19850403 TZHC Dar es Salaam

IH '1% i ·1 (LlI COw!'.I' Ona' TMJZJ\.l'TJ:.il. J\T Dl'Jl ~3 SI\.:r,!_ALI . . o::nGDLL c.-:tc,::nrn.L C/.qE NO. 54 OF 1982 O.~:' TI.f.; DB'.C~UCT CUC:,/i.' 0,.,, XIVlJ1{01JI DIST;.lICT 1: T KISUKOIH .D • ~t?. P • ••o 11 ••• o • o ! •• o • o o o ;· o o o o • o • • o • Q • o o • "' 11 tJ • PROS~:SCUTOTI Versus · JC1DGLIENT TM.s is· ant, .appeal by the Director of I\lblic ?rosecu- tions against the judgment of the District Court acquitting the respondent who was cha.1~ged Vii th c1:msing death through dangerous drj_ving contrary to sections ' 40\1) and 63(2) (a) of the Road Traffic J\ct Ho. 30 of 1973. . JJriefly the facts are that the respondent was the Director of t:riminal Investi.:;ations i...>1 the Tanzania J?olic·e Poree in liiay, 1980 when the _fatal accident leading to this case occurred. On 15th Hay; 1980 the\ ,_ :r-rnponc1ent '.';:-\s "t1riving a motor vehicle N'0 • TZ 45057 along Pugu R0 ad at r ·mt 9 p, !!l., Ls he drove on toY1ards ll1wnea, a lorry c,ppenred on the rooi! with full ligl1ts being driven tov1ards the: town, t!.mt is, the opposite cU-r2ctio1i. The respondent ,Jns driving a Peue;eot 504 vehicle belo11ging ~,to the gov0m1i11ent. These are the w1disputed facts. l!'roti here there, are ''two stories of what happened. ltccording to the prosecution ·there vias a . h;µge Iorry l~e5istr8.tion No.SlJ10316 pr.,rked facing Ukonga direction on the,,. ' left hand side of the roc..d. T:1is lorry lmd its parking lights on 2.nd · its' I chevrons at, its back could reflect lie;ht ·ahen light wo.s shone on them.;:. This J.orry was·pc.rtially out of the road and partially inside the road in tb.at it was six '.f'eet inside the road according to the _sltetoh plan drawn ' at the scene of the accident. It was the prosecution's case that the resp.ondent f1::,ilec"\ }o control his vehicle _and b1ocked this parked or station-· 0 ary lorcy :Su· 10516 '-at its bri.ck nfter braking he.rd. :(or a disto.nce ofl 95 feet in vain. ;\s n rcsul t of this knocldi1c; of tbe stetionnry i,orry one •-t.-· .- of the paosengers oi' :~he' responuent in his C8.r die}.-- The vehicle l1riven qy_ .th_e respondent was· later exnrairnK1 by a vehicle. ;i1~spector(PH5) who f'ound it difficult .to note any defects before t~1e n_cciCent due to extensive damage; The road at the scene was ,straight nm1 the skid mo.rks were straight too·· and showed tl',at ·the brakes VTere effective on the right ha:ncl side wheels 2 - Now, nccordi:'.lcs to t.· ;: dofenc,., the respol:,.;Tent <1ic1 not see the s ;ation::i.ry lorry no, 8';;" 10316 which was on the left l,D,m1 side of the roo.d facini3 "C1conGa until it was too 1:::-.te. The responc1ent said thet he su,.1 denly sa:w e. lorry comin.~ from the opposite direction lleadin[; for the tovm. The responc:ent was goin~; tov-i.:,.rds U1conga, This lorry hod its full lights on., The respo:r..-~ent c1ip::1ed his lights to siL,;1ml tbe lorry driver to dip l1is li1)1ts as well but there was no chan:;e in the lorry 1a lights, The responc1ent WE>,s dazzlE,~1 by t1'.e light of this lorry am1 he decided to stop at t>e extreme left hcmcl side to avoic1 the lorry. I-Ie t~1erefore braked to stop his vehicle, I)ut just before the ve:1icle car;1e to a halt . he not:j..ced soEcthin(:; c~ark in front of him. He exertec1 more pressure on the brakes. 1,s he w2,s o.hout n y.::r-:1 fron it he noticed tlmt it was a vehicle be co.use of Hs tyres. Ee t~·-211 hit tl1e sk.tionary vehicle fror.:i ·cl:e rear. The responc1cnt nddec1 tlut it. ric:<.S n .