106-NLR-NLR-V-63-M.-SELLADORAI-Appellant-and-THE-QUEEN-Respondent.pdf
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Selladorai v. The Queen
1961Present : Sansoni, J., and H. N. G. Fernando, J.M. SELLADORAI, Appellant, and THE QUEEN, Respondent
S. C. 50—D. C. (Criminal) Negombo, 4,587
Negligence—Charge of driving rashly—Evidence that driver was under the influence ofliquor—Admissibility—Evidence in rebuttal to impeach credit of accused—A dmissibility.
In a prosecution for causing the dea th of a person by rash driving the merefact that the accused was smelling of liquor at the time of the accident is not ofitself relevant. Evidence as to the drink taken by the driver, to be admissible,“ must tend to show that the amount of drink taken was such as wouldadversely affect the driver, or, alternatively, that the driver was in factadversely affected.”
Evidence of admissible admissions made bv an accused that could have beengiven before the prosecution was closed cannot be given as evidence in rebuttalto impeach the credit of the accused.
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8ANSONX, J.—SeUadorai v. The Queen^PPEATi from a judgment of the District Court, Negombo.
O. E. Chitty, Q.C., with K. Sivasiibramaniam, for the accused-appellant.Shiva Pa&upati, Crown Counsel, for the Attorney-General.
Cur. adv. vtdt.
October 18, 1961. Sansoni, J.—
The accused was indicted with having caused the death of a woman bydoing one or more rash acts which were specified, or by doing one or morenegligent acts which were also specified in the indictment. The learnedDistrict Judge found the accused guilty but he has not stated whetherhe found him guilty of doing a rash act or a negligent act. He does,however, say earlier in his judgment that the accused had driven hiscar in a reckless manner, so I shall assume that he found the accusedguilty of driving rashly, because one of the rash acts specified in theindictment is that the accused drove recklessly.
The case for the prosecution was that the accused drove along theColombo-Negombo road in the direction of Negombo, and hit the deceasedwoman who was walking in the opposite direction along a foot-pathrunning parallel to the road but on the accused’s right hand side. Theprosecution witnesses also spoke to the accused having driven at a highspeed. For no reason that appeared from their evidence, the accusedappears to have driven across the road from his correct side, hit thewoman, struck against two trees which were standing off the road,and then come back to his correct side to halt his car. But therewas one prosecution witness who said that while he was riding on thepillion of a motor cycle travelling towards Xegombo, the accused overtookhim and then went to his correct side. He said that the accused thensuddenly crossed towards the right hand side, struck some trees and thencrossed again to his correct side. On looking towards the trees he saw awoman lying fallen in a drain. He estimated the speed of the car at30 or 35 m.p.h. and did not notice anything peculiar about the way thatthe accused was driving.
The accused’s version was that after he overtook the motor cycle hetook his car to his correct side. The woman then came from his lefthand side on to the road, and to avoid her he swerved to the rightand she was knocked by the car and thrown some distance. He lostjcontrol of his car which crashed into two trees. He” then drove back tohis correct side. He denied that- he had hit the woman when she waswalking on the foot-path.
In this state of the evidence the learned Judge very correctly askedhimself the question as to why the accused suddenly went off the road,
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SANSONI, J.—-Selladorai v. The Queen
for it is common ground that the accused who was travelling on hiscorrect side suddenly crossed the road. In answering that questionthe learned Judge makes two findings :
that the car was driven at an excessive speed, and
that the accused was driving under the influence of liquor and was
not able to control the car.
1 do not think that either finding can be supported on the evidence.The learned Judge accepted the evidence of the witness who said that theaccused was driving at 30 or 35 m.p.h. very shortly before tho accidentoccurred. The other prosecution witnesses who said that the accusedwas driving at a high speed were not in as good a position to estimatethe speed at the crucial time. No doubt the woman sustained seriousinjuries, and the learned Judge thought that this was an additional reasonfor holding that the accused, was driving at an excessive speed. Buteven at a speed of 30 or 35 m.p.h. those injuries could well have beencaused to any person who was hit by a car.
I think the finding that the accused was under the influence of liquorand was not able to control the car has been made without any evidenceto support it. When the accused arrived at the Police Station shortlyafter the accident the Inspector found him to be smelling of liquor. Hetherefore sent the accused to the doctor who also found him to be smellingof liquor. The accused said that he had drunk a bottle of beer about5 or 6 hours earlier. Nobody has spoken to the accused having consumeda large quantity of liquor, nor has anybody spoken to the accused showingany signs of being under the influence of liquor. As we have had severalcases recently where evidence of the accused being found to be smelling ofliquor, and nothing more, has been led, I think it would be useful if Idrew attention to the recent decision of the Court of Criminal Appeal inEngland in R. v. Me Bride a. That was a case where the accused wascharged with having caused the death of a person by dangerous driving.The judgment of the Court of five Judges contains the following observa-tions, which I have extracted from the judgment:—
£f If a driver is adversely affected by drink, this fact is a circum-
stance relevant to the issue "whether he was driving dangerously.53
“ The mere fact that the driver has had drink is not of itself rele-
vant. 55
Evidence as to the drink taken by the driver to be admissible
“ must tend to show that the amount of drink taken was suchas would adversely affect the driver or, alternatively, that thedriver was in fact adversely affected. 35
The Court has an overriding discretion to exclude such evidence
if its prejudicial effect outweighs its probative value. “ If suchevidence is to be introduced, it should at least appear ofsubstantial weight. 33
'{1961) 3 W. L. It. 549.
BASUATAKJE, C.J.—Wickremaralna v. Josephine Silva
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I feel sure that if the learned Judge had been aware of these rules hewould have excluded all evidence relating to the accused smelling ofliquor. There is no doubt that, having admitted it, he has erroneouslydrawn the inference that the accused was under the influence of Jiquorat the time of the accident. Such a finding has undoubtedly prejudicedthe accused. The accused was cross-examined as to whether be hadtold the police that he had two bottles of toddy at noon that day. Hedenied that he said so to the police, and evidence in rebuttal was calledto prove that he had said so to the police. This should not have beenallowed. Evidence of admissible admissions made by an accused thatcould have been given before the prosecution was closed, cannot be givenas evidence in rebuttal to impeach the accused’s credit : see Thuraisamyv. The Queen x.
I would set aside the conviction and acquit the accused.
H. N. G. Fernando, J.—I agree.
Appeal allowed.