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HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

REVIEW JUDGMENT

CR NO.:12/2016

DATE: 23 AUGUST 2016

In the matter between:

THE STATE

And

KAKUHIRE TJIHARUKA...................................................................................................ACCUSED

HIGH COURT NLD REVIEW CASE REF NO: 191/2016

Neutral citation: S v Tjiharuka (CR 12-2016) [2016] NAHCNLD 79 (23 August 2016)

Coram: JANUARY J and TOMMASI J

Delivered: 23 August 2016

Flynote: Criminal procedure ─ Plea of guilty ─ Driving under the influence of intoxicating liquor  ─ Accused convicted ─ Section 112(1)(b) of Criminal Procedure Act 51 of 1977 applied ─ Accused admitted the blood result ─ Facts not within his knowledge ─ He did not see the certificate of the blood result ─ Magistrate did not question accused on impairment of faculties ─ Magistrate could not be satisfied that all elements of the crime admitted ─ Conviction and sentence set aside ─ Matter remitted to magistrate

Summary: The accused in this matter was convicted in the magistrates court Opuwa for Contravening section 82(1)(a) read with relevant sections of the Road Traffic and Transport Act 22 of 1999- Driving under the influence of intoxicating liquor. He pleaded guilty and the magistrate disposed of the matter in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977. The certificate of the blood results was not disclosed to the accused. The accused admitted that he drove a motor vehicle on a public road; that his blood was drawn within 2 (two) hours and that he was satisfied with the withdrawal of his blood. He admitted that the concentration of alcohol in his blood was 0.17 grams per 100 ml. The magistrate could not have been satisfied that the accused admitted all the elements of the offence. The conviction and sentence are set aside and the matter is remitted to the magistrate with a direction to afford the accused the opportunity to see the certificate of the blood result and question the accused on matters referred to. The magistrate must satisfy himself that the accused admits to all the elements of the crime.

ORDER

1. The conviction and sentence are set aside.

2. The matter is remitted to the magistrate with a direction that the accused is afforded the opportunity to see the certificate of the blood result; and

3. That the magistrate questions the accused on the matters referred to in compliance with the provisions of s 112 (1)(b).

JUDGMENT

JANUARY J and TOMMASI J (concurring)

[1] The accused was charged with 1. contravening section 82(1)(a) read with sections 1, 86, 89(1) and 89(4)of the Road Traffic and  Transport Act, Act 22 of 1999-Driving under the influence of intoxicating liquor; Alternatively; Contravening section 82(1)(b) read with sections 1, 86, 89(1), and 89(4) of the Road Traffic and Transport Act 22 of 1999-Driving with excessive blood-alcohol level: 2. Contravening section 75(1) read with sections 1, 49, 75(2), 75(3), 86, 89 and 106 of the Road Traffic and Transportation Act, Act 22 of 1999 and further read with Regulations 1, 315, 316, 317, 318, 319, 320, 322 and Schedule 2 of the Road Traffic and Transport Regulations as promulgated in Government Notice 53 of 30 March 2001 (GG 2503) as amended- Failure to obey a road traffic sign to wit; a Stop sign.

[2] The accused pleaded guilty to both the main charge and alternative charge in count 1 and not guilty to count 2. The prosecution eventually closed proceedings on charge 2 without leading any evidence as the accused paid an admission of guilt fine. Accused was acquitted on this charge.

[3] The magistrate applied section 112(1)(b) of the Criminal Procedure Act 51 of 1977 and questioned the accused in relation to his guilty pleas. The record reflects as follows:

“Count 1

Q: Do you understand the charge against you?

A: Yes correct

Q: Are you forced to plead guilty to the charge?

A: No, I know myself I was under the influence of alcohol.

Q: What did you take?

A: I took Savannah beer

Q How many beers did you consume that day?

A: I drank 3 (500ml ) beer

Q: Did you on 14 December 2013, and at or near Opuwa-Omakange road a public road drove vehicle reg NW91511UP?

A: Yes correct

Q: The charge alleges that you drove the said vehicle on a public road whilst you were under the influence of liquor. Do you agree?

A: Yes correct.

Q: Do you know that it is wrong and an offence to drive a vehicle while you are under the influence of liquor?

A: Yes

Q: And if are you aware that if you are found you could be punished for that?

A: Yes I knew.

Alternative charge

Q: Do you understand the charge against you?

A: Yes

Q: Are you forced to plead guilty to the charge?

A: No

Q: Why did you plead guilty to the charge?

A: I drove a vehicle in question while I take alcohol

Q: What did you take?

A: I drank 3 Savannah dry

Q; Was that on 13 December 2013, and at ot near Omakange-Opuwa road in the district of Opuwa

A: Yes

Q: Was blood taken from you?

A: Yes

Q: Was it taken within 2 hours after the commission of the offence?

A: Yes as it did not even reach an hours (sic)

Q: Where (sic) you satisfied with the taking of blood?

A: Yes

Q: And after the blood was taken the container was properly sealed?

A: Yes

Q: Now in the charge it reads that the results are 0.17 gram per 100mililiters?

A: I have not yet seen the results

Q: Do you dispute the results?

A: I cannot dispute that

Q: Do you know that it was wrong an offence to drive a vehicle with excessive alcohol level in blood?

A: Yes

Q: And that if you are found you could be punished?

A: Yes correct

PP: State accept a plea on 1^st count”

[4] The learned magistrate attached a letter to the reviewing judge stating with reference to S v Jansen 2006 (1) NR 337 that he discovered during proof reading of the case that the questioning during the 112(1)(b) proceedings was not sufficient to prove that the accused was  impaired in his ability to drive a motor vehicle or that his faculties, mental or physically, were influenced by the intake of alcohol. The magistrate conceded, correctly in my view, that the conviction can therefore not be upheld.

[5] A further issue of concern is that there is no indication on record that the accused had the opportunity to see and inspect the blood results. He admitted to the result of being 0.17 grams per 100 ml and that his blood specimen was taken within 2 (two) hours. The question however is whether he is in a position to admit the alcohol concentration in his blood and that the result was not influenced by any contamination etc. In my view he is not in a position to admit it as it is not in his personal knowledge. He was unrepresented in the matter and the magistrate cannot be satisfied that it is indeed a proper admission. The accused in fact stated that he did not see the blood results.[1]

[6] With reference to S v Moffat (infra) in a charge of driving under the influence of alcohol it needs to be proved that:

(i) That the accused drove a vehicle on a public road;

(ii) That a specimen of blood was taken from the accused's body within two hours after the alleged offence;

(iii) That a scientifically reliable analysis for the presence of alcohol performed on the specimen revealed a concentration of alcohol in the specimen of not less than 0,08 g per 100 ml; Under the Road Traffic and Transportation Act 22 of 1999, now 0,079 grams per 100 millilitres;

(iv) That precautions were taken in obtaining the specimen and in handling and preserving it which ensured that the specimen was not contaminated or affected in a manner which might influence the result of the analysis.

[7] In the result:

1. The conviction and sentence are set aside.

2. The matter is remitted to the magistrate with a direction that the accused be afforded the opportunity to see the certificate of the blood result; and

3. That the magistrate questions the accused on the matters referred to in compliance with the provisions of s 112 (1)(b).

HC JANUARY J

MA TOMMASI J

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