118-NLR-NLR-V-42-LOURENSZ-v.-VYRAMUTTU.pdf
472
HOWARD C.J.—Lourensz v. Vyramuttu.
1941Present: Howard C.J.
LOURENSZ v. VYRAMUTTU.895—M. C. Trincomalee, 8,820.
Negligent or rash act to endanger human life—Proof of criminal negligence—
Onus on prosecution—Penal Code, ss. 272, 328 and 329.
The accused was charged with causing hurt, and grievous hurt bydoing one or more enumerated acts negligently so as to endanger humanlife and with driving a motor car in a manner so rash as to endangerhuman life by doing one or more of the enumerated acts. The Magistratefound that the accused drove the van too fast when approaching thejunction of two roads, that he had not kept a proper lookout at thisjunction and that he had driven the van on a prohibited road.
Held, that the prosecution had failed to discharge its onus of provingcriminal negligence. In order to establish criminal liability the factsmust be such that the negligence of the accused goes beyond a merematter of compensation and shows such a disregard for the life andsafety of others as to amount to a crime against the state and conductdeserving punishment.
.APPEAL from a conviction by the Magistrate of Trincomalee.
E. F. N. Gratiaen, for accused, appellant.
E. H. T. Gunasekera, C.C., for complainant, respondent.
Ctir. adv. vult.
May 15, 1941. Howard C.j.—
This is an appeal from a decision of the Magistrate, Trincomalee,convicting the appellant of (1) causing grevous hurt to one Sivapakkiamby doing one or more or all of certain enumerated acts so negligently asto endanger human life and thereby committing an offence punishableunder section 329 of the Penal Code; (2) causing simple hurt to the said
HOWARD C.J.—Lourensz v. Vyramuttu.
473
Sivapakkiam by doing one or more or all of the safd acts so negligentlyas to endanger human life and thereby committing an offence punishableunder section 328 of the Penal Code; (3) causing simple hurt to oneRainam by doing one or more, or all of the said acts so negligently as toendanger human life and thereby committing an offence punishable undersection 328 of the Penal Code; (4) driving motor van No. Z 7462 in amanner so rash as to endanger human life by doing one or more or all ofthe said acts and thereby committing an offence under section 272 of thePenal Code. The particulars of the negligent acts charged against theappellant were stated as follows: (a) by driving motor van No. Z 7462recklessly; (b) by driving the said van at an excessive speed; (c) by drivingthe said van at a speed that was too fast when approaching a junction of aminor road whilst you were driving on the minor road, to wit, Mill street,Trincomalee, and the main road being Court road, Trincomalee; (d) bynot keeping a proper look-out whilst you approached the said junction;
hy not sounding the horn when you approached the said junction;(/) by not taking proper precautions at the said junction; (g) by drivingthe said van along a road which is prohibited for such vans.
The Magistrate in finding the appellant guilty of charges under sections328, 329 and 272 of the Penal Code has held that, although it cannot besaid that the appellant has acted rashly, he has acted negligently and suchnegligence was gross and criminal. He has further held that in respect toMill street, Court road is the main road, that the appellant dro^e the vantoo fast when approaching the junction of these two roads, that he hasnot kept a proper look-out at this junction and has not taken properprecautions and has driven a van on a prohibited road. In arriving atthese conclusions the Magistrate has stated in his judgment that neitherthe appellant nor de Mel, the driver of the car with which the van collided,gives the correct version of what occurred. This factor, however, doesnot, so he states, entitle the appellant to an acquittal inasmuch as thecollision had left its tell-tale marks. From these marks the Magistratefinds that both vehicles were moving at the time of the impact, that, ifthe appellant had looked at the proper time to his left when he was goingto turn, he would have had a good view of Court road along which de Melwas coming, could have pulled up his van and so avoided a collision, andthat the ajppellant has driven his van at too fast a speed at the junction.The Magistrate draws the inference that the appellant was driving thevan at an excessive speed from the fact that the car driven by de Mel hadbeen pushed out of its way to the left.
