Blignaut v R (1 of 2003) [2004] SZSC 27 (26 November 2004)

his co-operation, despite the inconvenience. Fortunately, subsequent events allowed the Court to commence this session the very next day and this appeal was duly enrolled for immediate hearing and both Mr Kuny and Mr Maseko, for the Crown, were able to assist us with their submissions.

The appellant, Sean Blignaut, was convicted of murder and was sentenced to 20 years imprisonment. He has appealed against his conviction and his sentence.

The deceased, Tanya Grobler, and the appellant were cousins, their respective mothers being sisters. At the time of her death the deceased was 22 years old, one year younger than the appellant. Her home was in Zimbabwe where her family live. The appellant lived at home with his parents in a large double storey house in Mbabane.

There is no evidence of any animosity between the appellant and the deceased. On the contrary, the evidence is that they got on very well together and that the appellant was fond of his cousin. When she was killed she was on a short visit to the appellant's family and had been with them for about a week before the night of her death.

Earlier that night the deceased and the appellant and two of the appellant's friends had spent a convivial time together, dining at a hotel and thereafter socialising at a popular meeting place in town. One of the two friends of the appellant was a Mrs Jackie De Sousa who lived next door to the Blignaut's house and who was romantically involved with the appellant. She returned home that night a little after 1.30pm in the appellant's car, together with the appellant and the deceased. She alighted at her gate and the appellant and the deceased drove into the Blignaut property.

Shortly after 3.30a.m. the appellant's mother phoned Mrs De Sousa and asked her to come immediately to the Blignaut's house. Mrs De Sousa did so and found the deceased lying dead on her blood soaked bed with her throat cut. The appellant was rocking on his

haunches in the passage opposite the deceased's bedroom door in a distressed state. He had lacerations on his hands and superficial injuries to his neck and chest and his clothing was blood stained.

The only direct evidence of what had occurred was that of the appellant. He testified that the deceased and he went to the kitchen on arriving home to get glasses of water to take up to their bedrooms. While in the kitchen the appellant noticed that the top half of the stable door, which his mother had asked him to close before he went out that night, was still open as he had forgotten to do what his mother had asked. He locked it and he and the deceased went upstairs to go to bed. Their bedrooms were adjacent to each other. The appellant went to sleep in a pair of Bermuda shorts and a T-shirt as well as the underpants that he had been wearing.

Some time later he was awakened by a scream. He got out of bed and went to the doorway of the deceased's bedroom to see what the matter was. There was sufficient light from the window for him to detect a human form on the deceased's bed on top of her. He rushed into the room, dived on the bed and grappled with this person, whose strength and agility indicated to the appellant that it was a male intruder. The man had a knife and after a struggle on the deceased's bed the intruder freed himself from the appellant and got off the bed on the far side of it. The appellant then backed away towards the bedroom door to block the man's escape, but the intruder came rushing at him waving the knife before him and the appellant fell back into the passage. The intruder ran past the appellant, ran into the appellant's bedroom and the appellant heard the crash of breaking glass. The appellant's shouts awakened his parents who emerged from their bedroom. The appellant saw that the large centre pane of glass in the window of his bedroom had been smashed and on the lawn beneath the window he saw a large knife. There was no sign of the intruder.

The evidence of the appellant reads well and appears, as Mr Kuny submitted, to have been given in a coherent, consistent, straightforward, articulate and respectful manner. Mr Kuny contended that there are no material contradictions or inconsistencies to be found in the appellant's evidence, and he was not shown to have been untruthful in any material respect. A careful examination of the appellant's testimony supports these contentions, with one exception. The only exception is a denial by the appellant of an assertion by Mrs De Sousa that before they returned home that night the appellant bought some crack cocaine and tried unsuccessfully to smoke it in the car. It is very unlikely that Mrs De Sousa, who was quite definite about this, would have either lied or been mistaken about it. It is not apparent however that this blemish in the appellant's evidence has any material bearing on the Crown case, and counsel for the Crown has at no stage suggested that it might have.

In the light of the favourable impression that one obtains from an examination of the transcription of the appellant's evidence, it comes as no small surprise to read in the learned trial Judge's judgment that he thought that the appellant was "a shifty, unsatisfactory witness who was lying and trying to mislead the court."

Ordinarily the advantage that the trial court has of seeing and hearing a witness provides an important check on departing from findings of credibility that have been influenced by demeanor. But in the instant case the learned trial Judge enumerated a number of aspects of the appellant's evidence which he regarded as demonstrative of untruthfulness. Mr Kuny submitted that in every instance that the learned trial Judge fastened on, the criticism that he directed at the appellant's evidence was unjustified and stemmed from an armchair, over-critical and unrealistic approach to the appellant's recollection of events which were as dramatically alarming and fast-moving as the ones he described to the court.

