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[2010] ZASCA 120
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Nduna v S (076/2010) [2010] ZASCA 120; 2011 (1) SACR 115 (SCA) ; [2011] 2 All SA 177 (SCA) (30 September 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
076/2010
In the matter between:
MICHAEL NDUNA
...........................................................
Appellant
and
THE STATE
.......................................................................
Respondent
Neutral citation:
Nduna
v S
(076/10)
[2010] ZASCA 120
(30 September 2010)
Coram:
LEWIS and BOSIELO
JJA and EBRAHIM AJA
Heard: 13 September 2010
Delivered: 30 September 2010
Summary:
Evidence –
similar facts – modus operandi consistent on different charges
of robbery – when inference of guilt
can be drawn –
presence of fingerprints on vehicle involved in robberies –
probative value of fingerprint.
_____________________________________________________________________
ORDER
On appeal from:
Western
Cape High Court (Cape Town) (Goliath and Le Grange JJ sitting as
court of appeal):
The appeal is dismissed.
___________________________________________________________
JUDGMENT
EBRAHIM AJA (Lewis and Bosielo
JJA concurring)
[1] This appeal is concerned with
the probative value of fingerprint evidence which formed the basis
for the conviction of the appellant
on two charges of armed robbery.
He was arraigned for trial in the regional court in Cape Town and, on
conviction, sentenced on
each charge to a term of 15 years’
imprisonment. The learned magistrate ordered that ten years of the
sentence on the first
charge was to run concurrently with the
sentence imposed on the second charge, resulting in an effective
sentence of 20 years’
imprisonment.
[2] An appeal to the Western Cape
High Court against these convictions was dismissed. The high court
considered that the sentences
imposed warranted interference on the
ground that the trial court had not heeded their cumulative effect.
The high court considered
that a sentence of 15 years’
imprisonment was appropriate. Accordingly the effective sentence of
20 years’ imprisonment
was set aside, and in its place an order
was granted that the sentences of 15 years’ imprisonment
imposed on each of the
two charges were to run concurrently.
[3] The high court granted the
appellant leave to appeal to this court against his convictions only.
The appeal before us was argued
on the basis that the only evidence
linking the appellant to both charges against him was that of his
fingerprints found on the
two vehicles involved in the two armed
robberies and that this was insufficient to prove guilt beyond
reasonable doubt.
[4] Before dealing with this
issue it is necessary to give an overview of the evidence presented
by the complainants on the robbery
charges. The trial commenced on 3
December 2007. David Alexander, a businessman, testified in respect
of the first charge. He said
that on the afternoon of Friday 11 June
1999 he left his offices situated in the Bo-Kaap area, Cape Town in
the company of his
driver, Nigel Julius, in order to go to Nedbank in
Strand Street to draw cash to pay his employees’ wages. Having
drawn approximately
R4 000 they left the bank at 2.55 pm and returned
to the office just after 3.00 pm. He was a passenger in the vehicle,
which he
described as ‘our little Nissan van’ and in his
hand he carried the money he had drawn from the bank, which was not
in any kind of wrapping.
[5] On arrival at the office he
alighted from the vehicle and as he and the driver walked towards the
front door of the business,
a white venture panel van pulled up, the
right side rear door opened and a man got out and ran towards him.
When this man was directly
in front of Alexander he produced a
firearm (a silver pistol) which he held against Alexander’s
head. Alexander dropped the
money to the ground. The man picked up
the money and ran back to the white van, got in and the vehicle sped
off. An attempt to
apprehend the robber by an employee who gave chase
was unsuccessful. Alexander said that he was unable to identify his
assailant
save to say that he was a ‘dark complexioned person’.
He provided the police with the registration number of the vehicle,
CA 766235, which he managed to take down as the Venture made its
getaway. He conceded that the robbery occurred in broad daylight.
He
explained that he was unable to make an identification because his
attention was riveted on the firearm held to his head.
[6] His driver, Julius,
corroborated this evidence in material respects. He also testified
that the robbers climbed into the passenger
side of the Venture van
through a door which lifts at the rear of the vehicle. He was not
able to tell the court if there were
others in the Venture van but he
did confirm that the man who had pointed the firearm at Alexander was
not the driver of the vehicle.
