Supreme Court of Mauritius, 13 janvier 2020, 2020 INT 1 – Police v Yogesh Bhundoy

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Police v Yogesh Bhundoy

2020 INT 1

Cause Number: 170/19 IN THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side) In the matter of:- POLICE v/s Yogesh BHUNDOY JUDGMENT 1] The Accused stands charged 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 1962. He pleaded not guilty and was duly represented by counsel at his trial.

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2] The case for the prosecution was conducted by State Counsel from the Office of the Director of Public Prosecutions, assisted by Police Prosecutor. 3] The information read: ‘That on or about the 06 th day of February 2015, along Royal Road, Riambel, in the district of Savanne, one YOGESH BHUNDOY , 30 years, driver at Innodis, residing at Royal Road, Sebastopol, did unlawfully and by imprudence, whilst driving a motor vehicle, to wit: Goods Vehicle bearing registration mark 3818 DC 02, on a road at the place aforesaid, involuntarily commit the homicide of one Satyanand Katonah.’ 4] The prosecution has to prove that an accident occurred by the imprudence of the accused whilst driving a motor vehicle, which led to the involuntary homicide of the victim. 5] The evidence led by the prosecution rested on the production of the death certificate of one Satyanand Katonah(victim) (doc A); the national transport authority certificate of vehicle 3818 DC 02 (doc B); the medico legal report of the victim dated 16.03.2015 (doc C); two FSL reports dated 26.11.2016 and 9.02.2016 marked doc D and doc E respectively; the out of court statements of the accused dated 12.02.2015; 22.06.2016; and 6.02.2015 marked as (doc F, doc G and doc L); the booklets of photographs (doc H, H1 to H2) and (doc J, J1 to J8); the vehicle examiners’ report (doc K), the plan doc M; the statements explaining the photographs (doc N and doc N1) and the testimonies of several witnesses. 6] Witness no.8, deposed and stated that he was the first police officer to call at the spot of the accident on the 6 th of February 2015 at 12.25 hours. He found the vehicle in an upside-down position with the tires facing the sky and accused was outside the vehicle whilst certain persons were helping to remove the passenger stuck inside the accidented vehicle. He also recorded a statement from the accused, doc F, which he produced. His cross examination revealed that there were sugar cane plantations and trees on both sides of the road and that there were cut tree trunks of varying diameters almost in the middle of both sides of the road when the accident occurred. He was not re-examined.

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7] Witness no.7, produced doc G and stated that the registration number of the vehicle should read 3818 DC 02 instead of 3818 DC 08. He was not cross examined. 8] Witness no.9, produced a booklet containing two photographs, doc H, H1 to H2, and he was not cross examined. 9] Witness no.10, produced a booklet containing eight photographs, doc J, J1 to J8. Under cross examination, he confirmed that photo J2, showed a tree trunk which is off the road and was above the road level, but he could not confirm the diameter of the said trunk. He was not re-examined. 10] Witness no.13, produced doc K, and under cross examination stated that the cabin of the vehicle was heavily dented but did not exclude the possibility that the dent to the cabin could also have been caused during towing and the doors were heavily damaged. 11] Witness no.6, produced doc L, the out of court statement of the accused. During his cross examination he stated that as per accused’s version, the latter was driving at 55 to 60 kilometers per hour (KMPH), when a wasp entered the vehicle attacked his eye, which consequently resulted in accused losing control of his vehicle leading to the accident. He added that there were two passengers in the car, the victim and one Mr Theodore. 12] Witness no.15, deposed confirming that he performed sentry and no unauthorized person interfered with the body and the exhibits. He was not cross examined. 13] Witness no.12, produced a plan, doc M and stated that the speed limit at the locus of the accident was 60 KMPH. He added that from Pt A to Pt E on the plan, the dotted lines represent tire marks on the left side of the road towards Chemin Grenier from Souillac and that the road towards Chemin Grenier was bordered by bare land and sugarcane field. According to the plan, the tire marks started at the level of the bare land and carried over a distance of 40.45 meters. He stated that Pt E and Pt D represented tree trunks and the Pt F is where the vehicle overturned. During his cross examination, it transpired that there were trees and plantations on both sides of the road, and that there were cut tree trunks above the level of the road. It also

