"ORT LOUIS (DIVISION tt cn 1210/17 POLICE NADARAJEN SIVARAMEN VERDICT Pursuant to an information lodged on 1 March 2017, accused is being prosecuted for, Failing to provide a specimen of breath for a breath test, contrary to section 123G(a)(1)(b) & (bMii) read with section 52 to 3 Schedule as amended by Act 23/2016 of the Road Traffic Act, under count |, Failing to keep vehicle stationary as long as required by a police officer, contrary to sections 134(2)(a)(i)(b) & 163(2)(a}(ii)(>) of the Road Traffic Act, under count Il, and Driving motor vehicle with alcohol concentration above prescribed limit, contrary to sections 123F(1)(a),(3),(5) and 123H(5),(6)(a) and 52 to schedule, as amended by schedule of Act 23/2016 of the Road Traffic Act, under count Ill He pleaded not guilty to all three charges on 16 March 2017 and was represented by Me N Proag at the trial heard on 10 May 2018, Prosecution represented by Ps Mungra, examined three witnesses to prove its case against the accused, namely CPL Groodoyal, Pc Noyan and CPL Rogbeer. The defence also examined 2 witnesses to rebut the allegations of the Prosecution, namely accused himself together with Mr Sooresh Moorlah. on 14 January 2017 at 8 45 am, Pc Noyan was performing lexpress. 1) 8] Bepiih OL Rogbecr at he level o oye Colege of Prt Lu, je point, CPL Rogbeer pointed the Lidar Stalker 101745 at car bearing registration number 6160SP13 and got a reading of 77 km/h, He immediately informed PcNoyan of same and gave hin instructions to stop that said vehicle. Pe Noyan stopped the said vehicle and informed the driver of the breach committed. The driver, who was duly identified as the accused in Court, opted for a Fixed Penalty, while complaining that it was the fifth time that Police was booking him for the same offence at the same spot. Accused then produced his National identity Card and his driving licence. While talking to the accused, Pc Noyan smelled alcohol on his breath. He then invited accused lor a breath test but accused refused. Accused was informed that ‘refusal may be liable for prosecution’. Accused had his baby in the passenger seat and while talking to Pe Noyan, he took the baby in his arms. At some point, accused sought permission to put the baby back in the car. As he was doing so, he simply left the scene, leaving behind all documents, that is, the NIC, the driving licence and the original copy of the Fixed Penalty Notice. Pc Noyan then reported the incident at Metro South Traffic Branch later that day and remitted all documents to Cl Mattur. The case for the defence is that on 14 January 2017, accused was stopped by Pc Noyan at the level it’, As he agreed to the breach, of Royal College of Port Louis, for the offence of ‘Exceeding Speed he opted to take a Fixed Penalty and remitted his driving licence and NIC to the officer. He however expressed his discontent for being contravened for the fifth time at the same spot and for the same offence as a result of the speed zone being wrongly displayed as being a speed zone of 80 km/h when it was in fact a 60 km/h speed zone. He hence felt that he was entrapped unfairly. There were about 5 or 6 police officers present at the locus and as Pc Noyan was taking his particulars, he got ‘out of the car and took a few pictures of the locus along with the police officers who were standing next to the sign post of 80 km/h, so as to bring same to the attention of the public, as a journalist. As he took the pictures, the police officers present there all got angry and started threating accused to falsely implicate him in a case of ‘Drink-driving’. His child who was at the rear seat, started crying. He immediately took the child in his arms. Following the booing of the officers present there, Pc Noyan informed him that he intended to perform a breath test with him. He agreed but Police did not have the apparatus. He then told the police officers that he was dropping off his child and immediately coming back to perform the test and asked them to keep all his documents as proof of his promise left and made arrangements with Mr Sooresh Moorlah, to e officers, whose pictures he had taken earlier. He then met with Cl Mattur and submitted himself to perform the breath test. The latter retorted that there was no need for same. Accused insisted but Cl Mattur resolutely refused. Ci Mattur then returned accused all his documents he had left behind with Pc Noyan while commenting, “laisse zot, bannejeune sa, zot overreact’. The pictures were produced in court as Doc A, Al & A2. It was also adduced in evidence that the fine had been settled. Ihave x-rayed the evidence presented before me. Now, when dealing with a criminal trial, the Court has the task of ascertaining the truth from the material before it. Burden of proof is on the Prosecution and the Prosecution has to establish its case beyond reasonable doubt. It has also been reminded in several judgements that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt, vide Miller v. Minister of Pensions (1947) 2 ALL E.R. 372. The cherished principles or golden thread of proof beyond reasonable doubt should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to accused at the end of the criminal trial. Doubt must be actual and substantial doubt as to the guilt of the accused. