R v Brioche (CO 57/2017) [2019] SCSC 894 (14 October 2019);

Flynote: 
Headnote and Holding: 

Criminal law - manslaught - gross negligence - accused convicted 

GOVINDEN J

[1]        The charge

The Accused Person, Mr Adam Tim Brioche, stands charged by the Republic with the following offence;

Statement of Offence

Manslaughter contrary to section 192 of the Penal Code and punishable under section 195 of the Penal Code

Particulars of Offence

Adam Tim Brioche of Baie Ste Anne Praslin on the 15th of October 2017 at STC Compound in Grand Anse, Praslin, by an unlawful act and omission caused the death of another person namely Derick Gill who was hit by said Adam Tim Brioche by a car having registered number of S23590

 

[2]        The Prosecution case

In order to prove this case the prosecution called a number of witnesses and produced numerous exhibits as evidence.

The first witness called by the Republic was Dr Aquino Santiago. The Doctor has a degree in forensic pathologist and holds two degrees in legal medicine and at the time that he testified he was approved to work in Seychelles as a forensic pathologist by the Seychelles Medical Council. He testified that he examined the scene of the alleged incident in this case, which was at the STC Compound found at the back of the Pension Fund Building at Grand Anse Praslin.  He also examined the dead body of Derick Gill, herein after also referred to as, “the deceased”, thereafter during a post mortem operation that he carried out at the Grand Anse Praslin mortuary.   

[3]        The witness identified the body of the deceased and the car from an album of photograph produced in evidence. He testified that in his examination he wanted to know how such a little car could go over the body of the deceased, whom he described as a “big man”.

[4]        According to the witness when he examined the deceased he noticed a burnt pattern on his burned chest, he described this pattern as “a map” and that according to him this map could have been caused by the hot part of the engine of a car, after the car had been driven over and laid on top of the deceased whilst he was lying face up on the ground. He testified that the map is a pattern which is identical to the under part of the engine of car S23590 and that upon examining the part of the engine found under the said car, he noticed substances that looked like the burnt skin of the deceased .The witness went on to testify that the injuries found over the legs of the deceased shows that his legs were crossed over by the tyres of car S23590. He noticed, after removing the skin over the legs, that the skin on the deceased legs matched with the patterns found on the tyre of the said car.

[5]        As to the cause of death, Dr Santiago testified that the burn on the deceased did not caused his death. According to him the deceased died from asphyxia as a result of compression from the weight of the car. He went on to state that the burning of the deceased occurred before, but near the death of the deceased. According to him the car was driven on top of the deceased and it pressed on his thorax and abdomen, this had limited the breath movements of the deceased leading to his suffocation. The sequence of events being the deceased being hit, then run over, then suffocated by the weight of the car.

[6]        The second witness called by the Prosecution was Natasha Antoine. Ms Antoine worked as a Licensing Officer at the Praslin branch of the Seychelles Licensing Authority at the material time. During the course of her duties she was required to provide to the police the driving license status of the Accused person. She verified the licensing records and according to her the records of the Authority it revealed that on the 15th of October 2017 the Accused Person had no license to drive a motor vehicle.

[7]        Inspector Ralph Agathine testified that he is attached to the Seychelles Police Scientific Support and Crime Records Bureau. He is a finger print examiner; crime scene examiner and photographer amongst other specialities.  On the 16th of October 2017 he was requested by police officer Andy Bibi of the CID branch to assist in the examination of a crime scene on Praslin. He reached Praslin on the same day at 10.30 am. There he proceeded to the compound which was the scene of the crime. There he noticed a Hyundai i10, of registration no S23590 that was parked in the compound. He proceeded to examine the vehicle and he noticed tyre marks on the ground; a pair of flip fops colour yellow lying on the ground next to the car. He took photographs of both inside and outside of the car, including its engine. The officer also photographed another Hyundai i10 vehicle bearing registration number S23591, which was parked at the Baie Ste Anne police station, being a vehicle owned and used by the witness Jimmy Volcere on the 15th of October 2017.