It has been contended for the appellant by Mr. Gratiaen that on the -evidence the appellant could not be found guilty of criminal negligence.The law with regard to criminal negligence has been considered in a longline of English decisions amongst the more recent being that of the Houseof Lords in Andrews-v. Director of Public Prosecutions1. In giving thejudgment in that case Lord Atkin cited with approval the dictum of theLord Chief Justice in R. v. Bateman’ as follows:—■
“ In explaining to juries the test they should apply to determine
whether the negligence, in the particular case," amounted or did not1 106 LJ. K. B. 370. •1 94 LJ. K. B. 791.
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HOWARD C.J.—Lourensz v. Vyramutixi.
amount to a crime, Judges have used many epithets, such as * cul-pable ’,‘ criminal ‘ gross ’, ‘ wicked ‘ clear ‘ complete But
whatever epithet be used and whether an epithet be used or not,in order to establish criminal liability the facts must be such that, inthe opinion of the jury, the negligence of the accused went beyond amere matter of compensation between subjects and showed suchdisregard for the life and safety of others as to amount to a crime againstthe State and conduct deserving punishment. ”
After citing this dictum, Lord Atkin continued as follows: —
“The principle to be observed is that cases of manslaughter indriving motor cars are but instances of a general rule applicable to allcharges of homicide by negligence. Simple lack of care such as willconstitute civil liability is not enough; for purposes of the criminal lawthere are degrees of negligence and a very high degree of negligence is• required to be proved before the felony is established. Probably of allthe epithets that can be applied ‘ reckless ’ most nearly covers the case.”
I need hardly observe that the principle formulated for cases of man-slaughter is applicable to cases of grievous or simple .hurt caused bycriminal negligence.
In view of the principle laid down by the highest tribunal in Englandit is necessary to peruse the Magistrate’s judgment to discover whetherhe has addressed his mind to the question as to whether the negligence ofthe appellant as inferred from the marks on the vehicles and the road andthe evidence of the Examiner of Motor Cars amounted to the high degreerequired to be proved before thd offences of which the appellant wasconvicted were established. The Magistrate has found that the appellantwas driving his van at too high a speed and was not keeping a properlook-out to the left. There is, however, no real evidence as to the speedof either vehicle. In these circumstances it is impossible to say whether,even if the appellant had been keeping a proper look-out, the collisioncould have been averted. The onus was on the prosecution to establishcriminal negligence. In my opinion that onus has not been dischargedand the convictions of the appellant of charges under sections 328, 329and 272 of the Penal Code must-be set aside.
Mr. Gunasekera has contended that even if the evidence in this casedoes not establish criminal negligence it is open to me under the provisionsof section 183 of the Criminal Procedure Code to find the appellant guiltyof a minor offence. This section reads as follows: —
“ 183.(1) When a person is charged with an offence consisting of
several particulars a combination of some only of which constitutes acomplete minor offence and such combination is proved but the remain-ing particulars are not proved, he may be convicted of the minor offencethough he was not charged with it.
When a person is charged with an offence and facts are provedwhich reduce it to a minor offence he ,may be convicted of the minoroffence although he was not charged with it.
Nothing in this section shall be deemed to authorise a convictionfor any offence referred to in section 147 when no complaint has beenmade as required by that section.”
HOWARD C.J.—Banda v. Banda.
475
The section applies to cases in which the charge is of an offence whichconsists of several particulars, a combination of some only of whichconstitutes a complete minor offence. The evidence seems to indicatethat “ the appellant drove his van so as to cross a highway and soobstructed trafficAlso that “ he failed to take such action as was
necessary to avoid an accident But these acts are not particularizedin the charges as negligence on his part nor found as such by the Magis-trate. Such of the particulars as have been established against theappellant do not constitute a complete minor offence. In these circum-stances, I do not find myself in a position to apply the provisions of section183 of the Criminal Procedure Code and so find the appellant guilty ofa minor offence.
The conviction of the appellant is therefore' set aside and he isdischarged.
Set aside.