029-NLR-NLR-V-42-JONKLAAS-v.-SILVA-et-al.pdf
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MOSELEY S.P.J.—Jonklaas v. Silva.
1940Present: Moseley S.P.J.
JONKLAAS v. SILVA et al.
424—425—M. C. Colombo, 908.
Causing grievous hurt by a rash or negligent act—Burden on prosecution—
Proof of disregard for life or safety of others as to amount to crime.
In a charge of causing grievous hurt by a rash or negligent act, theprosecution must prove that the negligence or incompetence of theaccused went beyond a mere matter of compensation and showed suchdisregard for the life and safety of others as to amount-to a crime againstthe State.
Rex v. Bateman (19 Cr. App. R. 13), followed.
PPEAL from a conviction by the Magistrate of Colombo.
R. L. Pereira, K.C. (with him C. de Jong), for first accused, appellant.
C. de Jong, for second, appellant.
E. H. T. Gunasekera, C.C., for complainant, respondent.
Cur. adv. wit.
November 21, 1940. Moseley S.P.J.—
These two appeals arise out of proceedings against the first appellantin connection wixh an incident which occurred at Slave Island levelcrossing. The first appellant was convicted of causing grievous hurt bya rash act. The second appellant, a police constable on point duty at thescene at the time of the incident, was called upon, at the close of theproceedings to show cause why he should not be punished for contemptof Court under section 440 (1) of the Criminal Procedure Code in that hegave false evidence. He was found by the learned Magistrate to havegiven -false evidence, he showed no cause why he should nOt be punished,and was fined Rs. 25. in default one month rigorous imprisonment.
It is no doubt proper and convenient that, at the hearing of the firstappeal, it should be made clear to this Court, that, in the opinion of thelearned Magistrate, the second appellant had given evidence which incertain respects was false, and it may also be convenient that the twoappeals should-be heard together. On the whole, it would seem moreappropriate that in such cases the appeals should be heard independentlyof each other. That, however, is only my individual opinion.
The charge against the first appellant alleged three rash, or, in thealternative, negligent acts, to wit, (1) driving a motor bus at a dangerousspeed, (2) driving against the signal qf the gateman on duty, and(3) driving when the railway gates were closing in for traffic, wherebygrievous hurt was caused to Miss C. M. Ludekens. The description ofthe second of these alleged rash acts is clear enough. The first and thirdallegations are somewhat vague, but the appellant has not complained,nor would it seem, that he was prejudiced thereby.
In regard to the first allegation, it was positively established that fromthe halting place from which the bus moved, off to the point of impactwith the gate could not have been more than eighty-six feet. The learned
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Magistrate found that the damage caused to the bus indicated that it wastravelling at “ high speed He also expressed, the view that, since thegate was incapable of developing momentum,- the damage was caused bythe momentum which the bus had gathered in trying to rush through thegate. This theory is not supported by the witness, Mr. Gauder, uponwhose evidence the Magistrate placed great reliance. This witness saidthat the gates start closing slowly, then gain speed and.close with a click.In the opinion of the examiner of motor cars “ the damage was Caused bythe bus coming hard up against the rigid gate ”. He also said that thespeed at which the gate was opening would not be a contributory factorto the damage caused. If my interpretation of the latter observation becorrect, I have some difficulty in accepting it as- beyond argument. Inview of the short distance which the bus travelled before the collision itdoes not seem to me that it could have attained a high rate of speed, noreven a rate at which it could not have been pulled up within a very shortdistance. I do not think, therefore, that the allegation that the bus wasdriven at a dangerous speed can be held to be proved.
The third allegation seems to mean that the appellant kept his bus inmotion after the gates began to close against him. The evidence on thispoint is conflicting, even among the witnesses for the prosecution. Theevents to which the witnesses both for the prosecution and the defence,speak took place according to the evidence of the signalman in the cabin,within the space of less, probably much less, than thirty seconds and whilethe bus was traversing less than eighty-six feet. The eye-witnesses wouldhave to note at least three factors, viz., the position of the bus, whetheror not it was in motion, and whether or not the gates had begun to close.It is not surprising to find Miss Ludekens saying “ the gates began closing.The bus driver started off ” and then “ as he started the gates began'closing”. Mr. Gauder too seemed to be not very certain as to thesequence of events. According to him the bell rang as the bus started off.According to the signalman, fifteen seconds should elapse between theringing of the bell, and the gates starting to close. And Mr. Gauderlater said that the gates started opening practically when the bus hadjust started. Now if his first statement is correct, namely, that the bellrang just as the bus started, and if it is also true, as the signalman says,that the gates do not begin to close until fifteen seconds after the bellrings, the bus would have fifteen seconds in which to travel the 110 feetwhich would bring it safely out on the far side. The driver no doubtwould be acting at his own risk if he chose to start after the bell rang.But if Mr. Gauder’s evidence is accepted, and the learned Magistratefound him the type of witness whom it is impossible to disregard, “ thebell rang just as the bus started off” and although it may be consideredan error of judgment to continue in motion after the bell has rung, therewould appear normally no difficulty in making the crossing in safety. Inthis respect I think that the appellant should at least get the benefit ofthe doubt.
