R. v. Alias Kisenge, Crim. App. 804-D-69; 23/1/70; Georges C. J.

R. v. Alias Kisenge, Crim. App. 804-D-69; 23/1/70; Georges C. J.

The respondent was charged, inter alia, with driving a motor vehicle whilst efficiency was impaired by drink or drugs c/s 49(1), Traffic Ordinance. The trial magistrate acquitted the accused on this count, and from this acquittal the Republic is appealing. The evidence presented was as follows. Two police officers stated that while driving in a motor car along Msimbazi Road towards the Nkrumah Street – Pugu Road – Msimbazi Street round-about they saw a car which later proved to be the respondent’s car approach the round – about from Nkrumah Street. He failed to give way to their car which was coming into the round about from his right. The car went on to overtake and hit a lorry which was ahead of it. The police gave chase and eventually stopped it. The respondent was the driver. He seemed unsteady and uncertain in speech. They arrested him and took him to the hospital. The doctor who examined him was of the opinion that hi sufficiency had been impaired by drink. The trial magistrate dealt with the evidence on this count in the following manner:- “None of the prosecution witnesses………. Said that the accused’s driving was zigzag. The only evidence required to establish such an offence is that an accused’s person’s driving efficiency should be impaired to such a degree that he is deprived of his ability to control his vehicle. It is part of the prosecution case that accused drove his vehicle without any mishaps for a long distance. I am therefore satisfied that accused was not deprived of his efficiency to drive.”

            Held: (1) “Clearly there is misdirection here on the standard of proof. The Republic does not have to establish that the accused person’s efficiency has been so impaired that “he is deprived for his ability to control his vehicle”. One his ability is impaired a prima facie case has been established. If the driver has to be “deprived of his ability to control” before he can be convicted then the safety of other road users would be gravely imperiled before the drinking driver could be dealt with. This misdirection

By itself is in view, serious enough to justify the Republic’s appeal being allowed on a question of law.” (2) “Appeal allowed and case was remitted to the magistrate for hearing.” (3) “On the third count the position could be criticized as uncertain. Evidence was given of two accidents – one with a Bedford lorry and one earlier with a cyclist. The magistrate held that the charge did not make it clear which accident the respondent had failed to report and that the chare was bad for duplicity. In the circumstances of this case I was not prepared to disagree with that finding. Accordingly I dismissed the Republic’s appeal on that count.” The matter was remitted to the magistrate for finalization in count 2.