Rex Respondent v Ndhlovu Appellant 1945 AD369

Appellate Division

1944. November 29; December 15.

WATERMEYER, C.J., GREENBERG, J.A, and DAVIS, A.J.A.

Flynote

Criminal law. --- Murder. --- Onus of proving that killing unlawful and intentional. --- Onus of proof in criminal cases. --- Generally.

Headnote

On a charge of murder the Crown must prove not only the killing but that that killing was unlawful and intentional. It can discharge that onus either by direct evidence or by proof of facts from which a necessary inference may be drawn. If on a review of all the evidence, whether led by the Crown or by the accused the jury are in doubt whether the killing was unlawful or intentional, the accused is entitled to the benefit of the doubt. That doubt must be one which reasonable men would entertain on all the evidence: the jury should not speculate on the possible existence of matters upon which there is no evidence or the existence of which cannot reasonably be inferred from the evidence. The only exception to the rules as to the onus being on the Crown in all criminal cases to prove the unlawfulness of the act and the guilty intent of the accused and of his being entitled to the benefit of any reasonable doubt thereon are, in regard to intention, the defence of insanity, and, in regard to both unlawfulness and intention, offences where the onus of proof is placed on the accused by statute.

Where, therefore, the accused had been convicted of murder in the Natal Native High Court upon proof that there had been a scuffle or fight; that the accused was seen running away from the place where the deceased had just been stabbed; that he made no reply to two persons who both accused him of having killed the deceased and that he had never offered any explanation of what actually occurred, but the Court of Appeal was in doubt, owing to a number of other circumstances disclosed by the evidence, as to whether the accused was guilty of murder, the conviction was set aside and the verdict altered to one of guilty of culpable homicide.

The case of Woolmington v Director of Public Prosecutions 1935 AC 462 followed.

Case Information

Appeal from a conviction in the Natal Native High Court.

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

S. Miller, for the appellant: The Crown failed to discharge the onus of proving beyond reasonable doubt that the appellant was the person who stabbed, and caused the death of, the deceased. There was not direct evidence thereof and the finding of the Court a quo that appellant was that person was the result of an inference which it is submitted the facts did not justify (Rex v Tshabangu (1934 AD at p 519); Rex v Blom (1939 AD at p 202-203); Rex v Magatuse (1941 AD at p 202) ). Even though the appellant's evidence was rejected the Court had still to determine whether the evidence for the Crown excluded every reasonable doubt of the

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guilt of the appellant (Rex v Macaba (1939 AD at p 70); Rex v Grobler 1941 SWA 23; Rex v Mpondo (1936 OPD at p 191) ).

On the assumption that the Court a quo was justified in its inference that appellant was the person who stabbed and caused the death of the deceased, it is not clear that the Court a quo gave due

consideration to the possibility that a verdict of culpable homicide was in the circumstances the correct verdict (Rex v N'Thauling (1943 AD at p 654-5); Rex v Knowles (1930 AC at p 376-7) ). In fact the Court a quo having regard to all the circumstances should have had grave doubts as to whether appellant had the intention necessary to make his crime one of murder and should accordingly have convicted him of the lesser crime (Rev v Ngobese 1936 AD 296, 300, 301, 305); Woolmington v Director of Public Prosecutions 1935 AC 462, 480, 475, 482); Rex v N'Thauling (supra at p. 653); Rex v Ngcobo 1921 AD 92 at 94) ). In any event, the sentence was too severe, and should be substantially reduced (Rex v Sitomele and Others (1943 AD at p 455); Rex v Mahametsa (1941 AD at p 86) ).

F. E. Lutge, K.C., for the Crown: The Court was entitled, on the facts proved together with the accused's conduct and his false denial of his presence at the scene of the crime, to draw the inference not only that he killed the deceased but also that he did so unlawfully (Rex v Tshabalala and Others 1942 TPD 27; Wills on Circumstantial Evidence (7th ed., p. 112).

Cur. adv. vult.

Postea (December 15th).

Judgment

DAVIS, A.J.A.: The accused was convicted by the Native High Court of the crime of murdering Mbovula Mkize: the Court found mitigating, circumstances and he was sentenced to imprisonment with hard labour for fifteen years. He now appeals, having obtained leave from this Court.

The facts are by no means altogether clear; nor are they made clearer by the absence of any kind of plan. In a case such as this, a plan should always be put in by the Crown. It need not be anything elaborate; it need not even be drawn to scale; all it need do is to give the Court a rough idea of the relative positions

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of A he principal places referred to in the evidence and their distances from each other.

