(1984) 2 CLR 332
1984 February 13
[A. Loizou, Malachtos And Savvides, JJ.]
THE ATTORNEY-GENERAL OF THE REPUBLIC,
Appellant,
v.
ANDREAS NICOLA MAKRI,
Respondent.
(Criminal Appeal No. 4487).
Motor Vehicles and Road Traffic Law, 1972 (Law 86/72)—Section 6(4) of the Law does not create an irrebuttable presumption to the effect that any speed in excess of the speed limit is deemed to be dangerous—Not contrary to Article 30(2)(3)(6)(c) and 12(1)(4)(5) of the Constitution—Observations with regard to the need of amendment of the above sections.
Criminal Law—Burden of proof—When shifted on the accused the standard of proof is on the preponderance or balance of probability.
Constitutional Law—Presumption of innocence—Section 6(4) of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72) does not create an irrebuttable presumption—Not contrary to Article 30(2)(3)(b)(c) and 12(1)(4) of the Constitution.
The respondent was charged with the offence of driving a motor vehicle at a speed which was likely to endanger human life contrary to sections 6 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86 of 1972).
The trial Judge came to the conclusion that section 6(4) of the Law purported to introduce an irrebuttable presumption to the effect that any speed in excess of the speed limit was deemed to be dangerous and was thus in conflict with Article 30(2) of the Constitution. The trial Judge, also, held that s. 6(4) was, inconsistent with Articles 30(3)(b)(c), 12(1)(4) and 5(d) of the Constitution.
Upon appeal by the Attorney-General:
Held, (1) that section 6(4) of the Law does not create an irrebuttable presumption; that the accepted meaning of the word "deemed" in section 6(4) is that in Law it introduced a rebuttable presumption, an assumption or legal fiction which may be dispelled by evidence; that this evidence may come out from the witnesses for the prosecution in cross-examination or by evidence adduced by the accused person; but that where the burden of proof is shifted on the accused same is discharged by a standard of proof as that required for civil proceedings i.e. a preponderance or balance of probability.
(2) That what is happening under section 6(1) and (4) is that all the elements of the offence under subsection (1) have to be proved in the normal way by the prosecution except that a rebuttable presumption is created in the sense that any speed in excess of the limit prescribed by the Law is deemed to be likely to endanger human life or cause harm or injury to any person or property within the meaning of subsection 1, which may be dispelled by the accused; that the shifting of the burden of proof of such issues to the defence in no way means that the accused has to prove his innocence as he can only be considered as innocent if he has not committed the offence created by section 6(1) that is to say if he has not committed the acts which constitute the elements of such offence.
(3) That section 6(4) does not introduce a legal fiction in the form of irrebuttable presumption precluding the investigation into the circumstances of the speed; that what it does is to introduce a defence, a legal technique to cover, the exculpating element.
(4) That the presumption introduced by section 6(4) is not in conflict with other articles of the Constitution, such as Article 30, paragraphs 2, 3(b) and (c) or Article 12(1), (4)(5).
(5) That the appeal as such has to be dismissed as this Court is not prepared to interfere with the factual aspect of this case and the conclusions drawn on the evidence adduced by the trial Judge on the strength of which he in any event found that the accused's speed, in the light of all the circumstances particularly the nature, condition and use of the road in question as well as the amount of traffic that existed or might reasonably be expected to exist at the time on the road in question, was not dangerous and that on the totality of the evidence the prosecution had failed to prove its case beyond reasonable doubt.
Appeal dismissed.
Observations: Before concluding we would like to point out that in England there exist two distinct offences in relation to speed the one under section 2 of the Road Traffic Act 1972 now under section 50 of the Criminal Law Act 1977, which corresponds to section 6(1) of our Law and the other driving at a speed which is in excess of the speed limit section 203 of the Road Traffic Act 1972, which has no corresponding provision in Cyprus and which is a less serious offence than that of driving at a speed likely to endanger human life or cause damage to any person or property. The offence of speeding is constituted by driving in excess of the speed limit regardless of whether the speed is dangerous or not. The introduction of such an offence would simplify matters and could serve admirably the purpose of controlling driving at excessive speed, particularly in built up areas. We trust that the appropriate authorities will take note of this observation.
