Cooper v Cop
| Jurisdiction | Bahamas |
| Judge | Sawyer, P. |
| Judgment Date | 25 October 2006 |
| Neutral Citation | BS 2006 CA 126 |
| Docket Number | Criminal Appeal No. 38 of 2005 |
| Court | Court of Appeal (Bahamas) |
| Date | 25 October 2006 |
Court of Appeal
Sawyer, P.; Ganpatsingh, J.A.; Osadebay, J.A.
Criminal Appeal No. 38 of 2005
Mr. H. O. Tynes, Q.C., Mr. Christopher Sam for the appellant.
Mr. Vernon Collie for the respondent.
Criminal law - Killing in the course of dangerous driving — Appeal against conviction — Whether the magistrate failed to take into account all of the evidence — Magistrate directed his mind to evidence given by the witnesses — Magistrate addressed his mind to the necessary elements of the offence — Conviction was both safe and satisfactory — Appeal dismissed — Conviction and sentence affirmed.
Around 8.30 p.m. on Friday, 23 January, 2004, a collision occurred between car number 14799 driven by Ms Sheryl Cooper (‘the appellant”) and tour bus number 158 (“the taxi”) driven by Mr. Karl Ferguson at Seahorse Road in Freeport, Grand Bahama.
As a result of that collision, Mrs. Dottie Lou Powell, a passenger in the taxi, was killed and other passengers as well as the taxi driver were injured.
On 28 April, 2004, the appellant was charged with the offence of Killing in the Course of Dangerous Driving, contrary to section 44(1) of the Road Traffic Act (Ch. 220). The particulars of that charge insofar as they are material, read – “…at about 8.30 p. m. on Friday January 23rd 2004 at Freeport, Grand Bahama, [Sheryl Cooper] drove car number 14799 west along Shearwater Drive in a manner dangerous to the public thereby causing the death of Dottie Lou Powell.”
The appellant would have had the right to elect trial by jury or by a stipendiary and circuit magistrate; she apparently elected to be tried in the magistrate's court. We say that, because no complaint is made of the fact that she was tried summarily for that offence. The case was tried by Deputy Chief Magistrate for the Northern Region, Mr. Franklyn Williams, sitting in Court Number One at Freeport, Grand Bahama.
The material facts were not seriously disputed before the learned magistrate and may be summarised as follows:
The appellant, who was not familiar with the area in which the collision occurred, drove her vehicle west on Shearwater Drive after darkness had fallen. As there were no street lights she did not, and could not see the stop sign which was fixed to a metal pole at the side of that road because it was obscured by a tree or overhanging branches; nor did she see the double white caution lines on the surface of the road as they had been obliterated over time.
The appellant therefore did not stop at the intersection of Shearwater Drive and Seahorse Road but continued driving west across Seahorse Road – a dual carriage roadway. When the appellant had driven past the eastern half of the dual carriageway as well as the median strip that separates the two parts of that carriageway, her vehicle collided with the taxi driven by Mr. Ferguson who was travelling north in the western half of the dual carriageway of Seahorse Road. The impact caused the taxi to turn in the opposite direction – heading south - from the northern direction in which it was travelling before the collision (see the evidence of Corporals 819 Denis Anderson and 854 Kingsley Wood) as well as serious damage to the taxi and the appellant's vehicle and caused Mrs Dottie Lou Powell to be thrown from the taxi onto some metal palings which bordered the road thereby causing her death. The other six passengers and the taxi driver were also injured. The appellant's vehicle ended up north of Seahorse Road, also facing south with its entire front section extensively damaged.
