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[2014] ZAWCHC 72
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Boonzaaier v S (A137/13) [2014] ZAWCHC 72 (13 May 2014)
THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A137/13
DATE:
13 MAY 2014
District
Case 24/1034/2010
In the matter
between:
ROZIER J
D’OLIVEIRA
BOONZAAIER
..................................
APPELLANT
And
THE
STATE
.............................................................................
RESPONDENT
Coram: BAARTMAN &
ROGERS JJ
Heard: 9 MAY 2014
Delivered: 13 MAY
2014
JUDGMENT
ROGERS J:
Introduction
[1] The appellant
was charged in the court below on one count of culpable homicide and
one count of contravening
s 65(1)
of the
National Road Traffic Act 93
of 1996
by driving a vehicle while under the influence of
intoxicating liquor. The accused was represented at his trial, as he
was on appeal,
by Mr B Mathewson. The court a quo convicted the
appellant on both counts. On the charge of culpable homicide he was
sentenced
to three years’ imprisonment suspended for five years
on appropriate conditions as well as 24 months’ correctional
supervision; and on the drunken driving charge he was sentenced to a
fine of R20 000 or one year’s imprisonment, half of which
was
suspended for five years on appropriate conditions. The appellant
appeals only against the convictions. The magistrate refused
leave to
appeal, but leave was granted on petition.
[2] Regrettably the
magistrate’s judgment is not of much assistance. It does not
contain a coherent analysis of the evidence.
Matters are complicated
by the fact that the magistrate delivered an oral judgment, the
transcription of which forms part of the
record, indicating that he
would also hand down the judgment in written form. The written
judgment is also part of the record.
I have not compared the two
versions minutely. Their substance may well be the same but they are
by no means identical. This is
a most unsatisfactory procedure. A
judicial officer should deliver only one judgment. If he or she gives
the judgment orally, it
is that judgment which is the official
judgment, subject only to editorial corrections which do not affect
the substance of the
judgment.
[3] The record is
also unsatisfactory in another respect. The state’s accident
reconstruction expert, Mr Daniel Poolman, testified
with reference to
photographs which were apparently marked “A” to “CC”.
There is a colour set of photographs
which appear in the event to be
the photographs to which Poolman was referring but they have not been
marked. This resulted in
this court having to spend more time in
preparing for the appeal. Judicial officers and legal representatives
in a trial should
take care to ensure that exhibits are properly
identified in a way which will facilitate reference in the event of
an appeal.
The collision
[4] The charges
arose out of a collision which occurred on the Otto du Plessis
Highway (the R27) at about 06h05 on the morning of
Friday 23 January
2009. The road carried two lanes of traffic in each direction (north
and south), separated by a ditch with bushes
and grass in it. In each
direction the road had a tarred shoulder on the left, separated from
the left-hand traffic lane by a yellow
line. The ground (gravel) then
fell away slightly into the veld. To judge by the photographic
evidence, the width of the centre
ditch was more or less the same as
the tarred surface in each direction. The road surface was good and
the weather fine.
[5] The accused was
driving in a northerly direction in a silver Isuzu 4x4 double-cab
bakkie. The deceased, Eugene Paddock, was
driving in a southerly
direction in a black Audi. The Isuzu veered across the road and the
central ditch, colliding with the oncoming
Audi, which was travelling
in the right lane of the southerly road. The deceased died instantly
from catastrophic injuries. The
Audi was very badly damaged and
sheered in half. The Isuzu rolled, landing upside down about 25
metres into the veld on the left-side
of the southerly road. The
photographic evidence indicates quite severe damage to the bonnet and
front wheels of the Isuzu but
the cab not crumple.
[6] There were two
eyewitnesses, a motorist (Servia Champi) and a cyclist (Daniel
Kotze), who were travelling in a southerly direction
behind the Audi.
They were not able to say what happened to the Isuzu while it was
driving on the northerly road but they both
testified having seen the
Isuzu hurtling across the ditch and hitting the Audi in the fast lane
of the southerly road. Champi said
the Isuzu had become airborne as
it hurtled across the ditch.
[7] The accused, who
was the only witness for the defence, testified that he could not
recall what happened. He is a mechanic. His
work quite often required
him to go to the airport to work on vehicles there. He had been
called out during the night of 22/23
January 2009 to repair a
meal-loading vehicle at the airport. He remembers leaving the airport
to return home. He also remembers
stopping at the traffic lights on
Otto du Plessis highway near the Engen garage. When the lights turned
green, he pulled away.
That is the last he remembers until waking up
in the Milnerton Mediclinic hospital with his family around his bed.
