A driver who killed a jogger in an early morning traffic accident two years ago was yesterday given a suspended jail term after the magistrate took into consideration the fact that the runner was wearing black clothing and it was dark.

Kevin Ellul, 27, told the court it came as a complete surprise to him when he suddenly hit something as he was driving along Durumblat Road in Mosta on January 20, 2008.

The force of the impact threw 59-year-old Emmanuel Formosa, a father of two, over a boundary wall and into a field one metre below the road level. He died shortly afterwards from an injury to the back of his head.

Magistrate Edwina Grima said she was perplexed about how the accident occurred as no single plausible reason came to light during the proceedings.

She said she couldn’t understand how the accused, who was driving along a lit, empty, straight road, had ended up on the wrong side and hit a person without even realising it.

She noted that Mr Ellul had spent a whole night out after leaving his house at about 11 p.m. He went to Paceville with his girlfriend and had seven drinks in a number of bars.

They then got a takeaway and ate it in Pembroke after which he took her home to Fgura at about 5.45 a.m. The accident happened some time after that.

Mr Ellul told the court that he was awake all the time as he was driving but could only remember hearing a loud noise and then turning the steering wheel to the left and then to the right. He was only doing 50 kilometres an hour.

He got out of the car and looked around but saw nothing and then went home to wake up his father. The two men returned to the scene with torches to look around but still found nothing.

The magistrate said that although Mr Ellul’s urine tested negative for the presence of alcohol, it was taken some seven hours after the incident.

Lawyer Joe Brincat, appearing for the Formosa family, said that with the amount of alcohol consumed and the fact that he spent the night out, he had to be tired and perhaps fell asleep at the wheel.

The defence countered that this was all assumption and there was no proof of it at all, a point the magistrate agreed with. There was neither any evidence to prove that the accused was drunk.

From the evidence provided, the court could only be sure of one thing and this was that Mr Ellul momentarily lost his concentration and his focus on the road.

The court-appointed traffic accident expert, Mario Buttigieg, said that the accused was driving at normal speed at the moment of impact and that the driver had momentarily lost his focus.

The magistrate said the victim was in a black tracksuit, which according to the Highway Code he should not have been wearing in the dark and on a road with no pavement.

Although the victim did break the law it did not diminish Mr Ellul’s responsibility. The court, however, was going to take this factor into account when calibrating punishment, she said.

In handing down judgment, Magistrate Grima said she was taking into consideration the fact that the victim had contributed to the incident by wearing black and the accused went to the police after he discovered what he had done but couldn’t do so earlier because the victim could not be seen.

Furthermore the accused had a clean police record.

Mr Ellul was jailed for three years suspended for three while his licence was suspended for a year.

Police Inspector Daniel Zammit and Therese Sciberras prosecuted.