Rex v Dunga

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA and De Villiers JA
• Judgment Date: 20 December 1933
• Citation: 1934 AD 223
• Hearing Date: 20 December 1933
• Court: Appellate Division

Stratford, J.A.:

This matter comes before us on a special entry made under sec. 370 of the Criminal Code for the consideration of this Court. The appellant was tried on a charge of murder before GANE, A.J., sitting without a jury, but assisted by two assessors. He was convicted and sentenced to death. Subsequently the following order was made: "It is ordered that a special entry be made under sec. 370 of Act 31 of 1917, for the consideration of the Court of Appeal, on the ground that the proceedings in his trial on the charge of murder, of which he was convicted on the 30th, September, 1933, at the Umtata Circuit Court by the acting Judge and two assessors, were irregular and illegal in that: (1) when the Crown tendered in evidence through the witness Francis Joseph Smith, the confession or statement (R.S.C. 1) made by the applicant on the 30th January, 1933, the learned acting Judge presiding, refused to try the issue of admissibility of the said confession or statement separately from the issue of guilt, and (2) that the said confession or statement was received in evidence without due legal opportunity having been given to the defence to contest its admissibility."

The statement referred to was put in by the Crown through the assistant magistrate of Libode. It is conceded by counsel for the appellant that this statement did not amount to a confession and that, therefore, the provisions of sec. 273 of the code did not apply to it. The attorney, however, who appeared for the appellant at the trial, objected to its admissibility. He contended that the statement amounted to a confession, but it is clear both

Stratford, J.A.

from some of his questions in cross-examination and from an affidavit subsequently made by him and filed in this Court that he proposed to contend that the statement was not freely and voluntarily made by his client. From the record it appears that the defending attorney was principally relying upon the contention that the appellant, when making the statement, was not in his sound and sober senses, since it was alleged that he had been seriously injured in the head and was in a very bad state of health. The question of admissibility, however, was clearly raised and the attorney claimed the tight to have that question tried as a separate and distinct issue apart from the trial on the question of guilt. This request the learned acting Judge refused on the ground that the question was an exculpatory one and not a...