Supreme Court allows appeal quashing careless driving conviction where driver acted prudently after sudden unsignalled turn by other vehicle.

[*1287] 1973 October 4

(HADJIANASTASSIOU, A. LOIZOU, MALACHTOS, JJ.) APPELLATE JURISDICTION

Alexander McMorrowd,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No. 3481).

Road Traffic - Careless driving - Section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332 - Collision between two vehicles moving in the same direction - Appellant overtaking car from its left side - At a time when it was moving towards the right and suddenly turned towards the left without signalling intention to do so - Finding of careless driving not open to trial judge on the evidence before him.

Careless driving - See under "Road Traffic".

E. Emilianides, for the Appellant.

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

JUDGMENT

The judgment of the Court was delivered by:-

HADJIANASTASSIOU, J.: On June 27, 1973, [*1288] the accused was convicted by the District Court of Nicosia for driving his motor car ES 443 without due care and attention contrary to s.6 of the Motor Vehicles and Road Traffic Law, Cap. 332.

The complainant, Andreas Karoullas of Nicosia, in giving evidence as P.W.2 stated that on the date of the accident at about 10.30 a.m., he was driving his motor car CT 330 at Neophytou Duka Street on his way to his home keeping the left-hand side of the road. When he approached at a point near his home, from a distance of 400 metres, he flashed his trafficator indicating that he was intending to turn left. He reduced his speed, he looked through the mirror, and when he realised that there was no car following him - and without in any way taking the right-hand side of the road - he proceeded to enter into his garage, which has a width of 10-12 ft. When part of the car had entered the garage the vehicle driven by the accused knocked on the rear nearside mudguard of complainant’s car.

On the other hand, there was conflicting evidence adduced by the prosecution. According to the evidence of P.W.4 Antonis Economou, who was a passenger in the car of the accused, he noticed that the complainant's car started proceeding slowly towards the right side of the road. Whilst the accused continued keeping his proper side of the road, suddenly the complainant swerved to the left, thus obstructing the path of the other vehicle. The accused immediately applied his brakes, the car skidded and the collision occurred. Cross-examined by counsel for the accused, he [*1289] said that although he saw the vehicle in front of him, he did not see the trafficator of the complainant flashing, indicating his intention to turn left.

The version of the accused was that when he was proceeding in the same direction as that of the complainant, he saw the motor car of the complainant to the right-hand side over the middle of the road, and suddenly, without any signal whatsoever, he turned and cut his path, and in order to avoid the accident he applied immediately his brakes, but his motor car skidded and the collision occurred.

The learned trial judge, after evaluating the evidence before him, believed the evidence of P.W.4 (as being a truthful and reliable witness): and rejected the evidence of the complainant. In spite of that, however, the learned judge, in making his findings of fact, reached the conclusion that the accused was guilty of the charge preferred against him, taking into consideration that there was no side-street or any building on the right side, and because it was unsafe for the accused to attempt to overtake the complainant’s car from its left side, as the accused had a duty to take the necessary, in the circumstances, precaution, by reducing his speed and proceeding with due caution.

It is well-settled that in a charge of driving without due care and attention, the question is whether the driver was exercising that degree of

care and attention which a reasonable and prudent driver would exercise in the circumstances. The question, therefore, is

one of fact and not of law. [*1290]

The argument of counsel for the appellant - resisted by counsel for the respondent - was that the finding of the learned judge was not warranted by the evidence as a whole; and that his

verdict that the appellant was driving without due care and attention was not reasonable having regard to the evidence and his findings.

We think that we ought to state that in every case it is for the trial Court to assess the evidence and find the primary facts necessary to constitute the offence of driving without due care and attention, and if on the totality of the evidence before it it was open to the trial Court to make such findings, these can only be disturbed on appeal, if this Court is persuaded that they are unsatisfactory to the extent of requiring intervention in order to do justice in the case according to law.

Having heard both counsel, we are of the opinion that on the totality of the evidence before the learned judge, it was not open to him on the facts he accepted as being correct, to draw the

conclusion that he did and find the appellant guilty of driving without due care and attention. The appellant quite rightly, in our opinion, once the complainant left his proper side of the road, and in the absence of any indication by the complainant that he was intending to turn left, the appellant was entitled to assume that the could proceed, keeping his proper side of the road, that the complainant was not going to do something other than an ordinary careful motorist might expect, viz., that he was not going to turn left without in any way signalling [*1291] his intention to do so. Cf. Shoukiouroglou v. The Police, (1966) 2 C.L.R. 39 at pp. 41 and 42.

In the circumstances of this case, we think that the appellant who according to the evidence was driving at a normal speed, acted as a prudent driver, when he was suddenly confronted by the negligent driving of the complainant. The appellant did what was expected of him in the circumstances, he immediately applied his brakes, but unfortunately, the accident could not be avoided.

For the reasons we have advanced, we have reached the conclusion that from the evidence before the learned trial judge it was not open to him to make such findings and today we have been persuaded that they are unsatisfactory and we intervene in order to do justice in the case in hand. We would, therefore, allow the appeal, quash the conviction and set aside the sentence of fine, because having regard to the evidence adduced, the conviction was unreasonable.

Appeal allowed.