Police v Suto [1996] PGDC 10; DC303 (2 October 1996)

DC303

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 35 OF 1996

Police
Complainant

V

Francis Suto
Defendant

Goroka: M. M. Pupaka
1996: 22/5/, 24/7 & 06/8

Criminal Law - Particular Offence - Dangerous Driving Causing Death – Elements Of Offence - Need To Prove - Lesser Charge Than Murder Or Manslaughter.

Criminal Law - Particular Offence - Dangerous Driving Causing Death - Denial Of Involvement Manner Of Driving Inferred From The Otherwise Proven Facts ‘Dangerous Driving’ Element Of Offence Needed To Be Proved.

Criminal Law - Circumstantial Evidence - Involvement In Accident Logical Inference On The Facts - Guilt The Logical And Only Conclusion.

Cases Cited
Reg. -v- Pius Piane [1975] PNGLR 52.
The State -v- Tom Morris [1981] PNGLR 493.
Allan Oa Koroka -v- The State [1988-89] PNGLR 131.
John Kil -v- The State (Unreported) SC395
The State -v- Vargi [1991] PNGLR 54

Counsel
Sgt. J. Bonki For The Prosecution
Mr L. Acanufa For The Accused

2nd October 1996

M. M. PUPAKA: The accused Francis Suto is charged that he on the 10th of December 1994 drove a motor vehicle identified as a mazda T3500 truck Reg. No. EAA.784, on a public street dangerously thereby causing the deaths of four (4) people contrary to section 328(2)(5) of the PNG Criminal Code. The deceased are identified as JOHN KAUPA & DANGA DAU - both National adult males, and PAPA KAUPA & SIMINA MORE - both National adult females. Francis Suto pleaded not guilty to the charge.

For a variety of reasons that need not necessarily be recorded in full, the trial of the accused took such a long time to complete. Also the decision in this matter was delayed until some weeks later. One of the reasons for the latter is that I was on circuit to Kainantu and was generally out of Goroka for the whole month of September. This did not cause any real prejudice to anyone, particularly the accused. The accused had been granted bail and was always on a K300.00 extended court bail long before his trial commenced. Finally on the 2nd of October 1996 the accused was found guilty as charged and was sentenced to twelve (12) months’ imprisonment IHL. I said at the time the extempore judgement was handed down that I would publish my reasons later when I managed to find enough time for it. This I do now.

The Facts:

The facts of the matter are these: At approximately 11.45 pm - 12.00 midnight on the night of the 10/12/94 there was a fatal motor vehicle accident on the Sir Okuk Highway near the old Goroka cemetery in Goroka, EHP. In the accident a motor vehicle ran over or collided into the deceased persons who were generally walking on or along the road. There is some evidence that a fifth person, a lady, was also injured in the accident.

Of these four, three of them had died instantly. The fourth, John Kaupa, died on arrival at the Goroka General Hospital. He never regained consciousness. The injured person and three of the deceased persons were found well clear off the road proper. The fourth body was found lying on the middle of the road.

At the scene of the accident a metal ‘MAZDA’ tag and a torn off right rear vision mirror stand (iron frame) were collected as potential evidence. These had obviously come off in the collision. These belonged to a mazda T3500 type truck. (The rear vision mirror stand was tendered into court by consent and is in evidence). The suspect vehicle had disappeared from the scene when all that testified in this trial for the prosecution arrived.

The Prosecution Case:

Evidence for the State was almost wholly circumstantial. There was no eye witness (bystander) accounts. However there was, as is clear from the various police statements tendered with consent, a fifth person who had been injured in the hit and run but that person was not called to testify for the prosecution. There is no explanation from the police as to why that person was not called. It is not clear whether or not that person had, or possibly could have any material knowledge of these matters. The failure to locate and call that potential witness, and the fact that no explanation was preferred as to why there was this failure, would otherwise reflect a obvious lack of case preparation work from the police. It raised valid cause for concern during the pre-trial considering the seriousness of the offence with which the accused is charged.

However that aside the prosecution sought to adduce evidence to show that the accused drove a mazda T3500 truck, blue in colour, Reg. No. EAA 784, in the manner as charged, causing the death of the four deceased persons.

