19820215 TZHC Mbeya

Li TILl ItOH COURT OF TANZANIA AT itBAYA APPRLLATE JtffiIlDI OTI ON (ffbeya Regis try) CRININAL API'AAL 110. 45 OF 1979 ORIGI111L TRJ.IC CSE NO. 228 OF 1978 OF m:s DISTRICT couir OF NDRYA DISTRICT AT 1LYA Beforeg A. F. Nanento, Resident Nagistrate EDWARD LIJPILI APPELLANT versus ThR RPU13LIC RESPOITIIENT CHARGE: Ist Countz Careless driving on the public road c/ss.50, 63(2)(d) and 27(1) (ID) of the Road Traffic Act NO.30 of 1973. 2nd Count: Driving a motor vehicle while under the influence of drink or drugs c1'se. 44, 6 3(2) (ID) and 27(1) (a) (cl)Tof thcHRöAd Traffic AdtNo.3O of 1973. rd.Cout: Dniviii a motOr, velaiclo with blood alcohol concentra- tion above the prscribod limit cjss.45(1) 27(1)(h) and 63(2) (a) (1) of mic road ire ffic i ci iTo 30/73. JUDIATT SLHA TTA.,_ J.-. .. ., This is anapéal from a eci'ibA of tedistribt ort of Mbeya whereby the appl1an± was. cbnvic±ecl ofthrec oifenács. namely, careless driving, contrary to 5.50 and 63(6) of the Road Traffic Act, 1973, vAA iOto ohilb hil' thI± ênflüenbbf drink or drugs contrary to 13.44 and 63(b) of the aforementioned Act, and driving a motor vehicle with blood alcohol concentration above the prescribed llrni bntra3r 63(ll)o the aith Rot 9 and was sentenced as ol1ows ..1st ofoAce afiri: of Shs.1,000/= or.•:', twelve nonthst iupra ounen in defaul , 2nd offrnce a fine of Sh.500/ or six mofrbhs!.inrjsoñment in default; and 3ri. offence: afincHn of Shs.800/= or eight mothhs' a ur unon an aefailt. His driving licence wssi...........for a• -poriod of three years. aiheWas.discLualif1ed. from obtaining a trivang licence of em se curing the oIoresaa 1 period. .. The appellant had been involved IA a traffic accident1 hich his vehicle as well as the other Ao1iclI were considerably damaged. (2 The accident occured at about 10.00 p.m. The prosecution case was that it was the appellant who was at faults he was inebriated and drove zigzagiy on the road. Apparently a sample of blood was taken from the appellant 7 s body an hour or so after the accident had occurred. It was not pJ.ainly esta 1 )l3.shed at the trial that it was that sample which was submitted to the Government Chemist in Dax es Salaam for analysis 0 According to the police officer who was present when the sample was labelled by a hospital official the name written on the bottle was EDWARD LUPILU. T he samP e\.th was returned by the Government Chemist, however, bo'e the naire of EDI s/a LUPILI and that is also th'? name which was used in the Chemist's report. The hospital official who obtained a blood sample from the appellant's body did not testify a tho trial, and the prosecutor made no effort to explain th discreDancy rogardin the name 0 The appeLlant's dolCence was tha as h3 neared the scene of the accident he &ecided to overtake a nous w,iiclii was emitting "a lot of smoke", As ho was o:ocuting the decision another motor vehicle approached him from the OpiOitC direction. Its lights were off 0 HéThadndhioe"'tdavoid 1t. i& -1a'ckd •it-T eappefla-t 'reriously dei1mi to hav€- heen:think on' the night in quetioiI 1 -- ' 'Theaed 'fti'al rc':itratef afto reviéw-ir t evide±ace before him tIcngth, aiae 1;6 the dnlusidrf that 'th aGent ' oefl ntie." - the i-n.rfc6s narrate'd:iy the' dmpinina'nt Iie- also coind as' a ft thit a -'; thc"uh'erial tirad apellait aë iander Ian de nO T:ud'fdr fa.ultuithes& ' fiidiige 0 - Aordii& to thea gucrdian Of iaar who liisited the hf aeci-dent -h *Yaft the unforu±iate iiiidënt hid -thkei.pIhce, one PC;'cS'a,son:, -'t1 aollañt'-a'-vehicle l-ft- skid' which shTwed -that--the 'v'ehicle hid' ben noviag zig-zagly t -t!he 'rna'teal time. This;e-imoa , ders creóeioe- to the odrpl-InantT s ttory.. As - rdards the finding on th' apellart 2 s mental conditi'n, the' was eiden' - apwrtf±om that 5f. the Oomplainant,- from CplGNassis, the police office' who .iateogated the -appellant after PC.-' Samson rhad, .visitêd- thecend è'f' the`a'CcidenV ,-td the cffect that the acaOed- iras -in a state: 6S d±nkonnss and 'did not speak fluently. The appei1.ant' s stoz'y' difrèd on?an, uiapotant 'point with that iiveii- 'by his ii1ithss, te--manwho-w-a p se 1n-hiseiiicie at thb-mat eiI iturne Whera. 'a 'bud approaching- hii witht It lights off, - hiitness,'said - the:vehicle:wab a- thxi --Itis d-ifidult to bèli:eve - rt.ouariy after taking into -coiisicbi'atiot -that-thwitnêss - .L I is a plumber and was at the material time a town resident, that the two men were narrating about the szuee incident. I think there was sufficient eviJence to warrant the findins that the appellant drove his vehicle carelessly and that at the tii2o he was inder the influence of drink. The charge of driving a motor vehicle with blood alcohol concentration above the prescribed limit wasnot, however, in my opinion, proved beyond a sane doubt. Thu convictien for that offence is accordingly quashed and the sentence imposed thereon is set aside. I can see no merit in the appal a:ai:st the sentences imposed in respect of the offences of careless driving and driving a motor vehicle under the influence save that the 'term of imprisonment fixed in the event the appellant failed 'to pay the fine of Shs.1,000/= cannot be upheJd because it exceeds the emount authorised by the scab in 3.29 (iv) of the Penal Code. The tern of imprisonment is reduced to six months The orders suspending the appellant's driving licence and disqualifying the apellant from obtairing a driving licence of any type for a p3riod of three years wn'u, in my judgoent amply justified The appellant had exhihitod no respect whatsoever for the rquireueñts, of the lati relating to road traffic. HeL appears to ..... have cared'.' least for the safety - of other road users at 'the material tine'.: - bnfteed3.. he drove his noto .vehicl as if 'noone e1se:had any right to ue .Th 'oad at the tibe.in question '&r5 as :b3r.ein indicated,, the appeal is dismissed.. Fol' 'the avoidanceofD1bt, itmust be pointed.but th:Lt4f the appellant paidthe fine (Shs.8OO/) in respect.f the conviction -of driving a motorvehic1uwitJ'i blood alcohol concentrationeab.ove the prescried limit 'the same sioulci be refunded to hiu. . -: B. A. S[iWiTTA, JUDGEO Delivered at Mbeya 'tas 15th day of Fehrjorv, 1982 9 in ±heprese4ce of the appellant and Mr., Teemba, Couniol for the Republic. - : :,: . , . 130 I SAA- ,,