Inferior Court
Appeal No. 7 of 1980
30th March 1981
Barrington-Jones, J.

Appearing for the Appellant: D. Barrow Esq.
Appearing for the Respondent: G. Quallo Esq.

Criminal Law - Appeal from Inferior Court against conviction of careless driving contrary to section 76 of the Motor Vehicles and Road Traffic Ordinance - Ground of appeal the decision was unreasonable or could not be supported having regard to the evidence.

J U D G M E N T

The Appellant was convicted of Careless Driving contrary to section 76 of the Motor Vehicles and Road Traffic Ordinance by one of the Magistrates n Belize City on the 20th June 1980. The notice of appeal dated the 8th September 1980 set out the grounds of appeal as follows: -

(1) The decision was erroneous in point of law;

(2) The decision was unreasonable or could not be supported having regard to the evidence; and

(3) The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.

Mr. Barrow stated that it was common ground that both drivers saw each other about 100 yards away. He said that the Appellant saw a cyclist ahead of him proceeding in the same direction when he was about 25 feet the cyclist and that he swerved to avoid the cyclist and that his motor vehicle ended up across the road when it was run into by the oncoming vehicle. Mr. Barrow submitted that the entire case turned on the Appellant having seen the cyclist in sufficient time so as not to have to take emergency action. He said that there was no suggestion that the Appellant ought to have seen the cyclist from a greater distance, and pointed out that there was no evidence to show whether the road at that point was straight or curved. Mr. Barrow pointed out that the cyclist said that he had a red reflector on the back fender but stated that other prosecution witnesses did not see a reflector. Mr. Barrow suggested that it was a major failure of the prosecution's case that there was no other evidence of the existence of the cyclist's reflector, and submitted that the Magistrate ought to have given careful thought to this. He further pointed out that the Appellant had said in his testimony that the cycle did not have a reflector. It was admitted, however, that the Magistrate had found as a fact that the cycle did have a reflector at the time of the accident. Mr. Barrow suggested that the Magistrate's decision was based on a balance of probabilities and not at the standard of beyond reasonable doubt. Those were submissions on ground (1).

On ground (2) Mr. Barrow drew this Court's attention to a passage in the Magistrate's reasons, which reads:

"However, the court felt that in all the circumstances of the case including the fact that it was not raining nor was the defendant blinded by the light of the oncoming traffic or other impediment to vision - in fact the defendant said that he saw oncoming lights 100 yards away and also the man on the bicycle - that his swerving into the path of Hecker's vehicle to avoid hitting the cyclist on the right or else he would have killed him, was a result of careless or inattentive driving and which under the circumstances fell below the standard of care and skill of the reasonable and prudent driver."

and submitted that this passage could be interpreted as saying that trying to avoid hitting a cyclist was tantamount to careless driving. He said that the Magistrate appeared to be saying that any action taken as a result of suddenly seeing the cyclist when almost upon him amounts to driving without due care and attention. Mr. Barrow went on to submit that the manouevre executed by the Appellant was a cautious and deliberate one dictated by the Appellant's subjective judgment of how best to avoid killing the cyclist, and that he ought to be commended rather than condemned for doing it.

Finally, Mr. Barrow said that ground (3) can be supported by the submissions made in respect of ground (2).

Mr. Quallo in reply said that it should not be overlooked that the factual position was that the Appellant was driving on the highway when he swerved into the path of the oncoming vehicle, and in so doing collided with the cyclist. He urged that the Magistrate in considering the circumstances had applied proper tests and in so doing had rendered a proper verdict. Mr. Quallo denied that the common ground as stated by Mr. Barrow, and pointed out that the Complainant had not said that he saw the Appellant's vehicle 100 yards ahead.

Mr. Quallo posed the question: Why did the Appellant find himself in the position where he swerved into the path of the oncoming vehicle? He took the view that it was indeed fortunate that the Appellant did not kill the cyclist. He pointed out that the cyclist was on the right-hand side of the road and that there was no suggestion that he was in the middle of the road. It was his suggestion that the Appellant was driving fast although not in excess of the speed limit; and that the Appellant just did not see the cyclist until he was upon him and that was why he collided with him. Mr. Quallo pointed out that the Complainant had said in evidence that he had seen the cyclist but the Appellant did not see the cyclist until very late, and thus he had to swerve whilst driving fast; and it was his contention that the Appellant was thus driving without due care and attention. Mr. Quallo submitted that the Magistrate had been near impeccable in his approach to the case and in the arrival at his verdict.

Firstly, dealing with the question of the reflector on the cycle, I note that the Complainant told the Court below that he could not see if the cycle had a rear reflector. But Ronald Cole the cyclist gave evidence before the Court below and he said, inter alia, in evidence-in-chief: "There were no lights to the rear of the bicycle only a red reflector on the fenders." In cross-examination this witness said: "The bicycle had a reflector at the back. The reflector was in the rubber at the back of the bicycle.…". The investigating officer P. C. Perez also gave evidence and in cross-examination he confirmed that the cycle had back fenders but said that he never checked if it had a reflector to the rear and added somewhat surprisingly: "I never looked closely at the bicycle." Yet in answer to the Magistrate this witness said: "Mr. Michael was on the scene when I was inspecting the bicycle." It was, of course, the Appellant in his evidence who averred that the cyclist had no reflector.

The Magistrate in his reasons when dealing with this particular point had this to say:

"In this case the court found as a fact that the bicycle at the time of the accident as stated by prosecution witness Cole was equipped with a reflector on its rear fender..."

To my mind this was a proper finding by the learned Magistrate for presumably he believed the evidence of Cole beyond all reasonable doubt. It was a perfectly reasonable finding in the circumstances - the Complainant readily admitting that he could not see if the bicycle had a rear reflector; P.C. Perez admitting that he had not checked whether the bicycle had a rear reflector; and only the Appellant averring that in fact the cycle did not have a rear reflector.

Regarding the passage in the Magistrate's reasons about which Mr. Barrow has complained, I would agree that the phrasing of this passage could be improved but I do not think that it can possibly be interpreted in the way that Mr. Barrow has sought to suggest to this Court.

It is my considered view that on the evidence before him the Magistrate was perfectly entitled to arrive at the verdict that he did, based as it was on more than sufficient evidence of the Appellant driving without due care and attention or without reasonable consideration for other persons using the road.

It follows therefore that the appeal must be dismissed.

----------OO----------