Rex v Didat

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes ACJ and Solomon J
• Judgment Date: 30 May 1913
• Citation: 1913 AD 299
• Hearing Date: 27 May 1913

Rex Respondent v Didat Applicant
1913 AD 299

1913 AD p299

Citation	1913 AD 299
Court	Appellate Division, Cape Town
Judge	Innes ACJ and Solomon J
Heard	May 27, 1913
Judgment	May 30, 1913

Flynote : Sleutelwoorde

Appeal — Special leave — Criminal case — Jury trial.

Headnote : Kopnota

The Appellate Division follows the practice of the Privy Council with regard to appeals from convictions by a jury in criminal cases and will not review or interfere with the course of such cams unless it in shown that by a disregard of the form of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done.

Special leave to appeal from a conviction for murder by a jury in Natal refused.

The decision in Dillet's case (L.R. 12 A.C. 467) followed.

The case of R. v Mpeta (1912 AD 568) distinguished.

Case Information

Application for special leave to appeal from a conviction for murder on a trial before CARTER, J., and a jury in the Natal Provincial Division.

E. Renaud, for the applicant: Before Union it was competent for a person who had been convicted to apply to the Privy Council for leave to appeal. See Stephen's History of the Criminal Law (Vol. 1, p. 180 3 and 4, Will 4 cap. 41, Privy Council Rules of 19th July, 1870. By sec. 104 of the SA Act, the same provisions apply to the Appellate Division. The Judge should have warned the accused that he might give evidence on his own behalf, even though his counsel had said he called no further evidence. There was a

1913 AD p300

misdirection, inasmuch as the jury was told that the witness Chinappen did not require corroboration. He was an accomplice and shared in the proceeds of the crime. See R v Abrams (1 S.C. 393) and R v Ellson (28 T.L.R.1). The words "accomplice" and "accessory" are synonymous. See Nathan's Common Law (Vol. 4, sec. 2463), and Warren's case (2 Crim. App. Rep. 194). This Court has a wider jurisdiction than a Court of Criminal Appeal in England, and has unfettered discretion in dealing with appeals.

[INNES, C.J.: Can we increase a sentence as the Court of Criminal Appeal can. We stand in the position of the Privy Council and not of that Court.]

There is no evidence to support the verdict, and if this Court is in the same position as the Privy Council it is useless to argue on the facts. See In re Dillett (16 Cox C.C. 241).

E. W. Douglass, K.C., A.-G., of Natal (with him L. G. Nightingale), for the Crown: This Court has jurisdiction, but will not interfere unless there has been a disregard of the forms of legal process or of natural justice and a grave injustice has been done. See Tshingumuzi v The Attorney-General (1908, A.C. 248). Chinappen was not an accomplice, even if the money lie received was part of the proceeds of the crime. See R v Wolff (1902, T.S. 290); R v Maphaga (25 S.C. 230), and Russell on Crimes (7th ed., vol. 2, p. 2292). An accomplice does not require to be corroborated.

Renaud, in reply.

Cur adv vult.

Postea, on May 30th.

Judgment

Innes, Actng. C.J.:

This is a petition for leave to appeal against a conviction on a charge of murder entered at a trial before a judge and jury at the Maritzburg Sessions of the Natal Provincial Division. The applicant was indicted together with a man named Kisten, for the murder of one Omar Kassim, an Indian storekeeper. He was found guilty by a majority of seven to two, while hip, companion was discharged because in his case there were only six jurymen in favour of a conviction, a number insufficient according to the law of Natal to justify a verdict of guilty. Several rounds are...