Court acquits accused for prosecution's failure to call a material witness despite credible evidence of innocence.

[*195] 1983 Nov. 22

(KALLIS, AG. D.J.)

IN THE DISTRICT COURT OF NICOSIA

Nicosia Police,

v.

Evripides Venizelou,

Accused

(Case No. 8511/82).

Criminal Procedure - Trial in criminal cases - Duty of prosecution to call all material witnesses.

P.S. Efthymiou, for the Prosecution.

M. Iacovou with E. Stavrou (Miss), for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS. AG. D.J.:- Whilst the accused[*196] was driving his car on the old Nicosia - Limassol road, in the direction of Limassol and near its junction with the side road leading to Ayia Varvara village ("the side road") he collided with a car driven in the same direction by P.W.2. Hence the prosecution of the accused on one count of the offence of driving a motor vehicle on a road, without due care and attention contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72).

According to P.W.1, P.C. 544 Nicos Nicolaou, who went to the scene to investigate the accident the width of the road there is 26’ and on each side thereof there is a usable berm of 38" width. The road is divided by a continuous white line but at the level of its junction with the side road it becomes dotted. The point of impact - X on the plan exhibit 1 - was 10' fi" from the left edge of the tarmac in the direction of accused. The car of P.W.2 at its resultant position was within the right lane and part of it within the side road. The car of the accused a 7' x 24'6" lorry was damaged on the front part and the car of P.W.2, a 5'6" x 12' land rover on the rear part. When at the scene P.W.2 in the presence of the accused alleged that he had stopped on the left side of the road, having previously indicated with his trafficator that he will turn to the right - to the side road - but he waited because of the presence of oncoming cars. On the other hand accused alleged that P.W.2 wwas stationary but his trafficator was indicating that he will turn to the left and so he attempted to overtake him. The car of accused left brake-marks of a length of 31'.[*197]

In cross-examination he said that when the above respective allegations were made at the scene by the two drivers another driver, who is mentioned in the statement of the accused, was, also, present and he confirmed the allegation of accused and, also, said that he had overtaken P.W.2 at a certain point of the trip.

I deem it convenient at this juncture to state that though a statement was taken from this witness by the Police he was not called as a witness and no explanation was tendered for not calling him.

P.W.2 Panayis Michael Panayi testified that when at a distance of about 50' from the side road he indicated with his trafficator and with his hand that he will turn to the right; that at the time of indicating he was on his own side of the road with his right wheels next to the dividing line. when near the side road he stopped because of the presence of oncoming cars on the main road; and whilst stationary he noticed through his mirror the lorry which knocked on the rear side of his car.

In cross-examination he said that there was a line of about 10 oncoming cars, one of them a trailer, and had he turned without stopping the trailer would have dissolved him; that when knocked by accused his car moved about 2' ahead. At a later stage he said that the car went to the riaht of the road and part of it into the side road.

Pausing here I would observe that though the distance of the [*198] car of P.W.2, at its resultant position and from the point of impact is not given and the plan is not to scale, from the other distances given in the plan it can safely be inferred that P.W.2 moved much more than 2' after the impact. When this inconsistency was put to him he said that he could not remember because of the lapse of much time. He, also, said that he did not remember the third driver saying anything.

When the accused was called upon to make his defence he adopted from the dock his statement to the police which so far as relevant is to the effect that just before the accident he had been driving behind two cars, a land rover and a lorry; that near Ayia Varvara road the land rover was indicating with its trafficator that he will stop to the left of the road and the lorry which was preceding him (the accuse) overtook the land rover and reduced speed in order to stop to the left of the road; that thereafter having noticed that there were no oncoming cars he drove more to the right in order to overtake the land rover and at the moment he was near it and was preparing to overtake it it (the land rover) was driven on to the right side of the road and cut his path; that he immediately applied brakes but as the land rover decided to drive to the right suddenly he did not manage to stop and as a result he knocked on the rear part of the land rover; that at the time of the impact the land rover was indicating with its trafficator that it will turn to the left.

As it will be seen from the above narration of the events that [*198] led to the accident there are two sharply conflicting versions as to the circumstances of the accident, one by each side, a state of affairs quite natural because each side is eager to throw the blame on the other thé more so because the side at fault may not only face criminal sanctions but also may be liable to pay damages; and though the prosecution had in its hands a statement from an independent eyewitness which might have assisted the Court to administer justice it failed to call him. This Court is not conversant with the contents of his statement but P.W.l said that at the scene he confirmed the allegation of accused. This being the position one may be tempted to conclude that the reason for not calling him is because his evidence was favouring accused. Having said this I would, also, state that I consider it the duty of the prosecution to call all material witnesses; and in this connection I can do no more than quote the following passage from the judgment of Lord Denning M.R. in Dallison v. Caffery (1965) 1 Q.B. 348 at p. 369.

"The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish."[*200]

I would, also, quote the following passage from the judgment of Diplock L.J. in the same case at pp. 375-376.

"This contention seems to me to be based on the erroneous proposition that it is the duty of a prosecutor to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person. A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence (see Rex v. Bryant and Dixon 31 Cr. App. R. 146). But it is not the prosecutor's duty to resolve a conflict of evidence from apparently credible sources: that is the function of the jury at the trial."

(See also Archbold 41st ed. para. 4-178) .

Now with regard to the evidence adduced having closely followed the witnesses whilst testifying before me and having had the opportunity to observe .their demeanour in the witness box I have no hesitation at all to believe and accept the evidence of P.W.l. Regarding the evidence or P.Vhi! same cannot be accepted both due to his demeanour: he was hesitant and slow to answer all questions that were put to him in cross-examination - and because he denied a most material event namely the allegation of the driver who had overtaken him, and[*201] also because of the material contradiction in cross-examination regarding the distance covered by his car after the impact. Having anxiously considered his evidence I arrived at the conclusion that it is not the quality of evidence that may assist the Court to make findings of fact in a criminal case and it will,

therefore, be rejected. In, the light of my findings as to credibility there arises the question whether there remained any other

evidence satisfying the Court beyond reasonable doubt that accused is guilty of the offence charged. Having considered the remaining evidence I find that it cannot support the charge and accused will, therefore, be acquitted and discharged.

Having concluded as above I would add that even if the testimony of P.W.2 were to be accepted and relied upon again I would not, in view of the failure of the prosecution to call a most material eye-witness, or make his statement available to the defence, have convicted the accused. (See the Dallison case, supra,and Fournaris V. The Republic (1978) 2 C.L.R.20 at n.24).

Accused acquitted and discharged.