Supreme Court of Mauritius, 30 janvier 2020, 2020 INT 28 – POLICE v ROSHAN CHEENEEBANS

Page 1 of 17

POLICE v ROSHAN CHEENEEBANS

2020 INT 28

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number: 1083/2014

In the matter of:

POLICE v ROSHAN CHEENEEBANS

Judgment

1. Factual Background 1.1 The present matter arises out of a fatal road accident which occurred along Royal Road, St Aubin Union, following a collision between goods vehicle bearing registration number 2006 SP 92 which was being driven by Mr. Roshan Cheeneebans (the accused), a man in his early thirties, and motorcycle bearing registration number 7459 W which was being ridden by late Mr. Angelito Roberto Rico Antoinette (the deceased), a young man of 24, on Sunday 12 August 2012 between 17 30 hrs and 18 00 hrs. As a result of the accident, the deceased suffered craniocerebral injuries and he died on the spot.

1.2 The accused immediately left the scene of the accident following the collision without giving any assistance to the deceased and his pillion rider who was also injured and the matter was not reported to the police within the prescribed delay. He was, furthermore, whilst being the holder of a provisional licence, driving the goods vehicle, alone, without being under the supervision of a competent driver.

1.3 The prosecution evidence is essentially found in the real evidence, the testimony of the pillion rider and that of an independent eye witness, and the out of court statements of the accused to the police, which substantially reveal the following:

Page 2 of 17

1.3.1. On the fateful evening, the accused was proceeding on the left side of the road in the direction of Rivière des Anguilles and he intended to turn to the right into a side road leading to St Aubin Sugar Estate. The motorcycle, was, for its part, coming from the opposite direction along the same stretch of road. The accused was in the process of turning into the side road; he had already reached the middle of the lane along which the motorcycle was being ridden; it appears that the deceased, was unable to pull up in time; and he ran into the front nearside door of the goods vehicle. The deceased fell about 90 cms away from his motorcycle along the lane it was being ridden and the pillion rider was projected 4 m 50 away on the other side of the road. The motorcycle caught fire following the accident and it was partly burnt.

1.4. The accused claims to have taken all necessary precautions before turning, and pleads not guilty to a charge of involuntary homicide by imprudence, in breach of Section 239 (1) of the Criminal Code and Sections 52 and 133 of the Road Traffic Act, under Count 1 of the information. He however admits having failed to report the accident and being in breach of the conditions of his provisional licence and has pleaded guilty to Counts 2 and 3 of the information before the close of the case for the Defence.

1.5. The accused was assisted by Counsel at the trial and the case for the prosecution was conducted by Prosecuting Counsel.

2. The Law A. Involuntary Homicide by Imprudence 2.1. Section 239 (1) of our Criminal Code is not only largely inspired by Article 319 of the French Penal Code but is also couched in similar terms as that of its French counterpart.

« Quiconque, par maladresse, imprudence, inattention, négligence ou inobservation des règlements aura commis involontairement un homicide, ou en aura été involontairement la cause, sera puni…. »

Page 3 of 17

2.2. The three constitutive elements of the offence are 1 : (a) Un fait matériel d’homicide ; (b) Une faute de l’auteur de ce fait matériel ; and (c) Une relation de cause à effet entre la faute commise et l’homicide.

2.3. As far as the first element of the offence is concerned, « il faut qu’une personne ait été effectivement tuée. »

2.4. The second element of the offence : « La faute est l’élément caractéristique des délits des art.319 et 320. Si elle manque, l’’homicide et les blessures sont casuels et cessent d’être pénalement imputables à celui qui les a causés. »

2.4.1. « 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. »

2.5. The third element of the offence is the causal link between « la faute commise » and « le mal réalisé ».

2.5.1. « ….Il importe peu que le juge du fait laisse incertaine la manière dont l’accident s’est produit des lors qu’il résulte de ses constatations qu’il n’a pu se produire que de deux manières, dont l’une et l’autre entraineraient le décès de la victime par la faute du prévenu : la relation de cause à effet est alors certaine…. »

