S v ROVAYI 1999 (1) ZLR 251 (S)

Flynote

Evidence ” motor accident ” credible police evidence of how accident occurred ” greater weight to be given to such evidence than to reconstruction ” point of impact ” whether exact point of impact can be established or only area of impact

Headnote

The appellant had been convicted of culpable homicide, the allegation being that he had driven a Nissan truck negligently and had collided with a Bedford truck, thereby killing a passenger in the Bedford truck. The driver of the Bedford truck maintained that on approaching a culvert he had seen the oncoming Nissan truck coming at high speed and zig-zagging, so he had pulled his truck over to the extreme left hand side of the road and stopped. He said that the Nissan truck had come onto his side of the road and had hit his stationary truck. The appellant maintained that the accident had occurred as a result of the Bedford truck coming onto the wrong side of the road. The investigating police officer who had attended the accident scene soon after the accident testified that he and the appellant observed some glass debris and mud on the road and they agreed that this was the point of the impact. This point was on the Bedford truck's side of the road and not on the appellant's side. The insurer of the Nissan truck had employed a private investigator to carry out an investigation to determine which of the two drivers had caused the accident. This investigation had been carried out several weeks after the accident. The investigator had carried out a reconstruction of the accident and had concluded that the accident had occurred on the appellant's side of the road.

In finding the appellant guilty, the magistrate had accepted the police evidence and had rejected the evidence of the private investigator. Dismissing an appeal against conviction: Held, that the critical question was on which side of the road the collision had occurred. In most instances it is not possible to identify the precise point on the road where the collision occurred. What is usually identifiable is an area on the road where the collision took place. Held, further, that where there is credible evidence of the manner in which the collision occurred, such evidence generally carries greater weight than a reconstruction by an expert. In the present case, the evidence of the police officer who had attended the scene soon after the accident was credible as he was an independent and impartial witness. On the other hand, the private investigator was not an impartial witness and had carried out his reconstruction several weeks after the accident.