Supreme Court allows appeal against conviction for driving without due care due to material contradictions in prosecution witness evidence.

[*946] 1970 September .25

(VASSILIADES, P., STAVRINIDES, HADJIANASTASSIOU, JJ. )

APPELLATE JURISDICTION

Nicolas Elia Maratheftis,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3195)

Road Traffic - Driving omnibus without due care and attention - Section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332 - Girl of six knocked down by bus- Conviction -Appeal - Material contradictions in the evidence of prosecution witnesses - Findings and inferences upon which conviction based unsatisfactory - Negligence necessary to support offence charged, not established - Appeal allowed.

Ph. Clerides, for the Appellant.

V. Aristodemou, Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

VASSILIADES, P.: The appellant was convicted in the District Court of Kyrenia on August 4, 1970, for driving [*947] an omnibus on a public road on October 13, 1969, without due care and attention, contrary to section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332.

The conviction was based on the findings of the trial Judge which are challenged on behalf of the appellant mainly on the ground of vagueness and uncertainty. Briefly the facts of the case are: A young girl of the age of 6, was knocked down at the side of the road, by a passing vehicle, driven by the appellant.

The case for the prosecution, as presented to the trial Court, by two eye-witnesses - one of them the mother of the child - is that the girl, while playing with other children in a field on the other side of the road - the side of the hill - called out to her mother, who was, working in the front garden of her house a short distance from the field where the chilren were, that she (the girl) wanted to go home. The mother stated in evidence that she nodded to the girl with her head to go home; whereupon the girl proceeded to the path leading to the main road and crossing the road to

the berm on the other side - the side of her house - proceeded some short distance on the berm, when the mother, feeling that the girl

was now safe on the side of the road, turned her attention back to her work. She, therefore, did not see, she. said, the accident which occurred very soon after she looked away from the girl.

The child, fortunately, was not seriously injured. The appellant stopped his vehicle immediately after [*948] realising that he had knocked down the child. He and several of his 30 passengers got down to the road, picked up the girl who seemed to have, been only slightly injured; and one of them taking a lift in a passing vehicle took the girl to hospital. The appellant remained there with the 'bus’ until the police arrived soon after.

The police took measurements and prepared a plan which was produced at the trial as exhibit 1, and is now before us. The plan shows the path from which the girl came to the main road and crossed to the other side. It also shows two points on the side of the asphalt

where the girl was knocked down.: (1) The point shown by the appellant and (2) the point shown by one of his passengers as the point where the

collision occurred. Both these points - quite near one another - place the girl one foot inside the asphalted surface of the road, and not on the berm, while the mother of the girl and the other prosecution witness, who said that they saw the girl crossing the road, told the Court that the girl had already crossed the road to the berm on the side of her house and had proceeded on that berm for a short distance, before the accident occurred.

The plan also shows, the tyre-marks on the asphalted surface of the road caused by the tyres of the 'bus' when its driver took avoiding action in an obvious attempt to avoid the girl.

Appellant's explanation of the accident, is that he suddenly saw "something like a shadow" crossing in front of his 'bus’ which he tried to avoid by swerving to his [*949] right; tout had not been able to do so and knocked that "something" by the near side of his vehicle.

With this evidence before him, the trial Judge reached the conclusion that the charge has been established. He found the negligence necessary for reaching such a conviction in inferences which he put in at least three alternatives in his judgment. He took the view that "as a reasonable prudent driver, he (the appellant) ought to have seen the girl from quite a distance, or at least as soon as she started crossing over the road, or even whilst the girl was proceeding on the left side of the road towards the same direction as the accused".

This is based on the evidence of the girl’s mother and P.W.2 C. Polydorou. However, there are material contradictions between the accounts of these two witnesses, and the prosecuting officer submitted to the Court that the letter’s evidence should not be accepted. Indeed, their evidence can. hardly be described as convincing and reliable. It is inconsistent with the points shown as points of impact; and with the tyre marks on the asphalt, caused by the driver's attempt to avoid the child.

We have no difficulty in reaching the

conclusion that the findings and inferences upon which the conviction is based are unsatisfactory; and that on the evidence before the Court the negligence which is necessary to support the charge of driving without due care and attention has not been established. The appeal must, therefore, be allowed and the conviction be set aside.

Appeal allowed; conviction set aside; appellant discharged.

Appeal allowed.