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S v Simon (CA34/205) [2007] NAHC 48 (9 July 2007)

.RTF of original document

CASE NO.: CA 134/2005

 HARRY SIMON vs THE STATE


2007 JULY 9
PARKER, J; MANYARARA, AJ


Criminal law     -       

Culpable homicide – Appellant’s motor vehicle colliding with another motor vehicle resulting in death of three occupants of that other motor vehicle – Appellant convicted of culpable homicide – Magnitude of tragedy not to obscure true nature of culpability being negligent driving – Negligent driving – what amounts to – Factors taken into account in arriving at appropriate sentence – Four years’ imprisonment, one-half of it suspended, imposed by lower court appropriate in all the circumstances – State’s appeal against sentence and the appellant’s appeal against conviction and sentence dismissed.



REPORTABLE                                                    CASE NO. CA 34/2005
IN THE HIGH COURT OF NAMIBIA
In the matter between:
HARRY SIMON APPELLANT
and
THE STATE RESPONDENT
Coram:            PARKER, J; MANYARARA, A.J.
Heard on:                 2007 May 21-22
Delivered on:             2007 July 9
APPEAL JUDGMENT:
PARKER, J; MANYARARA, A J:
Introduction
[1] The appellant appeared in the Regional Court at Walvis Bay on one count of culpable homicide, with two alternative charges of reckless and/or negligent driving and inconsiderate driving, and a second count of exceeding the speed limit. He pleaded not guilty.
[2] The court found that there was a duplication of charges in the count of exceeding the speed limit and negligent driving and the trial proceeded in respect of the charge of culpable homicide only. The appellant was convicted on this charge and sentenced to four years’ imprisonment of which two years are suspended. He appealed against the conviction and sentence and the State also appealed against the sentence as too lenient. An application to amend the notice of appeal by adding further grounds of appeal was subsequently filed, accompanied by an application for condonation of the late filing of the additional grounds. Ms Rakow for the State did not oppose the application, condonation was granted and the hearing on the merits proceeded.

[3]      The appellant has appealed against both the conviction and sentence, and the State against sentence. For the sake of neatness and completeness, this judgment deals with both the appeal by the State and the appeal by the appellant.
The Offence

[4] The particulars of the offence were that upon or about 21 November 2002 at or near the main road between Walvis Bay and Swakopmund at or near Langstrand the accused did unlawfully and negligently kill Ibe de Winter, Frederic de Winter and Michelle De Clerk by driving his vehicle and colliding with the deceaseds' Nissan vehicle.

[5] The particulars of negligence were enumerated as -

 •         travelling at a speed which was excessive in the circumstances;
 •         failing to keep a proper lookout in the circumstances;
 •         failing to stop or act reasonably when an accident or collision seemed imminent; and
 •         travelling on the wrong side of the road.
[6]      The relevant portion of the appellant's statement in terms of section 115(1) of the Criminal Procedure Act 51 of 1977 outlined his defence as follows:
"The sole cause of the collision was the wrongful, unlawful and negligent driving of the driver of the said Nissan vehicle who encroached, drove unexpectedly and suddenly into the lane wherein I drove, occasioning the collision."

[7] It will be seen that the defence defined the issues to be proved by the State as –
        
