Supreme Court of Mauritius, 29 avril 2026, 2026 INT 101 – Police v Sewdeen

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Police v Sewdeen

2026 INT 101

Cause No. 316/2021 IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION) In the matter of:- Police v Shoushila Sewdeen Judgment Accused is charged for the offence of “involuntary homicide by imprudence” in breach of section 239(1) of the Criminal Code coupled with sections 52 (Second Schedule) and 133 of the Road Traffic Act (count 1). Accused pleaded not guilty to the count in the information and was represented by Counsel at the trial. The court has duly considered all the evidence on record, together with the submissions of learned counsel for the Prosecution and the defence. The Prosecution produced the following documents: i. Extract of death certificate of deceased which was marked as Document AA; ii. MLR of deceased dated the 17 th March 2018 signed by witness no.1 which was marked as Document AB; and iii. FSL report dated the 24 th January 2019 signed by witness no.2 which was marked as Document AC. Witness no.4, the Police Photographer stated that he took 3 photographs on the 5 th

July 2018 under the instructions of witness no.8 and he produced the photographs which were marked as Documents AF to AF3. He stated that Documents AF2 and AF3 were taken in presence of Accused. In cross examination he confirmed that the photographs were taken under the instructions of witness no.8. Witness no.5, the Police Photographer stated that he took 9 photographs on the 13 th

March 2018 under the instructions of witness no.7 and he produced the photographs which were marked as Documents AG to AG9. Witness no. 13 produced the 2 defence statements he recorded from Accused on the 29 th June 2018 at 1220 hours and on the 5 th July 2018 at 1123 hours and they were

marked as Document AH and AH1. In cross examination, he stated that he informed Accused the lights of the motorcycle were in good working conditions. He stated that in her statement, Accused told him that the lights were not on. He stated that Accused denied the charge. He stated that Accused did not tell her that the motorcycle had knocked against her car near the number plate. She stated that the motorcycle hit against her car near her front tyre. He stated that he based his question on the basis of the vehicle examination. He stated that there were damages on both vehicles. He denied the fact that the questions he put to Accused was based on his opinion. Witness no.7 produced the explanatory statement he put up on the 16 th September 2018 with respect to the 9 photographs taken by witness no.5 and which was marked as Document AJ. Witness no.3 produced the plan he drew after attending the present matter on the 5 th

July 2018 at Royal Road 9eme Milles, whereby under the instructions of witness no.8 and indication of Accused he took notes and measurements. The said plan was marked as Document AK. In cross examination, he stated that the full width of the road was 7.6 metres. He stated that point E is the point of impact shown by Accused. He stated that point E is found on the left hand side lane proceedings towards Port Louis. He stated that the only point of impact is point E as shown by Accused. Witness no.8 produced the defence statement he recorded from Accused on the 22 nd

March 2018 which was marked as Document AH2. He certified to the correctness of the 3 photographs (Document AF1 to AF3 taken by witness no.4. he stated on the 12 th March 2018 at 1340 hours he attended the to the spot of the fatal road accident where a private car bearing registration no. 988 ZT 04 driven by Accused and motorcycle bearing registration no. 1015 AD ridden by deceased were involved. The vehicles were already removed when he reached the spot. He saw road markings. The rider was severely injured and was lying under a veranda of Triolet Popular store which was adjacent to the junction. There was a hostile public and SAMU could not attend in time. He took notes and measurements according to the road markings in absence of Accused and the rider. There was no witness. The road was dry and not under repairs. The road was lighted. Near the veranda, he noticed that the concrete edge was freshly broken and there were debris and there was scratched mark from there to the position of the motorcycle. The motorcycle made scratched mark on the road when it hit the concrete. He proceeded to the spot on the 14 th march 2015 and he did not see any brake marks. He attended the locus two days later as on the 12 th