We now come to the second allegation, consideration of which I havereserved to the last. It seems to me the most important feature, in thecase and there is, as might be expected, a direct conflict between theevidence for the prosecution and defence.
SJ N. B 17628 (5/62)
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MOSELEY S.P.J.—Jonklaas v. Silva.
The story of the first appellant is that he was 10 yards short of thegates when he heard the bell. He slowed down and was given the signalto pass by the second appellant. Incidentally I may observe-that it doesnot appear to be, nor should it be, any part of the latter’s duty to giveany such signal after the bell has been rung. From that time the railwayofficials are in control. At that time, says the first appellant, the gateswere not closing. After the bus had got on to the track the groundman,that is the man who has the flag, stood in front of the bus. The appellantstopped the bus, the groundman got clear, the appellant drove on and thecollision with the gate occurred. His story is corroborated by the secondappellant.
Against that Miss Ludekens says that when the bell rang, that is to sayfifteen seconds before the gates began to close, the porter waved a red flag.By “ porter ” she meant the groundman. Mr. Gauder heard the bellring and the gate-keeper then came out and moved to the centre ofroad and held up a red flag. As the bell started to ring the driver startedto move the bus off the halting place. It must be borne in mind that theringing of the bell is the signal upon which the groundman goes to themiddle of the track, waves his flag and blows his whistle, the latter actbeing the signal upon which the mechanism to close the gates is put intooperation. The groundman is certain that when he blew the whistle thebus was at the halting place. Neither-Miss Ludekens nor Mr. Gauderspeaks of hearing the whistle, but, if fifteen seconds elapse between theringing of the bell and the closing of the gates, it is impossible to reconciletheir evidence, that the bus started at in about the time at which the bellrang, with the'groundman’s evidence that when he blew his whistle,which would be fifteen seconds later, the bus was still at the halting place.In view of the short period, less than thirty seconds, during which theseevents took place, one is forced to the conclusion that in confusion thatmay well have reigned in the minds of all the eye-witnesses, it is likelythat the sequence of events has been subject to distortion. If, as thegroundman says, the £us was at the halting place when he blew hiswhistle, thereupon the gates would begin to close it cannot be supposedthat any driver, however, reckless, would attempt, from a stationaryposition, to try to effect a crossing, nor is that situation endorsed byMiss Ludekens and Mr. Gauder. It is much more probable that the- buswas already in motion and that the groundman, having by his whistleset the gate in motion, acted as he thought best to avoid a collisionwhich must have seemed imminent; It may also be observed that theman who operated the gates was an extra porter who had only beenengaged on this work for 2 or 3 days. It is conceivable that he anticipatedthe groundman’s signal. No doubt the appellant has sought, in hisevidence, to exaggerate the facts in his own favour, but I do not thinkthat the evidence of the witnesses for the prosecution, differing as it doesin some important particulars, can be accepted as overwhelming proof ofthe criminal culpability of the appellant. As has often been said, it isnot every little trip or mistake that will make a person criminally liable.These words although usually applied to cases of negligence seem to meto be not inappropriate to a case of rashness, and in particular to the casebefore me. The distinction between the negligence which is sufficient
Amolis Hamy v. Attorney-General.
131
ground for a civil action and the higher degree which is necessary incriminal proceedings has been sharply insisted on. “The prosecutionmust satisfactorily prove that negligence or incompetence of the accusedwent beyond a mere matter of compensation and showed such disregardfor the life and safety of others as to amount to a crime against the Stateand conduct deserving punishment.” (Rex v. Bateman’.)
I do not in this case find that satisfactorily proved and the appellantmust get the benefit of the doubt.
I would therefore allow the appeal. The conviction, sentence and orderfor endorsement of licence are set aside.
In regard to the case of the second appellant, I have already observedthat the first appellant has no doubt exaggerated, facts in his own favour.Squally, without doubt as far as I am concerned he has been assisted inso doing by the second appellant. One would not expect a policeconstable to give false evidence in favour of an accused person unless hewas instigated by that person or someone acting on his behalf. It hasbeen urged that there was no opportunity for the accused to approachthis appellant. That there was such opportunity is clear from the entryin the second appellant’s diary that while he was taking the accused tothe station he met P. S. 2146. There was further opportunity forrepresentations to be made before 6.40 p.m. at which time this appellantwas found by the Inspector making the entry “ a considerable time afterthe accident”. What impresses me most is the concluding paragraph ofthe entry. It runs as follows:—“I am quite certain that when I gavethe signal to the driver to come on the groundmah was not standing inthe middle of the road There appears to me to be no possible justi-fication for the words “ I am quite certain ” unless the question, “ areyou quite certain ? ” had been put to him.
I do not propose to interfere with the Magistrate’s order in thisconnection and dismiss the appeal of the second appellant
Conviction set aside.
2nd appellant’s appeal dismissed.-■»