Police v Nylprakash Nunkoo 2016 PMP 310 Police v Nylprakash Nunkoo IN THE DISTRICT COURT OF PAMPLEMOUSSES CN: 1666/13 POLICE V NYPRAKASH NUNKOO JUDGMENT Accused stands charged of having on the 9 th of October 2010 unlawfully (a) failed to give a specimen of blood or urine in breach of sections 123H(1)(3)(4)and 163 of the Road Traffic Act (Amended Count I); (b) drove private car bearing registration mark 265JN 07 with alcohol concentration above prescribed limit in breach of sections 123F(1)(3), 123H(6) and 52 coupled with Second Schedule of the Road Traffic Act (Amended Count II); and (c) drove motor vehicle without its offside headlamp lighted (Amended Count III). Accused pleaded not guilty to amended count I and amended II and guilty to the amended count III. He was duly represented by counsel of his choice at trial. Analysis of the evidence Accused having pleaded guilty to count III, I find him guilty as charged to count III. W1, CPL 5453 Hurhundee, testified to the effect that he interviewed Accused in the present case. Accused refused to provide a written statement and stated aster la mo pas pu capave done l enquette. Plis tard mo pu cose tou. PS 7542 Bundhoo, W3 then testified to the effect that on the 9 th of October 2010 at 20:15 hours he was in police uniform at Bois Rouge when he stopped a car that was proceeding from the roundabout of Pamplemousses and proceeding towards Bois
Rouge along Laborde Road. He stopped the driver as the headlamps or flasher was not switch on. It was then put to W3 that in his out-of-court statement he stated that the front offside headlamp was not lighted; W3 admitted to the truth of same. Upon him talking to W3 he smelled alcohol from the mouth of Accused. He therefore asked Accused to accompany him to the police station. Accused refused but at the end Accused went to the police station with him and another officer drove Accused s vehicle to the station. At the station a breath test was carried out and it revealed positive. During cross-examination, W3 stated that he does not remember whether Accused was driving his vehicle or whether the vehicle was parked. PC 1442 Choollun, W2, testified to the effect that on the 9 th of October 2010 at 20:50 hours he went to Pamplemousses Police Station and in the presence of W3, he performed a breath test on Accused. The test revealed positive. He showed same to Accused and asked him for a sample of blood or urine at the hospital. Accused refused to provide same and stated mo pas pu done mo disand ou urine. Et mo pas pu alle l hopital. W2 then informed him that since he is refusing without a valid reason it will be held against him as prima facie evidence that when he was driving he was under the influence of alcohol. W2 informed him of the offence of refusing to give sample of blood and urine and also for driving a motor vehicle under the influence of liquor above prescribed limit. During cross-examination, W2 stated that the apparatus he used for the breath test was registered under the required regulation at the material time. Defence Counsel did not called Accused on oath to testify. Defence Counsel submitted that (1) the charge under count II was lodge outside delay in breach of section 123LB of the Road Traffic Act as amended (2) Count I and II are defective since they are duplicitous. (3) W3 has failed to state whether Accused was driving the motor vehicle. Breath test I have noted that W2 and W3 have stated that Accused undergone a breath test that was positive. The Road Traffic (Prescribed Devices) Regulation 2010 made by the Minister on 22 nd of October 2010 under sections 188A and 190 of the Road Traffic and came into effect on the 23 rd of October 2010 was passed to prescribe inter alia the type of device to be used for collecting and or analysing specimen of breath for the purposes of detecting the proportion of alcohol in the breath of a person for the
detection and enforcement of offences under sections 123F, 123G, 123H, 123AD, 124 and 166 of the Road Traffic Act (vide GN No 203 of 2010). The present offence occurred on the 9 th of October 2010, therefore prior to the introduction of the Regulation. Consequently, the device used for the breath test was not a prescribed device. In light of the Appeal Judgments Gunesh v The State (2010) SCJ 357, Ausmann v The State (2010) SCJ 376, Dulthummun v The State (2013) SCJ 105, Sunkur & Anor v The State of Mauritius & Ors (2013) SCJ 185 and Lalleebeeharry S. v The State (2014) SCJ 319, I find that the testimony of W2 and W3 on the breath test to be inadmissible. In any event there is no breath test report in front of