Supreme Court of Mauritius, 19 juin 2020, 2020 PL2 45 – Pcev Halooman

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Pcev Halooman

2020 PL2 45

POLICE v HALOOMAN Nitesh

CN5850/19 IN THE DISTRICT COURT OF PORT LOUIS (2ND Division) In the matter of:

POLICE V HALOOMAN Nitesh

JUDGMENT

Accused stands charged with the offences of: (1) Molesting a public officer in breach of Section 3(1)(a)(2) of the Public Officers’Protetion Act 1982 (2) Failing to carry in the vehicle a yellow indelible chalk or marker in breach of Section 68(J) and 163 of RTA (3) MVL not affixed in breach of Regulation 15(a) of GN 97/54 and Section 190 of RTA (4) Failing to affix insurance vignette (motor/autocycle) in breach of Section 57A (2) (a) and 163 (1) (a) (iii)(b) of RTA (5) Failing to carry in his vehicle an agreed statement of facts form in breach of Sect 68 B (3) and (5) of RTA

(6) Fail to produce driving licence or photocopy thereof in breach of Section 46(1) (2) and 163 of RTA (7) Using motor vehicle without its head-lamp lighted in breach of Regulstion 103 (3) and 125 of GN 53/10 (8) Inefficient Silencer in breach of Reg 83(3)(a) and section 125 of RTA Regulation of GN 53/10

The accused pleaded guilty to Count I and VI and not guilty to count II, III, IV, V, VII and VIII. The accused was inops concilii at trial stage.

Prosecution produced an NTA certificate for the vehicle in question, marked as Doc A as well as a memo from witness no.3, marked as Doc B.

Prosecution called witness no.1, PC Bidessie, who read and produced defence statement of accused, marked as Doc C.

Prosecution then called witness no.2, PC Sunnassy, who related that on 22/02/18 at 12.55 hrs, whilst on duty in police uniform at Route Nicolay, he stopped motorcycle registration number EE 55, for a routine check, following which the accused uttered foul words towards his person. The officer called for his colleagues and the accused calmed down.

The officer proceeded to check the vehicle and the accused stated that he had no yellow chalk and agreed statement of facts. The accused was caused to accelerate his vehicle, following which the officer confirmed that the silencer was inefficient. His lights were also off. The accused was accordingly booked.

The witness was cross-examined.

The case was then closed for the Prosecution.

The accused was informed of his Constitutional rights in creole and elected to make a statement from the dock.

The accused stated that he begs for excuse but stated that everything was in order.

The case was then closed for the Defence.

The Court has considered the evidence on record. The accused pleaded guilty to Count I and Count VI. Also in his statement, he agreed to count III, IV and VI, so that the Court has no reason to cast a doubt with regard to these charges. With regard to count II and count V, the Court is of the view that the officer testified in a clear cut manner and explained how he asked the accused for these items and confirmed that the accused replied in the negative. With regard to count VII, the officer did not explain at length, how he noticed that the lights were off, given he was economical with details. There are no details as to how far he was when he saw the accused, amongst others. With regard to count VIII, the Court notes that the evidence provided by the officer appears to be based only on some sort of preliminary assessment of noise. It has not been made clear as to how the officer proceeded to conclude that the silencer was inefficient. The accused elected to make a statement from the dock as he is perfectly entitled. This Court is of the view that the principle elicited in the case of Andoo v R [1989 MR 241] is of relevance in the present case: “This Court has repeatedly stressed that the unsworn statement of the accused is only evidence of what he told the Police. Where the evidence for the prosecution establishes a strong and unshaken prima facie case and the accused chooses not to swear to his statement and expose himself to cross-examination, the trial Court is perfectly entitled to conclude that the prosecution evidence remains unrebutted. It is of course true that the burden of proving the guilt of an accused squarely lies on the prosecution and that the accused is entitled to remain silent. His right to silence, however, is exercised at his risk and peril when, at the close of the case for the prosecution, a prima facie case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on the evidence adduced by the prosecution. We need only repeat what was said by Sir A Herchenroder CJ in Ramkalawan v R [1914 MR 124] [at page 125] namely that the observation of Beccaria should never be forgotten-“imperfect proofs, from which the accused might clear himself, and does not, become perfect.’ This principle has been reaffirmed in the case of ANNIA T. v THE STATE 2006 SCJ 262 as follows:

“However, where the prosecution adduces evidence which is strong and credible enough to support the charge, it will be open to the trial court to act upon that evidence unless the accused party adduces such evidence as to satisfy the trial court that it should not act on the evidence adduced by the prosecution. This principle has been reaffirmed in a number of cases and more recently in DPP v Bhageerutty [2006 SCJ 158]”

Accordingly, Court finds that the Prosecution has proven its case beyond reasonable doubt under count I, II, III, IV, V, VI accordingly, finds the accused guilty as charged under all these counts. The Court finds that the Prosecution has failed to prove its case under count VII and VIII and accordingly dismisses count VII and VIII.

Mrs Manjula Kumari Boojharut (District Magistrate) Delivered on 19 June 2020