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[2022] ZAECMKHC 98
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Tom v S (CA 01/2021) [2022] ZAECMKHC 98; 2023 (2) SACR 283 (ECMk) (29 November 2022)
HEADNOTE:
Criminal – Evidence – DNA – Rape case where
prosecution exclusively relied on DNA evidence –
Probative
value of DNA evidence in satisfying the standard of proof in
criminal proceedings and how it is determined.
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKANDA
REPORTABLE
Case no: CA 01/2021
In the matter between:
MELUMZI
TOM Appellant
AND
THE
STATE
Respondent
Coram:
van Zyl DJP; Malusi & Laing JJ.
Heard:
01 August 2022
Delivered:
29 November 2022
FULL COURT APPEAL
JUDGMENT
D VAN ZYL DJP:
[1]
This judgment deals with the probative value of deoxyribonucleic acid
(DNA) evidence
in satisfying the standard of proof in criminal
proceedings, and how it is determined.
[2]
During the night of 2 November 2015, the complainant was confronted
by an intruder
in her house in the Lower Gwalane administrative area
in the district of Peddie. The intruder covered the complainant’s
head
with a blanket. When she offered resistance, it was met with
violence by her being hit on the head and body with a hard object.
At
the same time, a gunshot went off, which struck the complainant in
the foot. The intruder demanded that she hand over money
to him. It
was known in the community that the complainant kept money that
belonged to the members of, what she referred to as
a “
tea
society”
. After she had handed the intruder the money, he
proceeded to rape her. When the complainant questioned why, he
threatened to harm
her son who was at school at the time preparing
for his examinations, whereafter he would be attending circumcision
school. The
intruder also enquired about the whereabouts of the
complainant’s husband.
[3]
The intruder thereafter attempted to erase all evidence of the rape
by washing the
complainant’s vagina with water that he had
fetched from her kitchen. Throughout the whole ordeal the
complainant’s
head remained covered. Consequently, she was
unable to identify her attacker, and at trial, was only able to
testify to the circumstances
of the incident itself, which were not
placed in dispute. Despite the intruder’s efforts, DNA material
was extracted from
what was identified as semen, found on the tights
worn by the complainant at the time of the incident. Two persons in
the community
were eliminated as suspects after DNA testing. The case
went cold until three years later when the appellant was arrested in
the
Western Cape on an unrelated charge(s), and a reference DNA
sample taken from the appellant was found to match the DNA profile
from the semen found on the complainant’s clothing.
[4]
The appellant was subsequently indicted in the Bhisho High Court on
charges of rape,
robbery with aggravated circumstances, housebreaking
and a number of other related charges arising from the attack on the
complainant.
He pleaded not guilty and the matter went to trial. That
the crimes were committed was not an issue at the trial. The issue
was
the identity of the perpetrator. The prosecution exclusively
relied on the DNA evidence for a conviction. The appellant in turn
denied that he was the one who attacked the complainant in her house,
and pleaded a defence of an alibi. The trial court rejected
the
appellant’s evidence that he was not in the Lower Gwalane area
at the time, and found that the DNA evidence was sufficient
to find
him guilty. It proceeded to convict the appellant on several of the
counts and sentenced him to life imprisonment for the
rape and to
varying periods of imprisonment on the other counts. Those sentences
were ordered to be served concurrently with the
sentence of life
imprisonment. With the leave of the trial court, the appellant has
appealed his convictions.
[5]
The DNA evidence provided the basis of the evidence on which the
appellant was convicted.
Because the probative value of DNA evidence
is informed by the nature of such evidence, it is fitting to start by
examing what
DNA evidence is. The basis of DNA evidence is relatively
straightforward. All genetic material is stored in a person’s
DNA.
DNA evidence can be extracted from traces of bodily fluids, such
as saliva, blood and seminal fluid deposited during the commission
of
an offence. A laboratory analysis then creates a DNA profile from
these traces. A DNA profile is determined by counting the
number of
repeated patterns, called short tandem repeats or STR, found at
particular locations in the DNA of an individual. Once
a profile is
created, it is then compared against the DNA profile of a suspect. A
match between the DNA profile of a crime scene
trace and the DNA
profile of a suspect is reported if the same series of repeated
patterns appear in the results of both samples.
