I do not propose to dwell at length on the relationship
between the appellant and the deceased, because whatever view one takes
of the
niceties of their individual conduct, there can be no doubt that the appellant
was strongly attracted by her, that he was
possessive and jealous of her giving
attention to other men, that he felt that she sometimes played lightly with his
ardour, leading
him on only to let him down, all of which led to feelings of
anger, despair and resentment, feelings sometimes fanned up by
alcohol.
[7] He was born in 1970, so that he was 24 at the time of the
shooting. He came from a broken home, and from an early age witnessed
his
father assaulting his mother, thus being yet another casualty of family
violence, which is so often handed down from generation
to generation. During
1990 he became a fireman. He met the deceased in 1992. She caused him to break
with his girlfriend of the
time. The deceased is not alive to give her account
of the relationship. However, according to the appellant she would break off
their relationship intermittently, only to entice him back each time. On an
occasion at the Thistle Hotel the appellant slapped
her face when she accused
him of looking at another woman. More serious was an incident in October 1994
when she told him that it
was none of his business that she had gone out with
another man. He thereupon struck her several blows, leading to her suffering
a
black eye. He was so shocked at what he had done, so he said, that he took her
to a police station and asked her to charge him.
This she did on 1 October
1994, although she later withdrew the charge. He paid the account when she went
to her doctor for treatment
of her injuries. He phoned her father, Gobey, who
told him to stay away from his daughter. According to him he thereupon started
drinking heavily and with a view to killing himself “took all the tablets
I could find in the house”, only to vomit them
up. His mother gave an
account of the pills in the house very different to his, and although she tried
manfully (if I may be permitted
this word) to change her story when a conflict
with her son became apparent, there must be a question mark over this episode.
What
is established is that he twice consulted a psychologist, Mr Nursoo, in
October 1994. Although Nursoo recorded that the visit was
precipitated by
thoughts of suicide, there is no mention of a failed suicide attempt. In the
meantime the deceased telephoned him
and the relationship was resumed. But the
appellant no longer visited the Gobey home, because the deceased’s father
continued
to be upset by the assault on her. In November 1994 the deceased
attended the appellant’s birthday party at his mother’s
home and
gave him a ring. It was in that same month that he bought the 9 mm Parabellum
pistol which was later to cause her death.
Thereafter he made a practice of
carrying it with him. In December 1994 the deceased telephoned him to say that
she had to break
off the relationship as her father was putting pressure on her
to do so. They stopped seeing each other. When he then telephoned
her she said
that her father required her to take out a “peace order” forbidding
the appellant from coming to the house.
Such an order was issued by the
magistrate on 29 December 1994 and served on the appellant. Whether this was
only the father’s
idea depends on the truthfulness of the appellant. The
form used was one of some antiquity, as it warned that proceedings would
be
instituted in term of s 384 of Act 56 of 1955 in the event of further
complaint.
[8] Despite the restraining order, at some stage in January 1995
the appellant went to the Gobey home, having first armed himself
with Dutch
courage. His object, so he said, was to obtain the return of a chain and a
Galaxy card which he had previously given
to the deceased. There was some
conflict as to what exactly happened on this occasion. According to Gobey, upon
the appellant’s
arrival the deceased locked herself in her bedroom and
telephoned the police. They later arrived. She passed the peace order through
the door and her father gave it to the policemen and asked the appellant to
leave, as he was not supposed to be on his property.
One of the policemen then
took the appellant away from the front door. The appellant disputed some
details, but agreed that “Later
the cops arrived”, and stated that
“I told them that I wanted my chain and Galaxy card back from her which
they gave
me back and I left.” This episode speaks for itself. Much more
disquieting in the light of later events was evidence given
by Gobey. He was
asked whether there had been any earlier indications of the aggression that the
appellant displayed on the night
of the shooting. He answered: “On
several occasions [no date given] he told me that I am going to come home and
cry because
I am going to find him [the appellant] and Huggy [the deceased] dead
in the room.” At the time he did not take these words
seriously, because
he supposed that the appellant, being a fireman, was learning to save lives not
take lives. In cross-examination
the appellant conceded that although he did
not remember making such a statement, he could not deny that he had, and added
“It
is possible that I could have said that.” When asked why, he
responded “Being angry I suppose.”
