Court acquits driver of failure to report accident due to lack of proven knowledge of the incident.

[*355]1982 February 11

(ELIADES, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA,

SITTING AT LARNACA,

Police

v.

Andreas Aristodemou,

Accused.

(Case No. 881/81)

Road traffic - Careless driving. - Evidence - Driver not remaining at the sceme after the accident - Evidence that is required to identify him as the driver of the vehicle involved in the accident.

Road traffic -Failure to report an accident at a Police Station - Regulation 60(2) of the Motor Vehicles Regulations 1973 - Knowledge of the accident a necessary... igredient of the offence.

Criminal Law - Trial in Criminal Cases - Failure of accused to give evidence in his own defence.

Papageorghiou, for prosecution.

M. Tsiappa (Mrs.) for accused.

JUDGMENT

The following judgment was delivered by:

ELIADES, D.J.: Accused is charged[*356]

that (A) On the I.3-81 he was driving his motor-car Reg. No. FM.060 on the Liopetri - Xylophagou road without due care and attention contrary to s.8 of the Motor Vehicles and Road Traffic Law 86/72 and (B) For failing to report an accident at a police station as soon as it was reasonably practicable and in any case within twenty four hours of the occurence thereof contrary to s. 60(2) of the Motor Vehicles and Road Traffic Regulations of 1973.

A. THE FACTS

The facts of the case are of the simplest. During the late afternoon hours of the I.3.81 the complainant P.W.4, after attending a football match at Paralimni between the local team and Omonia of Nicosia which ended peacefully, drove his motor-vehicle reg. No JY.218 along the Liopetri- Xylophagou road, following a line of cars in order to return home. Whilst approaching the outskirts of Xylophagou he noticed through his mirror behind him that a motor-car was in the process of overtaking him at a time when from a small distance from the opposite direction another vehicle was approaching. The driver of the vehicle coming from the opposite direction (P.W.5) started flashing his lights in an effort to warn the driver of the overtaking Vehicle that a colli s ion was imminent. The latter pulled quickly to his left in front of the complainant's vehicle, forcing the complainant to apply brakes in order to avoid a colli s ion, with the result that the complainant's vehicle was, steered off the road and overturned in a nearby field. The complainant did not see and could not identify the driver of the overtaking vehicle.[*357]

The driver of the vehicle in front of the complainant, (P.W.2), did notsee who the driver of the vehicle was but he noticed that the overtaking vehicle was a red COLT

GALLANT Reg. No.FM.060 which continued his way without stopping at the scene of the incident. The witness stopped at Xylophagou police-station and gave some information as a result of which P.W.3 questioned the accused who gave a voluntary statement (exhibit I).

According to his statement accused admitted that on the 1.3.81 after a football match at Paralimni had ended, he drove straight towards Limassol, without any intermediate stop. There were a lot of cars in front of him and it so happened that he overtook some vehicles but without creating any danger. He could not say if he had overtaken any vehicle between Liopetri and Xylophagou neither did he know of the names of the villages in the area. He could not remember following or overtaking the car of the complainant and he had no knowledge of any accident which occurred behind him.

There was a submission. of no case to answer which was overruled and the defendant closed his case by adopting the statement which hse gave to the Police. By doing so the accused submitted himself to the risk of an adverse inference being drawn against, him, as he had left the facts from which that inference could be drawn uncontradicted.

B. FAILURE BY ACCUSED TO GIVE EVIDENCE

The failure by an accused person to give evidence[*358] in his own defence received a considerable amount of controversy as to its consequences in view of the basic principle of criminal Law that the Prosecution must prove its case beyond reasonable doubt.

As long ago as 1920 Abbot C.J. said that, No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction if the conclusion to which the prima facie case tends to be true, and the. accused offers no explanation or contradiction, can human reason do otherwise than adopt the

conclusion to which the proof tends? " (See R. v. BURDETT (1820) 4 B and ALD p. 95).

In those days the accused was incompetent to give evidence on his own behalf, but the explanation might have been given by other witnesses, or it could have been advanced out of Court.

By virtue at s. I of the Criminal Evidence Act 1898 the prosecution was not allowed to comment on the failure of accused to give evidence and the question arose whether a judge had any right to comment on the election of the accused not to give evidence on his own behalf. It was answered by Lord Russel of Killowen C.J. in the following words in R. v. RHODES (1899) I Q.B. 77.

"There is nothing in the Act that takes away or even purports to take away the right of the Court to comment on the evidence in the case, and the manner in which the case has been conducted. The nature and degree of such comment must rest entirely in the discretion of the judge who tries the case; and it is impossible to lay down any rule as to the cases where he ought or ought not to comment on the failure of the prisoner to give evidence, or as to what those comments should be. There are some cases in which it would be unwise to make any such comment at all; there are others in which it would be absolutely necessary in the interests of justice that such comments should be made. That is a question entirely for the discretion of the judge; and it is only necessary now to say that that discretion is in no way affected by the provisions of the Criminal Evidence Act, 1898".

