THE STATE v GORDON 1962 (4) SA 727 (N)

1962 (4) SA p727

Citation 1962 (4) SA 727 (N)

Court Natal Provincial Division

Judge Henning J

Heard September 17, 1962; September 18, 1962

Judgment September 19, 1962

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Flynote : Sleutelwoorde
Criminal law - Suicide - Not an offence - Murder - What amounts to - Accused and deceased entering
into a suicide pact - Accused supplying deceased with tablets - Deceased succumbing after taking
tablets - Accused not guilty of murder.
Headnote : Kopnota
D Suicide is not a crime. A person who merely encourages or incites another to commit
suicide does not commit an offence.
On a charge of murder, it being alleged that the accused had wrongfully and unlawfully and
maliciously killed and murdered one C, the evidence showed that the accused and the
deceased had entered into a suicide pact; that the deceased and the accused had each
taken certain tablets E - the accused having provided such tablets - and that the deceased
had succumbed after taking such tablets.
Held, as the cause of C's death had been her own voluntary and independent act in
swallowing the tablets, that the accused was not guilty of the offence charged. F
Case Information
Criminal trial before a Judge and assessors on a charge of murder in the Southern Districts
Circuit Local Division. At the conclusion of the case for the State the defence applied for the
accused's discharge. The facts appear from the reasons for judgment.
R. N. Leon, Q.C. (with him G. I. Raftesath), for the accused: Suicide G is not a crime in
South African Law. Gardiner & Lansdown, 6th ed. p. 1540; van Leeuwen, 4.44.11; van der
Linden, 2.5.14. At most the accused's actions aided and abetted the deceased to commit
suicide which is not a crime. Therefore the accused is not guilty of any offence. See R v
Nbakwa, 1956 (2) SA 557 (SR). R v Peverett, 1940 AD 213 is clearly distinguishable. R v
Matthews, 1950 (3) SA 671 (N), is not in point, alternatively it is distinguishable on the
facts.
H M. W. Botha, for the State: It is accepted that suicide is not a crime in SA but a person,
who aids and abets another to commit suicide and in so doing kills that other, is guilty of
murder, even though the suicide is jointly responsible for his own death. The aiding and
abetting can take many forms. Remoteness of result of the acts of the accused of course
affects the issue, but in the present case there was no remoteness. In essence the facts are
indistinguishable fromPeverett's case, supra. There,
1962 (4) SA p728
HENNING J
although the breathing of the complainant continued naturally, it was also a natural reaction
to feel suffocated and to seek fresh air. Nbakwa's case, supra, is distinguishable. There
there was some coercion. Alternatively the case was wrongly decided. Peverett's case
was A correctly applied in Matthews' case.
Judgment
HENNING, J.: This is a judgment on an application for the discharge of the accused at the
conclusion of the case for the State. The accused is an Indian male aged 27 years, and he is
a school-teacher in Durban. He B is charged with murder. It is alleged in the indictment that
during or about the period 22nd to 24th March, 1962, and at Clansthal, Umkomaas, the
accused wrongfully and unlawfully and maliciously killed and murdered Thoorayrani Chetty,
an Asiatic female. Further particulars of the charge were called for by the accused and those
were supplied by C the State. In reply to the request for further particulars, the accused
was informed that he killed the deceased by helping her to commit suicide and/or by
drowning her in the sea, and/or by causing her to take certain tablets. It was said that he
handed her tablets containing narcotics and/or barbiturate, and there is a repetition of the
allegation that he submerged her in the sea. The accused was also D informed that it was
the case for the State that the deceased committed suicide or that she attempted to do so. I
say nothing further in this judgment on the allegation that the deceased was drowned by
the accused, because it is not only perfectly clear from the evidence that he did not drown
her, but counsel for the State accepted that when he took the deceased's body into the sea
she was already dead.
E It is established on the evidence that the deceased died as a result of having taken 15
tablets of Noludar and 8 of Phanadorm. It has been explained that Noludar is a non-
barbiturate hypnotic drug and Phanadorm is a cyclo-barbitone. It is unnecessary for the
purposes of this judgment to detail the toxic effects of these drugs because, as I
have F said, it is clear that it is as a result of having taken them that the deceased died.
The evidence adduced by the State included evidence given by policemen of statements
which the accused had made at various stages to them. Strictly speaking, it appears to me
that those statements, save for G admissions by the accused, which have to be evaluated in
their context, are not evidence, but Mr.Botha, for the State, correctly, I think, accepted that
