Mondo v Korowa [1997] PGDC 3; DC12 (4 April 1997)

Unreported District Court Decisions

[1997] PNGDC 7 - PETER MONDO V JOHN KOROWA

[1997] PNGDC 7

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 07 OF 1997

PETER MONDO

V

JOHN KOROWA

Waigani

Oli SPM

20 February 1997

3-4 March 1997

2-4 April 1997

CRIMINAL LAW - Particular Offence - Dangerous Driving Causing Grevious Harm - Plea not guilty - Rely on legal defence - Criminal Code s. 28 Extraordinary Emergencies and s. 32 Justification and Excuse:  Compulsion - Legal defence raised - considered - not applicable in the circumstances.

CRIMINAL LAW - Particular offence - Dangerous Driving Causing Grevious Bodily Harm - Verdict - Guilty - Sentence - Mitigation Circumstances - In a hot pursuit - car chase of a stolen Motor Vehicle - Drive through one way traffic - two lane road - Considered in the circumstances dangerous - Traffic - peak hour.

CRIMINAL LAW - Practice and Procedures - Sentence - First time offender - a Senior Policeman - Sergeant in Rank - Unblemish Record of 14 years service - Public interest - need for deference considered - Impose - Custodial Sentence for 12 months - Suspended - Good Behaviour Bond for 15 months - Cash Surety of K100.00 - Victim compensation - Considered - not appropriate in this Court - due to lack of quantum for damages sought - Subject of a separate law suit.

Cases Cited

State v Peter Kose Wana (1993) N/C 1184 - Distinguished

Statutes

Criminal Code Act - ss. 28 and 32

Criminal Law (Compensation) Act 1991 - s.2(2)

Counsel

Mr K Popue and Mr J Tongia for State

Mr W Otto for Defendant

DECISION

4 April 1996

OLI SPM:  The defendant stand charge, that on the 24th day of November 1995 at Port Moresby in Papua New Guinea, did drive a Motor Vehicle to wit, Toyota Land Cruiser Station Wagon Registration Number ZGR 977, upon a public street to wit: Casio Circuit, dangerously and thereby caused grevious boidly harm to one namely: Paul Andrew.  Thereby Contravening s.328(2)(5) of Criminal Code Act, as amended.

The matter came before Grade (5) Court through Election Certificate issued on 7th January 1997, by Public Prosecutor.

On arraignment the accused pleaded not guilty to the charge and relied on the premise of general defence, that it was a mere accident.  The matter was set down for two days trial after a pretrial conference session.

On the first trial date on 20th February 1997, Prosecutor then briefly outline its case and alleges the facts as follows:

“On the 24th November 1995 around 5.00pm at Gerehu the defendant now before the Court John Korowa was a driver of a Police Vehicle Toyota Station Wagon Land Cruiser Registration Number ZGR 977.  It was in a pursuit of a suspected stolen Motor Vehicle allegedly drove from Gerehu to Rainbow Estate direction and at the Casio round-about headed toward formerly Moale Gabuna - now Country Club direction.  The State further alleges that at Casio Round-about the defendant took a short-cut through the one way lane, usually use by vehicle coming from Rainbow direction.  On taking that route the defendant collided with a PMV Bus 24 Seater Civilian Vehicle Registration Number P. 112A, which was travelling with passengers on that lane toward Gerehu.

State further alleges that as the result of that collision, the driver of the PMV namely - Paul Andrew - suffered and sustained physical injuries with fractured bones to both of his legs.  Finally the State alleges that driving on the one-way lane in that manner was dangerous and that in so doing in that manner result in, an accident which resulted in a grevious bodily harm cause to the victim.  Basically that is how States case stand.”

Defence Counsel in reply inform the Court that defence will rely on Statutory defence under s.26 - Extraordinary Emergencies and s.32 Justification and Excuse: Compulsion, of Criminal Code Act as Amended todate.

