Rex v Carr

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA and Hoexter JA
• Judgment Date: 09 April 1949
• Citation: 1949 (2) SA 693 (A)
• Court: Appellate Division

Greenberg, J.A.:

The appellant was charged in the Port Elizabeth Circuit Local Division with the murder, on the 9th December, 1947, of Pamela Claire Pierce, a European female child. He was tried by REYNOLDS, J., sitting with assessors, was convicted and, no extenuating circumstances having been found, was sentenced to death. He was granted leave to appeal, under sec. 369 of the Criminal Procedure and Evidence Act, 1917, as amended by Act 37 of 1948, and now appeals on the grounds (1) that the conviction was not supported by the evidence in that (a) the evidence did not establish that the death of the deceased was caused by throttling or other unlawful act and (b) the evidence did not establish that the appellant caused the death; (2) that should the Court find that the appellant did cause the death of the deceased by inflicting an injury to her liver, it is not established that he did so with intention to kill.

Greenberg JA

The motive which the Crown has sought to prove for the crime arises out of the relationship between the appellant and the deceased and I shall therefore set out the facts in regard to this relationship at once.

[The learned Judge dealt with such evidence and proceeded to analyse other evidence given as to what happened to the deceased until she was found dead that evening and of the doctor who was called in that same evening. The learned Judge having also dealt with the evidence of the doctor who conducted the post-mortem examination, proceeded.]

An inquest was held commencing on the 19th January, 1948, and thereafter a preparatory examination was commenced against the appellant on charges of (1) culpable homicide, (2) contravening sec. 16 (1) of Act 31 of 1937, i.e. ill-treatment or neglect of a child. During the course of the preparatory examination, viz., on the 21st September, 1948, the body of the deceased was exhumed and examined, on behalf of the Crown, by Dr. Loubser, who is the District Surgeon of Pretoria and Professor of Forensic Medicine at the Pretoria University. It transpired in the evidence which he gave the next day at the preparatory examination that he came to the conclusion that there was a mark on the right side of the neck which showed that there had been bruising at this spot before the death of the deceased and which, because of its position in relation to the bruise on the left side of the neck found by Dr. Miller at the post mortem examination, and because of the petechial marks referred to in the post mortem report, showed that the deceased had been throttled and that this was the cause of death. As a result of his observations, the charge against the appellant was altered to one of murder.

At the trial evidence was given, on behalf of the Crown, by Dr. Loubser, Dr. Harington, Dr. Mcdonald and Dr. Miller. Dr. Harington is a registered pathologist of the South African Institute of Medical Research stationed at Port Elizabeth. He examined the corpse, for reasons which will be referred to later, on the 23rd September, two days after Dr. Loubser; the latter on the 21st had dissected the skin over the site of the alleged bruise and to the extent resultant on these operations Dr. Harington was not in a position to make original observations and had to rely on information given him by Dr. Loubser. He agreed in his evidence with Dr. Loubser's conclusion as to the bruise and the cause of death, as did Dr.

Greenberg JA

Mcdonald. Dr. Miller adhered to his view of the cause of death as contained in his post mortem report. For the defence, evidence was given by Dr. Gordon, who is a registered pathologist at present in charge of the Government Pathological Laboratory at Durban, and Dr. Sampson, who is in private practice as a specialist pathologist at Durban with a long record of public service as a pathologist. These two witnesses had not seen the corpse and the data for their conclusions were the evidence of facts given by the Crown medical witnesses. They...