I am persuaded that Mr Kuny is correct, and I am satisfied that the learned trial Judge misdirected himself in his evaluation of the appellant's evidence. It is unnecessary to burden this judgment with an enumeration of each one of these misdirections because Mr

Maseko, who appeared for the Crown, deliberately chose not to address any argument to us concerning these submissions by Mr Kuny, although we pointedly invited him to do so. I shall however cite just one example to illustrate the armchair approach that the learned Judge adopted when he evaluated aspects of the appellant's evidence. He said:

"He had grave difficulty explaining if Tanya made any movements whilst the intruder was on the bed on top of her, attributing this to the fact that his concentration was on the intruder and not on Tanya. He could also not give an exact answer as to which part of Tanya the intruder was sitting on because it was dark. When reminded of the light coming through the window he then confirmed that he could see where Tanya was from that light but his attention was not focused on the position of the intruder on Tanya. He was focusing on the intruder. He could not explain how he could separate the two."

In the absence of any other direct evidence to contradict what the appellant told the court (and what, incidentally, he appears to have said consistently all along from the very outset), and in the absence of any inherent weaknesses in his evidence to justify its rejection as unreliable, the only way in which the guilt of the appellant can be proved beyond a reasonable doubt is by circumstantial evidence of so conclusive a nature that there can be no reasonable possibility that the appellant's account of a violent knife-wielding intruder in the deceased's bedroom can be true. And that, indeed, is what the Crown contends. It therefore becomes necessary to examine carefully the circumstantial evidence.

The Blignaut property is protected by a painted wall which is topped with an electric fence. An electronically controlled gate in the perimeter wall permits entry by motor vehicles and by pedestrians. At an inspection-in-loco however, the appellant successfully demonstrated to the court how the wall and the electric fence could be scaled, both from without and from within the property. It was also his evidence, corroborated by the Crown witness De Sousa, that he frequently used this means of leaving and of returning to the property at night when he and De Sousa wished to meet without the knowledge of the appellant's father, who disapproved of their relationship.

As for the electronically controlled gate, the appellant's father demonstrated to the court that it could, by using manual force, be pushed open sufficiently to allow a person to enter.

Accordingly the reasonable possibility cannot be excluded that entry to the premises could have been gained either by going over the wall and electric fence, or by forcing open the electronic gate.

In an attempt to prove that this did not in fact occur that night, the Crown relies on evidence that a careful inspection of the painted surfaces of the wall was made by a Police Officer that morning after daybreak to see if any sign could be found of someone having scaled the wall either on the way in, or on the way out. There was a considerable amount of rain off and on that night and the Police thought that there would be muddy marks on the surface of the wall if an intruder had gained entry or exit that way. No such marks could be seen on the wall.

There is no evidence that someone scaling the wall would necessarily have had to put the soles of his shoes against the vertical surface of the wall, nor does that seem to be a safe assumption. But even if such a mark would have been left, either on entry or on exit, there is no evidence that no rain fell thereafter, so the reasonable possibility that any muddy mark that may have been left could have been washed off by rain before the Police inspected the wall after daybreak cannot be excluded.

The Crown relies on Police evidence that no muddy marks could be found inside the house either. However, except for the area between the electronic gate and the entry to the house itself, which has a concrete surface, the rest of the ground between the perimeter wall and the house is covered in lawn with some flower beds, and it is by no means certain that an intruder would necessarily have entered the house with muddy shoes.

A further circumstance on which the Crown relies is that the Blignaut family had three aggfessive dogs which had kennels and which could roam the property, and there is nothing to indicate that they barked during the night. There is however, nothing to indicate that they did not bark that night. Mr and Mrs Blignaut were subpoenaed to give evidence for the Crown, but they were not called to do so. It cannot even be safely assumed that the dogs were left outside that night in the rain. Mrs De Sousa saw no sign of them when she arrived at the house at about 3.45a.m.; nor were they mentioned by Dr Mills who arrived some ten minutes after Mrs De Sousa; nor by the Police when they came at much the same time as Dr Mills. Presumably therefore, the dogs must have been shut up somewhere, perhaps in the garage, but whether this was done just before Mrs De Sousa and the others came, or whether it was done earlier, possibly because of the weather, was never explored in the evidence. Crown counsel did not even think to question the appellant on that aspect. The mere fact that the Blignaut family owned three dogs was therefore not shown to have any relevance to the events of that night.

