Supreme Court of Mauritius, 25 février 2020, 2020 ROD 18 – POLICE V LEGENTIL JEAN CHRISTOPHER

POLICE V LEGENTIL JEAN CHRISTOPHER

2020 ROD 18

Cause Number: 164/2019

THE COURT OF RODRIGUES

In the matter of:-

POLICE

VS

JEAN CHRISTOPHER LEGENTIL

Judgment

Introduction. 1. Accused stands charged under two counts. 2. Under the first count, Accused stands charged with the offence of driving motor vehicle with alcohol concentration above the prescribed limit in breach of section 123 F (1) (a) (3) and 52 to Second Schedule of the Road Traffic Act. 3. Under the second count, Accused stands charged with the offence of driving without due care and attention in breach of section 123 C (1) (a) and 52 to second Schedule of the Road Traffic Act. 4. Accused pleaded not guilty under both counts and at trial, Accused was represented by Mr. Stephen of Counsel. The trial. 5. As regards to the first count, Police Constable Perrine (“W6”) testified that on 1 February 2018, at 22.45 hours, he proceeded at La Ferme Health Centre in connection to a case

of road accident. There, he found Accused undergoing medical treatment and Dr. Bhuntoa was the treating doctor. 6. W6 testified that Accused was injured at the level of the mouth and also at his two hands. W2 testified that Accused was asked whether he will sign on the consent form or to affix his thumbprint but Accused could not do so. A sample of blood was taken from Accused after having had the consent of the treating doctor. According to the Forensic Examination Report (Doc..C), it was found that Accused had a level of 70 milligrams Ethyl Alcohol per 100 millilitres of blood. 7. As regards to the second count, the case is that on 1 February 2018, around 21.30 hours, Accused was riding a motorcycle coming from Grand La Fouche Corail and was proceeding towards Marechal. There was another vehicle, registration mark:- 57RZS 00 which was driven by Joseph Rogelio Jolicoeur (“W10”) and which was in front of the motorcycle of Accused. 8. At the material time, as per the version of W10, arriving near the swimming pool of Marechal, he put the right flasher of his vehicle so to turn in the yard of Mr. Clarel Begue which is located opposite of the swimming pool. W10 testified that he put the flasher of his vehicle some 10 to 15 metres prior to turn to the right. Arriving one metre from the entrance of the track road which W10 had to enter, Accused who was on his motorcycle collided against the vehicle of W10. W10 testified that he provided assistance to Accused. 9. As regards to Accused, he testified that he overtook the vehicle of W10 and all a sudden he saw the vehicle of W10 coming onto him and he could not avoid the collision and the vehicle of W10 collided against his motorcycle. 10. Furthermore, in the statement which Accused gave to the police and which he sworn to its correctness, Accused stated that on 1 February, around 21.00 hours, he was riding his motorcycle, registration mark:- 33 RY, at a speed of 40 Km/Hr, coming from Marechal and was proceeding towards Papayes. Arriving near the swimming pool of Marechal, he saw a black car which was also proceeding towards Papayes. Accused put the right flasher of his motorcycle to overtake the car. Accused stated that he noticed that the driver of the car did not put his flasher to turn to the left or to the right. Accused then started to overtake the car and all a sudden, the driver of the car turned on his right and

collided against his motorcycle. Accused fell unconscious and regain consciousness when he was in the Intensive Care Unit of the hospital of Creve Coeur. Accused was admitted at the hospital for four days and he does not know how he was brought at the hospital. Accused stated that he was informed by the police that at the time he was being treated at the hospital, a sample of blood was taken from him to see whether he was driving under the influence of alcohol. Accused was also informed that the sample of blood was taken from him by a medical practitioner upon the request of the police. The law. 11. As regards to the law under the first count, section 123 F(1) (a) of the Road Traffic Act provides: 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. 12. As regards to the second count, section 123 C (1) (a) of the Road Traffic Act provides: Any person who drives a motor vehicle on a road or other public place without due care and attention shall commit an offence and shall, on conviction, be liable to a fine of not less than 5,000 rupees nor more than 15,000 rupees and to imprisonment for a term not exceeding 6 months. Assessments 13. I have assessed all the evidence on record including the submissions of Mr. Stephen. 14. Regarding the first count, Mr. Stephen submitted that relying on the fact that Accused did not give his consent for the blood test and relying on the pronouncement in the case of Veerapen v The State [2015 SCJ 439], the said count should be dismissed. 15. Now, it is clear from the evidence on record that Accused did not give his consent for the taking of a sample of blood from him. This is being said because there is the evidence adduced by W6 in cross examination who stated that it is the treating doctor of Accused, Dr Bhutooa who signed the consent form. Furthermore, in the statement recorded from

