S v Ingram

• Jurisdiction: South Africa
• Judge: Hefer JA, Smalberger JA and Nienaber JA
• Judgment Date: 15 September 1994
• Citation: 1995 (1) SACR 1 (A)
• Hearing Date: 30 August 1994
• Counsel: M Hannon SC (with him M Witz) for the appellant Z H De Beer for the respondent
• Court: Appellate Division

Smalberger JA:

On the night of 31 March 1991 the appellant fatally shot his wife, Gillian Deborah Ingram ('the deceased'), at their home in Bryanston. Consequent thereon the appellant was indicted in the C Witwatersrand Local Division on a charge of murder. He raised the defence of non-pathological criminal incapacity. This defence was rejected by the Court a quo (Gordon AJ and assessors) and the appellant was found guilty as charged. He was sentenced to eight years' imprisonment, half of which was conditionally suspended. He now appeals with the necessary leave against both his conviction and sentence.

D The following facts are either common cause or not in dispute for the purposes of the present appeal. The appellant and the deceased were married in 1972. They had two teenage children, Dagny and Dylan (both of whom testified at the trial). The marriage was essentially an unhappy and tempestuous one. The deceased had an alcohol problem and periodically E formed liaisons with other men. She received treatment for alcoholism in 1988 and 1990 but without lasting success. By the time of her death she had reverted to her old drinking habits. When under the influence of liquor she frequently used to be abusive towards the appellant and the children. Her conduct towards the latter particularly distressed the F appellant. The children at times had to assist the deceased to bed because of her inebriated condition, using some measure of force when necessary. The appellant and the deceased were in the throes of protracted divorce proceedings although they still shared a common bedroom. Despite all their problems and marital friction the appellant still held out hope for a G reconciliation. He described their relationship as a 'love/hate' one.

At about noon on the day of the shooting the appellant and the children went to a barbeque at his parents' home, which was some distance away. The deceased, as was her practice, stayed at home. (This was due, at least in H part, to the strained relationships that existed between the appellant and the deceased and their respective parents-in-law). By that time the deceased already showed signs of intoxication. In the course of the visit to his parents' home the appellant consumed a considerable amount of alcohol. He drank regularly, and at times heavily, but apparently had a high tolerance to alcohol - in colloquial terms he could 'hold his liquor'. The appellant and the children eventually returned home at about 20:00.

I The sequence of events that occurred from the time of their return home until the shooting of the deceased is as follows. On their arrival the deceased was in her bedroom. She was under the influence of liquor. She eventually went to the kitchen where she and the appellant became involved in a heated argument. At that stage the children were in the lounge. They J heard crockery breaking in the kitchen. When the arguing

Smalberger JA

A stopped they went to the kitchen. By that time the appellant had gone outside with a drink (alcohol) in his hand. The children decided, after picking up the broken crockery, to take the deceased to her bedroom. She resisted violently and hurled abuse at them. They managed to drag her along the passage. As they passed the bathroom the appellant appeared. He pushed the deceased into the bathroom and tried to close the door behind B her. She put her hand between the door and the frame to prevent it from closing. The appellant did not persist with his attempt to shut her up in the bathroom. She managed to open the door. The children ultimately succeeded in getting her to the bedroom, using handcuffs for this purpose (a strategy successfully employed previously).

C The subsequent events appear from the following passage in Dagny's evidence:

'Then Dagny? - Then when we got her to the bedroom, the main bedroom, she wanted to go back to the kitchen and fetch cigarettes and a drink, so I said that I would go and I went and on the way that is when I saw that the safe door was open. I did not take any notice of that and I D went through to the kitchen and my dad was standing there drinking something. I did not speak to him and I fetched her cigarettes and I went back to the bedroom.

Court: What about the drink, did you fetch her a drink? - No. And well, then I was standing in the doorway and my mom and my brother were in E front of me and then my dad was behind me and he had his hands behind his back and he had like a strange look on his face.

Mr Hannon: Yes? - And so I said to my mom and my brother, you know, I tried to tell them that something was wrong but they could not hear me so I tried to tell them again and then I looked at my dad again and he F had the gun. And then he fired a shot and me and my brother ran. My mom sort of fell one way and we passed my dad and we ran to the office and then I phoned the police.'

After she telephoned the police the appellant came to the study. Her evidence proceeds:

'My dad came back and he was crying and he like took me and my brother G on his knee and he hugged us and he said: What have I done and he just kept repeating it.

Court: He said what? - What have I done, what have I done.

Mr Hannon: He kept repeating it, m'lord. - Over and over again.

Yes? - And he said something to the effect of: I could not stand what H she was doing to you anymore.

Yes. Was he crying - upset I think you said? - Ja, he was crying, shaking and he was crying a lot. . . .'

After a while the appellant made arrangements to take the children to their paternal grandparents. He drove them there. Later he handed himself over to the police. He was taken to a district surgeon in the early hours I of the morning. He was found to be under the influence of liquor and emotionally blunted. A blood sample was taken (this occurred some four hours after the shooting). The blood sample was later found to contain a concentration of alcohol of, 27 grams per 100 millilitre unit which would J ordinarily be indicative of someone well under the influence of liquor.

Smalberger JA

A When the appellant left home with his children the fatally injured deceased was left behind. The only other person on the premises was a certain Lovemore who worked for the appellant as a gardener. It is not clear from the evidence who telephoned for medical assistance. When the police arrived the paramedics were in the process of removing the deceased to hospital. She was still alive. An emergency operation was performed B upon her. Post-operatively her condition deteriorated and she died a few hours later. Her...