The State v Scott (CC 21/2018) [2020] NAHCMD 152 (07 May 2020);

Group

Headnote and flynote
Flynote: 

Criminal Law – Murder – Requirements – (a) Accused must be aware of circumstances which made his act correspond to definitional elements and rendered it unlawful – (b) Accused must be capable of acting in accordance with his insight into right and wrong. He must have criminal capacity at the time of the commission of the offence – (c) He must have willed the commission of the act constituting a crime.

Intention – State of mind – Subjective test to be applied – Approach to be followed holistic one – In absence of accused admitting intention to kill – An inference must be drawn from evidence relating to accused’s outward conduct at the time of commission of act as well as circumstances surrounding events – Court must consider all circumstances of case before and after commission of act – Including possibility of previous arguments between accused and deceased – Determination for dolus eventualis – Accused acts with intention in form of dolus eventualis if commission of act or causing of unlawful result is not his aim , but: - Subjectively foresees the possibility that in striving towards main aim the unlawful act may be committed or the unlawful result may be caused and – he reconciles himself to this possibility.

Headnote and Holding: 

Criminal Law – Murder – Intention – For the accused to be convicted of murder, the following requirements must be met. (a) The accused must be aware of the circumstances which made his act correspond to the definitional elements and rendered it unlawful. This ground refers to the awareness of unlawfulness. (b) He must be capable of acting in accordance with his insight into right and wrong. He must have the criminal capacity at the time of the commission of the offence. (c) He must have willed the commission of the act constituting the crime.

Intention –An intention is a state of mind. In order to determine intention, a subjective test must be applied. The approach to be followed must be a holistic one. In the absence of the accused admitting the intention to kill, a subjective test must be inferred from the evidence relating to accused’s outward conduct at the time of the commission of the act as well as all the circumstances surrounding the event including the possibility of previous quarrels between the accused and the deceased. The court should also consider the degrees of injuries suffered.

Dolus eventualis – Determination  - A person acts with the intention in the form of dolus eventualis if the commission of the unlawful act is not his main aim, but: (a) He subjectively foresees the possibility that in striving towards his main aim the unlawful act may be committed or the unlawful result may be caused. And, (b) he reconciles himself to this possibility. In the present matter the accused’s actions comply with the requirements of murder in the form of dolus eventualis.

Full judgment

 

 

 REPORTABLE

REPUBLIC OF NAMIBIA 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case No: CC 21/2018

 

In the matter between:

 

THE STATE    

 

versus

 

ANDRIES HERMANUS JOHANNES SCOTT

 

Neutral citation:      S v Scott (CC 21/2018) [2020] NAHCMD 154 (7 May 2020) 

 

Coram:          SHIVUTE, J

 

Heard:            2 -11 December 2019 and 14 February 2020.

 

Delivered:     7 May 2020

 

Fly note:        Criminal Law – Murder – Requirements – (a) Accused must be aware of circumstances which made his act correspond to definitional elements and rendered it unlawful – (b) Accused must be capable of acting in accordance with his insight into right and wrong. He must have criminal capacity at the time of the commission of the offence – (c) He must have willed the commission of the act constituting a crime.

Intention – State of mind – Subjective test to be applied – Approach to be followed holistic one – In absence of accused admitting intention to kill – An inference must be drawn from evidence relating to accused’s outward conduct at the time of commission of act as well as circumstances surrounding events – Court must consider all circumstances of case before and after commission of act – Including possibility of previous arguments between accused and deceased – Determination for dolus eventualis – Accused acts with intention in form of dolus eventualis if commission of act or causing of unlawful result is not his aim , but: - Subjectively foresees the possibility that in striving towards main aim the unlawful act may be committed or the unlawful result may be caused and – he reconciles himself to this possibility.

Summary:     Criminal Law – Murder – Intention – For the accused to be convicted of murder, the following requirements must be met. (a) The accused must be aware of the circumstances which made his act correspond to the definitional elements and rendered it unlawful. This ground refers to the awareness of unlawfulness. (b) He must be capable of acting in accordance with his insight into right and wrong. He must have the criminal capacity at the time of the commission of the offence. (c) He must have willed the commission of the act constituting the crime.

