R v Parker

• Jurisdiction: South Africa

R v Parker
1958 (2) SA 639 (A)

1958 (2) SA p639

Citation	1958 (2) SA 639 (A)
Court	Appellate Division
Judge	Schreiner JA, Steyn JA, Ogilvie Thompson AJA, Price AJA and Van Blerk AJA
Heard	March 10, 1958
Judgment	March 24, 1958

Flynote : Sleutelwoorde F

Criminal procedure — Appeal — Ground for — Irregularity in G proceedings — What amounts to.

Headnote : Kopnota

The appellant, who had been convicted in a magistrate's court of bribery, had unsuccessfully appealed to a Provincial Division which had also refused him leave to appeal. The Appellate Division had granted him leave to appeal and in his appeal the appellant contended that the H magistrate had misdirected himself in certain respects in that, inter alia, he had several times stated in his judgment that the issue before him was whether the Crown's version of the events was true or whether the defence version was true, without stating that if there was a reasonable doubt he was obliged to give the benefit of that doubt to the appellant.

Held, as it did not appear that the magistrate had in fact overlooked this elementary principle, that no irregularity had been committed. (SCHREINER, J.A., dissenting).

1958 (2) SA p640

Case Information

Appeal from a decision in the Cape Provincial Division (VAN WYK, J., and BEYERS, J.), dismissing an appeal from a conviction in a magistrate's court. Facts not material to this report have been omitted.

B. F. J. Banks, Q.C. (with him A. A. Purcell), for the appellant: There A were irregularities and/or misdirections and the reasons for judgment were unsatisfactory in that the magistrate was of the opinion that he had to accept the one reason or the other and that in consequence it was not open to him to find that there was a reasonable doubt as to the correctness of the Crown evidence. The magistrate placed an onus on the B accused to prove that his version was true, that Stemmet was lying and to show a motive why Stemmet should lie. The magistrate found corroboration to exist when in fact there was no corroboration or the magistrate over-estimated the value of such evidence. The magistrate's reasons for the acceptance of Stemmet's evidence are unsatisfactory, the magistrate failed to test the defence evidence properly and his findings C on demeanour are unsatisfactory. The magistrate overlooked and, or discarded for inadequate reasons several factors which tended to confirm appellant's defence. The magistrate misdirected himself as to the effect of certain evidence. The result is that a Court of Appeal will not confirm the conviction unless it can say, from the written record, that a reasonable tribunal, properly directed, would inevitably have D convicted. On the evidence as a whole the magistrate should have had a reasonable doubt as to the guilt of the appellant or alternatively, the evidence is such that this Court cannot find, on the written record, that the guilt of the appellant has been established beyond reasonable doubt. The magistrate was unduly influenced by the demeanour. Stemmet E was a Police Sergeant and used to giving evidence. Moreover demeanour is, in any event, a fallible guide; see R v Masemang, 1950 (2) SA at p. 495. It is unreasonable that adverse findings on demeanour should appear for the first time in the magistrate's reasons for judgment, after he had given a considered judgment at the trial; see R v Bezuidenhout, 1954 (3) SA at pp. 199, 222; R v Van der Walt, 1952 F (4) SA 382. The adverse finding on appellant's demeanour may have been influenced by the misdirections and irregularities referred to supra; see R v Toni, 1949 (1) SA at p. 120. The magistrate's findings complained of, whether they be regarded as irregularities, misdirections or grounds for holding that the reasons for judgment are G unsatisfactory, should be disregarded and this Court will only confirm the conviction if it is satisfied from the written record that the appellant was guilty of the offence charged; see R v Bezuidenhout supra, at pp. 193, 198; R v Toni, ibid; R v Abel, 1948 (1) SA at p. 664; R v Kirston, 1950 (3) SA 659.

P. H. J. Krijnauw, for the Crown: Indien die Hof mag vind dat die H landdros gefouteer het soos beweer deur appellant, sal die Hof nietemin beslis wat 'n Hof, behoorlik ingelig en nie geaffekteer deur enige onreëlmatigheid nie, sou besluit het; sien R v Patel, 1946 AD op bl. 908; R v Krasner, 1950 (2) SA 475; R v Gwata, 1954 (2) P.H. H.170; R v Matsego and Others, 1956 (3) SA op bl. 418. Hierdie Hof sal waarde heg aan die landdros se bevindings ten opsigte van die algemene indruk wat die getuies op die hof gemaak het; sien

1958 (2) SA p641

Koekemoer v Marais, 1934 (2) P.H. J.27; Cheek v Cheek, 1935 AD 336; R v Macaba, 1938 (2) P.H. F.161; Bicton v Rosenberg, 1936 AD op bl. 396; R v Mokwena, 1940 OPD 130; Scoble, Law of Evidence (3de uitgawe, p. 384); R v Dhlamayo and Another, 1948 (2) SA 687.

Banks, Q.C. in reply.

Cur. adv. vult. A

Postea (March 24th).

Judgment

B Schreiner, J.A.:

I have had the advantage of reading the judgment of my Brother PRICE but have reached a different conclusion for the following reasons.

Substantially this was a case in which, with due regard to the onus of proof, one man's evidence had to be weighed against that of the other C and this was a...