R v SmithAlso called "Reg v Smith" and "Queen v Smith" and "Queen v P W Smith" is a case decided by the Special Court created by the Indemnity and Special Tribunals Act, 1900 (No 6), sitting in the buildingsR v Smith (1900) 17 SC 561; (1900) 10 CTR 773 of the Supreme Court of the Colony of the Cape of Good Hope.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. It relates to whether superior orders are an excuseH L Stephen, "Superior Orders as Excuse for Homicide", (1901) 17 Law Quarterly Review 87 or justification.R v Smith (1900) 10 CTR 773 It has been called a leading case.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.As to Lesotho, see R v Molapo (1986) CRI/T/2/86 at p 8, High Court of Lesotho 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" 15 Dickinson Journal of International Law 1 at 7; Lippman, "The Development and Scope of the Superior Orders Defense" 20 Penn State International Law Review 153 at 163.
According to the Cape Times Law Reports, the ratio decidendiThis 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. 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.
Facts During the Second Boer War,Anders and Ellson. The Criminal Law of South Africa. W E Hortor & Co. Johannesburg. 1915. Page 9. 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.
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.H L Stephen, "Superior Orders as Excuse for Homicide" (1901) 17 Law Quarterly Review 87 at 88
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.
Novelty This case was the first to be heard before the Special Court.R v Smith (1900) 17 SC 561
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?
In 1901, Stephen said:
Subsequent judicial history This case was followedS v Banda and Others 1990 (3) SA 466 at 482 per Friedman J. Snyman, Criminal Law, 3rd Ed, 1995, p 124. in R v Celliers.Rex v Celliers ORC 1 (Google Books) It was not followed(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 in R v Van Vuuren.Rex v Van Vuuren 1944 OPD 35 at 38 It was held not to apply to the order in R v Werner.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
Reports This case was reported in the Supreme Court Reports and the Cape Times Law Reports. In 1901, Stephen said that the report in the Cape Times was the best report yet to hand and he hoped a proper report of the case might be produced in some form easily accessible to the English practitioner.
Bail
The Supreme Court of the Cape of Good Hope refused Smith's application for bail.Regina v Smith (1900) 10 CTR 486; Queen v Smith (1900) 17 Cape Law Journal 277For 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.
References The Digest of South African Case Law. Consolidated Edition. Juta & Co. Cape Town and Johannesberg. Volume 1. Column 372. 1927. Volume 2. Column 154. Manfred Nathan. The Common Law of South Africa. African Book Company. 1907. Volume 4. Page 2422. Anders and Ellson. The Criminal Law of South Africa. W E Hortor & Co. Johannesburg. 1915. Pages 7, 131 & 214. Callie R Snyman. Criminal Law. Butterworths. Durban. 3rd Edition. 1995. Pages 124 and 125. 4th Edition. 2002. Pages 133 and 134. 5th Edition. LexisNexis. 2008. Page 138. Clemence Masango. Criminal Law Manual. Juta Zimbabwe (Pvt). 1995. Page 44. O'Connor and Fairall. Criminal Defences. 2nd Edition. Butterworths. 1988. Pages 166 & 167. "Legal News" (1901) 45 The Solicitors' Journal 602 (22 June 1901) "A Soldier's Responsibility when acting under orders" (1901) 18 South African Law Journal 110. See also p 103. "The Plea of "Superior Orders" in War Crime Cases" (1945) 95 The Law Journal 242 (28 July 1945) Bradford, "Barbarians at the Gates" 73 Mississippi Law Journal 639 at 849 Green, "Superior Orders and Command Responsibility" (2003) 175 Military Law Review 309 at 321
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