S v Bernard (1) (CC 7 of 2002) [2005] NAHC 48 (19 August 2005)

IN THE HIGH COURT OF NAMIBIA CASE NO. CC 0 7 / 2 0 02 In the m a t t er between: THE STATE v e r s us HENDRIK BARNARD CORAM: GIBSON, J. Heard on: 2 0 0 3 . 0 2 . 0 3, 2003.02.07, 2003.06.16, 2003.11.03-28, 2004.04.5-6, 2004.07.6-7, 2004.09.21-22, 2 0 0 5, 02.14-15, 2005.04.04 Delivered on: 2005.08.19 JUDGMENT GIBSON, J.: The accused is charged on three c o u n ts u n d er Road Traffic Ordinance no. 30 of 1967. On the first charge he's charged with contravening Section 140(1)(a) as a m e n d ed a nd read with Sections 1, 60, 146 among other subsections as set out in the indictment in t h at he w as driving u n d er t he influence of intoxicating liquor. In the alternative he is charged with contravening Section 140(2)(a) of the same Ordinance as amended a nd read together with subsections 1, 60, 145, 147 a nd the others as set out in t he indictment, i.e driving with excess alcohol. Count 2, t he a c c u s ed is charged with contravening Section 138(1) as a m e n d ed by Section 160, 138(2) subsection 4 of 138 a nd section 145, 148 a nd 180, a nd others as set o ut in t he indictment on record, namely reckless or negligent driving. The alternative of t h at account c h a r g es the a c c u s ed with the contravention of section 139 as amended r e ad together with section 160, 147, inter alia, t h at is - inconsiderate driving. In count 3, the accused is charged with contravening section 4 as read with section 4(2), section 149, t h at is - operating an unlicensed motor vehicle on a public road. He entered pleas of n ot guilty to c o u n ts 1 a nd 2 a nd their alternatives b ut admitted to contravening the subsection in c o u nt 3, namely driving an unlicensed vehicle, while raising a plea t h at he h ad no mens rea. The accused did not m a ke any further s t a t e m e nt a p a rt from t h at admission a nd p ut the State to prove to t he accepted s t a n d a rd in the criminal proceedings, ie proof beyond reasonable doubt. The State's case lay heavily on the s h o u l d e rs of S u p e r i n t e n d e nt Sipapela, a m e m b er of the Windhoek City Council Traffic D e p a r t m e nt t h e n, b ut I believe he h as since become more t he desk p e r s on t h an traffic patrol officer. I will refer to t he S u p e r i n t e n d e nt either as Sipalela or the Superintendent. Sipalela says he was driving along Independence Avenue going towards K a t u t u ra at a b o ut 15:25 on traffic patrol duties w h en he saw a vehicle a h e ad of him on t he outer lane, swerving from side to side as it approached t he j u n c t i on a nd traffic lights with Hosea Kutako Road a nd the Independence Avenue. At the same time the driver did n ot indicate a change of direction or lane so he became suspicious a nd stopped t he vehicle. He parked in front of it a nd walked back towards the car. As he approached, the driver got o ut a nd as he did so he supported himself on the top of t he roof of the vehicle by getting hold of t he doorframe, at the top. In cross-examination Sipapela said the car did n ot quite leave its lane of travel b ut straddled the lanes the car being halfway, j u st once. In a s t a t e m e nt which he m a de in A u g u st 2000 Sipapela said t he car w as approaching him, a nd differed from w h at he h ad earlier said in t he evidence. The S u p e r i n t e n d e nt said t he Accused asked him w h at is t he m a t t e r? He told him t h at he suspected him of being d r u nk a nd asked if he h ad any alcohol, he denied it. The S u p e r i n t e n d e nt told him t h at he wanted to do a breathalyser-test a nd asked for an alcohol test. He t h en conducted the test and it proved positive. Sipapela said accused showed signs of d r u n k e n n e s s, h is eyes were red, h is skin pale, h is tongue heavy a nd he spoke slowly. He w as also argumentative a nd threatened Sipapela t h at h is career would soon end. Sipapela said he noticed t h at there w as a w o m an in the car, and she held a half c o n s u m ed bottle of beer. He took accused to the police station where he collected a blood sample kit. The kit was allocated n u m b er 4 1 3 / 1 9 9 9 / 0 8 / 2 2. He endorsed t h at on the kit. He also collected the appropriate forms to be completed by the Doctor on drawing t he blood. He said the kit w as sealed a nd inside there w as a n o t h er u n u s ed seal a nd some labels, a needle and a tube. When he got to the hospital he filled in the personal particulars on the form, now Exhibit C in Court on the top left h a nd a nd he left t he rest for the doctor to fill u p. Sipapela said the seal n u m b er on t he kit w as HGA555354, so the inner seal, according to practice would be the n u m b er next following u p on t h at chronologically, ie 5 5 5 3 5 5. The examination started at 15:55 a nd w as completely at 15:58. The doctor explained every step to t he accused as she broke the seal in front of him. She drew his blood a nd placed t he label which she signed on t he bottle. He too signed. Sipapela identified h is writing on Exhibit C. The kit w as sealed again in front of the accused. Sipapela said the accused's sample kit w as destroyed after the forensic analyses, so it is not available for whatever further u se in t h e se proceedings. He w as shown an u n u s ed kit to explain t he p r o c e d u re he followed. The boxes were b r o u g ht to him, they are exhibits in court. If I may observe, given t h at there were queries concerning the blood sample by t he a c c u s ed at the time one would have expected t h at the state would have e n s u r ed (indistinct) t h at the laboratory at the institute would preserve the accused's kit until