Intention –An intention is a state of mind. In order to determine intention, a subjective test must be applied. The approach to be followed must be a holistic one. In the absence of the accused admitting the intention to kill, a subjective test must be inferred from the evidence relating to accused’s outward conduct at the time of the commission of the act as well as all the circumstances surrounding the event including the possibility of previous quarrels between the accused and the deceased. The court should also consider the degrees of injuries suffered.

Dolus eventualis – Determination  - A person acts with the intention in the form of dolus eventualis if the commission of the unlawful act is not his main aim, but: (a) He subjectively foresees the possibility that in striving towards his main aim the unlawful act may be committed or the unlawful result may be caused. And, (b) he reconciles himself to this possibility. In the present matter the accused’s actions comply with the requirements of murder in the form of dolus eventualis.

 


VERDICT


1st count: Guilty of murder with intent in the form of dolus eventualis.

2nd count: Not guilty of defeating or obstructing or attempting to defeat or obstruct the course of justice and the accused is acquitted.

 


JUDGMENT


 

SHIVUTE J:

 

[1]        The accused stands indicted on an indictment containing two counts. The 1st count being that of murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003. The 2nd count is defeating or obstructing or attempting to defeat or obstruct the course of justice. The particulars of the offences are as follows:

1st count murder:

Between the 2nd and 3rd August 2017 and at or near Farm Houmoed in the district of Mariental the accused did unlawfully, wrongfully and intentionally kill Anna Scott, an adult female person.

2nd count: Defeating or obstructing or attempting to defeat or obstruct the course of justice.

During the period 2 - 4 August 2017 at or near Farm Houmoed in the district of Mariental the accused did unlawfully and with the intention to defeat or obstruct the course of justice conceal the dead body of Anna Scott in a room inside his residence and/or hide the dead body of Anna Scott under blanket(s). Whereas these acts were perpetrated whilst the accused knew or foresaw the possibility that:

(a) His conduct may frustrate and/or interfere with police investigations into the disappearance and/or death of the deceased; and/or.

(b) His conduct may conceal and/or destroy evidence indicating that he assaulted and/or killed the deceased; and/or

(c)  His conduct may protect him from being prosecuted for a crime in connection with the death of the deceased.

Wherefore, the accused is guilty of the crime of defeating or obstructing or attempting to defeat or obstruct the course of justice.

[2]        The accused was represented by Mr Siyomunji whilst the State was represented by Mr Olivier. The accused pleaded not guilty to both counts and he did not offer a plea explanation.

[3]        In order to prove its case in respect of the accused, the State called several witnesses. The first of those was Mr Hendrick Richard Snyders who testified that the deceased was married to the accused at the time of her death. On 2 August 2017, he took the accused and the deceased to Kalkrand. Whilst there, they bought some alcoholic beverages. After they bought alcohol, they went back to the witness’ house where the deceased, the witness and the accused consumed the alcohol until 23h00. The accused and the deceased left for their house. The following day the witness and his father went to fix the borehole pipes. The accused had also joined them. The witness’ father wanted some coffee and he asked the accused whether the deceased was at home to make coffee for them. The accused said that the deceased was unable to prepare coffee for them because she was lying down suffering from a headache.

[4]        The 2nd witness Mr Albert Snyders, a nephew to the accused, testified that on 4 August 2017 he received a phone call from his mother Hendrika Snyders. She informed him to go and see what was going on at the accused’s place. When he went to the accused’s house and called out for the deceased and the accused, there was no response. He checked in their bedroom and he discovered the deceased lying and covered with a blanket. He followed the accused’s footprints and found him climbing on the tree with a wire in his hands. The accused wanted to commit suicide. The witness convinced the accused to come down. The accused told the witness that he pushed the deceased from the bed and she fell down. Thereafter, he put her on the mattress. He again said it was not him who did it. The tree where the accused was found was about 2 kilometres away from his house. When the accused and the witness went back to the accused’s place they found the police already there. It was further the witness’ testimony that he received the phone call from his mother between 08h00 – 09h00.

