Di Pasquale v S (A159/2011) [2011] ZAGPJHC 104 (6 September 2011)

Di Pasquale v S (A159/2011) [2011] ZAGPJHC 104 (6 September 2011)

The magistrate erred by taking judicial notice of the accuracy and operation of the Dräger breathalyser machine based on her own experience and a demonstration attended outside of court. No evidence was led by the State regarding the machine's operation, calibration, or reliability, nor was the operator's competence adequately established. The appellant was deprived of the opportunity to challenge these facts in court. The law requires that the State lead evidence on the trustworthiness of measuring instruments and the skill of their operators. Judicial officers may not rely on personal knowledge or experience gained outside the courtroom to establish technical facts. Accordingly, the...

Citation
[2011] ZAGPJHC 104
Parties
Appellant: Di Pasquale Gerald; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 September 2011
Case Number
A159/2011
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
W L Wepener, H Mayat
Legal Topics
Driving Under Influence, Judicial Notice, Admissibility of Evidence, Measuring Instruments, Expert Evidence
Criminal Law Driving Under Influence Judicial Notice Admissibility of Evidence Measuring Instruments Expert Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Di Pasquale Gerald

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate was entitled to take judicial notice of the accuracy of the Dräger breathalyser machine without evidence.
  2. 2 Whether the State discharged its burden to prove the operation and reliability of the measuring instrument.
  3. 3 Whether the operator's competence and training were adequately established.

Ratio Decidendi

The magistrate erred by taking judicial notice of the accuracy and operation of the Dräger breathalyser machine based on her own experience and a demonstration attended outside of court. No evidence was led by the State regarding the machine's operation, calibration, or reliability, nor was the operator's competence adequately established. The appellant was deprived of the opportunity to challenge these facts in court. The law requires that the State lead evidence on the trustworthiness of measuring instruments and the skill of their operators. Judicial officers may not rely on personal knowledge or experience gained outside the courtroom to establish technical facts. Accordingly, the...

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence imposed by the magistrate are set aside.