Supreme Court of Mauritius, 17 mars 2020, 2020 PL3 1 – Police v Farook Goodur

Police v Farook Goodur

2020 PL3 1

CN 1400/2019

THE DISTRICT COURT OF POR LOUIS (MAURITIUS) 3 RD DIVISION

In the matter of: –

Police

v/s

Farook Goodur

JUDGMENT

In an Information lodged against the Accused, the latter stands charged with the offence of using a handheld telephone whilst driving in breach of Regulations 90 and 125 of G.N. 53/2010 under Sections 105 and 190 amended by G.N. 170/2010 coupled with Sections 2, 123AG, 192 and 3 rd Schedule of Act 17/2012 as amended by Act 7/2015 of the Road Traffic Act. The Accused pleaded not guilty to the charge and was not represented by Counsel at the trial.

PC Leopold (“the Constable”) in a gist testified to the effect that on 27.11.16 at 13.10 hours he was on patrol on motorcycle no.: 131 RM 16 along NTR Soreze. He averred that when he was overtaking the vehicle that was driven by the Accused and when he reached the level of the Accused, he noticed that the Accused was holding a mobile phone in his right hand next to his right ear and was having a conversation. He averred that the Accused was driving vehicle no.: 3693 ZP 98.

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The Constable averred that he signalled the Accused to stop and he did so. He averred that he approached the Accused and introduced himself and asked the Accused of his name, address and the latter gave same. He averred that he also asked the Accused to produce his driving licence and the latter did so. He averred that he informed the Accused of the reason why he stopped the latter and informed the Accused of the offence of using a handheld cellular phone whilst driving.

The unsworn statement of the Accused is also on record. He averred that he told the Constable that he did not use his mobile phone. He averred that he told the Constable that he could verify his phone and the Constable told him that he was not allowed to do so.

It was put to the Defence Witness in examination-in-chief if the Accused made any call on 27.11.16 between 12.45 hours and 13.30 hours to which he replied that he had no documents because he had no Judge’s Order.

I have duly considered all the evidence on record.

This Court has no reason whatsoever to doubt the testimony of the Constable and I am of the view that the Constable had no animosity or rancour against the Accused and therefore had no motive to level a false allegation against the Accused. I must also place on record that the testimony of the Constable was fluent and unflappable and I have no hesitation to hold the Constable to be a witness of truth.

Having had the opportunity to see and hear the Constable testifying in court, I have no hesitation in preferring the sworn version of the Constable to the unsworn version of the Accused. Moreover, the testimony of the Constable was not shaken under cross- examination in as much as the Accused chose not to cross-examine the Constable. I must say that the Constable spoke clearly and fluently in court and I find him to have been a reliable and credible witness on whose evidence I can safely act upon.

When I have examined the evidence of the Constable, I have failed to find anything in it from which I can reasonably infer that he was an unreliable witness and/or that his evidence was unsatisfactory.

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I have carefully watched the demeanour of the Constable when he was deponing in the Witness Box. The Constable was precise, straightforward and very calm and he put forward his version with great precision. I have been very impressed by the Constable and I accept his evidence as to the truth and in toto.

The Accused made an unsworn statement from the dock. At this stage I find it apt to quote what was said by the Court of Appeal in the case of Mohamedally v The State [2016] SCJ 218, namely:

“On the issue of the “unsworn statement” of the accused, now appellant, the Court has in a number of pronouncements considered the evidential value and weight to be attached to an unsworn statement. For example, one can refer to the case of DPP v Nepaulsing K [2012 SCJ 490], where the Court has restated the principles applicable to unsworn statement, including considering the case of Andoo v The Queen [1989 MR 241]. As was stated in the Privy Council cases of Starck v R [2000] UKPC 5, [2000] 1 WLR 1270, and Mills and others v R [1995] 3 AII ER 865, [1995] 1 WLR 511, it is now well recognised that an unsworn statement is significantly inferior to oral evidence.”

The Accused did not adduce such evidence as to satisfy me that I should not act on the evidence adduced by the Prosecution.

It is to be noted that in Annia v The State [2006] SCJ 262, it was held that: –

“…where the prosecution adduces evidence which is strong and credible enough to support the charge, it will be open to the trial court to act upon that evidence unless the accused party adduces such evidence as to satisfy the trial court that it should not act on the evidence adduced by the prosecution.”

I am satisfied that the Prosecution has proved its case beyond reasonable doubt and I find the Accused guilty as charged.

Judgment delivered by Neeshal K JUGNAUTH, Acting Senior District Magistrate.

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Judgment delivered on 16 th March 2020.