Willie v Makel [1998] PGDC 12; DC35 (13 August 1998)

Unreported District Court Decisions

[1998] PNGDC 11 - WIRRENU WILLIE V JOSEPH MAKEL

[1998] PNGDC 11

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 27 OF 1997

WIRRENU WILLIE (Informant)

v

JOSEPH MAKEL (Defendant)

Kimbe

G Manuhu, SPM

6 June 1998

8 July 1998

5-6 August 1998

13 August 1998

CRIMINAL LAW - Dangerous driving causing death - High speed and loss of control of vehicle.

CRIMINAL LAW - Evidence - Cross-examination of the prosecution witnesses to put defence case desirable - defence version of facts rejected.

Cases referred to:

The State v Ogadi Minjipa [1977] PNGLR 293

Representation:

Counsel/Representative:

Informant: Sergeant J. Turan

Defendant: S. Kassman

G MANUHU SPM:

N1>[1]      The accused, Joseph Makel, was charged on one count of dangerous driving causing death under s328(5) of the Criminal Code Act (Ch262). It is alleged that on 1 August 1997, the accused drove a Toyota Land Cruiser, Reg. No. KAA 961 (hereinafter referred to as the Landcruiser) upon the Kimbe-Bialla road in a dangerous manner resulting in the death of deceased Peter Wanpis, an adult male. The deceased was a passenger in another vehicle, a Toyota Hylux Reg. No. KAB 667 (hereinafter referred to as the Hylux) which got involved in a collision with the Landcruiser.

N1>[2]      The prosecution evidence consist of oral testimony from witnesses Eric Pius, John Gugunia, John Kepas and Doctor John Pasio. The record of interview, the mechanical report and the sketch of the scene were tendered without objection. The Post Mortem Report and the Medical Certificate of Death were tendered through Dr Pasio. This is what witness Pius, the first witness for the prosecution, stated in his evidence:

"We were on our way to Hoskins and at Banaule Village I saw a motor bike ahead of me. The motor bike turned right to a village. My offsider thought his brother was the one driving the motor bike. So he told me to stop so that he could speak to the man on the bike. I stopped and reversed back and put the vehicle on the right side of the road. I also had the park lights and the hazard lights on. We called to the man on the bike but realized that he was not the offsider's brother. He came and said: 'Sorry, I'm not Kelu. I'm John.' When we were still conversing the accused drove from Hoskins towards us. He was speeding and had headlights on. At that time the headlights came straight at me at side of the road. I shouted and moved quickly away. The accused person's vehicle hit the tailboard of my vehicle. The deceased was sitting there on the tail board. He was thrown out and he fell on the ground. Then some people threatened to hit us so we looked for safety. We hid and then I heard the voices of females so I came out and we took the deceased onto the road. The deceased was taken to Buluma in the Governor's vehicle and the matter was reported to police. Police didn't have a vehicle so we borrowed a vehicle and took the deceased to Kimbe Hospital. On Saturday he was still alive. He died on Sunday at 6.00pm."

N1>[3]      It was further revealed in cross-examination that the Hylux was carrying 11 passengers and the deceased was seated at the left end of the tailboard so that he had his back to the road when the vehicle parked at the driver's right side of the road.

N1>[4]      The only criticism against this witness is that he was evasive at times. For instance, his evidence that he was driving at 20km per hour is unbelievable. If that had been the case, they would not have caught up with the motor cycle travelling ahead of them. My observation is that the witness was merely being defensive against defence counsel's suggestions. He obviously did not want to entertain counsel. However, I am not able to say that all of his evidence are unbelievable. He did not destroy the most relevant parts of his evidence on how the accident occurred.

N1>[5]      Evidence by witness Gugunia is as follows:

"I was at my house and I got my motor bike and I wanted to buy bruce. I proceeded on the road towards Hoskins. I then saw a vehicle travelling at the back of me. I continued and then turned right into a village. I stopped and I saw that the vehicle which was following me went ahead a bit and then stopped. It then put on the double blinkers and reversed. It then stopped at the right side of the road (when facing Hoskins). I walked towards the vehicle and they shouted: 'Kelu!' to me and I replied: 'I'm not Kelu.' When we were still conversing a vehicle approached us from Hoskins. It approached the parked vehicle. The driver saw that the other vehicle was coming directly at him so he turned right to where I had turned in. I then saw people fell from the vehicles. Some ran. I also ran and hid under the house. I then went to where the Toyota Hylux was. The one who was lying on the ground was taken away in Governor Vogae's vehicle."

