Supreme Court of Mauritius, 30 juin 2020, 2020 PL2 38 – POLICE v SEENARAIN

POLICE v SEENARAIN

2020 PL2 38

POLICE v SEENARAIN

CN: 6922/19 THE DISTRICT COURT OF PORT LOUIS (Division II)

In the matter of:-

Police

v.

Soobhir Dutt SEENARAIN

JUDGMENT

Accused is prosecuted for the offence of using hand-held telephone whilst driving in breach of Regulations 90 and 125 of GN 53/2010 and Section 123AG of the Road Traffic Act as amended by Act 7/15.

The offence was allegedly committed on 27 May 2016 at NTR at Roche Bois.

Accused pleaded not guilty and was not represented by Counsel.

The case for Prosecution rests on the testimony of Witness no. 2, PC 1720 Ramtohul, posted at Traffic Branch. Witness no. 2 testified under solemn affirmation that on the material date, when he was overtaking Accused who was driving the vehicle 6954 SP 14 in the direction of Quay D, he noticed that Accused was engaged in a phone conversation and that he was holding his mobile phone with his left hand next to his right ear. Witness no. 2 further stated that he requested Accused to stop, and when the latter stopped, he was informed that he committed an offence by using his mobile phone while driving. Witness no. 2 identified Accused in Court as being the driver. Witness no. 2 also stated that Accused requested for a chance as it was an important call. During cross-examination, Witness no. 2 was consistent with his answers.

Accused was informed in Creole of his Constitutional rights to remain silent, to make a statement from the dock or to give evidence under oath. Accused testified under solemn affirmation. He denied having used a hand-held telephone while driving, and denied that Witness no. 2 took him a contravention. He

further stated that a certificate from the service provider was not adduced by Prosecution to show that he was using his phone.

According to Regulation 90 of the Road Traffic (Construction and Use of Vehicles) Regulations 2010 GN No. 53 of 2010, no person shall, while driving a motor vehicle, use a hand-held or a hand-free microphone or telephone handset to answer or make a call no matter how urgent the call is.

In the present matter, Witness no. 2 deposed in a straightforward manner that he saw Accused using his mobile phone while driving the vehicle 6954 SP 14. During cross-examination, Accused admitted that he was driving the vehicle 6954 SP 14 and was stopped by a police officer on the material date but cannot remember if it was Witness no. 2 since the police officer was wearing a helmet. He further stated that he only gave his name to the police officer as it was raining.

It is well-settled that once a prima facie case has been clearly established, the evidential burden shifts on Accused to satisfy the Court that it should not act on the evidence adduced by Prosecution. Here, Accused failed to do so. As regards the contention of Accused about the fact that Prosecution did not adduce a certificate from the service provider showing that he was using his phone, the Court is of the view that Accused is in a better position to have access to these information and could have retrieved the necessary call log to produce in Court to challenge the evidence adduced by Prosecution. In addition, there is nothing on record to suggest that Witness no. 2 has any motive to level a false charge against Accused.

After having heard the testimony of Accused, the testimony of Witness no. 2 and their demeanour, the Court finds that Prosecution has proved its case beyond reasonable doubt, and accordingly, finds Accused guilty as charged.

Z Cassamally (Dr) Ag. District Magistrate 30.06.2020