[7] Joshua Abrahams, the
complainant on the second charge of armed robbery, which occurred on
the afternoon of 26 January 2007 at
approximately 12.45 pm, testified
that he had drawn cash in the sum of R54 300 from the Standard Bank,
in N1 City, Cape Town. He
was driving a white Isuzu bakkie,
registration number CA 455247, belonging to the company that employed
him. He placed the money
in the cubby hole and drove back to work. As
he turned into the parking area of his place of employment in
Kensington, Cape Town,
he saw a Mercedes Benz vehicle also turn into
the parking area, make a u-turn and then reverse out of his line of
vision. As he
eased his vehicle into its parking place, he looked in
his rear view mirror and saw three men come running from behind his
vehicle,
with firearms in their hands. He locked his door, and the
passenger side door of the bakkie. One of the men went to the front
of
his vehicle and the other two to the sides, one on the right and
one on the left. The men broke the windows with their firearms,
pointed these at him and shouted to him to hand over the money.
Having broken the glass of the side window of the bakkie on the
passenger side one of the men opened the passenger door, and took the
money from the cubby hole. The man who took the money hit
him on the
shoulder with his firearm. The men then left.
[8] Abrahams said they were not
wearing any gloves so that their hands were uncovered. He conceded
under cross-examination that
the Isuzu bakkie was used on a daily
basis by himself and other employees throughout the Western Cape. He
explained his inability
to describe the robbers as a consequence of
his state of shock. All he could see was ‘guns in front of me,
guns on the side’.
He was adamant, however, that the man who
was standing with his firearm on his side (that is the right side) of
the bakkie had
approached him from the rear of the bakkie. That was
the only way to get to the vehicle as it was parked in a space
limited by
a wall in front of the vehicle and another wall on the
right hand side of the vehicle.
[9] The expert evidence on
fingerprints was as follows. At approximately 3 pm on 11 June 1999,
Graham Crowster, an Inspector with
the South African Police Services,
with 20 years experience in the force, received a radio report whilst
on duty in Adderley Street,
Cape Town of the armed robbery which had
taken place at Alexander’s business premises requesting that he
be on the alert
for suspects. Approximately five minutes later, in
front of the provincial offices in Wale Street, he came across a
white Venture
vehicle, with registration number CA 766235, its
windows and doors locked. He established that the vehicle had been
stolen in Mitchells
Plain. He waited for the investigating officer to
arrive and then left to make a statement at the Cape Town Police
Station.
[10] At 5.30 pm Greg Hail, a
fingerprint expert from the local criminal record centre in Cape
Town, examined the vehicle and lifted
an identifiable left thumb
print, taken from the left door, directly above the door handle. He
produced photographic enlargements
of the fingerprint lifted from the
vehicle door and of a print taken from the left thumb of a set of
fingerprints which he marked
with the name ‘Michael Nduna’.
He concluded that they were identical, having established seven
points of similarity
between them. As a further test, before the
commencement of his testimony, Hail took a fresh set of left thumb
prints from the
appellant which he then compared to the print lifted
from the vehicle and to the left thumb print on the set of prints
marked ‘Michale
Nduna’ and found that all three sets were
identical to each other. He concluded that the print which he had
lifted from the
left door of the white Venture vehicle was that of
the left thumb of the appellant.
[11] Inspector Hendrik Johannes
Schreuder of the SAPS, also an expert in the field of fingerprint
evidence, attended the scene of
the robbery in Kensington 26 January
2007 where he examined the white bakkie, with registration CA 455247.
From the right hand
side of the bakkie, on the canopy just behind the
door frame, he lifted a palm print. In addition he also lifted
fingerprints from
both sides of the bakkie which he testified were
not prints implicating the appellant. He lifted ten prints
altogether. He said
that in order to imprint a palm print on a
vehicle surface, full pressure of the palm onto the surface is
required. In this case,
full pressure of the palm was exerted on to
the vehicle. Embarking on the same procedure as did Hail in order to
establish the
identity of the palm print, he compared the print he
had lifted from the bakkie with a set of fingerprints which he
received from
the investigating officer. He concluded that the print
was that of the right palm of the appellant, having found seven
points of
similarity.