Accused, Accused was also informed that a sample of blood was taken from him by a medical practitioner upon the request of the police. My point that the Accused did not give any type of consent is fortified as there is no evidence which has been adduced to that effect. This being so, can the report (Doc.C) obtained from the Forensic Science Laboratory in respect of the level of alcohol in the blood of Accused and which was taken without his consent be admitted as evidence. 16. In the case of Veerapen v The State [2015 SCJ 439], the appellant appealed against a judgement from the lower court where he was convicted, under Count 1, of driving without due care and attention and under count 2, of driving a motor vehicle with alcohol concentration above prescribed limit. 17. Cousel for the appellant submitted that the blood sample taken from the appellant was “tainted with illegality” because it had been taken without his consent, in breach of section 123M (2) of the Road Traffic Act, and without any warning on the part of a police officer under section 123H (5) of the Road Traffic Act. 18. Reference was made to section 123K (1) and (2) and of section 123 M (2) of the Road Traffic Act which provides:

123K. Duties of doctors regarding patients (1) A person who has been admitted as a patient at a hospital shall not be required to provide a specimen of breath for a breath test, or to provide a specimen of blood or specimens of urine for a laboratory test, unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement and – (a) if the requirement is then made, it shall be for the provision of a specimen at the hospital; but (b) if the medical practitioner objects on the ground specified in subsection (2) below, the requirement shall not be made.

(2) The ground on which the medical practitioner may object is that the requirement or the provision of a specimen or, in the case of a specimen of blood or urine, the warning required under section 123H(5), would be prejudicial to the proper care and treatment of the patient.

19. Section 123M (2) of the Road Traffic Act provides: A person shall provide a specimen of blood only if he consents to it being taken by a medical practitioner or a nursing officer and it is so taken by a disposable syringe. 20. As in the Veerapen’s case and as it is in the present case, no warning was given to Accused under section 123H (5) of the Road Traffic Act, nor did he consent to a specimen of blood being taken from him for analysis purposes 21. In the Veerapen’s case, the Supreme Court found that: “..the provisions set out above shows that the legislator has provided that it is mandatory for a person to give his consent before a specimen of blood can be taken from him for the purpose of analysis under the Road Traffic Act; this is clear from the unambiguous provisions of section 123M (2) of the Road Traffic Act as well as the words “require the person to provide” in section 123H (1) and (5) which connote a positive act on the part of the person from whom the specimen is required.” 22. After having examined the provision of the law under the Road Traffic Act and making a comparison with the DNA Identification Act, the Supreme Court found that they could not rely on the FSL report and held that: We are of the considered view that the blood specimen was obtained in breach of the appellant’s fundamental right to privacy under the Constitution and in breach of the Road Traffic Act.

23. Hence, in the light of the pronouncement made by the Supreme Court in the Veerapen’s case and as already stated above, the consent of Accused was never sought, I find that the report emanating from the Forensic Science laboratory and produced by the prosecution cannot be relied upon. 24. In the present circumstances, in the light of the above, I find that the prosecution has failed to prove the first count beyond reasonable doubt. 25. As regards to the second count, I am faced with two conflicting versions and to determine this charge, there is, apart the versions of W10 and of Accused, also the real evidence, that is the rough sketch plan and the road accident reports. 26. Having taken into consideration the point of impact as shown by W10, the point where the motorcycle of Accused was found and also the damages found on both vehicles, I find that W10 was on the verge to turn to the right when Accused decided to overtake the vehicle of W10. I also find that the vehicle of W10 had already slowed down compared to Accused who should have been riding at a quite speed and this is why, by way of momentum, both Accused and his motorcycle went to fall further ahead to the point of impact. To that, I find that the version of Accused that he was riding at a speed of 40 Km/Hr. cannot stand and I find more plausible the version of W10. 27. Furthermore, having examined the rough sketch plan, I find that the motorcycle of Accused collided with the vehicle of W10 and passed the vehicle of W10 and terminated its way against the pavement on the right side of the road when proceeding towards Papayes. Now, if I take the point of impact as shown by Accused, then the vehicle of W10 should have already turned on its right and hence Accused should have been pushed towards the right and not projected further away. I therefore find that the point of impact as shown by Accused to be incorrect. 28. Hence, in the light of the two above paragraphs, I find for the version of W10 which I have found to be plausible and that the version of Accused has failed to cast doubt in the prosecution’s case. To that effect, I believe the version of W10 that he did put his flasher some 10 to 15 metres prior to turn to the right and that Accused without taking due care and attention, overtook the vehicle of W10 and collided against the vehicle of W10

Conclusion.

29. Therefore, for the reasons referred above, I find that the case for the Prosecution should succeed only under the second count as it has been proved beyond reasonable doubt. Accordingly, I dismiss the first count against Accused and I find Accused guilty under the second count.

D.J.A Dangeot Senior District Magistrate Delivered on 25 February 2020.