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[2010] ZAWCHC 527
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Stolo v S (A438/10) [2010] ZAWCHC 527 (5 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO:
A438/10
In
the matter between:
LINDA
STOLO
….............................................................................................................
Appellant
And
THE
STATE
….............................................................................................................
Respondent
JUDGMENT
DELIVERED ON 5 NOVEMBER 2010
CLOETE,
AJ
[1]
The appellant was tried and subsequently convicted in the regional
court, on a charge of robbery with aggravating circumstances,
as
defined in
s1
of the
Criminal Procedure Act, No 51 of 1977
.
[2]
The appellant was sentenced to 18 years imprisonment. The magistrate
found that the one substantial and compelling circumstance
which
justified the imposition of a lesser sentence than the applicable
prescribed minimum sentence was that because of the appellant's
commission of the offence, the balance of two years imprisonment in
respect of his previous offence (the appellant had been on
parole at
the time of the commission of the offence for which he was convicted
in this matter) had been put into effect.
[3]
The appellant appeals against conviction only.
[4]
In her judgment, the presiding regional magistrate summarised the
evidence given during the trial in some detail. I do not
deem it
necessary to repeat this level of detail; suffice it to highlight
certain aspects thereof.
[5]
Early on the morning of 30 April 2009 the complainant, Joao Elvio De
Oliveira Da Silva Esavido was robbed at his business
premises which
he conducted from his home. He stated that about five or six persons
entered the premises, at least one of whom
was armed with a firearm.
After initially accosting the complainant, they then also confronted
his receptionist and the gardener
employed at the premises. The men
then proceeded to rob the complainant at gunpoint of several items,
namely an amount of R25
000, a Tata bakkie, a laptop, two cellphones
and a toy rifle. During the course of the robbery, the complainant
was tied with
an electric cord and assaulted. The complainant
managed to escape and alerted a neighbour who called the police.
[6]
The appellant was arrested and charged as a result of a right palm
print found at the scene which, according to the expert
evidence
adduced at the trial by the state, was identical to that of the
appellant. During cross-examination of the complainant,
his attorney
put it to the complainant that the appellant's position was that he
was never at the complainant's home, let alone
in the suburb in
which the complainant's home is situated (Milnerton), and that he
had no idea how the palm print came to be
found there.
[7]
On the following court day, the appellant requested that the
complainant be recalled because he had thought about the case
and
accordingly instructed his attorney that it could be possible that
he migh: have been at the complainant's premises. It was
put to the
complainant that the appellant had in fact been to his premises with
a friend of his (i.e. the appellant's), Sakhumzi.
It was further put
to the complainant that the complainant's receptionist was
Sakhumzi's girlfriend and that she had stolen goods
sold by the
complainant in the course of his business and handed them over to
Sakhumzi. This was vehemently denied by the complainant.
He
testified that this would not have happened, because his
receptionist had been working for him for a matter of two to three
months, that he trusted her, that she was married and that she did
not appear to be the type of person who would have 'had an
affair'.
[8]
The appellant's allegations were also denied by the receptionist,
Badrunisa Adams, whose evidence was much to the same effect
as that
of the complainant's. She also denied that she would have had access
to any of the goods to give to any third party as
the complainant
had a strict security system in which he locked everything if he was
not on the premises and kept the keys with
him. She further
testified that at the time of the incident, she was being trained by
the complainant regarding the ordering
of goods and that she could
never have ordered goods that were in excess of those required for
invoicing.
[9]
The appellant testified in his own defence. There were a number of
inconsistencies in his evidence. The most material were
as follows:
Despite having had ample opportunity (through his legal
representative) to view the photographs of the scene, he
remained
adamant, until it became clear that he could not avoid the
identification of his palm print, that he had never been
at the
complainant's home, let alone in the area in which the complainant's
home is situated. It was only when confronted with
the unassailable
evidence of his palm print that he 'apparently came to realise' that
he had been at the complainant's home.
