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R v Lai Lam (CO 63 of 2018)  SCSC 283 (14 May 2020);
Dangerous driving causing death (section 25 of the Road Transport Act) proved beyond reasonable doubt – Manslaughter (section 192 of the Penal Code) not proved – Section 10 of the Penal Code
 The accused Roland Robert Lai Lam has been charged with the following offences:
Manslaughter contrary to Section 192 of the Penal Code and punishable under Section 195 of the Penal Code.
The particulars of the offence are that Robert Lai Lam of Copolia, Mahe on the 20th October 2018 at Palm Street, Victoria, Mahe unlawfully killed another person namely Nagib Renaud, while driving motor vehicle having registration number S17801.
Count 2 (Alternative to Count 1)
Causing death by dangerous driving contrary to Section 25 of the Road Transport Act (Cap 206).
Particulars of Offence:
The particulars of the offence are that Robert Lai Lam of Copolia, Mahe on the 20th October 2018 at Palm Street, Victoria, Mahe caused the death of another person namely Nagib Renaud by driving motor vehicle having registration number S17801 on the road at a speed or in a manner which is dangerous to the public.
 The accused denied the charges.
 The prosecution opened their case by calling witness James Matheka a Land Surveyor, attached to the Ministry of Habitat Infrastructure and Land Transport. He stated that, at the request of the police, he had done a site layout at the scene of an accident which had taken place on Palm Street, Victoria, Mahe. He produced his survey map of the site as P1 and his survey report as P1 (c). He described the location of the places on the said map. He stated that he had marked the points A to J based on the police sketch plan. He stated that even though there were markings on P1, A to J, he had not specified what the markings were as they were given by the police officers. He admitted under cross examination that all the points were indicated to him by the police officers present and that he had marked them according to the sketch plan.
 The other witness Mario Brigilia stated that he was on duty since the 19th October of 2018 at 7.00 pm and his shift was due to end at 8.00 am. On the 20th of October around 6.50 am, he received an order to assist the central police station in respect of an accident that had happened in town. He was asked to find the person involved in the accident, one Roland Lai Lam. The witness went to the place that he lived and saw a man who said he was the said Roland Lai Lam. The witness then contacted the CID and they informed him that there was a case registered against Mr. Lai Lam. Witness proceeded to arrest Mr Lai Lam, doing the necessary formalities during his arrest. He identified the accused in the dock as the person he had arrested and that he had seen him around 7.00 am. Under cross examination, the witness stated that he had phoned the CID to verify the nature of the charge against the accused prior to arresting him. The accused had been informed that he was being arrested for manslaughter.
 Witness Alexander Bethew produced the photographs taken of the scene and the vehicle S 17801 and also the post-mortem photographs of the deceased Nagib Boris Renaud as P2 (1 to 48). He described the photographs taken by him in detail and the markings. Photographs of the scene were 1 to 10. Photographs 11 to 18 showed the vehicle of the accused S 17801 involved in the accident and the damage to it. Photographs 19 to 21 showed the accused and the injuries on his right hand while photographs 22 to 48 showed the numerous injuries both external and internal on the victim Nagib Renaud taken at the mortuary and during the post-mortem. Under cross examination, the witness admitted that he could not say whether the vehicle shown in photograph 4 of S13392 had been moved. He stated that the vehicle shown in photograph 12, S17801was photographed at the house of the accused. He confirmed that the damage to the vehicle S17801 shown in photo 12 to 16 were on the driver’s side.
 Witness Martin Fanny stated that he was a self-employed maintenance contractor. On the 20th of October 2018, he came from Barrel Bar, went outside and took his motorbike registration number S26895, reversed and drove away. He did not realize that there was a car behind him and proceeded on when, near the church of Immaculate Conception, he noticed a car honking behind him. He slowed down and stopped near the H. Savy Insurance firm. The vehicle that was following also stopped and the driver of the vehicle and two other persons in the vehicle got down. They told him that he had hit the door of the car. The two other persons with the driver were aggressive, but the driver told them to let him be and that he will speak to the witness. The witness stated a little while later that he could vaguely remember a white car passing by which brushed against a bit of his foot. He stated that everything happened quickly so he could not see exactly what happened. Later he went to the hospital as he felt a bit of pain in his foot. He left the scene from the Cathedral and went towards Orion Mall and then La Louise. He further stated that the incident occurred around 4am and the vehicle that stopped next to him from which the persons got down was blue in colour. The witness stated that they were aggressive. He admitted that he too had consumed liquor.