PROSECUTION CASE OPEN AND CALL TWO WITNESSES

1. Paul Andrew

Mr Andrew was the driver of the other vehicle PMV Bus Registration Number P. 211A.  He said that on 24th November 1995 in the afternoon between 5.00pm to 5.30pm he got passengers from 7 Mile and drove to Gerehu.  While on the way,  at Gerehu round-about he passed the road that leads to Baruni Way,  formerly goes to Moale Gabuna,  now Country Club,  he followed the one-way two traffic lane to Gerehu.  On the way he saw a Vehicle Toyota Land Cruiser White in colour.  That vehicle,  he said came straight at him and collided into his PMV Bus head on.  The impact moved the front part of the vehicle to the right hand side to the edge of the road whilst the mid-section and the tail part was still protruding on the road.

He said he was trapped inside the driver’s  seat and sustained fractured bodily injuries to both of his legs and was release after being assisted by bystanders.  He further stated that he saw the defendant was on civilian clothes.

2. Peter Mondo

A Senior Constable attach to 4 Mile, Traffic Section.  He proceeded to the scene of the crime some 30 minutes later and observe the following:  Upon arrival at the scene at Casio Circuit at Gerehu,  he discovered that accident involved two Motor Vehicle.  The vehicle number 1 was Mitsubishi Rosa Bus 25 Seater, Registration P. 211A.  It has a damage to the front.  The vehicle number 2 was a Police Vehicle a Toyota Land Cruiser,  Registration ZGR 977.  It also has a damage to the front.  The accident took place along one way traffic on two lane road.  Both vehicles were on the right hand to the edge of the road,  in a stationary position and were facing each other.

He then follow the victim to Port Moresby General Hospital and confirm that victim was - Paul Andrew, the driver of the PMV Bus - sustained two fractured bones to his both legs.  The victim was hospitalised for quite sometime to fully recover from his injuries sustained.

He conducted the Record of Interview on 6th May 1996, with the defendant who refuse to sign the Record of Interview.  It was after the Record of Interview that formal charge was laid against the defendant for driving dangerously and cause grevious bodily harm to victim - Paul Andrew, under s.328(2)(5) of Criminal Code Act.

The state also tendered the following documents by consent:

·         Record of Interview - by Investigation Officer Senior Constable P. Mondo with the defendant, Exhibit ‘C’.

·         Road Accident Report by Investigation Officer - Senior Constable Peter Mondo - Exhibit ‘B’.

·         Two separate Doctor’s Reports:

1.       Medical Report of Paul Andrew M/30 - by Dr. M. Kaptigau

Exhibit ‘D’ - dated 12th April 1996.

2.       Final Medical Report - Paul Andrew M/A - by Dr I Kevau

Exhibit ‘E’ - dated 3rd October 1996.

The State then close its case and no case submission was made by Defence. However,  Court rule that there was a prima facie case established and that defendant has a case to answer.

Upon commencement of defence case, the Defence elect to put defendant in the witness box and testify on oath.  The defendant’s version of what had happened was completely opposite to that of State’s  story.  This is what he said.  On the 24th November 1995, after dropping off duty members at Gerehu Police Barracks, was on his way back when he sighted a stolen motor vehicle with 4 occupants driving along the back of Gerehu Road toward Casio Circuit.

He said he put the siren on and everything was on as the normal procedural requirement involving stolen car chase.  He said he put the lights on, siren and double blinkers on as well.

He said, he did all this when he gave chase and whilst along the road he said that the barrel of the gun, was being pointed at him - which he said was a home-made gun.  He said, he slowed down for 10 minutes and radio through radio network for help.  He continue to travel toward Casio Circuit.  However, when he reached the junction where Gerehu back road joins Casio Circuit, the PMV came and so both collided at the junction.

He explain that Bus hit him on the right - hand side of the drivers side where the lights were.  Then both vehicle handed up on the left-hand side of the road.  He further stated that the stolen vehicle was chased and caught at Baruni Dump which resulted in one casualty - dead, two captured and one escaped.

3. Main Issue

The main issue that face the Court to decide on is, having heard two conflicting stories about the accident from state and the defence, which one should be believed as the correct account of what really had happened and how it happened.  This can only be done through the careful analysis of evidence now before the court.