This is followed by
determining the rarity of the DNA profile by stating a statistical
frequency, which represents the profile’s
expected frequency in
the target population. In this matter the science behind DNA
profiling, the method of DNA profiling, and
the processes involved in
obtaining a result, were dealt with in the forensic report and its
annexure, complimented by the oral
evidence of a forensic analyst
called by the State as a witness. A convenient summary of the
principles underlying DNA evidence,
and the method of DNA profiling,
is found in the judgment of van der Merwe JA in
S
v Bokolo
.
[1]
(Bokolo)
In light of the issues raised in the appeal, there is no need to
repeat it.
[6]
As in the case of any other form of evidence, the starting point is
the admissibility
of DNA evidence, that is, is it capable of being
accepted as part of the body of evidence from which a matter in issue
must be
determined? Evidence is admissible if it has probative value.
It will have probative value if it is relevant, that is, if it could
rationally affect the assessment of the probability of the existence
of a fact in issue. In the factual scenario presented by the
evidence
in the present matter, and the issue of identification raised
thereby, the DNA evidence is highly relevant in that it
may provide
fact(s), the existence from which an inference(s) as to the existence
of a fact in issue may be drawn. The fact in
issue raised by the
evidence in the present matter is the identity of the person who
assaulted and raped the complainant. What
the prosecution had to
prove was that the appellant was the donor of the DNA material left
on the tights of the complainant, and
that he was the person who
attacked the complainant in her home in the manner set out above.
[7]
DNA evidence has two characteristics that impact upon the manner in
which such evidence
is to be dealt with by a trial court. The first
is that because it is based on specialised knowledge, and has a
technical and a
scientific basis, it is regarded as expert evidence.
Its admissibility is subject to there being a sufficiently reliable
scientific
basis for the evidence to be admitted, and to the other
principles applicable to the admission of expert evidence. The
evidential
value of this type of evidence, in turn lies in its
reliability or trustworthiness. Its reliability is determined with
reference
to factors which may affect the integrity of the scientific
analysis, such as the proficiency of the forensic practitioner who
conducted the analysis; the integrity of the crime scene; the measure
of control over the DNA samples and its chain of custody;
the
reliability of the procedures used for its analysis; the reliability
of the statistical data used; and the soundness of the
deductions
drawn therefrom.
[8]
At the hearing of the appeal, the admissibility of the DNA evidence
and its reliability
was not placed in dispute. The issue raised was
narrowed down to the submission that without corroborative evidence,
the DNA evidence
alone was insufficient to convict the appellant.
This submission in essence questions the probative weight that must
be accorded
to DNA evidence by the court in its assessment of whether
the State had discharged the onus of proving the guilt of the
appellant
on the required standard. DNA evidence is best described by
what it is not. Where the identity of the perpetrator of a crime is
in dispute in criminal proceedings, as in the present matter, it does
not provide direct proof of that fact. It can only establish
that
someone could be the source of a genetic sample. As stated in
paragraph [5] above, whether that person could be the source,
is
reported by analytical evidence with reference, firstly to the
similarity of the same series of repeated patterns that appear
in the
two DNA samples, and secondly, to the rarity of that particular DNA
profile. The rarity of the particular DNA profile is
stated as a
probability that a randomly chosen individual might have a DNA
profile that matches the genotype derived from the evidence,
by
statistically estimating the population frequency of the varying
genetic features in a specific reference class.
[2]
The
task awaiting the trial court is accordingly to determine the
probative value of the results of the DNA analysis, together the
statistics that have been reported therewith.
[9]
The determination of the probative value of the DNA evidence is done
in the context
of the facts of the case, the nature of DNA evidence,
and the rules of evidence which apply thereto. It is in the latter
aspect
that the second characteristic of the DNA evidence lies. It
is, in law, regarded as circumstantial evidence.
[3]
Circumstantial
evidence is evidence of a fact or facts from which the court is asked
to infer another fact in issue.
