R v Steyn

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and Hoexter JA
• Judgment Date: 04 December 1953
• Hearing Date: 05 November 1953
• Court: Appellate Division

Greenberg, J.A.:

This in an application for leave to appeal against a F judgment of the High Court of Southern Rhodesia, dismissing an appeal from a decision by a magistrate, in which he convicted the applicant of the crime of theft as defined by the Stock and Produce Theft Repression Act (Chap. 43 of the Statutes of Southern Rhodesia). Counsel for the respondent opposed the granting of leave, but full argument was heard on the issue on which leave is sought and at the close of argument both G counsel, in response to an enquiry from the Court, intimated that, if leave to appeal was granted, they had no additional arguments to advance on the appeal itself. It is clear that this is a case in which leave should be granted; it is therefore granted and I proceed to deal with the matter on this basis.

The two grounds of appeal that were argued in the High Court were:

'1. That the verdict is against the weight of evidence and contrary to law.

2. That the magistrate wrongly and to the prejudice of the appellant refused the application made by the defence for the production of the H statements made by the Crown witnesses who gave evidence against the appellant and which were in the possession of Constable Wheeler.'

In this Court, Mr. Miller, on behalf of the applicant (now the appellant), while not abandoning the first ground, advanced no argument in support of it and it is sufficient to say that there appears to be no reason for interfering with the magistrate's judgment on this ground. This

Greenberg JA

makes it unnecessary to deal with the facts of the case except in so far as they relate to the magistrate's refusal to order the production, unless the second ground of appeal is well founded and the question has to be considered whether that refusal has caused substantial prejudice to the appellant. These facts lie within a small compass. The first witness for the Crown, Constable Wheeler, said in cross-examination that A he was the investigating officer and took statements from the Crown witnesses, that he recorded only one statement from each witness and that the witnesses had not altered their statements. There was no challenge, in cross-examination (or elsewhere) of this evidence and none of the subsequent Crown witnesses were asked anything about the statements they had made to the police before the trial; no reference B whatsoever was made to these statements, but after the close of the Crown case Wheeler was recalled for cross-examination by counsel who appeared for the appellant and the record reads:

'I took the statement from the witnesses and reduced them to writing and handed the docket to the member in charge, Sergeant Downham. I have completed my investigations. On several occasions I handed it to the member in charge for perusal and instructions. Finally he handed it to the prosecutor.

Question: Will you produce these statements. (Prosecutor objects to C producing police statements made in the course of investigations.)

By the Court: I don't know if I am allowed to do that or not.

Further cross-examined . . .:

I refer to the witnesses' statements. They relate solely to this case - to the facts of this case. I am not allowed to show a statement to any member of the public. (Witness need not produce until the prosecutor has obtained the permission of the Attorney-General.)'

D At a later stage of the trial, the magistrate made an order in these Terms:

'In regard to production of police statements prosecutor states Attorney-General has not granted permission for them to be produced. In the circumstances the court feels that it would be improper to compel the production of documents normally confidential, a fortiori in ignorance of the contents of those documents. The application is refused.'

From these facts it appears that the application, the refusal of which E is challenged in this appeal, was an application for production, after the witnesses had given their evidence, of the statements that they had made to the police before the trial. This circumstance shows that there was no danger that the production might lead to a tampering, by the defence, with the witnesses for the Crown, before they gave their evidence in chief. It appears also that there was nothing before the F trial court to suggest any conflict between the statements and the evidence given at the trial, but this is irrelevant if there is a rule of law, entitling the appellant to production as contended for on his behalf.

The grounds for this contention are:

'(a) In principle a witness may always be asked whether he has made a statement on the same subject on a previous occasion, and such statement, if in the possession of the cross-examining party, may be put G to such witness, who may admit or deny that the statement was made by him. If he denies it, and the previous statement is inconsistent with his present testimony, such previous statement may be proved by the person to whom it was made.

(b) Where such previous statement is not in the possession of the cross-examining party, but in the possession of a Crown witness, the latter, be he policeman or civilian, must produce it, unless it is claimed and shown that the statement is privileged and therefore protected from disclosure.

(c) There is no such privilege.'

H The governing statutory enactment in Southern Rhodesia is sec. 327 of Chap. 28, which reads as follows:

'It shall be competent to any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of such party in any manner and by any evidence in and by which, if the proceedings were depending before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever.'

Greenberg JA

It is in the same terms as sec. 319 of Act 31 of 1917 of the Union, except for the proviso that has been added to the latter by sec. 57 of Act 46 of 1935. The English provision is contained in secs. 4 and 5 of Chap. 18, 28 Victoriae, 1865, which is referred to in some of the cases as Lord Denman's Act. Secs. 4 and 5 provide:

'4. If a witness, upon cross-examination as to a former statement made A by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

5. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the B indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the Judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.'

C It appears to me that grounds (a) and (b) of the contention are well-founded and the whole question is whether the statements would be privileged according to English Law. In Regina v H., 1952 (4) SA 344 (T) it was held that the Crown is obliged to produce statements of the same character as those in the present case and called for in the same circumstances, but unfortunately, the question of privilege does not D appear to have been argued at all and was disposed of without any reason having been given, in one sentence, at p. 348:

'In the absence of privilege - and there was none - I can see no reason for excluding the documents.'

In most of the decided cases and text-books, both in England and South Africa, privilege is accorded to evidence of State secrets, of the identity of an informer in criminal proceedings and of communications E between a legal adviser and his client, which is commonly referred to as 'professional privilege'. Taylor on Evidence (12th ed. Vol. 1 para. 909) refers to other classes which are not relevant to this case and does not mention an informer, but the latter would no doubt be covered by his reference...