4. Evidence before the Court

4.1 Facts not in dispute are as follows

·         That accident took place on 24th November 1995 at Casio Circuit at Gerehu between 5.00pm to 5.30pm.

·         That Defendant was the driver of Police Vehicle Registration Number ZGR 977.

·         That Motor Vehicle’s  involved in the accident were Police Vehicle Registration  ZQR 977 and PMV Bus Registration Number P. 211A - Mitsubishi - Rosa - 25 Seater.

·         That Medical Report by two Doctors confirm the degree of bodily injuries sustained and suffered by victim.  It was confirmed by both doctors that he suffered fractured left femur and right tibia and fibula.  The total loss of efficient use of his lower limbs was assessed at 65%.

4.2 Facts that are in dispute are as follows

·         Defendant denies that he drove through one-way two lane traffic.

·         He maintains that he drove from Gerehu Back road into Casio Circuit junction was in a hot pursuit of a stolen Motor Vehicle.

He said, he slowed down for about ten minutes because he saw a barrel of a homemade gun was being pointed at him from the stolen motor vehicle.  It was after this period that he approached the junction where Gerehu Back road joins the Casio Circuit it was at this point where the two vehicle collided into each other.

·         It was at the said junction that both vehicles were at their stationary position at  the left-side of the road after the impact and not on the right-hand side to the edge of the road.

·         The point of impact on defendant’s Police Vehicle was on the right side of driver’s sea where the lights were, and not on the front section in a head-on collision accidental situation.

5. Analysis of evidence by the Court

The proposition by defendant have to be assessed and weighed against the totality of evidence before the court and weighed their relevancy and appropriateness, in view of credibility and soundness with regard to the facts that are in issue as presented by both State and Defence.

Legal Defence - under ss.26 - Extra Ordinary Emergencies and 32 justification and Excuse: Compulsion.

The Legal defence alluded to earlier by defence counsel were not pursued further during trial.  But the State briefly addressed it in his final address,  and the court wish to remark briefly on it in passing.  Though,  there was a reason to believe to drive up through one-way two lane traffic because of the reason of hot pursuit to chase after a stolen motor vehicle,  was indeed a bad judgement on the part of the defendant,  in courts view.  He took this cause of action, after he had delayed his initial chase by 10 minutes and this he said was to avoid the immediate danger of being shot at  because he said,  he saw a gun barrel  was being pointed at him during the chase. The stolen motor vehicle had 10 minutes to get away and was already out of sight from Casio Circuit.  By this time,  other police vehicle had join the chase and caught the said stolen vehicle at Baruni Dump.  For defendant to re-commence chase after 10 minutes lapse of time in the same mood 10 minutes before, no longer has the immediate impact reason of urgency to continue the hot pursuit car chase,  because same circumstances, which appear to be extra-ordinary, did not exist any more anyway. especially after 10 minutes.  Thus, 10 minutes delay was sufficient time for defendant  to readjust and reassessed the situation  and follow normal routes that were open and available to him at that particular place and time,  with less calculated risk involved.  Unfortunately,  he choosed not  to pursue them.  A prudent reasonable man put in the same situation as the defendant could have just follow, in courts view,  the normal traffic route along Casio Circuit with his emergency siren and blue lights on,  if needed be, in view of the 10 minutes lapse in time already.  And not just take it for granted to use hot pursuit car chase as a reason to take the law into his own hand,  by driving through  the one way traffic two lane road and thereby  expose other  innocent road-users life to unnecessary risk of having motor vehicle accident,  and was indeed so, in this case.

The court accept the view as  presented by State that - ss.26 and 32 did not apply in this case,  because,   the facts as presented do not create a situation of extra ordinary emergencies, and as such defendant was not place in a situation out of ordinary to act otherwise nor he was compel to act otherwise either.  Especially,  in view of the 10 minutes delay he had,  and rapid response he received through police radio network from other police vehicle in the area to assist in the chase,  does and indeed present him with every opportunity to reassess  his route and after having had that opportunity to do so,  took upon himself the unfortunate task which landed him before this court.  The court reject defendants legal proposition which appear to have been manufactured to explain and justify his ill-conceived miscalculated dangerous action in this case.

