Hartin Alphonso v The Commissioner of Police

TERRITORY OF THE VIRGIN ISLANDS IN THE COURT OF APPEAL MAGISTERIAL CRIMINAL APPEAL NO. 2 OF 1992 BETWEEN: HARTIN ALPHONSO Appellant and THE COMMISSIONER OF POLICE Respondent Before: The Right Hon. Sir Vincent Floissac -Chief Justice The Hon. Justice Dennis Byron – Justice of Appeal The Hon. Justice Dr. Nicholas Liverpool – Justice of Appeal Appearances: Dr. Gonsalves for Appellant Mr. D. Baptiste for Respondent June 21 & 22 Byron ,J. A. This is an appeal against the decision of the Magistrate in which he convicted the appellant for driving without due care and atte11tion contrary to section 30 of the Road Traffic Act, No. 5 of 1988 of the Laws of the Virgin Islands and fined him $2.00. 00 It was a case whe1e the appellant was driving a red Montero jeep eastwards along the Treasure Isle Public Road on the 27th November, J991 at about 1:30 p.rn. Ahead of him and travelling in the same direction was a car preceeded by a bicycle ridden by Deodath Ramnath. A11 accident occurred when the appellant overtook the car and tried to overtake the bicycle. The Magistrate oncluded that tile appellant was not keeping a proper lookout and was overtaking when it was not safe to do so, and that he was speeding. 2 * ” The appeal was argued on the solitary ground that the decision was unreasonable or could not be supported having regard to the evidence. The prosecution relied on seven witnesses. There were two eye witnesses to the aceiden t, wj_ tnesses who arrived immediately afterwards, including Dr, Adamson who rendered first aid to the cyclist pending the arrival of the ambulance and the police, and the police investigators, .including P. C. Butcher who produced photographs he took at the scene. Raymond Fonseca test j f i eci that he was driving his veh.lc1 e behind the cyclist at about 10 m.p.h. When he was about 20 – 2S feet behind him the cyclist made a right turn and was crossing the road. counsel for the appellant argued that the cyclist created an emergency by tL1rning right across the road without first having signalled his intention to do so, or having rung his bell. Fonseca, however, said that he was not surprised when the cyclist made the right turn. At that time the appellant’s vehi.cle suddenly came alongside Fonseca’s car. Fonseca immediately stopped his car, saw the appellant apply brakes and slide into the cyclist and throw him on the right r;ide of the parking lot. He estimated the distance the cyclist was thrown at 8 – 10 feet. Roosevelt Smith testified that he was driving along the Pasea Estate Road when he saw the appellant’s vehicle travelling towards him at about 60 m.p.h. He saw the car strike the cyclist who flipped over about tl1ree times before coming to a stop 70 to 80 feet from the impact. At that time he was about 200 feet away. Sgt. Holder who headed the police investigations gave evidence of hi.s conversati.on with the appellant at the scene. He testified tl1at he took measurements of distances pointed out to hi.m by the appellant and these jncluded: ( i) (ii) the distance from when, lie first feet 2 inches. the length of tyre impressions wheel of appellant’s car 58 feet saw the cyclist was 68 leading to front left 3 inches. (iii) the distance from the point of cyclist was lying 81 feet. impact to where the Sgt. Holder also said that the jeep received extensive damage to the front hood, left front side of front windshield and front grill. He also gave evidence that the speed limit in that area was 30 m.p.11. The appellant also gave evidence on oath. He said he was driving at 15 – 20 m.p.11. behind Fonseca’s car and lie decided to overtake because the traffic was clear, but when he got in li.ne wi.th the car he saw the bicycle crossing the street. He said he tried to stop but it was too close and he turned right in an unsuccessful attempt to avoid tl1e collision. He insisted – “I first saw the cyclist when I got in line with the Toyota. I was 2 to 3 feet away from the cyclist when I first saw him.” He denied that he was travelling at GO m.p.h. He also denied being present when Sgt. Holder took the measttrements and although he admitted pointing out the things Sgt. Holder measured he said that distances lie gave were 11 impossible”. He denied that his car was extensively damaged. He said that only his park lamp was damaged and his bonnet had a dent. In his reasons the Magistrate indicated that even if he accepted the evidence of the appellant he would have found h.im guilty because his failure to see the cycl.ist until he was so close demonstrated that he was not paying attention. But it is clear tl1at the Magistrate placed more reliance on the prosecution witnesses whom he said he believed. The law is already well settled that the trial court who had the opportunity to see and hear the witnesses is in a better position to assess their credibility than an appellate Court which has to rely on the cold and lifeless wrttten record of the proceedings. I could find nothing to support the view that the Magistrate’s finding on the .c.redibility of the witnesses was erroneous. There can be no doubt however that the evidence of Fonseca supported the conclusion that the appellant overtook when it was unsafe so to do, that the evidence of· Smith and of Sgt. Holde1· supported the conclusion that tl1e appellant was driving at an excessive speed and even the evidence of the appella11t l1imself supported the conclusion that he was not keeping a proper .lookout. This appeal has to be dismissed because the Magistrate’s decision was reasonable and was supported by the evidence. I would therefore cU.smiss the appeal. C.M.D. Byrdn Justice of Appeal I concu1.. I concur. Justice of Appeal