Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was tried for, and convicted of the offence of manslaughter by the High Court, Cape Coast, sitting with a jury. When the appeal came up for hearing on 12 October 1964, the senior state attorney, appearing for the respondent, stated in reply to the court that he was unable to support the conviction. The court thereupon allowed the appeal, quashed the conviction and the sentence, and entered judgment and verdict of acquittal; the following are the reasons for that judgment.
The offence of manslaughter is defined in section 51 of the Criminal Code, 1960,1 as:
“Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter. Provided that if the harm causing the death is caused by negligence he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life.”
And unlawful harm which is the essential ingredient of the offence is defined in section 76 of the code as, “Harm . . . which is intentionally or negligently caused without any of the justifications mentioned in Chapter 1 of this Part.”
In framing the indictment against the appellant the prosecution adhered strictly to the provisions of section 201 of the Criminal Procedure Code, 1960,2 and the form there prescribed, and gave no further particulars. But from the nature of the case, there is no doubt that the unlawful harm relied upon by the prosecution is harm negligently caused, and not harm intentionally caused; and further that the alleged negligence is in connection with driving a motor vehicle.
Section 161 of the Criminal Procedure Code, 1960, provides that:
“When a person is charged with manslaughter in connection with the driving of a motor vehicle by him and the Court is of the opinion that he is not guilty of that offence, but that he is guilty of an offence under section 17, 18 or 19 of the Road Traffic Ordinance, he may be convicted of that offence although he is not charged with it.”
The offences under the said sections 17, 18 and 19 of the Road Traffic Ordinance 1952,3 are,
respectively: reckless driving, careless driving, and driving when under the influence of drink. Reckless driving is a more serious offence than careless driving; but compared with manslaughter, is a very minor offence.
Careless driving is defined in section 18 (1) of the Road Traffic Ordinance as follows:
“Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be liable on conviction to a fine not exceeding fifty ounds or imprisonment not exceeding six months or to both such fine and imprisonment.”
That definition shows that the mere occurrence of an accident in the course of driving a motor vehicle does not of itself constitute the offence of careless driving. To establish that offence, the essential particulars set out in the section must be proved; that is, evidence must be led from which it will appear that the driver drove the vehicle in a manner “without due care and attention or without reasonable consideration for other persons using the road.”
The offence of reckless driving is defined in section 17 (1) of the Road Traffic Ordinance as follows:
“Any person who drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or might reasonably be expected to be, on the road, shall be liable on conviction to a fine not exceeding one hundred pounds or imprisonment not exceeding six months or to both such fine and imprisonment.”
That definition shows that the elements of careless driving by themselves cannot create the offence of reckless driving. The elements which must be proved to establish that offence are driving:
“recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or might reasonably be expected to be, on the road.”
Manslaughter by harm negligently caused is by far a graver offence than reckless driving. Therefore, for death resulting from a motor accident to be manslaughter, there should be evidence of acts or omissions on the part of the driver which are of very much graver degree than those which constitute the offence of reckless driving. In the words of section 51 of the Criminal Code, 1960, the driving must not only be reckless, but it must be of a nature or manner so gross and outrageous as to demonstrate a reckless and complete disregard for human life. For further explanation of the law on this point, see judgment of this court in State v. Tsiba,4 and the English cases there cited.
Therefore in a charge of manslaughter brought in connection with driving a motor vehicle, the trial court, by reason of section 161 of the Criminal Procedure Code, 1960, has to determine whether there is evidence of acts or omissions which in law can amount to the high degree of recklessness which shows gross disregard for human life which it could leave to the jury. If it should find no such evidence it should next consider whether there is evidence which can be left to the jury as constituting the essential elements of the offence of reckless driving. If it does not find evidence which is sufficient in law to constitute that lesser offence, it should finally consider whether there is any evidence which may answer the definition of careless driving, the still lesser offence, which it could leave to the jury. If it can find no such evidence, or there being some evidence, it is not sufficient, it should withdraw the case from the jury, and acquit the defendant.
We shall now examine the facts of this case in the light of the principles of law just discussed above. The appellant is a driver employed by the Cape Coast Municipal Council. On 13 May 1963 he drove a bus of the council from Cape Coast to Elmina. He had stopped at two bus stops for passengers to embark and disembark, and started to drive from the second stop going at a speed of about fifteen miles per hour towards a third stop which was about 175 yards away, as he was approaching a curve, an explosion was heard coming from under the bus; the steering of the vehicle then became stiff and could not be controlled; the appellant immediately applied his brakes, but they failed; he kept to his seat doing all he could in an attempt to control the vehicle but without success. The bus went off the road, knocked down a stand-pipe, continued and knocked down and killed a little girl, the subject of the charge of manslaughter; it eventually ran into a pile of concrete blocks and that stopped it. Mechanical examination of the vehicle
after the accident disclosed that a bearing under the steering wheel had got broken and also that something had happened which caused an escape of air working the brakes, thus making the brakes ineffective.
There is not a tittle of evidence pointing to any act of commission or omission on the part of the appellant in connection with the driving which in law could amount to any motor driving offence. Therefore there were no facts to fit into the law discussed above. It is noteworthy that apart from referring generally to the evidence of the witnesses, the only matter the prosecuting state attorney could urge in his address to the High Court was that “if the steering and the brakes were defective the accused could have applied his hand brakes.” This criticism has no foundation: all the appellant said about brakes is that he applied his brakes but they failed; he was not asked anything about hand brakes, and he was not cross-examined either about hand brakes so that if he had not applied his hand brakes he could have opportunity of explaining why he did not apply them. We must observe that it is improper for counsel on either side to
address the court, particularly in a jury trial, upon matters of which no evidence has been led. But even if there was evidence of omission to apply the brakes, that omission cannot support even the most minor offence of careless driving.
In fairness to the learned trial judge, it must be pointed out that he did direct the jury that the “case for prosecution rests mainly on the evidence of fourth prosecution witness to prove negligence and although fourth prosecution witness was called as an expert he admitted that he knew nothing about the mechanism of a Leyland bus which the accused was driving” and he further directed that the said fourth prosecution witness did not himself examine and test the vehicle. There is the further fact that when the said fourth prosecution witness was recalled by the court after the inspection of the locus in quo, he retracted every part of the material conjectural evidence he had earlier given in his evidence-in-chief. For example, he had said in his evidence-in-chief that in his opinion the driver was “driving the bus at more than 30 miles
per hour” and that if the bus was travelling at 30 m.p.h. the breaking distance would be 75 feet; but when recalled by the court after the inspection he said:
“I have never done any repairs to the steering or brakes of a Leyland bus. I do not know anything about the mechanism of a Leyland bus. I would not know how to find out what has caused the steering of Leyland bus to go bad if I had not examined it . . . The maximum speed the accused could have driven the bus between the second bus stop and the scene of the accident is about 20 m.p.h.”
Be that as it may, the point is that the learned judge left the case to the jury and addressed them upon the law, when there were no facts to which he could ask them to apply the law, and when he himself could not point out anything to them as an act or omission of the appellant which could possibly be considered as amounting in law to any offence in motor driving. In this he erred; he should have withdrawn the case from the jury and directed them to bring a verdict of not guilty.
DECISION
Appeal allowed.
N.A.Y.
