[1956] EACA 13

## APPELLATE CRIMINAL

Before SIR KENNETH O'CONNOR, C. J. and PELLY MURPHY, J.

## J. C. LIKIMANI, *Appellant* $\cdot$ v.

$\mathcal{L} = \mathcal{L}$

## THE QUEEN, Respondent

## Criminal Appeal No. 322 of 1956

Traffic Ordinance, 1953, section 43 (1) and (2)—In charge of motor vehicle while under the influence of drink—"Special reason".

The appellant appealed against a conviction of being in charge of a motor vehicle whilst under the influence of drink to such an extent as to be incapable of having proper control of the vehicle contrary to section 43 (1) of the Traffic Ordinance, 1953. The appellant had been fined and disqualified for six months from holding a certificate of competency. One of the appellant's grounds of appeal was that "the conviction was made against the weight of evidence". The appellant also argued that the fact that he had drawn up the vehicle on the near side of the road and gone to sleep was a "special reason" which should have prevented him from being disqualified from holding a licence under section 43 (2).

Held $(2-1-57)$ .—(1) Merely to say that a conviction is against the weight of evidence does not comply with section 350 (2) of the Criminal Procedure Code and is insufficient as a ground of appeal.

(2) The fact that the appellant had stopped the car and gone to sleep in it was not a "special reason" sufficient to enable him to escape disqualification. It was, however, a mitigating circumstance to be taken into consideration when the Court was deciding whether or not to inflict a sentence of imprisonment and in assessing the quantum of any fine.

Cases referred to: Duck v. Peacock. (1949), 1 A. E. R. 318; Jones v. English, (1951) 2 A. E. R. 853; Hopper v. Stansfield, (1946) 48 L. G. R. 641.

[Editor's Note.—See also Aladesuru v. The Queen J. C. (1956) A. C. 49.]

Referred to: Davies, Law of Road Traffic, p. 167.

Parry for appellant.

Keysell, Crown counsel, for respondent.

JUDGMENT.—The appellant was convicted of being in charge of a motor vehicle in Duke Street, Nairobi, on 2nd April, 1956, whilst under the influence of drink to such an extent as to be incapable of having proper control of the vehicle, contrary to section 43 (1) of the Traffic Ordinance, 1953.

We would point out that he was not convicted, as is recited in paragraph 1 of the Petition of Appeal, of having driven the motor vehicle whilst under the influence of drink.

He was fined Sh. 2,000 or, in default, two months' imprisonment with hard labour. Further the appellant was disqualified for six months from holding or obtaining a certificate of competency.

The grounds of appeal against the conviction are stated in the petition to be: $(a)$ the learned magistrate misdirected himself as to the amount of proof required under section 43 (1) of the Traffic Ordinance, 1953, to justify the said conviction; (b) the conviction was made against the weight of evidence".

Mr. Parry in his argument on behalf of the appellant dealt with these two grounds as one. It was not alleged that the appellant was not in charge of the car.

As we understood his argument. Mr. Parry complained that, upon the question of the extent to which the appellant was under the influence of drunk, the magistrate had preferred to rely upon the evidence given by the third prosecution witness (Inspector Cain) coupled with that given by the second prosecution witness (the laboratory technologist) to that given by the appellant and that of the two doctors who gave evidence—one for the prosecution and the other for the defence. We are of opinion that the magistrate was entitled to prefer the evidence of the police inspector who saw the appellant at about 8.15 p.m., when that evidence is considered with the evidence as to the alcoholic content of the appellant's blood, to that of the doctors who respectively saw the appellant one hour and two hours after the time mentioned. We, therefore, see no reason for interfering with the finding of the magistrate that on the evidence the appellant was guilty of the offence charged.

Before leaving this aspect of the appeal, would point out that it is insufficient to say that a conviction is "against the weight of the evidence". Such an averment does not comply with section 350 (2) of the Criminal Procedure Code. Moreover, in order to succeed, the appellant must show that the conviction is unreasonable or cannot be supported, having regard to the evidence. If there is evidence which could reasonably support the conviction, the appeal should be dismissed.

The arguments against the sentence were: $\rightarrow$

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- (i) That the fine (with the alternative sentence of imprisonment) is harsh and excessive for what was virtually the appellant's first offence; and - (ii) that the magistrate misdirected himself in holding that there was no special reason why the appellant should not be disqualified for holding or obtaining a driving licence and that, if the magistrate was correct in so holding, the period of disqualification is excessive.

