The People v Golden Mwape (HN 85/1970) [1970] ZMHC 10 (2 October 1970)

THE PEOPLE v GOLDEN MWAPE (1970) ZR 93 (HC) HIGH COURT CHOMBA AGJ 2nd OCTOBER 1970 HN 85/1970 5 Flynote Roads and road traffic - Dangerous driving - When offence not constituted. Headnote The accused was charged with causing death by dangerous driving contrary to s. 210 (1) of the Roads and Road Traffic Ordnance. The prosecution alleged that the accused was driving in an erratic manner and at an excessive speed. The accused put up the defence of mechanical 10 defect. He explained that the offside front tyre of his vehicle got punctured all of a sudden and that his efforts to control the car proved fruitless. The prosecution adduced no evidence to rebut the accused's explanation. Held: (i) A person who loses control of the vehicle either by reason of affliction to the person of the driver or by reason of a sudden 15 mechanical defect, cannot be said to be driving the vehicle and cannot be guilty of driving in a manner dangerous to the public. R v Spurge (1) and Hill v Baxter (2) followed. (ii) In the instant case when the accused lost control of his motor 20 vehicle after the tyre puncture, he was not a person driving. He was forced to resort to dangerous practice of braking because he was on the horns of dilemma and his action in this connection did not constitute dangerous driving. (iii) The prosecution failed to prove its case beyond reasonable doubt 25 and the accused would be acquitted. Cases cited: (1) R v Spurge, (1961) 2 QB 205; [1961] 2 All ER 688. (2) Hill v Baxter, (1958) 1 QB 277; [1958] 1 All ER 193; 122 JP 134. Legislation referred to: 30 Roads and Road Traffic Ordinance, 1959 (Cap. 173), s. 210 (1). Judgment Chomba Ag J: The accused in this case stands charged with the offence of causing death by dangerous driving contrary to s. 210 (1) of the Roads and Road Traffic Ordinance (Cap. 173) of the Laws of Zambia. The particulars of offence are that on the 2nd May, 1970, at Chingola in the 35 Chingola District of the Copperbelt Province of the Republic of Zambia he caused the death of John Bwanga by driving a motor vehicle Registration No. NC5348 on a road, namely Chingola/Kitwe road in a manner which was dangerous to the public, regard being had to all the circumstances of the case including the nature, condition and use of the road and 40 to the amount of traffic which was actually at the time or which might reasonably be expected to be on the road. He pleaded not guilty. 1970 ZR p94 CHOMBA Ag J The onus of proof lay throughout these proceedings on the prosecution to establish the accused's guilt beyond all reasonable doubt. Proof falling short of that standard is insufficient and any resulting doubt entitles the accused to acquittal. 5 The facts of this case lie within a short compass. On the 2nd May, 1970, the accused was the driver of the motor vehicle referred to above. He had as his passengers two men, namely Godfrey Chalwe, PW3, who was the owner of the vehicle, and John Bwanga, the deceased in this case and two women, namely Mary Kalaba, PW2, and Anna Joseph. Of the four 10 passengers Godfrey Chalwe and Mary Kalaba were the only witnesses called by the prosecution. It is alleged that while driving the said motor vehicle from Chingola to Kitwe on the Chingola/ Kitwe road, a public road, the accused was driving at an excessive speed which, according to the witness Mary 15 Kalaba was 80 m.p.h. and according to Godfrey Chalwe between 70 and 80 m.p.h. Two police officers, Acting Chief Inspector Weston Tirane PW4, and Assistant Inspector Moses Hangandu PW1, were on the same day travelling to Kitwe in a different car namely a Ford Cortina. These two police officers said that their car, which was doing 60 m.p.h., was 20 overtaken by the accused's motor vehicle which appeared to be travelling very fast. They both said that having overtaken their motor vehicle, the accused's car pulled to its correct side but then swerved from side to side before disappearing around a bend in the road. Godfrey Chalwe also stated that the accused drove the vehicle in a zig zag manner for a long 25 distance up to the point where he was involved in the accident whereby John Bwanga died. On the other hand Mary Kalaba categorically stated that apart from the excessive speed, the accused's manner of driving was faultless. There was also evidence that after the accident three tyres on the accused's motor vehicle were found to be punctured. In this regard 30 Assistant Inspector Hangandu said the only tyre that was not punctured was the near side rear tyre. The last named witness also produced a sketch plan of the scene of the accident and this shows skid marks of the accused's motor vehicle starting from his correct side to the right hand side and off the road into the bush. The 35 accused on the other hand