Police v Nentepa [2001] PGDC 41; DC326 (20 November 2001)

DC326

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 17OF 2001

Police
Complainant

V

Pokentepa Nentepa
Defendant

Mt. Hagen: M. M. Pupaka
2001: 7th, 24th August & 20th Nov.

Criminal Law – Particular offence – Dangerous driving causing death – Elements of offence – Close of State case – Crucial elements not proved – Trial stopped – Accused acquitted and discharged

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 443

Counsel
Sgt. Piaku for the Prosecution
The Accused in person

04th October 2001

M. PUPAKA, PM: The accused Pokentepa Nentepa was charged that he on the 29th of December 2000, drove a motor vehicle, Mitsubishi Canter Truck Reg. No. LAI 105, at Kurumul section of the Sir Okuk Highway, dangerously and caused the death of one Luke Nol, an adult male, thereby contravening section 328 (2)(5) of the Criminal Code Act chapter No. 262, (the Code).

The accused entered a not guilty plea to the charge and the matter proceeded to trial. In the trial the prosecution called just one witness. The following items of evidence; the Police accident scene Sketch Plan, Mechanical Inspection Report, a set of Post Mortem documents, and the Record of Interview (ROI), were tendered into court by the prosecution with consent of the accused. After calling its first witness the prosecution sought and was granted two adjournments to call other ‘key’ eyewitness. It appears the prosecution have obtained a summons to serve on that ‘key’ witness. However that witness has apparently disappeared – initial indications are that the witness has specifically skipped town to avoid testifying herein. The prosecution was therefore forced to close its case.

In the circumstances the Court adjourned to decide whether the accused has a case to answer. This is the Court’s ruling on the sufficiency of the State evidence as it now stands.

The State Case

The State’s case is composed of the testimony of its only witness – Aip Bai – and the documentary evidence that were tendered by consent.

First of all the documentary evidence, those considered alone, would not amount to much. The Post Mortem documents are a straightforward record of the alleged cause of death of the victim and the extent of bodily damages occasioned. There is no admission contained in the ROI so the prosecution can not obtain value from its contents. The Sketch Plan adheres closely to the story told by the single eyewitness. However the Sketch Plan’s position of stationary vehicles is contradictory to the eyewitness’ account. Whereas the eyewitness said there was only one stationary (or near stationary) vehicle moments prior to and at the time of impact, the Sketch plan notes 3 such vehicles. Under the circumstances the Sketch Plan is controversial evidence. The police Mechanical Inspection Report contain the results of inspection upon the accused’s vehicle subsequent to the accident. It discloses no mechanical faults in the offending vehicle, however it does allude to and contain opinions of the vehicle’s speed at the time of impact, as formed by the vehicle inspector. The vehicle inspector was not called and so the conclusions of opinion are untested assertions and are unreliable. In fact at the time of the tendering of this document the Court ruled that that document was in evidence, minus the opinions of the its author.

That necessarily means whether or not this case proceeds to the next phase depends very much on the strength of the single prosecution witness’s evidence. The sum total of this lone police witness’s evidence (Aip Bai) is this:

Aip Bai was at the vicinity of the scene of the accident, which is at a place called Kurumul, along the Sir Okuk Highway. In fact he had been a bit further down, but was walking up towards the scene of accident. There was one other pedestrian walking up ahead of him.

Moment’s prior to the impact, three vehicles parked on the left side of the road at Kurumul. All these vehicles had travelled up the road, that is from the general direction of Minj, Kundiawa, Lae, etc and were headed in the general direction of Mt. Hagen. These vehicles were two 15 seater buses and a big container truck. The big truck had arrived first. The occupants of the first seater 15 had stopped that big truck. Apparently the passengers in the 15-seater bus wanted to buy betel nuts from the driver of the big truck, so they waved it down. The second 15-seater bus arrived next. Whether its passengers also wanted to buy betel nuts from the truck is not quite clear, but that second bus also stopped, next to the first bus. Whilst stationary the three vehicles were parked single file, in the order they arrived – the big truck first, then the first bus ahead of the truck, and in front of the first bus was the second bus. All were on the left side (‘their side’) of the road as said.

The police witness and the other pedestrian were walking up towards those vehicles, on the right (opposite) side of the road. As they were continuing to walk up the two buses drove off, apparently after its’ passengers finished buying betel nuts from the big truck.

The police witness said there were not many people around after both buses had left. Whilst he was walking up the he saw the big truck starting up and signalling to pull into the road to proceed on its way. By then he was quite close to the big truck. The other pedestrian who was walking ahead of him would have been closer.

Just before the big truck got into full motion to pull up onto the road, the accused drove up in his Mitsubishi Canter truck. The accused must have seen the truck ahead and must have also read its intention, because the witness says the accused’s truck sided towards the right (towards where the witness was walking) obviously in preparation to drive pass the big truck. The police witness remembers the accused’s vehicle speeding pass so close to him. He further recalls seeing the other pedestrian ahead of him being nearly run down. I suspect this witness, and the other pedestrian, may not have realised the accused’s vehicle approaching, as they had their backs towards it.

Now what happened next, spilt seconds after the accused’s vehicle shot passed the police witness, would be the crucial evidence. For the next thing the witness heard was the collision when the victim was hit by the accused’s vehicle.

The witness did see clearly the accused’s vehicle narrowly avoiding the other pedestrian ahead of him. However he did not see the victim being hit. The reason is simple. The deceased victim was walking across from the front of the big truck, which was at the left of the accused’s vehicle, onto the middle of the road. Apparently the deceased had also been buying betel nut from the big truck. The size of the accused’s vehicle would have blocked of the witness’s view of the actual hit on the deceased victim.

What is not certain is as to whether the witness saw the deceased cross the road. He did say that the accused must have seen the deceased crossing in from before his vehicle hit him. Whilst the police witness thought the accused had time to see the crossing deceased victim, he thought the accused nonetheless had no time to apply the brakes to either slow the vehicle down or to stop it.

This leaves much of the critical and crucial issues unresolved. Consequently the prosecution has, upon the close of State case, not proved beyond any doubt that the accused was not caught by surprise. The prosecution has not proved that the deceased victim was already on the road, with sufficient time for the accused to take evasive action. The police witness only merely said that the accused was travelling at speed. That is not conclusive proof of speed.

In the end the evidence of the State as it stands is not sufficient to convict. The prosecution has not made out its case against the accused. It therefore means the next phase of these proceedings, calling upon the accused to testify, has no meaningful purpose. The trial ought to be stopped and the accused acquitted, and I so order.

The accused is acquitted and discharged for having no case to answer.

Sergeant Piaku: Complainant
In Person: Defendant