Philip v Rex (Criminal Appeal No. 274 of 1951) [1952] EACA 231 (1 January 1952)

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## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and AINLEY, J. (Uganda)

JAMES PHILIP, Appellant (Original Accused)

REX, Respondent (Original Prosecutor) Criminal Appeal No. 274 of 1951

(Appeal from the decision of H. M. High Court of Uganda—Pearson, J.) Criminal Law—Rash and Negligent Act—Section 220, Uganda Penal Code-

#### Degree of negligence required.

The appellant was convicted of a rash and negligent act *contra* to section 220, Uganda Penal Code, but acquitted of manslaughter and also of a rash and negligent act contra section 221 Penal Code. The appellant, who was not an authorized person, gave an order to switch on the electrical current, knowing that a gang of men were working on poles which were in fact connected to the area into which the current was switched. A linesman was killed as a result.

Held (15-1-52).—The appellant's negligence reached a standard justifying a conviction under-<br>section 220 Penal Code. Such negligence was culpable and more serious than would be required to fix him with civil liability, but need not be so high as would be required to prove manslaughter.

Appeal dismissed.

Cases referred to: Atia s/o Mepa v. Rex, Criminal Appeal No. 67 of 1949; Dabholkar v. The King, (1948) A. C. 221.

Holcam for appellant.

Walthers, Crown Counsel, Uganda, for Crown.

JUDGMENT (delivered by President and Vice-President).—The appellant was charged before the High Court of Uganda on an indictment which alleged the following offences: —

"Statement of Offence—First Count

Manslaughter contrary to section 182 of the Penal Code, 1950.

## Particulars of Offence

James Philip on or about the 24th day of September, 1951, at Kampala in the Mengo District of the Buganda Province unlawfully killed Wandere $s/o$ Otyela.

### Statement of Offence—Second Count

Rash and negligent act contrary to section 220 of the Penal Code, 1950.

## Particulars of Offence

James Philip on or about the 24th day of September, 1951, at Kampala in the Mengo District of the Buganda Province rashly and negligently authorized the switching on of electric current in a low voltage section of the electrical supply system in Kampala of which he was then in charge without previously taking proper precautions against probable danger resulting from that act.

# Or in the Alternative

Rash and negligent act contrary to section 221 of the Penal Code, 1950.

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## Particulars of Offence

James Philip on or about the 24th day of September, 1951, at Kampala in the Mengo District of the Buganda Province rashly and negligently ordered the closing of a low voltage switch of which he was then in charge without previously ascertaining the extent of the area of danger thereby created for persons at work upon the electrical supply system, as it was his duty to do, thereby causing injuries to Wandera s/o Otyela from which the latter died.'

The learned Judge acquitted the appellant of manslaughter and of the offence alleged in the third count. He found him guilty on the second count and imposed on him a fine of Sh. 1,000 or three months' imprisonment in default.

The short point for our consideration in determining this appeal is whether there was evidence before the learned Judge from which he could reasonably infer that the appellant's negligence was of a sufficiently serious character as to render him criminally liable of an offence against section 220 of the Uganda Penal Code. The learned Judge refrained from convicting the appellant of the felony of manslaughter because to use his own words "the negligence did not amount to that felonious disregard for human life and safety which amounts to manslaughter". He thought however that the negligence was culpable because, again we quote from the judgment: "He did not exercise 'reasonable care' required by section 195." Mr. Holcom has argued that this reference to section 195 was inapplicable since on a proper construction of that section it refers only to dangerous but lawful acts done to a specific person. Without in any way accepting this argument we find it unnecessary to decide this point because the learned Judge could more aptly, having regard to the circumstances of this case, have made reference to section 196 which reads as follows: -

"196. It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or<br>stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform that duty."

The appellant undoubtedly in his charge or under his control, an electrical switch which if used without reasonable care and reasonable precautions was a dangerous instrument. Both sections 195 and 196 fasten on a person failing to act with reasonable skill and care any consequences flowing from such failure. As pointed out by the judgment of this Court in *Atia s/o Mepa v. Rex* (Criminal Appeal 67 of 1949) the expressions "reasonable skill" and "reasonable care" used in these sections which form part of a Criminal Code must have assigned to them the meaning attached to them in English criminal law because per simpliciter an omission to have reasonable skill or to use reasonable care renders a person civilly liable for the consequences of the omission. In order to make a person criminally liable for such consequences the accused person's lack of reasonable skill or reasonable care must be something of a more serious character than that required to fix him with civil liability. We feel it safe to infer from the learned Judge's finding that the appellant's negligence was "culpable", that he was fully alive to this necessity and that he did not convict the appellant merely because there had been a lack of reasonable care. Both the

two European assessors were of the opinion that there had been no criminal negligence, but the reasonability of arriving at a finding on this issue was on the learned Judge. If he correctly directed himself as we think he did on the issue of culpability it was for him to draw the line and to find upon which side of it the appellant stood. If he had a reasonable doubt in his mind he would we feel sure have given the benefit of it to the appellant. Therefore the only question which we as an Appellate Court are now concerned with is whether there was evidence which can be said to support the learned Judge's finding.

