R v Sinon (CR 32 of 2019) [2023] SCSC 329 (3 May 2023)

IN TIm SLJPIU:ME couur OF SEVCIIELLES -__ - - Reportable [2023] SCSC ..::);L0r· CR32/2019 . REPUBLIC (rep by Langsinglu Rongmei) and IVAN JULES SINON (rep. France Bonte) Republic Accused Neutral Citation: Befor"e: Summary: Heard: Delivered: . Republic v Ivan Jules Sinon CR 32 of2019 [2023] SCSC .......... delivered on 03rd May 2023 Vidot J Causing death by dangerous driving contrary to section 25 of the Road Transport Act; excessive speed, overtaking in an area where overtaking is disallowed 21-07-21,07-10-21,12-05-22,13-05-22 03 May 2023 and 14-07-22 The charge is established beyond reasonable doubt and the accused is accordingly convicted. ORDER VIDOT J The Charge JUDGMENT [II Tile ;\ccllsl'd is l'il:II"J',L'dOil,' ,'(1111111)1C:III.':illl',Ik:1111hy (i;IIII',('J'OllSdrivill(" l'Olllr:lI')' 10 and punishahlc under section ~S oJ'IIIl' l~o;ld Tr:II1'-;IHlrl;\('1. Tile particulars of the offence arc that Ivan SillOll, 47, )'l::lrS old, l'l'~;i(klll (II' ('Ilpoli(l, Mahc, on 071h May 2017, near the Botanical Garden, Mont llcuri, Mnhc, l':lll.'-;l'dth,: death of another person, namely Appolinaire Adele Rahajarivoarinclinn, 4) yrurx old, Malagasy national and resident of Hermitage, Mahe, by driving a car recklessly or al u speed and in a manner which was dangerous to the public. Synopsis of Evidence [3] Sgt. Antoine Amesbury has worked with the Police for 15 years. On 07th·May 2017, he was attached to the traffic section of the Police force. He had been working and at around " 11 pm to midnight, he had finished work and going home and when passing at Mont Fleuri going towards Victoria, he was overtaken by a vehicle and that vehicle hit someone after overtaking him. That was vehicle S8060, driven by the Accused. He was driving at around 45km per hour which means that the Accused was driving faster as he overtook Sgt. Amesbury. The speed limit in that area is 40 km/h. He heard a sound like a hit and S8060 stopped and he stopped next to S8060. That was in front of the Ministry of Foreign Affairs building. The Accused' later made a statement under caution (Exhibit P7B) admitting to have been involved in the accident. At the time the accident happened there was no other vehicles on the road apart from that of the Accused and Sgt. Amesbury. [4] Therefore, he stopped and attended the scene. He asked the driver of S8060 for his driving licence which he obliged. Then he marked the scene of accident with chalk. He had a torch with him which he used to light up the scene. However, there were also street lights that helped with visibility. WPC Sheryl Labiche who drew sketch plans of the accident scene marked as Exhibit P2A and P2B produced the same to Court as exhibits. He went on to call for assistance from Mont Fleuri Police station and the hospital. They came, but the ambulance came before the Police. The officers fr0111 the ambulance attempted to help the person who had been hit as he was then still alive. I Ann Ille injurc.t IV;IS l;iI,ell 10 Ilospil;iI, lie kepi 111l'Al't'tlSt'd under Ilis custody until the Police Irom the Mont Fleur: station arrived. I Ie look dOWl1lilt: p;lrlicliI;lrs ofthe Accused which was confirmed by his driving licence thai was Oil him. There wert; IWO other people Oil the scene who were sitting at the bus SLOpexcept for another lady who W<lS passing by. A mall on the bus stop said that "that guy just hit that guy" [However, Ih<ll part of evidence was not accepted to prove the truth of its content). II just confirms thar there was an accident in which the Accused was involved. 16] SgL Lindy Mellie was on duty on 07lh May 2017. She was on duty from 1.20 hours. She had received a call 1J'0111 Cpl. Bouzin of the Mont Fleuri Police station in respect to that accident. He wanted her to proceed to the scene and take photographs. When she arrived ," " at the scene, she met Sgt. Amesbury who showed her the scene. The person who was injured was not on the scene. She produced the album of photographs that was marked as Exhibit P J. She was questioned by Counsels in regards to the pictures taken and explained what each of them depicted. The vehicle driven by the Accused was later taken to the CID office at Bois De Rose where it was again photographed. That was because of better lighting condition then. , , [7] WPC Sheryl Labiche testified that on the night of 07lh May 2017, she was on night duty. She received a call in regards to the accident and she proceeded to the scene with an officer, SPC Sina, who is of Nepalese nationality. That would have been around 11.30 pm. At the scene she met with the Accused and Sgt. Amesbury. She was informed by the latter that he had already marked the scene. She drew the sketch plans, first the rough one (Exhibit P7A) and later the clean one (P7B). Both sketches were signed by the Accused. She assessed the scene including inspecting the Accused's vehicle, which was damaged, particularly the hood and windscreen. [8] Constable Robin Adelaide is attached t.o Mont Fleuri Police station. He gave evidence that on 07th May 2017, he was on night shift duty that had started at 7 pm or 8 pm. He received a call [rom Sgt. Toussaint who instructed him to assist WPC Labiche. When he got to the scene, he had' asked the Accused to accompany him to the station. A breathalyser test. was conducted on the Accused at the scene and it showed a negative I " reading. I Ie ;lIs() iSSllL'd III,' Al'C1IS,'d with an NIP (Notice of' Intended Prosecution) produce ;IS I':xllihil Pl. Till' Accused sigllcd IIIL: Nil>' I k kslificd thai thereafter, he proceeded 10 Victoria l lospitu] to examine ihc person injured in [Ill' accident. lie learnt 111;11111;11 person had already been certified dead. He went back [0 the station and informed the Accused that he would be arrested. 