Rex v Fourie and Another Appellants

• Jurisdiction: South Africa
• Citation: 1937 AD 31

Rex Respondent v Fourie and Another Appellants
1937 AD 31

1937 AD p31

Citation	1937 AD 31
Court	Appellate Division
Judge	Stratford ACJ, De Villiers JA and Tindall AJA
Heard	September 15, 1936; September 16, 1936
Judgment	October 1, 1936

Flynote : Sleutelwoorde

Evidence — Presumption of continuance — Nature of — Criminal procedure — Appeal — Whether any evidence justifying conviction — Misdirection on point of law — Absence of prejudice.

Headnote : Kopnota

The presumption of continuance, viz., that the fact of the existence of a state of things at a given time is evidence of its existence at a later time is one of fact not of law, its strength depending upon all the circumstances of the case.

The accused had been convicted by a Judge sitting with assessors of inciting one B to deal in unwrought gold in contravention of Act 35 of 1908 (T.). It was admitted that B had had control of such gold in 1934, but it was denied that he had such control in 1935 when the incitement was alleged to have taken place. B, who had been convicted of the theft of the gold which bad never been recovered, gave direct evidence that he still had possession in 1935 but the trial Judge commented on the unsatisfactory nature of his evidence as a whole. The trial Judge having found as a fact that B did have control of the gold in 1936, it was contended on appeal that there was no evidence justifying such a finding and further that the Judge had misdirected himself in regarding the presumption of continuance as one of law.

Held, dismissing an appeal, that on the facts there was evidence to justify the finding of the Court a quo.

Held, further, that such Court had applied the presumption of continuance as one of fact and not of law.

Held, further, (Per STRATFORD, A.C.J.) that even if the Court had misdirected itself on the point, inasmuch as on the other evidence the Court would inevitably have come to the same conclusion as it did, the accused had suffered no prejudice.

Case Information

Appeal on certain questions of law reserved by GREENBERG, J sitting with assessors in the Witwatersrand Criminal Sessions.

The facts appear from the judgment of DE VILLIERS, J.A.

1937 AD p32

J.V. Brink, K.C. (with him W. J. Meyersohn), for Fine: The learned Judge appears to have treated the presumption of continuance as a presumption of law, which is an erroneous view, apparently based on Taylor on Evidence (vol. I, sec. 196, read with secs. 70, 109ff and sec. 214); for he did not weigh any of the circumstances of the case surrounding the existence of the gold in an unwrought condition. See Halsbury, Laws of England (vol. 13, Hailsham ed., para. 624); Moore on Facts (vol. I, sec. 546); and Wigmore on Evidence (vol. I, sec. 437 and vol. V, sec. 2530). As the presumption rests on the ordinary experience of mankind in relation to the circumstances of the case, it is always necessary to weigh these up. If the Judge had looked at the evidence as a reasonable man, he could not have found a presumption of fact. See Rex v Kumalo (1930 AD 193). The question of whether the presumption was one of fact is one of law. If a state of affairs is unlawful, it cannot be presumed to continue. See Price v Worwood (157 E.R at p. 942).

The Crown must prove all the essential ingredients of the offence and show that in the circumstances objectively surrounding the conspirators the offence could be committed. See Phipson on Evidence, (6th ed., p. 33) quoted with approval in Rex v Kumalo (supra, at p. 213) and compare Woolmington v Director of Public Prosecutions (1935 A.C at p. 481 ad fin.).

As Beyers did everything he could have done to give effect to the incitement and the result was that a digging took place which was harmless and innocent, no result of a criminal character could have been attained. This brings the case within the decision of Rex v Wolff (1930 T.P.D. 821) and compare Rex v Panter (1932, T.P - D. 121); Rex v Swart (1932 T.P.D. 168); Rex v Goduka (1934, G.W.L.D. 61) and Rex v Shephard (1919, 2 K.B. 125). Hence in the present case it was necessary for the Crown to prove that there was bullion capable of being handed over by Beyers to the accused. An incitement precedes all overt acts; it merges, in the attempt when the attempt is made. See Rex v Geshen & Miller (1933 AD 137).

Impossibility of accomplishment is, generally speaking, a defence in charges based on attempts to commit a crime, where the thing attempted is, in the true state of the facts, not a criminal offence and therefore the accomplishment of the accused's criminal intention is impossible. See Wharton on Criminal Law (sec. 182) and Halsbury's Laws of England. (vol. 9, Hailsham ed., para. 41).

