S v Kalogoropoulos

• Jurisdiction: South Africa
• Judge: Botha JA
• Judgment Date: 30 November 1992
• Counsel: G Bizos SC (with him EA Limberis) for the appellant KPF Lawlor for the State
• Hearing Date: 13 November 1992
• Court: Appellate Division

Botha JA:

This is a Greek tragedy, in which the dramatis personae are: A

Athanasius Kalogoropoulos, a 52-year old baker, the appellant;

Dafni, his wife, some 21 years younger;

Dimitra, his 13-year old daughter;

Macheras, his business partner and friend (but suspected by the appellant of having an affair with Dafni);

B Charitomeni, wife of Macheras;

Dora, housemaid in the appellant's home;

Julia, her cousin;

Stefanos, husband of Dafni's sister;

Stergiou, husband of the appellant's sister (and self-confessed erstwhile lover of Dafni).

C The scene alternates between the appellant's home in Craighall Park, Johannesburg, and a nearby supermarket run by the appellant and Macheras, assisted by Dafni and Charitomeni. The time is the afternoon of 16 February 1988. The appellant, on an errand to buy something for the shop, drives past his home and sees Macheras's car parked in the yard. He thinks that Macheras is visiting Dafni with improper intentions, and resolves to D question them on their return to the shop. Later he does this, but discreetly. The answers he gets make him believe that Dafni and Macheras are hiding the fact that they spent time together at the house earlier in the afternoon. The appellant goes to the house and questions Dora about visitors. Dora insists that no one visited the home during the afternoon. Then the appellant finds, on the ground outside the kitchen door, a number of cigarette stubs of the brand habitually smoked by Macheras. He now E believes that his suspicions are well-founded. He is overcome with jealousy and despair. He finds a bottle of vodka, half filled with the liquor, and gulps down all of it. He goes back to the shop. He has with him a revolver, which it is his habit to carry on him always. At the shop, he finds Dafni and Macheras in the small office of the business, drinking whisky. (It is now near the closing time of the shop, and it is the custom of the two couples to have drinks in the office at that time.) The F appellant pours himself a glass nearly full of whisky and drinks it down. He takes out the revolver and cocks it. He accuses Dafni and Macheras of having had sexual relations that afternoon. They deny it. A heated altercation ensues, lasting some time. In the course of it Dafni and the appellant swear at each other; the appellant threatens to shoot Dafni; Macheras moves towards the appellant, but is pushed back onto a chair; G Charitomeni enters; and the appellant waves the revolver in his hand to and fro, pointing it between Dafni and Macheras. A shot goes off, hitting Dafni and wounding her. As she falls to the floor, Charitomeni shouts: 'You have killed her!' Further shots are fired in rapid succession. Two of them strike Macheras in the chest, killing him. Another hits and wounds Charitomeni. The revolver is now empty. The appellant throws it down on the desk and leaves the office and the building, damaging the outside door in his exit.

H On to the next act of the drama. The appellant drives home and parks his car outside the house. He goes inside, opens the safe where the firearms are kept, and arms himself with a pistol. Dimitra is present. He asks her where Dora is, and is told that she is in her room, which is in an outbuilding at the back of a courtyard. The appellant goes into the yard, where the family dog playfully jumps against him. He shoots the dog, I firing two shots and fatally wounding it. In Dora's room he finds Dora and Julia. He tells Dora: 'I shoot you because I will not trust you again.' He fires two shots into her chest, killing her. He leaves the room, but returns after a short while and instructs Julia to go to the TV room in the house and to look after the children, explaining that he has killed Dafni and Macheras in the shop. He also asks Julia whether Dora is dead, and is told that she is. Back in the house, he makes telephone calls to a number of relatives, telling them that he has shot Dafni, Macheras and J Charitomeni. He drinks some whisky from a bottle.

Botha JA

A He takes a shotgun, loads it, and sits down with it on his lap. At some stage he fires a shot into the ceiling. Enter Stefanos, his wife and his father-in-law. The appellant threatens to kill them and aims the gun at them. Stefanos tries to take the gun away, but fails, the appellant holding on to it. A telephone call is received from the appellant's brother. The appellant tells him that he has killed Macheras. He also says to Stefanos: 'I killed George', referring to Macheras. On being asked why he did so, the appellant replies that he caught 'them' sleeping together B all afternoon on the sofa. He tells Stefanos that he also shot the maid and that he emptied the pistol on her (which is true). He offers to show Stefanos where he shot the maid, and they go into the courtyard. On seeing the dog, apparently dead, Stefanos declines to go further and they go back into the house. In the meantime all the other people in the house have C slipped out. Stefanos, at an opportune moment, while the appellant's back is turned, does the same. The police arrive and surround the house. After a while the appellant comes out, his hands in the air. He is arrested and taken away. The curtain falls.

