Supreme Court of Mauritius, 28 février 2020, 2020 PL2 14 – Pce v Florimond

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Pce v Florimond

2020 PL2 14

POLICE v FLORIMOND Louis Charles

CN:1673/19 IN THE DISTRICT COURT OF PORT LOUIS (2nd Division) In the matter of:

POLICE V FLORIMOND Louis Charles JUDGMENT

Accused stands charged with Driving without due care and attention in breach of section 123C(1)(a)(3) & Sec 52 of the 2 nd schedule of the RTA. Accused pleaded not guilty to the charge and was not represented by Counsel at trial stage.

Prosecution produced the following: • A NTA certificate for vehicle registration number 7997 Z, marked as Doc A. • Witness no.1, PC Maussade produced a rough sketch, marked as Doc B as well as the defence statement of the accused, marked as Doc C.

• Witness no.2, CPL Emambocus produced a vehicle examiner’s report marked as Doc D The main witnesses for the Prosecution, witness no.3, Mr Shivalingum Chengalaram, testified that on 01/07/1 at 11 a.m, whilst driving car registration number 8160 OC 12, proceeding from Rte Nicolay towards Port Louis at a speed of 10 to 20 km/hr, he was at the level of traffic lights which displayed green lights. It was a market day and traffic was slow. Upon reaching Ducray street, he heard a noise on the left hand side. At the same time he noticed that the lights turned red. The driver could not reverse as there were vehicles behind him. The front part of the motorcycle collided against the rear part of his vehicle. The car sustained damages as well as the motorcycle. The witness was cross-examined. The case was closed for the Prosecution. The accused was informed of his Constitutional rights in creole and elected to remain silent. The case was then closed for the defence. The Court has considered the evidence on record and has observed all witnesses with care. It should be noted that the ‘particular circumstances of each case must be considered subjectively’, as what may be careless driving in X situation may be prudent in Y situation, as mentioned in Wilkinson’s Road Traffic Offences, 4th Edition, Volume 1, at p 318.

In Wilkinson’s Road Traffic Offences 11 th Edition at page 257, the following is stated:

“Driving without due care and attention may be said to mean departing from the standard of driving which would be exercised by a reasonable, prudent, competent driver in all circumstances of the particular case. It follows that a person who drives without reasonable consideration for other road users can be convicted of driving without due care and attention”.

The test, therefore, is an objective one as held in McCrone v Riding [1938] 1 All ER 157.

In the present case, the following have been considered: • The witness mentioned by the accused could not be traced out.

• CPL Emambocus explained that the nature of the damages indicate that the motorcycle collided against the car. He further added that it is impossible that the nature of the damages indicate that the motorcycle emerged from the white line. • Therefore, it is clear that had the accused been driving prudently, he would not have collided against the car. • Clearly, the accused did not exercise the level of due care and attention expected from him as a reasonable prudent driver.

The accused as he is perfectly entitled, elected to remain mute. 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.’

Accordingly, the Court finds that the Prosecution has proven its case beyond reasonable doubt and accordingly finds the accused guilty as charged.

Mrs Manjula Kumari Boojharut ( A. Senior District Magistrate) Delivered on 28 February 2020