after the proceedings, or at least before destruction t h at t he accused was consulted to e n s u re t h at no further issue would be raised concerning t he sample. T h us for instance, t he accused's contention in t h e se proceedings is t h at h ad t he r e m a i ns of the sample been available DNA test could have been conducted on the r e m a i ns of t he blood sample to establish the identity of t he giver of the blood. As it is, t h at c a n n ot be done. I would like to suggest, if it is not already t he practice t h at s u ch r e m a i ns after t e s ts and analyses by t he laboratory, are preserved until t he case is disposed off or t he a c c u s ed person's consent, is obtained before it is destroyed, to give him or her a chance to consider w h e t h er there is any point to be m a d e. Sipapela said on arrival at the police station at 16:10pm he completed a n o t h er form a nd gave details of a r r e st in Exhibit D, an application for scientific examination which he completed. Sipapela said he entered all the details of the case, t he seal n u m b er as entered in Exhibit "C" by the Doctor. Later t he analysist's certificate w as s t u ck on the back of "C", by whom or w h en is not clear. The accused h as complained in t h e se proceedings t h at t h is was way of producing a piece of vital evidence improperly. There is merit in t h at criticism. The certificate should have been produced in the u s u al way by t he maker, h er self/him self. It w as p ut to Sergeant Sipapela t h at from the scene of t he accident he a nd accused w e nt straight to hospital where the kit w as b r o u g ht to the s u p e r i n t e n d e n t. Sipapela w as referred to the investigation diary in which he w as asked a direct question on t h is point by State counsel. The answer noted down as given by him at the time is t h at he agreed t h at he took the accused to t he hospital directly Sipapela h ad no meaningful reply. Continuing h is evidence in chief Sipapela said he noticed the expired licence disc on the accused's vehicle as he a p p r o a c h ed it on foot. But in a s t a t e m e nt made s u b s e q u e nt to t he incident he said he noticed the expired disc m u ch later on after t he incident. S u p e r i n t e n d e nt Sipapela's attention w as drawn to the photographs of the blood sample kit of the accused t a k en on the day. He explained h is practice in sealing t he kit. He said the box is tied with a string a nd t he seal is placed on the string. Sipapela d e m o n s t r a t ed how the a c c u s e d 's blood kit w as sealed by himself. His attention w as t h en d r a wn to the p h o t o g r a p hs of t he accused's kit t a k en later t h at day. These show t h at the label is placed u n d er the string. Sipapela said t h at this w as n ot t he way he left the a c c u s e d 's kit, t he position seems to have been reversed. He said Exhibit M1 p h o to A s e e ms to have been tempered with a nd said he w as not responsible for the alteration. Sipapela said as far as he could r e m e m b e r, he did n ot p ut h is n a me on t he blood kit. Mr Sipapela t h en agreed in cross-examination t h at meticulous care is d e m a n d ed w h en handling the kit, from the beginning to the time it is s u b m i t t ed for analysis. This is necessary he said to e n s u re an u n b r o k en c h a in is established t h r o u gh evidence t h at the blood drawn from t he accused is the correct blood sample which is submitted for t e s ts at the forensic laboratory at t he Institute. The s u p e r i n t e n d e nt agreed t h at Exhibit ' C, the proforma completed by Dr Shiweda after drawing blood from the a c c u s ed does not show who gave t he kit to the doctor. Asked a b o ut s t a t e m e n ts he made, Sipapela said he only m a de two proforma s t a t e m e n ts a nd a s t a t e m e nt in August 2000. He agreed t h at there is no mention of the a c c u s e d 's condition at the time of a r r e st in any of the s t a t e m e n t s. The omission of this i m p o r t a nt piece of evidence is unhelpful. If I may p a u se to observe, in this case, m i s t a k e s, misinformation, u n a u t h o r i s e d, alteration of one witness's s t a t e m e nt by another, irregularities s u ch as signing a deposition of one witness by another b e c a me common place. Take for example Exhibit E, the s t a t e m e nt should have been filled in by t he p e r s on who took the accused to hospital to give blood, b ut n ot so. Instead Constable Katjivena t he charge office sergeant signed it a nd Katjivena swore to its t r u t h f u l n e ss u n d er oath, yet he simply h ad no knowledge of the correct facts. Another example of t h is irregular practice is Exhibit 'J'. This d o c u m e nt is a replica of Exhibit 'E' above and, Exhibit 'J' was created, evidently to deal with the irregularity of Exhibit 'E' so t h at the s u p e r i n t e n d e nt who deposed to it actually swears to it u n d er oath. F u r t h er the creation of Exhibit J w as done m u ch later on on, b ut it p u r p o r ts to have been m a de a nd on t he day ie the 2 7 / 8 / 9 9. T h us the whole d o c u m e nt is false from the beginning to the end. Yet a n o t h er example is Exhibit F. In this d o c u m e nt t he seal no is altered by somebody who does not a u t h e n t i c a te it. The times stated are confused a nd totally misleading. If one looks at the seal n u m b er alone the blood sample kit booked o ut to the s u p e r i n t e n d e nt is shown as 555345. This n u m b er is altered by an u n k n o wn p e r s on b e c a u se it is n ot a u t h e n t i c a t ed to 55354. There is no indication by date of where a nd w h en t h is w as done. In this d o c