R v Esparon (CO 71/2013) [2018] SCSC 8056 (31 January 2018)

IN THE SUPREME COURT OF SEYCHELLES Criminal Side: CO 7112013 [2018J SCSC t53 THE REPUBLIC versus BERTRAND ESPARON Accused Heard: 2017,16-06-2017-11-07-2017,31-07-20 17,07-08-2017,09-08-2017and06-10-2017 09-11-2016, 16-11-2016,15-022017,01-03-2017,09-03-2017,23-03- Counsel: Mr. Georges Thachett, Assistant Principal State Counsel for the Republic Mr. Basil Hoareau Attorney at Law for the accused Delivered: 1 February 2018 JUDGMENT Burhan J [1] The accused Bertrand Esparon has been charged with the following offences: ----_.- Count 1 ----- Manslaugher contrary to Section 192 of the Penal Code and punishable under Section 195 of the same. Particulars of offence Bertrand Christian Esparon of Turtle Bay, Mahe on the 091h November 2013 at Anse Aux Pins, Mahe unlawfully killed another person namely Joshua Bill. Count 2 Causing death by dangerous driving contrary to Section 25 of the Road Transport Act (CAP 206) punishable under the same. Particulars of offence Bertrand Christian Esparon of Turtle Bay, Mahe on the 91h November 2013 at Anse Aux Pins, Mahe caused the death of another person namely Joshua Bill by driving a motor vehicle having registration number S 6662 on the road at a speed or in a manner dangerous to the public. [2] The opening witness for the prosecution, Mr. Ralph Agathine, attached to the SSCRB (Scientific Support and Crime Records Bureau) produced the photographs taken in respect of the incident and stated he had received a call on the 09th day of November 2013 regarding a fatal accident. He had proceeded to the Anse Aux Pins police station and arrived at the scene of the accident around 08.50 hrs to 09.00 hrs and with the instructions of Corporal Mathiot, he had photographed the scene of the accident at Anse Aux Pins near the Chetty Flats. He produced as PI (photos 1 to 13), the photographs taken of the scene of the accident. He described each and every photograph and the direction he was facing, at the time he had taken it. He stated it was a continuous line at the centre of the road. He admitted there were no special marks to show that there was an accident. It is also apparent from his evidence and the photographs taken that the vehicle involved in the accident was S 6662. There was damage on the front bumper and a dent on the driver's side door. He stated that photographs 12 and 13, did show a damaged wheel chair. [3] Under cross examination, he admitted that the best protocol was not followed in this case _ -----_. --_._-- -- as the accident had occurred around 2.30 a.m. or 3.00 a.m. and he was called to the scene at only 8.00 a.m. He admitted that there was no physical damage to the pavement or the bus stop. He stated looking at photos 5, 6, 7 and 8 that a part of the car was missing and stated had he been shown the missing part, he would have photographed it. He was unable to state how the dent to the side of the driver's door occurred as he was not at the scene at the time of the accident. He further stated that usuall y the scene of an accident is cordoned off with yellow tape to preserve the scene and the vehicle is kept in the same position. This was not done in this instant case. [4] WPC Moreen Young stated that she had photographed the body of the deceased Joshua Bill whose body was being kept at the mortuary in the Seychelles hospital. SI Louise Rath, Dr. Marie and the Pathologist were also present. She produced the photographs as P2 (photos 1 to 29). She identified the deceased from her photographs as the deceased Joshua Bill and described the injuries on the victim's body. Dr. Paresh Bharia stated that a large number of injuries were on the right side of the victim, the injury resulting in the death of the victim was on the right side and the leg injuries and serious injuries were on the right. He stated that the photos of the injuries on the brain of the deceased showed there were extensive haemorrhages in the cerebellum, thalamus and on the surface as well. He described the three areas of the brain where the haemorrhages were seen in detail. He further stated the impact injury on the head was on the right hand side and the force creating the injury was from the right side. The injury on the left side was a contre coup injury (refer evidence in detail at pg 27 of the proceedings of 09th November 2016. 