On the night of the 17th October, 1943, one Patekile, who had formerly lived with the accused, was in the room where she then lived, together with Agnes Radebe, when the deceased, Mkize, who was a stranger, arrived. Then the accused, together with another man named Kumalo, who was later charged with the accused, but was acquitted at the close of the Crown case, also came there. A quarrel ensued between the accused and the deceased, about payment for certain drink; it was started apparently by the deceased, and they became heated. Patekile turned them both out, as she did also Kumalo, who was so drunk that as soon as he came in, he at once sat against the wall and went to sleep. Kumalo had a stick: the accused apparently had no weapon. They had all originally come to get liquor and liquor was undoubtedly consumed. The three men went out; when they were outside Patekile heard the accused say: "This man is armed with a knife." Patekile was found by the Court to be an unsatisfactory witness. But Agnes Radebe was described as an excellent witness. She corroborates Patekile in what I have so far set out: she adds that when the men had gone out of the room and were still in the passage she heard a scuffle: it was immediately after the scuffle, but while they were still in the passage, that she heard this exclamation about the knife in the voice of the accused. Rosy Radebe, whose evidence was also accepted, lived in a house situated below, and some fifteen to twenty paces from, that of Patekile; she said that she was awakened by voices coming from the direction of Patekile's house and that she heard a woman's voice cry out: "Don't kill a person. Don't kill a person." Asked whether any name was mentioned, she amended this to "Kumalo, don't you people kill this man." She at the same time heard footsteps near what she describes as a "donga", between her house and that of Patekile. When she opened her door, she saw the accused coming from the kitchens, which were situated below her house, and quite near it; he was running uphill in the direction of Patekile's room. She at once went down to the kitchens, saw that the deceased was seriously injured and called to the accused, whom she knew well: "Ndhlovu, don't you people leave this person here that you have killed." The accused made no reply. She then attended to the injured man. She added that by the noise that was made when she was awakened, it sounded like a drunken

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party: there seemed to be a number of people there. Isabella Mjoli lives next to the last witness. Her evidence was also accepted and it was to the same effect; she, too, called out to the accused in similar terms and got no reply. She says that the accused actually ran into Patekile's room: the light then went out. This, I may say, is denied by both Patekile and Agnes. Duma, who shared a room with the accused near Patekile's house, says that that night the accused did not sleep there, but he came in late hurriedly to get his jacket and then left, also hurriedly. The Assistant District Surgeon gave evidence that the deceased died from a stab wound in the back near the left shoulder blade: he also had an abrasion of about one inch by half an inch on the right temple, caused by either a fall or a blow. Kumalo was not

called after his discharge. The accused gave evidence; his story was that after he left Patekile's room he went straight to his own, and went to sleep. He heard nothing until he left for work early next morning. He denied any quarrel with the deceased. His story was entirely rejected by the Court.

Mr. Miller argued that there is not enough evidence to connect the accused with the crime. I cannot agree: in my opinion the evidence was ample to warrant the inference that the accused caused the death of this man. There was evidence of a previous quarrel and of a scuffle or fight outside the room, that the accused was seen running away from the place where the man had just been stabbed, that he made no reply to two people who both accused him of having killed him and he had never offered any explanation of what actually occurred. To the last point I shall return later.

But counsel contended further that, even if the evidence was sufficient to show that it was the accused who killed Mkize, it was insufficient to prove that the crime was murder and not only culpable homicide. The Attorney-General stated that in all the circumstances he could not contend that the Crown had proved that the accused was guilty of murder. But that attitude does not relieve the Court of the necessity of ascertaining for itself what was the correct verdict --- though no doubt it may assist it in doing so.

The determination of the question whether, on the facts as I have set them out above, the conviction of murder was justified, directly involves the determination of the question whether we are

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to accept, as accurately setting out our law, the unanimous decision of the House of Lords in the case of Woolmington v The Director of Public Prosecutions 1935 AC 462, on which Mr. Miller relied. The headnote is as follows: ---

"In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitledto be

acquitted. Statement of the Law in Foster's Crown Law, (1762, p. 255) and summing up of TINDAL, C.J., in Rex v Greenacre (1837, 8 C. & P. 35), disapproved."

The statement of the Law by Sir Michael Foster, which had stood unchallenged for a period little short of two hundred years, was as follows: ---

"In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The defendant in this instance standeth upon just the same foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them."

The summing up of TINDAL, C.J., to which reference is made in the headnote, is in somewhat similar terms.

Murder has been defined by Gardiner & Lansdown (4th ed., vol. 2, p. 1260, as "the unlawful killing of a human being, with intent to kill." (The word "malice", used in England, is, synonymous with mens rea: it means intention, but it includes forms of intention which would not make killing "murder" in our law, see Kenny, Criminal Law (5th ed., p. 132); this however, has no bearing upon the present matter.) The killing must be unlawful and it must be with intent. The problem before the

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House of Lords was whether the Crown must prove not only the killing, but also (1) its unlawfulness and (2) the intention; or whether on the other hand, when once the Crown had proved the killing, it was for the accused to disprove both its unlawfulness and his intent. As the result of this statement of the law by Sir Michael Foster, and to some extent of the summing up of TINDAL, C.J., all the text books laid it down --- to cite from one of them, Halsbury (vol. 9, p. 426): ---

"When it has been proved that one person's death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murder unless the contrary appears

from the evidence either for the prosecution or for the defence. The onus is upon such person when accused to show that his act did not amount to murder."

