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					State v Van der Vyver 2007

(Extract from unofficial translation)

THE FINGERPRINT ON THE DVD COVER

[113] The allegation that the accused’s fingerprint was found on a DVD cover in the

deceased’s apartment was controversial even before the trial commenced. Early on, the

defence had already described it as fabricated evidence, which brought the fairness of

the case against the accused into question. As mentioned, the deceased rented a DVD

from The Video Place at 15:07 on 16 March 2005. Thereafter she took it out of its cover

at her apartment and placed it in the DVD player, where it remained until her body was

discovered that evening. The empty cover lay open on a little table next to the couch

where her body was lying. If it was indeed the accused’s fingerprint on it, it would mean

that he was at her apartment after 15:07 and not at work. This, of course, would have

destroyed his alibi.

[114] The fingerprint matter commenced on 17 March 2005 when a team of

investigators from the Paarl LCRC searched for fingerprints at the murder scene.

Inspector Mariaan Booysens treated the DVD cover in question with aluminium powder

and discovered identifiable fingerprints on it. Constable Elton Swartz took the cover to

the counter in the kitchen and lifted the prints with folien. He marked it as folien #1 and

on the back of his crime scene report indicated where and from what he lifted it.

According to Superintendent Bartholomew, who was present on the scene in a
supervisory capacity, he personally witnessed this procedure. While he did not

personally see the fingerprint on the DVD cover, he did see it on folien #1.

[115] Nearly a month later, on 12 April 2005, it was determined that the fingerprint on

folien #1 was that of the accused. In the meantime the investigating officer, Inspector

Deon de Villiers, had already returned the DVD cover to The Video Place on 24 March

2005. According to Superintendent Bartholomew it was done with his approval and on

the basis of a departmental guideline that, once the print is on folien, the folien becomes

the exhibit in place of the object from which it was lifted. For practical reasons the

police could not keep everything from which they lifted prints because it would lead to a

serious storage problem. That is utter nonsense. I have on more than one occasion during

the course of the trial made my serious disagreement with this procedure known. To me

it is farfetched that the police could willy nilly cede possession of such an important

exhibit. It goes without saying that the defence should have been afforded the

opportunity to investigate the original cover further. The accused cannot be blamed for

feeling compelled to argue in his plea explanation that his constitutional right to a fair

trial could have been infringed by this. According to him, not only had the police

irregularly, and apparently in contradiction with standing orders, neglected to take a

photograph of the print on the DVD cover, but their returning the cover to the store

could amount to the destruction of materially important evidence.

[116] The essence of the accused’s allegation of fabricated evidence was that, even

though he admitted that his fingerprint appeared on folien #1, he denied that it originated
from a DVD cover. He submitted, with reference to a number of expert opinions, that the

fingerprint originated from a glass and that it was incorrectly described as having been

lifted from a DVD cover. This led to a series of varying opinions.

[117] The first opinion was that of Mr Daan Bekker, a forensic investigator and trained

fingerprint expert from Pretoria, who investigated and studied folien #1 on 25 November

2005. In his report to Adv de Bruyn dated 29 November 2005, Mr Bekker arrived at the

conclusion that the fingerprint thereon could not possibly have been lifted from a DVD

cover. He based this opinion on a number of considerations, one being that he found it

odd that the only identifiable fingerprint on the cover would be that of the accused. He

would have expected there would also be, for example, prints of the deceased or the

clerk at the video store or of previous customers who have rented the DVD, on the

cover. In that case, the accused’s fingerprint would have been contaminated with the

prints of these people, and would barely have been identifiable.

[118] The state called for the help of Director Ruben Botha, the Provincial Head of the

LCRC in the Eastern Cape, to respond as an independent expert on the finding of Mr

Bekker. During December 2005, assisted by Superintendent V L C Meyer, he

investigated folien #1 and other materials before considering and addressing the bases of

Mr Bekker’s opinion point-by-point. His conclusion was: "Very possible that the

fingerprints lifted by Constable Swartz originate from open DVD holder as found on

coffee table on top of magazines". However, in his testimony before this court, he added
a gloss to this when he said that not only was it “very possible”, but also “very likely”

that the fingerprint on folien #1 originated from the DVD cover.

[119] The defence’s answer to Director Botha’s report and finding was to present an

expansive report by Mr Pat Wertheim from Tucson, Arizona in the USA. He is widely

regarded as one of the most well-recognised fingerprint experts in the world. It was in

fact he who unambiguously expressed the opinion that folien #1 represented fabricated

evidence, as it appears from his conclusion in paragraph 71 of his report dated 20 August

2006:

In summary, after a thorough analysis of lift #1, the folien represented as having been
lifted from a DVD case, after evaluating lift #1 in light of the reports of Mr Bekker and
Mr Botha, and after numerous experiments on a variety of drinking glasses, it is my
conclusion that lift #1 was taken from a drinking glass and was intentionally mislabeled
as having come from a DVD case. Lift #1 has all the characteristics of fabricated
fingerprint evidence and, in my opinion, is intentionally fabricated fingerprint evidence.

