clr/1973/1973_2_99.pdf

(3)this Court isnot boundby the determination on questions offact made by the trial Courts and haspower to re-hear any witness already heard by the trial Court, if the circumstances of the case justify such course—But this provision has to be applied in the light of the general principle setforth supra. Findings of fact made by trial Courts—Witnesses—Credibility—Rehearing witnesses—Approach of the Appellate Court to such matters—See supra, passim. Road Traffic—Failing to obey traffic lights—Collision at cross-roads controlled by traffic lights. 99 v. THE POLICE 1973 M a v 31 DAVID MOON Thefacts are fully'set out inthejudgment ofthe Court dismissing this appeal against conviction. Cases referred t o : V. THE POLICE Economidesv. Zodhiatis, 1961 CL.R.306,atpp. 307-308; Haloumias v. ThePolice

(1970)2 CL.R. 154,at pp. 160-161. Appeal against conviction. Appeal against conviction byDavid Moon who wasconvicted oh .the 13th March, 1973 at theDistrict Court of Limassol (Criminal Case No. 11576/72)ontwocounts of the offences of driving without duecare andattention contrary,to sections 6 and 13of the Motor Vehicles and Road Traffic Law, Cap. 332 and,of failing to obey- traffic lights contrary to regulations 182(

1. h)and 185 oftheLimassol Municipal Bye-Laws, 1953-1960 and section 126of the Municipal Corporations Law,Cap. 240, and was. sentenced by Kronides, D.J.to pay £ 1 5 - fine with £6.500 mils costs oncount 1and wasfurther bound over in the sum of £40.- for 1year to come upforjudgment on count 2. S. McBride, for the Appellant. N. Charalamboiis,Counsel of the Republic, for the Res­ pondents. Thejudgment of tneCourt wasdelivered by :HADJIANASTASSIOU, J.: OnMarch 13, 1973, the accused was convicted at the District Court of Limassol ontwo counts,of driving a motor vehicle without due care and attention contrary to ss. 6 and 13of the Motor Vehicles andRoad Traffic Law, Cap. 332;andof driving thesaid vehicle andfalling to obey the traffic lights, contrary to Regulations 182(
2. h)and 185 of the Limassol Municipal Bye Laws, 1953-1960, s, 126ofthe Munici­ pal Corporations Law,Cap. 240,and P.I. 326/65. Hewas sentenced to pay a fine of £13 on count Γwith £6.500 mils costs; andwas bound over in thesumof £40to come upfor judgment if and when called upon within one year oncount2. The Appellant appealed against conviction and the points of substance raised by the noticeofappeal are:

(1)that the findings of the.learned trial Judge were not warranted by the evidence as a whole; 100

(2)that he failed,to consider adequately or at all the explanation of the Appellant regarding the period for the change of the traffic lights,,and the.time factor for the Appellant to,move past the traffic lights from his own side to the point of impact; and : •• :, ,-... : ;

