(1981)1981 December 22 [TRIANTAFYLLIDES, P., DEMETRIADES, SAVVIDES, JJ.] THEMIS THEMISTOCLEOUS, Appellant, v. THE POLICE, Respondents. (Criminal Appeals Nos. 4262 and 4264). Criminal Law-—Causingdeath, ina traffic accident, by wantof precaution—Section 210 of the Criminal Cede, Cap. 154—Appellant driving on avenue—Another car suddenly coming onto the avenue from side-road and practically blocking completely appellant's lane of avenue while another car was comingfrom the opposite 5 direction—Appellant finding himself in a fateful dilemma, and starting manoeuvring his car, in the agony of the moment, in order to avoid colliding witheither of the twovehicles—Succeeding in this effort but colliding with a tree and as a result his co-passenger was fatally injured—Not safe to convict appellant of 10 the above offence—Conviction quashed—Appellant could not, in the circumstances of this case, be convicted of careless driving. in exercise of the Court's powers under section 145(l)(
- c)of the Criminal Procedure Law, Cap. 155. Criminal Law—Evidence—Failure of accused to give evidence in his own defence—Comment by Judge. 15 This was an appeal against the conviction of the appellant of the offence of causing, in a traffic accident, death by want of precaution, contrary to section 210 of the Criminal Code, Cap. 154. The accident occurred whilst the appellant was 20 driving at night-time his car, along Grivas Dhigenis avenue, in Nicosia and a car came out suddenly onto the avenue from a side-road and practically blocked completely the lane of the avenue along which the car of the appellant was travelling. At that time, another vehicle was coming from the opposite 25 direction in the other lane of the avenue; and the appellant, 200 2 C.L.R. 5 10 15 20 25 30 35 Thcmistocleous v. Police having found himself suddenly and unexpectedly in a fateful dilemma, started manoeuvring his car, in the agony of the moment, in order to avoid colliding with either of the aforementioned two vehicles. He eventually, succeeded in this effort, but his car collided with a tree further down the avenue, after it had skidded along the road for a distance of about one hundred andfiftyfeet, andasaresulthisco-passengerwasfatally injured. The trial Judge in commenting on the failure of the appellant to give evidence in his own defence, stated that, by electing to makeanunsworn statement from thedock,theappellantshowed that he was not telling the truth and intended "to take refuge inthedock" in order not toexpose himself to "thefireof crossexamination". Counsel for the respondents did not support the conviction for theaboveoffence butinvited theCourttoexerciseitsrelevant powers, under section 145(l)(
- c)of the Criminal Procedure Law, Cap. 155and to convict the appellant of careless driving. Thissubmissionwasbased on thefact that a prosecution witness stated that theappellant wasdrivingat aspeed ofover 30m.p.h., on the fact that the length of skid marks left by the car of the appellant indicated that the speedat which hiscar was travelling before the accident was much more than 30 m.p.h. and that this inference could find support, too, in the real evidence as regardsthedamagewhichwascausedtothecar oftheappellant, which indicated that it collided with the tree with quite some force. Held,
(1)that this Court is in agreement with counsel for the appellant, with whom, very'fairly, counsel for the respondents has, also, agreed, that this is not a case in which it was safe to convict the appellant of the offence of causing death contrary to section 210 and, therefore, the conviction of the appellant, in this respect, is set aside.
(2)That the estimate of the speed of the car of the appellant at more than 30 m.p.h., by the said prosecution witness, who was driving from the opposite direction at night-time, has to be regarded as being unsafe in the circumstances; that there wasno evidence on record as regards whether actually.the place where the accident occurred was within a speed limit area and 201 Themistocleoos τ. Police
(1981)what was the particular speed limit; that as the length of the skid marks of thecar of the appellant and theforce of its colli sion with the tree do not appear, on the basis of the material which is before this Courtin this appeal,to be clearly connected with the speed of the appellant's car before he found himself 5 in the agony of trying to avoid a collision with the other two vehicles and may be attributable to his manoeuvres to avert such a collision, this Court is not prepared to hold, in this criminal case, that the appellant should be found guilty, beyond reasonable doubt, of the offence of careless driving; and that, 10 therefore, it does not intend to exercise for this purpose its powers under section I45(l)(c) of Cap. 155. Appeal allowed. Observations: The trial Judge has, in commenting on the failure of the appellant to give evidence in his own defence, unfortu- 15 nately exceeded somewhat the by the law prescribed limits in this connection. Itis clear that the appellant was fully entitled in law tochoose to make an unsworn statementfrom thedock and the adoption of such a course by him could not be trea ted by the trial Judge, particularly in the circumstances of 20 this case, in a manner so adverse for the appellant. We would, indeed, be prepared to set aside the conviction of the appellant for this reason, too. Appeal against conviction and sentence. Appeal against conviction and sentence by Themis Themi- 25 stocleous who was convicted on the 8th September, 1981 at the District Court of Nicosia (Criminal Case No. 10627/81) one one count of the offence of causing death by want of precau tion, contrary to section 210 of the Criminal Code Cap. 154 and was sentenced by Stavrinides, D.J. to pay a fine of C£200.