Rex v Saffy and Bennett

• Jurisdiction: South Africa
• Judgment Date: 19 May 1944
• Citation: 1944 AD 391

Rex Respondent v Saffy and Bennett Appellants
1944 AD 391

1944 AD p391

Citation	1944 AD 391
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
Heard	March 9, 1944
Judgment	May 19, 1944

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Misdirection in summing up on question of law — Meaning of summing up as a whole — Failure of justice — Proviso to section 374 of Act 31 of 1917 — Criminal law — Receiving stolen property — When receiving complete — Interval of time between receipt and assumption of full control.

Headnote : Kopnota

Where upon a charge of receiving certain stolen property with knowledge that it had been stolen the presiding Judge had, in the course of his summing up, misdirected the jury as to the nature of the crime charged, though he had elsewhere in the summing up correctly stated its nature,

Held, upon certain questions of law reserved (CENTLIVRES, J.A., dissenting), that considering the summing up as a whole there was a reasonable possibility that the jury had been influenced by the misdirection and that consequently the conviction should be quashed.

The proviso to section 374 of Act 31 of 1917, which enacts that no conviction shall be set aside by reason of any defect in the proceedings unless it appears to the Court of Appeal that a failure of justice has resulted therefrom, discussed and explained.

The case of Rex v Roe (19,37, k. D. 467), applied; Rex v Johnson (1939 AD 245), explained.

Per FEETHAM, J.A.: Though on a charge of receiving stolen property with knowledge that it has been stolen, guilty knowledge must be proved at the time of the receipt of the goods, in a case where there is an interval of time between the actual receipt of the property and the decision to take complete or a fuller control of the property, the receiving is not complete with the actual receipt, but continues up to the stage then the final decision is made.

Case Information

Appeal upon certain questions of law reserved by GUTSCHE,

1944 AD p392

A.J.P., sitting with a jury in the Port Elizabeth Circuit Court.

The facts appear from the judgment of FEETHAM, J.A.

F.G. Reynolds, K.C. with him A. G. Jennett), for the appellants: In regard to the questions of law reserved on the 18th January, 1944, the charge against the appellants was receiving stolen property well knowing it to have been stolen, and while evidence was led of certain circumstances that occurred at or before the receiving, the main evidence as to guilty knowledge depended on events which occurred after the receiving. Such evidence was inadmissible, as the belief or guilty knowledge had to exist at the receiving and not acquired subsequently. See. Rex v Tennet (1939, A.E.R. 86); Rex v Retief and Greyvenstein (1904, T.S. 63); Rex v Chicani (1921, E.D.L. 123); Rex v Sipendu (1932, E.D.L. 31.2); Rex v Lange (1935, J.S. 3); Rex v Ngoyo (1937, E.D.L. 101); Rex v Attia (1937 T.P.D. 102); Titus Bennet v Rex (1940, G.W.L. 1); Rex v van der Bank (1941 T.P.D. 307 at p: 310); Rex v Bazi (1943, E.D.L. 222); Rex v Wurayi (1943 (1) P.H.H. 90); Rex v Currell (25 C.A.R. 116); Gatti v Rex (14 E. & E. Dig., p. 532, para. 6024, note (d) ); Rex v Watson (115 L.T. 159). The learned Judge therefore misdirected the jury. The appellants were clearly prejudiced by such misdirection.

In regard to the questions of law reserved on the 13th December 1943, the statement of the appellant Saffy was inadmissible, as there was substantially a demand for a statement and no warning given by the Detective Fuchs. Rex v Ngubane (1934 AD 215); Rex v van Blerck (1919 CPD 68); Rex v Malapi (1940 W.L.D. 175); Gardiner & Lansdown, Criminal Law and Procedure (vol. 1 (4th ed.), regulations at pp. 458-9). Although at the search at appellant's place of business the usual warning was given to appellant Saffy by Detective Barnard, no further warning was given to him by Detective Fuchs before whom he made the statement and who wanted him to make a statement, after he had been taken to the station by the police with the goods which had been discovered on his business premises. The appellant Saffy was prejudiced by the wrongful admission of this statement; he was cross-examined on it as mentioned in the summing-up, and its nature was such that it must have affected the jury.

F. P van Gass, K.C., Attorney-General, O.F.S., for the, Crown: In regard to the alleged misdirection, the summing-up must be read as a whole. See Gardiner & Lansdown (supra, at p. 312); Rex v Sutherland (1927 AD 88); Rex v Caganoll (1933, A.D.

