POLICE VS SUBBAROYAN MANOJEN

POLICE VS SUBBAROYAN MANOJEN 2017 INT 176 POLICE VS SUBBAROYAN MANOJEN Cause Number: 1024/15 IN THE INTERMEDIATE COURT OF MAURITIUS In the matter of:- POLICE VS SUBBAROYAN MANOJEN Judgment INTRODUCTION The Accused stands charged as follows: (i) (ii) (iii) Under Count 1 of the Information with the offence of involuntary homicide by imprudence in breach of section 239(1) of the Criminal Code coupled with sections 52 second schedule and 133 of the Road Traffic Act; Under Count 2 of the Information with the offence of driving motor vehicle with alcohol concentration above prescribed limit in breach of sections 123 F(1)(a)(3)(5), 123 H(1)(b) and 52 to 2 nd schedule of the Road Traffic Act; Under Count 3 of the Information with the offence of breach of condition attached to provisional licence in breach of sections 44(2)(b) and 163(1)(b) of the Road Traffic Act coupled with regulation 55(1)(b) of GN 97/54. The Accused pleaded not guilty to all 3 Counts and was assisted by Counsel. The Prosecution was also assisted by Counsel. THE FACTS

On the 30 th August 2013, an accident occurred at Middle road, Belle Vue Maurel involving motorcycle number 982 X and taxi car number 4113 ZY 10. The undisputed evidence reveals that the accident occurred when the driver of the taxi car, that is, Mr Seepaul, was driving car number 4113 ZY 10 in the direction of Mapou. He testified that there was a bus and a car on the other side of the road, going in the opposite direction towards Plaines des Papayes. At one point, a motorcycle, that is the motorcycle involved in the present case, which was behind the car, overtook the car and came on his lane proceeding to Mapou. Mr Seepaul contended that he swerved to the left but the motorcycle knocked against his car. Before the impact, the pillion rider fell and after the impact, the rider fell. At the time of the accident, visibility was poor. It was dark and drizzling. On the car, the side lamps and the 2 fog lights were switched on. In a statement given to the police, the Accused explained that on the material day, deceased came to see him to ask the Accused to drop him at his place of work. As the Accused had partaken alcoholic drinks, he informed deceased that he could not drive and consequently, deceased rode the motorcycle belonging to the Accused and the latter sat thereon as a pillion rider. The Accused conceded that they met with an accident but could not remember any detail thereof. OBSERVATIONS Count 1 - INVOLUNTARY HOMICIDE BY IMPRUDENCE I have assessed the evidence on record and I shall first deal with Count 1 of the Information. The Accused is charged with an offence of involuntary homicide by imprudence. The elements constitutive of the offence of involuntary homicide by imprudence have been laid down in DALLOZ PENAL, HOMICIDE INVOLONTAIRE, NOTE 91 ET SUIVIE as follows; (i) (ii) Un fait materiel d homicide d un etre humain; Un comportement imprudent de l auteur de ce fait materiel;

(iii) Une relation de cause a effet entre le comportement delictueux et la mort de la victim. The Prosecution must prove all the above elements of the offence to establish that the Accused was the cause of the involuntary homicide of deceased. UN FAIT MATERIEL D HOMICIDE D UN ETRE HUMAIN The present case is one where there has been a loss of life of the deceased. This has been evidenced by the act of death of deceased. I have perused the medico legal report drawn up by Mr Monvoisin and it evidences that the cause of death is shock due to multiple injuries. On this score, I have borne in mind that the injuries sustained by the deceased were as a result of the accident between motorcycle number 982 X and car number 4113 ZY 10 on the 30 th August 2013. Hence, there is a prima facie case of involuntary homicide in this case. UN COMPORTEMENT IMPRUDENT DE L AUTEUR DE CE FAIT MATERIEL To establish the case against the Accused, the Prosecution must establish that the death of deceased resulted not only from an accident involving the Accused but the accident must in fact be due to the imprudence of the Accused. The notion of imprudence has been defined in the case of LEBLANC J.R VS THE STATE (2001) SCJ 137 as follows: «La faute constitutive du délit, peut être inconsciente: C'est ce qui se produit lorsque l'agent n'a pas effectivement prévu les conséquences de son acte, qu'il pouvait cependant et devait prévoir. L'imprudence punissable consiste précisément dans ce défaut de prévision. (Note 21 Garçon Code Pénal Annoté (Edition 1956) Tome Deuxième. arts 319-320. notes 21 and25- Note 25. L'imprudence, la négligence et l'inattention sont des fautes de même nature, qui échappent à toute définition précise. Ces expressions, très compréhensives, embrassent toutes les fautes que leur auteur pouvait éviter avec plus de prévoyance, de soins, de diligence. L'agent est responsable parce

