Rex v Difford

• Jurisdiction: South Africa
• Judge: Curlewis CJ, De Wet JA and Watermeyer AJA
• Judgment Date: 01 May 1937
• Citation: 1937 AD 370
• Hearing Date: 15 April 1937
• Court: Appellate Division

Rex Respondent v Difford Appellant
1937 AD 370

1937 AD p370

Citation	1937 AD 370
Court	Appellate Division
Judge	Curlewis CJ, De Wet JA and Watermeyer AJA
Heard	April 15, 1937
Judgment	May 1, 1937

Flynote : Sleutelwoorde

Criminal Procedure — Appeal — Appellate Division — Appeal allowed — No evidence justifying conviction.

Headnote : Kopnota

Where an accused had been convicted by a Judge and assessors of the theft of certain money in his control, the learned Judge having rejected the accused's explanation for its disappearance.

Held, upon a question of law reserved (CURLEWIS, C.J., dissenting, that on the facts a reasonable man could not have found a verdict of guilty against the accused and that the appeal should, therefore, be allowed.

Case Information

Appeal upon a question of law reserved by GREENBERG, J., sitting with assessors in the Criminal Sessions at Johannesburg.

Application was also made in the alternative for the remittal of the case to the trial Court to hear certain further evidence.

1937 AD p371

The facts appear from the judgment of WATERMEYER, A.J.A.

R.Stratford, K.C. (with him H. J. Clayden) for the accused: as to the petition for remittal for the hearing of further evidence.

F.E. Lutge for the Crown: This is not an appeal and does not therefore fall within sec. 4 of Act 1 of 1911. See Rex v Mhlongo and Another (1935 AD 133) and Rex v Knight (1935, 1 P.H.H. 182).

[CURLEWIS, C.J., intimated that the Court considered it more desirable and expeditious to hear arguments on the appeal and the petition at the same time.]

Stratford, K.C., on the appeal: I admit that the appeal cannot succeed unless the Court is satisfied that no one applying his mind reasonably to the evidence could have come to the conclusion that the accused's guilt was proved beyond a reasonable doubt, as decided in Rex v Shein (1925 AD 6) and Rex v Kumalo and Another (1930 AD 193), confirmed in Rex v Wall (1937 AD 209).

As the evidence is purely circumstantial and there is no conflict except in immaterial respects between Crown and defence evidence, the conclusion is necessarily based on inference from facts and this Court is in the same position as the Court a quo.

The fundamental rule in considering circumstantial evidence is that, in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. See Wills on Circumstantial Evidence (6th ed. pp. 311, 413); Rex v Tshabangu (1934 AD 514); Rex v Dube (1915 AD 557) and Hodge's case (168 E.R. 1136).

F. E. Lutge on the appeal: As to the test to be applied see, Rex v Koen (1937 AD per DE VILLIERS, J.A.); Rex v Munnik (1932 AD unreported); Rex v Fardully (1914 AD at p. 191), and Rex v van der Vyver (1932, O.P.D at p. 174).

Stratford, K.C., on the application for remittal of the case: This is an appeal. See Rex v Wildauer (1934 AD 51); Rex V. Mhlongo and Another (supra).

Assuming that this is not an appeal and Act 1 of 1911 does not apply sec. 374 (e) of the Code gives the Court power to grant the application.

Lutge on the application: Sec. 374 (e) does not apply as it does not deal with the remittal of cases. It must be read in the light of the preceding sub-sections and those sections deal with jury cases.

1937 AD p372

Cur adv vult.

Postea (May 1st).

Judgment

Watermeyer, A.J.A.:

In this case the accused was convicted of the crime of theft by GREENBERG, J sitting without a jury or assessors.

After conviction the following question of law was reserved.

"Whether at the conclusion of the trial there was any evidence upon which the Judge without a jury, was entitled to convict the accused of the crime charged in the indictment."

There is little dispute about the facts of the case. What difficulty there is arises in regard to the inferences to be drawn from the facts. In considering these inferences this Court is greatly assisted by the very full reasons for judgment furnished by the learned Judge in which he gives us a complete picture of his reasoning, detailing his inferences step by step and showing exactly what influenced him in drawing his conclusions from the evidence.

