Rex v Rautenbach

• Jurisdiction: South Africa
• Judgment Date: 16 November 1948
• Citation: 1949 (1) SA 135 (A)

Rex v Rautenbach
1949 (1) SA 135 (A)

1949 (1) SA p135

Citation	1949 (1) SA 135 (A)
Court	Appellate Division
Judge	Centlivres JA, Schreiner JA and Hoexter AJA
Heard	November 4, 1948
Judgment	November 16, 1948

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Irregularities in trial before Judge and jury — What constitute — Misdirection to jury — Effect.

Headnote : Kopnota

The questions whether the Judge, in a trial before a jury, has dealt sufficiently with the important issues of fact without undue omissions, and whether the indications of his opinion even if strong did not go beyond what might be fair, must be considered by a Court of Appeal with proper allowance for the Judge's ability to appreciate what was required by the circumstances of the trial.

In a trial before a Judge and jury on a charge of assault with intent to commit rape the evidence of the complainant at the preparatory examination had been admitted in terms of section 279 of Chapter 28 of the Rhodesian Revised Statutes owing to her death after the conclusion of the preparatory examination. Proof that there had been a sexual element in the assault rested solely upon her evidence. The Judge in summing up had failed to point out that the appellant in his evidence denied the complainant's version and that allowance in his favour should be made for the fact that her death had deprived him of the opportunity of attacking her evidence before the jury in cross-examination. In his summing up to the jury he had said 'Now although she gave that evidence (i.e. that the appellant thrust his hand under her clothes) before the magistrate, and (his counsel) had cross-examined her, I can find no place where he challenged these statements in his cross-examination. Therefore I submit to you that you are entitled to take these facts as facts you might rely on, and from these facts, gentlemen, you have to determine what his intention was.' The appellant was convicted. In an appeal on a special entry made under section 8 of Chapter 10 of the Revised Statutes.

Held, that there was a grave risk that the jury would have understood from the summing up that the appellant must be taken to have admitted, or not seriously challenged, those statements of the complainant on which the appellant's counsel had not cross-examined her at the preparatory examination.

Held, further, that irregularities had been committed and that the summing up as a whole did not mitigate or cure their effect.

Held, further, that without these irregularities a reasonable, properly instructed jury might well have come to a different conclusion.

Held, accordingly that the appeal should be allowed and the conviction altered to one of common assault to which the appellant had pleaded guilty.

Case Information

Appeal upon a special entry from a conviction in the High Court, Southern Rhodesia (THOMAS, J.) sitting with a jury. The nature of the entry and the facts appear from the judgment of SCHREINER, J.A.

1949 (1) SA p136

J. N. C. de Villiers, K.C., for the appellant: The misdirection by the Judge in his summing-up was an irregularity, cf Rex v Sutherland (1927 AD 88 at pp. 90 - 1); Rex v Meiring (1927 AD at p. 43); Rex v Shumba (1933 AD 347 at pp. 352 - 4, 356); Rex v Othitis (1946 AD 362); Gardiner & Lansdown, South African Criminal Law and Procedure (5th ed., vol. I, p. 329). The Judge also misdirected the jury in failing to warn them in regard to the complainant's evidence in the light that it had not been given before them in person and that there had been no further opportunity to cross-examine the complainant. On the contrary he suggested that they should rely on the evidence of the complainant given at the preparatory examination. A non-direction on the law may be an irregularity; see Rex v Meiring (supra, at p. 44). Also the Judge misdirected the jury in observing, during his summing-up that certain statements by the complainant in her evidence had not been challenged in cross-examination without advising the jury that the accused was not then on trial and that it was therefore not essential for a full cross-examination to take place. Cf. Gardiner & Lansdown (supra, at p. 329); Rex v Erasmus ((A.D.) 43 PH. H. 60); Rex v Mashelele (1944 AD at pp. 571, 583). For further decisions as to misdirection, see Rex v N'thauling (1943 AD 649); Rex v Mofokeng (1928 AD 132 at p. 136); Rex v Nossel (1937 AD 1); Rex v Laubscher (1926 AD 276 at p. 281) and cf. Gardiner & Lansdown (supra, at pp. 329, 351). These misdirections must have profoundly influenced the jury. The evidence as a whole was not so strong that the jury would inevitably have come to the same conclusion or that a reasonable man could not have done otherwise; cf. Gardiner & Lansdown (supra, at pp. 604 - 5); Rex v Saffy and Bennett (1944 AD 391 at pp. 423, 439 - 40); Rex v de Villiers (1944 AD 493 at p. 504); Rex v Mashelele (1944 AD 571); Rex v Attwood (1946 AD 331); Rex v Noorbhai (1945 AD 58 at p. 80); Rex v Patz (1946 AD 845); Rex v Mashlangu (1947 (3) S.A.L.R. 576); Rex v Bayat (1947 (4), S.A.L.R. 128).