(a)     
Whether the appellant drove negligently and, through his manner of driving, caused the deaths of the deceased; or
(b)      Whether the vehicle in which the deceased were traveling suddenly encroached into the appellant’s path and, faced with the sudden emergency, the appellant had no opportunity of stopping or otherwise avoiding the collision.
The Law
[8] The elements of culpable homicide are set out in S v Burger 1975 (4) SA 877 (A), the head note, as follows:
"(i)     Culpable homicide is the unlawful, negligent causing of the death of a human being.
(ii)     Basically there must be some conduct on the part of the accused involving dolus (such as an assault), or culpa (such as an operation by a surgeon without due care, or the driving of a motor vehicle without keeping a proper look-out).
(iii)    Such conduct must cause the death of the deceased.
(iv)     In addition there must be culpa in the sense that the accused ought reasonably to have foreseen the possibility of death resulting from such conduct. This is because culpable homicide is the unlawful, negligent causing of the death of a human being.
(v)      It follows from the foregoing that causation of death, even as the result of an unlawful act which is criminally punishable, is not of itself sufficient to constitute the crime of culpable homicide. To disregard the additional requisite of the reasonably foreseeable possibility of resultant death, would be to re-instate the doctrine of versari in re illicita.
(vi)     If an accused does foresee – as distinct from ought to have foreseen – the possibility of such resultant death and persists in his conduct with indifference to fatal consequence (or if he actually intends to kill) the crime, would be that of murder. Having regard to the requirements of foresight and persistence, the dividing line between (a), murder with dolus eventualis and (b), culpable homicide, is sometimes rather thin."
[9] In S v Muhenje 1995 NR 133 (HC) Frank J stated the law at 134F as follows:
“(I)t is exactly the negligence or recklessness in the driving of the vehicle which makes the killing unlawful, i.e. which constitutes an essential element of culpable homicide. The test relating to the negligence or recklessness where a vehicle is involved is exactly the same for culpable homicide or for negligent or reckless driving.”
And in Rex v Wells 1949 (3) SA 88 (A) Centlivres JA defined negligence at 88 as follows:
"The test as to whether a person was guilty of negligence in any given circumstances is the same in criminal as in civil proceedings, viz., did that person exercise that standard of care and skill which would be observed by the reasonable man?      See Rex v Meiring (1944, A.D. 41, at p 46) and Rex v Swanepoel (1945, A.D. 444, at p 448). It is therefore germane to the present enquiry to refer to civil as well as criminal cases.
As pointed out by Watermeyer, C.J., in Stride v Reddin (1944, A.D. 162, at p 172) read with the passage quoted from the judgment of Innes, C.J., in Cape Town Municipality v Paine (1923, A.D. 207), the question whether in any given situation a reasonable man would have foreseen the possibility of harm and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. See, too, Cowan v Ballam (1945, A.D. 81, at pp. 86, 94, 95).
[10] It seems to us, therefore, that the first stage of the enquiry whether the appellant’s conduct in this case is caught by the above principles is a consideration of the evidence of eyewitnesses, by which is meant the evidence of persons who witnessed the occurrence of the accident or were in the vicinity of the scene of the accident at the relevant time. This is also the submission of Mr Sisa Namandje representing the appellant.

The Evidence of Eye witnesses
[11] The State led evidence from four persons who were present at the scene of the accident. These were Melanie Moumiew and her mother Wilhemina Melani, Oneka Alcock and Bertus Coene.
[12] Melanie’s evidence is that she was a passenger in the car driven by Wilhemina. When they approached the scene of the accident at Long Beach, the Nissan vehicle traveled just in front of them at a speed she described as ‘slowly’ approaching the T-junction where the accident happened. She was sending an SMS on her cell phone but as they turned left to enter the overtaking slipway she looked up and saw a vehicle approaching at a great speed, overtake a green vehicle in front of it and immediately thereafter she heard a crash. She said that the green vehicle had to move out of the way to let the speeding vehicle pass.
[13] Wilhemina gave evidence broadly to the same effect as Melanie. She added that as they were approaching the turn off to Langstrand the driver of the Nissan indicated that he was going to turn right to Langstrand and stopped at a slight angle at the T-junction and she passed the Nissan on its left side. She had not returned to the main road to Walvis Bay when she saw (car) lights pass her very fast and she heard the collision. Water splashed through the back window of their vehicle as well as her window. After the collision, she saw a black vehicle standing in the sand and when she got to the vehicle she saw that it was Harry Simon, the appellant.
[14] Alcock, the passenger in Wilhemina’s vehicle, also gave evidence broadly to the same effect as the above witnesses. Her evidence continued as follows:
“I saw the indicators of the vehicle, I saw the brake lights before the turn off, the bakkie was standing still and we passed by….I saw oncoming lights. We passed by and the car passed by speeding. The lights were very bright and it made me feel as if the car was coming to us, towards us…because it was so fast.”
[15] Bertus Coene said that he was a passenger in the Nissan and they were on their way to Langstrand. They stopped at the intersection in order to turn to Langstrand. They might have slightly turned but they stopped on their side of the road, i.e. in their lane. In the Nissan were four grown-up persons and three children. He could only remember clearly that he saw one set of (car) lights coming from the Walvis Bay direction and that is where his recollection stopped. He suffered total amnesia after the accident.

[16] Coene said that the Nissan was carrying two roof tents, a 20 litre water tank, a bit of gas weighing between 9 and 10 kg, a table and three chairs; also some luggage and photographic equipment of one of the deceased, Frederic. He estimated the weight of these things at a minimum of 300kg. There was also one spare wheel and “lots of fuel” in the Nissan.
[17] In our view, nothing relevant turns on the quantity or weight of the contents of the Nissan, save the 20 litre water tank because Melanie and Wilhemina spoke of water from the Nissan splashing onto their vehicle.

