MWELWA v THE PEOPLE (1975) Z.R. 166 (S.C.

SUPREME COURT

BARON, DC.J., GARDNER AND HUGHES, JJ.S.

11TH JULY, 1975

S.C.Z. JUDGMENT NO 25 OF 1975

Flynote

Evidence - Opinion evidence by non-expert witness - Whether court should

permit - Whether court may rely unfactual evidence of such witness.

Roads and road traffic - Special defence - Mechanical defect and, skid - Pre
requisites to be satisfied before defence available - Onus of proof - When
special defence sufficiently raised.

Roads and road traffic - Driving licence - Cancellation - Necessity to couple

with disqualification - Earning living by driving - Whether "special reason" for
purposes of s. 122 of Roads and Road Traffic Act.

Roads and road traffic - Driving licence - Cancellation and disqualification,

or suspension - To be regarded as part of total sentence - Effect of amount of
fine or period of custodial sentence on period of disqualification or suspension
to take effect beyond expiration of custodial sentence.

Headnote

The appellant was convicted in the High Court of causing death by dangerous
driving. The appellant was the driver of a truck and was carrying seven
passengers, of whom some were in the cab with him and others in the back.
During the journey the appellant stopped at a bar and stated he was going to
drink some beer; thereafter the journey continued and at a bend the truck left
the road and after travelling a further 292 feet, including crossing a side road,
overturned. One of the passengers died as a result of injuries received in the
accident.

The trial judge found (1) that the appellant was driving too fast to control his
vehicle, (2) that he had taken more beer than he should have done and was
not as sober as he should have been, and (3) that he disregarded a road
warning sign. Counsel for the appellant advanced two grounds for appeal:
first, that the witnesses who gave evidence as to the amount of alcohol did not
accompany the appellant to the bar and therefore were giving opinion evidence
as to his sobriety; second, that the witnesses were equally giving opinion
evidence as to speed. In respect of both aspects counsel submitted that the
evidence in question being opinion evidence was not admissible and should
not have been relied upon. Counsel submitted also that the accident may have
happened as a result of some mechanical defect or because of a skid.

The appellant was sentenced to three years' imprisonment with hard labour
and his driving licence was cancelled. He appealed against both conviction
and sentence.

Held:

(i) Witnesses who do not qualify as experts should not be permitted to give
their opinion on the very issues which the court is called upon to decide; but
in order to arrive at its decision the court is entitled to rely on factual evidence
given by non-expert witnesses.
(ii) The witnesses in question did not give their opinion as to the appellant's
condition but gave factual evidence of what they had seen and heard and
smelt; individual witnesses said variously that the appellant staggered, that
he was talking loudly and that he smelt of beer, and this was factual endence
from which the court was entitled to draw a conclusion.

(iii) On the factual evidence before him the trial judge's conclusion that the
appellant was driving too fast to negotiate the corner was the only possible
conclusion to which he could have come.

(iv) A mechanical defect and a skid are both special defences. There are
therefore two important pre-requisites which must be satisfied: first, there
must be no fault on the part of the driver and secondly, the defence must be
set up.

Mullan v The People [2] applied.

(v) Once a special defence is set up the onus is on the prosecution to

negative it, but the court is not called upon to consider purely speculative
defences in respect of which there is no evidence whatsoever.

(vi) A special defence is sufficiently raised if the explanation in question is

given to the police or other persons at the scene, or subsequently to the police,
or in evidence in court.

(vii) An order for the cancellation of a driving licence must be coupled with
a disqualification for a stated period.
(viii) The fact that a man earns his living by driving is not a "special reason"
for the purpose of section 122 of the Roads and Road Traffic Act, Cap. 766,
enabling the court to refrain from imposing what would otherwise be a
mandatory suspension; a circumstance peculiar to the offender is not a
"special reason".

(ix) Cancellation of driving licence and disqualification, or suspension, are

part of the total sentence, which must be considered as a whole. In
considering the amount of a fine and the period of disqualification or
suspension the court must have regard to the fact that they are parts of the
total punishment; equally in considering a custodial sentence the court must
consider it as to be disqualification or suspension, and the extent of the one
must be taken into account in considering the extent of the other.

(x) It is not necessary, save where the custodial sentence is for a shorter
period than the minimum period of a mandatory disqualification or
suspension, that any such disqualification or suspension must be of such a
length as to take effect beyond the time when the sentence of imprisonment
has been served.

