Rex v Barlin

• Jurisdiction: South Africa
• Judge: Innes CJ, Kotzé JA, Wessels JA, JER De Villiers AJA and Stratford AJA
• Judgment Date: 08 August 1926
• Hearing Date: 24 June 1926
• Citation: 1926 AD 459
• Court: Appellate Division

Innes, C.J.:

The appellant was convicted at the Cape Town criminal sessions of receiving stolen property, knowing it to have been stolen. A quantity of clothing recently stolen from a local firm was found in his shop. Among the articles thus discovered were a number of shirts from which the name-tabs had been removed. Some of the tabs were found in a dirt box under the counter. Detective Sergeant Marais had a warrant to search the premises and, after describing the result, he proceeded as follows: "When I asked the accused where he got possession of the goods he said he had bought them from various firms. I then pointed out the labels to him, and I pointed out the shirts, and I asked him if he could explain. He made no reply." At the conclusion of the trial, upon the application of counsel for the defence, the following point of law was reserved under Act 31 of 1917, sec. 372 (2), ."whether the Court acted irregularly in admitting the evidence of Detective-Sergeant Johannes Marais as to the statement made to him by the accused." Though referred to in the reservation as a possible irregularity, the question of the admissibility of evidence is really a question of law, and the point was therefore dealt with under the appropriate section. It was contended that the above evidence was wrongly admitted because (a) the police officer acted irregularly in questioning the appellant as and when he did, and (b) the replies to his questions amounted to a confession, and had not been proved in manner required by sec. 273 of the statute. It will be convenient to dispose of the latter contention at once. The only reply made to the Sergeant's query was in effect a statement that the goods had been honestly acquired. The jury did not believe it; and the fact that the explanation he gave was, in their opinion, false no doubt told against the appellant. But that cannot convert an assertion of innocence into a confession of guilt. Reliance, however, was placed upon his silence when asked to explain the presence of the shirts and he absence of tabs. Strictly, speaking, that argument falls outside the terms of the reservation, which relate only to the

Innes, C.J.

actual statement made by Barlin to Marais. But, assuming that the presiding Judge intended to reserve the question of the admissibility of the entire conversation, I am satisfied that the silence of the accused under the circumstances - whether as described by the Sergeant in his examination-in-chief or at a later stage - did not amount to a confession which required to be evidenced in manner directed by the second proviso of sec. 273 of Act 31 of 1917. It should be noted that that clause deals, not with admissions generally, but with confessions "of the commission of any offence." Such confessions - though otherwise admissible - if made before a police officer of lower grade are not admissible in evidence under the section unless "confirmed and reduced to writing" in the presence of a magistrate or justice. Now it is impossible to reduce silence to writing. After failure to reply to a compromising question an accused might conceivably be taken before higher authority, and might then voluntarily supply the answer which previously he had withheld. But if his reply took the form of a confession, it would be a new confession, not the confirmation of an earlier one. The proviso, therefore, cannot apply to a case like the...