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IN
THE HIGH COURT OF SWAZILAND
REX
v
GUNTRAM
ALBRECHT
CRI.
CASE NO. 147/98
CORAM S.W.
SAPIRE
FOR
PLAINTIFF MR. L. NGARUA
FOR
DEFENCE Mr S. NKOSE
DR.
FINE JUDGMENT
(7/12/98)
The
accused is charged with having murdered Horst Gansdahl. The
prosecution alleges that on the 5th September 1998 and at or near
Swazi African Candles the accused person did wrongfully and
intentionally kill HORST GANSDAHL and thereby commit the crime of
murder. To this charge the accused pleaded not guilty. He was
represented by Attorney Nkosi & Co. and Dr. Fine conducted the
defence on instructions of that firm.
At
the outset Dr. Fine indicated that it would be the defence contention
that the Deceased died by suicide. The question posed therefore for
the Court was, did the deceased die by his own hand (suicide) or was
the fatal shot fired by someone else, (homicide)?
The
identity of the deceased as the person named in the indictment was
never in issue. So too was the cause of death not a matter which has
to be determined by the Court.
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The
deceased like the accused was an Austrian. The accused is a consul
representing the Austrian Government in Swaziland and is connected to
the Austrian Embassy in Pretoria. The deceased was about sixty years
of age, unemployed and without visible means. He had at the time of
his death been sheltering for more than nine months in the Accused's
premises at Hhelehhele, which serve as the consular offices, a
factory for the business of African Candles conducted by the accused,
and the accused's own place of residence.
The
exact status of the deceased in the accused's establishment was not
explained. The accused was emphatic that he was not a guest,
notwithstanding that deceased had enjoyed free board and lodging
afforded him by the accused since January this year. The accused did
say that he was endeavouring to arrange for a pension from the
Austrian Government for the deceased, and had intended giving this
some attention on the visit to Austria which he was about to
undertake on the very day that the deceased died. I was not
previously aware that it is the function, duty or custom of a consul
to succour and support derelict countrymen for unlimited periods.
The
deceased had previously lived in Swaziland and had received attention
at a local institute where psychological treatment is given. The
defence led the evidence of a doctor N.D. Ndlangamandla of the
National Psychiatric Centre Manzini to indicate suicidal tendencies
in the deceased, which could have accounted for his death. These
suicidal tendencies so he said were stemmed from his state of
depression. Dr. Ndlangamandla had himself never examined, treated or
even known the deceased. Despite this he was content to express his
opinions based on the contents of a hospital file which at least, on
the face of it did relate to the deceased. In this file a number of
people had made entries and notes from time to time during the period
from 1981 to 1986. The notes and entries related to symptoms observed
in the deceased, and treatment given to him at that time. The only
identifiable author of some entries is Frances Reinholdt whose
signature Dr. Ndlangamandla claimed to recognise. She was a
well-known psychiatrist in Swaziland at that time. The opinions so
expressed based on observations of others, which are not proved in
evidence, are not admissible. Even if admissible in evidence not much
weight can be given thereto is very slight. This is especially so in
this case where the observations were made
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years
before the events with which we are now concerned. I am aware that
the condition which the doctor diagnosed is said to be chronic and
incurable. There is no evidence to show that at the time of his death
the deceased harboured suicidal inclinations or tendencies or that he
suffered from any state of depression.
The
accused himself has testified that during the period that the
deceased was with him he observed nothing which would indicate
suicidal inclinations or tendencies. There appeared to be nothing
about the deceased's behaviour which suggested that he was in need of
medical attention.
I
cannot as a fact find that at the time of his death the deceased had
a predilection for suicide. This of course, in itself does not rule
out self-destruction by the deceased.
The
sleeping quarters assigned to the deceased were not in one of the
bedrooms of the residential section of the house. He slept on a
mattress on the floor of a room furnished as an office in the factory
section and it was on this mattress and in this office that he met
his end. The court inspected the premises at Hhelehhele to find that
this office is separated by passages and stairs from the residential
part of the house where the accused himself lived.
The
deceased did not as a rule come into the accused's private quarters,
and it would have been unusual for him to have done so. I make this
observation as this is what the accused said and it relates
particularly to the question of how the deceased could have come into
possession of the accused's firearm which was the weapon which
discharged the bullet which killed him.
It
is true that the deceased did use the kitchen both for cooking his
own meals and on occasions meals for both himself and the accused. He
also used the sitting room where he spent evenings with the accused
and it is suggested that on such occasions he might have seen that
the firearm was stored where the police later found it. That is in a
cupboard in the fixture in the lounge.
