Supreme Court
Appeal No. 5 of 1980
30th March, 1981
Barrington-Jones, J.

D. Barrow, Esq. for the Appellant
G. Quallo, Esq. for the Respondent

Motor Vehicles and Road Traffic Ordinance - Dangerous Driving - Elements of Charge - Evidence necessary to show Dangerous Driving.

J U D G M E N T

This is an appeal against the Appellant's conviction by one of the Magistrates in Belize City of Dangerous Driving contrary to Section 75(1) of the Motor Vehicles and Road Traffic Ordinance (Chapter 62) on the 2nd July, 1980.

Mr. Barrow indicated that he was abandoning ground (1) of the Notice of Appeal and proceeded to argue the appeal on the following grounds:-

After examining the testimony of the Complainant and Sgt. Rene, Mr. Barrow was at pains to point out that the Appellant's evidence was not challenged by cross-examination and he submitted therefore that it was improper for the learned Magistrate to have preferred the evidence of the prosecution witnesses when the Appellant's evidence was not discredited in any way. He said further that he was forced to the conclusion that the Magistrate decided that he would accept the prosecution's version, without addressing his mind to the fact that there was no basis to reject the version given by the Appellant. It was Mr. Barrow's contention that the Complainant had failed to let the Appellant pass and that the latter was indignant and took the view that the accident was caused by the callous driving of the Complainant.

Finally, Mr. Barrow submitted that fault so as to constitute dangerous driving must be found in the manner of the Appellant's driving and said that this had not been shown.

Mr. Quallo in reply said that notwithstanding the Magistrate's reasons the Court could have reached the same decision, and pointed out that the Appellant's evidence coincided with the prosecution's evidence and thus there was no need for the prosecution to cross-examine the Appellant's evidence in the Court below. He further submitted that the prosecution did not have to prove the actual presence of pedestrians at the scene and said that it was sufficient that they might have been there. He said that the prudent driver would not overtake on the swing bridge which he described as a risky endeavour. It was his case that the Appellant had been convicted on good grounds and had been leniently dealt with.

Now Section 75(1) provides that -

And it is relevant to keep in mind at least two of the Rules of the Road: -

"113-2 (a) When overtaking other vehicles he shall keep to the left or off side of such other vehicle.

(c) He shall not drive so as to overtake other traffic unless he has a clear and unobstructed view of the road ahead and he shall not overtake such other traffic unless he sees that the road ahead is clear for a sufficient distance to enable him to overtake and get back to his proper side before meeting any traffic coming from the opposite direction."

and

"114. The burden of ascertaining the road is clear in every direction shall rest with the driver of a motor vehicle which alters its speed or direction and the driver of such vehicle shall give way to other vehicles."

To my mind the learned Magistrate after properly evaluating the evidence of the prosecution witnesses came to the conclusion that the prosecution had proved the offence against the Appellant beyond reasonable doubt. I see nothing improper in the fact that the Appellant's evidence was not cross-examined in the Court below, and accept that his evidence was thus treated as an acceptance of its truth - R v Hart (1932) 23 Cr App R. 202.

I further can find no merit in Mr. Barrow's contention that the accident was caused by the callous driving of the Complainant. It seems to me that the Appellant was simply impatient at the slow driving of the Complainant but that can never justify him in embarking on the dangerous manouevre of overtaking the Complainant's vehicle on the swing bridge.

The learned Magistrate in my view correctly set out the law regarding fault, and he was quite right to say -

"In order to justify a conviction there must not only have been a situation which viewed objectively was dangerous but also some fault on the part of the driver causing that situation and fault involves a failure, a falling below the standard of care or skill of a competent and experienced driver."

and later -

"To my mind this was a situation which viewed objectively was dangerous."

Here I take particular note of the relevant portion of what the Appellant said before the learned Magistrate:

It is thus clear that the Appellant readily admitted in the Court below that he attempted to overtake the Respondent's vehicle on the swing bridge itself - a manoeuvre which must always be fraught with danger if only because vehicles turning on to the bridge from North Front Street may appear suddenly at the left hand aspect of the mouth of the bridge on the North Front Street side. This factor is apparent to anyone who has had any experience in driving over this narrow bridge, and thus judicial notice can be taken of it.

To my mind there was more than sufficient evidence to show beyond all reasonable doubt that the Appellant drove his vehicle on a road recklessly in a manner which was dangerous to the public having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be on the road.

I can find no evidence wrongfully received or inadmissible in the lower Court in this case, nor can I see any grounds for saying that the decision of the Magistrate was unreasonable and which could not be supported having regard to the evidence. There is no merit in ground (c) that the decision was based on a wrong principle.

I find that the Appellant was properly convicted on sound principles and that there is no merit in the appeal. The appeal is accordingly dismissed.

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