He recalled
Dr Moodley and the removal of the head blocks which the
paramedics had used to stabilise his head. The nursing record
indicates
that the doctor discussed the x-rays with the appellant at
09h45 and that the head blocks were removed at 10h00. The collision
occurred about 900 metres to the north of the traffic lights.
Poolman’s
expert evidence
[8] Poolman was
called by the state as an expert to give an opinion as to how the
collision came about. Poolman had 18 years of
experience at the
Forensics Science Laboratory in Pretoria and had been head of the
laboratory since April 2002. He has a B Engineering
Metallurgy
degree, is registered as an engineer with the Engineering Council of
South Africa and also registered with the South
African Council for
Natural Scientific Professions in the metallurgy category. He is an
associate member of the Institute of Tacograph
Chart Analysts and
Related Vehicle Recording Equipment. Poolman formed his opinion
primarily on the basis of extensive photographic
evidence. He did not
examine the actual accident scene; he was only briefed in July 2011.
[9] Based on the
photographic evidence (see, in particular, photographs 2-13, 16-26,
75 and 76 of the ‘at-the-scene’
file on the compact disc,
exhibit “D”), Poolman’s opinion was that the Isuzu
(probably at that stage driving
in the slow lane) had initially
drifted off the hard shoulder of the road to the left. Only the
left-side wheels went onto the
gravel. The driver then brought the
Isuzu back onto the road but must have over-steered to the right,
causing the wheels to yaw.
The yaw marks (not skid marks) from three
tyres were visible on the northerly road. The absence of a yaw mark
from a fourth tyre
was typical, because the manoeuvre would have
caused the right-rear tyre to lift off the surface of the road.
[10] The vehicle
then went across the ditch. (The photographic evidence mentioned in
the preceding paragraph, including the photographs
referenced by
Poolman as F2 and G1, show what appear to be tyre tracks in the soil
of the easterly half of the ditch, ie the half
of the ditch closest
to the Audi’s line of travel.) The closing angle between the
Isuzu and Audi at the point of impact was
about 30 degrees. The point
of impact was in the fast lane of the southerly road towards the
centre. The gouge marks in the southerly
road were caused by the
impact and reflected that the Isuzu had struck the Audi from an
elevated angle. After the impact the Isuzu
began to roll and landed
up in the ditch to the left of the southerly road. The damage visible
on the Isuzu was, in Poolman’s
opinion, all caused by the
impact.
[11] Poolman’s
conclusion was that the primary cause of the collision was that the
Isuzu initially veered off the left shoulder
of the northerly road.
Although the ensuing over-steer to the right caused the driver to
lose control and career across the ditch,
I did not understand
Poolman to say that the attempt the driver made to correct for the
drift to the left by steering to the right
was itself to be
criticised; it was the sort of thing a driver might do if he got a
fright. In the nature of things, Poolman could
not say what caused
the Isuzu initially to drift to the left. However, he excluded, as a
possible cause, a tyre burst, wheel rim
failure, a seizing of the
wheel bearings or a malfunction of the steering column.
[12] Because Mr
Mathewson’s instructions from the accused were that he could
not remember the collision, he could not positively
put to Poolman
that the appellant had lost control of the Isuzu due to some sudden
mechanical failure. He did, though, explore
with Poolman in
cross-examination why the latter excluded the various forms of
mechanical problems I have just mentioned. In my
view, Poolman, whose
evidence reads very well, convincingly motivated his opinion on these
matters. He explained that, if one of
these types of failures had
occurred, one would not have seen (as one clearly can in the
photographs) a drift to the left, a correcting
manoeuvre to the right
and resultant tyre yaw marks on the road. If a sudden mechanical
failure had caused the vehicle to drift
to the left, that is the
direction in which it would have continued to go, particularly given
the slight decline to the left of
the shoulder of the road. The
correcting turn to the right indicated that the steering column was
working and that the tyres and
rims were reacting normally to the
rightward move of the steering wheel. The tyres of the Isuzu after
the collision did not indicate
a burst nor did any of the rims show
damage caused by rotational friction with the road. All the
observable damage on the Isuzu’s
tyres and rims was impact
damage.
[13] In his
submissions on sudden mechanical defect, Mr Mathewson referred to
Kotze’s evidence of having heard a ‘strange
noise’.
In the context of his evidence as a whole, I am satisfied that Kotze
was not referring to the noise of a mechanical
fault but the
out-of-the-ordinary sound made by the Isuzu as it left the northerly
road and crashed through the dividing ditch.