The only eyewitness, of sorts, was one Rex Guna. Rex Guna took particular pains to stress that he had not clearly and positively seen the actual identity of the vehicle involved. However he was quite positive about things he actually saw at the time. He was a security guard on guard duties on a premise, a building site, near the scene of the accident. He generally gave an account of having seen a blue coloured dyna type vehicle travelling down towards the Goroka Town direction. He recalled having heard, coming from just around the bend, three loud bang noises in the succession, quite obviously being caused by the vehicle he had just seen going past. This witness was the first person to appear at the scene. He was the first to see where and how the bodies were lying after the accident.

It is material to state at this juncture perhaps that Rex Guna also saw one smaller vehicle going towards the opposite direction to that of the dyna vehicle. It was leaving Goroka and going towards the Asaro/Simbu direction. Rex Guna said that he was going to check the cause of the bang noises. He was opening the gate to go out when he saw that smaller vehicle going past, leaving Goroka Town. The witness could not say how soon after he heard the bang noises that he saw the smaller vehicle going past. Both the prosecutor and council for the accused did not seek to have the witness elaborate a bit more on this aspect. Under the circumstances I would generally accept that the witness, Rex Guna was quite convinced, and he did not think, that that smaller vehicle was involved in the hit and run.

That was all that was seen of the accident that night. Other additional material facts collected by the police and adduced in evidence are these:-

On the next day the police investigators were tipped off that the ‘Negiso vehicle’ was involved in the accident. It seems a Negiso Investments Pty Ltd owns the vehicle driven by the accused. On the basis of this information the two police investigators, Constable Selot and Constable Bailey, proceeded to check up on the suspect vehicle at the Negiso company yard. There these policemen found the vehicle now identified as blue mazda T3500, Reg. No. EAA. 784. The policemen generally discovered it to have been recently involved in an accident. They found the said vehicle’s right rear vision mirror stand (frame) missing, obviously torn off. They found dents on the front side of the vehicle and the front windscreen had been shattered. They also found bloodstains and some ‘white greasy substance’ on the bull bar bumper. Their suspicions were aroused. They had the vehicle brought to the police station yard and had photographs taken of the damages and the white greasy matter. These photographs, Exhibit "B1" and Exhibit "B2", are in evidence by consent.

I should state here that the defence objected to any reference to the white greasy substance as human brain matter. The objection was allowed. For the purpose of these proceedings the white substance found on the subject vehicle’s front bull bar bumper is not in any way conclusively accepted as human brain matter.

The Record of Interview, (ROI), between the Arresting Officer, Sgt. Martin Waingal, and the accused was tendered by consent through Sgt. Waingal. Both the original Pidgin and the translated English versions are in evidence. These are Exhibits "F1" and Exhibit "F2" respectively.

That was the State’s case. Upon the close of the same Mr Acanufa promptly declared that witnesses would be called to give evidence for the accused. He made no other application.

The Defence Case:

The accused gave evidence in his own defence. He testified that at about the time of the accident he was travelling from Asaro to Goroka. He asserted that at the scene of the accident his vehicle was stoned. He said his vehicle was stoned only once. He said he saw people at the scene of the accident on the side of the road. He did not say or recall whether there had been an accident there, or whether he had cause to perceive that there had been an accident, before he arrived there. He did not stop or slow down sufficiently to ascertain as to who threw the stone and why. He said he was of the opinion that ‘rascals’ had thrown the stone at his vehicle so he proceeded straight through.

The accused asserted that the stone that was thrown hit his vehicle’s front windscreen through the protective wire mesh and shattered it. He said he could not see the road clearly after that but managed to control the vehicle from going off the road and continued on, finding his bearings with the help of the visible white liens on the road on his left side. There is no clear evidence as to how it could have been so but it is said the single stone also tore off the metal frame of the right rear vision mirror stand, (at the side of the vehicle). Again it is left unsaid but I suspect the accused would also have the Court accept that somehow that one stone knocked off the vehicle’s ‘MAZDA’ tag at the front of the vehicle. These two items from the accused’s vehicle, the ‘MAZDA’ tag and the torn off mirror stand were found at the scene of the accident. It is common ground and not disputed that these come off from the accused’s vehicle.

Two other defence witnesses were one Philip Wanapa and Seni, the accused’s wife. They testified saying they were together with the accused at the time. These two essentially gave the same account as the accused. The accused and his two witnesses proceeded without stopping to the Negiso Company yard. They, according to themselves, left the vehicle there and went home. The accused said he reported the stoning incident to the police the next day.