[4]
The
fact that DNA evidence sets out to establish is that the DNA profile
of the crime scene sample matches that of the accused person,
from
which the court is then asked to infer that the accused was the
perpetrator of the crime. The two facts may conveniently be
referred
to as “
primary”
and “
secondary”
facts respectively,
[5]
the primary fact being used for the drawing an inference(s) as to the
existence of the secondary fact. DNA evidence is consequently
by its
very nature indirect, or as is commonly referred to, circumstantial
evidence. With regard to the degree of certainty with
which the
primary facts must be proved in a criminal case, it always depends on
the probative value of the individual facts themselves.
[6]
Where,
as in the instant matter, the fact on which the prosecution relies,
constitutes an indispensable link in the chain of reasoning
towards
the fact in issue, namely the identity of the perpetrator, that fact
must be proved beyond a reasonable doubt.
[7]
This
is in contrast with the situation where the State places reliance on
a combination of a number of facts which are not individually
capable
of supporting the inference, but may do so when taken together, in
which event it may not be necessary to prove the existence
of each
fact beyond a reasonable doubt. It was explained as follows in
R
v Mtembu
:
[8]
“
Circumstantial
evidence, of course, rests ultimately on direct evidence and there
must be a foundation of proved or probable fact
from which to work.
But the border-line between proof and probability is largely a matter
of degree, as is the line between proof
by a balance of probabilities
and proof beyond reasonable doubt. Just as a number of lines of
inference, none of them in itself
decisive, may in their total effect
lead to a moral certainty (
Rex
v de Villiers
(1944, A.D. 493
at p. 508)) so, it may fairly be reasoned, a number
of probabilities as to the existence of the facts from which
inferences are
to be drawn may suffice, provided in the result there
is no reasonable doubt as to the accused’s guilt. That was the
view,
I think, which underlay the use of the words “either
proved or
shown
to be probable
”
in
Rex
v Mthlongo
(1949 (2), S.A.L.R. 552
at p. 558 (A.D)) and see Wigmore on
Evidence
secs. 216 and 2497.”
[9]
[10]
The principles in relation to inferential reasoning are well
established. The standard of proof
beyond a reasonable doubt in
criminal proceedings requires the application of, what the court in
the oft-quoted case of
R
v Blom
[10]
(
Blom
)
referred to, as the two “
cardinal
rules of logic”
:
“
In
reasoning by inference there are two cardinal orders of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference
cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one
sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought
to be drawn is correct.”
[11]
[11]
Some of the key principles underlying the test in
Blom,
[12]
as
amplified in
R
v De Villiers
[13]
are
the following: the facts from which the prosecution seeks to draw the
inference of guilt must not also be reasonably consistent
with a
hypothesis other than the one relied upon, in other words, the
inference of guilt must be the only reasonable inference;
there must
be some evidential foundation to support the inference to be drawn,
and speculation, conjecture or a bare possibility
will not be
sufficient; as the inferential conclusion sought to be drawn is
determined against the strength of the factual premise
provided by
the context of the facts of the case, all of the circumstances
established by the evidence are to be considered and
weighed in
deciding whether the inference is consistent with the proved facts.
The evidence must be considered as a whole, and
not by a piece-meal
approach;
[14]
and,
following from the fact that the burden of proof rests on the State
throughout criminal proceedings to prove the guilt of the
accused
beyond a reasonable doubt, the accused person is not required to
establish that some other inference should be drawn, or
to prove
particular facts which are to support such other inference.
[12]
Circumstantial evidence is not considered to be inherently less
reliable than direct evidence.
[15]
Wigmore
laments the use of the term “circumstantial” to denote
evidence that does not in any way derogate in value from
direct
evidence.
[16]
In
R
v Taylor Weaver and Donovan
[17]
Hewart
LCJ appositely said the following about the value of circumstantial
evidence:
“
It
has been said that the evidence against the applicants is
circumstantial: so it is, but circumstantial evidence is very often
the best. It is evidence of surrounding circumstances which, by
undesigned coincidence, is capable of proving a proposition with
the
accuracy of mathematics. It is no derogation of evidence to say that
it is circumstantial.”
