Case No.:

AC-CP- 7-1962

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Drunkenness—Accused drunkenly drove and knocked down two men —Rebuttal of presumption under Penal Code, S. 42.

Accused, drunk to the point of vomiting and incoherence, refused to give deceased a ride and threatened them with running them down. Then without enmity to deceased he drunkenly ran them down with his truck. The court found the accused incapable because of drink of knowing that death would be likely or probable, and that therefore the presumption under Penal Code, S. 42 was rebutted. But since the act of accused was reckless driving he was convicted under Penal Code, s. 255, and Road Traffic Act 1962, S. 25.

Judgment

                                       (MAJOR CURT CONFIRMATION)

                        SUDAN GOVERNMENT v. MURSAL SAEED FADL EL MULA

                                                     AC-CP- 7-1962

M. A. Abu Rannat C.J. December 20, 1962: —On April 28, 1961, there was a wedding at Hillet El Wall of Dueim District. The accused, who was a lorry driver, was invited together with other labourers to the celebration. The accused drank a large quantity of Merissa and was really drunk. The two deceased and a third boy were amongst the persons attending the wedding. At about 6 p.m., after he had drunk Merissa, he went to the place where his lorry was kept, and drove it to the wedding place. When he arrived, there was singing and dancing. He alighted from his lorry, entered the house, and again he drank a large quantity of Merissa. At about 9 p.m. he went to the lorry, sat on the front seat, and wanted to drive the lorry back to the place where he was residing. At the moment he was igniting the engine, one of the deceased, by name El Amin, and another man, asked the accused to take them with him in the lorry. He told them in a drunken mood that if they jumped on the lorry he would overturn it and throw them in the canal, and that if they stood in front of him he would oven-un them. El Amin and the other man then gave up the idea of accompanying accused, and stood at a distance in front of him. At the same time there were people sitting on a large mat in front of the lorry. The accused drove the lorry backwards for a short distance, and then he drove it forward. In doing this, he knocked down El Amin, overran the second deceased who was sitting on the mat, and the lorry only stopped when it fell in a pit in front of it. Then the accused was taken to the Omda house.

When the police arrived at the Omda’s house at 1.25 a.m. on April 29, 1961. they found the accused drunk, vomiting and incapable of giving any statement. There was no enmity or misunderstanding between the accused and deceased persons.

The court found the accused guilty of murder on the ground that he knew that death would be the probable consequence of his act.

The most important point for determination is whether the act of the accused amounted to culpable homicide,and this I doubt very much.

In arriving at this conclusion, I read part of the reports of the com missioners on criminal law who were appointed in England in the first half of the nineteenth century, which display outstanding qualities of logical thought and lucid exposition. The report says: “ . . . and so in all cases it is essential to the criminality of the act, both in law and morals, not only that the act should in its own nature under the circumstances be attended with peril to life, but that the offender should be aware of such peril. Where the offender does an act attended with manifest danger to life willfully, that is, with knowledge of the consequences, he may properly be said to have the mens mala, or heart bent upon mischief, but if he does an act, however dangerous it be in its own nature, without any knowledge or suspicion of its tendency, that is if he does not willfully place life in peril, he cannot be said to show the mens mala or heart bent on mischief . . . - The proper test of guilt is that of knowledge and conscious ness on the part of the offender that hurt or damage is likely to result from what he does.” This statement is found in I Russell, Crime 530 (11th ed. 1958).

Compare this statement with a statement made in Williams, Criminal Law (i He said: “Negligence is of two kinds, being either advertent negligence (commonly called recklessness) or inadvertent negligence.” Here we are concerned with inadvertent negligence in relation to consequences. Recklessness as to consequence occurs when the actor does not desire the consequence, but foresees the possibility and consciously takes the risk. For many, if not most, legal purposes, recklessness is classed with intention. It is like intention in that the consequence is fore seen, but the difference is that ‘whereas in intention the consequence is desired or is foreseen as a certainty, in recklessness it is foreseen as possible or probable but not desirable.

On looking into the facts of this case, it can safely be said that the accused, who was admittedly very drunk, did a dangerous act recklessly:

driving a lorry in the direction of the persons in front of him, without knowledge of its tendency, though it may be said that he might have foreseen the possibility of the consequences. It may be argued that Penal Code. s. 42, attributes knowledge to an intoxicated person, but it should be observed that the presumption of knowledge in Penal Code, s. 42, is reputable and the accused can disprove it.

The surrounding circumstances of this particular case do not show that accused was deliberately driving the lorry at the deceased knowing that death would be likely or probable. It was the case of a drunken person recklessly driving a lorry in the direction of persons not knowing that his lorry would knock them down.

I therefore think that this is an offence, which falls under Penal Code, s. 255, and Road Traffic Act 1962. S. 25, and thus I alter the finding accordingly, and the sentence to imprisonment for 10 years which is the maximum under Penal Code, s. 255.