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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAN D LOCAL DIVISION)

JOHANNESBURG

CASE NO: 134/01

DATE:2002.03.20

In the matter between:

THE STATE

and

JAMES RODERICK ALEXANDER DAMPIES...............................................................Accused

JUDGMENT

WILLIS, J: James Roderick Alexander Dampies (to whom I shall hereinafter refer as "the accused") stands indicted on two counts: The first count is one of murder, it being alleged that, upon or about 14 June 1996 and at or near the Max Goodman Park, Bez Valley, in the district of Johannesburg, the accused did unlawfully and intentionally kill P A B (to whom I shall hereinafter, for the sake of convenience, refer as "the deceased"). The second count is one of rape, it being alleged that upon or on the date and at or near the place mentioned in count 1, the accused did unlawfully and intentionally have carnal intercourse with P A B without her consent. The accused has been represented in these proceedings by Mr Hattingh.

At the commencement of the trial he pleaded not guilty to both counts. He tendered an explanation of plea in terms of section 115 of the Criminal Procedure Act, 51 of 1977. In that plea he admits that he attended a party on 14 June 1996 at 6 Lyrac Court, 6th Avenue, Max Goodman Park; that the deceased had been present at that party; that at approximately 01:00 in the morning on 15 June he accompanied her to her home, but that he ultimately only accompanied her to the corner of the street nearest to the flats where she lived. He repeated his denial that he had murdered the deceased or had unlawful sexual intercourse with her.

The accused also proceeded to make certain formal admissions. These relate to the cause of death of the deceased, and also relate to certain photographs that were taken.

There is no dispute that the deceased died as a result of some twenty stab wounds inflicted upon her in the early hours of the morning on 1 5 June 1996 in Bezuidenhout Valley.

The evidence of Dr Patricia Joan Klepp was that if one had regard to the injuries inflicted upon the deceased, and the photographs taken of her lying where she was found dead, then it indicated as a matter of high probability that the deceased had been killed, in what she described as "a crime of passion", what was also described as "a crime of sexual arousal" or "a sexually motivated crime". Various terms were used, but essentially I understand her to be saying that, as a result of sexual Tension within the attacker or the deceased directed against the victim, the deceased was killed. This also was the expert opinion of Inspector van Aardt, who is an expert in particular with regard to serial killings, and killings that have a sexual motivation.

I may indicate at this stage that I would agree respectfully with those opinions of Dr Patricia Joan Klepp and Inspector van Aardt. The sexually motivated nature of the attack upon the deceased has a significance, to which I shall later refer.

Dr Klepp indicated that from her examination of the body of the deceased it could not be stated with certainty that the deceased had been raped. There were no injuries to the inner and outer labia of her genitalia. Of course, as she said, had the""victim been sexually active at the time she would not necessarily have shown injuries in this region. The deceased was 41 years of age at the time, and it is in my view reasonable to suppose that she may indeed have been sexually active at the time.

Furthermore, swabs taken from the vagina of the deceased did not indicate the deposit of any semen in the body of the deceased. Again, of course, the fact that no semen was found in the body of the deceased does not necessarily indicate that there was no forceful penetration of her vagina by a penis.

In other words, to summarise the expert's opinion of Dr Klepp, although one may have a justifiable suspicion that the victim was raped, there really is no evidence to indicate beyond reasonable doubt that this is indeed what happened. The photographs in exhibit E do, however, show that her clothes were removed from the lower part of her body, exposing her private parts.

Apart from police witnesses the following persons testified against the accused in this trial: Paul Peters, who had been a friend of the accused and who had attended the party at which the deceased and the accused were present on 14 June; Joseph Hendricks, at whose house the party was held; and Rashieda Brown, a neighbour of Joseph Hendricks.

I believe it fair to observe that, with regard to each of these witnesses, there are criticisms that can be levelled against their testimony. The detail of what precisely happened at the party, and when the party ended, and who was seen where, has tended to become blurred, and I believe there are two explanations for this:

1. It is clear that a considerable amount of alcoholic liquor was imbibed during the course of the party. This fact is furthermore corroborated by the expert evidence of Dr Patricia Joan Klepp, who said that the amount of alcohol in the body of the deceased at the time of her death was such as to make her severely intoxicated.

