THROUGH THE LENSES- A LOOK AT CIRCUMSTANTIAL AND SIMILAR FACT EVIDENCE

Due to the serious consequences of a criminal conviction, a higher standard of proof is required on the part of the State before an accused is convicted. Unlike civil disputes which are decided on a balance of probabilities, criminal convictions are secured only if the allegations are proven beyond reasonable doubt. As a policy consideration, this is done so as to reduce errors of judgment resulting in innocent persons being sent to prison.

Whilst it is preferred to charge, put to trial and convict an accused based on direct evidence, sometimes the State may decide to proceed on circumstantial evidence.

Circumstantial evidence is evidence whereby the Court is requested to draw inferences consistent with established facts, and thus comply with a certain measure of logic. Owing to the fact that the allegations are not supported by direct evidence, circumstantial evidence must be considered first, decided how much weight ought to be attached to it (probative value), and determined to what extent it may be admissible. If the inference drawn from circumstantial evidence is not consistent with established facts, then the inference should not be drawn at all, as was held in the case of R v Blom 1939 AD 288.

The Court in the case of Pholo vs State (A207/2016) [2018] ZAFSHC 107 (7 June 2018) also referred to the decision in R v Blom as mentioned above;

Firstly, the inference sought to be drawn must be consistent with all the proved facts.  If it is not, the inference cannot be drawn.  Secondly, the proved facts should be such that it excludes every reasonable inference from them, save the one sought to be drawn.  If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.  The two rules referred to above are known as the cardinal rules of logic to be applied when no direct evidence of an offence is available.

In the Pholo case, the Appellant had been convicted of theft based on circumstantial evidence, in the Regional Court (Virginia). The Accused thereafter sought to overturn the conviction in the High Court. The High Court stressed that if the proved facts do not exclude other reasonable inferences, then there must be doubts whether the inference sought to be drawn is correct. According to the Court the proven facts and those which are common cause, did establish one reasonable inference to the exclusion of all others, and that is the fact that Appellant stole the money. Therefore, the conviction and sentence were upheld.

On the other hand, similar fact evidence has the aim that the accused conducted himself in a similar way before, much alike as alleged in the circumstances in consideration at present, and thus the Accused has the propensity to behave in that particular way. This type of evidence is generally inadmissible because its prejudicial effect outweighs its probative value. However, where its probative value is high, similar fact evidence will be admissible in a Court of law.

In Makin v Attorney-General for New South Wales a husband and a wife were charged with the murder of a young child. The child’s body had been found buried in the garden of the house that the accused occupied. The prosecution adduced evidence to the effect that skeletal remains of other children had been found in the gardens of homes previously occupied by the accused. Four other women had previously given their babies over to the accused for adoption as well, and those children had vanished. In this case, it was reasoned that evidence will be inadmissible if the court is invited to decide a guilty verdict solely on the basis of ‘propensity’ of the accused. However, this evidence was admitted to disprove that the children had died of natural causes. Further, there must be no likelihood of coincidence with regards to the connection and similarity of the similar-fact evidence. This was expressed also in R v Bond (1894) AC 57 whereby it was held that it was no coincidence the children constructed the same lie with regard to sexual assaults of a homosexual nature. The issue of degree of similarity was also pointed out in DPP v Boardman 1975 AC 421 whereby it was stressed that the degree of similarity must not be one which is similar in ordinary way, but rather it should be striking.

In conclusion, these two categories of evidence should be approached with caution, their ‘probative’ value should always be imperative especially in criminal cases.

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