(3)that the judgment of the learned trial Judge,was.not adequately reasoned and, was-reduced in weighing,the evidence " I accept the prosecution's.evidence. I reject the defence and I therefore convict the accused".. „ • • The facts are simple. ^ • - / On August 17, 1972; the accused whilst driving his vehicle EK 142along Ayios Andreas Street in Limassol town, he met with an accident when entering the cross-roads of Ayios Andreas- Anexartisias, which are controlled by traffic lights, and collided with the vehicle of the complainant, PB211; comingfrom hisleft. Asa resultofthat.accident, bothvehicles sustained damage.' The police arrived at the scene of the accident at a commendable speed within a few minutes and in the presence of both drivers, P.G505 Nicos Gavriel, took measurements and prepared a sketch. The point of impact marked "X" on that sketch was agreed by both drivers. The width oftheroad from thesideofAyiosAndreasis 14ft. tothe west and 16ft. towards the east of the point of impact. The distance from the pole of the traffic hghts from the side of Ayios Andreas up to the point of impact is 36ft. and from the other side of Anexartisias up to the same point is 25 ft The visibility at the cross-roads is limited from both directions and one would have thought that the drivers had to proceed very carefully indeed. The lights were checked and were found by the same policeman to be functioning regularly, and it appears that when the lights are red from the side of Ayios Andreas, they are green from the other side. As a result of the said collision, the vehicle of the accused was scratched towards its left side and that of thecomplainant wasfound to bedamaged at its front part. On the same date the accused gave an open statement to the •samepolice officer to theeffect that on thedate ofthe accident he was driving along Ayios Andreas eastern direction at a speed of about 4 to 5 m.p.h. and on approaching the traffic lights, the hghts were green on his side, and without stopping he continued and started entering the cross-road. As soon as 101 1973 May 31 DAVID MOON v. THE POLICE M 1973 ay 3i ~~M v THE POLICE he entered the cross-roads, he saw a car coming from his left along Anexartisias Street, and when he found himself 4 to 5 ft. away from that car, he sounded his horn and applied brakes in order to stop, but motor car D B 2 1 1 continued and hit with its front part the left side of his car and pushed it to the right. In that statement accused added (apparently trying to show that the complainant was negligent) that the other driver was driving whilst his right leg was in plaster. The complainant who gave evidence on oath, told the Court that when he approached the cross-roads from the side of Anexartisia, he saw that the traffic hghts were red and stopped. As there were no other vehicles in front of him when the green light came on he drove off, and when he reached a distance of the length of his own car, and before he could see Ayios Andreas Street, he saw the motor-car of the accused colliding with the front part of his vehicle, without stopping and without applying his brakes. In crossexamination he said that at the time of the accident there were pedestrians in the road and further added that the accused did not stop at the scene of the accident. The evidence of Mr. Demetriou (who was believed by the Court) supported the version of the complainant, and in cross-examination he said that the complainant proceeded a few seconds after the green light came on. On the contrary, the accused who gave evidence on oath, said that he did not stop before entering into the cross-roads because the lights were green from his side. He was going at a speed of 5 m.p.h. because there were a lot of pedestrians on the road. He was involved in an accident and from the impact he said he was pushed to the right. He timed the changing of the traffic hghts from green to red four days after the accident, and the distance from the traffic pole to the point of the collision was found to be 6', 1". It appears that although the accused, in his open statement to the police, put forward the allegation that when he saw the car of the complainant from a distance of 4 to 5 ft. he sounded his horn and applied his brakes in order to avoid the collision, in our view, it is surprising that he did not say anything before the trial Court when he was giving evidence. We think that we ought to state that in every case of this nature it is for the trial Court to assess the evidence and find the primary facts necessary to constitute the offence of driving without due care and attention; and if on the totality of the 102 evidence betore it, it was open to the trial Courtto make such findings, these can only be disturbed on appeal, if this Court is persuaded thatthey are unsatisfactory to theextent of requir­ ing intervention in order to do justice in the particular case according to law. ιWith this in mind, the learned trial Judge, in this case, after evaluating the evidence before him, made a finding of fact that thecomplainantstopped at thetraffic lights from his side and drove off when they changed into green. When he was entering into the cross-roads he collided with the car of the accused which was coming from the other side. Once hebelieved theevidence of thecomplainantthathe drove off when the lights changed into green, and furthermore there was supportingevidenceonthisissueby anindependent witness, he reached the view, based on inference, quite rightly in our opinion, that once the traffic lights were functioning properly the accused must have entered into the cross-roads when the traffic hghts were showing red from his direction. What is said by counsel for the Appellant here is twofold. His first point is that the trial Judge drew unreasonable infer­ ences that because the lights were green from the side of the complainant,.the accused must have driven against the red lights from hisownside;andthathefailed toconsideradequate­ ly the explanations given by the Appellant, particularly as to the time element of the changing of the lights. In our opinion,in going through the record,and particularly through the evidence of the accused, we find ourselves unable to agree with thecontentionof counsel, because on the totality of theevidence before thelearned trial Judge,it was reasonably open to him to draw inferences and find that the accused was guilty of driving without due care and attention and of failing to obey thetraffic lights. It is true,of course, that thelearned Judge did notmentionanything about thetimeelement regard­ ing the changing of the lights, but in our judgment there is nothing on record to support thecomplaint of counsel thatthe trial Judge did not weigh properly the evidence of the accused. We would, therefore, dismiss this contentionof counsel. The second point taken by counsel for the Appellant is that the judgment of the trial Judge was not adequately reasoned and he invited the Court to quash the conviction. It is true that this Court,from time to time,said that it is desirable that trial Judges, in deciding to believe theversion of oneparty and reject that of the other should normally give reasons for doing 103 1973 May 31 DAVID MOON V. THE POUCE 1973 * Mav DAVHTMOON v THSPouce so. Thecasealways'referred to onthis issueisAndreas Econfr midesv.IoannisX.Zodhiatis,1961C.L.R.306whereJosephides, J· said so, and the other tru^Judges concurred. Josephides, J. said there, at pp. 307and 30» " The main complaint of the Appellant is that the trial Judge said baldly that he believed theilaintiff-and'his witnesses and discarded the evidence of theDefendant and his witness without giving any reasons for doinfso.; In support·of his argument, Mr.'Antoniou for the Appellant has pointed out one or two apparent contradictions in the'evidence of the laihtiff and hss witnesses. ^' V • Undoubtedly a Court of Appeal has the power to set aside the findings of fact,of> trW.Ctour^^wherejiie^al Judge has failed totakeintoaccountcircumstancesmaterialtoanestimate of the evidence, or-where he;has,beheve^,testimony,which is inconsistent; with itself, or,with;indisputable fact. And.since theenactment oftheCourtsofJustice Law, I960,,under section 25

