099-NLR-NLR-V-47-THE-KING-v.-LEIGHTON.pdf
The Khtg v. Leighton.
288
1946
Present: Howard C.J. and Canekeratne J.THE KING v. LEIGHTON.
36—D. Cl (Criminal) Kalutara, 6,325.
Criminal negligence—Charge of causing death by negligence—Nature of proofnecessary to establish charge—Penal Code, s. 298.
To establish a charge involving criminal negligence the facts provedby the prosecution mu3t be such that, in the opinion of the Court, theaccused’s negligence went beyond a mere matter of compensationbetween subjects and showed such disregard for the life and safety ofothers as to amount to a crime against the State ahd conduct deservingpunishment.
^ PPEATj against a conviction from the District Court, Kalutara.
R. L. Pereira, K.C. (with him H. W. Jayewardene), for the accused,appellant.—The facts of this case disclose nothing more than civilnegligence. Mere fast driving does not amount to criminal negligence.Negligence, to he criminal, must go beyond a mere matter of compensationbetween subjects and show such disregard for the life and safety of othersas to amount to a crime against the State and conduct deserving ofpunishment—Sckarenguivel v. Charlie l. Simple lack of care such as willconstitute civil liability is not enough—Andrews v. IHrector of PublicProsecutions*. A very high degree of negligence is necessary and theonus of proving criminal negligence is upon the prosecution—Lourensz v.Vyramuttu3. What amount of negligence is to be regarded as gross isa question of degree depending on the circumstances of each particularcase. Where a medical practitioner injected overdoses of a certaindrug through carelessness, which resulted in the death of some of hispatients, including the one in respect of which the charge was brought,and in the serious illness of others, it was held that the facts wereinsufficient to prove criminal negligence. See Akerele v. R. *
T. K. Curtis, C.C., for the Crown, respondent, addressed on the factsof the ease and submitted that there was sufficient evidence to provecriminal negligence.
Cur. adv. vult.
1 (1938) 10 C. L. IF. 3.5.
* (1937) 2 A. E. R. o-52 at -55S.
3 (1941) 42 N. L. R. 472.1 (1943) 1 A. E. li. 367.
284
HOWARD C J.—The King v. Leighton.
June 28, 1946. Howard C.J.—
The appellant appeals against his conviction by the District Judge,Kalutara, on an indictment containing two counts framed undersection 298 of the Penal Code charging him with causing the death of oneH. TJdenis Fernando by (1) doing one or more rash acts not amounting toculpable homicide, or (2) in the alternative doing one or more negligentacts. The appellant was convicted on the alternative charge andsentenced, to two years’ rigorous imprisonment. The evidence established,that the appellant was on the day in question about 8 or 8.30 p.m. drivinga Naval truck on the Kalutara-Neboda road in the direction of Neboda.The deceased was walking along the edge of the road about a foot and ahalf on the turf, towards Kalutara. He was on his right side of the roadAccording to the evidence of a witness called Sinneris who was walkingtowards Neboda on the same side as the deceased the truck passed himtravelling by the edge of the road. It had a faint light on its left sideand a strong light on its right side. According to Sinneris the truckwhich was travelling very fast, when it reached the deceased, struck himdown. He cannot say what part of the truck struck the deceased. Thiswitness also states that there was no vehicular traffic on the road at thetime, that the deceased was on the turf when he was struck and thatthere were wheel marks on the turf which he showed to the Police. Inconnection with this witness’s evidence the Examiner of Motor Cars wascalled as a witness and stated that the truck could not go faster than35mileB per hour because ofa regulator with which it was fitted, and thatthe bright head-light lit up the road 30 to 35 yards ahead. The VillageHeadman and the Inspector of Police stated that they did not noticeany wheel marks to suggest that the truck had gone on the turf.
The law with regard to the evidence necessary to establish a charge ofcriminal negligence has been formulated in numerous cases of the highestauthority. In Andrews v. Director of Public Prosecutions (1937) 2 A.E.R.Lord Atkin at p. 556 formulated the principle governing such charges.Lord Atkin cited with approval the following dictum of Lord Hew artL.C.J. in R. v. Bateman x.
“ In explaining to juries the test which they should apply todetermine whether the negligence, in the particular case, amounted ordid not amount to a crime, judges have used many epithets, such as“ culpable,” “ criminal,” “ gross,” “ wicked,” “ clear,” “ complete.”But, whatever epithet be used and whether an epithet be used or notin order to establish criminal liability the facts must be such that,in the opinion of the jury, the negligence of the accused went beyonda mere matter of compensation between subjects and showed suchdisregard for the life and safety of others, as to amount to a crimeagaiost the State and conduct deserving punishment.”
His Lordship then proceeded as follows :—
“ The principle to be observed is that cases of manslaughter indriving motor cars are but instances of a general rule applicable to allcharges of homicide by negligence. Simple lack of care such as willconstitute civil liability is not enough. For purposes of the criminal1 (1925) 94 L.J.K.B. 791.
Simon v. Police.
285
law there are degrees of negligence, and a very high degree of negligenceis required to be proved before the felony is established. Probably ofall the epithets that can be applied “ reckless ” most nearly covers thecase. It is difficult to visualize a case of death caused by “ reckless ”driving, in the connotation of that term in ordinary speech, whichwould not justify a conviction for manslaughter, but it is probablynot all-embracing, for “ reckless ” suggests an indifference to risk,whereas the accused may have appreciated the risk, and intended toavoid it, and yet shown in the means adopted to avoid the risk such ahigh degree of negligence as would justify a conviction.”
The principles laid down in Andrews v. Director of Public Prosecutionsand R. v. Bateman {supra) were followed by me in the case of Lourensz v.Vyramuttu {supra).
Can it be said in this case that the prosecution have established thatthe appellant drove the truck in a reckless manner and that his negligencewent beyond a mere matter of compensation between subjects and showedsuch disregard for the life and safety of others as to amount to a crimeagainst the State and conduct deserving punishment ? There was noother vehicular traffic on the road at the time. Nor would it appearthat the road was crowded with passengers on foot. In these circum-stances the speed of the truck, even if driven at its maximum of 35 milesper hour, was not excessive. It has not been proved that the truck wenton to the grass. The medical evidence indicates that the deceased wasstruck on the right side of his face. It may be that as the truckapproached the deceased turned round and stepped into the road. Nodoubt the truck was driven close to the grass. The accident may havebeen due not to reckless driving, but to an error of judgment. This isnot a case of res ipsa loquitur imposing on the appellant the onus ofproving how the accident occurred. The burden was on the Crown toprove recklessness. I do not think that burden has been discharged.The appeal must, therefore, be allowed and the conviction set aside.
Canekjskatne J.—I agree.
Appeal allowed.