[5]        Instructions of the accused were put to the witness that the deceased informed the accused that on 2 and 3 August 2017 she brought a man at home and had sexual intercourse with him in their matrimonial home. The accused got upset and had an argument with the deceased. She told the accused that it was her body and she could do whatever she wanted with it. The deceased charged at the accused and the accused pushed the deceased and she hit her head on the bed and lay on the bed. After that, the accused and the deceased made peace on the night of 3 August 2017. On 4 August 2017 both the accused and the deceased woke up but the deceased was not feeling well. The accused helped her to lie on the bed and covered her with some blankets to make her warm. The accused went to work around 07h00 and only returned to check up on the deceased between 13h00 and 14h00. He noticed that she was not breathing. The accused got scared and panicked. He took his family and went to Kalkrand. The witness had no comment with regard to the accused’s instructions. It was further put to the witness that the accused wanted to commit suicide because of what happened to the deceased. The witness was also unable to comment in connection with the instruction.

[6]        Hendrieka Snyders testified that she is the accused’s sister and the mother to the 2nd witness. On 4 August 2017 around 07h00 she received a short text message from the accused. The accused told her that she, the witness, should not give problems to his children, she should phone the police. She should not give words to his children she must phone the police so that the police could come and remove his body. He further said, at the time he was sending the message he was sitting under a tree. The witness did not respond to the message. The accused sent another short message saying that he was not joking. The witness should phone the police. At the time the witness received the short messages, she was at work at Duineveld School. She was a hostel matron.         

[7]        Upon receiving the short messages, she phoned her husband to tell their son to go and check what was happening at the accused’s place. At that time her husband and their son were at Farm Houmoed. It was further the witness’ testimony that during that time the accused and the deceased’s children were not at home but three of them were in the hostel at Duineveld school and one of them was in Rehoboth. The evidence that the accused and deceased’s children were not at home contradicts the accused’s version that he took his family to Kalkrand. The witness upon hearing that the deceased was no more, she travelled to Farm Houmoed. She first went to her house. The accused and her son also arrived on the farm. From the witness’ place, they went to the accused’s place. The police had also arrived at the accused’s place.

[8]        Concerning the couple’s marriage, the witness said the accused used to beat the deceased and they were abusive towards each other. Their arguments always revolved around one of the children who was not fathered by the accused. Again, during cross-examination the witness testified that the accused sent her short messages around 07h00.

[9]        The 4th witness called by the State was Mr Victor Claasen who testified that he visited the accused whilst he was at Kalkrand Police Station. The accused told him that he and the deceased had an argument. The accused strangled the deceased and trampled her on her private parts. From there, she did not wake up. It was put to the witness that the accused never told the witness that after he allegedly strangled and trampled on her private parts she never woke up again because the latter part of his version was not in the statement he gave to the police. The witness responded that the accused indeed told him so.           

[10]      Mr Gerald Abel Freyer, the former accused’s employer, testified that the accused and his wife had an issue in their marriage regarding a child who was born between the deceased and their other former employer. Although they had reconciled, whenever there was an argument between the accused and his deceased wife, the topic regarding the child was always raised. One day, he witnessed the accused throwing a broken mirror at his wife.

[11]      Sakaria Adam Coleman, a former police officer who was stationed at Kalkrand Police Station, testified that on 4 August 2017 around 08h00 he was on duty. Whilst on duty, he received a report concerning the present matter from Sate’s 4th witness. Upon receiving the report, he travelled to the place where the incident took place. That was about 10h00. When he arrived at the scene the accused was already there. The accused led the witness together with his colleague to the bedroom. They found the deceased’s body lying on the mattress that was on the floor near the door. The deceased was covered with blankets. The witness uncovered the deceased’s body. He observed some wounds on her face. She also had some wounds on the knees and on the legs. Around her private parts she was full of blood. The witness’ colleague put back the blanket on the deceased. At that stage the deceased was not breathing.

