This post will show how Roger Dixon’s inadmissible Section 212 affidavit was key to the outcome of this case. Its acceptance by the court was a huge error of law and cast doubt on whether the judge was competent and sufficiently knowledgeable on the Criminal Procedure Act.
Firstly – on the basis of Dixon’s affidavit the State decided to withdraw the fingerprint evidence from the case. On 13 December 2006 – about 2 months before the trial – the Director of Public Prosecution Adv. Rodney de Kock send a letter to Adv Dup de Bruyn, Fred’s lawyer, in which he said:
I hereby confirm that the State no longer intends to proceed with evidence concerning your client’s alleged finger print on the DVD holder.
It is important to note that the fingerprint on Folien 1 belonged to Fred van der Vyver – that was never under dispute. If Folien 1was from the DVD holder Inge rented at 15:07 then Fred’s alibi would be false and it would have been unlikely that he would have succeeded with his alibi defence.
This was confirmed by Justice Deon van Zyl in his judgement.
If indeed it was the accused fingerprint on it [the DVD], it would have meant that he was in her flat after 15:07 and not at this work. It would destroy his alibi.
Thus on the basis of Dixon’s Section 212 affidavit, the State decided to withdraw the only evidence that could potentially have disputed Fred’s alibi.
On the first day of trial, February 12, 2007, Fred’s plea explanation, in terms of Article 115(2), was read out in court. In it, he made reference to Dixon’s affidavit and the State’s decision not to proceed with the fingerprint evidence. The accused indicated that this concession by the state does not prevent him from still using the fingerprint evidence to support the defence’s case that the fingerprints evidence was fabricated and fraudulent and that therefore the state’s case against the accused was tainted.
The State has now, after Mr Wertheim’s report was handed to the State, conceded that the fingerprint is not from a DVD holder, but from a glass alleged by my experts from the onset. In this regard I attach a letter from the Director of Public prosecutions dated 13 December 2006 (FVDV2). Attached to the letter is a report by Senior Superintendent Dixon from the SAPS dated 12 December 2006 that came to the same conclusion as my experts. It is attachment 3. I have been advised that the concession by the State does not prevent by legal advisors to still deal with the fingerprint issue during the trial. It is indeed my case that the evidence around the fingerprint was fabricated and fraudulent. Therefore respectfully, on my behalf it will be put forward that the fingerprint evidence taints the State case against me.
In setting out the State’s case in terms of article 150(1) which read as follows:” 1) The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge”, the State confirmed that it will not proceed with the fingerprint evidence. However, as the Defence indicated in the plea explanation that the fingerprint evidence will become part of the trial it would be necessary for the State to present evidence around the lifting of the fingerprints in order to place the court in a position the judge for itself the bona fides or the mala fides of the people involved.
MNR VAN DER VIJVER: Now your Honour, the summary of facts that is in front of you in terms of Article 144 of the Criminal Procedure Act off-course refers to the alleged fingerprint of the accused that was found on the DVD holder that was rented earlier. It is indeed so that the State is not proceeding with this evidence anymore. It is a decision that was made for specific reasons by the prosecuting authority. If it seems during the trial, and I think we saw a glimpse of it this morning, it will form part if the trial, and will it be necessary for the State to present evidence around the lifting of the fingerprints in the deceased flat the evening of 16 March, or more specifically the morning of the 17 March in order to place the court in a position the judge for itself the bona fides or the mala fides of the people involved. It looks like it will become very relevant in the case and under those circumstances the State will present this evidence.
COURT: Yes, as far as it is necessary to – you are now talking about bona fides and mala fides, but it could also be important in determining credibility, not so?
MNR VAN DER VIJVER: That is correct your Honour. Your Honour, at this stage, that is all that I want to the say to the Court in terms of Art 150(1). I am grateful to the court, your Honour.
The State ended up calling a number of witnesses to testify about the fingerprint evidence – for the Court to determine the bona fides or mal fides of the persons involved. First was Constable Swartz, the person that lifted Folien 1.
MR VAN DER VIJVER: Well Mr Swartz, when you went to the scene on the morning of the 17th did you have any suspects in mind? --- No, no suspects your Honour.