denies on oath that he was driving his motor vehicle erratically as alleged against him; states that the only time when he exceeded the 60 m.p.h. speed limit was at the time he was overtaking the car in which the police officers were travelling, and said that he estimated the speed of the vehicle he overtook to be about 50 40 m.p.h. As regards the cause of the accident, the accused contends that the offside front tyre suddenly got punctured, thus depriving him of total control of the motor vehicle, despite that he changed down his gears from third to second and also applied his brakes. I may here state right away that on the question of the alleged 45 erratic driving of the vehicle by the accused I entertain a doubt. As I have earlier stated, although there are three prosecution witnesses who made such an allegation, another prosecution witness namely Mary 1970 ZR p95 CHOMBA Ag J Kalaba, who was moreover a passenger in the accused's car disputed the allegation. Mary Kalaba did not impress me as an out and out liar and therefore her evidence, which is contradictory to that given by acting Chief Inspector Weston Tirane, Assistant Inspector Moses Hangandu and the other passenger Godfrey Chalwe, casts doubt on the validity of 5 the allegation. I therefore come to the conclusion that there is insufficient evidence to prove positively that the accused's manner of driving was erratic. If the accused's driving was dangerous then it must have been dangerous only by reason of the alleged excessive speed. On this question 10 all the prosecution witnesses concurred. Mary Kalaba said that from time to time she looked at the speedometer and it was registering 80 m.p.h. Godfrey Chalwe, the owner of the vehicle, said that the speedometer was in working order and that in his estimation the accused's speed was between 70 and 80 m.p.h. Acting Chief Inspector Tirane, who was the 15 driver of the Ford Cortina, said he was driving at 60 m.p.h. and that when the accused's vehicle overtook him the accused's motor vehicle appeared to be travelling very fast. Although the accused denied travelling at a speed in excess of 60 m.p.h., another aspect of his evidence lends support to the evidence by the prosecution witnesses that his speed was 20 as alleged by them. This is because if, as he said, Acting Chief Inspector Tirane's car was in his opinion travelling at about 50 m.p.h., and if at that time he himself was travelling at 60 m.p.h., there was no need for him to accelerate in order to overtake Acting Chief Inspector Tirane's car. In fact, I accept the evidence of Acting Chief Inspector Tirane as 25 corroborated by his passenger Moses Hangandu that Acting Chief Inspector Tyrane's motor vehicle was travelling at 60 m.p.h. The accused was therefore able to overtake and leave Inspector Tirane behind for quite a while because the accused's speed was very much in excess of 60 m.p.h. By the second schedule to the Roads and Road Traffic (Speed Limits) 30 Regulations, made under s. 203, Cap. 173, any motor vehicle which is not included in classes 1 to 10 in the first schedule thereto must, when travelling outside the area of a local authority on any road having a bituminous surface coat of twenty feet or more in width, not exceed a speed of 60 m.p.h. For that reason I find that the accused was breaking the law by 35 travelling at a speed in excess of 60 m.p.h. on the Chingola/Kitwe road, outside the municipal areas of Chingola and Kitwe. The crux of the matter however is whether the accident in which the luckless John Bwanga, the deceased, died, resulted from the speed at which the accused was travelling. The accused's explanation for the 40 accident is that the offside front tyre got punctured all of a sudden and his efforts to control the car proved fruitless. On the other hand the prosecution appear to contend that the accused lost control of his motor vehicle because of the excessive speed. In order to justify that contention, Mr Lewanika, the state advocate, sought to lead opinion evidence to 45 suggest that the puncture of the tyres on the accused's motor vehicle as noticed subsequent to the occurrence of the accident, took place after 1970 ZR p96 CHOMBA Ag J the accused had lost control of the motor vehicle. I disallowed the adduction of that kind of evidence because in my view, Assistant Inspector Moses Hangandu who was asked to give such opinion was not qualified to express that opinion albeit that he has had six years' experience as a 5 traffic officer and although during that experience he may have dealt with numerous traffic accidents. Having disallowed such evidence I find that so far as the prosecution is concerned, except as stated later, no explanation, apart from the speeding aspect, can be offered to account for the accident. 