(1987) 2 CLR 86
1987 June 8
[A. LOIZOU, LORIS AND STYLIANIDES. JJ.]
GEORGHIOS KYPROU PORTOKALLIDES,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 4789).
Careless driving — The Motor Vehicles and Road Traffic Law 86/72, section 8 — All that is required for conviction is negligence sufficient to establish civil liability — Pedestrian crossing road diagonically from the right hand side in appellant's direction knocked down, after covering more that 13' feet, at a point two feet away from the left pavement in appellant's direction — Appellant was travelling at 35 m.p.h — Left 55' feet long brake marks — In the circumstances rightly convicted for the aforesaid offence.
Appeal — Credibility of witnesses — Findings of fact — Conclusions drawn therefrom — Principles governing interference by Court of Appeal.
On 16.9.85, whilst the appellant was driving his car along a street in Strovolos, he knocked down a six year old girl, who was in the process of crossing, in a running pace, the said street in a diagonal manner, having emerged from in between two parked cars on the right of the road from appellant's direction.
The width of the street was 21 feet. The point of impact was about 2 feet away from the left pavement in the direction of the appellant. The latter's speed was 35 m.p.h. His car left 55 feet long brake marks. The visibility from the point of impact towards the direction the appellant was coming was about 300 feet. The girl was hit after covering more than 13 feet from the parked cars.
The Court convicted the appellant on the ground that he failed to exercise a proper look out as he did not notice the girl as soon as she emerged from in between the two parked cars. Given the speed of the car, the pedestrian could not cover 13 feet during the space of time the car covered 55' feet with brakes on plus 35' feet thinking distance.
Held, dismissing the appeal: (1) The conclusions drawn by the trial Judge from the primary facts cannot be faulted. Had the appellant exercised a proper look out he would have noticed the girl as soon as she first started crossing the road. (Andreou v. The Police (1972) 2 C.L.R. 55 distinguished).
(2) In the light of the principle that negligence sufficient to establish civil liability is all that is required to support a conviction under s 8. of Law 86/72 and the facts of this case, the appellant was rightly convicted.
Appeal dismissed.
Cases referred to:
Kyriakou v. Kortas and Sons (1981) 1 C.L.R. 551:
Andreou v The Police (1972) 2 C.L.R. 55;
Charalambous v. The Police (1982) 2 C.L.R. 134:
Ming v. The Police (1987) 2 C.L.R. 83.
Appeal against conviction.
Appeal against conviction by Georghios Kyprou Portokallides who was convicted on the 30th September, 1986 at the District Court of Nicosia (Criminal Case No. 3547/86) on one count of the offence of careless driving contrary to section 8 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86 of 1972) and was sentenced by Kallis. D.J. to pay £40.-fine.
A. Magos, for the appellant.
A.M. Angelides, Senior Counsel of the Republic, for the respondents.
A. LOIZOU J.: The judgment of the Court will be delivered by Loris, J.
LORIS J.: On September 30, 1986, the appellant was found guilty by the District Court of Nicosia (Nicosia Cr. Case No. 3457/ 86) of careless driving (Count 1) contrary to the provisions of section 8 of the Motor Vehicles and Road Traffic Law, 1972, (Law No. 86 of 1972) and was sentenced by Kallis, D.J. to a fine of £40.
The present appeal is directed against conviction only.
The salient facts of this case are briefly as follows:
On 16.9.85 at 6.25 p.m. whilst the appellant was driving motorcar under Regn. No. FC 110 along Yiannitson Street, Strovolos knocked down and injured a pedestrian, a six year old girl, who was crossing the aforesaid street at the time.
The width of the street aforesaid at the scene of the accident is 21 feet and on each side thereof there is a pavement of 10 ft wide; the car driven by the appellant left 55 feet long brake-marks and the point of impact (which is marked X on the sketch produced at the trial) was about 2 feet away from the left pavement in the direction of appellant's car. To the right of the road, in the direction of appellant, there were two cars parked (marked B and C on the sketch) and there was a distance of 11 feet in between them. Car C was 15 feet away from the left "pavement and car «B» 18 feet and 6 inches. The visibility from the point of impact towards the direction appellant was coming was about 300 feet.