The appellant admitted to Corporal Wood that she was travelling north on Shearwater Drive after completing a pizza delivery and that she had gotten lost; she did not see a stop sign and on reaching the intersection she continued until her car's front section collided into a white taxi bus travelling north on Seahorse Road which overturned and then landed on its four wheels. Corporal Wood asked the appellant to point out the stop sign to him and then they walked over to the westbound lane of Shearwater Drive where there was a stop sign but it was hidden behind a large tree. Corporal Wood also testified that he and the appellant walked away from where the stop sign was in several different directions but he was unable to see the sign. He confirmed that there were no lights at the intersection. The appellant gave a written statement to Corporal Wood and apparently admitted that she was driving at between 30 and 40 miles per hour but indicated that by the time the collision occurred she had reduced the speed of her vehicle. We say that because of the evidence of Corporal Wood was not controverted by the appellant and the fact that the appellant's statement was admitted in evidence without objection. It is not clear from the record before us what she accepted as the speed of her vehicle at the time of the collision.
At the time of the collision the appellant's vehicle and the taxi were the only two vehicles on that road; there were no street lights or any other lighting on either of those roads; the stop sign on the road surface at the junction of Shearwater Drive and the eastern carriageway of Seahorse Road was almost completely obliterated, the upright stop sign was obscured by overhanging branches and the caution lines were not visible.
We take judicial notice of the fact that at 8.30 p.m. on 23 January, 2004 it would have been quite dark and we therefore accept that it was more probable than not that the appellant did not see the upright stop sign or any marking on the road surface.
However, as it must have been dark at that time, it is not clear from the record why neither the appellant nor Mr. Ferguson saw the lights of each other's vehicle as they approached that junction.
At the conclusion of the trial the learned magistrate convicted the appellant of the charge and three weeks later, sentenced her to a fine of $5,000.00 or one year's imprisonment in default of the fine.
The Appeal
The appellant appeals against that conviction directly to this court under section 14 (1) of the Court of Appeal Act (Ch. 52) on two grounds:
“(1) The decision could not be supported having regard to the evidence;
(2) Under all the circumstances of the case the decision is unsafe and unsatisfactory.”
We shall deal with the grounds of appeal in the same order.
Mr. Tynes submits that the learned magistrate erred when he decided to convict the appellant on the basis of her lack of prudence and on the basis of the speed of her vehicle when he ought to have considered all of the relevant elements of the offence created by section 44 (1) of the Road Traffic Act and he emphasised that the speed at which a vehicle is driven is not necessarily indicative of the manner in which it is driven.
Subsection 44 (1) of the Road Traffic Act, reads:
“44. (1) Any person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is 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, shall be guilty of an offence and shall be liable…” (Emphasis added)
Mr. Tynes submits that whenever a court has to determine whether the manner of a person's driving is dangerous to the public within the meaning of subsection 44(1) of the Road Traffic Act, the court is required to have regard to all the circumstances of the case and that the speed at which the vehicle is driven is merely one of several matters which the court is required to take into consideration. In Beresford v Richardson [1921] 1 K.B. 243, the appellants had been convicted of driving in a manner dangerous to the public in circumstances where they had driven at an excessive speed over a two-mile stretch of road to which there were some fifteen cross-roads, one of which was particularly dangerous. It was a bank holiday that day so that there was a considerable amount of traffic either actually on that road or that could reasonably be expected to be there. At page 246, the Earl of Reading C.J., in giving his judgment dismissing the appeals, set out the material words of subsection 1(1) of the 1903 Act (which are similar to section 44 (1)) and then continued –
“There was evidence that the portion of the road on which the appellants were driving contained dangerous crossroads, and that there was a considerable amount of traffic, the day being a bank holiday. There was, therefore, in my opinion evidence on which the justices could come to the conclusion that the appellants were driving in a manner dangerous to the public.”
The learned Chief Justice then distinguished that case from the earlier case of Rex v. Wells 91 L.T. 98 in which a conviction for dangerous driving was quashed as the charge against the appellant had been laid in the alternative. He then continued –
“In my opinion it is quite possible that the same facts might constitute an offence under both branches of the section and there is nothing in the judgment of Lord Alverstone C.J. in Rex v. Wells to lead me to think that that was not his view also…”
Darling J, agreed with Lord Reading and at page 247 he said:
“All that was decided in Rex v Wells was that if it is intended to charge two separate offences...
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