u m e nt Sipapela a d ds to t he confusion by filling in some p a r ts of t he s t a t e m e nt t a k en from a n o t h er witness', a police officer. Given Sipapela's admission t h at t he blood kit in photograph Exhibit 'M' 'A' produced as t h at of the accused, h ad h ad the labelling changed, a nd t h at it appeared t a m p e r ed with, it is n ot easy to dismiss the changing n u m b e rs on the seals in Exhibit F as a mere mistake. The s t a t e m e n t s, Exhibit K & L were h a n d ed in. Both are by Sipapela. Exhibit K w as m a de on the 2 7 / 8 / 99 at 16:20pm. The second, Exhibit 'L', which is a repeat of Exhibit K is dated 3 / 8 / 2 0 0 3. Apart from t he fact t h at 'L' refers for t he first time to the expired licence disc which the s u p e r i n t e n d e nt claims he noticed m u ch later on, n ot as he approached the car on arrest, neither s t a t e m e nt m e n t i o ns the condition of the accused at the time of arrest. Given t he detailed g r o u n ds listed to back up the s u p e r i n t e n d e n t 's opinion t h at accused w as d r u n k, I would expect t h at the w i t n e ss could not possibly have r e m e m b e r ed t h at detail without evidence t h at he wrote it down at t he time. It is stretching credulity far too far to accept t h at Sipapela in h is position as traffic officer, even if it h ad become largely deskwork, would have remembered the details given so long after an event t h at w as so u n r e m a r k a b l e. I would tend to believe him if he h ad said t h at he can't r e m e m b er t he details. Indeed as he said of the evidence of signing the blood kit sample. Taking t he evidence, chronologically, Constable Morkel, a junior to the S u p e r i n t e n d e n t, took the alcotest to him a nd confirmed the readings. He said he sent Constable Louw to t he station to deliver the a c c u s e d 's car. He recalls making a statement, Exhibit W, on 4 / 8 / 2 0 00 at t he r e q u e st of Constable Moller. He said he could n ot remember a thing at t he time b ut Moller gave him the details which he wrote down. He took the oath on the day, b ut the commissioner's s t a mp w as placed on it on 1 1 / 8 / 2 0 0 2. He agreed t h at this is n ot correct. He said the time of arrival at the scene shown as 15:40 in the statement, w as h is own estimation, calculated from the time of the accident as given to him by Constable Moller which w as 15:35pm. So he could n ot have got to the police station at 15:35 as claimed. Morkel denied t h at he went to K a t u t u ra Police station to collect the blood kit with Constable Louw for Sipapela. It is my opinion, t h at Morkel is a n o t h er classic example of the failure to a d h e re to t he rules of evidence, in as m u ch as he swore u n d er o a th to t he t r u th of something t h at he simply does not and did not k n ow anything about, from information supplied to him by officer Moller. This, unfortunately became the n o rm in t h is case. It should be ruled out of Court. Constable Katjivena w as the duty sergeant from 4pm till midnight. He referred to the O. B. Book, Exhibit N, as the r u n n i ng record of h a p p e n i n gs at the police station. Looking at Exhibit N, he cross referenced to t he n u m b e rs of blood kits he booked out a nd booked back in with blood s a m p l es when he w as on duty. For instance he booked o ut kit n u m b er 2415 out at 16:13pm as serial n u m b er HGA 556142. A signature is s h o wn against the entry. This w as received back in as 2419 (p541). Entry serial n u m b er 2420 w as received at 1700, a nd t he s u s p e ct w as detained by the s u p e r i n t e n d e n t, u n d er C R 4 1 3 0 8 / 99 a nd signed by him then. Sergeant Katjivena explained t h at above entry 2422 which he wrote, there is a n u m b er 2410 which is entered. B ut he said the serial n u m b er above 2410 is not in h is writing (p549). Mr Katjivena said he entered b o th 2419 a nd 2422 (black eye) on the same day t h at he got t he kits. He explained t h at he never m a de entries up to 2470 t h at day, w h at a p p e a rs to be 2470 is 2410. He said the kits were properly sealed except for t he Moller sample, where the string w as loose a nd an opening in t he box is evident even in the photograph, Exhibit MB. He said t he accused's blood sample kit 2422 h ad t he sticker the box a nd t he string on top (p562 bottom) with t he metal seal holding the string together. / If he is correct t h en t h is is contrary to S u p e r i n t e n d e nt Sipapela's evidence a nd d e m o n s t r a t i on in Court on Exhibit 1 (the box). It m e a ns t h at in t he 50 missing m i n u t es w h en t he kit w as submitted a nd the charge w as b r o u g ht against the a c c u s ed the sealing of the accused's blood sample kit h ad been altered. Sipapela h ad no hesitation in showing how the kit w as w h en he sealed it. He looked at t he 'OB' Book a nd said he recognised t he entry by the serial n u m b er at t he side CR 4 1 3 / 5. In the photograph, accused's sample is "A". He m a de entries in Exhibit N serial n u m b er 2430 at 19:35pm a nd a reference to the accused being released after he w as charged by Sergeant Klukowski. He agreed he entered a cross ref n u m b er 2428 above 2430. He checked again a nd said the writing 2428 w as n ot h is (p570). Several m a t t e rs are of concern in t h is evidence. Sergeant Katjivena's c o n t e m p o r a n e o us note entered in the OB Book, Exhibit "N", is in place where Moller signed for booking o ut of the blood kit entered as 2 4 1 5. There is no evidence of a signature against t h at of S u p e r i n t e n d e nt Sipapela in the OB Book Exhibit N - booking out of the a c c u s e d 's kit. The