Rule requiring accused to put version to prosecution witness — Not requiring whole of accused’s version to be put to such witness, only material parts thereof.

S v RM 2018 (1) SACR 357 (GP)

Evidence — Witness — Cross-examination — Rule requiring accused to put version to prosecution witness — Not requiring whole of accused’s version to be put to such witness, only material parts thereof.

Evidence — Expert witness — Duty of — Witness to present evidence that was independent product of expert, uninfluenced as to form and content by exigencies of litigation — Expert not hired gun.

General principles of liability — Criminal capacity — Sane automatism — What constitutes — Hallmark of definition of automatism was absence of evidence of premeditation — Conduct of accused indicative of voluntary goal-directed behaviour and accordingly criminally liable.

 

The accused stood trial in the High Court on, inter alia, two counts of murder, the deceased being her two sons aged 6 and 2, respectively. She admitted shooting her sons but claimed that she had been acting in a state of sane automatism, caused by the taking of a combination of different types of prescription and over-the-counter medication, together with a glass of wine and a popular energy drink, as well as her feelings at the time of melancholia and suicide.

During the course of the cross-examination of the first state witness, counsel for the accused insisted on putting the whole version of the accused’s defence to said witness, even matters of which he would have had no knowledge at all.

The court held that there was indeed a rule that required an accused to put his or her version to prosecution witnesses. The rationale was that, if it were intended to argue that the evidence of the witness was to be rejected, he ought to be cross-examined to afford him an opportunity of answering points supposedly unfavourable to him. It did not demand, or even imply, however, that a version had to be put to a witness who in the nature of things was unable to comment thereon, because it was obviously outside his field of knowledge. Any mechanical application of the rule ought not result in an absurdity. (See [6].)

The major points of contention between the state and defence were in relation to the differing opinions of the respective expert witnesses. As to expert witnesses in general, the court remarked that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form and content by the exigencies of litigation. They should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise. They should never assume the role of advocate and should make it clear when a particular question or issue fell outside such expertise. An expert was not a hired gun who dispensed expertise for the purposes of a particular case. They did not give evidence which went beyond the logic which was dictated by the scientific knowledge which that expert claimed to possess. The expert witness called by the defence fell short of this standard.

As to the merits of the case, the court held that it was a hallmark of the definition of sane automatism that there should be no evidence of premeditation, as there was in the present case. After the event the accused had explained what had happened, what she had done, and even why. She explained where her vehicle could be found, how she had tried to kill herself, and was then mainly concerned with the fact that her husband would kill her. There was no explanation why she had shot the eldest son twice if she was in a state of sane automatism. If there had been automatism at the time of the shooting, she would not have known the details of her incident nor would she have known that there were not enough bullets to shoot herself. Her actions were indicative of voluntary goal-directed behaviour and not automatic behaviour at all. In the circumstances, the state had proved the necessary intent for murder and she had to be convicted of both counts.

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