2. The passage of time. These event took place nearly six years ago, and I shall allude to that fact later as well.

Whatever the criticisms which may be made against these witnesses for the state, it is clear, common cause, and the accused's own version that he and the deceased attended a party at the home of Joseph Hendricks on 14 June 1996; that a considerable amount of alcohol was consumed; and that the accused then left the party with the deceased alone. That much is common cause, and accordingly it is not in my view necessary to summarise in any particular detail the evidence of each of these particular witnesses. I shall refer to the significant finer points of their evidence later.

Inspector Pretorius was the police officer who had been present at the time when the accused was arrested initially later on the morning of 1 5 June. He had accompanied the accused to his home. He had asked the accused what clothes he had been wearing. The accused told him about a jacket and some Jeans that he had been wearing, but said that a T-shirt that he had been wearing was being washed. At the time the washing machine in the house was indeed operated. Certain tackies of the accused were wet, and were handed over to" him, and these were sent ultimately to the Forensic Laboratories for analysis. The accused had told him at the time that he had washed the tackies because they had mud on them.

The evidence of Superintendent Frazenburg, a biologist attached to the State Forensic Laboratories of the South African Police Services, was that he had received these tackies, and that after microscopic analysis thereof it was found that there was blood on the tackies. The blood was that of a human being, although there was not sufficient DNA remaining for DNA analysis to indicate the blood of which specific person was to be found on those tackies.

Constable Willem Barend Claasens was the police officer who went to the scene of the crime soon after the police were summoned thereto. There he encountered the accused, he said that the accused was in an agitated state and said that he was looking for his false teeth. The accused had certain injuries on his face, and when he confronted the accused as to how he had sustained these injuries he said that he had been walking with the deceased; that Paul Peters came along and hit her; and that when he (accused) attempted to lift her up the deceased, mistaking him (accused) for Paul Peters, had scratched his face.

Captain Ignatius Michael van Aardt was the investigating officer. He testified largely to explain the delays in bringing this matter to justice. It seems that the investigating officer originally charged with responsibility for this case did not press the matter particularly strongly. After he had intervened, when investigating a case of a serial murder in the same area, the state had later withdrawn charges, and it was only when a civil action was threatened against the state and the files were called for once again that the accused was rearrested with a view to being charged in connection with this case in 2000.1 shall refer to this aspect, concerning the delays in this trial, later.

The accused testified that the deceased had been very inebriated; that he had been asked by one Joan, a neighbour, to take the deceased home; that he had left with her; that along the way the deceased had remonstrated with him, and he had decided to leave her some 40 metres away from the flats where she lived. He denied any responsibility for the murder or rape.

There are a number of criticisms that can be levelled against the evidence of the accused: Firstly his evidence is inconsistent with that of Constable Claasens who arrested him. It is inconsistent inasmuch as he denies that he was looking for his teeth in the vicinity of the deceased when he encountered Constable Claasens, and he denies that he told htm this. His evidence is also inconsistent with the version that he gave to Constable Claasens, which was to the effect that he had actually taken the deceased all the way back to her flat. Constable Claasens took down contemporaneous notes of his conversation with the accused, and it is impossible to believe that he would have fabricated this evidence. Furthermore, he could not have known at the time of the significance of the accused looking for the false teeth. Furthermore, when Constable Claasens gave evidence to the effect that when he encountered the accused the accused had told him he was looking for his false teeth, this aspect was never disputed in the cross-examination of Constable Claasens.

The accused also said that he was wearing the same tackies that he had worn throughout the previous evening on the morning at the time of his arrest, and that the police had taken them from him while he was wearing those particular tackies. This evidence is directly in conflict with the evidence of the accused's mother, namely that the tackies were taken from the home later in the morning, which evidence of the accused's mother is corroborated by the evidence of Inspector Pretorius. Furthermore, when Inspector Pretorius gave evidence about the shoes having been collected from the home, this aspect was never disputed. He also gave evidence in court of a fist fight between him and Paul Peters, which was never put to Paul Peters when Paul Peters gave evidence. The accused also denied that he had ever washed his tackies, which was directly in conflict with the evidence of Inspector Pretorius. He also denied having told Inspector Pretorius that there had been mud on the shoes and that he had washed them off. Again, this critically important aspect was never disputed when Inspector Pretorius testified.