There was daylight at the time of the accident, the weather was fine and the tarmac dry.
The learned trial judge after hearing and evaluating the evidence adduced made the following findings of fact:
The six year old child was hit by the car driven by the appellant at the time, whilst she was in the process of crossing, in a running pace, Yiannitson Street (within the inhabited and built up area) in a diagonal manner, having emerged from in between the parked cars C and B, and when she was about 2 feet from the left pavement in the direction appellant's car was driven, after covering at least a distance of more than 13 feet from the parked cars until the point of impact.
It was further the finding of the learned trial judge that «just before the accident the accused (appellant) had been driving at a speed of 35 m.p.h and that upon noticing the pedestrian he applied brakes, having left brake-marks 55 feet long and swerved to the left but with no success.... »
The learned judge having listed his findings of fact as aforesaid proceeded to draw his conclusions as follows:
«Having taken into consideration the distance covered by the girl, albeit in a running pace, from the parked cars until the point of impact, I have arrived at the conclusion that the accused has not noticed her immediately after she had emerged from in-between the two cars, but he must have noticed her some time after she had emerged. This is so because the pedestrian could not cover the distance she did cover - at least more than 13' — during the space of time the car of the accused covered 55 with brakes on, plus 35 thinking distance given that the car was driven at a speed of 35 m.p.h. at the time of the accident. In view of this conclusion, I hold that the failure of the accused to notice the pedestrian earlier than he did, given the 300' visibility, indicates that he was driving without a proper lookout and in a manner indicating total disregard of other road users. Had he exercised a proper lookout he would have most definitely noticed the pedestrian when she first started crossing, he would, thus, have been at a greater distance from her and the avoiding action which he took would have been successful. Therefore, accused acted negligently.»
Learned counsel appearing for the appellant argued forcefully against the findings of the trial Court attacking at the same time the conclusions drawn by the Court from the primary facts.
The principles upon which this Court decides appeals directed against the credibility of witnesses are well settled and we need not embark on them in detail. As I had the opportunity to state in Kyriakou v. Kortas & Sons (1981) 1 C.L.R. 551 at p. 553:
«It must be shown that the trial judge was wrong in evaluating the evidence and the onus is on the appellant to persuade the Court that that is so. Matters relating to credibility of witnesses fall within the province of the trial Judge who has the opportunity to see and hear the witnesses. If on the evidence before him it was reasonably open to him to make the findings to which he arrived at, then this Court will not interfere unless the inferences drawn therefrom are not warranted by the findings, whereupon this Court can draw its own conclusions.»
Having considered the submission of counsel in the light of the judgment of the trial Court and the record we are not satisfied that the above findings of the Court below and his conclusions drawn therefrom can be faulted. In fact we would like to go further and say that the conclusions drawn by the learned trial Judge from the primary facts as he found them, were the only inferences that could be drawn in view of the record before us. It is significant to note that the child was hit when only 2 feet away from the pavement on the left hand side of the road in the direction the car of the appellant was driven, after covering a distance diagonically of definitely more than 13 feet; given the 300 feet visibility at the scene of the accident the appellant definitely failed to exercise proper lookout; and we are in full agreement with the learned trial Judge that had the appellant exercised a proper lookout he would have most definitely noticed the girl when she first started crossing and his avoiding action would have been successful.
The case of Costas Andreou v. The Police (1972) 2 C.L.R. 55 cited by learned counsel for appellant must be distinguished from the appeal under consideration; in the first place in the said case the trial Judge did not make findings of fact on crucial issues; furthermore as stated in the said judgment the accused in that case was only 57 feet away from the two children when they emerged into the road, whilst in the appeal under consideration the appellant had a visibility of 300 feet at the scene of this accident.
Bearing in mind (i) the particular facts of the appeal under consideration (ii) that negligence sufficient to establish civil liability is all that is required to support a conviction under s. 8 of Law 86/ 72 (Charalambous v. The Police (1982) 2 C.L.R. 134 at p. 143 –Peter Ming v. The Police (Cr. App. 4796 judgment delivered on 26.5.87, still unreported), we hold the view that the conviction of the trial Court cannot be faulted.
In the result present appeal fails and is hereby dismissed.
Appeal dismissed.
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