R v Davies and Another

• Jurisdiction: South Africa
• Judge: Schreiner JA, Steyn JA, Reynolds JA, Hall JA and Beyers JA
• Judgment Date: 15 May 1956
• Citation: 1956 (3) SA 52 (A)
• Court: Appellate Division

Schreiner, J.A.:

The appellants were charged on one count of culpable A homicide, with an alternative of procuring abortion, and on two counts of procuring abortion. After a trial before VAN WYK, J., and a jury they were found guilty on the first count of attempting to procure abortion, they were acquitted on the second count and they were found guilty of procuring abortion on the third count. The first appellant was B sentenced to six months' imprisonment plus a fine of £50 on each count; the second appellant was sentenced to six months' imprisonment, suspended, on the first count and to a fine of £25 on the third count. After conviction and sentence the appellants applied to VAN WYK, J., for leave to appeal under sec. 363 of Act 56 of 1955 and also for the reservation of certain questions of law under sec. 366 of that Act. The C grounds of appeal stated by the appellants included the matters covered by the questions of law sought to be reserved and in addition a ground, in respect of each of the two counts on which they were convicted, that 'an inference of guilt was wrongly drawn by the jury.'

VAN WYK, J., gave a judgment on the application in which he stated that D in his opinion neither of the appellants had a reasonable prospect of success in an appeal against the jury's findings. The learned Judge also stated that in his opinion there was no substance in one of the two questions of law sought to be reserved on count 1 and that there was no substance in either of the two questions sought to be reserved on count E 3. By stating that there was no substance in these three questions the learned Judge must, I think, have meant that there was no reasonable prospect of success on any of them.

Nevertheless VAN WYK, J., granted the appellants leave to appeal generally. In so doing he said that in the particular circumstances of this case the more conventient course would be for the Court to grant F the accused leave to appeal, and not merely to reserve the one question of law on count 1 in respect of which he thought that there was a reasonable prospect of success on appeal. I have difficulty in appreciating what particular circumstances the learned Judge can have had in mind and counsel could only suggest the insufficient circumstance that if the trial Judge refused leave to appeal the appellants would G have to petition the CHIEF JUSTICE. The question of law which it was thought might succeeds was manifestly self-contained and required no more than the barest outline of the facts for its comprehension. On the material before me I think that VAN WYK, J., should not have granted leave to appeal but should only have reserved the one question of law, leaving the appellants if so advised to make further application to the H CHIEF JUSTICE. However, as matters stand, the whole appeal is, of course, before this Court.

The facts on the two counts (1 and 3) may now be briefly summarised. The first appellant practises as a doctor at Springbok, Namaqualand, and the second appellant was an unqualified nurse who at all relevant times was living in the house of the first appellant, and who

Schreiner JA

assisted him in whatever he did in relation to the subject matter of the several charges. The first count relates to the death of Engela de Waal, a young woman aged 19, who on Sunday the 10th July, 1955, died in the first appellant's house of septicaemia caused by a septic foetus, which A had probably been dead a week or more before the 10th July. The pregnancy had existed for about four months and the man responsible for it was one Olivier who, about the end of June, arranged with the first appellant to treat Miss de Waal. What that treatment was to be was the subject of sharply conflicting evidence but it is sufficient for present B purposes to say that, according to Olivier and as the jury found, the first appellant was, in return for a fee of £50, to bring about an abortion. Miss de Waal visited the first appellant two or three times at the beginning of July and was given certain injections. On Friday the 8th July she was brought by Olivier to the first appellant's house where she remained until her death. The post mortem examination revealed the C presence in the deceased's vagina of a broken off stick 21/2 to 3 inches long. On the alternative charge of abortion, of attempting which they were found guilty, the indictment alleged that the abortion was brought about either by injections or by the insertion of instruments.

