S v MOSES 1996 (1) SACR 701 (C)

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S v MOSES 1996 (1) SACR 701 (C)

1996 (1) SACR p701

Citation Court Judge Heard Judgment Counsel

1996 (1) SACR 701 (C) Cape Provincial Division Hlophe J March 20, 1996 March 20, 1996 A D Maher for the accused at the request of the Court M J Stowe for the State

Annotations Link to Case Annotations

Flynote : Sleutelwoorde B General principles of liability - Criminal capacity - Non-pathological criminal incapacity - Accused murdering his homosexual lover after being informed by C lover after unprotected anal intercourse that lover had AIDS - Accused had history of poor control and anger and came from a dysfunctional family Accused hit the deceased with blunt instrument and then stabbed him - Deceased dying of injuries - Court holding that State had not proven beyond reasonable doubt that accused had the requisite criminal capacity at the time of the killing - Accused acquitted of murder. Headnote : Kopnota The accused was charged in a Provincial Division with murder. The only witness to the events in question was the accused, whose evidence was accepted by the Court. It appeared that the accused and the deceased were homosexual lovers. On the first occasion when the accused had penetrative intercourse with the deceased, the deceased revealed that he had AIDS. The intercourse had been unprotected and the E accused became extremely angry and picked up an ornament and hit the deceased twice on the head. He then stabbed him in the side with a small knife and went to the kitchen and returned with a large knife with which he cut the deceased's throat and wrists. He testified that he was so angry but he could realise what he was doing but could not stop himself. The accused had a history of poor control and anger and was susceptible to anger outbursts and violence. He came from a dysfunctional family and had been sexually abused by his father. F The Court accepted that the accused had no motive or reason to kill the deceased and the killing had clearly not been premeditated. On the night in question the accused was subject to extreme provocation and the killing itself was the crystallisation of a number of factors such as the suppressed anger relating to his dysfunctional family background and sexual abuse by his father. G The Court held that it was reasonably possibly true that the accused lacked criminal capacity at the time of the killing: although the accused might possibly have retained some measure of control over his actions by the time of the infliction of the final wound, the State had failed to prove beyond reasonable doubt that his control even at that stage was not significantly impaired. The accused was accordingly acquitted. H
D

Case Information Criminal trial on a charge of murder. A D Maher for the accused at the request of the Court. M J Stowe for the State. Cur adv vult. Postea (20 March 1996). Judgment Hlophe J: The accused, Mr Christopher Ralph Moses, aged 24, is indicted on two charges, namely murder and robbery. He pleaded not guilty to both. His plea statement in terms of s 115 of the Criminal Procedure Act 51 of 1977 was handed up in Court as exh A. He explained the basis of his defence. J
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I

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He admitted that he killed the deceased on 27 January 1995. He stated that he was extremely provoked by the deceased who told him that he (the deceased) had AIDS after they had unprotected anal intercourse. He was provoked to an extent that he lost control over his actions. Thus, the s 115 plea explanation raises provocation and more particularly non-pathological criminal incapacity as a defence.
B Regarding the robbery charge, the State conceded that on the totality of evidence before Court, it has not discharged the onus resting on it to prove beyond reasonable doubt that the accused committed the offence. Accordingly, Mr Stowe, who appeared for the State, indicated that the State would not be pressing for a conviction for robbery. The State also conceded that there was insufficient evidence to sustain a C conviction for theft, being a competent verdict for robbery in terms of the Criminal Procedure Act.

In our view these are proper and sensible concessions by Mr Stowe. No purpose would be served by pressing for conviction regarding the second charge.
D The facts giving rise to the killing of Gerhard Pretorius, the deceased, are most unusual. They come mostly from the evidence of the accused. Gerhard was killed by the accused on the night of Friday 27 January 1995 at his flat in Sea Point. His body was discovered by Mr Hawtey, the caretaker at Selbourne Flats, Rocklands Road, Sea Point, on Tuesday 31 January 1995. He testified that he was summoned by Ms E Cavaleiro, who worked with the deceased at Duns Restaurant in Hout Bay. Mr Hawtey had the key to the deceased's flat and they proceeded thereto. They opened the flat and discovered his naked body lying on his bedroom bed. In his words, it was 'a terrible atmosphere. It was hot . . . there was a strong smell . . . and the lounge was untidy'. Thereafter they summoned the police who arrived shortly at the scene. F

The following facts are common cause: (1) That the accused and the deceased were homosexual lovers; (2)
G

that the deceased was HIV positive, even though there was no evidence that he had full blown AIDS; that the post-mortem examination on the corpse of the deceased was performed by Professor Knobel on 1 February 1995;

(3)