[8]        The witness testified that he attended the autopsy carried out by Dr Santiago on the deceased body on the 17th of October 2017 and after collecting various exhibits from the Accused person, on the 26th of October 2017, in the presence of Sgt Brian Dogley he photographed several places indicated to them by the Accused person. These being locations where the latter said that he went with the deceased on the 15th of October and where he threw away a wallet; a mobile phone and two necklaces belonging to the deceased. The items collected on the various locations and the photographs taken by the witness were produced as exhibits. The album of photographs was produced as P12, of which its content were deponed to by the witness.

[9]        Mr Jemmy Pascal Volcere was the third witness called by the Republic. He is the business partner of the deceased. Their business included the Shield Security Agency, being the firm that was securing the Grand Anse Praslin, STC Wholesale compound. During the course of his professional activities he met the deceased on a daily basis. He was with the deceased at the STC compound at 8.30 am on the 15th of October. Both of them were there as security officers with their company. After work he, the deceased, in the company of his girlfriend, Lynn Lesperance, and his girlfriend’s sister, Vania, went on a drive in the deceased car. The car bearing registration number S23590. Early during the course of this drive they drank alcohol. At around 4.30 pm they saw the Accused person, at Cote D’or, next to the Berjaya hotel. There they gave him a lift and were to bring him to the Marie Jeanne Estate where he lived. Dereck Gill also lived there. They reached at the deceased place at 5.15 pm. The Accused person did not get off at the estate as from there all of them went to Anse La Blague. There they drank whiskey and smoke a cannabis cigarette. At 6.30 pm they left and went on their way to Marie Jeanne Estate they dropped off Vania. They reached the deceased place at 7.30 pm. There the witness said he took his car S23591 and went away with his girlfriend as both he and the deceased were going to do night duty at the STC. He reached the STC compound at 9 pm or 9.15 pm, when he reached there he found that the car of the deceased was not parked in its usual place and he saw Derick lying face down on the ground and the gates were opened. He put on the full light of his vehicle and he saw that the deceased had no shirt on and was covered with blood stains. He turned the deceased on his back and he noticed that the front part of his body was burn. He tried to do CPR on the deceased. Thereafter, he called his brother and Patrick Molle, a security officer, to come and assist him. The three of them lifted Derick and put him in his car and Derick was thereafter brought to the Baie Ste Anne hospital. They reached there in 15 minutes. At the hospital he was informed that Derick had passed away.

[10]      The witness also pointed to an incident that had happened when he left the hospital that night. He said that on the way back, he was driving his car and in the company of some other persons including Excianne Volcere and arriving at the 2000 Casino, at Grand Anse, he saw the Accused person and upon being asked whether he had seen Derick, the latter answered that he had not seen that “pilon”

[11]      The next witness called by the prosecution was Nathalie Tirant. She testified that on the 15th of October 2017 at around 11am she was working at a Casino at Grand Anse Praslin. According to her the accused person wanted her to change some foreign bank notes and she could not do so, the former had also bought and drank alcohol from the bar of the said casino.

[12]      On the other hand Excianne Volcere testified that she worked with the Shield Security Firm. The last time that she saw the deceased alive was on the 15th of October at 9am at the STC compound. She took over the shift from him. Derick left her there. Thereafter, she saw Derick’s body at hospital in the evening. The witness confirmed the evidence of Jemmy Volcere that when they left the hospital that evening they saw the Accused person at the  Casino 2000 at Grand Anse  and that the latter swore at them when he was asked about the where about of the deceased. According to her they immediately reported this incident to the police.

[13]      Ivan Esparon is an Officer of the Seychelles police force, he testified next, he is attached to the digital forensic section and he also specializes in extracting of evidence from mobile phones. In this case he extracted video footages; analysed it and produced it in Court as evidence. He extracted a footage on the 15th October 2017 at the office of Jemmy Volcere  situated at the Marie Jeanne estate next to the deceased house .He also extracted a video footage from the Grand Anse Praslin casino. The footage taken and recorded the Marie Jeanne Estate was viewed in Court. It shows the video of the deceased and the Accused person when they came to and left the deceased house together, past 7 pm on the 15th of October 2017.

