Rex v Patz

• Jurisdiction: South Africa
• Citation: 1946 AD 845

Rex Respondent v Patz Appellant
1946 AD 845

1946 AD p845

Citation	1946 AD 845
Court	Appellate Division
Judge	Watermeyer CJ, Schreiner JA and Davis AJA
Heard	September 19, 1946
Judgment	October 22, 1946

Flynote : Sleutelwoorde

Criminal law — Receiving stolen property — Placaats of 16th December, 1595, and 19th March, 1614 — Abrogated by disuse — Proof of guilty knowledge essential — Suspicion that goods stolen and failure to enquire — Summing up defective — No failure of Justice.

Headnote : Kopnota

The Placaats of 16 December. 1595, and of 19 March, 1614, in so far as they purport to impose penalties upon receivers of stolen property who ought to have known that such property was stolen, have been abrogated by disuse in South Africa.

Where in the course of his summing up to the jury the presiding Judge had made a statement which was capable of being construed by the jury am meaning that a strong suspicion that the goods were stolen entertained by the accused at the time he received them allied to an abstention from making enquiries was equivalent to guilty knowledge.

Held, upon certain questions of law reserved, that, though the summing up was defective in this respect, as there was other evidence of the guilt of the accused which was so cogent that it could be said with certainty that the jury could not reasonably have acquitted the accused even If the Judge had not directed them as he did, no failure of justice had in fact resulted and the conviction should stand.

The case of Rex v Saffy and Bennett (1944 AD 391), applied.

Case Information

Appeal upon certain questions of law reserved by FAGAN, J., presiding with a jury in the Criminal Sessions in Cape Town.

The facts appear from the judgment of WATERMEYER, C.J.

B. F. Banks, for appellant: Although the Roman and Roman-Dutch law authorities are somewhat vague, they generally indicate that the receipt of stolen goods must be with the knowledge, and not merely suspicion, that the goods were stolen; Rex v Mlovi and Others (1925 AD 131 at 150, 152-157); Institutes (4.1.4); Carpzovius, Misdaden (Hogendorp's tr., pp. 756-757); Damhouder, Civile alsook Criminele Zaken (Cap. CVII), Moorman, Misdaden (3.4.1-5); Matthaeus, De Criminibus (47.10.1); Voet (47.16.1-4); van Leeuwen's Roman-Dutch Law (Kotze's tr., 4.38.12); Huber, Hedendaagse Rechtsgeleertheyt (Gane's tr., 6.5.19). The practice in South Africa has been to require proof of knowledge or belief; Gardiner and Lansdown, South African Criminal Law and Procedure (vol. II, 4th ed., pp. 1406-9); The Queen v Child and Harrison (1874, Buch. 123); Rex v du. Plessis (1924 T.P.D. 103 at

1946 AD p846

116, 127); Rex v Joffe (1925 T.P.D. 86); Rex v Ramlucken (1935 NPD 151 at 154); Rex v Nossel (1937 AD 1 at 8); Rex v Bhardu (1945 AD 813 at 819, 822-823); secs. 309, 310, Act 31 of 1917; sec. 216, Act 24 of 1886 (Transkeian Territories Penal Code); and cf. Rex v Maserow and Another (1942 AD 164); as to belief, see Rex v Joffe (supra); Rex v Kunodie (1928 T.P.D. 331); Rex v Sipendu (1.932, E.D.L. 312 at 319); Rex v Sally and Bennett (1944 AD 391 at 395). Knowledge and belief are clearly distinguishable from suspicion; Wigmore on Evidence (Vol. 1, 2nd ed., paras. 244, 657-659; Bouvier's Law Dictionary (s.v. knowledge, belief, suspicion); Rex v Nkosi (1928 AD 488); Rex v Scott (1939, E.D.L. 18 at. 21). As to the law of England, see Halsbury, Laws of England (Vol. 9, 2nd ed., paras. 935-47); Alison, Criminal Law of Scotland (chap. X, p. 329).

The test is not whether a reasonable man would have known the goods were stolen, but whether the accused knew the goods were stolen; Rex v Havard (11 Cr. App. Rep. 2); Rex v Ketteringham (19 Cr. App. Rep 159) and cf. Rex v Mbombela (1933 AD 269).

The jury should have been told that they should consider accused's evidence and if they believed it might be true without being convinced that it was true, they must acquit the accused; Rex v Schama and Abramovitch (8, L.J. K.B. 396); Rex v Kumalo and Another (1930 AD 193 at 213); Rex v du Plessis (supra); Re v Nossel (supra, at 10).

The learned Judge in the Court a quo merely directed the jury that the question was whether the circumstances pointed sufficiently strongly towards guilty knowledge; this was not an adequate direction; Rex v Blom (1939 AD 188 at 202); Rex v du Plessis (1944 AD 314 at 318).

The jury was misdirected on the crucial points of the case; the misdirections affected the minds of the jury and influenced them in arriving at their verdict. Appellant was accordingly prejudiced, Rex v Saffy and Bennett (supra); Rex v Tennet (1939, 1 A.E.R. 86 at 88), Harrison v Rex (1946, P.H. H. 209).

The sentence was excessive; see Rex v Sandig (1937 AD 296 at 302); Rex v Broude (1939 AD 460 at 466); Rex v Mahametsa (1941 AD 84 at 86); Rex v Steynberg (1944 AD 309 at 313).

