OTENG vs. THE STATE [1966]DLSC1737

Date	1966-05-13
Suit No.
Citation No.	[1966]DLSC1737

OLLENNU JSC

APALOO JSC

BRUCE-LYLE J.S.C.

I. AMOO-LAMPTEY FOR THE APPELLANT.

GYEKE-DAKO SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1966]DLSC1737
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													<main id="main" class="content" style="min-height: 60rem" >OTENG <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 352<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
13 MAY 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

I. AMOO-LAMPTEY FOR THE APPELLANT.<o:p></o:p>

GYEKE-DAKO, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, APALOO AND BRUCE-LYLE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The appellant was convicted by the
District Court, Nsawam, on two counts, namely, (i) careless driving, contrary
to section 18 (1) of the Road Traffic Ordinance,1 and (ii) negligently causing
harm, contrary to section 72 of the Criminal Code, 1960.2 He appealed from his
conviction to the High Court, Accra, but his appeal was dismissed. He thereupon
appealed to this court on five grounds the substance of all of which, taken
together, is that the prosecution failed to prove any carelessness or
negligence on the part of the appellant, and consequently the trial district
court magistrate misdirected himself in holding that the accident was caused by
the appellant swaying his car to the left in the course of overtaking a scooter
ridden by the victim of the accident.<o:p></o:p><o:p>&nbsp;</o:p>The
accident which resulted in the two charges occurred at mile 24 on the
Accra-Suhum road while the appellant, driving a Volkswagon car was overtaking
the scooter. According to the case for the prosecution which the trial district
court accepted, the front wheels of the appellant’s car had gone past the
scooter when the car brushed the side of the scooter as a result, the scooter
zig-zagged, and eventually the rider of it, now deceased and the second prosecution
witness, his son sitting behind him on the pinion, fell.<o:p></o:p><o:p>&nbsp;</o:p>For the
prosecution to succeed on the charge of careless driving they must prove that
the defendant drove his car in a manner which, in the language of section 8 of
the Road Traffic Ordinance, 1952, shows absence of due care and attention, or
want of reasonable consideration for other persons using the road; similarly,
for them to succeed on the charge of negligently causing harm, they must prove
acts or omissions on the part of the defendant which amount to carelessness. On
these issues the learned district magistrate directed himself, properly in our
view, when he said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On the
issue of careless driving and negligently causing harm it cannot be supposed
that merely because an accident has happened and somebody had been injured and
succumbed to his injuries, carelessness and negligence had in that sense arisen
and it must follow that the accused drove without due care and attention or
that he negligently caused harm. It is the duty of the prosecution to prove the
guilt of the accused beyond reasonable doubt.”<o:p></o:p><o:p>&nbsp;</o:p>Applying
this principle the trial district magistrate said: “The final issue to resolve
is whether it was the accused who drove to hit the scooter as he was overtaking
it or whether it was rather the scooter which was ridden to hit the accused’s
vehicle as it was being overtaken.” It is also worthy of note that in this
connection the learned district magistrate directed his attention to one of the
most important principles of our criminal law when he said: “The law would fail
to protect the community if it admitted fanciful possibilities to deflect the
course of justice.” In connection with this the trial district magistrate cited
Miller v. Minister of Pensions,3 where Denning J. (as he then was) explaining
what reasonable doubts, said: “If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be dismissed with the
sentence ‘of course it is possible, but not in the least probable,’ the case is
proved beyond reasonable doubt.” The most unfortunate thing is that the learned
district magistrate was misled by the law which he laid down, and the important
statement of Denning J. (as he then was) for he seemed to think that it is only
the community, i.e. the State, which must be protected and not the individual
as well and that as far as the individual is concerned he can be convicted of a
crime if there is just a possibility, and not even a probability that he has
committed an offence.<o:p></o:p><o:p>&nbsp;</o:p>One
significant respect in which our criminal law differs from our civil law is,
that while in civil law a plaintiff may win on balance of probabilities, in a
criminal case the prosecution cannot obtain convictions upon mere
probabilities. Even in a civil case where the probabilities are equal, i.e. the
case for the plaintiff is as probable as that for the defence,</main>