H. N. G. FERNANDO, J.—Gunasena v. The Queen
1959 Present: H. N. G. Fernando, J., and T. S. Fernando, J.W.A. GUNASENA, AppeUanfc, and THE QUEEN, RespondentS. C. 19—D. C. (Criminal) Panadura, 264j48770Negligent driving of omnibus—Quantum of evidence.
Where sleep suddenly overcomes the driver of an omnibus and there is notechnical testimony to establish that a person cannot fall asleep without priordrowsiness, the driver cannot, in the event of an accident, be convicted ofnegligent driving in that he failed to keep a proper look-out and that he drovethe bus without due care and precaution.
-A.PPEAL from a judgment of the District Court, Panadura.
Colvin R. de Silva, with M. L. de Silva, for the accused-appellant.A. C. de Zoysa, Crown Counsel, for the Attorney-General.
Cur. adv. milt.
January 5, 1959. H. N. G. Fernando, J.—
The accused in this case has been convicted of negligent driving of abus in that he failed to keep a proper look-out and that he drove the buswithout due care and precaution.
It would appear that a party of about twenty people travelled in thebus to Kataragama from Angoda on 7th July 1957 and were on theirreturn journey having left a place called Nimalawa about 1 f.m. on8th July 1957. The bus had reached Galle about 2 a.m. on 9th July1957. Two persons took turns to drive the bus the appellant being therelief driver. The other driver had been driving for the whole or apart of the journey between Nimalawa and Galle and the appellanttook over at Galle at about 2.30 a.m.
H. N. G. FERNANDO, J.—Ounasena v. The Queen
The evidence for the prosecution relevant to the charge of negligent-driving consisted of that of one passenger and of the other driver. Allthey can say is that they were asleep in the bus and awoke to find that thebus had crashed into a tree by the side of the road and overturned.
The accused himself gave evidence the effect of which was that hewas driving the bus but did not realise that any accident had occurreduntil he found the bus toppling over. In cross-examination he statedthat he was not asleep but lost his vision for about two minutes beforethe bus struck the tree. There were some contradictions of this versionin the statement made by the appellant to the Police and for this reasonthe District Judge was of opinion that the appellant was not speakingthe truth. The finding against the appellant is stated in these words ;“ the accused did fall asleep whilst driving the bus and therefore failedto keep a proper look-out or drive with due care and precaution. Oncethe accused took up the driving of the bus it was his business to keepawake and if he fails to do so he is answerable. Sleepiness is not a thingthat comes in a flash. One feels drowsy and sleepy before one actuallyfalls asleep ”.
It would seem therefore that the learned Judge took the view that theappellant must have been falling asleep during some period howeverbrief before the accident occurred and that his negligence consisted of hisfailure to cease driving when he realised his unfitness to drive. Sucha view was permissible in the circumstances, but in the absence of evi-dence, there was not proof beyond reasonable doubt that the appellantdid have an opportunity to consider whether he should cease driving anddid in fact fail to utilise that opportunity. There is in addition anobservation in the judgment which was not justified namely that “ theaccused did not state or adduce any evidence to show that he had restedand slept for any length of time before he took the wheel at Galle ”.I do not agree that the appellant need have given any such evidence.The fact that he drove without accident from about 2.30 a.m. and thefact that the speed of the bus must have been moderate having regardto the distance covered before the accident occurred both indicate thatthe appellant was capable of driving when he took the wheel at Galle.
The evidence in the case is not inconsistent with the view that sleepsuddenly overcame the appellant and there was no technical testimonyto establish that a person cannot fall asleep without prior drowsiness.
After judgment, was reserved Crown Counsel informed me that thereare certain English judgments which might be utilised to support theverdict. I should like to state that I have not taken those judgmentsinto consideration.
The appeal is allowed and the conviction and sentence is set aside.
T. S. Fernando, J.—I agree.
W. A. GUNASENA, Appellant, and THE QUEEN, Respondent