[13]
The fact is that the law draws no distinction between circumstantial
evidence and direct evidence
in terms of its weight or its
importance. Either type of evidence or a combination of both may be
sufficient to meet the required
standard of proof in the factual
context of a particular case. There is no reason, and none was
advanced, for treating DNA evidence
any differently from any other
form of circumstantial evidence. There is accordingly, in my view, no
room for any suggestion, either
that (i) DNA evidence must as a rule
be corroborated by other evidence, in the sense in which that term is
understood,
[18]
namely
the presentation of evidence which supports the evidence of the
complainant, and which renders the evidence of the accused
less
probable on the issues in dispute; or, (ii) as it was argued in this
matter, that it can only serve as evidence that corroborates
other
evidence of the commission of the crime. There is no evidential or
legal principle which prevents a case from being decided
solely on
DNA evidence. As in the case of any other form of circumstantial
evidence, the probative value of DNA evidence is ultimately
determined on the facts, and in the circumstances of any particular
case.
[14]
It follows from the aforegoing that the issues raised by the appeal
are whether the State had
succeeded in proving beyond a reasonable
doubt that the DNA profile found on the clothing of the complainant
matched that of the
appellant, and if so, whether the only reasonable
inference to be drawn therefrom, on the evidence as a whole, is that
it was the
appellant who left the semen sample on the clothing of the
appellant when he raped her on the night in question. Both issues are
determined by evaluating the evidential weight of the DNA evidence in
the context of the all of the evidence at hand, inclusive
of the
appellant’s alibi evidence.
[19]
A
court of appeal is in as good a position to draw inferences of fact.
“
Where
a finding of fact does not essentially depend on the personal
impression made by a witness’s demeanour but predominantly
upon
inferences from other facts and upon probabilities … a Court
of appeal with the benefit of an overall conspectus of
the full
record may often be in a better position to draw inferences,
particularly in regard to secondary facts.”
[20]
[15]
The primary fact will essentially be decided on the reliability of
the expert evidence tendered
with regard to the existence of a match,
or the absence thereof, between the DNA profile of an accused person
and that of the crime
scene sample. The focus will accordingly be on
matters such as the integrity of the scientific analysis; the
soundness of the inferences
drawn therefrom; the integrity of the
crime scene; the measure of control over the DNA samples and its
chain of custody; and the
resolution of any conflict that may exist
in opposing expert opinions when presented in evidence.
[21]
[16]
The determination of the secondary fact is, as mentioned, a matter of
inferential reasoning,
premised on the primary fact and such other
facts as may be found to have been proved. By reason of the nature of
DNA evidence,
the focus of the enquiry will be on the weight to be
given thereto in the wider factual context of the matter in
determining the
soundness of the inference to be drawn from the
primary fact. In
Bokolo
the court pointed to a few factors
which it considered relevant in determining the weight of DNA
evidence:
“
(i)
the establishment of the chain evidence, ie that the respective
samples were properly taken and safeguarded
until they were tested in
the laboratory;
(ii)
the proper functioning of the machines and equipment used to produce
the electropherograms;
(iii)
the acceptability of the interpretation of the electropherograms;
(iv)
the probability of such a match or inclusion in the particular
circumstances;
(v)
the other evidence in the case.”
[22]
[17]
It is evident that this was by no means intended to be an exhaustive
list. The reason is simply
that each case must inevitably be assessed
on its own facts. In the factual context of the present matter, the
factors of relevance
with regard to determining the weight of the DNA
evidence, are as follows. The first is that the evidence did not
provide any reason
to doubt the reliability of either the matching
data or the statistical conclusion based upon it. The reliability of
this evidence
must be assessed, as stated in
Bokolo
, by having
regard to the integrity of the DNA sample from the time of its
collection at the crime scene, until its analysis in
the laboratory.
A change in the condition of the sample by contamination may impact
on the reliability of the analytical data derived
therefrom. As
stated earlier, the reliability of the DNA analysis was not placed in
dispute in the appeal, and on the evidence
itself, there is nothing
obvious which detracts from either the soundness of the conclusion
reached by the trial court that the
DNA sample was not compromised
during the different stages, or from the prudence of the decision by
the appellant not to raise
it as an issue in the appeal.