-10.rk ni~J1t nnd that tLe chevrons or rear reflectors of this stc~tioue.ry · ve~:ciclc were dirty vii th r.1u<1 Ol" (°lust ~;nd the rc,,ar of the vehicle 1.1.:-,.s. open. Tr10 rGspon,lent c,lso sai('. tllat the qause of t!.1e 2.cci('.ent w2,s- t>.2: lorry with full li,)1ts aac.1 t 1:,:,.t r.to had been drivinG bet~ 1een 40 and 45 k~p.h. 1 The res):)on~~cmt ncreed with w.tmt I'\12 . (SP t'Ieant,B.) s2.id about the b:;.'akes of the :)eugcout vehicle which tl.:e respondent \'::-:.s <.lrivinc (no.'.!.'Z 45057). t\e respon(~ent dicl not n{;.rree tlmt ·;;>e: renr li ,hts of the str:tio:10.ry lorry were on. 1-1e also so.id. tl1;:,.t l1e ;_:ever saw tLe rear re:floctors at c.11. Conc0rninc tbe sketcl1 plo.n, t~,e respondent s2.L: t::12t it w2.s wronr.; o.nd tt.o:t it w::--s drawn in his [.l.bsence. 11 in his jud&,1uent which cI10.rc;0 j_nclu:,cs tlH: words: in tb.a-c he failed to 11 control his Botor vehicle ancl held that the ~harge dic.1 not disclose how dan:~·erously the respondeEt w.::i.s driVii1•~· tho vehicle and t}i.:>.t it did 11,ot even disclose 11 tlle r.10nner ·che r:i.ccuse(I failed to control tlle rciotor vehicle he was drivin{.;11 • The leo.r:1ed I.'ra.r:;istrate also referred to tl1e case of Laurence r.'fnlik v. R. 1973 LRTn.12 d.n nhict it wo..s hel,1' tl,o. t in a c.1istin6tly stnte the net of <}anc;erous d:i;i•ving alleged o.nc1 that to c~rive at niB}1t .::d; a high speed, and not to s]-l)w down in thG face of an oncoming vehicle; so that wl1c11 the full lit;hts of that vehicle are benLled on, one loses control, is to ~\rive t1angerously. Ti1en the learnec.1 Tiia.gistrate · went on to holc1 that in thio c2.se th2 accused 11<:id slowed down henco tl.te skid marks of about 95ft i;:1 lene,tb. IIe finally held· -~1 •_.:,.t tl~erc w2.o no act or o:miosion on the part 01.' the :J.c.cutwd person for which lte could be held auil ty. II0- therl'fore found tl•.e aocusoc"'. not guilty ancl he acqui ttec1. him e.ccor<lj_;_:c;ly. The Director of J.'ublic :.?rosecutiops JE'.fJ eppealed ag8.inst t.is juC,~1ent and he h:rn set out three ,3row.1<ls o:i:' ap)eal which are as follows: 1. Tho.t there is e.;aplc evidence of c1angerous drivin1;; on the part ol tl1e respondent. 2. The.t th:, tri[',,l i:tlgj_strn.te fcdleo(} to scrutinize tbe evidence on 3.. Tho.t the trial 1·r,:,:3istr2..tE: erred in finding that the accident was caused by oxterna.l factors bcyontl the respondent 1s control. In court tl1e learned St~1te i~ttorney, Hr. Safari, who nppenred for the o,ppellant put up the nrcunent t:.10.t what 1my constitute dangerous t~.riving must be determined by an objective test nnd tbat the evic1ence here· clearly showed th::t t.ierc w:;:.s dru1rrerous <lrivinc; a:.:; the respondent wr1s c1rivin6 with actual knowL:,dge th:.t the brakinG system was partially <lefective. Mr. Safari cited autl1ori ties in support of his argument • . In reply Hr. Ka.pinc;.s. submi ttcd th;;i,t the prosecutfon must prove an act or 01:1.issio;1 whic].1 consti tutcs either ne3lige11ce, recklessness or carelessness nrn1 tl:tat the prosecution did not do so in this cnse. .He also said· t>nt · there wss nothinc to su[mest that the rcsponlent lmew the brakes .were defective. Mr..• Snfc:,1°i for the npp8llnnt in o. short reply so.id that tho respo?"s:.