clr/1981/1981_2_245.pdf

(1981)witness heard a car blowing its horn and saw it swerving to the right before it collided with the cyclist. Theappellant wasprosecuted and found guilty of the offences of causing death by want of precaution, contrary to section 210 of the Criminal Code, Cap. 154 and of the offence of 5 speeding; and in respect of the offence under section 210 he was sentenced to a fine of C£200 and was disqualified from driving for a period of six months. No sentence was passed on him for the offence of speeding. The trial Judge found that theappellant wasguilty oftheoffence under section 210because, ]0 just before the collision, he was travelling at about 47 m.p.h., and in the opinion of the Judge the great speed at which the appellant wasdriving hiscar prevented himfrom taking effective action in order to avoid knocking down the cyclist. In the circumstances, the trial Judge found that there had been esta- 15 blished the want of precaution which was required to prove that the appellant, in causing the death of the cyclist, has committed the offence provided for by the aforesaid section 210. Upon appealagainst conviction and sentence: Held,

(1)that in the light of the high degree of negligence, 20 which is required for the commission of the offence under section 210, above (see, inter alia,McLeodv. 77i<? Police

(1973)2 C.L.R. 63), and in the particular circumstances of this case, where the appellant was suddenly faced with a situation that the cyclist had entered the avenue without stopping at the 25 junction with the side-road and was proceeding ahead of him along and across theavenue, thefindingof the trial Court that the appellant was guilty of the aforementioned high degree of negligence was not warranted, even if he had been driving at a speed of 47 m.p.h. just before the accident; accordingly 30 the conviction under section 210 of Cap. 154 and the sentence in relation to such conviction should be set aside.

(2)That even if the cyclist was guilty of contributory negligence, this does not absolve the appellant of all blame for the fatal collision; that this Court is in agreement with the trial 35 Judge that the speed at which he was proceeding at the time disabled him from taking prompt avoiding action in order to avert colliding with the cyclist; that, therefore, the appellant was driving in a manner which rendered him guilty of careless driving, contrary to section 8 of Law 86/72 and, in the exercise 40 246 2 C.L.R. Sljlianou v. Police of its relevant powers, under section 145(l)(c) of the Criminal Procedure Law, Cap. 155, this Court has decided to convict the appellant of the offence under the said section 8. 5 10 15 20

(3)That taking into account that the appellant has remained disqualified from driving a car for a period of, approximately, three months,that isfrom-June 11, 1981,whenhewasconvicted and sentenced, until today, this Court has decided to pass upon himasentenceofonlyC£100fineandnottocouplesuchsentence with an order of disqualification.

(4)That as regards the commission by the appellant of the offence of speeding, the evidence on record establishing his guilt in this connection fully warranted his conviction of such offence; that this Court is in agreement with the trial Judge that, in the circumstances, as the offence of speeding was committed in the context of the events which have led to the traffic accident in question, there should not be passed any sentence on the appellant in respect of that offence. Appealpartly allowed. Cases referred to: McLeod v. The Police

(1973)2 C.L.R. 63. Appeal against conviction and sentence. Appeal against conviction and sentence by Stelios Savva Stylianouwhowasconvictedonthe 11thJune, 1981atthe District Court of Nicosia (Criminal Case No. 18698/80)on one count 25 of the offence of causing death by want of precaution, contrary to section 210 of the Criminal Code Cap. 154and on one count of the offence of speeding contrary to section 6 of the Motor Vehicles and Road Traffic Law, 1972 (Law No. 86/72) and was sentenced by Nikitas, S.D.J, to pay a fine of C£200.—and was 30 disqualified from holding or obtaining a driving licence for a period of six months on the first count and no sentence was passed upon him on the second count. A. Dikigoropoulos, for the appellant. A, Frangos,Senior Counsel of the Republic, for the respon35 dents. Cur. adv. vult. TRIANTAFYLLIDESP. read the following judgment of the Court. The appellant was convicted by the District Court of Nicosia 247 Triantafyllides P. Stylianou v. Police

