Court dismisses charge of causing death by negligence due to insufficient evidence of fault.

[*145] 1979 February 1

(NICOLAOU, AG.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Police,

v.

Nicos Kyriacou Kallenos

Accused.

(Case No. 7293/78).

Criminal Procedure - Trial in criminal cases - "Prima facie” case - Principles applicable - Section 74(1 ) (b) of the Criminal Procedure Law, Cap. 155 - Charge of causing death by want of precaution or by a rash or careless act - Section 210 of the Criminal Code, Cap. 154 - No sufficient evidence to substantiate the negligence required thereunder - Prosecution has failed to make out a prima facie case against accused sufficiently to require him to make his defence.

Police Constable Constantinides, for the Prosecution.

E. Efstathiou, for the Accused.

RULING

The following ruling was delivered by:-

NICOLAOU, Ag.D.J. The accused in this case [*146] faces a charge of causing death by want of precaution or by a rash or careless act contrary to s. 210 of the Criminal Code, Cap, 154.

The charge arises out of a road accident which occurred on 12.12.1977 at about 9.00 a.m. on Strovolos Avenue and in which motor lorry under Reg. No. HW.364 driven by the accused and one Orthodoxia Chrysafi, late of Strovolos, a pedestrian were involved.

At the close of the case for the prosecution learned counsel for the accused submitted that the prosecution failed to make out a prima facie case sufficiently to require the accused to make his defence, in that the evidence adduced by the prosecution did not disclose such negligence as would be required to substantiate the offence charged or any negligence at all for that matter; and thus an essential ingredient, indeed the very substratum of the offence was missing.

This Court has repeatedly had occasion to advert to the principles applicable in determining whether a prima facie case has been made out against an accused sufficiently to require him to make a defence.

The very useful case of Rex. v. Mustafa Kara Mehmet, 16 C.L.R. p. 46 often cited in this regard really concerned the interpretation of a legislative provision different from that contained in s. 74(1)(b) of the Criminal Procedure Law Cap.

155. However, the Supreme Court

did in that case equate the meaning and effect of the provision it [*147] had been called upon to interpret with the

well established concept of a prima facie case or case to answer as this is more often termed in England; and further proceeded to consider the implications of the difference in this context between trial by jury and trial where the judge also sits at a tribunal of fact. The Supreme Court’s approach to the problem on that occasion is with respect just as valid to-day, and the peculiar wording of the present legislative provision does not change the position at all. This is confirmed by the recent case of the Attorney-General v. Morphitis (1975) 2 C.L.R. p. 138 in which reference is made with approval to the decision in R. v. Mustafa Kara Mehmet (supra) (per Triantafyllides P. at p. 140).

The Practice Direction issued by the Divisional Court of the Queen’s Bench Division of the High Court of Justice in England in (1962)1 All E.R. 448) for the assistance of Magistrates apty lays down the position and forms a practical guide that has over the years proved of immeasurable assistance to trial courts hearing criminal cases without a jury. This Practice Direction is so well known that I need hardly repeat its content here.

Further, a number of English cases give some guidance in the matter. (See inter alia: Wiseman & Another v. Borman and others (1967) 3 All E.R. 1047; Ellis v. Jones (1973) 2 All E.R. 893; Vye v. Vye (1969) 2 All E.R. 29; R. v. Mansfield (1978)

2 All E.R. 134). I have also derived considerable assistance from the approach to the problem by Pikis Ag. P.D.C. as he then was in a Ruling in the case of the Police v. Psaras Crim. Case No. 3999/73 of the District Court of Famagusta. [*148]

In the light of the principles applicable, the said provision contained in s. 74(1)(b) must not be interpreted as merely referring to the implications of the evidence as it appears on the face of things but as extending to and in fact consisting of evidence sufficiently credited by the tribunal of fact and capable of giving rise to a presumption of guilt. The notion of "prima facie" does not merely refer to the quantum of evidence and the objective or superficial implications of it, but to its intrinsic quality as well and its sufficiency to give rise to inferences of guilt. The Court must even at this stage, direct its mind, though only provisionally (see Cozens v. Brutus (1972) 2 All E.R. 1), as to whether the evidence adduced may be relied upon. For example, have the witnesses been believed? And in any event would the Court be prepared to act upon their testimony? What s. 74(1)(b) envisages is that at the close of the case of the prosecution there must be such credible evidence before the Court, sufficient to give rise to a presumption of guilt which if unrebutted may lead to the conviction of the Accused. At this stage of course the Court is only concerned with presumptions of guilt as opposed to conclusions of guilt: with whether in other words the accused may be guilty and not with whether he is; and here lies the essential difference between the evidential burden cast on the prosecution at this stage and the one at the end of the trial. But the Court must always restrict itself to

the narrow confines of the evidence and endeavour to make a realistic [*149] appraisal of it: a reasonable suspicion is

not sufficient to give rise to a prima facie case, (See Shaban Bin Hussein v. Chong Fuk Kam, (1969) 3 All E.R. 1626 P.C.); and the presumption of guilt must be real end not fanciful. In

short, an accused should only be called upon to make his defence if the prosecution presents evidence strong enough in substance such as would make his conviction a real possibility unless he provides some answer to it - otherwise he will be called upon not to defend himself but to supply defects in the evidence for the prosecution.