The accused was very evasive when asked about his whereabouts in the month and weeks after the killing of the deceased. The accused's brother gave evidence, which really did not take the matter much further. He testified that he had been at the party, and that his brother had left at about 01:00 in the morning to take the deceased home, and I therefore do not consider it necessary to analyse his evidence in any detail. It certainly does not add much to the evidence of the accused. Nevertheless, what is significant is that he said that his brother told him that he had forgotten his teeth at the home of Rashieda Brown the night before, when it was the accused's version when he testified that he had deliberately left the false teeth in the safekeeping of Rashieda Brown.

I may mention that the version of the accused, as to why he deliberately left his false teeth with Rashieda Brown, is laughable, it is derisory. His explanation for doing so was that he was afraid that he would lose his false teeth and that he was worried that his mother would get cross with him if he lost his false teeth. He could give no satisfactory explanation, when I put the question to him: "Well why didn't you put the false teeth in your pocket if you were worried about losing them?" It is entirely strange and unconvincing that he would have left the teeth in Rashieda Brown's care for safekeeping, and significantly this aspect was contradicted by his own brother.

The accused's mother testified. She gave evidence to the effect that the accused returned home at approximately 01:30 in the morning; that she had gotten up early to go to her shop; that she had attempted to wake up the accused; that the accused had decided to remain behind; and then she gave evidence concerning the arrival of the police at the premises. Interestingly enough she said that she never does any washing, and that washing does not take place on a Saturday or a Sunday. Again this evidence does not tally with that of Inspector Pretorius.

I shall now deal with the finer aspects of the evidence which I consider significant.

Although criticisms can be levelled at Paul Peters' evidence, he said it was clear that during the course of the party the accused had-displayed a sexual interest in the deceased. By this I understood him to be saying that it was clear that the accused was interested in having sexual intercourse with the deceased later that evening. This fact is corroborated by the expert testimony of Dr Klepp and Inspector van Aardt, namely that whoever it was who attacked the deceased would have done so in a state of sexual arousal or a state of sexual tension directed against the deceased.

There is a further aspect of Paul Peters' evidence which is significant. He said that the accused regularly carried a knife with him, he loved to play with knives, and had shortly before the arrest on 1 5 June 1 996 showed him a knife that he was carrying in his possession.

therefore is corroborated.

The evidence of Rashieda Brown is significant inasmuch as she says that the accused, after he returned from having escorted the deceased off the premises, was not wearing the T-shirt that he had originally worn, and was wearing a different pair of tackies. She also noticed injuries to his face. Her evidence with regard to the T-shirt and the tackies was corroborated by Paul Peters. The evidence with regard to the T-shirt is corroborated by the evidence of Inspector Pretorius. The evidence with regard to different shoes is also corroborated by the explanation given to Inspector Pretorius that these shoes said to him he had worn previously were wet and that he had cleaned them because they had mud. The injuries to the face were also observed by Constable Claasens at the time that he arrested the'accused.

That the shoes were washed is particularly significant in the light of Superintendent Frazenburg's evidence, that traces of blood were found on them.

It is common cause, it is the accused's own version, that these tackies had been bought on the morning of 14 June 1 996. It is highly improbable that they would have obtained blood on them in such a short period of time, if there was an innocent explanation, but taken together with the fact that these shoes were washed, and that the explanation was that there was mud on them, the shoes seem of larger significance.

Joseph Hendricks said that some six months after the incident he and the accused had been chatting over some drinks, and he had confronted the accused as to why he had raped and killed the deceased, taking her from a party at his house. The accused, according to him, completely freely and voluntarily admitted that he had stabbed the deceased, but denied that he had raped her. A few years later, when Joseph Hendricks believed that his wife had been threatened by the accused if she testified in the trial, he again confronted the accused with the allegation that he had murdered and raped the deceased, and the accused again denied raping the deceased, but admitted having killed her.