[9] Some two weeks after the
incident involving the police the deceased telephoned him again. She told him
not to be childish and
bring back the chain and card. After a visit to the
house in her father’s absence he invited her out to lunch. They went
to
Karkloof Falls. This was in February 1995. They started drinking beer. An
argument broke out. She was upset about his drinking
and about his pistol,
which he had with him. She was worried about it, at which he laughed and told
her that it was not for anything
in particular, just for shooting birds. At
this he took a shot at a tree. She asked him to get rid of the pistol, which he
agreed
to do. He later advertised it for sale, on 23 February 1995, but did not
sell it. While still at Karkloof Falls, at her request
they had sexual
intercourse again. After this she told him she was seeing one Reagan
Braithwaite. The appellant said that if they
were to go out again she would
have to break with Braithwaite. She undertook to speak to him about it. (Like
the deceased’s,
Braithwaite’s version is also not known as he was
dead by the time of the trial.) On 26 February 1995 the appellant picked
her up
and took het to Campdrift. There she told him that Braithwaite had refused to
end their association, and that she felt the
same. The appellant was
“devastated” and went to his brother’s home where he started
drinking heavily. This continued
for the rest of the day. We now approach the
dénouement. The next day was to be the fatal day, 27 February
1995.
[10] On that day he met a friend and colleague at a barber shop. After
eating some chicken they went to a shooting range to shoot.
Whilst there the
appellant bought some cartridges. After that a case of 24 cans of beer was
bought. The rest of the day was devoted
to drinking at the homes of two
friends. Another case of beer and a bottle of brandy were bought. I do not
intend attempting to
trace the details of the drinking, because the State
accepts that the appellant’s blood alcohol level at the time of the
fatal shooting was about 0.28 grams per 100 millilitres of blood. At a stage
when the appellant was sitting on the toilet, one of
his friends caused a shot
to be fired from the appellant’s pistol. This annoyed him and an argument
broke out. Thereupon
the friends dispersed. According to the defence witness
Gilbert, the appellant left in his own car at about 19h00. It is clear
that
everybody had had a good deal to drink. Gilbert said that he and the appellant
chatted as they walked to his car, but the appellant
was under the influence.
There was a brandy bottle on the back seat but he could not say how full it
was.
[11] The appellant’s recollection of the events of the day as also
of the evening to follow was, he said, patchy, which is consistent
both with
amnesia caused by alcohol and with an attempt to simulate such a state. There
was not always consistency in his recollections
of the day as conveyed to
different persons at different times. Some of the details described above
emanate from three of his friends,
who gave evidence for him. However, he did
remember the testy conclusion to the day’s convivialities. Then there is
a large
patch. It will be recalled that he drove off from Gilbert’s home
at about 19h00. His car was later parked in the vicinity
of, but not in front
of the Gobey home. The distance between the two houses was about 2 kilometres.
He claims to know nothing of
how it got there. In his evidence he claimed that
his next recollection was of being inside the home. According to Gobey
this must have been some time after 20h30. The intervening period was
presumably the one in which
he reached his final decision to enter the home.
The resumption of recollection described in evidence (being inside the home)
does
not accord with what Dr Plankett noted he was told by the appellant, namely
that he had no intention of visiting the deceased, but
then found himself
outside her home. Further he said that he remembered entering the
house and seeing Gobey sitting on the couch. According to the
appellant’s evidence he remembered very vaguely sitting down in the
lounge. Then nothing, until he found himself outside with Gobey and the
deceased. He claims to have no recollection of what happened
inside the house
before the three found themselves outside. The only witness who describes what
happened inside at this stage is
Gobey. The trial court found him to be a good
witness, uninfluenced in veracity by the strong resentment that he must have
felt
against the appellant. The appellant by contrast, so held the trial court,
was not a good witness. Making due allowance for his
version involving a
sketchy memory of events, his demeanour, found the court, was unpersuasive.