(4) (5)

that the deceased suffered no further injuries subsequent to the infliction of the wounds until such time as an autopsy was carried out on the deceased; and that the deceased died as a consequence of an incised wound of the throat through the larynx and an extensive head injury and the consequences thereof. H

The accused gave a detailed account of his family situation and upbringing. He told the Court that he is one of the seven children born of the family, that he matriculated and after matriculating he obtained a bursary to study law and an entrance at the University of the Western Cape. He could not continue with

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his studies after matriculating I because both of his sisters fell pregnant and he had to go to work as a result thereof and support his family. He told the Court that when he was young he was "daddy's little boy, his favourite in the family'. He explained this by saying 'I used to be available when my father wished to satisfy himself sexually'. He testified J
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A that he was in standard two when it all started. After the first incident he got everything that he wanted. He got toys, he got money, etc. He told the Court that he did not report these terrible incidents to his mother and the reason for that was that he was scared and he did not want to embarrass his father. He also thought that if he mentioned this to his mother and after the mother confronted his father the father would B then assault his mother as he had assaulted her before. He also gave an account of other incidents that he remembered when his father assaulted his mother. In one incident the father threw a plate of food at his mother. In another he used a metal bowl to hit his mother. On two occasions the mother was assaulted and this resulted in miscarriages. The accused himself was also assaulted by his father. He testified that the C father used to pick him up and then throw him to the ground. His father also used to assault the accused's eldest brother, who was not his son but an illegitimate child of the mother. Mr Moses also told the Court that he became a child prostitute when he was in standard three and practically never stopped until he started working. His mother was not aware of this. The father also tried to sexually molest the accused's younger D sister and he also tried to have sexual intercourse with his aunt, that is his mother's younger sister.

The accused gave evidence of how he felt when his father died. He told his mother that his father did not deserve the respect to be buried for what he had done to him. He felt that he was betrayed by his father. He was angry and felt like running away from home E so that nobody could see him. His anger was strong. He could not even cry at his funeral. He hated him more than anything else because he then had to clean up the mess. He had to bury his father despite that his father had sexually abused him when he was young. After his father died he then told his mother that he was sexually abused by him when he was young. F Mr Moses also gave evidence about his sexual orientation. It is no secret that he is a homosexual. He told the Court that when he was 21, he told his mother that he is gay. His mother was very upset about this and she told him to leave the common home and never come back again. The accused was very angry and he felt that he had sacrificed his future for his family. Thereafter he went into a rage and literally smashed his G mother's house. He trashed his mother's TV, crockery, the stove, the fridge, the washing machine, he pulled down the curtains, etc. He also tried to cut his wrists as he did not feel living anymore and he felt that his family did not appreciate what he had done for them. The police were called to the scene and they arrived after he had already trashed his mother's house. The accused also told the Court of another incident H also involving an anger outburst. This was when he smashed his own car, the Toyota Cressida. His evidence was that he had an argument with his sister and he threw a plate of food on her and took a knife and the sister ran away and closed the door behind her. He was so upset thereafter, he took his car and drove at a speed that was excessive in the circumstances. The result was that the car was a write-off. I The accused told the Court that after he was kicked out of the family house by the mother, he had nowhere to stay. From time to time he used to sleep in the streets and at times he was accommodated at his place of work. At the time of the killing of Gerhard he was staying in a shack at Mandela J
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A Squatter Camp near Hout Bay. He stated that he was very unhappy about living in a shack and he felt that there was definitely space for him at his home where he was kicked out. He had no transport of his own. At times when he was depressed he felt like setting the shack alight and killing himself. He was very unhappy and he even started hating his mother for throwing him out of the house and he envied his brothers B and sisters for having everything that he also deserved. The accused gave evidence about his rather erratic working record and about the fact that he was generally an unhappy person who was depressed, whose sex drive was non-existent, he did not want to worry about anybody. He told the Court he got agitated with waiters who picked up wrong orders, etc. He was fairly irritable and short-tempered and he lied to C colleagues at work about where he was staying.

