080-NLR-NLR-V-34-MACPHERSON-v.-PEIRIS.pdf
308
DALTON J.—Macpherson v. Peiris.
1932Present: Dalton J.
MACPHERSON v. PEIRIS.
72—P. C. Colombo, 29,648.
Public way—Driving in a manner so as tp endanger human life—Galle Facegreens—Penal Code, s. 272.
The Galle Face green is not a public way within the meaning ofsection 272 of the Ceylon Penal Code.
.A. PPEAL from a conviction by the Police Magistrate of Colombo.
Accused-appellant, in person.
H. L. Wendt, C.C., for Attorney-General.
August 4, 1932. Dalton J.—
The appellant has been convicted on charges, first of riding a motorcycle on a public way, namely, Galle Face green, in a manner so rashlyor negligently as to endanger human life, or in a manner likely to causehurt or injury to other persons, contrary to the provisions of sectioii 272of the Penal Code, and second, of failing to produce his certificate ofcompetence on demand by a ' police officer. In view of his convictionon the first charge an alternative charge was not proceeded with.
On the evidence there is no doubt in my mind about the facts. Theaccused rode up and down the green from the Galle Face Hotel end tothe Fort end about 7 p. m. on the evening of August 14 at a time whennumerous pedestrians w'ere walking there, and some small children werealso playing and running about there. The evidence shows that he rodein a most dangerous way straight down the green, on the grass at aVery fast pace with a rider on the pillion, apparently quite regardlessof the people on the green. Mr. Tambiah, who obtained his numberon his return down the green, and who saw the cycle until it was lostin darkness, stated from what he saw it was very fortunate no harm wasdone to the pedestrians and children. His evidence is supported byother witnesses. The front light on the cycle was very dim, and thereis some evidence to lead one to. conclude that appellant was under theinfluence' of liquor.
DALTON J.—Macpherson v. Peiris.
309
The only matter that has given me any difficulty is whether the chargeon the first count can be upheld, in other words whether the Galle Facegreen is a “ public way ” within the meaning of section 272. As therespondent is not represented, notice was given to the Attorney-General,and I now am indebted to Crown Counsel who has appeared on theother side for the assistance he has given ma.
The appellant, who appeared in person, sought to show that the Galle
Face green is not a “ road ” on the footing that a “ public way ” could
only be a highway or road open to the public. If that was so, he argued
he could not be convicted of committing any offence under section 272.
The definition of the word “ road ” in the Hoads Ordinance, 1861, is
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very wide indeed, but inasmuch as it was conceded that the Galle Facegreen is not vested in the Municipality of Colombo (the land is statedto be War Department land), it was argued that, in view of the provisionsof section 4 (a) of that Ordinance, the place where he was riding wasnot a road.
That argument begins with the assumption that the term “ publicway ” in section 272 has the same meaning as the word “ road ” asdefined in the Hoads Ordinance, 1861. It is not necessary for meto decide whether that assumption is correct for the reason that 1 havecome to the conclusion that the Galle Face green is not a public waywithin the meaning of section 272. The term is not defined in thePenal Code, and Mr. Wendt has not been able to refer me to any localdecision, in which the meaning of the term has been explained or defined.In Gout’s Indian Penal Code, the learned author deals with the equivalentsection of that code and points out what is included in the term. Thefirst essential is, of course, to ascertain whether the place is a “ way ”at all, as opposed to. an expanse of ground over which the public may beallowed to pass, or merely a place to which they resort for pleasure oramusement. According to Coke there are three kinds of ways, (1)a footway, (2) a footway and horseway, and (3) a cartway, which alsocontains the other two. Gour adopts this classification in his notes onthe section in question, the chief characteristic of a public way beingthat over it all persons have an equal right to pass. The way musthowever have physical limits to its width, according as it is one or otherof the three kinds of way set out. In practice one will see several footwaysworn from one end of the green to the other. Horses are frequentlyridden all over the green, but for the purpose of pleasure and exerciseand not for the purpose of using it as a way or road from one place toanother. Carts or vehicles, I think I may safely assume, do not passup and down the green or use it as a cartway or roadway at all. Theportion of the green, with which I am concerned in this case, has a road-way on three sides of it, from which people can and do cross and pass onto the green in all directions.