There is also a striking feature
of his evidence - the absence of any
expressions of remorse. Indeed Shearer J remarked that it was as if it was the
deceased and
not the appellant who was on trial. The result is that a shade of
unreality is cast over much of his evidence. Shearer J also drew
attention to
the conflict in version between the appellant and his mother involving the
attempted suicide incident, already mentioned.
There is no good reason to
question the credibility finding adverse to the appellant either. But even
without this finding, there
is nothing to counter Gobey’s version of what
happened in the house.
[12] According to Gobey, when he got home at about
20h30 the deceased was already in pyjamas and her light was off. The front
door
was locked. Shortly afterwards, while he was watching television, the
appellant suddenly appeared and sat down on the couch. He
must have come in
through the back door, which was a usual way of ingress. Presumably he
had brought his brandy bottle and left it in the kitchen, as later evidence
showed that he had the bottle inside the
house. The appellant then asked
“Where is Huggy”? Gobey responded “Denver, you are not
supposed to be here.
What are you doing here? You had better go.”
Gobey’s evidence proceeded “When I told him that he said to me what
have I got to say to him. It was his lawyer who was picking a fight with
me.” This was presumably a reference to the peace
order. Gobey went to
the television set, switched it off and walked towards the front door to open
it to ask him to leave. At
this the appellant got up, grabbed him, and threw
him down on the couch. The appellant took his pistol from his trouser pocket
and
said “You thought I was fucking around.” Next he cocked the
pistol and a cartridge was ejected. He fired a shot towards
Gobey’s head.
The bullet passed close to his ear. Gobey’s impression was that the
appellant thought he had hit him,
because the appellant then ignored him and
started kicking down the deceased’s bedroom door. When Gobey followed him
into
the bedroom after it had been forced open he found the appellant standing
against the window holding a box which Gobey assumed contained
cartridges. The
pistol was on the bed and the deceased lay on the floor next to the wardrobe.
Gobey tried to get between the pistol
and the appellant, but the appellant, who
was a much bigger man, again threw him aside. The deceased seized the
opportunity to run
out of the house. The appellant pursued her and caught her
across the road. With his left arm around her neck he started pushing
her back
towards the house. Gobey tried to get between them, “But he just pushed
me off again and that is when he fired the
shot that hit me in the arm.”
The appellant fired with his free right hand. Under cross-examination Gobey
said “he
pushed me off and fired into my body. So whether he had the
intention of killing me or not, I don’t know.” The bullet
wound to
his left elbow led to two operations and a 30% loss of use of his arm.
Believing that he could do nothing more and that
his life was in danger, Gobey
ran bleeding from the scene, shouting that the appellant was going to kill his
daughter. One of the
neighbours called the police. Another neighbour, Mrs
Hazel Louw, witnessed a part of the events that occurred outside. The deceased
screamed while the appellant hit her on the head with his fist. When Gobey
tried to get her away from him the appellant “pushed
him aside and shot at
him.” The appellant “carried on bashing her with the gun in his
hand, he started bashing her on
her head and was hitting her and kicking
her.” After a time she fell and the appellant carried her towards and
into the Gobey
house. Some time later the police arrived in force and the siege
of the house (which contained only the deceased and the appellant
at this stage)
began. The post-mortem report showed patchy bruising of the whole of the
deceased’s scalp, apart from bruising
on the left forehead and in the mid
line upper/lower lip of the mouth.
[13] The appellant claimed to remember
very little of the events that occurred outside. It will be remembered that his
last prior
recollection was that he was in the house and had sat down in the
lounge. His evidence proceeds “The next I remember was being
outside in
the driveway . . . holding Melanie. Her father Mr Gobey being there . . . I
remember the sound of a gunshot going off.”
Under cross-examination he
became a little more expansive. He had held the deceased with his left hand.
Gobey was there “and
there was like a squabble.” Asked if he
remembered having his pistol, he replied “I remember the sound of a shot,
so
the gun must have been with me.” When a closer description of the
“squabble” was sought he said there was “Just
a commotion like
Mr Gobey was trying to grab me.” He did not remember if any of the three
persons present had made a noise.