The accused testified further that he met the deceased at the beginning of November 1994. They first met at Dirty Dicks Restaurant and they developed a homosexual relationship. It was physical to a point. They had casual contact but there was no physical penetration. He said he was happy about this relationship. The deceased D showed love and concern and he saw the deceased as a way out of his past. To him the deceased was an ideal partner who was to help him get away from the things that had destroyed him in the past. The deceased was busy re-constructing him. He thought that after meeting the deceased he had a new foundation. The deceased indicated to the accused that he wanted to go overseas at the end of 1995 or beginning of 1996. E Then the accused proposed to buy the car from him. He had no money at the time. The deceased was willing to sell the car to him and the accused in turn was going to sleep with him. To that extent the accused and the deceased signed an agreement of sale in terms of which the car was sold to the accused for R12 000. The deceased also F re-registered his red VW Fox. It was registered locally in Cape Town. He confirmed in Court when he gave evidence that it was his writing that appeared on the agreement of sale (exh J) and next to the word 'buyer' was his signature. Next to the word 'seller' was the deceased's signature. He stated that the deceased wanted it to look as if the car was sold to the accused to avoid any suspicion by the registration G office and the apparent purchase price of R12 000 was decided on by the deceased. The deceased was keen on penetrating sex. The accused's evidence was that he wanted to ease into it. By that we understood him to be saying he did not want to immediately embark on penetrating sex. On the night in question both the accused and the deceased went to the deceased's flat. The accused said that he went to the H deceased's flat in order to provide the deceased with his part of the deal, that is to go to bed with him. At the deceased's flat they sat for about half an hour in the lounge and had drinks. The deceased had liquor and the accused had a soft drink. They sat, kissed, hugged and caressed each other. Thereafter they proceeded to the bedroom. They undressed each other in the bedroom. They rolled over the bed and started making love. The deceased penetrated him. He did not want to be penetrated on the I first occasion and he told him about that. He ultimately agreed to being penetrated because he did not want to disappoint the deceased as he wanted to fulfil his promise about the car. He described this as having been a painful experience to an extent that he J
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A pushed the deceased off. He noticed that the deceased was unhappy about being pushed off and, in order to mollify the deceased, he suggested to the latter that he should penetrate him. The deceased refused to be penetrated and said that it would be painful. Upon pressing the deceased further, the deceased suddenly blurted out that he had AIDS. He seemed surprised that it had slipped out and he covered his mouth with his hand as if he said something that he accused was not supposed to hear. B

The accused gave evidence that when the deceased suddenly said that he had AIDS, he did not take him seriously at first but then he looked at his facial expression and the fact that he covered his mouth with a hand as if he had said something that was not supposed to be heard by the accused. This was just after they had had unprotected anal intercourse. Thereafter the accused became very angry as he thought he would die C a horrible death. He testified that he was not sure of everything that went through his mind but he was angry and he felt very betrayed as he had loved the deceased. Then he reached for an ornament next to the door about a meter from the bed, exh 4. As he picked it up the ornament broke and he let it go. He was angry at that time because he hated the deceased for abusing his trust and not confiding in him that he had AIDS and D for allowing him to go on something that was weak as it had happened to him in the past. The experience of that night reminded him of how he was sexually abused by his father in the past. When exh 4 broke off as he picked it up, he then ran into the lounge and picked up exh 1, the black cat ornament. He want back to the deceased in the bedroom and the deceased was trying to close the sliding door which could not close E properly because it was broken. The accused pushed the door open and proceeded to the bedroom. At that time the deceased was motioning backwards towards the bed as the accused moved in. The accused hit him on the head with the cat, exh 1. As he hit the deceased the thoughts were still flooding his mind. He was thinking about how he was to break the news at home, because many AIDS victims have difficulties in F telling their families that they are HIV positive. He was also thinking of how he was going to die a horrible death and the fact that his future had now come to an end. He said all these thoughts were just flooding his mind at the same time. He even thought of not living anymore. He felt that he was stupid and felt that he could not change things. G He did not feel in control of things at that stage. He was not thinking properly. He could see what he was doing, but could not control himself. He was so furious. The accused testified further that he struck the deceased twice with exh 1. The second blow was inflicted while the deceased was down. Thereafter the accused ran to the kitchen and got hold of a smaller knife, exh 3. He ran back to the deceased's H bedroom. The deceased at that time was in the process of getting up. He stabbed the deceased in his side while the latter was in the process of getting up. He said he looked at him and he hated him. The deceased moved his hand as if to strike him. The accused then ran back to the kitchen and got hold of a big knife, exh 2. Thereafter he ran back to the deceased's bedroom and cut the deceased's throat and his wrists.

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The accused testified that when he cut the deceased's throat and wrists, he could see and 'it was as if there was no more hope for [him]'. J

what he was doing but he could not stop himself. He was so angry

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A The accused also testified that after seeing that the deceased was dead he was shocked at what he did. The deceased was not moving and he, the accused, never thought he was capable of killing. He sat in the passage for a while and then he realised that he had committed a crime. He testified that he was crying thereafter. He sat in the passage for about 30 minutes or so trying to pull himself together. He thought of what to do thereafter. He took his sock and tried to remove his fingerprints from the things B that he remembered he had touched. He also tried to clean blood stains. He looked for the car keys and the car's registration papers. He got into the car and drove off. He said that as he drove off he thought of committing suicide by driving the car at top speed up the mountain. As he drove towards Hout Bay, he came across a hitchhiker near Camps Bay. It is common cause that that was Mr Laubscher. The accused gave C him a lift. He told the Court that there was conversation between them. At first it was personal and a thought crossed his mind that he should get a one-night stand in order to create an alibi. He asked Mr Laubscher whether or not he was willing to engage in oral sex with him. The latter refused. After dropping Mr Laubscher off, the accused D went home.

