Emmanuel s/o David v. R. Crim. App; 25-Dodoma-71; 7/12/71 Mnzavas, J.

 

Emmanuel s/o David v. R. Crim. App; 25-Dodoma-71; 7/12/71 Mnzavas, J.

Appellant was convicted of causing death by dangerous driving c/s 44A of the Traffic Ordinance. The appellant was a police driver and was going to investigate a reported crime. The deceased, a police constable, was sitting beside the appellant in the cabin of the land rover which the appellant was driving. As the appellant was driving along the road, a tyre burst and the vehicle left the road and hit a tree. The deceased was thrown out of the vehicle and sustained injuries from which he later died.

            Held:- (1) “The learned magistrate found that the accused must have been traveling at a speed between 35 m.p.h. and 45 m.p.h. at the time of the accident.” (2) “From the judgment it is  amply clear that the trial magistrate found the appellant guilty because he came to the conclusion that the appellant was driving the vehicle at a speed which made him unable to stop the car instantly when the tyre burst while he knew that he was driving a boarded car. Earlier in his judgment the court came to the conclusion that the accused must have been driving the vehicle between 35 m.p.h. and 45 m.p.h. The court came to this conclusion after hearing the evidence of Juma (P.W.5), on of the passengers who sat behind the land rover. He disbelieved the testimony of P.C. Augustine (P.W.) a vehicle inspector, who told the court that the vehicle must have been traveling at 60 to 70 m.p.h. when the accident occurred. The learned magistrate was entitled to disbelieve P.C. Augustine and believe Juma instead. But the magistrate should have accepted Juma’s evidence with caution in that his evidence was, at best, opinion evidence. In W. Milburn vs. Regina 2 T.L.R. (R) page 27 in which the question of speeding was in issue Abernethy J. as he then was, said at page 29; “The evidence of a Police officer that an accused is traveling at a speed in excess of the speed limit is mere opinion evidence and a count will not convict on such evidence unless it is supported by some other evidence whereby the officer’s evidence becomes evidence of fact and not merely of opinion”. That case is not quite on all fours with the present case but the above remark by the learned judge clearly illustrates what evidence should be adduced in support of a charge where the question of speeding is in issue.”(3) “Even if it is, for arguments’ sake, accepted that the accused was traveling at 35 to 45 m.p.h. at the time at the accident, it cannot be said with certainty that the speed was the cause of the burst of the tyre. Nor can it be said that driving a motor vehicle at 45 m.p.h. on a tormac road at 2 a.m. is dangerous driving within the definition of dangerous driving given under section 44A (1)(a) of the Traffic Ordinance. The accused was driving at a moderate speed on a first class road and at a time when the amount of traffic on the road was at its lowest when the unfortunate accident happened. As rightly argued by the learned state attorney in considering the circumstances in a charge of causing death by dangerous driving the test to be applied is purely an objective test. There is no legal definition of driving to the danger of the public and there cannot be any legal definition.” (4) Appeal allowed.