10 In my considered opinion it is difficult in the particular circumstances of this case to overrule the accused's contention that he lost control of the motor vehicle because of the puncture as it is an undisputed fact that in its post - accident condition the motor - car had three punctured tyres, including the front offside one. I may observe here that from the 15 time of his arrest by Sub Inspector Kabamba Kachinka, PW6, of the Chingola Traffic Police, the accused has attributed the accident to the tyre puncture. It should therefore have occurred to the prosecution that the accused was at his trial going to plead "mechanical defect", a defence which was recognised by Salmon, J., in R v Spurge (1) who stated at pp. 20 210 and 211: "If however a motor car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame - if, for example, he suddenly had an epileptic fit or passes into a coma, or is attacked by 25 a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public . . . There does not seem to this court to be any real distinction between a man being suddenly deprived of all control of a motor car by some sudden affliction of his person and being so 30 deprived by some defect suddenly manifesting itself in the motor car. In both cases the motor car is suddenly out of control of its driver through no fault of his." Having been made aware of the accused's probable defence the prosecution ought to have investigated the case appropriately, by having the accused's 35 accident motor car mechanically examined by an expert. The opinion evidence of such an expert as to the probable cause of the accident would have been more weighty than would have been the evidence of traffic police officer Hangandu. If one accepts the accused's plea of mechanical defect, then the 40 decision must inevitably be that the accident was in no way due to any fault on his part or alternatively the accused's explanation must create a real doubt in the mind of the court as to the cause of the accident. Further, in my opinion, it cannot be contended dogmatically, as the prosecuting counsel seems to have done, that if the accused's speed was 60 m.p.h. he 45 would have been able to control the car if placed in the situation in which he found himself as a result of the tyre puncture. I believe that even at 60 m.p.h. it is possible that some drivers, though experienced, could lose control of a car if there was a sudden puncture of a front wheel. 1970 ZR p97 CHOMBA Ag J Another possible cause of the accident suggested by Mr Lewanika, in so far as I could discern from his cross - examination of the accused, was that if it is accepted that the accused lost total control of the motor car by the sudden puncture of the tyre, as stated above, the fact that the accused, as he himself said under cross - examination, in order to regain 5 control applied brakes constituted danger, because a motor car inevitably overturns if forced to stop suddenly in such an emergency. I accept that it is trite knowledge that it is dangerous to brake suddenly a speeding motor car which is out of control by reason of a tyre puncture. The question however is whether a driver who manages his motor car in such a manner 10 could be said to be driving at the time of so managing it. For an answer to this question I need only refer to the dictum of Lord Goddard, C. J., in Hill v Baxter (2). That distinguished judge said, in dealing with a driver who loses total control of his motor car (see p. 283 ibid): "I agree that there may be cases where circumstances are such 15 that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called acts of God; he might be in the driver's seat even with his hands on the wheel, but in such a state of unconsciousness that he could not be said to be driving." 20 Adverting to the equation introduced by Salmon, J, in the Spurge case, supra, between loss of control by reason of affliction to the person of the driver and loss of control by reason of a mechanical defect, I find in this case that when the accused lost total control of his motor vehicle after the tyre puncture, he was not a person driving. He was forced to resort 25 to the dangerous practice of braking because he was on the horns of dilemma, so to speak. I therefore come to the conclusion that his action in this connection did not constitute dangerous driving. For the foregoing reasons I feel that there is a grave doubt, even accepting that the accused was at the material time travelling at a speed 30 in the range 70 - 80 m.p.h., as to whether it was his manner of driving which was the substantial cause of the death of the unfortunate deceased. In the result I find that the prosecution has not proved its case beyond reasonable doubt. Therefore I grant to the accused the benefit of the doubt I entertain in my mind and so acquit him of the charge. I order his 35 release forthwith. Accused acquitted