S v Heller and Another (1)

• Jurisdiction: South Africa
• Citation: 1964 (1) SA 520 (W)

S v Heller and Another (1)
1964 (1) SA 520 (W)

1964 (1) SA p520

Citation	1964 (1) SA 520 (W)
Court	Witwatersrand Local Division
Judge	Trollip J
Heard	October 15, 1963
Judgment	October 15, 1963

Flynote : Sleutelwoorde D

Criminal procedure — Evidence — Opinion — Statements or reports prepared by experts — Use of — When permitted.

Headnote : Kopnota

E Statements or reports prepared by experts such as scientists, engineers, architects and accountants, for the purpose of subsequently testifying in the litigation that is at that stage contemplated, can be used by them in the witness box for the purpose of refreshing their memories as to the results of the investigation conducted at that time. Moreover such an expert witness can, for the purpose of refreshing his F memory, refer to a report, even though it is not his original report or his original notes compiled at the time of his investigation, so long as the report was compiled at a time when the facts were still fresh in his memory.

Case Information

Criminal trial. During the hearing the defence objected to the admission G of certain evidence the nature of which appears from the reasons for judgment.

N. C. Masters, Q.C. (with him M. E. Tucker), for the State.

W. Oshry, Q.C. (with him D. S. Levy), for accused No. 1.

H. J. Hanson, Q.C. (with him S. Kentridge), for accused No. 2.

Judgment

H Trollip, J.:

The State has produced as exhibits in this case, numerous records and books of account of the companies concerned in the trial of the two accused. It then called a certain Mr. Cox, a qualified accountant, to testify to the results of an investigation of these records, conducted by him over a period, as was stated by Mr. Masters, for the State, from September, 1962, to the 20th March, 1963. Mr. Cox was retained by the State to conduct such investigation. He stated that he had examined many exhibits which are listed by him in exh. 227, and he testified that while he conducted that investigation,

1964 (1) SA p521

Trollip J

he made notes of his investigation, and that subsequently he drew up a report based on these notes, which he then submitted to the State. According to the information given to me by Mr. Masters from the Bar, which was not challenged, this report was made on the 20th March, 1963, A and obviously made at a time when the results of his investigation were still fresh in his mind. The report was handed in at the preparatory examination, and therefore became and has been available to the defence. I have not seen or read the report, so I am unaware of its contents. When Mr. Cox commenced to testify in the witness box, he had his report B available in front of him, and he intended referring to it. He stated that the purpose for referring to it was limited to this extent that it would be an index or a guide to the notes of his investigation that he had made at the time. Mr. Cox called his report a distillation of those notes he had made at the time. Mr. Hanson yesterday objected to C Mr. Cox referring to his report for the purpose mentioned or indeed for any purpose at all. The only ground that was advanced for that objection was that the report constituted the witness' statement to the party calling him, that is, the State; and that it was prepared for the purposes of this litigation, and therefore it could not be referred to by the witness for any purpose. This morning while still maintaining D that objection, Mr. Hanson widened his objection considerably. He objected to all evidence to be given by Mr. Cox, on the ground mainly that in so far as the witness would testify to facts revealed by investigation of the exhibits, those facts had already been proved, and his evidence could therefore not add to such proof and was therefore E unnecessary and irrelevant. And secondly, in so far as his evidence would consist of views...