[12] No questions were put to
Hail or Schreuder challenging the authenticity of the prints lifted
by them, nor was their evidence
challenged on appeal. It must
accordingly be accepted that the appellant’s left thumb print
and right palm print, respectively,
were found on the vehicles
involved in the two armed robberies. Although it was argued that the
failure to give evidence on the
age of the prints reduced their
probative value, the appellant did not challenge the state’s
evidence that the prints lifted
were his. In the light of this
evidence, it was conceded by counsel for the appellant that the
application in terms of
s 174
of the
Criminal Procedure Act 51 of
1977
for the discharge of the appellant at the close of the
respondent’s case was ill-conceived and had been rightly
refused.
The probative value of fingerprint evidence is undoubted:
S
v Legote
2001 (2) SACR 179
(SCA) para 3.
[13] The appellant testified in
his defence. His response to the fingerprint evidence was that in
1999 he was employed by Blue Ribbon
Bakery as a van assistant,
delivering bread throughout the Western Cape, his hours of duty being
from 6 am to 3 pm. His areas of
delivery were Salt River, Woodstock
and Cape Town. He knew nothing about the white Venture vehicle and
nothing about the first
robbery charge against him. In January 2007
he was unemployed and knew nothing about the second robbery. He
frequently visited
the N1 Centre in Cape Town with his children,
especially his youngest child who liked to play the games at the
centre. He testified
that he delivered bread in 1999 to shops in the
Bo-Kaap area, from Monday through to Saturday, that the delivery to
each shop was
quick, with no break in between each delivery. He said
the first deliveries were done in the morning in the Bo-Kaap area and
the
rest thereafter, with his workday ending at 3 pm by which time he
was free. Sometimes his workday ended at 12 noon. When confronted
with the evidence that his palm print was found on the Isuzu bakkie
he said:
‘
When
the motor vehicles are in the parking lot and you go and park there
then there is a possibility that you can touch someone’s
vehicle when you get out of your car.’
and
‘
When
you pass in between the motor vehicles you could touch.’
and
‘
It
might be now that when I come back from the shop and I’m
pushing my trolley and then it might be that I accidentally then
touch a motor vehicle.’
and
‘
It
might be just on that day that I touched there – it might (be)
the way it was parked.’
[14] Counsel for the appellant
argued that the inference of guilt was not the only possible
inference to be drawn from the circumstantial
evidence presented in
the case (
R v Blom
1939 AD 202).
The enquiry before us then is
whether the court a quo, on the evidence before it, could reasonably
have come to the conclusion
that it was indeed the appellant who
perpetrated the robberies in question. This involves a determination
of whether the two cardinal
rules of logic in
Blom
had been
invoked: first, the inference that the appellant committed the
robberies must be consistent with all the proved facts.
If it is not,
that inference cannot be drawn. Second, the proved facts should be
such that they exclude every reasonable inference
from them save that
it was the appellant who was the perpetrator.
[15] The first leg of the enquiry
is clearly met: the inference that the appellant was one of the
robbers is consistent with the
fingerprint evidence. The answer to
the second depends upon the probative value to be accorded to the
appellant’s thumb and
palm prints found on the Venture van and
the Isuzu bakkie. Can it be said, ultimately, that his explanation as
to how his palm
print came to be on the Isuzu bakkie and his lack of
knowledge as to how his thumb print came to be on the Venture van is
reasonably
possibly true, such that the conclusion that the appellant
was guilty on both counts is wrong?
[16] The thrust of counsel’s
argument was three-fold. First, eight years had passed between the
date of the first robbery
and the date of the appellant’s
testimony. The lack of explanation for the presence of his thumb
print on the Venture van
was equally consonant with an innocent
explanation as with a guilty one, as was his explanation of his palm
print on the Isuzu
bakkie. Second, because the state had not led any
evidence during the trial as to the apparent age of the appellant’s
thumb
print and palm print and the probable life span of these prints
in the particular positions they were found on the vehicles, the
probative value of the finger print evidence had been diminished.
Third, the high court had erred in using the evidence led on
the one
count in order to prove the other count as this was an impermissible
form of reasoning in determining the guilt of the
appellant. Counsel
submitted that the court a quo ought to have harboured a doubt as to
the appellant’s guilt and acquitted
him on both charges.
[17] It is settled law that
whilst similar fact evidence is admissible to prove the identity of
an accused person as the perpetrator
of an offence, it cannot be used
to prove the commission of the crime itself. This legal principle
operates, in addition, to exclude
such similar fact evidence from
being confirmatory material on another count.
