S v Shabalala

• Jurisdiction: South Africa
• Judge: Corbett JA, Trengove JA, Smalberger JA, Nicholas AJA and Nestadt AJA
• Judgment Date: 28 August 1986
• Citation: 1986 (4) SA 734 (A)
• Hearing Date: 23 May 1986
• Court: Appellate Division

Nestadt AJA:

At about 2.30 am on Sunday, 16 December 1984, an B intruder, by removing a pane of glass from the bathroom window frame and thereafter climbing through the resultant opening, gained access to the house of Mr and Mrs Allen. They, aged 34 and 29 respectively, lived in a residential suburb of Pietermaritzburg. Armed with a knife or similar instrument, he entered their bedroom. He approached the wife and, as she lay in bed, stabbed her in the left forearm, right shoulder and C left breast. The husband, awakened by her screams, jumped out of bed and rushed at the figure that he saw. It retreated out of the bedroom. As Mr Allen pursued it, he too was stabbed several times; in particular in the left hand, the left forearm and, superficially, in the chest. The assailant fled back into D the bathroom and escaped through the window by which he had entered. Mrs Allen was taken to hospital but died shortly after her admission there. On post mortem examination it was found that her left lung had been punctured; the wound involved had a penetration of 17 cm. It, together with the loss of blood resulting from the injury to the right shoulder, was the cause of death. Mr Allen, consequent on treatment at the hospital, recovered.

E It was these events that led to the trial of appellant before KRIEK J and assessors, in the Natal Provincial Division, on three charges, viz (i) housebreaking with intent to rob; (ii) murder and (iii) attempted murder (of Mr Allen).

The State case was that appellant was the intruder and F perpetrator of the assaults. In seeking to prove this, reliance was not placed on the evidence of Mr Allen, who, though an eye-witness to the occurrence, was not able to identify the attacker. All he could say was that the person he saw had the build of a male of average height, that he was dark-skinned and that he was wearing dark clothing. Nor was G there any evidence of fingerprints having been found in or around the house. What the prosecution rested on was, in summary, the following: (i) The finding by the police of what was said to be one of appellant's canvas shoes (referred to as sandshoes) in, and the other just outside, the house. (ii) The fact of his having, when he appeared in a magistrate's court on H Thursday, 20 December 1984 in terms of s 119 of the Criminal Procedure Act 51 of 1977, pleaded guilty, coupled with an incriminating account by him of how he had committed the crimes. (iii) The pointing out to the police, by appellant, of the Allens' house, together with certain places outside and in it. (iv) The presence on the overall which he was found to be I wearing when arrested on Monday, 17 December (the day following the occurrence) of (a) blood of the same groupings as that of deceased and her husband, and (b) a hair similar to one from deceased's head. (v) The giving of an alleged false explanation as to his whereabouts on the night in question.

I deal in due course with appellant's evidence relevant to each of these matters. Suffice it at this stage to say that, in J support of his plea of not guilty before the trial Court, he denied that it was he who committed the

Nestadt AJA

crimes. He testified that, though he had on the Saturday (15 A December) done some casual work at a house adjoining theirs, he had never entered that of the Allens; he had spent the night of 15 - 16 December in a hut situate on a construction site in the vicinity.

The trial Court, for reasons which will appear, rejected appellant's alibi defence. He was, accordingly, found guilty B but, seeing, so it was held that neither an intent to rob (nothing was stolen) nor to murder (Mr Allen) had been established, the convictions on counts 1 and 3 were, respectively, of housebreaking with intent to commit an offence unknown, and assault with intent to do grievous bodily harm. On each of these he was sentenced to two years' imprisonment. No extenuating circumstances having, in relation to the conviction C of murder, been found, he was sentenced to death on count 2.

This is an appeal against such convictions and, with leave of this Court, also against the death sentence. It will be convenient to consider, separately, each of the categories of D evidence to which reference has been made.

