Supreme Court of Mauritius, 11 février 2020, 2020 LPW 17 – Police v Anthony Laval Aurokium

Police v Anthony Laval Aurokium

2020 LPW 17

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

Cause number 3603/19

In the matter of:

Police

v/s

Anthony Laval Aurokium

JUDGMENT

The Accused stands charged with the offences of (1) FAILING TO PROVIDE SPECIMEN OF BREATH FOR A BREATH TEST in breach of sections 123G (1) (a), (2) of the Road Traffic Act (2) FAILING TO PROVIDE A SPECIMEN OF BLOOD OR URINE in breach of sections 123 H (1) (b), (4) and 163 of the Road Traffic Act and (3) DRIVING A MOTOR VEHICLE WITH ALCOHOL CONCENTRATION ABOVE PRESCRIPTION LIMIT in breach of sections 123F (1) (a), (3), (5), 123H (5), (6) (a), 52 & Second Schedule of the Road Traffic Act. He pleaded not guilty to the charges and stood inops consilii at trial stage. The court proceedings were conducted in Creole language for the benefit of the Accused party.

The police prosecutor produced the following document:

• The NTA certificate for motor vehicle bearing registration number ED 502, marked as Doc A.

THE CASE FOR THE PROSECUTION

Prosecution Witness No.1, PS Hosseny identified, read and produced the defence statement of Accused party recorded under warning by him on 10 th December 2016 at Stanley police station. The defence statement of Accused was marked as Doc B

on record. In cross examination PS Hosseny denied that the Accused had informed him that he was injured and that was the reason he could not give his specimen of breath or blood. Prosecution Witness No.2, PC Nawosah explained that he met the Accused party on 5 th December 2016, following a request received from PS Hosseny following a case of road accident. He went on to explain that on spot he noticed that the Accused was smelling of alcohol and in the presence of Witness No.1, PDS Hosseny he requested the Accused to provide a specimen of breath after he had informed him of his rights and the procedure for alcotest. The prosecution witness went on to explain that he informed the Accused that a refusal to give specimen of breath was an offence and that Accused replied as follows “Mo pas pou soufflé.” Witness No.2 further explained that he informed the Accused that it was an offence and that Accused refused to do so without giving an explanation or reason. PC Nawosah stated that he requested the Accused to provide a specimen of blood or urine taken by a nursing officer in a hospital and again the Accused party refused without giving any reason and he went on to explain that he then warned the Accused that a refusal could be used as evidence against him in Court and cautioned him. In cross examination PC Nawosah denied that he failed to inform the Accused of the alleged offences committed or the procedures involved in alcotest. The main prosecution witness admitted that the Accused was injured at that time and that he was partly conscious. The officer confirmed that the Accused was conveyed to the hospital to attend treatment. The case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Accused was explained his constitutional rights and elected to make a statement from the dock. He went on to explain that no one explained to him the procedures involved in alcotest. The case was then closed for the defence.

I have assessed the evidence on record. I have assessed the depositions of the prosecution witnesses as well as their demeanour in Court. I note that the Accused merely elected to make a statement from the dock which carried a lesser weight than a deposition under oath. I have further considered the fact that the Accused party has pleaded not guilty to all the charged under the present information.

The Law

Sections 123 H (1) (b) (4), (5) and 163 (1) (b) of the Road Traffic Act

123H. Provision of specimens for analysis

(1) Subject to section 123K, a police officer may, in the course of an investigation into whether a person has committed an offence under section 123D, 123E or 123F, require the person (a) to provide 2 specimens of breath for analysis by means of a device of a type approved by the Minister; or (b) to provide at hospital a specimen of blood or urine, or both, for a laboratory test.

(4) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section shall commit an offence.

(5) A police officer shall, on requiring any person to provide a specimen for a laboratory test in pursuance of this section, warn him that a failure, without any excuse, to provide it may render him liable to prosecution and may be used against him as evidence.

In relation to the offence under Count 3 of the present information the relevant legislations are as follows:

Sections 123 F (1) (a) (3), (5), 123 H (5), 6 (a), 52 & 2 nd Schedule of the Road Traffic Act

123F. Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit

1(a) Where a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit, he shall commit an offence.

(3) A person convicted for an offence under this section shall be liable to a fine of not less than 10,000 rupees nor more than 25,000 rupees and to imprisonment for a term not exceeding 6 months.

(5) Sections 152, 153 and Part X of the Criminal Procedure Act, the Probation of Offenders Act and the Community Service Order Act 2002 shall not apply to a person liable to be sentenced under subsection (1).

123H. Provision of specimens for analysis

(5) A police officer shall, on requiring any person to provide a specimen for a laboratory test in pursuance of this section, warn him that a failure, without any excuse, to provide it may render him liable to prosecution and may be used against him as evidence.

(6) (a) In a prosecution under section 123D or 123F of this Act, a refusal without reasonable excuse by a person to submit himself to a breath test or to give a specimen of his blood or specimens of his urine when required to do so in pursuance

of this section shall be held against him as prima facie evidence that at the material time the proportion of alcohol in his blood exceeded the prescribed limits.

CASE LAW

It has been established that it is a condition precedent for a person to be convicted for an offence under section 123 H, he should be given a warning as set out under section 123 H (5). The warning is mandatory. (Re: Luximon v The State 2012 SCJ 276).

In the case of Ally v The State [2014 SCJ 283] the Supreme Court held that in relation to subsections 123 F (5) and (6), for the warning to be compliant with subsection (5), it should state that a refusal would be “prima facie evidence that at the material time the proportion of alcohol in his blood exceeded the prescribed limits.” Simply warning the contravener that he has committed an offence will not satisfy the requirements of sections 123 H (5) (6).

From the evidence on record I note that it is quite evident that the Accused was injured following a road accident and was indeed conveyed to the hospital to attend treatment for his injuries. The main enquiry officer and contravening officer further admitted in Court that the Accused was only partly conscious at the time when he attended to the case and requested him to provide his specimen of breath or breath test and to provide a specimen of his blood or urine. The law makes it clear that both offences under Counts 1 and 2 have to be committed without any reasonable excuse provided by an Accused party for his refusal to comply with the requests made. I have considered the defence statement of the Accused on record regarding his out of court confession to all the three charges against him. However, I find that there has been a serious irregularity with the way the contravening officers have acted in as much as they have tried to explain the mandatory procedures involved in alcotest to a partly conscious Accused party.

For all the reasons mentioned above I find that the prosecution has failed to establish that sections 123 G (1) (a), (2), and 163 of the Act has been complied with. I find that the prosecution has failed to establish that section 123 H (5) of the Act has been complied with. Therefore, I have no other option than to dismiss the charge under Counts 1 and 2. In relation to the charge under Count 3, I find that no real evidence whatsoever has been adduced by the prosecution. The prosecution is basing its case merely on the evidential presumption provided for under section 123 H (6) of the Act. However, the failure of the prosecution to satisfy section 123 H (5) of the Act precludes the application of such a presumption. I have no other option than to dismiss the charge under Count 3 as well.

B. PRAYAG-RAJCOOMAR (Mrs) District Magistrate This 11 th February 2020