McKenzie-Simons v Miller (Police Sergeant)

• Jurisdiction: Bermuda
• Judgment Date: 25 June 2024
• Court: Supreme Court (Bermuda)
• Docket Number: Appellate Jurisdiction 2023 No 9

Between:

Sheldon McKenzie-Simons

Appellant

and

Fiona Miller (Police Sergeant)

Respondent

2024 Bda L.R. 38

Appellate Jurisdiction 2023 No 9

In The Supreme Court of Bermuda

Driving without due care and attention — Overtaking without having clear line of sight

The following cases were referred to in the judgment:

Robinson v Commissioner of Police[1995] Bda LR 64

Mller (Police Sergeant) v Webb[2020] Bda LR 63

Ms V Greening for the Appellant

Ms S Simons-Fox for the Respondent

RULING ofChristopher, Acting J

1. This is an appeal from the decision of his Worshipful Attridge, wherein the Appellant was convicted of driving without due care and attention or reasonable consideration for other persons using the road, and causing the Complainant bodily harm in so doing, contrary to section 37A of The Road Traffic Act 1947. The Act states:

“37A Any person who causes the death of, or grievous bodily harm to, another person by driving a vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or public place, commits an offence.”

2. This is the sole offence with which he is charged. As in the court below, counsel for the Appellant accepted that the Complainant suffered grievous harm. Therefore, the only live issue is whether the Appellant was driving without due care and attention and whether his driving fell below that expected of a competent and careful driver. The Crown called nine witnesses including the motorist in front of the Appellant, their expert witness and the Appellant's watch sergeant. The Defence called 2 witnesses, the Appellant and his expert witness.

3. The Appellant's grounds of appeal were as follows:

• (a) The Learned Magistrate failed to properly consider or at all the Appellant's case

• (b) The weight of the evidence was against the conviction.

• (c) The Learned Magistrate erred when he shifted the burden onto the Defendant when he said that the Appellant had failed to establish that his mistaken belief was reasonable.

• (d) The Learned Magistrate erred when he shifted the burden onto the Appellant when he said that the Appellant had failed to establish to the Court's satisfaction that he took all reasonable steps to avoid the collision.

4. In a 30 page judgment, the Learned Magistrate convicted the Appellant based on findings of fact enumerated in paragraph 118 of his ruling. Inter alia, although he found that the Complainant's motorcycle was not illuminated, he ruled that there was sufficient light for the motorcycle of the Complainant to be seen by the driver of the vehicle in front of the Appellant (“RS”) as she rounded the left-hand bend and entered the straight way. He considered that had the Appellant been keeping a proper lookout, he would have seen the motorcycle.

5. He found that the Appellant was travelling at an excessive speed while the Complainant's speed, though incalculable, was not excessive based on the observations of RS and the Crown expert. The evidence of the watch sergeant tended to suggest the...