Supreme Court
Inferior Appeal No. 5 of 1978
30th May, 1980
Barington-Jones, J.

Mr. J.C. Gray for the Appellant
Mr. H. Elrington for the Respondent

Inferior Court Appeal against conviction and sentence - Resident Magistrate convicting Defendant but failing to make a precise finding whether he believed the prosecution witness - Conviction set aside as unsafe and trial de novo ordered.

J U D G M E N T

The Appellant was convicted of Drunken Driving contrary to section 74 of the Road and traffic Ordinance on the 10th February, 1978 by the Resident Magistrate for the Corozal Judicial District. The Appellant now appeals against conviction and sentence.

Mr. Gray submitted that the basis of the appeal in this case was that the facts were such that the lower court ought not to have convicted the Appellant . Mr. Gray took issue with the penultimate paragraph of the learned Magistrate's Reasons for Decision where he said:-

"These contradictions in their statements and the prosecution's witnesses statements that the defendant was found behind the driver's wheel when they approached the truck lead to the inference that the defendant was driving or was in charge of the truck at the material time."

Mr. Gray felt that for the learned Magistrate to draw such inferences from the facts made the conviction unsatisfactory and he said that such an inference might equally be consistent with innocence.

I must say that I find it difficult to understand why the learned Resident Magistrate felt constrained to find that there was only an inference that the Appellant was driving or was in charge of the truck at the material time; for if one looks at the evidence of the prosecution witnesses there is to be found direct evidence of the Accused driving the vehicle in question. Cpl. Rene said that he saw an unlit truck traveling ahead of him and that upon reaching abreast of it, the truck stopped and "I saw the defendant behind the driving wheel, 1eaning on the steering". P.C. Clarke also gave similar evidence that on drawing up beside the vehicle he noticed that the driver (whom he identified as the Appellant) appeared to be drunk.

It is appropriate at this point to say that the appeal was conducted on the basis that it was not the Appellant who was driving the truck at the material time, the question of his drunkenness being admitted.

The Appellant's evidence and that of his two witnesses (i.e. those who were travelling with him) was that the truck was being driven by Victor the Appellant's son. However there are noticeable discrepancies in that evidence, more particularly concerning their various positions in the cab of the truck.

It is to be noted that the learned Resident Magistrate warned himself that the prosecution were required to prove that the Appellant was at the material time driving or attempting or in charge of a motor vehicle; and he formally found as a fact that the Appellant was driving at the material time; but he was incorrect to say that the prosecution witnesses were not able to identify the driver as the Appellant for both Cpl. Rene and P.C. Clarke positively identified the Appellant as the driver of the vehicle in the respective evidence before the court below.

The learned Resident Magistrate makes no precise finding as to whether he believed the prosecution witnesses or not, and appears to have misdirected himself in his Reasons for Decision on the question of the identification of the Appellant as the driver of the vehicle at the material time. This leads me to view that the conviction is unsafe and unsatisfactory and accordingly the appeal must be allowed and the conviction quashed and the sentence set aside.

I have given careful thought to the question of a re-trial more particularly since this trial took place as long ago as the 10th February, 1978; but have come to the conclusion that in the interests of justice there should be a re-trial in this case, and I accordingly order that there should be a trial de novo before another magistrate.