Rex v Duetsimi

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA, and Hoexter JA
• Judgment Date: 19 June 1950
• Citation: 1950 (3) SA 674 (A)
• Hearing Date: 15 June 1950
• Court: Appellate Division

Rex v Duetsimi
1950 (3) SA 674 (A)

1950 (3) SA p674

Citation	1950 (3) SA 674 (A)
Court	Appellate Division
Judge	Schreiner JA, Van Den Heever JA, and Hoexter JA
Heard	June 15, 1950
Judgment	June 19, 1950

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Statements not amounting to a E confession — What facts Crown may prove — Charge of housebreaking — Accused pointing out to police sergeant premises burgled and door by which entry effected — Pointing out amounting to a confession — Inadmissibility of.

Headnote : Kopnota

F The true basis of the decision in Rex v Samhando (1943 AD 608) is that, in relation to statements not amounting to confessions within the meaning of section 23 of Act 31 of 1917, the fact that the statements have not been shown to have been freely and voluntarily made does not prevent proof by the Crown not only of facts discovered in consequence G of such statements (including the whereabouts of things connected with the crime), but also of the fact that the accused pointed out such things.

On a charge of house-breaking with intent to rob and robbery the Crown had sought to admit evidence that the appellant, who had been found in possession of certain blankets alleged to have been taken from the burgled shop, had pointed out to a police sergeant, who had been ignorant of the burglary, the shop which had been. burgled and the door by which entry had been effected. The trial Court had refused to admit H the evidence relating to the pointing out of the door, but had admitted that of the pointing out of the shop.

Held, as the pointing out of the shop was also part of a confession made to a peace officer, that such evidence was likewise inadmissible and that therefore all the evidence relating to all the pointing out should have been excluded.

Rex v Samhando (1943 AD 608) explained and disinguished.

The questions whether the police sergeant's ignorance of the crime at the time of the visit to the burgled area could in any event have supported the contention that the whereabouts of the shop was discovered in consequence of the pointing out by the appellant so as to let in the rule in Rex v Samhando

1950 (3) SA p675

(supra), and in what circumstances, if at all, that rule could be applied to the pointing out of the scene of a crime as opposed to the disclosure of movables associated with the crime, raised but not decided.

Case Information

Appeal from a conviction in the Bethal Circuit Local Division (PRICE, A J.), leave having been granted. The facts appear from the judgment of SCHREINER, J.A.

J. P. van den Berg, for the appellant (at the request of the Court): The conviction is not warranted; in any event the sentence is too severe.

R. A. Evelyn-Wright, K.C., Attorney-General O.F.S., for the Crown. B

van den Berg, in reply.

Cur adv vult.

Postea (June 19th). C

Judgment

Schreiner, J.A.:

The appellant and four other persons were convicted in the Bethal Circuit Local Division of housebreaking with intent to rob D and robbery. The crime, committed on the 7th July, 1949, consisted of breaking into a shop at Kriel in the Bethal district and grievously assaulting and robbing the occupants. The appellant was sentenced to six years' imprisonment with hard labour and eight strokes. After sentencing the appellant PRICE, J., who tried the case without a jury, intimated E that if the appellant wished to appeal to this Court he would grant him leave to do so; on the appellant's stating that he did wish to appeal leave was granted.

It is unnecessary to deal with the evidence which established the F commission of the crime; the only question is whether it was properly proved that the appellant was one of the perpetrators. The evidence implicating the appellant consisted of (a) his possession, some sixteen days after the crime, of two blankets claimed by the Crown to have been included among the articles stolen, and (b) his having, by expressed G recognition or pointing out, revealed his acquaintance with the shop which had been broken into.

The Crown evidence in regard to the blankets was that on 23rd July, 1949, 'in consequence of a report' - whether his own or some other person's did not appear - the appellant was taken by Sergeant Gouws of the South African Police from Johannesburg, where he had been H arrested, to Evaton Location, Vereeniging. There he handed over two blankets to Sergeant Gouws. The owner of the burgled shop, one Cassim Osman...