qu'il aurait pu empêcher l'accident de se produire en agissant avec plus de prudence». The test to be applied in order to determine if there was imprudence on the part of the Accused is to see whether the Accused fell below the standard of a prudent, competent and reasonable driver taking into account all the circumstances of the case. I deem it fit to refer to the case of CHADDEE VS THE STATE (2011) SCJ 149 as follows: On a charge of imprudence, the focus should not be on the choice of versions between that of the prosecution and the defence but whether objectively speaking the driver in question may be stated to have driven his motor vehicle with the standard required in the given conditions of light, weather, time and traffic as revealed generally by the particular facts and circumstances of the case of which the trial court is the sovereign judge. The test is an objective one as decided in McCrone v Riding [1938] 1 All ER 157. What the prosecution have to prove is that the defendant has departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case. (see also Walker v Talhurst [1976] 1 RTR 513; R v Lawrence 1981 RTR 217; Marot v R [1990 SCJ 17]; Ramloll v R [1990 SCJ 237]; Affoque v State [2005 SCJ 108]. I have therefore considered whether the act of the Accused can amount to an imprudent act or drive. I have borne in mind that the Accused denied that he was the rider of motorcycle number 982 X. However, I have taken into account the evidence adduced including the rough sketch produced as well as the vehicle examiner s report and I find that the rider of motorcycle number 982 X is at fault in the present accident. I say so for reasons which I shall explain in the 3 ensuing paragraphs. Before I go any further, I wish to point out that the plan contains a discrepancy with regard the position of the motorcycle after the accident. CPL Sohun who drew the plan noted the position of the motorcycle after the accident at point B which is on the right side of the road when facing Mapou. However, in Court, he averred that he saw the motorcycle at point E instead of point B such that the motorcycle was on the left side of

the road when facing Mapou. I have therefore considered the photographs which were taken under the instructions of CPL Sohun and I find that the position of the motorcycle after the accident as indicated in the photograph is actually on the right side of the road when facing Mapou, which means that the motorcycle knocked with the car driven by Mr Seepaul on the extreme left edge of the road when facing Mapou to end its course on the right side of the road. Be that as it may, irrespective of the discrepancy regarding the position of the motorcycle as laid down in the plan and the version of CPL Sohun, for the purposes of a finding of imprudence, I find that the rider of the motorcycle was imprudent and caused the accident. I say so because the rider of the motorcycle departed from the left lane when facing Plaines des Papayes to go onto the right lane whilst overtaking a car. In so doing, the rider of the motorcycle failed to pay heed to oncoming traffic coming from the opposite side of the road. The duty of a rider when overtaking a vehicle has been laid down in the case of ATTORNEY-GENERAL V CALCATTEEA [1958 MR 234], as follows: when overtaking a vehicle or any obstacle on the road, it is incumbent upon the driver of the overtaking vehicle to take all necessary precautions to ensure that his vehicle will steer clear of the vehicle or obstacle in front. If the driver fails to do so and it is established that there has been no extraneous factor leading to or contributing to the collision, then it is quite reasonable to infer that his failure to steer clear was due to the fact that he did not take all necessary precautions, and hence that any injury caused thereby is the result of his imprudence. This the rider of the motorcycle number 982 X failed to do and caused the accident. UNE RELATION DE CAUSE A EFFET ENTRE LE COMPORTEMENT DELICTUEUX ET LA MORT DE LA VICTIM. The Prosecution must establish that the imprudent act of the rider of the motorcycle 982 X caused the death of the deceased. On this score, I have taken note of the medico-legal report produced in Court. Dr Monvoisin attributed the cause of death