The next thing he remembered was vomiting in
the deceased’s bedroom. She was also there.
[14] The deceased was now
a hostage in her own home, which was being besieged by the police. Meanwhile
the appellant was firing off
shots intermittently, into the ceiling and through
the bedroom window. Gobey later counted 16 bullet holes in the ceiling.
Warrant
officer Wessels (since deceased) crouched under the bedroom window and
tried to talk to the appellant. Wessels asked him to surrender.
The
appellant’s response was “Fuck you. I will not do that. Fuck
you.” Smit, a constable who was next to Wessels,
could hear clearly what
the appellant was saying. At a stage Father Müller, who knew the
appellant, if not well, joined the
police under the window and announced
himself. All he earned for his pains was abuse of God, the church and its
minister.
[15] At 22h30 the phone rang at the home of Mr Schnoor, the
brother-in-law of the appellant. It was the appellant speaking with
a slurred
voice from the Gobey home. To quote Schnoor’s words “He just
told me that he [had] shot Huggy’s father and he is going to shoot himself
and shoot her as well.” Quite apart from his expression of future
intention, the appellant here for the first, but not the only time, manifested
an awareness that he had shot Gobey. The appellant then said that Schnoor
should tell the appellant’s sisters that he loved
them and he loved
Schnoor too. He put the phone down.
[16] Schnoor hastened to the scene, to
find what he described as a war zone, with police all over. He joined Wessels
at the window.
The time was about 22h40 . Shots were being fired through the
window. Before the appellant shot, he warned those outside of his
intention to
do so. Schnoor was accompanied by the appellant’s brother, and another
brother-in-law of Schnoor. The appellant
responded to them, saying that he knew
he was in trouble because he had already shot Gobey. This was the second time
that he manifested
this awareness. Indeed the appellant’s impression
seemed to Schnoor to be that he had killed Gobey. The relations asked Wessels
what Gobey’s injuries were. Wessels told the appellant what they were and
that they were not too bad, but he did not seem
to want to believe him, and
insisted that the damage was done, so that there was nothing more he could do
but take his own life.
At some stage the appellant said that if he gave himself
up the police would give him a hiding. He was afraid of this. The police
were
becoming irritated, but then the appellant was persuaded to let one of the
family in, and he allowed the door to be opened to
Schnoor, who entered. While
opening the door the appellant held the deceased. She opened the door. He held
the pistol next to
her. Schnoor pushed the door closed. The time was a little
after 23h00. The appellant then retreated walking backwards into the
bedroom,
holding the deceased, with the pistol pointed at her. Schnoor
followed.
[17] The deceased was dressed in jeans. Once in the bedroom she
sat on the floor between the appellant’s legs. He sat with
his back to
the wall, his pistol in his hand. There was a brandy bottle near him with an
inch or inch and a half of fluid in it.
The appellant told Schnoor to sit on
the bed, which he did. The appellant then said to Schnoor that no one wanted to
believe him
as to how he felt about the deceased. He had told her what was
going to happen and no one listened. He had spoken to her and she
did not
believe him, because every time he went out with someone else she would
telephone him and try to get him away from his next
girlfriend. The deceased
then held him around the neck and told him that she did love him. She seemed to
be afraid. He hit her
on her head quite hard with the butt of the pistol and
said that she was lying. He then asked Schnoor to pass him a cartridge box
lying on the bed. Schnoor told him that it was empty, but the appellant
insisted and Schnoor threw the empty box onto the floor
in front of him. The
appellant then noticed some loose rounds lying on the bed and asked for them.
Schnoor held them in his hand
and tried to talk to the appellant, but the
appellant again insisted, and Schnoor, somewhat fearful, threw them towards him.
Some
fell out of his hand when he fumbled, but he picked them up again and
loaded them into the pistol’s magazine. He drank from
the brandy bottle,
but this caused him to choke and he started vomiting. Thereupon he got up and
said that it was about time that
Schnoor left. The appellant said that there
was no hope. Schnoor understood him to mean that he was going to carry out his
threat.