[18] The appellant did not testify or call any witnesses other than one expert whose evidence will be considered.
The Expert Evidence
[19] The first of the experts called by the State was Johannes Petrus Strydom, by profession a traffic accident analyst of about 27 years’ experience, during which period he attended some 1755 traffic accidents and assisted in the reconstruction of 6324 accidents.
[20] He was instructed by Attorneys Wessels and Van Der Merve-Greef to re-construct the accident and his evidence may be summarized as follows:
[20.1]   He testified that he visited the scene on 11 December 2003 and identified “the four most important factors” with regard to the analysis and reconstruction of traffic accidents. These were –
a)       The final resting positions of the vehicles.
b)       The damage to the vehicles, which shows the first contact areas
of the vehicles when they collided.
c)       The debris found at the scene; and
d)       The marks on the road.
He added that it was not necessary to have all four or more of these points to carry out a reconstruction.

[20.2]   The witness admitted that it is virtually impossible to pinpoint the exact point of impact – it could be a metre either side of the point identified. The little pieces of vehicle, plastic pieces, etc. which he found at the scene corresponded with and confirmed the police sketch plan indicating the final resting positions of the vehicles. He said that even if he did not have any of the witness statements his conclusions would have been the same

[20.3]   It was also Strydom’s opinion that the breakage of the cables which the Mercedes went through at the scene of the collision, as well as the force used to take the poles which had been there from the ground before coming to a stop in the sand, indicated that the speed of the Mercedes was 180 km/h. This was much higher than the speed of 156km/h which he had calculated on the basis of the scratch marks where the police claimed was the place of the impact.
[20.4]   Strydom examined the photographs of the vehicles and observed that the Nissan sustained severe damage concentrated to the left side of the vehicle and the left front tyre, with secondary damage all over the body of the vehicle. He observed that contact damage to the Mercedes was concentrated mostly to the right front and mid-centre of the vehicle. The right front area was displaced towards the rear of the vehicle; the right front tyre and rim had sustained severe collision damage and the right front corner of the vehicle was pushed back very far. According to the witness, this showed that the collision was not a straight line of impact but at some sort of angle, and there was no probability that the Nissan had started to turn when the collision occurred.

[20.5]   Strydom concluded that the Mercedes must have been in the wrong lane and, in his opinion, the driver misjudged the distance he had to return to his correct lane.
[20.6]   He added that when traveling from Walvis Bay to Swakopmund there is a little dip from where one can see the roofs of any vehicles at the intersection to Langstrand from a distance of about 200-220 metres.

[20.7]   His opinion was that, assuming that the driver of the Mercedes was observing the speed limit of 80 km/h operating on this stretch of the road, he would have seen the vehicle turning to Langstrand and it would have taken him 69 metres to stop his vehicle 151 metres before the intersection. And if he were traveling at 80 km/h, by the time that the Mercedes reached the intersection the vehicle turning to Langstrand would have been out of the way and cleared the intersection for the Mercedes to pass safely.

[21]     Wilma Badenhorst is an accident reconstruction expert, in which capacity she carries out site inspections, compiles reports on how the collision occurred and gives evidence thereon in court. She was contacted by Dr Ludik of the National Forensic Science Institute of Namibia (NFISI) to do a reconstruction of the accident and she visited the scene during November 2003, accompanied by the investigating officer, Sgt Giovani Boffelli who had drawn the sketch plan produced in the trial.
[22] Her report on the damage to the two vehicles involved in the accident was essentially the same as Strydom’s. Referring to photographs, all but one of which were taken by herself, some of the salient points she made may be enumerated as follows:
[22.1]   Signs of ground contact or sand were visible on the right hand side of the Mercedes and the left hand side did not show any contact damage.
[22.2]   The Nissan was a four wheel drive 3-litre hardbody double cab vehicle. It sustained severe contact damage to its left front. Various vehicle parts such as the bumper bar, engine parts, sheet metal and all parts in that area of the vehicle until the mid front section and the left front wheel were displaced far towards the back of the vehicle. A lot of “induced damage” was also visible to the roof, left hand side of the vehicle and the flap of the load bin which may have been caused by items on the rear of the load bin coming into contact with the inside of the flap.
[22.3]   She explained that, at first contact, the force of one vehicle against another vehicle begins to crush parts of the vehicle in the direction of the thrust. Therefore, what one sees after a collision is damage which indicates the direction and extent of penetration at maximum engagement and the areas which have been in contact with each other.
[22.4]   In order to get to first contact, one has to rotate the Nissan back relative to the Mercedes and that is why the angle between the two vehicles at first contact is not as large as the angle between them at maximum engagement.

[22.5]   From first contact to the point of maximum engagement, the Nissan would have rotated clockwise relative to the Mercedes.
[22.6]   There were four lanes at the scene. The most left hand lane of the northbound lanes and the most left hand lane of the southbound lanes were to be excluded as possibilities of where the collision occurred.

