Police v Joosery Bheonathsingh THE DISTRICT COURT OF LOWER PLAINES WILHEMS (MAURITIUS) Police. v/s. Joosery Bheonathsingh

Transcription

1 Police v Joosery Bheonathsingh 2017 LPW 167 CN 8357/ 16 THE DISTRICT COURT OF LOWER PLAINES WILHEMS (MAURITIUS) In the matter of :- Police v/s Joosery Bheonathsingh JUDGMENT Accused stands charged of Involuntary wounds and blows by imprudence in breach of Section 239 (2) of the Criminal Code and Sections 52 and 133 (1) (2) of the Road Traffic Act. Accused pleaded not guilty and he was represented by Counsel. Prosecution produced the Pf 58 of witness no 3, which indicated that the examinee bore a fracture on the right tibia and fibula. Then, witness no 1, Pc Powakel, produced the rough sketch of the accident as indicated by only witness no 3 and the Pf 70 detailing the damages sustained by private car 1626 ZY 09 driven by accused and motorcycle 6617 Y ridden by witness no 3. In cross examination, he confirmed the distance between point X and the entrance of Labourdonnais street as being 2 m60 cm, the distance between the hump and point X as being approximately 20 meters and the width of the road as 6m 50cm. The witness also clarified that Labourdonnais street was a one way street and vehicles could not be coming from that street onto Dr Maurice street. All vehicles coming from Ikerman street should stop at the white line before either going towards Labourdonnais street or any sides of Maurice Curee street. As per the measurements, the witness replied that the point of impact as indicated by witness no 3 was 60 centimeters onto Maurice Curee street nearer to the edge of the road when going towards Stanley.

2 Then, witness no 2, Pc Ramjan, produced the statement of the accused and a second rough sketch dated but this time upon indications given by the latter. The accused Out of Court version was to the effect that on at hours, he was driving his private car bearing registration number 1626 ZY 09 along Inkerman Avenue on the left side of the road at a speed of 20 km/hr and he stopped at the white line before emerging onto Maurice Curee street. He stated that he intended to cross Maurice Curee street and proceed towards Labourdonnais street. He checked for any incoming vehicles along Maurice Curee street and as there was no vehicles coming from either direction, he emerged onto the street. When his vehicle was completely onto Maurice Curee street, a motorcycle knocked against his left flank and the motorcyclist was injured. He denied the version of the motorcyclist. The latter s version put to the accused in his Out of Court statement was to the effect that accused did not stop at the white line before emerging onto Maurice Curee street. Moreover, accused also denied that the motorcyclist horned before the accident and maintained that when he checked on both sides of Maurice Curee lane, there were no incoming vehicles. In cross examination, the witness confirmed that the point of impact as shown by accused was 1m 40 cm nearer to the entrance of Labourdonnais street which would mean that accused car was 5m 40 cm inside Maurice Curee street. The witness also stated that the accident occurred between two humps and that he found no independent witnesses when he queried with customers at Ravi restaurant found in the vicinity of the accident. Finally, witness no 3, Mr Jules, deposed that on at hours, he was driving his motorcycle bearing registration number 6619 Y at a speed of 10km/hr on the left side of the road along Maurice Curee street towards Stanley. After slowing down at the hump, reaching near the junction, he saw a black car emerging from Inkerman street towards labourdonnais street which did not stop although he horned. The witness knocked against the vehicle and was seriously injured. In cross examination, the witness conceded that he did not stop immediately after he saw accused emerging and explained that he applied his horn. He replied that he saw accused vehicle for the first time some four meters away, horned and applied his brakes. When his motorcycle was completely stopped, accused vehicle knocked against his leg. When Counsel quoted from his out of Court statement; quand mo fine traverse lors ca dos d anne la, mo fine