We do not consider that the fine (or the alternative sentence of imprisonment) is a manifestly excessive punishment in this case, even though it is conceded that when the appellant was arrested his car was at rest and drawn up to the kerb. Nor do we consider that the period of disqualification is excessive in that, unless the court for special reason thinks fit not to disqualify, the section prescribes a minimum period of six months' disqualification.

The remaining question is, therefore, whether the magistrate misdirected himself in finding that in this case there was no special reason why the appellant should not be disqualified from holding or obtaining a licence. Neither counsel for the appellant nor Crown counsel referred us to the authorities on the subject of "special reason" and we have not, therefore, had the advantage of hearing their arguments whether, in the light of the decisions on the subject, the facts of this case did or did not constitute a special reason.

In Duck v. Peacock. (1949) 1 A. E. R. 318, the headnote reads: "After drinking a quantity of intoxicating liquor, a motorist entered and drove his car, and fell asleep. He was convicted of being in charge of a motor vehicle while under the influence of drink so that he was incapable of having proper control of it, but he was not disqualified from driving." On a case stated by the magistrate, the Divisional Court held that the facts did not constitute a special reason. In the course of his judgment, Lord Goddard, L. C. J., said: "This is a question, not of driving, but of being in charge of a car. If what is suggested here were a special reason, it would mean that a man who had taken too much drink so that he was unfit to manage the car or be in charge of it could escape the penalty of disqualification merely by stopping and going to sleep in the car. The court is not going to give any countenance to such a reason as that."

In Jones v. English. (1951) 2 A. E. R. 853, the respondent had pleaded guilty to being in charge of a motor vehicle while under the influence of drink and the justices found that there were special reasons for non-imposition of disqualification because, *inter alia*, his lorry had broken down and could not be driven. It had been towed into a side street, but had not been left in a proper condition. because it had not got its lights on and was improperly parked. On appeal by way of case stated, the Divisional Court dismissed the appeal and Lord Goddard. L. C. J. in his judgment said: "If the justices had declined to find special reasons. this Court would not have said they were bound to do so, but on the finding of the justices we cannot say that there was no evidence on which they could find special reasons."

The report of *Hopper v. Stansfield*, (1946) 48 L. G. R. 641, is not available, but, for what this is worth, there is a summary in *Davies's Law of Road Traffic*, at page 167, as follows: "Person in stationary and unlighted car which was incapable of being started because of low batteries, *Held*: Not special reasons."

In the instant case it was admitted that shortly before he was found in the stationary car the appellant had been driving it and had nearly been involved in a collision. As Lord Goddard, L. C. J., said in Jones v. English (supra): "It not infrequently happens that although a man is charged only with being in charge while under the influence of drink the facts show that he must have been driving when under the influence of drink, and that is quite a different matter." In this case the magistrate found that the appellant was under the influence of drink when arrested and the facts show that he was also under the influence of drink when he was driving shortly before. The magistrate believed the evidence that the appellant was slumped over the steering wheel with his head in his hands and disbelieved the appellant's explanation of a broken fuse. In our opinion these facts bring this case within the meaning of what Lord Goddard said in Duck v. Peacock (supra), namely that a man who, because of drink, was unfit to manage a car or be in charge of it, cannot escape the penalty of disqualification merely by stopping and going to sleep in the car.

For these reasons we are of opinion that the finding of the magistrate that there was no special reason was good in law and should not be disturbed. The appeal against the conviction, sentence and order for disqualification is, therefore, dismissed.

We would add that we do not wish to be taken to imply that the fact that a person convicted of being "drunk in charge" has, on feeling symptoms of intoxication, stopped his vehicle by the side of the road may not be taken into consideration when assessing sentence under section 43 of the Traffic Ordinance, 1953. That fact would be a mitigating circumstance which should be taken into consideration when the Court is deciding whether or not to inflict a sentence of imprisonment and in assessing the quantum of any fine. All that we are deciding is that the mere fact that the convicted person has stopped and parked the vehicle is not, as a matter of law, a "special reason" which can be invoked to exonerate him from the six months' disqualification mentioned in subsection (2) of section 43 of the Ordinance.