S v Kavin

• Jurisdiction: South Africa
• Judge: Irving Steyn J
• Judgment Date: 28 October 1977
• Citation: 1978 (2) SA 731 (W)
• Court: Witwatersrand Local Division

Irving Steyn J:

Before commencing judgment I should like to express my appreciation to my learned assessors for having been so willing to work, and to work very hard, since the adjournment yesterday in order to enable us to deliver this judgment today. Probably the main motivating reason for delivering judgment today is the fact that, if we did not deliver it today, this Court could not be reconstituted for at least the following C three weeks. We realise that would have caused additional suspense to the accused, amongst others, and therefore we worked until now in order to be able to deliver this judgment although we should obviously have liked a longer time to consider the matter. In the circumstances we have done the best we could and without the assistance of my learned assessors I D certainly would not have been able to deliver this judgment, which I may say is the joint one of all three of us.

The accused in this matter is charged on four counts, three of them being murder and one being attempted murder. In the first count it is alleged that on 7 June 1977 and at Lower Houghton in the district of Johannesburg the accused wrongfully and intentionally killed and murdered Denise Kavin, E a white female. (I may state that that was the wife of the accused.) In the second count it is alleged that on the same date and at the same place he killed and murdered his daughter Adele Dawn Kavin. In the third count it is alleged that on the same date and at the same place he wrongfully, unlawfully and intentionally killed and murdered his son, Lance J Kavin. F In the fourth count it is alleged that at the same time and at the same place he wrongfully and intentionally attempted to kill and murder his remaining child Debbie Kavin.

The trial commenced and proceeded under the new Criminal Procedure Act 51 of 1977. At the commencement of the trial, on Monday 17 October 1977, G learned counsel for the State, Mr Von Lieres, informed the Court that s 79 (4) of the new Criminal Procedure Act 51 of 1977 had not yet been complied with and requested an adjournment until 2 pm so that the provisions of this section could be complied with. When the Court reassembled at 2 pm, the accused was called upon to plead but, in view of the nature of the defence, Mr Horwitz, who appeared on his behalf, H formulated a plea on behalf of the accused which the accused thereupon confirmed. I shall refer to the nature of the plea in a moment but, for the purposes of the trial, a plea of not guilty to all four of the counts mentioned in the indictment was entered.

After my learned assessors were sworn in, Mr Horwitz referred us to exh A, which is the report referred to in s 79 (4) of Act 51 of 1977, and which was signed by the three psychiatrists concerned. It reads as follows:

"Section 79 clause 4A

A.

Description of the nature of the enquiry:

Answer:The three psychiatrists:

Irving Steyn J

1.

Prof W Bodemer

2.

Dr R Garb

3.

Dr C Shubitz

separately and independently examined and reported on the accused.

The nature of the enquiry covered chronologically the following periods:

(a)

From 9.6.77 - 4.8.77 at the Weskoppies A Hospital by Prof Bodemer.

(b)

For a period of 6 hours at the Fort Prison, Johannesburg, on 17.9.77 and 1.10.77 by Dr R Garb.

(c)

By Dr C Shubitz at the Brixton Police station on the evening of Wednesday 9 June 1977 for two hours.

At the Weskoppies Mental Hospital on 18 June 1977 for three hours.

At a medico-legal conference B held at Weskoppies Mental Hospital. At a routine conference conducted by Prof Bodemer for about one and a half hours on 1 July 1977.

A psychiatric assessment was the purpose of the interviews.

B.

Severe reactive depression super-imposed on a type of personality disorder displaying immature and unreflective behaviour. In the C opinion of Dr Shubitz and Dr Garb it produced a state of BSdissociation.

C.

Yes he can make a proper defence and understand the proceedings.

D3 (a)

In the opinion of Dr Shubitz and Prof Bodemer the answer is - the accused could appreciate the wrongfulness of his act. In the opinion of Dr Garb there is uncertainty.

(b)

All three psychiatrists agree that he could not act in accordance with an appreciation of the wrongfulness of his act.

D We base this opinion on the basis of his progressive depression. We regard him therefore as not being criminally responsible for the acts in question (as laid down in s 78 (1)).

Signed by Prof W Bodemer, Dr R Garb and Dr C Shubitz."

Certain admissions were also handed in by consent as exh M. I do not think I need read that exhibit because, as a result of the admissions therein E contained, it became common cause that the accused did not deny either having killed the three members of his family referred to in the first three counts or that he attempted to kill his daughter mentioned in the fourth count. Exh M further refers to the post mortem reports on the three deceased and also to the medical examination of the complainant in count 4, and it also discloses the fact that the shots were fired as follows: F the shot fired by the accused and which killed his wife was fired from a distance of more than 30 cm; the shots fired at Adele, his daughter: one was fired from a distance of more than 30 cm, and a second shot was fired from within 30 cm; the shots fired at his son Lance Kavin: the first was an absolute close-up shot and the second was fired from within 30 cm.

G In order to understand not only the plea tendered on behalf of and by the accused, but also what exh A means, it is necessary to refer to some of those sections of Act 51 of 1977 which have replaced ss 27, 28 and 29 of Act 38 of 1916. The sections relevant to this enquiry are ss 78 and 79. I shall read the relevant portions of s 78. They are the following:

"78 (1) A person who commits an act which constitutes an offence and who H at the time of such commission suffers from a mental illness or mental defect which makes him incapable -

(a)

of appreciating the wrongfulness of his act; or

(b)

of acting in accordance with an appreciation of the wrongfulness of his act, shall not be criminally responsible for such act.

(2) If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of s 79.

Irving Steyn J

(3) if the finding contained in the relevant report is the unanimous finding of the persons who under s 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.

A (4) If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under s 79 enquired into the mental condition of the accused.

(5) Where the said finding is disputed, the party disputing the finding B may subpoena and cross-examine any person who under s 79 enquired into the mental condition of the accused.

(6) If the court finds that the accused committed the act in question and that he at the time of such commission was by reason of mental illness or mental defect not criminally responsible for such act, the court shall find the accused not guilty by reason of mental illness or mental defect, as the case may be, and direct that the accused be detained in a mental hospital or prison pending the signification of the decision of the State President.

C (7) If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused."

D Those are the relevant sub-sections of s 78. In terms of s 78 (2), to which I have just referred, the provisions of s 79 were applied in the instant matter and the relevant portions of s 79 read as follows:

"79 (1) Where a court issues a direction under s 77 (1) or s 78 (2)...