clr/1981/1981_2_195.pdf

(1)that given the conflicting allegations made about the circumstances surrounding the accident, it was of the first importance for the trial Court to determine, in the first place, the facts that attended the collision, especially the circumstances under which thedriver ofthe motor-vehicle emerged on the main road and the distance that separated the two vehicles at the 195 Neophytou v. Police

(1981)time he did so; that in the absence of such a finding, it was impossible to determine the liability of the appellant for the accident and, therefore, decide the issue of his guilt; that the failure of the Judge to examine the evidence before him in its proper perspective is such as to make it difficult, if not impos- 5 sible, to discern the reasons for the conviction of the appellant; that the supply of proper reasoning for the deliberations of the Court, particularly thereasonsfor theconviction of theaccused, is mandatorily warranted by the Constitution, notably Article 30.2, and constitutes at the same time a fundamental attribute 10 of the judicial process.

(2)That the evidence before the Court must be analysed in the light of the issues arising; that in a criminal case, the basic issue is always that of the guilt of the accused in the light of the burden cast on the prosecution to prove it; that, further, 15 there must be concrete findings as a necessary prelude to the finaldeliberations of the Court and, lastly, theremust bea clear pronouncement indicating the outcome of the case; that the reasoning given in support of the judgment in this case falls short of the above; and that, therefore, the judgment cannot 20 stand;accordinglytheappeal mustbeallowedandtheconviction and sentence set aside (statement of the law in Pioneer Candy Ltd., andAnother v. SteliosTry/on&SonsLtd.,

(1981)1C.L.R. 540 on reasoning of judgment in civil proceedings applies equally to judgments given in the field of criminal law). 25 Appeal allowed. Cases referred to: PioneerCandyLtd. and Anotherv. Stelios Tryfon& Sons Ltd.

(1981)1 C.L.R. 540. Appeal against conviction. Appeal against conviction by Andreas Socratous Neophytou who was convicted on the 27th August, 1981 at the District Court of Paphos (Criminal Case No. 2697/80) on one count of the offence of driving without due care and attention, contrary to sections 8and 19 of the Motor Vehicles and Road Traffic 35 Law, 1972 (Law 86/72) and was sentenced by Laoutas, Ag. S.D.J, to pay £15.—fine Chr. Georghiades, for the appellant. A. Evangelouy Senior Counsel of the Republic, for the respondents. 196 30 40 2 C.L.R. Neophytou v. Police LORIS J.:. We are unanimously of the view that the appeal must be allowed and that the conviction and sentence should consequently besetaside. Weconsiderit unnecessary tobreak; Pikis, J. will give our reasons for allowing the appeal. .5 On 17.6.1980, a motor-vehicle, driven by accused 1 before the trial Court, and amotor-cycle, driven bytheappellant, accused 2 before the trial Court, collided on the main Paphos—Peyia road, close to its junction with the side-road leading to Chlorakas. Shortly before the collision, the motor10 car driven by accused 1had emerged on the main road from the side-road. It was of crucial importance for the Judge to decide under what circumstances the motor-car ,had entered the main road, and what the position of the two vehicles was at the time. 15 20 25 30 35 40 PIKIS J.: For the prosecution, evidence was adduced, coming from the police constable who investigated the accident, sketching the scene and recording pieces of real evidence found thereat. The point of impact was on the righthand side,of the road, as oneproceedsinthedirection ofPeyia. The onlyotherevidence adduced by the prosecution, came from a passenger in the car of accused 1,whose testimony is, on the face of the record, by no means conclusive as to what had preceded the collision. This witness testified, interalia, that the motor-cyclist changed direction and moved to theright,a short whileafter the motorcar had entered the main road. Withthis evidence in hand, the trial Judge dismissed the cas3 against accused 1, who was consequently acquitted and discharged, and called upon accused 2to make his defence. In histestimony before the trial Court, accused 2, the appellant before us, maintained that he was compelled to change direction and move to the righthand side of the road, in view of the emergence of the motor-car on the main road without first hailing, a fact that precipitated the collision. AttheendofthedaythetrialJudge,in anex tempore judgment, convicted the accused after rinding that he failed to keep a proper look-out and "for keeping the wrong side of the road". Nofindingsare made withregard to the credibility of either eye-witness who testified for the prosecution, or the accused, nor was the version of the accused examined in any real sense in the context of the evidence before the Court. Obviously, the statement of the trial Judge that the appellant wasnot anexperienced driver and that the accidentwas wholly 197 PUds J. Neophytou v. Police