[18] However, the application of
the rule is not to be confused with the situation where the rule is
invoked to establish the cogency
of the evidence of a systematic
course of wrongful conduct in order to render it more probable that
the offender committed each
of the offences charged in respect of
such conduct (
S v Gokool
1965 (3) 465 NPD at 475A-D). The
appellant’s argument, if it were to be accepted, would be
tantamount to excluding evidence
of the modus operandi of the
appellant merely because he had been charged with more than one count
of robbery. In
Gokool
Harcourt J said (at 475D-F):
‘
It
is clear that each count brought against an accused person must be
considered separately and that the admissibility of evidence
on each
count must be tested as if that count had been the only count against
such accused ─
R
v Buthelezi
1944
TPD 254.
But this does not prevent material, which could be
admissible under the rules relating to similar fact evidence, from
being received
merely because a plurality of counts is involved in a
case.’
The ultimate test is, and must
always be, the relevance of such similar fact evidence as the
foundation for its admissibility against
the accused person: the
evidence will be admissible if it is relevant to an issue in the
case. This court (per Schreiner JA) stated
the rule succinctly in
R
v Matthews
1960 (1) SA 752
(A) at 758B-C:
‘
Relevancy
is based upon a blend of logic and experience lying outside the law.
The law starts with this practical or common sense
relevancy and then
adds material to it or, more commonly, excludes material from it, the
result being what is legally relevant
and therefore admissible. . . .
Katz’s
case
is authority for asking oneself whether the questioned evidence is
only, in common sense, relevant to the propensity of the
appellants
to commit crimes of violence, with the impermissible deduction that
they for that reason were more likely to have committed
the crime
charged, or whether there is any other reason which, fairly
considered, supports the relevancy of the evidence.’
[19]
R v Katz
1946 AD 71
very clearly demonstrates how the rule is to be applied. The accused
there was charged with having sold meat above the controlled
price on
five separate occasions within a period of 11 days. Evidence was
admitted of a customer’s complaint some weeks before
then of
the high price charged, and of the accused’s response that he
was not prepared to sell at the controlled price, on
account of its
relevance to show that the accused sold in the ordinary course of
business at a higher price. This evidence of his
practice made it
more probable that he sold on the five separate occasions at the
higher price. Thus evidence of a modus operandi
can be used to prove
the commission of an offence provided the relevance of that evidence
has been established. In my view the
evidence relating to the modus
operandi on the two counts, supported by the fingerprint evidence, is
relevant and admissible. Each
offence has been established
independently, but the cumulative effect of evidence of similar
conduct on both counts must weigh
heavily against the appellant.
[20] Counsel referred us to the
judgment of Griesel J (Van Staden AJ concurring) in the Western Cape
High Court in the matter of
Jonginamba v The State
(Case No
A389/10). The appellant in that matter was convicted of the robbery
of the second complainant in this case, Abrahams,
in respect of the
same incident. The court on appeal set aside Jonginamba’s
conviction on the basis that the evidence of
his palm print on the
Isuzu bakkie was insufficient to conclude that the only reasonable
inference to be drawn was that he was
one of the robbers. I express
no view on the correctness of the decision. The evidence in this
matter is different because of the
additional charge of robbery, and
because the appellant’s explanation of how his fingerprints may
have been placed on the
two vehicles is not credible.
[21] It is highly unlikely that
two robberies, committed in the same fashion (the robbery by armed
men of a complainant, who has
just drawn cash from a bank, as he
returns to his business premises ), where the fingerprints of one are
found on the different
vehicles, would be entirely unconnected. Even
though so far apart in time, the coincidence, especially when regard
is had to the
fact that the fingerprints of the appellant were lifted
in each case from a vehicle proven to have been involved in each
robbery,
is explicable only on the basis that the appellant
participated in each robbery.
[22] The only inference to be
drawn from the proved facts is that the appellant is guilty on both
counts, and was correctly convicted.
[23] The appeal is dismissed.
___________________
S Ebrahim
Acting Judge of Appeal
APPEARANCES
APPELLANT: RM Liddell
Instructed by Liddell Weeber &
Van der Merwe c/o Von Lires, Cooper, Barlow, Cape Town
Ben van der Merwe Attorneys,
Bloemfontein
RESPONDENT: (Ms) M Marshall
Instructed by The Director of
Public Prosecutions, Cape Town
The Director of Public
Prosecutions, Bloemfontein