[14]      Mena Gill, the wife of the deceased also testified. She lived at the Marie Jeanne Estate together with the deceased and her children. She explained that on the 15th of October 2017 Derick came back to her place at around 5pm and then left. She testified that he came with Jemmy Volcere and some other people at around 8.30pm. According to her this was the last time that she saw the deceased alive. She saw him went away with the Accused person in his car, with him driving and Adam sitting in the front passenger seat. The next time she saw her husband, he was lying dead in the Baie Ste Anne hospital.

[15]      Trevor Ferley testified that he is a police officer attached to the Mont Fleuri police station. On the 16th of October 2017 he was on duty on Praslin. At 1 am he received information that there has been an incident near the Pension Fund Building and he was asked to search for one Adam Brioche. He found the Accused person at the House 2000 casino at Grand Anse Praslin, where he took him to the police station. He found the car key of the deceased in the possession of the Accused person.  The officer thereafter arrested the Accused person for the offence of Manslaughter.

[16]      Brian Dogley is a police officer attached to the CID. He was part of the investigating team in this case. He was assisted in his investigation by Inspector Jeffrey Antoine. Following the interview of the Accused person in this case, he took a statement under caution from the latter. The statement taking was witness by Inspector Antoine. Following an objection on the admissibility of the statement, the court conducted a “voire dire” with respect to the voluntariness of the statement. Upon completion of the “voire dire” the court ruled that the statement was voluntarily given and therefore was admissible.  The statement was admitted in evidence as an exhibit.

[17]      The content of the statement under caution confirmed the evidence of other witnesses of the Republic about the car ride that the Accused person had taken in the company of the deceased; Jemmy Volcere; Jemmy’s girlfriend and Vanita. The Accused recounted the fact that he knew Derrick Gill very well but that he was not close to him and that on the 15th of October 2018 at around 5.15 pm whilst he was at Cote d’or he got a ride in a car being driven by Jemmy Volcere, in which he also found the deceased and the two other women. He described how they went to the Marie Jeanne Estate and arrived there at 5.35 pm and how from there they went to Anse La Blague where they drank whiskey and smoke cannabis. He stated that from there they went back to Derick’s house and how Jemmy went away with his girlfriend in a car.  He continued “I stayed there with Derrick and he went inside for about 5 minutes and then he came back with a bed sheet and he placed at the back seat of the car. During that time I had already turned the car around as Derick had told me to do before he went inside his house. I also saw two little girls who came from inside and came to the car before we left. It was at around 2000 hrs when Derrick came and entered into the car and we drove to Grand Anse until opposite to the old post office close to the bus stop which leads to the direction of St Joseph. There Derrick stopped the car and he told me to drive the car until at STC Whole sale further ahead. I took the steering wheel and Derick went and sat at the passenger’s seat. I drove the car which was an i10 which I could not recall the colour and I drove it until the office where Derrick got off the car and opened the gate. When he was done opening the gate, Derrick told me to turn off the car light which I did. Upon entering I applied the acceleration too hard and I went towards the left side where I instantly felt something under the car and this was stopping me from going much further ahead. Upon trying to do so the wheels of the car just spun and I was unable to do so .I remained  sitting in the car for 15 minutes because I panicking and scared and during that time the car was still on top of Derrick. Then I applied the automatic reverse gear which was on “R” and the car went backwards. I exited the car and I went to look at Derrick who was on the ground where he had fallen. He was lying down and his belly was going up and down and that made me noticed he was still breathing. I also noticed that the face of Derrick was turned towards the car and his feet towards a house close by. I called out to him once he did not respond, also I took his brown purse which was in his back trouser pocket, I removed two necklaces from around his neck and went away leaving him there on the ground. I would also like to state that before I first exited the car, I also took his mobile phone”.

[18]      The Accused person went on to state in his statement under caution that he took Seychelles rupees five hundred from the purse of the deceased and two notes of Kenyan money and then he buried the purse in the sand on the beach and threw away the two necklaces that he had taken from the deceased on the sand and that this was around 21.30 hrs. He also recount how he thereafter went to the Grand Anse casino and used the money to buy alcoholic drinks. The Accused person also recounted meeting Jemmy Volcere outside the Casino. However, he said when Jemmy asked him where was Derrick he simply said that he did not know.