Point of impact and final stationary position of both vehicles after the impact

Though, during cross-examination victim was bit unsure of the distant between the two vehicles before the impact.  But he agreed that it was about 16-18 metres away in front of him,  when he first saw the defendant vehicle before the impact.  The  victim maintains that the collision was head-on by both vehicles along one way traffic two lane road at Casio Circuit.  This evidence was further corroborrated by Investigation Officer - Senior Constable P. Mondo who visited the scene of the crime some 30 minutes later,  saw that both vehicles collided head-on and were push to the right side of the road after the impact.  This was further confirmed when court party visited the scene of the crime and the investigation officer pointed out the remains of glass debris from both vehicles were still on the ground, where the final stationary position of both vehicles were after the impact, on the right-hand side about a metre from the edge of the road.

To digress for argument sake that, if court was to accept the proposition by defendant that, he drove into Casio Circuit from Gerehu Back road and collided with the bus at the junction on the left-side of the road,  and  some 30 minutes later after the accident, it was found by Investigation officer that both vehicles were on a head-on collision position on the right hand side of the road,  as was the case.  Then,  somebody need to explain why and how this could have happen in this way before the Investigation officer arrived at the scene some 30 minutes after the accident.

It would seem that the only possible explanation for this to happen without human intervention is that,  it would have taken a miracleous power and force to have both vehicles move from left hand-side, to the right-hand side across the road - some 8 meters in distant, the whole width of the road, and left both vehicles in a perfect head-on collision position, stationary.

The  Investigation Officer - was very firm on this point that, that is what he saw when he visited the scene, some 30 minutes later after the accident.  There is no evidence to suggest that a miracle did took place within 30 minutes so as to be in harmony with defendants proposition.

Furthermore, there is no evidence to suggest that damages cause to both vehicles were not on their front sections to negative evidence of head-on collision upon impact as advocated by state.  It is anticipated that the damages according to defendants proposition would have been on both vehicles as; On the PMV - Bus, the damage would have been on the left hand side board on the front sectional area, in which case, the crew man if there was one on the left passengers seat would have suffered some physical injuries.

On the converse, the damage to the Police Vehicle would have been on the right side on the front sectional area to the side board where the parking and signal lights were.  There was no evidence to support these possible propositions of damages cause to both vehicles.

The court finds the defendants story very appealling but can not rely on it because of its inconsistency and contradictory revelation of  finding of facts as refer to above.  Thus, dispel all credibility from defendants alternative propositions and makes it very weak and hollow to hold water.  The Court accepts the state’s evidence as the true account of what and how the accident took place because of its consistency and forthright credible to be relied on and be believed.

The court having made the foregoing findings is satisfied beyond any reasonable doubt that defendant having to drive through the one-way traffic two lane road was in itself dangerous to the general public and thus create a situation where risk of motor vehicle accident was very high having regard to the traffic at that particular time at 5.00pm was in-fact at its peak period.  Thus, result in the said motor vehicle accident and the victim suffered grevious bodily harm.

The court therefore find the defendant guilty as charge.

7. Sentence

On Sentence, the Court was addressed by both Counsels as to the appropriate punishment on sentence.  However,  Defence Counsel address Court on Sentence first and structered his address on sentence by allowing the prisoner to address the court and later call the Officer In- charge Prosecution Inspector Wee Kapi to give character evidence on behalf of the prisoner.

And Counsel then do the final address on mitigation and appropriate sentence.  The prisoner told the Court in brief and in very precise terms that it was unfortunate and that he was sorry for what had happened.  The Inspector Wee Kapi - the Officer In-Charge of Prosecution Section in National Capital District - paint a very positive picture about the prisoner and said that he has plans for his future development in-training in his special duties as a Police Prosecutor.  This was very indicative by the fact that he has proven his worth in his Prosecution career in  Summary Courts and was recently elevated to prosecute in Grade 5 Court until this particular mishap,  which resulted in him being charge for this particular offence.

