Terrell A-G CJ:

The respondent, riding a motor-cycle and side-car, was overtaking a cyclist when a Public Works Department lorry coming in the opposite direction caused him to swerve slightly to the left. In the result the side-car struck the cyclist who was thrown down and received serious injuries. The accused was charged with;

(i) causing grievous hurt by a negligent act an offence punishable under s. 338 of the Penal Code;

(ii) failing to stop after an accident an offence under s. 35(1) and punishable under s. 118(1) of the Road Traffic Enactment 1937;

(iii)failing to report the accident at the nearest police station an offence under s. 25(2) and punishable under s. 118(1) of the Road Traffic Enactment 1937;

(iv)driving a motor vehicle on a road dangerously an offence under s. 25(1) of the Road Traffic Enactment 1937.

He was acquitted on the first charge under s. 338 of the Penal Code, the Magistrate having found that the prosecution had not established a sufficiently high degree of negligence to justify a conviction under this section. This finding is not challenged by the learned DPP.

The respondent was found guilty on the second and third charges, and fined 5 and 10 respectively.

As regards the fourth charge, the learned Magistrate did not convict under s. 25(1) (dangerous driving), but under s. 26(1) (inconsiderate driving), and fined the respondent 20.

The Public Prosecutor appeals against the sentence on the second, third and fourth charges, maintaining in particular that on the fourth charge the conviction should have been under s. 25(1), and a heavier sentence imposed.

The learned Magistrate in the course of his judgment says

The accident in my opinion could have been avoided if the accused on seeing the complainant unsteady in front of him applied his brakes immediately.

With this expression of opinion I unhesitatingly agree.

The respondent in his submissions to the Court said that he had the right of way and that the cyclist should have dismounted from his cycle so as to leave the road clear. The respondent did not appear to appreciate that a pedal cyclist has just as much right to use the road as a motor-cyclist. No careful driver would dream of trying to overtake a cyclist who was far from steady at the moment that a heavy lorry was coming in the opposite direction. To do so was to take an unjustifiable risk, and in my opinion constituted dangerous driving.

The conviction therefore will be altered to one under s. 21(1) of the Road Traffic Enactment, and a sentence of four weeks rigorous imprisonment will be imposed. The sentence will run from this date. The respondent's licence will be endorsed, but the fine will be repaid.

In view of the heavier punishment awarded in respect of the fourth charge, I do not propose to interfere with the fines on the second and third charges. I would point out, however, that a failure to stop, or a failure to report should be regarded as serious offences, and not as mere technical breaches of the law.

Appeal allowed. Conviction altered.