[19]      The Accused person further recounted about an incident that had happened in the car between him and the deceased, when they were in the company of the others. He said that the incident occurred when they were going down the Valle de Mai. He said, “Derrick was sitting close to me. Upon arriving at Vallée de Mai, Derrick inserted his hand inside my pants and touched my penis. I told him to stop doing those things and he stopped the car and removed a knife with yellow handle which was in his right hand and he asked me if we will make anal sexual intercourse. I did not say anything to him and I remained silent and he asked me again to have anal sexual intercourse with him. I became a bit nervous and I told him to stop. He let go of me and started the car and we carried on our way.”

[20]      The Accused person ended his statement as follows, “And I would also like to state to the police that I do not have any license to drive and it was for that reason that I hit Derrick and went on top of him with the car. And also I did not know that Derrick was dead and I only found it out the next day in the morning”.

[21]      Having led the Accused person statement under Caution. The prosecution closed its case.

 

[22]      The Defence case

The Accused person was put his rights in accordance with the provisions of Section 184 of the Criminal Procedure Code. Having done so the Accused chose not to call evidence and exercised his right to remain silent in accordance with article 19(1) (h) of the Constitution. The Court draws no adverse inference from the Accused person decision to remain silent. The burden of proof remains on the prosecution to prove this case beyond a reasonable doubt.

The defence is entitled to sit back and allow the prosecution to prove its case, it has nothing to disprove. In this case, however, the defence has thoroughly cross examined witnesses for the prosecution and has made a final submission. From these it is apparent that the Accused person is putting forth a defence of accident.  This defence also transpires in the voluntary statement under caution given by the Accused person. In that statement the Accused person admitted that he had no driving license at the material time of the commission of the offence, nonetheless he drove the deceased car whilst the latter was a passenger. Arriving at the gate of the STC compound, the deceased went out of the car and open the gate and he accelerated and hit accidently the deceased and the car went over and got stuck on the deceased person. According to him it was when he reversed that he could finally drove off the body of Derrick.

 

The defence also put up a defence of lack of a causal link between the actions or omissions of the Accused person and the death of the deceased. This transpired in its final submissions.

 

[23]      The law

The offence that has been charged in this matter is of two kinds. That is constructive manslaughter and manslaughter by gross negligence.

In the case of L Ragain v/s Republic, SCA 2 of 2012, the Seychelles Court of Appeal held that “in order to prove constructive manslaughter there must be evidence to establish that the Accused intentionally performed an “act” and that “act” is unlawful and that “act” resulted in the death of a person. According to Section 10 of the Penal Code a person is not responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident for an act to be unlawful, it should be dangerous so as to be treated as criminal.

In order to prove negligent manslaughter there must be evidence to establish an omission; that omission should be unlawful; that omission should amount to culpable negligence to discharge a duty tending to the preservation of life or health; and as a result of such an omission death has ensued. An omission arises as a result of a breach of a duty of care. In cases of vehicular manslaughter it can be said that a duty tending to the preservation of life arises in respect of all those who can be foreseen as likely to be inspired by one’s action or omissions.”

 

At the outset I wish to point out that there is a lack of clarity in the charge before this Court as to whether the Republic has charged the Accused person and is proceeding with “negligent manslaughter” or “constructive manslaughter” in this case. This is so given the averments used by the prosecution in the particularization of the offence. That is the “by an unlawful act and omission”. I am minded to repeat what the Court of Appeal has held in that respect in the case of L Ragain, that is the need for drafting the charge in specific terms so as to avoid contention or prejudice.

 The averments “by an unlawful act and omission”, denotes both a positive and a negative act. Therefore, it may be argued that it connote both an intention and a negligence, hence both a case of negligent manslaughter and constructive manslaughter, though in the alternative.

However I am of the view that the content of the charge nonetheless reveals that a motor vehicle was involved in the commission of the offence. And evidence shows that a motor vehicle was being driven at the material time. Moreover, there appears to be no issue raised by the defence regarding the clarity of the charge in this case and as to what kind of manslaughter offence is charged before the Court. The defence was conducted and the parties made their submissions based on manslaughter caused by gross negligence. I hence find that the prosecution has laid the charge based on motor vehicle manslaughter or manslaughter by gross negligence rather than constructive manslaughter.