Cases referred to:
Mayor of Nicosia v. Cyprus Oil Industries Ltd., 2 R.S.C.C. 107;
Gendarmerie v. Zavos, 4 R.S.C.C. 63;
Papadopoulos v. Republic (1980) 2 C.L.R. 10;
R. v. Carr-Briant, 29 Cr. App. R. 76 at p. 87;
Pitsillou v. Police (1969) 2 C.L.R. 168;
Lingens & Leitgeb v. Austria (Decisions and Reports of Human Rights Vol. 26 p. 171).
Appeal against acquittal.
Appeal by the Attorney-General of the Republic against the judgment of the District Court of Limassol (Hadjihambis, DJ.) given on the 12th November, 1983 (Criminal Case No. 14662/83) whereby the respondent was acquitted of the offence of driving a motor vehicle at a speed which was likely to endanger human life contrary to sections 6 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86 of 1972).
A. M. Angelides, Senior Counsel of the Republic, for the appellant.
St. McBride with G. Christodoulou, for the respondent.
A. Loizou J. gave the following judgment of the Court. The appellant was charged with the offence of driving a motor vehicle at a speed which was likely to endanger human life contrary to sections 6 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86 of 1972).
The particulars of the offence were that on the 11th day of July, 1983, at P. Yermasoyia in the district of Limassol, the respondent did drive motor-car PE.733 on a road, to wit, on Georghios A' Street, within the built-up area of P. Yermasoyia, at a speed which was likely to endanger human life, to wit, at a speed of 43 m.p.h.
The learned trial Judge in an elaborate judgment after reviewing all the authorities relating to the determination of matters of constitutionality of Laws and the position regarding irrebuttable presumptions created by Laws in respect of criminal offences, ruled that section 6(4) of the Law is unconstitutional, having dealt with it in the following way:
"Reverting to s.6(4), I should, of course, observe that the mere use of the term 'logizetae' does not necessarily establish that an irrebuttable presumption is created, nor is the interpretation of its equivalent English term 'shall be deemed to’ (which also appears in its predecessor, s.4(2) of the Motor Vehicles and Road Traffic Law, Cap. 332) in The Mayor of Nicosia v. The Cyprus Oil Industries Ltd., (1961) 2 R.S.C.C. 107, binding as to the meaning of the term in any other law. Rather, I should say, the matter is a matter of interpretation of the term 'logizetae' in its context in the light of a broad approach to s.6 as a whole bearing in mind that the presumption of constitutionality obligates the Court to strive towards a construction that would result in the law at issue being held constitutional. Even so, however, I have, after much thought and reflection, come to the definite conclusion that s.6(4) does purport, without any doubt, to introduce an irrebuttable presumption to the effect that any speed in excess of the speed limit is deemed to be dangerous. The language of s.6(4) is not only clear and unambiguous but also unqualified, and its reference to speed in excess of the speed limit being deemed to be dangerous in the sense, of s.6(1) equally direct and absolute. And, I, at least, bearing in mind the approach of the Supreme Constitutional Court in The Mayor of Nicosia v. The Cyprus Oil Industries (1961) 2 R.S.C.C. 107, cannot read it as intended to create only a rebuttable presumption to that effect, however conscious I may be of the presumption of constitutionality. It seems to me clear that what s.6(4) purports to do is to introduce a legal fiction in the form of an irrebuttable presumption precluding the investigation into the circumstances of the speed provided by s. 6(1). I am not concerned with whether this presumption, like that in The Mayor of Nicosia v. The Cyprus Oil Industries Ltd.., is aimed at avoiding the necessity for having to ascertain, in each particular case, whether any particular speed above the speed limit is in fact dangerous so long as speeds in excess of the speed limit may generally be regarded as dangerous, or whether it is aimed at filling the gap that exists in Cyprus law by the absence of the offence of speeding as such. In the first instance, it is clear that .a general assumption that all speeds in excess of the speed limit are dangerous simply cannot stand as inconsistent with the fact that a speed may not be dangerous in the circumstances though in excess of the speed limit (and, vice versa, that a speed may be dangerous in the circumstances though not in excess of the speed limit). The absurdity of an irrebuttable presumption is demonstrated if it is supposed that the speed limit in question was not 50 m.p.h. but, e.g. 30 m.p.h. or 70 m.p.h., for it would, indeed, be absurd to assert that the essential quality of the speed as dangerous or not depended on an extraneous circumstance like that. A speed limit is, at best, a general and a priori expression of a level of speed considered to be the limit of safety generally speaking. But, safety and danger being always relative terms it can never be the case that the general assumption will correspond to the reality of any particular case. Furthermore, the imposition of a speed limit may not be exclusively based on considerations of safety but may extend, e.g., into considerations of petrol economy, entirely unconnected with the safety of speed. Particularly in view of the fact that the adoption of the speed limit of 50 m.p.h. was done under s.6(3) which refers to speed limits in relation to types of vehicles and not under s.6(2) which refers to speed limits in relation to roads, I cannot assume that the only purpose of the speed limit in question was to regulate speed safety limits, so that the presumption of s.6(4) would be even further removed from reality.