9.00 a.m.) [5] Mr. Nico Marie giving evidence under oath stated that he was 21 years of age and on the 9th November 2013, he was at the playground at Anse Aux Pins with Joshua Bill, Gino Bastienne and Dominique Riaz and remained there till about 2.00 to 2.30 a.m. He stated that after leaving the playground, the three of them had walked towards Victoria and on the way met some friends, spoke to them and continued on their way towards Victoria. Joshua was sitting on the wheel chair while he was pushing him to drop him off at his place close to Care Free. They were on the left side of the road on the mountain side. They had passed the bus stop next to Chetty Flats and were a bit ahead of it when they stopped ...._._b!ca_use Dominique stated_bewas going to change.hisT -shirt and-join them, He-was-leaning- on Joshua's wheel chair and was facing Dominique's house when he heard Gino shouting be careful and Gino had hit him with his elbow. He was facing the mountain side and he had turned to see a car coming in his direction, hitting the pavement and hitting Joshua and then him as well, as he was next to Joshua. He had fallen on the grass and Joshua fell next to him. He could observe that blood was coming from Joshua's nose, his mouth and ears as well. He recalled being injured behind his left foot, neck and shoulder. Witness stated he was conscious but Joshua was not. He shouted for help. The car had hit them and driven off. A while later, the car had returned and the driver came to them and inquired whether Joshua was dead. Witness identified the accused in the dock as the driver of the car. Witness further stated he was shouting for help and an ambulance arrived to take him to Victoria hospital. He pointed out the place he was standing and where he had fallen on photograph 4. The point of impact was marked as X, Y was where he fell and place where Joshua had fallen he showed as Z. It appears X,Y and Z markings were inadvertently marked on copy of prosecution's photograph 4 (copy tendered) and it appears that X and Y markings were used again on defence document photograph 1 to depict place where measurements were taken. [6] Under cross examination he admitted he was taking drugs both heroin and Cannabis and had undergone rehab treatment. He denied he had consumed heroin that night. At the time of the incident he denied he was drunk or had consumed liquor. In answer to the question put to him by counsel that according to the manner he described the incident, he should have sustained more serious injuries, he replied he did not because Gino had pushed him with his elbow. He denied that they were in the middle of the road. He denied the suggestion that Dominique had gone to the beach to collect a bottle of alcohol. [7] The next witness, Gino Bastienne, corroborated the evidence given by witness Nico Marie regarding attending the activities at the Anse Aux Pins playground and after leaving they were walking on the mountain side of the road towards Joshua's house in the direction of Victoria, but before they reached the house the accident occurred. He too corroborated the fact that Dominique (referred to as Doe by him) had gone to change his shirt at his house which was just near Chetty flats and by the side of the road. He too stated whilst they wer~ waiting outside, he bag shoved. Nice with.his.elbow.as.he.had seen.a.light.and ..- he knew it was a car coming towards them. The car had hit mostly Joshua and he too had fallen from the impact as he too was on the pavement. The car was coming from Victoria towards Anse Royale. He said he heard someone say "woo" and as a person says woo only when something serious is happening, he reacted and pushed Nico when he saw the light. After he fell, he felt dizzy and his eyes blurry. He had looked around and he had seen both Nico and Joshua on the ground. Both were not moving and he had seen Joshua bleeding through his nose and ears. The car had not stopped and he had told Dominique his two friends were dead and Dominique had chased after the car. Dominique had come back and told the colour and number of the car. After some time the ambulance came and the police arrived at the scene. He saw the accused but the police did not arrest him. Dominique returned and told him that the accused was the person who had hit them in the car and he had run behind the car and told the driver he had hit three persons. He had asked the police why they had not taken a breathalyser test and let the driver go and asked them "are you taking a bribe or something"? Witness too identified the places where the impact was and where the victims had fallen on the photograph Photo 4. He identified the car from the photographs. He admitted being addicted to Cannabis but denied he was hooked on heroin and stated he had undergone rehab treatment. He stated repeatedly he was not on drugs or alcohol the night of the accident. He stated he lived a bit far from where Joshua lived. [8] It was suggested that the vehicle hitting the wall was a fabrication as it was not in his statement. He also stated in cross examination they were going to tell Joshua that night that they were going to have a party for his birthday which was on the 19th. It was also put to him that as per his statement they were waiting for Dominique to bring a bottle which he had hidden on the beach. He denied they had crossed the road to go to the beach to drink alcohol. [9] Mr. Dominique Riaz corroborated the evidence of witnesses Nico and Gino in that after the activities at the Anse Aux Pins playground they were returning to go to Joshua's place and were on the pavement going in the direction of Victoria when he had gone to his house near Chetty fiats to change his T- shirt, had seen the lights of a car coming towards them at a normal speed but fast and he had shouted