Rex v Laubscher

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 29 March 1926
• Citation: 1926 AD 276
• Hearing Date: 15 March 1926
• Court: Appellate Division

Innes, C.J.:

The applicant was convicted at the Pietermaritzburg criminal session before CARTER, J., and a jury of the crime of rape. The complainant, Edna Luckhurst, was a school teacher at Glencoe Junction, and the crime was alleged to have been committed at that place during the night of the 30th June, while she was the sole occupant of the teachers' quarters. The case presents many remarkable features; but it is unnecessary for present purposes to do more than indicate in barest outline the case for the Crown. The assault took place in the early hours of the morning; the room was in darkness and the complainant was unable to distinguish the features of her assailant. She was a powerful girl and there was a prolonged struggle, during which the man spoke several times, and during which she ascertained that he was clean shaven, had coarse hair but smooth hands, and wore a soft felt hat without any binding to the brim. She was also able to take note of his general build. Finding that he was unable to overcome her resistance, she said that he called some one whom he addressed as "Percy" to come to his assistance. A second man then appeared on the scene and assisted the first assailant to effect his purpose. Two acts of rape were committed in rapid succession by the first man, but the second man did not thus assault her. By this time she was much exhausted, and might possibly have fainted, but she made no suggestion that she was raped by any but her first assailant. She reported the matter the next day to a friend, who took her to the police office, where she laid information. The medical evidence showed that there had been recent sexual connection and rupture of the hymen; the complainant was in a state of nervous prostration when examined; there was a bruise on the thigh and slight bruises on the left arm, but there was no sign of serious injury. Arrangements were made by the police to enable the complainant to identify by his voice the man who had attacked her. Black grease marks on her pillow indicated that the criminal might have been connected with the railway, and a number of men from the works were interviewed by a police officer and interrogated generally by him. The complainant was seated behind a partition which screened her from view, but did not prevent her from hearing. She asked that four of the men might be recalled and again engaged in conversation, and she finally selected one voice, which was that of the accused. Again, a number of soft felt hats were produced to her; she picked out one, and that was the hat of the accused. She also felt his hands and observed his hair, and stated that they were similar to

Innes, C.J.

those of her assailant. She testified on the above lines at the trial.

There some further points. She said that in the struggle she had struck the man below the eye, and Laubscher when arrested had a mark on his face which might have been so caused. A dark impression made by a boot upon a mattress in an adjoining room by some one who had tried the window there, though somewhat indistinct, was alleged to correspond with the rubber heel of a shoe belonging to the accused. Upon the complainant's pyjamas there was a stain due to blood and serum, and the accused had a slight wound upon one of his fingers which might well have caused the stain. Upon one of his shirts were marks of semen, which he explained were due to nocturnal emission. The charge was denied and the main defence was an alibi. The jury returned a majority verdict of guilty, and the accused was sentenced to imprisonment for life and to receive twelve lashes. He now seeks leave to appeal to this Court, and his application falls under three heads. Immediately after the verdict and sentence his counsel intimated that he desired to apply for the reservation of a point of law, and for a special entry of irregularity. Leave was granted to apply on another day. This was done, but the presiding Judge refused to reserve the question of law suggested on the ground that he was incompetent to do so after the termination of the trial. Leave is asked in the first place to appeal against that ruling. Four alleged irregularities were then submitted for entry on the record, but the application was refused because the points raised were frivolous. A request for leave to appeal against such refusal is the second head of the relief prayed. And thirdly we are asked for leave to appeal generally against the verdict. It will be...