2.5.2. « ….il suffit qu’on ait causé un accident par une des fautes dans les art.319 et 320 pour en être responsable…. »

1 Garçon Code Pénal Annoté, Art 319, Note 8 2 Garçon Code Pénal Annoté, Art 319, Note 9 3 Garçon Code Pénal Annoté, Art 319, Note 12 4 Garçon Code Pénal Annoté, Art 319, Note 25 5 Garçon Code Pénal Annoté, Art 319, Note 36 6 Ibid.

Page 4 of 17

2.5.3. « …l’homicide et les coups et blessures ont souvent pour cause, non pas la faute d’un seul, mais des fautes multiples commises par plusieurs personnes…. L’imprudence ou la négligence de l’une ne saurait justifier l’imprudence ou la négligence de l’autre. »

B. Failing to report accident 2.6. The relevant part of Section 140 of the Road Traffic Act reads as follows:

“Duty of driver in case of accident

(1) Where owing to the presence of a motor vehicle on a road, an accident occurs whereby damage or injury is caused to any person, vehicle, structure or animal, the driver of the motor vehicle shall – (a) …………; (b) ………….; (c) if required to do so by any person having reasonable grounds for so requiring, give – (i) his name and address; (ii) the name and address of the owner of the vehicle driven by him; and (iii) the registration mark of the motor vehicle; (d) if he has not already furnished the information referred to in paragraph (c) to a police officer at the scene of the accident, and unless he is incapable of doing so by reason of injuries sustained by him in the accident, report the accident at the nearest police station or to a police officer, as soon as is reasonably practicable, and in any case within 4 hours after the occurrence of such accident and there produce his driving licence and furnish such other information as may be required of him; (e) ……. (2) …….. (3) ………

7 Garçon Code Pénal Annoté, Art 319, Notes 40 and 47

Page 5 of 17

(4) ………. (5) If any person fails to comply with any of the provisions of this section, he shall commit an offence and shall, on conviction, be liable to a fine not exceeding Rs 5,000 and to imprisonment for a term not exceeding 6 months. (6) …………. (7) In any prosecution for a contravention of any provision of this section, it shall be presumed, until the contrary is proved, that the accused was aware of the fact that the accident had occurred, and that he did not report the accident or furnish the information as required by subsection (1)(d) or (e). (8) ………………. ”

2.6.1. The onus of reporting the accident is on the driver.

C. Breach of Condition attached to a Provisional Licence (No competent driver) 2.7. Section 44(2)(b) of the Road Traffic Act is the offence section providing for the failure of the holder of a provisional licence to comply with any of the conditions subject to which such licence was granted.

2.7.1. Under Section 163(1)(b) of the Road Traffic Act, the penalty provided for such an offence is a a fine not exceeding 10, 000 rupees and to imprisonment for a term not exceeding 12 months.

2.7.2. Regulation 55(1)(a) of the Road Traffic Regulations 1954 for its part provides for parameters and one of the conditions under which the holder of a provisional licence may use a motor vehicle on a public road, namely, that the holder of such licence shall not use a vehicle adapted to carry more than one person, on a road, without being under the supervision of a person who had been the holder of a driving licence, other than a provisional licence, for at least two years, and such person being present with the holder of such provisional licence in the vehicle.

Page 6 of 17

3. Analysis 3.1. I have duly considered the submissions of learned counsel for both parties, including all the relevant principles that have emerged from the authorities that have been placed before this Court. Un fait matériel d’homicide 3.2. It is undisputed that the victim rider of the motorcycle has passed away following injuries he had sustained in the present road accident.

Une faute de l’auteur de ce fait matériel 3.3. The circumstances leading to the collision as set out at paragraph 1.3.1 above are not seriously disputed.

