clr/1973/1973_2_63.pdf

(1965)2 C.L.R. 34—No negligenceestablished in the instant case of such adegree warranting conviction of causing death by want of precaution under said section 210 of the Criminal Code—Conviction of care­ less driving under Cap. 332 (supra) substituted therefor—Section 145 (I)(

1. c)of the Criminal Procedure Law, Cap. 155. Causing death by want of precaution—Section 210 of the Criminal Code, Cap. 154—Degree of negligence required—See supra. Fatal accident—See supra. Careless driving—See supra. The Appellant in this case was convicted by the trial Court of the offence of causing death by want of precaution contrary to section 210 of the Criminal Code, Cap. 154. The Supreme Court, holding that the degree of negligence of the Appellant was'not so high as to warrant a conviction under the said section, set aside the conviction appealed from and, proceeding under section 145(l)(
2. c)of the Criminal Procedure Law, Cap. 155, substituted therefor a conviction for careless driving contrary to section 6 of the Motor Vehicles and Road Traffic Law, Cap. 332 and sentenced her accordingly. It is to be noted that Rayas' case (infra) was held to be still good law notwithstanding 63 1973 Mar. 8 1973 -8 certain doubts thereon arising from certain pronouncements in Nearchou's case(infra). PAULA MCLBOD The facts sufficiently appear in the judgment of the Court, allowing this appeal, quashing the conviction for the offence of • « «_ Γ , . „ causing death by want of precaution contrary to section 210 of the Criminal Code, but substituting therefor a conviction for Mar v ' T H E POLICB n careless driving under section 6 of Cap. 332 (supra). Cases referred to: Rayas v. ThePolice, 19 C.L.R. 308; Nearchouv. ThePolice

(1965)2 C.L.R. 34; Kannas v. ThePolice

(1968)2 C.L.R. 29; R. v. Lowe [1973] 1 All E.R. 805; Andrews v. Director of Public Prosecutions [1937] A.C. 576. Appeal against conviction. Appeal against conviction by Paula Mcleod who was convicted ^ on the 21st December, 1972 at the District Court of Kyrenia (Criminal Case No. 1534/72) on one count of the offence of causing death by want of precaution contrary to section 210 of the Criminal Code, Cap. 154 and section 13

(1)of the Motor Vehicles and Road Traffic Law, Cap. 332 and was sentenced by Pitsillides, S.D.J, to pay £70.- fine and £30.- costs. A. Christofides with L. Olymbiou (Mrs.),for the Appellant. TV. Charalambous, Counsel of the Republic, with C. Kypridemos, for the Respondents. The judgment of the Court was delivered by:TRIANTAFYLLIDES, P.: In this case the Appellant has appealed against her conviction of the offence of causing death by want of precaution, contrary to section 210 of the Criminal Code, Cap.

1. The facts on which the charge was based are, briefly, that on the 4th of July, 1972, the Appellant, while driving a mini-bus from Kyrenia to Ayios Amvrosios, collided with a motor-car coming from the opposite direction, as soon as the motor-car had emerged from a narrow part of the road under which there is a culvert; as a result the driver of the motor-car was killed. The learned trial Judge found that the collision had been caused partly through the fault of the other driver and partly 64 \ \ •. \ ^ \ through the fault of the Appellant; he took the viewnhat the Appellant's fault consisted in driving without due care and attention; and, as such fault had contributed to the causing of the death of the other driver, the Judge proceeded to convict the Appellant as charged, under section 210 of Cap. 154; he stated that the Appellant had driven without due care and attention, in the sense of section 6 of the Motor Vehicles and Road Traffic Law/Cap. 332,and that in his opinion no higher degree of negligence than that was required for a conviction under section
2. Such a view of the law is inconsistent with the decision in Rayas v. The Police,19 C.L.R. 308, regarding the degree of negligence required for a conviction under section 204 (now section210)oftheCriminalCode;butthetrialJudgeconsidered that that case had been overruled in later cases, and, in this respect, he referred, .in.particular, to Nearchou v. The Police

(1965)2 C.L.R. 34. It is true thatin the Nearchou case the"decision in theRayas case was doubted; but it was never expressly overruled by a majority of the three Judges of this Court who dealt on appeal with the Nearchou case. It seems that after the Nearchou case this Court did not in subsequent cases—such as,for example, Kannas v. The Police

(1968)2 C.L.R. 29—tackle directly the issue of the validity of the decision in the Rayascase. Counsel for the Respondents has today agreed with counsel for the Appellant that the Rayascase is still good law; and we are reinforced in accepting this proposition,by_arecent decision of the English Court of Appeal in R. v. Lowe (reported in the London "Times" of the 24th January, 1973)*where there was adopted theviewof LordAtkininAndrewsv.DirectorofPublic Prosecutions[1937] A.C. 576—which wasacaseinvolvingmotor manslaughter—to the effect that in order to establish criminal liability the facts must be such as to show that the,negligence of the accused "went beyond a mere matter of compensation between subjects*' and was "such disregard for the.life and . safety of others as to amount to a crime against the state and conduct deserving punishment". * See now [1973] 1All E.R. 805. 65 1973 Mar. 8 PAULA MCLEOD v. THE POLICE 1973 Mar. 8 PAULA MCLEOD V. THE POLICE Though in the case before us weare not dealing with a charge of motor manslaughter (as in the Andrews case), we are dealing none the less with a charge for a crime against the State—under the Criminal Code (section 210)—which involves, as decided in the Rayas case, a degree of negligence beyond that required for liability at civil law. On the other hand, section 6 of Cap. 332, like the practically identical regulation 56 of the Motor Traffic Regulations, 1951 (in force at the time of the Rayas case), creates a statutory offence beyond the ambit of criminal lawliability for negligence; and for a conviction under such section there is not required proof of negligence of a higher degree than negligence at civil law. In the light of the foregoing we entertain no doubt that the trial Court misdirected itself in law by holding that proof of the lack of care and attention, required for a conviction under section 6 of Cap. 332, sufficed for the conviction of the Appellant under section 210 of the Criminal Code, Cap. 154; and in view of such misdirection and of the fact that we are of the opinion that there was not established in the present case negligence, on the part of the Appellant, warranting a conviction under section 210 we have to set aside the conviction appealed from. We have to consider next whether we should substitute a conviction of the Appellant under section 6 of Cap. 332: Counsel for the Appellant has argued that we should not do so, as it has not been established that the Appellant was driving at the material time without due care and attention. It is,~however, an indisputable fact that the Appellant saw the other vehicle coming towards the narrow part of the road, over the culvert, in a zigzag manner, at a time when she could have stopped before the culvert, if she had applied fully the brakes; yet, though she ought to have realized that there existed the likelihood of a collision, especially in the narrow part of the road, she did not try to stop immediately her mini-bus, so as to allow the other vehicle to pass the narrow part first; for this reason we find that the Appellant drove negligently and that, in the exercise of our powers under section 145

(1)(c) of the Criminal Procedure Law, Cap. 155, we should convict the Appellant of the offence of driving without due care and attention, under section 6 of Cap. 332. 66 The sentence passed upon the Appellant by the trial Court was a fine of £70; once her conviction by the trial Court under section 210 was set aside this sentence has to be set aside too. As regards the sentence to be passed upon the Appellant by us, in respect of the offence under section 6 of Cap. 332, we are of the opinion that a fine of £30 suffices; the Appellant to pay, in addition, the £30 costs of the prosecution, which she was adjudged by the trial Court to pay. Appeal allowed. 67 1973 Mar. 8 PAULA MCLEOD v. THE POUCE