In respect of the offence created by s. 210 of the Criminal Code, Cap. 154 what has given rise to difficulty in the past has been the degree of negligence required under the section. It was laid down by the Supreme Court in the case of Christos Rayas v. The Police,

19 C.L.R. p. 308 following the Privy Council decision in Dabholkar v. The King (1948 ) A.C. 224 that there were three categories of negligence. At the lowest rung of the ladder there was that degree of negligence required to establish what may be described as the Regulatory offence of careless driving (now under s. 8 Of the Motor Vehicles and Road Traffic Law of 1972) which was the same as that required to establish liability for negligence at civil law, and no higher. At the highest end of the scale was to be found what is specified in the Criminal Code as "culpable negligence" and which has been variably described as "criminal", "gross", "wicked", "clear", [*150] "complete": (See the Judgment of Lord Hewart C.J. in R. v. Bateman (1925) All E.R. Rep. 45 and the judgment of Lord Atkin in Andrews v. The D.P.P. (1937) 2 All E.R. 552). In R. v. Lowe

(1973) 1 All E.R. 805, Andrews case (supra) was cited with approval, the Court accepting the position as stated by Lord Atkin at p. 555 where he said:-

"For purposes of the Criminal Law there are degrees of negligence and a very high degree of negligence is required to be proved before the felony (of manslaughter) is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case."

In between these two categories is to be found that degree, of negligence which is required under s. 210 of the Criminal Code. This I take as established law recently affirmed by the Supreme Court in the case of Paula Mcleod v. The Police (1973) 2 C.L.R. p. 63, despite the doubts that had been cast on the correctness of the decision in Rayas case (supra) in Nearchou v. The Police (1965) 2 C.L.R. p. 34. Though the Supreme Court in Mcleod's case (supra) found support for its decision from the case of R. v. Lowe (supra) I must say with respect that I fail to see how this latter carried the matter any further. The position was nonetheless put in the right perspective by the following passage in Mcleod's case (supra) at p. 66:

"Though in the case before us we are not dealing with a charge of Motor manslaughter [*151] (as in the Andrews case), we are dealing nonetheless with a charge for a crime against the state - under the Criminal Code (s. 210) - which involves, as decided in the Rayas' case, a degree of negligence beyond that required for liability at Civil Law".

Thus this threefold classification of negligence should be constantly borne in mind though this does not of itself go very far in solving the practical problem of gauging or placing negligence in magnitude which must ever remain a matter of value judgment. Whilst on this matter I should add that in determining whether such negligence exists as would substantiate the offence under s.210, an objective test must be applied and this has never been doubted. Before considering further the submission made by counsel it is necessary to sketch the scene briefly and comment on the evidence adduced by the prosecution. Of course as has already been intimated any findings of fact made at this stage are only provisional as the Court must preserve an open mind to the very end of the proceedings (Cozens v. Brutus (1972) 2 All E.R. 1 )

The scene of the accident appears from a plan to scale (Exhibit 1) prepared by P.W.1 a police constable who visited the scene a little while later and after surveying same took various measurements in the presence of the accused and recorded pieces of real evidence found there as well as the point of impact pointed out to him by the accused as the point where the said pedestrian was struck by the accused's said Motor-lorry or vice versa – [*152] it really makes no difference here. Further, various photographs (Exhibit 2) taken of the scene and of the said vehicle by this witness make things come alive (the pun is unintentional). I say this despite the dispute that has arisen between the defence and the prosecution on the accuracy of the portrayal of matters of detail by such photographs to which I am not inclined to attribute any particular importance and which does not in any event relate to the reference I make of them in the present context. In view of tho nature of the central issue that arises for consideration in the present Ruling I feel that a detailed description of the scene would be quite superfluous for it would not of itself in the circumstances offer any tangible assistance in resolving the matters in hand. Suffice it to say merely that Strovolos Avenue at the scene had an asphalt width of 18 ft. with usable berms on either side 6 ft. wide on the left side with reference to the direction of Lakatamia and some 18 ft. wide on the opposite side though slightly narrower prior to the point of impact always with reference to the same direction.

Before proceeding any further I should say here that there is sufficient evidence before me that the said pedestrian was Orthodoxia Chrysafi late of Strovolos who by reason of the road accident in question sustained fatal injuries which caused her death a little later on the same day, and on this there has been no dispute.

The case for the prosecution rests essentially on the testimony of P.W.7. This witness testified that [*153] the said pedestrian who was a very old woman together with a young boy who accompanied her were passengers in the bus he was driving along Strovolos Avenue in the direction of Lakatamia and both alighted at the bus stop near Demos Supermarket which latter was on the opposite side of the road a little further down, Whilst the bus was still stationary P.W.7 saw the said pedestrian walking along the left berm with reference to the same direction and after covering some 40 paces, the boy following a little distance behind, she moved to cross the road.