(3)thisCourtisnotboundbyanydeterminationsonquestions of fact made by thetrial Court and has power to re-hear any witness-already heard'by the trial Court,'if the circumstances of the casejustify such acoursel· 'But this'provision has to be applied'in the light of the general principle that a Court of Appeal ought not to take the responsibility of reversing the findings'of fact by the trial Court merely on the result of their own comparisons and criticism of the witnesses, and of their own viewof theprobabilities ofthecase. 'Havingreadtheevidenceadduced inthiscase,weare satisfied that there"was ample evidence on which the trial Court could make its finding preferring the version of the Plaintiff and his witnessestothat oftheDefendant andhiswitness. Wearenot, therefore, prepared to reject the finding of the trial Judge on the facts deposed to by the witnesses, especially when the finding, as in thiscase, isbased on the credibility of the witnesses.' For thesereasonstheappealfails". .SeealsoHaloumlasv.The Police

(1970)2 CL.R; 154, at pp. 160-161. Having read the whole of the evidence adduced in this case, _ we are satisfied that there was ample material on which the trial Judgecould-makehisfindingpreferring the version of the complainant arid hiswitnesses to that of the Appellant; and at the same time drawing the inference that once thetraffic lights were functioning 'properly, the accused must have driven contrary-to the red hghts from his side: We are not, therefore, prepared to reject the finding of-the trial Judge on the facts 104 deposed to by the witnesses, especially when the finding, as in this case, is based partly on the credibility of the witnesses and partly on inference drawn from such evidence. For these reasons the appeal fails, but wetake the opportunity to reiterate once again that it is desirable that trial Judges, in deciding to believe the version of one party and reject that of the other, as well as in drawing inferences from such facts, should normally givereasons for doing so,because otherwise the Court of Appeal would find difficulty in deciding whether the trial Judge in the particular case before him has properly estimated the witness, or has drawn correct inferences from such evidence. 1973 y 31 Ma DAVID MOON v. T H B POLICE Appeal dismissed. 105