Count 3 related to the treatment by the first appellant, assisted by the D second appellant, of a Miss van Wyk, a young woman aged 20, who had missed her periods after intercourse with one Bierman. The first appellant examined Miss van Wyk internally and treatment by medicines and injections was given to her over a period of two or three weeks at the end of May and the beginning of June 1955. Miss van Wyk more than E once spent several days at the first appellant's house; she lost consciousness after receiving the injections and on recovering her senses found that she was bleeding from her private parts. Her periods thereafter returned. The evidence of Bierman was to the Effect that he paid the first appellant £50 for bringing about an abortion and this evidence was apparently accepted by the jury.

F It will be convenient to dispose at once of the point that the jury on each count wrongly drew an inference of guilt. It is unnecessary to repeat what was said in R v George and Another, 1953 (1) SA 382 (AD), at pp. 386 to 388, on the practical difficulty of appealing from a jury's finding. This difficulty was of course appreciated by counsel for the appellants but it was sought to apply what was said by CENTLIVRES, C.J., at p. 388, namely, that,

G 'where the evidence is entirely of a circumstantial nature and no question of the credibility of any witness arises this Court is free to consider whether the inference of guilt was correctly drawn by the jury and if it is satisfied that the inference was not warranted it may set aside the verdict.'

One must, of course, bear in mind the factor, not limited to appeals H from juries, which was stated as follows by DAVIS, A.J.A., in Rex v Dhlumayo and Another, 1948 (2) SA 677 (AD), at p. 698:

'Upon the bare record the Appellate Court can seldom, if ever, be in as good a position as the trial Judge even to draw inferences as to what is the more probable from the conduct of particular persons whom he has seen and whom the Appellate Court has not.'

In the present case on both counts the witnesses for the Crown and those for the defence were in flat contradiction upon cricial issues. Although there was in respect of each count an important element of

Schreiner JA

inference, it could only with difficulty be contended that, given the facts as deposed to by the Crown witnesses, the jury was not entitled to draw the inference of guilt. Substantially the issues were issues of credibility and the argument was really directed to showing that the A jury should not have accepted Olivier's evidence on the first count and that of Miss van Wyk and Bierman on the third count. It is in my view not possible for this Court to say that the jury could not reasonably accept that evidence and, having accepted it, draw the inferences of guilt which were drawn.

It will be convenient in the next place to deal with the contention that B in his summing up VAN WYK, J., was guilty of a misdirection in telling the jury upon the third count that,

'the question is whether you accept the evidence of the Crown witnesses or that of the defence.'

It was argued that this did not explain to the jury that if they were not sure beyond reasonable doubt which set of witnesses to believe the C Crown would have failed to prove its case. Treating the sentence in isolation it is no doubt open to this criticism but it would be wrong so to regard it. VAN WYK, J., began his summing up by explaining fully and in very clear language the nature of the onus resting upon the Crown, pointing out, in particular, that if the jury were unable to decide what D the truth was they must find the accused not guilty. Counsel argued that these remarks were made with reference to count 1 only, but even if that would have made a difference, I am satisfied that it is not the correct view of the judgment. The learned Judge was dealing with the general duty of the jury and, though he had already used some of the evidence on count 1 to illustrate a point that he was making, he had not E yet begun to deal with the individual counts. Moreover in dealing with count 3 the learned Judge said, just before the sentence complained of,

'If you find that this evidence irresistibly establishes that she was pregnant and that an abortion was performed on her . . . you will convict . . .'

There was clearly no misdirection and the point must be overruled.

F The next matter to be dealt with concerns the overruling by VAN WYK, J., of an objection, based on legal professional previlege, to certain questions relating to record cards on which the appellants claimed to have noted the treatments given to Miss de Waal and Miss van Wyk. The second appellant gave evidence before the first appellant and in answer to the learned Judge she said that there must be cards dealing with the G patients who where the subjects of the three charges. This was followed up by prosecuting counsel, and the witness stated that there was a card for Miss de Waal and a card for Miss van Wyk. The cross-examiner then propounded the suggestion that there had been no cards for these persons and that the evidence that there had been such cards was untrue. The record proceeds:

H 'I suggest that this is a fabrication on your part? - Definitely not.

Why did you then not tell your attorney:

'We have the card - the history of Engela de Waal'?

By Mr. Bloch (defending counsel): I must...