It is common cause that the accused made two statements to the magistrate. The first was made on 6 February 1995, exh G. The second was made on 14 February 1995, exh H. In an earlier statement the accused did not tell the truth about how he acquired E the vehicle. He explained this at the trial by saying that it was due to embarrassment. It was for that reason that having made the first statement he later decided to be truthful about how he had acquired the car and therefore decided to make a second statement to the magistrate. Mr Stowe argued that if the accused's defence was lack of F control over his actions, then he should have stated this in the confessions made to the magistrate. The fact that this was not so stated was an indication that this was a fabrication. We shall deal later with this argument. Turning to medical evidence, the chief post-mortem findings made by Professor Knobel, who performed an autopsy on 1 February, were as follows: G (1) There was a long deep horizontally incised wound from side to side through the front of the neck, cutting into and through the thyroid cartilage and almost completely through the air way; (2)
H

Both wrists showed superficial cuts through the skin opposing the underlying tendons but not transecting any large vessels; a 2 cm long horizontal stab wound on the left lateral chest reaching extending into the left lung through between ribs 8 and 9;

(3)

(4)

an extensive fractured skull of the right temporal parietal region with two linear fractures extending from the upper tempero-parietal region downwards into the middle-fossa, one of which extends through the pituitary fossa and across onto the roof of the left orbit.

I He concluded that the cause of death was an incised wound of the throat through the larynx and extensive head injuries and the consequences thereof. He stated in his evidence that it was a combination of both. When Professor Knobel gave evidence, he said that the skull showed an extensive fracture of the right temporal parietal region and this was consistent with the use of severe blunt force. This kind of skull fracture could certainly be J

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A potentially fatal. The fracture in the right temporal region, if the person survived for any length of time, would most likely have resulted in the formation of an extra-dural haemorrhage because it lies in the area of the large vessel which supplied the brain membrane. This fracture would certainly have been potentially fatal if there was time for the fatal complications to develop. Regarding the long incised wound to the neck, B the Professor said that considerable force must have been used. Professor Knobel also noted superficial wounds on the wrists, and there was another wound on the neck of the deceased as well as on the side of his chest. There were also bruises on the body of the deceased.

Professor Knobel testified that during the autopsy he also took the deceased's blood specimen for testing, inter alia, for alcohol and for HIV anti-body testing. The deceased tested HIV positive, which means he had an infection. There was no C evidence that the deceased had full blown AIDS. Professor Knobel said that a person who was HIV positive could infect others. The alcohol concentration of the deceased's blood was 0,13 g per 100 ml. This means that if he was an inexperienced person as far as alcohol is concerned, the deceased would have been considered to be under the influence and if he was an experienced drinker, he would probably have D been moderately or mildly under influence. Professor Knobel worked this out and concluded that the deceased may have had the equivalent of five or six tots of spirits or so in his body. Professor Knobel confirmed in cross-examination that the accused's plea explanation was consistent with his post-mortem findings. He also confirmed that considerable force must have been used to inflict the head-injuries because the black E cat ornament, exh 1, was estimated to be between 2-3 kg in mass and therefore it would have taken force to handle and strike such a fatal blow with it. Similarly, in relation to the wound in the neck, Professor Knobel confirmed that considerable force F was necessary to inflict such a wound and to cut so deeply in the neck. Mr Laubscher, the hitchhiker, also testified. He confirmed that he was given a lift by the accused in the early hours of the morning of 28 January 1995. He was driving between Camps Bay and Hout Bay when his car ran out of petrol. He saw the car G driven by the accused and he was given a lift. He said that there was conversation between himself and the accused which at first was personal. Mr Laubscher told the Court that the accused asked him whether or not he was interested in giving him a 'blow job', that is oral sex. He declined. He also stated that just before the end of the journey the accused asked him for the second time and he again declined. He H described the accused's condition as follows: 'he looked relaxed and normal, and did not appear agitated'. The accused's mother, Mrs Moses, also gave evidence. She confirmed that the accused told her that he was sexually abused by his father. The accused said this after I his father died. The accused said he was abused twice. She also confirmed that the accused, after she ordered him out of the family home, was very angry and went into a rage. She confirmed that the accused trashed her house, damaging the fridge, the stove, pulling down the curtains, the dishes, the TV, the washing machine, and so on. She testified that when this happened even the neighbours saw it and people J
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A were looking on. The rage lasted for about 15 minutes and it ended when the accused tried to cut his wrists and police had to be called to the scene. His mother also confirmed that she was physically abused by her husband on numerous occasions. She confirmed that her husband also tried to sexually molest her youngest daughter and that he also tried to have intercourse with her younger sister. She corroborated the accused's evidence in material respects. B

