19720711 TZHC Dodoma

J frjc IN THE HIGH COURT OP TANZANIA ATTELI[LATE JTJRIS1)ICTIOIT, HIGU COURT CRII:IPAI APPEAL HO, 57 OF 1972. ORIGI1'AL CRINTUAL CASE 110. 87 OF 1972. OF TWE DISTRICT COURT OF IUFYA DISTRICT AT MBEYA, BEFORE: I . H .N, MPc-ESA ESQ; RESIDENT NAGISTIiTE. ALUWI AHL2D SIARIF: ,,,,. ,, ............ O ,,,APPELLANT (ORIGIi.AL ACCUSED) VERSUS THEREFUBLIC: ....... ,OO,,OOO,.RESPONDENT (ORIGLAL PROSECUTOR) CHARGE: Causing death by dangerous driving c/se 44 A(1)(a) of the Traffic Ordinance Cap. 168 of the Laws. As ammended by Act 41 of 1964. S MNZAVAS J, This is an appeal from the decision of the District Court of Nheya in Hbeya Criminal Case No. 87 of 1972 in which the apel1ant was convicted of Causing death by dangerous driving c/s 44A(l) (a) of the Traffic Ordinance, Cap. 168 of the Laws. On the 12/1/72 at about 2 a.m, the accused was driving his motor vehicle, Ford Escort Car, registration number IR 3824, along Tunduma .beya road He was coming from Tunduma and was heading to. i•ibeya. When he reached a place called Songwe he saw in front of him a convoy of six Tipper vehicles which were also heading to JY!beya. The accused attempted to over take the convoy of trucks in front of him. Re mana:ed to overtake the first truck in front of him but soon after he knocked his car against the rear of the next truck- in front of him. As a result of the impact his car was extensi- vely damaged and, worse still, one, Salehe Abdallah, who was at the material time a passenger in accused's car, was fatally injur,ed. Investigations as to what was the cause of the fatal accident were made and these culminated to the charge of causing death by dangerous driving against the appellant. On the evidence the learned resident ma:istrate was satisfied that the prosecution had proved its case beyond all reasonable doubt against the accused and he found the accused guilty of the offence and sentenced him to a fine of Shs, 2,0001= or Six months imprisonment in default. Challenging the correctness of the learned Resident Nagistrate's finding Hr. Dhebar, advocate for the accused,has filed a long memorandum of appeal to this court. Of the elevant grounds of appeal it is my view that only three grounds need examination and comment by this court. -2- In paraaraph four of the memorandum of appeal the learned defence counsel says That the appellant told the truth before the court that when he overtook the first vehicle, he was able to see clearly, but thereafter all over a sudden a cloud blurred his view that the learned Resident iviagistrate should have considered that it was the fog that abstructed his vision, and so the Appellant could not see the vehicle in front of him, and the accident happened In paragraph seven the Memorandum of anpeal says That the learned Resident Magistrate should have taken into consideration the evidence of eye-witness Jaf±'er Omar (Pw 6), which clearly supports the appellant that the accident happened because it was not possible to see in front due to cloud that is to say sudden appearance of fog at that time cäusedthe accident The learned defence counsel says in paragraph nine That the learned Resident Iagistrate should have held that the accident happened not due to reckless driving of the appellant, but because of sudden appearance of fog which imparred his vision It will be noted from the above grounds of appeal that they all have one thing in common0 They all stress that the accused caused the fatal accident because a blanket of fog suddenly appeared in front of him and thereby blurring- his vision and tJat because of this he failed to see in timeto enable him to stop) that he was driving against the rear of the truck he knocked. In his judgement the learned trial magistrate fully analysed this defence and came to the conclusion that it was not plausahle. Apearing for the Republic, I•Jr, ChamiDakare was.of the view that the appellant could not on the facts be held criminally responsible for the fatal accident because, he submitted, his vision L was suddenly blurred by fog when he caused the accident, With - respect to the/defence counsel and to the State Attorney I agree that the accused's vision may have been suddenly blurred by fog learnedand hence the accident; but with even greater respect I would say that even if this was so it does not necessarily follow that the • accused was not to blmer; for the accident. It has, times without number, been held by this court as well as courts of other jurisdictions that in considering thecircumstances in a charge of causing death by dangerous driving the test to be applied is purely an objective one, Dealing with the question as to what can be terned as