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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1973) 2 CLR 99
1973 May 31
[HADJIANASTASSIOU, A. LOIZOU, MALACHTOS, JJ.].
DAVID MOON,
Appellant,
v.
THE POLICE,
Respondents.
(Criminal Appeal No. 3433).
Evidence in criminal cases-Two conflicting versions regarding a road accident-Desirable that trial Judges in deciding to believe the version of one party and reject that of the other should normally give reasons for doing so-Cf. further infra.
Criminal Procedure-Appeal-Findings of fact made by trial Courts-Approach of the Appellate Court to such findings-Principles applicable-The Court of Appeal ought not to take the responsibility of reversing the findings of fact made by trial Courts merely on the result of their own comparisons and criticism of the witnesses, and of their own view of the probabilities of the case-Cf. supra; cf. also infra.
Court of Appeal-Approach of findings of fact made by trial Courts-Credibility of witnesses-The Court of Appeal has the power to set aside such findings of fact where the trial Court has failed to take into account circumstances material to an estimate of the evidence, or where the trial Court has believed testimony inconsistent with itself, or with undisputable fact-And since the enactment of the Courts of Justice Law, 1960, under section 25(3) this Court is not bound by the determination on questions of fact made by the trial Courts and has power 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 set forth 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.
The facts are fully set out in the judgment of the Court dismissing this appeal against conviction.
Cases referred to:
Economides v. Zodhiatis, 1961 C.L.R. 306, at pp. 307-308;
Haloumias v. The Police (1970) 2 C.L.R. 154, at pp. 160-161.
Appeal against conviction.
Appeal against conviction by David Moon who was convicted on the 13th March, 1973 at the District Court of Limassol (Criminal Case No. 11576/72) on two counts of the offences of driving without due care and attention contrary to sections 6 and 13 of the Motor Vehicles and Road Traffic Law, Cap. 332 and of failing to obey traffic lights contrary to regulations 182(h) and 185 of the Limassol Municipal Bye-Laws, 1953-1960 and section 126 of the Municipal Corporations Law, Cap. 240, and was, sentenced by Kronides, D.J. to pay £15.- fine with £6.500 mils costs on count 1 and was further bound over in the sum of £40.- for 1 year to come up for judgment on count 2.
S. McBride, for the Appellant.
N. Charalambous, Counsel of the Republic, for the Respondents.
The judgment of the Court was delivered by:-
HADJIANASTASSIOU, J.: On March 13, 1973, the accused was convicted at the District Court of Limassol on two counts, of driving a motor vehicle without due care and attention contrary to ss. 6 and 13 of the Motor Vehicles and Road Traffic Law, Cap 332; and of driving the said vehicle and failing to obey the traffic lights, contrary to Regulations 182(h) and 185 of the Limassol Municipal Bye 1953-1960, s. 126 of the Municipal Corporations Law, Cap. 240, and P.L 326/65. He was sentenced to pay a fine of £15 on count 1 with £6.500 mils costs; and was bound over in the sum of £40 to come up for judgment if and when called upon within one year on count 2.
The Appellant appealed against conviction and the points of substance raised by the notice of appeal are-
(1) that the findings of the learned trial Judge were not warranted by the evidence as a whole;
(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 142 along 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, DB 211, coming from his left. As a result of that accident, both vehicles 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.C.505 Nicos Gavriel, took measurements and prepared a sketch. The point of impact marked "X" on that sketch was agreed by both drivers. The width of the road from the side of Ayios Andreas is 14 ft. to the west and 16 ft towards the east of the point of impact The distance from the pole of the traffic lights from the side of Ayios Andreas up to the point of impact is 36 ft 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 the complainant was found to be damaged at its front part.
On the same date, the accused gave an open statement to the same police officer to the effect that on the date of the 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 lights were green on his side, and without stopping he continued and started entering the cross-road. As soon as 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 DB 211 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 lights 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 cross-examination 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 lights 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. be 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 evidence before it, it was open to the trial Court to make such findings, these can only be disturbed on appeal, if this Court is persuaded that they are unsatisfactory to the extent of requiring intervention in order to do justice in the particular case according to law with this in mind, the learned, trial Judge, in this case, after evaluating the evidence before him, made a finding of fact that the complainant stopped at the traffic, 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 he believed the evidence of the complainant that he drove off when the lights changed into green, and furthermore there was supporting evidence on this issue by an independent 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 lights 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, inferences that because the lights were green from the side of the complainant, the accused must have driven against the red lights from his own side; and that he failed to consider adequately 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 the contention of counsel, because on the totality of the evidence before the learned 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 the traffic lights. It is true, of course, that the learned Judge did not mention anything about the time element regarding the changing of the lights, but in our judgment there is nothing on record to support the complaint of counsel that the trial Judge did not weigh properly the evidence of the accused. We would, therefore, dismiss this contention of 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 the version of one party and reject that of the other should normally give reasons for doing so. The case always referred to on this issue is Andreas Economides v. Ioannis L. Zodhiatis, 1961 C.L.R. 306 where Josephides, J. said so and the other three Judges concurred. Josephides, J. said there, at pp. 307 and 308 "The main complaint of the Appellant is that the trial Judge said baldly that he believed the laintiff and his witnesses and discarded the evidence of the Defendant and his witness without giving any reasons for doing so. In support of his argument, Mr. Antoniou for the Appellant has pointed out one to apparent contradictions in the evidence of the laintiff and his witnesses.
Undoubtedly a Court of Appeal has the power to set aside the findings of fact of a trial Court where the trial Judge has failed to take into account circumstances material to an estimate of the evidence, or where he has believed testimony which is inconsistent with itself, or with indisputable fact And since the enactment of the Courts of Justice Law, 1960, under section 25(3) this Court is not bound by any determinations on questions of fact made by the trial Court and has power to re-hear any witness already heard by the trial Court, if the circumstances of the case justify such a course 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 the revising the findings of fact by the trial Court merely on the result of their own comparisons and criticism of the witness, and of their own view of the probabilities of the case.
Having read the evidence adduced this case we are satisfied that there was ample evidence on which the trial Court could make its finding preferring the version of the Plaintiff and his witnesses to that of the Defendant and his witness. We are not, therefore, prepared to reject the finding of the trial Judge on the facts deposed to by the witnesses, especially when the finding, as in this case, is based on the credibility of witnesses. For these reasons the appeal fails". See also Haloumias v. The Police (1970) 2 C.L.R. 154, at pp 160-161.
Having read the whole of the evidence adduced in tins case, we are satisfied that there was ample material on which the trial Judge could make his finding preferring the version of the complainant and his witnesses to that of the Appellant, and at the same time the drawing the inference that once the traffic lights were functioning properly, the accused must have driven contrary to the red lights from his side. We are not, therefore, prepared to reject the finding of the trial Judge on the facts 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 we take 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 give reasons 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.
Appeal dismissed.