Court acquits accused of careless driving and speeding due to benefit of doubt regarding pedestrian visibility.

[*110] 1983 July 9

(KALLIS, ÅG. D.J. )

IN THE DISTRICT COURT OF NICOSIA

Nicosia Police,

v.

Nicos Panayiotou Angeli,

Accused.

(Case No. 21130/82).

Careless driving - Running down case

- Accused affected by lights of oncoming cars - Possibility that pedestrian came into field of vision of accused just after such car had passed and at a rather short distance - about 2 meters - so that accused had no time to avoid the collision cannot be excluded - Accused given the benefit of doubt.

P.C. Constantinides, for the Prosecution.

C. Melissas with I. Avraamides and A. Sofocleous, for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS, AG. D.J.:- The accident which [*111] gave rise to this prosecution of the accused of the offences of driving without due care and attention and of speeding occurred round about midnight of 8.7.82, on the road to the Cyprus Broadcasting Corporation ("the C.B.C. road"). In the course of this accident the accused knocked down and injured fatally a pedestrian whilst driving his car on the C.B.C. road from the direction of the Nicosia-Limassol main road and towards the C.B.C.

According to C.W. 1, Police Sergeant Costas Michael, who investigated the accident, its scene was near the entrance of the Police Training School. The width of the C.B.C, road at the scene was 19 On the left, in the direction of accused, there was a berm of a width of l6'6" and on the right a berm of a width of 7', both usable. The point of impact - X on the plan exhibit 1 was 14' from the right edge of the tarmac in the direction of the accused. The rear part of the car of the accused, at the place it was found by the witness was 30'6" from the point of impact but the accused told him that he had removed it by 5 - 6' towards the point of impact, i.e. at its resultant position it must have been 35 - 36' from the point of impact. Point E on the plan exhibit 1 indicated the car wherefrom the pedestrian-victim had alighted. It was parked on the left berm in the direction of accused in a slightly traverse way, facing the Limassol road and with its front lights dipped. Its rear part was 34' from the point of impact. At a distance of 26½' from the point of impact - on the plan –[*112] there was an electric pole with a low tension lamp.

The scene of the accident was not illuminated well, the nearest lamp being 'O' and there was slight illumination from the nearby police buildings. Visibility from the point of impact - towards both directions in day time was about ¼ of a mile. The weather was fine and the tarmac at the scene was dry. To the right of the road in the direction of accused and near the scene there was the entrance of the Police Protection Service, a national guard stronghold -on the plan - which was at a distance of 40' from the point of impact and next to it there was the entrance to a national guard camp.

In cross-examination he said that no brake-marks were left by the car of the accused and he could not say the speed of a car which leaves 36’ brake-marks because there are many factors which affect speed such as the condition of the tarmac. He, also, said that illumination on the C.B.C. road was insufficient and that the car of the accused was a Honda saloon 12’ x 4' and that of the pedestrian a Mercedes - taxi 14½' x 5½'. The witness took a statement from the accused at the scene, to the contents of which I will refer at a later stage, but the accused did not appear to be confused.

P.W. 2, Inspector Odysseas Georghakis, who took a statement from the accused nine days after the accident, to the contents of which I will refer subsequently, testified in cross-examination that the accused appeared confused [*113] (anastatomenos) when giving his statement.

P.W. 3, Inspector Georghios Papacharalambous, an expert examiner of motor vehicles and an expert in finding speed by reference to the brake-marks, testified that he examined accused’s car on 9.7.82, in the presence of the accused, and found that the front bumper was damaged at about its middle and also the front left edge of the left mudguard was bent (ezavose) and the front windscreen was broken. Its tyres were in usable condition and its lights were functioning at both positions - dipped and head lights - except the small right lamp. The brakes were functioning properly and the mechanical condition of the car was very good. He also, at 23.40 hrs. carried out a test of the lights of accused’s car at the scene of the accident and found out that when dipped they illuminated a distance of about 110’ and when not dipped a distance of 320’ and at these distances whatever there was in the road, including a person, was visible.