The same has to be said of the evidence that the interior of the Blignaut house was fitted with an alarm system. It was not shown by the Crown that the alarm system was in fact in operation that night. Presumably Mr Blignaut or his wife would have known whether or not it was but, as I have said, neither of them was called by the Crown. In the course of his evidence, the appellant said that it was not in operation. He said that when they used to keep it in operation there would from time to time be false alarms which involved the family in wasted costs because the security company would arrive in response to such accidental setting-off of the alarm. Accordingly, he said, the alarm system was only in operation when the house was going to be left empty. He was disbelieved by the trial court because there was evidence from the security company that the previous night a false alarm had been triggered, and on the morning of the deceased's murder the security company was called to the house shortly after 4am.

Why this should be considered sufficient to show that the appellant's evidence is to be disbelieved escapes me. The previous night the family might have activated the system if they had gone and left the house empty, and on their return they may not have de-

activated it within the limited time allowed for doing so. Or it may have been due to an unintentional press of a panic button. There simply is no evidence of what happened the previous night to justify a rejection of what the appellant said. As for the summoning of the security company after the murder of the deceased had aroused the family, nothing less is to have been expected. The alarm system would surely have been resorted to, whether or not it had been switched off, after the murder of the deceased was discovered.

If the interior alarm system might not have been in operation that night there was ample evidence that it was reasonably possible for an intruder to have entered the house undetected. He could have entered via the open stable-door that led into the kitchen if he had entered before the appellant and the deceased arrived home. He could also have entered through a kitchen window left open above the sink to allow the family cat to go in and out. He could even have entered through a first floor window that may have been open because access to those windows could be gained without difficulty from a high point in the garden from which an intruder could get onto a portion of the roof that permits those windows to be reached.

The next circumstance relied on by the Crown rests upon Police evidence that the wet lawn underneath the smashed window pane in the appellant's bedroom bore only a small indentation, consistent with having been made by the heel of a shoe. It was the evidence of Police witnesses that if a man had exited from that window the surface of the lawn would have shown much larger indentations.

The weight to be given to that evidence is very problematical. It was nothing more than opinion evidence which was not given by anyone qualified to pronounce an expert view on the matter. If an intruder, having smashed the window pane, had then hung from the window ledge and so dropped to the lawn, as was shown to be possible, the force required to make large indentations would have been much less, and it cannot be said that the appearance of the surface of the lawn proved, that it was not reasonably possible for a person to have escaped from the house through the smashed window in the appellant's bedroom.

The~Crown and the defence both called forensic expects to give evidence concerning the bloodstains on the clothing worn by the appellant.

Mrs De Sousa and Dr Mills testified that when they arrived they found the appellant clad in a T-shirt that was spotted, both front and back, with blood, and in a pair of Bermuda shorts the front of which was soaked with wet blood. Dr Mills said that the cuts to the appellant's hands were bandaged (Mrs De Sousa had bandaged them before he arrived). He loosened the bandages and found them dry, and the cuts, which he described as "fairly superficial," were not bleeding. The other superficial injuries to the appellant's neck and chest were also not bleeding, "just oozing a little." The amount of blood on the Bermuda shorts was inconsistent with the nature of the injuries that Dr Mills examined.

After Dr Mills had examined the appellant's injuries Mrs De Sousa assisted the appellant to undress and to shower. Beneath his Bermuda shorts he was wearing a pair of underpants which were also bloodstained. Mrs De Sousa put this bloodstained clothing on the floor in a heap. Dr Mills suggested that the clothing should be handed to the Police, and the three items of clothing, wet with blood, were then put into a plastic bag jumbled together and handed to the investigating officer. He in rum handed the plastic bag to another Police officer later that day, who extracted them from the plastic bag and put the three items into separate packages and sent them to Pretoria for analysis.

In Pretoria portions were excised from each item of clothing and the blood thereon was analysed. The samples that were excised and analysed showed that the blood on the samples taken from the underpants was that of the deceased only, while that on the samples taken from the Bermuda shorts and from the spotted T-shirt was that of the appellant only.

The expert witness called by the defence said that it is inconceivable that all the blood on the appellant's underpants could have been that of the deceased only, and that all of the blood on the Bermuda shorts could have been that of the appellant only. The fact that

these items of clothing were worn together while wet with blood, then thrown together on the tloor while wet with blood, and finally put together in a plastic "bag while wet with blood, made transference of blood from one item to the other inevitable, so that the inference to be drawn from the results obtained by the sampling done in Pretoria is that the sampling was incomplete. That inference is supported by evidence that a number of other items that were sent to Pretoria for analysis were never analysed because the officer who was tasked to do so considered it unnecessary to incur the expenditure that would have been involved.