The
deceased died as a result of a bullet, which passed through his
skull. The entry wound was in the right temporal area. The bullet's
track passed through and on its passage destroyed a large portion of
the deceased's brain. The exit wound was a 20mm postero-lateral
laceration of the left parietal scalp. The explosive
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pressures
created in the cranium not only blew away part of the skull but
distributed gore, brain, bone, and hair over several meters. Debris
and marks of human tissue were found on the walls and furniture some
distance away from where the body lay. The direction of the shot was
right to left and slightly upward and backward.
The
crucial issue is whether the injury was self inflicted or caused by
someone other than the deceased. I pause at this moment to deal with
an aspect of the evidence which I myself introduced. I noticed in the
photographs taken of the deceased while he lay as found, that he was
wearing his wrist watch on the wrist normally used by left-handed
persons. If the deceased were in fact left-handed the suicide would
have been impossible from the position which he was proved to have
died when the fatal shot was fired. Although there is evidence that
the accused was indeed left-handed this is denied by the accused and
I am not in a position to draw any real inference from the position
of the wrist watch on the accused body
Both
the prosecution and the defence led the evidence of experts, who gave
opinions on relevant scientific aspects of ballistics and of what is
known as forensic medicine. Photographs were produced as exhibits in
evidence, which graphically portray the gory details, of the scene,
which met the eyes of the investigating police officers who answered
the accused's call. Other photographic exhibits are close-ups of the
deceased's shattered head and blood-covered body. A vivid, (if such a
word may be used in the circumstances), picture has been presented by
the photographic material.
The
experts were ad idem that the shot, which killed the deceased, was
fired at extremely close range. The muzzle of the firearm was
actually in contact with the scalp but it does not really matter
whether the shot was fired from that position or whether the muzzle
was a few milimetres away. What is of importance is that the deceased
could physically have fired the shot. A shot fired outside arms
length, (in the absence of an especially devised mechanism for firing
a shot), could not be suicidal. On the other hand a shot fired from
close range could, equally be homicidal.
The
site of the entrance wound is one, which is recognized as one of
election in suicide. That means that it is one of the sites in the
body where suicides are inclined to aim when firing a shot at
themselves. The testimony of the experts was in
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accord,
that there are sites, such as in this case the temples, which are
preferred as a target of a suicidal shot from a firearm. It does not
follow that a shot through the temple or any other preferred site is
necessarily suicidal.
The
experts seem to agree that the deceased was when shot, lying on his
side on the mattress, with his head on the pillow. (Much as he is
depicted in the photographs). Observed physical features including
blood splatter, lead them to this conclusion which I accept.
There
is one aspect of the evidence which was urged to be positive
indication that the death was caused by suicide. This was that there
was considerable blood still in the working of the revolver even when
later examined by the expert. From this he deduced that the firearm
must have laid on a pool of blood or in contact with blood for some
period for the blood to seep into and cover the workings. This may be
so but on the other hand it does not indicate how the revolver came
to be lying in the pool of blood in the first instance. Did it fall
from the hand of the deceased or did it fall from the hand of the
other person who may have fired the shot.
The
expert evidence given by witnesses called by both the prosecution and
the Defence was given in a professional manner. Good preparation
presentation and illustration was a feature of this testimony, which
was also marked by a commendable absence of partisan theorising. All
the witnesses deserve and receive the appreciation of the court.
The
crucial issue however cannot be decided on this evidence, which is
equivocal as to whether the deceased's death was suicidal or
homicidal. The determination of the crucial question has been found
in the actions, behaviour and evidence of the accused himself.
The
accused's account of the events of the day in question and the
circumstances of the death of the deceased are as follows:-
The
accused had planned to travel to Austria and had long before the
incident booked to leave for Vienna on a flight, which left
Johannesburg International Airport at seven o'clock on the evening of
the Saturday in question. He rose early, had
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breakfast
and at that time saw the deceased to whom he spoke. He then left for
Manzini, some twenty minutes drive from the property at Hhelehhele in
order to do some business including, so I understand, to deposit some
cheques. Before leaving he also saw and spoke to Bennett a servant
who works for him. After transacting what ever business he had in
Manzini he returned to the house where he again saw Bennett from whom
he enquired as to the whereabouts of the deceased. Bennett was unable
to tell him so he went into the house to look for the deceased. He
looked into the room in which the deceased slept only to find the
deceased lying on his mattress on the floor in a pool of blood.
He
did not at that stage enter the room, so he says, or examine the body
but came to the immediate conclusion that the deceased was dead.
