Supreme Court of Mauritius, 11 février 2020, 2020 ROD 9 – POLICE v PROSPER WENDY

POLICE v PROSPER WENDY

2020 ROD 9

POLICE v PROSPER WENDY Cause No: 38/2018 THE COURT OF RODRIGUES

In the matter of:- POLICE

VERSUS

WENDY PROSPER

———- JUDGMENT Introduction 1. Accused is being prosecuted for having permitted an unlicensed driver to drive a motorcycle, registration mark:- 518 RY on 11 December 2014 in breach of section 21(1) (a), (ii) and 52 (2 nd Schedule) of the Road Traffic Act. Accused pleaded not guilty and was assisted by Mr. Dian of Counsel at trial. 2. The following documents are on record. i) A certificate for vehicle registration mark:- 518 RY emanating from the National Transport Authority (Doc.A). ii) A memo from the Traffic Branch of the Mauritius Police Force showing that the rider of the motorcycle had no driving licence at the time of the present offence. iii) A statement recorded from Accused by the police (Doc.C).

The case for the prosecution. 3. For the prosecution, the case rests mainly on the statement recorded from Accused by Police Sergeant Razi who read and produced same. 4. In her statement, Accused stated that the motorcycle belongs to his late husband and it is her who is in charge of the motorcycle. She went on to say that on 11 December 2014, the rider of the motorcycle, one Louis Davidson Casimir was involved in a road accident and she was the pillion rider at the material time. Accused stated that on 11 December 2014, it is her who took the decision to allow Mr. Casimir to ride the motorcycle without asking and without knowing that Mr. Casimir had no learner and neither had a driving licence. The case for the defence. 5. Accused testified that she gave a statement to the police. She went to say that she did not know that Accused had no driving licence to ride a motorcycle and that she believed that Accused had a driving licence because she saw him riding a motorcycle. Accused further testified that she did agree to the police in respect of the present offence but she made that statement as she was at lost being given that she had no legal adviser with her at the material time. Assessments. 6. I have assessed all the evidence on record. 7. It is not in dispute that Accused allowed Mr. Casimir to ride a motorcycle which was under her charge or custody. It is also not in dispute that Mr. Casimir was not the holder of a driving licence or a learner’s driving licence. 8. In the present matter, as already stated above, the prosecution is relying mainly on the version which Accused gave in her statement following a road accident where Mr. Casimir was the rider and Accused was the pillon rider. In short summary, the version which Accused gave in

her statement is that prior to allow Accused to ride the motorcycle, she did not ask Mr. Casimir whether he had a learner’s licence or a driving licence to ride a motorcycle. Hence, if the reasoning of the prosecution is to be followed, then the mere fact that Accused permitted Mr. Casimir to ride the motorcycle and the fact that Mr.Casimir had no licence to ride the motorcycle, then the offence should be found as proved. But Mr. Dian submitted that Accused had no knowledge that Mr. Casimir was unlicensed and hence the prosecution has failed to prove its case. But then, if the reasoning of Counsel is to be followed then any accused party should be acquitted if he comes and say that he had no knowledge that the driver of his vehicle had no driving licence. Mr. Dian referred to the case of Lovelace v DPP [1954] 3 All 481. 9. In the Lovelace’s case, the appellant presented at a theatre, of which he was the licensee and manager, a play which had been authorised by the Lord Chamberlain in a script which included stage directions. Before the performance he told the actors that they were to adhere strictly to stage directions. Towards the end of the performance the principal actor, contrary to the orders given by the appellant, departed from the stage direction and acted in an indecent manner. The appellant was charged with causing part of a stage play to be presented before such part had been allowed by the Lord Chamberlain, contrary to the Theatres Act, 1843, s 15. It was held in that case that, the appellant had not “caused” the presentation of that part of the play which was not authorised by the Lord Chamberlain, because the appellant's mandate to the actors was to present the play as it had been authorised and there had been no command or direction from the appellant to the principal actor to present the indecent incident at the end of the play; and, therefore, the appellant was not guilty of the offence with which he was charged.

10. Hence, from the above, I find that the Lovelace’s case is not applicable as not only the facts are not similar as it is in the present case but the application of the law in the Lovelace’s case cannot be used as a precedent in the present case.

11. However, in the case of Browning v J W H Watson (Rochester) Ltd [1953] 1 WLR 1172, the respondents were charged with permitting a motor coach to be used as an express carriage without a road service licence albeit unknown to them two members of the public had journeyed in the coach which, apart from them, was carrying members of a football club as a

private party. The court held that, notwithstanding that absence of knowledge, the respondents had permitted such user, and it was said in the present case that could only be on the basis that the respondents' driver had failed to see that only members of the club went in the coach. Lord Goddard CJ said : “We cannot say here that, if a coach proprietor lets a coach to a club for the conveyance of the members of the club and allows people who are not members of the club to get into the coach, he is not liable. Of course, this was not a wilful violation, but it is clear that the respondents should have taken some precaution. They should have told the football club: 'We will only do this if either you issue tickets to the members so that we can see that the people who get on the coach are members, or one of your servants, or the secretary of the club, or some other person, stands at the starting place to see that only members of the party get on to the coach.'

12. In this connection and relying on the above caselaw, I am of the view that this court should see the state of mind of an accused party when he permits a driver to drive his vehicle and whether he did inquire and took all the necessary precautions to see whether the driver was legally allowed to drive the vehicle. 13. In the present case, Accused testified that she had no knowledge and she allowed Mr. Casimir to ride her motorcycle because she saw Mr. Casimir riding a motorcycle in the past. In my opinion, this is not enough. As already said above, one should inquire and takes all the necessary precautions prior to permit someone to drive his vehicle. And this, Accused failed to do and she instead shuts her eyes and permitted Mr. Casimir to ride her motorcycle. 14. Mr. Dian also submitted that the case should be dismissed because there was a wrong citation of the law and referred to the case of Jorai v The State [2019 SCJ 192]. But this case is of no help to him as the wrong citation of the law would not be fatal to the information. 15. The information was meant to charge Accused with an offence under section 40 (b) (ii) and that the wrong section of the law was cited in the heading of the information as being under section 21 of the Act. The wrong citation of the law, would not, by itself, have been fatal to the information – See: Wong Yen Cheong M. R. A. v The State [1998 SCJ 375]; R. Jhurry v The Queen [1977 SCJ 113] and Boodhun v The Queen [1971 MR 296]. Furthermore, the body of

the information correctly reproduces the wording of section 40 of the Road Traffic Act and it is only the section of law which has been wrongly cited. 16. Hence in the light of the above authorities, and having found no prejudice has been caused to the accused, I amend the section of the law in the heading of the information by deleting section 21(1) (a) (ii) and substitute same by section 40 (b) (ii) of the Road Traffic Act. 17. Hence, in the present circumstances, I find that the prosecution has been able to prove beyond reasonable doubt that Accused unlawfully permitted Mr. Casimir to ride her motorcycle on a road without Mr. Casimir being the holder of a driving licence.

Conclusion. For the reasons referred above, I find Accused guilty as charged.

D.J.A Dangeot Senior District Magistrate Delivered on 11 February 2020