remains thus neither a conviction nor an acquittal on the merits, and the accused can be re-tried in terms of sec 370(c) [now s 324] of the Criminal Code. That was the position in Moodie's case, in which the irregularity of the deputy sheriff remaining closeted with the jury throughout their two hour deliberation was regarded as so gross as to vitiate the whole trial. On the other hand there are irregularities of a lesser nature (and happily even these are not frequent) in which the Court of Appeal is able to separate the bad from the good, and to consider the merits of the case, including any findings as to the credibility of witnesses. If in the result it comes to the conclusion that a reasonable trial Court, properly directing itself, would inevitably have convicted, it dismisses the appeal, and the conviction stands as one on the merits. But if, on the merits, it cannot come to that conclusion, it sets aside the conviction, and this amounts to an acquittal on the merits. In such a case sec 370(c) of the Code does not permit of a re-trial.’ In the Le Grange matter the then continued to state at p156 para [21]: the irregularity encountered here falls into the first category alluded to by ‘Plainly, Holmes JA in Naidoo. The possibility of double jeopardy thus does not arise and the institution of a new trial will not infringe s 35(3)(m) of the Constitution. There remains a pressing societal demand for and compelling public interest in, what after all is a case involving a most serious charge. The right of an accused to a fair trial, as the Constitutional Court has observed in S v Jaipal, "requires fairness to the accused, as well as fairness to the public as represented by the State. It has to instill confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime." There will accordingly be a miscarriage of justice should a proper trial not ensue. It follows that the matter must be remitted to the High Court for retrial in accordance with s 324 of the Criminal Code.’ (See also our s 324 of Act No 51 of 1977, trial seems to be to the same effect.)
remains thus neither a conviction nor an acquittal on the merits, and the accused can be re-tried in terms of sec 370(c) [now s 324] of the Criminal Code. That was the position in Moodie's case, in which the irregularity of the deputy sheriff remaining closeted with the jury throughout their two hour deliberation was regarded as so gross as to vitiate the whole trial. On the other hand there are irregularities of a lesser nature (and happily even these are not frequent) in which the Court of Appeal is able to separate the bad from the good, and to consider the merits of the case, including any findings as to the credibility of witnesses. If in the result it comes to the conclusion that a reasonable trial Court, properly directing itself, would inevitably have convicted, it dismisses the appeal, and the conviction stands as one on the merits. But if, on the merits, it cannot come to that conclusion, it sets aside the conviction, and this amounts to an acquittal on the merits. In such a case sec 370(c) of the Code does not permit of a re-trial.’ In the Le Grange matter the then continued to state at p156 para [21]: ‘Plainly, the irregularity encountered here falls into the first category alluded to by Holmes JA in Naidoo. The possibility of double jeopardy thus does not arise and the institution of a new trial will not infringe s 35(3)(m) of the Constitution. There remains a pressing societal demand for and compelling public interest in, what after all is a case involving a most serious charge. The right of an accused to a fair trial, as the Constitutional Court has observed in S v Jaipal, "requires fairness to the accused, as well as fairness to the public as represented by the State. It has to instill confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime." There will accordingly be a miscarriage of justice should a proper trial not ensue. It follows that the matter must be remitted to the High Court for retrial in accordance with s 324 of the Criminal Code.’ (See also our s 324 of Act No 51 of 1977, seems to be to the same effect.) trial