It
is not clear whether the accused called to Bennett, but Bennett who
was a prosecution witness said that he heard the accused talking
loudly in a foreign language. Bennett says he went to see what
happened and he says he met accused in the corridor leading to the
room. Bennett asked the accused what happened and according to
Bennett the accused said "He is dead" but Bennett thought
the Accused as referring to the car, which Bennett had been trying to
repair. The accused then told him to go and look in the room where
the deceased slept and on doing so was met by the sight depicted in
the photographs.
Accused
then told Bennett to go outside and wait for the police, as he would
report the matter to them.
The
accused has said that this is what he then did. He must have
telephoned and left at the same time or thereabout left a message for
his friend and co-countryman Reiter Gotthard to come and assist him
in the serious trouble he had now found himself as a result of the
deceased having died.
Accused
says that he busied himself with packing for his intended trip.
What
is significant is that at that stage the Accused indicated to both
Bennett and Gotthard that the deceased was dead and that he had died
as a result of a fall.
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Not
even by the most casual viewer of the scene could this theory of the
cause of the deceased's condition have been maintained. The deceased
lay on his mattress in a position which clearly indicates that he was
lying down normally when he met his death. I must infer that even at
that early stage the accused must have determined to give out a
fabricated account of how the deceased met his death. The accused
says that he waited for 11/2 hours for the Police and then when there
had been no response to his several calls he telephoned the Fire and
Emergency services and the official to whom he spoke enquired if he
was sure that the deceased was dead. Only then did he have cause to
doubt apparently and he returned to the deceased's room to make sure.
I find that it sounds more than strange that a man who had been lying
dead or lying motionless with his skull blown away and his brains all
over the room that anybody could have any doubt that this person was
dead. But the accused says that he then went in and it was only then
that he examined the deceased body more closely and discovered his
pistol (that is the accused pistol) in a pool of blood under the a
deceased hand next to his body. Then follows the most extraordinary
part of his testimony.
He
says he panicked and in order to save the embassy the embarrassment
of having someone found shot with the consul's firearm dead on
consular office he removed the pistol, took it to a distant bathroom,
washed it and presumably washed himself and place the pistol in its
normal place of safekeeping in a cupboard in the lounge.
This
does not tie up with what Bennett told the Court. Bennet told the
court that after he had left the accused to phone the Police he
returned after some twenty minutes and found the accused mopping out
blood and blood stains which were to be found extensively in the
corridor and on the stairs. Bennett assisted and only then did he
learn that the accused claimed to have been covered with blood
because had kept the pulse of the body in order to ascertain whether
he was alive or not. The accused account in this respect is also
clearly a fabrication. It is difficult to understand how the removal
of the pistol could save the embassy any embarrassment. The dead body
was there and could not be washed away. The deceased had obviously
been shot with a firearm and there would of necessity be enquiries
which result in it being known that the deceased died of the firearm
wound and it would be the accused firearm
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which
was involved. How he hope save the Embassy from embarrassment it is
difficult to contemplate. The only reason for interfering with the
evidence and to misrepresent to the Police who were shortly to arrive
could have been to hide some guilt on his part on the death of the
deceased. When the police came he did not disclose to them that he
had removed the pistol and let the police conduct their investigation
on the basis that the deceased had died firstly of an explosion. When
the Police asked the accused whether he had a firearm, he produced a
.22 rifle but did not produce the firearm which he must have known
the police were looking for and which he knew was in fact the weapon
used to cause the death of the deceased. The accused says that he did
infact produce this handgun to the police. It is denied by the police
and one can hardly imagine that the police could have at that stage
ignored a weapon produced to them, which turned out to be the weapon,
which caused the death of the deceased. The accused certainly does
not even claim at this stage to have produced the weapon that he had
indicated that that was the weapon which he had found close to the
body. The accused himself in cross examination admits that he made a
mistake and he says that it was his intention in order to avoid
embarrassment to convince the police that they should treat the
accused death as an accident. Such a misrepresentation of facts, even
if it were true, did not put a consular person in credit. He is at
least guilty of defeating the ends of justice and trying to induce
policemen not to carry out their duty. This is not expected of a man
in his position. The police did not at that stage suspect the accused
as being the person responsible for the death and after the riffle
has been produced they allowed the accused to leave Hhelehhele and to
go on his way to South Africa in order that he may catch his flight
which was expected at 7.00 that evening. After he left however it was
discovered that there was nobody at all responsible for the death of
the deceased and the accused .357 magnum was found by the police
still with blood on it in the cupboard in the lounge. This discovery
must have indicated to the police that they have made a mistake in
not insisting that the accused remain in the premises and they were
able to contact the Border post at Ngwenya where the accused and
Bennett with whom he was driving were arrested and they were brought
back to the Police at Manzini. Here the accused was again questioned
and he still maintained the false story which he had presented until
the blood stained pistol was brought into the room where the police
were interrogating him and then he claims then all of a sudden to
have remembered that he removed the pistol from the body of the
deceased. This is a further indication
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of
the unacceptability of the account he has given. Because of this I am
driven to the conclusion that the deceased did not die of suicide and
that he died in the accused hands that the pistol was when the fatal
shot was fired.
