Alphonso v The Commissioner of Police

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Byron, J.A.
• Judgment Date: 22 June 1992
• Neutral Citation: VG 1992 CA 1
• Docket Number: Mag. Crim. Appeal No. 2 of 1992
• Date: 22 June 1992

Court of Appeal

Floissac, C.J. Byron, J.A. Liverpool, J.A.

Mag. Crim. Appeal No. 2 of 1992

Alphonso

and

The Commissioner of Police

Appearances:

Dr. Gonsalves for Appellant

Mr. D. Baptise for Respondent

Practice and procedure - Appeal against conviction for driving without due care and attention contrary to section 30 of the Road Traffic Act – Whether the decision was unreasonable or could not be supported having regard to the evidence – Evidence supported the conclusion that the appellant overtook when it was unsafe to do so and was driving at an excessive speed – Appeal dismissed.

Byron, J.A.

1 This is an appeal against the decision of the Magistrate in which he convicted the appellant for driving without due care and attention contrary to Section 30 of the Road Traffic Act, No. 5 of 1988 of the Laws of the Virgin Islands and fined him $200.00.

2 It was a case where the appellant was driving a red Montero jeep eastwards along the Treasure Isle Public Road on the 27 ^th November, 1991 at about 1:30 p.m. Ahead of him and traveling in the same direction was a car preceeded by a bicycle ridden by Deodath Ramnath. An accident occurred when the appellant overtook the car and tried to overtake the bicycle. The Magistrate concluded that the appellant was not keeping a proper lookout and was overtaking when it was not safe to do so, and that he was speeding.

3 The appeal was argued on the solitary ground that the decision was unreasonable or could not be supported having regard to the evidence.

4 The prosecution relied on seven witnesses. There were two eye witnesses to the accident, witnesses 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.

5 Raymond Fonseca testified that he was driving his vehicle behind the cyclist at about 10 m.p.h. When he was about 20 – 25 feet behind the cyclist made a right turn and was crossing the road.

6 Counsel for the appellant argued that the cyclist created an emergency by turning right across the road without first having signaled 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.

7 At the time the appellant's vehicle suddenly came alongside Fonseca's car. Fonseca immediately stopped his car, saw the appellant apply brakes and slide in to the cyclist and throw him on the right side of the parking lot. He estimated the distance the cyclist was thrown at 8 – 10 feet.

8 Roosevelt Smith testified that he was driving along the Pasea Estate Road when he saw the appellant's vehicle traveling towards him at about 60 m.p.h. He saw the car strike the cyclist who flipped over about three times...