In the second instance, I should observe that the gap existing in Cyprus law by the absence of the offence of speeding as such can hardly be filled by means of s.6(4) and, if sufficiently felt to exist, should be provided for by means of legislation aimed directly at it. The introduction of the presumption of s.6(4) into the offence of dangerous speed, if aimed at prohibiting speeding in excess of the speed limit as such, is as ineffective in that respsct as it is inconsistent with the offence of dangerous speed as defined in s.6(1). I should also observe that s.6(4) effectively reproduces its predecessor s.4(2) of the Motor Vehicles and Road Traffic Law, Cap. 332, in force before the Constitution came into effect, subject to the provisions of which it should now be read.
I need not dwell much more on the reasons why the irrebuttable presumption thus introduced by s.6(4) is in conflict with Article 30.2 of the Constitution. In so far as such presumption excludes a consideration of the question whether the accused's speed is or is not dangerous in all the circumstances for the purposes of determining whether the essential elements constituting the offence as defined by s.6(1) are present and, consequently, whether the offence has been committed or not, it deprives the accused of the fair hearing guaranteed by Article 30.2 and is thus in violation of it. It also seems to me that s.6(4) would be inconsistent with Article 30.3 (b)(c) (which really refers to more specific aspects of the concept of fair hearing) in that the irrebuttable presumption provided effectively denies the accused the right to put forward his defence and to produce or cause the production of means of proof and examine witnesses on matters relevant to the offence. I am further of the opinion that s.6(4) offends against Article 12.1 of the Constitution in that the irrebuttable presumption it establishes may lead to the conviction of the accused when his speed is not in fact dangerous in the circumstances and does not, consequently, constitute an offence according to s.6(1) as the applicable law. Equally, s.6(4) is in conflict with Article 12.4 in that the accused is deemed to .be guilty without being proved to be so .according to law, that is, it presumes precisely that which Article 12.4 requires to be proved. Finally, s,6(4) seems to violate Article 12.5(d) in that it renders valueless the .accused's right to examine or cause the examination of prosecution witnesses and produce and examine defence witnesses on matters relevant to the offence. As for Article 28, learned counsel for the accused did not really pursue his submission and I do not feel the issue of the constitutionality of Article 28 has been sufficiently raised and properly formulated to render it necessary for me to decide it or express an opinion upon it.