(1981)or in part due to that, is a matter of conjecture rather than a findingof fact. Certainly, the experience of a driver as such, is not an issue on a charge of driving without due care and attention. The manifest absence of any real finding with regard to the 5 credibility of the witnesses before the Court, and the failure to evaluate the conflicting versions, led us to invite the views ofcounselfor therespondentsonthesufficiency ofthereasoning of thejudgment. Mr. Evangelou submitted that the reasomng, although it falls short of what is desirable, the inadequacy of 10 thereasoningisnot such aslojustify intervention onthis count. We are of a contrary view. Given the conflicting allegations made about the circumstances surrounding the accident, it was of the first importance for the trial Court to determine, in thefirstplace, the facts that 15 attended the collision, especially the circumstances under which the driver of the motor-vehicle emerged on the main road and the distance that separated the two vehicles at the time he did so. In the absence of such a finding, it was impossible to determine the liability of the appellant for the accident and, 20 therefore, decide the issue of his guilt. Thefailure of the Judge lo examine the evidence before him in its proper perspective is such as to make it difficult, if not impossible, to discern the reasons for the conviction of the appellant. The supply of proper reasoning for the dohberations of the Court, particularly 25 the reasons for the conviction of the accused, is mandatorily warranted by the Constitution, notably Article 30.2,and constitutes at the same time a fundamental attribute of the judicial process. In the longer run, faith in thejudiciary of the State, and itsmission, depends, to avery large extent, onthe psrsuasi- 30 veness of the reasons given by the Courts in support of their decisions. Any laxity in this area would inevitably undermine faith in the premises ofjustice. The need for proper reasoning is not only warranted by the interests of the litigants but also bytheinterests ofthegeneralpublicintheproper administration 35 of justice. The impression of arbitrariness is the one element that must constantly be kept well outside the sphere ofjudicial deliberations. Recently, we had occasion to review the concomitants of proper reasoning in a judgment of this Bench, notably in Civil 198 2 C.L.R. Neophytou v. Police Pikis J. Appeal No. 6075, delivered on 17.11.1981.* Whatever was said there with reference to the reasoning ofjudgments in civil proc;edings, applies equally to judgments given in the field of criminal law. It was pointed out that the evidence before 5 the Court must be analysed in the light of the issues arising. In a criminal case, the basic issue is always that of the guilt of the accused in the light ofthe burden cast onthe prosecution to prove it. Further, theie must be concrete findings as a necessary prelude to the final deliberations of the Court and, 10 lastly, there must be a clear pronouncement indicating the outcome of the case. The reasoning given in support of thejudgment in this case, falls shortoftheabove;itdoesnot,for exampb,indicatewhether the appellant moved to the right-hand side of the road as a 15 result of a failure of the motor-car driver to enter the main road with due regard to traffic ther?on. And if that was the case,nothingissaidwithregardtotheimplicationsoftheactions of the appellantthereafter, andthereasonableness ofhisalleged efforts to avoid the collision. 20 For all the above reasons, we consider that the judgment cannot stand; therefore, the appeal is allowed, and the conviction and sentence are set aside. Appeal allowed. Pioneer Candy Ltd. and Another v. Stelios Tryfon & Sons Ltd.

(1981)1 C.L.R. 540. / / , 199 .'