Rex v Balabanoff (Cr.App. No. 36/1936) [1936] EACA 140 (1 January 1936)

APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and WEBB, J.

REX, Respondent

$\mathbf{v}$ .

LOUIS BALABANOFF, Appellant (Original Accused) Cr. App. No. 36/1936.

Criminal Law-Charge-Duplicity-Charge of "Driving a motor recklessly, or at a speed, or in a manner which was dangerous to the public"—Accused "convicted of the offence charged"—Traffic Ordinance, 1928, section 15.

The appellant was charged with "driving a motor vehicle on a road recklessly, or at a speed, or in a manner which is dangerous to the public, contra section 15 of the Traffic Ordinance, 1928." The judgment of the Resident Magistrate concluded with the words: "I convict the accused of the offence charged."

Held (18-5-36).—That the conviction was bad for duplicity.

(Rex v. Wells (68 J. P. 392) followed.)

(*Note.*—The conviction was set aside on the facts.)

Shaw for the appellant.

Wallace, Crown Counsel, for the Crown.

JUDGMENT.—It has been conceded on the part of the Crown that the two facts that the appellant was driving on the wrong side of the road on a well worn track and at the rate of 20 m.p.h. taken by themselves would not constitute dangerous or reckless driving and with that we agree.

The accident took place as a consequence of a motor car driven by a Mr. Buckley turning out of a bye-road on the left on to the main Eldoret-Kakamega road along which the appellant was travelling. As to whether the appellant had any knowledge of the existence of the bye-road or could have seen it prior to the accident there is no evidence, and such knowledge on his part or visibility would have to be established before he could he held to have driven dangerously or recklessly. If, as has to be assumed, he became aware of the existence of this road for the first time when he saw the car emerge at 10 to 12 m.p.h. and when his lorry was some 50-100 feet distant, it is reasonable to suppose that he must have been left in a state of uncertainty as to what the car was going to do-whether turn to its left in the direction of Kakamega or cross the road. In our opinion the appellant was taken by surprise by the sudden appearance of the car and had to act instantly. He decided to pass the car on the right in the direction of the disused road shown on the plan; we have no reason for thinking that his doing so may not have been the right thing to do in all the circumstances of the case.

We have thought fit to decide this appeal on the facts, but had we not done so we should have been obliged to quash the conviction on the ground that it was bad for duplicity. The appellant was charged with "driving a motor vehicle on a road recklessly, or at a speed, or in a manner which is dangerous to the public, contra section 15 of the Traffic Ordinance, 1920" (1920 must be a clerical error for 1928). The learned Magistrate concluded his judgment with the words, "I convict the accused of the offence charged", not stating which of the offences charged. Section 15 of the Ordinance is practically identical with section 1 (2) of the English Motor Car Act, 1903, and consequently the case of $R$ v. Wells and another (68 J. P.

392. Lord Alverstone, C. J., Wills and Kennedy, J. J.) is authoritative on the point. The Lord Chief Justice in his judgment said that, "it was impossible to say that the only offence mentioned in the section, was the offence of driving at a speed dangerous to the public, for it was obvious that there was also the offence of driving in a manner dangerous to the public. A person might be driving at a moderate speed and yet in a manner dangerous to the public. Therefore the Magistrates had not to consider the two things together, but ought to consider whether the defendant was driving in a manner dangerous to the public apart from the question of speed. The conviction therefore could not stand." The appeal is allowed, the conviction quashed and the fine, if paid, is directed to be refunded.

(*Note.*—See also $R$ v. *Molloy* (1921 2 K. B. 364), $R$ v. *Disney* (49) T. L. R. 284), $R$ v. Wilmot (49 T. L. R. 427).—*Editor*).