signature is missing. Secondly if Sipapela got back to t he station at 16:10pm with the blood sample, and the accused; t h is w as before Moller booked out h is kit a nd left for the hospital at 16:13. B ut why was the blood sample of the accused, entered as 4222 received at the station at 5pm. Where w as the sample in t h e se 50 m i n u t e s, why w as it n ot formally h a n d ed in on arrival to e n s u re its safety. More importantly can one credit t h at meticulous care w as rendered during the custody of the accused's blood sample. If you also add the alterations of the serial n u m b e rs in Exhibit E & F, t he confusion a b o ut t he link in the chain perceptibly is increased. The h a l l m a rk of Constable Katjivena is h is inability to adhere to correct p r o c e d u r e s. He agreed he m a de additions in two affidavits deposed to by other persons, ie Exhibit E 85 F. Constable Tjikeama said he w as t he charge office sergeant from 8 a m - 4 pm on 2 7 / 8 / 0 0 2. He recalls booking only one (blood sample) kit at 15:35. He entered it in Exhibit N, booked o ut to Sipapela, as serial n u m b er 2410. Tjikeama looked at Exhibit F (statement of charge office sergeant) b ut said t h o u gh this w as in his n a me he only partly filled it namely t he top part. Tjikema gave n u m e r o us examples of other irregularities in the keeping of records, ie Exhibit N, where alterations are m a de and not acknowledged a nd sometimes by someone else who h ad nothing to do with the initial entry. This irregular practice extended to affidavits which are all on record w h e t h er or w h en he swore u n d er o a th to h is s t a t e m e nt Exhibit F is n ot clear. The State a s k ed to h a nd Exhibit N & V which s t a t e m e n ts were m a de by Tjikeama. These were of no value evidentially, and c o m p o u n d ed t he confusion; the details are on record. Constable Moller said he w as on duty on 2 7 / 8 / 99 a nd dealt with a d r u nk driving charge. He booked out the blood kit a nd signed for it at 16:13pm. On returning, he h a n d ed the blood sample to the sergeant on d u ty a nd saw accused sitting down. An a r g u m e nt with Constable Lifasi a nd Uupindi arose because t he kit w as not properly sealed. He referred to Exhibit 'M'. In 'B' t he string w as a little loose. According to Exhibit N Constable Moller said his sample w as booked back in at 16:50pm. Constable Gaseb said he w as approached by Constable Moller i.e. a year after t he events to correct an error in t he blood sample. He consulted Exhibit N to do the correction b e c a u se he h ad no recollection of it. He said a p a rt from t h at correction in Exhibit F, n o ne of h is writing a p p e a rs in Exhibit F. Lifasi w as on d u ty at t he s a me time as Uupindi, a nd w as present w h en Moller b r o u g ht t he blood kit. He m a de s t a t e m e n ts (Exhibit JJ a nd KK) a nd never referred to the condition of the accused (KK are s t a t e m e n ts of Lifasi). Exhibit J J a nd KK are those of Lifasi, the correct labelling is on record. Four y e a rs later however in this court he p u r p o r t ed to deal with t h is subject with full memory. This too w as a n o t h er example, in my view, of irregularities being committed w h e t h er innocently or otherwise in regard to affidavits a nd record keeping at this police station. This n e e ds serious attention by t h o se in authority. There's very little value for the State in t he witness's evidence. The accused elected to give evidence on o a th a nd followed what he'd earlier p ut to witnesses. Although State Counsel argued t h at the accused never deposed to his version a nd never p ut his case to the witnesses, t h is is n ot correct according to my reading of the record. If you examine t he record pages 325, it is clear t h at the accused p ut h is case to t he witnesses. It is the State's contention t h at the a c c u s e d 's case changed from time to time, claiming maliciousness on t he p a rt of various individuals representing t he State which are n ot s u b s t a n t i a t e d. In our adversarial system, cross-examination c an be severe, probing, a nd a party is d u ty b o u nd to explore t he evidence being given a nd to test to their best ability. If I may comment, in t h is case it is regrettable in any event that, a lot of time w as s p e nt on b o th sides I would say, in p u r s u i ng i s s u es which were n on i s s u es in t h is case. Unfortunately on both sides a certain lack of objectivity prevailed. It may have been wiser and better if the case for i n s t a n ce on the p a rt of t he State, h ad been handled at t h is stage by another officer t h an Ms Verhoef in view of her close affinity to the decision maker or the officer who was t h en responsible a nd in charge of prosecutions at the time. No more need be said on t he subject. The defendant's case w as t h at he entered Independence Avenue from the s o u th into Hosea Kutako Road, t h at he w as in the middle lane a nd w a n t ed to t u rn right, so he moved a nd indicated t u r n i ng right t o w a r ds Okahandja. He said he t h en noticed the patrol car pulling o ut alongside him. He w as i n s t r u c t ed to pull off the road, he p ut h is left indicator a nd went back, a nd pulled off the road. He rolled down h is window and asked w h at w as t he problem? The officer asked him to get out a nd he did so. T h en Constable Morkel a nd Louw arrived a nd he was breathalysed a nd he w as t a k en to the hospital by S u p e r i n t e n d e nt Sipapela. He said he noticed the kit w as delivered to t he Superintendent at the hospital. The doctor opened t he kit in front of him and explained the procedure involved