HIGH COURT, SUNYANI
Date: 26 FEBRUARY 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Republic v. Asafu-Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 106.
(2) Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C.
(3) Whittall v. Kirby [1947] K.B. 194; [1946] 2 All E.R. 552; [1947] L.J.R. 234; 175 L.T. 449; 111 J.P. 1; 62 T.L.R. 696; 90 S.J. 571.
(4) Williamson v. Wilson [1947] 1 All E. R. 306; 176 L. T. 274; 111 J. P. 175; 63 T.L.R. 152; 45 L.G.R. 128.
(5) Knowler v. Rennison [1947] K.B. 488; 176 L.T. 271; 63 T.L.R. 150; 91 S.J. 85 sub nom. Rennison v. Knowler [1947] 1 All E.R. 302; [1947] L.J.R. 555; 111 J.P. 171; 45 L.G.R. 124, DC.
(6) Duck v. Peacock [1949] 1 All E.R. 318; 113 J.P. 135; 65 T.L.R. 87; 93 S.J. 165; 47 L.G.R. 271.
(7) Chapman v. O’Hagan [1949] W.N. 399; [1949] 2 All E.R. 690; 113 J.P. 518; 65 T.L. R. 657; 93 S.J. 694; 47 L.G.R. 717, DC.
(8) R. v. Lundt-Smith [1964] 2 Q.B. 167; [1964] 2 W.L.R. 1063; [1964] 3 All E.R. 225n; 128 J.P. 534; 108 S.J. 425; 62 L.G.R. 376.
(9) R. v. Wickins (1958) 122 J.P. 518; 42 Cr.App.R. 236, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence by the District Magistrate Grade I, Berekum, on one count of careless driving, eleven counts of negligently causing harm, and on one count of using an uninsured vehicle. The facts are sufficiently set out in the judgment.
COUNSEL
Akoto for the appellant.
C. S. K. Agbanu, Senior State Attorney, for the respondent.
JUDGMENT OF OSEI-HWERE J
The appellant appeals against his conviction and sentence by the District Magistrate Grade I, Berekum, on one count for careless driving, eleven counts for negligently causing harm and on one count for using an uninsured vehicle. The prosecution’s case against the appellant, briefly, was that at about 7 p.m. on the day in question the appellant was in charge of a timber truck No. AN 8748 which was conveying a caterpillar vehicle from the Nsoatre direction towards the Berekum direction. Between miles 95 and 96 the first prosecution witness, who was also in charge of a vehicle conveying some passengers, sighted the appellant’s vehicle coming from the opposite direction. The appellant gave him the high beam sign and he signalled with the dim beam three times but the appellant left his high beams on as he approached. As the first prosecution witness was
[p.311] of [1974] 1 GLR 309
dazzled by the appellant’s high beams he applied his brakes and swerved to the nearside and when he was in the process of by-passing the appellant’s vehicle the blade of the caterpillar vehicle hooked his vehicle and caused it to tip over whereby some of the passengers were injured. It was later discovered that the appellant’s vehicle was not covered by any policy of insurance.
The appellant denied the charges of careless driving and negligently causing harm. His defence was that he ran short of fuel at about 5.30 p.m. whilst he was heading towards Berekum and that he had stopped and parked his vehicle at the nearside of the road near to the edge of the drain. He then sent one of his men on the vehicle to go to the next village to get some fuel. When it turned dark he switched on the parking lights and the danger light. At the same time he caused one Gyamfi to stand some distance ahead to warn approaching vehicles to slow down. As the first prosecution witness was approaching at a terrific speed Gyamfi warned him to slow down by signalling with his torch light but he paid no heed to him and sped on. As a result the first prosecution witness’s vehicle drove into the blade of the caterpillar.
The appellant’s counsel argued three grounds of appeal, namely:
“(1) The learned magistrate was wrong in arriving at the conclusion that the accused’s vehicle was in motion at the time of the accident.
(2) The learned magistrate erred in relying on the police sketch which was never tendered in evidence by the prosecution.
(3) The magistrate failed to consider the strong evidence of the defence.”
