The inadmissibility of Roger Dixon’s Section 212 Affidavit (Part 3 – Final)

Chain of Custody

The drinking glasses Roger Dixon used in his experiments, and which he claimed, were collected from Inge’s flat, do not meet the chain of custody requirements of the Act.

Dixon’s final conclusion, verbatim:

In my opinion the black Folien described in paragraph was not “lifted from a DVD” but instead lifted from one of four glasses described in Paragraph 6.4. The features observed on the Folien match test lifts made from glasses and not those made from DVD covers.

The four glasses described in Paragraph 6.4 are a set of identical glasses and were part of the eleven (11) glasses Dixon claimed were collected from 21 Shiraz, Inge Lotz’s flat.

Dixon’s affidavit makes no mention of chain of custody evidence for the 11 glasses purportedly collected from 21 Shiraz by the police and delivered to Dixon by Captain Van der Westhuizen.

In Par 5 of his affidavit Dixon said :

.... in order to conduct tests of various DVD covers ......., and drinking glasses collected from the scene at 21 Shiraz Flats, Klein Welgevonden Estate, Clotesville ...

The fact is that these drinking glasses were NOT collected from Inge’s flat – but instead from the home of her mother Juanita Lotz in Welgemoed. Sometime after her daughter’s death, Mrs. Juantia Lotz, with the assistance of a friend, cleared away all of Inge’s belongings in the flat and took them to her house in Welgemoed, drinking glasses included.

Mrs. Lotz testified under cross-examination that she gave the police a single ‘prototype’ of each type of glass that Inge owned. Supt Ruben Botha said in a sworn statement that he and Dir Attie Trollip visited Mrs. Lotz on 14 December 2005 regarding the glasses.

So if Mrs. Lotz gave only a single ‘prototype’ of each glass – why did Dixon have 4 identical glasses? Where did they come from?

Even defence expert witness Pat Wertheim testified about the lack of proper chain of custody evidence:

“M’Lord, I was advised that the drinking glasses in Inge Lotz’ flat, many of them had been retrieved by her family, rather than collecting at the scene, the police had recovered them from her family at a later date. Again there’s no continuity, there’s no chain of custody, there’s no provenance to a drinking glass received from the Lotz family that might have come from Inge’s flat.” (Page 3046 Lines 3 to 9)

Dixon made a definitive and far-reaching statement in a Section 212 Affidavit, and which the Court had to accept as factual evidence, that Folien #1 came from one of 4 glasses that were removed from the scene at Inge’s flat, in spite of the fact that there was no evidence that the police removed these glasses directly from Inge’s flat, and in spite of the fact that these glasses had no chain of custody evidence.

The importance that a Section 212 must prove the chain of custody was emphasized by the Court of Appeal in Sithole vs. State (2012) – Case Number: A1051/11.

Sithole vs. State (2012) – Case Number: A1051/11

During the criminal trial, the accused was found guilty of raping a 14-year old girl and sentenced to 18 years in prison. The State’s case rested on a Section 212 Affidavit, which stated that the accused’s DNA matched the DNA of a child that the victim gave birth to after the rape. During the criminal trial, the Defence challenged the chain of custody of the blood sample that was taken from the accused, claiming that it was “tampered” with. The Defendant’s lawyer, however, was unable to prevent the Court from accepting the Section 212 Affidavit and accepting the contents thereof as prima facie evidence. The sentence was appealed (Sithole vs. State (2012) – Case Number: A1051/11). The Appeals judge found that the Section 212 Affidavit was inadmissible because it contained insufficient evidence to prove the chain of custody.

“3.1 During the course of my official duties on 2010-08-10, I received the case file and thereafter interpreted the DNA results of the crime scene and reference sample pertaining to SASELAMANI CAS 31/09/09 (LAB No 178134/09 [2009110485]) by process requiring competency in Biology.”

This Paragraph does not say from whom he received the case file containing the reference sample and the results of the DNA analysis. This is what the judge thought of it:

Regarding the receipt of the exhibits at the laboratory, the statement lacks any reference from whom the samples were received. Section 212(8)(a)(ii)(aa) clearly requires that the "person, institute, State department or body" from whom the exhibits were received, has to be specified. The mere reference to a "case file" and "SASELAMANI CAS 3109/09", although it has the appearance of a police docket reference, is in my view insufficient proof of the identity of the entity or person who packed, marked or dispatched the exhibits to the laboratory. The statement, in my view, does therefore not comply with the requirements of the said subsection and does accordingly not constitute prima facie proof in that regard.

This omission was a serious one. It led to the Appeals judge finding the affidavit “irrelevant and inadmissible”. And without the affidavit, the State only had the testimony of the victim to rely on, which the Appeals judge didn’t find credible. Consequently, the appeal was upheld and the conviction and sentence were set aside.

This case illustrates how important it is that the evidence used to establish the facts(s) in a Section 212 Affidavit have a proven chain of custody.

It is clear that Dixon conducted experiments and drew definitive conclusions from drinking glasses for which chain of custody evidence wasn’t and couldn’t be proven. As such, based on Sithole vs. State (2012), the trial judge should have disregarded Dixon’s Section 212 Affidavit.