[18]
Another factor which is relevant to the integrity of the DNA analysis
and the statistical conclusion
based on it, is the quality, or the
lack thereof, of the DNA sample itself. Aspects in the evidence which
support a conclusion
that the condition of the DNA sample collected
from the clothing of the complainant was good are the following: The
item of clothing
was directly associated with the rape of the
complainant, as she was wearing the tights at the time she was
attacked; the DNA results
confirmed that the DNA sample found on the
clothing came from a single source, as opposed to their having been
more than one contributor
of DNA material, which may have complicated
the analysis of the sample by producing a mixed profile;
[23]
the
sample was positively identified as being semen without any
difficulty with regard thereto reported in the evidence which may
have raised a reasonable possibility of degradation of the DNA
material; and the number of repeat units at the STR locations
(fifteen)
which were identified for establishing a matching DNA
profile.
[19]
There is further an absence of another explanation for the presence
of the matching DNA on the
complainant’s clothing other than
that it was deposited when the complainant was raped. The undisputed
evidence was that
immediately after her attacker had left, the
complainant put her tights back on, and that she wore them until she
was examined
by a medical practitioner later on the same day, and
received treatment for her injury at a hospital, where the item of
clothing
was collected from her. This serves to exclude the
reasonable possibility of a secondary transfer of the kind of the DNA
material
onto the tights.
[20]
Another aspect relevant to the weight of the DNA evidence is the fact
that there is a geographical
association between the appellant and
the offences. The appellant’s family home is in the same
village. According to the
complainant, it is situated within sight of
her own home. He is related to the complainant by marriage. He worked
in Cape Town
but would return home occasionally. The appellant was
seen in the village not long after the incident. The evidence of the
complainant,
which the trial court correctly accepted, was that she
saw the appellant there in December 2015. The fact that the
complainant’s
attacker knew that her son was to attend
circumcision school in December, and that he asked about her husband,
strongly suggests
the person was from the same village.
[21]
It was submitted in argument that the fact that the complainant did
not recognise the voice of
her attacker as that of the appellant, and
that the person knew that she kept water in the kitchen which he
fetched to wash her
with, when the complainant said the appellant had
never been to her house before the incident, did not support the
inference which
the State sought to draw from the DNA match as being
the only reasonable inference. The complainant’s evidence was
that she
did not know the appellant personally, and that she had no
active interaction with him. The complainant only knew the appellant
from seeing him in the village. He had never visited her home before.
There accordingly existed no reason for her to have recognised
the
appellant by his voice. She further testified that in a rural village
with no running water, it is generally known that everyone
keeps
water in a container in the kitchen. It is further evident from the
evidence that the complainant lived in a rural home with
four rooms.
There was no suggestion that the home was of a size that, unless the
intruder knew the layout of the house, he would
not have been able to
locate the kitchen without receiving directions.
[22]
A last and an important aspect is the statistical evidence which
provides a probability of the
specific DNA profile occurring within a
given population, that is, that within the identified group of
individuals, a profile occurs
at a particular frequency that can be
calculated mathematically. In the present matter that probability was
stated as 1 in 1.6
x 10 to the 6
th
trillion, that is, the frequency with which persons in the target
population might have a DNA profile that matches the DNA sample
collected from the clothing of the complainant. The evidentiary value
of this evidence lies in the probability of a random individual
in
the target population possessing identical numbers of repeat units at
all STR locations.
[24]
The
lower the statistical frequency, the more discriminating the
particular DNA profile is, and consequently the more probative
the
DNA match is. It is evident from the population frequency of the DNA
profile in this matter that there is almost no measurable
likelihood
of a random match as it translates to a chance of
0.000000000000000000626 per cent.
[23]
As mentioned, the appellant raised an alibi. His evidence was that he
only returned to his family
home in December 2015. It is trite that
there is no onus on an accused person to prove his alibi.
[25]
The
approach to such evidence is no different from any other evidence. It
is not to be considered in isolation, but on a conspectus
of the
totality of the evidence.
[26]
As
it postulates a conflict of fact, it requires a consideration of the
evidence pointing to the guilt of the accused person against
all the
evidence indicative of his innocence, taking proper account of its
inherent strengths and weaknesses, and weighing it against
the
probabilities and improbabilities on both sides.
[27]
By
reason of the nature of the evidence in this matter, the assessment
of the alibi evidence is made in the context of the test
postulated
in
Blom
.
It is assessed as part of the body of evidence to determine if the
inference sought to be drawn is the only reasonable inference.
