HIGH COURT, SUNYANI
Date: 1 NOVEMBER 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Wono v. Kyiafi, Court of Appeal, 3 July 1967, unreported; digested in (1967) C.C. 119.
(2) Yuill v. Yuill [1945] P. 15; [1945] 1 All E.R. 183; 114 L.J.P. 1; 172 L.T. 114; 61 T.L.R. 176; 89 S.J. 106, C.A.
(3) Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S.C.
(4) Amartey v. The State [1964] G.L.R. 256, S.C.
NATURE OF PROCEEDINGS
APPEAL against the decision of a district court in which the appellant was convicted and sentenced on one count of careless driving and on 36 counts for negligently causing harm. The facts are stated fully in the judgment.
COUNSEL
Pobee for the appellant.
Ossei, Assistant State Attorney, for the Republic.
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JUDGMENT OF OSEI-HWERE
This appeal is brought against the conviction and sentence of the appellant by the District Magistrate Grade I, Sunyani (sitting at Bechem) on one count of careless driving and on many counts for negligently causing harm. The appellant, indeed, was arraigned before the court on 45 counts for the latter offence and he was convicted and sentenced on 36 of these counts. The prosecution’s case against the appellant at the trial, briefly, was that on the day in question a three-ton vehicle carrying 43 passengers (including the first prosecution witness, the second prosecution witness and the third prosecution witness) was travelling from Mim direction towards Kasapim. As the vehicle was descending a slope in the course of the journey, an approaching tipper truck was sighted and, because of the cloud of dust raised by the approaching vehicle, the driver of the three-tonner stopped his vehicle on the left-side of the road (being its proper side). Not long after the tipper truck had by-passed the stationary vehicle the headlight of an approaching vehicle was also seen and before one could cry out “Jack Robinson” the on-coming vehicle ran into the stationary vehicle. The driver of the three-tonner and one passenger in his vehicle died on the spot and four others also succumbed to their injuries later. Many more of the passengers sustained various injuries.
In his defence the appellant denied the charges. According to him he was, at the material time, the driver of a timber truck loaded with three logs and was travelling towards Mim. In the course of the journey he sighted a vehicle following him and he gave way to it and it passed. Because of the dust raised by the leading vehicle he stopped to allow the dust to clear. Later he set out again and, as he was descending a slope, he sighted a vehicle approaching from the opposite direction with its headlights on. As the approaching vehicle was in his lane he applied his brakes but because of the weight of the load his vehicle could not stop. To avoid a head-on collision he swerved to his off-side and the on-coming vehicle also swerved to its near-side and the two vehicles collided in the middle of the road. According to the appellant it was the front, left corner of his vehicle which hit the front, right corner of the approaching vehicle.
The appellant’s counsel principally argued the additional grounds of appeal filed which were as follows: “(1) The learned trial magistrate erred in law when he failed to consider whether or not the defence was reasonably probable.
(2) The trial magistrate failed to give satisfactory reasons for his reference of the case for the prosecution to that of the defence.”
Arguing ground (2) of the above grounds of appeal counsel first charged that the trial magistrate failed to carry out his mandatory duty under section 177 (1) of the Criminal Procedure Code, 1960 (Act 30), in giving reasons for his decision. I must say straightaway that I cannot, on reading the judgment, sustain the charge of the appellant’s counsel. I find that the trial magistrate gave a reasoned decision. He believed the evidence of the first, second and third prosecution witnesses that their vehicle was stationary when the appellant drove his loaded timber truck into it. He then
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went on to disintegrate the appellant’s defence by certain inferences he drew from the evidence of the defence witnesses and from the evidence of the investigating policeman, the fourth prosecution witness. It is one thing to complain that a judgment is not reasoned at all and it is another thing to say that the reasons are erroneous. Where a trial court gives no reasons at all for its decision and the reasons are not obvious from the evidence before the trial court an appellate court will, of course, disturb a conviction based upon such unreasoned decision. It cannot also be disputed that an appellate court can always interfere where the judgment of the trial court is based on wrong reasons or inferences. Indeed in Wono v. Kyiafi, Court of Appeal, 3 July 1967, unreported; digested in (1967) C.C. 119, the court per Ollennu J.A. summarised the principles which regulate the right of an appellate court to interfere with findings of fact made by a trial court as follows:
“[W]here the appellate court is satisfied that the reasons given by the trial court in support of its findings are not satisfactory, or where it irresistibly appears to the appellate court that the trial court has not taken proper advantage of his having seen and heard the witnesses, then in any such case the matter will become at large for the appellate court, in which case the appellate court is under a duty to give such decision as the justice of the case requires, and, if need be, reverse the decision of the trial court and substitute its own judgment for it. In any other case, the appellate court should not interfere with findings of fact made by a trial court.”