watch out as the light was coming directly towards_them_. Gino had shoved Nico with his elbow. The vehicle had hit them, returned - --_._- "-- - - -- ----_ back to the road and continued on its route slowly. He had run after the car until the Anse Aux Pins playing field and he had called out to the driver. The driver had rolled down the window and witness had asked him, if he remembered what he did and he had replied he did not know. He recorded the number of the vehicle and identified the accused as the driver in open Court. [10] Witness Dominique had run to the police station and reported the accident, he had seen the car pass by the police station and thought it was coming to the station. The police then left for to the scene. He had run all the way back to the scene of the accident and upon arriving at the scene, he could see his friend lying on the ground who was suffering a lot and crying out. He looked at Joshua and saw him on the ground not responding. He had seen Gino standing in a corner close to the wall. He stated the accused had come back to the scene later with his mother and father. The ambulance came and the accused had left with the car. The bumper and the fog light on the side of the vehicle on the right hand side was broken. He had picked up the shattered parts of the vehicle and placed it under the verandah and Corporal Mathiot had asked him to leave it there and bring it to the station in the morning. He had taken it to the police station and handed it to an officer. He stated the registration number of the vehicle was S6662 and identified the scene and vehicle from the photographs shown. He admitted under cross examination that he smoked Cannabis but denied he took heroin. He admitted having two Seybrews prior to the incident that day. He further stated he was close to Joshua and as he lived near to Joshua, he would go to his place to visit him often. He denied having a bottle of liquor hidden on the beach or that he had gone to bring it so that they could continue their drinking. He denied the others were hit when they were crossing the road and if they had they would have fallen on the road and not on the side where the grass was. [11] Corporal Louina Didon stated on the 9th of November 2013, she was on duty at the Anse Aux Pins police station when she had taken charge of duty that day Corporal Mathiot had informed her that there had been an accident in the early morning. She stated that the accused, Bertrand Esparon had come in the morning to the station with his lawyer, Nicol GaQt:i~I_a.nc!made a statement in respectof the accident. The statement was produced as _ P5. He had been given a notice of intended prosecution which was produced as P6. On the 23rd of November 2013, another statement was recorded from the accused. This statement too had been recorded in the presence of his lawyer Nicol Gabriel. This statement was produced as P7. She stated that what happens during an investigation is recorded in the occurrence book and in the investigation diary. She admitted the entry showed at 6.10 in D3 is that 'a small road measurement was drawn the length of the road'. She admitted that had a sketch plan been drawn they should have inserted it. She stated the mention of the sketch plan was first made on the 22nd of November 2013. She admitted it was on the 2211d of November 2013 that the police were aware that Joshua Bill had passed away. Under re-examination she stated that at page D6 at 11.07 on the 22l1d of November 2013, there was an entry that rough and clear sketch plan was attached. k>~V . [12] Corporal Hazel Mathiot stated she was on duty at the Anse Aux Pins police station on the day of the accident. On that day she was at the inquiry office when around 4.05 in the morning, a boy came into the station running. He identified himself as Dominique Riaz and informed them that there was an accident opposite Chetty Flats. On arriving at the scene she had seen Joshua Bill on the ground close to Chetty Flats and Nico Marie next to the pavement close to the road. She requested immediately the assistance of an ambulance. Joshua was lying face up and was not moving. Nico had an injury on his leg. When she arrived at the scene there were no vehicles. She stated later on when she was issuing a medical report for the two casualties, Dominique had shown her the driver who was driving the vehicle involved in the acci~ent HV 6662. She had thereafter made a rough sketch plan _ tr1 a final sketch plan was made and produced as P8a.a. .tt. which was produced as P8.t1...thereafter .