The accused was the secretary of the South Roodepoort Main Reef Areas Gold Mine and also paymaster and cashier. As such he was in charge of a certain amount of cash belonging to the mine, being a floating balance kept for the purpose of making necessary payments from time to time, and also of certain sums of money put in his custody for safekeeping by individual employees on the mine. This cash was kept in his office, in a safe of which he alone had the key. On the morning of 7 October there should have been £311 13s. 3d. in his possession, £268 13s. 3d being money belonging to the mine and £43 being money belonging to individuals.

On the morning of 7 October the auditors arrived. Accused might have expected an audit somewhere about that date but he did not know that the auditors were coming on that particular day. What took place then is set out thus in the reasons of the learned Judge: "The auditor, Mr. Dawson, arrived somewhere about 9o'clock that morning, and shortly after that he asked the accused for his cash book. The accused told him that his cash book had not been written up, as in fact it was not, and he said he would write it up. The auditor did not check the cash then, as I understand, it would not have been of much use until the

1937 AD p373

Watermeyer, A.J.A.

cash book was written up. Some time during the morning, about 11 o'clock, £300, which had been requisitioned from the head office by the accused some days before, arrived and was handed to the accused. Shortly afterwards the accused reported to the manager that the safe had been rifled. He told the manager that he had not had occasion to go to the safe previously that morning but that he went to the safe in order, to put away the balance of the £300, after he had paid a man named Rudsinske £50, he found that the door of the safe was slightly ajar, and that the key of the safe was in the door. When he looked inside the safe he found there was no money."

The legal position is then summed up thus by the learned Judge: "It is not disputed on behalf of the defence that in the absence of some explanation the Court would be entitled to convict the accused. It is not a question of throwing any onus on the accused, but in these circumstances it would be a conclusion which the Court could draw if no explanation were given. It is equally clear that no onus rests on the accused to convince the Court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal, and I turn at once to consider what his explanation is."

No fault can be found with this method of approaching the problem. The learned Judge then proceeds: "The accused says that on the evening of the 6th October he changed from his ordinary dress into evening dress, and that he left the key of the safe in the waistcoat pocket of his ordinary clothes which he left hanging over a chair in his room when he went out to a dance. He returned from the dance at about 4 o'clock in the morning and noticed nothing wrong in his room, either at that stage or at any later stage. When he got dressed to go to work he put on the same suit which he had on the day before, and he had no occasion to look for the key of the safe until about 11o'clock, the occasion which I have mentioned when it was necessary for him to put the money which had come from the head office into the safe. He says that he then found that the key of the safe was not in his waistcoat pocket and that the door

1937 AD p374

Watermeyer, A.J.A.

of the safe was in the position I have mentioned."

He then proceeds to consider all the surrounding circumstances to ascertain whether he can accept the accused's story or reject it as untrue or whether he is left in doubt about its truth. He realised that he could only convict if he rejected it and not if he was left in doubt about it.

The first branch of the evidence considered by the learned Judge is that dealing with the offices in which the safe stood. There were four offices in a row, forming one single storied building, each office had an independent entrance except the manager's and there were internal communicating doors between the offices.

Accused's bedroom was some 60-70 yards away from the offices.

A native boy locked the offices at 10 p.m. on the 6th and patrolled the premises till 4.30 a.m. when he went off duty and left the keys of the doors in the mess kitchen on the table. His evidence was that all the outside doors were locked and that the window of accused's office was shut. Another native took the keys from the kitchen table and opened the offices at 6 a.m. on the 7th. He said in evidence that he found the window of accused's office standing open, he also stated to the police that he had found the door of one of the offices unlocked in the morning at 6 a.m. though he does not appear to have repeated this statement in the box. This evidence is important and cannot be dismissed from consideration because if the door and window were found open and if the native who locked up is to be believed then the evidence of an open door and window certainly suggests that someone went into the office during the night.

The learned Judge drew no inference from this evidence; he said he was at a loss to explain the open window and he seems to have lost sight of the evidence as to the unlocked door.

He then examined the accused's story about the key, he does not...