Sir Michael Foster had generally been taken to mean that the onus of proof in the full sense was shifted on the accused, when once the Crown had proved that he had killed a fellow human being. He was understood as meaning not merely that, from the fact of the killing, the jury might draw an inference of guilt, in the absence of an explanation from the accused which satisfied them, but that, in the absence of such an explanation, they were bound to draw it. It was not enough for the jury to be left in doubt as to the unlawfulness of the killing or as to the lack of evil intent on the part of the accused, for then he had not discharged the onus of proof. I am not here proposing to enter on difficult questions as to the true meaning and effects of a presumption, for it seems to me unnecessary to do so; but reference may be made to Wigmore (sec. 2483 et seq.) and to the judgments of STRATFORD, C.J., in Rex v Fourie (1937 AD at p 44) and in Tregea v Godart (1939 AD 16). Nor, again, am I proposing to consider what, if any, are the differences between presumptions in a civil and a criminal case (see Huber, Praelectiones. 22.3.16); nor what are the different meanings and effects of what is called an onus --- as to which see Wigmore (loc cit.). It is enough for me to state the problem which faced the House of Lords: it is the same problem which faces this Court. For if the appellant was entitled to the benefit of the doubt on all the evidence --excluding his own story, which was rejected, but taking into consideration against him the fact that he offered no acceptable account of the occurrence, --- should, as I shall later, have been convicted only of culpable homicide, and not of murder: if, however, the onus

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was on him to satisfy the Court, even that upon the balance of probabilities, --- see Rex v Sodeman (1936, 2 A.E.R at p. 1140), approved in Rex v Carr-Briant (29. Cr. App. R. at p. 85); Rex v Bolon 1941 AD 345 --- he was only guilty of the lesser crime, he has obviously failed to discharge it.

In his speech in Woolmington's case, VISCOUNT SANKEY, L. C., suggested that it was doubtful whether either the passage in Sir Michael Foster's work, or the summing up of TINDALL, C.J., meant "that at some particular time of a criminal case the burden of proof lies on the prisoner to prove his innocence". He continued:

"Rather do I think they simply refer to stages in the trial of a case. All that is meant is that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is

evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive so bare and meagre a case but that does not mean that the onus is not still on the prosecution."

He then showed that were it otherwise, and were the onus shifted on the prisoner, then, unless the prisoner discharged that onus, the Judge could direct the jury that as a matter of law they must convict him; and proceeded:

"Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence."

He then, a little later, used the words cited in the headnote, concluding:

"If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted."

I may here say that some difficulty has been caused by the last statement. It seems obvious that, where the only doubt is whether the deed had been provoked, the prisoner could not be said to be entitled to an acquittal, though the proper verdict would be a

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verdict of culpable homicide (in England, manslaughter). The matter was, however, subsequently put right by Viscount SIMON, L.C., in the case of Mancini v Director of Public Prosecutions (1942 AC at p 13); he says that this sentence "should, of course, be understood as meaning 'the prisoner is entitled to the benefit of the doubt'. If the jury are left in reasonable doubt whether the act was 'uninentional', i.e., a pure accident without criminal negligence, the verdict should be not guilty. If they are left in reasonable doubt whether the act was 'provoked' i.e., perpetrated under the impulse of provocation as above defined, the prisoner should be found guilty of manslaughter." Viscount SANKEY expressed his entire

concurrence; when in this judgment I speak of the law as laid down in Woolmington's case, I of course mean that law as explained in the later case.

I turn to the authorities to see how the matter stood under the Roman-Dutch Law, and to ascertain if the law as set out in Woolmington's case is the law as laid down by those authorities. In this instance --as in so many others, in relation to crimes they do not seem to me to afford very sure guidance: it appears to me that their exposition is somewhat affected by "the uncertainty and want of precision" to which DE VILLIERS, C.J., referred in Rex v Kaplan (10 J at p. 262), and which has been remarked upon on a number of occasions in this Court. This is all the more to be expected where we have to deal with a somewhat fine distinction between an adverse presumption, which is raised by certain facts and shifts the onus of proof as a matter of law on to the accused, and exactly the same adverse presumption (it would differentiate the two more clearly if I were to call it an reference in that case), which may, but not necessarily must, be drawn from the same facts, unless the accused furnishes an answer to them --without, however, having the effect ever of shifting the onus of proof on to him. That confusion, all the more pardonable when and where there was no division between the functions of the Judge and of the jury, is, I think, to be found in many, if not indeed in all, of the writers whom I shall proceed to examine. But I may say, before I do so, that I agree with Lord SANKEY in thinking that it is by no means certain that it was not a failure to distinguish accurately between this presumption and this inference, which led Sir Michael Foster to make his statement of the Law; I am not even sure that the distinction has always clearly been

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borne in mind even in other connections and in far more modern times.