[120] The state followed by requesting Superintendent Keith Rance from the Ballistics

Unit of the Forensic Science Laboratory to carry out tests on the folien and DVD cover.

In his report, dated 15 November 2006, his finding was:

After a visual examination of the exhibits mentioned above, I concluded that a physical
match of these items is not possible, due to the incompatibility of the materials for such
an examination.

[122] Eventually the matter was referred to Senior Superintendent Roger David Dixon, a

Control Forensic Analyst attached to the Scientific Analysis Unit of the Forensic Science

Laboratory. In a sworn affidavit, dated 12 December 2006, which he made in terms of

section 212 of Act 51 of 1977, Senior Superintendent Dixon referred to detailed tests he

did, using all the relevant materials, including folien #1. In the process he performed
tests on various DVD covers and glasses that were obtained from the deceased’s

apartment, four of which had the same height as the distance between the two curved

lines visible on folien #1. With one of the glasses (glass 8) he performed a drinking

action with a view to replicate the apparent lip mark, which appears towards the top of

the folien. He furthermore arranged for Constable Swartz to demonstrate to him how he

lifted the fingerprint appearing on folien #1, from the DVD cover in question.

[123] The main findings from these tests appear in paragraph 7 of the statement. It reads:

As a result of my examination I determined that:
7.1    The curved parallel lines on folien 1, as described in paragraph 3.2.1, are not
       consistent with having come from the DVD cover, as described in paragraph
       3.1.1. These lines are, however, consistent with having come from one of the
       four matching glasses described in paragraph 6.4.
7.2    The background density of the aluminium powder on folien 1 is not consistent
       with having come from a DVD cover. The DVD covers all retain a large amount
       of powder, most probably due to static build up on the plastic. The background
       is, however, consistent with having come from one of the drinking glasses
       described in paragraph 6.4.
7.3    The positions of the finger and the right thumb, as seen on folien 1, is consistent
       with the lift having been taken from one of the four drinking glasses described in
       paragraph 6.4. In addition the lip mark produced while drinking from glass 8 is in
       the same position as that observed on folien 1, above the left fingers.
7.4    The water droplets observed on folien 1 are consistent with water droplets having
       dried on a vertical surface. They are oval in shape with their longitudinal axis
       parallel to the bottom of a glass.
7.5    The concentrations of powder observed on the two parallel lines, as described in
       paragraph 7.1, and in the area in the middle where smearing is observed at right
       angles to the lines, is consistent with an up-and-down brush action while
       powdering a drinking glass with a wet surface. The concentration of powder on
       the lower line is not consistent with the line having been produced as a result of a
       first lift from the middle of the DVD cover, representing the edge of the previous
       folien, but rather consistent with an edge having been powdered.

The final conclusion appears in paragraph 8 of the statement:
In my opinion the black folien described in paragraph 3.2.1.1 was not "lifted from a
DVD" but instead lifted from one of the four glasses described in paragraph 6.4. The
features observed on the folien match test lifts from the glasses, and not those made from
the DVD covers.

[124] This statement and the conclusions at which Senior Superintendent Dixon arrived,

compelled the Director of Public Prosecutions of Cape Town to forward it to Adv de

Bruyn, covered by a letter dated 13 December 2006. The first paragraph reads:

I confirm herewith that the state no longer intends to proceed with the evidence of your
client’s alleged fingerprint on the DVD cover.

[125] That should have been the end of the controversial fingerprint, but the defence

adopted the attitude that this yield by the state did not prevent them from presenting

evidence about the alleged fabrication to the court. In this regard the accused said in his

plea explanation that “the fingerprint fraud taints the state’s case against me”. Elsewhere

he also referred to the report of Director Botha and Superintendent Meyer as “a blatant

and dishonest attempt... to provide support to the obviously misleading attitude of the

SAPS that the fingerprint on folien 1 originates from a DVD cover in stead of a glass.”

[126] In light of this attitude Adv van der Vijver indicated in his opening submission that

the state indeed would not continue with the fingerprint evidence, except in as much as

may be necessary to refute the defence’s allegations of fraud. Unfortunately this lead to

the state presenting a significant amount of testimony about it. That, in turn, led to

protracted cross-examination and, furthermore, to the testimony of two foreign experts,

Mr Pat Wertheim of the USA and Mr Arie Zeelenberg from the Netherlands, being

presented. In essence these witnesses affirmed the findings of Senior Superintendent
Dixon and suggested that somewhere in the procedure followed by the investigating

team, a serious flaw had slipped in. While these experts considered it an intentional

fabrication, it cannot be excluded that it could maybe be attributed to negligence or utter

incompetence. However, it is for present purposes irrelevant, because the merits of the

case can be decided without having to make a finding on this.