Learned counsel for the accused further submitted that, even if I were to hold that s.6(4) creates not an irrebuttable but a rebuttable presumption, the same would still offend against Article 12.4 in so far as it would purport to presume the accused to be guilty unless proved innocent and place the burden of disproving the accused's guilt (or the burden of proving the accused's innocence) on the accused, when the accused is considered innocent until proved guilty, the burden of proving his guilt being placed on the Prosecution in all cases. The Prosecuting Officer argued that s.6(4) does, indeed, create a rebuttable presumption but that such rebuttable presumption is not in conflict with Article 12.4. In case I am wrong as to the view that s.6(4) creates an irrebuttable presumption, I propose to deal with this submission also, and I would again refer to the view which I adopted in my earlier judgment to which I referred and which I still: hold in this case, and I quote from page 18 of that judgment:
‘I would start from the fundamental rule of our Criminal Law embodied in the Constitution as much as in the European Convention of Human Rights (Article 6 para. 2) that an accused person is presumed innocent unless proved guilty as charged, the: burden of proving his guilt being thus placed on the Prosecution. Now, the offence with which the accused is charged in the instant ease is denned by s.6 (1) as driving at a speed which, in the light of all the circumstances, is dangerous. Consequently, the Prosecution, to obtain a conviction has a constitutional obligation to prove the constituent elements of the offence, that is, that the speed of any particular person charged under s.6(1) was dangerous in the light of all the circumstances. What, then, is the effect of s.6(4)? it seems to me that, in so far as s.6(4) may be considered to involve a rebuttable presumption, this presumption is to the effect, that, upon proof by the Prosecution that the accused, was driving at a speed in excess of the speed limit, the accused is presumed to have been driving at a speed which is dangerous in the circumstances in the sense, as s.6(4) says, of s.6(1), unless the accused proves otherwise. In so far, however, as speed in itself is not sufficient to constitute danger, and therefore to substantiate the offence under s.6(1), s.6(4) then seems to presume precisely that which it is the duty of the Prosecution to prove and, thereby to transform the presumption of innocence into a presumption of guilt and shift the consequent burden of proof from the Prosecution to the Defence. As such, I have no doubt that s.6(4) would be unconstitutional as in conflict with Article 12.4. Indeed, I would point out that the presumption of innocence and the consequent burden of proof of the accused's guilt on the Prosecution is not only a fundamental but also an absolute and unqualified constitutional principle reflecting a long-established approach of our criminal law stemming from its jealous safeguard of liberty and due process. Thus, unlike other constitutional rights which are qualified in terms of the public interest, no limitations are placed upon the presumption of innocence and no inroads into it should be allowed. Consequently, I find it less difficult to hold that, without any doubt, s.6(4) is unconstitutional, than if I was dealing. with a constitutional right which is subject to restrictions and qualifications allowing a greater latitude to legislative power, and it is not without significance that the presumption of constitutionality has mostly been demonstrated in cases involving constitutional rights subject to such restrictions and qualifications. In any case, try as I may to maintain the presumption of constitutionality in this case, I cannot escape the conclusion that it can be of no avail.
This view of s.6(4) is, I conceive, consistent with such cases as Gendarmerie v. Zavos (1962-1963) 4 R.S.C.C. 63 and Papadopoulos v. The Republic (1980) 2 C.L.R. 10. In Gendarmerie Zavos it was held by the Supreme Constitutional Court that the provisions of s.33(3) of the Antiquities Law, Cap. 61, to the effect that a person should not be guilty of the offence of being in possession of antiquities if he satisfied the Court that the antiquities in question had been lawfully acquired by him, did not contravene Article 12.4 because, as Forsthoff, P., giving the judgment of the Court, put it at p. 65:
"........it is not aimed at defeating the presumption of innocence but only makes available to the person concerned a defence based on circumstances within his own special knowledge".
Following Gendarmerie v. Zavos the Supreme Court in Papadopoulos v. The Republic held that the proviso to s.15 of the Criminal Code which placed upon the accused the burden of proof of certain specified defences to the offence of seditious publication once the seditious publication is established, did not offend against Article 12.4. Stressing, at p. 47, that "The presumption of innocence has always been a fundamental principle of our Criminal ……..Law now safeguarded also by para. 4 of Article 12 of the Constitution which corresponds to Article 6, para. 2, of the European Convention of Human Rights", A. Loizou, J., in whose judgment Triantafyllides, P., L. Loizou, J., Hadjianastassiou, J., and Malachtos, J., concurred on this matter, cited Gendarmerie v. Zavos in support of the view that defences, the burden of proof of which lies on the accused, do not conflict with the presumption of innocence, consistently with the traditional approach of the criminal law.
