Rex v Thielke

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 13 June 1918
• Citation: 1918 AD 373
• Hearing Date: 11 June 1918
• Court: Appellate Division

Innes, C.J.:

The appellant was indicted on five counts for the crimes of abortion, attempted abortion and culpable homicide. She was tried at Cape Town on the 21st January last, and was acquitted on one count but convicted on the others. Application was thereupon made on her behalf for the reservation of certain two questions of law under sec. 372 of the Criminal Procedure and Evidence Act, 1917. The Court (KOTZE, J.) refused to make the order, but acceded to a request that the questions put forward should be raised by way of special entry under sec. 370. The entry made upon the record was in the following terms:-

1. That the proceedings in respect of counts 1 and 3 were irregular and not according to law, inasmuch as the jury were directed that

Innes, C.J.

there was evidence on which they might convict accused, whereas the only evidence for the prosecution that was inconsistent with the innocence of the accused was the evidence of accomplices, and there was no competent evidence other than the single and unconfirmed evidence of accomplices that the offences were actually committed.

2. That the proceedings in respect of counts 4 and 5 were irregular and not according to law, inasmuch as the jury were directed that there was evidence on which they might convict accused, whereas the evidence for the prosecution was not inconsistent with the innocence of the accused.

Dealing with the two heads of the entry in their order, it will he seen with regard to the first and third counts that the point intended to be raised was whether the evidence of certain accomplices had been confirmed as required by law. The 285th section of the Act, while in general terms sanctioning a conviction "on the single evidence of any accomplice," stipulates that the offence shall by competent evidence, "other than the single and unconfirmed evidence of the accomplice," be proved to have been actually committed. A duty is thereby cast both upon the Judge and upon the jury; it is for the former to say whether corroboration has, in any given case, been established; it is for the latter to say whether the corroboration is sufficient to warrant a conviction. And the contention is that the Judge should have ruled that there was no competent evidence of corroboration as required by the Statute and should have so informed the jury. That necessitates an enquiry whether failure so to rule, even if wrong, would constitute an irregularity or illegality in the proceedings. For If not, then the machinery of sec. 370 could not be invoked. The clause in question provides that if an accused thinks that any of the proceedings in connection with, or during his trial, "are irregular or not according to law," he may apply for a special entry showing the nature of the proceedings alleged to be irregular or illegal, "and such a special entry shall upon such application be made." It will be observed that the Judge is given no discretion; provided the matter complained of is capable of being regarded as an irregularity or illegality in the proceedings and the accused so regards it, an entry on the record must be made. In this respect the clause differs from sec. 372, which enacts that if any question of law arises in a criminal trial in a superior Court, then the Court may, "of its own motion, or at the request either of the prosecutor or of the accused, reserve that question for the

Innes, C.J.

consideration of the Court of Appeal." There the Court is under no compulsion but is allowed to exercise its discretion in each case, a discretion with which this Division cannot interfere. The presiding Judge will naturally and properly be in favour of the request in doubtful cases, but where he considers that the point has no substance and is not one proper to be reserved, he may refuse the application and his decision will be final. This distinction between the two sections is important, and it is desirable for purposes of practice to define, as far as possible, their respective operations. The Legislature clearly intended that the questions of law referred to in sec. 372 should not be dealt with by the machinery contained in sec. 370. Otherwise there would have been no need for two sections and two differing methods of procedure. Now there is a real distinction, more easy perhaps to recognise than to define, between questions of law arising on a trial, and questions regarding the irregularity or illegality of the proceedings (see Doyle v Shenker & Co., 1915 AD 233) The process by which the proceedings of inferior Courts may be brought under review on the ground of gross irregularity is one with which all lawyers are familiar. And having regard to the wording of the clause, and to the general principles of South African practice, I am of opinion that the matters with which sec. 370 was intended to deal were irregularities or illegalities of procedure. The law requires that trials shall be initiated and conducted with certain formalities and in accordance with certain rules and principles of procedure. And any irregular or illegal departure from these would be covered by section 370. But questions of law, bearing more directly on the merits, would fall to be raised under sec. 372. Such questions for instance as the construction of documents, the interpretation of statutes, or the definition of the essential elements of a particular crime. Points of that kind and many others would be properly reserved under sec. 372, and not entered under sec. 370. It does not follow that the two clauses will never overlap. Statutory divisions such as these are sometimes found to encroach upon one another. But the broad distinction will be generally sufficient for practical purposes. Applying it to the present case, it is clear that the matters referred to under the first head of the special entry cannot be properly regarded as irregularities or illegalities in the proceedings. There was no departure from due and legal procedure. The presiding Judge had to consider a question of law - whether the evidence adduced by the Crown complied with the requirements of sec. 285. He held that it did, and

Innes, C.J.

he followed the regular and proper course consequent upon that decision. To test the validity of his ruling a question of law might, subject to his discretion, have been reserved. But there was no room for the operation of sec. 370.

That disposes of so much of the appeal as is based upon the first head of the special entry. But as the matters sought to he raised involve a question of law of some interest which might quite properly have been reserved, and which was fully discussed by both sides, it may be desirable to say something about it.

Sec. 285 embodies a principle recognised in most Provinces of the Union, and introduced at the Cape in practically identical language nearly a century ago. It constituted then, as it still does, a departure from English practice in regard to the evidence of an accomplice. The rule in England has always been to recognise an accomplice as a competent witness, and to leave the Judge to advise the jury not to act upon it unless corroborated by proper evidence connecting the accused with the crime. In theory the giving of such advice is at the Judge's discretion; in practice it has hardened into a duty, the neglect of which is regarded as a misdirection. The effect of South African legislation on the subject was to substitute a definite rule of law for the somewhat indefinite English practice; and that rule is laid down by sec. 285 of the present statute in almost the very words of the Cape Ordinance. I have already stated the general effect of the section. The accused may be convicted "on the single evidence of any accomplice, provided that the...