Aluwi Sharric v. R., Crim. App. 57-DDM-72, 11/7/72.

 

Aluwi Sharric v. R., Crim. App. 57-DDM-72, 11/7/72.

            MNZAVAS, J. – This is an appeal from the decision of the District Court of Mbeya in Criminal Case No. 87 of 1972 in which the appellant was convicted of Causing death by dangerous driving c/s 44A (1) (a) of the Traffic Ordinance, Cap. 168 of the Laws.

            On the 12/1/72 at about 2 a. m the accused was driving his motor vehicle, Ford Escort Car, registration number IR 3824, along Tunduma – Mbeya road – He was coming from Tunduma and was heading to Mbeya. When he reached a place called Songwe he saw in front of him a convoy of six Tipper vehicles which were also heading to Mbeya. The accused attempted to overtake the convoy of trucks in front of him. He managed to overtake the first truck in front of him but soon after he knocked his car against the rear of the next truck in front of him. As a result of the impact his car was extensively damaged and, worse still, one Salehe abdallah, who was at the material time a  passenger in accused’s car, was fatally injured ……. On the evidence the learned resident magistrate was satisfied that the prosecution had proved its case beyond all reasonable doubt against the accused and he found the accused guilty of the offence and sentenced him to a fine of Shs. 2,000/= or six months imprisonment in default.

            Challenging the correctness of the learned Resident Magistrate’s finding Mr. Dhebar, advocate for the accused, and has filed a long memorandum of appeal to this court. [The court then quoted the main grounds of appeal]. It will be noted from the above grounds of appeal that they all have one thing in common. They all stress that the accused caused the fatal accident because a blanket of fog suddenly appeared in front of him thereby blurring his vision, and that because of this he failed to see in time to enable him to stop that he was driving against the rear of the truck he knocked. In his judgment the learned trial magistrate fully analysed this defence and came to the conclusion that it was not plausible …….. I agree that the accused’s vision may have been suddenly blurred  by fog and hence the accident; but with even greater respect I would say that even if this was so it does not necessarily follow that the accused was not to blame for the accident. It has, times without number, been held by this court as well as courts of other jurisdictions that in considering the “circumstances” in a charge of causing death by dangerous driving the test to be applied is purely an objective one. [The court quoted from R. v. Evans, (1962) all E.R. 1086 and continued].

In GRAHAM LESLLE JOHN BALL and JOHN LOUGHLIN, (1966) 50 G. App. R. 266 at 270, a case of causing death by dangerous driving, Lord Chief Justice Parker had this to say: “It is, in the opinion of this court, perfectly clear that what is meant by “driving in a manner dangerous” is the manner of the actual driving …. It has been held time and again that an offence under this section is an absolute offence …… and if the result of his driving produced what the jury considered to be a dangerous situation, a dangerous manoeuvre, then even though he had been completely blameless he can be held liable ….. In the judgment of this court the “circumstances” there referred to are the circumstances outside the vehicle, circumstances not pertaining to the driver, but the circumstances outside on the road......... It is made clear that the only possible defence, once there is proved to have been a dangerous manoeuvre, applying the objective test, is where it can be said that the driver had been deprived of control of the motor vehicle by some sudden affliction of his person ….. or where the driver had been deprived by some defect in the mechanism of a car which had suddenly manifested itself through no blame on his part.”

            In this case it cannot be said that the accused had been deprived of control of the motor vehicle by some sudden affliction of his person just before he caused the accident. Nor can it, on the evidence, be said that there was a defect in his car which had suddenly manifested itself just before the accident.

            The defence is that the accused’s vision was blurred by fog and that this is what caused him to drive and knock at the rear of the moving truck in front of him. In SHAABAN SAIDI v. R., (1970) H.C.D. n. 43, a case not very dissimilar from the present one, Georges C. J. (as he then was) remarked when dealing with the degree of negligence on the part of the accused: “It must be clear that driving …. On the wrong side of the road through a cloud of dust which reduced visibility greatly is a serious act of negligence”…… A reasonable driver who finds that a sheet of fog has suddenly blurred his vision in front of him would certainly stop his car. To continue driving while visibility was blurred by fog was clearly negligent on the part of the appellant. If he had stopped or even moderated his speed it is more than likely that this nasty accident would not happened.

            By applying the objective test I tend to agree with the learned Resident Magistrate that the appellant was driving in a dangerous manner when he knocked against the rear of the moving truck and thereby causing the death of his passenger. Appeal dismissed and sentence confirmed].