Turning to the credibility of the accused, we are satisfied that he made a favourable impression in the witness box. In general, save for a few comments that can be levelled at him, he was a satisfactory witness. For example, the fact that he said to his mother he was sexually abused by his father on two occasions, is understandable. He did not want to embarrass his father. It is also understandable why he did not tell his mother about his sexual abuse before his father died. He clearly wanted to protect his mother, because as he said in evidence, if his mother had confronted his father about the abuse, C his father would react violently and beat his mother. One can also understand that the accused was subjected to terrible and bitter experience, namely being sexually abused by his own father. Therefore the reluctance to talk about it is understandable.
D In our view the accused's evidence is acceptable and reliable. It is corroborated in material respects by that of his mother. It is also corroborated by the evidence of Mr Laubscher, the hitchhiker. There is a further factor that corroborated the evidence of the accused, namely that the deceased was HIV positive. The accused's story about E the car, namely that there was a deal between himself and the deceased regarding the transfer of the car to the accused, is also corroborated. The accused produced an agreement of sale, namely exhs J1 and J2, which bear the accused's and the F deceased's signatures, respectively.

The Court finds that the evidence of the accused is truthful and reliable and therefore there is no basis for rejecting it. In support of the defence of non-pathological criminal incapacity flowing from extreme provocation, the defence also led two expert witnesses, namely Mr Yodaiken, a G clinical psychologist, and Dr Gittleson, a psychiatrist. We shall first deal with Mr Yodaiken's evidence. Mr Yodaiken told the Court that he is a practising clinical psychologist who has been practising as such for some 20 years. He is no stranger to court. He is used to forensic work. He has appeared in custody matters, murder trials, fraud cases, to mention but a few. He told the Court that he conducted several interviews with Mr Moses amounting H at least to ten hours of quality time. He also told the Court that three psychometric tests were administered to Mr Moses. These were Thematic Apperception Test, which was administered by Ms D C Hargovan (also a clinical psychologist), the Millon Clinical Multiaxial Inventory-II as well as the Rorschach Ink Blot Test. The psychometric results revealed that Mr Moses derives from a dysfunctional family background

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characterised by violence, sexual abuse, absence of boundaries and I insufficient parental controls. Mr Moses displayed a rage from a very early age when he was about two or three. He also suffers from a borderline personality disorder. Mr Yodaiken further observed that Mr Moses' relationships are characterised by strong needs J
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A for affection which are offset by fears that loved objects will reject and punish him. At times when he believes that he is being rejected or punished by others, he reacts with rage. These are the times when his rage reactions turned to be of the most violent nature and were considerably prolonged. On one occasion he damaged his mother's home and on another he damaged his own motor vehicle. B Mr Yodaiken further testified that Mr Moses is extremely impulsive and has difficulty controlling his impulses. From this it can be anticipated that he would react with little thought. His reactions to environment often reflect his inner turmoil. He is clearly a disturbed personality who suffered at the hands of his background. When provoked his controls do break down and he discharges in a rageful uncontrolled manner. Because of his personality structure, Mr Moses would be easily provoked, C particularly when he himself is vulnerable as a result of stress, anxiety, depression or when he is affectionately attached to another. The difference between a normal personality and Mr Moses is in both the vulnerability to the stimulus and the emotional and impulse controls. A normal personality would require more intense provocation before flying into a rage, and when in a rage would still be able to keep behaviour controlled within normally tolerable levels. In Mr Moses' case he was likely, if and D when extremely provoked, to have known what he was doing but would have been unable to stop himself. The effect is like trying to stop an oil tanker. Even when reverse thrusts are applied it still takes three kilometers for the ship to respond or even to E change direction.

Mr Yodaiken told the Court that Mr Moses had formed an attachment with the deceased during the two months in which they had known each other. The deceased was kind, considerate and caring. He provided Mr Moses with many of the F experiences which he had longed for and Mr Moses attached affectionately to him. In this attachment, which is characteristic of his personality, he had come to idealise the deceased who he saw as the ideal person. He would have trusted the deceased. Therefore when the deceased told him that he had AIDS, this would have completely destroyed the image and trust that Mr Moses had built up of the deceased and, given G the nature of Mr Moses' personality, the impact of this was in all likelihood so devastating that it collapsed his controls. Predictably he would have acted with rage and in the pattern of the past, his behaviour would have been excessively destructive. Mr Yodaiken did not contend that the accused was acting in a state of automatism H during the killing. On being asked to comment on the different weapons used to inflict injuries on the deceased, he stated that to him the two acts, that is hitting the deceased with a blunt object and the stabbing, were in fact one. The accused was in an annihilatory rage, a rage which tends to damage or destroy. Having stabbed the I deceased on the first occasion, the deceased apparently then lashed out and this may have been construed by the accused as an attempt by the deceased to fight back or to hit him. That would have then propelled him into a deeper rage and that would then account for the cutting of the throat and the wrists. Dr Gittleson, like Mr Yodaiken, is also no stranger to court. He compiled a comprehensive report, namely exh L. His evidence corroborated that of
J