He said that he heard
the noise, immediately looked up from his bicycle and saw the Isuzu
already halfway across the ditch. There
was no evidence from the
appellant that, prior to the couple of minutes of alleged amnesia
preceding the collision, he noticed
anything wrong with his vehicle
or heard odd mechanical sounds. Poolman’s evidence was to the
effect that, if wheel bearings
were ‘becoming bad’ (ie
through wear and tear), the driver would hear a progressively
prominent grating sound; it would
not have sudden catastrophic
effect. (Poolman’s evidence also convincingly discounted the
notion of a sudden seizing of the
wheel bearings.)
[14] Mr Mathewson
referred us to a passage in Engelbrecht’s evidence where the
latter responded to a question as to whether
he had considered the
possibility that a wheel broke. Engelbrecht replied that this had
happened to him, his wheel had once broken
at a speed of less than
100 kms. This anecdotal remark is of no assistance to the appellant.
Poolman explained why, if one of the
Isuzu’s wheels had broken,
one would not have seen the track and yaw marks depicted in the
photographs. Poolman’s evidence
was supported in that regard by
what Engelbrecht himself said, namely that when his wheel broke the
vehicle overturned, started
rolling and became airborne. That is not
what happened to the Isuzu when it drifted off the road to the left
or when initially
it was steered back onto the road towards the
right.
[15] Mr Mathewson
said that Poolman’s evidence was fatally tarnished by the fact
that he did not examine the wreck the Isuzu
and worked only off
photographs. Poolman himself is not to be criticised for that; he
only received his brief in July 2011. I agree
that it would have been
preferable for Poolman or a similar expert to have been engaged
immediately after the collision in order
to examine the vehicle
itself. In the event, though, there was very extensive photographic
evidence of the Isuzu from all conceivable
angles, photographs taken
both at the scene and subsequently at the scrapyard. Poolman was
confident of the conclusions he could
draw from the photographic
evidence.
[16] In my view, the
evidence of the eye-witnesses coupled with Poolman’s expert
testimony justifies the conclusion beyond
reasonable doubt that the
collision occurred in the manner Poolman opined and that sudden
mechanical failure was not the cause.
Drunken driving
[17] I have not yet
addressed the question whether the appellant was negligent in the way
he drove the Isuzu. It is convenient,
before doing so, to consider
the charge of drunken driving. If it was proved beyond reasonable
doubt that the appellant was under
the influence of alcohol at the
time of the collision, it would not be difficult to reach the further
conclusion that the resultant
impairment of his concentration and
abilities caused him to drift off the left of the tarred shoulder.
[18] An accused may
be considered to be under the influence of intoxicating liquor if it
is proved that the skill and judgment normally
required in the
manipulation of a motor car is diminished or impaired as a direct
result of the consumption of alcohol (R v Lloyd
1929 EDL 270
at 274).
In R v Spicer
1945 AD 433
at 435-6 Greenberg JA disapproved the
statement in Lloyd that the diminution or impairment had to be
‘obvious’ in the
sense of requiring that the driver
showed obvious signs of intoxication (though, of course, the state
must nevertheless prove the
requisite diminution or impairment beyond
reasonable doubt - S v Piccione
1967 (2) SA 334
(N) at 336C-E). The
learned judge of appeal also accepted the statement in R v Magula
1939 EDL 207
at 211 that it was sufficient for the diminution or
impairment to be only ‘in slight degree’, provided that
phrase
was not interpreted to include effects of alcohol which did
not impair the skill and judgment of the driver. A diminution or
impairment
may be present where alcohol has dulled the driver’s
vision or blunted his judgement or made his muscular reactions to
communications
from the brain sluggish. Greenberg JA agreed with the
trial judge that ‘under the influence’ would also
‘cover the
case of a driver on whom intoxicating liquor has induced an exuberant
or over-optimistic frame of mind which causes
him to take risks (eg
to drive at an excessive speed or to assume that others will give him
the right of way) which he would not
have taken but for the liquor he
has consumed’.
See also S v Grobler
1972 (4) SA 559
(O) at 561D-E; S v Mhetoa
1968 (2) SA 773
(O) at
774D-F; S v Engelbrecht
2001 (2) SACR 38
(C) at 44i, 46a-d.
[19] It is
insufficient for the prosecution to prove mere consumption of
intoxicating liquor (Cooper Motor Law Vol 1 at 554). The
state must
prove something more than that the driver has had a few drinks or
that his breath smells of liquor (see R v Donian
1935 TPD 5
at 9; R v
Tathiah
1938 NPD 387
at 391-392; S v Scheepers 2012 JDR 2063 (ECG)
paras 10-11;S v McBride 2013 JDR 0702 109 para 81). In S v Adams
1983
(2) SA 577
(A) Hoexter JA emphasised that the correctness of a
conviction for driving under the influence of alcohol requires the
evidence
to be assessed cumulatively. The mere fact that a person who
has used strong liquor is involved in an accident does not in itself
prove that he drove under the influence. The question as to what
inference may be drawn from the fact of the accident depends on
the
particular circumstances of the case. Where the driver does not
behave in a manifestly intoxicated fashion (‘nie ooglopend
onder die invloed van sterk drank verkeer nie’), evidence about
the manner in which he drove the vehicle prior to the accident
will
come to the fore. In short, the higher the degree of manifest
intoxication (‘uiterlik sigbare besopenheid’), the
less
important is evidence about the manner of driving, and vice versa (at
586G-587A).
