[1947] EACA 71

### APPELLATE CRIMINAL

### Before NIHILL, C. J., and BOURKE, J.

# REX, Respondent (Original Prosecutor)

# DOUGLAS ALAN GODFREY, Appellant (Original Accused) Criminal Appeal No. 175 of 1947

Criminal law—Traffic Offences—Careless driving—S. 16 (1)—Traffic Ordinance— Dangerous driving—S. 15—Evidence of drink—Admissibility—S. 14, Indian Evidence Act.

The appellant was convicted of two offences under the Traffic Ordinance, viz. careless driving contrary to section 16 (1) and dangerous driving contrary to section 15. At the trial evidence was allowed to be given to show that the appellant had consumed alcohol before the commission of the alleged offences, and it was contended on appeal that where in a traffic offence case there was no allegation of drunkenness or impairment of efficiency due to drink any such evidence was inadmissible.

Held (26-6-47).—On a charge of careless or dangerous driving under the Traffic Ordinance evidence that an accused has consumed a certain amount of alcohol during a certain period is admissible under section 14, Indian Evidence Act, not as evidence that he has<br>committed some other crime with which he is not charged but as tending to show his probable mental and physical condition at a subsequent time when such considerations may be highly relevant on the issue as to whether such person has exercised due and proper care.

As regards the conviction for careless driving the appeal was dismissed. It was, however, allowed on the charge of dangerous driving on the facts of the case.

#### Stephen for the Appellant.

Phillips (Judicial Adviser) for the Crown.

JUDGMENT.-In this case the appellant was charged on three counts alleging offences against the Traffic Ordinance. The first charged him with careless driving, the second with failing to stop after being involved in a traffic accident, and the third with an act of dangerous driving. The Magistrate acquitted the appellant on the second count and it is against the conviction on the first and third counts that this appeal lies. All three counts arose out of the same accident which occurred in the small hours of Sunday morning, the 2nd March, 1947. In order to arrive at a proper understanding of this case it is necessary to state the facts in some detail. The appellant, who had been to a dance, was driving a 15 cwt. Army truck along the Langata Road in the direction of Langata Camp when he scraped the side of a small saloon car in passing it. This car had stopped and was on its correct side of the road. The driver of this car, Arthur John Deadman, stated in evidence that he had to stop because the appellant's truck appeared to be in the centre of the road and coming diagonally towards him. He estimated its speed at about 10 miles an hour. The four occupants of the small car all got out and two of them ran after the appellant's truck calling on him to stop. Instead, the truck accelerated and turned up a side road. By its lights its progress could be watched. After going some distance it stopped and turned round and began to retrace its course. The driver of the small car turned it round to face the returning truck, keeping the headlights on, and he, together with his father and brother and another passenger, joined up across the road in order to stop the truck as it approached them. One can well understand the feelings of the Deadman family at this juncture. Their car had received damage owing to the apparent carelessness of the driver of the truck and in their minds to carelessness had been added callousness in not stopping when they shouted to him. Their feelings must have been still more enraged when they had to jump aside in order to let the truck pass them as the appellant did not

come to a stop until he had passed them by about 20 yards. It is this latter act which formed the basis of the dangerous driving charge. All the prosecution witnesses agree that once having stopped his truck the behaviour of the appellant was correct. He said he thought he had missed them, but on being assured that he had not he inspected the damage to the small car and at once offered to pay for it and he gave his name and address. There is also no dispute as to the conditions obtaining at the time of the accident. The visibility was bad and it was raining, the road surface was murram and bumpy.

On these facts the Magistrate, we think, rightly convicted the appellant on the first count and acquitted him on the second, accepting his statement that he did not know that his truck had come into collision with the small car. Where we think the Magistrate has erred is in not sufficiently directing himself as to the consequences of his finding that the appellant was quite unaware that any accident had occurred when he saw the gesticulating Deadman standing on the road in front of him. It seems to this Court to make all the difference. Had the appellant known of the accident, his failure to stop at once on the second occasion would have added to the gravity of his misconduct in not stopping at once on the first occasion and an inference of criminal recklessness could have been well justified. As it is, we are left to consider only whether the act of not stopping at once at the behest of pedestrians who seek to bar the progress of a vehicle is by itself an act so reckless and dangerous to the public as to constitute an offence under section 15 of the Traffic Ordinance. We lay down no general proposition as everything must depend upon the circumstances in each case, but we cannot subscribe to the view that a driver of a vehicle is under a duty to place his own vehicle in jeopardy at the behest of any pedestrian. A traffic signal by a uniformed police officer is, of course, a different matter. In this case the appellant, to our minds, gave a reasonable explanation of why he did not immediately bring his vehicle to a standstill.