Should
it be concluded on a consideration of all the evidence, including the
evidence of the alibi, that the alibi raised is reasonably
possibly
true, then it must be concluded that the evidence relied on by the
State does not exclude any other reasonable inference
save the one
sought to be drawn.
[24]
By its very nature, the probative value of DNA evidence rests, to a
great extent, on the probabilities
raised thereby. The burden of
proof beyond reasonable doubt will be satisfied if the evidence
raises such a high degree of probability
that the ordinary reasonable
man, after mature consideration based on ordinary human knowledge and
experience, comes to a conclusion
that there is no reasonable doubt
that the accused committed the crime(s) charged. In
S
v Phallo and Others
[28]
Oliver
JA explained it as follows, after posing the question where the line
between proof beyond reasonable doubt and proof on a
balance of
probabilities was to be drawn:
“
In
our law, the classic decision is that of Malan JA in
R
v Mlambo
1957 (4) SA 727
(A).
The learned Judge deals, at 737 F – H with an argument (popular
at the Bar then) that proof beyond reasonable doubt
requires the
prosecution to eliminate every hypothesis which is inconsistent with
the accused’s guilt or which, as it is
also expressed, is
consistent with his innocence. Malan JA rejected this approach,
preferring to adhere to the approach which “at
one time found
almost universal favour and which has served the purpose so
successfully for generations” (at 738A). This
approach was then
formulated by the learned Judge as follows (at 738 A – C):
“
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
An
accused’s claim to the benefit of a doubt when it may be said
to exist must not be derived from speculation but must rest
upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not
in conflict
with, or outweighed by, the proved facts of the case.”
[29]
[25]
The burden of proof beyond a reasonable doubt does not make it
incumbent on the State to eliminate
every conceivable inference or
possibility which is suggested.
[30]
The
proposed inference or possibility must be reasonable. Reasonableness
is determined on the basis of the body of evidence and
the
probabilities which arise therefrom. If the proposed inference or
possibility is found to be so improbable when weighed against
the
evidence, that it cannot be said to be reasonable, it may be
rejected. As stated by Denning J in
Miller
v Minister of Pensions
,
[31]
the
degree of cogency required in a criminal case before it can be
concluded that the standard of proof beyond a reasonable doubt
has
been satisfied, “
need
not reach certainty, but it must carry a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond
the shadow
of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course
of justice. If
the evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed
with the sentence
‘of course it is possible, but not in the least probable,’
the case is proved beyond reasonable doubt,
but nothing short of that
will suffice.”
[26]
I am satisfied that the trial court correctly rejected the
appellant’s alibi defence when
regard is had to its quality,
and it is placed in the balance with the DNA evidence. A feature of
the appellant’s evidence
was its lack in detail, and the trial
court rightly also questioned its veracity. There is no reason to
doubt either the matching
data of the DNA evidence, or the
statistical conclusion based thereon. The random ratio deduced from
the DNA evidence, when it
is evaluated in conjunction with the
considerations dealt with in paragraphs [17] to [22] above, is highly
probative. It is supportive
of a conclusion beyond a reasonable doubt
that the DNA profile of the appellant matched that of the sample
collected from the complainant’s
clothing, and that the only
reasonable inference to be drawn from that fact is that the semen was
left on the complainant’s
clothing when the appellant entered
her house, raped her, and committed the other crimes of which he has
been convicted. The probative
weight of the circumstantial evidence
and the probabilities raised by it, when measured against the
evidence as a whole is so significant
and compelling, that it must
leave the appellant’s alibi evidence so improbable that it
cannot reasonably possibly be true.
[32]
[27]
For these reasons, I am satisfied that the State proved its case
beyond reasonable doubt, and
that the appeal must be dismissed.
SIGNED
D VAN ZYL
DEPUTY JUDGE PRESIDENT
OF THE HIGH COURT
I agree:
SIGNED
T MALUSI
JUDGE OF THE HIGH
COURT
I agree:
SIGNED
J G A LAING
JUDGE OF THE HIGH
COURT
Appearances:
For
Appellants:
ADV J McCONNACHIE
Instructed
by:
THE REGISTRAR
HIGH COURT
EASTERN CAPE DIVISION
MAKANDA
For
the Respondents: ADV V
JODWANA-BLAYI
Instructed
by: THE
DIRECTOR OF PUBLIC PROSECUTIONS
BHISHO
[1]
2014
(1) SACR 66
(SCA) at paras [8] to [16].
