Offenses, Procedures and Proof PurposeThe purpose of this document is to enlighten the general public and especially victims of traffic crashes and the next of kin of persons killed in traffic crashes, on the requirements needed to obtain a guilty verdict on serious traffic offenses. This document addresses the following burning questions:What does an investigation entail?What is The Law requirements in serious traffic offenses with specifically addressing Culpable homicide, driving while under the influence of while under the influence of intoxicating liquor or a drug having a narcotic effect and reckless and\or negligent driving?What are the interaction and interdependency of the Law, the Processes and the Proof? Why does a person arrested for serious traffic offenses not remain behind bars? When and how is a person charged for murder and not culpable homicide or manslaughter in traffic crashes where a person is killed in? Can a person be charged for attempted murder in traffic crashes where a person is seriously injured in? Processes to follow when you are not happy with how an investigation is progressing:RecommendationsA. INTRODUCTIONTraffic Crashes:According to Webster's Dictionary, "investigate" means "To observe or study by close examination and systematic inquiry". A better definition is: "a systematic examination and gather of all of the facts and information about conditions, actions, and physical features connected with or involved in the crash.” Traffic crash investigation is characterized by:1. To gather evidence to successfully support prosecution of the law violation, or violations, that contributed to the crash. 2. To collect and learn all of the facts, circumstances, and conditions involved in each crash. 3. To safeguard the property of anyone affected by the crash. 4. To protect the interests and the rights of those involved in the crash. 5. To gather the data necessary for traffic safety programs in the areas of engineering, education and other users of the highway from the hazards created by the crash or those contributing to the crash. 7. To determine the cause, or causes, of the collision. From the above goals, it is obvious that only a detailed, complete investigation, in the full meaning of the term "investigate" will permit the above outcomes. When we speak of crash investigation we are referring to the gathering of facts and information and forming opinions which will allow us to answer two questions; how and why the accident occurred. Traffic Crashes is not “black and white”, but considered a “grey area” according to Law professionals. The investigation of most crimes has its technical side and traffic crash investigation is no exception. There is an abundance of physical evidence at the crash scene; evidence that is unique to that crime scene. Damage evidence, skid mark evidence, tyre evidence, marks on the roadway, lamp evidence etc. Scientific principles are involved in a crash: perception/reaction time, sight distance, distance, time, speed etc. These concepts require a knowledge and understanding of applied mathematics and vehicle dynamics.Most common causes of traffic crashes in South Africa:1. Speeds too high for conditions, especially, during inclement weather and at night; 2. Dangerous, reckless and/or inconsiderate driving, particularly barrier line infringements; 3. Abuse of alcohol by drivers and pedestrians; 4. Fatigue, especially amongst public passenger drivers; 5. Vehicle fitness, particularly tyre failure and defective brakes, and 6. Pedestrian negligence (jay walking, walking on freeways, not visible at night and drunken walking). This press release was prepared by the RTMC. Fatalities for the period of 1 Dec 2011 TO 11 January 2012 1 B. The South African law RELATING TO TRAFFIC CRASHES: There are three aspects required in securing a guilty verdict of a suspect charged with the following serious traffic offenses of murder, culpable homicide, drunk driving and reckless and\or negligent driving namely: 1. The Law that defines the offense. The law has been drafted by the State and although there are different viewpoints and interpretation of the law, it allows for justice. i. Constitution of the Republic of South Africa, 1996 ii. National Road Traffic Act 1996; ii. Criminal Procedure Act, 1997 ii. South African Law Reviews 2. The Criminal Procedure Act that prescribes the process to be followed in laying such charges and rights of the accused under the Constitution. Innocent until proven guilty: A person is assumed to be innocent until such time he/she is found guilty in a Court of Law. In criminal cases the State has to proof, beyond a reasonable doubt, that a person is in fact guilty of the offense he is being charged with. An accused that has been found guilty of committing an offense has the right to appeal and will still be considered not guilty up until finalizing of his appeal. 3. Proving that the offense was committed by the accused and that the accused is in fact guilty of the offense he/she is charged with. This is probably the most problematic and difficult part of the three aspects in finding a guilty verdict. Proof entirely depends on evidence. Evidence is gathered during the “investigation”. It is not the quantity but the quality of the investigation that is important. C. THE INTERACTION AND DEPENDENCY OF THE OFFENSE, THE PROCESS AND PROOF IN OBTAINING A GUILTY VERDICT ON OFFENSES RELATED TO TRAFFIC CRASHES A basic knowledge of the Law relating to traffic crashes is required to fully understand the processes required for a successful prosecution. 