054-NLR-NLR-V-56-M.S.-FERNANDO-Appellant-and-THE-QUEEN-Respondent.pdf
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GUNASEKARA J.—Fernando v. The Queen
1954Present: Gratiaen J. and Gunasekara J.M. S. FERNANDO, Appellant, and THE QUEEN, Respondent'S. C. 82—D. C. (Criminal) Balapitiya, 309
Motor vehicle—Negligent driving—Definition of term “ driving ”—Penal Code, e. 2l‘X-
A person who is merely steering a motor vehicle while it is being towedby another motor vehicle is not “ driving ” it and therefore cannot bo convictedunder section 298 of the Penal Code upon an indictment charging him withcausing death by an act of negligent driving."
jAlPPEAL from a judgment of the District Court, Balapitiya.
M. M. Kumaralculasingham, with A. G. M. Uvais, for the accusedappellant.
A. E. Keuneman, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
February 10, 1954. Gunasekara J.—•
The appellant, who was the first accused in this case, was tried beforethe District Court of Balapitiya upon an indictment charging him withhaving committed an offence punishable under section 298 of the PenalCode, in that he—•
“ being the driver of bus No. IC 990 did cause the death of oneWanigamuni Appusingho of Totagamuwa by doing one or more ofthe following negligent acts, not amounting to culpable homicide, towit—
(a) by driving the said bus without keeping a proper lookout,
(1>) by driving the said bus without due care and precaution,
by driving the said bus without reasonable consideration forother users of the road,
{d) by driving the said bus without giving adequate warning toother users of the road of its approach.”
He was convicted and sentenced to a fine of Rs. 250 or one month’srigorous imprisonment in default of payment of the fine. (The secondaccused who was charged with abetment was acquitted.) At the closeof the argument in appeal we set aside the conviction of the appellantand stated that we would give our reasons later.
The accident occurred at about 4.45 p.m. on the 18th May, 1952, onthe main road from Colombo to Galle. The road at this place was 21
GUNA8EKARA J.—Fernando v. The Queen ,
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feet wide from turf edge to turf edge, and 16 feet of the width was tarredand metalled. According tQ the evidence accepted by the districtjudge, the deceased Appu Singho was walking on the wrong side of theroad along the unmetalled area, which was 3& feet wide, and had juststepped on to the macadam without looking behind him when he wasknocked down from behind by the bus in question and thrown somedistance forward. This bus, a heavy six-wheeled vehicle, was beingtowed by a smaller one, at the end of a chain 17$ feet long, and steeredby the appellant. The towing bus (which was driven by the secondaccused) had just passed the deceased when he took a step or two to theright and was run over.. A pedestrian who had seen the accident,Gabriel Silva, shouted that a man had been run over, and the busesstopped. The appellant’s bus came to rest with its left front wheel onthe deceased man’s face. Apparently it had also collided with the towingbus, for it was later found that the two buses had suffered some damagewhich indicated a collision between the right front portion of the appel-lant’s bus and the left and middle rear portion of the other one. Someof the people who came up (about ten to fifteen of them according to onewitness) pushed the appellant’s bus clear of the deceased, but he musthave been dead already for his head and face were crushed. An inspectorof police arrived immediately afterwards and held an investigation.
The conviction of the appellant is based upon a finding that he hadsteered his bus so near the left edge of the road as to occupy the un-metalled area (so that the deceased was already in the track of theapproaching bus before he stepped on to the metalled portion) and thathe had failed to Bound his horn when he approached the deceased. Theprosecution led the evidence of five persons who claimed to have seenthe accident. The appellant did not give evidence and no witnesseswere called for +he defence. According to four of the five eye-witnessescalled by the Crown the towing bus was driven along the middle of theroad and the other followed on the left-hand side. The fifth witness, awoman named Senehamy, gave no evidence on this point, as to theportion of the road along which the vehicles travelled. Only onewitness, Jayaneris, stated that any portion of the appellant’s bus wason the unmetalled area before the accident. “ The small bus came infront along the middle of the road,” he said, “ and the big bus camealong a little to the edge of the road on the land side ”. Then, apparentlyin reply to a further question from the prosecuting counsel in examinationin chief, he said “ The left front wheel of the big bus was coming alongthe clay portion of the road ”. Gabriel Silva only described the towedbus as travelling “ on the land side ”, that is to say, on the left of theroad. Another witness, Kalusingho, stated that “ the smaller bus,which came in front came along the middle of the road and the largerbus came along the land edge of the road ”, but he did not say that anypart of it was on the unmetalled area. According to the other witness,too, a woman named Seelin Nona who had been walking with Senehamy7 or 8 fathoms behind the deceased on the same side of the road whenthe two buses overtook and passed them, “ the small bus went along themiddle of the road and the other bus. went along the edge of the road ” ;but obviously, not so near, the very edge as to leave her and her
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companion no room for themselves on the side of the road. The effectof the evidence of four of these witnesses appears to ha'se been mis-apprehended by the learned judge, for he Bays, in his judgment :
“ All the witnesses have stated that the front bus was driven towardsthe centre of the road while the towed bus was coming on the extremeedge. The photographs produced clearly show that at the time thesephotographs were taken that the left front wheel and the left rearwheel of the bus IC 990 were out of the tarred portion and they woreon the clay portion.”