Moorman, however (2-1-4, 5), puts the matter with considerable clarity. He says, at p. 139:

"En dewyl, gelyk in alle misdaden, soo ook in den doodslagh, de quade wil, en het boos opset, en niet eigentlyk alleen de daed, ofte de uitkomst, iemant schuldigh maekt. Soo is het, om iemant als een doodslager te doen straffen, niet genoeg, dat de enne mensch door den andered gedood zy: maer het is vooral noodigh, dat de Daeder een doodelyk opset, of voorneemen om te dooden gehad hebbe.

En nademael dit voorneemen, veeltyts in het gemoet verhoolen, aen niemant, buiten den Daeder, dan alleen aen God, kan bekent zyn, soo moet men uit de omstandigheden, en voornamentlyk de

wapentuigen, waermede het feit gepleegt is, het besluit opmaken, of de aengeklaegde sulk een doodlyk opset, ofte voorneemen hebbe gehad dan neen."

That seems to imply that the onus of proving not only the actual killing, but also the intention with which the deed was done, lies on the Crown. But, as we shall see, there is a later passage which appears to make an exception in the case of a plea of self defence. Even in regard to the latter, however, Voet (48.8.12) says: "Pro hoc autem inculpatae tutelae moderamine etiam in dubio praesumendum est, donec praesumptio illa vel probationibus, vel fortioribus in contrarium indiciis pulsa fuerit; cum quisque bonus praesumatur, quamdiu malus non probatur,": he seems to think the contrary was laid down by the Criminal Constitution of Charles V, article 141, but he disregards it. The passage that I have cited may be translated as follows: "Moderate and justifiable self-defence is presumed even when it is in doubt, until that presumption is rebutted by proof or by stronger indications to the contrary, for everyone is presumed to be good as long as he be not proved to be bad."

This passage, for which he relies, amongst other authorities on Mascardus, de Probation. Conclus. (7214) and Holl. Cons. (3-11-4-6), seems satisfactory enough, insisting as it does on the presumption of innocence; but it is a pity that he adds: "nec ante in eodem mali genere malus fuit." Voet evidently would not approve of secs. 295 and 328 of the Criminal Procedure Code. Mascardus, who had just before (71-2) said that "Cogitur aggressor

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probare se non habuisse animum occidendi", confines the benefit of the presumption that the accused is not the aggressor only to one who is proved to have led a blameless life, to have been of honourable habits and to have been previously of a peaceable disposition; he does not seem on the whole very helpful. The Hollandsche Consultatie cited by Voet also restricts this presumption to a man of honour: cf. Utr. Cons. (2.17.3 et seq.). Menochius, de Praesump. (1.97.8) says: "Homicidia et caetera delicta similia dolo committi a lege praesumitur." He goes on to say that it was for the accused to prove that he was not actuated by an evil intent (dolus), and that this presumption is a praesumptio juris. But he admits that there are differences of opinion on the subject. (Menochius, of course, wrote purely on the Roman Law, and not on the Roman-Dutch Law.) Matthaeus (the second), who was a Roman-Dutch writer, says (de Crim, 48.5.3.14, 15), speaking of the defence of lack of evil intention: "Non enim ea (m) defensionem proposuisse satis est, nisi eadem idoneiis argurmentis confirmetur. In dubio enim caedes sicut quaevis injuria, praesumitur dolo malo facta; but he adds: "Sed ea praesumptio contrariis argumentis eliditur, quae desumuntur vel a personis, vel a teli genere." (For it is not enough to put forward that defence, unless it is supported by suitable arguments. For in case of doubt homicide, like

any other crime, is presumed to have been committed with evil intent; but that presumption is met by contrary arguments, which are selected either from the persons concerned or the kind of weapon employed.) In other words, the matter must be decided upon all the facts of the case, from which inferences one way or the other may be drawn --- which seems a by no means unsatisfactory statement. Carpzovius, Prae. Rer. Crim. (1.33.3 & 6); Boehmer, in n.l. on this passage and in his Meditationes on the Constitution of Charles V, Art. 141, Damhouder Prae. Rer. Crim. (34. 6 & 7), and van Hogendorp (32.3 & 4), hold that in case an accused pleads self defence, the question of the onus of proving intent depends upon whether he admits or denies the killing. If he admits it, then the onus is upon him to prove his defence; if on the other hand he denies it, then the onus is on the prosecutor to prove not only the killing, but also the intention. They confine the effect of the Constitution of Charles V, and if any presumption of intent, to the case where the accused admits the deed. Not so, however, Perezius, ad Cod. (9-16); he says that in every case of killing,