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A Mr Yodaiken in material respects. For example, the fact that the accused suffers from borderline personality disorder, that he manifested various neurotic behaviours as a child including head-banging, bedwetting, fear of the dark, and various other behavioural problems. Dr Gittleson told the Court that immediately prior to the killing the accused was feeling sad. He was very tired due to being under a lot of pressure at work. He was feeling lonely and could hardly sleep at night and tended to wake up four to five time at night especially when he was in the shack. The accused also felt B extremely depressed and was self-medicating with Somnil. He was also using Grandpa headache powders and Panado. He had persistent thoughts of suicide at times. His appetite at times was not good. He was also irritated by the slightest things. Dr Gittleson testified that he believed Mr Moses knew what he was doing at the time of the killing. He would have had the capacity to foresee that Gerhard would be killed. C However, his capacity to exert the normal degree of control over his actions and also to consider his behaviour in the light of what was wrong, was significantly impaired at the time of the killing. D

Dr Gittleson further gave evidence to the effect that the accused was in a state of a rage and the reason for the rage was that he felt devastated in a catastrophic way by what the deceased had told him, that he had AIDS. He was also extremely hurt by the manner in which the deceased had made love to him. It left him feeling in pain, abused, E and not loved by the deceased. He told the Court that less consciously the accused was reacting not just with a sense of rage at what the deceased had done, but also what the deceased had done triggered feelings that belonged to his relationship with his father. It brought back the sad old memories. Dr Gittleson stressed that it was a combination of the factors alluded to above coupled with the 'extraordinary stimulus', F namely being told by the deceased that had AIDS, which led to the state of rage reaction. Describing the extraordinary stimulus, Dr Gittleson said 'it was not a trigger that would be part of a normal living. I don't know how many people have experienced the situation where they have been first at all made to feel bad about a sexual experience they have just had. He felt abused. He felt G that he was not gentle, not caring, unloving and then to be told by his partner that the partner has AIDS. I mean I find that extraordinary. I don't think that many people have ever been in such a situation. . . . I think everybody would react with varying degrees of anger, and just how much anger depends on that individual person.'
H Dr Gittleson testified further that in a stage of rage one's capacity to retain control is definitely impaired. With specific reference to the accused, it was possible for a state of rage to have continued to such a degree that loss of control or partial loss of control, lasted throughout the time that the killing took place. During the killing the accused's capacity to stop himself, to control his behaviour in accordance with what he knew was right and wrong, was impaired. While he knew that it was wrong to kill in principle, his awareness of the wrongfulness of what he was doing at the time was also I impaired. The witness also told the Court that a rage episode would rarely last for longer than minutes and that once that episode of minutes is over, a person can quite quickly revert to a relatively normal level of J