N1>[6]      Whilst this witness was still giving his evidence he was taken to the scene of accident. The accident happened on the a straight stretch of road measuring some 1,300 meters. Where the accident took place is some 500 meters to the first bend from Hoskins where the accused had come from. The road was already sealed at the time of the accident. It was a fine night and there were no obstructions, i.e., there were no shrubs or bushes, affecting any driver's vision of the road. The witness indicated the position of the Hylux after it had reversed and at which time the conversation went on between him and the people on the Hylux. The Hylux had its left tyres on the bitumen and the right tyres on the ground. About two thirds (lengthwise) of the vehicle was off the bitumen. The road itself is wide enough. It is about 8.2 metres. The witness also indicated where the Landcruiser, which was travelling from Hoskins, had ran off the road. At about 20 meters, according to the witness, the Landcruiser had its left tyres off the bitumen as it sped straight at the parked Hylux. The court was also shown the final position of the Hylux after it attempted to avoid collision with the oncoming vehicle. That was a few metres into the village beyond a small culvert.

N1>[7]      The third witness for the prosecution was John Kepas. The relevant part of his evidence is this:

"The bike signaled to the right. We went in to check someone, the driver wanted to talk to him. We drove in, the vehicle stopped, the park lights were on as well as the double blinkers. We talked to this man and not long a vehicle came from Hoskins. The driver called out: 'Kar i bamim mipela nau!' (That vehicle will collide with us now!) Same time he started car the oncoming vehicle hit us. I fell that time. When I got to see what was happening and the people at the village came running towards us shouting: 'Kilim, Kilim' (Kill him, kill him). So I ran away from the scene."

N1>[8]      This witness was not so impressive in that he appeared to possess a short memory and was unable to give his evidence in any greater detail. I think he was nervous but not necessarily dishonest. Consequently, I cannot dismiss all of his evidence which are materially consistent with those given by witnesses Pius and Gugunia.

N1>[9]      Doctor Pasio gave evidence on the cause of death. The Report on Post-Mortem Examination shows "excessive intra-cranial hemorrhage occupying the whole occipital lobe extending up to the left parietal lobe. Much congestion with haematoma over the area of the brain involved." Simply put, the deceased died as a result of severe brain damage. The deceased was hit by a "blunt object", "consistent with a motor vehicle accident", at the back left side of the head. This is consistent with the evidence on where and how the deceased was seated in the vehicle.

N1>[10]    From these evidence it was clear, at the close of the prosecution case, that the accused had a case to answer.

N1>[11]    The accused gave evidence for himself. The relevant parts of his evidence are these:

"When I turned I saw lights ahead. I had my lights on low beam. When I came I realized that the other vehicle was not on its own lane. It was on the center of the road. When I came closer I slowed down to 40-50 kmph and then all of a sudden the other vehicle turned right. At 20 meters I had my left tyres on the edge of the road thinking that the other vehicle would pass by."

N1>[12]    The accused had earlier testified that he was travelling at 70-80 kmph and slowed then down when he saw the Hylux approaching at the center of the road. The accused does not deny that at 20 meters he ran off the road and had his left tyres at the side of the road. This piece of evidence is consistent with the prosecution evidence. The only dispute is his reason for having his left tyres off the road - he said he did so to allow enough space to the Hylux, which he said was travelling in the middle of the road, to pass by. However, all of a sudden the Hylux made a right turn. Hence, the accident. The accused denied seeing the motor cycle in front of the Hylux.

N1>[13]    The second witness for the defence was Senior Constable Belden Eiba. He was actually summoned by the court upon application by the defence. His evidence is circumstantial. He said he saw the Hylux in Kimbe and at about 5.00 pm he and his wife were offered a lift by prosecution witness Pius. They refused the offer because they suspected that the passengers and driver were drinking alcohol from soft drink containers they were holding at that time.

N1>[14]    Later that night after the accident the deceased was taken to Buluma Police Station (between Banaule and Kimbe). That was when this witness learnt about the accident. After the deceased was taken away the witness went to the scene, inspected the Hylux and smelt beer from the cabin.

N1>[15]    The third witness for the defence gave evidence consistent with those given by the accused person:

"I was in the vehicle (cabin) with Joseph Makel. We dropped off an employee of SBLC at Gule at 5.30 pm. When we returned we followed Kimbe-Hoskins road. Then when we approached and passed the corner we saw the light of that vehicle. We came close to that vehicle and we gave way, the driver slowed down so that they would pass by. Then when we were already too close that vehicle turned right cutting our path and in the process the two vehicles collided."