In cross-examination he said that a car with good brakes on a good road must be driven at a speed of 30 m.p.h. if it leaves 36’ brake-marks and it is not possible for a car which does not leave brake-marks to stop within a lesser distance than a car which leaves brake-marks.

P.W. 4, P.C. 724, Andreas Georghiou who went to photograph the scene on the night of the accident testified in cross-examination that the scene was insufficiently illuminated.[*114]

P.W. 5, Michael Charalambous, testified that at the time of the accident he was serving in the national guard and was on duty at the national guard strong-hold - - on the plan. Whilst there, there came a taxi which stopped next to the strong-hold. In consequence of a talk which its driver had with a police constable he proceeded and parked the taxi on the berm on the opposite side; that after the taxidriver had parked on the opposite side and alighted there passed another car, a C.B.C. car at a low speed (ligi) heading towards the Nicosia-Limassol road. that he then got into the stronghold but before getting there he noticed another car coming from a direction opposte to that of the C.B.C. car but they were not next to each other. He could not say where the other car was when the C.B.C, car passed by him but when the C.B.C. car was passing by him the other car was not near him. After he had entered into the stronghold within a few seconds he heard the noise of a collision, but he did not witness it.

In cross-examination he said that the C.B.C. car passed from his stronghold at about (enan peripou) the time the taxi driver was alighting.

P.W. 6 Economos Evripidou, an employee of C.B.C. testified that at about 11 p.m. on the night of the accident, a taxi driver came with his passengers at C.B.C. and asked for his help to look for an address in the area. He tried to help [*115] him but without success, and advised him to go to the Reserve Police on the C.B.C road in order to get help there.

Round about 11.25 - 11.30 p.m. he set off with a C.B.C. car, through the C.B.C. road, towards the Nicosia- Limassol road; that when near the entrande of the mobile Police - MMAD - he noticed the taxi driver standing near the rear left part of his car, on the side, near the rear mudguard. His car was on the right berm in relation to his (the witness’s) direction and was facing the Limassol road. That when near the taxi driver he told him something without stopping and proceeded, he was going slowly; that when he proceeded at a distance of about 120 - 130' from the taxi driver he noticed a car heading towards C.B.C. and as soon as it passed and he (the witness) had covered about 30' from the spot he had met the other car and hardly after a second he heard the noise of a collision, he stopped and alighted and noticed the taxi driver on the ground; that at the time he met the taxi driver and spoke to him near the reserve police there was no vehicle behind him (the witness) on the C.B.C. road but in front of him there was the car he mentioned.

In cross-examination he said that when he first noticed the lights of the oncoming vehicle he was a distance of 60’ from the taxi; and when asked what he meant by 60' he said "one donum from here until the motor-cycles at the edge of the yard". (According to the prosecution this distance had been measured and is 50 meters). He also said that the headlights of [*116] the taxi were in a dipped position, they were illuminating (efengan) ahead (mprosta) but not on the tarmac so as to dazzle because the taxi was traversely towards the reserve police; they however, illuminated somehow the road (efotizan ligon ton dromon). That when he spoke to the taxi driver he was driving at about 20 m.p.h. and that thereafter his speed may have been 20 - 30 m.p.h.

To a question by the Court to explain how he spoke of a distance of 60' as being 50 meters he said "I indicated what I mean by 60'"; and when asked whether his reference to a distance of 120

- 130' from the taxi driver should be taken in the same analogy as the 60’, he indicated a distance of 50 meters plus the width of a road and the fences (about 60 meters).

