Blood evidence questioned
The lawyer defending culpable homicide accused Morné Mouton argues that a breathalyser test is inadmissible as evidence, citing an earlier High Court ruling.
FRED GOEIEMAN
The handling of the blood samples taken immediately after a fatal accident from Windhoek resident Morné Mouton (21), who caused the death of three people in Hochland Park in 2015, is becoming thorny issue for the State.
The investigating officer in the case, Kautja Tjongarero, yesterday testified that Mouton did not object to taking a breathalyser test and a blood test to determine his blood alcohol level.
“In the process of screening the accused, I could see his eyes were red and his breath smelled of alcohol. The breathalyser results showed positive,” Tjongarero said.
He said he took Mouton with the sealed blood samples to a doctor who examined him. The doctor explained the process of the blood sample to Mouton and thereafter sealed the blood sample with a new seal.
Tjongarero said he took Mouton to the police station where he was booked into the holding cells and informed that he would be charged with drunk driving.
Mouton, who was 19 years old at the time of the incident, pleaded not guilty to the charges this week.
The accused had a brief period of freedom when his case was provisionally struck from the roll in September 2018 after the court conceded to a defence objection citing the lengthy delays in the matter.
On the date when the case was struck from the roll, the case docket was not in court but it was retrieved and the case was again placed on the court roll.
Mouton faces charges of culpable homicide and driving under the influence of alcohol for the road accident that resulted in the death of police officer Manfred Gaoseb, 35, and two civilians, namely 22-year-old Werner Simon and Joshua Ngenokesho.
Sisa Namandje, appearing on behalf of Mouton, argued that the result of the breathalyser test was inadmissible as evidence, citing a High Court ruling that suspects must be taken to a doctor to draw blood for testing.
Tjongarero, during cross-examination by the defence lawyer, denied that certain police officers had interfered with the blood samples.
In another case at Swakopmund a few years ago, lawyer Raymond Heathcote, who was charged with driving under the influence of intoxicating liquor, alternatively driving with an excessive breath alcohol level, had pleaded not guilty.
In a plea explanation he questioned both the reliability of the breathalyser equipment used to measure his breath alcohol level before his arrest at Swakopmund on 27 August 2011, and the legality of the government notice regarding breathalysers.
In her ruling in January 2015, Magistrate Gaynor Poulton said the government notice stipulating which breathalysers can be used in Namibia did not conform to the Act, and as a result was invalid.
The magistrate’s ruling followed an argument by Heathcote’s lawyer that a section of the Act required that when the regulations stipulating the standards to be met by breathalyser equipment are issued, they must be published and be open for inspection. This had not been stated in the government notice of 2003.
However in the Supreme Court after considering a petition in which the State asked it to overturn a High Court judge's refusal of its application for leave to appeal against the magistrate's ruling, Chief Justice Peter Shivute and Acting Judges of Appeal Gerhard Maritz and Sylvester Mainga decided to set aside the judge's decision. The Supreme Court replaced the decision with an order allowing the State to appeal against the magistrate's ruling after all.
The handling of the blood samples taken immediately after a fatal accident from Windhoek resident Morné Mouton (21), who caused the death of three people in Hochland Park in 2015, is becoming thorny issue for the State.
The investigating officer in the case, Kautja Tjongarero, yesterday testified that Mouton did not object to taking a breathalyser test and a blood test to determine his blood alcohol level.
“In the process of screening the accused, I could see his eyes were red and his breath smelled of alcohol. The breathalyser results showed positive,” Tjongarero said.
He said he took Mouton with the sealed blood samples to a doctor who examined him. The doctor explained the process of the blood sample to Mouton and thereafter sealed the blood sample with a new seal.
Tjongarero said he took Mouton to the police station where he was booked into the holding cells and informed that he would be charged with drunk driving.
Mouton, who was 19 years old at the time of the incident, pleaded not guilty to the charges this week.
The accused had a brief period of freedom when his case was provisionally struck from the roll in September 2018 after the court conceded to a defence objection citing the lengthy delays in the matter.
On the date when the case was struck from the roll, the case docket was not in court but it was retrieved and the case was again placed on the court roll.
Mouton faces charges of culpable homicide and driving under the influence of alcohol for the road accident that resulted in the death of police officer Manfred Gaoseb, 35, and two civilians, namely 22-year-old Werner Simon and Joshua Ngenokesho.
Sisa Namandje, appearing on behalf of Mouton, argued that the result of the breathalyser test was inadmissible as evidence, citing a High Court ruling that suspects must be taken to a doctor to draw blood for testing.
Tjongarero, during cross-examination by the defence lawyer, denied that certain police officers had interfered with the blood samples.
In another case at Swakopmund a few years ago, lawyer Raymond Heathcote, who was charged with driving under the influence of intoxicating liquor, alternatively driving with an excessive breath alcohol level, had pleaded not guilty.
In a plea explanation he questioned both the reliability of the breathalyser equipment used to measure his breath alcohol level before his arrest at Swakopmund on 27 August 2011, and the legality of the government notice regarding breathalysers.
In her ruling in January 2015, Magistrate Gaynor Poulton said the government notice stipulating which breathalysers can be used in Namibia did not conform to the Act, and as a result was invalid.
The magistrate’s ruling followed an argument by Heathcote’s lawyer that a section of the Act required that when the regulations stipulating the standards to be met by breathalyser equipment are issued, they must be published and be open for inspection. This had not been stated in the government notice of 2003.
However in the Supreme Court after considering a petition in which the State asked it to overturn a High Court judge's refusal of its application for leave to appeal against the magistrate's ruling, Chief Justice Peter Shivute and Acting Judges of Appeal Gerhard Maritz and Sylvester Mainga decided to set aside the judge's decision. The Supreme Court replaced the decision with an order allowing the State to appeal against the magistrate's ruling after all.
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