[20] The manner in
which the police investigated the present case leaves much to be
desired. The fact that a life was lost, that
the appellant’s
vehicle was on the wrong side of the road at the point of impact and
that he claimed at the scene not to
remember what happened justified
the prompt taking of a blood sample for alcohol testing. Certain
things (whether true or not)
were said at the accident scene which
fortified the need for such investigation. The appellant did not
suffer severe injuries and
there was no urgent medical treatment
which prevented the early taking of a sample.
[21] In the event,
and although the police were on the scene very shortly after 06h05
and the appellant was admitted to the hospital
shortly before 07h00,
a police officer (Warrant Officer Engelbrecht) only called at the
hospital to request a blood sample some
time after 10h00. According
to the nursing record, blood was drawn at 10h15, though the
prescribed form completed by Dr Moodley
(Form GW7/54 headed ‘Medical
examination of a person alleged to be under the influence of alcohol
or any other drug, having
a narcotic effect’) records the time
as 10h35. Either way, it was more than four hours after the
collision. The police officials
were no doubt aware (though it
relates to a different statutory offence) of the presumption created
by
s 65(3)
of the
National Road Traffic Act in
relation to the
alcohol concentration of blood drawn within two hours of the alleged
contravention. The longer the period between
the incident and the
taking of the blood, the more difficult it becomes accurately to
determine the alcohol concentration at the
relevant time.
[22] The analysis of
the blood sample taken from the appellant showed that the
concentration of alcohol in his blood as at 10h15/10h35
was 0,04
gr/100 ml. This is just below the level of 0,05 gr/100 ml specified
in the offence created by
s 65(2).
[23] The eye-witness
testimony on the question whether the accused was intoxicated at the
time of the collision was not consistent.
The two eye-witnesses who
observed the collision itself (Champi and Kotze) did not get close to
the accident scene or approach
the appellant, so they could not say
anything on the question of intoxication.
[24] A security
guard who worked in the area, Mogamat Hendricks, was on the scene
very shortly after the collision. It appears that
by that time there
were already at least two tow-truckers in attendance (neither of whom
testified). They assisted the appellant
to walk away from the Isuzu.
Hendricks testified that, as the appellant walked past him, he smelt
very strongly of alcohol. Hendricks
thought he was drunk. He
overheard the appellant say, ‘Ek het opgefok, kry my ʼn
prokureur, ek het opgefok’. Hendricks
also went to look at the
overturned Isuzu and saw some beer bottles and cans in the vehicle
(more than six). He admitted in cross-examination
that he had not
told this to the police on the scene. He was only approached many
months later for a statement.
[25] Among the many
photographs handed in by agreement were a number of the front and
rear compartments of the cab (see particularly
photos 16, 45-47, 50,
52, 129, 151, 155 and 160 of the ‘vehicle A’ file forming
part of the compact disc, exhibit “D”).
The photographs
of the Isuzu in exhibit “D” appear to have been taken at
a scrapyard after the Isuzu had been towed
out of the veld and
removed on a flatbed truck. The evidence was that, upon towing, the
Isuzu had broken into three or four parts.
The photographs of the cab
do not show any bottles or cans. If Roboko’s testimony on this
score was accurate, the vehicle
must have been tampered with (which,
regrettably, is a possibility one cannot altogether exclude).
[26] A member of the
public had contacted ER24. It seems that the ambulance got to the
scene before the investigating officer, Const
Hidra Suyster, who said
she arrived about 20 minutes after the collision. The state called
one of the paramedics, Vincent Roboko,
who said ER24 got the
emergency call at about 06h10. On his arrival he saw the two
two-truckers walking with the appellant. The
appellant was coherent
but said he did not know what happened. At some stage after Suyster’s
arrival, he overheard her saying
to the appellant, ‘You’re
drunk’ which the appellant denied. Roboko himself said that he
did not smell any alcohol
on the appellant.
[27] Suyster arrived
about 20 minutes after the accident. One of her colleagues, who had
got there a little earlier and who did
not testify, left upon her
arrival. The ER24 paramedics were attending to the appellant (they
had already established that Paddock
was dead). She asked the
appellant whether he had been drinking, which he denied. He looked
confused but did not smell of alcohol
and she did not observe any
signs of drunkenness. She did not consider herself at that stage to
have any reason to arrest the appellant.