P.W. 7, P.C. 4360 Michalakis Demetriou testified that on the night of the accident he was on duty at the guard point (skopia) of the Police Protection Service (Isodos pros Y.II.A. in the plan exhibit 1). The guard point is adjoining the C.B.C. road and whilst there a taxi stopped near him and as it is prohibited for vehicles to park near the guard point after approaching the driver and finding out what he wanted he indicated to him to park on the opposite side of the road. Before leaving he (the taxi driver) gave him a piece of paper with an address and he went into the station to find out about the address. He went in, asked about the address and returned. Whilst returning and whilst he was at a distance of 2 – 3 [*117] meters from the rails of the entrance of the guard point he noticed a man who was in motion and was attempting (eprospathousen) to cross the C.B.C. road from the opposite direction towards the Y. II. A. entrance. When he first noticed him starting to cross, he stepped 1-2 on the tarmac, and suddenly he noticed a car coming from the direction of Limassol road towards the C.B.C. which knocked on him. From the moment he noticed him trying to cross the road - making 1-2 on the road - until the accident he does not remember noticing any other car on the C.B.C. road because his attention was directed on the taxi driver and the piece of paper he had given him.

The version of the accused:

In a statement which he gave to P.W.

1 at 0010 hrs…and soon after the latter had arrived at the scene and before … taking any measurements accused stated: "I was driving my carJW 980 on the C.B.C. road towards C.B.C. Outside the Police Training School I noticed two stationary vehicles one to my right and the other to my left with their headlights on. I proceeded at a speed of 4O m.p.h. and thinking that the road was clear as soon as I passed the stationary cars suddenly there appeared in front of me a man and before managing to apply brakes I knocked on him. I think he was standing in the middle of the road.[*118]

When called upon to make his defence the accused from the dock adopted his statement to the police - exh. 3 - which he made nine days afterthe accident, which so far as relevant reads as follows:-

I am upset due to this accident. I wish to explain how it happened. I was driving to my job. Outside the police entrance on the left berm there was a stationary car with the lights on towards my direction. Just at that moment there was coming a car which I later found out it belonged to C.B.C. My speed was 40 m.o h. and when I was near the two cars and before passing through them (protou peraso endiamesa) I reduced speed and as soon as I started passing from the effect of the lights (molis arhisa na perno apo tin epidrasin ton foton) because the cars whilst I was passing were almost parallel, I increased as it was natural my speed. Just at that moment I noticed suddenly in front of me on the left side of the road on the tarmac at a very close distance from me, about 2 meters, a man like a pilar (kolona) who as soon as he had noticed me he turned his body towards my car raising at the same time his hands and he fell upon the front left part of my car... The C.B.C. car which was passing stopped immediately at the scene and that is why I said originally that I noticed two stationary cars. This was due to false impressions due to my shock.”[*119]

Credibility of Witnesses:

In the course of the trial I have had the oportunity to watch carefully all the witnesses whilst testifying before me and to observe their demeanour in the witness box. Having done so I have come to the conclusion that P.W. 1,2,3,4,5 and 7 are witnesses of truth and I accept their evidence. Regarding the evidence of P.W. 6 I have some serious misgivings about his evidence which render his evidence unreliable and such as not to be safely relied upon. Though when asked about distances he very readily and with considerable ease gives the distances with the same readiness and ease he turns 60' into 50 meters. Also given that he says that when at a distance of 120 - 1 30' which he later with the same ease converted into about 60 meters - from the taxi driver he met the car of the accused and after covering a distance of about 30' he heard the noise of the collision; and given that the point of Impact is 34' from the rear of the taxi the spot the witness noticed the taxi driver - the accused, according to the witness, must have covered 120 - 130' or

60 meters - minus 34' and the witness about 30' from the time they met until the impact. Given that the witness was driving, as he said, at a speed of 20 -30 m.p.h and the accused at a speed of 40 m.p.h. which he reduced, it is impossible for this account of the witness to be correct. I fairness to the witness it must be said that it is not expected of witnesses to be absolutely accurate about distances but being accurate is one thing and converting feet into meters is another thing and renders, to my mind, the relevant evidence unreliable. [*120]

Regarding the evidence of the accused, it is true that he gives a different version in his second statement. Considering that the first statement of the accused was given at midnight about ½ an hour after a fatal traffic accident, the possibility cannot be excluded that this statement was given in circumstances of real confusion, a matter that is likely to complicate rather than facilitate and assist the course of justice. (See Ioannides v. Republic, (1968) 2 C.L.R. at p.169) I have therefore arrived at the conclusion that it would not have been at all safe to rely on the first statement of the accused. Regarding the second statement of the accused, having rejected the evidence of P.W. 6 and in view of the evidence of P.W. 7 which in effect does not exclude the presence of another car on the C.B.C. road just before the accident, I have no reason to reject it. And the question arises whether the prosecution on which the burden lies has adduced evidence, and such evidence includes the second statement of the accused, to prove the offences charged beyond reasonable doubt.

