REPUBLIC v SAMWEL SHEPUA 1984 TLR 148 (HC)

REPUBLIC v SAMWEL SHEPUA 1984 TLR 148 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

August 5, 1983

CRIMINAL REVISION 12 OF 1983 C

Flynote

Road Traffic - Causing bodily injury through dangerous driving - Road Traffic Act

1973 ss. 40(1) and D 63(2)(a) - Circumstances constituting the offence.

Road Traffic - Causing bodily injury through dangerous driving - Whether

disqualification from driving mandatory.

Criminal Law -Mens rea - Whether necessary on a charge of dangerous driving

causing bodily harm under E s.s 40(1) and 42(1)(b) of the Road Traffic Act 1973.

Road Traffic - Requirement to report accident within twelve hours - Whether

absolute - Road Traffic Act 1973, s.52(2)(b).

Criminal Practice and Procedure - Charges - Charge of causing bodily injury through

dangerous driving F brought under s. 42(1)(b) instead of s.40(1) of the Road Traffic

Act 1973 - Defective.

-Headnote

The respondent was convicted on his own plea of guilty to two charges. The first

offence was causing bodily injury through dangerous driving. The second, as failure

to report an accident G contrary to sections 57(2)(b) and 63(2)(d) of the Road Traffic

Act 1973. The trial court did not order cancellation of the driving licence. In

mitigation the respondent had pleaded before the trial court lack of intention to

commit the offence. In the exercise of its revisionary powers the High Court had H

the following issues to consider:

First whether the charge of causing bodily injury through dangerous driving could be

brought under ss. 42(1)(b) of the Road Traffic Act 1973. Second, whether on a

conviction for causing bodily harm through dangerous driving, the court has any

discretion to order or not to order the cancellation of a I driving licence. Third,

whether

1984 TLR p149

MUSTAFA JA

A intention to drive dangerously is a necessary ingredient of the offence of

dangerous driving; and fourth, whether the requirement to report an accident within

twelve hours is absolute.

B Held: (i) Where bodily injury is caused as a result of dangerous driving the charge

must be brought under sections 40(1) and 63(2)(a) of the Road Traffic Act 1973;

(ii) on conviction under sections 40 or 42 of the Road Traffic Act 1973

cancellation of the driving licence is mandatory; court has discretion only as regards

the period of cancellation;

C (iii) on conviction under Ss. 40 and 42 of the Road Traffic Act 1973 a court has

discretion to disqualify a driver from obtaining a licence for three years or a shorter

period, or not to disqualify him at all;

D (iv) mens rea is not a requisite ingredient of the offence of causing bodily

injury through dangerous driving under section 40 of the Road Traffic Act;

(v) the requirement for reporting an accident within twelve hours under

section 15(2)(b) is absolute except only where the driver is physically incapacitated by

the accident.

Case Information

E Conviction upheld.

V. Lyimo for the Republic.

[zJDz]Judgment

F Lugakingira, J.: In this case the accused was charged on two counts under the Road

Traffic Act, 1973. The first count alleged causing bodily injury through dangerous

driving and was laid under ss. 42 (1)(b) and 63(2) (b). The second count alleged

failure to report an accident c/ss 57 (2) (b) and G 63 (2) (d). The accused was on both

counts convicted on his own pleas of guilty and fined accordingly. I was not happy

with some features of the case and admitted it to revision.

The first count was laid under s. 42 (1) (b) but, as the framing of the provision

indicates, it has H nothing to do with dangerous driving in which bodily injury is

caused. It is concerned only with dangerous driving per se. Where bodily injury is in

fact caused as a result of dangerous driving the appropriate provision is s. 40 (1) and

the penalty provision is s. 63 (2) (a). Further, whether a person I is convicted under

s. 42 or s. 40 the law requires that his driving licence shall be cancelled and the

person shall be disqualified from obtaining any driving licence for a period of not less

than three years, unless

1984 TLR p150

MUSTAFA JA

for special reasons the court thinks it fit to order otherwise. It seems, however, that

the court's A discretion as regards cancellation or suspension of the licence is

exercisable only as to the period of such cancellation or suspension but cannot be

exercised to dispense with cancellation or suspension altogether. It is only with

regard to disqualification that the court may elect to make no order. There was no

order of cancellation or disqualification in this case and there was no reference B to

these matters. But while bringing these irregularities to the attention of the learned

trial magistrate, I do not propose to make any order or issue any directions having

regard to the simple and even the unknown facts of the case as a whole.

It was also noted that in mitigation the accused said that he did not intend to commit

the offence but C that it was purely accidental. Whether that meant that he did not

intend to drive dangerously or to cause injury, I do not know; but probably he meant

both. Well, all accidents are, I suppose, accidental. I agree with Mr. Lyimo that in a

charge of causing bodly injury through dangerous D driving the law does not look to

the driver's mind but it looks to his style, having regard to the circumstances

obtaining at the time. It is the fact of dangerous driving which is the basis of liability.

Once it is established that on the facts and circumstances of the case the driver's style

was uncalled E for, he cannot escape the consequences of that style. His culpability

lies in the abuse or non-use of his talents and not on any wish or non-wish in his

mind. I am therefore of the view that the mitigation in this case did not vitiate the

plea.

With regard to the second count the facts were that the accused reported the accident

five days F after it had occurred. My problem was whether he could have reported

it earlier since there was no indication as to how far the scene of accident was from

the nearest police station. But after studying s. 57 (2) (b) carefully, it seems that the

problem does not arise. The provision states that in the case G of an accident such as

the accused was involved in the driver has to report the same "as soon as reasonably

practicable and in any case not later than twelve hours" after the time it occurred,

unless he is incapable of doing so by reason of his own injuries. Having regard to the

words I have emphasised, it is evident that the provision is strict and leaves no room

for manoeuvre save where H the driver is physically incapacitated. The accused did

not allege such incapacitation; that being the case his conviction was justified in law.

All in all, I make no orders.

Conviction upheld. I

1984 TLR p151

A