Suyster, who testified
before Roboko, was not asked whether (as Roboko later claimed) she
had said to the appellant that he was
drunk. On her version, she
enquired whether he was drunk and he denied it.
[28] Daleen de Kok
was the nursing sister who attended to the appellant on his arrival
at the hospital at 06h56 until his discharge
at 10h50. De Kok’s
record was that on arrival the appellant complained of pain over his
left clavicle (collar bone). There
was no loss of consciousness. Her
note recorded that the appellant’s breath smelt like alcohol,
that he said he could not
remember the accident but denied having
taken any alcohol. She was adamant in oral evidence that she would
not have recorded this
unless it were true. This observation would
have been made at about 07h00. The appellant was then x-rayed but the
x-rays did not
reveal any injuries. At about 10h20 abrasions on his
left lower leg and left lower arm were cleaned and treated and a
plaster was
applied to a small cut on his left ear. He was discharged
a short while later.
[29] When the
appellant arrived at the hospital he was initially seen by another
doctor. Moodley saw the appellant after the x-rays
were taken. From
the time-line in the nursing record, this would seem to have been at
about 09h45 (‘doctor discusses x-rays
with patient’). The
nursing record reflects that the head blocks and hard collar were
removed at 10h00. As noted, blood was
drawn for alcohol testing at
10h15/10h35. In the GW7/54 form Moodley noted that the appellant said
he had consumed no alcohol within
the last 24 hours and that his last
meal had been at 16h30 the previous day. All the clinical
observations of possible relevance
to intoxication (ie as at 09h45 or
later) were normal (speech, walking gait, gait on turning,
coordination and the Rhomberg finger/nose
test). It was also recorded
that there was no smell of alcohol (the range offered in the form was
‘strong’, ‘moderate’,
‘faint’ and
‘none’ – Moodley ticked ‘none’). The
conjunctivae (eyes) were ‘normal’,
not ‘congested’.
Moodley failed to complete the ‘Conclusions’ section of
the form to indicate whether the
appellant at the time of examination
was ‘strong/moderately/likely/not under the influence’
[sic] of alcohol and whether
the appellant at the time of the
occurrence was ‘probable/possible/unlikely’ [sic] to have
been under the influence.
His oral evidence was that he found no
signs of intoxication upon examination. He also testified that the
appellant was alert and
awake, and he (the doctor) had no concerns
about concussion.
[30] He did testify,
however, that Sister de Kok had mentioned to him that morning that
the appellant smelt of alcohol. He opined
that the smell of alcohol
could have dissipated between when the nurse saw and he examined the
appellant. He said that the level
of alcohol could have become
diluted if the paramedics had applied a drip (there was no evidence
that they had done so) or if the
appellant had urinated. The nursing
record indicated that at 07h08 the appellant was given some water
with the doctor’s permission
(this was probably not Moodley,
who only saw him later) and that the appellant went to the bathroom
to pass urine at 10h00 after
the removal of the head blocks and hard
collar.
[31] Warrant Officer
Engelbrecht saw the appellant at the hospital, shortly after 10h00 as
far as I can deduce. He testified that
he was asked by the
investigating officer, Suyster, to arrange for a blood sample from
the appellant because of the possible influence
of alcohol. Suyster
told him that somebody at the scene had said the appellant was
probably under the influence. When he saw the
appellant after 10h00,
the latter’s eyes were bloodshot but Engelbrecht could not
smell alcohol despite getting quite close
to him. The appellant was
cooperative and talking normally. (Engelbrecht’s observation
that the appellant’s eyes were
bloodshot differs from that of
Moodley, whose examination would have been at around the same time.)
[32] The state
called a very experienced district surgeon, Dr Paul Theron, to offer
an expert opinion on whether the appellant was
under the influence of
alcohol at the time of the collision. Theron had regard, among other
things, to statements in the docket
from witnesses who said they
smelt alcohol or thought the appellant was under the influence. Of
those witnesses, only Hendricks
and De Kok were called. Theron did
not consider his conclusions to be significantly affected by
statements of other witnesses who
had not smelt alcohol (such as
Roboko, Suyster and Engelbrecht). He regarded Moodley as ‘a
complete amateur’ when it
came to forensic examination. He
expressed the view that the absence of proper investigation and the
failure promptly to draw a
blood sample pointed to a police cover-up.
