SINXBTAMBY, J.—Daniel v. Lewis
1959Present: Sinnetamby, J.
H. DANIEL, Appellant, and H. 0. R. LEWIS (Officer-in-Oharge, Police
Station, Galle), Respondent
S. O. 673—M. C. Qatte, 16001
Jtlator Traffic JLct, jVo. 14 of 1951—■Section 150 (10)—Contravention of11 off side rede ”—Durden of proof—Evidence Or dinance, s. 105.
By section 150 (10) of the Motor Traffic Act—
“ Where two or more motor vehicles approach, or arrive at, the intersectionof two or more highways at the same time from different directions, and anytwo or more of the drivers thereof indicate their intention to drive along thesame part of the area of intersection, then, if traffic is not regulated at thatintersection by a police officer or by means of light signals or of notices undersection 152 no such motor vehicle shall be driven along that part of the areaof intersection until any other such motor vehicle coming from the rightor off side, has passed it. ”
Held, that in a prosecution for breach of section 150 (10) the burden is on thecomplainant to establish that, at the area of intersection, traffic was notregulated by a police officer or by means of traffic signals or by notices undersection 152.
PPEAL from a judgment of tlie Magistrate’s Court, Galle.
Prins Qunaseh&ra, for Accused-Appellant.
F. B. Wihramanayake, for Attorney-General.
Cur. adv. vult.
July 2, 1959. Sestetet atvtby, J.—
The accused in this case was charged with driving Motor VehicleNo. CV 6203 along a public highway and with having at a road junctionfailed to “ comply with the off side rule ” to wit: “ allow Car No. EL 1315in pass from the off aide ” in breach of Section 150 (10) of the MotorTraffic Act.
The facts accepted by the learned Magistrate show that at this parti-cular junction the accused who was driving a bus tried to go past a motor•car driven by the A. S. P., Galle which was approaching the round about-from his right or off side. The A. S. P. had to stop his car to avoid anaccident. In his evidence the A. S. P. stated that if he had not appliedhis brakes the bus would have run over the car. On these facts whichwere accepted by the Magistrate it is clear that but for the timely actionof the A. S. P. the conduct of the accused in not giving way to the carwould have resulted in an accident.
Section 150 (10) is in the following terms :—
“ Where two or more motor vehicles approach, or arrive at, theintersection of two or more highways at the same time from differentdirections, and any two or more of the drivers thereof indicate their
SINNET^MBY, J.—Daniel v. Lewis
intention to drive along the same part of the area of intersection, then,if traffic is not regulated at that intersection by a police officer or bymeans of light signals or of notices under section 152 no such motorvehicle shall be driven along that part of the area of intersection untilany other such motor vehicle coming from the right or off side, haspassed it ”.
The only question that arises for consideration in this case is whetherit is incumbent on the prosecution to establish that at the junctiontraffic was not regulated at the time by a police officer or by means oftraffic signals or by notices under section 152 in order to succeed.
It is the contention of the accused’s Counsel that the conditional clausein section 150 is an essential element of the offence and that the burdenof establishing it is upon the prosecution. The prosecution on the otherhand state that by virtue of the section 105 of tile Evidence Ordinancethese provisions constituted something in the nature of a proviso or ex-ception and that the burden of establishing the facts necessary to es-tablish any or all of these is upon the accused. It is to be noted that theconditional clause is not expressly stated to be either a proviso or anexception, but nevertheless if on a true construction of the section it is so,then the burden would undoubtedly be upon the accused to show thatby virtue of the proviso or exception he is not guilty of an offence of whichhe would otherwise have been guilty.
