1961 Present: Sansoni, J., and H. N. G. Fernando, J.

M. SELLADORAI, Appellant, and THE QUEEN, Respondent

S. C. 50-D. C. (Criminal) Negombo, 4,587

Negligence-Charge of driving rashly-Evidence that driver was under the influence of liquor- Admissibility -Evidence in rebuttal to impeach, credit of accused- Admissibility.

In a prosecution for causing the death of a person by rash driving the mere fact that the accused was smelling of liquor at the time of the accident is not of itself relevant. Evidence as to the drink taken by the driver, to be admissible, " must tend to show that the amount of drink taken was such as would adversely affect the driver, or, alternatively, that the driver was in fact adversely affected."

Evidence of admissible admissions made by an accused that could have been given before the prosecution was closed cannot be given as evidence in rebuttal to impeach the credit of the accused.

APPEAL from a judgment of the District Court, Negombo.

G. E. Chitty, Q.C., with K. Sivasubramaniam, for the accused-appellant.

Shiva Pasupati, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

October 18, 1961. SANSONI, J.-

The accused was indicted with having caused the death of a woman by doing one or more rash acts which were specified, or by doing one or more negligent acts which were also specified in the indictment. The learned District Judge found the accused guilty but he has not stated whether he found him guilty of doing a rash act or a negligent act. He does, however, say earlier in his judgment that the accused had driven his car in a reckless manner, so I shall assume that he found the accused guilty of driving rashly, because one of the rash acts specified in the indictment is that the accused drove recklessly.

The case for the prosecution was that the accused drove along the Colombo-Negombo road in the direction of Negombo, and hit the deceased woman who was walking in the opposite direction along a foot-path running parallel to the road but on the accused's right hand side. The prosecution witnesses also spoke to the accused having driven at a high speed. For no reason that appeared from their evidence, the accused appears to have driven across the road from his correct side, hit the woman, struck against two trees which were standing off the road, and then come back to his correct side to halt his car. But there was one prosecution witness who said that while he was riding on the pillion of a motor cycle travelling towards Negombo, the accused overtook him and then went to his correct side. He said that the accused then suddenly crossed towards the right hand side, struck some trees and then crossed again to his correct side. On looking towards the trees he saw a woman lying fallen in a drain. He estimated the speed of the car at 30 or 35 m.p.h. and did not notice anything peculiar about the way that the accused was driving.

The accused's version was that after he overtook the motor cycle he took his car to his correct side. The woman then came from his left hand side on to the road, and to avoid her he swerved to the right and she was knocked by the car and thrown some distance. He lost control of his car which crashed into two trees. He then drove back to his correct side. He denied that, he had hit the woman when she was walking on the foot-path.

In this state of the evidence the learned Judge very correctly asked himself the question as to why the accused suddenly went off the road,

for it is common ground that the accused who was travelling on his correct side suddenly crossed the road. In answering that question the learned Judge makes two findings :

(1) that the car was driven at an excessive speed, and

(2) that the accused was driving under the influence of liquor and was not able to control the car.

I do not think that either finding can be supported on the evidence. The learned Judge accepted the evidenc