Van Rooyen v S (CA&R 89/09) [2010] ZANCHC 2 (12 February 2010)

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO

IN THE HIGH

COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

Case No: CA&R 89/09

Heard: 08/02/2010

Delivered: 12/02/2010

In the matter between:

J.G. VAN ROOYEN Appellant

and

THE STATE Respondent

Coram: Lacock J et Mjali AJ.

JUDGMENT ON APPEAL

MJALI AJ:

[1] The appellant was charged in the Magistrate's Court, Upington, with driving or riding his motor cycle whilst under the influence of intoxicating liquor in contravention of section 65(1)(a) of Act 93 of 1996, alternatively, riding whilst the concentration of alcohol in his breath was not less than 0,24 milligrams per 100 millilitres in contravention of section 65(5)(a) of Act 93 of 1996.To these charges he pleaded not guilty. In the course of his plea explanation he placed the trustworthiness or correctness of the breathalyzer reading in dispute. At the conclusion of the trial he was convicted on the alternative and was sentenced to pay a fine of R1000.00 or in default to undergo three months imprisonment.

[2] With the leave of the trial court the appellant now appeals against his conviction only. In his three-pronged approach he challenged his conviction on the following grounds:

2.1 the record of the proceedings in the magistrates court is incomplete for the purposes of appeal;

2.2 the state’s evidence on the correctness of the operation of the dragger machine is lacking; and

2.3 the magistrate erred in finding that there was a duty on the appellant to prove that the dragger machine was not in good working condition and that its results were in accurate.

[3] The mere fact that the record is incomplete does not automatically entitle the appellant to the setting aside of his conviction and sentence. The test is whether or not the incomplete record makes it impossible to consider and adjudicate such appeal. In S v Chabedi 2005 (1) SACR 415 (SCA) at paras 5- 6 Brand JA said:

“On appeal, the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the court of appeal. If the record is inadequate for a proper consideration of the appeal it will, as a rule, lead to the conviction and sentence being set aside. However the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial. As has been pointed out in previous cases records of proceedings are often still kept by hand, in which event a verbartim record is impossible( see eg, S v Collier 1976 (2) SA 378 (C) at 379 A-D and S v S 1995 (2) SACR 420 (T) at 423 b-f).

The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal”.

[4] In this matter the parts alleged to be incomplete are the evidence of constable Dlamini, the arguments, the judgment as well as the sentence proceedings. In view of the fact that the appeal is directed only on the conviction, the missing portion relating to sentence proceedings has no bearing on the adjudication of this appeal. The magistrate reconstructed the missing portions. Before us the reconstruction was never challenged as inaccurate. Apart from that fact the record was in my view adequate for the proper consideration of the appeal on conviction. It follows that the conviction and sentence cannot be set aside for the reason of the incomplete record alone.

[5] I turn now to the issue of the correctness of the reading of the dragger machine. The appellant placed in issue that because the six month period of calibration of the dragger machine had expired at the time the test was conducted on his breath the reading produced by that machine could not be relied on without expert evidence being led as to the reliability thereof as well as the correctness of its analysis.

[6] It has by now become settled law that judicial notice cannot properly be taken of the accuracy of a dragger alcotest machine and that the party relying on such evidence must prove that the instrument gives correct measurements. This entails explaining its operation as well as attesting to the fact that it is proved to be trustworthy in its operation and that its result is proved to be correct. See S v Mthimkulu 1975 (4) SA 759 (A) at 764 para B, where Corbett JA quoting Wigmore, Evidence, 3rd ed. Vol. 3 pp. 189 – 190, stated:

“[W]hat is needed, then, in order to justify testimony based on such instruments is: Preliminary professional testimony(1) to the trustworthiness of the process or instrument in general(when not otherwise settled by judicial notice); (2) to the correctness of the particular instrument, such testimony being usually available from one and the same qualified person. Any process or instrument, furnishing abnormal aid to the senses, may thus be employed as a source of testimonial knowledge.”

This principle is still followed in our courts. See S v Bester 2004 SACR 59 (C),Price v Mutual & Federal Insurance CO LTD 2007 (1) SACR 501 (SELD).

[7] Mr Burger, a traffic officer, only qualified to operate the machine, testified that the machine was calibrated on 22 January 2007 and had to be calibrated every six months. The test was conducted a day after the six months period of calibration had expired. According to Burger the machine automatically performed all the tests that prove that it was in good working order and there was nothing wrong with the machine. The first test conducted on the appellant failed to yield any results. The second test gave a reading of 0,57milligrams per 100 millilitres.

[8] No further evidence was led by the State to prove the correctness of the results relied on. For Burger whose training was limited only to how to operate the machine, the process taken by the machine to examine the ethanol level in the breath as well as the working of the machine itself fell beyond his field of expertise. As such, his testimony as to its reliability and the accuracy of its results cannot be relied on as in essence it amounted to hearsay evidence especially in that the accuracy of such results was placed in issue.

[9] I turn now to the issue of whether the appellant had a duty to prove that the machine was not working properly and that its’ results were inaccurate. It suffices to state that it is trite that in criminal matters the onus rests on the State to prove its case beyond a reasonable doubt and not vice versa. The appellant had no duty to prove that the dragger machine was defective or that the results were inaccurate. Very early during the trial the appellant placed the condition of the machine and the accuracy of the results in issue and the State had to prove otherwise.

[10] On a conspectus of the available evidence, the State failed to prove its case against the appellant beyond reasonable doubt. In the result, I make the following order:

The appeal succeeds. The conviction and sentence are set aside.

_____

GNZ MJALI

ACTING JUDGE

NORTHERN CAPE HIGH COURT.

I concur.

H. LACOCK

JUDGE

On behalf of the Appellant Adv J.J. Schreuder Instructed by On behalf of the Respondent Adv.D.P. Olivier Instructed by Office of the Director of Public Prosecutions, Kimberley