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer, is a false dilemma. Only reasonable doubts belong to the accused. Else any practical system of justice will break down and lose credibility with the community. Now there is no dispute as far as the identity of the accused is concerned. The state witnesses who saw him gave evidence of this fact and identified him before Court and even the accused placed himself at the scene of crime during his testimony. There is, hence, no issue about this. ited for having, on 14 January 2017, at Motorway M1 Port is breath for a breath test, at the place where the requirement was made, when required by Pc Noyan, a police officer in uniform, who had reasonable cause to suspect him of being under the influence of alcohol.Section 123G\a) 1)(b) & (bli) under which accused is being prosecuted provides- (1) Where a person is ~ . {a)- (b) driving a motor vehicle on a road or any other public place; (o)-- a police officer in uniform may, where he has reasonable suspicion to believe that the person is under the influence of alcohol, require, subject to section 123K, that person to provide a specimen of his breath for a breath test, either at or near the place where the requirement is made or at the nearest police station where the test may be carried out. (2) (a) (i) (ii) A person who, without reasonable excuse, fails to provide a specimen of his breath for a breath test following a requirement under subsection (1)(b) to (f), shall commit an offence and shall, on conviction, be liable to a fine of not less than 20,000 rupees nor more than 25,000 rupees. (b) In the case of a second or subsequent conviction, the offender under paragraph (a) shall be liable to a fine of not less than 25,000 rupees nor more than 50,000 rupees and to imprisonment for a term not exceeding 12 months. The law makes it imperative for every person suspected to be driving under the influence of alcohol, to provide a specimen of his breath for a breath test, whenever he is so requested by a police officer in uniform. Should an accused not be apt to comply with such requirement, the burden then shifts on him, of proving that he has a reasonable excuse not to provide a specimen when same is required from him. ed under oath, that when he requested accused for a breath 21 (ca RFF vonhave analysed the version of the prosecution and I must admit that Pc Noyan, did not quite make the best impression on me. In fact | found his testimony very questionable, the most blatant illustration being that, as soon as accused stealthily left the spot, he and CPL Rogbeer went on a wild _ goose chase of accused, in the streets of Port Louis, on their motorcycles. He explained that despite ‘a thorough search, they could not find accused. He even went on to explain that he failed to include that detail in his statement given shortly afterwards, simply because they had failed to find accused. This version was then not supported by CPL Rogbeer who completely crumbled the case of the prosecution, by simply denying there ever being a pursuit of the accused on that day. The whole fabrication of a hot pursuit against accused, had the consequence of eroding the credibility of Pc Noyan acutely. Pc Noyan then had much difficulty in describing where the infant of accused allegedly ig the incident. Upon questions being put, he very confidently affirmed that the child was was, du sitting at the rear of the car. He then changed versions to state that he thought ‘rear’ meant the passenger seat and then resolutely stated that the child was at the passenger seat all along. In his testimony however, CPL Rogbeer gave a diametrically opposite version by stating that the child was actually sitting at the rear. | however had difficulty into believing CPL Rogbeer as well, since he affirmed that he never spoke to accused on the material date but affirmed that he smelled alcohol on the latter's breath. Neither police officers saw accused taking pictures on the material date yet both witnesses confirmed that pictures, that is, docs A, A1, A2 included them both and other police officers at the exact same spot where the incident occurred. For these reasons, | find the evidence punctured with loopholes. | therefore have much doubt when Pc Noyan affirmed that accused ‘flatly refused’ to give a specimen of his breath for a breath test. ‘Accused on the other hand, testified under oath that he agreed to perform the breath test but that Police did not have the necessary apparatus to conduct the test at the time and that they had to go fetch the apparatus from Line Barracks Police Station. This was not disputed by the prosecution. ‘Accused explained that his child started crying wolf in the car as a result of the commotion created the Police officers, when he took the pictures. He then informed Pc Noyan to keep his documents in his possession and that he was going to drop his child off and come back for the test at the police station of Line Barracks. At any rate, it is on record that he went back to the Line Barracks Police ome time, after having made arrangements for his child. There d back all his documents which he had left with Pc Noyan pertaining to alcohol. | therefore find the version of accused plausible and his excuse, reasonable, on the balance of probabilities.For these reasons, | hold that the Prosecution has failed to prove count | to the requisite level of “proof beyond reasonable doubt’. | therefore dismiss the count | quoad accused. Under count Il, accused is being prosecuted for having, on the abovementioned date and place, whilst being driver of private car 6160SP13, failed to keep such vehicle stationary until authorised by Pc Noyan to drive such vehicle away. Section 134(2). of the Road Traffic Act, under which the charge is framed, provides- {2) {a) A person driving a motor vehicle on a road shall, on being required by a police officer in uniform- {i) stop the vehicle; and (ii) keep the vehicle stationary until authorised by the police officer to drive it away. (b) Any person who fails to comply with paragraph (a) shall commit an offence. Prosecution bears the burden of proving beyond reasonable doubt that accused failed to keep his vehicle stationary on being required by a Police Officer until authorised by that police officer to drive it away, and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused. Pc Noyan stated under oath that when accused went to put his infant back in the car seat, he left the spot on the sly, without him authorising accused to leave and in so doing left behind his driving ‘ence, a Fixed Penalty Notice and his NIC with him. Upon analysing the evidence on record 1am not convinced that accused failed to remain stationary as long as Pc Noyan required him. As stated above, | find it unsafe to rely on the version of the Prosecution so as to convict