It is the duty, therefore, of the appellant to satisfy the court that the reasons given by the trial court for its decision are erroneous.
In this regard counsel chose for his onslaught the following inferences drawn by the trial court:
“According to the investigator, he found debris of broken glass on the left side of the road when facing Kasapim. I believe the investigator on this point. According to the investigator, both vehicles were lying on the near-side of the road when facing Kasapim and the vehicles were facing Mim direction. From this piece of evidence I could reasonably infer that the accident happened in the path of the driver travelling towards Kasapim direction. As the other vehicle, that is, the vehicle in which the first prosecution witness, the second prosecution witness and the third prosecution witness were travelling, turned towards Mim direction, the direction from which it was coming as a result of the impact, the reasonable inference is that the other vehicle was stationary and not in motion as claimed by the defence. If the other vehicle was also to be in motion, the force of the impact would not have turned the vehicle to the direction from which it was coming.”
It was argued that as the location of the debris of broken glass was in dispute the trial court erred in inferring from the fourth prosecution witness’s evidence that the point of impact was in the left lane of the other vehicle without giving reasons why the fourth prosecution witness’s
[p.423] of [1974] 2 GLR 419
evidence was preferred. The fourth prosecution witness’s evidence ought not to have been believed, so counsel argued, as he had destroyed the sketch he drew of the scene of the accident and he had also to be pressed, when he was under cross-examination, before he would admit that he saw the paint marks of the other vehicle on the appellant’s vehicle. Again counsel argued that the court’s finding that the other vehicle was not in motion because it was completely turned after the impact to face the direction from which it was coming was purely speculative. Indeed inferences drawn from the cold data collected at the scene of an accident are seldom a safe pointer to the manner the accident happened. Where the inferences drawn are, however, corroborated by the credible evidence of eyewitnesses (such as the evidence of the first, second and third prosecution witnesses was held to be) then the appellate court, in my view, is not entitled to reject those inferences unless they cannot be held to be reasonable or there is some positive evidence on record which cannot sustain the credibility of the eyewitnesses.
This brings me to the issue of the credibility of the witnesses of which the appellant’s counsel made much capital in his argument. It was argued that the trial court was wrong to believe the evidence of the first, second and third prosecution witnesses merely on their demeanour. This is what the trial magistrate said of them:
“I must say that the first prosecution witness, the second prosecution witness and the third prosecution witness, the eye witnesses, impressed me as truthful witnesses. There is nothing in their evidence or generally on the record which will induce me to doubt their story. I believe their evidence and I am prepared to act upon the evidence which fell from the lips of these three witnesses . . . The accused and his witnesses . . . did not fare as truthful witnesses under cross-examination as the first prosecution witness, the second prosecution witness and the third prosecution witness did.”
The question of credibility of a witness is, of course, within the peculiar preserve of a trial court; and, in Wono v. Kyiafi (supra) the court per Ollennu J.A. stated the principle thus:
“It must be observed that the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the court of first instance is in a decidedly better position than the appellate court.”
Provided a trial judge has tested his impression as to the demeanour of a witness against the whole of the evidence of that witness he is entitled to adopt that impression as the basis of his decision and it will not be open to an appellate court to question the view of the trial court as to the demeanour of a witness: see Yuill v. Yuill [1945] 1 All E.R. 183, C.A. An appellate court will rarely interfere with the trial court’s opinion on the demeanour of witnesses. As emphasised by Lord Greene M.R. in Yuill v. Yuill (supra) at p. 188:
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“It can, of course, only be on the rarest occasions and in circumstances where the appellate court is convinced by the plainest considerations that it would be justified in finding that the trial judge had formed a wrong opinion [of the demeanour of witnesses].”