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came to light that Pt B is where accused applied his brakes and that Pt C is where accused said the vehicle left the road with a distance of 12.25 meters. The witness also agreed that given the thickness of the trunk found above the level of the road, it is possible that the vehicle left the road as a result of the impact with the trunk. He was not re-examined. 14] Witness no.11, produced a booklet of photographs doc J, J1 to J8 and two statements, doc N and N1. He was not cross examined. 15] Witness 14, performed sentry, he confirmed that no unauthorized person had access to the body of deceased and he was not cross examined. 16] Witness no16, Mr Prakansing Katonah deposed to the effect that he was handed over the body of his uncle, victim and he had no complaints. He was not cross examined. 17] Prosecution closed its case. Defence called the accused and one Mr J.A. Theodore as witness. 18] Accused deposed under solemn affirmation and affirmed as to the correctness of the statement, doc L, he gave to the police. He further stated that on the material date and time, he was driving the goods vehicle, when suddenly, a wasp entered the vehicle through the open window and attacked his eye. He put his right hand in front of his face, applied his brake, and experienced a black out but felt the vehicle hit against a tree trunk and ended its course in a field some distance away. He lost consciousness and when he regained consciousness he found himself outside the vehicle, with lots of people around. He was taken to the hospital and added that he had two helpers with him in the vehicle on the day in question. He stated that one of them lost his life in the accident. The alcohol test carried out on him was negative. Under cross examination, he denied that he was driving at an excessive speed which caused the accident. He maintained that he was driving at about 55 to 60 Kmph. He denied that he was imprudent whilst driving the vehicle. He was re-examined and stated that the vehicle was a big one.

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19] Mr Theodore, defence witness, deposed to the effect that on the material date and time an accident occurred where one of his colleagues lost his life. He explained that he felt a jerk as the vehicle hit against something and the accused put his hand on his face as there was a wasp on him, he then saw black and do not know what happened. Under cross examination, he was unable to say whether accused was driving fast or not. 20] Both counsel for the accused and the prosecution offered submissions and relied on various authorities in support of their contentions. 21] At the outset it is not denied nor contested that an accident occurred involving goods vehicle bearing registration number 3818 DC 02, driven by accused whereby one Satyanand Katonah lost his life. However, what is being contested is whether the accused was imprudent whilst driving the vehicle which led to the accident and the death of a passenger in the said vehicle. 22] The version of the prosecution is that the accused was driving at an excessive speed and therefore he did not have proper control of his vehicle when he was suddenly attacked by a wasp. According to the prosecution the speed at which the accused was driving was the imprudence which led to the accident and the death of the passenger. Defence on the other hand, admitted that an accident occurred involving the vehicle driven by accused which caused the death of one passenger but deny that the accused was imprudent. They contended instead that it was as a consequence of the wasp, an independent factor, that the accused lost control of his vehicle which resulted in the accident and the unfortunate death of one of the passengers. 23] It is an established principle that ‘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, traffic as revealed generally by the particular facts and circumstances of the case of which the trial judge is the sovereign judge. The test is an objective one as decided in Mc Crone v Riding [1938] 1 All ER 157. What the prosecution has 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.” [Chaddee v The State [2011 SCJ 149].

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24] The question that this Court has to address its mind to, is whether or not the accused was imprudent and departed from the standard of a reasonable, prudent and competent driver given the facts and circumstances of the case at hand. 25] The prosecution is relying on the plan and the damages sustained to the vehicle to state that the accused was driving at an excessive speed and thus when faced with the unexpected incident of the wasp, he lost control and was unable to stop his vehicle in due time. They also relied on the distance covered by the vehicle between the point where the accused applied his brake and the point where the vehicle overturned and ended its course. According to the prosecution, relying on a table as regards speed of driving and stopping distance, the accused version is inconsistent with the speed at which he stated he was driving. However, in this regard, Court has duly considered the extract of Wilkinson produced and observes that the breaking distance was in relation to cars with a total length of 4 meters with no indication as to the height of the car and/or the weight thereof. Worthy of note, is that as per document K, the length of the goods vehicle in question is 8 meters 20 with a width of 2 meters 40, thus it stands to reason that the breaking distance and overall stopping distance will differ from that indicated in the table produced by the prosecution. Although, the weight of the vehicle is not stated in document K, there is evidence on record that the vehicle was carrying goods at the material time. Hence, Court finds it unsafe to rely on the table produced by the prosecution to reach a conclusion as regards speed. The more so since the table assumes stopping in a straight line whereas in the present case the vehicle was double the size of the average car, with a heavier weight and with evidence that the tire hit against a tree trunk and exploded. Certainly, the table does not find its applicability here. 26] The above being said, it is important to consider some authorities in regards to speed and imprudence. In Bhoowanraj Ramgolam vs The State (2017 SCJ 287) it was held that: ‘It is established that the speed at which a vehicle is travelling is not in itself indicative of imprudence, the only qualification to this principle being that driving at an excessively high speed carries the inherent risk of accidents being caused. We can only quote with approval what was said in the case of Pokhun A v The State [2008 SCJ 337]:

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“…. in relation to speed….more should not be read into Cayeux v R [1961 MR 265] and [Seetul v The State [2007 SCJ 135] that good sense demands. Speed in driving is inherently risky and ‘the higher the speed, the less significant other factors would become, there being an inherent risk of accident in driving at an excessive speed (see Merill v Police, SC Sep, 5, 1996)” 27] The case of Laurie v Reglan Building Co.Ltd [All E R annotated vol.3, 24 October 1941, CA],quoted with approval in the case of Ramgolam (supra) is of utmost relevance since the facts relate to a heavily loaded lorry in daylight on a broad and good road at a speed of about 10 to 12 mph, and it skidded as snow had frozen on the surface of the road and it hit against a pedestrian on the pavement causing his death: “If roads are in such condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace. The evidence here, to my mind, quite clearly shows that the road was in such a condition that a prudent driver, even if he did not find it necessary to stop, would have proceeded at a very slower speed when driving a vehicle of this kind”. 28] The above considered, it is imperative to assess on the facts of the case at hand whether the intervening factor, that is the wasp, could exonerate the accused of any imprudence whilst driving the vehicle at the speed of 55/60 Kmph. ‘Imprudence’ is where someone fails to exercise the proper degree of prudence necessary and thereby causes an accident. In other words, he could have avoided the accident, had he acted with a higher degree of care. Imprudence connotes a positive act and the author of the accident stands to blame for having acted imprudently: “L’agent est responsable parce qu’il aurait pu empêcher l’accident de se produire en agissant avec plus de prudence.” [Garcon Art. 319, Note 21(4)]. 29] The test to be applied therefore is two-fold as held by Lord Hailsham and Lord Diplock in R v Lawrence [1981] RTR 217: “(1) was the defendant in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road, or doing substantial damage to property;

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(2) that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved had nonetheless gone to take it.” 30] On application of the test, driving at the speed of 55/60 Kmph in an area with a speed zone of 60 kmph cannot in itself be the only element of imprudence. Obviously, a reasonable, prudent and competent driver would be expected to adjust his speed depending on the road, weather and time conditions prevailing at any point in time, which can make driving at a speed 40 Kmph in a speed zone of 60 Kmph an act of imprudence. However, the evidence on record is quite different here. The version of the accused is that whilst he was driving, he was suddenly attacked at his eye by a wasp which led to him being temporarily impaired (he suffered a black out) and even though he applied his brake he nonetheless lost control of his vehicle which hit against cut tree trunks on the road, causing a tire to explode which resulted in the vehicle carrying its course over a certain distance before ending its course in the field in an upside down position. There is no evidence on record to suggest that the version of the wasp was made up or that the tree trunks were never on the road. On the contrary, witness no.8, confirmed the presence of these cut tree trunks on the road at the material time, and witness no.12, accepted that it was possible that the impact with the tree trunk which was above the road level caused the vehicle to leave the road. Furthermore, defence witness confirmed the presence of the wasp in the vehicle. 31] The facts and circumstances of the case are more in line with the analogy drawn in the case of Kay v Butterworth (173 L.T.191) where Humphreys J. held: “I do not mean to say that a person should be made liable at criminal law who, through no fault of his own, becomes unconscious while driving, as, for example, a person who has been struck by a stone, or overcome by a sudden illness, or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees or wasps.” 32] Therefore, if the attack by the wasp was ‘so sudden that the driver was immediately disabled from driving and lost control over his vehicle, it might be argued that he should be absolved from penal liability’. [see Beranger vs The Queen (1952 MR 185)].

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33] The above considered and after carefully perusing the evidence on record, court finds in the particular circumstances of the case at hand, that the speed at which the accused was driving is not tantamount to imprudence on its own. On the contrary, Court finds that in spite of being attacked by a wasp, the accused, nonetheless, applied his brake but his vehicle hit against a tree trunk causing a tire to explode, resulting in the vehicle leaving the road and was carried over a distance of 40.45 meters before ending its course upside down in the field. More importantly, there is evidence that the accused lost consciousness. Therefore, it cannot be said that the accused was imprudent such that he departed from the standard of a reasonable, prudent and competent driver. 34] Court, therefore, finds that the prosecution has failed to establish that the accused departed from the standard required of a reasonable, prudent and competent driver. In the circumstances Court finds that the prosecution has not proved its case beyond reasonable doubt against the accused. 35] Court, accordingly, dismisses the case against the accused.

Judgment Delivered by

Ms N. Parsuramen

Magistrate Intermediate Court

Delivered on: 13 th January 2020