S v Eadie

• Jurisdiction: South Africa
• Judge: Olivier JA, Streicher JA and Navsa JA
• Judgment Date: 17 March 2002
• Citation: 2002 (1) SACR 663 (SCA)
• Hearing Date: 19 February 2002
• Counsel: Craig Webster for the appellant. A D R Stephen for the State.
• Court: Supreme Court of Appeal

Navsa JA:

[1] During the very early hours of the morning of Saturday 12 June 1999 on Ou Kaapseweg near Fish Hoek, the appellant assaulted Kevin Andrew Duncan ('the deceased') and beat him to death in circumstances described in popular language as 'road rage'. The appellant stood D trial in the Cape Provincial Division of the High Court, before Griesel J, on a charge of murder and on a charge of obstructing the ends of justice. In respect of the second charge it was alleged that after the commission of the murder the appellant disposed of a hockey stick which he used in the attack on the deceased so that it could not be found by E the police, and further, that he attempted to mislead the police by falsely showing them a pair of jeans other than the blood splattered pair he was wearing at the relevant time. The appellant admitted that he assaulted and killed the deceased. His defence was one of temporary non-pathological criminal incapacity resulting from a combination of F severe emotional stress, provocation and a measure of intoxication, thus placing in dispute that at the material time he could distinguish between right and wrong and that he could act in accordance with that distinction. The appellant's defence was rejected and he was convicted on both charges. On the murder charge the appellant was sentenced to 15 years' imprisonment, five years of which were conditionally suspended. On the charge of obstructing the ends of justice the appellant was G sentenced to imprisonment for nine months. It was ordered that this sentence run concurrently with the sentence imposed in respect of his conviction on the murder charge. The judgment of the Court below is reported as S v Eadie (1) 2001 (1) SACR 172 (C). The appellant appeals, with the leave of the Court below, against his H conviction on the charge of murder. The primary issue in this appeal is whether the appellant lacked criminal capacity at the time that he killed the deceased. Before us it was conceded on behalf of the appellant that at the relevant time he was able to distinguish between right and wrong. It was contested that he was able to act in accordance with that appreciation. It was submitted, before us, in the alternative I (in the event of a finding that the appellant did not lack criminal capacity), that the State failed to prove beyond reasonable doubt that the appellant had dolus in either the form of dolus directus or dolus eventualis and that it should be found that a proper verdict in the totality of the circumstances of the case is one of culpable homicide. J

Navsa JA

[2] It is well established that when an accused person raises a A defence of temporary non-pathological criminal incapacity, the State bears the onus to prove that he or she had criminal capacity at the relevant time. It has repeatedly been stated by this Court that:

(i)

in discharging the 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 B to criminal liability, does so consciously and voluntarily;

(ii)

an accused person who raises such a defence is required to lay a foundation for it, sufficient at least to create a reasonable doubt on the point;

(iii)

evidence in support of such a defence must be carefully scrutinised; C

(iv)

it is for the Court to decide the question of the accused's criminal capacity, 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. D

S v Calitz 1990 (1) SACR 119 (A) at 126h - 127c; S v Wiid 1990 (1) SACR 561 (A) at 564b - g; S v Potgieter 1994 (1) SACR 61 (A) at 72j - 73h; S v Cunningham 1996 (1) SACR 631 (A) at 635i - 636c; S v Francis 1999 (1) SACR 650 (SCA) at 652c - h.

[3] I will in due course deal with the test for criminal capacity E as laid down in this Court and with contributions by academic writers. In the course of this judgment I will consider whether the boundaries of the defence in question have been inappropriately extended, particularly in decisions of Provincial or Local Divisions of the High Court, so as to negatively affect public confidence in the administration of justice.

[4] At this stage it is necessary to consider the facts of the F present case and the basis on which the Court below reached its conclusions. It is not disputed that at the time of the attack on the deceased the appellant was subjected to a number of stressors. He was experiencing financial difficulties, problems at work, tensions in his marriage and was in a depressed state. The events that led to the death of the deceased and the surrounding circumstances are largely common G cause. There is a dispute about the manner in which the assault was perpetrated, which is dealt with in the summary that follows.