He moved towards the door, but Schnoor warned him not to stay up
because there was a policeman at the bathroom window. Schnoor
feared he would
shoot the appellant. Schnoor said he was not going to leave as he had come for
another reason. (In cross-examination
a leading question was put to Schnoor to
the effect that what he had said in chief was that it was the appellant, not
Schnoor, who
was to leave, in order to give himself up. Schnoor, readily
compliant to cross-examination, agreed despite the plain incorrectness
of the
proposition. Such a version is quite contrary to the whole tenour of his
evidence as well as his actual words.) However
that may be, the appellant did
sit down again as before and had another drink.
[18] Then, according to
Schnoor, “he was getting tired because I could see he was not responding
to anything else.” Wessels
from outside wanted to know why everything was
so quiet. The appellant vomited again and pushed the deceased away with his
feet
from where she was still sitting between his legs. After vomiting he was
“actually dozing.” Schnoor thought that this
might be his
opportunity to gain possession of the pistol. At this moment the deceased moved
forward. The appellant seemed to get
a fright and he joined his left hand over
his right so that there were two hands on the pistol. The fatal shot was fired.
The entrance
wound was just underneath and to the back of the right armpit. The
bullet penetrated the right lung and the jugular, to exit on
the right side of
the chin. It was argued that the path of the bullet was not consistent with a
typical execution shot at the back
of the head or neck, but Dr Ingles, the
post-mortem doctor, agreed that if the deceased had suddenly leaned forward, the
shot could
have been aimed to go straight through the head or neck in execution
style.
[19] The appellant then held the pistol to his right forehead.
Schnoor entreated “Denver, don’t do that.” The
appellant sat
with his mouth open. Schnoor went forward, took the pistol and left the house
with it. The police burst in. Smit
said that the time was about 00h05.
Schnoor’s estimate of the time that he had been in the house was 30 to 45
minutes. (Smit
estimated it as 20 to 30 minutes). According to Schnoor the
police kicked and punched the appellant and hit him with a rifle butt.
He
shouted to Schnoor “You see, this is what I told you. They are going to
hit me . . .. This is what happens.”
[20] Schnoor said that he
thought that the appellant’s hands were handcuffed before he came out.
This could not have been so
if we are to accept the evidence of two clearly
independent witnesses, as the trial court did. The one was the neighbour, Mrs
Casey
Louw. She said that as the appellant came out he put his fist up. Father
Müller , who gave evidence before her, described
the appellant’s
action as a black power salute of sorts. The fact that this first mention of
the gesture came out by chance
during cross-examination, in itself negates the
suggestion that this evidence was concerted. There is no reason for disturbing
the
trial court’s finding that the appellant acted in this manner.
Particularly I reject the submission that Father Müller
may have fabricated
the evidence because the appellant had joined another congregation.
[21] I
accept the police evidence that the appellant was taken hastily from the front
door to the police van because of the hostile
crowd. According to Smit the
appellant was run out with a policeman on either side. He was not dragged and
he did not stagger.
At the police station the appellant understood what was
wanted of him when he gave his name and surname and handed over his personal
possessions. Although Smit considered the appellant to be under the influence
of liquor, he did not appear to him to be drunk.
[22] To return to the
appellant’s evidence. I left him with his description of the
“squabble” outside, followed
by a recollection of vomiting in the
deceased’s bedroom. His version proceeds. He remembered seeing Schnoor
at the door.
He remembered the deceased being in her bedroom but did not
remember seeing her face. The next that he remembered was being at
the Loop
Street police station, where someone put a tape on his hand and where policemen
shouted at him that he was a murderer.
He also remembered a desk and being
placed in a crowded cell. After that he remembered speaking to his mother the
next day. That
is all. On the appellant’s evidence he was not able to
dispute at all Schnoor’s version of the shooting. The trial
judge
observed that Schnoor was extremely sympathetic towards the accused, possibly
because he was his brother-in-law; and that he
agreed with virtually every
suggestion made to him in cross-examination, even to the extent of agreeing that
the fatal shot probably
went off accidentally or as the result of a spur of the
moment reflex.