19J Sgt. Mandy Toussaint who was attached to the Mont Fleuri Police station went to the scene and Constable Adelaide was there. Be observed other officers carrying out their duty. At the station he witnessed Adelaide breathalysed the Accused. She made a report of the accident that was presented as exhibit P6. She noticed that on the day of the accident, road surface was dry and visibility was good. [10] David Belle who was working on the night of Oph May 2017, attended the scene of incident. He assisted other officers in the discharge of their duties. The Accused was brought to the CID office on 08th May 2017. In the presence of his lawyer, he was cautioned and he agreed to give a statement in writing. The Accused signed the statement which was given voluntarily. His Counsel also 'signed the statement. The statement was admitted as evidence in Court (Exhibit P7A and P7B). In that statement he acknowledged being involved in the accident but states that the deceased jumped in front od1is ~ehicle, he tried to apply the brakes to save that person, but could not. He made a request for VTS to examine the vehicle and a land surveyor to draw a plan of the area which was done by Mr. Y. Radegonde (Exhibit PI OC) and a request for a post mortem. [11] Andrew Savy was going for a musical show that night. That was to take place at the mini stadium in Victoria. He was going home at Hermitage to take a shower first. He was going up the road that leads to the hospital. He was still next to the bus stop, when he noticed a vehicle coming, He noticed someone that was standing on the same side of the foreign affairs building. That person was wearing dark clothes but a light from that person's phone made him noticed that there was a person there. He noticed that he was well dressed. When he lifted his head, he heard the screeching of brakes and a hit. There were people at the bus stop. He heard someone saying that he is a health officer. Andrew rcxiificd lhell he wnx in shock. Later when the <llllillll;II1L'(' C;1I11e,lie noticed the Accused. 1lc nlxo noticed a police officer coming from another vehicle. The Accused's vehicle "vas sent for examination at the Vehicle Testing Slalio/} ("VTS"). Neil Lasplace was the examiner who conducted the examination. The VTS carries out test to ensure that vehicles on the road are roadworthy. The request to conduct the examination emanated from the Police (Exhibit P4). After testing the vehicle, he produced a report (Exhibit P5). The major findings upon examination were the broken windscreen, dents on the bonnet, damage to the bumper and fender. The lyres were badly worn out. Tests on the brakes could not be carried out due to condition of the car. He testified that the windscreen could only have been damaged as it was, if the object hit against it with force. He further added that the bonnet could not easily be dented as it was and that the vehicle was going at excessive speed. The state of the tyre suggests that the vehicle could not be used. In his expert opinion the vehicle would' have been travelling at around 60 to 80 kilometres 'per hour but in answer to a question from the defence Counsel, stated that such damage could also be caused if the vehicle was travelling at 40 km/h. , [13] Dr. Luiz Perdomo Rodriguez is a pathologist working with Victoria Hospital. He was called to explain the post mortem report of Dr. Maria Santos who is the pathologist who conducted the post mortem of the deceased. She is no longer in Seychelles. However, Mr. Williamson Rabbat, assistant pathologist, who has been working as such for 33 years, worked with her and attended the post mortem when it was conducted and he saw Dr. Santos signing the report. He also testified that having worked with Dr. Santos for two years, he had witnessed her signing documents many times and was familiar with her signature. [14] Dr. Santos in the post mortem report of Mr. Rahajarivoarinelina (Exhibit PII), concluded that the causes of death were severe brain oedema and multiple head injuries as a result of a road accident. She had observed multiple skull fractures. [15] The Defence did not call any witnesses and did minimal cross examination. However, from the little that Counsel for the Accused provided to Court, it appears that the gist of [IIC defence is [11;11Illl' ;1l'cicicIII W:IS C:III.,)cci hy Illl' dl'l'C:I,)l'ci wlu: jllSI su.ldcnly darted onto the rn.id The Law /1(j] Section 25 of the Road Traffic Act provides as follows; "A person who causes the death ofanother person by the driving of a motor vehicle on a road recklessly or at a speed or manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, conditions 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 imprisonmentfor a term not exceeding 5years, " [17] Therefore, section 25 postulates an objective test. This is what was held in ])DP vMilton (2009) R. T. C 21 D. C. In Evenor v R [1972J SLR 91, it was held that that the offence of dangerous driving is not an absolute offence and whether or not a piece of driving is dangerous is to be viewed objectively taking into account all the circumstances of the case. Fault in falling below the required standard of skill must be proved against the I I driver. The proof required is that the driver was responsible for causing the dangerous situation and whether such is deliberate or not is immaterial. The case went on to add that the fault of the driver need not be the sole cause of the accident. In this case, the Accused claims that the deceased suddenly crossed the road. [18] In Sedgwick v Republic (SCA 22 of 2014)[2017] SCCA 4 (2pt April 2017), the Court of Appeal referring to DPP v Milton, observed that "proof of guilt depends on an objective standard of diving, namely what should have been obvious to the competent careful driver. The standard of driving must fall 'fall below that expected of an ordinary competent and careful driver and it must be obvious to an ordinary 'competent and careful' driver that the manner of driving is dangerous, The special skill of a driver is an irrelevant circumstance when considering whether the driving is dangerous, for taking that into consideration would be to substitute the standard of driving with special skills for that of an ordinary, competent and careful driver, " II<JI Till' C'our: (If'i\pjlc;iI wen: Oil (0 add ill S(·dg"ii.'k" I~qnlbli(' (xuprn ) 111;11d:lIlgcr "refers fo tlu: don?,a oj" injury to (/ person or serious c!ilil/(/,!!.<' fo /)/'1)/)('/'/1' 111/11 fOAill.!!.info consideration the duty casts under section 206 of the Penal Code Oil (/11 I/S('/",I" ()j"vehicles /0 fake reasonable care and reasonable precautions to avoid any danger while in control oj the vehicle. The following examples of driving may support an allegation of dangerous driving; racing or competiting against another vehicle, showing off speed which is highly inappropriate, for prevailing road or traffic conditions like driving head-on when there is oncoming traffic; aggressive driving, such as sudden lane changes, CUlling into or overtaking a line of vehicles,' driving much too close to a vehicle in front, unless in a traffic jam,' deliberate disregard of traffic lights and other road signs,'. disregard of warnings from fellow passengers,' driving with a load that presents a danger to other road users,' where the driver is suffering from impaired ability such as having driving an arm or leg in plaster, or impaired eyesight,' or is known to be as epileptic who is not on medication,' driving when too tired to stay awake,' driving while in an intoxicated state, including legal medication known to cause -drowsiness; driving while using a mobile phone, without an ear piece, whether as a phone or to compose or read text messages. In A-G's Ref (No. 17 of 2009) (Curtis) (2009) EWCA Crim. 1003, , , the Court of Appeal confirmed that there is never any excusefor texting or using a hand-held mobile phone while driving. " [20] It was held in Taylor (2004) EWCA Crim. 213 that it is not every breach of the Highway Code that will be sufficient to establish the offence of dangerous driving, although it will be a guide as to the standard to be expected of a careful and competent driver. Discussions [21] It is not disputed that Mr. Rahajarivoarinelina died as a result of an accident that occurred the evening of 07th May 2017 at Mont Fleuri. The post-mortem report determines that the causes of death were severe brain oedema and multiple head injuries as a result of the accident. The Accused was driving vehicle S8060 when the accident happened. The Accused disputes that he is responsible for causing the death of the deceased albeit that his ('<)lIIlSC/did Ilot cxpress/y raisc mucl: ol':! defence hut despite th:!t the onux is always Oil the Prosecution to discharge the burden beyond rcasonab!c doubt Therefore, ill order (0 make out the charge, the prosecution needed to establish that the Accused standard or driving fell below that reasonable, competent and careful driver considering all the circumstances of the road at the material time. r22] The Accused had not prior to the accident consumed any alcohol. Const. Adelaide testified that the Accused was breathalyscd for alcohol and the result came out negative. It is also in evidence that the deceased was wearing black. Andrew Savy stated that he noticed the deceased from the reflection of light from his mobile phone which he was using prior to the accident. However, I note that there are lampposts in' that area. The deceased could not have been fully invisible. He was at that time standing on the side of road near the Ministry of Foreign Affairs Building. Was the fact that the deceased was wearing black made it difficult for the Accused to have noticed him. Ido not think that is the case, since there was lighting in that area, but it certainly made him