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intention is presumed, even where the accused alleges an accident: he relies on the Constitution and C. 9.16.1; see also C. 9.16.5; but one might cite on the other hand D. 18.8.14: " In maleficiis voluntas spectatur, non exitus." Moorman (2.2.14), says that:

"Het is niet genoeg noodweer to allegeren, maer die moet ook door den aangeklagde geprobeert worden." He proceeds to show that he can do so in any way whatever, from inferences and presumptions drawn from the time, place, weapons, persons, and manner of life, both of the killer and the killed: he may also call witnesses whose evidence is not ordinarily receivable, "such as persons living in the same house, close friends, a husband for his wife, or a wife for her husband, and the like." Huber, Praelectiones, ad. (D. 48.5.8) and van Leeuwen, Cens. For. (5.11.5), are much to the same effect: the latter adds to what may be taken into consideration, inter alia, "the position and station in life of the accused and the deceased" and "quis eorum ex vita ante acta majorem fidem et innocentiae opinionem mereatur". He also seems to put the onus upon the accused, but he says: "Quod quomodo probetur, aut ex quibus circumstantiis appareat quum difficilis probationis est, arbitrio et discretioni judicis dijudicandum commititur." This writer gives the relevant portions of the Constitution of Charles v of 1530 and 1531, dealing with the onus in cases where self-defence is pleaded --- (Art. 141) --- as do Carpzovius (loc cit.) and Boehmer (loc cit.); but he adds a Latin paraphrase, from which it would appear only to apply to the case where the accused admits the killing. Leyser, it may be noted (Med ad Pand, Spec. 600-35 to 38), considers this provision of the Constitution as to the plea of self-defence out of date; the question should be left; he thinks, to the Judge to decide on all the evidence. If the Judge is left in doubt, he should not resort to torture --- Leyser wrote this in the second quarter of the 18th century -- or to administering an oath to the accused: he should sentence him forthwith to the poena extraordinaria, that is to the punishment, not for murder, but for culpable homicide --- an easy, but

hardly satisfactory, way of disposing of a matter where, after all, the accused might be entitled to an acquittal. Van der Linden (2.5.9 in fin.), dealing with the plea of self-defence, says that it must be established by the accused, because "alle doodslag het vermoeden van opzet tegen zig heeft". But, on the other hand, Gail, Obs. (2.110.5, 6), says quite generally: "Quapropter dolum

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allegans eum probare debet, quria quilibet praesumitur bonus, donec contrarium probetur." I am aware that I have gone beyond authors who wrote purely on Roman-Dutch Law, but it was difficult not to do so, when all of them take the Digest and Code (Roman Law), and to some extent the Constitution of Charles v (primarily German Law), as their foundation.

What conclusion are we to draw from the authorities which I have cited above? The majority seem to agree that, notwithstanding any supposed presumption of intention, it is for the Crown to prove the whole of its case, and where it sets out to prove that the killing was intentional, that is to say that the crime was murder and not homicide, it must do so. The case of a plea of self-defence is more doubtful: many seem in that regard to be of a contrary opinion --- no doubt, because there the defence often is that, though the Crown has proved an intentional killing, that intentional killing was excused. But even here there seems to be considerable divergence of opinion, at least in regard to a man of honour. Kotze, note to van Leeuwen, R.-D. Law (4.34.10) says: "The onus of proving that the robber or thief was killed in defence of life or property lies on the accused . . . In case of doubt it is presumed that, where a man of honour has killed another, he did so in self-defence." He cites a number of the above authorities. It seems to me that, where there is so much difference of opinion amongst the old authorities, and where so much that they lay down is based upon laws of evidence --- including, I may again say, submission to torture, as to which see Barel's Cr. Adv. 71 (the date, 1712, is to be noted) --- which are so very dissimilar from our own, we should, even in regard to a plea of self-defence follow those writers (such as Voet) who lay down the law more in accordance with what, as I suggest, is the fundamental principle of the whole of our criminal law, as it is also of the law of England. In Woolmington's case (at p. 481) Viscount SANKEY, L.C., said:

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception."

And in Mancini's case, Viscount SIMON, L.C., said (at p. 11):

"Woolmington's case is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it

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makes beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is of general application in all charges under the criminal law. The only exceptions arise, as explained in Woolmington's case, in the defence of insanity and in offences where onus of proof is specially dealt with by statute."

