Court acquits bus driver of causing death by careless act due to lack of prima facie case.

[*317] 1982 Febr.20

(N.NICOLAOU, Ag.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Police,

v.

Iacovos Georghiou,

Accused,

(Case No. 14638/81).

Criminal Procedure- Prima facie case - Principles applicable - Section 74(I)(b) of the Criminal Procedure Law, Cap. 154.

P.C.C. Constantinides for the Prosecution.

St. Erotokritou (Mrs.) for the accused.

Accused present.

RULING

The following ruling was delivered by:-

N.NICOLAOU,Ag.D.J.: The accused in this case [*318] is charged with the following offences:-

Causing death by want of precaution or by careless act, contrary to s.210 of the Criminal Code, Cap. 154, as amended by Law 4/74 and s.19 of the Motor Vehicles and Road Traffic Law 86/72.

This charge arose out of a road accident which occurred on the 14.3.1981 at the junction of roads, Poulliou Kapota Avenue with Aegeou Street, at Pallourio-tissa, Nicosia, while the accused was driving the motor bus TKG.721 and one pedestrian, Michael Andreou Michael, an infant, heroinafter called the pedestrian, has lost his life.

At the close of the case for the prosecution, learned counsel for the accused submitted that the prosecution failed to make out a prima facie case sufficiently to require the accused to make his defence, s. 74(1)(b) of the Criminal Procedure law, Cap. 155.

Even if no submission that a prima facie case has been established, Is made, before the accused person is called upon to make his defence, the Court has to consider the evidence adduced and if from the evidence a presumption of guilt is established, the Court must call upon the accused to make his defence, if no such presumption of guilt is established, the Court even on its own motion, can rule on this issue and stop the trial at this stage by acquitting and discharging the accused.[*319]

Except for the case. of R.V. Moustafa Karamehmed, 16 C.L.R. 46, there is little authority in Cyprus as to what constitutes a prima facie case. In this case it seems that the definition in Wharton's law lexicon, of Prima Facte base was adopted, i.e. "that which, not being inconsistent with the falsity of the hypothesis, neverthe-; less raises such adegree of probability in its favour that it must prevail, if it be credited by the Jury, unless it be rebutted or the contrary is proved".

Such evidence must be evidence which is credited by the Court to such an extent raising such a. degree of probability In its favour as a result of which the Court will feel safe to convict, if it is not rebutted.

I have" also directed my mind to the Practice Direction . of Lord Parker C.J.,

(1962) 1 ALL E.R. 448,the substantial part of which reads as follows:

"A submission that there is no case to answer-may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged , offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of the cross-examination or. is so manifestly unreliable that no reasonable tribunal could safely convict on it". [*320]

The Judge in Cyprus sit judge-and jury and he is the one who decides on the sufficiency of the evidence to ground a conviction as well as to the truthfulness.

According to the case of R. v. Karamehmed the insufficiency or not of the evidence adduced, as well as the credibility and demeanour of the witnesses may be considered at this stage.

From the above legal principles, it-transpires that if no evidence is adduced by the prosecution to prove an essential element in the alleged offence, then the case of the prosecution goes overboard.

The prosecution in support of its case called eleven witnesses, i.e.

P.W.1, P.C. 1723 Christoforos Poniros, of Nicosia Police, an expert on speeding, in drawing -accident sketches, a Police photographer and also serving as an Accidents Investigation Officer, stated, inter alia, that on 14.3.1981 and at the hour 11.3C a.m., after information received, he visited the which scene of an accident/occurred at the junction of roads Poulliou Kapota Avenue with Aegeou Street at Pallouriotissa.

The said policeman found at the scene of the accident. Inspector Hadjisavvas and. Sergeant 2631 Michalakis Charalam-bides who had already started their investigations. The accused and the said bus were also there,- but the Infant victim was not there having been taken before to the Nicosia General Hospital. [*321]

The said expert, P.W,1, with the assistance of the said Sergeant Michalakis Charalambides and in the presence of the accused took various measurements and thereupon he prepared a rough sketch and later he made a sketch of the said accident on scale which was put in as exhibit 1. The sketch bears an explanatory index and speaks of itself. In the presence of the accused, P.W.1 inspected the relevant bus and the said junction of roads and at the point marked 'X' on the sketch they found a pool of blood. Onto the front side of the bus there was also a recent rub (tripsimo). No other rub or push or damage were found either on the front or at the side or at the lower part of the said bus. Blood was. also found on the front left wheel and its mudflap and also on the rear left tyres. It is the allegation of this prosecution witness that the accused agreed that the above blood belonged to the infant victim.

