S v Grove-Mitchell

• Jurisdiction: South Africa
• Judge: Botha JA, Trollip JA and Corbett JA
• Judgment Date: 06 May 1975
• Citation: 1975 (3) SA 417 (A)
• Hearing Date: 26 March 1975
• Court: Appellate Division

Trollip, J.A.:

This is a borderline case between murder with extenuating circumstances and serious culpable homicide. The G Court a quo (HOEXTER, J., sitting with assessors) found, by a majority decision, that the appellant was guilty of the former, whereas the dissenting assessor opined that the verdict should be culpable homicide. The appellant was sentenced to ten years' imprisonment, but he was granted leave to appeal by the learned trial Judge against his conviction, but not his sentence. Hence the appeal.

H The appellant was charged with murdering a 43 - year-old white woman, Yvonne Eva, during the night of 29 - 30 May 1974, by shooting her. It occurred in the flat at 54 Kingston Park Street, Durban, where they were living together at the time. He pleaded guilty to culpable homicide, saying that he had no intention of killing her. The plea was not accepted by the State. It was common cause that about midnight on the night in question the appellant emptied the magazine of six bullets of his 32 Lama revolver into her body in the bedroom of the flat. Her death, caused by the multiple bullet wounds, must have supervened immediately after the shooting.

Trollip JA

The defence which was put forward at the trial and advanced on appeal before us was that, because of the provocation the appellant received from the deceased and his advanced state of intoxication, it was not proved that he had, subjectively, the requisite legal intention to kill her. In view of that defence A it is necessary to examine the facts in some detail, especially appellant's statements, reactions, and conduct at the relevant time.

The facts that were common cause, undisputed, or satisfactorily proved, can be summarised as follows:

[The learned Judge then in numbered paragraphs set out these facts including certain statements made by the appellant and B continued].

All the statements that appellant made to Miss Dorrington and Sergeants Brettell and Pretorius about his having shot the deceased - see paras. 9, 10, and 11 above - were relied on by the State to show that, despite his intoxication, he was sufficiently compos mentis at the relevant time to have had the requisite subjective intention to render his offence one of murder.

For the appellant it was contended in the Court a quo and on C appeal that those statements constituted confessions in terms of sec. 244 (1) of the Criminal Procedure Act, 56 of 1955; that in them the appellant had in effect confessed that he had committed the offence of murder or culpable homicide; that they should therefore be disregarded as being inadmissible because the State had failed to prove that appellant was in his sound D and sober senses when he made them; and that, in addition, it had not been proved that he was not unduly influenced by Sergeant Pretorius's questioning to make the particular aforementioned statement to him. Moreover, because the confessions to the sergeants, they being peace officers, were not confirmed in writing as required by the section, it was contended that they were also inadmissible on that ground.

The test to apply to determine whether or not a statement is a confession under sec. 244 (1), as laid down in R. v Becker, 1929 AD 167, is simple and straightforward: is it an unequivocal acknowledgment by the accused that he is guilty of the offence in question, the equivalent, in other words, of a plea of guilty thereto? See pp. 171 - 2. None of the E above-mentioned statements measure up to that stringent test. The appellant's admission that he had shot the deceased, even taken in conjunction with the additional remark that he had "shot her six times", or had "emptied the gun on her", or she was "full of holes", although involving him in causing her death, was not an unequivocal acknowledgment that he had F unlawfully killed her, intentionally or otherwise; none of them amounted to his saying, "I am guilty of murdering her or unlawfully killing her." Each statement was quite consistent with a defence of innocence (see Becker's case at p. 172), arising out of, for example, his having killed her in self-defence, under severe provocation, or while he was so intoxicated that he did not know what he was doing. That any G such defence might in the light of all the...