S v Kok

• Jurisdiction: South Africa
• Judgment Date: 22 September 1997
• Citation: 1998 (1) SACR 532 (N)

S v Kok
1998 (1) SACR 532 (N)

1998 (1) SACR p532

Citation	1998 (1) SACR 532 (N)
Court	Natal Provincial Division
Judge	Combrinck J
Heard	September 1-5, 8-10, 1997; September 11, 1997
Judgment	September 22, 1997
Counsel	J E Hewitt and R Mossop for the accused; N J Van Zyl for the State

Flynote : Sleutelwoorde

Evidence — Admissibility — Statements made by accused during enquiry into his mental condition in terms of ss 77, 78 and 79 of Criminal Procedure Act 51 of 1977 — Exceptional admission of such evidence in terms of s 79(7) — Term 'mental G condition' in s 79(7) to be restrictively interpreted, to refer only to 'mental illness or mental defect' as contemplated in ss 77 and 78 of Act-'Mental illness or mental defect' in turn referring only to pathological condition — Where defence ultimately raised being lack of criminal capacity by reason of non-pathological factors (such as alcohol, drugs or provocation), H statements made by accused during enquiry not admissible in terms of s 79(7), not only because of restricted meaning of term 'mental condition', but also because enquiry itself was in that event irrelevant to defence raised — Defence in casu (of 'sane automatism') based on 'mental illness', falling within ambit of term 'mental condition', so that evidence of statements made by accused during enquiry being admissible.

I General principles of liability — Criminal capacity — Onus of proof — Where defence raised being absence of voluntariness of conduct (in casu 'sane automatism') onus resting on State to prove that act committed by accused was accompanied by his will — However, State being assisted by natural inference that, in absence of exceptional circumstances, sane J persons engaging in conduct which ordinarily gives rise to criminal liability

1998 (1) SACR p533

do so consciously and voluntarily — Necessary for defence to lay proper basis to upset this inference. A

General principles of liability — Criminal capacity — Sane automatism — Proof of — Conflicting views of expert psychiatrist witnesses — Not function of court to determine which of conflicting views to be preferred — Expert evidence in such case not being of vital importance, however, as Court itself to determine on evidence whether defence established. B

Trial — Mental state of accused — Enquiry in terms of ss 77, 78 and 79 of Criminal Procedure Act 51 of 1977 — When appropriate — Enquiry only appropriate where 'mental illness or mental defect', as contemplated in ss 77 and 78, being raised or suspected by Court — 'Mental illness or mental defect' referring to acknowledged pathological condition — Enquiry C not permissible where accused at outset raising defence of lack of criminal capacity by reason of non-pathological factors (such as alcohol, drugs or provocation).

Headnote : Kopnota

The accused, a superintendent in the South African Police Service, was charged with two counts of murder (counts D 1 and 2) and a count of attempted murder (count 3). The deceased in counts 1 and 2 were a husband and wife respectively and the complainant in count 3 was their son. The deceased in count 2 had successfully sued the accused's wife in a small claims court, for the return of goods valued at R600, and on the day of the incident in casu E the messenger of the court had arrived at the accused's home to make an inventory of property there, with a view to an attachment to satisfy the judgment. The accused was not present at the time, and when he was informed telephonically of the messenger's arrival and of the reason therefor, he became visibly upset. He proceeded to his home, where he found his wife and son in a state of great agitation, and then proceeded to the office of the unit he commanded, where he removed several firearms, cartridges, and other articles of military origin from a safe. Thus F armed, he proceeded to the home of the deceased, where he shot and killed the two deceased (and their dog) and attempted to shoot also their son. The boy managed to escape, however. The accused testified that he had a very incomplete recollection of events at the deceased's home. He could remember the opening verbal exchange between himself and the deceased in count 2, upon his arrival at the house, but could recall in addition mere unconnected G impressions of further events (for example, that he had seen people as mere silhouettes, that he had fired shots, and that he had encountered the deceased's neighbour as he left the house).

