Court acquits on dangerous driving, assault, and disturbance but convicts on failing to produce license.

[*1400] 1972 November.20

(NIKITAS, D. J.)

IN THE DISTRICT COURT OF FAMAGUSTA

Police,

v.

Panayiota Kyrou Stephanou,

Accused.

(Criminal Case No. 7308/72).

Road Traffic - Dangerous driving - Section 5(1) of the Motor Vehicles and Road Traffic Law, Cap. 332 - Offence created thereunder governed by an objective and universal standard - A driver may be guilty of the offence even though no accident has occurred.

Criminal Law - Threatening violence

- Section 91(c) of the Criminal Code, Cap. 154 - Real and substantial threats - And mere idle threats - Distinction - Question of fact whether a given phrase falls within the ambit of the said section - Accused threatening Police Constable whilst being very much upset and excited - Lack of requisite coolness of mind - Effect of words uttered reduced to an idle threat.

Criminal Law - Police - Execution of duty - Assaulting or obstructing police constable in the due execution of his duty - Section 244(b) of the Criminal Code, Cap. 154 - Elements of the offence

- Police Constable in plain clothes taking possession of ignition keys of accused's car - And demanding production of identity card and other documents - Accused excitedly refusing to produce identity card and causing abrasions on Police Constable's hand when attempting to get back the keys - Police Constable not acting in the course of his duty.

Criminal Law - Disturbance - Section

95 of the Criminal Code, Cap. 154 - Offence committed only when one acts without reasonable cause.

Dangerous driving - See under "Road Traffic".

Threatening violence - See under "Criminal Law".

Police - Execution of duty - See, also under "Criminal Law".

Disturbance - See under "Criminal Law".

Sub-Inspector Hji Christos, for the Prosecution.

P. Eleftheriou, for the Accused.

JUDGMENT

The following judgment was delivered by:-

NIKITAS, D.J.: The first charge the accused [*1401] faces in the present case is one of dangerous driving. On the 10th August, last, in the night at 9 p.m., whilst P.W.1, a police constable, was driving his private saloon car in Kennedy Avenue, one of the main arteries in town, he was overtaken by a car driven by the accused, allegedly in a dangerous manner. Soon after, the witness came across that car, after he turned into a Kennedy Avenue side road. He signalled the driver to stop and after alighting, approached the accused for taking down her particulars in connection with a prospective charge of dangerous driving,. The incident that followed gave rise to the remaining five counts. These are:

(2) Threatening violence;

(3) Assaulting a peace officer in the due execution of his duty.

(4) Obstructing a police officer in the course of his duty.

(5) Disturbance; and lastly,

(6) Failing to produce her driving licence for examination.

The account of events as related by P.W.1 will be outlined first. The accused overpassed him on his right at a very fast speed which he estimated at 60-70 m.p.h., drawing to her nearside so close in front of the constable’s car that he was forced to reduce speed for avoiding a collision, adding also that the driver of an oncoming car, which was followed by many other cars and was in close proximity, [*1402] had to slow down as well. It is not in dispute that at the material time there were stationary vehicles on either side of the road. P.W. 1 was firm on the question of speed, indicating in cross-examination that besides being a driver himself, he is attached to the Traffic Branch investigating accidents for the last 15 years. After overtaking, the accused went on in the same excessive speed.

I now pass on to the second stage of events occurring after the accused was stopped in the side road, It is the testimony of P.C. Diplis that after disclosing his identity, he requested accused to produce her driving licence. It must be observed in this connection that he was dressed in plain clothes and was not on duty, taking his family for a ride at the time. The accused informed him that she did not carry with her the driving licence and she was then required to show her certificate of insurance. Upon that, she suggested to the constable that they could go to her house, where she kept these documents so that he could have the opportunity to examine them. Despite this, the constable insisted on the production of her identity and whereupon the accused excitedly refused to hand over to him anything, adding that she did not recognize him as a policeman. Upon telling her that she would be reported, the accused threatened him in these words: "Do you know who I am? I have great power and if you report me, you will lose your life", an allegation strenuously denied by the accused.

Thereafter, the situation worsened and the somewhat worrying aspect of this case developed. When he realised [*1403] that the accused intended to drive away, the witness thought fit to grasp the ignition key, obviously against her will. This conduct apparently infuriated the accused who alighted and attempted to recover her keys from the witness who was holding them tightly in his right hand, causing him abrasions on the hand thereby. Allegedly accused kicked him on the knee and pulled off a button from his shirt as well.

P.W. 1 justified his action of seizing the keys on the dubious, to say the least, grounds that the accused might commit another traffic offence and that she was not known to him. But it must be pointed out that P.W. l did not ask for her name or address or even agree to her suggestion to check the documents at her house, given that he was so anxious to investigate her identity. Nor did he ask the accused to produce the relevant documents at a police station later on as was his usual practice or even arrest her. His fears that she might commit another offence are not happily reconciled with his subsequent conduct in handing the keys to the husband of accused, who arrived in the meantime, and in fact gave them to her for driving away. Not to mention the fact that the accused's front seat passenger was a person very well-known to him. As usual this incident excited the curiosity of passers by, who gathered at the scene.

The gist of accused’s testimony in relation to the charge of dangerous driving is that when she overtook the car ahead at 25-30 m.p.h. the oncoming vehicle was 100 ft. away. In cross-examination she could not enlighten [*1404] the Court as to the speed of that car, a matter which ought to have attracted her attention. Nor did she notice any other vehicles following it, an allegation which she later changed to a positive statement that there were no such vehicles. Her recollection of distances was very poor. Suffice it to mention that she was unable to say what distance she travelled after clearing the overtaken vehicle and before she took to her correct side of the road.

