Court rules prosecution must disclose inconsistent witness statements; failure constitutes miscarriage of justice.

[*692] 1982 September. 29

(MILTIADOU, D.J.)

IN THE DISTRICT COURT OP PAPHOS

Div. Police Commander Paphos,

v.

Panayiotis Charalambous,

Accused.

(Case No. 1250/82).

Road traffic - Careless driving - Running down case - Road crowded with pedestrians - Absence of proper look-out

- Failure of accused to give any warning of his approach - Guilty as charged.

Criminal Procedure - Trial in criminal cases - Evidence of prosecution witness inconsistent with contents of his statement - Whether prosecution under duty to put statement before the Court.

Insp. Nicolaides, for the Prosecution.

P· Sivitanides, for the accused.

JUDGMENT

The following judgment was delivered by;-

MILTIADOU. D.J.: The accused [*693] is charged that on

7.3.82 at Paphos, did drive mini-bus Reg. No. MG 783 on a road without due care and attention and caused an accident.

It is the case for the Prosecution that the accused at the material time did drive mini-bus Reg. No. MG 783 along Grivas Dighenis Avenue at Paphos towards Yeroskipou. At a point of the said avenue, near its junction with Greghoris Afxentiou, the accused failed to keep a proper look out, and knocked down the pedestrian Efstathios Epaminondas, who was coming from the opposite direction, keeping the right side of the above avenue and about

4 feet inside it, from the existing pavement.

To prove the above charge the Prosecution called in all three witnesses

P.W.1, P.C.2441, Costas Theo charides, who as usually happens, visited the scene of the accident and in the presence of the accused took various measurements, he prepared the relevant sketch-plan, which was filed in Court as Exh. No. 1. The witness further on 8.3.82 took from the accused a voluntary open statement as well as a supplementary one on 8.4.83 and which were filed in Court as Exh. No.2.

P.W.2, Efstathios Epaminondas, who inter alia said that on 7.3.82 in the afternoon, when a foot-ball match was over and a great commotion of pedestrians and vehicles did exist on the roads, he walked with two others along Grivas Dighenis Avenue proceeding towards Kenedy Square at Paphos, keeping the right side of the said avenue. At a point of the said avenue, [*694] because of his intention to cross to its opposite side, and when he was about 4’ inside the said avenue, from its existing right pavement, did stop, and first turned to the left to make sure that no vehicles were approaching from behind, but as soon as he turned to his right, to have a look, if any vehicles were

approaching from the opposite direction, he noticed mini-bus Reg. No.MG 783 driven by the accused very close to him and without accused stopping,

knocked him down.

P.W.3, Andreas Stylianou, who inter alia stated, that at the material time he was proceeding on foot along Grivas Dighenis Avenue, towards Kenedy Square keeping the left hand side of the said avenue. At a point of the said avenue and on its opposite side he noticed P.W.2 moving among other pedestrians to make a turn to the left and backwards but on his turn to his original position, i.e. towards Kennedy square, he came face to face with mini-bus Reg.No. MG 783, driven from the opposite by the accused at a low-speed, with the result to be knocked down by him.

The accused on the other hand denied any liability and casted the blame entirely on P.W.2, who, according to his allegation was approaching from the opposite with two other, moving on the existing pavement, but, when he was at a distance of about 2 metres ahead, he made a turn backwards, did raise both his hands up and moved sidewards into the said avenue and towards his mini-bus which was stationary into the said avenue and behind 5-6 other vehicles, awaiting the signal of the Police Constable, D.W.1 to move forward, with the result to come in touch with it; because of that the said P.W.2 turned his head backwards and in [*695] consequence, hit his nose on the windscreen of said mini-bus and, therefore, falling down in front of it.

In support of his above allegation, the accused elected and gave evidence on oath, and he further called one witness.

D.W.1. P.C.3022 Phaedon Papageorghiou, who was of no assistance to the accused and who, inter alia, said that on 7.3.62. om tje afternoon, when a foot-ball match was over, he was on duty at the junction of Grivas Dighenis Avenue with Gregoris Afxentiou for the purpose of controlling the existing traffic which was too heavey, both of vehicles and pedestrians.