S. Miller, for the Crown: None of the alleged misdirections were such irregularities in the proceedings as are contemplated by sec. 8 of the Administration of Justice (Appeals) Act, Chap. 10, for the purposes of an appeal on a special entry; cf. Union Act 31 of 1917, sec. 370; Rex v Nafte (1929 AD 333 at pp. 340 - 1); Rex v Nossel (1937 AD 1); Rex v Fancourt (1939 AD at p. 312). A misdirection on fact or an omission to make observations which might

1949 (1) SA p137

or ought to have been made may constitute an irregularity if the misdirection or omission is grave, and clearly misleading to the jury; see Rex v Sutherland (1927 AD at pp. 90 - 1); Rex v Caganoff (1933 AD 51); Rex v Louw (1918 AD at p. 354); Rex v Othitis (1946 AD at p. 365). Generally as to the duty of the Judge in summing-up see Russell, Crimes (8th ed., p. 1849); Taylor, Evidence (11th ed., vol. 1, p. 28); Roscoe, Criminal Law (15th ed., pp. 295, 299); Rex v Cohen and Another (2 C.A.R. 197 at pp. 208 - 9); Arnold v King Emperor (24 Cox at p. 299). The words objected to, even if they were not strictly in terms of the evidence, were substantially a correct paraphrase of the evidence; cf. Rex v Sutherland (supra, at p. 91). In any event, the correct evidence was before the jury and was correctly referred to by the Judge elsewhere in his summing-up; cf. Rex v Othitis (supra); Rex v Shumba (1933 AD 347 at p. 355); Rex v Johnson (1939 AD 241); Rex v Saffy and Bennett (supra, at pp. 423 - 4); Rex v Mashelele (1944 AD 572). It is no misdirection not to tell the jury everything that might have been told them; cf. Abrath v N.E. Railway Co. (11 Q.B.D. 440); Rex v Louw (supra). The Judge was entitled to observe that although complainant had been cross-examined at the preparatory examination by counsel, certain facts were not traversed in such cross-examination; cf. Phipson, Evidence (7th ed., p. 460) and Taylor, Evidence (11th ed., vol. 2, pp. 1008 - 9; 12th ed., p. 937). The Judge was entitled to give expression to his own opinion as to the truth of certain evidence. In any event if any one, or all, of the alleged misdirections was, or were, in fact irregularities, the appeal will be dismissed, having regard to the proviso to sec. 13, chap. 10, of the Southern Rhodesia Administration of Justice (Appeals) Act. As to the test to be applied, see Rex v Othitis (supra, at pp. 365 - 6); Rex v Saffy and Bennett (supra, at pp. 422, 434); Rex v N'thauling (1943 AD 649); Rex v Kgaladi (1943 AD at pp. 263 - 4); Rex v Greenspan (1945 AD at p. 486); Stirland v Director of Public Prosecutions (1944, 2 A.E.R. 13); Gardiner & Lansdown, South African Criminal Law and Procedure (5th ed., vol. 1, p. 605). The jury, had it acted reasonably would have come to the same conclusion in any event; the accused's explanation was apparently rejected by the jury and this was inevitable, regardless of the summing-up; cf. Rex v Johnson (supra, at p. 246).

De Villiers, K.C., in reply.

Cur adv vult.

1949 (1) SA p138

Postea (November 16th).

Judgment

Schreiner, J.A.:

The appellant was tried in the High Court of Southern Rhodesia before THOMAS, J., sitting with a jury, on a charge of assault with intent to commit rape. He pleaded guilty to common assault but was found guilty of the charge as laid against him and was sentenced to three years' imprisonment with hard labour. The learned Judge thereafter, upon the appellant's application, made a special entry, under sec. 8 of Chap. 10 of the Revised Statutes, in which it was alleged that the proceedings were irregular in that the learned Judge misdirected the jury in certain respects; it will conduce to clearness if I postpone giving the details of the alleged misdirections until I have outlined the facts.

The complainant, who died as a result of malaria between the holding of the preparatory examination and the trial, and her sister, Helen Leach, were in March, 1948, employed as a teacher and as matron, respectively, at St. Peter's Diocesan School, Bulawayo. They were unmarried and the complainant's age was 39, while that of Helen Leach was 46. At about 11 p.m. on the night of the 19th March, having been to a cinema, the two sisters were walking in Selborne Avenue on their way home to the school. In the course of their walk they became interested in a number of insects on a lamp standard and paused to examine them. While they were so engaged the appellant drew up in his car, a two-door sedan, and offered them a lift, which they accepted. The complainant sat on the front seat next to the appellant and Helen Leach sat on the back seat. The complainant told the appellant that they wanted to go to St. Peter's School; to reach the school the natural turning was to the right up Lawley Road, which intersects Selborne Avenue. The evidence given by the complainant at the...