[23] The trial court did not take into account the evidence of
Mrs Joy Isaacs, an aunt of the deceased, who had also described how
the
appellant made a clenched fist salute as he emerged from the house. She had
given further evidence that bears directly upon
the appellant’s motives
and intentions when sober. The reason for ignoring her evidence was not based
upon its content or
her demeanour, but because it might be inferred that she
was hostile to the appellant. No doubt she was. She described how on
an
occasion in 1994 she was at a night club together with her niece, the deceased,
who did not have a male escort. The appellant
came over to Mrs Isaacs and asked
her to take the deceased home. She asked him why, and he answered that he could
not bear to be
under the same roof as the deceased when they were not going out
together, as he could not bear the thought of her being with someone
else. He
went on to say that if he could not have her, nobody else would. He would kill
her first. She asked what he would gain
by killing her and he answered that no
one else would have her. How was he going to get away with it, she then asked?
His response
was that he would get very drunk and plead insanity. If the case
were to go to court he had friends in high places and would get
off. She then
asked him why, if he loved the deceased so much, he tormented her so, and
whether it was not a case of obsession rather
than love. He said yes, he
thought it was. The appellant was not smiling when he said these things. Mrs
Isaacs did not know quite
what to make of all this at the time. Her predominant
thought was that the appellant was trying to frighten them, so that the deceased
would be taken home, which Mrs Isaacs and her companion did not do. However,
she later warned the deceased to be careful of the
appellant, as she did not
trust him. She herself had nothing more to do with him. When he gave evidence
the appellant agreed only
with the first part of what Mrs Isaacs claimed had
been said, namely that he had asked her to take the deceased home as he could
not bear to be in the same place as her. Shearer J asked him why he should have
made such a request, and he gave the strange answer:
because he had arrived at
the night club first. The rest of the conversation he denied, saying that it
was a fabrication on Mrs
Isaacs’s part.
[24] The defence called
several medical or technical witnesses. Much of their evidence was concerned
with or based on the later agreed
fact that at the time of the fatal shooting
the appellant’s blood alcohol level was about 0.28 grams per 100
millilitres of
blood, which is a very high level. This figure had been derived
from the testing of a sample taken from the appellant at the police
station at
about 03h30 on 28 February 1995. The reading for the sample was 0.21. The
trial court paid little attention to these
witnesses, because their conclusions
were largely based on what they had been told by the appellant or his attorney.
None of them
had a command of the evidence led at the trial, particularly that
of the state, which often placed a slant on the appellant’s
actions,
intentions recollections and versions different from that which he had put
forward. I consider this view to have been
justified. Something is to be
learned from some of the evidence, but it is of no real help on the central
questions in the case.
[25] Dr Dunn, who was called by the State, by
contrast, sat through the whole trial. He was the principal psychiatrist at the
Midlands
Hospital complex. He listed various of the actions of the appellant
which he said showed an awareness of what he was doing, were
purposeful and some
of them of some complexity. The barrage of shots showed a person who had been
drinking and who was behaving
in an unrestrained fashion, rather than one who
had completely lost control of himself. He believed that the appellant was able
to distinguish right from wrong, and that, even though he behaved in a
disinhibited way, he was able to control his actions. He
was confident of the
fact that the appellant was aware that his actions could cause the death of the
deceased. I do not propose
giving further details of his reasons, because he
speaks of things on which the court, in the end, will have to decide for itself.
It should be added that this being a case of “sane automatism” there
is no need of an expert to explain any actual pathology.