the court and count II is based on the presumption raised by section 123H(6) of the Road Traffic Act. Outside delay Defence Counsel has submitted that the present offence was committed in 2010 and the present information was lodged in 2013 and thus outside the prescribed delay provided under section 123LB of the Road Traffic Act as amended by Road Traffic (Amendment) Act 2006. I find it apt to quote the case of Paulin D.K.W. v The State (2014) SCJ 313 as follows: In fact, the only ground of appeal in Rambaruth (Supra) [Rambaruth v The State (2010) SCJ 441] was with regard to the retrospective application of Section 123LB of the Road Traffic Act, the offence having been committed on 23 November 2005 and Section 123LB having come into effect on 7 August 2006. Further, when judgment was delivered in the present matter on 7 March 2012, the implementation of the time limit prescribed under Section 123LB had already been considered by the Court in Rambaruth (Supra) and had been pronounced to be ineffective in the light of the Constitutional interpretation of Section 123LA and 123LB in Durocher Yvon J.M. v Commissioner of Police [2008 MR 97]. Section 123LA(1)(b) and (3) empowered the police to suspend a driving licence until the determination of the charge by the Court for an offence under Section 123F. Section 123LB further provided that where a driving licence has been deemed to be suspended by the police pursuant to Section 123LA(1)(b) pending the determination of a charge, prosecution proceedings shall be instituted within 4 months from the date of the commission of the offence. The Court in Durocher (Supra) however had declared the provisions of Section 123LA(1)(b) empowering the police to suspend a driving licence pending Court proceedings to be unconsitutional. As a result, the Court in Rambaruth (Supra) pointed out that the limitation period was provided to meet a specific situation having regard to the power which was wrongly given to the police to impose a penalty by suspending the licence and disqualifying the offender pending the determination of his case. The Court concluded that since these provisions of
Section123LA empowering the police to suspend the driving licence had been declared to be unconstitutional there was no longer any raison d être for the limitation period to be applied. The time limit prescribed under Section 123LB would henceforth cease to be operative in practice. The case of Paulin (Supra) was reaffirmed in the case of Director of Public Prosecutions v Luchmun N. (2016) SCJ 157. In light of the principle laid down in the case of Paulin (Supra) I find that the point raised by defence counsel is devoid of merit. Duplicitous Defence Counsel has also submitted that count I and II against the Accused is defective since it is duplicitous since it relate to one offence, i.e. refusing to provide blood or urine sample. In the case of Pyneandee S. v The State (2015) SCJ 38 the court stated as follows: Whether an information is bad for duplicity is to be decided by looking solely at the wording of the information itself, in the light of the enactment creating the offence, such as to see if more than one offence is being charged in the same count (vide Ahmad Reshad Mahamudally v The State and The DPP [2011 SCJ 246]). In applying the above principle to the present case I find that count I provides only for the offence of refusing to give specimen of blood or urine in breach of section 123H(1)(3)(4)(5) and 163 of the Road Traffic Act. It is different from count II which is the offence of driving motor vehicle with alcohol concentration above the prescribed limit in breach of sections 123F(1)(3), 123H(6) and 52 coupled with Second Schedule of the Road Traffic Act. Moreover the validity of count II was discussed in the case of Pyneandee (Supra). The charge under count II is of similar nature to count III in Pyneandee (Supra). The court considered whether it was duplicitous and held as follows: Counsel for the respondent submitted by reference to the case of Reedoye (Supra) [Devanand Reedoye v The State (2012) SCJ 326] that the Court, following an analysis of the provisions of sections 123F and 123H (6), did come to the conclusion that section 123H (6) is only an evidentiary section and not an offence-creating section". The Court further stated It is clear in our view that the above section has been averred in the information only for the purposes of the presumption which operates in the event a driver refusing to submit himself to a breath test. It cannot be interpreted to mean that the offence charged is one under section 123H of the Act.
