R v Heyne and Others

• Jurisdiction: South Africa
• Judgment Date: 19 June 1956
• Citation: 1956 (3) SA 604 (A)

R v Heyne and Others
1956 (3) SA 604 (A)

1956 (3) SA p604

Citation	1956 (3) SA 604 (A)
Court	Appellate Division
Judge	Schreiner JA, Fagan JA, De Beer JA, Hall JA and Beyers JA
Heard	May 28-30, 1956; June 1, 4-9, 11-13, 1956; June 14, 1956
Judgment	June 19, 1956

Flynote : Sleutelwoorde

Criminal law — Fraud — Planned course of fraudulent conduct — Can be charged as a single fraud — Collaborators participating at different times — Effect — Attempted fraud a crime — False representations can be made by liquor licensees falsifying books to show to Police in exercise of their powers of supervision under Act 30 of F 1928 — If representation not completed licensees may be guilty of attempted fraud — Prejudice to State arising from false representations to Police — Criminal procedure — Indictment — Splitting of charges — Series of acts charged as part of a criminal scheme — Can only be charged as one count — Cannot be G arbitrarily divided into separate periods of time — Trial — Separation of trials — When to be granted.

Headnote : Kopnota

In a proper case a planned course of fraudulent conduct may be charged as a single crime of fraud, even if it might also be possible to analyse it into a series of separate frauds.

Where the participations of several collaborators in a fraudulent course of conduct have not covered precisely the same period, particulars may H be necessary to inform them of the extent of their alleged participation, but the Crown would not be precluded from charging them together on a course of conduct basis. In each case it is necessary to decide whether there has been prejudice to the accused.

The Court is not necessarily obliged to grant a separation of trials where there is a reasonable possibility of prejudice to the accused. Inconvenience to the Crown is a factor to be taken into account, especially in the case of an exceptionally long trial. The decision is essentially one within the discretion of the trial Judge.

1956 (3) SA p605

When a liquor licensee hands over or produces his books to the police for inspection the natural inference is that he is representing that they do not contain entries that are false to his knowledge and that he is saying in effect that there are no deliberately dishonest omissions. Assuming there to have been no completed representation, however, in the sense of a communication to the mind of the persons addressed, nevertheless when false entries have been intentionally made in the A books and actual, illegal transactions have been intentionally omitted from them, fraud was criminally attempted, assuming the other requisites to be present.

To constitute prejudice, actual or potential, the false statement must be such as to involve some risk of harm, which need not be financial or proprietary, but must not be too remote or fanciful, to some person, not necessarily the person to whom it is addressed.

False representations calculated to weaken the control given to the police by the Liquor Act, 30 of 1928, by deceiving them are also B calculated to harm the State really and not only theoretically, and the requirement of prejudice is thus satisfied by the risk of harm to the State.

Per SCHREINER, J.A.; FAGAN, J.A., DE BEER, J.A. and BEYERS, J.A., concurring; HALL, J.A., dissenting: If the Crown relies upon a course of conduct, with such advantages from its point of view as there may be, the course of conduct must be regarded as one continuous crime, provable in various ways, including the proof of individual criminal acts making C up the course of conduct. In the absence of statutory authority the Crown cannot obtain the advantage of charging a course of conduct and at the same time retain the advantage, if it can be so called, of being able to ask for punishment as if a number of offences had been charged. The Crown is not entitled, therefore, to take a series of acts, performed over a period as part of a single criminal scheme, and split it up, not into the individual acts each of which is a crime, but into a number of sub-series, distinguished only by their occurring during D successive sub-periods of the total period - each sub-series then being treated as a separate count.

Case Information

Appeals from convictions in, and on questions of law reserved in the Witwatersrand Local Division (RUMPFF, J., sitting alone), leave to appeal having been granted. The facts appear from the judgment of SCHREINER, J.A.

E Morris, for the appellants Lambert Johannes Duncker, Johannes Jacobus van den Berg and Nicolaas Johannes van Zyl: As to count one, charging fraud, the charge, as amplified by the further particulars is so framed as to be bad in law and embarrassing and prejudicial to the appellants. The particulars supplied, so far from 'narrowing the issues before the F Court', enlarged them considerably; cf. Curtis-Setchell, Lloyd & Mathews v Koeppen, 1948 (3) SA 1024. Inter alia, when it was sought to ascertain what the Crown case was as to prejudice, the Crown gave a reply which was embarrassing and incompetent; cf. R v Andrews and Others, 1948 (3) SA at p. 581; R v City Silk Emporium (Pty.), Ltd. G and Meer, 1950 (1) SA at p. 833; R v Mokgatle and Another, 1952 (2) SA at pp. 129 - 30; R v Pope and le Roux, 1952 (3) SA at pp. 416 - 7. Appellants were not given information sufficient properly to acquaint them with the case they had to meet; cf. R v Nel and Nel, 9 E.D.C. 82; R v Meaker, 1933 OPD at pp. 223 - 34, 237 - 9; R v Verity-Amm, 1934 T.P.D. at p. 423. To frame a charge of fraud as a H course of conduct over two years is incompetent, embarrassing and prejudicial. Further, the method adopted in the present case was more so because of the wide range of dissimilar elements to be found in the charge. As to the setting forth of the charge, see sec. 127 (1) of Act 31 of 1917. It is not proper to charge a large number of acts which might constitute offences, in one indictment, save under specific statutory authority; see R v Graaff, 1917 E

