Criminal appeal dismissed; court upheld trial judge's finding of driving without due care regarding sheep flock.

[*169] 1971 February 5

(VASSILIADES, P., JOSEPHIDES, STAVRINIDBS, JJ.)

APPELLATE JURISDICTION

Thoukis Leonidou,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No, 324)

Road Traffic - Driving without due care and attention

- Motor Vehicles and Road Traffic law Cap. 332 section 6 Findings of trial Court upheld.

Criminal Procedure -- Costs - Groundless criminal appeals - Warning by Court that unsuccessful appellant will he ordered to pay costs.

Costs - Criminal Appeal - See under "Criminal Procedure".

Ph. Clerides, for the Appellant.

A. Frangos, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by;

VASSILIADES, P.: The appellant, a taxi-driver of the age of 44 was driving his taxi from Nicosia to Famagusta during the night of the 24th to the 25th July last. The time was about two o’clock in the morning. On a curve of the road in the outskirts of Vatyli village the appellant found himself before a flock of sheep proceeding in the same direction. He tried to avoid the flock and the probable consequences of such an accident by applying his [*170] brakes and turning to his right i.e.. towards the part of the road where he thought that he could cause and suffer less damage.

To the flock, on the other hand, the sudden approach of the car in such circumstances, caused excitement and fear in the animals and anxiety in the shepherd. It is unnecessary and futile to try now to describe the confusion which followed and what exactly happened. The result was that nine out of the sheep were found killed on the road. Apart of the evidence of the shepherd, this comes also from the statement of the appellant himself to the police the. following day. This is the statement Exhibit 2. (Extracts read).

The appellant was prosecuted for driving without due care and attention. He pleaded not guilty to the charge; and the Court heard the evidence of the investigating policeman and of the shepherd, a 55 years old man, who was in charge of his flock of 40 sheep that night. Upon this evidence, the prosecution closed their case. Counsel for the appellant submitted that there was no case for the accused to answer. The trial judge called upon the accused; and the latter made a statement from the dock. He said that when he was about 15 or 20 feet from the scene of the accident he suddenly saw the flock crossing the road from right to left; he made an effort to avoid the accident by swerving a little to the right, but he did not manage to avoid running into the flock. He further said that he adopted the contents of his statement to the police (Exh. 2) to which we have already referred. [*171]

On this material before him, the trial judge found the accused guilty as charged and sentenced him to £30 fine together with a bond of £40 for two years to keep the peace. He also ordered the accused to pay £2.570 mils costs. From this conviction the accused took the present anneal on the ground that the finding of the trial Court that he (the appellant) was driving Without due care and attention is not warranted and not supported by the evidence.

We heard counsel for the appellant in his effort to persuade this Court that the findings of the trial judge were unsatisfactory to the extent of making it necessary for this Court to set them aside together with the conviction based upon such findings. (Tattari v. The Republic (1970) 4, J.S.C. 336; Maratheftis v. The Police

(1970) 10, J.S.C. 946.).

After hearing counsel for the appellant, we considered it unnecessary to call upon the other side. Par from being satisfied that the finding of the trial Judge is in any way unsatisfactory, we take the view that this was the only reasonable finding in the circumstances. We must, therefore, dismiss the appeal. We may add that this appeared to be a case where this Court could consider an order for costs against the appellant. We do think that the payment of costs may tend to discourage this type of appeals. But considering that the appellant may have to face a rather big claim for compensation, we thought that we should not pursue further the question of costs to the respondent in this particular appeal.

Appeal dismissed.

Conviction affirmed.