less noticeable, particularly to a vehicle coming an 'excessive speed. , , [23] The evidence of Sgt. Mandy Toussaint, Sgt. Lindy Mellie and WPC Labiche nonetheless make it clear that the road was not wet that night and that there was good visibility. The pictures, exhibit PI(2), (14), (15) and (16) show that this stretch of road has many lamp posts and is reasonably well lit. There are some big buildings in the vicinity that are well lit. That is indication that visibility at the scene was reasonable. Furthermore, it can safely be assumed that the Accused was driving with his headlamps on. That means that a prudent and careful driver would have able to see objects on the road if moving at a slow speed or a speed prescribed for that area. [24] However, though normally a busy road during daytime, Sgt. Amesbury gave evidence that that area of the road was not busy. At the time of the accident only his and the Accused's vehicle were on the road. This despite the fact that according to Richard Savy, there was a musical show in town which is near to the Mon Fleuri Road. Therefore, the Accused's focussed would have been drawn to few happenings on the distraction would therefore have been less, but since it was night time, road. Any r am of the r OPIIlIOII lilal :1 competent alld careful driver wonk] he cOII."cioliS 111:1{certain objects or people Oil the mau would be less visible despite there being sufficicm lighting. 1251 A'i stared at the time of the accident, the only vehicles on that stretch of Mont Flcuri were those of the accused and Sgt. Amesbury, according to the latter. Officer Amesbury W8S travelling at 45km/h in a 40km/hr lone. That confirms that the Accused would have been driving in excess of 45Km/h because as per Sgt. Amesbury, the Accused overtook him. Sgt. Amesbury stated that just after the Accused hac! overtaken him, he heard a 'hit'. By that he was referring to the accident. I am of the opinion that since the Accused was going above the speed limit, upon turning into his lane he did not have sufficient time to appreciate the situation and hit the deceased who it appears at that time was ..crossing the road. [26] The sketch plan (P2) and the pictures (PI) will give a better indication. From the sketch plan prepared by WPC Labiche there is a skid marks which was 7.85 meters. That is indication that the vehicle was going at considerable speed. In my opinion if the vehicle was going at the prescribed 40km/h, the vehicle would not have skidded so far eVt7nafter , heating the deceased. After hitting the deceased, it went some distance before stopping. Furthermore, after hitting the deceased with his vehicle, skidded and stopped, the deceased was thrown 6.95 meters from the point where the vehicle stopped. That is further indication of the speed the Accused was driving at. [27] Neil Laplace who is a vehicle examiner testified that the Accused would have been travelling at 60kn/h to 80k111/h at the time of the accident suggesting that the Accused was speeding. Nonetheless, he admitted to Counsel for the Defence that it is possible for the vehicle to have sustain such damage if the vehicle was travelling at 40km/h. I have reservations as to that latter statement. In any case, Sgt. Amesbury testified that he was going in excess of the prescribed speed and for the Accused to have overtaken him he therefore had to be travelling faster still. [28] Several of the pictures in PI depicts vehicle S8060 with a huge dent on the bonnet and a windscreen that is extensively cracked, suggesting that the deceased was hit, went over the bonnet, smashed against the windscreen and then thrown 6.95 meters away as TIl· evidence Ih;11the vehicle speed. Applying the objcc! ivc text adopted in DPP v Milton (supra) one cannot state that driving a vehicle at such excess speed thai end lip hitling the deceased who died as a result of the accident, as behaviour of a careful and competent driver. As J have already stated the test is an objective one and it does not matter if (he Accused did not believe the act to have been dangerous. In DPP v Newbury and DPP v Jones [1976] 2 ALL ER, it was stated that judging whether the act of the accused is dangerous, the test is not whether the accused himself recognised the act to be dangerous, but whether a sober and reasonable person would recognise its danger. [29] Finally, it is clear from the pictures in Exhibit Pl, that that stretch of Mont Fleuri the two traffic lanes are separated by a hard white line as opposed to a broken white line and as provided for under the Road Transport Act, Rules of Road, a hard line in the middle of the road is indication that it is not an overtaking area and therefore, in overtaking Sgt. Amesbury, the Accused was driving in a manner that was dangerous. Determination [30] I am satisfied that the Prosecution has estabI ished its case beyond reasonable doubt and I indeed the Accused's manner of driving was negligent and reckless having regard to all the circumstances. His manner of driving fell well below the standard required of a prudent and careful driver. Therefore, I find the Accused guilty as charged and convict him accordingly. Signed, dated and delivered at Ile du Port 03rd May 2023 10