[12]     Whilst the witness was still in the couple’s bedroom, he overheard the accused explaining to another police officer about what happened. He was incriminating himself and the officer stopped him immediately. The officer informed the accused that he was under arrest for a charge of murder. He explained his rights to remain silent and the right to get a legal representative. The accused decided to remain silent. He was then transported to the police station.

[13]      After the witness dropped off the accused at the police station, he went back to the scene together with other investigating officers including the scene of crime officer and an officer from Forensic Pathology Department. This was between 11h00 – 12h00. When he went back to the scene, he observed a small knife underneath the back of the deceased. The knife was closed because it was the type of knife that can be flipped open. According to his observation, there was no cut wound that appeared to be inflicted by the knife on the deceased’s body. He nevertheless seized the knife and took it to the police station. The scene was taken over by officers from Serious Crime Unit. The witness had identified the photo plan concerning the scene of crime. According to the photo plan, the last photograph no.13 was taken at 12h42. I pause to say that the witness’s version contradicts the accused’s instructions that were put to the witnesses that after the accused left his house at around 07h00 he came back to his house between 13h00 and 14h00 and discovered that his wife was dead. The witness testified that the accused could not have come to the house between 13h00 and 14h00 and discovered that his wife was dead during that period because, by then he was already taken to the police station.

[14]      Mariska Vanessa Scott, a daughter to the accused and the deceased, testified that she heard about the death of her mother whilst she was still at school on 4 August 2017. Around 05h30 early in the morning the witness received a text message from her father, the accused, who just greeted her. She inquired from him why he was texting her early in the morning. The accused sent another text message informing her to tell Conrad Snyders that when the school is out Mr Snyders should pick up the witness and her two siblings from school. The witness inquired from her father why they should be picked up from school and the father told her not to ask so many questions. The witness switched of her phone. The witness further corroborated the evidence of Ms Snyders that during that time, she and her other two siblings were schooling at a school located at Duineveld. She further confirmed that her elder sister was residing in Rehoboth at the time.

[15]      It was again the witness’ testimony that the marriage between her parents was troubled, especially when the accused and the deceased drank. They used to argue and the issue of their brother who had a different father always came up. The argument would result in the accused beating up the deceased.        

[16]      Another witness called by the State was Mr Marvelan Losper. His testimony was that he is a Sgt at the Serious Crime Unit in the Hardap Region. He was also the investigating officer in this matter. The accused was brought to him and Detective Sgt Isaacks. They introduced themselves to the accused by showing their police appointment certificates. They also informed the accused person the reason why they were interviewing him. The witness explained to the accused the right to legal representation and the right to remain silent. The accused explained to them what happened. They explained to the accused the implication of what he was telling them. They further asked him whether he was willing to make a confession before a commissioned officer. They also explained that if he makes a confession this would be recorded and be used against him during his trial. The accused was willing to give a confession and he was taken to Chief Inspector Hauwanga to give a confession.

[17]      It was contended through cross-examination that the accused was never informed of his rights by Detective Sgt Losper. The witness replied that he explained the rights and the accused said he did not want a lawyer. However, he did not record that the accused said he did not want a lawyer.

[18]      Chief Inspector Petrus Hauwanga testified that he took a confession from the accused in terms of s 217 of the Criminal Procedure Act 51 of 1977. The confession was admitted in evidence by consent and it was marked as exhibit ‘L’. The witness testified that he explained the accused’s rights as per the attached pro forma, which is part of exhibit ‘L. The witness read the confession into record. According to the confession, the accused stated inter alia that on 2 August 2017 when they returned from Mr Snyders’ home where they were drinking, he picked up his wife     because she could not walk properly. She fell twice and she sustained bruises and scratches on her face. He dragged the wife into the house. There was a mattress next to the bed. The deceased was too drunk and the accused put her on the mattress.