t h en S u p e r i n t e n d e nt Sipapela packed the kit, placed his n a me on it a nd they proceeded back to the police station. He sat a nd waited at the desk a nd h e a rd Uupindi and Lifasi a nd Moller discussing about the sample. He said he never interfered as it w as claimed or stood up a nd staggered as claimed by Lifasi a nd Uupindi. He m a i n t a i n ed t h at he is not guilty b ut admitted to the contravention of t he Ordinance in c o u nt 3 b ut without mens rea. This is irrelevant. T h at is so m u ch for the evidence in the case. Regarding c o u nt 1 of the indictment, ie contravening section 140(l)(a) driving u n d er t he influence of intoxicating liquor, there is a well establish proposition of law t h at the b u r d en of proof lies on the State, to prove beyond reasonable d o u bt t h at t he accused's inability to drive w as c a u s ed by a c o n s u m p t i on of alcohol or a narcotic drug. In t h is case the State's allegation is t h at the accused w as u n d er the influence of alcohol. I'm satisfied t h at the accused h ad c o n s u m ed alcohol. To prove t he case, the State h as relied on the evidence of laymen as opposed to medical opinion following u p on an examination. It is trite t h at t he opinion of a laymen is admissible a nd may be sufficient to prove the charge, b ut t h is is only so if s u ch opinion is backed by facts: State v Hardley 1970 (2) SA (NPD) 223 at 226, State v Mutora 1968 (2) SA 773 (O), the head note, State v Adams 1983 (2) SA 577, again I h ad a look at the head note only. The expression 'under t he influence of, h as been held to m e an t h at the driving efficiency of the motorist m u st have been impaired by dulling h is vision, blinding h is j u d g m e nt or by m a k i ng h is m u sk given reactions to c o m m u n i c a t i o ns from his brain slavish: See R v Spicer 1945 AD 432 at 436, also Tatihen v Rex 1938 NPD 387. The question here is w h e t h er the State h as proved the criteria essential to be proved to show t h at the a c c u s e d 's driving was impaired by t he alcohol c o n s u m e d? The State's case on this aspect r e s ts entirely on t he evidence of S u p e r i n t e n d e nt Sipapela, who is a single witness. B ut t h e re is qualified s u p p o rt for t he claim by Sipapela. This is from t he evidence of Constable Katjivena who only noted t h at t he a c c u s e d 's b r e a th smelt of alcohol at the time he w as b r o u g ht to t he police station, a nd t h at he w as leaning on the desk or against t he desk. Whether t h at is the only inference t h at could be drawn from leaning or resting on t he desk is debatable, but, be t h at as it m ay Katjivena said he did n ot otherwise observe the accused b e c a u se he w as very busy. If Lifasi a nd Uupindi m u st be believed, a close examination of the accused would not have been necessary to determine the state of h is condition or the state of h is d r u n k e n n e ss if indeed he h ad been staggering about. The observations of Katjivena p u ts further doubt on the opinions of the two officers. Besides t h is lack of support from t he other witnesses, the other w e a k n e ss in t he State case is t h at Sipapela did n ot mention the g r o u n ds u p on which he m a de the claim of d r u n k e n n e ss may of h is s t a t e m e n t s. It is in evidence t h at Sipapela m a de a n u m b er of s t a t e m e n ts at t he time or nearer t he events, a nd t h at in n o ne of those s t a t e m e n ts did he ever refer to t he condition of the accused at the time. In spite of the obvious importance to t he State's case, of which he w as aware of, t h at there is nowhere mentioned the a c c u s e d 's condition t h at can be verified objectively is an added w e a k n e s s. T h at n ot even in the s t a t e m e nt he m a de almost three years later in A u g u st 2000 p u ts an obvious doubt. Apart from t h is carelessness in the evidence of S u p e r i n t e n d e nt Sipapela, there are a n u m b er of other weaknesses in h is evidence, which are too n u m e r o us to list. To do so, in t h is j u d g m e n t, would m a ke the j u d g m e nt inordinately lengthy. Suffice to say t h at at the end of the day no reliability or credibility can justly a nd properly be attached to any sufficient degree to the witness's account, concerning the events on Independence Avenue t h at day. The g r o u n ds t h at Sipapela gave to s u p p o rt his opinion are listed, a nd are on record. Even the claim t h at the accused swerved from side to side later got qualified in cross-examination w h en he explained t h at there w as one swerving from one lane to the other, which only resulted in a straddling over t he line, r a t h er t h an leaving t he lane completely. Taking t he evidence as a whole on t h is count, noting the deficiencies from a n u m b er of witnesses including t he m a in witness t h at I've described in t h is aspect of the case, a nd weighing all of t h em together with the accused's a d a m a nt denial of Sipapela's claim of w h at he observed, I feel t h at the State's evidence is not as water light as the w i t n e ss claimed. This aspect is not satisfactory at all in n u m e r o us respects save for t he fact t h at the accused did admit ultimately to consuming some alcohol beforehand. Even t h en I am n ot satisfied beyond reasonable t h at there is t r u th in all the evidence deposed to in t h is m a t t er t h at there w as any impairment to t he driving by the accused as claimed by the one witness in the State's evidence. It is noteworthy t h at S u p e r i n t e n d e nt Sipapela h ad sought to rely, a nd hoped to rely on Constable Morkel to support him. But