The final defence witness was one Robin Gitene. He was referred to as an ‘independent witness’. This witness said he went past the scene of the accident on his way home. He recalled that there has obviously been an accident. He said he stopped only momentarily and continued on, minding his own business. He went further up the road passing the scene of the accident. The witness positively asserted that he saw the accused’s vehicle going down past him then. Robin Gitene said that it was not possible that the accused’s vehicle would have been involved in the accident. Conclusions and findings as to Robin Gitene’s evidence would be reached and made at an appropriate juncture later on.

That was the defence case.

The Evidence:

In the ROI the accused had said he was alone at the time when he came to Goroka from Asaro. He had stated that fact clearly and definitely. He changed that in Court when he testified in chief. He said he was with two persons. He did not say if one of them was his wife. I was under the impression, and I suspect the prosecutor was also, that the accused’s alleged companions were two men. (It was only when his second witness, Philip Wanapa, testified that it became clear that the third person was the accused’s wife). Then under cross-examination the accused changed his story again. He confirmed his initial statement in the ROI, that he was alone. He was silent when Sgt. Bonki asked him to confirm that he had just lied in Court in evidence in chief.

It was apparent to all and sundry in court that council was not too happy with this about turn. Without expressing it in words council showed his obvious displeasure and distress. And when the prosecution examination ended the accused, in answer to a series of questions that should have been objected to, again changed the assertion he made whilst under cross-examination. He said he was with two other persons that night. He actually used the pidgin words "tupela man". He did not say if his wife was one of those two.

Under these circumstances there was always an issue of credibility of the defence witnesses and a need to treat these persons’ testimonies with caution. This Court must be entitled, I should think, to draw proper inferences and appropriate conclusions on this aspect. I suspect the accused had trouble having to reconcile his whole story, as far as it made no allowance for his two alleged companions’ evidence to fit into the broad picture, after he had given a different version in the ROI. I suspect the accused was telling the truth when he initially said in the ROI that he was alone. These two witnesses did not contribute much to the accused’s line of defence in any material way except probably laid themselves open to possible charges of perjury. It was never imperative that these two should testify. For it is settled law that an accused person’s evidence need not necessarily be supported or corroborated. It is not vital that the accused’s evidence be corroborated. The Supreme Court basically said so in the case of John Kil -vs- The State (Unreported) SC395:

"Apart from certain types of evidence in sexual cases or evidence of accomplices the law does not require an accused person’s evidence to be supported or corroborated by other evidence". (By the Court.)

In any case I am satisfied that the accused was alone. There is no evidence at all as to where and when he picked up the two persons. One of them is his wife. The accused did not refer to having picked up his wife, or the other relative and witness Philip Wanapa, either in the ROI or in his evidence in court. He did say that in the course of his delivery duties he had picked up a ‘brother’ whom he had to drop off at Asaro. The accused did not say he was still with the ‘brother’ when he returned to Goroka around midnight.

Perhaps I should express surprise that the accused acted, after passing the accident scene, quite unlike an otherwise innocent motorist whose vehicle was stoned for no reason causing substantial damages to it. The reasonable driver would have called in at the Goroka Police Station. This police station was on his way to the Negiso yard. In fact he was obliged by law to report at the nearest police station. Section 24 (c) the Motor Traffic Act Chpt. No. 243. It is at least clear that the accused was later charged for failing to report an accident within 24 hours to the officer in charge at the nearest police station. It is not known if he was ever convicted on that charge. I find it rather strange too that he should proceed all the way to the Negiso yard when the Goroka Police Station was the nearest convenient stopping point. The accused said he could not see the road properly due to the obscurity caused by the cracked windscreen. I consider bypassing safe stopping points such as the Goroka Police Station and going direct to the Negiso yard to be a foolish and dangerous thing to do. He could have caused an accident, even if he had not caused one already.

In that regard I am apt to adopt the view that the accused deliberately failed to call at the police station, but I think not for the reasons he has offered. Whatever other reasons that may have prompted him to do as he did are open inferences. The accused’s not wanting anyone, especially the police, to know just how his vehicle had been damaged is one such inference preferred by the prosecution.