[33] He gave
evidence concerning the rate of elimination of alcohol from the
bloodstream. Using tables of which he had considerable
experience, he
provided an approximation of the alcohol concentration in the blood
of a 100 kg male who had consumed varying quantities
of beer (four,
six, eight and ten cans of 375 ml Castle) at 05h30. The approximate
concentrations were stated for the time of consumption
(05h30) and
for five hours later (10h30). He did not claim that these figures
were precise – there were too many variables;
but he
nevertheless considered that they provided a fair approximation. Such
a person who had consumed six beers at 05h30 would
have had an
alcohol/blood concentration of 0,132 at 05h30, falling to 0,057 by
10h30 (slightly higher than the appellant’s
concentration of
0,04 at about 10h30). For eight beers, the contrasting figures
increased to 0,22 (05h30) and 0,101 (10h30). These
figures suggested
that the appellant had taken six cans of Castle prior to the
incident. However, he thought the appellant’s
intake had
probably been closer to eight cans, because of the diluting effect of
the water drunk by the appellant at the hospital.
(As noted, there
was no evidence that the paramedics applied a drip. And although the
nursing note mentions that the patient was
allowed to have some water
shortly after 07h00, there was no evidence as to how much water he
drank.)
[34] Theron
concluded that at the time of the accident the appellant’s
blood level had probably been in the range 0,132 to
0,22. He quoted
the standardised clinical picture of the ‘average intoxicated
person’ with alcohol concentration levels
of 0,10 – 0,15
and 0,15 – 0,25 respectively. Both clinical pictures would
indicate, if applicable to the appellant,
a sufficient
alcohol-induced impairment of judgment and abilities to warrant a
finding that he was ‘under the influence’
of alcohol
within the meaning of
s 65(1).
[35] Even without
Theron’s evidence, ordinary human experience and common sense
tells one that, if the appellant had an alcohol/blood
concentration
of 0,04 as at about 10h30, he must have consumed some alcohol the
previous night. His evidence that he consumed no
alcohol on the night
of 22/23 January 2009 and that he last drank on the previous weekend
cannot reasonably possibly be true. He
did not claim in evidence that
he might have consumed alcohol the previous night but have forgotten
it. He was able to remember
going to the airport, working on the
meal-loading vehicle, leaving the airport and arriving at the traffic
lights 900 metres south
of the accident site. I am thus satisfied
that his evidence on this aspect was knowingly untrue. During the
hearing of the appeal
Mr Mathewson accepted, at least for purposes of
argument, that his client’s evidence on this aspect could be
rejected as
false.
[36] However, the
fact that the appellant was shown beyond reasonable doubt to have
consumed some alcohol in the hours before the
collision does not
without more mean that he was under the influence of alcohol at the
time of the collision. Theron’s approximations
may have been
the best that could be done under the circumstances but he did not
claim that they were accurate. Furthermore, his
hypothetical driver
had a weight of 100 kgs whereas the appellant, according to Moodley’s
report, weighed 118,6 kgs at the
time of the accident. He attempted
to estimate an alcohol concentration level as at 05h30 (an assumed
time of consumption of the
alcohol) whereas the accident happened at
06h05. Although I am satisfied that the appellant did consume alcohol
during the course
of the night, one cannot say when that happened.
[37] Theron conceded
in cross-examination that even if the appellant, at the time of the
collision, had an alcohol concentration
level of 0,132 grams/100 ml,
one could not say without more that the appellant was under the
influence of alcohol. He conceded
that, according to the so-called
Midmark tables, only 36% of people with an alcohol concentration
level of 0,13 grams/100 ml could
be described as ‘intoxicated’.
In the present case, it was not proved beyond reasonable doubt that
the appellant’s
alcohol concentration level as at 06h05 was
even as high as 0,13 grams.
[38] As I have
mentioned, the evidence of those who observed the appellant after the
collision is not consistent. If the appellant
smelt strongly of
alcohol, it is surprising that this was not noticed by Suyster or
Roboko, both of whom spoke with him quite shortly
after the accident.
I do not find convincing the submission by Ms Galloway on behalf of
the state that Suyster and Roboko did not
have the same opportunity
as the other witnesses of observing the appellant’s condition.
There is no ground to disbelieve
that Hendricks and De Kok smelt
alcohol on the appellant’s breath. Hendricks had no reason to
lie about this and De Kok’s
evidence was based on a
contemporaneous nursing note which she had no cause to fabricate.
Since I think it was proved beyond reasonable
doubt that the
appellant consumed some alcohol the previous night, it is possible
that some observers after the accident would
have smelt alcohol on
him. However, the fact that the alcohol the appellant had consumed
was noticed by two people who got close
to him within an hour of the
collision does not mean that he was under the influence of alcohol.
In the light of the evidence of
Suyster and Roboko, it cannot be said
that immediately after the collision the appellant was in a
manifestly intoxicated state
(cf Adams supra).