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HLOPHE J

functioning and reintegrate and become aware of the enormity of what has happened while he was in a state of rage and behave normally. The recovery period is short. This corroborates in material respects the evidence of Mr Yodaiken. Against this evidence is that of Dr Jedaar, the State psychiatrist attached to the forensic unit, Valkenberg Hospital. After the defence led expert evidence, the State applied to re-open its case in order to lead expert evidence in rebuttal. The application was B granted, as the Court felt, inter alia, that it needed a well-balanced expert evidence. Dr Jedaar's evidence is to the following effect. A person can never lose control except in a state of automatism, or other pathological states. Even in a state of rage or extreme anger 'I am still of the same belief that you C still have the cognitive ability to weigh the expression of that rage'. He told the Court that the ability to appreciate the wrongfulness of an act is a cognitive function. Conduct in a state of automatism is automatic, involuntary, reflexive, uncontrolled, unconscious, not goal-directed and not motorcontrolled where the person is in a dissociative state. Following the state of automatism there is a period of bewilderment. Automatism does not occur out of context, that is there must have been an antecedent build-up, for D example, a period of conflict, discord or dispute. A state of automatism also requires a trigger event which unleashes an overwhelming response and automatism is followed by total amnesia because of the fact that the person is not able to register his conduct during the state of automatism. In view of the accused's educational training, his status and facts of the case, Dr Jedaar concluded that the accused had the cognitive appreciation of the wrongfulness of his conduct in the killing of the deceased and was E intellectually aware of the right or wrongfulness of his conduct.
F The accused's conduct during the killing was not uncontrolled or involuntary and the killing was not committed during a state of automat-ism. When the deceased told the accused that he had AIDS, there would have been an initial stage of disbelief, but immediately thereafter the accused made the decision to resort to physical action. The accused got off the bed to fetch exh 4 which was on a nearby table, and when this broke he discarded it, he thereupon left the bedroom and went to the lounge where he G found exh 2. On returning to the bedroom he was confronted by the deceased who was holding the door closed. The accused thereupon forced the door open and entered the bedroom where he delivered two blows with exh 2 to the head of the deceased. Thereafter the accused went to the kitchen in search of another weapon. In the kitchen he found exh 3 and returned to the bedroom and stabbed the deceased in the chest. He went back to the kitchen again in search of another weapon and found H another knife. The accused thereafter returned to the bedroom where he cut the deceased's throat and wrists. Dr Jedaar testified that each and every one of these acts amounts to conscious, planned, goaldirected and controlled behaviour. It is not consistent with a dissociative state and does not fulfil the criteria for sane automatism. I Dr Jedaar emphasised that every act is preceded by a thought and even in a state of rage or extreme anger, one would still have the cognitive ability to weigh the expression of that anger. J

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1996 (1) SACR p712

HLOPHE J
A The problem with Dr Jedaar's evidence, with respect, is that it flies in the face of South African law. According to our modern law, criminal capacity has two legs, namely the ability to decide between right and wrong (that is the cognitive appreciation), and the ability to act in accordance with that appreciation. Mr Moses' defence is that due to extreme provocation he was unable to control himself. It was never part of his defence that he could not appreciate what he was doing. He could B appreciate what he was doing but he could not stop. He was provoked to an extent that he lost control over his actions, that is non-pathological criminal incapacity which is a recognised defence in South African law. See in this regard S v Wiid1990 (1) SACR 561 (A) where the defence of temporary non-pathological incapacity was successfully raised. The Court found that there was doubt whether the accused, at the time of shooting and killing her husband, had the necessary criminal capacity. In the C end the Court held that the accused had to be given the benefit of the doubt and conviction was accordingly set aside. See also S v Campher 1987 (1) SA 940 (A), S v Laubscher 1988 (1) SA 163 (A), S v Potgieter1994 (1) SACR 61 (A). D It is worth mentioning other problems associated with Dr Jedaar's evidence. He conceded in cross-examination that depression is a mental disorder and may be a mental illness depending on the severity thereof. The Valkenberg medical report (which was handed up as part of exh F), which Dr Jedaar himself co-signed, made no mention of Mr Moses' depressive symptomatology. He conceded further that, had he been more thorough, he should have indicated that there were signs of depression which he E assessed as being part of the accused's personality. Dr Jedaar also conceded that the accused suffers from a personality disorder which he diagnosed as mixed personality disorder. He conceded further that 'emotions played a very significant part in that there was extreme anger, there was a sense of being deceived, there was a sense of his life being in turmoil at the time of the offence'. Despite such concessions, however, Dr F Jedaar was still of the opinion that the cognitive function of the accused was not impaired. In this regard his evidence clearly flies in the face of that of Mr Yodaiken and Dr Gittleson. G

In our view the evidence of Mr Yodaiken and that of Dr Gittleson is preferably to that of Dr Jedaar. Both defence experts are independent and have investigated the accused's background extensively and spent far more quality time than Dr Jedaar. Dr Jedaar, as has been pointed out above, also made important concessions such as that the accused is suffering from a personality disorder. He conceded that a person who H suffers from such personality disorder would have a fluctuation of mood state with frequent expressions of anger. He would react with a tremendous amount of anger to perceived slights or criticisms of self-worth and angry outbursts are part of his personality structure. As indicated above, the main problem with Dr Jedaar's evidence is that it flies in the I face of South African law and that the bulk thereof was directed at showing that the accused did not act in a state of sane automatism at the time of the killing. That is not the issue. To a large extent therefore, his evidence was not much help to this Court. We therefore have no hesitation in rejecting Dr Jedaar's evidence and accepting that of the defence experts. J
1996 (1) SACR p713

HLOPHE J
A In our view a proper basis for accepting defence experts' evidence has been laid. The Court has accepted the evidence of Mr Moses which was corroborated in material respects as alluded to above.

