REGINA v SMITH 1980 ZLR 32 (G)

1980 ZLR p32

Citation 1980 ZLR 32 (G)

Case No Details not supplied

Court General Division, Salisbury

Judge Beck, J? Waddington J concurring

Heard 6th February, 1980

Judgment 6th February, 1980

Counsel Details not supplied

Case Type Criminal Review

Annotations No case annotations to date

Flynote

Mental disorder — automatism — onus of proof of allegation that C accused committed crime when in state of

automatism — whether accused who proves allegation entitled to acquittal.

Road Traffic Act, 1976 (No. 48 of 1976) — section 54 — evidence in criminal trial indicting that accused may super

from amnesia and D automatism — duty of Court to inquire into accused’s competence to drive motorvehicle in terms

of section 54.

Headnote

On trial for a driving offence the accused claimed that he had been severely concussed in a previous

road accident and that as a result there had been periods E when his mind had gone blank and he

had been left with no recollection of what had occurred? the alleged offence, he claimed, had

been committed during one of these periods. He led no medical evidence in support of his claim

and was convicted as charged. On review.

Held that in this country the onus of proving assertions such as those the accused made (which

would raise in a South African Court the defence known as F “sane automatism”) lies on the

accused.

Held, further, that the accused’s assertions would, if accepted, entitle him only to a special verdict

under section 28 (1) of the Mental Health Act, 1976, not to an acquittal. G

Held, further, that in the absence particularly of medical evidence the accused had not discharged

the onus of proving his assertions.

Held, further, that because the evidence raised the possibility that the accused suffered from bouts

of amnesia and automatism and had not been cured, the magistrate should have inquired in

terms of section 54 of the Road Traffic Act, 1976, into the accused’s competence to continue

driving a motorvehicle? H and should now be directed to open such an inquiry.

Cases cited

R v Senekal 1969 (2) RLR 368 (AD)? 1969 (4) SA 478 (RA).

1980 ZLR p33

Beck J

Judgment

Beck J: the space of ten weeks the accused was involved in two serious road accidents of his own

making. First of all, on the 29th April, A 1979, he overturned a vehicle because he drove too fast

and lost control.

At the time he had a bloodalcohol content of 96 milligrams of alcohol per 100 millilitres of blood.

Then, on the 7th July, while going home from a drivein cinema, he drove at speed through a

robotcontrolled intersection against the red light and collided with the tailend of a car B that was

lawfully crossing the intersection. The accused simply sped on home after the impact without

stopping.

On the 5th November, 1979, he was brought to trial on six counts under the Road Traffic Act, 1976.

Courts 3 and 6, in respect of which he was C properly convicted and sentenced, are not of

importance in relation to this judgment. Courts 1 and 2 arose out of the first accident of the 29th

April and were, respectively, for contravening section 45 (1) (too high a bloodalcohol content), and

for contravening section 43 (1) (negligent driving). Courts 4 and 5 arose out of the accident of the

7th July and D were, respectively, for negligent driving and for not stopping after an accident. The

accused, who was not legally represented, pleaded guilty to all six counts but, for a reason to be

stated hereunder, the magistrate properly entered pleas of not guilty to counts 2, 4 and 5. After

evidence was heard in relation to these lastmentioned counts the accused was E convicted of all the

offences with which he was charged and was duly sentenced somewhat leniently in my opinion to

fines that totalled $170.

The reason why the magistrate entered pleas of not guilty to counts 2, F 4 and 5 was that the

accused, while not disputing the State’s evidence, said that he had no recollection of either accident.

The accused seems to have been severely concussed in the first accident and he claimed to have

been left with a retrograde amnesia for that accident. With regard to the second accident the

accused claimed that as an aftermath of the G concussion that he sustained in the first accident he

had severe headaches, and he said there were times prior to the second accident when his mind

went blank and he was left with no recollection of his behaviour during these blank episodes. He

said that he remembered nothing of the journey home on the 7th July from the time that he left the

drivein cinema, and H he was therefore unaware that he had flagrantly disobeyed a red light and

collided with another vehicle in consequence. Since he tendered pleas of guilty to all counts in spite

of these assertions one wonders whether he intended to press them seriously? but perhaps it is

more probable that he did not realize that these assertions, if accepted by the court,

1980 ZLR p34

Beck J

would constitute a defence to counts 4 and 5 to the extent that they negatived his mens rea. A

I should add, at this stage, that the accused went on to say that he had undergone an operation

some time after the second accident and that a blood clot was then removed from his brain, since

which time he had not experienced any further headaches or any “blackouts”.