3.3.1. It is essentially submitted on behalf of the defence that the accused had taken all the necessary precautions expected of a prudent driver by putting on his flasher indicating his intention to turn to the right; checking his rear view mirrors to ascertain that the road behind was clear; and ensuring that there was no oncoming vehicle, before starting to manoeuvre to turn to the right. The accused was, in the circumstances, not imprudent when he proceeded to cross the main road to turn into the side road in the manner he did; and the deceased is solely to be blamed for the accident and for the injuries he had sustained as a result because he was speeding.

3.4. The duty of a driver intending to turn to his right along a two-way traffic road is to take reasonable precautions as to oncoming traffic and to take due care to avoid colliding with it or endangering it and this includes depending on the circumstances, keeping a repeated observation of the road ahead.

3.4.1. On the other hand, it is settled law that the right of precedence granted to the driver on the main road is not absolute but is subject to ordinary rules of prudence which require that any driver should be on the look-out for danger from other persons’ errors.

Page 7 of 17

3.5. Now, who is to be blamed for the accident will depend on whether the drivers had abided by the required duty of care imposed on each of them before and after having noticed the presence of the other’s vehicle on the road, in the given conditions of the road and light at the material place.

3.5.1. Indeed, ‘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 have 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.”

3.5.2. In that respect, certain shortcomings have been noted in the version of (a) the pillion rider when assessing the degree of her field of vision of the road ahead given that she was wearing an integral helmet at the material time and her assessment of the speed the motorcycle was being ridden and (b) the independent bystander as to the extent he has witnessed the collision bearing in mind that he was reversing his car at the material time, he noticed the presence of the two vehicles on the road, and then he heard a noise and saw ‘boule difé’ and his opinion as to the speed at which the motorcycle was being ridden.

3.5.3. This being said, their testimony on the material facts of the case, including the direction in which the respective vehicles were being driven; the manoeuvres of the goods vehicle at the material time; the point of impact; and the position of the vehicles and the persons injured after the accident, have not been seriously challenged and are in line with the out of court version of the accused given to the police on the day after the accident.

8 Chadee v The State [2011 SCJ 149]

Page 8 of 17

3.5.4. The circumstances of the accident as narrated by the accused and partly witnessed by an independent bystander suggest one of the following possibilities, namely:

(a) The accused had failed to keep a proper look out and was reckless when he suddenly turned into the path of the oncoming motorcycle and he is solely to be blamed for the collision, as is arguably the case for the prosecution; or

(b) The accused could not have reasonably noticed the motorcycle when he turned despite having taken all necessary precautions and the rider is solely to be blamed as he was coming too fast in the circumstances, as contended by the defence; or

(c) Both drivers are to be blamed for the accident because:

(i) The accused was reckless when he turned at a time and a spot where the visibility of vehicles over a long stretch was allegedly reduced without making sure that the road was clear and it was safe for him to proceed; and

(ii) the rider could not avoid a collision because he was coming too fast in the circumstances.

3.6. The plausibility of the above options will depend on the visibility and topography of the road at the material place, the spot the accused stated he was when he saw the motorcycle for the first time, the distance over which the goods vehicle had encroached onto the lane along which the motorcycle was being ridden, the point of impact shown and the position of the vehicles after the accident, and the speed at which the motorcycle was being ridden.

3.6.1. It is common ground that at the material time the road was dry and not under repair. The exact time of the accident and the visibility of the road is not clearly situated by the different persons who were on the spot at the

Page 9 of 17

material time and such evidence suggest that the accident occurred sometime between 17 30 hrs and 18 00 hrs. Whilst the pillion rider and the police officer who first attended the spot after the accident suggest that it was still daylight, the accused stated that it was ‘sombre’ (sic).

3.6.1.1. This being said, (a) the unchallenged testimony of the police medical officer who performed the autopsy of the deceased rider, indicates that death of the latter had been literally instantaneous in view of the type of injuries sustained and the presence of soot in the trachea and nose and (b) the time of death as per the certified extract of death entry is 18 00 hrs. Hence, it can be safely concluded that the accident occurred around that time and not some thirty minutes earlier.