The
process of deciding a case on circumstantial facts such as this
requires that the inference drawn must be consistent with all the
proved facts and there must be no proved facts which are not
consistent for the conclusion which is drawn. The conclusion to which
I have come complies with this test. The version given by the accused
in order to be reasonably possibly true does not have to comply with
the test but what is required is that it could in the light of the
evidence possibly be true. There is one aspect however on which no
reasonable explanation can possibly be advanced on behalf of the
suspect and that is how it was the accused pistol which was to shot
the fatal shot. The accused says that he had the pistol with him the
previous night and that he slept with it under his pillow and he left
for Manzini that morning with the pistol still under the pillow. I
cannot understand how the deceased even if he was of suicidal
intention that morning would have gone hunting for this pistol under
the pillow of the accused bed in a room which he never went to and to
which he had no access. There is no explanation as to how the decease
could possibly come into possession of this firearm. It is in this
regard that it is also strange that the accused would have left the
firearm in that place at all. The accused told the Court that he used
the firearm for self-protection and that he would normally take it
with him if he went to bank money. This is a precaution, which I am
not convinced, that it is a wise precaution but in any event it is
done. But the accused says he did not take the pistol on this
occasion because he only had cheques to deposit. If one thinks about
it for one moment one would realise that intending robbers do not
know the nature of the deposits and they will hijack whether the
deposits consists of cash or cheques and the accused it was his
normal course to take a firearm with him for self-protection on such
a journey there is no reason why he could not have taken it with him
on that morning and I am by no means convinced that in fact the
pistol was under the pillow. There is certainly no reason for the
deceased to have known about that and to have known where the pistol
was and the probabilities are that the pistol was with the accused
when he was away from the house that morning but I do not have to
find that as a case. The position is that there is no explanation in
the evidence as to how the deceased could possibly have come to shoot
himself with the accused pistol.
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In
these circumstances as I say I am determined there is no other
decision to which I could come than to find that the accused infact
killed the deceased. The evidence however does not allow me to
conclude whether there was intention as it is necessary in a case of
murder. What happened in that room is impossible to imagine but there
are only two undoubtful facts:
(a) that
the deceased died as a result of a gunshot would, and
(b) that
the gunshot would was inflicted by the accused.
In
these circumstances the proper finding is one that he is guilty of
culpable homicide.
SENTENCE
The
Accused in this matter has been found guilty of culpable homicide.
The circumstances of the offence which the accused has committed is
somewhat cloudy and a mystery. One thing is clear that the accused is
at least guilty of improper use of a firearm and is perhaps lucky
that the inference is not drawn that he had the intention to kill
this unfortunate deceased person. But he is entitled to the benefit
of any doubt which there may be in the matter and for this reason I
have not found him guilty of murder. But his behaviour subsequent to
the event of the death is also reprehensible because a man in his
position should know much better than to interfer with the evidence
in order to create a false impression. He even have contemplated to
try to persuade the police to treat the matter as something other
than what it really was and from his aspect he does not deserve the
sympathy of the Court. It also affects on his suitability for the
position which he has recently occupied. But I also do bear in mind
that this is a man who is over sixty. He has spent most of his life
without being convicted of any offence, he has led an honourable
public life and there is little which would be achieved by making him
spend a long time in prison or any time at all. As he stands before
this court, he has obviously been under strain over the last month
since the occurrence of this event and as he is a Roman Catholic, as
I have been told,
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I
believe that may be he will find some solace in confessing to what
had happened. But that is a matter for the church and not for this
Court. I must treat him on the basis that he has killed another
person through the irresponsible use of the firearm and that he has
tried to make the situation look something other than what it was. I
also do not see any reason why the Swazi tax payer should support him
for any length of time in prison. I accordingly am inclined in this
case to impose a fine but it will have to be a substantial fine, and
an alternative imprisonment and a further period of imprisonment
which will be suspended on certain conditions.
The
sentence which I impose is that the accused to be fined E30 000 in
default of payment of which 3 years imprisonment. He will also be
sentenced to another 3 years imprisonment all of which will be
suspended for a period of 3 years on condition that the accused is
not hereafter found guilty of an offence involving the unlawful
killing of a human being committed during the period of suspension.
S.W.
SAPIRE
CHIEF
JUSTICE
