(1987)1987June8 [A LOIZOU LORIS AND STYLIANiDES JJ 1 GEORGHIOS KYPROUPORTOKALLIDES, Appellant, ν THEPOLICE, Respondents (CriminalAppealNo 4789) Careless dnving — The Motor Vehicles and Road TrafficLaw 86/72 section 8— All that is required for conviction is negligence sufficient to establish civil liability — Pedestnan crossingroad diagomcally from the nght hand sidein appellant's direction knocked down, after covenng more that 13'feet, at a point two feet away from the left pavement in appellants direction — Appellant was travelling at35mph — Left 55 feetlong brake marks— In the circumstancesnghtly convicted for the aforesaidoffence 5 Appeal — Credibility of witnesses— Findings of fact — Conclusions drawn therefrom — Principles governing interference by Court of Appeal On 16 985, whilst the appellant was dnving his car along a street in 1 0 Strovolos, he knocked down asix year oldgirl, whowasin theprocessof crossing, in a running pace, thesaid street in a diagonal manner, having emerged from in between twoparked cars on thenght of the road from appellant's direction The width ofthe streetwas 21 feet Thepoint ofimpact was about 2 feet 1 5 away from the left pavement inthedirection of the appellant The latter'i speed was 35 m ρh Hiscar left55 feet long brakemarks Thevisibility from the point of impact towards the direction theappellant was coming was about 300feet The girl was hitafter covenng more than 13 feet fromthe parked cars ^ The Court convicted the appellant on the yiuutid that hefailed to exercise aproper look outashe did not notice thegirlas.soonassheemergedfromin between thetwo parkedcars Giventhespeedofthe car thepedestnan could notcover 13 feetdunngthespaceoftimethecarcovered55' feetwith brakes on plus35' feetthinkingdistance 25 Held, dismissing the appeal (1} The conclusions drawn bythe tnal Judge from the pnmary facts cannot be faulted Had the appellant exercised a 86 2 C.L.R. PcrtoltdlHdes v. P o l i c e propei look oi't he would hai p e noticed the girl as soon as she first started crossing the road fAndreou ν ihc Police
(1972)2 C L.R 55 distinguished)
(2)In the light of the pnnciple that negligence sufficient to establish civil liability is all that \t required to support a conviction unders 8. of Law 86/72 Ο and the facts of tins case, the appellant was nghtly convicted Appeal dismissed. Cases referred m 10 Kynakouv KprMsa/itiSoni<1981) 1 C L R 5 5 1 . Andreouv The Police {1972) 2 C I. R 55; Chaialambotn. ν (he Police
(1982)2 C 1.R
- Ming ν Tne Polic !1987) 2 C
- R S3 Appeal againνt conviction. Appeal against convict".m by Georghios Kyprou Portokallides who was convicted on th-^"M)\\\September, 1986 at the District 15 Courtof Nicosia (CnminalCase No.3547/86) ononecountof the offence of careless dnving contrary to section 8 of the Motor Vehicles and Road Traffic Law. 1972 (Law No.86 of 1972) and was sentenced by Kallis. D.J.topay £40.-fine. A. Magos.for theappellant. 20 A.M. Angelides, Senior Counsel of the Republic, for the respondents. A. LOIZOUJ.: The mdgment of the Courtwillbe delivered by Loris, J. LORIS J.: On September 30, 1986, the appellant was found 25 guilty by theDistrictCourtof Nicosia (NicosiaCr.Case No. 3457/ 86) of careless driving (Count 1) contrary to the provisions of section 8 of the MotorVehicles and RoadTraffic Law, 1972, (Law No.86of 1972)andwas sentenced by Kallis,D.J. toafine of£
- The present appeal is directed against conviction only. 30 Thesalient facts of thiscase are briefly as follows: On 16.9.85at6.25 p.m.whilst theappellant was driving motor car under Regn. No.PC 110 along Yiannitson Street, Strovolos. knocked down and injured a pedestrian, a six year old girl, who was crossing theaforesaid street atthetime. 87 Loris J. Portokallides v. Police
(1987)The width of the street aforesaid atthe scene of the accidentis 21 feet and oneachsidethereof thereisapavementof 10ft wide; the car driven by the appellant left 55 feet long brake-marks and the pointof impact (which is marked Xon thesketch producedat the trial) was about 2 feet away from the left pavement in the 5 direction of appellant's car. To the right of the road, in the direction of appellant,therewere two cars parked (markedΒand C on the sketch) and there was a distance of 11 feet in between them. CarCwas 15feet away from theleft pavement andcar «B» 18 feet and 6 inches. The visibility from the point of impact \Q towards thedirectionappellant was coming was about 300 feet. There was daylight atthetime of theaccident,theweather was fine and thetarmacdry. The learned trial judge after hearing and evaluating the evidence adduced madethe following findings of fact: 15 The six year old childwas hitby thecardriven by theappellant at the time,whilst she was intheprocess of crossing, inarunning pace, Yiannitson Street(within theinhabited and built up area)in a diagonal