The Law:

It has been said that the test as to whether a driver charged with careless driving is at fault may be said to be whether the prosecution has proved that the defendant departed from the standard of a reasonable, prudent and competent driver. Whether or not due care has been exercised is a subjective matter. The particular circumstances of each case have to be examined, and that negligence sufficient to establish [*121] civil liability is all that is required to support a conviction under s.8 (per Stylianides J. in Charalambous v. Police, (1982) 2 C.L.R. 134 at p. 143) .

In Vakanas v. Thomas and another,

(1982) 1 C.L.R. 530 pikis J. delivering the judgment of the Court of Appeal said:

"The duty is to avoid exposing other users of the road to reasonably foreseeable dangers. A foreseeable danger is one that reason and common sense suggest it is reasonably likely to materialize, as opposed to a risk, the occurrence of which is a mere possibility. If motorists and users of the road were to act on the assumption that other users of the road were inevitably bound to be negligent, we would be imposing an impossible burden on users of the road, far beyond what reason and experience " justify".

In Esonomides v. The Police,

(1972) 2 C.L.R. 45, the conviction of the appellant for careless driving was quashed because the pedestrian stepped on the road when the car of the accused was so near him that the accused had no chance of avoiding the accident.

In Wilkinson's Road Traffic Offences 7th ed. the following are stated at p. 224: [*122]

"A charge of driving in a dangerous manner Seems to cover most sins of driving, since evidence of the vehicle’s speed can be taken into consideration on such a charge, speed being an element of danger."

In R. v. Gosney, (1971) 3 All E.R. 220 the Court of Appeal held that for the offence of dangerous driving to be committed the defendant must be shown to be "at fault". This does not necessarily involve deliberate misconduct, recklessness or intention to drive in a manner inconsistent with proper standards of driving; and in Wilkinson's (supra) at p. 229 it is stated that "fault involves failure, i.e. falling below the

standard of care or skill of a competent and experienced driver. The test is that the defendant's driving must be measured against that of a

competent and experienced driver in the circumstances of the case''.

In Constantinou v. Police,

(1972) 2 C.L.R. 89 the Court of Appeal held:

"The appellant was faced with a situation in which a boy made a sudden dart across the road in front of him, and as this happened immediately after a bus had passed by which was coming from the opposite direction and as the boy came from the right of the Appellant it seems that the boy came into the field of vision of the Appellant after the bus had passed, and at a rather short distance away, and [*123] the Appellant applied immediately his brakes in an effort to avoid a collision with the boy. We cannot hold that there has been established positively, beyond a reasonable doubt, careless driving on the part of the Appellant; and counsel for the Respondents rightly in our opinion, did not support the conviction."

CONCLUSION:

Taking into consideration the time of the accident and the state and volume of traffic and other conditions at the scene and also bearing in mind the evidence which has been accepted by me particularly the evidence of P.W. 7 to the effect that he has noticed the pedestrian crossing from the opposite direction and stepped 1-2' on the tarmac and the non-positive exclusion by him of the presence of another car on the C.B.C. road and near the scene at the time of the impact, together with the statement of the accused that he was affected by the lights of the two cars and he reduced speed plus the fact that he was not speeding (see the evidence of P.W. 3) I cannot exclude the possibility that the pedestrian came into the field of vision of the accused just after the C.B.C. car had passed and at a rather short distance - about 2 meters - so that accused had no time to avoid the collision. [*124]

For these reasons, I entertain a doubt on the question whether the accused fell below the standard of a reasonable prudent and competent driver (count l) or whether he was at fault (count 2) and accused will be given the benefit of the doubt and will accordingly be acquitted on both counts.

Accused acquitted on

both counts.