It was the stand of the accused at first that she did not use the threatening words complained of, but when confronted with her answer to the formal charge, she admitted the threat, explaining that she was by then excited and upset.

At some stage of her testimony, she contended that P.W.1 threatened her that he would have her licence cancelled and thereupon she retorted that she had the power to avoid this result. Accused contended further that P.W. 1 pushed her about before taking hold of her key and when her pleas to hand it back failed, she attempted to get them back by grasping his hand. She denies, however, attacking P.W.l in any other way.

D.W.2, a friend of the accused and her front seat passenger on this occasion, supported the main points of the accused's evidence. This witness had a clear recollection of events or conversations between the accused and P.W.l, which might be helpful to the case of her friend, but surprisingly, she insisted that the threats complained of were not uttered at all. [*1405]

I have given very careful thought to the material before me and watched closely the demeanour of all the witnesses who testified. It is a sound principle that the testimony of a police officer must be viewed with caution, especially where his excessive zeal or personal involvement in a case might tend to colour his evidence. However, having scrutinized the evidence adduced, I accept the testimony of P.W.l as to the manner of driving of the accused. She overpassed at a fast speed and then turned sharply to her nearside in front of the car of P.W.l, when oncoming vehicles were in dangerous proximity. It is also in point to refer to the complaint made by P.W.l to the accused's passenger concerning the manner of driving off her companion and the consequent reply, everything said in the presence of the accused, which lends support to the testimony of P.W.l. But I am not taking this fact in isolation. The offence created by section 5(1) of Cap. 332 is governed by an objective and universal standard and a driver may be guilty even though no accident has occurred. Further due regard must be had to all the factors laid down in s. 5(1).

In the light of my findings, I find that the prosecution proved their case beyond reasonable doubt and further find the accused guilty on count 1.

In relation to count 2, there is ample evidence to support a finding that the accused uttered the phrase complained of, the most striking being her answer to the formal charge and her own admission on being pressed in cross-examination. [*1406]

The next question is whether it is the kind of threat envisaged by s. 91(c) of the Criminal Code. The Supreme Court in Kallenos v. Police (1969) 12 J.S.C. 1442, discussed the implications of this crime and made a distinction between real and substantial threats which can onlyfound a charge under that section and mere idle threats. In the case of Kallenos the Court allowed the appeal and quashed the conviction substituting a count of public insult.

It is a question of fact in each case whether a given phrase falls within the ambit of this section. Turning now to the present facts, it is quite clear that they were said after the high-handed action of P.W. 1 in taking possession of the keys. And it must not be forgotten that her three friends and two children were waiting in the car and she must have been very much upset and excited at the time. Thus the coolness of mind which must usually be associated with the words or phrases falling within the scope of this section is lacking in the instant case, reducing their effect to an idle threat which is not really meant. It is my conclusion that the prosecution failed to prove this charge, and I, therefore, acquit and discharge the accused on count 2.

The constituent elements involved in the offence under s. 244(b) are three, namely (a) an assault; (b) committed on a constable; and (c) who at the material time is acting in the course of his duty. It appears from the decided cases that elements (b) and (c) above are subject to strict liability and there is ample authority to the effect that knowledge [*1407] on behalf of the accused of the constable's capacity is immaterial-. (See Forbes & Web (3855} 10 Cox C.C.362 and the recent case McBride v. Turhock

(1964) Crim. L.R., p. 173). As to the general scope of the duty of a police officer, I can do no better than quote the following passage from the judgment of Asworth J., in R. v. Waterfield, R. v. Lynn,(1963) 3 All E.R. 659 at p. 661:-

"In the judgment of this Court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty".

In this case, a police officer tried to prevent the driver of a car, who was earlier involved in an accident from removing it and the accused driver then drove it towards the constable thus assaulting him, who had to jump aside to avoid being s truck. Before doing so, he had reversed and [*1408] touched lightly another constable who was assisting the first. It was held that the constables had no right to prevent the accused from leaving and consequently they were not acting within the scope of their duty. I would also add that the question whether a constable is acting in the performance of his duty is common to the offence of obstructing as well.

It is my conclusion in this case that P.C. Diplis asked the accused to produce her driving licence, the insurance certificate and possibly her identity card. As to the remark alleged to have been made on this last occasion, I cannot exclude the allegation of the accused that she never made it. Especially since she had offered to produce her documents inviting the witness to her house for this purpose.

I also find as a fact that the accused in attempting to get back her ignition key caused abrasions on the witness’s hand. Accused denied the accusation of kicking the witness on the knee or assaulting him in any other way and no supporting evidence was called, although quite a number of people must have witnessed this incident. On the totality of the evidence before me I cannot exclude her evidence on this aspect of the case.

Further, it is quite clear to me that P.W.1 was not entitled to take the ignition key and by doing so he was interfering with the accused and her property. In these circumstances, I find that P.W. 1 was not acting in the course of his duty and accused cannot be convicted of assaulting or obstructing P.W.1 in the course of his duty. Consequently I acquit and discharge her on counts 3 and 4. [*1409]

It is true that these incidents attracted a number of people at the scene, but disturbance is only established when one acts without reasonable cause. This element, which affords a defence to an accused person, cannot be excluded in the circumstances of this case when viewed as a whole. The whole attitude of P.W.1 gave the accused reasonable cause for her reactions. I, therefore, acquit and discharge her on count 5.

Finally, accused did not carry her driving licence on her and, therefore, could not produce it when required to do so. There is then sufficient evidence to support a conviction, as indeed it was conceded by counsel. Accordingly I find her guilty on count 6.