Mc Millan Hazel v Licensing Authority

SAINT KITTS AND NEVIS IN THE COURT OF APPEAL MAGISTERIAL CRIMINAL APPEAL NO. 1 OF 1993 BETWEEN: MC MILLAN HAZEL APPELLANT and LICENSING AUTHORITY RESPONDENT Before: The Rt. Hon. Sir Vincent Floissac – Chief Justice The Honourable Hr. Justice C.M.O. Byron – Justice of Appeal The Honourable Dr. N.J.O. Liverpool – Justice of Appeal Appearances: Mr. Vernon Viera, with him Mr. Lindsay Grant for the Appellant Mr. Malcolm Holdip, D.P.P. for Respondent 1993: March 22. JUDGMENT This conviction arose out of a collision between the appellant who was reversing his motor car to leave the parking at the Baker and Kelly Building at George Street in Basseterre, St. Kitts and the virtual complainant who was driving his motor car to enter the parking lot from the said George Street.On 18th November, 1992 the learned Magistrate District “A” convicted the appellant for driving without due care and attention contrary to Section 53 of the Vehicles and Road Traffic Act Cap. 270. Three versions of the facts were given. One by the virtual complainant, another by a passenger in the car both of whom were witnesses for the prosecution. The third version was given by the appellant himself. The guilt of Lhe a ell nt ir this case has crrri Ll upon the prosecution es t£ t l 1 R h l nr that he had reversed his car from its position in the parking lot without ensuring that it was safe to do so. There was evidence from the passenger in the virtual complainant’s car which suggested that it was the virtual complainant who was in breach of her duties of care by entering the parking lot while the appellant was already reversing. This contradfctPrl lhP evidence of the virtual complainant who stated that it was while she was entering the parking lot that the appellant commenced to reverse. The learned Magistrate in bis reasons for the decision after commenting on certain aspects of the evidence stated:­ “Consequent upon the foregoing the Court believed the evidence adduced by the Prosecution and did not believe the evidence given by the Defendant/Appellart”, The learned Magistrate having rejected the appellrrt’s evidence as teing untrue could not have relied on it in the parking lot whilE: tle appellant was already reversing, he did ct go on tn express y specific findings of fact on the cruci.11 ‘ss1;E: of Lhis case on which the guilt of the appells t tu ned.any way. Having believed the “evidence adduced by the Prosecution” including as it did the evidence that suggested that the virtual complainant’s car entered In effect the Magistrate failed to resclve the coPflict b1otween the testiir,ony of the virtual complainant and the other witness for the prosecution as a result of which e are unable to deter ine the fact& o hich be basci his decision. Bearing in mind that this is a criminal case where the burden of proof to the standard of certainty is on the prosecution and that the evidence adduced by the prosecution, which the Magistrate stated he believed, was open to a finding that was favourable to the appellant, we conclude that the conviction is unsafe and unsatisfactory and allow this appeal and set aside the conviction and sentence . C.M.D BYRON Justice of Appeal SIR VINCENT FLOISSAC, Chief Justice NJO LIVERPOOL < p style=”text-align: right;”>Justice of Appeal