In dealing with this subject Gour points out, referring to Englishcases, that a short cut through a common used by people for convenience,which they crossed whenever they liked, could not be described as apublic way. In Schwinge v. Dowell1 on a charge of trespass it waspleaded in defence that the land trespassed upon was a waste piece of
1 2 F. it F. 845.
310
DALTON J.—Macpherson v. Peiris.
land of the manor, with a common public highway across it, used as aplace of resort by the inhabitants of the manor. In his address to thejury, Wightman J. stated: “ The question is whether there was a wayover the spot …. In one sense there was a way there and every-where, for it appears the green was part of the ancient forest, and the effect■of the evidence is that everybody went wherever they pleased ….Hut that is not the sense in which the word is used in the plea ; it mustbe taken in some more definite sense, or else the entire forest must bedeemed to be a way. Was there any defined way in any particulardirection ?…. If you think there was no regular way there
hut that people merely went where they liked, find for the plaintiff.”In SandQate Urban District Council v. County Council of Kent1 there wasa finding of fact that a footway or esplanade intervening between thesea wall and a carriage way was part of the road. It was pointed outthat the use of the esplanade for any jus spatiandi or purposes of amuse-ment was not inconsistent with its being part of the road. That casemight perhaps apply to the asphalt walk between the green and thesea, but not in my opinion on the facts here to the green itself.
In Chapman v. Cripps and others2, also a case of trespass, it was heldthat the mere use by people of tracks in a wood, where they were free towonder about as they pleased, ip not necessarily enough to show a dedica-tion of such tracts to the public as public footways. The reasoningunderlying these two decisions seems to me to apply to the case beforeme. I am in fact asked to hold that the whole Galle Face green is apublic way within the meaning of the Penal Code, but I am unableto do so. People can and do walk wherever they please over the green,but that in my opinion does not make the green a “ public way ” withinthe meaning of section 272.
I am indebted to Counsel for bringing to my notice, the only existingregulations, Municipal or otherwise, that he has been able to find governingthe use of the Galle Face green. Under the Municipal by-laws, ChapterVIII., section 37, no public ground or space within the Municipality orground or place belonging to or in charge of the Municipal Council shall,without the written permission of the Chairman, be used for any purposeprohibited by the Chairman by public notice. There is, he states, apublic notice of that nature exhibited on the green forbidding the parkingof motor cars on the green except between the centre road and the whiteconcrete line on the green. That appears to be the only public notice,Counsel states, that can be said to refer to the Galle Face green under theby-laws. There are, however, regulations under section 53 (1) of the MotorCar Ordinance, 1927, made by the Governor in Council to the same effect,but with the addition that no motor car shall cross the white concrete lineor be parked in such a way that any car projects over the line. Parking onthe Galle Face centre road is prohibited. There is nothing therefore inthese regulations or notices to prohibit a car or any other vehicle beingdriven on the green if it can obtain access thereto without crossing thewhite line. The Magistrate has held the green is reserved for pedestriansand children, but there is no law, by-law, or regulation to support hisconclusion on that point. Crown Counsel has had to concede that there1 79 Law Times 42o.2 % P- & P- 863.
AKBAR J.—Chairman, District Road Committee v. Silva.
311
is nothing to prevent appellant riding his motor cycle up and down thegreen, if he does so with due regard to the safety of others and withoutany rashness or negligence. Whether or not the use of the green shouldbe further restricted or controlled in any way is a matter for theauthorities.
In the result, the conviction of the appellant under section 272 cannotstand. There is, however, in the charge preferred against him, as waspointed out during the course of the argument before me, an alternativecount under section 327 of the Penal Code, with which the Magistratehas not dealt in view of the conviction entered against appellant undersection 272. Section 327 deals with rash or negligent acts as to endangerhuman life, or the personal safety, of others without reference to anyparticular place. Whereas no offence has been committed under section272, the facts clearly disclose an offence under section 327, under whichthe Magistrate should have convicted the appellant. The convictionunder section 272 is therefore set aside, and appellant will be convictedunder the alternative count in the charge against him, the sentencepassed standing in respect of this offence of which he is nowconvicted.
On the further charge of failing to produce his certificate of competence,accused led no evidence in answer to the evidence for the prosecution,appearing to confine his defence to the first charge. I see no reason todisagree with the Magistrate in his conclusions on this charge. Theconviction will therefore stand.
Affirmed.