observation of Morkel as recorded is t h at he never paid any attention, he never noticed a n y t h i ng particularly a b o ut t he a c c u s e d 's condition. In reference to t he evidence of Constable Morkel, concerning h is observation of the condition of t he accused, the Spicer case, which I have quoted above is instructive. In t h at case t he Court gave examples of the typical behaviour of a d r u n k en driver a nd said, ... The driver on probably intoxicating liquor h as induced an e x u b e r a nt or over optimistic frame of m i nd which c a u s es him to take r i s ks e.g. to drive at an excessive speed or a s s u me t h at o t h e rs will give him the right of way which he would not have t a k en a p a rt for t he liquor he h ad consumed", t a k en from page 436 of the report. If one t e s ts t he evidence herein against the typical behaviour what is of note is a total lack of exuberance on the p a rt of t he accused. The evidence of t he S u p e r i n t e n d e nt w as t h at the accused was driving at a n o r m al speed of 50 - 60 kilometres an h o u r, which is permitted on t h at p a rt of the road, t h at at t h at time of the day at 15:25pm t he traffic w as moderate, a nd w h en he flagged him down to pull off t he road, the accused promptly obliged a nd pulled off. The action following u p on the driving described would appear to be very m u ch at variance to the criteria, pointed out in t he Spicer case, in the p a s s a ge I have j u st quoted. T h at is all I need say on t he evidence, on c o u nt 1. As I pointed o ut I am n ot satisfied t h at t r u th h as been proved beyond reasonable d o u bt or t h at it h as been established t h at the a c c u s e d 's driving w as influenced by intoxicating liquor. As regards t he alternative c o u nt to c o u nt 1, I will leave t h at for t he time being, a nd r e t u rn to it later. I t u rn to consider c o u nt 2, and its alternative, ie reckless or negligent driving a nd alternatively, inconsiderate driving. Cooper on S o u th African Motor Law, at page 548 says, "The test as to whether an accused is guilty of recklessness or negligence is the s a me in criminal law as well as civil cases. The question to be answered being, did the accused exercise t h at s t a n d a rd of care and skill which would be observed by the reasonable m a n? In R v Meiring 1927 AD 41 at page 46, Rex v Swanepoel 1945 AD 444 at 448, followed in the State vs Wells, the reference of which I shall supply shortly. The State's contention is t h at the a c c u s e d 's swerving remained unexplained, t h at t h e re is no reasonable explanation for it, t h at accordingly t he a c c u s e d 's swerve a m o u n t ed to negligent driving. And in the r e s u lt t he accused failed to drive with the degree of care and skill expected of motorists. On t he facts of t h is case the question I would like to pose is, would a reasonable driver in the position of t he a c c u s ed have foreseen t h at swerving from one lane to another lane w i t h o ut putting the indicators on, would have resulted in h a rm or a collision with a n o t h er vehicle or pedestrian? Given the time of day as 15:25 pm at the time, which was said to have m o d e r a te traffic. The answer is in t he negative. In the case of Regina v Wells, I referred before, reported in 1949 (3) SA 8 3, at page 88 t he Court p ut the test, t h us "Factually the question is whether in any given circumstances a reasonable man would have foreseen the possibility of harm and governed his conduct accordingly. The decision varies from case to case and is dependent on a consideration of all the circumstances." In my view weighing Sipapela's own claims, I do not consider t h at it could be said t h at t he accused w as guilty of driving without the reasonable care a nd attention even in h is condition, which is t h at he h ad c o n s u m ed some alcohol. Besides, t he accused denied the alleged straying from one lane to another. His evidence is t h at he actually p ut on h is indicators to t u rn right at the time, which he t h en changed to t u rn left when the officer flagged him down. This explanation c a n n ot be dismissed as being u n r e a s o n a b le or impossibly t r u e. I therefore find him n ot guilty. I will n ot dwell further on t he alternative count to t h at charge. In my view it follows t h at t h e r e 's no question on t h is evidence of any inconsiderate driving. He is found not guilty on t h at c o u nt also. I t u rn t h en to t he alternative charge to c o u nt 1, which I p ut aside earlier, t h at is a contravention of Section 140(2) of Ordinance 30 of 1967, ie driving with an excessive blood alcohol level. Subsection (2) of Section 140 provides as follows: If in any prosecution for a contravention of the provision of subsection (2) it is proved t h at the concentration of alcohol in any quantity of blood t a k en from any part of the body on the person concerned w as n ot less t h an 0.08 g r a ms per 100 millilitres of blood at any time within two h o u rs after t he alleged offence, it shall be p r e s u m e d, u n l e ss the contrary is proved t h at s u ch concentration w as not less t h an 0.08 g r a ms per 100 millilitres at t he time of the alleged offence. In this case no issue is raised concerning w h e t h er or n ot the accused or r a t h er t he blood sample p ut forward as t h at of the accused w as over the limit and, there is no issue as to the time of taking of t he blood sample, whether it w as t a k en within the time limits, except insofar as there is criticism of t he n u m e r o us alterations, I will a t t e nd to question of reliability of the explanations p ut forward later. The