Court allows appeal dismissing careless driving conviction due to lack of expert evidence on brake marks and unreliable bus driver testimony.

[*1530] 1972 September

(TRIANTAFYLLIDES, P., L. LOIZOU, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Charalambos Constantinou,

Appellant,

v.

The Police,

Respondent

(Criminal Appeal No. 3362).

Road Traffic - Careless driving - Section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332 - Young boy knocked down by motor vehicle whilst attempting to cross road in front and to the right of said motor vehicle and immediately after a bus coming from the opposite direction had passed by - Finding of careless driving based on non-expert evidence about length of brake marks and on evidence of driver of said bus - No safe

conclusion could be drawn from said brake marks in the absence of expert evidence, nor could the said drivers evidence be relied on as being accurate - Prosecution having to establish positively careless driving as part of the conduct of the appellant, in the particular circumstances of this case and on the basis of the material on record, careless driving not so established beyond reasonable doubt.

L. Papaphilippou, for the Appellant.

N. Charalambous, Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by.-

TRIANTAFYITIDES. P.: The appellant has [*1531] appealed against his conviction in respect of the offence of driving a motor vehicle without due care and attention, contrary to section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332.

The salient facts of the case appear to be as follows:-

About midday on the 23rd April, 1971, while the appellant was driving a motor vehicle a taxi - on a road in Strovolos, and immediately after a bus-which was coming from the opposite direction had passed by, a young boy attempted to run across the road, in front and to the right of the approaching vehicle of the appellant. The appellant applied immediately the brakes but he did not manage to avoid hitting the boy, who was injured as a result of the collision.

In view of the fact that the brake marks, left by the vehicle of the appellant were nearly 34 feet long and because the driver of the bus testified that he estimated the speed of the appellant s vehicle to be about 33 miles per hour the trial Court found the appellant guilty as charged.

In our opinion the estimate of the driver of the bus regarding the speed of the vehicle of the appellant could not have been relied on as being accurate because at the time the two vehicles were passing by each other from opposite directions and it was therefore quite possible for the driver of the bus to overestimate, in view of the speed of his own vehicle, the speed of the oncoming vehicle of the appellant. Nor, in the absence of any expert evidence [*1532] on this point, could there be drawn from the said brake marks any safe conclusion concerning the speed at which the appellant was proceeding (see in this respect HjiGeorghiou v. The Police - Cr, App. 3354 - not reported yet).*

It is true, bearing in mind the length of the brake marks, that the appellant must have seen the boy from a distance longer than 34 feet; but it cannot, in the absence of any expert evidence regarding the “thinking distance” that must have preceded the application of the brakes, be found exactly how far away was the appellant when he first saw the boy.

To prove the commission of the offence in question the prosecution must, as pointed out in, inter alia, Triftarides v. The Police, (1968) 11 J.S.C. 122U, at p.1227, establish, positively, careless driving as part of the conduct of the accused; and the Triftarides case has been recently applied in Andreou v. The Police. (1972) 5 J.S.C. 526.

In the particular circumstances of this case - which are similar to a certain extent to those of the Andreou case - we have reached the conclusion that the verdict of guilty of the Court below cannot be sustained because on the basis of the material on record the appellant could not have been found guilty with the certainty required in a criminal trial: The appellant was faced with a situation in which a boy made a sudden dart across the road in front of him; as this happened immediately after a bus had passed [*1533] by while coming from the opposite direction and as the boy came from the right of the appellant it seems that the boy came into the field of vision of the appellant after the bus had passed, and at a rather short distance away; and the appellant applied immediately his brakes in an effort to avoid a collision with the boy. We cannot hold that there has been established positively, beyond a reasonable doubt, careless driving on the part of the appellant; and counsel for the respondents, rightly in our opinion, did not support the conviction.

We, therefore, allow the appeal and set aside the conviction of the appellant, as well as the sentence imposed on him.

Appeal allowed.

* Now Reported in this Part p. 1527 ante.