In ground (1) learned counsel for the appellant sought to challenge the trial magistrate’s finding of fact that the appellant’s vehicle was in motion at the time of the impact. The duty of an appellate tribunal called upon to review a decision of a trial court on a finding of fact is not only well-known but well established. The law affecting that duty has been re-stated with clarity by Akufo-Addo C.J. in Republic v. Asafu-Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 106, as follows: “Where there is evidence before the tribunal of first instance and where in particular the conclusions depend on the credibility of oral witnesses and the conclusions of fact are reasonable and fair inference to be drawn from the evidence, an appellate tribunal is not entitled to put itself in the place of the original tribunal and substitute its own findings deduced, as it were, from the printed record of the evidence for those of the original tribunal … There must be a clear case of misdirection on the part of the tribunal of first instance or something fundamentally wrong with its assessment of the value of the evidence to warrant an appellate tribunal taking a different view of the facts found.”
The trial magistrate indeed found ample evidence to support the prosecution’s case that the appellant’s vehicle was in motion at the time of the
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impact. The evidence of the fifth prosecution witness, the driver of another vehicle who had passed the appellant’s vehicle just before the impact, particularly supported the finding made by the trial magistrate. In the result I am incapable of disturbing this finding of fact.
In regard to ground (2) I subscribe to the contention of the appellant’s counsel that it was improper to have tendered the sketch, although allegedly thumb-printed by the appellant, through him and thus deprive him of the opportunity of cross-examining on it. Although the sketch was improperly tendered through the appellant there is nothing in the judgment to show that the trial magistrate relied on it. Indeed he made no mention of it at all in his review and assessment of the evidence.
On the complaint that the trial magistrate failed to consider the defence the short answer to it is the decision of Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C. where it was held that where a judge is sitting alone as a tribunal of fact the principles applicable to a summing-up to a jury or to directions to assessors do not apply. If, therefore, there is evidence before the trial judge which he accepts to found a conviction, an appeal court will not interfere with that conviction. The essence of the appellant’s careless driving, as gathered from the evidence on record, was that the appellant blinded the first prosecution witness by his high beams. It is clear that by his conduct he showed lack of care and attention to the first prosecution witness who was driving from the opposite direction. I have no doubt that the first prosecution witness himself largely contributed in bringing about the accident when he elected to drive on although blinded by the glaring lights of the appellant’s vehicle. The voice of caution ought to have taught him to stop. He risked driving on to bypass the appellant’s vehicle and in so doing his vehicle was hooked by the protruding blade of the caterpillar. Contributory negligence is, of course, no defence to a criminal charge.
In his defence to driving a vehicle which was not covered by a policy of insurance the appellant’s explanation clearly showed that he was not unaware that the policy on his vehicle had expired when he drove the vehicle that day. After his conviction and sentence on that charge the trial magistrate disqualified him from holding a driving licence for a period of only one month. His stated reason for disqualifying him for this short period was that as the company whose vehicle the appellant drove took bulk insurance to cover all its fleet of vehicles it was impossible for an individual driver to know when and how the insurance was renewed. In those circumstances the trial magistrate considered that it would be hardship to disqualify the appellant from driving for a period of twelve months. I think that it will be worth while to expound the law on this aspect of disqualification because of my alarming awareness that most magistrates (and certainly those in this Brong-Ahafo Region) completely frown on the mandatory provisions of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), which demand disqualification or that, when they are disposed to disqualify, they strain the law on “special reasons” out of compassion for the convicted person.
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Section 3 (1) of the above-quoted Act, as is well-known, lays down provisions to the effect that users of motor vehicles have to be insured against third party risks and subsection (2), apart from providing for the punishment, lays down that a person convicted for using a motor vehicle not covered by such a policy of insurance shall, additionally, be disqualified from holding or obtaining a driving licence. Subsection (3) also provides, inter alia, as follows:
“A disqualification under the provisions of subsection (2), unless the court for special reasons to be recorded otherwise orders, shall be for a minimum period of twelve months from the date of the conviction . . . “
Subsections (2) and (3) read together mean that in addition to the sentence the court will impose, the persons so convicted shall be disqualified from holding a driving licence for the minimum period of twelve months unless for “special reasons,” which the court should record, it orders that the disqualification shall be for a lesser period than twelve months or it does not order him to be disqualified. It is well to remember that there is also a provision for disqualification for driving a motor vehicle when under the influence of alcohol or drugs. Section 19 (2) of the Road Traffic Ordinance, 1952 (No. 55 of 1952), provides as follows:
“19. (2) A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, be disqualified for a period of twelve months from the date of the conviction for holding or obtaining a licence.”
The test for construing the words “special reasons” in these two provisions must, of course, remain the same.
