Wirrenuu v Simon [1998] PGDC 8; DC31 (6 June 1998)

Unreported District Court Decisions

[1998] PNGDC 8 - WILLIE WIRRENUU V NOAH SIMON

[1998] PNGDC 8

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 105 OF 1998

PARTIES:  WILLIE WIRRENU

INFORMANT

V

NOAH SIMON

DEFENDANT

Kimbe

P Monouluk PM

6 June 1998

MOTOR TRAFFIC ACT (CHAPTER 243) - Driving without due care and attention - not guilty plea - cross examination - whether Defendants answers amount to unequivocal admission.

Cases Cited

Laeka Ivarabau v Nanau [1967-68] PNGLR 12

Balu Mau'u v Pare [1973] PNGLR 64

Agiru Aieni and 12 others v Paul Tohain [1978] PNGLR 37

P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751

Representation

Counsel/Representative

Informant:  S/C Bangui

Defendant:  In person

Lawyers/Representative

Defendant:  In person

6 June 1998

P MONOULUK PM:

N1>[1]      The Defendant is charged under s17(a) of the Motor Traffic Act (Chapter 243) with driving without due care and attention. The Informant alleged that on 9 May 1998 at about 6.45pm the Defendant whilst approaching a one lane bridge failed to give way, as required by a "give way" sign next to the bridge, thus causing an accident with an on-coming PMV bus. The court is therefore asked to determine the party at fault.

N1>[2]      The prosecution called two (2) witnesses (the driver and his offsider). Both witnesses gave sworn evidence that they are familiar with the road as they operate their PMV on that route many times (Kimbe/Hoskins). At that particular bridge is a 'give way' sign on the Defendant's approach. It appears that at that particular time both vehicles approached the bridge at almost the same time. Both witnesses and the Defendant, who during cross examination, agreed that the give-way sign was on the Defendant's side.

N1>[3]      The Defendant gave his sworn evidence that at the time when he approached the bridge he did not see any other vehicle so he proceeded onto the bridge and was surprised when he ran into the other vehicle. Under cross examination the Defendant, interestingly enough, made the following remarks:

N2>"Q:     Where there is a give-way sign on your part, who is supposed to give way?

N2>A:       Myself.

N2>Q:      You said you are aware of the traffic rules, why didn't you adhere to them?

N2>A:       I did not see the other vehicle coming.

N2>Q:      You failed to look properly that is why the accident occurred, is that correct?

N2>A:       Yes.

N2>Q:      The PMV driver is not at fault because he had a right of way?

N2>A:       Yes."

N1>[4]      The issue now is whether his words amount to an unequivocal admission. The principle applicable in this instance is to be found in the case of Agiru Aieni and 12 others v Paul Tohian [1978] PNGLR 37.

N1>[5]      In the two pre-independence authorities of Laeka Ivarabau v Nanau [1967-68] PNGLR 12 and Balu Mau'u v Pare [1973] PNGLR 69 which enunciated this principle, Wilson J stated as follows:

"… [That] the words spoken by the defendant are the words to be looked at and cannot be taken to amount to a plea of guilty unless those words unequivocally point to an adoption of each of the elements of the charge..."

N1>[6]      The ruling in P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 makes it clearer. O'Connor J remarked that:

"For a plea to be equivocal the defendant must add to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged."

N1>[7]      O'Connor J went on to give as an example the case where a man is charged with being in possession of a stolen property and pleads guilty to being in possession but says "I did not know it was stolen", he is entitled to a not guilty plea. The situation at hand is a little bit different. Despite his not guilty plea the Defendant during the course of cross examination made a clear undisputed and unambiguous admission which is consistent with the spirit of the ruling in Agiru Aieni and 12 others v Paul Tohian (supra). Even if that is not so, the Defendant's answers during cross-examination, especially those final four answers, consistently implied his admission. The Defendant had the opportunity to deny the allegations put to him, yet each of his answers went to qualify and strengthen his immediate preceding answer to each question and in my opinion is in accordance with the principle in P Foster (Haulage) Ltd v Roberts (supra).

N1>[8]      There is no question as to the Defendant's ability to understand tok pisin (his mother tongue). I have no doubt the Defendant meant what he said when answering questions, after all he swore on the Bible to tell nothing but the whole truth. I notice also that from these reported cases the issue is raised during the arraignment stage. There is nothing in these judgments to help indicate the application of these principles during the trial stage as in the case before me. Left with this uncertainty I am of the view that the principles are also applicable and embrace my situation, thus leaving me no option but to use my discretion to stop the trial and re-enter a guilty plea.

N1>[9]      The Defendant pleaded that he is new to that particular road – that it was the first time that he used that road. However the fact that he did not see the other vehicle is inexcusable for a person with driving experience of nine (9) years. In his evidence the Defendant admitted that there is a give-way sign on his part, which I agree. Any properly licenced driver will be aware of the different types of road signs in the country and their respective purposes.

N1>[10]    In considering an appropriate sentence, I have had the benefit of considering the defendant's character, antecedents, age and health. I also had to remind myself of the need for all drivers to take extra care for themselves and other road users when in control of a potentially dangerous machine. Apart from that there were no extenuating circumstances under which the offence was committed therefore I consider a K200 fine as sufficient to be paid forthwith, in default eight (8) weeks imprisonment with hard labour.

N1>[11]    Orders accordingly.