R v Phillips [9] and Sichone v R [10] disapproved.

Cases referred to:

(1) R v Davies (1962) 3. All E.R. 97.

(2) Mullan v The People (1971) S.J.Z. 110.

(3) R v Spurge (1961) 2 All E.R. 193.

(4) R v Skarmpal Singh (1962) A.C. 188.

(5) Whittal v Kirby (1946) 2 All E.R. 552.

(6) R v Jacksoon (1969) 2 All E.R. 453.

(7) R v Steel 17th June 1968, unreported.

(8) Matongo v the people (1974) Z.R. 164 (S.C.)

(9) R v Phillips (1955) 3 All E.R. 273.

(10) Sichone v R (1962) R. & N. 20.

Legislation referred to:

Roads and Road Traffic Act, Cap 766, s 122.

Roads and Road Traffic (Amendment) Act, No 42 of 1971.

For the appellant: G.M. Sheikk, Senior Legal Aid Counsel.

For the respondent: S.C.Heron, Assistant Senior State Advocate.

Judgment

BARON, DCJ.: delivered the judgment of the court.

In this case at the conclusion of the hearing we dismissed the appeal against
conviction and allowed the appeal against sentence and indicated that we
would give our detailed reasons later.

The appellant was convicted in the High Court of causing death by dangerous
driving. The facts shortly are that on 1st July, 1973, the appellant was the
driver of a Mercedes truck and was carrying seven passengers, of whom some
were in the cab with him and others in the back. During the journey the
appellant stopped at a bar and according to the witnesses stated that he was
going to drink some beer; thereafter the journey continued, and at a bend the
truck left the road and after travelling a further 292 feet, including crossing a
side road, overturned. One of the passengers died as a result of injuries
receded in the accident.

The learned trial judge found (1) that the appellant was driving too fast to
control his vehicle, (2) that he had taken more beers than he should have
done and was not as sober as he should have been, and (3) that he disregarded
a road warning sign. Mr Sheikh on behalf of the appellant advances two
grounds of append against conviction. First, that the witnesses who gave
evidence as to the consumption of alcohol did not accompany the appellant
to the bar and were therefore giving opinion evidence as to his sobriety;
second, that the witnesses were equally giving opinion evidence as to speed.
In respect of both of these aspects Mr Sheikh submits that the evidence in
question, being opinion evidence, was not admissible and should not have
been relied upon by the learned judge.

In support of these submissions Mr Sheikh cited a number of cases, but it is

necessary to refer to only one,

R v Davies [1], where Lord Parker, do C.J., sitting in the Courts Martial Appeal
Court, said this at page 98:

"It is to be observed that the witness was allowed to speak as to two

matters which are quite distinct; one is what his impression was on whether
drink had been taken by the appellant, and the second was his opinion
whether, as a result of that drink, he was fit or unfit to drive a car. The court
has come clearly to the conclusion that a witness can quite properly give his
general impression whether an accused had taken drink. He must describe,
of course, the facts on which he relies, but it seems to this court that he is
perfectly entitled to give his impression whether drink had been taken or not.
On the other hand, as regards the second matter, it cannot be said . . . that a
witness, merely because he is a driver himself, is in the expert witness
category so that it is proper to ask him his opinion as to fitness or unfitness
to drive. That is the very matter which the court itself has to determine.
Accordingly, in so far as these witnesses gave their opinion as to the
appellant's ability or fitness to drive, the court was wrong in admitting their
evidence.''

It is quite clear that witnesses who do not qualify as experts should not be
permitted to give their opinion on the very issues which the court is called
upon to decide; but in order to arrive at its decision the court is entitled to
rely on factual evidence given by non-expert witnesses. It is to be observed
also that in the present case the issue was not whether the appellant was so
affected by drink as to be incapable of having proper control of his vehicle;
the charge was causing death by dangerous driving. The learned judge found
that he was not as sober as he should have been, the implication being that
his faculties had been affected by alcohol. The learned judge was clearly
entitled on the evidence to come to this conclusion. The witnesses did not
give their opinions as to the appellant's condition but gave factual evidence of
what they had seen and heard and smelt; individual witnesses said variously
that the appellant staggered, that he was talking loudly, and that he smelt of
beer. This i factual evidence from which the court is entitled to draw a
conclusion.