What then can judicially be considered as “special reasons?” The English courts have happily provided the answer by a chain of authorities on the matter. In Whittall v. Kirby [1946] 2 All E.R. 552 Lord Goddard C.J. issued the following warning at pp. 554-555:
“It is to be observed that the sections [of the Road Traffic Act, 1930 (20 & 21 Geo. 5, c. 43)] are mandatory and that Parliament has provided that a period of disqualification shall be imposed . . . but they have given a discretion to the court which obviously is a limited discretion to be exercised only for special reasons. The limited discretion must be exercised judicially. The reasons inducing the court to exercise it must be special, and special is the antithesis of general.”
In Whittall v. Kirby it was authoritatively stated (as set out in the headnote at pp. 552-553) that:
“(i) a ‘special reason’ within the exception was one which was special to the facts which constituted the offence, and not one which was special to the offender as distinguished from the offence;
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(ii) accordingly, no consideration of financial hardship, or of the offender being before the court for the first time . . . could be regarded as ‘special reason’.”
Again, the fact that disqualification is considered as a severe penalty in the circumstances is not a “special reason”: see Williamson v. Wilson [1947] 1 All E.R. 306. The court again warned in that case that it is not the duty of justices to say that a penalty which Parliament had imposed was too severe. Whether facts found by the court amount to a “special reason” is a matter of law: see Rennison v. Knowler [1947] 1 All E.R. 302. The other authorities on the matter are Duck v. Peacock [1949] 1 All E. R. 318, Chapman v. O’Hagan [1949] 2 All E.R. 690 and R. v. Lundt-Smith [1964] 3 All E.R. 225.
The rules that emerge from the cases cited above are the following:
(1) The duty to disqualify a convicted person from holding a driving licence falls not within the discretion of the convicting court, but is imposed by law. Thus it is not identified with the maximum punishment to be scaled down or mitigated according to established principles.
(2) The duty is mandatory but the convicting court has been given a limited discretion, which it should exercise judicially, to refrain from implementing the law’s clearly expressed requirement for a reason which is special to the offence, but not for a reason special to the offender.
(3) The High Court will interfere if the convicting court does not address its mind to the right considerations; but it will not interfere if the convicting court properly and judicially directs itself, even though the High Court would have decided the matter differently if sitting as a court of original jurisdiction.
In R. v. Wickins (1958) 42 Cr.App.R. 236, the Court of Criminal Appeal laid down four requirements that a “special reason” must fulfil in consonance with the test put forward in Whittall v. Kirby (supra) namely:
(a) It must be a mitigating or extenuating circumstance;
(b) It must not amount in law to a defence to the charge;
(c) It must be directly connected with the commission of the offence; and
(d) The matter must be one which the court ought properly to take into consideration when imposing punishment.
In that case the appellant pleaded guilty to driving a motor vehicle under the influence of alcohol. At the time of the offence he was suffering from diabetes, though he was unaware of this, and had consumed a small quantity of beer not exceeding the amount to which he was normally accustomed, and an amount which would not have affected his driving but for the diabetes. It was held that that was a “special reason” within the exception for not ordering disqualification.
It will be observed from reading the above cases that it is really in very rare circumstances that the court will refrain from ordering a disqualification. Lord Goddard C.J. thus gives us the last word at p. 556 in the Whittall case (supra):
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“I would say that I strongly incline to the opinion that a person who drives or causes or permits a vehicle to be driven when there is no policy in force must be disqualified unless the court can find in relation to the particular offences some mitigating circumstances, and that mere forgetfulness or carelessness in not taking out a policy could not amount to a special reason. In one of the Scottish cases the offender was a doctor whose services were urgently needed in war time. It may, perhaps, be that in a national emergency such as was caused by the late war overwhelming considerations of public benefit might be taken into account and amount to a special reason, but in ordinary circumstances I should find it difficult to hold that the fact that the offender was a doctor was any ground for treating him differently from any other driver.”
In R. v. Lundt-Smith (supra) an ambulance driver, who was taking an urgent case to the hospital in his ambulance, pleaded guilty to causing death by dangerous driving. The court found that the facts amounted to special reasons why the driver should not be disqualified. It is for the above reasons that I hold that the trial magistrate erred in law in not ordering a disqualification for the minimum period of twelve months. With this observation I dismiss the appeal against conviction and sentence.
DECISION
Appeal dismissed.
T.G.K.