According to those cases, therefore, the burden of proof, when the plea of self-defence is set up, is still on the Crown. But I should at once sound a note of warning. This does not mean that when no evidence whatever has been led by either the Crown or the defence which goes to show, or from which it might reasonably be inferred, that the deed might have been committed in self-defence, that the Crown must negative a merely hypothetical possibility that it might have been so committed. Viscount SIMON, L.C., said in the Mancini case (at p. 12) that he took the defence of provocation as an example is immaterial:

"Taking, for example, a case in which no evidence has been given which would raise the issue of provocation, it is not the duty of the Judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for I is on the evidence, and the evidence alone, that the prisoner is being tried, and it would only lead to confusion and possible injustice if either judge or jury went outside it."

I shall return to this point again later. But remembering that the Crown must allege that a killing is not only intentional, but also that it is unlawful, and that the onus is on it to prove all its averments, I can see no sound reason for departing from the general rule in respect of a plea of self-defence, whether it be raised by a "man of honour" or by anyone else.

I come next to consider in how far, if at all, the matter is affected by previous decisions of this Court. In Rex v Wallendorf 1920 AD 383, J. E. R. DE VILLIERS, A.A.J.A, said in a dictum (at p. 406): "Thus all killing is presumed to be murder with malice aforethought until the accused disproves malice": he cited no

authority. But J. DE VILLIERS, A.J.A, had said (at p. 404): "I come to the conclusion, therefore, that knowledge is

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essential to constitute the offence of resisting the police. The next question is: Upon whom is the onus of proving knowledge? Now, if I am right in the view that the exact definition of the crime requires knowledge, it follows that the onus is upon the Crown." In other words, the Crown must prove all necessary averments. And the next year, in the case of Rex v Ngcobo (1921 AD at p 94) INNES, C.J., though during argument he had interjected: "The law presumes murder from the fact of killing," when he came to give judgment, said: "There can be no doubt that the appellant killed the deceased and that the killing was unlawful. I express no opinion upon the question whether our law, under those circumstances, would presume an intention to kill. That was not the point discussed in argument, nor is its decision necessary for this case. An intention to kill is an essential element in murder; but its existence may be inferred from the relevant circumstances." In Rex v Jolly & Others 1923 AD 176 the same learned CHIEF JUSTICE said: "No presumption of an intent to murder, such as would have arisen had death ensued, could be relied upon in this case": but there the act consisted in the deliberate derailment of a train. KOTZ, J.A. (at p. 189) cites inter alia both the passage in Foster and the summing up of TINDAL, C.J., disapproved in the Woolmington case, for his statement that: "Homicide, for instance, is presumed to be malicious and to amount to murder, until the contrary be shown either by means of evidence produced by the prisoner or appearing from the circumstances of the case." On the next page he says:

"It is, for instance, a recognised rule of Roman-Dutch law that in a case of homicide malice is presumed, especially where a dangerous weapon has been used, and it lies upon the accused to establish by evidence or from the circumstances that the presumption, which would otherwise prevail, does not hold against him in the particular instance, by showing that it is a case of excusable or justifiable homicide. This is also plain from the distinction drawn by the Jurists between homicidium qualificatum seu voluntarium and culposum, etc, and from the division of homicide into intentional (opzettelijk) culpable (onvoorzichtig) and accidental (toevallig); for, in order to determine the character of the particular homicide, it will depend upon the evidence and circumstances in each case. (Cf. Cens. For (pt. 1, lib. 5, cap. 11); Huber, Heed. Regts. (bk. 6, ch. 13, n. 3); Moorman

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(bk. 2, ch. 1, n. 5); van der Linden (bk. 2, part 5, sec. 9 in fin.).) It is clear that, as the indictment in the case before us sets out that the appellants derailed the train with an intent to kill and murder, such an intent on their part must be proved, for an accused person can only be convicted secundum allegata et probata. There must be some evidence from which the intent as alleged can lawfully be inferred. The evidence may be of a direct character, but it is more often than not indirect and presumptive."

This passage requires some comment. The only authority which he cites with whom I have not already dealt is Huber, Heed. Regt. (6.13.8). I did not refer to him because I thought that he took the matter no further. I now give here the relevant portions of paras. 7 and 8, as translated by GANE:

"When homicide has been committed, but it is uncertain whether it happened with intent to kill, the Imperial laws advise that if the killing was done with an instrument which is not commonly used for wounding or killing, though capable enough of causing death, such as a club or stick, then the punishment is lessened, if the thing took place in sudden passion, without deliberation . . . But if the homicide was produced by an instrument with which we are accustomed to kill, such as a gun, knife or dagger, then it is held that there was an intention to kill, though not long premeditated, unless very special circumstances should justify a diminution of punishment."