%-. '1i~ She stated the point of impact was on the pavement in the mountain side. [13] She further stated that at the scene of the accident a group of persons had surrounded the accused and wanted to beat him, so she had asked him to follow her to the police station and had interrupted her drawing of the sketch plan to take him to the station. She stated that Joshua was closer to the house and Nico was close to the road but lying on the grass. Both were on the grass and the wheelchair was too. Witness identified the wheel chair and the vehicle from the photographs. She also pointed to the point of impact. She stated under _cross examination that it was police officer SuzetteItraineeofficer). who had. made.the., entries in the occurrence book. She stated the first entry in the occurrence book was made at 4.05 a.m. She denied that the sketch plan was drawn after the death of Joshua Bill. In respect of the entry that a small road measurement had been made, she stated the entry was made by another officer and if he was listening properly to her he would have heard it. She admitted due to the commotion and everybody surrounding the accused, she had not been able to finish the sketch plan as she had taken the accused to the police station for his safety and gone back at 7.30 a.m. to finish her plan. That was before she went off duty. She stated the time on the rough sketch i. e. 3.a.m. was wrong. She denied that she drew up the sketch plan on the 2211d of November 2013 and further denied, it was drawn from her memory from what was in her mind. [14] The next witness, Jason Rousteau, stated that he was the Manager at the Vehicle Testing Station for the past 6 years. He stated on the 14thof November 2013, he had inspected and tested vehicle HV 6662 a Hyundai Accent. He produced the report as P9. He stated that according to the report most of the damage was inflicted on the right hand side as the front bumper was broken on the right hand side of the vehicle and the fender was damaged. He stated when he referred to the right hand side of the vehicle, he referred to the steering wheel side or the driver's side. The photographs he said tallied with the observations in his report. He stated the right hand front part of the bumper was totally broken. And the right hand headlamp was broken. He stated that underneath the vehicle there was no damage and they had examined it under a ramp. [15] Thereafter, the prosecution closed its case and the accused in defence chose his right to remain silent. It must be borne in mind that in terms of article 19 (2) of the Constitution, no adverse inference must be drawn from the fact that the accused chose his right to be silent. It appears that learned counsel for the defence has erroneously stated in his submissions that the accused made an unsworn statement fro~ the dock. T~e proceedin~ . ,. J" too 0 not ear t IS out. b l'.:I.rt{; he< I-cu IV~ cS",-bm'~~''''''j' I"h-e uceJl;t\· 7".."- ·h~Il&=.d r ~ I hi d " [16] The accused called several witnesses. Mr. Jean Luc Lablache stated he was self-employed as a photographer and the name of his business was' Sey Romance'. On the 22nd of June 2017, he had taken certain photographs of a scene at Chetty Flats on the instructions of the - accused and produced thephotographs as 01. He stated there were 11 photographs. He ---- _._- stated the person holding the tape was one Mr. Bristol who the defence subsequently called as an expert witness. It is clear from his evidence and photographs that the scene of the accident was being revisited and photographed in the presence of their expert Mr. Bristol. Photographs were taken of the measurement of the height of the pavement at the scene where the accident occurred, the height of the top of the pavement to the car, the height of the front bumper from the road, the height of the car against the pavement level and the measurement of the wheel. He stated under cross examination that the persons present at the time the photographs were being taken were the accused Bertrand Esparon, Mr. Bristol and himself. He admitted there was no reference point marked on the pavement to show which part of the pavement was being photographed. Witness stated although he had not made any reference marking on the pavement, tyre or bumper, the numerous photographs taken were that of the same pavement, tyre and bumper. [17] The next witness, Sonny Didon, stated that he was the Manager of a car hire called 'Tropical". He stated document D2 dated 13 September 2011, showed that the owner of the vehicle S6662 was 'Tropical". He stated that D3 dated 26th June 2014, indicated a registration number S 15465. The chassis number and the engine number were the same, indicating the same vehicle S6662 had changed its registration number to S 15465, as the J earlier number S6662 was a demonic number which they felt brought bad luck.; b¥ ,/ " The defence next called Mr. Bristol who stated he was a motor vehicle mechanic engineer. [18] He stated he was the first Manager of the Motor Vehicle Testing Station in the Seychelles. He had prior to the appointment gone to UK to do a MOT test and had thereafter gone to Japan to do the same test, following which he received the job at vehicle testing. He produced several certificates to prove his expertise. Having considered his qualifications and experience, I am satisfied beyond reasonable doubt about his expertise as a Motor Mechanic Engineer. He stated the photographs referred as D 1 were taken in his presence on the 22J1d of June 2017 and showed the place where the accident occurred. The accused, Bertrand Esparon, had showed