[39] It is true that
the appellant lost control of his vehicle and that one of the obvious
explanations for this is that he was
under the influence. However,
and as I shall briefly explain when dealing with the charge of
culpable homicide, this is not the
only possible explanation. The
state was not able to call any witnesses who observed the manner in
which the appellant drove on
his side of the road prior to drifting
off to the left. There was thus not evidence of the zigzagging or
other sustained erratic
behaviour which would be typical of drunken
driving.
[40] Given the
absence of evidence about how the appellant drove the Isuzu
immediately prior to the collision (cf Adams supra) and
the absence
of more precise medical evidence as to the appellant’s alcohol
concentration level at the time of the collision
(this is no
criticism of Theron – I think he did the best he could with the
available information), and given the further
fact that two of the
state witnesses who dealt with the appellant shortly after the
collision did not notice a smell of alcohol
nor form the view that
the appellant was intoxicated, I think the appellant was entitled to
the benefit of the doubt. I would thus
set aside the conviction on
the charge of drunken driving.
Culpable homicide
[41] I have already
expressed my conclusion as to what happened with the Isuzu
immediately prior to the collision with the Audi.
The critical
question is whether the state proved beyond reasonable doubt that the
appellant negligently allowed his vehicle to
drift off the road to
the left, thus requiring him to make a correction to the right. In
order to discharge the onus it was not
necessary for the state to
prove exactly why the Isuzu drifted to the left; it was sufficient
that each of the reasonably possible
explanations point to negligence
on the appellant’s part.
[42] For the reasons
I have given, I reject Mr Mathewson’s submission that sudden
mechanical failure is one of the possible
explanations. Poolman’s
evidence was, in the absence of any rebuttal from the appellant (who
claimed not to be able to remember
what happened), and in the absence
of any expert evidence on the part of the defence, sufficient to
exclude sudden mechanical failure
as a reasonably possible
explanation for what occurred.
[43] Although the
appellant in his evidence referred to the fact that the new
replacement Isuzu he got a couple of months after
the collision was
recalled by the manufacturer because of something to do with wheel
bearings, Poolman’s evidence refuted
the notion that the
original Isuzu had a wheel bearings failure. I note in this regard
that the original Isuzu was a newish vehicle
and had done only about
1 800 kms. The replacement Isuzu was recalled after it had done 4000
to 5000 kms. The appellant testified
that before the recall of the
vehicle he had begun to hear a noise from the wheels. He did not
claim to have heard any such noise
from the original Isuzu in the
hours or days before the accident.
[44] It was not
argued that the appellant might have suffered some medical emergency
at the wheel. Nothing to indicate this was
observed at the accident
site immediately after the collision nor did the doctors who treated
the appellant detect anything amiss
apart from a few minor cuts and
abrasions caused by the collision itself. Also relevant in this
regard is Poolman’s evidence,
which I accept, that the tyre
marks on the gravel and the tarred road indicate that, after the
vehicle drifted to the left, the
appellant must have consciously
steered it to the right to correct for the leftward drift. This is
not the conduct of a person
who has suffered a blackout.
[45] One possible
explanation for what occurred is that the appellant’s
concentration and abilities were impaired by alcohol.
Indeed, I
regard this as the most probable explanation. It was not proved
beyond reasonable doubt that the appellant was under
the influence.
Nevertheless, one can accept that if this was the cause, the
appellant was negligent in driving the vehicle after
consuming
alcohol.
[46] Another
possibility is that the appellant fell asleep at the wheel. This
would be consistent with a gradual drift off the road
to the left and
an over-correction to the right as the appellant woke up. At the
hospital, the appellant told Engelbrecht that
he must have fallen
asleep at the wheel. Because the appellant claimed to have suffered
amnesia, there was no direct challenge
to Engelbrecht’s
testimony on this aspect. It was not put to Engelbrecht that he was
fabricating. It does not seem likely
that Engelbrecht was attempting
falsely to incriminate the appellant. On the contrary, Engelbrecht
stated that he detected no signs
of intoxication.
[47] If the
appellant fell asleep at the wheel, alcohol might have contributed;
or he may, as can happen even with sober people,
have begun to doze
off through tiredness brought on by having been awake for a large
part of the night. To fall asleep at the wheel
because of the effects
of alcohol or lack of sleep (or both) is a departure from the
standard of the reasonable person. A person
does not suddenly fall
asleep; tiredness develops over time. The reasonable person,
perceiving weariness, will stop and take a
short rest before
proceeding.