of the deceased to a shock due to multiple injuries. The present accident occurred on the 30 th August 2013 at about 18 40 hours. It is undisputed that as a result of the accident, the deceased who fell off the motorcycle sustained injuries and passed away at 19 15. I find that there is a chain of causation between the imprudent drive of the rider of the motorcycle and the death of the deceased who fell off the motorcycle. WAS THE ACCUSED THE RIDER OF THE MOTORCYCLE? Although I have found that the rider of the motorcycle was imprudent in relation to the accident leading to the death of the deceased, the Accused can only be held responsible if he was the rider of the motorcycle. The Accused has maintained at all times that he was the pillion rider and in fact, the deceased was the rider of the motorcycle. CPL Sohun is one of the main enquiry officers in the present case. He testified that when he reached the spot, the Accused explained the circumstances of the accident to him and stated that he was the pillion rider and not the rider of motorcycle 982 X. However, he gave a statement following the accident in which he said that the Accused told him that he was the rider of the motorcycle at the time of the accident and the deceased was the pillion rider. I find this inconsistency in the version of CPL Sohun to go to the root of the case as it directly relates to the author of the offence. The difference between the version of CPL Sohun in Court and the one given in his statement is so wide that it affects his credibility as a witness. (RE: SAMAN G. VS THE STATE (2004) SCJ 3). To make matters worse, CPL Sohun gave another version regarding the position of the motorcycle on the plan as compared to what he indicated when he went on the spot of the accident. When he went on the spot of the accident, he saw the motorcycle on the right side of the road when facing Mapou. In Court, he stated that the motorcycle was on the left side of the road, next to the car and finally in cross-examination, he averred that in fact, the version in his statement is correct.

Given that the photographs are in line with the version of CPL Sohun as given by him in his statement, I find that the motorcycle was found at point B on the right side of the road when facing Mapou. Mr Seepaul, for his part, averred that the pillion rider fell off the motorcycle prior to the impact and after the impact, the rider fell off such that the rider was next to the motorcycle. The pillion rider was about 3 metres from the motorcycle. However, there is nothing indicative on the plan to suggest where the deceased fell. Be that as it may, bearing in mind the plan and the version of Mr Seepaul, it means that the rider fell at a distance of 7 metres 70 from the car and the pillion rider must have fallen 3 metres before point B, if he was 3 metres away from the motorcycle. At such spot, it would mean that the pillion rider fell after the impact. Hence, the version of Mr Seepaul cannot stand and therefore, there is a doubt as to whether he properly identified the rider or the pillion rider since it is unclear as to who fell where. In addition, upon being questioned as to the identification of the Accused as the rider of the motorcycle at the police station, Mr Seepaul could not give a satisfactory answer. He could not remember if he identified the Accused at the police station. He came across as a vague witness, whose testimony lacks precision and clarity. I have also borne in mind that the accident occurred at 18 40 hours in August. At such time, it is dark in winter. At the material time, it was drizzling. Visibility was poor. This explains how Mr Seepaul could not note the details about the clothes worn by the parties or the colour of the oncoming car. In fact, in cross-examination, Mr Seepaul finally conceded that he could have made a mistake with regard the identification of the Accused in view of the poor weather conditions prevailing at the time, the rapidity of events and the state he was in. I therefore conclude that the identification of the Accused as the rider of the motorcycle by Mr Seepaul is seriously questionable and I cannot rely on same. I find that the Prosecution has failed to establish beyond any reasonable doubt that the Accused was the rider of motorcycle 982 X.

Counts 2 and 3 DRIVING MOTOR VEHICLE WITH ALCOHOL CONCENTRATION ABOVE PRESCRIBED LIMIT; BREACH OF CONDITION ATTACHED TO PROVISIONAL LICENCE Under Count 2 of the Information, the Accused has been charged with the offence of driving motor vehicle with alcohol concentration above prescribed limit and under Count 3 of the Information, the Accused has been charged with the offence of breach of condition attached to provisional licence. It goes without saying that these offences can only stand against the Accused if it is proved that the Accused was the rider of motorcycle 982 X. In light of the above, I have found that the Prosecution has not established that the Accused had control of the direction and movement of the motorcycle. (RE: LEPION V THE STATE (1997) SCJ 153 AND 154) and consequently the Accused was not the rider of the motorcycle 982 X. Hence, the charges under Counts 2 and 3 of the Information cannot stand against the Accused. CONCLUSION In light of the above, I find that the Prosecution has failed to prove all 3 Counts against the Accused beyond reasonable doubt. I dismiss all 3 Counts against the Accused Judgment delivered by: M.GAYAN-JAULIMSING, Ag Magistrate, Intermediate Court Judgment delivered on: 5 th May 2017