 The next witness Joachim Allisop stated that he worked at the Scientific Support and Crime Record Bureau (SSCRB). He stated that he was on duty on the 20th of October 2018 when he received from Sub Inspector Sylvette Lemiel one blood sample taken from suspect Lai Lam. He kept the said sample in his custody under refrigeration. He also received samples of stomach content and blood from Dr. Ramirez Salas taken from the deceased. He had signed, sealed and dated all samples and kept them in safe custody under refrigeration in the SSCRB office. On the 6th of December, he handed over the samples to Corporal Mellie for further analysis. He prepared an exhibit chart which he produced as P3. He proceeded to describe the details in the chart. He admitted that he had given the samples for testing to officer Mellie but had not received them back.
 Officer Ivan Esparon attached to the SSCRB stated that he had a specialized qualification and international training in the extraction of mobile phone data, video footage, GPS and computer data. He stated that, on the 14th of November 2018, he received a pendrive from SI Lemiel containing footage of an accident that occurred on the 20th of October 2018 at Palm Street. There were six videos on the pendrive which he examined and prepared a report on. The accident involved a person being hit by a car. He produced his report based on the video footage examined by him as P4. He produced the pendrive as P5. The first video file showed the footage of Palm Street. He stated on the left of the road shown in the video was the bus terminal. The video start showed a time of 04.21.45 am. He stated that there was a traffic light at the top of the road. The footage from this video shows a motorbike travelling along Palm Street in the direction of the traffic lights situated near the bus terminal, and stopping on the left hand side of the road by the side of the pavement. A car stops next to it and parallel to it. Three persons disembark from the vehicle from the driver’s seat, front passenger seat and rear left-hand side seat. They begin talking to the person on the motorbike and all come to the right-hand side of the car near the driver’s door. It is to be noted that the car is parked facing the traffic lights and on the centre line of the road and in front of the parked car is a pedestrian crossing. Cars are seen to pass by this stationary parked car, some overtaking and some coming from the opposite direction. During this time some aggressive behaviour is observed from the persons alighting from the car. At 04.27.30 am, a car is seen coming from the bus terminal side in the opposite direction to the parked car and hits one of the persons standing on the driver’s side of the parked vehicle. The person hit gets thrown over the parked vehicle onto the left-hand side pavement due to the impact of the collision. The vehicle that hit the person stops and thereafter a person disembarks from the driver’s side of the said vehicle. The video is somewhat blurred at this point. The vehicle that hit the person appears to be white in colour. Thereafter, the driver gets back into the vehicle that hit the person and drives away. The police arrive on the scene around 04.31.40 am, and the car which was parked parallel to the motorbike towards the centre of the road is pushed to the left-hand side of the road and parked. This occurs at 04.34.49 am. The injured person is then taken away in an ambulance at 4.37.26 am. A person is seen removing some bottles from the car from the parked vehicle and throwing them.
 Under cross examination, it was pointed out there was an argument and altercation just prior to the accident occurring and that the person who was hit by the vehicle was standing at the time of the incident in the lane of vehicles going in the opposite direction, close to the white line in the centre of the road. It was also pointed out to Court that after hitting the person, the vehicle had stopped. Learned Counsel for the accused also brought to the attention of the Court during cross examination that the vehicle which was parked towards the centre of the road was being pushed to the left-hand side soon after the incident around 04.34.50 am. Further around 04.37.11 some empty pints were being removed from the vehicle and thrown. It was also apparent that there was a white unbroken line in the centre of the road where the incident occurred.