major question, t h at is w h e t h er the blood sample contained in kit box H G / 5 5 5 / 3 55 w as t h at of the accused? The question is whether the kit box containing t he blood drawn from the a c c u s ed w as or w as not tempered with? And whether the c o n t e n ts d r a wn by Doctor Shiwedha from t he a c c u s ed were still the same sample t h at w as submitted to the Forensic Science Laboratory by Constable Coetzee who h ad t a k en it from the safe at the police station? In laymen's language, h as t he chain been proved to h a ve been meticulously safeguarded between the drawing of t he a c c u s e d 's blood sample a nd t he submission of the accused's blood s a m p le to the Forensic Laboratory at t he Institute? The evidence of t he taking of the blood sample from the accused is t h at a kit contained a white polythene box is drawn from the police station safe, t h at outside, t he box is tied cross ways with a string t h at is k n o t t ed a nd sealed with a m e t al seal, with a seal n u m b e r. Inside t he box itself, is a t u be with a needle, with which t he blood is drawn from a suspect, a label, seal n u m b er which is sequentially linked to t he n u m b er on the outside. So-what it m e a ns is t h at H G A 5 5 5 / 3 5 54 being the seal n u m b er outside would be followed sequentially by t he seal n u m b er H G A 5 5 5 / 3 5 5 5. There is no question h e re t h at reportedly the seal n u m b er H G A / 5 5 5 / 3 5 54 and the seal n u m b er H G A / 5 5 5/ 3555 were evident a nd p r e s e nt when the kit w as produced at the Laboratory, therefore there is no issue there. The question, a p a rt from the various alterations and interference with the entry in the records, is n ot whether the n u m b er is H G A / 5 5 5 / 3 5 5 54 or H G A / 5 5 5 / 3 5 5 5, the issue is whether t he c o n t e n ts contained in the bottle inside the kit box had not been tempered with? It s e e ms to be t he State's evidence as m u ch as t h at of the defence t h at the original, sealing of the box by S u p e r i n t e n d e nt Sipapela, according to Sipapela, as well, w as interfered with, t h at therefore t he seal w as removed a nd subsequently replaced in t he m a n n er in which it is s h o wn in the photograph a nd which Sipapela said h ad n ot been t he way he left it. That s e e ms c o m m on evidence with Sipapela. If you compare exhibit 1 u p on which Sipapela illustrated how he h ad parcelled t he blood sample against t he photograph of t he box in Exhibit Ml (A) which he did n ot acknowledge as his, there is no m a t ch and, the evidence s p e a ks for itself. There is no d o u bt t h at t he two are very different. The question is, w h en was t h at alteration done, a nd by whom a nd to w h at p u r p o s e? At the end of t he day, I ask, can the Court say t h at t he State h as proved beyond reasonable d o u bt t h at the sample d r a wn by Doctor Shiwedha w as t he s a me sample t h at w as tested a nd t a k en from the bottle at t he Laboratory/Institute by Ms Namundjebo? Anyway, concerning t he practice, the sample is resealed by placing it inside t he box after t he blood is drawn, a nd the inside seal label is placed outside with t he sequential seal n u m b er which should t h en be on the label, following u p on the one t h at w as previously on the outside of the box a nd r e t u r n ed to the officer. It is common c a u s e, a nd agreed by all State w i t n e s s es t h at every step m u st be t a k e n, a nd it is of great importance, to e n s u re t h at t he seal is not, c a n n ot be tampered with, t h at it is essential in this sort of case to establish an u n b r o k en chain linking the contents drawn to t he c o n t e n ts submitted for test at t he Laboratory. Doctor Shiwedha's evidence w as not, as I've pointed out, w h at one would have expected from an experienced medical doctor. She admitted t h at she never entered t he particulars of t he occurrence, she couldn't r e m e m b er who h a n d ed h er the blood kit. She couldn't remember w h e t h er she repacked it herself or gave it to somebody else to repack it. It is interesting to note according to Doctor Shiwedha, t h at there were more t h an one traffic officer at the time t h is blood sample w as tested, w h e r e as Sipapela a nd the State's case is t h at there w as j u st Sipapela a nd the accused. The doctor is vague unhelpful on a very important part of t he evidence, t h at is intended, to prevent tampering with the sample. The doctor m u st be aware of the need to eliminate t he temptation to interfere with t he original blood sample. Yet she gave her evidence as if it did not matter m u c h. Besides t h at the doctor did n ot even complete the form itself, in full, p a rt of t h at w as completed by the S u p e r i n t e n d e n t. In serious m a t t e rs of t h is n a t u re it is unforgivable to allow for laxity to impinge u p on t he proper a nd correct procedures. Given the state of t he evidence, it is difficult to conclude t h at the identity of the blood sample w as adequately secured to eliminate interference. In addition to t h is d o u bt a b o ut the identity of t he sample, Sipapela himself does n ot a p p e ar to have signed for t he blood kit w h en he first drew t he kit a nd is verified by entries in Exhibit N, in contrast with w h at Constable Moller did a b o ut the s a me time or shortly thereafter in following the correct procedures w h en drawing the kit. Whereas on h is r e t u rn Sipapela a p p e a rs to have actually signed for the s u r r e n d er of t he blood sample or h a n d i ng over, albeit some 50 m i n u t es after it first arrived at the police station. When the