At some time, when he gave signal to the vehicles which were stationary at Grivas Dighenis Avenue to proceed towards the direction of Yeroskipou, alter 5-6 vehicles did pass, he noticed that one remained statonary and failed to do so. The witness went near it and the accused who was the driver of it, in reply why he failed to proceed said "eto kapios ekoutoullisen pano sto yialli".

In Georghios Prokopiou Haloumias v. The Police, (1970) 2 C.L.R., p.154, it was held that in collision cases, the version of each of the drivers involved, is as a rule, naturally influenced by his interest in the outcome of the case; and his evidence must be looked upon in that light. A good test for each of the two versions, may often be found in the real evidence which is far more reliable than the oral testimony of either of the two drivers and that it is hardly safe for a Court to make its findings in this type of case by drawing entirely from the evidence of the one driver, and rejecting entirely the evidence of the other· The truth in such

cases, lies usually somewhere between the two [*696] versions; and the most reliable source for the truth is the real

evidence.

I have considered with the utmost care the whole evidence before me and I have scholastically tested the two conflicting versions, that of the Prosecution and that of the accused, as far as possible with the real evidence before me and I find that: -

1. On 7.3.82 and about 17 .10 hours, immediately after the end of a foot-ball match at Paphos, the accused was driving his mini-bus No.MG 783 along Grivas Dighenis Avenue, towards Yeroskipou village, at Paphos, at a low speed because the said avenue was crowded with pedestrians and heavy traffic was moving on both directions.

2. At a point of the said avenue, near its junction with Gregoris Afxentiou street, pedestrian Efstathios Epaminondas, P.W.2, was proceeding from the opposite direction among the crowd on the right side of the said avenue and 4' inside it, from the existing right pavement.

3. As said pedestrian was proceeding like that talking with his companion, and at a moment when accused’s car was too near, without paying any attention whatsoever and for reasons he knows better, turned backwards; on his return to his original position came face to face with the result to be knocked down and be injured.

Further I had the opportunity to listen, see and watched the demeanour of all the witnesses when they testified before me. I confess that I was extremely well impressed by all three [*697] witnesses for the Prosecution and despite the existence of some discrepancies between them, which I consider very trivial and of no importance, I find them all reliable and truthful witnesses and I feel quite confident that I can safely act on their evidence without any hesitation whatsoever.

The accused on the other hand didn't impress me at all and there is no doubt in my mind that he is not telling the truth. His oral testimony materially contravenes in the first instance the contents of his voluntary statement to the Police, Exh. No.1, and secondly that of his witness, who of course said nothing to support the accused's allegations and of which contraventions and inconsistencies I will mention only few:-

In his voluntary statement mentioned that the pedestrian made that turn when he was almost opposite the right front part of his mini-bus; in his oral testimony said that he did so when he was at a distance of 2 metres ahead.

In his voluntary statement mentioned that after the pedestrian left the pavement and turned to its original position proceeded and hit his face on the left side of his mini-bus front windscreen.

In his oral testimony said that after the pedestrian turned backwards moved sidewards towards his car and when he came in touch with it, turned his head backwards with the result to hit his nose on the windscreen of it.

In his voluntary statement and in his examination in chief alleged that at the material time only ten people were

moving into the said avenue, which is of course in direct contradiction [*698] with what his witness said, yet in his cross-examination admitted

the contrary.

Finally the Court didn't disregard the fact and the context of his supplementary statement which indicates that the accused is a person who can easily tell lies, in order to serve his own interest.

In view of the above, it is without any hesitation whatso ever that I reject his evidence as completely unacceptable and unreliable. His witness, on the contrary made on me an excellent impression and I am sure that he said the truth and whose evidence I accepted in to to.

THE NEGLIGENCE OF THE ACCUSED:

In Costas Ioannou Triftarides v. The Police, (1968) 2 C.L.R.140, it was held that drivers and pedestrians who are making use of public roads in exercise of their legal right to do so, they must bear in mind that they owe a duty of care to other users of the road. They must make such careful and reasonable use of the road as is required for their own safety as well as for the safety of others, who are likewise entitled to use the road.

In Scott v. Warren, (1974) R.T.R. , 104 it was held that the standard of driving required by criminal law cannot be greater than that imposed by the tort of negligence.

