S v Shabalala

• Jurisdiction: South Africa

S v Shabalala
1986 (4) SA 734 (A)

1986 (4) SA p734

Citation	1986 (4) SA 734 (A)
Court	Appellate Division
Judge	Corbett JA, Trengove JA, Smalberger JA, Nicholas AJA and Nestadt AJA
Heard	May 23, 1986
Judgment	August 28, 1986

Flynote : Sleutelwoorde B

Criminal procedure — Evidence — Admissibility of — Evidence of behaviour of police dog in identifying scent of an accused — Such evidence inadmissible — Probative value C thereof too tenuous — But exclusion of such evidence not absolute — Where untrustworthiness of such evidence is sufficiently reduced, the actions of the dog would become relevant and evidence thereof admissible — Adequate foundation to be laid before such evidence can be held to be relevant and admissible.

Criminal procedure — Evidence — Admissions made by accused during questioning under s 115 of Act 51 of 1977 — D Record of proceedings before magistrate in terms of s 119 handed in as an exhibit under s 122 (4), read with s 235 (1), of Act 51 of 1977 — Although accused cannot object to proof of such record, he is entitled to impugn its voluntariness and challenge its weight — Such is the position whether admissions in record are formal admissions under s 220 of the E Act or merely informal admissions made in terms of s 121 (2) (b) — Where admissions impugned on the grounds of alleged duress, a causal connection between such duress and the statement must be shown.

Headnote : Kopnota

The decision in R v Trupedo 1920 AD 58 held that evidence of the behaviour of a police dog, which had tracked down the F accused after being given the scent of certain footprints at the scene of the crime, was inadmissible mainly because hearsay evidence was involved and its probative value was too tenuous. The judgment did not rest simply on a factual finding concerning the reliability or otherwise of the particular dog whose actions were in issue: it decided that, in principle, evidence of the conduct of dogs, in identifying an accused person by scenting, is inadmissible. It does not follow however G that R v Trupedo is to be taken as the final pronouncement on the matter in all circumstances. Despite the objection to the evidence based on its hearsay nature, its exclusion is not absolute. The principal reason for its exclusion is the untrustworthiness of the evidence. Where, therefore, this element is sufficiently reduced, even though it be not removed, the actions of the dog would become relevant and evidence thereof admissible. It is not possible to define what would H have to be established to achieve this. However, mere proof that the dog came from stock having special powers of discrimination between the scent of one human being and another, that he was of pure blood and possessed these qualities himself and that he had been specially trained in tracking will not suffice. On the other hand, additional evidence explaining "the faculty by which (these) dogs... are... able to follow the scent of one human being, I rejecting the scent of all others", would suffice. R v Trupedo (supra) is therefore binding and the evidence of the behaviour of dogs concerning their scenting ability is inadmissible unless a proper foundation for it is laid.

Admissions made by an accused in a statement made during questioning of the accused in terms of s 115 of the Criminal Procedure Act 51 of 1977 during plea proceedings before a magistrate in terms of s 119 of the Act can be proved at the subsequent trial in the Supreme Court by handing in the record of the proceedings before the magistrate as an exhibit under s J 122 (4), read with s 235 (1), of Act 51 of 1977. Having regard to these legislative

1986 (4) SA p735

provisions, there can be no objection to the record of the A proceedings before the magistrate being proved. At the same time, however, it is clear that such statement of the accused in the record does not absolutely bind the accused: he is entitled to impugn the voluntariness of the statement and thus challenge its weight. This is so, irrespective of the exact status of the admissions forming part of the statement, ie whether they are properly to be regarded as formal ones under s B 220 of the Act, having the effect of dispensing with the need for evidence to prove the facts in question, or, though made coram curia in terms of s 121 (2) (b), merely informal admissions forming part of the evidential material which becomes available to be used against the accused. Where the admissions are impugned on the grounds of alleged duress, there must, naturally, be a causal connection between the alleged duress and the making of the statement containing the admissions. This will not be assumed. C

Case Information

Appeal from a conviction and sentence in the Natal Provincial Division (KRIEK J). The facts appear from the judgment of NESTADT AJA.