1944 AD p393

54); Rex v Leo and Another (1914 AD 253); Rex v Johnson (1939 AD 245); Rex v Rabie (1927 AD 17); Rex v Meiring (1927 AD 44). If the summing-up is read as a whole, the offence against the appellants is correctly described, as indicated in the indictment. In any case, the appellants suffered no real and substantial prejudice.

In regard to the statement of appellant Saffy, it was correctly admitted, for the evidence shows that the statement, which was not a confession, Was freely made, and no objection was raised in the Court below to its admission. In any case, Saffy had been sufficiently warned by Barnard, and this warning was sufficient to cover the statement subsequently taken by Fuchs. Rex v Ngubane (supra); Rex v Mogodi (1924 T.P.D. 577); Gardiner & Lansdown (supra, p. 458); Rex v Barlin (1926 AD 459); Rex v Voisin (1918, 1 K.B. 531).

Reynolds, K.C., replied.

Cur. adv. vult.

Postea (May 19th).

Judgment

Watermeyer, C.J.:

In this case the question of law as to misdirection which was reserved on behalf of both applicants will be answered it their favour and their convictions and sentences will be quashed.

There is, in my opinion, a reasonable possibility that the misdirection by the learned trial Judge, which is fully dealt with in the judgment of my brother FEETHAM, affected the minds of the jury and influenced them in arriving at their verdict. Consequently, for the reasons stated in the judgments of my brother FEETHAM and of my brother DAVIS, in both of which I concur, the convictions must be quashed.

Judgment

Tindall, J.A.:

I concur in the judgment of my brother FEETHAM but I wish to add a few remarks on the question of prejudice in relation to the facts of the present case. In my opinion at the end of the summing-up, considered as a whole, the jury were left with what were really two conflicting views of the nature of the crime with which Saffy and Bennett were charged. As the misdirection was of that character, in my view it was likely to confuse the minds of the jurors, who were laymen, as to the essential

1944 AD p394

Centlivres, J.A.

elements in law, of the crime of receiving stolen property, knowing it to have been stolen. If that be so, not only is it reasonably possible but it is probable that the misdirection influenced the minds of the jurors. From this view it follows that the conviction cannot be allowed to stand.

Judgment

Centlivres, J.A.:

There can in my view be no doubt that it was a misdirection for the learned presiding judge to say in the course of his summing-up on the charge of receiving stolen property well knowing it to have been stolen that the charge against the accused was "that they were in possession of the property stolen when they well knew that it was stolen" and that "the crime is being in possession of stolen property believing or knowing it to be stolen". The words in quotation marks are the passages particularly referred to in one of the questions of law reserved, but in order to ascertain whether there is a reasonable possibility that the jury might have been misled by the error in the summing-up the whole of the summing-up must be looked at and not merely isolated passages taken out of their contexts Cf. Rex v Nossel (1937 AD 1) and Rex v Fancourt (1939 AD at p.312). Consequently I propose to examine the summing-up as a whole.

At the beginning of the summing-up the learned Judge correctly stated the actual charge as follows: -

"You will observe from your indictment that there are two charges against the accused, against the first three accused of housebreaking with intent to steal and theft, and against the accused, Saffy and Bennett, of receiving stolen property well knowing the same to have been stolen."

No fault can be found with this passage.

The next part of the summing-up which is of any importance and which contains the passages quoted in the question of law reserved is as follows: -

1. "With regard to the charge of housebreaking with intent to steal and theft against the first three accused the possible verdict is, if you are not satisfied that they are the men who broke into those premises (by applying the doctrine of recent possession), then you can bring in a verdict of being in possession of stolen property well knowing it to have been stolen. That is the charge which is brought against Saffy and Bennett, that is, that they were in possession of this property when they well

1944 AD p395

Centlivres, J.A.

knew that it was stolen. You will have gathered from counsels' addresses that it is no offence to be in possession of stolen property; that is no offence at all. You heard the very first witness for the defence say that he had bought wool which was stolen. The crime is being in possession of stolen property knowing or believing it to be stolen. That is the enquiry to which you will direct your mind in regard to Saffy and Bennett's case. Also, if you make up your mind that you are going to consider whether the accused Nos. 1, 2 and 3 may be found guilty of the crime of being in possession of stolen property, you will have to make up your mind in all three cases whether the Crown has satisfied you that there was the requisite guilty knowledge or belief (because belief and knowledge are two separate things). Mr. Reynolds quite correctly right through his...