He said, Mr Korowa is a Sergeant by rank and join the Royal Papua New Guinea Constabulary since he left school at the end of 1983.  He has not been to any Court of Law for any other criminal offence.  This is his first time.  Mr Korowa has served under him and faithfully discharge  his duties for a period just a little over nine (9) years now.  He has recommended him for Overseas attachment on appropriate exposure in prosecution training in similar jurisdiction and in-country as well with State Prosecutors office.  All these plans are currently being put on hold due to financial constraints experienced within the Police Department.

The Counsel inform the Court that he fully endorsed what Inspector Wee Kapi has just testify to this Court.

He went on and add that prisoner has served with the Royal Papua New Guinea Constabulary for a period just a little over 14 years and he is married with 4 children.  One attending High School and 3 attend Community School.  The last one stays with mum at home.  He is the bread winner for his family and three of his brother-in-laws as well.

On mitigation on sentence, Counsel submitted that there is a special merit consideration  in this case which makes it so different to other similar cases to this.  The Court has found that prisoner drove up the one-way traffic two lane road - and in so doing was dangerous to the travelling public.  However, Counsel submitted that prisoner took this unfortunate cause of action - which deem appropriate to him that time was because he was in a hot pursuit situation chasing after a stolen motor vehicle.  This is exactly what makes this case so different and therefore should be accorded the special merit consideration in sentence.  The Counsel opted for non-custodial sentence and better still with just a caution.

The State on the other hand objected vigorously with the sentencing option propose by defence on behalf of his client.  The State was adamant that serious nature of the case in question warrants no non-custodial sentence.  However, if on the alternative the Court decide to look at other options then it should consider imposing suspended sentence with compensation order in favour of victim who has suffered substantial bodily injuries to his both legs.  Mr. Tongia draw Courts attention to what his Honour Kapi DCJ did in State v Peter Kose Wana (1993) N/C 1/84 - CR - 204.

He submitted that His honour ordered compensation in favour of the victim to the full amount of money stolen, K100.00 without having been assisted by Means Assessment Report by Probation Officer.

His honour took this cause of action because there were no Probation Officers available at the Court precient at that particular time.  The State submitted that Court rely under s.2(2) of Criminal Law (Compensation) Act 1991.

The Court fully endorsed what has been said by Defence and brief response by State.  The Court, however, wish to acknowledged the following in favour of the prisoner as follows:

·         That prisoner has a unblemish  record of employment with Royal Papua New Guinea Constabulary for a period just a little over 14 years.

·         That he has no prior convictions and this is his first time to be charged and found guilty.

·         That he is married with 4 children and a bread-winner for his family and his 3 brother-in-laws as well.

·         That it was unfortunate and  he was sorry for what had happened.

The Court having acknowledge the above in favour of the prisoner, the court also wish to make certain observations about this case as experience during trial.  This matter was set down for trial for two days, however, due to unavoidable circumstances during trial, it has taken a total of six days tocomplete.  As it appear after the full trial that,  if prisoner has obtain proper legal advise and pleaded guilty to the charge upon arraignment for which he now said, he is sorry  for what had happened.

This would have reduce allocation of judicial time to very minimum, and so savings on courts down- time and unnecessary waste of taxpayers money occassion over the six days trial period.

The court take note of the Special Merit consideration on sentence, as submitted by Counsel  in favour of the prisoner, the question, however, that needs to be asked is; does this case fall within the range of cases that justify and warrant a non-custodial sentence and may be just a caution as advocated by Counsel?  The court was not refer to any case law on this point by Counsel, nevertheless, the type of sentence sought, ought to be seen and address together with other considerations such as public interest and the need for deterence and public perception about consistency in sentence, especially, when it involved a law enforcing personnel, in this case, a Policeman and a Prosecutor recently attach to Grade Five Court.  The Court in its sentence must not depart from this public importance considerations as main denominators.

Whilst Court accept the fact that there was a reason for prisoner to behave in the way he did, due to the fact that he was under a hot pursuit situation, in particular, chasing a stolen motor vehicle.  That alone, does not relieve him of his primary responsibility to provide a duty of care to other road users, like-wise the other road-users owes the same duty of care, as well.  However, he was reckless in the way he conducted himself and, by doing so, he took upon himself the most extreme and dangerous cause of action which was very dangerous in the circumstance to general travelling public who were travelling along Casio Circuit one-way traffic route, who in actual fact, has all the legal right of way along the said, one way traffic route, Casio Circuit - Gerehu.

