Criminal appeal allowed; careless driving conviction overturned due to lack of evidence for failure to take necessary precautions.

[*526] 1972 May 26

(L. LOIZOU, A. LOIZOU, MALACHTOS, JJ.)

APPELLATE JURISDICTION

Costas Andreou,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3347).

Road Traffic - Careless driving - Sections 6 and 13 of the Motor Vehicles and Road Traffic Law, Cap. 332 - Accident - Eight year old children, emerging from between two stationary buses, knocked down whilst attempting to cross road - In the light of the evidence and circumstances of the case appellant did nothing which could constitute the offence charged - And trial judge's conclusion that appellant "failed to take all necessary precautionary measures" cannot be sustained on the facts as found by him - Triftarides v. Police (1968) 11 J.S.C. 1224 followed.

S. Erotokritou, (Mrs.), for the Appellant.

N. Charalambous, Counsel of the Republic, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by: -

L. LOIZOU J.: The appellant was convicted [*527] by the District Court of Nicosia for driving a motor car without due care and attention, contrary to sections 6 and 13 of the Motor Vehicles and Road Traffic Law, Cap. 332.

The facts as found by the trial Court and as they appear from the record of the proceedings are briefly as follows:- On the 22nd November, 1971, at about noon, the appellant was driving his car under Registration No. DY 422, a small pick up van, along Gregoris Afxentiou Street in Ayios Dhometios in the direction of Nicosia. At a certain point of the said street, opposite a petrol station, there were parked two buses, the one about 20 feet behind the other, both facing in the opposite direction. The road at the scene is 19 ft. 6 inches wide and as it was drizzling at the time it was wet.

Two eight year old children who were going home from school tried to cross the road from appellant's offside to his nearside. In fact, they emerged from between the two stationary buses, and according to the evidence of one of the children, they hastened across the road in their attempt to get to the other side, whereas according to the evidence of the appellant they ran across the road. The learned judge does not seem to make a clear finding as to this, but we think that it is clear from the judgment that he rather adopts the appellant's version.

At this moment, the appellant, according to the finding of the learned trial judge, was about 57 ft. away from the a children, driving on his correct side of the road and at a speed of about

20 m.p.h. When he saw the two [*528] children run across the road, he applied his brakes, went further to his left in an endeavour to avoid the accident, but unfortunately this he did not manage to do, and as a result, either the children knocked on the front of his car after it came to a standstill or he knocked the children, fortunately very lightly, while his vehicle was still in motion; here again the learned trial judge makes no finding. The point of impact, as well as all other points, appear on a sketch which was prepared by a police witness and admitted in evidence as exhibit 1.

In an open statement to the police, appellant said that he first saw the children from a distance of 25 ft. running across the road and that he could not avoid the accident. The motor car, as it appears from the sketch, left 24 ft. brake marks, and bearing this in mind, and also taking into account the thinking distance, the learned trial judge, quite correctly in our view, found as a fact that the appellant must have seen the children not from 25 ft., but from some 57 ft. It would appear from the judgment that in view of this, and in view of the fact that 250 or 300 yards from the scene there was a sign post giving warning that there was a school in the vicinity, the judge came to the conclusion that the accused failed to take all necessary precautionary measures and found him guilty of the offence charged.

Having heard learned counsel on both sides today, we are clearly of opinion that, in the light of the evidence and the circumstances of the case, the appellant did not do [*529] anything which could constitute the offence charged and that the judge’s conclusion that "he failed to take all necessary precautionary measures" cannot he sustained on the facts a s found by him. In this respect useful reference may be made to Triftarides v. The Police (1968) 11 J.S.C. p. 1224.

In the light of the above we have no difficulty in allowing this appeal.

Appeal allowed;

conviction set aside.