 Due to the video produced on the pen drive P5A subsequently not functioning properly, copies of the same footage was produced on DVD 1, 2 and 3 and produced containing copies of the same footage. These were produced as P8, P9, P10 and P11. There was no objection from learned counsel for the defence as the videos were subsequently played in open court and verified by witness PC Monchouguy as true copies as it was he who had extracted the footage captured by the cameras of the incident. Witness Monchouguy admitted that the videos showed the persons arguing in the middle of the road. He also confirmed that the vehicle had stopped by the side of the motorbike near the solid white line in the centre of the road. He also confirmed that at the time of the accident, the person hit was standing in the lane of the vehicle which hit him. Witness Lindy Mellie also attached to the SSCRB stated that she had taken the exhibits to Mauritius. The exhibits were one blood sample from the accused Robert Lai Lam, JA01, stomach content from deceased Nagib Renaud JA02 and blood sample from deceased JA03. Report P6 was produced through this witness to indicate that samples were received in good condition in Mauritius with no tampering. Officer Yves Leon stated that he had proceeded to Mauritius to collect the said reports which were produced as P7. From the report it could be gathered that sample JA 01 taken from the accused when analysed contained ethyl alcohol at a concentration of 32 mg (below 80 mg) per 100 ml of blood. JA3 taken from the deceased was found to contain 43 mg per 100 ml of blood.
 From the evidence of witness Adrian Camille, it was gathered that he and his friend Dominic Simeon had been at the Barrel discotheque and had been looking for a ride home when they got a ride from a friend of theirs – Nagib Renaud. It is apparent from the evidence that vehicle S 13392 shown in photographs 7 to 10 was the vehicle they had travelled in. While they were nearing the taxi pirate car park, a motorbike had hit them and continued on its way. They had got down and seen that the car had been dented a bit and followed the motorbike. They came across the rider of the motorbike lighting a cigarette. When they stopped to talk he drove away. They followed behind him pressing the horn for him to stop. He stopped and they spoke, at which point a “disagreement” occurred. At that point, Nagib, their driver, said to let it be and asked them to get into the car to go. When the witness was going to get into the car something hit his foot. He looked to see what had happened and saw his friend Nagib had been thrown further away due to a car hitting him. The driver stopped a little further and witness saw that he had a pony tail and glasses. He identified the accused in open court as the driver of the vehicle that hit his friend Nagib. The witness stated that the accused had got down from the car and they had asked him to call an ambulance. He refused to and got into his car and drove away. He identified the vehicle in the footage parked next to the motorbike as the Peugeot car driven by Nagib in which they were travelling that night. The witness stated that the vehicle driven by the accused was coming very fast and that due to the impact the victim Nagib was thrown a long distance. Under cross examination, the witness admitted that the other vehicles had to go slowly as their vehicle (the Peugeot) had been parked in the middle of the road. The witness admitted that he had hit the motorbike driver Martin Fanny. He agreed that at the time Nagib was hit by the vehicle, Nagib was on the other side (lane) of the road. The witness further admitted that it was he who had pushed the Peugeot car to the side of the road and thrown the bottles. He further explained that at the time Nagib was hit, he was on the other lane but only slightly outside the white line on the centre of the road.
 Dr. Shiram testified that he was the doctor on duty at the emergency when Nagib Renaud, 25 years old, was brought on the 20th of October 2018 to the emergency unit at 4.30 am after being involved in a road traffic accident. Nagib had sustained a head trauma due to injuries to the head, and his pupils were fixed and dilated. He had multiple injuries to his chest and abdomen. An intensivist was called but very soon after the patient developed cardiac arrest and died. The witness produced the medical report as P15. He stated that one Adrian Camille was also treated but had no injuries but an X ray of is right foot was taken. He left the hospital without being discharged. One Martin Fanny had also come and had an X ray taken and left without being discharged.