1. The National Road Traffic Act 93 of 1996: Reckless or negligent driving, inconsiderate driving, driving while under the influence of intoxicating liquor or a drug having a narcotic effect, and miscellaneous offenses: Reckless or negligent driving 63 (1) No person shall drive a vehicle on a public road recklessly or negligently. (2) Without restricting the ordinary meaning of the word "recklessly" Any person who drives a vehicle in willful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly. (3) In considering whether subsection (1) has been contravened, the court shall have regard to all the circumstances of the case, including, but without derogating from the generality of subsection (1) or (2), the nature, condition and use of the public road upon which the contravention is alleged to have been committed, the amount of traffic which at the relevant time was or which could reasonably have been expected to be upon that road, and the speed at and manner in which the vehicle was driven. The speed and manner in which the vehicle was driven needs to be proven by the State. Here the State must rely entirely on evidence. ii. Inconsiderate driving No person shall drive a vehicle on a public road without reasonable consideration for any other person using the road.iii. Driving while under the influence of intoxicating liquor or drug having narcotic effect, or with excessive amount of alcohol in blood or breath 65.(1) No person shall on a public road- (a) drive a vehicle; or (b) occupy the driver's seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect. (2) No person shall on a public road- (a) drive a vehicle; or (b) occupy the driver's seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 milliliters, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 milliliters. (3) If, in any prosecution for an alleged contravention of a provision of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 gram per 100 milliliters at any time within two hours after the alleged contravention, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,05 gram per 100 milliliters at the time of the alleged contravention, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 milliliters, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,02 gram per 100 milliliters at the time of the alleged contravention. (4) Where in any prosecution in terms of this Act proof is tendered of the analysis of a specimen of the blood of any person, it shall be presumed, in the absence of evidence to the contrary, that any syringe used for obtaining such specimen and the receptacle in which such specimen was placed for despatch to an analyst, were free from any substance or contamination which could have affected the result of such analysis. (5) No person shall on a public road- (a) drive a vehicle; or (b) occupy the driver's seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of breath exhaled by such person is not less than 0,24 milligrams per 1 000, milliliters, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per 1 000 milliliters. (6) If, in any prosecution for a contravention of a provision of subsection, (5) it is proved that the concentration of alcohol in any specimen of breath of the person concerned was not less than 0,24 milligrams per 1 000 milliliters of breath taken at any time within two hours after the alleged contravention, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,24 milligrams per 1 000 milliliters at the time of the alleged contravention, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per 1 000 milliliters, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,10 milligrams per 1 000 milliliters the time of the alleged contravention. (7) For the purposes of subsection (5) the concentration of alcohol in any breath specimen shall be ascertained by using the prescribed equipment. (8) Any person detained for an alleged contravention of any provision of this section shall not- (a) during his or her detention consume any substance that contains alcohol of any nature, except on the instruction of or when administered by a medical practitioner; (b) during his or her detention smoke until the specimen referred to in subsection (3) or (6) has been taken, as the case may be. (9) No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her. The above addresses the charge of driving under the influence of alcohol. It in fact has two parts. The second part addresses the amount of alcohol in the driver’s blood, but the first part, the driving part, must not be neglected. In order for a prosecution on the main charge namely driving while under the influence of intoxicating liquor or a drug having a narcotic effect, and not the alternative charge of while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 milliliters, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 milliliters, the state has to proof that the drivers capability to drive his/her vehicle was impaired by the amount of alcohol in his blood, in such a way that he could not operate/drive the vehicle in a way (of the reasonable man) as prescribed by the Road Traffic Act. This again places the onus of proof on the State to proof through evidence that the driver did not operate his/her vehicle as prescribed by the Road Traffic Act. “A reasonable man” The reasonable man standard is by no means democratic in its scope; it is, contrary to popular conception, intentionally distinct from that of the "average person," who