[1954] EACA 178

## APPELLATE CRIMINAL

#### Before BOURKE, J.

### MOHAMED ASQHAR SHEIKH, Appellant

$\mathbf{v}$ .

# THE QUEEN, Respondent

### Criminal Appeal No. 267 of 1954

Criminal Law—Traffic Ordinance (Cap. 232) section 20 (4) $(c)$ —Allowing a motor vehicle to cause unnecessary obstruction or inconvenience-Whether paragraph imposes absolute prohibition—Whether opening car door and causing accident necessarily an offence—Necessity to prove *mens rea*.

The accused was charged with an offence under section 20 $(4)$ (c) of the Traffic Ordinance in that being a driver he allowed a motor-car to cause an unnecessary obstruction to the public by opening his off-side door and causing an accident to a pedal cyclist. The motor-car was lawfully parked in a marked space at the side of a public road and the accused opened the door to get out without noticing that a cyclist was passing. As a result, the cyclist came into contact with the door, fell off and was injured by another vehicle. The magistrate accepted that as soon as the door was opened and hit the cyclist the motor-car was allowed to cause an obstruction and the offence was committed. The magistrate convicted, and the convict appealed on the ground that mens rea was requisite to the offence for which he was found guilty. The Crown contended that the paragraph provided an absolute prohibition and the offence was complete without proof of *mens rea*.

*Held* (30-7-54).—(1) A person does not "allow" a motor vehicle to cause an unnecessary obstruction, unless he knows he is so doing and so acts wilfully. In the sense used "allow" is synonymous with wilfully which means intentionally and implies knowledge.

(2) The appellant, in the exercise of his will, opened the door of his parked vehicle; but, although the merc commission of this act did cause an unnecessary obstruction to the public, it could not be held intentional on the part of the appellant in the absence of proof of knowledge of the obstruction. In this sense the obstruction was not wilful.

(3) The commission of the offence does not depend on whether or not an accident takes place as a result of a mere wilful act such as opening a door. Paragraph 20 (4) (c) of the Traffic Ordinance (Cap. 232) does not impose an absolute prohibition and, to prove the charge of obstruction, *mens rea* on the part of the alleged *actor* is an essential ingredient. That is, it must be shown that the alleged offender wilfully and knowingly caused his motor vehicle to cause an unnecessary obstruction to the public.

Semble.—The prosecution might have succeeded on an issue of negligence.

Appeal allowed.

Cases cited: Eaton v. Cobb, (1950) 1 A. E. R. 1016; Fearnley v. Ormsby, (1879) 4 C. P. D. 136; Watson v. Lowe, (1950) 1 A. E. R. 100; Shears v. Matthews, (1948) 2 A. E. R. 1046; Ryan, 10 C. A. R. 4; Somerset v. Hart, (1884) 12 Q. B. D. 360.

Also cited: Halsbury's Statutes 2nd Ed., 78; Glanville Williams Criminal Law vol. 1, page 130.

Oulton for the appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of an offence under the following provisions of the Traffic Ordinance (Cap. 232): -

"20. Every motor vehicle and trailer when in use on a road shall be used in conformity with the following conditions and not otherwise and if used in contravention of these conditions the driver and person in charge shall severally be guilty of an offence against this Ordinance.

"(4) No person driving or being in charge of a motor vehicle shall-

(c) allow the motor vehicle to cause any unnecessary obstruction or any unnecessary inconvenience to the public".

The particulars alleged in the charge were that the appellant:—

"on the 26th day of August, 1953, at 9.30 a.m. at Nairobi in the E. P. D. being the driver of a motor-car No. C. 3796, River Road allowed the said motor vehicle to cause an unnecessary obstruction to the public by opening his off-side door causing a pedal cyclist to swerve to avoid the said door and thereby colliding with a passing motor-car No. KBF. 205".

The charge was not filed until 30th October, 1953 and was tried as a minor offence under section 197 C. P. C. The case seems to have had an uneasy passage over the following months but finally on the 28th May, 1954, nine months after the commission of the offence alleged, the judgment was pronounced. The appellant was sentenced to pay a fine of Shs. 101 or undergo three months' simple imprisonment in default of payment.

The circumstances as found do not coincide with those alleged in the charge. The findings are that the appellant opened the off-side door of his car, which struck a cyclist and knocked him off his bicycle into the road whereupon he was injured through being hit by a passing vehicle. It was not a matter, as alleged in the charge, of the opening of the door "causing" the cyclist "to swerve to avoid the said open door and thereby colliding with" the passing vehicle. However, nothing now turns upon this as the appeal is argued. The facts are not in dispute that the appellant's car was lawfully parked in a marked space provided by the side of the road and that he opened the door to get cut without noticing that there was a cyclist passing by. The motor vehicle as thus parked caused no "unnecessary obstruction to the public" but as soon as its door was opened and hit the cyclist then, according to the case for the Crown, which was accepted by the court below, the motor vehicle was allowed to cause such an obstruction and the offence was committed.

Now had the appellant been charged with an offence contrary to section 48 (d) of the Traffic Ordinance it appears that the facts would not justify a conviction. That section provides that: —

"No person shall do any of the following things on a road... (d) wilfully obstruct in any manner the free passage of persons or vehicles passing along the road".