sergeant who w as on duty at the charge office w as asked about t h is omission to sign for the kit, he simply said he might have forgotten to a sk the S u p e r i n t e n d e nt to sign or it j u st didn't h a p p e n. So t h e re is no knowing for certain who collected the blood kit from t he police station. The a c c u s e d 's a c c o u nt t h at they proceeded to t he hospital directly with S u p e r i n t e n d e nt Sipapela a nd the kit w as b r o u g ht to them there c a n n ot be dismissed lightly, it s e e ms to be in accord with w h at Exhibit N shows. Why else did the person n ot sign if it w as S u p e r i n t e n d e nt Sipapela who collected it he w as particularly experienced a nd should have known? If you look at t h at evidence together with t he evidence of Doctor Shiwedha, t h at s he saw two traffic officers a b o ut t he time she was dealing with t he blood sample of the accused, you c a n n ot dismiss the a c c u s e d 's evidence as entirely false or impossibly t r u e? Now with regard to the authenticity of t he blood sample after its arrival at t he police station, when an investigation is m o u n t ed in the evidence one e n t e rs a world of sheer of confusion. The most material aspect s e e ms to be so riddled with question m a r ks the question w h e t h er the correct blood sample w as eventually lodged is open to debate. The blood sample arrived at t he police station at 04:10 a nd w as n ot lodged with the sergeant on duty until 05:00pm b ut did not enter the register, Exhibit N u n t il 05:10, the question where w as t he blood sample in t he missing 50 m i n u t es r e m a i ns u n a n s w e r e d? There is no explanation for its detention elsewhere, t h an in t he charge office? There is no explanation. There is on record in t he proceedings a complaint m a de by t he accused on the day a nd t he time to Sergeant Klukowski at t he time he was charged, t h at complaint should have alerted those in charge, because it w as as a result of t h at complaint t h at Sergeant Klukowski ordered t he p h o t o g r a p hs to be t a k en including those of the kits of Moller. So there is objective evidence t h at c o n t r a s ts the packing at t he hospital as shown on exhibit 1, a nd t he packing shown in t he photograph, Exhibit M. Arguing, as State Counsel did, t h at t he correct seal n u m b e rs on the kit established t he u n b r o k en chain, is n ot really enough. It doesn't answer t he question because the question w as whether the blood sample in t he box w as still the s a me as t h at which w as withdrawn from the a c c u s ed by Doctor Shiwedha? Given t he c h a n g es in the a r r a n g e m e nt of the seal the label a nd the string on the blood sample kit. It c a n n ot be said t h at the a c c u s e d 's claim about tempering is fanciful a nd ought to be dismissed as not reasonably possibly t r u e? Constable Oosthuizen w h en a s k ed whether she remembered w h at the kit looked like, how it w as sealed, said t h at the sealing w as as shown in exhibit M, photo A. This only added to the contradiction, a nd doesn't help. Somebody who should have been an outsider in dealing with t he blood sample only served to further compound the pervading confusion in the c o n d u ct of these proceedings. If t h at confusion is t a k en together with the contradictions, the irregularities, which are admitted, a nd which are objectively established, in d o c u m e n ts the n u m e r o us affidavits, the pu-forma s t a t e m e n ts t he approach in t h is case should not h a p p en in criminal proceedings. The fictitious n a t u re of some of the d o c u m e n ts a d ds to doubt. It not as if t h is evidence w as compiled by inexperienced officers. The officers who gave evidence are officers with some experience. In my opinion, a nd in conclusion at the end of the day is t h at it is impossible to say with any degree of certainty t h at the blood sample analysed by the Forensic Scientist h as been established beyond reasonable d o u bt to be t h at of the accused, the essential chain in t h e se proceedings of the custody a nd movement of the blood sample kit h as n ot been proved to be u n b r o k e n. Accordingly I find the a c c u s ed n ot guilty of this c o u nt of driving with excess alcohol in h is blood. I t u rn t h en finally to c o u nt 3, t h at is operating an unlicensed vehicle on a public road. The accused admitted t h is at the outset. He told t he Court t h at he paid the licence fee a nd paid the penalty in t e r ms of t he law. The question of mens rea does n ot arise as the r e q u i r e m e nt is strict. Either you pay according to t he time or you pay the licence a nd the penalty as the law stipulates. The fact t h at t he accused h ad paid t he fine a nd whatever penalties does not prevent the prosecution being brought subsequently. There is no irregularity on the p a rt of the State in any way in bringing t h at charge. Therefore I m u st find you guilty of c o u nt 3. But while I find you guilty of c o u nt 3 on your admission as well as the State's evidence I will n ot p u n i sh you further for the commission of t h at offence. W h at I would consider doing u n l e ss I h e ar otherwise from t he State's s u b m i s s i on before I sentence you, I will simply give you a warning n ot to repeat t he offence in future. As the State h as nothing to say a nd the defence also, the accused is acquitted on c o u n ts 1 a nd 2 a nd their alternatives. He is found guilty on count 3, and w a r n ed n ot to repeat the offence in future. GIBSON, J. ON BEHALF OF THE STATE Ms Verhoef Instructed by: Office of t he Prosecutor-General ON BEHALF OF ACCUSED In Person