The appellant was convicted of the murder of a woman in the course of a sexual assault; the injuries found on the body suggested that she had struggled with her assailant. The evidence established that the appellant and the deceased had been drinking beer together at a bar and were seen leaving the bar together at about midnight; between 0600 and 20 0700 hours the next day the deceased's partially undressed body was found. The appellant was traced and when arrested was found to have scratches on the neck and chest. He explained in evidence that the scratches were caused by flying pieces of iron at his place of work, an explanation which was not rebutted. The trial court without any evidence to support the finding said that the appellant had protective clothing at work and therefore that the flying particles of iron could not penetrate such clothing; the trial court consequently inferred that the scratches on the appellant were sustained during the struggle with the deceased.
Held :
(i) It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn.
(ii) It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt.
(iii) The appellant's explanation was a logical one and was not rebutted, and it was therefore an unwarranted inference that the scratches on the appellant's body were caused in the course of committing the offence at issue.
