Rex v Nossel

• Jurisdiction: South Africa
• Judge: Beyers JA, Tindall AJA and Feetham AJA
• Judgment Date: 22 September 1936
• Hearing Date: 18 September 1936
• Citation: 1937 AD 1
• Court: Appellate Division

Tindall, A.J.A.:

The appellant was convicted of receiving stolen property knowing it to have been stolen. He had been charged jointly with one Helgesen with the theft of 6,000 pairs of shoes. Helgesen was in the employ of the owner of the factory where the shoes were made in George in the Cape Province. Helgesen pleaded guilty and, after having been sentenced, gave evidence on behalf of the Crown. The accused, who owned several shops in which he sold footwear in the Cape Peninsula, admitted in evidence that he had bought the stolen shoes from Helgesen but stated that he had bought them under the belief that the latter had a financial interest in the factory where the shoes were made and that he had authority to sell them. After the conviction of the accused by the jury, the Court, at the request of the accused's counsel, reserved certain questions of law under sec. 372 of Act 31 of 1917

Tindall, A.J.A.

for the decision of this Court, the questions arising out of alleged misdirections in the summing up by the presiding Judge.

Before dealing with the passages complained of it is necessary to mention that at the commencement of his charge to the jury the learned Judge emphasised that the onus lay on the Crown to satisfy them beyond any reasonable doubt that the accused knew at the time he received the goods that the goods were stolen. ]Re also stated that in many cases of the kind before them the Crown could not bring direct evidence to prove guilty knowledge but asked the jury to infer guilty knowledge from all the circumstances proved by the evidence. Then, after quoting from the textbook mentioned below, the learned Judge made use of the following sentence which is alleged to be a misdirection: "So you follow from that that it is not necessary for the Crown to prove that the accused knew precisely that the articles which he received were stolen. But it is sufficient if the Crown can prove that the accused must have known that the articles which he received were stolen." That sentence followed immediately upon a quotation of the passage in Gardiner & Lansdown's textbook (3rd ed p. 1129) in which the learned authors in dealing with the proof of knowledge by the accused that the property received by him was stolen, remark that "it is unnecessary to prove that the accused had precise knowledge of the character of the theft; indeed a guilty receiver will often refrain from making enquiry or doing anything by...