N M Fuller for the appellant at the request of the Court: The circumstantial evidence upon which the Court relied is not sufficient to convict the accused because the proved facts were D such that they do not exclude every reasonable inference from them save the one drawn by the Court. R v Blom 1939 AD at 202 - 203. In the absence of proof beyond reasonable doubt that the accused had no prior knowledge of the house and the alleged crime, any pointing out at the deceased's house is not sufficient to convict the accused because such fact does not exclude every reasonable inference save the one sought to be E drawn by the State. In the premises, the evidence of the pointing out was not such that, beyond reasonable doubt, it was the only inference that could be drawn in that the accused had knowledge of the exact position of an implicatory spot because he took part in the commission of the offence. S v Gwevu and F Another 1961 (4) SA at 537E - G.

The evidence of the pointing out by the dog was inadmissible, alternatively no reliance should be placed upon it because such pointing out did not exclude every reasonable inference save the one sought to be drawn by the State. The judgment in R v Trupedo 1920 AD 58 was binding upon the trial Court and G consequently the Court erred in admitting such evidence. Such evidence is inadmissible because it is hearsay evidence and does not fall within the ambit of any of the recognised exceptions to the hearsay rule. The trial Court held that a proper foundation for the reception of such evidence would include evidence as to the handler's qualifications and H experience. In the present case the only evidence on this aspect in regard to Sgt Collen is that he was a dog handler and that he had handled the dog "Tilly" for a period of between 15 and 21 months. There was no evidence of his qualifications or other experience. If admissible, such evidence should not be relied upon because it would be dangerous to do so in the I absence of more scientific investigation into its reliability.

B G Morrison for the State: The circumstantial evidence upon which the Court a quo relied was sufficient to convict the appellant. The inference that the appellant commited the crimes in counts 1,2 and 3 is consistent with all the proved facts and the proved facts exclude every reasonable inference save this inference. R v Blom 1939 AD at 202 - 203. Each proved fact J must not be taken in isolation. It is not each proved fact

1986 (4) SA p736

A which must exclude all other inferences; the facts as a whole must do so. R v De Villiers 1944 AD at 508. The compound result of all of the proved facts points to the conclusion that the appellant committed the crimes in question. If the Court erred, it erred in the appellant's favour by adopting an over-cautious approach towards the s 119 proceedings.

B The appellant's defence was an alibi. Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 218 (Notes). It is trite law that, where an alibi is raised, there is no burden on the accused to prove his alibi. The onus rests on the State to prove his alibi is false. R v Biya 1952 (4) SA at 521D - E; R v Hlongwane 1959 (3) SA at 340 - 1; Hiemstra (op cit at 219); S v Nunu 1979 (1) PH H14. It was proved beyond any reasonable C doubt that the appellant's alibi was false. The effect of the falseness of an alibi on an accused's case is to place him in a position as if he had never testified at all. See R v Dhlomo 1961 (1) PH H54. What one is left with after the rejection of the appellant's alibi is the following: (i) The fact that the blood belonging to the same group as the blood D grouping of both the deceased and her husband and different from the appellant's own blood group was found on the appellant's overall; (ii) the fact that a hair similar to the deceased's hair was found on his overall; (iii) the pointing out of various spots depicted in the E series of photographs in exh E by the appellant to Lieutenant Myburgh; and (iv) the "identification" of the appellant by the police dog.

E The trial Court found that it was satisfied that the appellant could only have acquired the knowledge demonstrated by the pointing out by having been involved in the commission of the crimes and not by having acquired the knowledge from someone else. The trial Court's finding in this regard is correct. Furthermore, the evidence of the pointing out by the F appellant was satisfactory in every respect and beyond suspicion. S v Gwevu 1961 (4) SA at 537E - G. Furthermore no evidence of accompanying statements during the pointing out was led. S v Magwaza 1985 (3) SA at 39F - I. The appellant's allegations that he had been assaulted were false.

As to the pointing out of the appellant by the dog, the Court a G quo was correct in saying that this evidence was part of the evidential material. However the Court a quo did not attach very much weight to this evidence. This evidence merely forms another link in the chain of circumstantial evidence inplicating the appellant and for...