Count 2 -
Murder
[26] I turn first to the murder count. Has the State discharged
the onus, and if so, in what form? The State has proved events
that prima
facie, at least, establish the appellant’s awareness of what he was
doing. Despite the drinking bout of the afternoon he was able
to drive his car
some two kilometres and park it a little distance from the Gobey house. There
followed a series of deliberate actions
aimed at getting Gobey out of the way
and gaining mastery over the deceased, with the eventual object of denying her
forever to any
other man. These actions will be discussed below under the topic
of premeditation. While this was happening he dialed Schnoor
and conveyed a
coherent message to him. Once the siege was under way he carried on a coherent,
if disturbed, conversation with the
police, two relations and a minister. When
he fired out of the window he showed a nicety of distinction of victim by giving
warning
each time. Later, when he admitted Schnoor through the front door and
retired to the bedroom he was careful to protect himself against
police snipers
by using the deceased as a shield. Then, he was able to explain to Schnoor what
his plan was and why he had adopted
it. He asked for a box of cartridges and
when it was found to be empty he observed some loose ones, which he insisted be
passed
to him. Despite some fumbling he loaded them into the pistol. After all
was over he was able to trot out between two policemen
and give a sufficient
account of himself at the police station. However drunk he was these are not
the actions of a man who had
no or little idea of what he was
doing.
[27] Concerning his ability to appreciate the wrongfulness of his
actions, when he phoned Schnoor he mentioned that he had shot Gobey,
when he
conversed through the window he manifested a realisation that this boded trouble
for him, and when he spoke through the window
and later to Schnoor inside the
house he expressed fear of punishment by the police. His appreciation regarding
his conduct towards
the deceased could not have been less.
[28] Given his
poor credibility, so poor that his version must be rejected as being not
reasonably possibly true, there is really
nothing to stand against the
inferences to be drawn from his conduct as to his appreciation of the nature and
wrongfulness of his
deeds.
Premeditation - Both Counts
[29] When
one assesses the evidence to ascertain whether there was premeditation, a clear
and consistent pattern emerges. Perhaps
the clearest evidence is that of Mrs
Isaacs. The trial court decided to leave it out of account. I am by no means
persuaded that
it was right to do so, but I will not decide whether to differ,
because I consider there to be ample evidence without recourse to
hers. Towards
the end of 1994 the appellant bought a pistol and made a practice of carrying
it with him. There can be no mistake
about his undisputed threats to Gobey that
he was going “to find [the appellant] and [the deceased] dead in the
room.”
On the night of the shooting he entered the home with a loaded
pistol, two magazines, a box of cartridges and a bottle of brandy.
Almost
immediately he menaced Gobey by saying “You thought I was fucking
around” and firing a shot which went past his
head. This is plainly a
reference to his previous threats. His conduct in then leaving Gobey unattended
while he battered down
the bedroom door, after which he threw down the pistol
on the bed, strongly suggests that he thought he had eliminated Gobey as
a
factor. When the deceased succeeded in fleeing he remorselessly pursued her
outside and reduced her to captivity in a brutal fashion.
When Gobey sought to
intervene he was dealt with forcefully. The content of the phone call to
Schnoor shows that he believed that
he had shot Gobey (as he had) and expressed
the intention of shooting the deceased and himself. Later, when Schnoor was
inside the
house with him, the appellant said that it was time that Schnoor left
and that there was no hope. Schnoor understood this to mean
that he was about
to execute his threat. Earlier he had said that no-one wished to believe him as
to how he felt about the deceased.
When he fired the fatal shot he held the
pistol with two hands, and the trajectory of the bullet was consistent with a
typical execution
shot, given the fact that the deceased had suddenly moved
forward. He then put the pistol to his head. Had it not been for
Schnoor’s
entreaties he would presumably have fulfilled the whole design
that he had been threatening for some time. Nor when he chose instead
to live,
was there any remorse at the terrible thing that had happened (that is, if the
shot had been unintended). Indeed, when
he emerged out of the front door he
emerged a victor, in his own eyes.
Dolus Directus - Count
2
[30] I think the State is correct in its submission that the appellant
should have been convicted on the basis of dolus directus. However
befuddled he was when he fired the fatal shot, the shooting was merely the
culmination of a design entertained for at least
some hours. But I do not think
that the conviction should be based only on the appellant’s having
continued drinking in order
to steel himself to act in a state of hopeless
drunkenness. Cf S v Chretien 1981 (1) SA 1097 (A) at 1105 G - H. Up to
the end he could control himself, just as he controlled several other people.