is not necessarily guaranteed to always be reasonable. The reasonable person will weigh all of the following factors before acting: 1. the foreseeable risk of harm his actions create versus the utility of his actions; 2. the extent of the risk so created; 3. the likelihood such risk will actually cause harm to others; 4. any alternatives of lesser risk, and the costs of those alternatives. Taking such actions requires the reasonable person to be appropriately informed, capable, aware of the law, and fair-minded. Such a person might do something extraordinary in certain circumstances, but whatever that person does or thinks, it is always reasonable. The test for a reasonable person is an objective test. It does not consider the individual circumstances. D. The Criminal Procedure Act, Act 51 of 1977 “peace officer” includes any magistrate, justice, police official, correctional official as defined in section 1 of the Correctional Services Act, 1959 (Act 8 of 1959), and, in relation to any area, offense, class of offense or power referred to in a notice issued under section 334 (1), any person who is a peace officer under that section; The above includes Municipal/Provincial Traffic/Metro and Police Officers 20. State may seize certain articles.—The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)— (a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offense whether within the Republic or elsewhere; Above includes the motor vehicle that was involved in the traffic collision in order to inspect the vehicle for any mechanical faults as described earlier in this document. (b) which may afford evidence of the commission or suspected commission of an offense whether within the Republic or elsewhere; or (c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence. All of the above should be handed in and book into the SAP13 register as evidence in the trail. 23. Search of arrested person and seizure of article.— (1) On the arrest of any person, the person making the arrest may— (a) if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or (b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official. (2) On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which may be used to cause bodily harm to himself or others. The above articles also include items such as liquor containers in the vehicle of the person being arrested on suspicion of driving while under the influence of alcohol. 50. Procedure after arrest.— (1)(a) Any person who is arrested with or without warrant for allegedly committing an offense, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant. (b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings. (c) Subject to paragraph (d), if such an arrested person is not released by reason that— (i) no charge is to be brought against him or her; or (ii) bail is not granted to him or her in terms of section 59 or 59A, he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest. (d) If the period of 48 hours expires— (i) outside ordinary court hours or on a day which is not an ordinary court day, the accused shall be brought before a lower court not later than the end of the first court day; (ii) or will expire at, or if the time at which such period is deemed to expire under subparagraph (i) or (iii) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a lower court, the court before which he or she would, but for the illness or other condition, have been brought, may on the application of the prosecutor, which, if not made before the expiration of the period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a medical practitioner, authorize that the arrested person be detained at a place specified by the court and for such period as the court may deem necessary so that he or she may recuperate and be brought before the court: Provided that the court may, on an application as aforesaid, authorize that the arrested person be further detained at a place specified by the court and for such period as the court may deem necessary; or (6)(a) At his or her first appearance in court a person contemplated in subsection (1) (a) who— (i) was arrested for allegedly committing an offense shall, subject to this subsection and section 60— (aa) be informed by the court of the reason for his or her further detention; or (bb) be charged and be entitled to apply to be released on bail, and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released; or (ii) was not arrested in respect of an offense, shall be entitled to adjudication upon the cause for his or her arrest. (b) An arrested person contemplated in paragraph (a) (i) is not entitled to be brought to court outside ordinary court hours. (d) the lower court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court, for a period not exceeding seven days at a time, on the terms which the court may deem proper and which are not inconsistent with any provision of this Act, if— (i) the court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application; (ii) the prosecutor informs the court that the matter has been or is going to be referred to an attorney-general for the issuing of a written confirmation referred to in section 60 (11A);(iii) . . . . . . (iv) it appears to the court that it is necessary to provide the State with a reasonable opportunity to— (aa) procure material evidence that may be lost if bail is granted; or (bb) perform the functions referred to in section 37; or (v) it appears to the court that it is necessary in the interests of justice to do so. 60 Bail application