It seems to me, however, that the state of things contemplated hv theclause in question is a necessary element of the offence which the sectionseeks to penalise. The contravention of the off side rule by itself is not anoffence but it becomes an offence only if there is not at the junction eithera policeman or traffic lights controlling traffic or there is an absenceof notices under section 152 indicating which the major road and whichthe minor is. If there is a policeman on traffic duty or there are trafficlights or if there is a notice under section 152 then the off side rule has noapplication and the driver of the motor vehicle is obliged to follow thedirections given. In this connection it would be useful to consider themanner in which our Courts have dealt with somewhat analogous provisionsunder other provisions of the law. It is sufficient if I refer to just twocases. In Nair v. Saundias 1 a provision under section 83 (6) of the oldMotor Ordinance was construed. In that case the driver of a motor carwas convicted with taking passengers for hire in a vehicle which was-licensed for private use only. The owner was not present but he too wascharged under section 80 (3) (6) with permitting bis car to ply for hire.The relevant parts of the section are as follows :—
“ If nothing is done or omitted in connection with a motor car incontravention of any such provision then.
6. The owner of the Motor Car shall also be guilty of an offence. -…. unless the offence was committed without his consent and
was not due to any act or omission on his part and he had taken allreasonable precautions to prevent the offence ”. 1
1 (1936) 37 N. L. R. 439.
SINNETAMBY, J.—Daniel v. Lewie
The matter that required, adjudication was whether the burden wason the prosecution to prove that the offence was not committed withoutthe consent of the owner and was due to an act or omission on his partand that the owner had not taken all reasonable precautions to preventthe offence. For the prosecution it was contended that these provisionsamounted to a special exception or proviso within the meaning of section 105of the Evidence Ordinance and that the burden was on the accused toestablish them if he wished to avail himself of them but the Court heldthat it was a necessary element of the offence which the prosecution hadto prove. Dalton, J. proceeded on the footing that in regard to everycriminal offence the presumption of innocence renders it necessary for theprosecution to establish “ all the elements which go to make up theoffence charged ” before the accused “ need make any move to bringhimself within the exception relied on He then proceeded to examinethe provisions of section 83 (&) to see if there was anything in it, contraryto the general rule, which threw the burden on the accused. He heldthat there was no express provision changing the general rule and im-posing on the alleged offender the burden of proving that the particularoffence was committed without this consent and was not due to any actor omission on his part. He continued “ if the legislature intended toput the burden of proof here upon the owner as urged by the appellantthat condition must be plainly expressed or clearly implied. I cannotfind that that intention has been expressed in this sub-section in eitherway ”.
The case under consideration is even stronger. Certainly the intentionof the legislature in regard to burden of proof has not been either ex-pressly or impliedly stated. In these circumstances, the ordinary rulethat the burden of establishing a charge is upon the prosecution willapply. In the case of Sanitary Inspector, Mirigama v. Thangamani Nadar1th e case for the prosecution was even stronger. M agalingam, £ .G.J. heldthat the presumption of innocence placed upon the prosecution the burdenof proving every ingredient of an offence even though negative evidentbe involved. That was a case in which the accused was charged underthe Quarantine and Prevention of Diseases Ordinance with “ being per-manently or temporarily resident ir. a building in which was a personaffected with a contagious disease, to wit: smallpox, and with havingfailed to inform the proper authorities forthwith ”. The prosecutionhad led no evidence to establish even a prrma facie case that the accusedhad failed to give information. Section 106 of the Evidence Ordinancewhich was invoked by the prosecution did not. in the Judge’s view, applyeven though the fact of giving information was within the knowledge ofthe accused, until some prima facie evidence of failure of the accusedto give information was established. The present case is much stronger.The provisions of that part of section 150 (10) which is under considerationdid not relate to matters within the special knowledge of the accused :they are matters within the knowledge of all including the prosecution.It is only if any of the conditions set out there do not exist that an offenceis committed on the failure to comply with the requirements of the earlier 1
1 [1803) SS N. L. R. 3S2.
The Queen v. OopalapiUai
part of the Section. In my opinion, there can be no doubt that the burdenof establishing the non-existence of the matters referred to in that part ofthe section 150 (10) is upon the prosecution. In this case they made noendeavour to prove it. The prosecution must therefore fail. The con-viction is accordingly set aside and the aeeused acquitted.