HIGH COURT, SUNYANI
Date: 9 JANUARY 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Taylor v. Rogers (1960) 124 J.P. 217.
(2) McCrone v. Riding [1938] 1 All E.R. 157; 158 L.T. 253; 102 J. P. 109; 54 T.L.R. 328; 82 S.J. 175; 36 L.G.R. 160, D.C.
(3) R. v. Adamu [1960] G.L.R. 91, C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence of the appellant by a district court for the offences of careless driving and negligently causing harm. The facts are sufficiently set out in the judgment.
COUNSEL
Miss Asare Korang for the appellant.
Robert Kyei, Assistant State Attorney, for the respondent.
JUDGMENT OF OSEI-HWERE J
On 15 December 1972, I allowed the appellant’s appeal against his conviction and sentence and reserved my reasons which I now proceed to give. The appellant was arraigned before the District Court Grade II, Atebubu, on a count of careless driving and on another count of negligently causing harm. The particulars of the careless driving charged him with driving “without due care and attention.” The appellant pleaded not guilty to these charges and after the trial magistrate had heard the evidence, he convicted the appellant on both counts and sentenced him to a fine of 0100.00 or six months’ imprisonment with hard labour on the first count and 0200.00 or twelve months’ imprisonment with hard labour on the second count. He ordered “sentence to run concurrent” and he, additionally, ordered that the appellant be disqualified from holding a driving licence for a period of twelve months. It is against this conviction and sentence that the appellant appealed and the grounds of appeal filed on his behalf by his solicitor are as follows: “(1) The judgment of the trial magistrate is unreasonable having regard to the evidence; (2) The sentence is excessive and unreasonable.”
After the appellant’s counsel had argued at some length, the respondent’s counsel was invited by the court to support the judgment. The assistant state attorney, without any apology, threw in the towel by conceding (and rightly too) his inability to support it. The judgment itself is bereft of any findings of fact except for the following:
“if the accused had not driven the vehicle carelessly he would have been able to save the girl at such an open space where the accident occurred. From the place of impact to the place where accused could stop his vehicle proved that he was driving carelessly.”
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The rest of the judgment consists of the reproduction of the statement and particulars of the offences and a resume of the evidence of the witnesses.
It at once becomes clear from the above findings of fact and the conclusion drawn therefrom that the trial magistrate failed to consider that the burden of proof lay on the prosecution to establish the guilt of the appellant beyond reasonable doubt and that there was no duty on the appellant to establish his innocence. For what the trial magistrate is evidently saying is that because the appellant was not able to avoid the girl in an open space and also because the appellant stopped his vehicle at an undecided distance from the point of impact then he must have driven his vehicle carelessly.
The test for careless driving does not depend on the mere ipse dixit of the trial magistrate but, as decided in Taylor v. Rogers (1960) 124 J.P. 217, it is an objective one. Each case must, therefore, depend objectively on its own facts to determine whether there was exercised that degree of “care and attention” which a reasonable and prudent driver would exercise in the circumstances. The question of careless driving is not dependent upon the lack of skill of the driver as the trial magistrate seems to suggest, but it is a question dependent upon lack of care and attention. In McCrone v. Riding [1938] 1 All E.R. 157 at pp. 158-159, D.C., Lord Hewart C.J. had this to say:
“I think that it is not without significance that the statute uses both the word ‘care’ and the word ‘attention.’ In other words, the driver, whoever he may be, experienced or inexperienced, must see what he is about. He must pay attention to the thing he is doing, and, perceiving that which he is doing or entering upon, he must do his best, and he must show proper care in the doing of that thing upon which he is intent . . . ‘Due care and attention’ is something not related to the proficiency of the driver, but governed by the essential needs of the public on the highway.”
It is for these reasons that the trial magistrate was in duty bound to have considered and evaluated the evidence before him. It is plain to see that he failed in this duty.
The first prosecution witness corroborated the appellant’s evidence that whilst he was approaching, he came upon three vehicles parked on the left side of the road when facing Kumasi direction (i.e. the direction towards which the appellant was driving). The appellant blew on his horn before he started to overtake these stationary vehicles and as he was about to overtake the last of the three vehicles, the girl emerged from the left side of the road and hit her head at the rear part of the appellant’s vehicle. Again, his evidence was corroborated by the third prosecution witness (the police witness who inspected the scene of the accident), that he stopped his vehicle 56 feet from the point of impact. This was confirmed by the court’s own inspection of the scene. The Highway Code illustrates that if a vehicle is travelling at twenty miles per hour (given
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a good driver, a vehicle in perfect condition, good weather, broad daylight and a good dry road), it can stop dead at an overall distance of 40 feet. Similarly if it is travelling at 30 miles per hour its overall stopping distance will be 75 feet. The stopping distance disclosed by the evidence of the third prosecution witness shows that before the impact, the appellant was doing less than the requisite 30 miles per hour within town. The duty of care of those who use the public highway is reciprocal. For just as it is the duty of motorists not to imperil the use of the road by pedestrians, in the same way is it the duty of pedestrians not to embarrass or endanger the manner of driving of motorists. Simply put, pedestrians owe as much duty of care to themselves and to motorists as motorists owe to them. Where a pedestrian, therefore, jumps on to the road, in the face of moving traffic, without regard for his own safety and thereby creates an emergency to a motorist who had no cause to expect any potential danger he cannot next be heard to complain that the motorist did not show enough skill to avoid the danger.
In the light of the evidence of the first and third prosecution witnesses I find nothing to support the trial magistrate’s conclusions that because the appellant was unable to avoid the girl at such an open space and also because of the distance between where he stopped his vehicle and the point of impact, then he must have been careless. He obviously must have relied on the evidence of the second prosecution witness, an uncle of the victim, who alleged that he was an eye-witness to the accident. According to him, the victim was at the time crossing the road from the right to the left (and not from the left to the right as alleged by the first prosecution witness and the appellant) when she was hit by the front bumper. He also alleged that the appellant stopped his vehicle 150 yards away. The first prosecution witness, however, said that no one was around when the accident occurred. It was the duty of the trial magistrate to have resolved the credibility of the prosecution witnesses because of the conflicting evidence of the first and second witnesses. The first prosecution witness’s evidence was, at least, supported by that of the appellant. The second prosecution witness contradicted himself as to who picked up the victim and put her into the appellant’s car. If, indeed, he was present and he had shown much concern about the victim, he would have been present to challenge the resultant position of the appellant’s vehicle as indicated by the appellant. Even though the duty of selecting which witnesses to believe is essentially that of the trial court, the appellate court will be entitled to upset the findings of fact made on the evidence of a witness who ought not to have been believed on the available evidence before the court.
It is by reason of the self-contradiction in the second prosecution witness’s evidence and also the unlikelihood that he was present at the scene of the accident that I hold that it was wrong for the trial magistrate to have relied on his evidence. Apart from this, the evidence of the first prosecution witness fully showed that the appellant was innocent of the charges and he ought, at least, have been given the benefit of the
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doubt upon the well-known principle that the court cannot convict an accused person if the prosecution evidence against him contains the seed of its own destruction: see R. v. Adamu [1960] G.L.R. 91 at p. 95, C.A. I hold therefore, that the conviction cannot stand and the sentence and the order to disqualify must, accordingly, fall with it. The conviction, sentence and order are set aside and in place thereof I enter an acquittal and discharge. The fine, if paid, should be refunded forthwith to the appellant.
DECISION
Appeal allowed.
Sentence set aside.
S. Y. B.-B.
