I was just alerted to this. I have no words. Analysis of judgement to come. Does this make the DNA bill meaningless?
Criminal: DNA evidence not enough to convict r ape accused – SCA
The evidence regarding the outcome of tests carried out via the most common DNA testing method used in SA has been held to be circumstantial in a case before the SCA. A report in Beeld says a man convicted of r aping a four-year old girl as a result of positive DNA tests has been freed. In what the report describes as a ‘directional judgment’, five judges held that evidence led about the DNA tests conducted via the so-called STR-method was circumstantial.Evidence that Sandile Bokolo’s DNA was found on the girl’s private parts could not, seen alone, prove his guilt beyond reasonable doubt. The judges pointed out that the DNA samples taken from the child matched those of at least three men, one of them being Bokolo. His conviction and 15-year sentence were set aside.
Full Beeld report
Bokolo v The State (483/12)
Michelle Solomon 
Unfortunately I believe that the Beeld report is incomplete. The judgment can be found: http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2013/115.html
Firstly the appellate court was considering an appeal from a matter where the trial court (Western Cape High Court, Hlope JP sitting alone) accepted as conclusive evidence an interpretation of DNA data presented by the police over testimony from an expert witness for the accused. Secondly the matter relates exclusively to whether an identification of a “mixed sample” and the fact that a particular allele is not showing where expected. In my view that the state expert is actually correct in her interpretation – but not on the grounds of the court a quo – and the proposition certainly supports a reasonable suspicion and a neccesity to charge.
Thirdly and of factual significance “the trial court appears to have found that the appellant raped the girl before she went to church with her mother on the day in question and that she was thereafter again raped by accused 2 and at least one other male. This is highly improbable, on the evidence of the mother of the child and on the general probabilities.” (para 32) The finding of the trial court was to make the narrative fit the exposition of the evidence of the State’s witness rather than other evidence.
As to the sufficiency of DNA evidence, the basic holding of the Court is as follows:
[22] First, the more loci are included in the profile the less chance there is of another person adventitiously fitting the profile.8 Second, statistical calculations of this nature generally make use of the product rule. This rule postulates that the probability of several things occurring together is the product of their separate probabilities. It calculates the numerical probability that a particular profile may occur in a population or, in its alternative form, the numerical probability that a person randomly chosen from that population will possess the same genetic profile. The important point is that the results of these calculations are not absolute.
[23] This brings into play the other evidence in a case. I cannot conceive of a criminal case where there is absolutely no other relevant evidence or evidentiary material. This may range from direct eyewitness evidence implicating the accused to circumstantial evidence as mundane as the proximity of the home of the accused to the scene of the crime. This may of course also include evidence pointing to the innocence of the accused. In the final analysis this evidence determines whether the guilt of the accused has been proved beyond reasonable doubt or not.
And in the present case the trial court could have addressed the fact that the child was in the care of the accused (proximity) and the glaring inconsistency in regarding the rape as arising before the gang rape and murder.
It is my view that the appellate court’s approach is correct at law but nonetheless is unfortunate; rather than addressing the handling of the matter by the presiding officer the judgment can leave the impression (as the Beeld conveys) that it is DNA testing in jeopardy rather than judicial misdirection.
LikeLike