[2]
Meintjes-Van
der Walt, L & Dhliwayo, P .. (2021) “
DNA
Evidence as the Basis for Conviction”
PER/PELJ, 24, 3 - 40.
[3]
Bokolo
supra fn 1 at para [18].
[4]
Zeffert
and Paizes The South African Law of Evidence 3
rd
ed at page 101.
[5]
As it is
referred
to in Zeffert and Paizes op cit at page 104.
[6]
R
v Sibanda and Others
1965 (4) SA 241
(RA) at 246 B.
[7]
S
v Mahlalela (396/16)
[2016] ZASCA 181
(28 November 2016) at para
[15].
[8]
R
v Mthembu
1950 (1) SA 670
(A) at 679.
[9]
A
t
680. See also R v De Villiers
1944 AD 493
at 508; S v Sibanda supra
fn 6 at 246 B – H; S v Morgan and Others
1993 (2) SACR 134
(A)
at 172 i – 173 a; S v Smith en Andere
1978 (3) SA 749
(A) at
755 A – B; and S v Ntsele
1998 (2) SACR 178
(SCA) at 189 c –
d.
[10]
1939 AD 188.
[11]
At
202 - 203.
[12]
Blom
supra fn 7.
[13]
De Villiers supra fn 8
.
[14]
S
v Reddy
1996 (2) SACR 1
(A) at 8 c-d:
“
In
assessing circumstantial evidence, one needs to be careful no to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration whether it excludes
the reasonable possibility that the explanation given
by an accused
is true. The evidence needs to be considered in its totality.”
[15]
Musingadi
and Others v S
2005 (1) SACR 395
(SCA) at para [20].
[16]
See
Wigmore The Law of Evidence 3
rd
ed Vol 1 para [25] at page 400.
[17]
21 CR App R20 at 21.
[18]
S
v Gentle
2005 (1) SACR 420
(SCA) at 430 j – 431 a. See also S
v Heslop 2007 (1) (a) SACR 461 (SCA) at para [12].
[19]
S
v Mbuli
2003 (1) SACR 97
(SCA) at para [57]. See also S v Sithole
(868/2011)
[2012] ZASCA 85
(31 May 2012).
[20]
Union
Spinning Mills (Pty) Ltd v Paltex Dye House and Another
2002 (4) SA
408
(SCA) at para [24], quoted with approval by Ponnan JA in
Crossberg v S
[2008] ZASCA 13
;
[2008] 3 All SA 329
(SCA) at para
[149]
.
[21]
Bokolo
supra fn 1 at para [19]. See also the authorities referred to in JA
obo DMA v The Member of the Executive Council for Health,
Eastern
Cape (8/2021) [2022] ZAECBHC 1 (21 January 2022) at para [17].
[22]
Bokolo
fn 1 at para [18].
[23]
Bokolo
supra fn 1 at para [21].
[24]
It
is essentially represents the estimated rarity of the DNA profile in
question, and avoiding what is referred to as “the
prosecutors
fallacy,” namely the assumption that the random match
probability is the same as the probability that the accused
person
was not the source of the DNA sample. See Zeffert and Paizes
op
cit
at page 124.
[25]
R
v Biya
1952 (4) SA 514
(A) and Sv Mhlongo
1991 (2) SACR 207
(A) at
210 d – f.
[26]
S
v Tshiki (358/2019)
[2020] ZASCA 92
(18 August 2020).
[27]
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15] and S v Guess
1976
(4) SA 715
(A) 715 (A) at 718 H – 719 A.
[28]
1999
(2) SACR 558 (SCA),
[29]
At
562 g to 563 e.
[30]
S
v Sauls and Others
1981 (3) SA 172
(A) at 182 G – H, quoted
with approval in S v Reddy supra fn 14 at 10 b - c.
[31]
[1947]
2 All ER 372
at 373.
[32]
S
v Shackell
2001 (2) SACR 185
(SCA) at para [30].