— 30 and was disqualified from holding or obtaining a driving licence for 18 months. G.I. Pelaghias, for the appellant. A. Frangos,Senior Counsel of the Republic,for the respondents. TRIANTAFYLLIDES P.gave thefollowingjudgment of the Court. In this case the appelant was convicted of the offence of causing, in a traffic accident, death, by want of precaution, contrary 202 35 2 C.L.R. Themistocleous v. Police TriantafylUdes P. to section 210 of the Criminal Code, Cap. 154, while driving at night-time his car, on January 18, 1981,in Nicosia, along Grivas Dhigenis avenue, in a direction away from.the centre of the town and towards the Nicosia International Airport. 5 The person who was killed was a passenger in the car of the appellant. The appellant was sentenced to pay afineof C£200 and was disqualified from holding or obtaining a driving licence for eighteen months. 10 The appellant has appealed against both conviction and sentence. The fatal accident in question occurred because another car, driven by a co-accused of the appellant at the trial, came out suddenly onto the avenue from a side-road, Achaeon street, 15 and practically blocked completely the lane of the avenue along whichthecar oftheappellant wastravelling,while,at thattime, another vehicle, a taxi, wascoming from the opposite direction in the other lane of the avenue. Onthetotalityofthematerialbefore us,includingtheevidence 20 givenby thedriver ofthe taxi,whowasa witnessfor theprosecutionatthetrial andwhomthetrial Court treated asacredible witness, it seems to usthat the appellant, having found himself suddenly and unexpectedlyin a fateful dilemma, started manoeuvring his car, in the agony of the moment, in order to avoid 25 colliding with either of the aforementioned two vehicles; he, eventually, succeeded in this effort, but his car collided with a tree further down the avenue, after it had skidded along the road for a distance of about one hundred andfiftyfeet, and as a result his co-passenger was fatally injured. 30 We agree with counsel for the appellant, with whom, very fairly, counsel for the respondents has, also, agreed, that this isnot a casein whichit wassafe to convict the appellant of the offence of causing death contrary to section 210and, therefore, the conviction of the appellant, in this respect, is set aside. 35 We would like, at this stage, to observe that the trial Judge has, in commenting on the failure of the appellant to giveevidence in his own defence, unfortunately exceeded somewhat thebythelawprescribed limitsinthisconnection, byscathingly 203 c TriantafylUdes P. Themistocleoos v. Police
(1981)stating that the fact that the appellant by electing to make an unsworn statementfrom thedockshowedthat hewasnottelUng the truth and intended "to take.refuge in the dock" in order not to expose himself to "the fire of cross-examination". It is clear that the appellant was fully entitled in law to choose 5 to make an unsworn statement from the dock and the adoption of such a course by him could not be treated by the trialJudge, particularly in the circumstances of this case, in a manner so adverse for the appellant. We would, indeed, be prepared to set aside the conviction of the appellant for this reason, too. 10 We have been invited by counsel for the respondents to exercise our relevant powers, under section 145(l)(
- c)of the Criminal Procedure Law, Cap. 155,and toconvict the appellant of careless driving. The main elements on which counsel for the respondents has based this submission of his are the fact 15 that the aforementioned prosecution witness stated that the appellant was driving at a speed of over 30 m.p.h.. that the length of skid marks left .by the car of the appellant indicate that the speed atwhichhiscarwastravellingbefore theaccident was much more than 30m.p.h. and that this inference can find 20 support, too, in the real evidence as regards the damage which was caused to the car of the appellant, which indicates that it collided with the tree with quite some force. The estimate of the speed of the car of the appellant at more than 30m.p.h., bythe s?idprosecution witness,whowasdriving 25 from the opposite direction at night-time, has to be regarded as toing unsafe in the circumstances, andit israther significant, too, that this witness merely said that the appellant was driving at more than 30 m.p.h., but he did not say at approximately what greater than 30m.p.h. speed the car of the appellant was 30 driving. Wemight observe, too, at this stage,that thereisnoevidence on record as regards whether actually the place where the accident occurred is within a speed limit area and what was the particular speed limit. As the length of the skid marks of the car of the appellant and the force ofitscollision withthe tree do not appear, on the basis of the material which is before us in this appeal, to be clearly connected with the speed of the appellant's car before hefound himself intheagony oftryingto avoid a collision with 40 204 35 2 C.L.R. Themistocleous v. Police TriantafylUdes P. theothertwovehiclesandmaybeattributabletohismanoeuvres to avert such a collision, we are not prepared to hold, in this criminal case,that the appellant should be found guilty,beyond reasonable doubt, of the offence of careless driving: We, 5 therefore, do not intend toexercise for this purpose our powers under section 145(l)(
- c)of Cap. 155. This appeal is, therefore, allowed accordingly. Appeal allowed. 205