There is, generally, therefore, no duty on a trial judge to give reasons why he believes prosecution witnesses—an exception, of course, being those cases encompassed by the decision in Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S.C. where the Supreme Court laid down the following principle as stated in the headnote that:
“Where a decision of a trial court turns upon the oath of a prosecution witness against that of a defence witness, it is incumbent on the trial court to examine the evidence of the said witnesses carefully along with other evidence adduced at the trial before preferring one to the other. If the court prefers the evidence of the prosecution then it must give reasons for the preference, but if it is unable to given any reasons for the preference, then that means that there is a reasonable doubt as to which of the versions of the story is true, in which case, the benefit of the doubt must be given to the defence. In this case the trial court did not examine either the case for the prosecution or that for the defence.”
Counsel for the appellant has, not unnaturally, grasped this decision as a sword to say that in the light of the denial of the appellant and his witness of the prosecution’s case that the other vehicle was stationary on its proper side of the road and of the appellant’s assertion that it was rather in motion in his (the appellant’s) lane of traffic it was not enough to believe the prosecution witnesses and convict merely because he was impressed by their demeanour but that the trial magistrate, apart from giving reasons for believing the prosecution witnesses, ought also to have considered whether the version of the defence was reasonably probable. In Amartey v. The State [1964] G.L.R. 256, S.C. the court gave a guide line on how to ascertain the innocence or guilt of an accused where the defence involved a choice between the assertion of the accused and the denial of the same by the prosecution. There the court laid down the following guide as set out in the headnote that:
“where a question boils down to oath against oath, especially in a criminal case, the trial judge should first consider the version of the prosecution, applying to it all the tests and principles governing credibility of witnesses; when satisfied that the prosecution’s witnesses are worthy of belief, consideration should then be given to the credibility of the accused’s story, and if the accused’s case is disbelieved, the judge should consider whether, short of believing it, the accused’s story is reasonably probable.”
The evidence of the first, second and third prosecution witnesses called by the prosecution was, of course, clear and unambiguous. They were all subjected to the cross-examination of an experienced counsel and, as found by the trial magistrate, they left the witness-box unscathed. That
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was sufficient reason for believing their evidence. He then went on to consider the evidence of the appellant and his two witnesses and he had no difficulty in rejecting their evidence. He disbelieved them because he felt they lied about the brake marks allegedly left on the road by the application of the brakes of the appellant’s timber truck. From the appellant’s evidence that he saw the on-coming vehicle about ten yards from him he rightly came to the conclusion that if he left any brake marks at all they must have measured less than ten yards. The second witness for the defence who went to the scene with the appellant claimed, however, that he saw brake marks of the appellant’s vehicle measuring a distance of 70 feet to the point of impact.
Indeed it is very questionable whether as the appellant said that he first saw the other vehicle within a very close range and as the first witness for the defence (the passenger in the appellant’s vehicle) admitted that the appellant was speeding as he descended the slope, the appellant could have gained sufficient time to apply his brakes before the impact. I am satisfied that the trial magistrate was justified in rejecting the appellant’s defence that he left any brake marks on the road. Both the appellant and the first witness for the defence conflicted between themselves as to whether the appellant was speeding as he descended the slope or not. The appellant denied that he was speeding whilst the first witness for the defence, as noted before, admitted that the appellant was speeding. Again the appellant could not give any consistent evidence as to the condition of the road when he sighted the other vehicle and also as to why he switched on his headlights. At first the appellant said that as the road was full of thick dust he could first sight the on-coming vehicle at a distance of ten yards away. Later, in his answers to cross-examination, he was saying that at the time he put on his headlights, the dust had cleared. In his evidence-in-chief he said that he saw the on-coming vehicle with its headlights on and he also switched on his headlights. In an obvious attempt to deny, under cross-examination, that it was because of the dust that he put on his lights the appellant now said that he did so to warn the approaching vehicle of the valley between them. It is clear from the foregoing, that there was enough justification for disbelieving the appellant and his witnesses.