3.6.1.2. The accident having occurred during the late afternoon of August, I take judicial notice of the fact that the sun sets around 17 50 hrs to 18 00 hrs during that period of the year; hence, it was dusky albeit not yet night nor pitch dark rather than still daylight.

3.6.2. The photographs of the locus show that the visibility of the road from both directions is clear over a reasonable distance to allow any vehicle coming from either direction to be sufficiently visible to the other. The evidence on record also indicates that there was a clear view of about 200-300 metres ahead when facing Rivière des Anguilles (direction towards which the accused was proceeding) and the view when proceeding towards Souillac (the opposite direction) extended to about 100 metres.

3.6.2.1. On that score, the accused has stated that although the visibility of oncoming vehicles along the stretch of the road he was driving extended to 200-300 metres, he could not see beyond 100 metres ahead as it was ‘sombre’ (sic) and the headlights of the goods vehicle were off as it was not 18 00 hrs yet.

Page 10 of 17

3.6.3. It is undisputed that the accused had not seen the motorcycle until before the collision whereas the pillion rider had noticed the presence of the goods vehicle about 62 metres ahead.

3.6.4. The out of court version of the accused given to the police the day following the accident and the common point of impact shown by (a) the pillion rider nine months later and (b) the independent witness on the day after the accident, indicate that the collision occurred nearly in the middle of the lane along which the motorcycle was being ridden. Such point of impact is situated opposite the entrance to the sugar mill which appears to be divided into two by an undefined geometric shape on the rough sketch and shown as a concrete island on the photographs taken.

3.6.4.1. However, the point of impact which the accused had indicated to the draughtsman, in presence of his counsel, three days after the accident, and as pictured on the rough sketch, illustrates that the lorry had nearly reached the entrance of the sugar mill when the collision occurred and suggests that the motorcycle was being ridden on the extreme left border of the road.

3.6.4.2. The police officer who had attended the spot shortly after the accident had noticed the presence of debris and blood near the body of the deceased. No debris have however been located on the plan. The enquiring officer under whose instructions the plan was drawn up could not satisfactorily explain the absence on the plan of the pool of blood allegedly seen on the spot and the draughtsman was not asked to explain why no debris and/or blood were shown on the plan.

3.6.4.3. Save and except for one point mentioned in the reference table but not illustrated on the rough sketch which was explained away as an omission and the absence of the indication of any debris, none of the points shown on the plan were challenged. After having duly considered and compared the photographs produced which pictorially reflect the spots referred to on the plan, I am satisfied that,

Page 11 of 17

on the whole, the plan can be safely relied upon; it shows things and points existing at the material time as real evidence and not things or points which have been surmised by the maker; and the omission on the part of the draughtsman does not materially and adversely affect the veracity of and the weight to be attached to such document as far the position of the motorcycle and the body of the deceased after the accident and the different points of impact shown. 3.6.4.4. The unchallenged position of the motorcycle and the body of the deceased after the accident are found (a) nearly in the middle of the road along the lane the collision took place and (b) in between the point of impact shown by the witnesses for the prosecution and that of the accused on the rough sketch; in other words, in front of the common point of impact shown by the independent eyewitness and pillion rider but behind the one shown by the accused.

3.6.4.5. After having duly considered all the relevant points indicated by the different protagonists and reproduced on the rough sketch and bearing in mind their testimony on what they had actually seen as considered at paragraphs 3.5.2 and 3.5.3 above, I have not been impressed by the belated point of impact shown by the accused. I say so because:

(a) The manoeuvres of the goods vehicle at the material time coupled with the damage noted thereon at its front nearside, suggest that it should have been in an oblique and/or perpendicular position across the lane along which the collision occurred. Now, if the point of impact shown by the accused were to be relied upon as the correct one, it would suggest the unlikely event which is not supported by either the accused, the pillion rider, or the bystander, that both the motorcycle and the deceased have been projected and flown over the body of the goods vehicle to finish their course on the other side of the said vehicle.

