Rex v Mbande & Others Appellants

• Jurisdiction: South Africa
• Judge: Beyers JA, De Villiers JA and Gardiner AJA
• Judgment Date: 22 September 1933
• Citation: 1933 AD 382
• Court: Appellate Division

Gardiner, A.J.A.:

The accused were convicted of the murder on the 9th April, 1933, of one Mhoshwa Mbanda. No. 1 is the brother of the deceased. No. 2 is a native doctor and No. 3 the latter's carrier or pupil. Leave to appeal was granted to Nos. 1 and 3: it was refused in the case of No. 2 for reasons which I shall state later.

The case for the Crown, to put it briefly, was that No. 1 considered that he had a grievance against his brother and that he paid money to No. 2 to murder the deceased. No. 2 undertook to do the deed, and No. 3 also agreed to assist therein. Thereafter Nos. 2 and 3 proceeded to the kraal of the deceased, represented that they were police, and were allowed to sleep that night in deceased's hut with him and his wife. The door and window of the hut were closed, after these four persons had gone to bed, and no access could be obtained from outside. During the night deceased was fatally stabbed, one wound only being inflicted. The Crown case was that one of these two accused stabbed Mhoshwa and the other aided and abetted.

Before accused were called upon to plead, application was made on behalf of No. 2 for a trial separate from the trial of No. 3 on the ground of prejudice likely to arise if a certain confession, alleged to have been made by No. 3, implicating No. 2, were admitted. The statement referred to was one made by No. 3 after his arrest to a magistrate, by the latter reduced to writing and confirmed before him by No. 3. Counsel for No. 1 associated himself in this application. The Court refused the application.

The first ground of appeal put forward on behalf of No. 1 is that the application should have been granted, and that he was prejudiced by the refusal. Now the grant or refusal of an application for a separate trial is one for the unfettered discretion of

Gardiner, A.J.A.

the Judge - Rex v Rorke (1915, A.D at 161). It is true that in that case INNES, C.J., said: "Whether it would be possible for a case to happen in which a refusal to order a separate trial might be so manifestly wrong as to afford ground for an application . . . . for special leave to appeal under the Privy Council rule it is not necessary to say." It is sufficient to say that since then no such case has come before this Court, no appeal has been allowed against the refusal to grant a separate trial and the present case is certainly not one where we could say that the decision was so manifestly wrong as to fall within the Privy Council rule, i.e that the course of criminal proceedings will not be interfered with unless it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done. I am prepared to go further, and say that if an appeal lay to us against the Court's order refusing a separate trial, I should not interfere with the decision. The learned JUDGE-PRESIDENT in his reasons went fully and carefully into the matter; he and the other members of the Court had read the statement made by No. 3, recognised that this was evidence against that accused only, and considered that they were fully capable of distinguishing as regards testimony admissible against one accused only and inadmissible against another or others. I have no reason to think that they were wrong. This appeal against the refusal to grant a separate trial must fail. But it does not follow that the appellant is remediless, if in fact, owing to there having been a joint trial, the Court used evidence admissible only against No. 3 as evidence against No. 1, and such use was calculated to prejudice No. 1. But in such event the appeal would succeed, not because the order upon the application made in limime was wrong, but because the verdict was based upon inadmissible evidence.

Counsel for No. 1 indeed contends that it is possible that this may have occurred and, to quote from his written heads of argument, that "the trial Court, in convicting him, unwittingly had in mind his participation as disclosed in accused No. 3's statement." If he can establish this then he would have good ground for saying that there was a grave irregularity which prejudiced No. 1. I come, therefore, to examine upon what he bases this contention. The only ground is a question asked by BRITTER, J. (p. 148, line 30) of accused No. 1, when the latter was in the wit-

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ness box. "You knew they (accused Nos. 2 and 3 and No. 1's wife) left together in the same taxi?" To this the answer was: "I did not know that." Now it is true that it is only in No. 3's statement that it appears that these persons left in the same taxi; that statement had already been put in evidence when the question was asked. But the legality of a question does not depend upon the source of the information upon which the question is based. Questions are often put upon information which is not disclosed in any evidence, and which, sometimes, could not be given in evidence, e.g. questions as to the moral character of the complainant in a rape case. It seems to me that if there is information before the Court, in itself inadmissible against the accused, but capable, when put in the form of a question, of eliciting facts favourable or unfavourable to the accused, the Court is entitled to put the question it is then the answer, not the information, which becomes evidence in the case. of course the Court must look solely to the answer, and it would be acting irregularly if it took into consideration the information. In so far as the answer now under consideration had any bearing at all upon...