[127] It is of course true that in my judgement on the accused’s discharge application in

terms of section 174 of Act 51 of 1977, I was of the opinion that, while the state

indicated that it would not rely on the fingerprint evidence, the testimony and evidence

was before the court and had to be judged on its own merits. This does not mean that the

affidavit of Senior Superintendent Dixon may simply be ignored, even though it has not

been confirmed by verbal testimony. According to section 212(4)(a) and (8)(a) of Act 51

of 1977 his affidavit serves before this court as prima facie proof of the contents thereof.

It could only be dispelled by acceptable evidence to the contrary.

[128] When the state’s evidence is considered, it does not appear as if the testimony of

Director Botha was meant to contradict or neutralise Senior Superintendent Dixon’s

affidavit. On the contrary, his testimony supplemented it to a great extent in the sense

that he could not refute the claim that the fingerprint on folien #1 originated from a

glass. According to him it could also have originated from a DVD cover. He could not

exclude the one or the other.

[129] A similar position appears from the testimony of Captain Jan Albert Bester, who

was attached to the LCRC at Cape Town at the relevant time. According to him he
would, by visual examination of folien #1, not exclude a glass or a DVD cover. The

print on folien 1 was however typical of a glass and the mark on the folien which had

been described as a lip mark, he believed to be a lip mark rather than a finger mark. In

this regard he testified that the best, and indeed the only, person who could testify to it

with certainty, would be the person who lifted the fingerprint, namely Constable Swartz.

This opinion corresponds with the opinion of Director Botha, who similarly testified that

only Constable Swartz could say with any certainty from where the print originates.

[130] Now when the testimony of Constable Swartz is looked at, it appears that at the

relevant time he was with the LCRC for less than two years and therefore had very

limited experience. He was obviously not yet an expert in the field of fingerprints, but

merely, as he put it himself, an “investigator of fingerprints”. The first fingerprint that he

lifted at the crime scene on 17 March 2005 was one which Inspector Booysens pointed

out to him as an identifiable print on the DVD cover. He took the cover to the kitchen

surface and lifted the print, which was on the outside thereof, with folien. He specifically

used folien because Inspector Booysens had used aluminium (silver) powder on it. In his

crime scene report he made a note that reads: "Fingerprint lifted from DVD disc holder

which was found on a coffee table in the lounge of the flat and shows sideways to the

left".

[131] Regarding the exact procedure that he followed, Constable Swartz testified that he

applied two folien to the front outside of the cover, with the opening side to his right. To

indicate the top of the folien, he cut one corner off. He removed the plastic cover from
both folien and then first applied one at the bottom and then the other at the top end of

the cover. There were no identifiable fingerprints visible on the bottom folien. He

therefore put it in his case and later destroyed it. On the top folien there were indeed

identifiable fingerprints. On the back side he affixed a sticker where after he sealed it

with glue and numbered it as folien #1. The only other folien he used, was one with

which he lifted a fingerprint from the glass on the coffee table. This he described as

folien #2. Furthermore he lifted nine surfaces with sticky tape ("scotch tape"). When he

arrived at his office in Paarl later that morning, he wrote the relevant information on the

back of the folien and scotch tape exhibits. He then put it in an exhibit envelope,

together with the crime scene report, and took it to the Automatic Fingerprint

Identification System (“AFIS”) operator for scanning. Thereafter he presented it to

Captain Matheus for his twenty-four hour inspection.

[132] When he was questioned further, during evidence in chief, regarding the

procedure, he said that he had the scanning done before he wrote the relevant

information on the back of the exhibits. After he sent it through for inspection, he never

again had anything to do with it. However, when he was questioned further, he testified

that he did, after the exhibits were photographed, receive the photos for inclusion in the

“giant arch card” which he compiled.

[133] During cross-examination Constable Swartz indicated that it was possible that the

two pieces of folien could have overlapped, in the sense that the bottom of the top folien

passed slightly over the top end of the bottom folien. He could not say with certainty
where exactly the fingerprint was on the cover. No photographs were taken of

identifiable fingerprints at the scene because it had never been done before. In any event

the investigating team, which included fingerprint experts such as Superintendent

Bartholomew, Inspector Booysens and Inspector Coetzee, did not think this was

essential.

[134] Constable Swartz conceded that he violated applicable policy when he did not

write the relevant information on the back of folien #1 and the other exhibits that

morning while at the scene. His explanation was that he entered all the relevant

information on the crime scene report and that it would have been more comfortable for

him to write up the exhibits that afternoon in the office, at leisure. The problem is that he

did not make notes of the times that he lifted the prints on folien and scotch tape, yet

exact times appear on the back of each exhibit. While the times are spread unevenly, he

submitted that he relied on his memory. In any event, they were only approximate times.