The said witness had asked the accused to drive his bus on several occasions and for several trials over a brick to see whether he could feel such-obstacle and he also knocked slightly on the moving tyres at the side of the bus for the. same purpose, i.e. to ascertain whether the accused could notice such knocking and he has replied in the positive. The relevant bus has 51 seats plus its driver's seat and it was licensed to carry 88 passengers. It was 36 feet long and its width was 8 feet. It had six wheels, two in front and four at the back. The diameter [*322] of every tyre was 10 feet 9 inches and its footing was 8 inches. The distance from its front wheels upto the front of the bus is 7 feet 6 inches and from the rear a tyres to the rear part of the bus is 10 feet 6 inches. The bus was a new bus and its mechanical condition was very good in all respects.

Its driver from his seat could have full control and visibility as follows:-

(a) From a distance of 7 feet 6 inches towards the front he could see the asphalted road.

(b) He could only see. an object having a height of 4 feet at a distance of 3 feet from the. front part of the bus; otherwise at a shorter distance he could see nothing.

(c) Through the left mirror the driver of the bus could see an object having a 4 ft. height.

(d) Through the left side of the bus, i.e. the left door and the side of the bus, the driver could see an object having a height of 5 feet at the distance of 5 feet.

(e) Through the left passenger's door of the bus and at a distance of one foot the bus-driver could see the asphalted road.[*323]

The place where the accident occurred is a junction of the roads as stated above and is controlled by traffic lights. . The infant victim was an elementary school hoy

• of the third class, aged nine and its height was 3 feet 9 inches and he has met with this unfortunate accident on his way home from school.

The relevant bus TKG.721 was found rested inside the said junction of roads and its front part was found « at a distance of 3 feet from the imaginary line of Poulliou Kapota Avenue and its rear at a distance of 4 feet from the imaginary line from the said Avenue.

The rear leftpart of the bus is at a distance of 36 feet from the traffic light pole which is marked with letter 'C' on the police sketch and its. rear part from the spot of blood found on the road is 8 feet.

The bus at all material times had stopped at the red traffic light on Poulliou Kapota. Avenue and its driver awaited few the green light to proceed. Poulliou Kapota is a 30 feet wide-Avenue., whereas Aegeou street is a 24 feet wide street. The bus had about 14 passengers, some of whom were seated on the left side of the bus. The point of impact as shown by the accused where the victim and a pool of blood was found is shown by the letter 'X' on exhibit 1. No brake marks were found. [*324]

P.W.2, P.S.168, P. Vanezis. He is serving in the Nicosia Police as an Accidents Investigation Officer and he took a. cautionary statement from the accused on 14.3.81, put . in as exhibit 3.

P.W.3, P.S.2631 Michalakis Charalambides from the Nicosia Police stationed at the Traffic Section, on 14.3.81 arrived at the seene of the accident and remained there until P.W.1. arrived who took the various measurements .

P.W.4, Inspector A. Hadjisavva, Stationed at Nicosia Police serving as.an Investigation Officer for traffic accidents, on 14.3.81 and at 11.30 a.m. together with. P.W.3 went to the seene of the accident and was supervising the investigations of the accident. He is the Police Officer who has on 19.7.81 formally charged the accused person for the offence in the present proceeding exhibit 4.

P.W.5, Yiannakis Kartakou, inter alia stated that on the relevant date he was in his motor car No. LB.940 awaiting at the red traffic light opposite the bus and he himself was waiting for the. light to change to green to proceed. He was the first on the row and he saw the bus moving on when the light changed to green. All at once he saw the pedestrian child in front of the left front wheel bended underneath the bus and he started shouting and pressing his car horn to the bus driver. [*325]

He did not move his oar, but he left it there and went with speed in front of the bus which in the meantime had proceeded further on in the said junction of roads. When finally the bus stopped, this witness has stated that he saw the child victim oh the road without making any movement at all at a distance of 2-meters from the rear part of, the bus. This witness categorically stated that when for the first time he saw the pedestrian child, the child was under the bus and towards the left front wheel run but he did not see the said wheel / over the child

P.W.6, Neophytos Andreou, from Agridaki, Kyrenia, and now at Anthoupoleos. On 14.3.81 and at 11 a.m. he was going from Nicosia to Kaimakli driving his motor oar Mb. EY.241. He was behind the bus of the accused. The bus moved on and so did he and he saw the child on the left side of the road being hit by the rear wheels of the bus. He saw the child in the middle half of the bus. He saw it being run over by the rear wheels of the bus. He. could see the traffic light pole. He had to turn left not to hit. the child and he passed next to it and stopped at Aegeou Street. He took the child to the Nicosia Hospital.