I commence with that of the sandshoes ((i) above). On his arrival at the scene at about 4 am on 16 December, Lieutenant Upton, of the Alexandra Police Station, found one in the bathroom and the other lying next to the outbuildings of the premises. It is plain that they had been worn by the intruder E (who had lost them, probably as he fled). Proof, therefore, that they were appellant's would constitute damning evidence against him. Though he did not dispute the State evidence that he had, on the Saturday, been wearing shoes of a similar kind and colour (which in fact fitted him), he denied that they were his.

The State sought to establish the affirmative by means of the F following evidence. On Tuesday, 18 December, appellant was one of six persons who were lined up in a row, one behind the other, in the yard of the police station where he was being held in custody. The one sandshoe, which had been retrieved outside the house and which had not been handled by anyone subsequent thereto, save that it had been sealed in a plastic bag by the police, was produced and given by Detective Sergeant G Collen to a dog to sniff. It was no ordinary dog. It was a thoroughbred English bloodhound, known by the name Tilly. This type of breed possesses extraordinary powers of smell. In the words of a Mr Pead, a professional dog trainer of 20 years' experience (who was called by the State), "they think with their nose"; they have "high level nose power". They can, accordingly, be trained to track down persons. This is possible H because they are able to identify a scent which is exuded from the body and becomes impregnated in what is worn. Tilly had received such training. This took place at the police dog school in Pretoria. At the end of an initial period of six months, she was subjected to certain tests. They included tracking and scent discrimination. The latter (which, for I present purposes is, I think, the important one) consisted of the dog having to identify, from five aluminium pipes, each of which had been handled, not more than three hours before, by a particular person (different in each case), the one which "belonged" to the person whose handkerchief or other item of clothing had been given to the dog to sniff. This type of test was then repeated (though whether with five other persons is J not clear).

Nestadt AJA

A Tilly's identification was, on both occasions, correct so that she obtained what is called an "A" certificate. Three months later, having in the meantime been given "praktiese werk" outside the school, she returned for a second course at the end of which she underwent trials of a similar kind save that this time what was given her to sniff had been handled B between 24 and 48 hours before. Again, she made no mistake in her identifications of the pipes in question. She then graduated with a "B" certificate. In the period of one and a half to two years since then, she had been used by the police to track and identify suspected criminals. She had never been C proved to be wrong. On the contrary, in a number of cases where, there being additional evidence, prosecutions had followed, convictions had resulted. Collen had taken control of her in the fifth month of the first session and had been her dog master since then. Having sniffed the sandshoe, Tilly, as she had been trained to do, walked down the one side of the parade. Having reached the last person, she proceeded round the D back of him and began to move forward on the other side towards the front, at the same time sniffing each person she passed. When she reached appellant, standing in place No 5, she put her front paws on his shoulders and barked. This indicated that his scent corresponded with that which had been smelt in the sandshoe. The procedure was twice repeated after appellant E had chosen different positions. The result, however, was the same. Each time the paw of suspicion was pointed at appellant.

In his evidence, appellant disputed that the parade had been fairly conducted. He alleged, in effect, that shortly before it, the dog had been brought into contact with him and that, F during the identifications, she had been prompted. Collen's denial of these irregularities was accepted by the trial Court. In my view, correctly so. The matter, accordingly, fell to be decided on the State version as set out above. It raised a problem which has engaged the attention of our Courts on a number of previous occasions, viz whether this type of evidence G is admissible. In R v Trupedo 1920 AD 58, following R v Kotcho 1918 EDL 91 and R v Adonis 1918 TPD 411, it was held it was not. Here, too, evidence of the behaviour of a police dog, which had tracked down the accused, after being given the scent of certain footprints at the scene of the crime, was in issue. Three reasons for its exclusion are given. If the dog be H regarded as the real witness, hearsay evidence was involved. The dramatic nature of the testimony might cause juries to attach a dangerously exaggerated importance to it. But the main one, as I read the judgment, is that its probative value being too tenuous, it was not relevant. Thus INNES CJ, having observed (at 62) that "a fact is relevant when inferences can be properly drawn from it as to the existence of a fact in issue", goes on to say (at 63 - 4):

I "But to draw inferences from the actions of a trailing hound as to the identity of a particular individual is... to enter a region of conjecture and uncertainty. We have no scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to be able to follow the scent of one human...