In the instant case, however, I am not faced with a defence, particularly a defence based on circumstances within the accused's own special knowledge, made available by s.6(4) to a person charged with the offence of dangerous speed once the dangerous speed is established, but with a presumption affecting the very establishment of the offence, the constituent elements of which are based on outward facts. A defence, properly speaking, the burden of proof of which lies on the accused, only becomes relevant once the constituent elements of the offence have been established by the Prosecution which has the burden of proof of the accused's guilt. S.6(4) does not, however, purport to furnish a defence but to provide a presumption whereby the constituent elements of the offence may be presumed to exist without proof unless the accused himself proves that they do not in fact exist. In so far as the constituent elements of the offence in question are contained in s.6(1) in terms of speed which in the light of all the circumstances, particularly those specified, is dangerous to life or property, s.6(4), by providing that a speed in excess of the speed limit is deemed to be dangerous to life or property in the sense of s.6(1), is clearly concerned not with defences to the offence but with the establishment or negation of the offence itself. As such, it is not covered by the principle of Gendarmerie v. Zavos and Papadopoulos v. The Republic and, in so far as it purports to presume the accused's guilt and place the burden of proving his innocence on the accused, is clearly in conflict with. Article 12.4".
We have quoted at length, from the judgment of the learnea trial Judge as we felt that in this way we have the whole of the arguments advanced on behalf of the respondent at the trial as well as his approach on the issues raised. Before, however, proceedings any further with the case, we would like to quote section 6, subsections (1), (2) and (4) of the Motor Vehicles, and Road Traffic Law 1972, in full:—
"(1) Any person driving a motor vehicle on a road at a speed which is likely to endanger human life or to cause harm or injury to any person or property, having regard to all the circumstances of the case, particularly the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be on the road at the said time, he shall be guilty of an offence and liable to imprisonment not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.
(2) The appropriate authority may, with the consent of the Chief of Police, set, in relation to any road, a maximum or minimum speed limit, which, as regards any road within the populated area of any town or village, may not exceed 40 miles per hour; the speed limit so set shall be written on platen placed along the roads in such manner that drivers using the said roads may easily notice them; the appropriate authority may, also with the consent of the Chief of Police change any speed limit thus set:
Provided that until the appropriate authority proceeds to set such speed limit, the same may not exceed, within the populated areas of any town or village, the limit of 30 miles per hour.
.........................................................................................................................
(4) For the purposes of subsection (1), a speed in excess of the limit provided in subsection (1), (2) or, depending on the case in subsection (3), shall be deemed to be a speed likely to endanger human life or to cause harm or injury to any person or property within the meaning of subsection (1)".
The first question that calls for determination as it essentially disposes of several other consequential issues is whether the presumption created by subsection 4 is a rebuttable or an irrebuttable one. In arriving at the conclusion that the presumption created by the aforesaid subsection of the law is irrebuttable, the learned trial Judge has drawn, as he said, assistance from the cases of Gendarmerie v. Zavos, 4 R.S.C.C. 63, and Papa-dopoulos v. The Republic (1980) 2 C.L.R. 10. We do not share his view. Neither of the two cases are consistent with his approach. In the case of Zavos the presumption created by section 33(3) of the Antiquities Law, Cap. 31, was found not to contravene Article 12.4 of the Constitution because it did not aim at defeating the presumption of innocence but only made available to the person concerned a defence based on circumstances within his own knowledge. In fact, the full text of the relevant passage at page 65 reads as follows:
"……..It is also provided therein that the offence in question shall not be deemed to have been committed if the person concerned satisfies a Court that he has acquired the antiquities in question lawfully under Cap. 31, though he did not include them in a list as above, thus giving him a further chance of lawfully retaining the antiquities involved and excluding any possible hardship or injustice. It may be added, that, this being so, such aforesaid provision does not contravene paragraph 4 of Article 12, because it is not aimed at defeating the presumption of innocence but only makes available to the person concerned a defence based on circumstances within his own special knowledge".
It may be noted that in the said passage the expression "shall not be deemed to have been committed" is used and this bears out the accepted meaning of the word "deemed" as in law introducing a rebuttable presumption, an assumption or legal fiction which may be dispelled by evidence. This evidence may come out from the witnesses for the prosecution in cross-examination or by evidence adduced by the accused person. Needless to say, however, that in cases where the burden of proof in a criminal case is shifted on the accused, same is discharged by a standard of proof as that required for civil proceedings, i.e. a preponderance or balance of probability, as stated by Humphreys J., delivering the reserved judgment of the Court of Criminal Appeal in R. v. Carr-Briant [1943] 29 Cr. App. R. 76, at p. 87,
"In any case where, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved', the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish".