them the place. The 151 photograph shows him measuring the height of the pavement, which was about 5 inches. The 4th photograph was him ------ measuring the ground clearance which was_3 inches of the vehicle and the__top .of the __ - pavement. He also stated in photograph 5, he was measuring the ground clearance of the bumper which was 7 inches. Photographs 7 and 8 he stated, showed the width of the pavement which was around 1.5 metres, (5 ft). Photograph 10 showed the height of the curb with the car itself. Photograph 11 showed the wheel size of the vehicle. He stated that the height of the front bumper from the road was 7 inches (ground clearance of front bumper) and the height of the curb was 5 inches meaning that there was a 2 inch difference. [19] Witness further stated it was the weight of the engine that lowered the front part of the car. He described what aspect ratio was. He stated if the vehicle hit the curb as the difference was only 2 inches, the lower suspension arm which holds the wheel in place, will hit the edge of the curb and get damaged. He stated that the stub axle was where the wheel was fitted and from that there is a lower arm which is joined to the whole unit chassis. This lower arm will be less than the ground clearance of 2 inches. He stated that had the vehicle gone over the curb, he would have expected the lower arm, the underneath of the car and even the chassis to be damaged. He stated even at 10 kilometres per hour this would happen. He stated the report did not show damage to the vehicle on the lower arm or underneath the vehicle. He also described what would happen to a vehicle if it hit a wall. He stated the damage would have been more extensive as the headlight would be smashed and the bonnet would have bent. In this instant case the bonnet was slightly damaged and the head light was broken but glass still in place. He also proceeded to explain in detail the aspect ratio of the tire. [20] Under cross examination, he admitted he did not have an Engineering degree. He admitted the damage would depend on the speed the vehicle hit the wall. He further stated he was not present on the said day to see if there were scratches on the wall. He admitted that in three years there could be wear and tear on the wheel and it could be lower at the time he measured, which was three years later. He admitted he had not checked the mileage to determine the wear and tear of the vehicle at the time he did his measurements. He stated he was unable to say whether the height of the pavement would be uniform throughout. He admitted that if you are going slowly at 10 kmph the rim would not be affected if it went over the curb. He stated by heighrspeed he meant 80 kmph which would damage the wheel ~ and rim_. He also stated the ~_QgJ~of impact would have an_rlfect_as the tyre which.would get damaged at high speed. He admitted over the three years the tyre would be changed and he could not therefore tell the exact tyre measurement of the car on the day of the accident. [21] In re-examination too, he stated that if the car went over the curb at 10 kmph, it would go over without any damage. He stated at 30 kmph nothing would happen to the lower arm but stated that there might be scratches under the vehicle The next witness called by the defence was Mr. Nicol Gabriel Attorney at Law, who stated that he received instructions from the father of the accused and accompanied the accused to the Anse Aux Pins police station as he was wanted for an interview. He had met WPC Louinna Didon and he had requested for the docket of the file which was shown to him. He had seen an A4 paper on which were drawn some lines and arrows and markings. It looked like a scene of an accident and when he had queried, the officer had stated that this is the work of the young leaders. It was as if to say "look what we can get from police officers who followed the young leaders program". He stated he handled the document and it was not P8 or P9 that was shown and he was seeing P8 and P9 for the first time. He had received a call from the Anse Aux police station to attend the scene of the accident involving Bertrand Esparon a week later. He had declined to go as the request was a week later. JIu ,-cJ 0... 10 00fV\<. J dO~~ [22] I would firstly deal with the evidence ofthe expert witness called by the defence. He admits I L 2.01~ . he was not at the scene of the accident at the material time nor had he conducted any measurements of the height of the pavement or the ground clearance of the vehicle at the time of the accident. It is also clear, he was unaware of the state of the road or the pavement at the time of accident or soon thereafter, unaware of the condition of road and unaware whether any repairs had been done to the road or pavement during the period of 9th November 2013 and 22nd of June 2017, the day he went to the scene and took measurements. Therefore this court is of the view that his evidence should be considered with caution as had any repairs been done on the road or pavement during this intervening period his measurements