Rex v Kirsten

• Jurisdiction: South Africa
• Judge: Steyn J, and Ogilvie Thompson J
• Judgment Date: 23 June 1950
• Hearing Date: 05 June 1950
• Court: Cape Provincial Division

Ogilvie Thompson, J.:

The appellant was convicted by an additional magistrate of Cape Town of contravening sec. 48 (1) (b) of Ord. 15 of F 1938 (C.) in that he drove a motor car upon a public street while under the influence of intoxicating liquor. The sentence passed by the magistrate was 6 weeks imprisonment with hard labour and a suspension of the appellant's driving licence for a period of six months. Against his conviction and sentence the appellant noted an appeal on the grounds G that the conviction was against the weight of evidence and that the sentence was excessive. When the appeal came before this Court the hearing was, - at the request of appellant's counsel, and the Crown consenting, - postponed to enable proceedings on review to be instituted: the Court at the same time ordered that the review be set down for hearing on the same day as the appeal. The appellant thereupon H issued a summons for review and filed affidavits in support of his complaints: opposing affidavits were filed by the Crown. On the 5th instant the Court heard full argument on the review and reserved judgment thereon, without however reaching the appeal on the merits and against the severity of the sentence.

The circumstances whereunder the appellant (applicant for review, but to whom I for convenience hereafter refer as the accused) seeks to have the proceedings before the magistrate set

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aside must now be stated. The principal witness for the Crown was the police constable who had arrested the accused on the charge in question. In the course of his evidence the police constable - after describing how he saw accused's car pull away from the kerb, where it had been parked, travel some ten yards, then stop - inter alia deposed that he A had ordered the accused to alight from his car, that the accused was at first disinclined to do so, but that he did later get out of the car. The constable's evidence then continued:

'Hy het aan deur vasgehou na hy uit was. Ek het 'n tree verder gaan staan en hom gevra om na my te kom en hy het na my gekom maar dit was 'n val en hy het toe aan my vasgehou. Ek het hom toe aan sy arm gevang B en hom in kar gehelp. Ek het hom aan drywer kant in gehelp, en toe het hy so skuiwe-skuiwe deurgegaan na ander kant en ek het self agter die wiel gegaan.'

The accused was at the trial represented by counsel who extensively cross-examined the police constable, but did not, however, in such C cross-examination put, or otherwise suggest, to the constable that the defence denied that the accused had ever got out of the car. Nor was the constable cross-examined as to anyone else having alighted from the car. The remaining two witnesses called for the Crown were, respectively, the sergeant on duty in the charge office to which the accused was, after D arrest, taken by the constable, and the assistant district surgeon who examined the accused. Neither of these witnesses was present at the time of the accused's arrest; and their evidence is not material to the review, save that it may in passing be remarked that the assistant district surgeon - who commenced his examination of the accused E within half an hour of the alleged offence - testified that he was unable to say that the accused's faculties were impaired at the time of examination, but could only say that accused showed signs of having recently consumed liquor and that he 'considered it possible' that the F accused's faculties 'might have been impaired' at the time of his arrest.

The first witness called for the defence was one Keightley. This witness - with whom the accused had admittedly partaken of some alcohol in a bar shortly before the accused's arrest - deposed in chief that when G the constable came up to the car both he (Keightley) and the accused were seated in it: he then proceeded to say, 'the accused did not get out of the car at all. I had to get out .....'.

Keightley was, apparently, vigorously cross-examined on this statement by the public prosecutor. The narrative record (which was taken down by H the magistrate in manuscript) of this portion of Keightley's cross-examination reads:

'The accused did not get out of car. Should somebody come forward and say accused did get out of car and spoke to constable and that I at the time was standing a little distance away, then that person would be telling a lie. If prosecutor should go into box and swear that he saw it, then I would say it is a lie. The accused never moved out of the car.'

This cross-examination clearly conveyed the suggestion - rejected however by the witness - that the prosecutor had himself seen the

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incident, and that, upon his version, the accused had got out of the car. One of the accused's complaints in the present review proceedings is that, at this stage of the proceedings, the prosecutor turned to defending counsel and audibly asserted that he had in fact been present A and seen what had occurred. The presiding magistrate says in his affidavit that he did not hear this aside. Accordingly, this latter - which was in any event merely an express statement of what was clearly implied by the terms of the cross-examination - may be dismissed from B further consideration. An additional suggestion - somewhat tentatively advanced in the affidavits - that the prosecutor thereafter discussed this question (viz. of his having himself witnessed the episode) with the magistrate in a subsequent conversation outside the Court is denied by both the prosecutor and the magistrate in their affidavits, and may likewise be dismissed from further consideration.

C After the defence had led the evidence of another witness (a doctor who had examined the accused after the assistant district surgeon), the Court adjourned for lunch. At the adjournment some discussion and difference of opinion apparently ensued between the prosecutor and D defending counsel concerning what, in the circumstances, would be the appropriate action for the prosecutor to take. It is unnecessary to pursue the details of that discussion since it is not suggested that the presiding...