ARISTEDOU ν. POLICE
(1983)2 CLR 115 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1983)2 CLR 115 1982 November 17 [TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS, JJ.] KYPROS ARISTEDOU, Appellant, v. THE POLICE, Respondents. (Criminal Appeal No. 4326). Road traffics-Careless driving-Running down case-Pedestrian knocked down whilst crossing the road-Brake marks-No safe conclusion can be drawn on the basis thereof in the absence of expert evidence explaining their correct and full significance-No weight given to fact that road was wet and insufficiently illuminated-Fact that windscreen of appellant's car was broken and the distance the pedestrian was thrown cannot by themselves support a conviction of careless driving under sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972. Whilst the appellant was driving his car in Gregoris Afxentiou Street, at Ayios Dhometions, he knocked down and fatally injured a pedestrian who was crossing the street from his left to his right and after he had covered a distance of 2 feet berm and 5 feet 6 inches within the asphalt. The road was wet and dangerous and there was insufficient light. The ear of the appellant left 38 feet brake marks before the point of impact and 9 feet thereafter before it came to a standstill. The pedestrian was thrown at a distance of 30 to 35 feet and as a result of the collision he met his death. The trial Judge found that the collision was violent because of the breaking of the windscreen of the car and the distance where the victim was thrown. On the basis of this finding and in combination with the brake-marks left, it further found that the speed of the appellant was much higher than the speed of 15 to 20 m.p.h. that he alleged and this explained why the collision was violent. Before the trial Court there was evidence, from an independent witness that the appellant was driving at a rather low speed. Upon appeal against conviction: Held, that in addition to the fact that there was no expert evidence to explain the correct and full significance of the brake-marks, the trial Judge failed to give the weight it deserved, to the fact that the road was wet at the time and that the place where the deceased was standing before he darted to cross the road was insufficiently illuminated; that furthermore, the independent evidence of the eye witness, is not of little assistance to the Court as found by the trial Judge because he stated clearly that the car of the appellant was driven at the time at a rather low speed and its trafficator indicated that it was about to turn left; that these factors support strongly the version of the appellant as to the circumstances under which the accident occurred; that the fact that the windscreen of the car of the appellant was broken and the distance where the deceased was found and that the noise heard which was described by the eye witness as it being like coming from the collision of two vehicles and the fact that the appellant noticed only a shadow darting into the road, as found by the trial Judge, are neither here nor there and cannot by themselves support a conviction of driving without due care and attention under sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972; accordingly the appeal must be allowed. Appeal allowed. Cases referred to: HjiGeorghiou v. The Police
(1972)2 C.L.R. 86; Constantinou v. The Police
(1972)2 C.L.R. 89. Appeal against conviction. Appeal against conviction by Kypros Aristedou who was convicted on the 24th May, 1982 at the District Court of Nicosia (Criminal Case No. 20844/81) on one count of the offence of driving without due care and attention contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86/72) and was sentenced by Arestis, Ag. D.J. to pay £30.- fine and was also bound over in the sum of £100.-to keep the Law and the Traffic Regulations. A. Drakos, for the appellant. A.M. Angelides, Counsel of the Republic, for the respondents. Triantafyllides, P.: The judgment of the Court will be delivered by Mr. Justice Malachtos. Malachtos, J.: On the 16th January, 1981 at about 5.45 p.m. while the appellant was driving his motor car under Registration No. J.C. 62 in Gregoris Afxentiou Street at Ayios Dhometios in the direction of the airport, knocked down and fatally injured a pedestrian who was at the time crossing the said street, from his left to his right. He was charged before the District Court of Nicosia for driving without due care and attention contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law of 1972 (Law 86/72) and was convicted and sentenced to £30.- fine and was also bound over in the sum of £100.- to keep the Law and the Traffic Regulations. This appeal has been filed against his conviction and the grounds of appeal both in the Notice of Appeal and as argued by his counsel today before us, can be summarised in that the findings of the trial judge are not warranted by the evidence adduced and are against the weight of such evidence. The relevant part of the judgment of the trial Judge appears at page 14 of the record and is as follows: "The evidence before the court is in substance the real evidence and that which comes out from the statement of the accused. Other independent evidence is not existent, except the evidence of P.W.3, which is of little assistance to the court. After careful consideration of the evidence as a whole, I came to the conclusion that the following facts were proved before me and I accept them as correct: (