[19]      The accused confronted her about a relationship she had with a certain man who came to assist on the farm. She responded that it was her body and she could do what she wanted with it. The accused trampled her on her private parts with his foot and strangled her. He pushed her off the mattress and she slept on the floor whilst the accused was on the mattress. On Thursday 3 August, the accused woke up about 06h00, he picked the deceased up and placed her on the mattress and covered her with a blanket. She was still alive as she was breathing. He left for work at about 06h30. Around 13h00, he came back home to collect a pliers. He noticed that she was still alive although when he called her name, she did not respond.

[20]      He went back to work and came back at around 16h00. When he felt her pulse he realised that she was dead. He covered her with a blanket and continued with his other farm duties. He did not tell anybody about the deceased’s death. At about 19h00 he went to Mr Snyders’ house. Thereafter the accused, Mr Snyders and his son drove to Kalkrand to buy drinks and they consumed the drinks at Mr Snyders’ house. On 4 August 2017 the accused woke up about 05h00. He took a pair of pliers, went to the kraal and cut a steel wire because he wanted to commit suicide. He went to the bush. He sent an SMS to his daughter Mariska Scott and informed her that he was on the way to hang himself. He also sent an SMS to his sister, Driekie Snyders, who was working at Duineveld School that he was going to hang himself. He instructed his sister to send her son to the tree where they normally fasten the horse. While he was climbing the tree, the sister’s son came and begged him not to hang himself. They then walked to the house.

[21]      The last witness called by the state was Dr Andries Petrus Vermeulen. He testified that during 2017 he was employed as a Senior Medical Officer at Keetmanshoop State Hospital. He was the one who conducted a post-mortem examination in respect of the deceased in this matter and he prepared a post-mortem report. He identified the post-mortem report that was handed in by consent and marked as exhibit ‘K’. He read the report into the record. According to the report, the main post-mortem findings were: extensive soft tissue trauma mainly on the pelvis area and a subdural bleeding on the right occipital area with swelling of the brain. The cause of death was severe soft tissue trauma caused by blunt object.

[22]      The doctor had also referred the court to the photo plan, exhibit ‘H’, photographs 5 and 7. According to photograph 5, the deceased had bruises on the knees and on the hands. Photograph 7 depicts injuries mainly to the pelvic area. The whole soft tissue was sort of blueish, light reddish colour and multiple dark areas in between. It was again the doctor’s testimony that for such injuries to occur considerable force and multiple forces were applied. I pause to observe that apart from the aforementioned exhibits, other documentary exhibits were also admitted in evidence by consent of both parties and the court has considered them.

Defence case

[23]      The accused, Andries Hermanus Scott, gave evidence under oath and called no witness. He testified that he was married to the deceased for 21 years and they had four children, but one of them was not his biological child. However, he regarded that child as his own and he was taking care of him. He testified that the deceased was boasting and telling him that she was sleeping with other men. On 2 August 2017, he confronted the deceased about her infidelity and threatened to take her to her mother’s place. The deceased said she still wanted to stay with him. When the accused asked her why she was sleeping with other men, she replied that it was nice for her when she slept with other men than sleeping with him. The deceased further said it was her body and she could do as she pleased with it.

[24]      Upon the accused hearing what the deceased said to him, he got angry. He grabbed her, threw her on the floor and stepped on her private parts. He trampled her several times on her private parts with his foot; he was wearing shoes. He trampled her in an aggressive manner. After he finished trampling her, he left her lying on the floor and he went to sleep on the base of the bed. The mattress was on the floor in front of the bed. At the time the accused went to sleep, the deceased remained quiet but she was still alive. On 3 August 2017 when the accused woke up, the deceased was still lying on the floor. He picked her up and put her on the mattress and covered her with a blanket. Her body was still moving and she was feeling cold.

[25]      The accused went out to the kraal and opened for the livestock. Around 12h30, he came inside the house. The deceased was lying still. He felt her pulse and realised that she was no more breathing. He left her. At that time, he realised that what he did was wrong and he was anxious. He further said it was not his intention to kill her. He went to the people who were fixing the pipes. He never reported to anyone that the deceased had passed on. The following day he wanted to commit suicide with a wire that he cut from the kraal with pliers.