An inference legitimately drawn from the weapon used is a very different thing from a praesumptio juris drawn from the killing itself. (See also the same author's Praelectiones, ad D. 48.8.5). How the incidence of the onus can be derived from what writers have said of a distinction drawn between different kinds of homicide according to the intention of the doer I confess that I fail to appreciate. And the learned Judge, as will have been seen from the whole of the later part of the passage quoted above, especially says I that the Crown must prove the intent, either directly or by inference. (I might here digress for a moment to point out that the cases cited in the judgments in that case show how illogical was the position to which the law in England was driven by the supposed presumption laid down by Foster. For it applied apparently to a case of murder, but not to one of assault with intent to murder.) In Rex v Butelezi (1925 AD at p 169) KOTZ, J.A.,

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again says: "As the killing of a human being is in law presumed to be malicious and to amount to murder, it rests on an accused person to show that, in killing another, he had no intention of doing so." No authority was there given for the proposition. In Rex v Ngcobo (1928 AD at p 376) DE VILLIEIRS, J. A., in delivering the judgment of the Court, said: "Now it is trite law that the crime of murder requires a

special intention --- what is known in English law as malice aforethought or malice prepense. But that intention may be inferred from the nature of the weapon used." With the law as so stated I have just dealt: it is, I suggest, obviously unexceptionable, as is a similar remark made later by WESSELS, C.J., in Rex v Xulu (1933 AD at p 197). But the year before this last case, there had been heard Rex v Sandos (1932 AD 315). WESSELS, A.C.J., after quoting a passage from Russell on Crimes, which is noted in Woolmington's case as having been derived from Foster, and which ends: "For the law presumes the fact to have been founded in malice until the contrary appears", had added: "The same applies to culpable homicide." But how can it? If it did, then the accused should have been charged with, and found guilty of, the crime of murder, for he gave no explanation as to how he came to run down in his car, and kill, the deceased; he might have done it intentionally. No authority was cited for extending the proposition of Foster to cases of culpable homicide (manslaughter); in any event, the statement was obiter dictum, as may be seen from the judgment of CURLEWIS, J.A. --- so, I should add, were the remarks of KTZE, J.A, to which I have referred. In Rex v Ngobese (1936 AD at p 305), STRATFORD, J.A, said: "One of its elements (that is of the crime of murder) is that the accused must have the intention to kill. This element like all others, must be proved beyond reasonable doubt. It would be invidious to analyse the above quoted views too closely, but my strong impression from reading them (and I think a justifiable inference) is that the Court, if it did not in fact have, should have had a reasonable doubt on the question of the intention to kill." And at the end of his judgment he concluded: "The above consideration added to the fact that this was a sudden affray between friends at a drinking bout leads me to the conclusion that we cannot infer the intention to kill and that the court below should not have drawn that inference." That it was in a judgment in which the learned judge dissented

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on the facts is immaterial; here was an acceptance of the principles laid down in the Woolmington case, though in fact that case was, not quoted. Had the law been as laid down by Foster, then if the Court had, or should have had, merely a doubt, it rightly convicted; it was not even suggested that the accused had discharged any onus of satisfying it that, either as the result of anger, or drink, or both, he could not appreciate what he was doing, or was "incapable of realising the probable consequences of his act or of forming an intention to kill." If there be an onus on the accused, there can be no question of giving him what is called "the benefit of the doubt". The case of Rex v H. (1944 AD 121) remains to be considered: it involves the further consideration also of the earlier case of Rex v Wallendorf (supra). Both these cases were cases dealing with statutory offences, and in both the statute made the doing of something an offence in absolute terms, without any such words as "knowingly" or "wilfully". The question which had to be decided was whether "mens rea" (guilty intention) was necessary. It was held that it was, but that the onus was on the accused to prove its absence. These cases are consequently, entirely distinguishable: if the law merely made the killing of a man an offence punishable with death, it might be that the onus would be on the accused to show absence of intention. But it does not: the offence is "the unlawful killing of a human being, with intent to kill", as I have already shown.

I come to the conclusion, therefore, that we should now accept Woolmington's case --- which I notice has been accepted in Gardiner or and Lansdown, pp. 347 and 1275 --- as accurately laying down our law also. It has consistently been acted upon in several of the Provincial Divisions --- it may be in all. It appears to lay down the law not one in accordance with the fundamental principles of our modern criminal law, but also in a manner which is consonant, in all but possibly one respect, with the law as laid down by many, or even indeed by the majority of the most authoritative of the older writers to whom I have referred. The one respect is in regard to self-defence: but remembering that, as I have said, the Crown must prove an unlawful intentional killing and that the authorities are by no means all in agreement, it seems to me right and in accordance with general principles that in that case too the onus should be on the Crown.

But I repeat that the case of Woolmington must not be misunderstood.

