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[2013] ZAGPPHC 490
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Msingizi v S (A923/12) [2013] ZAGPPHC 490 (11 October 2013)
THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: A923/12
DATE:
11 OCTOBER 2013
In the matter
between:
VINCENT SODO
MSINGIZI
.......................................
Appellant
And
THE
STATE
..................................................................
Respondent
JUDGMENT
[1] The appellant
stood trial, together with two other accused, in the Regional Court
of Sebokeng on charges of murder and robbery
with aggravating
circumstances. The two other accused were acquitted on all charges in
terms of
section 174
of the
Criminal Procedure Act 51 of 1977
, but
the appellant was convicted on the charge of murder and was sentenced
to 15 years imprisonment. He was found not guilty on
the charge of
robbery and was granted leave to appeal against his conviction of
murder.
[2] The appellant
was convicted on circumstantial evidence only. The essence thereof is
contained in Exhibit C, the post mortem
examination report and
Exhibit G, a DNA analysis report. At the beginning of the trial the
post mortem report “and its contents”
were admitted by
the appellant
and his co-accused.
They all had legal representation and they all confirmed that these
admissions could be recorded in terms of
section 220
of the Act.
[3] Later during the
trial the DNA results were also admitted by the appellant and his
co-accused. It happened as follows:
"Prosecutor:
... I want the Court to find out if there is any objection in that
regard it was analysing the blood found from
the shoes and the
clothing that relates (to) accused 1 and accused 2.”
[4] After all the
legal representatives had indicated that there was no objection, this
report was handed in as Exhibit G. In his
judgment the Magistrate
came to the conclusion that: “the DNA results implicate accused
person (referring to the appellant)
that the blood of the deceased is
on his shoe and jacket”. The central question is whether this
finding, in view of all the
other evidence, is sufficient to sustain
a conviction of murder.
[5] The facts can be
summarised as follows: The appellant and his two co-accused were
drinking one evening at a certain hostel.
They later left and were
not seen again that evening. The next morning the deceased was found
lying in the street. He had a stab
wound on his chest. The police
investigated the matter and found droplets of blood on a jacket and
the shoes of the appellant as
well as on a jacket of another accused
(who was referred to as accused number 2). These items of clothing
were then taken away
and put in sealed bags for forensic analysis.
From the record it appears that the street where the deceased was
found is in the
vicinity of the hostel.
[6] According to the
post mortem report the deceased’s death was caused by a stab
wound in the chest. It also indicates that
a blood specimen,
identified as F/A 189673 was taken from the deceased for DNA
analysis. Exhibit G, the DNA analysis report, indicates
in table 1
thereof that the DNA result of jacket “B” and left shoe
“F” matches the DNA result of “reference
sample (FA
189672/3 ‘346/09’)”. It also states that the most
conservative chance of the blood on the clothing
coming from a person
other than the deceased is one in 590 billion.
[7] The appellant
also testified. According to him he knows nothing about the murder.
He testified that the next morning (after
he and his co¬accused
had been drinking the previous night at the hostel) he and accused
number 2 were apprehended by members
of the community. They were then
assaulted. According to him they also took his jacket and shoes and
also the jacket of his co-accused.
They later returned his shoes, but
not his jacket. On a question whether he had any interaction with
anyone else before he was
apprehended by members of the community, he
replied that he had been in the company of accused number 2.
[8] Counsel for the
appellant argued that the DNA report does not unequivocally prove the
guilt of the appellant. She submitted
that the circumstantial
evidence, properly analysed, does not justify the inference that the
appellant had murdered the deceased
as the only reasonable one.
[9] The approach to
circumstantial evidence is set out in R v Blom
1939 AD 188
at
202-203. The test to be applied is twofold: first, the inference
sought to be drawn must be consistent with all the proved facts.
If
it is not, the inference cannot be drawn. Second, 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, there must be doubt whether the
inference
sought to be drawn is correct.
[10] If the DNA
results were to be accepted as correct, i.e. prove beyond reasonable
doubt that the blood found on jacket “B”
and left shoe
“F” is blood of the deceased, then in my view it should
follow that the appellant was not only present
at the scene where the
deceased was stabbed, but also that he was close to him. This
inference would seem to be justified as there
is no evidence that the
shoes of any other person were taken by the police, except those of
the appellant.
[11] However, this
is not the end of the inquiry. The next question to be considered is
who stabbed the deceased? To answer this
question one should also
take into account the following evidence: the appellant had been in
the company of his co-accused the
night before the murder was
committed. His evidence was further that before he was apprehended by
members of the community the
next morning, he had been in the company
of accused number 2. The police noticed blood on the jacket of the
appellant as well as
on that of accused number 2. Both jackets were
taken away for purposes of DNA analysis. Jacket “B”
referred to in the
DNA report was not identified, or, to put it
differently, that jacket could have been the jacket of the appellant
or that of accused
number 2. This means that it is reasonably
possible that accused number 2 was also present and close to the
deceased when he was
stabbed.
[12] If the test
referred to earlier is properly applied, can it be concluded that the
only reasonable inference to be drawn from
the proved facts is that
the appellant is the person who stabbed the deceased? I think not,
because the possibility that the deceased
was stabbed by accused
number 2 cannot be excluded.
[13] There is no
evidence of any common purpose to commit a murder. It is possible
that the intention was to rob the deceased and
in the process one of
the accused decided to stab the deceased. For all these reasons I am
of the view that the appeal should succeed.
[14] I propose the
following order:
The appeal is upheld
and both the conviction and sentence on the charge of murder are set
aside.
D S FOURlE
JUDGE OF THE
GAUTENG HIGH COURT PRETORIA
I agree, and it
is so ordered.
F G PRELLER
JUDGE OF THE
GAUTENG HIGH COURT PRETORIA
18 November 2013