On the basis of this new
version, he was again inconsistent in respect of the events which
allegedly took place at the complainant's
home and which gave rise
to his fingerprints/palm print being found at the complainant's
property. Initially, he alleged that
he had stood at the outside
door when his friend, Sakhumzi (whom he was unable to call as he had
allegedly passed away during
April 2010) went into the home of the
complainant.
[10]
He yet again altered his story when it became clear to him that the
palm print was lifted from a door inside the house. He
then stated
that he had got tired of waiting for Sakhumzi (who had only been
absent for five to ten minutes on his version) and
that he had in
fact entered the property and that this was the reason why his palm
print must have been found at the property.
He repeatedly changed
his version of what Sakhumzi had carried out of the property. He
testified that Sakhumzi exited the property
with a plastic bag. He
initially testified that toe bag was a black bag but was unable to
explain how he thus knew what was in
the bag. He then changed his
evidence to state that the bag was a white plastic bag, and that was
why he could see its contents..
[11]
In her judgment, the presiding regional magistrate considered and
evaluated all the evidence, accepted that of the state
witnesses,
rejected that of the appellant, and convicted him as charged.
[12]
On appeal before this court, the appellant's counsel submitted that
"Without
putting an oversight on the nature of the version(s) put forward by
the appellant at different stages of the thai...
the explanation
that was eventually given by him justifying the presence of his palm
print is reasonably possibly true given
the following reasons
..."
The first reason advanced is that the expert who came onto the scene
after the commission of the offence and investigated
the prints
could not identify the direction of the palm print, nor could she
state for how long the print could have been there.
The second
reason advanced was that there was no other surface where another
"similar
palm or finger phnt was uplifted"
either
in the office or in the complainant's bedroom, given the version of
the complainant himself when he said that the assailants
were not
wearing gloves and that they moved about the property.
[13]
The appellant further submitted that the magistrate failed to test
the credibility and reliability of the explanation given
by him
regarding Sakhumzi and his alleged death in April 2010. Counsel
submitted that this evidence, if thoroughly investigated
by the
state, would have assisted the court. It is noted however that the
appellant himself did not call any witnesses in support
of this
averment.
[14]
From this summary of the evidence which was given during the trial,
it is clear that it was not only the evidence of the
palm print
which implicated the appellant in the commission of the offence, but
the magistrate's finding that the appellant tried
his utmost, at the
expense of the truth, to tailor his evidence as the evidence of the
state mounted overwhelmingly against him.
[15]
The courts take judicial notice of the fact that no two persons can
have identical fingerprints. Palm prints are on the same
footing as
fingerprints. Seven points of similarity between the print found on
the crime scene and the print of the accused are
regarded as proof
beyond reasonable doubt that they were made by the same person: See
R
v Debati
1951
(1) SA 421
(T) at 423C
[16]
In any event, on appeal it should be borne in mind that it is a well
established principle governing the hearing of appeals
against
findings of fact that, in the absence of a demonstrable and material
misdirection by the trial court, its findings of
fact are presumed
to be correct and will only be disregarded if the recorded evidence
shows them to be clearly wrong;
See
S
v
Hadebe & Others
1997
(2) SACR 641
(SCA) at 645e-f
[17]
In this matter, one looks in vain for any such misdirection on the
part of the presiding regional magistrate. Whatever the
merits of
the conclusion of the expert evidence, the unassailable finding of
the existence of the appellant's palm print found
on the scene of
the crime raises but one reasonable inference: that the appellant
was on the premises of the complainant. This
called for some
plausible explanation, yet all that the appellant produced was a
litany of contradictions, tailored to meet the
implications of the
state's case as he was progressively confronted thereby.
[18]
In my view therefore the conviction of the appellant was based on a
proper consideration of the whole body of evidence, and
I am
satisfied that she evaluated the evidence correctly and arrived at
the correct conclusion.
[19]
The appeal of the appellant against his conviction is dimissed.
J
I CLOETE, AJ
D
M DAVIS, J