That conclusion, to which the forensic evidence points, is not at all inconsistent with the appellant's account of what occurred. Diving onto the deceased's bed that was saturated with her blood, and grappling with the intruder while on the bed, would necessarily have brought his Bermuda shorts into contact with the wet blood of the deceased and would explain why his shorts were seen by Dr Mills to have so much more blood on them than could be explained by the fairly superficial injuries that he found on the appellant. Moreover, the inevitability of transference of wet blood from the Bermuda shorts to the underpants beneath them would also explain why the deceased's blood was found on samples taken from those underpants, and incomplete sampling renders questionable the finding that ah the blood on the appellant's shorts was his.

The learned trial Judge's treatment of the evidence relating to the appellant's bloodstained clothing is affected by an unfortunate misdirection. At one stage when being cross-examined the expert witness called by the defence said that a way in which the appellant's underpants could have become stained with the deceased's blood would be if he had been wearing only the underpants when he came into contact with the deceased's blood. But the expert's acceptance of so obvious a proposition was never intended to suggest that this was to be understood as what in fact must have happened, which is what the learned trial Judge wrongly construed it to mean. There always remained the witness's insistent evidence that, because of the inevitability of transference, there was another way in which the underpants would have been stained

with the blood of the deceased. The misdirection is apparent from the following extracts of trie trial Court's judgment:

"On the shorts was the accused's blood only, whereas the underwear contained the deceased's blood only. There is no way of explaining this than as DW 1 suggested, namely that at some stage, the accused was wearing his underwear only when he came into contact with the deceased's blood. I agree with this inference which renders the accused's story false and misleading. It is accordingly rejected. " (Emphasis added)

"How so much blood" (there was some blood on the floor area outside the bedrooms, in addition to the blood on the appellant's clothes) "when the evidence is that his wounds were not bleeding much and blood from his hands was soaked into the shirt and shorts? This is a mystery and points to one conclusion that (the) scene was seriously simulated by the accused either alone or with some assistance. The latter appears more attractive and probable though."

"It can also reasonably be inferred that after killing the deceased the accused then simulated the scene by inflicting the injuries on himself and may have been assisted in this regard. He somehow got his own blood and sprinkled it on his own clothes and then put them on. This explains why the blood analysed on the underwear was the deceased's own, whereas that on his clothes was his own." (Emphasis added).

With respect to the learned trial Judge I fail to grasp how he could find that the appellant had "somehow got his own blood" in the quantity in question when all the evidence showed that the appellant had no injury that could have furnished so much blood. Still less can I fathom how the learned trial Judge could have found it possible, even probable, that the appellant was assisted in some mysterious way to have "simulated the scene" with so much of his blood. The only other people in the house were the appellant's parents, and it is far-fetched in the extreme to postulate that they may have conspired with the appellant with not a word of evidence to suggest that.

The'only other significant piece of evidence arising from blood analysis is that traces of blood found on the carving-knife that was recovered from the lawn beneath the smashed window-pane were found to be blood of the deceased and also of the appellant. This takes the matter no further for the Crown however because the appellant's evidence is that the intruder was armed with that knife when they grappled and the appellant was cut on his hands.

Finally on the question of injuries the Crown sought to rely on injuries to either side of the appellant's neck which Dr Mills said were lacerations caused by a sharp instrument. In other words, they were cuts, although only skin deep. Eight months later an experienced investigator of violent crimes was shown photographs of these cuts and he thought they were probably self-inflicted.

Assuming that Dr Mills was correct in saying they were cuts (another Doctor who examined them said they were abrasions), the assertion that they were probably self-inflicted is nothing more than an opinion not based upon any expert qualification. Even if it were admissible, its weight is of little consequence and can hardly be used to discredit direct evidence that the injuries were caused in the course of struggling with an assailant armed with a knife. Neither of the Doctors was asked to express an opinion as to the possibility that the appellant's injuries were self-inflicted.

Reliance was also placed by the Crown on the absence of any cut to the material of the appellant's T-shirt, but it is not apparent from the photographs showing the location of these injuries to the appellant's neck that they would have been covered by his T-shirt during the time he was grappling with the intruder. As for the marks on his chest, these appear to have been mere abrasions, and not lacerations such as would have involved cuts to the material of the shirt.