Page 12 of 17

(b) The inconsistency between the out of court version of the accused in his defence statement and his out of court indications during the reconstruction exercise was not explained away.

3.6.4.6. I therefore prefer the point of impact shown by the witnesses for the prosecution, which is consistent with the initial version of the accused to the police, and which is more consonant with the position of the motorcycle and the body of the deceased after the collision, as reflecting the true and correct spot where the accident occurred.

3.6.4.7. In any event, even if the accused were to be believed on that score, it would suggest that he had positioned his vehicle in such a manner that the motorcycle was left with no space to manoeuvre and avoid a collision.

3.7. The accused has, in my view, given himself away when, in his out of court statement given at the first reasonable opportunity, he said that at no point in time had he seen the motorcycle approaching when he proceeded to turn and had encroached halfway along the lane the motorcycle was being lawfully ridden. The motorcycle could not have suddenly come from nowhere. The inherent danger when turning in the manner he did whilst (a) his view of oncoming vehicles was allegedly reduced beyond 100 m and (b) he had chosen not to switch on the headlights despite being dusky, required the accused not to turn and complete the crossing, until, he had not only ensured that he could still have a good view of potential road users in the given conditions of light without switching on the headlights but that he had put himself in a position where he could be satisfied that no vehicle was about to pass any part of the area which he needed to cross. Such is not a guidance of perfection; it is a regular feature of life at the wheel for everyone willing to take reasonable care for his own safety and that of other road users.

3.8. I furthermore fail to see why the deceased would have, for no apparent reason, blindly proceeded into the path of a vehicle in the process of turning.

Page 13 of 17

Une relation de cause à effet entre la faute commise et l’homicide What did the deceased do wrong? 3.9. In the light of the tenor of the evidence of the accused, the pillion rider, and the independent bystander, the reason the deceased had failed to avoid the collision is left to the appreciation of the Court. Had he really been speeding as contended by the defence?

3.10. It is a common feature of accidents that the victim, has by his own “faute” contributed to their occurrence and the latter would not necessarily go unpunished for his own imprudence. Hence, the oft quoted passage from the Learned French authors which has been consistently applied with approval by our Courts « Il ne faudrait pourtant pas croire que la faute de la victime soit indifférente; le juge doit encore rechercher si elle existe et la défense peut la plaider.. »

3.11. There are however two important caveats to this well-established principle to exonerate the author of the imprudence of all liability, namely, « l’imprudence de la victime a été si grossière qu’elle fait disparaitre, en réalité, toute faute de la part de l’auteur matériel de l’homicide» and « mais il n’en est ainsi, selon les arrêts les plus récents, que lorsque la faute de la victime peut être considérée à la fois comme exclusive et comme imprévisible. »”

3.12. With those well settled principles in mind, I will proceed to consider whether there was any “faute” which the defence submits is attributable to the deceased; and in the affirmative, whether it falls within the ambit of the qualifications required so that it may absolve the accused of any liability.

3.13. Of note, what amounts to a “faute” so gross on the part of the victim, is neither defined nor is there an exhaustive list of the same. Notwithstanding that each case will turn out on its own set of facts and circumstances, to my

9 Garçon Code Pénal Annoté, Art 319, Note 50 referred to in Sham v The Queen [1982 SCJ 224] 10 Garçon Code Pénal Annoté, Art 319, Note 56 referred to in Ramburn v The State [2013 SCJ 472]

Page 14 of 17

mind, besides the requirement of exclusivity and unpredictability, the degree of blameworthiness which can be imputed to the victim in such situations, cannot be negligible but must be significant and to such an extent as to fall at the higher end on the scale of liability. In other words, in the absence of such “faute”, the accident would, most probably, not have occurred.