[135] Constable Swartz was referred to a sworn affidavit that he made on 18 July 2005

before Director Trollip. In it he said that he could not remember everything that he

handled on the scene. He did however remember that he handled a DVD cover, which

was powdered on both sides. He only used one folien to lift the prints as he was satisfied

that the other marks on the cover were not identifiable. When he placed the folien on it

he used the opening side as the top end. He conceded that he acted in violation of policy

when he did not have the folien and scotch tape exhibits signed by an objective person.

It was his own decision not to take the exhibits to one of the other fingerprint
investigators for signature, because, in his judgment they “were all involved in the

investigation to the same extent”. This, he testified, was “standard conduct” where no

private individual is available at the scene. Clearly he did not consult any of his

colleagues about this.

[136] From this testimony it is clear that Constable Swartz, on his own version,

committed a number of irregularities for which he could not give a satisfactory

explanation. In addition there are material contradictions between his testimony and his

abovementioned sworn affidavit with regard to the number of folien that he applied to

the DVD cover and the position of the opening side thereof at the time the prints were

lifted. As witness he made a poor impression. He was inclined to evasiveness and to give

almost incomprehensible answers to simple questions. In general he could hardly be

regarded a reliable witness.

[137] Captain Matheus did not advance the state’s case at all. According to him it was

he, and not Constable Swartz, who took the original exhibits, including folien #1, to

AFIS for scanning. Apparently he waited for it and, when returned to him, he locked it

in a drawer in his office desk for five days until he took it to be photographed on the

fifth day. There was however no proof that he actually took it to AFIS and he could also

not remember to which person he gave it to be scanned in. The reason why he kept the

exhibits in his desk drawer was that, in such a serious case, senior officers might call to

enquire if there are results, in which case he would be able to give them the correct

information. In cross-examination he altered this reason somewhat by mentioning that he
checked the dates during the recess and determined that it was a long weekend. Senior

officers still called him though, to obtain information from him.

[138] Captain Matheus also made a sworn affidavit, dated 7 March 2006, before Director

Trollip, in which he contends that he received the exhibit envelope from Constable

Swartz on 18 March 2005. After he checked each exhibit and did not find any

irregularities, he sent it to be photographed on the same day. Yet from this statement it

appears later that he only sent it to be photographed on 23 March 2005 and only noted it

in the so-called “folien register” on 29 March 2005. He realised that this was an

oversight on his part to take so long to do it, but he was satisfied that the entries on the

exhibit envelope were sufficient proof of the handling thereof.

[139] Captain Matheus was similarly not an impressive witness. As it appears from his

testimony and sworn affidavit, he was evasive and he often contradicted himself. In

general he presented extremely unsatisfactory explanations for what was clearly

irregular conduct in his handling of the exhibits, including folien #1. His testimony can

by no means be seen as reliable.

[140] From this it follows that the state did not in any way present sufficient evidence to

affect, in the least, the prima facie case as contained in Senior Superintendent Dixon’s

affidavit. This prima facie case was indeed strengthened considerably by the highly

expert presentations of Messrs Wertheim and Zeelenberg. Their intensive knowledge

and expertise, as well as their wide ranging experience which has brought them

international acclaim, came to the fore very strongly in their testimony.
[141] In both their comprehensive reports as well as their impressive testimony, they

underscored point-for-point the findings of Senior Superintendent Dixon’s statement,

and expanded further on it. For present purposes it is unnecessary to deal with it in great

detail, except to indicate that both put it plainly that it was impossible for the fingerprint

on folien #1 to have originated from a DVD cover. They were both of the opinion that it

came from a conical glass approximately eighty millimetres in height. This meant that

the description on the back of folien #1 was wrong.

[142] While both these experts were under the impression, as already mentioned, that

folien #1 represented an intentional fabrication of evidence, it is not, for purposes of the

present matter, necessary to make any finding on that. That there were possibly serious

irregularities which occurred, one or more of which may have lead to the incorrect

description of folien #1, is indeed arguable. There is however insufficient evidence

before this court to find with any certainty that it was due to intentional conduct by the

police. It may, therefore, have been the result of negligence or merely incompetence.

[143] It follows therefore that this court is compelled to find that the state did not

succeed in proving that the accused’s fingerprint on folien #1 originated from the DVD

cover. The probabilities are overwhelming that it did indeed come from a glass, even if it

is not clear from which glass. Of course there rests no onus on the defence to show from

which glass it possibly, or probably, originated. Unfortunately it would have to remain

an unanswered question.

				
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