WITNESS CALLED BY COURT REFUTING DEFENCE WITNESS

S v STEYN 2018 (1) SACR 410 (KZP)

Evidence — Witness — Calling by court — Section 186 of Criminal Procedure Act 51 of 1977 — When appropriate — Defence alleging that statement tampered with and calling expert handwriting analyst whose evidence was inconclusive — Court only calling witness in terms of provision because defence expert had not examined original document, not knowing at time that witness would refute defence evidence — Nothing improper in court’s conduct.

 

The appellant stood trial in a magistrates’ court on a charge of contravening s 65(2) of the National Road Traffic Act 93 of 1996, in that he had driven a motor vehicle whilst the concentration of alcohol in his blood was 0,10 grams per hundred millilitres. The state relied on a certificate issued under ss 212(4)(a) and (8)(a)of the Criminal Procedure Act 51 of 1977 (the CPA) relating to the analysis of the sample of blood taken from the appellant.

The appellant disputed that the sample tested was taken from him and contended that certain handwritten parts of the statement of the nurse who had taken the blood sample were not in her handwriting, but had been inserted by another person. The nurse denied these allegations in cross-examination.

After the close of the state’s case, the defence called an expert handwriting analyst who testified that there had been ‘disturbance or interference’ to the surface of the paper that could have been caused by water or an eraser. He had, however, not done his test on the original of the paper but a scanned copy. The defence then closed its case and the matter was remanded for argument.

The parties subsequently presented argument and the matter was then again postponed for judgment, but on resumption of the case the court called an expert witness in terms of s 186 of the CPA, who had examined the original statement and a carbon copy thereof. After hearing this evidence, the court convicted the appellant.

On appeal the appellant contended that the court’s witness had been procured solely for the purposes of rebutting the expert, and for curing the defects in the state’s case in order that the magistrate might convict the appellant.

Held, that the magistrate only had the inconclusive evidence of the expert witness before her to substantiate the appellant’s version, and was of the view that the reason why the defence’s expert witness could not come to any definitive conclusion was because he had examined a scanned copy of the statement and not the original. She therefore decided that the ‘best evidence rule’ should be applied and that the original document ought to be examined by an expert. She would not have known at the time what the evidence of the court’s witness would be. It therefore could not be said that the magistrate’s decision to have the original statement examined was done to impeach the testimony of the defence witness, or that the decision to call the witness was improper in those circumstances. (See [30] – [31].) The appeal was dismissed.

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