The accused was referred for psychiatric observation in terms of Chapter 13 (ss 77, 78 and 79) of the Criminal H Procedure Act 51 of 1977. During his trial thereafter he raised the defence that at the time of the shooting incident he had suffered 'a dissociative behavioural re-enactment episode (sane automatism)', caused by major depression and post-traumatic stress syndrome. That defence was based on the evidence of one Dr F, a psychiatrist who had examined the accused, and to whom the accused had given an account - which corresponded with his I abovementioned evidence during the trial - of what he could remember about the shooting incident. The State called one Dr D, who had also interviewed the accused, but to whom the accused had given a far more detailed and coherent account of what had happened prior to, during and after the shooting incident. Dr D formed the opinion that the accused had not suffered mental impairment to the extent necessary to sustain his defence (although he agreed that the accused's criminal capacity J

1998 (1) SACR p534

A had been diminished). When Dr D sought in his own evidence to repeat what the accused had told him, in order to substantiate his opinion, the defence objected to the admissibility of that evidence on the basis of s 79(7) of the Act.

Held, that the exception contained in s 79(7), which rendered admissible evidence of any statement made by an B accused during an enquiry in terms of Chapter 13 'to the extent to which it may be relevant to the determination of the mental condition of the accused', had to be restrictively interpreted. The term 'mental condition' referred only to a 'mental illness or mental defect', as contemplated in ss 77 and 78 of the Act; and those concepts, in turn, referred C to cases where the accused's conduct was caused by an acknowledged pathological abnormality. They did not refer to cases where an accused's brain had become dysfunctional because of external (non-pathological) factors, such as alcohol, drugs or provocation.

Held, further, that where an accused (at the outset) raised a defence of this type of non-pathological condition, he could not be referred for observation by a court in terms of Chapter 13 of the Act, because such referral was D dependent on a 'mental illness or mental defect' being raised or suspected by the Court. In the vast majority of cases, however, the Court had no idea of what possible mental illness or defect the accused might have been suffering from or, for that matter, whether he had suffered from a non-pathological condition. That was the task of the psychiatrist conducting the enquiry.

E Held, however, that if the defence thereafter raised at the trial was that the accused lacked criminal responsibility by reason of non-pathological factors, such as alcohol, drugs or provocation, any statements made by him during the enquiry in terms of Chapter 13 of the Act would not be rendered admissible by the exception in s 79(7) of the Act. This followed not only because of the restrictive meaning to be afforded the term 'mental condition', as aforesaid, F but also because the enquiry itself was (in that event) irrelevant to the defence raised. The accused should never have been referred for observation in the first place.

The dicta in S v De Beer 1995 (1) SACR 128 (SE) at 133A - D and 134I followed; the dicta in S v Leaner 1996 (2) SACR 347 (C) at 357C - J and 358H not followed.

G Held, further, that major depression and post-traumatic stress syndrome, on which the defence in casu was based, were both 'mental illnesses', according to the evidence of Dr F, and therefore fell within ambit of the term 'mental condition' as used in the exception in s 79(7).

Held, therefore, that evidence of the statements made by the accused to Dr D, during the course of their interview, was admissible.

H Held, further, that where the defence of sane automatism was raised, it was not the Court's function to find which of two opposing psychiatric opinions was to be preferred. However, psychiatric evidence was not of such vital importance in such a case, because at the end of the day it was for the Court to decide on the evidence whether the defence had been made out.

The dictum in S v Harms 1965 (2) SA 340 (A) at 365B - C followed.

I Held, further, that where the defence raised by an accused was the absence of voluntariness of conduct, the onus rested upon the State to prove that the act committed by the accused was accompanied by his will. However, the State was assisted by the natural inference that, in the absence of exceptional circumstances, sane persons who engage in conduct which would ordinarily give rise to criminal liability do so consciously and voluntarily. It was J necessary for the defence to lay a proper basis to upset this inference.

1998 (1) SACR p535

Held, further (on the facts) that the accused had failed to upset the natural inference that his conduct during the A shooting incident was conscious and voluntary.

Held, therefore, that the accused had to be convicted as charged, on all three counts.

Case Information

Trial before a Judge and Assessors in a Provincial Division (on circuit). B

J E Hewitt and R Mossop for the accused.

N J van Zyl for the State.

Cur adv vult.

Postea (September 22). C

Judgment

Combrinck J:

On the evening of 13 January 1997, Mr and...