1956 (3) SA p606

C.P.D. 65. Act 31 of 1917 was subsequently amended to allow this type of charge to be brought in regard to sexual offences; see sec. 125 (4) inserted by sec. 18 of Act 39 of 1926. Similar examples of statutory A authority are to be found in sec. 128. Sec. 129, dealing with a general deficiency is not a true example. The authorities in this regard fall into two categories, viz. the joinder of alternative offences in one charge and the joinder of distinct offences in one charge. The former again fall into two categories, the case of true alternatives and the case where a statutory offence can be committed in one of several ways; see R v Foord, 1948 (3) SA at pp. 510 - 1. As to alternatives, see B R v Schach, 1927 T.P.D. at pp. 840 - 1, at which considerable criticism has been levelled; R v Somni, 1946 OPD I; R v Smit and Another, 1946 AD at p. 870; R v Mfetshane, 1946 T.P.D. at pp. 587, 590; R v Takash, 1947 (3) SA at pp. 277; R v Foord, ibid.; R v van der Ross, 1954 (1) SA at p. 551. As to joining separate offences, see R v Harmer, 1906 T.S. at p. 52; R v Vivian, 1917 T.P.D. at pp. C 590 - 1; R v Dadla, 1921 CPD at pp. 545 - 6; R v de Klerk, 1930 T.P.D. 567; R v van Rensburg, 1931 OPD 182; Chowthee v R., 1931 NPD 113; Mpanda v R., 1932 NPD at pp. 47 - 51; R v Stóffela Mdunge, 1933 NPD 498; Olivier v R., 1945 OPD at p. 106; R v Mfetshane, ibid., R v Foord, ibid. As to vagueness in regard to D time, see R v Graaff, ibid.; R v Ullrich, 1927 S.W.A. 85; R v Woolf, 1935 CPD at p. 242; R v van der Westhuizen, 1936 OPD 181. As to the effect of a charge of this type, see R v Gattoo, 1953 (2) SA at pp. 242 - 3. The joinder of many different offences of the same type was incompetent and embarrassing in the present case. At the end of E the Crown case it was not certain whether appellants were or were not discharged on certain aspects of the charge, nor was it certain whether appellants were charged with completed offences or attempts, or perhaps acts of preparation, nor was it clear in respect of which alleged false representations they were found guilty. Further, the vagueness as to time was embarrassing and prejudicial. The charge is embarrassing also F for the reason that all the representations are alleged to have been made to all the persons indicated in the four categories set forth and it is not clear, with one exception, which person is supposed to have been prejudiced by which representation. The fraud charged was not established by the evidence. No representations were made at all in G regard to the counter-books and stock books; cf. R v Hendrickz, 1938 W.L.D. 277; R v Henkes, 1941 AD at p. 161; R v Tru Products (Pty.) Ltd. and Others, 1954 (4) SA at pp. 358 - 64, 367 - 8. There was no reason why the driver of the van was not called to prove that, when he was given the invoice, his instructions were contrary to the tenor thereof; cf. R v Filanius, 1916 T.P.D. at p. 415; Elgin Fireclays Ltd. H v. Webb, 1947 (4) SA at pp. 749 - 50. The Crown was bound to prove the offence as particularised and could not go beyond the particulars. See R v Levard, 1928 T.P.D. at p. 320; R v Anthony, 1938 T.P.D. at p. 604. On the facts, there may have been an intent to deceive but there was no intent to defraud. Cf. R v Hymans, 1927 AD at p. 38; R v Steyn, 1927 OPD at p. 174; R v Hoare, 1927 E.D.L. at p. 335; R v Lazarus, 1922 CPD at p. 296; R v Yenson, 1933 T.P.D. at p. 513. There is no such crime at attempted fraud. See R v Hoare,

1956 (3) SA p607

R v Lazarus, R v Yenson, all supra; R v Nay, 1934 T.P.D. at p. 54; R v Cohen, 1934 CPD at p. 33; R v Visser, 1935 T.P.D. 296; R v Dyonta and Another, 1935 AD at p. 57; R v Mwerwa, 1938 S.R. 194; R v John, 1943 S.R. at p. 31; R v Butler, 1947 (2) SA 935; R. v. A Moshesh, 1948 (1) SA at pp. 689 - 91; R v Adam, 1955 (2) SA at pp. 70 - 1. On the days that the weekly...