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After a very careful consideration of all the facts and circumstances of this tragic accident we think there was such evidence. Firstly, the appellant knew that he was not "an authorized person"; he knew also that his superior Williams was the person responsible for the switching on of current. He knew also that a gang of the Company's employees were working on poles at one end of the Queen's Road line. He forgot, or did not know, that the feed back which ran along the Nakasera Road, a road roughly parallel to Queen's Road was in fact connected with Queen's Road by transverse wires which ran down a sanitary lane joining the two roads. He did not know that the deceased man was in fact working on the pole at the Queen's Road end of the sanitary lane to which the transverse wires from Nakasera Road were attached. The problem remains did this lack of essential knowledge arise from the appellant's failure to use reasonable care and to take reasonable precautions? We think the only reasonable inference is that it did. The appellant had plenty of time to assure himself of the exact area he was energizing and the exact whereabouts of the Company's employees, for consumers in the area had been told that they would be without current until 6 p.m. The appellant gave the fatal order to switch on about 5 p.m. There is no evidence that before doing so he refreshed his memory by the plan in his possession, a plan which may have been inaccurate and has never been produced in evidence. Neither is there evidence that he made inquiries as to the exact location of the men still working in Queen's Road. It is surprising we think that the appellant does not seem to have been asked whether he had ever observed the junction pole at the Queen's Road end of the sanitary lane. It seems to us difficult to believe that he had not because he had been working with his crew in Queen's Road earlier in the day. Taking all these circumstances into account we cannot resist the conclusion that the appellant should not have taken upon himself the heavy responsibility of switching on this deadly current without taking further instructions from his superior officer, and this is another way of saying that the negligence shown reached a standard which justified a conviction under section 220. Within the ambit of that section there can of course lie very many degrees of criminal negligence. That the degree reached by the appellant was a relatively low one is reflected in the almost nominal sentence imposed by the learned trial Judge.

As we have made reference to the Atia case (Criminal Appeal 67 of 1949) which was also an appeal from the High Court of Uganda, we think we should add that the difficulty in reconciling the wording of section 182 of the Uganda Penal Code (section 192 in Atia's case) with the English decisions concerning degrees of criminal negligence in relation to the offence of manslaughter still remains. However in the instant case as in Atia's case the Court of trial acquitted the accused of manslaughter and the only question for this Court is whether the conviction under section 220 is suportable. Here the decision of the Privy Council in *Dabholkar v. The King*, (1948) A. C. 221 which was an appeal from this Court upholding a conviction of the High Court of Tanganyika is clear authority for the proposition that to support a conviction under section 220, i.e. the doing of a rash or negligent act which endangers human life the prosecution need not in these Territories prove the same high degree of negligence as in a prose-

cution of manslaughter. Our only comment on that case is that it appears to have been one in which death did not in fact ensue, so that no point involving the construction of section 195 of the Tanganyika Penal Code which is the same as section 182 of the Uganda Code was before their Lordships.

For these reasons we have given we are not prepared to say that in the circumstances of this case the learned Judge arrived at a conclusion with which as an Appellate Court it is our duty to interfere.

The appeal is dismissed.

AINLEY, J. (Uganda).-I am in entire and respectful agreement with the decision to dismiss this appeal and that for the reasons given in the judgment delivered by the learned President. With the permission of the learned President. I add however that in my opinion the degree of negligence which must be proved before a conviction for manslaughter can be had in Uganda is, substantially, that high degree of negligence which must be proved in England in a case of manslaughter. I am also of the opinion that to achieve a conviction under section 220 of the Penal Code it is not necessary to prove this high degree of negligence. Something less will do, though the degree proved must transcend what may be termed "civil negligence". If then in a case where death has occurred by reason of negligence and there are alternative charges of manslaughter, and of misdemeanour under section 220, there is no inconsistency in acquitting of manslaughter and convicting of misdemeanour. It may well be that the remarks in the judgment concerning Atia's case were not intended to create uncertainty as to any of the propositions I have made, but I would say that I personally am in no doubt as to the rectitude of the propositions.