Rex v Valachia and Another

• Jurisdiction: South Africa
• Citation: 1945 AD 826

Rex Respondent v Valachia and Another Appellants
1945 AD 826

1945 AD p826

Citation	1945 AD 826
Court	Appellate Division
Judge	Greenberg JA, Schreiner JA and Davis AJA
Heard	August 1, 1945
Judgment	September 18, 1945

Flynote : Sleutelwoorde

Criminal law — Murder — Intention to kill — Sufficiency of proof — Evidence — Statements by adversary proved by party to suit — Parts of statement favourable to adversary — Effect of — Duty of Court to weigh whole of statement — Murder trial — Crown proving confessions — Exculpatory portions of statements — Whether evidence of extenuating circumstances.

Headnote : Kopnota

The crime of murder has been committed if it be proved, by necessary inference from all the circumstances, that the accused killed the deceased by an act which he must have known to be of such a dangerous character that death would be likely to result therefrom and was reckless whether it did so or not.

The question whether an intention to hurt by means of an act which is intrinsically likely to kill is sufficient, not decided.

When one party to a suit proves against the other party a statement made by the latter, then the Court must not disregard any portion of such statement even though it be in favour of the party who has made the statement; it is its duty to weigh the credibility of such portion and to give such weight to it as in its opinion it deserves.

Where, therefore, a Judge presiding at a trial for murder had found that no extenuating circumstances existed, considering that he was not entitled to have regard to certain exculpatory statements included in certain confessions made by the accused and proved by the Crown,

1945 AD p827

Held, upon a question of law reserved, that the exculpatory portions of the confessions which the Judge was bound to consider in deciding whether or not extenuating circumstances existed and that the case should be remitted to the trial Court for reconsideration and to pass sentence afresh.

Case Information

Appeal on certain questions of law reserved by BLACKWELL, J., sitting with assessors in the Witwatersrand Local Division. The facts appear from the judgment of GREENBERG, J. A.

P. Lakier, for the appellants: In South African law, murder is the unlawful killing of a person with the intention to kill: Rex v Jolly (1923 AD 176). The intention may be proved by direct evidence or by proof of facts from which the necessary inference may, be drawn - Rex v Jolly (supra, at 180-182);. Rex v Ndhlovu (1945,- AD 369). Every man is presumed to intend the natural and probable consequences of his acts: Rex v Jolly (supra). In English Law, if a person commits, a felony, and in furtherance of it commits an act of violence which results in the death of some other person, such an act constitutes murder: Rex v Beard (1920, A.C. 479 at 493) this is not our law, according to which there must be the intention to kill: Rex v Jolly (supra); Rex v Ndhlovu (supra) Gardiner and Lansdown, Criminal Law and Procedure (4th ed., vol, 1, p. 74); Rex v Ngcobo (1921 AD 92 at 94). On a charge of murder, the onus rests upon the Crown, not only to prove the killing, but also that the killing was unlawful and intentional: Rex v Ndhlovu (supra). As to the confessions and statements made by the accused and relied on by the Crown for their conviction, a statement or confession made by an accused person against whom it is sought to be proved, must be read as a whole together with all the other evidence, and if it is inconsistent, improbable or incredible, or is contradicted or discredited by other evidence, or is the emanation of a weak or excited mind, the Court may exercise its discretion in rejecting it wholly or in part whether the rejected part makes for or against the accused: Wills, Circumstantial Evidence (6th ed., p. 118); Cockle, Cases and Statutes on Evidence (5th ed., p. 192); Rex v Mathabene (1945, P.H. R. 52); Smith v Blandy (1925, Ry. & M. 257, N.P.); Rex v Jones (1827, 2 C. & P. 629; E. & E.D., vol. 14, para. 4500); Rex v Higgins (1829, 3 C. & P. 603; E. & E.D., vol. 14, para. 4501);, Rex v Steptoe (1830, 4 C. & P. 397; E. & E.D., vol. 14 para. 4502), Further on the facts. As to extenuating circumstances within the meaning of sec. 206 (2), Act 31 of 1917, as amended by sec. 34, Act 46 of 1935, they are

1945 AD p828

circumstances associated with the crime which lessen in the minds of reasonable men to some extent the magnitude of the crime, but which do not excuse it as such: Rex v Lloyd (1941,. CPD 162 at 164); Rex v Biyana (1938, E.D.L. 310); Rex v Hugo (1940 W.L.D. 285).

B. G van der Walt for the Crown: The inference that the accused killed the deceased, and that such killing was unlawful was correctly drawn by the trial Court: Rex v Ngcobo (1928 AD 372); Rex v Matsitwane and Another (1942 AD at 219). The intention to kill, on the part of the accused, must be gathered by inference from all the evidence before the Court, in spite of accused's assertion to the contrary: Rex v Ndhlovu (supra) Rex v Jolly and Others (1923 AD at 181). The intention to kill can be inferred from the nature of the assault itself: Rex v Jolly and Others (supra, at 181, 188). The tact that the woman was frail makes the commission of the crime easier, but not less serious in the circumstances; Roscoe's Criminal Evidence (15th ed., p. 879). The accused's actions in regard to the deceased woman were of such a nature as to show a reckless disregard of the consequences: Rex v Ngcobo (1921 AD 92 at 94); Rex v Jolly and Others (supra, at 187, 188). What is desired and what is in law regarded as being intended are not always the same: Rex v Peverett (1940 AD at 219). The accused may be said to have had the intention to kill as the evidence shows that they deliberately committed an assault in the execution of their plan to steal: Rex v Wallendorf (1920 AD at 397). All the above factors combined with the fact that the accused failed to give an acceptable explanation in the face of the medical evidence, justifies the inference of intention: Rex v Ndhlovu (supra); Rex v Matsitwane and Another (1942 AD at 219, 220); and cf. Rex v Cohen (1942 TPD at 274, 277); Rex v Roos (1936, TPD at 262). As to extenuating circumstances, see Rex v Biyana (1938,.E.D.L. 310); Rex v Hugo (1940 W.L.D. 285). The accused advanced no facts from which the Court could gather any extenuating circumstances: Rex v Mfoni (1935 OPD 191).

Lakier, in reply.

Cur adv vult.

Postea (September 18th).

1945 AD p829

Judgment

Greenberg, J.A.:

The accused were charged, in the Witwatersrand Local Division, with having murdered a woman, Zoaguina de Ponte, on the 31st July, 1942. They were tried by a Judge and assessors, were convicted of murder; no extenuating circumstances were found and they were accordingly sentenced to death. But shortly after their trial, doubt arose in the mind of the learned Judge who presided at the trial, on two points, one with reference to the verdict and the other to the finding that there were no extenuating circumstances. He accordingly reserved two points for the consideration of this Court.

The first point reserved reads: - "Was the evidence before the Court sufficient to justify a conviction of murder?" The question will be taken to have been reserved in its proper form, viz.: Was there evidence on which the Court was entitled to convict the accused of murder?

The question, therefore, is whether there was legal evidence before the Court on which it was entitled to convict the accused of murder. Murder is an unlawful killing with what is generally described as an intent to kill; the point made before us was that the onus of proving the intention was on the Crown (Rex v Ndhlovu (1945 AD 369) ), and that there was no evidence upon which the trial...