At that time P.W.7 had just glanced in his rear view mirror for the purpose of checking whether the road was clear so that he could move off and had seen a lorry coming. When the said pedestrian started crossing the road the said lorry had just passed him; the pedestrian went on in her endeavour to cross the road never stopping at all in the meantime; the lorry swerved to its right to avoid running down the pedestrian but inexorably, the pedestrian went on to collide with the left front corner of the body (kasia) of the lorry some feet from the ground.

The point of impact was about 8½ ft. from the left edge of the asphalt from where the pedestrian started crossing. The lorry too went on and stopped according to the measurements taken by P.W. 1 at a distance of about 60 ft. further down, though P.W.7 estimated this distance as about 20-25 ft. Again according to the measurements taken by P.W.1 the distance between the bus stop and the point of impact was 89 ft. But I would not attribute much significance to distances of this [*154] order in such circumstances. Whatever might have been the actual distance of the said pedestrian from the bus when she started crossing the road there is no indication from what distance she would have been visible to the accused; though again in the present case I cannot see what difference it would have made; her presence by the edge of the road could not necessarily and without more have put a driver on his guard.

One must never lose sight of present day traffic realities. In his statement to the police (Exhibit 3) the accused admitted that he never applied brakes prior to impact, believing that he stood a better chance of avoiding the pedestrian if he swerved to his right rather than by applying brakes in which case his lorry might have continued in a straight line if his heels locked. In his said statement to the police the accused gave his speed as about 20 m.p.h. No brake marks were left by the lorry at the scene.

P.W.7 was firm in his assertion that the pedestrian was crossing at a normal pace in a stooping fashion, whereas the defence hotly disputed this and suggested what the accused had alleged in his said statement to the police, namely that the pedestrian had been running. But I must say that P.W.7 made a good impression on me and I feel I could safely rely on his testimony which I regard as sufficiently accurate. However, I do not regard the pace of the pedestrian as crucial, for in the event this does not detract from the fact that she suddenly presented herself in front of the moving lorry. The last point on which I would like to comment is the allegation of the accused in his said statement that he only noticed the pedestrian from a [*155] distance of 1½ metres. This I regard as a mere understatement made possibly to better his position nor should it be expected that a driver would in all such cases be in a position to make a realistic estimate of distance when his attention must of necessity be absorbed by the imminence of the danger before him.

What therefore remains to be decided is whether there is sufficient evidence to substantiate the negligence required under s. 210 of the Criminal Code. The answer comes without difficulty and is in the negative. Of course the question of negligence whatever the degree of it required may be is always a factual question depending on all the circumstances of the case. (See Panayiotou v. The Police (1972) 2 C.L.R. p. 29) and must be positively established by the prosecution as part of the conduct of the accused constituting the offence (see Triftarides v. The Police (1968) 2 C.L.R. p. 140). In the present case I fail to see how the accused might be faulted. There does not appear to be even a semblance of what might be described as that high degree of negligence required under s. 210 of the Criminal Code.

I have also directed my mind as to whether there is sufficient evidence before me to call for an answer on a charge of careless driving and if so whether I should exercise the powers vested in me by s. 83 of the Criminal Procedure Law Cap. 155 in adding a new count under s. 8 of the Motor Vehicles and Road Traffic Law of 1972, but in my view there is no evidence pointing to negligence on the part of the accused. The action taken by [*156] the accused in coping with the emergency that presented itself to him though unsuccessful I find to have been reasonable in the circumstances. If in the dilimma in which the accused was placed he acted in the agony of the moment as he in fact did by swerving to the right to avoid the pedestrian rather than by applying brakes, he cannot be guilty of negligence if that might be the reaction of an ordinary reasonable driver. See the Rule in the Bywell Castle (1879) 4 P.D. 219. There is on this point abundant recent authority and I refer to the case of Parkinson v. Liverpool Corporation

(1950) 1 All E.R.367, which, however, was neither doubted nor approved by the House of Lords in Glascow Corporation v. Sutherland (1951 ) W.N.111 which on similar facts was decided the other way. But it is instructive to quote from the judgment of Lord Reid in Mackew v. Holland and Hannen and Cubitts (Scotland) Ltd. (1969) 5 All E.R. 1621 where he said at p. 1624:-

".......I do not think that he (the Defendant) would put himself out of Court by acting wrongly in the emergency unless his action was so utterly unreasonable that even on the spur of the moment no ordinary man would have been so foolish as to do what he did. In an emergency it is natura1 to try to do something to save oneself........"

In the result I find that the prosecution has failed to make out a prima facie case against the accused sufficiently to require him to make his defence. [*157]

The accused is hereby acquitted and discharged.

Accused acquitted and discharged.