3.14. The violence of the impact and the absence of any brake marks consistent with the fact that the rider had not and/or had no time to apply his brakes coupled with the nature of the injuries sustained by the rider, the unchallenged opinion of the motor vehicle examiner and the police medical officer who performed the autopsy, suggest that the motorcycle was being ridden at some speed.

3.14.1. Now, it is trite law that speed of itself does not constitute dangerous or careless driving 11 .

3.14.2. No evidence was led as to the speed limit along the material stretch of the road; both vehicles were in motion when the pillion rider had first noticed the presence of the goods vehicle some 62 metres away; and the collision occurred after the goods vehicle had covered about 22 metres.

3.14.3. In the absence of any evidence (a) as to the spot where the motorcycle had reached when the goods vehicle turned into its path, (b) that the position of the goods vehicle on the road was such that it was clearly apparent to any competent driver that it was about to turn, and (c) as to the speed limit along that stretch of the road, a finding that the deceased was travelling at a much higher speed and faster than caution demanded and/or that he had not modified his speed to take into account the potential danger represented by the goods vehicle would, in the circumstances, be unwarranted.

3.15. At any rate, for the sake of completeness, imprudence, as alleged and/or if any, which could at most be imputed to the rider, for having either ridden at

11 Cayeux v R [1952 MR 102]

Page 15 of 17

an excessive speed or failed to ease up and take his hand off the accelerator, hence avoiding a collision, would not absolve the accused of any liability and/or of the duty to be on the look- out for danger from other persons’ errors and it cannot relieve the accused of whatever degree of prudence he should exercise towards other users when turning and cutting across the portion of the road used by oncoming vehicles. The present matter being a criminal one, the issue to be decided remains whether the manner and standard of driving of the accused fell below that of a reasonable, competent, and prudent driver. I say so for the following reasons.

3.15.1. « L’imprudence de la victime ne saurait, spécialement en matière d’excès de vitesse, exonérer l’auteur de l’accident de sa responsabilité pénale ou civile… »

3.15.2. Furthermore, it can neither be said that any such imprudence on the part of the motorcyclist would have been so gross as to absolve the accused of any liability nor that the victim’s “faute” was exclusive and unpredictable in the circumstances of the present case.

3.15.3. The principal cause of the accident remains in the manner the accused had turned and obstructed the free flow of vehicular traffic along the lane his vehicle had encroached onto.

3.15.4. All this being said, for the reasons given earlier, such imprudence on the part of the rider has however not been established.

4. Conclusion Count 1 Involuntary Homicide by Imprudence 4.1. For all the reasons given under the relevant headings relating to the constitutive elements of offence under Count 1, I find proved beyond reasonable doubt that:

12 Garçon Code Pénal Annoté, Art 319, Note 205

Page 16 of 17

(a) The rider of the motorcycle has passed away.

(b) The accused has departed from the standard of a prudent, competent, and reasonable driver given that he did not do everything that prudence required of him when he decided to turn into the side road in the path of the motorcycle. Had he demonstrated a high degree of circumspection and kept a proper look, he ought to have noticed the presence of motorcycle and/or would not have turned into its path and obstructed its free passage to the extent and in the manner he did.

(c) The imprudence imputed to the accused has caused the victim to sustain injuries which led to his death as per the medico-legal report produced.

4.2. I accordingly find the accused guilty as charged under Count 1.

Counts 2 and 3 Failing to Report Accident and Breach of Condition attached to a Provisional Driving Licence (No competent driver) 4.3. On the own admissions of the accused in his out of court statement to the police which has remained voluntary, direct, and positive coupled with his unequivocal guilty plea under Counts 2 and 3 of the information, I find all the constitutive elements of the offences charged under Counts 2 and 3 proved beyond reasonable doubt.

4.4. I accordingly find the accused guilty as charged under Counts 2 and 3.

A.HAMUTH (Miss)

[Delivered by: A.HAMUTH (Miss), Magistrate Intermediate Court] [Delivered on: 30 January 2020]

Page 17 of 17