[22.7]   By her calculation, the momentum of the Mercedes would have been much greater than that of the Nissan; the Mercedes had a velocity component in a northerly as well as westerly direction only and all the momentum and energy came from this vehicle; so the final resting position must then have been also in a generally northerly and westerly direction and the marks on the road surface corresponded with this scenario.

[22.8]   According to what the witness described as “the law of conversion of momentum,” the total momentum which existed after the collision must have been present before the collision. By applying a mathematical formula too intricate to summarise, Badenhorst arrived at a speed of 159 km/h for the Mercedes, if the Nissan were stationary. If the Nissan was in motion, it also had a velocity component and then the speed of the Mercedes would have been greater.

[22.9]   In Badehorst’s opinion, at maximum engagement, the right rear portion of the Mercedes was still in the south bound lane towards Walvis Bay and this was at maximum engagement - the point where some of the parts and undercarriage of the Mercedes came into contact with the road surface - but this was not the point of first contact.
[22.10]  It was also Badenhorst’s opinion that the plea explanation by the appellant that the Nissan suddenly and unexpectedly encroached on the lane of the oncoming Mercedes cannot be true because the angle between the vehicles was too small for that to have happened. She based her conclusion mainly on the physical evidence she observed, marks on the road surface, the damage to the vehicles, the final resting position of the Nissan where the engine oil soaked in and the distance the vehicle moved.

[23] The expert called by the defence was Rudolph Adriaan Opperman, a registered professional engineer with 16 years’ experience in traffic safety. He conducted a site inspection as well as inspection of the vehicles on 2 February 2005, i.e. two years after the inspection commissioned on behalf of the State.

[24] Opperman’s testimony may be summarized as follows:
[24.1]   Like Strydom and Badenhorst he found that the Principal Direction Of Force (PDOF) on the Nissan must have been from the left front at an angle positioned in the vicinity of the vehicle’s left front wheel.
[24.2]   But, in his opinion, it was possible that the accident happened in the correct lane of travel of the Mercedes. He based his conclusion on the place at which the gouge marks were found, which, according to him, is one of the best indicators of the point of impact when two vehicles collide head on.
[24.3]   Since the analysis of the damage to the two vehicles indicates that the PDOF to the Mercedes is at an angle from the right hand side of the Mercedes, it followed that the Nissan could not have been stationary at the time of the impact but must have been moving “from right to left” in front of the Mercedes.

[24.4]   The probable speed of the Nissan when negotiating the turn could have been not less than 20 km/h when one looks at the damage and the PDOF.
[24.5]   He found it a serious collision and that the damage was substantial, although he is of the opinion that the speed (of the Mercedes) is not as high has been calculated.

[24.6]   He said that his “gut feeling” was that if the collision was with a car traveling at a speed of 80km/h the Nissan would not have been propelled for the distance of about 34m, therefore the speed “was probably more than 80.”
[24.7]   When he visited the scene, the marks were no longer on the road. He only relied on the police report and sketch plan, the photographs provided and information he received from the appellant. He talked to Mr E Helmel who was a passenger in the Mercedes on the same day that he visited the site.
Helmel was not called to testify.
The Issues

[25] Mr Sisa Namandje submitted in the first place that the magistrate’s judgment is “vague” especially on the point of impact, the final resting positions of the vehicles and whether in arriving at the verdict he relied on the evidence of Strydom and Badenhorst.
[26] He submitted in the second place that, in any event, the evidence of all three experts should be disregarded because it is hearsay based on information provided by persons who were not called to testify.
[27] Ms Rakow for the State did not want the evidence of the experts to be disregarded, arguing that the evidence was part of the account of the events under consideration.
[28] We are inclined to go along with Ms Rakow because an essential aspect of the experts’ reports covers matters which they perceived with their own senses and drew inferences therefrom and, to that extent, their evidence cannot be regarded as hearsay.
[29] When the Court pressed Mr Sisa Namandje to explain his contention, he submitted that “there are parts (of the expert evidence) which are not hearsay” but these should also be disregarded. In his opinion, only the evidence of Giovanni Boffelli, the investigating officer, should have been accepted because he testified. He cited AA Onderlinge Assurance-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A), a judgment reported in the Afrikaans language. The English head note states that the evidence of an experienced policeman is usually admitted as prima facie proof if the point of the collision is placed in issue. (Emphasis added).

[30]     Speaking without the advantage of a translation of the whole judgment, our understanding of the head note is that the court has a discretion to accept such evidence if it considers that the evidence will be of assistance to the court in arriving at its decision on the point in issue. Therefore this case does not add anything to Mr Sisa Namandje’s argument.
[31]     Be that as it may, when the Court finally remarked that we were “running in circles,” we understood Mr Sisa Namandje’s ultimate submission to be that, in any event, any doubt should be resolved in favour of the appellant “if the circumstances and evidence