[48] Another
possibility is that the appellant was driving too fast. The
eye-witnesses did not see the Isuzu on the northerly road
and could
thus not positively state that the appellant was speeding at that
stage though Champi said the Isuzu ‘shot through’
the
bushes in the dividing ditch, became airborne and landed on top of
the Audi. Poolman did not have sufficient data to calculate
a
pre-accident speed though he did testify that the Isuzu struck the
Audi from above, lending support to the other evidence that
the Isuzu
had at some stage been airborne. If the appellant was speeding (I
refer not to exceeding the speed limit as such, which
appears to have
been 80 kph, but travelling at a sufficiently high speed to cause him
to lose control of his vehicle), he was obviously
negligent.
[49] The remaining
possibility is a simple failure on the appellant’s part to
concentrate and keep a proper lookout. We know
that this features
very commonly as a ground of negligence in relation to the driving of
vehicles. To some extent, this ground
of negligence can be regarded
as an instance of the maxim res ipsa loquitur. If a vehicle has
performed an unlawful and dangerous
manoeuvre, one which a reasonable
driver would not perform, and if there is no other explanation for
what took place (such as sudden
mechanical or medical emergency,
drunkenness or sleep), one concludes that, for whatever reason, the
driver failed to maintain
proper control of his vehicle (cf S v Von
Biljon [2012] ZAKZPHC 60 para 11).
[50] I should
mention that during oral argument Mr Mathewson suggested that the
appellant might have been faced by a sudden emergency
caused by a dog
or child running across the road. Of this there was absolutely no
evidence nor does it appear to have been even
suggested prior to the
hearing of the appeal. The two eyewitnesses who were travelling
behind the Audi did not say that they saw
a dog or child running in
either direction across the road and were not asked this in
cross-examination. The physical environment
to the left of the
northerly road appears from the photographs to have been veld, beyond
which was a walled estate; and to the
left of the southerly road was
veld, beyond which was a large vlei. It was not an environment in
which one would naturally expect
children or dogs to be crossing the
road. Poolman was not invited to consider whether the photographic
evidence could be explained
by such a sudden emergency. It is
nevertheless apparent from his evidence that there were no marks on
the road of sudden braking
by the Isuzu. Furthermore, the track marks
on the gravel to the left of the northerly road cover some distance
and indicate a gradual
drift rather than a swerving manoeuvre. The
subsequent steering (or over-steering) to the right could be regarded
as a swerve but
this was clearly a correcting reaction to the
leftwards drift and not due to the sudden appearance of a dog or
child.
[51] I make one
concluding remark, regarding the appellant’s claim of amnesia
in respect of the moments immediately prior
to and after the
collision. Even if that claim were true, the post-accident amnesia
would not mean that he was not in fact conscious
and in control of
himself at the crucial time; it would not be a defence – it
would mean only that he could not afterwards
remember what happened
(see Von Biljon supra para 11). However, I reject as false the
appellant’s assertion of amnesia. It
is peculiar that he was
able to remember the work he did that night, leaving the airport, and
even pulling away from the traffic
lights 900 metres south of the
collision, yet was unable to recall anything about the seconds before
the collision. He did not
suffer any serious injuries in the
collision which might have caused amnesia. On the scene he was
coherent and able to answer questions.
He was also able to answer
questions during the period at the hospital when he claimed
subsequently still to be suffering from
amnesia. The appellant lied
about having not drunk any alcohol the previous night which casts a
serious shadow across his credibility.
[52] In my view, the
conclusion was justified beyond reasonable doubt that the appellant
claimed amnesia because he wished to suppress
an incriminating
explanation and was unable to think of any convincing exculpatory
one. Immediately after the accident he was overheard
by Hendricks to
say that he had messed up and needed a lawyer. A couple of hours
later at the hospital he told Engelbrecht that
he must have fallen
asleep at the wheel. Although he may have fallen asleep as he drifted
to the left, he must have woken up before
his vehicle completely left
the road. He then steered (or over-steered) to the right. As Poolman
testified, that was a conscious
manoeuvre, and I do not believe that
the appellant did not remember it.
[53] For all these
reasons, I consider that the conviction on the charge of culpable
homicide was justified.
BAARTMAN J:
[54] I concur:
[a] In respect of
count 2, the charge of contravening
s 65(1)
of the
National Road
Traffic Act 93 of 1996
, the appeal succeeds. The conviction on that
count and the sentence imposed on the appellant in respect thereof
are set aside and
there is substituted for such conviction an
acquittal.
[b] In respect of
count 1, the charge of culpable homicide, the appeal fails. The
conviction on that count and the sentence imposed
on the appellant in
respect thereof are confirmed.
BAARTMAN J
ROGERS J
APPEARANCES
For Appellant:
Mr B Mathewson
Mathewson Gess
Inc
9th floor, Vunani
Chambers
33 Church Street
Cape Town
For Respondent:
Ms SM Galloway
Office of the DPP
Cape Town