S v Holshausen

• Jurisdiction: South Africa
• Judge: Broome J
• Judgment Date: 06 December 1982
• Citation: 1983 (2) SA 699 (D)
• Hearing Date: 06 December 1982
• Court: Durban and Coast Local Division

Broome J:

The prosecutor, Mr Oberholzer, tendered as part of the State case a typed transcript of a tape recording made by the accused. Mr Mostert, who with Mr Acker appears for the G accused, contested its admissibility. It is admitted that the document tendered is a correct transcript of a tape recording made by the accused on the evening of Thursday 28 January 1982, that is to say some 48 hours before the deceased died.

H I sat alone to hear the argument and to determine the issue of admissibility.

Mr Mostert argued that the evidence sought to be led offended the hearsay rule in that it was hearsay and it did not fall within any of the recognised exceptions. For this part of the argument Mr Mostert contended that it was unnecessary and, in fact, as I understood him, extremely undesirable that I should see the transcript. I acceded to this unusual request and heard argument on the basis that the transcript

Broome J

did contain expressions of intention uttered by the accused. However, the veil of secrecy was lifted when, after hearing this part of the argument, and after interposing the evidence-in-chief of the defence witness, Dr Percy Terespolsky, A the transcript was handed to me in Chambers. I read it. I was also handed in Chambers the original tape recorder, which is an exhibit before the Court, together with the original tape, some portion of which has been obliterated.

I listened to that. Later in the day I listened to another tape recorder, in respect of which another tape was available, that other tape being a copy of the full original taken prior to the B portion of the original being obliterated. The quality of the sound on the second recording, that is to say the copy, was, I thought, somewhat better than that of the first. Be that as it may, I listened to both recordings in Chambers and I read the transcript.

C Mr Mostert, in the course of his argument, contended that there were two main issues that the State had to prove in this trial.

(1)

Did the accused shoot the deceased? If so -

(2)

what was his intention at the time?

The second issue, he argued, was not really an issue at all. At any rate, that is how I understood his argument on this point.

He argued that if the accused did shoot the deceased then, D either, he must have intended to kill her or, if he had been acting in a state of automatism, this would preclude an adverse finding as to his intent and would, in some way which I did not quite follow, remove intent as an issue in the case.

So the argument proceeded. As intent was not a matter in issue, the evidence was really being led by the State to prove that it E was the accused who shot the deceased and, on the authorities which he quoted, he argued that evidence of an earlier expression of intention to commit an act is not admissible to prove the commission of that act.

The authorities to which he referred me, included Hoffmann and Zeffertt Evidence 3rd ed at 117:

F "One of the most difficult cases to reconcile with authority is R v Thomson [1912] 3 KB 19, in which the accused was charged with procuring abortion on a girl who later died. His defence was that she had done it to herself and he tendered evidence that, before the abortion, she said that she was going to do so and that she admitted having done it afterwards. Both statements were excluded on the ground that they were hearsay. This is undoubtedly true of the statement made after the G miscarriage, but the other authorities which have been discussed show that the statement made before should have been admissible to prove her intentions. Wigmore's comment on Thomson's case was that it is strange that in this day and generation an English Court can be so uninformed upon the principles of the law of evidence..."

the judgment with which, Hoffmann says, "... it is difficult to disagree". Then comes the passage:

H "It is not good enough merely to remark that the weight of English authority is against the use of statements of intention to prove the commission of an act in criminal cases, but the position is different in civil suits..."

The learned author then proceeds to discuss the case.

I was referred to Schmidt Bewysreg 1st ed at 375, to a sentence which reads:

"'n Punt waaroor daar nog nie eenstemmigheid bestaan nie is in welke mate 'n persoon se verklaring dat hy bedoel om iets te doen toelaatbaar is as bewys dat hy dit wel gedoen het."

Broome J

The learned author then proceeds to refer to a number of other cases. Next I was referred to the passage in what used to be Gardiner and Lansdown, which is now Lansdown and Campbell SA Criminal Law and Procedure vol 5 at 822:

"A related problem to that just discussed, and one to which no A clear answer can be given, concerns the admissibility of evidence of a person's statements of his intention to do an act, tendered to prove not his intention, but the fact that he did the act."

The learned authors then discuss a number of cases including Blom's to which I will refer later, and Apter's case, to which I will refer later. In referring to R v Blom 1939 AD 188, Mr B Mostert drew my attention to the passage at 200. This dealt with a statement made by the deceased of her planned or intended movements at the relevant time, and that evidence was given by the State witness Elsa Marais. The question of law was reserved as to whether the admission of the evidence given by Elsa Marais as to the conversations she had had with the C deceased was improper and thereby prejudiced the accused in his defence. What STRATFORD CJ had to say at 200 is simply this:

"Assuming that the evidence in question is inadmissible, I find, in relation to it, the following passage in the judgment."

He then proceeds to quote a passage in the judgment of the Court in which it is...