1937 AD p33

The English decisions of Rex v Brown (24 Q.B.D. 357) and Reg. v Ring (61 L.J.M.C. 116) are exceptions to this general rule and i i is difficult to formulate a logical justification for the doctrine contained in them, although the practical difference between these cases and the cases where impossibility is held to be a defence is obvious - namely, in the class of case to which Reg. v Ring belongs, an illegal act fraught with public mischief is done, i.e., assault. In Rex v Claassen (1936 CPD 28) the impossibility was held to be no defence on the somewhat unsatisfactory ground that the means used to commit the major offence (namely, procuring abortion), though insufficient in truth, were apparently sufficient. In Rex v Brown the offence was in fact completed; in Reg. v Ring assault should have been the charge, and in Rex v Claassen no offence was committed. Compare Rex v Seane (1924 T.P.D. 668 at p. 684), and Rex v Freestone (1913 T.P.D. 758). Rex v Maarman (5 E.D.C. 331) followed Rex v Collins (9 Cox 497). But in any case neither Rex v Brown nor Reg. v Ring nor Rex v Claassen should be extended to cases of incitement.

The present case deals with a new statutory offence and if the legislature had intended to make criminal the incitement to acts which turn out to be insufficient to constitute a crime, although the doer thought they were sufficient, then apt words towards that end would have been used. The new offence is constituted by the amendment introduced by sec. 4 of Act 39 of 1926, thus overcoming the decision of Rex v Nlhovo (1921 AD 485 at pp. 492-3).

G. A. Mulligan, for Fourie: I adopt the above argument. The Court should take into consideration the opportunity the accused had of rebutting the presumption. Where a presumption arises and the accused fails to adduce evidence of facts known to him in rebuttal, the prima facie case against him becomes conclusive. But here there was no evidence available to the accused.

As to the ratio decidendi in Rex v Wolff (supra, at p. 826) is that, where a person, having done everything he was incited to do, has committed no criminal act, that constitutes impossibility and the person inciting is not guilty, unless the incitement or attempt to do the impossible thing prejudices the public welfare. Therefore shooting at a shadow is not a crime. The Legislature has dealt with the matter in a very restricted way in sec. 83 of the Native Territories Penal Code No. 24 of 1886 (Cape).

There seems no logical reason for the rule in regard to impossibility being departed from in pick-pocket and abortion cases,

1937 AD p34

though there is a practical reason and the Courts have in effect legislated on the point. See Lamont v Strathearn (1933, Sc.L.T. 118).

C. G. Wiggett, for the Crown: On the effect of the presumption of continuance see Taylor on Evidence (12th ed., para. 196, p. 176); Wigmore on Evidence (2nd ed., vol. I, para. 437, p. 517; para. 225, vol. V, para. 2530). In view of the nature of unwrought gold the presumption applies to it with special force, nor is the lapse of time too long because it is of great value as security. For examples of the application of the presumption see Kilian v Stander (20 C.T.R. 50); Wigmore on Evidence (2nd ed., vol. 1, pp. 774, 775 and notes 8, 9, 10).

As there is evidence, which a reasonable man could accept, of the existence of the gold in an unwrought state at the material times, the Court of Appeal will not upset what is equivalent to the finding of a jury on fact unless there is no evidence. See Rex v Smith (1912 AD 386 at p. 390); Rex v Shein (1925 AD 6 at p. 9) and Rex v Laubscher (1926 AD 276 at p. 285).

Alternatively the question to be decided is whether an attempt to do what is impossible is a crime. The English and South African cases in chronological order are: Rex v McPherson (7 Cox 281); Rex v Collins (supra); Rex v Topken & Skelly (1 Buch. App. Cases 471); Rex v Maarman (supra), which was based on Rex v Collins; Rex v Brown (24 Q.B.D. 357); Reg. v Ring (61 L.J.M.C. 116), which overruled Rex v Collins; Rex v Sharpe (1903 T.S. 868 at p. 876 in which Reg. v Ring was approved); Rex v Smith (supra); Rex v Freestone (supra); Rex v Parker and Allen (1917 AD 552); Rex v de Vos (1919 NPD 398); Rex v Nlhovo (supra); Rex v Stewart (1922, E.D.L. 117); Rex v Seane (supra). In Rex v Claassen (supra) the question is carefully examined and the cases are collected and discussed. For argument on the difference between relative and absolute impossibility see Rex v Seane...