Supreme Court of Mauritius, 29 mai 2020, 2020 ROD 26 – POLICE V HYPOLITE ANGE MICHEL

POLICE V HYPOLITE ANGE MICHEL

2020 ROD 26

Cause Number: – 861/2019

THE COURT OF RODRIGUES

In the matter of: –

POLICE

v.

MICHEL ANGE HYPOLITE

JUDGMENT

Introduction.

1. Accused stands charged with the offence of involuntary and blows by imprudence in breach of section 239(2) of the Criminal Code coupled with section 133 and 52 to the second schedule of the Road Traffic Act. Accused pleaded not guilty to the charge and Accused was represented by Mr. Lamvohee of Counsel at trial.

The case for the prosecution.

2. On 8 May 2018, around 17.50 hours, Kevans Flore (“W10”) was riding his motorcycle on the main road of Le Chou. He came from the direction of Petit Gabriel and proceeded towards Ti Reserve. When he reached Le Chou Multipurpose Training Centre, Accused heard the noise of a vehicle which was downshifting. Accused could not see any vehicle which was coming behind him when he looked in the side mirror of his motorcycle but all

a sudden, he saw an ambulance which was in the middle of the road and which emerged from the right side of the roundabout at the junction where he was. W10 testified that the vehicle was proceeding to the left lane of the main road when proceeding towards Petit Gabriel and despite applying the brakes of his motorcycle, W10 collided on the driver’s side of the ambulance.

3. Jean Hutley Philippe was also called by the prosecution. He testified that on the material day, at 18.00 hours, he was coming from work and was walking from the direction of Saint Gabriel. He testified that he witnessed the accident and said that he saw a motorcycle colliding against an ambulance vehicle which was coming from Soupir. W11 further testified that the ambulance did not stop at the junction and neither did the driver put the flasher of his vehicle.

The case for the defence.

4. Accused deponed as to the truth of his out-of-court statement. In same, Accused stated that he was on duty on the material day and at 17.50 hours, he was driving an ambulance vehicle and was coming back from the airport with some patients. When he reached the junction of Le Chou Multipurpose Training Centre, Accused put his flasher to turn to the right so as to proceed towards Petit Gabriel. Accused gave a hand signal and proceeded to enter on the left lane of the main road to proceed in the direction of Petit Gabriel. All a sudden, Accused saw a motorcycle which was coming at high speed and collided against his ambulance vehicle. Accused stated that he saw the motorcycle coming at high speed from a distance of 30 metres and that the motorcyclist did not take the necessary precautions to stop his motorcycle at the time he emerged. Accused stated that he applied the brakes of his ambulance vehicle to avoid the collision but nevertheless, the motorcycle collided against the ambulance vehicle.

The Law

5. In Mohamed vs R [1988 MR 126] the test regarding the element of recklessness as set out by Lord Diplock in R v Lawrence [1981] ALL ER 974 was found to be in conformity

with the notion of imprudence as it exists in French law. In R v Lawrence [198] 1 A11 ER 974 Lord Diplock stated the following:

“ In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

6. Their Lordships in Mohamed vs R (supra) quoted Traité de Droit Criminel – Droit Pénal Spécial by André Vitu to show the similarity between the notion of imprudence and of recklessness .

7. In Traité de Droit Criminel – Droit Pénal Spécial, (1982 Ed) Tome II at paragraph 1772 2o , it states:

“Autre forme de l'imprévoyance: l'imprudence. L'agent, ici, connaissait la nature et les dangers de son activité, il savait quelles precautions il convenait de prendre, mais il a omis de conformer ses gestes à ce que la situation commandait.”

8. References from Garçon Code Pénal Annoté (Ed 1956) arts 319-320, notes 21 and 25 were also made and same states the followings.

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 provision.

Note 25. L'agent est responsable parce qu'il aurait pu empêcher l'accident de se produire en agissant avec plus de prudence.

9. Hence, from what has been stated above, as regards to the issue of recklessness or imprudence, the guilty act as referred in R v Lawrence (supra) would consists of driving the vehicle in such a manner so as to create an obvious and serious risk of harmful consequences and the mens rea would consists of the driver’s being reckless, that is, he failed to give any thought to there being any possibility of any such risk or, having recognized that there is such a risk, nevertheless went on to do it. (See: S.B Domah, Mauritian Road Traffic Offences- Vol. 1 at p 312, 2 nd paragraph).