The appellant was charged in the Witwatersrand Local Division before Gordon AJ and two assessors, as follows:

D Count 1: Murder - the killing of Macheras.

Count 2: Murder - the killing of Dora.

Count 3: Attempted murder - the wounding of Dafni.

Count 4: Attempted murder - the wounding of Charitomeni.

He was convicted and sentenced as follows:

Count 1: Culpable homicide - 5 years' imprisonment, to run concurrently E with the sentence on count 2.

Count 2: Murder - 8 years' imprisonment.

Count 3: Common assault - 2 years' imprisonment, to run concurrently with the sentence on count 1.

Count 4: Common assault - 2 years' imprisonment, to run concurrently with the sentence on count 1.

F An application to the trial Judge for leave to appeal against the convictions on counts 1, 2 and 4 and the sentences on all the counts was granted.

At the commencement of the trial, following upon the appellant's plea of not guilty on all the counts, a statement signed by the appellant and stating the basis of his defence was handed in in terms of s 115 of the Criminal Procedure Act 51 of 1977. The statement records the events of the G earlier part of the fateful afternoon and then continues, from the point when the appellant returned to the shop, found Dafni and Macheras drinking whisky, and he himself swallowed a glass of whisky, as follows:

'7.

The accused habitually carried a revolver on his person for security reasons. He drew the revolver and cocked it with the intention of frightening his wife into admitting that she had in fact spent time with the deceased at his home earlier that H afternoon.

8.

An altercation took place between the accused, his wife and the deceased. The deceased's wife, Charitomeni, came into the small office where the altercation was taking place at some stage.

9.

During the altercation the accused was shaking the cocked revolver at his wife, and a shot went off.

10.

I The deceased's wife exclaimed: "You've killed her!"

11.

The accused has no recollection of the events that may have occurred subsequent to this exclamation up to the time that he found himself as a patient at the Johannesburg Hospital in Parktown.

12.

The accused did not intend to shoot his wife, Dafni, nor to injure her, but merely frighten her to induce her to admit that the deceased was her lover.

13.

The accused says that, having suffered from retrograde amnesia, he J was

Botha JA

A informed when at the hospital and thereafter that he had committed the acts which have given rise to the charges against him.

14.

The events of 16 February 1988 were a culmination of numerous other provocative acts by the accused's wife who habitually and derisively referred to the 21 years difference in their ages; rejected him both B publicly and privately; spurned, ridiculed and taunted him with increasing intensity; and, knowing that he was jealous and deeply in love with her, fanned his jealousy by her conduct.

15.

The accused contends that due to the vast quantity of liquor which he consumed in a short period of time, more particularly having regard to the provocation referred to in para 14 above and (save in relation to the facts set out in paras 7, 8 and 9 above), the exclamation in C para 10 above, he was unable:

(a)

to form the intention required to commit the alleged crimes; and

(b)

to appreciate the wrongfulness of his actions or act in accordance with such appreciation; and

(c)

to engage in any purposeful behaviour.'

D In regard to this defence the trial Court heard the evidence of two psychiatrists, Dr B Jeppe, called by the appellant, and Dr M Vorster, called by the State. For the moment it will suffice to mention the tenor of their evidence in broad terms. (I shall consider it in more detail later.) Dr Jeppe and Dr Vorster were agreed that the appellant experienced a genuine amnesia as from the moment when the first shot was fired and E Charitomeni exclaimed 'you have killed her'. Dr Jeppe was of the view that as from that moment the appellant was 'totally unable to exert proper control over his actions' and that this condition subsisted when he shot Dora. Dr Vorster differentiated between the shooting in the office and the shooting of Dora. Her view was that in the office, more or less from the time the first shot was fired, the appellant was unable to act in accordance with an appreciation of the wrongfulness of what he was doing, but that when he left the office, he was once again 'in control', and that F he was not experiencing a 'loss of control' when he shot Dora.

It is now necessary to consider the basis upon which the trial Court...