would not be relevant to the facts of the case. It is also apparent that his finding are based on several variables size of tyre, height of pavement, speed of vehicle, pressure of air in tyres and condition of the road, all of which he admits he was --------unaware of-on-the-dateof the accident: [23] When one considers the evidence of the expert in his examination in chief, he states even at a speed of 10 kmph the lower arm would have been damaged if the car had climbed the pavement. However, later on he changes his evidence and states it would depend on the speed of the vehicle and states that had it been travelling at 10 kmph there would have been no damage, and even goes up to 30 kmph. He states, however, that the underneath of the vehicle would have been scratched. This could be accepted if he could establish that the height of the pavement in 2013 and all other variables were the same at the time he measured in 2017 over 3 years later. [24] I would next like to deal with the speed of the vehicle that the expert defence witness has referred to. However, though the witnesses have stated the light came towards them fast, no estimate of speed could be derived from their description. Witness Gino stated everything happened "fast, very fast" when the vehicle ploughed into them. In usual circumstances, an onlooker not involved in an accident would state a vehicle was travelling fast but be unable to state its exact speed. In this case the witnesses who describe the speed of the vehicle were actually knocked down by the vehicle they observed coming towards them. In such circumstances one must understand the witnesses would have undergone trauma both prior to and after the accident and therefore understandably would not be able to give the exact speed of the vehicle. However there is no evidence to indicate the vehicle was travelling at excessive speed but it is clear that the vehicle was travelling at a sufficient speed to knock several persons from the pavement onto the grass verge. [25] The fact that the accused drove the vehicle at the time of the accident is established by the evidence of witness Dominique Riaz. He ran behind the vehicle after it had knocked down his friends, until the vehicle had slowed down and he had caught up with it and he told the driver who he identified as Bertrand Esparon the accused in the dock,that he had knocked down his friends. The driver, the accused, had come back to the scene of the accident. In his statement to the police under caution which was admitted without any objection, the accused Bertrand Esparon admits he was driving the vehicle which was involved in the accident, a Hyundai accent bearing registration number HV 6662. [26] It is the contention of the defence thatthe accused-was driving towards AnseRoyale in the --_ -_- --- night on his rightful lane when the victim and witnesses had crossed the road and he had felt he had hit something whilst driving on his lane. Learned Counsel suggested to the prosecution witnesses that they had crossed the road to have a drink when the accident occurred. All three eyewitnesses while denying the suggestion made by Learned Counsel for the defence stated that they and the victim Joshua were hit while they were on the pavement on the mountain side. This is substantiated by the fact that all the injured persons had fallen on the grass verge near the Chetty flats which is on the mountain side as shown in photograph 4 of P l. Corporal Mathiot who came onto the scene soon after the accident confirms that when she came on the scene, the injured were lying on the grass verge near the Chetty flats. Though subject to intense cross examination this evidence stood firm and was corroborative in nature. Inote that the witnesses identified numerous position where they fell given markings 1,2,3,XYZ and J and N, however all these are close to one another and on the grass verge as shown in Photograph 4. Iwill proceed to accept the evidence of the prosecution witnesses Nico, Gino and Dominique and Corporal Mathiot on this issue. Had the accident occurred while the accused was driving on the seaside as mentioned by him in his statement under caution, the victims would have not fallen on the grass verge on the mountain side. Iam inclined to agree with Learned Counsel for the prosecution on this Issue. [27] It would be pertinent at this stage to discuss the expert evidence of Dr. Parish Baria who ~. Clftcllt: '5 J.;",,;, CA~' Q .. tnyU.,r~G''''-''<>'<4.t-(' stated that a large number of injuries were on the right side of the victim, the injury resulting I-"l - ,01q ~ h in the death of the victim was on the right side and the leg injuries and serious injuries were on the right. He stated that the photos of the injuries on the brain of the deceased showed there were extensive haemorrhages in the cerebellum, thalamus and on the surface as well. He described the three areas of the brain where the haemorrhages were seen in detail. He further stated the impact injury on the head was on the right hand side and the force creating the injury in the brain was from the right side. The injury on the left side was a contre coup injury (refer evidence in detail at pg 27 of the proceedings of 091h November 2016. 