P.W.7, Prodromos Elia, was sitting as a passenger in the accused's bus in one of the middle seats. He stated that as soon as the light changed to green the bus moved on. [*326]

P.W.8, Constantinos Moukouros. He is an uncle of the victim child and on 16,3.81 and at the hour 3.15 p.m. he recognised the victim at the Nicosia Hospital as his nephew, Michael Andrea Michael.

P.W.9, Dr. Lyssiotis, a specialist on pathoanatomy at the Nicosia General Hospital. On

16.3.81 and at. the hour of 9.30 a.m. he carried out a post mortem examination which revealed the cause of death of the victim as having occurred because of the accident.

P.W.10, Dionysios Chrysostomides, a doctor at the First Aid Department of the Nicosia General Hospital, was the first medical officer who received the infant victim on 14.3.81 and at the hour of 11 a.m.

P.W.11, Yiannoulla Adamou, inter alia, stated the following:

On 14.3.81 and around 11.00. a.m. she was a passenger in the said bus, occupying the fifth seat on the left side of the bus and she had at the relevant place and time her head on the glass window facing towards the pavement onto which the infant pedestrian was walking towards the traffic light pole standing on the left side of the bus. The said traffic pole was on her left-hand side and at a distance of 4 ft. She saw. the pedestrian child walking from a distance of 25 - 30 ft. towards the traffic pole holding his school bag. When the child reached the traffic light pole this witness saw him looking up towards the light. [*327] She saw him touching the traffic pole and then moved on stepping off the pavement and making 2-3 steps forwards but whether these-steps were made towards the bus or to the front of the bus she could not say.

As stated before she was sitting on the fifth left seat, which seat, is four feet away from the traffic light and the driver of the bus being seven feet away from her. She has further stated that the front part of the bus was after the relevant traffic pole and it was three feet away from the pavement. When the bus moved on she felt the bus "shaking" and she all at once shouted to the bus driver "you have killed the child",

I have watched the demeanour of all witnesses called for the prosecution and I have examined their evidence with the utmost care and .I have tested it as far as possible with the real evidence, i.e. the exhibit 1 which is the Police sketch on scale and the various photographs which were put in as exhibit 2.

I have also examined the cautionary statement of the accused which was made to the Police on 14.3.1981. Although through this statement the accused has stated that he has stopped 4-6 feet before the relevant traffic light pole, nevertheless he -has. categorically stated that he did not see the child crossing the road and the whole cross-examination made through the means of his able and learned

advocate aimed at or tried to prove that her client was not at all to be [*328] blamed for the accident as her client did not see the

pedestrian child and in any event he could not have seen him under any circumstances and that the sole responsibility for the accident rested with the victim.

What therefore remains to be decided is whether there is sufficient evidence to substantiate the degree of negligence required under s.210 of the Criminal Code, Cap. 154 as amended.

It is well known that the question of negligence , whatever the degree of it required may be, is always a factual question depending on all the circumstances of the case (Panayiotou.v. The Police (1972) 2 C.L.R., p.29), and must be positively established by the prosecution as part of the. conduct of the accused constituting the offence. (Triftarides v. The. Police (1968) 2 C.L.R. p. 140).

It is for the prosecution to prove by the evidence adduced, including the real evidence, whether the conduct of the accused in doing or omitting to do something amounts to negligent driving and any doubts the Court may. entertain in any area must invariably be resolved in favour of the accused.

Having stated the salient facts of the case and before I arrive at my findings, I will avert briefly on the legal implication pertaining to the present case. Section

210 reads as follows: [*329]

"Any person who by want of precaution or by any rush or careless act, not amounting to culpable negligence, unintentionally causes the death of another person is guilty of a misdemeanour and is liable to imprisonment for two years etc.".

