Rex v Hepworth

• Jurisdiction: South Africa
• Judge: Solomon CJ, Wessels JA and Curlewis JA
• Judgment Date: 28 February 1928
• Citation: 1928 AD 265
• Hearing Date: 15 February 1928
• Court: Appellate Division

Curlewis, J.A.:

The accused was tried in the Witwatersrand Local Division of the Supreme Court before GREENBERG, J. and a jury on an indictment which charged him with having committed the crime of perjury in respect of certain evidence which he had given in a civil action in the same Court. At the close of the case for the Crown counsel for the accused applied for the case to be withdrawn from the jury on two grounds:

(1) That it was not proved that the statements set out in the indictment, which were said to have been made by the accused, were made under oath, and (2) that the shorthand note which was put in was not sufficient evidence that he had used the words

Curlewis, J.A.

(alleged in the indictment). The evidence for the Crown on these two points was first that of Mr. Daley, a clerk in the office of the Registrar of the Witwatersrand Local Division, who handed in the records of the civil case in which the alleged perjured statements was said to have been made; he stated in his evidence: "It appears from the record that the accused was a witness on the 7th April and that he was duly sworn." He did not state that he was present in Court when the oath was administered, and he was not the official who administered the oath. The other witness was Mr. Blenkin, the shorthand writer, who stated: "I am a shorthand writer and was employed in that capacity by this Court in a civil sitting in April of this year. I took certain evidence in the case of Wolpert v Wolpert. This is a transcript of the evidence which I took."

GREENBERG, J came to the conclusion that it was essential to the just decision of the case that the question whether the evidence was given under oath, and the question whether the transcript which was handed in was in fact a true record of the evidence, should be cleared up by calling further evidence, and that under sec. 247 of the Criminal Procedure and Evidence Act of 1917 he was therefore bound to call witnesses on those points, and that being his view it was not necessary for him to express any opinion on the application to withdraw the care from the jury. In giving his decision the learned Judge stated: "It appears to me that the increasing tendency of Courts of Justice is to get away from technicalities as much as possible. There is of course great danger in stretching that tendency too far, and in many cases it is somewhat difficult to distinguish between a matter of technicality and a matter of substance. But I think that the decision turns on the wording of the section coupled with the facts of this particular case.... After all a criminal trial is not a game. There was an oversight on the part of the Crown, and it seems to me to have been a very venial oversight, because there was nothing in the conduct of the case up to that stage to indicate that the use of the words charged in the indictment would be contested, and in fact the whole conduct of the case had been put on the assumption that those words were used. I think it would be making a farce of the proceedings if I did not allow evidence to be called to clear up this point."

Curlewis, J.A.

He therefore allowed the Registrar of the Court to be called, who stated that he administered the oath to the accused in the civil action in question and that accused gave his evidence after having been duly sworn; he also allowed Mr. Blenkin to be recalled who testified to the transcript being a correct record of the evidence given by the accused. The accused was eventually convicted by the jury and on the application of his counsel GREENBERG, J. directed a special entry to be made under sec. 370 of Act 31 of 1917 its follows: "That the proceedings at the trial were irregular and not according to law, in that, after the case for the Crown had been closed, upon application being made by counsel for the defence to the presiding judge to withdraw the case from the jury on the ground that there was no evidence that the accused had been duly sworn when he made the statements alleged in the indictment to be false, the presiding judge refrained from deciding whether or not there was such evidence, and thereupon called witnesses whose evidence proved the fact that the accused had been duly sworn before he made the statements so alleged to be false."

On appeal before us Mr. Ramsbottom for the appellant contended that sec. 247 merely re-enacted the English Common Law on the subject, and that under the common law a judge at a criminal trial had a discretion to call or recall a witness for the purpose of elucidating the truth, as for instance where there was a conflict of evidence or where evidence had been given for the defence which the Crown could not anticipate, or where there was an eyewitness who had not been called by either party, but that the judge could not exercise that discretion for the purpose of supplying a deficiency or curing a defect in the case for the Crown. And he urged that sec. 247 should therefore be given a restricted meaning and that it was not intended to confer on a judge a greater discretion than he had under the common law. He quoted various authorities as to what the common law was, and referred to numerous decisions of the Courts of South Africa from which it appeared that the opinions of judges as to the meaning and effect of sec. 247 were not harmonious. At the conclusion of Mr. Ramsbottom's argument, the Court did not call on Mr. Chisnall, on behalf of the Crown, as we had no doubt what our decision should be, but in view of the conflict of

Curlewis, J.A.

opinion as expressed in the reports of the cases we intimated that our judgment would be given in writing.

In R v Chili (1917 T.P.D. 61), MASON, J.dealt with sec. 203 of the Transvaal Criminal Procedure Code, (Ordinance 1 of 1903), the wording of which is practically the same as sec. 247 of Act 31 of 1917, and he stated: "Sec. 203 undoubtedly embodies the general principles of the common law of evidence. They were discussed very fully in the Natal case of Rex v Gabriel (1908, 29 N.L.R. 750). There the authorities were fully considered, and it was decided that a magistrate had authority to recall witnesses, or to call witnesses on his own motion similar decision was...