of accused in court Cases (Including Driving while under the influence of alcohol, culpable Homicide, reckless and negligent driving) 1(a) An accused who is in custody in respect of an offense shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offense, if the court is satisfied that the interests of justice so permit. The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: (a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offense; or A Schedule 1 offense includes the following charges, Murder and culpable homicide. This raises the question of if a person is arrested for culpable homicide after being involved in an accident where a person is killed in, is there a likelihood that if he or she was released on bail that they will endanger the safety of the public or any particular person or will commit a Schedule 1 offense? I believe that there is a high possibility that exactly that will happen again. Depending on the circumstances of each case, due to the fact that driving a vehicle requires skill, is influence by attitude towards the rules of the road and to other motorists and pedestrians, norms, the use of alcohol etc, the arrest of a first time offender will not necessarily change his driving behavior or attitude. (b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or (c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardize the objectives or the proper functioning of the criminal justice system, including the bail system; (e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security; The above in most cases means that when a person was arrested for the above mentioned offenses and he has a permanent home and/or work address and none of the above mentioned ground exist, must be released on bail. A person arrested for culpable homicide after a traffic collision, or for drunk driving where he caused the death of another person, cannot without the above grounds be kept in custody without being entitled to be released on bail. E. MURDER VERSUS CULPABLE HOMICIDE Definition of murder: The common law definition of murder, which by this definition occurs when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied. The elements of common law murder are: 1. Unlawful 2. killing 3. of a human 4. by another human 5. With malice aforethought. The Unlawful—This distinguishes murder from the killings that are done within the boundaries of law, justified self-defense, or the killing of enemy soldiers during a war. Killing—At common law life ended with cardiopulmonary arrest—the total and permanent cessation of blood circulation and respiration. With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life. With malice aforethought—originally malice aforethought carried its everyday meaning—a deliberate and premeditated killing of another motivated by ill will (Intention to kill). Definition of culpable homicide/manslaughter Criminally negligent manslaughter is variously referred to as criminally negligent homicide in the United States, gross negligence manslaughter in England and Wales. In Scotland and some Commonwealth of Nations jurisdictions the offense of culpable homicide might apply. It occurs where death results from serious negligence or serious recklessness. A high degree of negligence is required to warrant criminal liability. Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. A comparison in different charges related to traffic collisions where a person was killed: The main charge will be culpable homicide. Why culpable homicide and not murder? It shall be sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it shall be sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased. The difference here is the word “intentionally”. This means that the accused had to have the intention to kill. This intention to kill has to be proofed by the state. In traffic collisions where a person was killed, it is very difficult to proof intention. Example: A driver disobeys a red traffic light and crashes into another vehicle with the result of the driver or passenger in the other vehicle being killed in the accident. The driver that disobeyed the red traffic light is in contravention of the National Road Traffic Act. He is charged with culpable homicide. In this case the driver intentionally disobeyed the traffic signal, there was therefore intention, but the intention required by law for a charge of murder, requires intention to kill. It will be nearly impossible for the state to proof that the driver of the vehicle had the intention to kill the driver or passenger in the other vehicle, therefore he is charged with culpable homicide or manslaughter. Murder and attempted murder: Attempted murder definition: H. RECOMMENDATIONS Although ignorance of the law is not a valid excuse under the law, there is an urgent need for the general public to be informed of the law pertaining to traffic crashes as discussed in this document. Pressure has to be placed on the South African Government to speed up the analyzing of blood samples. Investigating officers responsible for the investigation of case dockets relating to serious traffic offenses should be adequately trained in this highly specialized field. The correct procedures in dealing and securing vital traffic crash evidence should be adhere to. This includes confiscating the vehicle/s involved in a crash for mechanical examination. Pressure has to be put on the NPA to charge more drivers for murder rather than culpable homicide in circumstances as prescribed earlier in this document.