Ghirao Incorporated has been appointed to consider the evidence and to advise on strategy in The State v Tiffany Meek, a matter before the High Court in Johannesburg. As the matter is currently in the trial phase, we do not deal with its merits. Instead, this article discusses a legal point that will be central as the trial unfolds, namely circumstantial evidence. We look at what circumstantial evidence is and the test a court applies before it may convict on it.
What Is Circumstantial Evidence?
Most people picture a criminal case being proved by an eyewitness. That is direct evidence. A witness tells the court what they saw and, if the court believes them, the fact is proved.
Circumstantial evidence works differently. It proves surrounding facts, and the court is then asked to draw a conclusion from those facts. Fingerprints, cellphone records, CCTV footage, forensic reports and a person's conduct before or after an incident are common examples.
Circumstantial evidence is not second-class evidence, and a person can be convicted on it alone. The risk lies in the reasoning. Every time a court moves from a proved fact to a conclusion, there is room for assumption or guesswork. That is why our courts apply a strict test.
The Test in R v Blom
The test was set out in R v Blom 1939 AD 188 at 202–203 and is still applied today. The court described two "cardinal rules of logic":
- "The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn."
- "The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct."
Put simply, it is not enough for guilt to be a possible explanation, or even the most likely one. It must be the only reasonable explanation. If an innocent explanation is reasonably possibly true, the accused must be acquitted.
The Evidence Is Looked at as a Whole
A court does not take each piece of evidence on its own and ask whether that piece proves guilt. In R v De Villiers 1944 AD 493 at 508–509 the court warned against this approach. A single fact may have an innocent explanation, while several facts taken together may point in only one direction.
This was confirmed in S v Reddy 1996 (2) SACR 1 (A) at 8–9, where the Appellate Division held that the combined effect of all the evidence must be considered. The Supreme Court of Appeal took the same approach in S v Chabalala 2003 (1) SACR 134 (SCA) at para 15. The court weighs everything that points towards guilt against everything that points away from it, and then decides whether a reasonable doubt remains.
This works in both directions. One weak link does not necessarily defeat the State's case. Equally, a court cannot ignore a proved fact that does not fit simply because the rest of the evidence seems convincing.
Reasonable Explanations, Not Speculation
The State does not have to disprove every possibility an accused can think of. In R v Mlambo 1957 (4) SA 727 (A) at 738 the court held that the State is not required to "close every avenue of escape" open to an accused. An alternative explanation must be reasonable and must be based on the evidence. Speculation is not enough.
The same rule applies to the State. A conclusion must be drawn from facts that have actually been proved, not from assumptions. Where the underlying evidence is unreliable, any conclusion drawn from it is unreliable as well.
The Right to Remain Silent
An accused person has the right to remain silent and cannot be forced to testify. However, in S v Boesak 2001 (1) SACR 1 (CC) at para 24 the Constitutional Court explained that where the State has presented evidence that calls for an answer, the absence of an explanation may, depending on the strength of that evidence, be enough for a conviction. Whether to testify is therefore an important decision that an accused should make carefully with their legal team.
Conclusion
The Blom test has endured because it guards against a real danger, which is treating a convincing story as if it were proof. In a case built on circumstantial evidence, each fact, each conclusion drawn from it and the evidence as a whole must be properly tested. A court may convict only where guilt is the one reasonable conclusion the evidence allows.
This article is for general information only and is not legal advice.