Whilst the court appreciate the existence of a special merit circumstances in this case, the court is also mindful of the fact that every one come before the court is treated equal, and that ought to be reflected in the available appropriate sentencing options.  At this juncture the court having put all these considerations together and  the seriousness of this charge together with the permanent bodily injuries cause to the victim would render the imposition of non-custodial sentence most inappropriate.

The court did address its mind on the maximum penalty available upon conviction under s328(2)(5), does carry a imprisonment term not exceeding five years and to impose maximum sentence against the prisoner in this case would also be most inappropriate, having consider his very favourable allocotus.

The court also take into account the effect  of s. 330 (2) of the Code upon conviction.  The court decided not to impose any disqualification on his current driving licence due to the very special circumstances of this case that court consider it inappropriate to do so.  The court find in favour of prisoner on this point, because the offence was committed during performance of his official duty to apprehened the occupants of the stolen motor vehicle.  In pursuit of that car chase, and with the hope to recover the stolen motor vehicle, and subsequent arrest of the culprits, he exercise, what now appear to be a misguided personal judgement, to drive through the one way traffic route which resulted in the said motor vehicle accident.

On the aspect of Compensation Order in addition to the principal sentence, in favour of the victim.  The crucial question is: whether this court should order in addition to the principal sentence, an appropriate amount in monetary terms to adequately compensate the victim for permanent bodily injuries sustained.

The assessment by Dr. I. Kevau’s  final medical report precisely explain the nature and extent of victims injuries - suffered and sustained to both of his left and right legs.  Dr Kevau concluded that he would not recommend further surgical intervention to correct the shortening of his (R) leg as further surgery can compromise the vascularity of the bones which is disastrous.

He has thirty five per cent (35%) loss of efficient use of his (L) leg from the femoral injury and thirty percent (30%) loss of efficient use of his leg due to malunion resulting from the accident.  In total sixty five percent (65%) loss of efficient use of lower limbs is awarded.  Mr Tongia who stood in for Mr. Popue to address the court on sentence, invited the court to follow and adapt the same approach by his honour - Kapi DCJ in  State v Peter Kose Wana (1993) N/C 1184 and award appropriate compensation accordingly.

Whilst Court appreciate the proposition by State, the Court is faced with the following apparent inhibiting practical, but technical problems to overcome.  They are:

N2>1.       What 65% total loss of efficient use of lower limbs by victim, translate into real money terms, for all useful purposes in favour of victim?

N2>2.       If Court was to invoke provisions of Criminal Law (Compensation) Act - 1991, would the Probation Service has the capacity in terms of manpower, to furnish the required means assessment report on the prisoner and where possible should include in that report.  Some real assessment on quantum by experts on what 65% loss of efficient use of lower limbs by victim in real money terms.

This case, in my view, has to be distinguished with State v Peter Kose Wana’s Case.  The Court in this case is face with this unfortunate practical task and find itself in a very awkward position, not able to guesstimate any appropriate figures on the medical percentage assessment on permanent bodily injuries suffered and sustained by victim.

Both Counsels, unfortunately were not able to quantify nor provide any real figures to assist the court on this issue.  But even, if figures were provided, the court is apprehensive that, those figures may well be over and above in excess of the civil jurisdiction of this Court.  The Court therefore leave that to parties, especially, the victim to pursue a separate law suit for damages, depending on the quantum, before an appropriate forum.

The Court after having considered the submissions put before it impose Custodial Sentence.

The prisoner John Korowa, is convicted and sentence to be imprison for a period of twelve (12) months in Hard Labour.  The Court further ordered that the said sentence be suspended and place him on a Good Behaviour Bond for a period of fifteen months to keep the peace with a cash surety of K100.00 to be paid by 4.00pm today 4th April, 1997.

Lawyer for State:  Public Prosecutor

Lawyer for Defendant:  Public Solicitor