Fong Chi on v. The Queen
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CACC000697/1976
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----------------- Coram: Pickering, J.A. Date of Judgment: 13th July 1976. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of careless driving following a collision between his taxi and a public light bus. A careful consideration of the evidence leaves me in sufficient uncertainty as to the correctness of some of the learned magistrate's findings of fact as to lead me to doubt the safety of this conviction. 2. The accident occurred on 10th February of this year shortly after midnight when a public light bus which was travelling westward along Hennessy Road collided with the appellant's taxi as the taxi turned right across the path of the public light bus into Fenwick Street. The mere fact that the appellant was turning right across the line of the Hennessy Road west-bound traffic prompted certain observations from Crown counsel upon the appeal which appeared to me to come very close to the attempted importation of the doctrine of res ipsa loquitur into criminal road traffic law, an embarrassment with which drivers are not yet confronted under our legislation. 3. No questions of principle arise from this appeal which is based purely upon fact so that it will suffice if I indicate some of the matters and findings which cause me some misgiving. Thus the learned magistrate found as a fact that the appellant had chosen to turn right after he had seen the oncoming public light bus but a few sentences later that finding was weakened or contradicted by a finding that the appellant had made his turn either ignoring the oncoming vehicle or not having seen it at all. (I have supplied the emphasis. The contradiction may be unimportant from the standpoint of whether or not the appellant was guilty of careless driving but it is one of a number of similar facts the totality of which cast doubt upon the conviction. 4. Thus the learned magistrate found that the public light bus was in the vicinity of a studded crossing lying to the west of Fenwick Street when the appellant's vehicle began to turn right. I can find no evidence to justify that finding. From the agreed sketch map it appears that the distance from the front of the halted minibus to the western end of the studded crossing is approximately 38 feet and that to the eastern end 50 feet. It was the evidence of the minibus driver that the taxi made a right hand turn when he was only ten odd feet away from it but the same witness subsequently said that he saw the taxi turning right as it was about 40 feet away. It was the appellant's evidence that when he first saw the public light bus and commenced to turn the bus was ten odd feet away from, not the studded crossing, but from a zebra-crossing located "very far away". One passenger in the public light bus said that he could not say how far the bus was from the taxi when he saw the taxi making the turn. The evidence therefore varies as to the distance between the two vehicles at the moment when the taxi started to turn; the point at which the turn commenced is known since the taxi emerged from the waiting pocket marked on the road. The learned magistrate rejected the taxi driver's estimate of the distance and accepted, approximately, one of the two estimates made by the public light bus driver but his justification for choosing one as against the other or indeed either is not clear; the more so when his finding in relation to speed is considered, namely that the public light bus was travelling at about 25 m.p.h. If the public light bus was indeed close to the studded crossing at the moment when the taxi was commencing its turn, the estimate of speed cannot be correct. The brake marks of the former vehicle indicate a thinking distance before the brakes were applied, of approximately 48 feet which is consistent with a minimum speed of 40 m.p.h., according to the Highway Code Table. It seems to me to follow that the learned magistrate's finding as to either distance or speed must be incorrect. 5. A further finding was that the appellant's vehicle continued in its ordinary path after impact whereas the agreed sketch map clearly shows that this was not the case, the taxi having been knocked diagonally from its path. Lastly the finding that brake marks of ten feet in length were evidence of reasonable speed on the part of the public light bus contained its own fallacy in that the brake marks of necessity ended at or just after the point of impact and one cannot say, had there been no impact, for how long the brake marks would have continued before the vehicle came to a stand-still. 6. The circumstance of an accident occurring when a vehicle is turning right across a main street of traffic raises a suspicion of carelessness in the driver of that vehicle but it by no means follows that this must be so. In all the circumstances I quash the conviction and set aside the sentence. The fine of $400, if paid, is to be returned to the appellant and his three-month disqualification from driving taxis is lifted. Representation: Winter of Hampton, Winter & Glynn for appellant. Conway, C.C. for respondent. |