S v Shackell

• Jurisdiction: South Africa
• Judge: Nienaber JA, Olivier JA and Brand AJA
• Judgment Date: 30 May 2001
• Counsel: C van Schalkwyk for the appellant. T Jeena for the State.
• Hearing Date: 17 May 2001
• Court: Supreme Court of Appeal

Brand AJA:

[1] During the early hours of 24 September 1997 and at the Brighton Beach police station in Durban, Sipho Shozi ('the deceased') was fatally wounded by a gunshot from a firearm which the appellant held in his hand at the time. In the event, the appellant was arraigned G for murder in the Durban and Coast Local Division before Kondile J and two assessors. He pleaded not guilty. His explanation that the shot went off by accident was rejected and he was convicted of murder and sentenced to 20 years' imprisonment.

[2] His appeal to this Court, with the leave of the Court a H quo, is against both the conviction and the sentence. Regarding the conviction, the appeal is based on a special entry relating to an alleged irregularity in terms of s 317 of the Criminal Procedure Act 51 of 1977 as well as on the merits.

Background I

[3] The background facts are for the most part common cause. At the time of the tragic incident, the appellant was a reservist in the South African Police Services, stationed at Brighton Beach police station. During the night of 23 and 24 September 1997 and while the appellant was on duty, the deceased was temporarily detained in one of the cells at J

Brand AJA

the station. According to the investigating officer in the A case, Inspector Gouws, the deceased was detained for his own protection as he was mentally deranged. When the appellant returned to the station at the end of his shift the deceased was causing a disturbance in his cell. The appellant went, without any comment, from the charge office where other policemen were also present, to the cells. Shortly thereafter the policemen in the charge office heard a shot. The B appellant returned to the charge office, apparently in a state of severe shock. He handed over his service pistol to one of his colleagues with the words 'I shot the guy'.

[4] The other policemen immediately went to the deceased's cell. They found the solid door of the cell open but the grille door behind it locked. The deceased was lying dead in a pool of blood, behind the C locked grille door. The post-mortem examination performed by a forensic pathologist, Dr Naidoo, revealed that the deceased was instantaneously killed by a gunshot wound through his mouth which ultimately transected his brain stem.

[5] Inspector Gouws interviewed the appellant about three hours D after the event. His observation was that the appellant was still in a state of shock. He noticed that two of the appellant's shirt buttons were torn off. He asked the appellant whether he had anything to say whereupon the appellant indicated certain scratch marks to his chest area. Gouws did not take any particular note of the these scratch marks but accompanied the appellant to the district surgeon who examined him E and completed a standard observation form, known as form J88. To this form J88 which was handed in at the trial as exhibit D, I will presently return.

[6] The only person who can explain why and how the fatal gunshot was fired at the deceased, is the appellant. According to his testimony at the trial he heard a commotion from the deceased's cell. He decided F that the deceased might need help and went to his assistance. He found the solid door of the deceased's cell standing open but the grille door behind it locked. The deceased was acting like a mentally deranged person, running into the walls of his cell, shouting inappropriate threats and proclaiming that he was God Almighty.

[7] While the appellant was standing next to the grille door the G deceased suddenly approached him. He grabbed the appellant's shirt front through the bars with both hands and pulled the appellant towards himself and against the door with great strength. His service pistol, so the appellant testified, was in a holster at his side. Suddenly the deceased tried to grab the pistol from its holster. The appellant H succeeded in wrenching his pistol away from the deceased which he thereupon held behind his back. At the same time the deceased continued to pull the appellant by the front of his shirt against the bars of the door. The appellant explained that he was unable to resist with the one free hand only and that he instinctively brought his other hand, in which he held his pistol, forward in order to push himself away from I the bars with both hands. As he stepped backwards he tripped and stumbled. In the process a shot unexpectedly went off which struck and killed the deceased. The appellant accepted that the pistol must have been cocked with its safety catch in an off position. As to how it came about that he was carrying a cocked and unsafe firearm in his holster, the appellant could only J

Brand AJA

speculate that he must have forgotten to A uncock the weapon and make it safe after he attended to an alarm call earlier that night.

[8] As to the scratch marks to his chest area referred to by the investigating officer and noted by the district surgeon, Dr Damerell, in exhibit D, the appellant's testimony was that these marks were caused by the deceased during their struggle when two of his shirt buttons were ripped off. B

[9] Dr Naidoo, the forensic pathologist, who was called primarily to testify about his post-mortem examination on the body of the deceased, was referred by the State advocate to exh D and asked to comment on the contents thereof. The response of the appellant's counsel was that he had no objection to Dr Naidoo referring to the C document subject to proper proof of the document in due course. He made it clear, however, that the exact content of exh D was not admitted.

[10] The only relevant clinical findings noted in exh D are: 'scratch marks upper chest' and 'slightly tender abdomen'. Part of exh D consists of a diagram of the human body. With reference to the scratch marks on the appellant's chest the district surgeon drew three D parallel lines, which are slightly sloping but predominantly vertical, on both sides of the diagram of the chest.

[11] With reference solely to the diagram in exh D Dr Naidoo expressed the view that these scratch marks could 'possibly' have been self-inflicted. In support of this view Dr Naidoo relied on a E passage from an academic publication the relevant portion of which reads as follows:

'The following features assist in the recognition of self-inflicted incised injuries: (a) the cuts are usually superficial and rarely any danger to life, etcetera; (b) the incisions are regular with an equal depth at origin and termination, etcetera; (c) the cuts are usually multiple and often parallel. They avoid vital and sensitive areas, usually being drawn on F the cheeks, . . . , chest, etcetera. This is inconsistent with an attack by another person as the victim is unlikely to stand still to allow these multiple delicate and uniform injuries to be carefully executed.'

[12] Referring to this passage, Dr Naidoo placed particular emphasis on the fact that, according to the diagram in exh D, the G scratch marks on the appellant's chest were parallelly drawn. He cautioned, however, that his suggestion that the scratch marks might be self-inflicted could not be regarded as anything more than a mere possibility, particularly since the factual basis for his suggestion was a simple line drawing by another doctor without any indication as to the depth, spacing or exact location of the marks. The district H surgeon who observed the scratch marks and completed exh D, although available to the State, was deliberately not called as a witness. Nor was the matter taken up in any detail during the cross-examination, of the investigation officer, Gouws, or of the appellant himself. As a consequence, the exact nature of these scratch marks was never properly examined or established at the trial. I

[13] The Court a quo...