 Sub Inspector Sylvette Lemiel in her evidence stated that on the 20th of October 2018, she was informed of a fatal accident and the information provided was that the person involved in the accident was living in Copolia. She had proceeded to the house with Officer Gino Moustache. When she arrived at the house, officers of the Mont Fleuri police station were present and she introduced herself to the suspect who stated that he was Robert Lai Lam. She then inspected his car which was a Sirion Daihatsu bearing registration S 17801. She examined the car and observed that the right side front windscreen was smashed, the headlamp broken and bumper dented. She identified the car in photograph 12. She highlighted the damage as seen in the photograph as the right side windscreen broken, and right side headlamp broken. There was no side mirror on the driver’s side and the right side bumper was dented. The vehicle was seized and brought to the CID headquarters. The accused was informed of his constitutional rights and his right to remain silent but the suspect elected to give a statement. She had taken down the statement of the accused after observing the formalities and produced the statement as P12. Thereafter, the accused was taken to Victoria hospital and a nurse had taken a blood sample from him with his consent. She then obtained the video footage of the incident from PC Monchouguy. She identified the video footage she obtained in open court. The notice of intended prosecution was produced as P14.
 The next witness Officer Randell Georgess Gappy stated that he was in his car driving when he took Palm Street Road and came across the accident. He stated that he had not been on duty. He observed the accident, people shouting, and a body. The accident occurred on Palm Street beside the Maison La Rosiere building. He too called for assistance and then, when the body was taken away, he drew a sketch map. He stated that he was not on duty but the first officer on the scene. He produced his rough sketch as P16 and clear sketch plan as P17. He described the scene of the accident at Palm Street being a straight road with electric poles and street lights on both sides. The road to the traffic light was long and straight. He stated that the road was a broad road in which two cars could pass easily. The width of the road was 7.24 metres (written as cm) and the cross on the sketch plan was where he found the flip flop. He stated there was blood on the road near the deceased. He had drawn circles where the blood on the road was. He admitted he had not witnessed the incident. He referred to the SLOW signs on the sides of the road. It is apparent from his sketch plan that the distance from the flip flop to the circles drawn by him is 17.30 metres.
 The next witness Dr. Raul Ramirez Salas is a forensic Pathologist. He stated that on the 22nd of October 2018, he had conducted a post-mortem on a male body of Nagib Boris Renaud. He produced his report as P18. He mentioned the large number of injuries on the body of the deceased and described them in detail. The evidence of Dr. Salas was that considering the number of injuries and the seriousness of the injuries due to the strong impact, the car that hit the deceased was travelling very fast. It is clear from his evidence and his report P18 reveals that the victim Nagib Renaud had died due to fatal injuries sustained as a result of a road traffic accident.
 The accused in his defence chose his right to remain silent and both parties thereafter made submissions. No adverse inference should be drawn from the fact that the accused chose to remain silent.
 At this stage it would be pertinent to refer to the case of Regina v Adomako  3 WLR 288 where it was held by the House of Lords, following the case of R v Bateman (1925) 19 Cr App R 8, that in order to establish culpable, gross or criminal negligence or whatever epithet that may be used, the prosecution should establish that the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.
 In Seychelles, 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 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 to establish a charge of manslaughter.
 On considering the evidence of the prosecution witnesses as set out above, it is clear from the evidence before the Court that the victim Nagib Renaud was standing in the lane in which the accused’s vehicle was travelling at the time of the accident – having parked his own vehicle close to the centre of the road rather than the pavement. Having done so, according to the evidence before the Court, the victim Nagib went to the driver’s side of his parked vehicle to show witness Martin Fanny where he had hit the car. Having considered these material facts peculiar to this case, I am inclined to believe that gross negligence required to establish a charge of manslaughter has not been established by the prosecution.
 Count 2 is based on dangerous driving under section 25 of the Road Transport Act. 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 5 years”.
 In the case of DPP v Newbury and DPP v Jones  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.