In Nicolaides v. Economides,

(1963) 2 C.L.R.78, a civil action, it was held that negligence is always relevant to time, place and other circumstances and failure to see what is plainly visible is negligence. [*699]

The same principle was adopted in Quin v. Scott (1965) 2 All E.R. , 588 where it was held not to be negligent driving at a speed of 75 m.p.h. on a three lane country road, when traffic was not heavy.

And in Moore v. Poyner.(1975) R.T.R. 127, where it was held not to be negligent driving at a speed of 25-30 m.p.h. in a quiet residential road on a Sunday and not sounding a horn or slowing down when passing a large coach parked on the nearside of the road.

In the present case it is in evidence that at the material time heavy traffic, both pedestrians and vehicles, was moving on both sides of the said avenue. This fact ought to have made the accused to be extra cautious and had the accused Deen keeping a proper look out, he would have seen the said pedestrian in time and either by warning him with the horn or by stopping or by taking other steps to avoid knocking him down.

There is no doubt in my mind that the said pedestrian was negligent too in a very high degree, but the simultaneous negligence on his part cannot affect the question of the guilt of the accused. It can only affect the sentence to be imposed in case of the accused’s conviction.

Finally it was alleged that the accused was at the material time driving using a learner's driving licence.

In McCrone v. Riding, (1938) 1 All E.R.l47 it was held that justices were wrong in assuming that there can be one standard for an ordinary driver and another standard for a person of inexperience or lacking in skill. Whether experienced or inexperienced a driver must exercise "due care [*700] and attention" as provided by the law.

In the light of the above and the evidence before me, I find that the accused was driving at the material time and he failed

a) To have any or any proper look out.

b) To see the said pedestrian in time or at all.

c) To exercise that degree of care and skill which was necessary under the prevailing circumstances on the said avenue.

d) To give any warning of his approach or to use the brakes of his vehicle.

In the result I find that the prosecution have proved their case beyond any reasonable doubt against the accused and I therefore find him guilty as charged.

RULING

25.9.1982

On the 18.9.82, when the above case was fixed and when the Court was ready to deliver, judgment, the learned counsel of the defence stated to the Court, that he has information, that P.W.3 namely Andreas Stylianou, during the hearing of the above case, when [*701] testifying before the Court, gave a different account of what he mentioned in his statement to the Police and requested the Prosecution to ascertain about the correctness or not of his above information.

The Prosecuting Officer, was unable to do so as he has taken over the above case from another officer after the trial, but he further disputed, if there is a duty on behalf of the Prosecution.

In the system of trial we have in this country, the judge sits to hear and determine the issues raised by the parties, and not to conduct an investigation or examination on behalf of the society at large, as it happens in some foreign countries. Though in Cyprus the judge is more than an umpire in the strict sense of the word, yet it is true that he must not descend into the dust of the arena. His object, above all, is to find out the truth and to do justice, according to the law.

It is therefore incumbent upon those who conduct prosecutions, in the interest of justice, to do so with all fairness, and in the event, if, a witness for the Prosecution has made a previous statement, allegedly inconsistent with his testimony in Court, it is their duty to inform the Court about it and place that statement before the judge for perusal, immediately there and then, and failure to do so, is a very [*702] serious irregularity, amounting to a substantial miscarriage of justice.

In Nasos Isaias v. The Police,

(1966) 2 C.L.R.,p.43, in which case material defects in the evidence of some prosecution witnesses were not disclosed, or even were, apparently, concealed from the trial court; it was held that such irregularities by the Prosecution at the trial, prejudicial to the defence, amount to substantial miscarriage of justice and the conviction was quashed on that ground.

In Aristotelis Constantinou Loizias v. The Republic, (1969) 2 C.L.R.p.217, in which case the complainant’s statement to the police was inconsistent with her evidence before the Court and such statement to the police was not disclosed by the prosecution during the trial; it was held to be an irregularity going to the root of the trial and the conviction was therefore quashed and new trial was ordered.

In the light of the above authorities and of what I have mentioned hereinabove, it is my decision that the Prosecution has a duty to ascertain about the correctness or not of said information and in the event if such information is true to put that statement of said witness before me.