accused. On the sed struck me as a reliable and ‘no-nonsense’ type of person. | find his version cu explained that he left all his documents behind with Pc Noyan, as proof that he ‘was going to return to the police station so as to proceed with the alcotest, after having made arrangements to have someone look over his daughter. At any rate, | find it strange that Pc Noyan 6would stop a car with a 3 year old child in the front passenger seat and not booked the driver for the offence of “admitting child under the age of 10 in the front seat”. For these reasons, | find it safer to afford a benefit under count Il. | therefore dismiss count I! against accused. Under count Ill, accused is being prosecuted for having, on the aforementioned time and place, unlawfully driven private car bearing registration number 6160SP13 after having consumed so much alcohol that the proportion of it in his blood exceeded the prescribed limit. The relevant sections provide- Section 123F of the Road Traffic Act, entitled ‘Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit’, reads, (1) Where a person - (a) drives or attempts to drive a motor vehicle on a road or other public place; or (b)is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol in his breath, blood or urine exceeds the prescribed limit, he shall commit that the proportion of an offence. (2) (3) A person convicted for an offence under this section shall be liable to a fine of not less than 20,000 rupees nor more than 50,000 rupees and to imprisonment for a term not exceeding 5 years.ial Procedure Act, the Probation of Offenders Act and (5) Sections 152, 153 and Part X of the Cri the Community Service Order Act 2002 shall not apply to a person liable to be sentenced under subsection (1). Sections 123H(5) &(6) of the Road Traffic Act provides- (5) A police officer shall, on requiring any person to provide a specimen for a laboratory test in pursuance of this section, warn him that a failure, without any excuse, to provide it may render liable to prosecution and may be used against him as evidence. hout reasonable excuse (6) (a) Ina prosecution under section 123D or 123F of this Act, a refusal by a person to submit himself to a breath test or to give a specimen of his blood or specimens of his urine when required to do so in pursuance of this section shall be held against him as prima facie evidence that at the material time the proportion of alcohol in his blood exceeded the prescribed limits. Now section 123F (1) (a) of the Road Traffic Act makes it an offence when a person drives a motor vehicle on a road after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. | have already evaluated the evidence of both prosecution and defence and | have already ighlighted how the evidence of the prosecution was undependable with the result that the Court is left with no reliable evidence upon which the conviction of the accused might be based. For this reason only, | would also dismiss count ill against accused. But there is a mightier reason, why the third charge cannot subsist, which unfortunately, was not canvassed. LSAT cs“We also would like to draw the attention of the authorities concerned on the requirement of the warning to be administered by the police under section 123H(5) to a person who without any ‘excuse, does not give a specimen for a laboratory test and on the consequences of a failure to give the appropriate warning as envisaged by section 123H(6)(a) and (b) It is clear from a reading of the above subsections that for the warning to be compliant with subsection (5), it should state that a refusal would be “prima facie evidence that at the material time the proportion of alcohol in his blood exceeded the prescribed limits”. Simply to warn the alleged contravener that he has committed an offence ~ as it seems to have been the case in the present matter — does not satisfy the requirements of section 123H(5) and (6)”. It was also recently held in the case of Appadu v The State (2017) SC) 31 that, “We are of the view that the warning given by the police officer in the present case was too general and did not comply with the requirements of the law which provides for a warning in specific terms, namely that the failure to provide the specimen would render the appellant liable to prosecution and that such failure may be used as evidence against him. In the present case, ‘once PC Caleechurn stated in general terms that he gave the appellant a warning about the consequences, the onus was on the prosecution to question him further with a view to obtaining the details of the warning, and this bearing in mind that it was for the prosecution to establish that the relevant provision of section 123H(5) had been complied with.” Likewise in Panchaye v The State (2017) SCI 42, it was held, “What is necessary is that the suspect must be made aware that the fact of refusing to undergo a blood or urine test without any valid justification, exposes him to prosecution for the offence of jehicle while being under the influence of liquor and that the CSS, intl \ce for the offence. Upon a reading of the caution on record, | I being used as “prima facie” evidence that “at the materialtime the proportion of alcohol in his blood exceed the prescribed limits” was not conveyed to the appellant In the present case, Pc Noyan informed acciised that ‘failing to provide a specimen of his breath for a breath test amounts to an offence and would render him liable for prosecution.’ | therefore hold that the warning given by Pc Noyan in the present case was too general and did not comply with the requirements of the law. He should have informed the accused that the refusal, without any excuse, to provide the specimen for a laboratory test would render him liable to prosecution and may be used as prima facie evidence against him that, at the material time, the proportion of alcohol in his blood exceeded the prescribed limits. For the reasons cited, I dismiss count Ill quoad accused. Meenafshi Bhogun Senior District Magistrate Delivered on 28 May 2018 Fe aX ALT 10