3 arrive lors la croisee Ikerman et Maurice Curee, mo fine trouve ene l auto couleur noir pe deboucher, the witness replied that there was no inconsistency in that version. Counsel also quoted mo fine trouve li pe vine lors moi meme apres mo fine applique mo frein. Again the witness stated that he meant that the vehicle knocked against him after he had already stopped on Maurice Curee road. The Pf 70 detailing the front damages were put to witness, he insisted that the vehicle knocked against the right flank of his motorcycle. Finally, the witness maintained that he was riding at a speed of 10 km/ hr, horned but could not avoid the accident. At that stage both prosecution and defence chose to close their respective cases. Counsel for the defence submissions was firstly based on the case Jonas v Hardy 1970 MR 6 where it was held by Devlin, L.J:- A driver on the major road is not entitled to take his precedence for granted. Drivers on the minor road may be reckless or careless, and therefore it is the duty of the driver to keep a proper look-out as he comes to the junction and not just go straight ahead. And secondly, that both drivers share the same amount of responsibility for the accident. He submitted that the version of witness no 3 was not consistent in as much as, at a speed of less than 10km/hr and on seeing accused vehicle emerging some four meters ahead, he should have avoided the accident. After having considered the evidence on record and submissions of Counsel, I note that I have the Out of Court version of accused against the sworn version of witness no 3. It is undisputed that the accident occurred when accused vehicle emerged from a less important road (Ikerman street) on to a main road ( Maurice Curee street ) to go enter another less important road ( Labourdonnais street) while witness no 3 was riding his motorcycle on the left side on the main road ( Maurice Curee street ) towards Stanley. Both point of impact as shown by both parties are on the main road. Be it 60 centimeters near the entrance of Labourdonnais street as shown by witness no 3 or 1m 40 cm as shown by the accused, both point of impact show accident occurred on the main road. Thus, accused vehicle was to a large extent onto the Maurice Curee road while no part of his vehicle crossed onto Labourdonnais street. This Court is faced with two simple versions. The Out of Court version of the accused is to the effect that he stopped at the white line at Ikerman street and as there were no incoming vehicles

4 on either sides, he emerged his vehicle. Then, sixty centimetres before entering Labourdonnais street, a motorcycle coming from the left knocked against him. On the other hand, witness no 3 s sworn version was to the effect that after he slowed down at the hump, he proceeded towards Stanley when he saw some four meters ahead, a vehicle emerging from Ikerman street towards Labourdonnais street. He stated that he horned and when he saw that then vehicle was not stopping, he applied his brakes and stopped but nonetheless the car knocked against his right leg on the motorcycle. There is a difference of eighty centimetres between the point of impact shown by him compared to that of accused before entering Labourdonnais street. I find that, referring to the Judgment submitted by Counsel, Jonas v Hardy 1970 MR 6, had the witness not given any consideration to vehicle emerging at the junction, he would not have horned or have stopped before collision. It has remained unchallenged that witness no 3 horned before the accident and I do not find that the witness was inconsistent. His Out of Court version that was quoted by Counsel; mo fine trouve li pe vine lors moi meme apres mo fine applique mo frein., tally with his sworn version that he stopped and then the car knocked against him. Then, I find that witness no 3 was on the proper look out as a prudent and reasonable ridder and this is why he horned. Moreover, when he realised that the car was not going to stop, he applied his brakes but the car drove onto him. I refer to the case of R. Boojhawon v The State (1998 SCJ 36) where it was held by the Hon. Chief Justice that What the Appellant did was clearly a departure from the standard of a reasonable, prudent and competent driver, the more so as he was under a duty when coming out of a less important road (including any private road or any place) on to a main road, as in the present case, to approach the main road slowly and give warning of his approach and give way to traffic travelling on such main road, stopping if necessary to enable such traffic to pass (vide regulation 40(10) of the Road Traffic Regulations 1954). According to Counsel for the defence the damages sustained by the motorcycle do not tally with the version of witness no 3. True it is that the motorcycle was damaged in the front and not on the right, but the Pf 70 should be assessed together with the Pf 58 which mentioned accused right leg have been broken which is consistent with his version that the car knocked against the right flank of the motorcycle.

5 Now regarding Counsel s submission regarding share of responsibility, I find that if accused had taken all necessary precautions as expected from a prudent and reasonable driver, he should have seen a motorcycle coming from the left. Worse, had he crossed Maurice Curee slowly, he should have seen the motorcyclist approaching on the left and should still have been in a position to stop completely to enable the motorcyclist to pass. ( Re:- R. Boojhawon ). Then, I find that accused grossly departed from the standard of a prudent and reasonable driver and that he bears full responsibly for the accident. As the injuries sustained by witness no3 following the accident are not disputed, I find that the prosecution has proved its case beyond reasonable doubt and I find accused guilty as charged. K.MOORGHEN MAGISTRATE