No query presents itself as far as the convictions under counts 1 and 2 B are concerned, for the

defence of automatism did not, of course, fall to be considered in respect of the first accident. He

was not behaving in a state of automatism when he drove the vehicle with a prohibited amount of

alcohol in his blood, and when he negligently overturned it. He merely C has a postaccident amnesia

for the events that occurred shortly before he was concussed.

With regard to counts 4 and 5 the question presents itself whether the magistrate accepted the

evidence that indicated a state of automatism, D and, if so, whether he was not then bound to have

entered special verdicts under section 28 (1) of the Mental Health Act, 1976, in view of the very

wide interpretation that was given in R v Senekal 1969 (2) RLR 368 (AD)? 1969 (4) SA 478 (RA) to

the statutory definition of a “mentally disordered or defective” person. At page 378 E AB (page 488

AB of the South African report) BEADLE CJ said:

“The second principle which emerges from RUMPFF JA’s judgment is that the cause of the mental disorder

or disability is irrelevant. If, therefore, the accused’s mind was disabled at the relevant time, he falls

within the definition no matter what caused the disability. This also, with respect, seems F

commonsense. From the point of view of the law, it can make little difference whether the blood clot

which disables the mind results from a thickening of the arteries, or results from some purely physical

cause such as a blow on the head. The law is concerned with the result, not the cause. The cause may be

organic, functional or physical.”

And G at page 379E (page 489B of the South African report) he went on to say:

“I conclude, therefore, that a person who was not responsible in law for his action because he acted in a

state of automatism due to injuries received to his head is not entitled to a verdict of not guilty but only

to a special H verdict under section 31 (1).”

Section 31 (1) of the former Mental Disorders Act corresponds with section 28 (1) of the 1976 Act.

1980 ZLR p35

Beck J

In the light of that decision it would seem that in Rhodesia the onus of proving assertions such as

those that the accused has made (assertions A which would raise, in a South African Court, the

defence known as “sane automatism”) lies on the accused. On the scanty evidence that was before

him the magistrate could not, in my view, properly have returned special verdicts under counts 4

and 5. The inquiry into the accused’s alleged temporary mental disability was of the sketchiest kind.

In particular, no B medical evidence, such as is required by section 28 (1) of the Mental Health Act,

was heard. Nor indeed, as I understand the magistrate’s judgment, did he make a firm finding that

the accused was in a state of automatism at the time of the second accident. Thus, in his judgment

on sentence, and with regard to the accused’s guilt under counts 4 and 5, the magistrate made the

equivocal observation: C

“Either you should not have been driving if you had these blackouts, or you were simply negligent and

you drove away.”

It seems clear therefore that the magistrate did no more than recognize D a possibility that the

accused may have been in a state of automatism but, correctly, did not find on the strength of

such tenuous evidence any balance of probability in favour of a state of affairs that the defence

had to prove. Since that onus was not discharged, the convictions under counts 4 and 5 were

correct. E

However, the matter cannot be allowed to rest there. The evidence as a whole raises the distinct

possibility that the accused may indeed have suffered from recurring bouts of amnesia and

automatism after the first accident and, despite his allusion to the removal from his brain of a clot F

by surgery to which he was subjected after the second accident, there can, on the present

information, be no certainty that he has been cured of such bouts. If he is not cured it would clearly

be dangerous to himself and to others if he were to continue to drive a motorvehicle, and his

competence to do so should have been inquired into by the magistrate after the trial G in terms of

section 54 of the Road Traffic Act, 1976.

At the time of the second accident the accused did not hold a Rhodesian driver’s licence, although he

did hold a foreign driver’s licence. It was, in parathensis, this omission on his part to have obtained

a H Rhodesian licence before the expiry of the period allowed in terms of section 18 of the Road

Traffic Act, 1976, that led to the charge that was the subject of count 6. In terms of section 19 of

the Act the accused, as the holder of a foreign licence, may readily obtain a Rhodesian licence

without having to undergo an examination of his competency to drive, and

N n 1980 ZLR p36

Beck J for all one knows the accused may by now be the holder of a Rhodesian driver’s

licence.

The convictions and sentences are all confirmed. Any driver’s licence A presently held by the

accused, or that may be issued to him on or before the 5th November, 1984, is to be endorsed with

the particulars of the convictions and sentences on counts 1, 2, 4 and 5. The trial magistrate is

directed to cause the accused to appear before him for the purpose of inquiring, in terms of section

54 of the Road Traffic Act, 1976 (which B inquiry is to include medical evidence), into the accused’s

competence to drive or control a motor vehicle.

My brother Waddington agrees.