[5] The appellant, presently 37 years old, is a keen sportsman and a competitive hockey player. On Friday 11 June 1999, accompanied by his wife, he attended a function of the Fish Hoek Hockey Club held H at the Holiday Inn in Woodstock, Cape Town. During the course of the night he consumed at least seven bottles of beer. After the function the appellant and his wife joined another couple for a late meal at a restaurant in Rondebosch, where he consumed at least two more bottles of beer and two Irish coffees. In the early hours of Saturday morning I the appellant and his wife drove home in their Volkswagen Jetta motor vehicle ('the Jetta'), stopping at his mother's house to pick up their two young children. They drove along Ou Kaapseweg in a southerly direction towards Fish Hoek. As they travelled home with the children asleep on the back seat they became aware of the headlights of a motor vehicle coming up behind them. The deceased was the driver and sole occupant J

Navsa JA

of this vehicle, a Toyota Corolla ('the Toyota'). He drove A right up to the Jetta, overtook them, and in the process flashed his headlights, which were on bright. The deceased then slowed down considerably. The appellant remained behind him for a short distance. When the deceased reduced his speed to approximately 40 kmph the appellant overtook him. The deceased increased his speed and once again drove up close to the Jetta's rear bumper, keeping his headlights on bright. The appellant accelerated but could not put distance between B them. The Toyota overtook the Jetta once more and the process described earlier was repeated - the deceased slowed down and the appellant overtook him but could not get away. The appellant became angry and concerned about his family's safety. He stopped the Jetta at a set of traffic lights relatively close to his home. The Toyota stopped behind C him. The appellant got out of the Jetta, took a hockey stick from behind the driver's seat, and walked towards the Toyota. At this point the appellant's wife drove off in the Jetta. The deceased remained seated behind the steering wheel of the stationary Toyota. The appellant initially intended to smash the Toyota's headlights. He changed his mind and decided to smash the windscreen. When the D appellant got close to the Toyota the deceased opened the driver's door, prompting him to divert his attention from the windscreen and to lunge at the deceased with the hockey stick, which broke into two parts as it struck the vehicle. The appellant became extremely angry. He succeeded in opening the driver's door of the Toyota after it was E kicked at him and closed again by the deceased. The appellant punched the deceased against the head whilst he was still in the Toyota and continued the assault by punching him repeatedly. He pulled the deceased out of the vehicle and into the road. The deceased fell. The appellant repeatedly and savagely stamped on the deceased's head with the heel of his shoe. The appellant broke the deceased's nose by F stamping on it with his heel.

[6] The appellant testified that whilst he was assaulting the deceased he could feel himself shouting but did not hear any sound. He could see some things clearly whilst others were blurred. He felt as if he was in a fish bowl. When he pulled the deceased out of the Toyota he G felt no weight. In perpetrating the assault he felt that he was 'going, going, going'. He experienced these sensations from the time that the hockey stick broke. The appellant could nevertheless recall and relate what happened in the detail set out above.

[7] Mr Graham Hill ('Hill'), a motorist who drove past the scene H witnessed at least part of the attack on the deceased and testified in support of the State's case. He supplied a slightly different version of the assault, testifying that the appellant used the hockey stick as a weapon, jabbing it at the deceased whilst he was still seated in the Toyota.

[8] The appellant testified that after he assaulted the deceased he did not realise where he was. His wife returned to the scene a short I while after her initial departure and repeatedly called his name without receiving a response. The appellant eventually heard his wife call his name and walked to the Jetta. His wife drove him home in silence. After the appellant arrived at home he decided almost immediately to return to the scene. There was no one else at the scene. He established that the J

Navsa JA

deceased was dead and unsuccessfully attempted to dial an emergency number A on his cell-phone. Soon thereafter a tow-truck driven by Mr Jan Eksteen ('Eksteen') arrived at the scene. Eksteen saw that the jeans worn by the appellant were blood-splattered. The appellant told Eksteen that he was at the scene attempting to assist the deceased, deliberately creating the impression that he was B an innocent bystander. The police arrived a short while later and the appellant repeated his explanation for being at the scene. He supplied the police with his...