The photographs that are referred to show the two buses and the bodyof the deceased man in the position in which the inspector of policefound them. The near-side wheels of the appellant’s bus, which was7' 4" wide, were on the unmetalled portion of the road 1' 6" from edgeof the macadam and 2' from the turf edge on the- left-hand side. Thetowing bus, which wap about 8' in front of it was well on the macadamizedportion of the road, with its left rear wheel 4' and front wheel 4' 6' fromthe left edge of the macadam. The width of this bus was 7', so that itwas practically on the middle of the road. The deceased’s body laybetween the two buses with the upper part of it on the unmetalled areaand the lower portion, from the waist downwards, on the macadam.The learned judge holds that these photographs “ show that the towedvehicle had been driven on the very extreme edge of the road as statedby the prosecution witnesses ” ; and also that “ the position of the towedvehiclf clearly shows that it was being driven on the very extremeedge of the road, thus proving a danger to pedestrians who may happento be on the road side ”. These findings clearly involve a misdirectionas to +he bearing of the evidence about the position in which theappellant’s bus was when the inspector of police arrived. That was theposition into which it happened to be pushed by a crow'd of ten to fifteenpersons from the position in w hich it had come to rest after it had knockeddown the deceased, travelled some distance beyond the point of impact,and collided -with the towing bus. It seems manifest that the positionin which '■he inspector found the bus cannot indicate at what distancofrom the extreme edge c f the road it was travelling at the time when itknocked down the deceased man.
The finding upon which the conviction was based was the result of amisdirection as to the effect and bearing of the evidence, and the con-viction is therefore bad.
It was also contended for the appellant that, far from proving thathe had done the negligent act of driving the bus in the manner describedin the indictment, the Crown had failed to prove that he drove the busat all ; for, according to the evidence for the prosecution, he had merelysteered a vehicle in tow that was disabled and incapable of being driven.In support of this view the learned counsel for the appellant cited thecase of Wallace v. Major1, where it was held that a person steering adisabled motor lorry while it was being towed was not “ driving ” itand therefore could not be convicted under section 11 of the Road Traffic
> [1946] 1 K. B. 473.
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Act, 1930 (20 and 21 Geo. 5, C. 43), of the offence of driving a motorvehicle in a manner which was dangerous to the public. The samecontention was advanced at the trial but the learned district judgerejected it. He held that Wallace v. Major “ can be distinguished, forthe present charge is not under the Motor Traffic Act but under section298 of the Penal Code ”, and that though the appellant has been describedin the indictment as the driver of the bus in question “ the definitionof the word ‘ driver ’ in the indictment should not be given a restrictedinterpretation ”. The learned judge was “ satisfied that, due to thefaulty steering of the first accused the rear bus had been driven onthe extreme edge of the road and it knocked down this unfortunateman'
The decision in Wallace v. Major, however, did not turn on any technicaldefinition but on the question whether a person who merely steers adisabled motor vehicle in tow can be said to “ drive ” it, in the ordinaryacceptation of tliat term ; and that is precisely the question that arosefor the learned judge’s decision in the present case. “ In my judgment,”said Lord Goddard C.J. in Wallace v. Major, “it is impossible to saythat a person who is merely steering a vehicle which is being drawn byanother vehicle is driving that vehicle. No doubt he is controlling it tosome extent; no doubt he is doing many things which a driver wouldliave to do ; but before he can be convicted of being a person drivinga motor car in a dangerous manner, it must, it seems to me, be shownthat he is at least driving it; that is to say, making the vehicle go ”. Itis true that, unlike in the case of the offence of dangerous driving underthe English Road Traffic Act of 1930 or our Motor Traffic Act of 1951,driving a motor vehicle is not a necessary ingredient of the offence ofcausing death by a negligent act punishable under section 298 of thePenal Code ; but the negligent act alleged in the indictment in the presentease is an act of negligent driving, and it was therefore necessary for theprosecution to prove such an act by the appellant before he could beconvicted without amendment of the indictment. The prosocutionfailed to prove tliat the appellant was driving the bus, “ that is to say,making the vehicle go ”..
It w'as contended by the learned crown counsel that if the acts provedto have been done by the appellant did not amount to driving the bus,there luid only been an error in the indictment in the description of theact as “ driving ” instead of “ steering ”. He urged that it was notshown tliat the error had occasioned a failure of justice, and that there-fore the conviction should not be set aside on the ground that the aver-ment of driving had not been proved. That was, however, a materialaverment, and it can hardly be said that when the Crown adduced noproof of it and the indictment had not been amended the appellantshould have given evidence or called witnesses for the purpose of defendinghimself against the unamended charge as though it had been amended.He was entitled to a finding that the Crown had failed to prove thenegligent act that was alleged against him, and not to be convictedupon the footing that he had committed a different act unless the
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NAGALINGAM A.C. J.— Don Seemon v. Dias
indictment was first amended and he was given an opportunity of dealingwith the charge in its amended form. There has thus been a failure ofjustice.
For these reasons we quashed the conviction and set aside the sentencepassed on the appellant. In our opinion the evidence in the case wasnot such as to warrant an order for a new trial.
Gjsatiaen J.—I agree.
Conviction quashed.