Whatever criticisms one might level at the evidence of Joseph Hendricks, two factors stand out clearly: One is, if he was deliberately giving false evidence against the accused, why would he insert the denial by the accused that he had raped the deceased. A further significant factor is the evidence of Dr Patricia Joan Klepp which tends to suggest that, despite a strong suspicion that the deceased was raped, she was not in fact actually raped on the night in question.

The most significant aspect of the evidence however relates to the false teeth. It is clear from the evidence that I have analysed already that the accused is lying about the false teeth. Not only was his explanation given here in court highly implausible, but it was contradicted by the evidence of his own brother. It was also contradicted by the evidence of Rashieda Brown. Rashieda Brown said that she saw the accused in the early hours of the morning in a very agitated state, looking for his false teeth. This aspect, as I have already indicated, is corroborated by the version of Constable Claasens who encountered the accused at the scene of crime. He said that the accused was in an agitated state, and told him that he was looking for his false teeth.

i accept beyond any doubt that the accused was indeed in an agitated state, looking for his false teeth on the morning in question, and the obvious question that then arises is, why would an innocent person be so anxious about the whereabouts of his false teeth in the early hours of the morning? The only inference to draw is that the accused, having forgotten or lost his false teeth earlier, believed that those false teeth would be found in the vicinity of the body of the deceased, and was seeking to remove that evidence. This I believe is utterly damning against the accused.

I turn now to consider how one must evaluate the evidence, and in this regard I wish respectfully to refer to the judgment of Nugent J (who is now a Judge of the Supreme Court of Appeal} in the case of Swan der Meyden 1999 (1) SACR 447 (W), at 448f:

"The onus of proof in a criminal case is discharged by the state if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent. These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation, which has been put forward, might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true."

He continues at 449c:

"Purely as a matter of logic, the prosecution evidence does not need to be rejected in order to conclude that there is a reasonable possibility that the accused might be innocent, but what is required in order to reach that conclusion is at least the equivalent possibility that the incriminating evidence might not be true. Evidence which incriminates the accused, and evidence which exculpates him, cannot both be true. There is not even a possibility that both might be true. The one if possibly true only if there is an equivalent possibility that the other is untrue."

1 continue at 449h:

"A court does not base its conclusion, whether it be to convict or to acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence."

Finally, at 450b:

"What must be borne in mind, however, is that the conclusion which is reached (whether it be to acquit or to convict) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable;

and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored." If one has regard to the totality of the evidence in this particular case then one is compelled to draw the conclusion, beyond any reasonable doubt, that it was indeed the accused who stabbed and killed the deceased on 15 June 1 996, and accordingly that he is guilty of murder.

With regard to the rape count, as I have already indicated, the evidence of Dr Klepp shows that one cannot conclude beyond reasonable doubt that there was penetration of the vagina of the deceased by the penis of any particular man at the time in question. Accordingly the conviction on rape must fail.

Nevertheless it is clear if one looks at the photographs, that whoever attacked the deceased also removed her trousers and her underwear, and accordingly that person has to be guilty of indecent assault. Indecent assault is a competent verdict in terms of section 261 of the Criminal Procedure Act, 51 of 1977.

Before pronouncing my verdict in this matter I wish to allude to the delays in prosecuting this matter. I find it disturbing that the investigating officer originally responsible for this matter left it dormant as he did. I also find it disturbing that in the regional court charges were withdrawn against the accused. We have had expert evidence in other trials of a world class nature by an expert of world renown, that when sexually motivated crimes are committed such as this, that there is a tendency for them to be repeated. I shall never know whether or not the accused did indeed commit another murder after this event, but the prospect is particularly disturbing in the light of this evidence, and I would ask that the state takes the matter further.

Will the accused please stand while I pronounce my verdict: Count 1: the count of the murder of P A B, you are found guilty as charged.

Count 2: the count of the rape of P A B, you are found not guilty of rape, but found guilty of indecent assault.

ON BEHALF OF THE STATE:ADV VAN VUUREN

ON BEHALF OF THE ACCUSED:ADV HATTINGH

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