- a)On 16.1.1981 and at about 5.45 p.m. the accused was driving his car under Registration No. JC62 in Gregoris Afxentiou Street at Ayios Dhometios directed towards the airport and was approaching the opening of this street which leads to the Cooperative Savings Bank of Ayios Dhometios. The road was wet and dangerous and there was insufficient light that was coming from nearby streets; (
- b)At the same time, the pedestrian Andreas Kyriakou, tried to cross Gregoris Afxentiou Street from left to right in connection with the direction of the accused at a point at about 20 ft. before the next turning to the left of the accused; (
- c)When the pedestrian covered a distance of 2 ft. berm and 5 ft. 6 ins. within the asphalt, was knocked down by the car of the accused, the windscreen of the car of the accused was broken as a result, and the pedestrian was thrown at a distance of 30 to 35 ft. which is a distance from point X, the point of impact, up to point BI on exhibit 1 where the pedestrian as well as a pool of blood were found. The result of the collision was the death of the pedestrian; (
- d)the accused had the headlights of his car on at the time and could see the pedestrian from a distance of more than 50 ft. Inspite of that he did not realise that it was about a human being but he realised only a shadow and something that knocked on his car shortly after. I do not accept the explanation which was given in cross examination that he meant human shadow. He realised the pedestrian from a distance of only 40 ft; (e)The collision was violent and this comes out from the breaking of the windscreen, the distance where the victim was thrown, and the description that was given by P.W.3 that the noise which he heard was that of two vehicles coming into collision. I further find that the speed of the accused on the basis of the above and in combination with the brakemarks left, that it was not that alleged by the accused, that is to say, less that 15 to 20 mph, but much more higher and this explains why the collision was violent. On the basis of the above, the accused is found guilty as charged." In this appeal we must state straight away that we are confronted with a case in which it is proper to say, after reading the record of proceedings, and giving out best consideration to the assessment of the evidence by the trial Judge, no other conclusion is possible except that such conclusions are not warranted by the evidence adduced. According to the evidence of the Police investigator the car of the appellant left 38 ft. brakemarks before the point of impact and 9 ft. thereafter before it came to a standstill. Counsel for the respondent in this appeal stated, very right in our view, that he could not support the finding of over-speeding made by the trial Judge, in view of the judgments of this Court in HjiGeorghiou v. The Police
(1972)2 C.L.R. 86 and Constantinou v. The Police reported in the same volume at page
- In the HjiGeorghiou case at page 87, it is stated: "This conclusion of the trial Court was based primarily on the fact that as a result of the application of the brakes by the Appellant there were left brake marks 43 feet long before the point of impact and 13 feet and 6 inches long after such point; according to the evidence of the police constable who investigated the case the brake marks were at the beginning 'light' and at the end 'more distinct', indicating that the Appellant applied at first the brakes 'lightly' and later with 'more strength'. The trial Judge says in his judgment that these brake marks 'speak so fluently for themselves'. We are unable to agree with the above view of the trial Judge: As no expert evidence has been adduced in order to explain the correct and full significance of the said brake marks in the light of the particular circumstances of this case, we are of the view that it was not safe for the trial Judge to form any distinct opinion on the basis thereof regarding the speed at which the Appellant was driving at the material time; and since the Appellant's conviction was, as stated, based on the finding that he was driving at an excessive speed we have to set aside the conviction and the sentence imposed as a result thereof". In our view, in addition to the fact that in the present case there was no expert evidence to explain the correct and full significance of the brakemarks, the trial Judge failed to give the weight it deserved, to the fact that the road was wet at the time and that the place where the deceased was standing before he darted to cross the road, was insufficiently illuminated. Furthermore, the independent evidence of the eye witness, P.W.3, is not of little assistance to the Court as found by the trial Judge. This witness stated clearly that the car of the appellant was driven at the time at a rather low speed and its trafficator indicated that it was about to turn left. These factors support strongly the version of the appellant as to the circumstances under which the accident occurred. The fact that the windscreen of the car of the appellant was broken and the distance where the deceased was found and that the noise heard which was described by the eye witness as it being like coming from the collision of two vehicles and the fact that the appellant noticed only a shadow darting into the road, as found by the trial Judge, are neither here nor there and cannot by themselves support a conviction of driving without due care and attention under sections 8 and 19 of the Motor Vehicles and Road Traffic Law of
- For these reasons we allow the appeal and set aside the conviction and sentence imposed as a result thereof. Appeal allowed. Conviction and sentence set aside. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο