Supreme Court of Mauritius, 13 mars 2020, 2020 ROD 12 – POLICE V GOPAUL DILLIPCOOMARSING

POLICE V GOPAUL DILLIPCOOMARSING

2020 ROD 12

POLICE V GOPAUL DILLIPCOOMARSING

Cause Number: 997/2019

THE COURT OF RODRIGUES

In the matter of:-

POLICE

V

DILLIPCOOMARSING GOPAUL

Judgment

Introduction

1. Accused stands charged with the offence of driving a motor vehicle with alcohol concentration above the prescribed limit in breach of section 123F (1) (a)(3)(5) and 52 to Second Schedule of the Road Traffic Act.

2. Accused pleaded not guilty and at trial, he was not assisted by counsel.

The trial.

3. The prosecution opened its case by producing a result slip obtained from a breath test obtained from Accused by Police Constable Evenor (Doc.A). The prosecution also produced a memo emanating from the National Transport Authority regarding the particulars of the vehicle driven by Accused (Doc.B).

4. As regards to the commission of the present offence, Police constable Evenor (“W3”) testified that on 4 November 2018, around 01.01 hours, together with other police officers which also included Police Sergeant Andre and him, were at a junction of a public road at Rivière Coco. At the material time, W3 stopped a Toyota vehicle

registration mark:- 80 RDZ 12 driven by Accused. W3 requested Accused to give a sample of blood for a preliminary breath test and to which Accused accepted. Accused was found to have 23 mg of alcohol in 100 millilitres of his breath and after having been cautioned, he was informed that the procedures will continue at Rivière Coco Police Station as the level of alcohol in his breath test was above the prescribed limit in law. At the police station, W3 testified that Police Constable Collet (“W4”) requested Accused to give a sample of his breath and after some discussion, Accused agreed to blow in the apparatus. After the reading was obtained, Accused requested to give a blood sample and to which same was agreed. Accused was brought at La Ferme Hospital and a sample was obtained and same was forwarded at the Forensic Science Laboratory.

5. The result of the blood sample was produced by the defence as same was no being relied upon by the prosecution and it was found that there was 12 milligrammes of Ethyl Alcohol per 100 millilitres of blood.

6. The prosecution called W4 as he was the police officer who performed the breath test on Accused. He testified that at 03.30 hours, he performed an evidential breath test on Accused. Accused was informed of the procedure of an alcohol test and to which Accused agreed for an evidential breath test. Both tests revealed that Accused had an alcohol level of 12 mg per 100 millilitres of his breath. Accused was cautioned and informed of his constitutional rights and Accused opted for a blood sample instead of relying of his breath test. Accused was then brought at La Ferme Hospital.

7. No evidence was adduced by the defence.

The law.

8. Section 123 F (1) (a) of the Road Traffic Act is set out as follows: 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. Discussion and assessments.

9. I have assessed all the evidence on record.

10. In the present case, the prosecution is relying on the results of the evidential breath test taken from Accused to prove its case compared to Accused who is relying on the result of the specimen of blood which was taken from him at La Ferme Hospital to say that the prosecution has failed to prove its case beyond reasonable doubt.

11. Now, true it is that if we go by the results of the evidential breath tests taken from Accused, the case should be proved for the prosecution. However, there seems to be another aspect to this case which I believe has to be considered. This is in respect of the rights of Accused regarding his choice of specimens to be provided under section 123 H(2) of the Road Traffic Act being given that the specimens of breath which Accused provided was not more than 40 micorgrams of alcohol in 100 millilitres of breath.

12. Sections 123J (2) and 123H (2) of the Road Traffic Act provide –

“123J. Choice of specimens of breath … (2) If the specimen with the lower proportion of alcohol contains no more than 40 micrograms of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimens as may be required under section 123H (2), and, if he then provides such a specimen, neither specimen of breath shall be used.

123H. Provision of specimens for analysis … (2) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section, the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the police officer making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of

blood cannot or should not be taken, the specimen shall be 2 specimens of urine.”

13. Hence, as per the two sections referred above, it is only after the results of the two evidential breath tests have been obtained and have been found to be positive and being given that the specimen of breath was not above 40 micrograms of alcohol in 100 millilitres of breath, Accused should have been informed or given an opportunity to provide an alternative specimen. This procedure was not complied with by the police and it is Accused who instead requested to the police for a specimen of blood to be taken from him.

14. Now, should the court disregard the specimen of blood provided by Accused. If the procedures as found in section 123 J (2) of the Road Traffic Act is to be followed, then the evidential breath test should be disregarded. However, the prosecution is not relying on same and this seems to be because the specimen of blood was given well after the time Accused was arrested.

15. W3 testified that the sample of blood was taken after 4 hours Accused was arrested. But, then if that is the case, Accused should have been informed in clear terms that if he refuses to give a specimen of breath, he will be prosecuted as per section 123 F and 123 H (6) (a) of the Road Traffic Act. In my opinion, in the light of the evidence adduced by W3 and W4, this procedure has not been complied with. Hence, in the present circumstances, I am of the view that the result of the specimen of blood cannot be disregarded and should be taken into consideration to determine whether Accused was driving his vehicle with a proportion of alcohol which was above the limit prescribed in law. This is being said taking into consideration the manner in which the procedures for the taking of the specimens have not been complied with by the police.

16. In the case of Cracknell v Willis [1988] A.C. 450, Lord Griffiths said that there was a statutory obligation on the police to offer the motorist the option of giving a blood or urine specimen if the reading of the breath test is between 35 and 50 microgrammes (See Cracknell v Willis [1987] 3 All ER 801, page 811,paragraph D and E).

17. Hence, in the light of the above, I find that the prosecution has not proved its case beyond reasonable doubt. This is being said relying on the level of alcohol which was found in the specimen of blood provided by Accused was not above the prescribed limit in law.

Conclusion.

18. For these reasons, the case is dismissed against Accused.

Daniel Dangeot Senior District Magistrate Judgment delivered on 13 March 2020.