If I ask you now, did you fabricate or plant fingerprints, as it is known in general terms, what are your comments on that? --- No, I did not plant any fingerprints you Honour.
I have no further question your Honour.
Cross Examination
During the cross-examination of Swartz, the defence relied extensively on Dixon’s affidavit to challenge him on the shape of the lines, the so-called “lip mark” on the position of the prints. Dixon’s affidavit featured more prominently than Wertheim’s report during Swartz’s cross-examination.
Below is an example of Adv Dup de Bruyn using Dixon’s affidavit to challenge Swartz during his cross-examination:
Can you just look there Mr Swartz. You see it there. Now Mr Dixon said:
“The curved parallel lines on foline 1, are not consistent with having come from a DVD cover.”
Those top and the bottom lines. There we show you in red. Just look there and below. He says that they could not be from a DVD holder. Do you have any? ---- Well it may be Mr Dixon opinion, but …
Your opinion is? --- My opinion is, I lifted the fingerprint from the DVD cover.
Excuse me? --- I lifted the fingerprint from the specific DVD cover.
Perhaps in all fairness I must say to you. We don’t know on what was lifted. It may be that what you lifted was replaced, but if you just forget what you lifted for a moment I ask you now as an expert. Mr Dixon said these two lines are curved. The bottom one runs a bit below the levels. The expert said it is curved. Do you as an expert have anything to say about that? If it is curved how could it be from a DVD cover? --- It may because of the pressure I applied to the DVD-cover.
Similarly, Dixon’s report was also used against Capt Matheus. Wertheim’s report did not feature at all in the cross-examination of Matheus.
Captain, that is a farfetched explanation that and I will tell you why, you know exactly what we are talking about and Superintendent Dixon also tested it. A DVD is made of plastic and there is… (Page 940, Lines 3 to 6)
and
You will see that mark at the top of folien 1, as on the screen, the top one. ----I see it your Honour. Superintendent Dixon described it as a lip... (Page 940, Lines 22 to 25)
and
Senior superintendent Dixon described it in his report, paragraph 7.1 as “curved parallel lines.”--- I understand your Honour. I would like to know why he is not in the stand to say it for himself,
COURT: He will perhaps get the chance. ---I will appreciate it your honour.
The Judgment
The Judgment talks about the Dixon affidavit and the subsequent events:
[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.
Notwithstanding the testimony by Mrs. Lotz and affidavit by Dire Ruben Botha the Judge accepted as true Dixon’s statement that the glasses were obtained from Inge’s department. They might have been in Inge’s apartment at the time of her murder but that that is NOT where the police obtained them.
That Constable Swartz demonstrated to Dixon how Folien 1 was lifted is a blatant lie!
[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 instead 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.
[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.
It is clear that Dixon’s affidavit featured very prominently in the court’s evaluation of the evidence and on the eventual outcome of the case.
During the trial, the Judge heard various testimonies that indirectly challenged the legality and admissibility of Dixon’s affidavit.
Dixon prima facie evidence was:
- Folien 1 did not come from a DVD holder, AND
- Folien 1 came from a drinking glass found in Inge’s flat
For Dixon’s affidavit to be legal both these statements have to withstand scrutiny.
- Mrs Lotz testified that she removed all drinking glasses from Inge’s flat and kept them in boxes at her home. She testified that at some stage the police visited her home to inspect the glasses and she gave then a prototype of each type of glass Inge had. If the police did take a prototype of each type of glass how did they end up with 4 identical glasses? Even if police did collect all 11 glasses from Mrs Lotz – there is still no proven and acceptable chain evidence
- Director Ruben Botha’s statements makes reference to him and Dir Trollip visiting the Lotz home to inspect the drinking glasses.
- Pat Wertheim pointed out problems associated the chain of custody of the glasses
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.
In terms of Section 212(12) the Judge had the authority to call Dixon as a witness or to put written questions to him.
Considering the very obvious questions there must have been surrounding the chain evidence and Dixon’s statement that Folien 1 was lifted from a drinking glass found in Inge flat, the Judge did not exercise his right to call Dixon to clarify these inconsistencies