He says: $-$

"I saw a car in the road—I slackened speed. I saw people in the headlights -They waved to me to stop-I changed down gear. Somebody ran alongside my car. I was braking then-Brakes were fierce-I would have skidded had I applied brakes suddenly—I did not pull up short of car. I did not know what people wanted—Pulling up beyond it made all road clear .... I did the best I could in the circumstances".

The Magistrate, for what reason we know not, found this explanation quite unacceptable, and the view that he took of the appellant's conduct is shown by the severity of the sentence he imposed. We think the Magistrate must have come to the conclusion, despite his finding on the second count, that the appellant was out to cause a maximum of annoyance to the Deadman family and to evade the consequences of his carelessness if he could. That this view is quite an inconsistent both with the fact that the appellant did stop within a short distance of the Deadman's car and his subsequent conduct seems to have escaped the Magistrate's attention. The Magistrate was informed by the fact that the Deadmans had to jump out of the way but they had placed-themselves in that position of their own volition, and their own evidence shows that the truck was not approaching them at a fast rate. We think that the danger to the Deadmans has been exaggerated and we have come to the conclusion that the conviction on the third count cannot be maintained.

Two further points have emerged during the hearing of the appeal. One refers to the language employed in the third count and the other to certain questions put to witnesses at the hearing concerning the condition of the appellant at the time of the incident. On the first we can only say that the language used in the particulars of the offence on the third account is far too verbose, containing as it does almost a complete narrative of the events of the evening, as related to the police, presumably by the complainants. The particulars of an offence should be stated as concisely as possible and need contain only sufficient to warn an accused person

of how the prosecution propose to prove the elements of the offence alleged. To include extraneous matter is both unnecessary and embarrassing. Indeed, in the present instance we are inclined to think that it was the exaggerated language employed that first gave the Magistrate the impression that something very serious had occurred, an impression which, in our view, the subsequent evidence did not warrant. On no other basis can we understand why the Magistrate should have issued a warrant of arrest upon an accused person whose identity and whereabouts were known and who was subject to military discipline.

On the second point, Mr. Stephen has asked us to hold that where in a traffic offence case there is no allegation of drunkenness or impairment of efficiency due to drink any evidence which is directed to show the amount of alcohol consumed before the commission of the offence alleged or the condition of the accused at the time is inadmissible, and he quoted the well-known case of Makin v. Attorney General of New South Wales (1894), Appeal Case 57, in support of his contention. We think this is placing the matter too high. Evidence that a man has consumed. a certain amount of alcohol during a certain period is not evidence that he has committed some other crime with which he is not charged, but is evidence tending to show his probable mental and physical condition at a subsequent time when such considerations may be highly relevant on the issue as to whether a person has exercised due and proper care. In such a case we think that section 14 of the Indian Evidence Act clearly applies and that such evidence is admissible. That its reception may on occasion cause prejudice against an accused person to arise in the minds of persons possessing strong views on the question of alcoholic liquor may be true, but such a consideration does not affect the question of the admissibility of the evidence, it is merely a factor which it is to be hoped any person placed in a position of judicial responsibility would be aware of and take into account. We have only to add that in the present case the evidence admitted, far from prejudicing the accused, established quite clearly that he was neither drunk nor in a condition which in the slightest degree impaired his efficiency as a driver of a motor vehicle. In the result we quash the conviction entered on the third count and remit the sentence of imprisonment imposed, together with the disqualification for obtaining a certain driving licence for two years. On the first count we uphold the conviction and fine imposed but set aside the payment of compensation ordered by the Magistrate. The appellant has been put to considerable expense in presenting this appeal and we are of the opinion that no special order for payment of compensation to the complainant is now called for in this case.