S v Kalogoropoulos

• Jurisdiction: South Africa
• Citation: 1993 (1) SACR 12 (A)

S v Kalogoropoulos
1993 (1) SACR 12 (A)

1993 (1) SACR p12

Citation	1993 (1) SACR 12 (A)
Court	Appellate Division
Judge	Botha JA
Heard	November 13, 1992
Judgment	November 30, 1992
Counsel	G Bizos SC (with him EA Limberis) for the appellant; KPF Lawlor for the State

Flynote : Sleutelwoorde B

General principles of liability — Criminal capacity — Temporary non-pathological incapacity — Accused required in evidence to lay factual foundation, sufficient at least to create reasonable doubt on that point — Ultimately for Court to decide accused's criminal reponsibility for actions, having regard to expert evidence and to all facts of case, C including nature of accused's actions during relevant period.

Appeal — Generally — Trial Court's evaluation of evidence — Verdict of trial Judge, being minority of Court, different from that reached by assessors — Scant reference to assessors' views in written judgment — Impression upon Court made by lay witnesses, findings of credibility and D reliability, and comment on expert evidence all recorded by trial Judge in first person singular — Court on appeal holding that trial Judge had failed to comply with duty to give reasons for decisions or findings of majority of Court on questions of fact — Could also not be assumed that assessors shared trial Judge's views as to credibility of witnesses — Appeal thus decided in light of evidence on record, but without regard to findings made by trial Judge. E

Headnote : Kopnota

An accused person who relies upon non-pathological causes in support of a defence of criminal incapacity is required in evidence to lay a factual foundation for it, sufficient at least to create a reasonable doubt on that point. It is, ultimately, for the Court to decide the issue of the F accused's criminal responsibility for his actions, having regard to the expert evidence and to all the facts of the case, including the nature of the accused's actions during the relevant period.

The appellant had been charged in a Local Division with (1) murder, arising out of the killing of his business partner, M; (2) murder, in respect of the killing of his domestic employee, D; (3) attempted murder, G in respect of the wounding of his wife, DK; and (4) attempted murder, in respect of the wounding of his partner's wife, C. The appellant had suspected his wife of conducting an affair with his partner and, armed with a revolver and after consuming large quantities of alcoholic liquor, shot M, DK and C at the premises where the two couples conducted their business undertaking. He thereafter drove home, armed himself with a H pistol, shot the family dog, went to find D in her room and shot her.

His defence to the charges was that, owing to the vast quantity of liquor he had consumed and the provocation to which he had been subjected, he had been unable to (a) form the intention required to commit the alleged crimes; (b) appreciate the wrongfulness of his actions or act in accordance with such appreciation; and (c) engage in any purposeful I conduct. The trial Judge and assessors were unanimous in their verdict of murder in respect of the death of D. As to the other counts, it was the view of the trial Judge that the appellant should be convicted of murder in respect of the death of M, of attempted murder in respect of DK and of assault with intent to do grievous bodily harm in respect of C; whereas it was the view of the assessors, the majority of the trial Court, that the appellant be convicted of culpable homicide of M and of common assault of J DK and C.

1993 (1) SACR p13

A On appeal the issue was whether the evidence before the trial Court had warranted its rejection of the appellant's defence of lack of criminal capacity. In the 90-page judgment delivered by the trial Judge, the assessors' views were referred to only on the last two pages, and then only in three sentences. Furthermore, when dealing with the impressions upon the Court made by lay witnesses, in making findings of credibility B and reliability and when commenting on the expert evidence of the psychiatrists who gave evidence for the State and defence, the trial Judge wrote in the first person singular.

Held, that it was clear that the trial Judge had failed to comply with the duty to give reasons for the decisions or findings of the majority of the C Court upon questions of fact.

Held, further, that the Court on appeal could not assume, in the light of their verdict, and the evidence on record, that the assessors, being the majority of the Court a quo, had shared the views expressed by the trial Judge.

Held, accordingly, that, in the circumstances, the Court on appeal had to consider the appellant's defence afresh in the light of the evidence on D record, but without having regard to the credibility findings made by the trial Judge.

The Court re-examined the evidence, rejected the appellant's defence of lack of criminal incapacity and confirmed the convictions and sentences.

Case Information

Appeal from a conviction in the Witwatersrand Local Division (Gordon E AJ). The facts appear from the judgment of Botha JA.

G Bizos SC (with him E A Limberis) for the appellant referred to the following authorities: S v Masuku and Others1985 (3) SA 908 (A); R v Majerero and Others1948 (3) SA 1032 (A); R v Van der Walt1952 (4) SA 382 (A); R v Huebsch1953 (2) SA 561 (A); S v Immelman1978 (3) SA 726 (A); S v Hlolloane1980 (3) SA 824 (A); S v Nqoma1984 (3) SA 666 (A); R v Manda1951 (3) SA 158 (A); S v Chretien1981 (1) SA 1097 (A); S v Van Vuuren F 1983 (1) SA 12 (A); S v Campher1987 (1) SA 940 (A); S v Lesch 1981 (1) SA 814 (O); S v Bailey1982 (3) SA 772 (A); S v Arnold1985 (3) SA 251 (C); J R du Plessis 'The Ambit of the Extension of Ontoerekeningsvatbaarheid to the Defence of Provocation - 'n Strafregwetenskaplike Development of Doubtful Practical Value' (1987) 104 SALJ 539; R v Pethla1956 (4) SA 605 (A); S v De Blom1977 (3) SA 513 (A); S v Werner1981 (1) SA 187 (A); A St G Q Skeen 'Chretien: A Riposte and Certain Tentative Suggestions for Reform' (1982) 99 SALJ 547; S v Baartman 1983 (4) SA 395 (N); S v De Jager1965 (2) SA 612 (A); S v Ivanisevic and Another1967 (4) SA 572 (A); S v Pillay1977 (4) SA 531 (A); S v Holder1979 (2) SA 70 (A); R v Dhlumayo and Others1948 (2) SA 677 (A); S v Zinn1969 (2) SA 537 (A); S v Gool H 1972 (1) SA 455 (N); S v Sparks and Another1972 (3) SA 396 (A); S v Els1979 (3) SA 413 (RA); S v Nxumalo1982 (3) SA 856 (A).

K P F Lawlor for the State referred to the following authorities: R v Mapumulo and Others1920 AD 56; Ex parte Neethling and Others1951 (4) SA 331 (A); R v Harris1965 (2) SA 340 (A); S v De Jager and Another1965 (2) SA 616 (A); S v Ndhlovu (2)1965 (4) SA 692 (A); S v Sigwahla1967 (4) SA 566 (A); S v Ivanisevic1967 (4) SA 572 (A); S v Pillay I 1977 (4) SA 531 (A); S v Laubscher1988 (1) SA 163 (A).

Cur adv vult.

J Postea (30 November 1992).

1993 (1) SACR p14

Judgment

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...