The similar provision occurring in section 72 of the Highway Act, 1835, (section 50) was considered in *Eaton v. Cobb*, (1950) 1 A. E. R. 1016. In that case also the appellant opened the off-side door of his car which struck a passing cyclist and knocked him down causing injury. It was held by the Divisional Court on a case stated that the essence of the offence charged was that the obstruction of the highway must be intentional and that the appellant had not "wilfully" obstructed the free passage of the highway; and therefore was not liable to conviction. "It is true that he wilfully opened the door and, if it were an offence to open the off-side door of a motor-car, he would have committed it, but the offence here is wilfully obstructing the free passage of a highway. . . ."

The test whether or not a person can be convicted of the offence of which the appellant has been convicted is whether or not the obstruction was intentional (per Humphreys, J.). Lord Goddard, C. J. added, "that the offence does not depend on whether or not an accident takes place. If the justices were right (in convicting), everybody who gets out on the off-side of his car would be committing an offence under section 72 of the Act of 1835 and that cannot have been the intention of the section." "'Wilfully' in this section means 'purposely'" (Halsbury's Statutes, 2nd Ed., 78; Fearnley v. Ormsby, (1879) 4 C. P. D. 136).

I have referred to *Eaton* $v$ . *Cobb* because it is contended for the present appellant that this same element of the mens rea is requisite to the offence of which he was found guilty; a submission that was rejected by the learned **magistrate.** Before passing to consider section 20 (4) (c) of the Traffic Ordinance I refer also to *Watson v. Lowe*, (1950) 1 A. E. R. 100, in which the accused, who was the driver of a motor-car, opened the door of the off-side of the car while it was stationary and struck a cyclist who was passing. He was charged under section 78 of the Highway Act, 1835, that "he did unlawfully by negligence interrupt the free passage of a certain carriage... on a highway." By section 78 of the Highway Act, 1835: "... if any person shall... by negligence... interrupt the free passage of any person, wagon, cart or other carriage ... on any highway" he shall be guilty of an offence. It was held by the Divisional Court that the respondent was guilty of an offence and should have been convicted; he "was negligent, not in driving but in opening the door as he did". The case was distinguished from Shears v. Matthews, (1948) 2 A. E. R. 1064, in which the facts were that on arriving at his destination a lorry driver opened the door on the off-side of his lorry and, in doing so, struck a cyclist whom he did not notice passing by. He was charged under another part of section 78 of the Highway Act, 1835, which makes it an offence for "the driver of any carriage whatsoever on any part of any highway . . . by negligence or wilful misbehaviour" to "cause any hurt or damage to any person ... passing or being upon such highway". It was held that this provision was aimed at negligence in driving and, therefore, assuming that the lorry driver was guilty of negligence, he had not committed an offence under the section, as his negligence was not in connexion with driving since the vehicle had stopped.

In the instant case it is not a matter of alleging negligence nor of wilfully obstructing a highway, but of allowing a motor vehicle to cause an unnecessary obstruction to the public. The appellant was not at the material time a "person" driving" (section 20 (4) (c)) though in the charge it is alleged that "being the driver" he allowed the obstruction. On the authority of *Shears v. Matthews* (supra) it might well be open to argument that, as the car was parked and stationary, there was no offence "in connexion with the driving"; but no such point has been taken here or below, and no doubt for the reason that it is not in dispute that the appellant was "in charge of", (section 20 (4) (c)) the vehicle and the words "being the driver" in the particulars of the offence may reasonably be regarded as a loose way of alleging that the appellant was "in charge of" his own car at the time of the accident. A curious feature of this case, and one that attention was drawn to in Shears v. Matthews, is that it is a strange thing that the appellant as the person in charge of the motor-car should be regarded as committing an offence, but, if a passenger in the vehicle had opened the door, the passenger would not be committing an offence.

This appeal has been argued on the ground that the ordinary presumption that mens rea is required applies and that the result must be the same as in Eaton v. Cobb. For the respondent it is submitted that section 20 (4) (c) provides for an absolute prohibition. It is to be noted that the operative word in section 20 (4) (c) is "allow". It is difficult to appreciate how a person can allow

a motor vehicle to cause an unnecessary obstruction unless he knows that he is doing so and acts wilfully; and "wilfully" means intentionally (Ryan, 10 C. A. R. 4). "Permits" then, implies knowledge. So do words of similar meaning, such as "allows" and "suffers" for, as Lord Coleridge, C. J. said. "How can a man suffer a thing to be done when he does not know of it?" (Glanville Williams on Criminal Law, vol. 1, 130; Somerset v. Hart (1884) 12 Q. B. D. 360, 362.) In. my opinion, it must be granted that there is no absolute prohibition. Accepting then, the contention advanced for the appellant that for the comission of an offence the person charged must have wilfully allowed the motor vehicle to cause an unnecessary obstruction to the public, it is necessary to examine the facts. What did the appellant do? He wilfully opened the door of his lawfully parked car. But the unnecessary obstruction of the cyclist caused by this act was not intentional. Just as in *Eaton v. Cobb* the same deliberate act impeding the progress of a cyclist did not amount to wilfully obstructing the free passage of a highway, it seems to me that in the present case the act of the appellant cannot be said to amount to wilfully allowing the obstruction as alleged. Had the appellant been charged with an offence as in Watson v. Lowe (supra) a similar finding of negligence constituting an offence might be justified. As it is, I think the words quoted above of Lord Goddard, C. J. in *Eaton v. Cobb* apply. The offence does not depend on whether or not an accident takes place. If the magistrate was right then everybody in charge of a motor vehicle who gets out on the off-side of his car would be committing an offence under section 20 (4) (c) of the Ordinance and that cannot have been the intention of the section.

I allow the appeal and set aside the conviction and sentence.