[26]      The accused admitted that he sent messages to his daughter and his sister. He also confirmed the contents of the messages as testified to by his daughter and his sister. He further confirmed that his nephew Albert Snyders persuaded him not to commit suicide. With regard to the statement in terms of s 217 of the Criminal Procedure Act, the accused testified that Inspector Hauwanga explained his rights prior to taking a confession from him. He also confirmed that what is contained in the confession is what he told the Chief Inspector. With regard to the second count, the accused denied that he defeated or obstructed or attempted to defeat or to obstruct the course of justice. When he covered the body with a blanket as it was not his intention to hide the body. He covered her because she was feeling cold.

Arguments by counsel

[27]      Counsel for the state argued that the accused and the deceased were in an abusive relationship. This was sparked by the fact that one of the children was not a biological son of the accused and this angered the accused over a period of time. Since the court only has the accused’s version, the court should adopt a holistic approach. The evidence of both counts must be evaluated together with the explanation given by the accused, because they are all closely related. From the evidence adduced, the accused was also angered by the deceased’s alleged statement.

[28]      Although the accused’s instructions were put through cross-examination to witnesses, such instructions were abandoned when the accused subsequently changed his version when he testified. The accused was unable to explain his different versions. However, he is bound by those instructions in light of the fact that no irregularities or any indication from him that his counsel was not carrying out his instructions. Counsel further argued that the actions of the accused were not on the spur of the moment. It was also not accidental. According to the evidence regarding the injuries sustained by the deceased, it is clear that severe repeated force was applied to inflict such injuries. Therefore, the accused had the necessary intent to kill.

[29]      In connection with the second count, counsel argued that the evidence produced established that the accused concealed the body of the deceased person in the room by covering it with blankets, as such, he knew that his action may frustrate or interfere in the investigation of the case and may conceal the commission of the offence. Furthermore, the accused informed Hendrik Snyders and his father that the deceased was suffering from a headache and was sleeping. Therefore, she was unable to make coffee for the accused, Hendrik and his father. The accused misled the witnesses concerning the whereabouts of the deceased and the reason why she was in the room because, according to the accused’s evidence-in-chief, the deceased never spoke to him except when she mentioned the name Harry referring to him.

[30]      It was again counsel’s argument that the accused’s instruction that he took his children to Kalkrand could not be correct because there were no children at home. Again, the accused made an inculpatory statement to Victor Claasen that he trampled the deceased’s private parts. Counsel further argued that the deceased and the accused had a troubled marriage. The deceased was seen alive on 2 August 2017. Her body was only discovered on 4 August 2017. The accused concealed the deceased’s body for the whole day. He knew that his actions were wrong.

[31]      The accused’s instructions that were put to the witnesses are contrary to what the accused testified. The accused never testified that the deceased told him that she brought a man on 2nd and 3rd August into their marital home and had sexual intercourse with her. He also never testified that the deceased charged at him whereby he pushed her and hit her head on the bed. It was further counsel’s argument that the accused was aware of the deceased’s infidelity but he had forgiven her and took her back. The accused did not act on the heat of the moment. The accused by assaulting the deceased whilst she was under the influence of alcohol reconciled himself with her death. Therefore, counsel urged this court to convict the accused on both counts.

[32]      On the other hand, counsel for the defence argued that the accused had no intention to kill the deceased. The accused was angry because the deceased was having extra marital affairs. She also told him that it was her body and she could do with it as she pleased. Accused then stepped on her private parts. On 3 August 2017 in the morning, the deceased was still alive and he covered her with a blanket to keep her warm. The accused only noticed that the deceased had passed away, on 3 August 2017 around 13h00. The accused had no intention to defeat or obstruct or attempting to defeat or obstruct the course of justice. Although the accused admitted that he trampled on the deceased’s private parts several times it could only be said that he caused the deceased’s death negligently. Counsel further argued that the state had failed to prove both counts against the accused and he should be acquitted.

