R v McMillan and Another

JurisdictionSouth Africa
JudgeDe Villiers JP
Judgment Date17 June 1958
Citation1958 (3) SA 800 (E)
Hearing Date17 June 1958
CourtEastern Cape Division

B De Villiers, J.P.:

The two accused before me are charged with the murder of a native woman. They were in the first instance committed for trial together with a third person, but the charge against him has been withdrawn temporarily, and the preparatory examination was reopened and he was called as a witness for the Crown. There are in the record before C me three statements made by the three people who were originally charged together, and these statements are pro tanto confessions in various degrees, but each of these statements puts the major blame on somebody else. One may say that these statements can be divided into two parts. The present accused No. 1 and the person who was accused No. 2 at D the preparatory examination on the one side and accused No. 3 (now accused No. 2) on the other side. Accused Nos. 1 and 2 put the blame for the actual killing on No. 3 accused, and No. 3 accused puts the blame of the actual violence on accused No. 2 with the assistance of accused No. 1.

Arising out of this position, Mr. Mullins, who appears at the request of E the Court for accused No. 3, has applied for a separation of trials, and this application has been heard by me alone, my assessors, who have not yet been sworn, having been requested to leave the Court until this question is decided.

I have been referred to an analysis of the decided cases on the point as given by the learned authors in the first volume of Gardiner and F Lansdown, pp. 355 - 8, and a perusal of this analysis of the cases and of some of the cases that have been quoted from the Bar, indicates that the principle that must guide me is the question of prejudice. It is not just a bare possibility of prejudice to No. 3 that must persuade me to grant his application of trials, but there must be some real danger; as G it was put in the case quoted by Mr. D' Arcy, the case of R v Nzuza and Another, 1952 (4) SA 376 (AD), where the Appellate Division went into this question, there must be some probability of prejudice. The cases also show that this probability of prejudice varies as to whether the trial is before a jury or before a Judge alone or before a Judge and assessors. One can also say that in the latter case it will vary H according to whether the assessors are trained lawyers or practising magistrates or brother Judges or laymen, because it is quite competent for a Judge to call to his assistance in a case where assessors are compulsory people who are not...

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5 practice notes
  • S v Bapela and Another
    • South Africa
    • Invalid date
    ...learned Judge only taken the trouble to consult decisions such as R v Nzuza and Another 1952 (4) SA 376 (A), R v McMillan and Another 1958 (3) SA 800 (E) and R v B Mfuduka and Another 1960 (4) SA 770 (C), or if he had only afforded counsel for the State, who was obviously caught by surprise......
  • S v Levy
    • South Africa
    • Invalid date
    ...accused persons at a joint trial is not necessarily a ground 1967 (1) SA p348 Hiemstra J for separation (R v McMillan and Others, 1958 (3) SA 800 (E), and R v Mfuduka and Another, 1960 (4) SA 770 (C)). It might even be in the interests of justice to refuse a separation in that the various d......
  • S v Bapela and Another
    • South Africa
    • Appellate Division
    • 28 September 1984
    ...learned Judge only taken the trouble to consult decisions such as R v Nzuza and Another 1952 (4) SA 376 (A), R v McMillan and Another 1958 (3) SA 800 (E) and R v B Mfuduka and Another 1960 (4) SA 770 (C), or if he had only afforded counsel for the State, who was obviously caught by surprise......
  • R v Nkosi
    • South Africa
    • Invalid date
    ...nie aan H die beskuldigde toegeken moes word nie. Gesag vir hierdie soort vonnisse word gevind in 'n uitspraak in verband met sekere 1958 (3) SA p800 Rumpff E hersieningsake wat voor REGTER MURRAY gekom het in 1955. REGTER MURRAY het in die geval van die Kroon teen Mojafe en Andere, 1955 (2......
  • Request a trial to view additional results
5 cases
  • S v Bapela and Another
    • South Africa
    • Invalid date
    ...learned Judge only taken the trouble to consult decisions such as R v Nzuza and Another 1952 (4) SA 376 (A), R v McMillan and Another 1958 (3) SA 800 (E) and R v B Mfuduka and Another 1960 (4) SA 770 (C), or if he had only afforded counsel for the State, who was obviously caught by surprise......
  • S v Levy
    • South Africa
    • Invalid date
    ...accused persons at a joint trial is not necessarily a ground 1967 (1) SA p348 Hiemstra J for separation (R v McMillan and Others, 1958 (3) SA 800 (E), and R v Mfuduka and Another, 1960 (4) SA 770 (C)). It might even be in the interests of justice to refuse a separation in that the various d......
  • S v Bapela and Another
    • South Africa
    • Appellate Division
    • 28 September 1984
    ...learned Judge only taken the trouble to consult decisions such as R v Nzuza and Another 1952 (4) SA 376 (A), R v McMillan and Another 1958 (3) SA 800 (E) and R v B Mfuduka and Another 1960 (4) SA 770 (C), or if he had only afforded counsel for the State, who was obviously caught by surprise......
  • R v Nkosi
    • South Africa
    • Invalid date
    ...nie aan H die beskuldigde toegeken moes word nie. Gesag vir hierdie soort vonnisse word gevind in 'n uitspraak in verband met sekere 1958 (3) SA p800 Rumpff E hersieningsake wat voor REGTER MURRAY gekom het in 1955. REGTER MURRAY het in die geval van die Kroon teen Mojafe en Andere, 1955 (2......
  • Request a trial to view additional results

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