March it was difficult to see due to the time. The rider was injured and he was transported to hospital and he passed away afterwards. He produced the statements he put up on the 4 th November 2018 to explain the photographs which was marked as Document AL. Witness no.8 stated that the damage is the concrete edge of the veranda which has been damaged by the motorcycle and with the impact, the motorcycle landed at spot C. Point D was the position of vehicle bearing registration no. 988 ZT 04. He stated that the point of impact according to Accused was point E. Point F was the rest position of vehicle no. 988 ZT 04. In cross examination, witness no.8 stated he attended the locus about 15 minutes after the accident. He stated that point F was the rest position of the car after the accident. He confirmed that according to Accused, she tried to move the vehicle onto Maheshwarnagri Road and but he did

not recollect that Accused was unable to park it because of the crowd and this is the reason the car was at point F. he stated that he did not remember whether deceased was wearing a fluorescent jacket. He stated that if he saw it , he would have mentioned it. He did not remember whether deceased was wearing a helmet. He stated that the point of impact according to Accused was point E which is on the left lane proceedings towards Port Louis. The defence did not adduce any evidence as it was entitled to. Section 239(1) of the Criminal Code states that:- Any person who, by skilfulness, imprudence, want of caution, negligence or non- observance of regulations, involuntarily commits homicide shall be punished by imprisonment and by a fine not exceeding 150, 000 rupees. According to Note 8 to E. Garçon, Code Pénal, Tome 2ème, Art. 319-320 at page 113 provides the elements of involuntary homicide as follows:- Les éléments constitutifs des délits prévus par les art. 319 et 320 sont: 1. Un fait matériel d’homicide; 2. Une faute de l’auteur de ce fait matériel; 3. Une relation de cause à effet entre la faute commise et l’homicide ou les blessures. The Prosecution needs to prove all the constitutive elements of the offence beyond reasonable doubts to establish that the Accused was the cause of the involuntary homicide of the deceased (see Lowtun v The State 2005 SCJ 133). Un fait matériel d’homicide et coups et bléssures It is undisputed that deceased passed away after the accident from the injuries he sustained from the road accident . According to the Document AB, the cause of death of deceased is Haemorrhagic shock following fractures of femurs and right leg. Une faute de l’auteur de ce fait matériel At the time of the accident Accused was driving on Royal Road, Triolet and proceeding towards Maheswarnagri Road, Triolet and there was a collision between her vehicle and the deceased who was motoring towards Grand Bay. The Prosecution must establish that the death not only resulted from the accident involving the accused but that the accident involving the accused but that the accident was due to his imprudence. In Leblanc v The State 2001 SCJ 137, the Supreme Court has cited the notion of imprudence being as it exists in French law. Garçon Code Pénal Annoté (Edition 1956) Tome Deuxième. arts 319-320 at notes 21 and 25 as follows: Note 21. La faute constitutive du délit, peut être inconsciente: C'est ce qui se produit lorsque l'agent n'a pas effectivement prévu les conséquences de son acte, qu'il pouvait cependant et devait prévoir. L'imprudence punissable consiste précisément dans ce défaut de prévision.

Note 25. L'imprudence, la négligence et l'inattention sont des fautes de même nature, qui échappent à toute définition précise. Ces expressions, très compréhensives, embrassent toutes les fautes que leur auteur pouvait éviter avec plus de prévoyance, de soins, de diligence. L'agent est responsable parce qu'il aurait pu empêcher l'accident de se produire en agissant avec plus de prudence. In cases of imprudence, the Supreme Court has in numerous occasions explained that the issue to be resolved is whether the driver has departed from the standard of a reasonable prudent driver in the particular circumstances in which the road accident occurred. In Chaddee v The State 2011 SCJ 149 the Supreme Court held as follows: “On a charge of imprudence, the focus should not be on the choice of versions between that of the prosecution and the defence but whether objectively speaking the driver in question may be stated to have driven his motor vehicle with the standard required in the given conditions of light, weather, time and traffic as revealed generally by the particular facts and circumstances of the case of which the trial court is the sovereign judge. The test is an objective one as decided in McCrone v Riding [1938] 1 All ER 157. What the prosecution has to prove is “that the defendant has departed from the standard of a reasonable, prudent and competent driver in all the circumstances of the case (see also Walker v Talhurst [1976] 1 RTR 513; R v Lawrence 1981 RTR 217; Marot v R [1990 SCJ 17]; Ramloll v R [1990 SCJ 237]; Affoque v State [2005 SCJ 108]”.(emphasis added) The more so as stated in Khoobloll v The State 2021 SCJ 108 the Supreme Court stated that “ As is wont in such cases, it is the totality of the circumstances which need to be looked at and assessed”. The court notes from Document AM, the damages sustained on the vehicle 988 ZT 04 show that the front nearside corner of the vehicle was damage i.e. the front bumper at near side corner was damaged, the nearside headlight was damaged, the front nearside tender was dented and the bonnet was dented at near side part. The extent of the damages can also be grasped by looking at Document AG3 and AG4. The only version of the accident is that of Accused in her out of court statements. From her out of court statements (see Documents AH and AH1) given some 3 and 4 months after the accident occurred as initially, she was not in a position to give one (see Document AH3), the statements were not given contemporaneously. The more so, the court notes that the reconstruction exercise in Accused presence was conducted some 4 months after the occurrence of the accident. Accused stated in Document AH that on the 12 th March 2018 at about 2250 hours she was proceeding along Royal Road Triolet and was proceeding onto Maheswarnagri Road, she reduced her speed from 40 km/h, she put her right flasher and she stopped her car completely. There was an oncoming car on the opposite direction, she waited for the car to pass, she verified if the road was clear and as there was no oncoming vehicle, she turned her steering wheel to her right, she stated that her vehicle was still stationary and she heard an engine noise and when she looked towards Solitude she saw a motorcycle coming at full speed and hit her car near her front wheel. She then