Although
his powers of self-control were substantially diminished, his actions
show that they were not lost. The appeal against conviction
on the murder
charge must fail.
Sentence - Count 2
[31] Nor do I think that there
is any basis for our altering the sentence of 14 years imprisonment. We were
addressed in the customary
way to the effect that the trial court had not paid
sufficient attention to factors personal to the appellant, such as his clean
record and his undoubtedly unhappy home background. But no misdirection has
been shown. On the other hand, the crime was not only
premeditated but brutal,
and manifested the highly objectionable feature of one person practically
asserting ownership over another.
The public is entitled to expect a heavy
sentence. As far as drink is concerned (and a great deal was consumed), the
trial court
has already given the appellant credit for that. Bearing in mind
also that I am of the view that dolus directus should have been found, I
am of the view that the appeal against sentence on the murder charge (count 2)
must fail.
Count 1 - Attempted Murder - Conviction
[32] As far as
count 1 is concerned, a single count of attempted murder of Gobey was brought.
There was no attempt to divide the
charge so as to reflect the two shots
separately. The trial court convicted the appellant of the offence of assault
with intent
to commit grievous bodily harm in respect of the first shot (inside
the house). The trial court went on to say that the second shot
may have
resulted
from a purely reflex action when Gobey tried to pull his daughter
away from the deceased. On the evidence I can see no basis for
such a finding.
It was not the appellant’s version, as he had no version. Gobey’s
evidence was that “he pushed
me off and fired into my body.” I do
not think that his concession that he did not know if the appellant intended to
kill
him helps the appellant. Mrs Louw’s evidence was that the appellant
“pushed him aside and shot at him.” The left
elbow is not far from
the heart and lungs. The effect of the evidence is, in my opinion, to show
beyond a reasonable doubt that
the appellant harboured dolus eventualis
when he fired, wishing to get Gobey out of the way and reckless of where he shot
him in order to do so. It is significant that the
appellant’s later
utterances indicate that he believed that he had not merely shot, but also
killed Gobey. In my opinion he
should have been convicted of attempted murder
in respect of this second shot. With regard to the trial court’s finding
that
the first shot was fired more as a demonstration and without the intention
of hitting Gobey (which finding is in my opinion suspect),
even though such an
act be a serious assault it cannot be assault with intent to commit grievous
bodily harm, as the trial court
found it to be. However, as there cannot be two
convictions arising out of a single count, the assault conviction must fall
away.
[33] Where an appeal court is convinced that a trial court, because of
a wrong finding of fact or law, convicted the appellant of
a less serious
offence than that which, in terms of the indictment, he should have been
convicted of, the court of appeal has the
power, in terms of s 322 of Act 51 of
1977, to alter the conviction accordingly: S v E 1979 (3) SA 973 (A).
The State has asked us to do so, and in the light of the evidence already
mentioned, I consider it incumbent
upon this court to alter the conviction on
count 1 to one of attempted murder of Gobey.
Count 1 -
Sentence
[34] The circumstances relevant to sentence on count 1 are
before us and the subject has been ventilated. In my opinion the sentence
of
six months imprisonment should be struck out and replaced with a sentence of
three years imprisonment, of which two years are
to run concurrently with the
sentence on count 2. I bear in mind that the shooting of Gobey was not isolated
from the murder of
the deceased. The effective sentence will therefore be
increased from 14 years and six months to 15 years imprisonment.
[35] In the
light of the findings on both counts a consideration of s 1 of Act 1 of 1988
falls away.
Order
[36] The appeal against conviction and sentence
on count 2 fails.
[37] The appeal against conviction on count 1 fails and the
conviction is altered from one of assault with intent to commit grievous
bodily
harm to one of attempted murder. The sentence on count 1 is increased from six
months imprisonment to three years imprisonment,
of which two years is to run
concurrently with the sentence on count 2.
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
MELUNSKY AJA
MADLANGA
AJA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1999/11.html