I re-iterate here that the prosecution case is almost wholly circumstantial. The accused and his vehicle were not directly identified at the scene of the accident. I find the appropriate law as to circumstantial evidence in this jurisdiction to be as adopted and applied in the case of The State -vs- Tom Morris [1981] PNGLR 493. In that case Miles J adopted and applied the principle set down by the Australian High Court in the case of Barca -vs- The Queen [1975] HCA 42; (1975) 133 CLR 82 at p. 104:

""When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’ ... To enable a jury to be satisfied beyond reasonable doubt of the guilty of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’ ... However ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent the jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’".

The particular facts in evidence that link the accused’s vehicle to the scene of the accident are these:

a. The accused drove his vehicle, blue mazda T3500 truck Reg. No. EAA.784, from Asaro to Goroka on the night in question through the scene of the accident at about the relevant and crucial point in time;

b. The accused’s vehicle’s ‘MAZDA’ tag, from the front end of it, and the right rear vision mirror stand which had obviously been torn off, were found at the scene of the accident. It is common ground that these came off from the accused’s vehicle;

c. It is at least accepted that the suspect vehicle could only have travelled from the Asaro/Simbu direction towards Goroka just as did the accused’s vehicle.

Blood stains were found on the accused’s vehicle’s front bull bar bumper. The other "white greasy stuff" also found on the bumper was disputed as being human brain matter in that there is no independent medical or scientific proof of it being such a substance.

All these are pointed out as the factors which connect the accused’s vehicle to the scene of the accident, and thus ultimately the accused’s guilt.

No excusatory defences were pleaded. The accused said he could not see the road ahead when the windscreen was hit and it cracked up. He said the cracked glass completely obscured his sight directly ahead. However he positively asserted that he did not hit or collide with or onto any obstacle whatsoever. He could have felt it and certainly would have known it if he had bumped a human being, he said. Here we are talking about five people being hit in an accident with four immediate fatalities.

Under the circumstances there never was any issue taken as to the manner of driving. Evidence is that the accused travelled at ‘normal’ speed. Suggestions put to him that he may also have been drinking alcohol was denied. He was a Class Three (3) Driver’s Licence holder.

However the dangerous driving element of the charge was always going to be proved. In fact the prosecution has to discharge this onus, and to the required standard. It is submitted for the prosecution that there is enough evidence showing an act of wholly careless and dangerous driving. In this regard it is said that the nature of injuries occasioned upon the deceased persons’ bodies and the damages caused to the said vehicle driven by the accused leaves no doubt as to the speed of the vehicle. The fact that the windscreen was cracked, and that despite the windscreen protector must indicate great force or speed. No collision at normal speed would cause the glass to be damaged through the wire mesh protector. Dents at the front of the vehicle and the bull bar bumper, together with the ripping off of the heavy metal frame of the rear vision mirror stand, especially if these occurred upon forceful contact with human beings, can only mean excessive speed. Further it is said that the deceased persons all sustained multiple facture of the ribs causing their lungs to be pierced. One deceased person, Papa Kaupa, had half her skull torn off and about 90% of her brain were lost. It is submitted these are evidence of excessive speed. I would agree with these submissions.

There is other uncontroverted evidence. The suspect vehicle was travelling towards the direction of Goroka. It was required by law to keep left. After the accident the one injured person and three of the deceased persons were found off the road on the right side. The rear vision mirror stand was found there as well. The suspect vehicle, coming towards Goroka as it did, must have crossed over to the wrong side of the road to have been able to collide into the pedestrians on that side of the road.

I am satisfied under the circumstances that the vehicle involved in this accident was not driven in anyway other than dangerously. I am mindful of the fact that there is a possibility that the deceased persons could have contributed in some way or other to their own deaths. I must be satisfied on the evidence that that possibility seems unlikely. For one, if the accused was involved, he has maintained that the people were on the side of the road. He does not say if the road ahead was block by anything, and he further complete denied hitting or colliding into anyone. As is accepted in this jurisdiction –

"the standard of driving remains an objective one and not subjective to the driver". Reg. -vs- Pius Piane [1975] PNGLR 52.

As I have found, the accused and his two alleged witnesses cum companions have lied in Court. The Supreme Court had occasion to rule on the making of false statements by accused persons in the case of Allan Oa Koroka -vs- The State [1988-89] PNGLR 131. The Court there held that:

"It was unsafe to infer that the false statements corroborated inferences of guilty which could not be drawn beyond reasonable doubt on the primary facts as found".

