Police v Tuap [2001] PGDC 34; DC318 (2 October 2001)

DC318

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 84 OF 2001

Police
Complainant

V

Benny Tuap
Defendant

Mt. Hagen: M. M. Pupaka
2001: 26th, 27th Sept., & 2nd Oct.

Criminal Law – Particular offence – Dangerous driving causing death – Elements of offence – Standard of driving to be viewed objectively – Courts to apply the test in King –v- Coventry

Criminal Law – Standard of proof – Onus of proof – State to prove its case beyond any reasonable doubt

Criminal Law – Evidence – Inconsistency and contradiction in State witnesses’ evidence – Caution against conviction – Dangers of conviction

Cases Cited
R-V- Coventry [1938] HCA 31; (1937-38) 59 C.L.R 633
R-V- Pius Piane [1975] PNGLR 52
Karo Gamoga –V- The State [1981] PNGLR 444

Counsel
Sgt. Piaku For The Prosecution
The Accused In Person

12th November 2001

M. PUPAKA, PM: The accused Benny Tuap was charged that he on the 12th of June 2001, drove a motor vehicle, a white Toyota Hiace 15 seater bus Reg. No. P.498U upon the Sir Okuk Highway dangerously causing bodily injury to one Gibson Mark, a child, thereby contravening section 328 (5) of the Criminal Code Act chapter No. 262, (the Code).

The accused pleaded not guilty upon arraignment and the matter proceeded by way of a trial. The prosecution called 5 witnesses. Three of these were children – one of them was the victim. The other two were one adult eyewitness and the police investigator. A Sketch Plan of the scene of the accident, a police Vehicle Examination Report, and the Record of Interview (ROI) with accused, were tendered into evidence by consent.

The accused elected to testify on oath and did so. He called only one other witness, the offsider on his bus.

The State Case

The State’s case is that the accused drove the vehicle described above, which is a PMV, down the Sir Okuk Highway from Mt. Hagen. He drove down passed the Komun Bridge and rounded the slight curve there and straightened out along the straight stretch. As he was cruising along the straight stretch he ran into the victim, a 10-year old school boy.

Whilst the main thrust of the State case is clearly focused on what happened, there are vital inconsistencies among the State witnesses’ evidence.

Three of the four prosecution witnesses, (excepting the victim), said that the accused drove off the road and hit the victim who was walking to school off the road proper on the footpath.

It is said Gibson Mark (the victim) and three other kids were walking to school. They were walking single file. The victim was in front of the line of kids. Witnesses Sera Herod, Jacklyn, and one Kenneth, (who by the way was not called as a witness), followed him in that order.

Witness Sera Herod said the accused came from behind them. He avoided hitting her but hit the victim and flung him off into the bushes. Sera Herod thought the accused might have had a faulty brake on his vehicle. Witness Jacklyn told much the same story as Serah Herod.

Witness Dickson Thomas, an adult male, said he was on the side of the road, within the range of the vicinity of the scene of accident. He indicated in court that he was some 30 – 40 meters away from the point of impact. He generally corroborated what witnesses Sera Herod and Jacklyn had said. He further said he was the first to go to the hurt child.

The victim child, Gibson Mark, testified. Considering his age and physical stature the Court directed the victim be accompanied by a parent or guardian. As a result when the victim testified, his mother sat near the witness stand. (In fact when the other two child witnesses testified she also sat close to them as well). I think boy (victim) was not intimidated by the court room environment. He talked freely and quite confidently. However the inconsistencies in the State’s evidence are from him.

The victim said he was walking to school with three other kids, (Sera Herod, Jacklyn, and the other child Kenneth). His evidence of where the bus came from, where the kids were going and what happened when the bus hit him corroborates with the evidence of the other two kids. However his evidence relative to on which side of the road he was, whether he was still on that side, and what exactly he was doing when the bus hit him, are clearly different to that given by the other two kids and the adult witness.

The victim said he had completed crossing over to the other side of the road when the bus hit him and tossed him over into the roadside. The victim clearly said he was alone on the ‘other’ side of the road. He said the rest of the children were on the opposite side. He said that in answer to a question put to him by the prosecutor as to whether he was walking in front or behind the other kids. The victim, in answer to another suggestion put to him that perhaps they (the kids) were playing on the road and did not see the vehicle coming said: "I saw bus coming so I crossed over and cleared of road. I was on the other side when bus hit me and threw me into the bushes".