Similar comments apply in relation to Mr Sheikh's submissions as to the

evidence concerning speed. The learned judge clearly relied for his conclusion
on the evidence of the police officer who prepared a sketch plan. The plan was
stated not to be to scale, but the salient pieces of evidence given by the officer
as depicted on the plan were not challenged, namely that at the point where
the truck left the road there was a left hand bend, that tyre marks commenced
on the right hand side of the road and continued across a side road to the
point where the truck overturned, that the total length of the tyre marks was
292 feet, and that some 500 feet before the commencement of the tyre marks
there was a "Sharp Bend" sign and 200 feet later a "Road Junction" sign. On
this evidence the learned judge came to the conclusion that the appellant was
driving too fast to negotiate the corner and in our view this is the only possible
conclusion to which he could have come on the evidence before him.

Mr Sheikh submits that the accident may have happened as a result of some
mechanical defect or because of a skid. A mechanical defect and a skid are
both special defences (see Mullan v The People [2] at page 96).

There are therefore two important pre-requisites which must be satisfied

before such a defence is available. First, there must be no fault on the part of
the driver; secondly the defence must be set up. As to the first, in Mullan's
case [2] I said this at page 96:

"Just as the defence of mechanical defect has no application where the

defect is known to the driver or should have been discovered by him had he
exercised reasonable prudence, so the defence of a skid is not available unless
it took place without any fault on the part of the driver."

As to the second, once a special defence is set up the onus is on the

prosecution to negative it. But it nest be set up; the court is not called upon
to consider purely speculative defences in respect of which there is no
evidence whatsoever. In Mullan's case [2] the defence of a skid was at least
put forward, but the accused there made no effort to explain it.
We quote again from what I said in that case at page 96:

"There was evidence in the present case that the car was out of control,
and the magistrate so found, and the defence of a skid was put forward; this
must therefore be considered with the rest of the evidence and, in the words
of Salmon, J (in R v Spurge [3]), 'if the accused's explanation leaves a real
doubt in the mind of [the court]' he is entitled to be acquitted. These few words
pin point the crucial principle. It is not enough simply to put forward a special
defence; it must also be explained. If the appellant had given an explanation
which might reasonably have been true he would have been entitled to be
acquitted; but he gave no explanation at any time - not at the scene, nor
subsequently to the police, nor in court - and in this regard I draw attention
once again . . . to the words of Lord Devlin in R v Sharmpal Singh [4] at page
198:

' . . . a not incredible explanation given by the accused in the witness

box might have created a reasonable doubt. But there is no explanation; . . .
How did he come to squeeze his wife's throat? When the prisoner, who is given
the right to answer this question, chooses not to do so, the court must not
be deterred by the incompleteness of the tale from drawing the inferences that
properly flow from the endence it has got nor dissuaded from reaching a firm
conclusion by speculation upon what the accused might have said if he had
testified.'

Substituting 'How did he come to skid' for 'How did he come to squeeze
his wife's throat', this dictum is entirely in point in the present case."

These comments are entirely in point also in this case. If an accused person
wishes the court to consider the possibility that an accident may have
happened as a result of a mechanical defect or a skid and without any fault
as on his part or wishes the court to consider any other special defence he
must put it forward. This does not mean that he must give evidence in court;
such a defence would be sufficiently raised if a driver were to give such an
explanation to the police or other persons at the scene or subsequently to the
police. But it must be given at some time or other; the court will not consider
it simply in the form of a speculative argument from the bar. In this case the
appellant chose to remain silent, and the court was therefore left with nothing
but the evidence to which we have referred from which to draw its inferences.
On this evidence there could be only one conclusion. The appear against
connation must be dismissed.

The learned judge imposed a sentence of three years' imprisonment with hard
labour and ordered that the appellant's driving licence be cancelled. On the
view we take of the matter the order of cancellation cannot in any event stand,
but it is pertinent to point out that a cancellation, to have real effect, must be
coupled with a disqualification for a stated period.