dangerous driving Salmon J(as he then was) gave his summing up to the jury as follows 'Memhers of the jury, there is no legal defiñi±iDn.. of -_.drivihg, to the danger of the public, and there cannot be any legal definition. It has sometimes been said that a very good test is for the jury to make up their minds on the evidence what actually happened, and in their mind's eye to put theraselves down at the scene of the accident, • k and to ask thmselves this question Had we seen this should we have said without any dOubt, that was a dangerous piece of driving? If the answer to the question is yes then the man is guilty; if the answer to the question is 0h nou or we cannot be sure about iV91 then he is not guthy P vs PV'. 5 (1962) 3 ALL ID R 1086. ------ ---'I---- -3- 4' In G'?AiTJJ ILSIifE JOTIF E. 1JI and JORP LOUG-HIIN, a case of causing dea (T966) 50 Criminal Appeal Reports 266 at page 270,Lord Chief Justice Parker had this to say: is, in the opinion of this court, per fectly clear that what is meant by driving in a manner dangerou.s is the manner of the actual driving ,,,,.,,,. It has been held time and again that an offence under this section is an absolute offence., and if the result of his driving pioduced what the jury considered to be a dangerous situation, a dangerous T2aiaoe 4Vi then even though he had been completely blameless, he can he held liable,.,........ in the judgement of this court the ucircumstances there referred to are the circumstances outside the vehicle, circumstances not pertaining to the driver, but the circumsta- nces outside on the road. is mad.e clear that the only possible defence, once there is proved to have been a dangerous manoeuvre, applying the objective test, is where it can be said that the driver had been deprived of control of the motor vehicle by some sudden affliction of his person............. or where the driver had been deprived by some defect in the mechanstu. of a car which had suddenly manifested itself through no blame on his part, In this case it cannot be said that the accused had been deprived of control of the motor vehicle by some sudden affli- ction of his person just before kaca the accident. Nor can it, on the evidence, . said that there was a depifett in his car which had suddenly manifested itself just before the accident. The defence is that the accused's vision was blurred by fog and that this is what caused him to drive and knock at the rear of the moving truck in front of him, In SRAAiMr S-,' ,-IDI VS R(197O)HCD,caseNb.43, a case not very dissimilar from the present one, ceorges c,J.(as he then was) remarked when dealing with the degree of negligence on the part of the accused: It must be clear that driving the wrong side of the road through a cloud of dust which reduces visibility greatly is a serious act of negligence Like in this case the accused was attempting to overtake another vehicle when he caused the accident. If this court is to accept the third ground of appeal which is that and I quote: ...,Thecause during, the night at about 2.00 a,m, and in the month of , January, in this Pegion, it is not unusual to have sudden appearance of the fog obstructing the visionu I fail to see why the accused who is a resident of hbeya Region did not take tl:iepp facts into account when driving his vehicle on the material Knowing that the weather in Mbeya 'cenderI to be unpredi- ctable during the month of January the law expected him to take extra care in his driving this is especially so when the driving is at night as it was in this cases A reasonable driver who finds that a sheet of fog has sudden- ly blurred his vision infront of him would certainly stdp his car. To continue driving while visibilit y was blurred by fog was clearly negligent on the part of the appellant If he had stopped or even moderated his speed it is more than likely that this nasty accident would not have happened, /4 . - 4 By applying the objective test I send to agree with the learned Resident Iaistrate that the appellant was driving in a dangerous mermer when he knocked against the rear of the Oving truck and theeby causing the death of his passenger. In my view therefore on the facts as found by the trial magistrate and which facts are not seriously in dispute, the accused was rightly convicted of the offence of causing death by dangerous driving. As for the sentence of Shs. 20001 fine the learned Resjdent Magistrate properly directed himself and found that the justice of the case would be met by imposing ahear fine. This he did and the fine was readily paid. I see no reason to interfere. In the event this appeal is dismissed in its entirety. DODOMA N. . fl\fZAVAS ì JIDGEO 11/7/72. £