N. C. Masters, for the Crown: There is no existing South African statute defining the crime of receiving stolen property knowing it to be stolen; Ex parte Minister of Justice: In re Maserow and

1946 AD p847

Another (1942. AD 164 at 169). Proclamation (Law) of the 19th October, 1798 (repealed by Act 25 of 1934), defined the crime of receiving stolen property knowing it to be stolen; Verzameling van Wetten en Regulatien der Volkplanting De Kaap de Goede Hoop. (9de deel (1798-1801)); The Common and, Statute Law at the Cape of Good Hope during the Seventeenth and Eighteenth Centuries (article by C. Graham-Botha, S.A.L.J., Vol. 30, at p. 299). The exact position in the Roman-Dutch law of the person who receives goods knowing them to have been stolen seems very difficult to ascertain from the writers; Rex v von Elling (1945 AD 234 at 250).The Placaat of the 16th December, 1595 (G.P.B., Vol 1, col. 482) and Placaat of the 19th March, 1614 (G.P.B., Vol. 1, col. 485) defined the crime of receiving stolen property knowing it to be stolen; these two Placaats are part of the law of South Africa; van Leeuwen's Roman-Dutch Law (Kotze's tr., 1st ed., Vol. II, chap. XXXVIII, p. 321); Kersteman, Aanhangsel (p. 342); Ex parte Minister of Justice: In re Rex v Maserow and Another (1942 AD 164 at 171); Rex v Sacks and Another (1943 AD 413 at 422); Wessels, History of the Roman-Dutch Law (at p. 357); Gardiner and Lansdown, SA Criminal Law and Procedure (Vol. 1. 4th ed., p. 4); The Common and Statute Law at the Cape of Good Hope during the Seventeenth and Eighteenth Centuries (article in S.A.L.J. (supra)). In the Placaats the word ought in the phrase "clearly ought to have known", refers to obligations of duty and not to necessities of inference; cf. Rex v Nossel (1937. AD I at 9). The Placaats require mens rea which falls short of the highest degree; the accused's failure to make enquiries, when he had a strong suspicion that the goods were stolen, provides this mens rea; Gardiner and Lansdown (supra, at 31); National Bank of Australasia v Morris (L.R. 1892, A.C. 287; The Queen v Wright (11 S.C. 84).; Rex v Nel (1916 CPD 703 at 705); Rex v Albow (1910 CPD 320 at 323); belief that the property was stolen is sufficient.; it is not necessary to prove knowledge; Regina v White (1 F. & F. 665); Rex v Joffe (1925 T.P.D. 86); Rex v Saffy and Bennett (1944 AD 391 at 411); Rex v Bhardu (1945,. AD 813 at 819) 1, Rex v Khan (1943 AD 324 at 329); suspicion may amount to a "slight belief or idea"; Oxford English Dictionary (s.v. suspicion, belief); Wills, Circumstantial Evidence (7th ed., p. 8); strong suspicion, or a strong idea that the goods were stolen, is sufficient; Kenny, Outlines at Criminal Law (5th ed., p. 253): Wills' (supra, p. 103); Wharton's

1946 AD p848

Criminal Law (Vol. 2, 12th ed., p. 1549, para. 1232, and note (3) Rex v Snelling (28 Crim. App. Rep. 117). A strong suspicion that the goods were stolen and, in addition, a wilful refraining from making enquiries, establishes mens rea; Rex v Joffe (supra); Rex v Khan (supra); Bishop, Criminal Law, (Vol. 1, 9th ed., p. 203, para. 302); Regina v Prince (L.R. Crown Cases reserved, Vol. 11, p. 154, at pp. 176-177).; Phases in the Development of Criminal Mens Rex (article in S.A.L.J., Vol. XXXVIII at pp. 26, 32, 33).

It is sufficient if any reasonable mind in the particular circumstances, must have been satisfied that the goods were stolen; there is only one standard of reasonableness; Rex v Mbombela (1933 AD 269); Rex v Meiring (1.927 AD 41); Wills (supra, p. 103); Kenny (supra, p. 253); Wharton (supra).

The sentence was not excessive; Rex v Neal (1945 AD 1); Rex v Coetzee (1936 AD 471).

Banks, in reply.

Cur. adv. vult.

Postea (October 22nd).

Judgment

Watermeyer, C.J.:

This case comes before this Court on certain points of law, reserved by FAGAN, i., under the provisions of sec. 372 of Act 31 of 1917.

The accused was found guilty by a jury on two counts of receiving stolen property, well knowing it to have been stolen, and was sentenced to two years imprisonment with hard labour, twelve months of which were suspended. He subsequently questioned the soundness of the Judge's Bumming up, and FAGAN. J., accordingly reserved for the consideration of this Court the following questions of law:

"(1) Whether the learned Judge correctly instructed the jury on the element of guilty knowledge, more particularly whether the summing up considered as a whole (a) did not convey to the jury that if they found that the accused must have had a strong suspicion that the goods were stolen at the time he received them, they would be entitled to infer that the accused received the goods with the knowledge that they were stolen; (b) did not convey to the jury that in deciding whether the accused must have had a strong suspicion they could consider the suspicions

1946 AD p849

Watermeyer, C.J.

they would have had if they had received the goods in similar circumstances.

(2) Whether the summing up conveyed to the jury the instruction that if the jury thought...