The appellant said in mitigation that he was a first offender, that he was a
professional driver, that he had held a heavy vehicle licence for fourteen years
and that he had a trouble-free record. The first question is whether the fact
that a man earns his living by driving is a "special reason" for the purposes
of section 122 of the Roads and Road Traffic Act, enabling a court to refrain
from imposing what would otherwise be a mandatory suspension. This
expression was first authoritatively interpreted in England by Lord Gtoddard,
CJ, in Whittall v Kirby [5]; he said at page 555:

"A circumstance peculiar to the offender as distinguished from the

offence is not a 'special reason' . . ."
Although that decision was far from popular it was nonetheless followed in
case after case; the question was considered by Sachs, LJ, in R v Jackson [6]
who, in the course of a comprehensive review of the authorities, quoted at
page 458 the following passage from an unreported judgment of Lord Parker,
C.J., in R v Steel [7]:

". . . It was laid down as clearly as could be that a matter peculiar to

the defendant, such as his good character, was not a special reason within
what was then the Road Trafic Act 1930. That is a decision which obtained
very great publicity at the time. It has been thought to cause great hardship
ever since. It has been, however, affirmed time and time again and the court
that laid it down was a final Court of Appeal in those days in such a case; it
was a Divisional Court on a Case Stated from the justices. Since then
Parliament has re-enacted the same words with full knowledge of that
decision, in 1960 and again in 1962, and further in 1962 in what are known
as the totting up provisions in section 5 (3) Parliament has deliberately
avoided the use of those words by talking about mitigation. It is perfectly clear
that in those circumstances this court, observing the intention and seeking
to honour the intention of Parliament, must inevitably uphold the principle
laid down in Whittall v Kirby"

As Sachs, LJ, said, that this passage correctly states the law is clear beyond
argument; our legislature also has enacted and re-enacted these words with
full knowledge of the decision in Whittall v Kirby [5], and this court also must
honour the intention of our legislature by upholding the principle laid down
in that case.

However, although the trial court was in terms of the Second Schedule to the
Roads and Road Traffic Act obliged at the least to order the suspension of the
appellant's licence in addition to whatever other punishment it considered
appropriate, cancellation and disqualification, or suspension, are nonetheless
part of the total sentence, which must be considered as a whole. And in
considering whether to cancel and disqualify and if so for how long, or for how
long to suspend, in addition to imposing a prison sentence or a fine, the
factors advanced by the appellant can and should be taken into account in
mitigation. Taking these factors into account the sentence of three years'
imprisonment with hard labour plus what was obviously from the learned
judge's remarks intended to be a disqualification from driving for a
considerable period, comes to us with a sense of shock. We therefore turn to
consider what is an appropriate sentence.

This court has said quite recently (in Matongo v The People [8] (per Doyle, C.J.
) that -

"In a case of causing death by dangerous driving a fine is appropriate

where the driving was due to momentary inattention or misjudgment. A
custodial sentence is justified where there has been recklessness or wilful
disregard for the safety of other users."

We are satisfied that the appellant's conduct falls into this second category.
Knowing that he was driving a heavy vehicle and that he was carrying a
number of passengers, he consciously consumed alcohol to an extent that,
according to the evidence and as found by the learned judge, he was affected
thereby. He then proceeded to drive in such a manner that on approaching a
sharp corner, of which there was a road warning sign, he was unable to
negotiate that corner. Such conduct, particularly bearing in mind the alcohol
factor, can only be described as reckless. A custodial sentence was therefore
justified.

As we have said, the sentence of a fine or imprisonment as the case may be

and any disqualification or suspension that may be imposed either
mandatorily or as a discretionary matter must be considered as part of the
total punishment. Before we consider what sentence of imprisonment to
impose we must therefore first consider whether in eases where a custodial
sentence is imposed any disqualification or suspension must be of such a
length as to take effect beyond the time when the sentence of imprisonment
has been served. There is singularly little authority on this point. In R v
Phillips [9] Lord Goddard said:

". . . it is time that courts should realise that it is not the least use
ordering a man to be disqualified merely for the period during which he is
going to be in prison. lIe will not be able to drive while he is in prison and the
effect of a sentence of twelve months' imprisonment and disqualification for
twelve months is only to disqualify him for the very short period of his
remission."

In Sichone v R [10] Beadle, C.J., said at page 21:

"The intention of the legislature obviously is that a person who commits

this particular offence must suffer some punishment of having his driver's
licence suspended, and if the only time the driver's licence is suspended is
the time that such person is in jail, when he cannot drive a motorcar anyway,
it is obvious that the suspension of the driver's licence then becomes a purely
nominal punishment and the appellant does not suffer that particular form
of punishment at all."