The threshold issue of whether the victim crossed the road or not, and if he did how long or soon before the vehicle hit him, remains unresolved due to the inconsistency in the State witnesses’ evidence. The defence contention is that the victim did cross the road, and suddenly, leaving no time and road space for the accused to take evasive action. Under the circumstances it was always imperative that the State left no doubts as to just what happened, needless to say the inconsistency also impinges upon the overall credibility of the State witnesses’ evidence.

Defence Case

The accused and his off side, one Onda Peter, testified. They had travelled down as said. They had a load of passengers whose destination was Banz. They drove across the Komun Bridge and went passed the slight arc of the road and they straightened out to go up the straight, which is a slight rise. As they approached the straight they could see children going to school – on both sides of the road. The children had their backs towards the on-coming vehicle. As they got closer to the children, the victim who was walking on the right side of the road – at the back of the other kids – suddenly dashed across to the left side of the road. The accused had no warning. There was no time and road space for the accused to apply his vehicle brakes or steer away from the child.

The Law

The test laid down in R-v- Coventry (1937-38) 59 C.L.R 63, has been adopted and applied in this jurisdiction as the correct statement of the law in relation to the process of guilt finding in offences of this kind. It was first adopted and applied here in the case of R –v- Pius Piane [1975] PNGLR 52. Since then the Supreme Court confirmed its adoption and application in the case of Karo Gamoga –v- The State [1981] PNGLR 444, which to date, is binding precedent. I quote the pertinent part of Justice Pratt’s judgement in this (Gamoga) case (supra), at page 451:

"I am also of the view that the statement of law by the High Court of Australia in R. v. Coventry is appropriate to the circumstances of Papua New Guinea and is certainly not at odds with anything stated by the court of appeal in England. I particularly draw attention, for example, to the words of the joint judgement of Latham C.J., Rich. Dixon and McTiernan JJ. At pp.637 to 638:

"The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public...The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other users of the highway’... The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles."

Further at the bottom of page 638 and at the top of page 639 their Honours say:

"But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further the ‘manner of driving’ includes, in our opinion, all matters connected with the manner and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven."

In a separate judgement in the same case at p. 639, Starke J. points out that

"Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public." "

It is appropriate that the pertinent law is restated, if only to put matters in perspective. The decision in the instant case rest on two other principles of law. These are the appropriate standard of proof in criminal cases and the onus of such proof; and the dangers of conviction and the need for caution against conviction when such dangers are apparent.

First of all, the standard of proof of guilt in criminal cases is that of beyond reasonable doubt and the onus of such proof lies with the State. The State is duty bound to prove its case beyond any shadow of a doubt.

Secondly, any inconsistency or contradiction in the State witnesses’ evidence can only amount to ambiguity such as to leave doubts in the mind of the Court. It may be that there is other credible evidence from which appropriate inferences can be drawn, or conclusions reached. Yet the inconsistency or contradiction would effectively, if left uncured, attack and negate the veracity and worth of (other) evidence it contradicts or is inconsistent with.

For instance, in this case, either the three other witnesses for the prosecution are right in saying the victim never crossed the road, or the victim is right in saying he crossed the road, before being hit by the vehicle. They can not all be correct in their assertions. The same goes for the contradicting evidence as to whether the victim was alone on the left side of the road immediately prior to being hit, or that he was with others on the right, walking ahead of them in front, when it happened.

Whether the victim crossed the road before being hit is the crux of the issue. The accused says the victim did cross the road and suddenly, giving him no time to take evasive action. This issue has not been properly resolved. Consequently the State has not discharged the onus of proving its case beyond reasonable doubt. The accused clearly has a right to benefit from any reasonable doubts that this situation creates.

It has been said that the tribunal ought to acquit, when in doubt, all with good reason. It is dangerous to convict under circumstances such as in the instant case. Even if there is only one crucial inconsistency, that is just one too many.

The (ROI) with the accused contains neither an admission nor any incriminating answer. The Sketch Plan of the scene of accident and the Vehicle Inspection Report do contain evidence of some relative value. For instance the evidence of imprints of tyre marks on the sealed road surface at the scene of the accident indicative of sudden brakes being applied, and the evidence of suspect brakes on the Road Accident Report, are evidence of probative value. Yet this evidence does not cure the major inconsistency and contradiction alluded to above. Moreover, considering the conclusion I have reached that a conviction is neither safe nor appropriate, I am of the view that further discussions of these items of evidence are not necessary. Any further consideration of the import of these, (documentary evidence), would serve no purpose at all.

Conclusion

In the circumstances the accused Benny Tuap is acquitted and discharged. He shall have his bail monies refunded to him.

Sergeant Piaku for the Prosecution
The Accused in person