moved her car forward as her car was in the middle of the road. She was not able to park her car as there was a crowd in front of her car. She also stated that the deceased was not wearing his fluorescent jacket and she could not say whether he was in possession of his helmet. The court notes that there are no damages on the front of the motorcycle (See Document AM). The damages noted on the motorcycle are on the rear part of it, indicating that the front nearside of the car driven by Accused hit against the middle rear part of the motorcycle. This can be seen on Document AG3, where the damages seen at the nearside bumper and headlight of the car and Document AG where damages can be seen at the rear part of the motorcycle . Also Accused stated that the headlight of the motorcycle was not on, however it is noted from Document AM, that the headlight was in good condition. Had the motorcycle hit the car, the damages would have been noted at the frontal part of the motorcycle and not at the middle and rear parts. This court does not believe her out of court version that it was the motorcycle which hit against her car but it is the contrary that is it was the car which hit the motorcycle. Otherwise if would be the frontal part of the motorcycle which would be damaged given the frontal impact on the nearside part of the car driven by Accused. The court finds that given the facts and circumstances of the present matter, Accused departed from the standard of a reasonable, prudent and competent driver by turning to her right on Maheswargri Road from Royal Road Triolet without taking heed of the opposite traffic i.e. the motorcycle which has priority upon her. In Sham v The Queen 1982 MR 224, the Supreme Court quoting note 50 of Garcon wrote: 7 “Il ne faudrait pourtant pas croire que la faute de la victim soit indifferente; le juge doit encore rechercher si elle existe et la defense peut la plaider. Il est evident, en effet, qu’aucune condemnation ne pourrait plus etre prononcee s’il etait etabli que l’imprudence de la victim a été si grossiere qu’elle fait disparaitre, en realite, toute faute de la part de l’auteur materiel de l’homicide et, d’autre part, tout le monde reconnait que, dans les cas ou l’imprudence de la victime laisse subsister la responsabilite du tiers, elle peut au moins justifier une large attenuation de la peine et des dommages et interêts. In Ramburn v The State 2013 SCJ 472, it was held by the Supreme Court that “Besides, for the “faute” of the victim of an accident to completely excuse the “faute” of the driver the victim’s “faute” must have been exclusive and unpredictable – vide note 56, Garçon Code Pénal Annoté, Art 319. It is clear and undisputed from the evidence on record that the victim was proceeding on the main road and his riding was predictable. Accused on turning her vehicle onto the minor road without paying heed to the opposite oncoming vehicle was imprudent. The more so, there is no evidence on record to show that deceased committed an act that was so grossière quelle fait disparaîre en realité toute faute de la part de l’auteur de la victime”. The more so, if the court was to believe Accused that the deceased was not wearing his fluorescent jacket or the headlamp of the motorcycle was not on, the court finds that the imprudence of the victim would not so be “grossiere qu’elle fait disparaitre, en realite, toute faute de la part de l’auteur materiel de l’homicide ” as a reaonable and prudent driver would havetaken all the necessary precautions before

proceeding on the opposite lane given as stated by witness no.8 that the road was lighted.

In light of the above, the court finds that the Prosecution has proved its case beyond reasonable doubts against Accused with respect to count of the Information. Accused is found guilty as charged under the count of the Information.

Yorgesh Bhookhun Magistrate, Intermediate Court (Criminal Division), This 29 th April 2026