The approaches of the courts in those cases seem to us to be based on the

assumption that the legislature intended the punishment of disqualification
or suspension as the case may be to be additional to whatever other
punishment the court might impose and irrespective of whether that
punishment was a fine or imprisonment and irrespective also of the length of
the imprisonment; this emerges particularly clearly from the dictum of Beadle,
C.J., in Sichone's case [10]. With the greatest respect we are unable to
subscribe to this approach. It is clear that in the class of offences in respect
of which provision has been nude for disqualification or suspension, whether
mandatory or discretionary, the legislature intended that the driver must, or
could at the discretion of the court be kept off the road for a stated period;
this is not however the same as saying that the legislature intended that the
driver's licence should be cancelled or suspended in addition to any other
punishment that might be imposed.Of course, if the other punishment is a
fine then the only way to keep the driver off the road is to impose a
disqualification or suspension; but if the driver is already off the road because
a substantial sentence of imprisonment has been imposed the intention of the
legislature, namely to give the public protection in the class of cases in which
the public is peculiarly at risk, has been achieved.

An examination of the Second Schedule to the Roads and Road Traffic Act
underlines this point. The offences in respect of which disqualification or
suspension must or may be ordered are all offences where for one reason or
another the public has been put at risk, such as causing death by dangerous
driving, driving under the influence of liquor, driving an uninsured or
unlicensed vehicle, driving while under disqualification failing to stop after an
accident. But save in one case (to which we will return in a moment) no
mandatory prison sentence is prescribed, far less a mandatory minimum
prison sentence, nor a minimum period of disqualification or suspension; in
respect of all the other offences in question the legislature has contemplated
the imposition of a fine, and it is clear that the legislature intended that if a
fine were imposed the person concerned should in addition be kept off the
road for a period.

But we stress that in considering the amount of a fine and the period of the
disqualification or suspension the court must have regard to the fact that they
are parts of the total punishment. Equally, if one is considering a custodial
sentence one must consider it as part of a total sentence of which the other
part is to be disqualification or suspension, and the extent of the one must be
taken into account in considering the extent of the other; thus in a proper
case, and taking into account the personal circumstances of the accused, one
may decide to impose a comparatively short custodial sentence and a very
substantial period of suspension, while in another case one may decide that
a more severe custodial sentence is necessary but that the case does not
warrant a suspension taking effect beyond the expiration of the sentence.

The exception to which we have referred is in the case of a conviction for

driving under the influence of alcohol or drugs (section 209); Act No. 42 of
1971 introduced a mandatory sentence of imprisonment for not less than six
months nor more than five years, or imprisonment for not less than thirty nor
more than fifty-two week-ends. As with a fine, weekend imprisonment will not
in itself keep a driver off the road during the week, while the minimum
sentence of six months will not keep the driver off the road for the minimum
of one year required by the second Schedule. Hence even in the case of a
conviction under section 209 it cannot be said that the legislature intended
that if the court imposed a' prison sentence it must order also a
disqualification or suspension which will continue in enact after the
completion of the sentence, save in the case where the prison sentence is for
less than one year.

We turn therefore to apply the foregoing principles to the present case. It is a

bad case, particularly because of the alcohol factor; we are all aware of the
terrible toll in terms of human life taken on our roads every week, and we are
equally aware of the fact that this toll is the greater because of the willingness
of so many people to drive after having taken drink. We are consequently
satisfied that this is a case in which a significant custodial sentence should
be imposed. But there are compelling mitigating factors operating in favour of
the appellant, namely that he is a first offender, that he has had a trouble-
free record of fourteen years' driving, and that he earns his living by drying.
For all these reasons we are satisfied that the appellant will have been
sufficiently punished by the custodial sentence, and that the public will
equally have been properly protected by its imposition, without a suspension
for a further period being imposed.

The appeal against sentence will be allowed. The sentence and order of
cancellation will be set aside and in its place the appellant is sentenced to
imprisonment with hard labour for two years with effect from the 21st July,
1973, and his driving licence will be suspended for one year and 35 four
months with effect from the same date; in forms of section 122 (1) (b) of the
Roads and Road Traffic Act particulars of this conviction and suspension will
be endorsed on the appellant's driving licence.

Appeal dismissed

Sentence altered