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[2011] ZAGPJHC 104
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Di Pasquale v S (A159/2011) [2011] ZAGPJHC 104 (6 September 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: A159/2011
DATE:06/09/2011
In the matter between:
DI
PASQUALE
GERALD
....................................................................
Appellant
and
THE
STATE
.....................................................................................
Respondent
J U D G M E N T
WEPENER, J
:
[1] The appellant was charged
with a contravention of section 65(5)(b) of Act 93 of 1996 –
driving with an excessive amount
of alcohol in his breath. He
appeared in the Magistrates Court for Hillbrow. He was convicted and
sentenced to a fine of R4000.00
or 4 months imprisonment, a portion
of which was suspended on certain conditions. After an application
for leave to appeal the
magistrate granted such leave.
[2] One of the issues that arose
in the trial was the use of a measuring instrument referred to as a
Dräger machine. Although
no evidence was placed before the
magistrate regarding the manner in which the machine operated or that
it indeed operated correctly,
the magistrate said the following in
her judgment: “The court can at this point take judicial notice
of the accuracy of the
machine because we have all been trained in
the use of this machine and in the accuracy of the machine. We had
been taken to (it);
the machine had been brought to the complex at
the Magistrates Court. We have seen how it works. We have seen that
this machine
gives you an accurate turn of events that happened on
the day in question… Because the machine; it has two testers
and you
had to give them a thousand millimetres or a litre of breathe
for the reading to be accurate; it will not measure your breathe if
you have not given enough breathe. It will read, fail blowing and
then the machine resets itself; so if you have blown twice into
the
machine it means absolutely nothing. It does not mean that there is a
larger reading that then recorded by the machine. The
machine is
quite well manufactured for this kind of measurements. The serial
number indicates also the calibration number; the
fact that no
documents were proved does not mean that this machine is not
working.”
[3] In her judgment on the merits
the magistrate stated as follows: (read breath for breathe) “Now
as the court has mentioned
earlier this machine has been put into
dispute which resulted in the court officials been (sic) taken to see
exactly how the Dragga
machine works. We were given a physical
demonstration which were made for people who were given blood alcohol
consumed given the
machine was then tested (on) these persons;
directly after consumption of alcohol and then 15 to 20 minutes
after. So we could
see exactly how the machine works. Again we were
seeing how the machine worked when you did not blow upon you taken to
the machine
and when you blew more that once into the machine. The
Dragga machine that is currently used to test your breathe alcohol is
in
fact a sealed unit that performs its functions without the need of
anyone to test for a (indistinct) breathe that has been put into
because the breathe is burned within the machine, so that its ethanol
reading can be obtained. Ethanol is the active ingredient
in alcohol
and once this is done the ethanol it burned up; your reading is then
given and the machine is reset to work again. So
there’s no
need for this machine to be tested (indistinct) off on numerous
occasions because there is scope for error. There
is no scope for
error. The machine is intelligent enough to realise; not sufficient
breathe has been given into the machine; so
it will not give you a
reading. The machine is intelligent enough to realise that this is
the ethanol reading in the breathe cycle
given and this is the
reading that it comes up with and that is the reading that the court
will then have to.
There is no evidence to suggest that:
The machine operated because she
could not verbalise that a litre of breathe had to be given in order
for her to get this reading.
That verbalisation does not reflect or
does not detract from accuracy on the reading of this machine.
She indicated that is her job to get you to blow into the machine.
The machine does everything else for it. She did not have to
tell you
that you have not blown sufficiently into the machine. The machine
will tell you that you have not blown into the machine.
She did not have to tell you need
to blow again. The machine will tell you you need to blow again. So
there is no evidence to suggest
that this particular machine is
defective. This is not a mobile machine that has been taken from one
location to another. This
is a machine that is housed at Wemmer where
people are taken to the machine for their breathes to be tested.
These machines are
calibrated every six months; the documents are
there. The fact that it has not been brought to court is not to say
that this machine
is not working” and further “and
therefore it was necessary for all court officials to see how this
machine works to
be given a physical and practical demonstration so
that we can sit in court and know that when the witness tell us this
is what
happened that we know this is exactly what happened. And the
court finds no reason not to accept the evidence of the state today.
The court can find no reason to just trust (distrust) the working of
this machine simply because it is not being an expert is not
standing
there and telling us that this machine is now working 24/7”.
[4] Unfortunately none of the
evidence regarding the machine supplied by the magistrate was placed
before her in evidence by witnesses.
She relied on her own experience
having attended a demonstration of how the machine works and the
appellant did not have the opportunity
to deal with issues raised by
the magistrate in her judgment.
[5] It has been held that
whenever a measuring instrument is used to prove the guilt of the
accused the state needs to explain how
that instrument operates. It
is required to prove that it operated correctly and that its result
is proven to be correct. S v van
der Sant
1997 (2) SACR 116
W at 131
F. The state should lead evidence of the trustworthiness of the
instrument used as well as to the trustworthiness of the
method used
by the operator. S v Chetty
1970 (2) SA 640
(N) at 642 E – G
and S v Mthimkulu
1975 (4) SA 759
(A) at 764 A – C.
[5] In the matter under
consideration the state did not lead any evidence regarding the
operation, correctness or trustworthiness
of the machine’s
reading. Upon being questioned regarding the operation of the machine
the expert witness and operator merely
testified that she “will
operate as I use it”.
[6] The state also did not
present any evidence as to the operator’s skill and competence
in using the machine. During cross-examination
the operator said that
she was trained for two days but she has not yet received her
certificate of training. It is also unclear
what training she
received. During judgment the court a quo relied on the evidence
quoted above and took judicial notice of the
accuracy of the machine.
[7] Leach J (as he then was) said
in S v Lourens
2000 (2) SACR 164
ECD at 167 i – 168 a that “…it
is wholly improper for judicial officers to attend seminars hosted by
the prosecuting
authorities of the State in order for it so be
‘explained’ to them why certain equipment, upon which the
State relies
in proving the guilt of alleged offenders, should be
accepted as being accurate. If the State wishes to rely upon such
equipment,
it must lead the necessary evidence in court and then,
after cross-examination and argument from both sides, the judicial
officer
must reach a decision. It is certainly not the function of
the judicial officers to attend courses to learn about the accuracy
of the equipment concerned and then take judicial notice thereof in
subsequent hearings. It may well be that the machinery in question
is
highly reliable, but it is for the prosecuting authorities to
convince the magistrate of the fact in court, and not at some
other
place, and one must wonder whether the magistrates who attended the
seminar are not hereafter disqualified from hearing matters
of this
nature.”
[7] It is to be repeated that
courts cannot take judicial notice and accept facts which are not
easily ascertained. Only if a fact
is straight forward and easily
verified can a court take judicial notice thereof. S v Mthimkulu
supra at 765 E.
[8] The magistrate erred in
relying on her own experience and she should not have done so in view
of the clear judgment in S v Lourens
supra.
[9] I would in the circumstances
propose that the conviction and consequent sentence be set aside.
_____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
_____________________________
I agree,
H
MAYAT
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Date delivered 6 September 2011