[24]      Accordingly, I am of the opinion therefore that the following are the essential elements of the offence has to be proven beyond a reasonable doubt;

(1)  The Accused person did an act which in fact created an obvious and serious risk of injury to the deceased Derrick Gill.(the “actus reus”)

(2)  That when he did the act he either had not given any thought to the possibility of there being any such risk or had recognized that there were some risk involved and had nonetheless gone on to do it. (the “mens rea”)

 

[25]      Discussions

(1)  Did the Accused person do an act which in fact created an obvious and serious risk of injury to the deceased Derrick Gill.

[26]      The Accused person has admitted in his Statement under Caution that he is not a licensed driver and this is confirmed by the Seychelles Licensing Authority. He hence drove the deceased car without having the competence of a licensed driver. As an unlicensed person his act of driving would have paused an obvious and serious risk of injury to the occupants of the car and other road users. According to his own admission he switched off the headlight of the vehicle when he entered the STC compound, hence he was driving in the night without any light on. Being unlicensed and therefore an unskilled driver and without any headlights on, he pressed the accelerator and attempted to enter through the main gate at the compound of the STC. These acts created an obvious risk to Derick Gill, who was at the material time out of the car and opening the gate of the STC in order to allow the car through. According to his Statement under Caution he “applied the accelerator too hard” and went to the left side instead of forward, where he instantly felt something under the car that was stopping him from going forward. The object under car, he later found it to be Derick Gill that he had hit and ran over.

[27]      It is clear to me at this point in time that the Accused person failed to use the car accelerator properly by pressing the accelerator too hard and the car then moved forward in a speed that was totally unexpected, whilst at the same time swerving to the left side and hitting the deceased. Those actions which caused an obvious risk to the deceased were compounded by the fact that earlier in the evening he had been smoking cannabis at Anse la Blague and had consumed whiskey at the same time.

[28]      I find therefore that the prosecution has managed to prove beyond a reasonable doubt that the Accused person did an act which in fact created an obvious and serious risk to the deceased.

(2)        Did the accused person failed to give any thought to the possibility of there  being any such risks or had recognized that there was any such risks and had nonetheless gone on to take it.

[29]      The evidence revealed that the Accused person acted with gross negligence. He never gave any thought to the possibility of there being such risks to the deceased when he took over the control of car S23590. He failed to address his mind that he was under the influence of a controlled drug and alcohol; that he was an unskilled and an unlicensed driver; that he was driving a vehicle at night after switching off the headlights and that the deceased who was opening the gate in front of the vehicle. Accordingly, I find that the prosecution has proven beyond a reasonable doubt that the Accused person failed to give any thought to the possibility of his action pausing an obvious risk to the deceased person.

[30]      The acts of the Accused person after he had ran over the deceased with his own car says a lot of his state of mind. After reversing from the body of the deceased, he went to examine Derick. He noticed that the latter was still alive and was still breathing. However, instead of helping the latter he stole the deceased purse, which contained cash and he took the cash and the jewellery and thereafter went to the Grand Anse Casino 2000. At the casino he used the stolen money to buy alcohol. Whilst he was enjoying himself Derick laid severely injured on the ground and probably dying. No attempt was made by the Accused person to bring to the attention of any person about the fact that he had hit the deceased, albeit accidentally. He would not care less about what had happened to or what was happening to the deceased.

[31]      As I have found the Accused Person put forward the defence of accident in its closing submissions. It is his case that the running over of the deceased occurred due to a lack of driving skills. I am of the view that this submission cannot afford a defence to the Accused person. To the contrary, it only proves that the Accused person failed to give a thought to the fact that, being an unskilled driver, he should not have been driving car S23590. Driving that vehicle the Accused person had a duty of care under Section 206 of the Penal Code.  Due to the absence of care or precaution in its use, the life of the deceased was endangered. Accordingly, he has caused the loss of the life of the deceased by the result of his omission to perform that duty.

[32]      I therefore convict the Accused person of the offence of Manslaughter contrary to Section 192 as charged in this case.

Signed, dated and delivered at Ile du Port on the 14th of October 2019

 

 

____________

Govinden J