N1>[16]    The witness further stated during cross-examination that their vehicle had 11 pieces of 6x1 timber but the load was not heavy. He denied seeing the motor cycle travelling in front of the Hylux but he did see the motor cycle at the scene immediately after the accident.

N1>[17]    What are the factual issues? My observations will concentrate on the movements of the two vehicles and the motor cycle on that 1300 meters straight. Let us deal first with the motor cycle. The prosecution evidence is that when the Hylux was preparing to stop the Landcruiser had not turned the corner. The evidence by the defence is that they did not see the motor cycle at any time before the accident. Accordingly, I accept that by the time the Landcruiser turned the corner into the straight the motor cycle must have gone into the village. Thus, the motor cycle has nothing to do with the accident.

N1>[18]    The Landcruiser and the Hylux were the only two vehicles on the road with the former having completed about 500 meters and the latter having made 800 meters when the collision occurred. The accused did not deny the prosecution evidence that he did run off the road immediately before the accident but, he said, he did so to avoid a collision with the Hylux which was travelling at the center of the road. Hence, he did not lose control of the Landcruiser. This necessarily means that the major factual issue is whether the Hylux was stationary as claimed by the prosecution or was it in motion at the center of the road as claimed by the defence. If I find that the Hylux was in motion at the center of the road, as claimed by the prosecution, then I must accept the accused person's reason for having his left wheels off the road. That should lead to his acquittal. Conversely, if I accept the prosecution evidence that the Hylux was already stationary at the side of the road then the accused is solely responsible for the accident.

N1>[19]    I do accept the prosecution version of what took place. The prosecution case was built around Gugunia's evidence. He was not a passenger of either vehicles. This witness is originally from North Solomons. He is married to a woman from Banaule and resided at Banaule II. The accused is from Madang and is also married to a Banaule woman and, it appears, resides at Banaule I. The accused knew witness Gugunia before the accident. The passengers in the Landcruiser were young men from Banaule. The accident took place at Banaule.

N1>[20]    On the other hand, the deceased is a Sepik. The passengers in the Hylux were Sepiks.

N1>[21]    In these circumstances, if the accused and his witnesses were truthful witnesses Gugunia had all the reason to be on their side, but, he did not. Why? It was suggested by at least one defence witness that Gugunia was lying but the attack is without substance. In my view, Gugunia is the only independent witness who saw what actually took place. He was not a passenger in either vehicles and there is no evidence that he had any personal relationship or interests, at least, with the passengers on the Hylux.

N1>[22]    Gugunia was the most impressive witness in the whole trial. When we visited the scene of the accident he did not wait for questions. He proceeded instantly to show the court how the accident occurred. He was a credible witness. I accept his evidence on what he saw - the Hylux was already safely parked, the Landcruiser came at high speed, ran off the road and collided with the Hylux.

N1>[23]    Witness Gugunia was able to build the foundation for the prosecution case. Witnesses Pius and Kepas provided the necessary corroboration.

N1>[24]    Given the strength of the prosecution case, whilst the burden of proof does not shift to the defence, it was incumbent on the defence to adduce evidence sufficient to unsettle the prosecution case. However, I have the impression that the defence witnesses were untruthful. Their explanations on how the accident took place are "recent inventions". Their version that the Hylux was travelling at the center of the road and suddenly (dangerously) turned to the right and got in the way of the Landcruiser was never put to any of the prosecution witnesses in cross-examination. I know that counsel was very thorough with his cross-examination but he did not hit the nail on the head, so to speak. I have double checked counsel's cross-examination of prosecution witnesses Pius, driver of the Hylux, and Gugunia and have found no defence version being put to the prosecution witnesses.

N1>[25]    Quite frankly, at the end of the prosecution case I had no clue at all on what to expect from the defence witnesses. My guess was the accused would remain silent, but, he did not and, in the process had the court startled with his "recent inventions".

N1>[26]    In The State v Ogadi Minjipa [1977] PNGLR 293 where an identical omission or failure was committed Prentice DCJ commented at page 296 as follows:

"Before concluding, I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that the State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit - if this course be taken." (my emphasis)

N1>[27]    In this case, counsel did suggest to prosecution witnesses that they were lying but those suggestions relate to side factual issues. Counsel, with all due respect, failed to confront the witnesses with the facts vital to the defence case, namely, that it was the Hylux which did not stop at all, it was in motion at the centre of the road, and, when the Landcruiser was only about less than 20 meters away the Hylux made the dangerous right turn.