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No one doubts that the person mentioned by Voet (22.3.14), who was at enmity with the deceased, and at the time of his death was seen coming from the room where he had been killed, with a bloody sword, in great agitation and with a wild look on his face, if he gives no explanation, may be found guilty of murder. But the Judge could not direct the jury that as a matter of law they were bound to return that verdict. Best (5th ed., p. 430) shows what a number of possible alternatives there might be to murder. But, of course, if the accused gives no explanation, when he might fairly be expected to do so, a jury may, and probably would, draw the inference of guilt --- cf. Rex v Dube. 1915 AD 557; Rex v Nxumalo 1939 AD 580; and Rex v du Plessis 1944 AD 314. If, on the other hand, he did give evidence, and raised no more than a reasonable doubt as to the correctness of the inference, or if there were other facts in the Crown case which raised such a reasonable doubt, then the Crown has not proved its case, either at all, or at any rate not to the extent required for a verdict of murder to be returned.

I may sum up the law as follows: In all criminal cases it is for the Crown to establish the guilt of the accused, not for the accused to establish his innocence. The onus is on the Crown to prove all averments necessary to establish his guilt. Consequently, on a charge of murder, it must prove not only the killing, but that that killing was unlawful and intentional. It can discharge the onus either by direct evidence or by the proof of facts from which a necessary inference may be drawn. One such fact, from which (together with all the other facts) such an inference may be drawn, is the lack of an acceptable explanation by the accused. Notwithstanding the absence of such an explanation, if on a review of all the evidence, whether led by the Crown or by the accused, the jury are in doubt whether the killing was

unlawful or intentional, the accused is entitled to the benefit of the doubt. That doubt must be one which reasonable men would entertain on all the evidence; the jury should not speculate on the possible existence of matters upon which there is no evidence, or the existence of which cannot reasonably be inferred from the evidence.

The only exceptions to the above rules, as to the onus being on the Crown in all criminal cases to prove the unlawfulness of the act and the guilty intent of the accused, and of his being entitled to the benefit of any reasonable doubt thereon, are, in regard to

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intention, the defence of insanity, and, in regard to both unlawfulness and intention, offences where the onus of proof is placed on the accused by the wording of a statute.

Applying these principles to the present matter, it seems to me that there is a doubt whether the accused is guilty of murder: he should consequently have been found guilty only of the lesser crime of culpable homicide.

For I am left in grave doubt as to what really occurred. The participants in the affair (including the accused), were all considerably under the influence of liquor. The knife, if one may judge from the only evidence on the subject, namely, the exclamation of the accused, to which the Crown witness deposed, was originally in the possession of the deceased; consequently, much of the inference as to intention, which can ordinarily be drawn from the use of a lethal weapon, disappears. There had been a quarrel in the room, started by the deceased, who was an entire stranger to the accused; there was a scuffle, and apparently some kind of fighting outside, in which the deceased drew a knife. So far as is known, the accused was initially unarmed. Moreover, Kumalo's part in these proceedings is left entirely in the dark. The Court a quo, in finding the accused guilty of murder, relied on two inferences. It inferred that the accused had a knife of his own, which he used to stab the deceased. This may perhaps be so, but no evidence to that effect was led at the trial. No attempt was made by the Crown to show what became of the knife which apparently had been in the possession of the deceased, or that a knife was found in the possession of the accused. It is consequently at least equally likely --- indeed, on the evidence, as I think, more likely --- that, in the scuffle or struggle which undoubtedly occurred, the accused succeeded in wrenching the knife away from the deceased and then stabbed him with it. Nor is the other inference, namely, that the deceased was running away at the time, a necessary one, for if the two men, both under the influence of liquor, were grappling face to face, the stab might quite easily be delivered in the

back. It is true that the accused, as I have already mentioned earlier, gave no explanation of what occurred. This must, of course, be taken into account against him --- indeed, I have done so. But it must be remembered that once he decided to say, quite untruthfully, that he was not there at all, he could thereafter give no explanation. And his deciding to do so is not

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altogether surprising in an ignorant native, who felt that he would be involved in serious trouble, no matter what he said, if once he admitted that he was there. In these circumstances, the AttorneyGeneral exercised a wise discretion in offering no opposition to the alteration of the conviction to one of culpable homicide. There is a doubt whether the accused was guilty of murder, and the accused must receive the benefit of that doubt.

As to the sentence, this is a serious crime, as the result of which a man lost his life. The accused has three previous convictions for crimes involving violence, though the one which did so directly seems to have been comparatively trifling; it appears to me that a sentence of six years' imprisonment with hard labour is the least which we can pass.

The appeal is allowed: the conviction is altered to one of "guilty of culpable homicide" and the sentence to one of "imprisonment with hard labour for a period of six years"; that sentence is to date from the day on which the accused was convicted, namely; 26th May, 1944.