In our country the first, if I may say so, important consideration of s.210 may be found in the case of Christos Rayas v. The Police, 19 C.L.R. p.308. In this case the Supreme Court examined the kind of negligence required to be proved by the prosecution under the relevant section of the Criminal Code, then s.204.

Hallinan, C.J., said the following at p. 311 of the report:

"The next question to consider Is whether the act or omission punishable under s.204 must be criminal negligence of the second category or whether it also includes negligence at civil law.

We are clearly of opinion that only criminal negligence which amounts to more than negligence at civil law is punishable under s.204.

Our first reason for this view is that to make negligence at civil law which results In death, a misdemeanour would be a great departure from the law of criminal liability for negligence In force in England and. so far as we are aware, in all other [*330] territories where criminal justice is based as British jurisprudence.

In these circumstances one would naturally expect that so serious an innovation would be in clear and unequivocal language and not merely left as a matter of possible inference".

In a more recent line of authorities the Supreme Court had occasion to. discuss and consider the legal implications of the relevant section under which accused is charged.

In the case-of Nicolas Nearchou v. The Police (1965) 2 C.L.R., p.34, the ingredients of "the "offence have been cited to be the causing of death of another person by:-

(a) want of precaution; or

(b) by any rush act; or

(c) by any careless act, and of course the combination of the above alternatives.

The Nearchou case has been cited with approval in a number of later cases.

Useful reference in this respect may be resorted to Panayiotis Foka Kaunas alias Bombas v. The Police (1968) C.L.R. part 2, :p,29. Koumas Georghiou Kouma v. The Police (1967)2 C.L.R., p.230. Pavlos Ioannou Spiritos v. The Police -(1969) 2 J.S.C.,. p.240. Evripidou v. The Police

(1969) 3 J.S.C. p.433.[*331]

Although Vassiliades J., as. he then was, in the case of Nearchou (see page 45) expressed an opinion that the Rayas case is not good in law, the Supreme court has not, however, shared such a view. In the case of Paula Mcleod v. The Police (1974.) 1 J.S.C. p.5 it was held that Rayas case is still good law.

Bearing always in mind the evidence adduced before me I make the following findings.

(a) The bus TKG.721 was at all material times driven by the accused and it has stopped on a red traffic light on Poulliou Kapota Avenue at Pallouriotissa, Nicosia awaiting for the green light to proceed.

(b) Its driverhad stopped in such a position in relation to the traffic pole that its front part was after the said traffic light pole.

(c) The infant pedestrian at all material times was returning home from school holding his school bag and intended to cross the said Avenue from left to. right in relation to the said bus.

(d) The last time he was seen alive was by P.V7.11 who at all material times was a passenger in accused's bus on the left side 'and at the fifth seat.

(e) The child came all along the pavement and towards the traffic pole at the left side of the bus. He was seen making 2-3 steps off the pavement and never since was he seen to be alive.[*332]

(f) No other explanation can be given and no other conclusion can be drawn from the whole evidence given before me except that the child after stepping off the pavement he must have walked close by the left side of the bus, within the three feet it was stationary from the pavement and eventually he attempted to cross the Avenue Poulliou Kapota in front of the bus and close to it.

(g) The very moment the child was on the left and front 'part of the' bus, the said bus moved-on as the light had already changed to green, dragging the child further on towards the junction and running over it as a result of which the child died immediately as he was found at the point 'X' of exhibit 1.

(h) Having always in mind the expert's evidence and the visibility of the bus driver as described by P.W.I, I am convinced that the driver of the bus could not under any circumstances have seen the child as he attempted to cross the said Avenue from such a position and so close-in relation to the bus that its driver could not see the child.

(i) Considering the height of the child and the route the child elected to proceed and cross. Poulliou Kapota, no other

conclusion and no other-or safer inference can be drawn from the said expert's evidence in [*333] combination with the evidence given by P.W.5, P.W.6 and P.W.11, that the driver of the bus is not at all to be blamed for this accident.

(j) The only place the child might have been seen is when the child was passing, by the passenger's door on the left side of the bus but I believe such a duty is far more remote and I doubt whether such responsibility an be expected from a bus driver sitting at his bus seat, awaiting the red light to change from red to green at such a junction of roads.

In the circumstances I have no alternative but to acquit and discharge the accused.

Accused acquitted and discharged.