9.00 a.m.). This evidence in my view clearly indicates that the deceased had been hit on the right o<"J h .. <) d,-qd <to....,., I'::" _Q.'I...u>I"'a I"J"''lJI.:) . ~ ~ side of his body and head by the vehicle. Had he been crossing the road from the mountain ~-l.- 2.0lY· side to the sea Side as suggested by the defence, the impact-injury-would have been tQJbe_ left side of the body and head, as the accused admittedly was driving his vehicle on the sea side lane in the direction of Anse Royale. The prosecution witnesses described the accident as happening when the vehicle of the accused had left the lane he was travelling to Anse Royale (seaside lane) and come across the road to the opposite lane and hit the victim who was seated on his wheel chair on the mountain side of the road facing Victoria. This evidence would be consistent with the impact injury being on the right side of the victim which is supported by the findings of Dr. Parish Baria that the impact and force creating the injuries to the head was from the right side. He refers to the injuries on the left side of the head of brain as contrecoup injuries which are defined as injuries in the head that occur on the opposite side of the impact. [28] The next ground raised by Learned Counsel for the defence was that the three witnesses could not be believed as they attempted to hide the fact that they were users of controlled drugs. All three admitted they were taking controlled drug Cannabis but had attended rehabilitation programs. While Nico admitted he used heroin too, all denied they were under the influence of any controlled drug at the time of the accident. The quick action of Gino pushing Nico on seeing the lights of the vehicle coming onto them and the act of Dominique Riaz in running behind the vehicle and telling the driver what he had done and in running to the police station, indicate they were alert at the time of the accident and Riaz even shortly thereafter. [29] Learned Counsel in cross examination elicited from Mr. Agathine, that proper procedures had not been followed by the police in this case as the scene had not been cordoned off, nor was he called early to photograph the scene, nor was the vehicle kept in the place where the accident occurred to be photographed. The evidence before Court indicates it was not the police who had moved the vehicle but the accused had driven off without stopping. The accused himself states in his statement under caution that he did not stop but drove away and eventually turned back. It was also in evidence that there was a commotion at the scene when the accused arrived back and people were attempting to assault him. This is borne out by the evidence of Corporal Mathiot who stated she had to take him to the police station to prevent any further incidents. Even the accused in his statement under caution, refers to the fact that he was assaulted when he arrived back at the scene. Due to this commotion - -- - - - - __ ._ --. Dominique had been instructed to keep the part of the bumper that had broken and fallen with him by Corporal Mathiot and to bring it to the police station later which he had done the next morning and handed it over to a police officer. Therefore the reason why the scene was not yellow taped or the vehicle not moved is clearly explained by the police. [30] The defence also strongly contended that the police had not prepared a sketch plan at the scene of the accident. In this instant case Corporal Mathiot explained due to the unrest at the scene she could not complete her rough sketch and only took measurements of the road and left to bring the accused to the station for his protection. She admitted the rough sketch was prepared by her the next morning and that the time was incorrect on document P8 produced in Court. She denied the defence contention that she had prepared all after the death of the victim several days later. In fact it appears in this case both the witnesses for the prosecution and the accused make allegations against the police. The prosecution witnesses alleged that things they had not said were written down by the police and allege bribery while the accused states the rough sketch plan and the proper sketch plan were prepared by the police after the death of Joshua several days later. Although the sketch map of the police was challenged on basis of belatedness and it being drawn from Mathiot's memory of the incident that occurred several days earlier, there was no suggestion that the sketch plan was incorrect or not in conformity with how the accident occurred. It appears from the evidence in open Court of the prosecution that the sketch plan is in line with the evidence, even though it may have been drawn belatedly. In this regard I draw attention to the case law referred to by Learned Counsel for prosecution namely Ditshoto vs The State 2003(1) BLR 191 (He) where it was held even where the sketch plan cannot assist in