S v RAMOTALE 1992 (2) ZLR 397 (S)

Flynote

Evidence — culpable homicide arising out of motor accident — need for proper scrutiny of real evidence and to assess credibility of witnesses by comparing their testimony against real evidence — evidence on point of impact — evidence on death and cause of death

Headnote

Two motor vehicles had collided and a number of passengers in one of the vehicles had been killed. The appellant had been tried and convicted of culpable homicide. The State had alleged that he had strayed onto the wrong side of the road and collided with the complainant's vehicle. On appeal the conviction was set aside, the court finding that the evidence was not adequate to support a conviction. In reaching this conclusion the court pointed out shortcomings in the evaluation of the evidence by the trial magistrate. These shortcomings were as follows:

• The magistrate had found that the State witnesses were credible. This finding had been based solely on impressions gained from their demeanour. The Supreme Court said that this was a wrong approach. In motor collision cases credibility cannot be measured by demeanour. The complainant and his witnesses may be mistaken about or not be prepared to admit to the exact location of the complainant's vehicle at the time of the accident. The credibility of such witnesses in these circumstances can only be measured by comparing their testimony against the real evidence.
• The magistrate had failed to scrutinise properly the real evidence. In particular he had failed to examine the implications of glaring discrepancies between the rough drawing of the accident situation drawn up soon after the accident and the sketch plan drawn up some days later.

The Supreme Court also commented on how to approach evidence of the point of impact in a motor accident case. It commented upon what evidence must be produced of death and cause of death in culpable homicide cases. It pointed out that prosecutors tend to forget the need to prove that the deceased died as a result of the collision. In this case, the prosecutor produced by consent four post-mortem reports, and the police witnesses spoke of "bodies scattered on the road". No-one said that they were dead bodies. And even if they were dead, no-one said they were the same bodies as those referred to in the post-mortem reports and named in the charge. Either the defence should have been asked to make a formal admission about these matters or the deaths and the cause thereof should have been properly proved.