R v Smith (1900) explained

Regina v Smith
Date Decided:30 October 1900
Citations:(1900) 17 SC 561; (1900) 10 CTR 773
Judges:Solomon J,[1] Lange J,[2] Maasdorp QC
Number Of Judges:3

R v Smith[3] is a case decided by the Special Court created by the Indemnity and Special Tribunals Act, 1900 (No 6), sitting in the buildings[4] of the Supreme Court of the Colony of the Cape of Good Hope.[5] It relates to whether superior orders are an excuse[6] or justification.[7] It has been called a leading case.[8] [9] [10]

According to the Cape Times Law Reports, the ratio decidendi[11] of this case is as follows: The orders of a superior officer so long as they are neither obviously and decidedly illegal nor opposed to the well-established customs of the Army, must be completely and unhesitatingly obeyed by a soldier subordinate to such officer. But if such commands are obviously illegal, the inferior will be justified in questioning or even refusing to execute them. An officer or soldier acting under orders from his superior which are not necessarily nor manifestly illegal, will be justified in obeying such orders.[7]

Facts

During the Second Boer War,[12] on 22 November 1899, Peter William Smith, a member of the Cape Police Force and part of a patrol of British troops under the direct command of Captain Chas F Cox, shot and killed John Dolley, a native servant, at Jackhalsfontein, Colesberg, then in Cape Colony, for failing to produce a missing bridle, in obedience to the order "If he does not look sharp, put a hole through him" given by Cox. Smith was charged with the murder of Dolley.[7]

Judgment

Stephen said that in delivering judgment the Court, which was performing the duties of a jury as well as those of judges, found as a fact that Captain Cox believed that Dolley knew where the bridle was when he was told to fetch it, and that he willfully refused to do so; otherwise, there was no disputed question of fact of any importance for them to decide.[13]

The Court in announcing the law on which they acted left on one side the questions whether Captain Cox's order was in fact lawful and whether if it were not his acts and those of Smith were covered by the Act of Indemnity: and held that even if Captain Cox's order was unlawful, Smith was bound to obey it if it was not obviously and decidedly in opposition to the law of the land, or to the well-known established customs of the army. The rule was that if a soldier honestly believed he was doing his duty in obeying the commands of his superior and if the orders were not so manifestly illegal that he must or ought to have known that they were unlawful, the private soldier was protected by the order of his superior officer. Smith was accordingly acquitted.[13]

Novelty

This case was the first to be heard before the Special Court.[14]

It was reserved for the Court to give the first authoritative judgment on what had previously been a moot point, namely, what according to civil, as opposed to military, law is the position of a soldier who commits homicide at the order of his superior officer?[6]

In 1901, Stephen said:

Subsequent judicial history

This case was followed[15] in R v Celliers.[16] It was not followed[17] in R v Van Vuuren.[18] It was held not to apply to the order in R v Werner.[19]

Reports

This case was reported in the Supreme Court Reports and the Cape Times Law Reports.[4] In 1901, Stephen said that the report in the Cape Times was the best report yet to hand[6] and he hoped a proper report of the case might be produced in some form easily accessible to the English practitioner.[13]

Bail

Regina v Smith
Date Decided:23 August 1900
Citations:(1900) 10 CTR 486
Judges:Buchanan ACJ, Maasdorp J, Solomon J[20]
Number Of Judges:3

The Supreme Court of the Cape of Good Hope refused Smith's application for bail.[21] [22]

References

Attribution

Notes and References

  1. As to the identity of Solomon J, see "The Special Court, Cape Colony" (1900) 17 Cape Law Journal 337
  2. As to Lange J, see "Sir John Lange" (1920) 37 South African Law Journal 395 at 396
  3. Also called "Reg v Smith" and "Queen v Smith" and "Queen v P W Smith"
  4. R v Smith (1900) 17 SC 561; (1900) 10 CTR 773
  5. Chalmers and Hood Phillips' Constitutional Laws of Great Britain, the British Empire and Commonwealth. 6th Edition. 1946. p 300. Owen Hood Phillips. The Constitutional Law of Great Britain and the Commonwealth. Sweet & Maxwell. 1952. p 406.
  6. H L Stephen, "Superior Orders as Excuse for Homicide", (1901) 17 Law Quarterly Review 87
  7. R v Smith (1900) 10 CTR 773
  8. As to South Africa, see: S v Banda and Others 1990 (3) SA 466 at 480 (B) per Friedman J. Ellison Kahn, Law, Life, and Laughter, Juta & Co Ltd, 1991, p 107. Digby Sqhelo Koyana, Influence of the Transkei Penal Code on South African Criminal Law, Lovedale Press, 1992, p 76. Burchell and Milton, Principles of Criminal Law, Juta & Co Ltd, 1991, p 292.
  9. As to Lesotho, see R v Molapo (1986) CRI/T/2/86 at p 8, High Court of Lesotho https://books.google.com/books?id=hkBEAQAAIAAJ
  10. As to England and Canada, see: Geoffrey Creighton "Superior Orders and Command Responsibility in Canadian Criminal Law" (1980) 38 University of Toronto Faculty of Law Review 1 at 15 (see also p 5). Lippman, "Conundrums of Armed Conflict" [1996] 15 Dickinson Journal of International Law 1 at 7; Lippman, "The Development and Scope of the Superior Orders Defense" [2001] 20 Penn State International Law Review 153 at 163.
  11. This is what headnotes do: Machaha, A Simple Guide to the Introduction of Law, Law Development Centre, 2004, p 31; Geldart, Elements of English Law, 1911, Reprinted 1918, p 18; Legal Research Materials and Methods, 4th Ed, LBC Information Services, 1996, p 110.
  12. Anders and Ellson. The Criminal Law of South Africa. W E Hortor & Co. Johannesburg. 1915. Page 9. https://books.google.com/books?id=0FktAQAAMAAJ
  13. H L Stephen, "Superior Orders as Excuse for Homicide" (1901) 17 Law Quarterly Review 87 at 88
  14. R v Smith (1900) 17 SC 561
  15. S v Banda and Others 1990 (3) SA 466 at 482 per Friedman J. Snyman, Criminal Law, 3rd Ed, 1995, p 124.
  16. Rex v Celliers [1903] ORC 1 (Google Books)
  17. (1944) 61 South African Law Journal 97; S v Banda and Others 1990 (3) SA 466 at 482; R v Molapo (1986) CRI/T/2/86 at p 8, High Court of Lesotho
  18. Rex v Van Vuuren 1944 OPD 35 at 38
  19. Rex v Werner and Another 1947 (2) SA 828 (A); (1947) 14 International Law Reports 203; (1947) 60 International Law Studies 385 at 389. See further 5 Bond Law Review  6
  20. As to the identity of Buchanan ACJ, Maasdorp J and Solomon J, see 10 CTR, page following title page
  21. Regina v Smith (1900) 10 CTR 486; Queen v Smith (1900) 17 Cape Law Journal 277
  22. For further commentary, see In re Dinuzulu (1908) 29 Natal Law Reports 51; Swift, The South African Law of Criminal Procedure, 1957 p 137; Nathan, The Common Law of South Africa, 1907, vol 4, p 2671.

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