(1981)of the offences of causing death bywant ofprecaution, contrary to section 210 of the Criminal Code, Cap. 154,and of speeding, contrary to section 6 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72). In respect of the offence under section 210 he was sentenced to pay a fine of C£200 and was disqualified from holding or obtaining a driving licence for a period of six months and in respect of the offence of speeding it was not deemed necessary by the trial Judge to pass upon him a separate sentence. 5 The appellant has appealed against both his conviction and 10 the above sentence. Asit appears from the material before us, on March 7, 1980, at about 6.30 a.m., the appellant was driving his car along Archangelos avenu<\ in the Parissinos area in the outskirts of Nicosia, and was proceeding towards Nicosia. 15 At that time a cyclist was proceeding on a bicycle along a side-road towards the said avenue. After the cyclist had entered the avenue and started cycling along it he came into collision with the car which was b:ing driven by the appellant and which was coming from behind 20 him, with the result that the cyclist was fatally injured. According to the only eye-witness who was present there and saw the accident, and who was called as a witness for the prosecution, the cyclist'entered the avenue without stopping at all at its junction with the side-road and without looking 25 eighcr to his left or to hisright,and tried to proceed along the avenue, and then across it, in order to reach a petrol station on the opposite side of the avenue. At that time the said eyewitness heard a car blowing its horn and saw it swerving to the right before it collided with the cyclist. 30 Counsel for the appellant has submitted that as the cyclist, after he was wounded, was removed to the Nicosia General Hospital, where he died about a week later, and as nobody identified him at the scene oftheaccident, therewasnoevidence to connect the late Sofocles Flouros, who died at the Nicosia 35 General Hospital, on March 14, 1980,with the cyclist who was knocked downbytheappellant inthetraffic accidentinquestion. 248 2 C.L.R. Stylianou v. Police Triantafyllides P. We have perused all the evidence which is relevant to the issue of the identification of the victim of the said accident and weagreewith the trialJudgethat the identity of suchvictim was established beyond reasonable doubt, especially as the 5 daughter of Flouros identified the bicycle of her father from photographs which the police took of the bicycle which was found knocked down at the place where the accident occurred. The trial Judge found that the appellant was guilty of the offence under section 210 because the appellant, just before 10 thecollision,wastravellingatabout47m.p.h.,andintheopinion of the Judge the great speedatwhich the appellant was driving his car prevented him from taking effective action in order to avoid knocking down the cyclist; and, in the circumstances, the trialJudge found that there had been established the want 15 of precaution which was required to prove that the appellant, in causing the death of the cyclist, had committed the offence provided for by the aforesaid section 210. In the light of the high degree of negligence, whichisrequired for the commission of the offence under section 210, above 20 (see, inter alia, McLeod v. The Police,

(1973)2 C.L.R. 63), andin theparticular circumstances ofthiscase,wheretheappellant was suddenly facjd with a situation that the cyclist had entered the avenue without stopping at the junction with the side-road and was proceeding ahead of him along and across 25 the avenue,wedonot thinkthat therewaswarranted the finding of the trial Court that the appellant was guilty of the aforementioned highdegreeofnegligence,evenifhehadbeendriving at a speed of 47 m.p.h. just before the accident. We have, therefore, decided to set aside the conviction of the 30 appellant under section 210of Cap. 154,as well as the sentence passed upon him in relation to such a conviction. On the other hand, onthebasis of thecircumstances inwhich the appellant knocked down the cyclist, and to which we need nol r.^fcr again, we find that even if the cyclist was guilty of 35 contributory negligence, this does not absolve the appellant of all blame for the fatal collision; and we do agree with the trial Judge that the speed at which he was proceeding at ths time disabled him from taking prompt avoiding action in order to avert colliding with the cyclist. 249 Triantafyllides P. Stylianou v. Police

(1981)We have decided, therefore, that the appellant was driving in a manner which rendered him guilty of careless driving, contrary to section 8 of Law 86/72 and, in the exercise of our relevant powers, under section 145(l)(c) of the Criminal Procedure Law, Cap. 155,wehave decided to convict theappel- 5 lant of the offence under the said section 8. We have taken into account that the appellant has remained disqualified from driving a car for a period of, approximately, three months,that isfrom June 11,1981,whenhewasconvicted and sentenced, until today, and we decided to pass upon him 10 a sentence of only C£100fineand not to couple such sentence with an order of disqualification. As regards the commission by the appellant of the offence of speeding, the evidence on record establishing his guilt in this connection fully warranted his conviction of such offence. 15 We agree with the trial Judge that, in the circumstances, as the offence of speeding was committed in th context of the events which have led to the traffic accident in question, there should not be passed any sentence on the appellant in respect of that offence. In the result this appeal ispartly allowed accordingly. Appeal partly allowed. 250 20