S v SEEMELA 2016 (2) SACR 125 (SCA)
Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Person to whom statement made not called as witness, and written statement, without more, produced in evidence — Evidence in such circumstances inadmissible.
Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of s 3 of Law of Evidence Amendment Act 45 of 1988 — Court should hesitate before admitting where such evidence crucial in convicting accused — In circumstances where no other incriminating evidence, statement of deceased ought to have been excluded.
Murder — Causation — Deceased shot by accused but died 10 months after shooting — Postmortem report indicating that pathologist relied on external examination of body of deceased — Further report, drawn up by professor of forensic pathology, admitted into evidence without deponent testifying, in spite of numerous questions raised by report — Cause of death not sufficiently established for proof of murder — Conviction changed to attempted murder.
The appellant was convicted in the High Court on two counts of murder and sentenced to life imprisonment on each count. Both offences were alleged to have been committed on the same day in 1998, but the trial commenced 12 years later, in 2010. In the interim, several crucial state witnesses had died. The deceased in the second count (deceased No 2) was a woman with whom the appellant had had a relationship, and the deceased in the first count (deceased No 1) was a man with whom the second deceased had since embarked on a relationship. Both deceased were alleged to have been shot by the appellant in separate incidents on the same day, and both were admitted to hospital. Deceased No 2 died some 10 months after the shooting and deceased No 1 some 3 months after the shooting.
At the trial, during the course of the evidence of the investigating officer, the state applied for various statements to be admitted into evidence in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (the Act). These comprised statements made by both deceased, as well as statements by three other witnesses who identified the appellant as having fired the shot at deceased No 2. The police officer who took down one of those statements was not called by the state to testify.
A medicolegal postmortem report, compiled by a state pathologist and admitted by the defence in terms of s 220 of the Criminal Procedure Act 51 of 1977, recorded the cause of deceased No 2’s death as ‘septicaemia, disseminated intravascular coagulopathy’. The pathologist was not called as a witness, nor was a professor in forensic pathology who had prepared a report at the request of the Director of Public Prosecutions. When the state counsel intimated that the professor would be called, the trial judge made it plain that his testimony was not required and swept aside protestations by the appellant’s counsel, who wanted to question him on a number of issues arising from his report. The report — which was admitted into evidence without further ado — was sharply critical of the state pathologist for not having conducted a proper postmortem examination and having contented himself with an external examination of the deceased’s body. The professor stated that:
‘Although the terminal mechanism of death was that of septicaemia with disseminated intravascular coagulopathy, due to underlying infection (pressure sores and/or renal tract infection), there is little doubt that the primary medical cause of death (being the gunshot injury), should also be incorporated in the final formulation of the cause of death. Unfortunately, the autopsy report makes no specific mention of external injuries or scars, suggestive of prior gunshot injury. It is therefore essential, that due cognizance be taken of the clinical history pertaining to this patient — the latter having been reasonably well documented.’
Held, that judges should baulk at relying on uncorroborated hearsay evidence to convict unless there were compelling justifications for doing so. In the present case the trial judge did not manifest sufficient awareness of the perils of relying solely on the evidence of deceased No 1 to found a conviction on count 1, and accordingly the conviction and sentence on that count fell to be set aside. (Paragraph  at 133j – 134b.)
Held, further, that if the state relied on the provisions of s 3(1)(c) for the admission of an otherwise hearsay statement into evidence but did not call as a witness the person who took the statement, the statement could not be admitted into evidence. (Paragraph  at 134g – 135e.)
Held, further, that it was inexplicable why the trial judge thought that it was not necessary for the professor to testify, and that he ought in the circumstances to have entertained grave doubt as to whether the wounding of deceased No 2 was the juridical cause of her death. Although the gunshot wound was an indispensable precondition to her death, the conviction of murder had to be changed to one of attempted murder. The sentence was correspondingly reduced to one of 12 years’ imprisonment.