arriving at a just decision, the Court is entitled to look at other evidence and determine whether the offence of dangerous driving has been proved. [31] Having considered the damage sustained to the vehicle, I am of the view that the right hand side of the car being damaged further corroborates the evidence of the witnesses and the evidence of Dr. Pareshh Baria as set out above. It is clear that the impact was from the right hand side of the car driven by the accused towards Anse Royale onto the right side of the victim Joshua Bill who was seated in a wheel chair on the mountain side of the road facing ---------ornhe Victoria,after the vehicle that had been driven by the accused went across to the wrong lane oppositeside-(moulirai1fSide)of-theFoad~-Had-tI'leaccident occurred ilnhe marurer- -- - suggested by the defence in his lane when he was driving towards Anse Royale, the impact would have been on the left side of the victim Joshua. [32] Having considered the evidence of the prosecution witness though subject to lengthy cross examination I see no reason to disbelieve their evidence. Despite the fact that some of the eyewitnesses were themselves involved in the accident and sustained injuries and would have undergone trauma just prior to and after the accident, the evidence of the prosecution eye witnesses is of corroborative nature and is supported by the independent evidence of Dr, Paresh Baria, Mr. Rousteau and the police evidence as set out above. [33] For all the aforementioned reasons, I reject the defence and accept the evidence of the prosecution. [34] In the case of R v Marzetti 1970 SLR 20 the accused was charged with manslaughter under section 195 of the Penal Code and dangerous driving under section 18(1) (b) and (2) of the Road Transport Act. Sauzier J held that the degree of negligence required to establish manslaughter, must go beyond a mere matter of compensation between subjects and show disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment and proceeded to find the accused not guilty of manslaughter. Having considered all the aforementioned evidence in this instant case, I am inclined to hold that the evidence in this case does not establish the degree of negligence required to establish manslaughter in that the fact that the vehicle was being driven at an excessive speed at the time of the accident has not been established by the prosecution beyond reasonable doubt. [35] I will next proceed to consider Count 2, where the accused is charged for causing death by dangerous driving contrary to and punishable under Section 25 of the Road Transport Act (CAP 206). [36] Section 25 reads as follows: "A person who causes the death of another person by the driving of a motor vehicle on a __ - -_ -_ ----_-- road recklessly or at a speed or in a manner which is dangerous to the public, -having- - regard to all the circumstances of the case, including the nature, condition, and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be liable on conviction to imprisonment for a term not exceeding 5years" [37] In the case DPP v Newbury and DPP v Jones [1976J 2 All ER 365, it was held that in judging whether an act of the accused was dangerous, the test was not whether the accused himself recognised the act to be dangerous but whether sober and reasonable people would recognise its danger. Therefore as the test was an objective test, it was not necessary for the prosecution to prove that the accused knew that the act was unlawful and dangerous. [38] In the Seychelles too in Mervin Sedgwick v The Republic Crimina/Appeal SCA 2212014 Fernando JA referring to the case of DPP v Milton (2006) R. T. C. 21 DC held that section 25 envisages an objective test. He further elaborated in paragraph 17 what "dangerous" meant and gave several examples of driving that may support an allegation of dangerous driving. When one considers the decided facts in this case, the facts clearly indicate beyond reasonable doubt that the vehicle driven by the accused had left the lane it was travelling on and gone onto the opposite side of the road (mountain side) and hit the victim who was seated on a wheel chair facing Victoria. This clearly indicate~a standard of driving "far below "that expected of an ordinary competent and careful driver and it would definitely be obvious to an ordinary competent and careful driver that such driving was indeed • dangerous. [39] Having considered the evidence in this case, I have no hesitation in accepting the evidence of the prosecution and am satisfied beyond reasonable doubt that all the elements of the offence of dangerous driving as set out in Count 2 have been proved by the prosecution beyond reasonable doubt and the accused had been driving his vehicle on the road in a iYi manner which was dangerous to the public. I therefore proceed to find the accused guilty lit. cUal-r, ~ \G: VICklY)1 I-(__~I.l-I.(.~' \j'OS)tILC::~" I . 1\ on Count 2 and proceed to convict him of same. --Signed, dated-and delivered at Ile du. Port.on.l. February Zul Bc.,., ~(p yV M Burhan Judge of the Supreme Court 17