The Courts have repeatedly laid down that defences such as amnesia, automatism and non-pathological criminal incapacity should be carefully scrutinised. The fact that they are supported by medical evidence, although that is of great assistance to the Court, B will not necessarily relieve the Court from its duty of scrutinising them carefully. This is so because such medical evidence is often based upon the hypothesis that the accused has given a truthful account of the events in question. See in this regard R v H 1962 (1) SA 197 (A) at 208A, S v Kalogoropoulos1993 (1) SACR 12 (A), S v Potgieter (supra at 73-74), S v Ingram1995 (1) SACR 1 (A), S v De Blasi case C No 429/94 (as yet unreported judgment delivered on 21 September 1995 by Vivier JA).* In our view the State's argument that the accused did not act in a state of sane automatism cannot hold water. It is a misconception and bears no relation to this case. D Therefore Mr Stowe's argument about the fact that the requirements of sane automatism were not complied with, cannot be accepted. At no stage did the accused deny that he was aware of what he was doing. His defence is lack of control over his actions due to extreme provocation experienced on the night of the killing. Mr Stowe argued further that the accused's defence about lack of control over his actions is a fabrication and merely an attempt to justify his criminal conduct in a brutal E killing. In the two confessions made by the accused to the magistrate, no mention was made of the defence of lack of control. It appeared for the first time in the accused's s 115 plea statement, exh A. This submission is untenable. As appears from exh F, lower court proceedings, the court was informed by Mr January on 27 March 1995 that it appeared that the F accused at the time of the commission of the offence was not criminally responsible. The record reads: 'Mnr January deel die hof mee dat volgens wat hy ingelig is, blyk dit dat beskuldigde ten tyde van pleging van die misdaad so opgetree het asof hy nie toerekeningsvatbaar was nie. Beskuldigde word na Valkenberg Hospitaal G verwys vir observasie.' Consequently Dr M H Quail was appointed together with the superintendent of Valkenberg Hospital to examine the accused in terms of s 79 of the Criminal Procedure Act. One must also not lose sight of the fact that the accused, who is H obviously a lay person, raised the defence in this Court in his s 115 plea statement. The State was aware of the defence when the trial commenced. Compare S v Campher (supra). It has been held that where an accused person relies on non-pathological causes in support of a defence of criminal incapacity, he is required in evidence to lay a factual foundation for the defence, sufficient at least to create a reasonable doubt on the point. I Ultimately, as always, it is for the Court to decide the issue of the accused's criminal responsibility for his actions, having regard to expert evidence and to all the facts of the case, including the nature of the accused's actions during the relevant period. J
1996 (1) SACR p714

HLOPHE J
A See S v Kalogoropoulos (supra at 21-22), S v Potgieter (supra at 73), S v Calitz1990 (1) SACR 119 (A), S v Nursingh1995 (2) SACR 331 (D). A careful reading of case law also reveals that the Court looks at what was going through the accused's mind at the time of the commission of the offence. That is a subjective enquiry which takes account of surrounding factors such as the personality disorder of the accused, the fact that the accused may have been depressed, and so on. Thus the law is clearly to the effect that where provocation and emotional stress are raised as B defence, it is a subjective test of capacity without any normative evaluation of how a reasonable person would have acted under the same strain and stress. What matters is what was going through the accused's mind at the relevant time.

Once an accused has laid a factual basis for the defence in evidence, the onus is on the C State to rebut that. If there is doubt whether the accused had criminal capacity at the time of the commission of the offence, the benefit of the same must surely be given to the accused. In our view enough evidence was placed before Court to warrant the following findings. D (1) That the accused has a history of poor control and anger. He is susceptible to anger outbursts and violence and this is part of his personality make-up. (2) (3) (4) That the accused killed a person whom he cared for and saw as a 'way out' of his past. He had no motive or reason to kill the deceased and this was clearly not a premeditated killing. E On the night in question the accused was subjected to extreme provocation. The killing itself was a crystallisation of a number of factors such as the suppressed anger relating to the accused's dysfunctional family background and sexual abuse by his father, equating the deceased with his father and F the sense of betrayal, the accused's vulnerability at the time of the killing in that his personal life was in shambles and he showed symptoms of severe depression, and the provocation itself and the subjective belief that the accused was going to die a horrible death. It was a combination of these factors which led to the accused's controls collapsing at the time of G the killing. The expert evidence given by Dr Gittleson and Mr Yodaiken and the vital concessions made by Dr Jedaar support a finding that it is reasonably possibly true that the accused lacked criminal capacity at the time of killing. Although the accused might possibly have retained some measure of control over his actions by the time of the infliction of the final wound, the State has nevertheless failed to prove beyond reasonable H doubt that his control even at that stage was not significantly impaired.

Our unanimous finding is that the State has failed to discharge the onus resting on it to prove beyond reasonable doubt that the accused had the requisite

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criminal capacity at

the time of the killing. Accordingly, the accused is acquitted.

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