this application should be decided on the basis that all the facts in those statements are
evidence in this case. It is unnecessary for me to go into all the evidence which has been
adduced; it is sufficient to set out briefly what, in my view, are the relevant facts.
H The accused is a married man and the deceased, who was about 18 years of age, was
unmarried. Like the accused, she was a teacher in Durban. The two of them became lovers.
On Thursday, the 22nd March, 1962, the accused's wife went to the school where the
deceased was teaching and there created a scene. It is clear that she went there as a result
of what she knew of the association between the accused and the deceased. This conduct of
the accused's wife greatly upset the deceased, who on the same day saw the accused and
told him that she had decided to commit suicide. They had a discussion, in the course of
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HENNING J
which the accused told her that he was going to do likewise. They therefore concluded what
is colloquially termed a 'suicide pact'. The accused already had a supply of Phanadorm and
Noludar tablets, but on the same day he bought 20 more tablets of Noludar from a chemist
in A Durban. That evening the two of them set out in the accused's car and came down the
south coast. He had with him the tablets to which I have referred, and they apparently also
obtained some coffee. They eventually landed at the beach at Clansthal, where they parked
the car. They remained inside, and each of them took 15 Noludar tablets and 8 BPhanadorm
tablets. It is not clear from the evidence in what manner the accused supplied these tablets
to the deceased, but it is, I think, beyond doubt that he did supply her with the tablets.
There is, however, nothing to show that he helped her to take them, and in the
circumstances the only reasonable inference, having regard to her settled determination to
commit suicide, is that she took these tablets C herself and she took them voluntarily. This,
as I have said, happened on the evening of Thursday, 22nd March, 1962. The accused
succumbed to the effects of the tablets and only woke up at about one o'clock on Saturday
afternoon, the 24th March. He then felt the deceased, whose body was cold, and decided to
drown himself and take the body with him D into the sea. He did this quite openly and
within view of a number of witnesses. He was eventually forced out of the sea by waves,
and the body was recovered from the water by an Indian fisherman. It is unnecessary to
describe the subsequent events.
On the evidence there can be no doubt that the deceased committed E suicide. The accused
is not charged with aiding and abetting her to do so but with maliciously killing her. The
State case, in essence, is that he killed her by handing her the tablets knowing that she
would take them and that she would probably die as a result thereof. Thus, it is said, he
caused her death unlawfully and intentionally. According to English law, if two persons
attempt to commit suicide and one commits F suicide and the other does not, the survivor is
guilty of murder - Gardiner and Lansdown, 6th ed. p. 1540. According to the learned
authors, suicide is not a crime in South African law. This question was left open in R v
Peverett, 1940 AD 213. In R v Nbakwa, 1956 (2) SA 557 (SR), doubt was expressed by
BEADLE, J., whether suicide was G a crime in Southern Rhodesia. According to van
Leeuwen, 4.44.11, suicide is not a crime unless the person kills himself intentionally and
wilfully after having committed some crime, out of remorse and in order to escape
punishment. Van der Linden, in his Institutes, 2.5.14, p. 219, says that suicide is not an act
which can be classed under crimes which are publicly punishable. It seems to me the better
view is that with us Hsuicide is not a crime. A person who merely encourages or incites
another to commit suicide, therefore, does not commit an offence. The question at issue at
the moment is whether there is evidence upon which a reasonable man might find that the
accused unlawfully killed the deceased. The fact that she committed suicide does not mean
that he did not kill her. It must be accepted that he deliberately supplied the tablets to her
with full knowledge that she would take them and would probably die. Now, can it be said,
in
1962 (4) SA p730
HENNING J
those circumstances, that he killed her? Mr. Botha, for the State, submitted that the answer
is in the affirmative, and he relied strongly on Peverett's case. I shall refer briefly to the
facts of that case. A Peverett and a Mrs. Saunders, who was a married woman, decided to
commit suicide together in his motor car. To accomplish their purpose Peverett made the
necessary arrangements to introduce into the car poisonous fumes from the exhaust pipe.
He and the woman both sat in the car, the doors and windows being closed: he then turned
on the ignition and B started the engine running. In the course of time both became