We agree that Section 123H (6) only lays down a presumption with regard to the proof of the offence of Driving of motor vehicle with alcohol concentration above the prescribed limit, and can in no way be assimilated with the creation of an offence on its own. The additional averment in the information, with regard to the refusal to give a specimen of blood, is meant only to invoke the evidential presumption which arises out of subsection 123H (6). It does not charge the appellant with any additional or separate offence. The averment is only to the effect that there is a presumption of prima facie evidence that at the material time the proportion of alcohol in the appellant s blood exceeded the prescribed limit following his refusal to provide a specimen of blood for a laboratory test. It is beyond dispute that the appellant was charged with only one offence under Count III of the information, namely under section 123F for the offence of Driving a motor vehicle with alcohol concentration above the prescribed limit. It was solely on this basis that the case was heard and determined by the Magistrate. Consequently, the submission of defence counsel that count I and II are duplicitous is untenable. Whether Accused was driving the car? W3 has testified in an inconsistent manner as to whether indeed Accused drove the car on the material date. In examination in chief, W3 stated Accused was driving his car from roundabout of Pamplemousses and proceeding towards Bois Rouge when he stopped him. In cross-examination he stated that he does not remember if Accused was driving the vehicle or whether it was parked. However, Accused has unequivocally admitted the charge under count III. Therefore Accused has expressly and conclusively admitted having driven motor vehicle bearing registration mark 265 JN 07 on a road without his offside headlamps being lit. In light of the Accused own admission that he was driving the motor vehicle at the material time I find that that the point raised by Defence Counsel does not stand at all. Refused to give specimen of blood or urine I have analysed the testimony of W2 as a whole and I find that he was straightforward and answered all the questions put to him in a coherent manner. Consequently, I find that I can safely rely on the testimony of W2. As per his
testimony he has asked Accused to provide specimen of blood or urine and Accused has categorically refused to provide same without any reasonable excused. In light of the truthful testimony of W2, I find that the prosecution has successfully proved beyond reasonable doubt that Accused was driving motor vehicle 265 JN 07 at the material times and upon request from W2 he refused to provide specimen of his blood or urine without any reasonable excuse. The prosecution has successfully proved count I beyond reasonable doubt against Accused. Whether the warning required under section 123H(5) and (6) was complied with? I have considered whether Accused was given the proper warning as per section 123H(5) and (6) of the Road Traffic Act. In the case of Tonta C v The State (2016) SCJ 25, the Appellate Court considered the warning to be given to the Accused as follows: In J.M.E Ally [J.M.E Ally v The State of Mauritius (2014) SCJ 283] the appellate Court observed - 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). We are of the view that the observation made by the appellate Court in J.M.E Ally [supra] should not be interpreted to mean that the warning to be given to the suspect must be in the very words provided for in subsection (5) as long as the spirit of the law is conveyed to an accused party and he has understood the warning. It is clear from the testimony of W2 that he informed Accused that since he is refusing to provide specimen of blood or urine without reasonable excused same will be held against him as prima facie evidence that he was driving under the influence of alcohol. In light of the principle set out in Tonta (Supra) I find that the appropriate warning under section 123H(5) and (6) was given to the Accused. Driving motor vehicle with alcohol concentration above prescribed limit In light of the above, I find that Accused was driving the motor vehicle at the material time. Accused having failed to provide his specimen of blood or urine without any reasonable excuse and since he was duly cautioned by W2, I find that the presumption under section 123H (6) of the Road Traffic Act comes into operation.
Therefore, same is held against Accused as prima facie evidence that at the material time the proportion of alcohol in his blood exceeded the prescribed limits. Consequently, the prosecution has successfully proved count II against Accused beyond reasonable doubt. Accused s right to silent I am alive to the constitutional rights of Accused to remain silent and the onus of proving his guilt is on the prosecution. This being said, I am not debarred from drawing such inference as the circumstances demand in such cases where one would expect some form of explanation from the Accused. It was held in Andoo v R (1989) MR 241, Where the evidence for the Prosecution establishes a strong and unshaken prima facie case and the accused chooses not to swear to his statement and expose himself to cross examination, the trial Court is perfectly entitled to conclude that the Prosecution evidence remains unrebutted. It is of course true that the burden of proving the guilt of an accused squarely lies on the Prosecution and that the accused is entitled to remain silent. His right to silence, however, is exercised at his risk and peril when, at the close of the case for the Prosecution, a prima facie case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on the evidence adduced by the Prosecution. We need only repeat what was said by Sir A. Herchenroder C.J in Ramkalawon v R [1914 MR 124], namely that the observation of Beccaria should never be forgotten imperfect proofs, from which the accused might clear himself, and does not, become perfect, Annia v The State (2006) SCJ 262 and DPP v Anwar (2009) SCJ 321 quoting Andoo v R (1989) MR 241. It was further held in Fullee v R (1992) SCJ 77, There it is told that the Constitution no doubt confers on any accused the sacred right to remain silent but the Constitution does not forbid our Courts to draw certain inferences from an accused s silence when the circumstances are such that one would expect some form of explanation from him. Conclusion The prosecution having proved count I and II beyond reasonable doubt against Accused, I find Accused guilty as charged to count I and II. Accused having pleaded guilty to count III, I find him guilty as charged to count III.
Mrs Uroossa Rawat Neerooa District Magistrate of Pamplemousses Delivered this 21 st of October 2016