manner,having emerged from inbetween the parked cars C and B, and when she was about 2 feet from the left 20 pavement in the direction appellant's car was driven, after covering at least a distance of more than 13 feet from the parked cars untilthepointofimpact. It was further the finding of the learned trial judge that «just before the accidentthe accused (appellant)had been driving ata 25 speed of 35 m.p.h and that upon noticing the pedestrian he applied brakes, having left brake-marks 55 feet longandswerved to theleft but with nosuccess....» The learned judge having listed his findings of fact as aforesaid proceeded to draw his conclusionsas follows: 30 «Having taken into consideration the distance covered by the girl,albeit inarunningpace,from theparked carsuntilthe point of impact, I have arrived at the conclusion that the accused has not noticed her immediately after she had emerged from in-between the two cars, but he must have 35 noticed her some time after she had emerged. This is so because the pedestrian could not cover the distance she did cover - at least morethan 13'— duringthespace of timethe car of the accused covered 55 with brakes on, plus 35* 88 2 C.L.R. 5 10 Portoltalltdes v. Police LorisJ. thinkingdistancegiventhatthecarwasdrivenataspeed of35 m.p.h. atthetime of theaccident. Inview of thisconlusion,1 hold that the failure of the accused to notice the pedestrian earlier than he did, given the 300' visibility, indicates that he was driving without a proper lookout and in a manner indicating total disregard of other road users. Had he exercised a proper lookout he would have most definitely noticed the pedestrian when she first started crossing, he would, thus,have been atagreater distance from herand the avoiding action which he took would have been successful. Therefore, accused acted negligently.» Learned counsel appearing for the appellant argued forcefully againstthefindingsofthetrialCourtattackingatthesametimethe conclusions drawnbythe Court from theprimary facts. 15 20 25 30 35 40 The principles upon which thisCourt decides appeals directed againstthecredibilityofwitnessesarewellsettledandweneednot embark on them in detail. As I had the opportunity to state in Kyriakouv.Korias&Sons
(1981)1C.L.R. 551 atp.553: «It must be shown that the trial judge was wrong in evaluating the evidence and the onus is on the appellant to persuade the Court that that is so. Matters relating to credibility of witnesses fall within the province of the trial Judge whohastheopportunity toseeandhearthewitnesses. Ifon the evidence before him itwasreasonably open tohim tomakethefindingstowhichhearrivedat,thenthisCourtwill not interfere unless the inferences drawn therefrom are not warranted bythe findings, whereupon thisCourtcan drawits own conclusions.» Havingconsidered thesubmission of counsel inthe lightof the judgmentofthetrialCourtandtherecordwearenotsatisfied that the above findings of the Court below and hisconclusions drawn therefrom can be faulted. Infact we would like to go further and saythatthe conclusionsdrawn bythe learnedtrialJudge from the primary facts as he found them, were the only inferences that could be drawn inview of the record before us.Itissignificant to note that the child was hit when only 2 feet away from the pavement on the left handside oftheroad inthe direction the car of theappellant wasdriven, after coveringadistance diagonically of definitely more than 13feet; given the 300 feet visibility at the scene of the accident the appellant definitely failed to exercise 89 Loris J. PortokalHdes v. Police
(1987)proper lookout and we are infull agreement with thelearnedtnal Judge thathad theappellant exercised aproperlookouthe would have most definitely noticedthegirlwhen she first started crossing and his avoiding action would have been successful The case of CostasAndreou ν The Police
(1972)2 C LR 55 5 cited by learned counsel for appellant mustbe distinguished from the appeal under consideration, in the first place in the said case the tnal Judge did not make findings of fact on crucial issues, furthermore as stated inthesaidjudgment theaccused inthatcase was only 57 feet away from thetwo children when they emerged 10 m.to the road, whilst in the appeal under consideration the appellant had a visibilityof 300 feet atthe scene of thisaccident Beanng in mind (ι) the particular facts of the appeal under consideration (n) thatnegligence sufficient toestablish civil liability isall thatisrequired tosupport aconviction unders 8 of Law 86/ 15 72 (Charalambous ν ThePolice
(1982)2 C LR 134 at ρ 143Peter Ming ν The Police(Cr App 4796 judgment delivered on 26 5 87, still unreported)*, we hold theviewthattheconvictionof the tnal Court cannotbe faulted In the result present appeal fails and is hereby dismissed 20 Appeal dismissed • Reported in
(1987)2CLH Μ 90