 In Seychelles too in Mervin Sedgwick v The Republic Criminal Appeal SCA 22/2014 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 facts as borne out by the evidence of the witnesses and viewed from the video footage, it is clear that the impact of the collision was severe. The video footage, sketch plan and evidence also clearly indicate that the victim was hit and thrown a considerable distance – even over the parked vehicle close by to the victim. The high impact is also supported by the medical evidence which indicates that the victim had a large number of serious injuries. All these facts read with the evidence of witness Adrian Camille indicate that the vehicle was being driven at a fast speed by the accused. The evidence also indicates that there was sufficient room for the accused to pass by the victim without colliding with him, it is clear that the evidence given by all these witnesses stands corroborated by the video footage. I therefore proceed to accept the evidence of the prosecution witnesses on all these issues. The Court is satisfied that all these facts clearly indicate beyond reasonable doubt that the standard of driving was “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 reckless and dangerous.
 Further the accused in his statement given under caution, which was produced as exhibit P12 without challenge, admits he was driving the said vehicle. In addition, witness Adrian Camille identified him as the driver in open court.
 In defence learned Counsel drew the attention of this Court to section 10 of the Penal Code, which falls within the section ‘General Rules as to Criminal Responsibility’, which reads as follows:
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omissions which occurs independently of the exercise of his will, or for an event which occurs by accident.
 It is the defence’s contention that the act committed by the accused in this case did not amount to a negligent act as per the standard required by law, but rather resulted from an accident. As such, the defence submits that the accused ought to benefit from the defence afforded to him under section 10 of the Penal Code. On that basis the defence submits that the prosecution has failed to prove their case beyond reasonable doubt and hence the accused must be acquitted.
 The defence submission in this respect reflects a misunderstanding of section 10. Firstly, section 3 of the Penal Code expressly stipulates that nothing in the Code affects “the liability, trial or punishment of a person for an offence against any law in force in Seychelles other than this Code.” The charge for dangerous driving causing death is under the Road Transport Act – not the Penal Code.
 Furthermore, the rule in section 10 is subject to “express provisions of this Code relating to negligent acts and omissions”. For instance, there is an express provision relating to negligent driving at section 229 of the Penal Code which makes it an offence to drive in a manner “so rash or negligent as to endanger human life or to be likely to cause harm to any person”. However Section 25 of the Road Transport Act contains its own standard for the commission of the offence – that is: driving a car “recklessly or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case”. It is the view of this Court that if the prosecution succeeds in proving these elements as set out in section 25 beyond reasonable doubt, the defence of accident cannot succeed.
 Regardless, the evidence before this Court indicates that section 10 would likely not apply in the circumstances. There is no evidence to indicate that the act of dangerous driving occurred independently of the exercise of the defendant’s will. Furthermore, the death of the victim was not accidental in the nature envisaged under section 10. Whether the “event” was an “accident” requires applying the reasonable foreseeability test: see extensive jurisprudence from Australia (QLD) which has a very similar provision in its Criminal Code – i.e. R v Taiters (1996) 87 A Crim R 507 (QLD), Van Den Bemd (1994) 179 CLR 137 (QLD), Kaporonovski v. The Queen (1975) 133 C.L.R. 209 (QLD). The “event” in this case was the death of Nagib Renaud. The prosecution has established as set out above that the event occurred as result of the accused driving his vehicle in a dangerous manner and that the standard of driving by the accused was “far below” that expected of an ordinary competent and careful driver. It would be obvious to an ordinary, competent and careful driver that such driving was indeed reckless and dangerous, and could lead to the “event” of death such as in this case. In such circumstances the defence that the crash occurred accidently as envisaged by section 10 thus fails and bears no merit. I therefore proceed to reject the defence case.
 For all the aforementioned reasons, I am satisfied beyond reasonable doubt that all the elements of the offence as set out in the alternative Count 2, have been proved by the prosecution beyond reasonable doubt.
 Further in passing, though not relevant to proving the charge, it is pertinent to observe that the evidence before the Court indicates that the accused stopped soon after the accident but drove off thereafter before the police arrived on the scene, giving scant heed to the condition of the victim.
 As I am satisfied the prosecution has proved the charge contained in the alternative Count 2 beyond reasonable doubt, I proceed to find the accused Robert Roland Lai Lam guilty on Count 2 and proceed to convict him of same.
Signed, dated and delivered at Ile du Port on 15 May 2020.