Roberts v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Kay JA,Bell JA
• Judgment Date: 24 June 2021
• Docket Number: Civil Appeal 2021 No 1
• Court: Court of Appeal (Bermuda)

[2021] Bda LR 54

In The Court of Appeal for Bermuda

Before:

Clarke P; Kay JA; Bell JA

Civil Appeal 2021 No 1

Between:

Levince Roberts

Appellant

and

The Queen

Respondent

Mr M Scott for the Appellant

Ms C Clarke and Ms S Simmons for the Crown

The following cases were referred to in the judgment:

Hill v Baxter [1958] 1 QB 277

R v Gosney [1971] 2 QB 674

Jiminez v R (1992) 173 CLR 572

Alexander v Dunn [2016] HCJAC 3

Driving without due care — Grievous bodily harm — Driving while sleepy —

JUDGMENT of Bell JA

Introduction

1. This appeal turns on a very simple point. The Appellant in this case, Levince Roberts, was involved in a traffic accident during the early evening of Monday, 18 June 2018, when the motor car he was driving in a westerly direction crossed the centre line and struck a motor cycle ridden by Jahron Wilson, travelling in the opposite direction, so the accident happened on the wrong side of the road so far as Mr Roberts was concerned. Mr Wilson sustained a fractured left tibia and a fracture dislocation of the right hip, which left him hospitalised for five days, and Mr Roberts was charged with causing grievous bodily harm by driving without due care and attention contrary to section 37A of the Road Traffic Act 1947 (“the Act”). Following trial before the Wor Craig Attridge on 23 September 2019, Mr Roberts was convicted on 8 October 2019. He appealed against his conviction to the Supreme Court, which appeal was heard by Subair Williams J, who dismissed his appeal on 29 December 2020.

2. The simple point concerns the fact that in the period leading up to the accident, Mr Roberts had had very little sleep, and not much food. He had recognised that he was starting to fall asleep as he was driving westerly through Paget, but nevertheless continued to drive, having made, as the learned magistrate described it, “a conscious decision” to keep on driving to a parking area further west, at Warwick Long Bay, where he intended to stop the car and rest. Mr Roberts' case is, broadly speaking, that he was entitled to make that judgment, and that the subjective nature of his decision to keep driving could be justified. For the reasons set out in this judgment, I am of the view that he was wrong on both counts.

Background Facts

3. Mr Roberts had returned to Bermuda on a flight from Miami on Sunday evening, 17 June 2018. After disembarking, he then drove the length of the Island to his home in Sandys Parish, before turning right around and going out to work, from which he returned home at about 5 am. He said that he then had 2 hours rest, following which he left his home at 7 am to drive to a security job, again travelling the length of the Island, to St David's. In all he said that he had had 5 hours sleep including the flight from Miami, and the 2 hours he had slept at home before leaving it to drive to his security job. He said in his evidence that the food which had been set aside for security personnel had been eaten by others, and by way of sustenance during the day he had only one granola bar, before leaving St David's at about 7 pm to drive home. So in a period of just over 36 hours he had, on his evidence, had only 5 hours sleep, and in just under 24 hours he had had only 2 hours rest; added to this lack of sleep was the fact that during the day he had eaten just one granola bar. Unsurprisingly, he felt tired as he was driving home in a westerly direction. He said that he started to feel “like drowsy tired” as he got close to Paget, and as he got to the Astwood Park stretch in Warwick, he “started to nod off for a whole sleep” and was “nodding in and out”, with the sensation of falling asleep. At that point his evidence was that he “made the conscious decision to make my way to Warwick Long Bay and rest”. His reason for not stopping immediately was that he was worried that if he just pulled over by the side of the road he might be hassled by the police. In making the conscious decision to go to Warwick Long Bay, Mr Roberts conceded that he drove past parking spaces which were private, for local residents.

4. The learned magistrate set out the relevant facts and mentioned some of the authorities to which he had been referred. At paragraph 21 of his judgment, the magistrate said that “the test for what...