Fey v Queen (Criminal Appeal No. 2059 of 1953) [1954] EACA 166 (1 January 1954)

## APPELLATE CRIMINAL

#### Before SIR HECTOR HEARNE, C. J.

## VENN FEY, Appellant

$\mathbf{v}$

# THE QUEEN, Respondent

### Criminal Appeal No. 2059 of 1953

Criminal Law—Traffic Ordinance, Cap. 232—Section 17—Driving in manner Dangerous—Off wheels over centre line—Whether on wrong side of road— Standard of proof—Whether negligence must be so great that if death caused it would amount to manslaughter—Whether guilty of offence irrespective of whether or not committing error of judgment.

The accused was charged with driving a motor vehicle to the common danger contra section 17 of the Traffic Ordinance (Cap. 232). The magistrate found that the accused's car, while being driven on the wrong side of the road, came into collision with an oncoming car well over on its correct side and convicted. On appeal this finding was not challenged; but it was submitted that even if the off-wheels of the appellant's car were across the centre line of the road, this in itself did not amount to driving on the wrong side of the road; before any such finding it must first be proved that the car was either completely or at least substantially on its wrong side of the road. It was further submitted that although the appellant for complete safety should have moved to the left side of the road more quickly, he was guilty of an error of judgment but not of dangerous driving

Held (2-3-54).—(1) To support a conviction for dangerous driving negligence need not be so great that if death had been caused the driver would have been guilty of manslaughter.

(2) If a driver is not exercising that degree of care and attention which a reasonably prudent driver would have exercised in the circumstances, he can be convicted of dangerous driving irrespective of whether or not he was committing an error of judgment.

(3) A driver may be convicted of dangerous driving even though such driving be due to an error of judgment.

(4) On the facts found by the magistrate the appellant was correctly convicted.

Appeal dismissed.

Cases cited: Andrews v. Deputy Public Prosecutor, (1937) A. C. 576; Simpson v. Peat, (1952) 1 A. E. R. 447.

MacAllan for the appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of an offence contra section 17 of Cap. 232. The particulars of the charge were that he drove a motor-car in a manner which was dangerous to the public in that he drove it on the wrong side of the road when approaching an oncoming car. He was also convicted of an offence contra section 49 (a) of Cap. 232 in that he failed to keep to the left or near side of the road when approaching a car proceeding in the opposite direction.

The advocate for the appellant informed the court that his client was not appealing from the conviction *contra* section 49 (a). $\frac{1}{2}$

Ground 2 in the petition of appeal was specifically abandoned. Before dealing with the main ground of appeal I would refer to what was said on the subject of speed. In his judgment the magistrate said: "The accused states he saw Gordon's headlights about 300 to 400 yards away": the record reads: "I first saw the glow of lights from an approaching car and then the actual headlights about 300 to 400 yards away": and the appellant's advocate states that what the appellant said was: "I saw the glow of headlights about 300 to 400 yards away and the actual headlights about 40 yards away". It was argued that by reason of a wrong recording by the magistrate of the appellant's evidence, he deduced that the appellant was travelling much faster than he was. The advocate's recollection of the appellant's evidence is of course contrary to the record, but it does not appear that much turns on it. The magistrate did not find that the appellant was travelling at an excessive speed. He found that the appellant was travelling faster than Mr. Gordon (the driver of the oncoming car) and he addressed his mind to the main point in the case—whether the appellant was travelling on his wrong, i.e. off-side of the road.

In his judgment the magistrate said: "On the evidence before me I find that the impact occurred on the appellant's wrong side of the road and that P. W.2, Mr. Gordon, was well over to his correct side". I do not think that the finding of fact can be challenged and it was not in fact challenged. But two submissions were made to me. The first was that even if the off-wheels of the appellant's car were off the centre of the road and therefore on the appellant's wrong side (off-side) of the road, it cannot be said that he was on the wrong side of the road. "To be on the wrong side of the road" it was said the appellant's car must be completely on its right-hand side or substantially on the right-hand side". With this I do not agree. The second was that while admitting the appellant should have moved to his left more quickly and while also admitting that for complete safety he should have gone well over to his left-hand side of the road. he was guilty of an error of judgment but not of driving in a manner which was dangerous to the public. In order to convict of driving in a manner dangerous to the public it is necessary "that the appellant should have been guilty of recklessness".

If by the last remark the appellant's advocate meant that it was necessary to prove that the appellant's driving was so reckless that if he had caused death, he would have been guilty of manslaughter, I would refer to a passage in the judgment of Lord Atkin in the case of Andrews v. D. P. P., (1937) A. C. 576 at 584, Lord Atkin said: "I cannot think of anything worse for users of the road that the conception that no one could be convicted of dangerous driving unless his negligence was so great that if he had caused death he must have been convicted of manslaughter".

In regard to the argument about the appellant being guilty of an error of judgment. I would refer to the case of Simpson v. Peat, (1952) 1 A. E. R. 447, in which it was held that "if the driver was not exercising that degree of care and attention which a reasonably prudent driver would have exercised in the circumstances, he was guilty of the offence charged irrespective of whether or not he was committing an error of judgment". In citing this case Archbold at page 990 says: "a driver may be convicted of careless (and semble dangerous) driving even though such driving may be due to an error of judgment.

On the facts of the case believed by the magistrate I am of the opinion that he came to a correct conclusion, and I dismiss the appeal. I think, however, that no separate fine should have been imposed in respect of the conviction contra section 49 (a) of Cap. 232 and it is set aside. The fine of Sh. 1,000 in respect of the conviction contra section 17 of Cap. 232 is maintained.