This principle has been consistently followed in Cyprus (see, inter alia, Pitsillou v. The Police (1969) 2 C.L.R. 168). In the case of Papadopoulos reference is made also to the approach on the same issue of the presumption of innocence of an accused person in relation to Article 6(2) of the European Convention of Human Rights which corresponds to Article 12.4 of our Constitution and a passage from Fawcett's textbook entitled "The Application of the European Convention of Human Rights" to be found in page 161 thereof is quoted. It is worth pointing out from the said passage that it is remarked with emphasis therein "that in general the presumption of innocence is a formula to indicate where lies the main burden of proof at the trial of the charge", which suggests that there is nothing inconsistent with the presumption of innocence if the evidential burden is shifted on the accused, particularly so as regards defences opened to him. Useful reference on this point may also be made to paragraph 153 from the Digest of Case-Law Relating to the European Convention on Human Rights; 1955-1967, regarding the presumption of innocence:-
"Article 6, paragraph 2, according to which everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, requires firstly that court judges in fulfilling their duties should not start with the conviction or assumption that the accused committed the act with which he is charged. In other words, the onus to prove guilt falls upon the Prosecution, and any doubt is to the benefit of the accused. Moreover, the judges must permit the latter to produce evidence in rebuttal. In their judgment they can find him guilty only on the basis of direct or indirect evidence sufficiently strong in the eyes of the law to establish his guilt.
Since Article 6(2) is thus primarily concerned with the spirit in which the judges must carry out their task, it may be asked whether it does not also apply to the attitude of other persons taking part in the proceedings, such as counsel for the Prosecution and for the civil plaintiff, experts and witnesses. If such persons express themselves towards the accused in flights of language such as might disturb the calm of the Court by their violence or insulting nature, such behaviour would nevetheless bring no blame upon the Court from the point of view of Article 6(2), except inasmuch as the presiding judge by failing to react against such behaviour, might give the impression that the Court shared the obvious animosity to the accused and regarded him from the outset as guilty.
The same applies if the accused, during the preliminary investigation, has been subjected to any maltreatment with the aim of extracting a confession from him; Article 6(2) could only be regarded as being violated if the Court subsequently accepted as evidence any admissions extorted in this manner. (Cf. in particular the words 'proved.............. according to law')".
In application No. 8803/79 Lingens & Leitgeb v. Austria, (Decisions and Reports, Volume 26 p. 171) the Human Rights Commission held that in respect of defamation the accused's possibility of establishing the truth of his statements requires the Judge to pay particular attention to the evidence submitted by the accused for that purpose and that the "proof of thuth" which is a special defence given to the accused in a defamation case is not contrary to the principle of the presumption of innocence safeguarded by Article 6, paragraph 2 of the Convention. The applicants in that case complained that the presumption of innocence as laid down in Article 6, paragraph 2 of the Convention was violated by the reversal of the burden of proof in the said proceedings in which although being the accused, they were required to prove the truth of their statement and also because the principle in "Dudio pro reo" which in their view formed part of the presumption of innocence was not applied to them.
The Commission held that
"The particular method chosen by the Austrian legislature to regulate the private prosecution offence of criminal defamation in the press is to lay down a general criminal liability for statements which per se may be considered as defamatory (s. 111(1) and (2) of the Penal Code) and to provide for a special defence if the accused can prove that truth of his statement (ss:111(3) and 112 of the Penal Code). In other words: It is a criminal offence to damage somebody's reputation by statements in the press unless one can prove that these statements are true............................. What matters for the purposes of Article 6 is that all the elements of the offence, except for the truth of the statement at issue, have to be proven in the normal way by the prosecution, i.e. by the private prosecutor. As regards the existence of an objectively defamatory statement concerning the private prosecutor, and the criminal responsibility of the accused for its dissemination in the press there is therefore no question of a shifting of the burden of proof, not of an exclusion of the principle 'in dubio pro reo'. In these respects, the mutual position of the parties to the criminal proceedings is exactly the same as in all other criminal proceedings.