-'.ent wns not drivi11c in a prudent :i:ao.nner :.,nd tho.t tl1.e actual fnct of the responC::ent :t>.ilinc~ to stop ::nJ/ r~riving a defective vehicle Wc>.s dun[;'erous drivin:3. In tl:;is appeal what is ,,:;i ucj_c,l is wliat is believed to be true concerning 0 what ,,,ctu2.lly h 1,pr.ened just before t:lc~ acci1:lent. '.!.'here is no cb.spute tllc.t there wns n lorry wLich w2.s coin.'.~ the opposi tc direction with full li0hts. The respondent subni•i;ted th[),t tl.20 lorry was· t:1e iLJmedinte cause of the accident. '.I'he Prosecution 1:1aintni110 that the lorry could he.Ye been a.voided witI1out any accident bccam.,e the respondent hn.~1 seen tLe p2.rlrnd vehicle on his left siuc. sketch plnn showed 95 feet of skid marks ;j_11e . before the vel:icle c1ri ven by t>e respondent hit the stationary vehicle. AccordinG to the juc1srn1t.mt o:~ the trj_o.l court thG fii.1ding ap;:.1ears to be that the respondent clit:! not see the station:,ry vehicle until he' was only 3 paces away from it. And tl1at is what the respornlent said in his defence. In Lalata Hsanr;awale v. I-Ien:r;y; ~.h,amlim8. 1979 LRT n. 3 Mwesium.o; J. (as he then wo.s) held tl1at the firn~j_ncs of fc:i.c't in tl-w court of first instance must be affirmed by an o.pJ:leo.l coi-1.rt w.1less tl,o sar;1e weos not. arrived at reasonably ' or it cmmot ration--,lly b,:: su;?JorteJ~ -t,f 4 The lenrnecl judec corJe to this hold inf after reviewin[s n lot o:Z authorities. I .::J.gree wit~·1 this proposition of lnw. Now, c:;,pplyinG tlJ.is holdinc to t:ie p:cesent c.p]_)(:;al 9 it cnn be u.:i.SCI'lllil.,'<ill that the findiPS o:i:' fact here was t;,at the=.: respo11<le1:t cli<.'. not see t::w sto.tionnry vehicle until when he was atou:b 3 ;prds away. C.·oinr~ by t'.··:o :: olc~:L·.··; iiI Lnl::it~'s case cited above, I cP:11 see 0 nothinr~ wro~1c; w:i.th this finc!:i.ng of fact. 'i.'he lenrrn~d trinl l•hgistrate wc,s / certainly cnti tled to come to tl1is fimlinc.; 8.nd I can see not:1ing uirreo.sonable or wrong L::. ·i;'::.is findinc nor co.11 it be sn.id that this finding cannot he rationally su.pporteu. The o.:,:1co.l nu.st be examined in the li::;ht of this . find in(; which ifl as I said c, sound fi;,L;ing. I may just, add here tLnt despite the f2..ct tlw,t t:·:e sketch 1,11cm ·i;E\lks of 95ft of skid marks, the trinl tie..gistrnte found otherwis0. Tllis is no·c. stro.n~,;e or j_rro.tional when one benrs in mind that the sketch plnn I s correct;.1ess was disputed by the respondent and this sketch· plen v;a.s drawn in tl1,} c•.boGnce of tlB r,isponGent nnd accordin.z to the responc1eat it wo.s no·c s!1ol'm to hir.1 before the trir:il started. In these circurnst2\!.1cos tl'l(-,re is notJ.1:i.:.\'; str:,.:.1, _;0 in t!.;0 <lisre'.So.rc1 of ti1e sb:::tch plan 1 by the tri,.,l 16.sif:ftr::s te. Can· it 1)e sc1j_<l 11ov1 tl:mt lJ.(<;li[_;e~1c0 or recklessness or cc.rt,lessness was proveC. j_n this co.sc to sup:'.··ort t~10 ch2.r{se of cc.usint death by dnnr5erous drivin0 ? I thinlr not. Nor (1oor;:; the 3~'.pellc,:.1t cont,:md th:,_t even where the respon::lent diC .not see ti,,.., st::tionc:17 ve.'iiclc he wns ne&liBent or careleE;s or reckless in knockin1; it. It is plclin here when the finc1inc: of the ti-ial court is taken to be true tls,t the xespond1..,·nt coulc1 not lmve nvoided the acci,:!ent and tl1,.~t the o.cc:LCcnt occurred beyoncl his control. I do not find j_t nec:;ss::c1'y to d20.l with tlle mo.ny r.mthori ties cited in this appeal.. I firn'1 no r.:0ri t in t11is appeal by the Ilepublic and I dismiss it accordi~1Gly •. 3/4/85 Delivered in Court on 3/4/85. 3/4/85