N1>[28]    Criminal trials must be conducted fairly. Putting or confronting the prosecution witnesses with the defence version of facts is part and parcel of the duty to observe fairplay. Counsel should take full instructions and should have assessed the strength of his client's case before the trial begins. During trial such instructions must be put to all relevant witnesses. There is no room for an ambush by either side in a criminal trial. If new evidence are found in the course of a trial counsel should consider the option of recalling relevant witnesses, subject to pertinent stringent requirements, so that new evidence may be put to them in cross-examination.

N1>[29]    Credibility of witnesses is another main consideration. Keeping ones case secret attracts little credibility - evidence adduced thus risk condemnation as being recent inventions as opposed to original instructions to counsel which should have become apparent in the process of cross-examination of prosecution witnesses. Defence counsel should always remember this rule of practice, particularly when, in this jurisdiction, most criminal trials are decided on the basis of credibility of witnesses.

N1>[30]    It is also for these reasons that I am rejecting the evidence by Senior Constable Belden Eiba on his discovery at the scene of accident that he smelt beer from the cabin of the Hylux. His discovery was never put to the prosecution witnesses during cross-examination. Apparently, any proper instruction from this witness to counsel was only given after the prosecution had closed its case. In any case, on the strength of Gugunia's evidence, I am about to find that the Hylux was already safely parked immediately before the accident. This means that if the Hylux driver was indeed under the influence of liquor (but there is insufficient evidence to this effect) that is no licence for the Landcruiser to run into them after they have parked. I am, therefore, at ease with my rejection of Eiba's evidence.

N1>[31]    At this stage I would like to deal with specific evidentiary points submitted by the defence. Let me reiterate that there were some inconsistencies in the prosecution evidence but they were not fatal to the case as they relate to facts not important to the factual question of how the accident occurred. However, hereunder are my observations in relation to some "inconsistencies" which the defence submitted on.

N1>[32]    The inconsistencies in relation to which lights were on when the Hylux was parked, and, whether the engine was on or not, are not really material. What is important is that the Hylux had stopped and there were no inconsistencies in this regard. In any case, I accept the Hylux driver's evidence that he had park lights on, the hazard lights were on and the engine was on.

N1>[33]    There was a suggestion that the Hylux was on high beam and that affected the vision of the accused, hence, the accident. However, the accused did not say that his vision was affected as such. In any case, as I have said, I accept Pius's evidence that he had the headlights off.

N1>[34]    Was the Hylux registered and roadworthy? I dealt with an attempt by the defence at the eleventh hour to introduce evidence on the above. The relevant evidence was rejected on the basis that, apart from the unfairness in the failure to cross-examine the relevant prosecution witnesses on the matter, it was introduced by a witness who was not a custodian of such information. Evidence by such witnesses would be hearsay. In any case, the Hylux was already safely parked. If it was unregistered or not roadworthy, again, that is no license for the Landcruiser to run into it.

N1>[35]    Was the Hylux parked on the wrong side of the road? Yes it was, but, with two thirds of its body off the road and with ample space to the oncoming driver's right, the wrong-side-parking was not the cause for the accident. It is clear from the evidence that the Lancruiser would still have hit any correctly parked vehicle on that (same) part of the road.

N1>[36]    It was also submitted that the passengers of the Hylux ran away because they were threatened by people who were shouting: "Kill him, kill him!" It was dark at that time and there is no evidence to show that these threats and reasons for such threats were directed at the people on the Hylux. Apart from Gugunia and passengers on both vehicles there is no evidence of any other witness to the accident. It would, therefore, be misleading to place any weight on this piece of evidence. To this extent, I refuse to entertain the suggestion that the Hylux may have been at fault.

N1>[37]    Ultimately, the prosecution has established, to the required standard, that the deceased died from head injuries he received as a result of the above-mentioned vehicles colliding with each other. In relation to the element of dangerous driving, the prosecution has also established, to the required standard, that the deceased was in a vehicle, the Hylux, which was already stationary with two thirds of its body off the edge of the sealed road. The double blinkers were on and as such it posed no danger to the Landcruiser. On the other hand, the Landcruiser, which the accused was the driver of, was traveling at a high speed and, consequently, the accused lost its control and ran off the road, colliding with the Hylux in the process. The only movement of the Hylux at the relevant time was when it swerved to the right to avoid what could have been a nastier accident. Unfortunately, the Hylux was hit at the left end of the tailboard, where the deceased was seated, by the front left side of the Landcruiser.

N1>[38]    The prosecution has, therefore, proved that the accused did drive dangerously, and, that dangerous driving was a substantial cause (if not the sole substantial cause) of the death of deceased Peter Wanpis. I find the accused guilty as charged.

N1>[39]    Verdict: Guilty as charged.