unconscious and were later rescued. The Appellate Division held that Peverett had been
rightly convicted of attempting to murder Mrs. Saunders. Now it will be observed that in
that case the accused completed every necessary act to bring about the death of himself
and Mrs. Saunders, the starting of the engine being the final act. In the C present case it is
an accepted fact that the deceased took the tablets herself and that was the final act which
brought about her death.
Mr. Botha also relied upon Rex v Matthews, 1950 (3) SA 671 (N), in which it was held that a
person who, although foreseeing the likelihood of harmful results, administers a noxious
substance to another who takes D it willingly, is guilty of culpable homicide if the victim dies
as a result of the administering of the substance. In that case the deceased's employer
supplied him with three glasses of sherry which he urged the deceased to swallow in quick
succession, the deceased then already being under the influence of liquor. The deceased
died as a E result of excessive consumption of alcohol. In his judgment CANEY, A.J. (as he
then was) pointed out that although the deceased might not have been unwilling to take
sherry, there was nothing to show that he willingly took three glasses in quick succession.
On the contrary, said the learned Judge, the accused exercised some measure of authority
as the deceased's master and urged him to a rapid consumption of the sherry. In the
circumstances the Court held that the accused F administered the sherry to the deceased.
In my opinion that case is clearly distinguishable on the facts from the present case. By
merely supplying the tablets with knowledge of the use to which they were to be put the
present accused cannot in my view be said to have administered the tablets to the
deceased.
G In Nbakwa's case a woman hanged herself at the instigation of the accused. The accused
had tied a rope to a rafter in a hut and made a noose at one end. He told the deceased, who
was seated, to get up and hang herself. He told her that he had already fixed up the rope
and she H should hang herself. At her request he helped her into a sitting position. She got
up and asked for something to stand on. He thereupon placed a wooden block under the
rope, and went outside, where he stood in a position from where he could see the deceased
kill herself by hanging. The deceased placed her neck in the noose and kicked away the
block. On these facts BEADLE, J., held that although the accused provided the means for
causing the hanging, and although he persuaded the decease d to kill herself, the actual act
which caused the death of the woman was the act of the woman herself. There was, in the
opinion of the learned Judge, a novus actus interveniens between the actions
1962 (4) SA p731
HENNING J
of the accused and the death of the deceased which broke the chain of causation between
his acts and her death. The learned Judge concluded that the accused's acts were acts of
preparation which did not go far enough to constitute an attempt to murder. I respectfully
agree with the line of approach adopted by the learned Judge.
A In the present case the accused supplied the deceased with the means to commit suicide
knowing she would use such means to kill herself. To this extent the circumstances are
similar to those which existed in Nbakwa's case. To my mind, the mere fact that he
provided the tablets knowing the deceased would take them and would probably die cannot
be B said to constitute, in law, the killing of deceased. The cause of her death was her own
voluntary and independent act in swallowing the tablets. He undoubtedly aided and abetted
her to commit suicide, but that is not an offence. The fact that he intended her to die is
indisputable, but his own acts calculated to bring that result about C fall short of a killing or
an attempted killing by him of the deceased. One might say that the accused, as it were,
provided the deceased with a loaded pistol to enable her to shoot herself. She took the
pistol, aimed it at herself and pulled the trigger. It is not a case of qui facit per alium facit
per se.
D For these reasons I have come to the conclusion that the State has failed to produce
evidence upon which a reasonable man might convict the accused of the crime of murder or
of any crime of which he may competently be convicted on the indictment. I have
accordingly instructed the assessors who are sitting with me to bring in a verdict of not
guilty.
E I think I should make some observations about a matter which appears to me of
importance. Having heard of the toxic effects of the hypnotic drugs, it is disturbing to know
that they are freely obtainable from chemists without doctor's prescriptions. It is a matter
which, I think, ought to receive the attention of the proper authorities.
F Finally, praise is due to Indian Detective Durugiah for the manner in which he handled
the case and investigated it.
It is the unanimous verdict of the Court that the accused is not guilty, and he is discharged.
Accused's Attorneys: A. Christopher & Co.