Supreme Court of Mauritius, 21 janvier 2020, 2020 ROD 7 – POLICE V ALLAS JOSEPH IBRAHIM

POLICE V ALLAS JOSEPH IBRAHIM

2020 ROD 7

POLICE V ALLAS JOSEPH IBRAHIM

Cause Number :- 24/2019

THE COURT OF RODRIGUES

In the matter of: –

POLICE

V

JOSEPH IBRAHIM ALLAS

JUDGMENT

Introduction Accused stands charged under 4 counts. Under the first count, Accused stands charged with the offence of failing to wear securely a prescribed helmet while riding a motorcycle in breach of section 123 N (3) (a) and (4) of Road Traffic Act, coupled with section 123AG, First Schedule (section 20), third schedule (section 123 AG) of Road Traffic Act, as amended. Under the second count, Accused stands charged with the offence of refusing to stop the vehicle when directed to do so by a police officer in breach of sections 123AD (1) (a) and 163 of the Road Traffic Act.

Under the third count, Accused stands charged with the offence of driving without light at all times in breach of section 103 (3) and 125 of Government Notice 53 of 2010 of the Road Traffic Act. Under the fourth count, Accused stands charged with the offence of failing to equip motorcycle with rear mirror in breach of regulation 19 (3) and 125 of Government Notice 53 of 2010 of the Road Traffic Act. Accused pleaded not guilty under the four counts and Accused was not assisted by Counsel at trial. The prosecution case On 21 May 2018, at 08.36 hours, Woman Police Constable Lungur (“W4”), who was dressed in police uniform, was performing a vehicle check on the main road of Mont Lubin close to the Secondary School of Mont Lubin. At the material time, she saw a motorcycle which was coming from the direction of Mont Lubin and was proceeding towards Palissade and the head lamp of the motorcycle was off. W4 stood in the middle of the road and signalled the rider with her right hand and pointed her left arm towards the rider so that the latter stopped his motorcycle. The rider who W4 identified as Accused was on his own on the motorcycle and he passed beside W4 without stopping. W4 was able to record the registration mark of the motorcycle as being 150 RS. W4 was also able to notice that Accused was wearing an unstrapped helmet and also there was no left side mirror on the motorcycle. The case for the defence. Accused testified that on the material day, he was not riding his motorcycle because the motorcycle was not roadworthy. He stated that he was in a bus at the material time proceeding towards Port Mathurin and this was to collect a motorcycle from his uncle. Accused further testified that he does not wear an open face helmet and that he wears only a full face helmet. Accused called his mother as his witness and she testified that Accused was at home and she woke up Accused so that the latter could go and collect a motorcycle of her brother, that is the uncle of Accused. The mother of Accused further testified that the motorcycle 150RS was disassembled as same was meant to be repainted. To conclude, she testified that Accused travelled by bus on that day.

The uncle of Accused was also called as a defence witness. He testified that Accused works together with him and that the charge levelled against him is unfounded because Accused was working with him on that day.

Assessment of facts. I have assessed all the evidence adduced in the present matter. In the present case, for the prosecution, its case rests mainly on the evidence adduced by W4. For the defence, its case rests not only on the evidence adduced by Accused but also on the evidence of his mother and uncle. As regards to W4, she testified that she was able to identify the rider of the motorcycle as being Accused at the time when Accused passed beside her and was also able to see, apart that the headlamp which was off but that there was no left side mirror and that Accused failed to strap his helmet properly. After having heard her version of events, I cannot find any reason as to why I should doubt her word and I have reached this conclusion for the following reasons. First, no evidence was adduced that there was any motive for W4 to level a false charge against Accused. Second, I can disregard the issue of a wrong identification because W4 was able to see Accused who was wearing an open face helmet and also that Accused passed besides W4 at the material time. Enhanced to that, there is also the evidence adduced by Accused himself that he was made aware that the police were looking for him on the material day and this was following that incident. Third, I was able to listen to W4 and observe her during her testimony and I have no reason to believe that she was lying as there was no indication of invention, exaggeration or evasiveness during her cross examination. As regards to the defence, Accused gave his version under oath and both her mother and his uncle supported his version that it was not him, that is Accused, who was riding the motorcycle on the material day. However, I can easily disregard the version of both defence witnesses because neither the uncle nor the mother were able to say on which day that Accused was contravened so that this Court could say that it was on the day that Accused was contravened that Accused did travel by bus and also went to collect a motorcycle from his uncle.

Now as regards to Accused version, true it is that weight to be attached to his version should be the same as W4, but having said that, I find it difficult to believe Accused being given that it would be such a coincidence that W4 would contravened a rider who was riding a motorcycle and it just happen that the motorcycle is one which was indeed in the custody of Accused. Furthermore, I have not been convinced that it was not Accused who was riding the motorcycle at the material time and this is being said because Accused himself admitted that the motorcycle 150RS belong to one Patrick Ravina and that the motorcycle was in his custody at the time of the present offences. Hence, it cannot be a strange twist of fate that W4 saw someone who would resemble like Accused and that he was riding a motorcycle which was not registered under his name but it happens that the said motorcycle was in his custody for same to be repainted. In other words, I find that there were too many irresistible inferences to say that it was indeed Accused who was riding motorcycle 150RS at the time he was signalled to stop by W4. Conclusion Therefore, for the reasons set forth above, having found for the prosecution, I find Accused guilty under all four counts.

Daniel Dangeot Senior District Magistrate Delivered on 21 January 2020.