[33]      In determining whether the accused caused the deceased‘s death intentionally or negligently, in my considered view, the court should have regard to the definitions of murder and culpable homicide. One of the sources of such definitions is CR Snyman Criminal Law 6th edition at pages 437 in respect of murder and 442 in respect of culpable homicide.

Applicable law

Murder:

[34]      Murder has been defined as ‘the unlawful and intentional causing of the death of another human being’, whilst culpable homicide has been defined as ‘the unlawful, negligent causing of the death of another human being.’

Both crimes have elements that are common to each other, namely:

(a) causing of death,

(b) of another person, and

(c)  unlawfully

However, murder and culpable homicide differ on one element in the form of culpability. Intention is required in the offence of murder whilst negligence is required in respect of the offence of culpable homicide.

Intention

[35]      For the accused to be convicted of the offence of murder his actions should meet the following requirements (Snyman at 151):

(a) He must be aware of the circumstances which made his act correspond to the definitional elements and rendered it unlawful.

(b) He must be capable of acting in accordance with his insight into right and wrong. The accused must have criminal capacity at the time of the commission of the offence.

(c) He must have willed the commission of the act constituting the crime.

[36]      An intention is a state of mind. Therefore, in the absence of the accused admitting the intention to kill the deceased, a subjective test must be applied. An inference must be drawn from the evidence relating to the accused’s outward conduct at the time of the commission of his act as well as the circumstances surrounding the events. All the circumstances of the case should be considered, including a possibility of previous arguments between the deceased and the accused before the commission of the offence. The court should also consider the type of weapon used in the commission of the offence, the position of the body where the assault was directed as well as the degree of injuries suffered by the deceased.

[37]      There are three types of intention, namely dolus directus, dolus indirectus and dolus eventualis. According to Snyman, at 177,

‘Direct intention (dolus directus) comprises a person directing his will towards achieving the prohibited result or towards performing the prohibited act. This result or act is his goal. He desires the act or result.’ Dolus eventualis has been defined at 178 as follows: ‘A person acts with the intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but; (i) he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused and (ii) he reconciles himself to this possibility.’

[38]      The test for negligence is in principle an objective one. The accused’s conduct is measured by the standard of what a reasonable person in the accused’s position would have done at the relevant moment. With regard to negligence, the court must ask itself the following questions:

‘(a) Whether the reasonable person in the same circumstances would have foreseen the possibility that Y’s death may result from X’s conduct;

(b) Whether the reasonable person would have taken steps to guard against such a possibility and;

(c) Whether X’s conduct deviated from what the reasonable person would have done in the circumstances.’

(See Snyman at 442).

Application of the law to the facts

[39]      Although the accused initially disputed having caused the deceased’s death through instructions that were put to witnesses during cross examination, when he testified in his defence he admitted that he has indeed caused the deceased’s death by assaulting her. Since it is now common cause that the accused killed the deceased, I do not deem it necessary to consider other issues raised during the trial. What the court needs to determine is whether the accused‘s conduct amounts to murder or culpable homicide. In resolving this issue, the court will have to apply a subjective test accompanied by a holistic approach by considering all facts and circumstances of the case.

[40]      In the present matter it has come to light through evidence that the accused and the deceased had an abusive relationship. This has been confirmed by Mr Freyer who witnessed the accused throwing a broken mirror at the deceased on a previous occasion before this matter. There is also evidence from Mrs. Snyders and Ms. Scott who corroborated each other that the relationship was indeed an abusive one. The abuse appears to have been spurred by the fact that the deceased had a son with another man. Although the accused was aware of the deceased’s infidelity, they continued with their marriage but this fact had angered the accused over a period of time that resulted in quarrels between them.

[41]      The court has also had regard to the injuries suffered by the deceased and the instrument used to inflict those injuries. The accused trampled the deceased several times with his foot that was wearing a shoe. According to the post-mortem report, the deceased suffered extensive soft tissue trauma on the pelvic area, a subdural bleeding on the right back of the head (occipital area) with the swelling of the brain and swelling of labia. The doctor testified that for such injuries to occur considerable force and multiple forces were applied. The accused inflicted serious injuries on the deceased and these injuries were directed at sensitive parts of the deceased’s body namely the pelvis area and the head. As counsel for the State correctly put it, when the accused assaulted the deceased he did not act on a heat of the moment as he was already aware of the infidelity.