This clear statement of the law was never disputed until the decision of. R. v. WAUGH (1950) A.C. 203 where it was held that no comment should be made that failure by an accused to give evidence is inconsistent with innocence and that where it appears from the circumstances that the comment was excessive the conviction must be quashed.

The principal consideration-that absence from the witness box cannot be equated with guilt was implicit in the decisions of R. v. WAUGH (supra) R. v. PRATT (1971) CRIM. L.R.) and in R. v. MUTCH (1973) I All E.R. p. 178).[*360]

In the latter case the Court of Appeal held that in all cases where judges are minded to comment on accused's absence from the witness box they must remember first, Lord Oaksey's comment in R. v. WAGH,

"It is true that it is a matter for the judges discretion whether he shall comment on the fact that a prisoner has not given evidence; but the very fact that the prosecution are not permitted to comment on that fact shows ho careful a judge, should be in making such comment."

And secondly, that in really all cases where a comment is thought necessary the form of comment should be that which Lord. Parker C.J. described in R. v. BATHURST ((1968). I All E.R. p. 1175) as the accepted form, namely,

"The accused is not bound to give evidence, that he can sit back and see if* the prosecution have proved their case, and that, while the jury have 4 been deprived of the opportunity of hearing his story tested in cross-examination, the one thing that they must not do, is to assume that he is guilty because he has not gone into the witness-box."

In some cases described by the Court in R. v. MUTCH as "rare exceptions" the judge may go a little further and make the comment that an inference can be drawn from uncontested or clearly established facts which point so strongly to guilt or to call for an explanation; if no explanation is given when the circumstances are such that an innocent man would be expected either to give an expla[*361]nation or deny the basic facts, this is a factor which can be taken into consideration. These cases are limited to those where the principal facts relied upon by the prosecution did not appear to have been disputed.(See R. v. CORRIE

(1904) 69 J. P. 294 and R. v. BERNARD (1908) I CR.App. R. 218).

In R. v. SPARROW (1973)

2 All E.R. p. 129 all the earlier decisions were reviewed and it was stated that what is said must depend on the facts of the particular case ■and that in some cases a stronger comment is called for than in others. The judge must exercise his discretion to ensure that the trial is fair and his discretion is not to be fettered by putting down rules for its exercise. He must not however seek to strengthen a weak case by strong comments, and he must be careful to avoid telling the jury that absence from the witness box may amount to guilt.

In Cyprus it has been held that an unsworn statement does not amount to evidence on oath and in such a case the Prosecution is entitled to address the Court on such a statement, but should not comment on the failure of accused to give evidence on oath (See CHRlSTOFOROU V.POLICE,

21 C.L.R. p. 106).

Where an accused charged with the offence of obtaining money by false pretences does not deny receiving certain amount of money but he only denies the circumstances in which he received the money and later chooses only to make a statement from the dock, his behaviour cannot,[*362]but be considered as relevant to his guilt. (See ARISTIDOU v. POLICE(1975) 10 J.S.C. p. 1491).

An extensive analysis of the law on the subject was later made in (1973) 8 J.S.C. p.). where it was held that the failure of accused to give evidence in his own defence was a factor related to the issue of his guilt.

C.IDENTIFICATION OF ACCUSED.

No better identification of the accused may be effected other than that of a witness swearing that the man in the dock is the one who has committed the particular offence. However such evidence may be shaken unfavourably and its weight diminished, when no previous identification takes place and the witness, influenced by any degree of resemblance between the man in the dock and the person previously seen by him may well think to himself that the Police must have produced in Court the right person, with the result that he may be inclinced towards swearing positively to a fact which he may not be certain.

The owner of a motor vehicle is presumed in law to be the user in the absence of contrary evidence (WATSON v. PATERSON,

121 J.P. JO 336) .

In BARNARD v. SULLY (1931) 47 T.L.R. 557, it was held that proof Of a defendant being the owner of a car was prima facie evidence that it was being driven at the material time by him or his servant or agent.[*363]

In a case where the defendant was found to be driving a car seven miles from a town, it was presumed, in the absence of contrary evidence, that he was driving on the same journey and road when three miles from the town shortly before, (BERESFORD v. ST ALBANS) (1905) 22 T.L.R. I).

Where a lorry bumps into a stationary car at traffic lights and a note is taken of the truck's registration number as a result of which the lorry-driver is interviewed by Police and although admits being at the particular time in the area, he denies any knowledge of any accident, it was held that the fact that there was no other lorry, that the lorry driven by appellant was at the precise spot at the precise time the accident occurred, it was safe for a conclusion to be reached that it was sufficiently and properly proved that the appellant was the driver concerned. (HAMPSON v. POWELL (1970) I All C.R.P 929).

If however the evidence of identifying the motor-vehicle is hearsay evidence, as for example when an eye-witness at the trial forgets the registration number and the police-man who investigated the accident offers evidence of the number of the vehicle" (which was given to him by the witness soon after the accident) a conviction must be set aside as inadmissible hearsay evidence was accepted which led to a wrong decision. (See JONES v.METCALFE (1967) 3 All C.R. p. 205).[*364]

The decision of HAMPSON v. POWELL was later adopted in SCRUPY v. BESKFEN (R.T.R. 1980 p. 420) where it was held that when a driver admits that he is the owner of a particular type of a car of a particular colour which was at the locus of an accident at the relevant time, there is, some evidence from which an inference can be drawn that the owner is also the driver of the vehicle and it is consequently a question of fact whether the evidence adduced is sufficient to Justify a conviction.