I find in this case that the four points of primary facts as I have listed above have not been affected one way or the other by the accused’s and his witnesses’ false statements. In fact whether or not there really were two people with him at the time would not be a fact upon which the accused’s guilt would be founded, though it does relate to the issue of credibility. It is trite law that false statements are never substitutes for affirmative evidence. See the State -vs- Vargi [1991] PNGLR 54, wherein Ellis J held that:

"Whilst false statements by an accused in or out of court may amount to corroboration they cannot take the place of lack of affirmative and material evidence".

It may be argued that there are two (2) other probable inferences other than the accused’s involvement (and consequently his guilt) maybe drawn from the facts herein.

Firstly, whilst there is not a shred of evidence to suggest this, there may nonetheless be a possibility that another vehicle could have been involved. To arrive at that conclusion, and for such a conclusion to be accepted, the Court would also have to accept, on the balance, that the accused’s vehicle was stoned at the scene of the accident. The Court must then accept that the stone caused the vehicle’s windscreen to crack up, and tore off it’s rear vision mirror iron frame and somehow caused the ‘MAZDA’ tag at its front to come off unstuck.

The second possible inference is that the deceased persons either individually or collectively in some material and definite way contributed to their own deaths, such as to exonerate completely the driver of the hit and run vehicle. I have already found that this possibility does not to exist under the circumstances. However in the event that some evidence to suggest the existence of this possibility were to be called, I doubt if this accused could obtain any benefit from it. He has pleaded no excusatory defences. In fact he has totally denied any involvement at all in the accident. He would find arguing this as a possible alternative defence, such as it is, a harder hoe to roe.

The Conclusion:

Considering all the circumstances of the case I would not accept the accused’s stone throwing story. The accused would then have arrived at the scene when there were people around. According to the prosecution witness Rex Guna, the next person to appear at the scene after himself was a reserve policeman identified as Peter Kuso. There could have been people other than only the relatives of the deceased persons there then. People gathered around dead bodies would have been easy to see and the accused would have otherwise naturally needed to slow down or stop and check. By his own admission he was travelling at normal speed. As an alert and competent driver he would have been aware of what was on, or sufficiently near, the road up ahead of him. There was no evidence from Rex Guna that stones were thrown or that there was any sort of violence or display of anger by anybody at whomever that time. Even if there was a stone thrown I would not accept that it could possibly cause damage to the vehicle windscreen, (through it’s protective wire mesh), and at the same time rip off the rear vision mirror stand. If the stone was thrown from the right as the accused said the stone would have hit the left rear vision mirror stand next, as he said the stone smashed the windscreen first. It is anyone’s guess as to just how the ‘MAZDA’ tag at the lower front of the vehicle was also knocked off by the same stone.

Perhaps the most vital evidence the prosecution adduced in this trial against the accused Francis Suto is the evidence of blood stains found on the bull bar bumper of his vehicle. That evidence remains uncontroverted by the accused. The defence allowed the prosecution to tender into evidence a photograph - Exhibit "B2" - showing what was said to be human brain matter. Later council objected to any reference to the same as "human brain matter". The objection was allowed. The white greasy substance found on the vehicle bumper was never properly ascertained as human brain matter. The police needed to have obtained certification towards this end in advance but failed to do so.

However the fact of its being found, especially as to where actually the same was found, is not disputed. Exhibit "B2", on its own is evidence properly before this Court. It is also a matter well within the knowledge of the accused. He may want to at least make an attempt to explain what else the substance may also otherwise be. It behoves him to want to prevent adverse conclusions being drawn against him.

In the end however there really is no doubt as to the accused being involved in the hit and run accident. His vehicle, the blue coloured mazda T3500 Reg. No. EAA.784, was the one that was involved in the accident described in the charged. In all the circumstances, for all the foregoing reasons, I must conclude as the evidence stand. I find the accused Francis Suto guilty as charged. I should also say that all the defence witnesses including the accused himself, and particularly the so-called ‘independent witness’, Robin Gitene, have by all counts lied in these proceedings.

[The accused was convicted on the charge and sentenced].

Sgt. J. Bonki: Complainant
Acanufa Lawyers: Defendant