[42]      The court has also considered the instructions of the accused put to witnesses among other things that the deceased charged at the accused and that the accused pushed the deceased whereby she hit her head on the bed. Although such instructions were put to witnesses, they were abandoned. The accused in his defence testified that upon hearing the deceased saying it was her body and she could do what she wanted with it he got angry. He grabbed her, threw her on the floor and stepped on her private parts. He trampled her in an aggressive manner. The accused could not explain why his testimony under oath was different from his instructions put to witnesses.

[43]      It is my considered view that by instructing his counsel to put such instructions, the accused was trying to distance himself from his unlawful conducts. By saying the deceased, charged at him first, the accused was implying that he acted in private defence which is not the case. By saying that the deceased hit her head on the bed he was trying to explain away the injuries to the deceased’s head, which were caused by the accused. What the accused testified in court is more consistent with the doctor’s findings.

[44] Although the accused’s counsel argued that the accused negligently killed the deceased he did not lead any evidence to that effect or give any reason to substantiate his proposition. The court having assessed the facts and evidence as a whole, it has come to the conclusion that the accused subjectively foresaw the possibility that in assaulting the deceased, by grabbing her, throwing her on the floor and trampling her forcefully on her private parts multiple times death may ensue and he reconciled himself to this possibility. The accused was reckless as to whether death may be committed. I therefore find him guilty of murder with intent in the form of dolus eventualis.

[45]      I will now turn to the 2nd count, defeating or obstructing or attempting to defeat or obstruct the course of justice. The charge reads that the accused unlawfully and with the intention to defeat or obstruct concealed the body of Anna Scott in a room inside his residence or hid it by covering it with blankets. It was further alleged that these acts were perpetrated whilst the accused knew or foresaw that:

His conduct may frustrate and/or interfere with police investigations into the disappearance and/or death of the deceased, and/or his conduct may conceal and/or destroy evidence indicating that he assaulted and/or killed the deceased, and/or his conduct may protect him from being prosecuted for a crime in connection with the death of the deceased.

[46]      Snyman at 327 states that the crime of defeating or obstructing the course of justice consists ‘in unlawfully and intentionally engaging in conduct which defeats or obstructs the course or administration of justice.’

This offence can be committed in different ways. It may be committed by either a positive act or buy an omission. In the present matter the accused disputed that when he covered the deceased’s body he had the intention to conceal the deceased’s body or to defeat or obstruct the course of justice or an attempt to do so. As earlier noted, the accused testified that he covered the deceased when she was still alive because she was feeling cold. There is no evidence adduced gainsaying the accused’s version.

[47]      The argument advanced on behalf of the State that by telling one of the State witnesses that the deceased was in the room suffering from a headache amounted to defeating or obstructing or an attempting to defeat or obstruct the course of justice cannot be correct. In the first place, the charge does not allege that the accused so told the State witness. Secondly, it cannot be said that the charge has been cured by the evidence as the charge has never been defective. The deceased was killed in the room where she was found. The fact that the body was found covered with blankets does not amount to the commission of the offence. The accused’s explanation that he covered the deceased because she was feeling cold could be reasonably possibly true. This court is not satisfied that the State has discharged its burden beyond reasonable doubt that the accused committed the crime proffered against him in the second count. The accused should accordingly be given the benefit of the doubt.

[48]      In the premises, the following verdict has been arrived at:

1st count: Guilty of murder with intent in the form of dolus eventualis.

2nd count: Not guilty of defeating or obstructing or attempting to defeat or obstruct the course of justice and the accused is acquitted.

 

 

__________

NN Shivute

Judge

 

APPEARANCES:                                                             

 

THE STATE:                               Mr Olivier

                                                   Office of the Prosecutor-General

 

ACCUSED:                                 Mr Siyomunji

       Instructed by Directorate of Legal Aid

 

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