After accepting the evidence of the first, second and third prosecution witnesses and disbelieving the appellant’s story the trial magistrate’s next care was to have considered whether the appellant’s defence was reasonably probable. It has been argued by the appellant’s counsel that the pith of the whole matter was whether at some moment of time the other vehicle was travelling along the proper lane of traffic of the appellant’s vehicle. Counsel marshalled all sorts of arguments to invite this court to hold that there is evidence to give a positive affirmation to this question which the trial magistrate failed to consider as true or as reasonably probable. To buttress his argument the court was referred to the evidence of the brake marks in the appellant’s lane, the debris of broken glass in the middle of the road, the paint mark on the front left comer of the appellant’s vehicle and the destruction of the sketch by the police investigator. The alleged brake marks on the road were, of course, properly rejected by the court
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and the position of the debris as indicated by the police investigator was accepted by the court. it was urged that the court ought to have disbelieved the fourth prosecution witness because he failed to tender the sketch which would have borne out the position of the debris as alleged by the appellant. The fourth prosecution witness explained his failure to tender the sketch which was impliedly accepted by the court. As the fourth prosecution witness said that there were no brake marks on the road his sketch could have contained nothing material except the location of the debris and the resultant position of the two vehicles after the impact. The fourth prosecution witness, however, gave oral evidence on what he saw at the scene. According to him he found the debris of broken glass on the left side of the road when facing Kasapim. He also said that he measured the point of impact indicated to him by the appellant and that this measured fifteen feet to the appellant’s near-side edge of the road. This point of impact was clearly within the left lane of traffic of the other vehicle as the whole of the road measured 27 feet. I think that the trial magistrate had every good cause to believe the fourth prosecution witness’s evidence as to the location of the debris in view of what the appellant said in confirmation, which I quote below:
“The approaching vehicle was in my path. To avoid head-on collision in my path I swerved to my off-side.
The approaching driver who was in my path also swerved to his nearside and collision occurred.”
It seems to me that the appellant’s own evidence settled it that the impact occurred on his off-side lane of traffic.
The only remaining point to consider is whether, as alleged by the appellant’s counsel in his argument, the front left corner of the appellant’s vehicle and the front, right corner of the other vehicle came into contact and therefore supported the appellant’s story as to the cause of the accident. Although it is conceded that some paint mark of the other vehicle was found on the left side of the appellant’s vehicle I do not think that can conclude in favour of the appellant that the two vehicles came into contact as he described. Indeed in his statement to the police, exhibit C, the appellant said that both vehicles had a head-on collision. In court, however, he tried to put another gloss on the whole matter (no doubt taking advantage of the paint mark on his vehicle) by saying that it was the front left corner of his vehicle which hit the front right corner of the approaching vehicle. I do not find it improbable that the other vehicle was stationary in its own proper lane when the appellant drove into it in the manner he now claims. But, granted that the other vehicle was in motion in the appellant’s path and the collision occurred in the manner the appellant testified about I still find sufficient evidence to sustain his conviction. The appellant fully confessed in his evidence in the court below that his view of the road was reduced to a distance of about ten yards because of the thick dust. This came from his own mouth in his testimony on oath as follows: “As the road was full of thick dust, I first sighted the on-coming vehicle at a distance of about ten yards from me . . . It was
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because of the dust that prevented me from seeing the other vehicle afar.”
Although literally blindfolded by the thick dust the appellant chose to drive on. It was his clear duty of care if he must drive on at all, that he should move at such a slow pace that, having regard to the weight he was carrying and the gradient of the road, he could pull up within the limit of his vision. With his vehicle loaded with three logs of timber and with the nature and condition of the road the appellant’s conduct in speeding down the slope (as admitted by the first witness for the defence) constituted dangerous driving. Having himself adopted this dangerous manner of driving the appellant could not be heard to complain that some other vehicle had no right to be in his way. It is for all the above reasons that I hold that the appellant’s conviction and sentence can in no way be disturbed. The appeal against conviction and sentence is therefore dismissed.
DECISION
Appeal dismissed.