The burden of proof is, however, shifted to the defence as regards the establishment of the truth of the statement at issue. This in no way means that the accused has to prove his innocence because he can only be considered as innocent if he has not committed the offence. The offence as conceived in the applicable provisions of the Penal Code, however, can even be committed by a true statement: What exculpates is not the objective truth of a defamatory statement, but ability to prove its truth. In this way the law intends to compel the author of such statements to make sure in advance that what is being said can also be proven as true, i.e. it imposes a particular standard of care on everybody who makes defamatory statements in the press. Similar regulations also exist in may other Convention States. The reputation of the victim is protected in this way not only against untrue statements but against any allegations, the truth of which cannot be proven by their author and in respect of which it would be unfair to impose a negative proof on the victim. The Commission considers that in view of this object of the legislation it is not inappropriate to make use of the legal technique of a defence, commonly referred to as the 'proof of truth', to covet the exculpating element. There is therefore no appearance of a violation of Article 6(2) of the Convention in the present case, and the applicants' complaints in this respect must be rejected as being manifestly ill-founded within the meaning of Article 27.2 of the Convention".
What is happening under subsections 1 and 4 of section 6 that all the elements of the offence under subsection 1 have to be proved in the normal way by the prosecution except that a rebuttable presumption is created in the sense that any speed in excess of the limit prescribed by the Law is deemed to be likely to endanger human life or cause harm or injury to any person or property within the meaning of subsection 1, which may be dispelled by the accused.
The shifting of the burden of proof of such issues to the defence in no way means that the accused has to prove his innocence as he can only be considered as innocent if he has not committed the offence created by section 6, subsection 1, that is to say if he has not committed the acts which constitute the elements of such offence.
Subsection 4 of section 6, does not introduce a legal fiction in the form of irrebuttable presumption precluding the investigation into the circumstances of the speed. What it does is to introduce a defence, a legal technique to cover, as it was put in the Lingens Case (supra) the exculpating element.
We do not intend to deal at length with the further contentions that the presumption introduced by subsection 4 of section 6, is in conflict with other Articles of the Constitution, such as Article 30, paragraphs 2, 3(b) and (c) or Article 12.1, (4), (5), as there is no merit in such contentions. As they are all based on assumptions that do not exist when the legal character and significance of section 6, subsection 4 is seen as we have seen it in this case. Neither the right of an accused person to examine or cause the examination of prosecution witnesses is rendered valueless, not the right to a fair hearing is in any way interfered with.
We had to deal at some length with this issue because the approach of the learned trial Judge has, as counsel for the appellant said, brought to a standstill numerous prosecutions awaiting the outcome of this appeal. The appeal, however, as such has to be dismissed as we are not prepared to interfere with the factual aspect of this case and the conclusions drawn on the evidence adduced by the learned trial Judge, on the strength of which he in any event found that the accused's speed, in the light of all the circumstances particularly the nature, condition and use of the road in question as well as the amount of traffic that existed or might reasonably be expected to exist at the time on the road in question, was not dangerous and, that on the totality of the evidence the prosectuion had failed to prove its case beyond reasonable doubt.
Before concluding we would like to point out that in England there exist two distinct offences in relation to speed, the one under section 2 of the Road Traffic Act, 1972, now under section 50 of the Criminal Law Act 1977 which corresponds to section 6(1) of our Law and the other driving at a speed which is in excess of the speed limit section 203 of the Road Traffic Act 1972, which has no corresponding provision in Cyprus and which is a less serious offence than that of driving at a speed likely to endanger human life or cause damage to any person or property. The offence of speeding is constituted by driving in excess of the speed limit regardless of whether the speed is dangerrous or not. The introduction of such an offence would simplify matters and could serve admirably the purpose of controlling driving at excessive speed, particularly in built up areas. We trust that the appropriate authorities will take note of this observation.
As we have already said and for the reasons given in this judgment this appeal is dismissed.
Appeal dismissed.
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