It cannot be doubted that who. ever was, driving the red Colt Gallant reg. No. FM.060 was guilty of careless driving and the only question which is left, is. whether there is sufficient evidence from which an inference could be drawn, an irresistible inference on the facts adduced in evidence that the accused was the driver.

Accused admitted that he is the owner of motor-vehicle reg.No.FM.060."He admitted that he was at the locus in quo at the time. Evidence has been adduced that the car is of a red colour. It would have been highly improbable and a most unbelievable coincidence if at that very time and at that very place there was another red COLT GALANT reg.No. FM.060 being driven carelessly, in the way the car of accused was being driven.

The evidence before the Court couple with the unwillingness of accused to go into the box and contradict the facts from which inferences could be drawn against him is sufficient to satisfy the Court beyond reasonable doubt[*365] that the accused was the driver of motor-vehicle reg.No.FM.060 v/hich was involved in the incident and that accused is guilty of careless driving in that he tried to overtake the complainant's car at a time when it was not safe for him to do so putting the complainant in the agony of the moment who, in an effort to avoid a possible collis ion, applied instantly his brakes with the result that his vehicle was steered off the road and overturned.

FAILING TO REPORT THE ACCIDENT TO THE POLICE

S. 60(I) of the Motor Vehicles and Road Traffic Regulations provides that "if in any case, owning to the presence of a motor-vehicle on a road an accident occurs whereby damage or injury is caused to any person, vehicle or animal or property, the driver of such vehicle shall stop, and if required to do so by any person having reasonable grounds for so requiring, give his name and address, and also the name and address of the owner and identification marks of the vehicle". Subsection 2 provides that "If in the case of any such accident aforesaid, the driver of the motor vehicle for any reason does not give his name and address according to the above provisions, he shall report the accident at a police station or to a police officer as soon as reasonably practicable and in any case within twentyfour hours of the occurrence thereof".

The obligations of s.60 arise where there has been injury to a person or an animal. (The term animal includes any horse, cattle, ass, mule Sheep, pig, goat or dog but does not include coats, beast or birds) or damage to another[*366]vehicle. The. word "vehicle" includes a bicycle (Ellis v. Nott-Bower (1816) 60 J.P. 760) a horse drawn cart, a motorised invalid carriage but whether a pram is a vehicle has not as yet been decided.

It can be said that the offence created by s. 60 of Motor Vehicles and Road Traffic Regulation of 1973 falls within the general rule that absence of mens rea affords a good defense to a criminal charge. If such words as "suffer" "permit" or "knowingly" are lacking from the wording of the offence, knowledge is prima facie not a necessary ingredient, and in such a case in order to determine whether the offence allows the operation of the general rule it is necessary to consider both the language and the object of the Rules.

There are a lot of offences created to which the absence of mens rea or knowledge of the true facts can afford no answer as for example driving without a licence or using a vehicle not complying with regulations as to construction. However the wording of s.60 of the Rules imposes an absolute duty to report to the Police that in fact there has been an accident causing damage. Neither the protection of the public which is the object of the statute nor the Language of the section itself requires that there should be a conviction in the absence of mens rea.

This was the reasoning of the decision in HARDING v. PRICE (1948) I All C.R. p. 283 where it was held that a driver can be found guilty for failure to report an accident if he knows or suspects that an accident has[*367]occurred. The usual way by which the Prosecution can prove its case is by adducing evidence that the driver actually knew or he ought reasonably to have known of it, by there being a Severe jolt or a loud crash at the time.

It is submitted that, once the damage or injury has been proved, the evidential burden is shifted on the accused to show that he was unaware of them. If after the end of the hearing the Court is in doubt whether the accused knew or not, or suspected that he was involved, he should be acquitted.

The principle of HARDING v. PRICE was later adopted by the decision in HAMPSON v. POWELL (1970) I All R. p. 929) where the convictions of a lorry driver for failing to stop and report an accident were quashed on appeal. No damage could be seen on the lorry and when he was seen by the Police the lorry-driver admitted being in the area at the time but denied all knowledge of an accident. As knowledge of the accident was a "necessary ingredient" and the Prosecution failed to establish that the driver was aware of it, the convictions were set aside.

In this particular case there is no direct evidence that accused knew of the accident or in view of the circumstances he ought to be aware of it. In his statement to the police be pleads ignorance of it, and it follows that if he did not know of it he could not stop and consequently he could not report. His offence was an omission to do his duty namely to report an accident rather than the[*368]doing of a prohibited act. How could he report the accident if he did not know of it? That being the only evidence the Court holds that the Prosecution has failed to establish the ingredients of the offence on the second count, accordingly accused is acquitted and discharged on count 2.

Accused acquitted and discharged on. count 2.