There remains the evidence that the carving knife found on the lawn beneath the smashed window pane belonged to the Blignaut family. Also lying on the lawn near the knife was a sharpener of the same design as the knife.

Just whereabouts in the house this knife and sharpener would have been before they were taken upstairs was, for some extraordinary reason, never explored by Crown counsel. There was reference to a hearsay piece of information gained by the Police that the knife and sharpener would have been in an open box in the kitchen, into which room an

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intruder could have gained access through the open window, or the unlocked stable door, previously mentioned.

Whether the deceased's throat was cut by an intruder, or by the appellant, the presence of the sharpener is difficult to understand. On the face of it, it would seem to be more unlikely for an intruder to have armed himself with a knife and sharpener kept in the house, than for the appellant to have done so. If an intruder had gained access to the house with homicidal intentions, one would expect him to have come with his own weapon rather than to have arrived unarmed and have to rely on finding a suitable weapon in the house.

In this regard there is the evidence of Dr Mills that he discovered in the deceased's bed between the duvet and the mattress, a large knife, apparently not belonging to the Blignaut house, which the Police had not found. He took it to Mr Blignaut who at once gave it to the investigating officer.

Regrettably, it has to be said that the investigation done by the Police at the scene of the crime leaves a very great deal to be desired. Astonishingly, the investigating officer displayed no interest whatsoever in information that this knife was found in the deceased's bedding, and he was actually reluctant to take possession of it. No forensic examination was ever conducted of that knife; nor of any of the blood-stained bedding or clothing of the deceased; nor of the shards of broken window-pane glass that were still in the window, on the floor of the room, on the ledge outside the window, and on the lawn

below the window. Such forensic tests might have gone a long way towards either disproving or confirming the evidence of the appellant that there wa$ an intruder on top of the deceased and that he smashed the window in the appellant's bedroom and escaped through it.

Finally there remains the question of a motive. It has already been said that the evidence was that the appellant and the deceased were on very good terms with each other. The Crown never thought to investigate the possibility that the appellant, who did not succeed

in smoking crack cocaine in his car, may have done so after arriving home. If he had done so, medical evidence might have revealed what relevance, if any, that may have had on subsequent events. As matters stand, there is no evidence of a motive on the appellant's part to have cut his cousin's throat, only speculation.

Equally, there is no evidence of what motive an intruder may have had to do so. The deceased was a visitor to Swaziland and not known to many people locally. If an intruder was a would-be burglar, nothing was in fact stolen from the house, and in any event such a purpose for gaining access to the house would not seem to offer any reason for murdering the appellant in her bed.

The possibility of a sexual motive, either for the appellant, or for an intruder, was not investigated. The deceased appears to have been in a menstrual period at the time of her death because a tampon was recovered from her vagina. The tampon and vaginal swabs were sent for analysis by the pathologist who performed the post mortem examination, but nothing more was said of them in the evidence led at the trial, and whether there was any sexual interference with the deceased is unknown.

It is trite that the cumulative effect of a number of incriminating probabilities may suffice to eliminate any reasonable possibility of innocence, even though each and every individual probability is on its own not strong enough to do so. But when reasoning by inferences drawn from circumstantial evidence the touchstone remains the two cardinal rules of logic enunciated in the leading case of Rex Vs Blom 1939 A.D. 199. Those two

rules are that the inference sought to be drawn must be consistent with all the proved facts; if it is inconsistent with any one proved fact it cannot be drawn. And the second rule is that it must be the only inference that can be drawn from the proved facts; if another one or more reasonably possible inferences can be drawn from those facts one cannot know which is the correct inference to be drawn.

For the reasons that I have given I consider that one is compelled to say that each one of the inferences that the Crown seeks to draw from the proved facts is not the only inference that can be drawn. They are probable inferences, some more persuasively so than others, but none of these are the only inferences; and in some instances there is an inconsistency between the inference sought to be drawn by the Crown, and the proved facts. A notable example of this is the inference that the Crown sought to draw, and which the learned trial Judge in fact drew, from the bloodstained clothing of the appellant. That inference flies in the face of the evidence that proved the inevitability of transference of blood on the shorts and underpants of the appellant.

Weighing the cumulative weight of the probabilities that have been described against the direct evidence of the appellant, the reasonable possibility that an intruder may have murdered the deceased cannot be safely excluded. While the circumstantial evidence is consistent with the guilt of the accused it is not wholly inconsistent with the reasonable possibility of his innocence.

Accordingly the appeal is allowed and the conviction and sentence are set aside.