Assessments. 10. I have assessed all the evidence on record including the submissions of both counsel. 11. In the present case, it is not in dispute that W10 was injured as a result of the accident. However, the evidence adduced by W10 and by Accused are different as to how the collision occcured. 12. W10 testified that the ambulance vehicle was coming from Soupir and took the right side of the roundabout and all a sudden, he saw the ambulance vehicle emerging on the main road of Le Chou and he could not avoid the collision. 13. As regards to Accused, as per the version which he gave in his statement and to which he swore to its correctness, he stated that he put his flasher when he reached the roundabout at the junction and also gave a hand signal before turning in the direction of Petit Gabriel. He then saw the motorcycle which was coming at a high speed and collided against his vehicle. 14. Now, in the present case, despite that there are two different versions, there is the real evidence, that is the rough sketch plan and the road accident reports. There is also the version of an independent witness, that is W11. 15. As per the version of W11, he testified that Accused was emerging at a slow speed and it is W10 who was riding his motorcycle at a quite high speed. However, he also said that

Accused took the right side of the roundabout, did not put his flasher and neither did he stop at the junction. 16. As per the road accident reports, it is clear that W10 collided against the ambulance and the motorcycle rubbed against the offside panel and stopped at point C, which is near the roundabout just before proceeding towards Soupir. 17. Now, some points were taken by Police Sergeant Stephan and this was to the satisfaction of Accused. To that, there is point B, which is the point where W10 fell down. Hence if this is so, I agree with defence counsel that point X2 cannot be the point of impact as shown by W10 because W10 could not have been projected to a direction different to which the motorcycle continued its way and ended at point C. But, having said that, I also find that the point of impact shown by Accused is inaccurate. This is being said because it would make no sense that W10 would drive on the right lane when he had to proceed towards Ti Reserve. Furthermore, I also find that Accused did take the right lane when he reached the roundabout. This is being said because if Accused did take the left lane when he reached the roundabout at the junction, his ambulance vehicle should have been in a straight position and there would have been no impact but this is not the case in the present matter. 18. I however, after examined the different points on the rough sketch plan, the road accident reports and the version of W11 and I have found that W11 is a witness who gave a most accurate description of the accident. First, I have no doubt that Accused took the right lane at the roundabout when he reached the junction and this is because he wrongly concluded that there would have been no vehicle turning towards Soupir at the roundabout. This is also being said because Accused relied on the premise of not having seen any vehicle coming from the right and from the left prior to reach the junction and the roundabout. This is also why he turned at a slow speed because he wrongly assumed that there was no vehicle coming either on the left or the right on the main road of Le Chou. The version of W11 that Accused did not stop at the junction again makes sense because if Accused did stop at the junction, he obviously should have seen W10 coming on his motorcycle. On the other side, W10 who was coming at a high speed and all a sudden saw the vehicle of Accused emerging from Soupir. W10 turned his motorcycle to

the right and this is why the motorcycle scrubbed against the offside of ambulance vehicle and ended its way at point C. 19. I accept that W10 may have been negligent in riding fast his motorcycle but this itself is not enough or so gross to exculpate Accused (see: Athow v The State [2010 SCJ 88]),. Furthermore, speed of itself does not constitute dangerous or careless driving (see: Cayeux v R [1952 MR 102] ),

20. Furthermore, there is the following oft quoted note from Garçon, Code Pénal Annoté, article 319 has been consistently applied with approval by our Courts on the principle that ‘la faute de l’une ne peut excuser la faute de l’autre’. 21. Hence, in the light of the above, I find that Accused failed to keep a proper look-out when he reached the roundabout at the junction and by so doing he emerged on the main road of Le Chou and the motorcycle of W10 which was coming rather fast collided against the ambulance vehicle whist the vehicle was turning to the right. And as a result of which, W10 was injured.

Conclusion. 22. Therefore, for the reasons set forth above, I find that the prosecution has proved beyond reasonable doubt that Accused was driving imprudently and such driving has caused W10 to be injured. Accordingly, I find Accused guilty as charged.

D.J.A Dangeot Senior District Magistrate Delivered on 29 May 2020.