Police v Timmeaus [2004] PGDC 61; DC310 (23 December 2004)

DC310

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 9 OF 2004

Police
Complainant

v

Koroda Timmeaus
Defendant

Mt. Hagen: M. M. Pupaka
2004: 26th July, 24th Sept., 8th Oct., & 9th Nov.

Criminal Law – Particular offence – Dangerous driving causing death – Death & cause not disputed – Defence – Defence of ‘unavoidable accident’ raised.

Criminal Law – Particular offence – Dangerous driving causing death – Undisputed evidence of dangerous situation being created by deceased victim who crossed suddenly onto the road – Issue – Whether accused had the opportunity in terms of time and distance to avoid hitting the deceased – Secondary issue of excessive speed – Straight stretch of road with clear vision – Application of the reasonable and competent /experienced driver test – The evidence indicate the deceased was too much at fault – The accused could not have avoided hitting the accused under the prevailing circumstances – Verdict of not guilty returned.

Counsel Sergeant Major Singol
Mr. O. Kingal For The Accused

23rd December 2004

M. PUPAKA, PM: The accused, Korada Timmeaus, aged 39 of Kotaurwe Village, Ioma, ORO, is charged that he on 10th January 2004 at St. Paul’s along the Okuk Highway drove a Nissan Navara Utility vehicle bearing Reg. No. TAA. 388 dangerously and caused the death of Takipon Tomo, contrary to section 328 (5) of the Criminal Code (the Code). He entered a not guilty plea to the charge and in the trial that followed the prosecution called 4 witnesses. An accident scene sketch plan was also presented by consent. The accused testified in his defence and called three other witnesses of his own.

I must record at this juncture that the accused had driven that day without a valid driving license. His driver’s license, Class 6 license # 5401 had expired on 10th June 2002. Consequently he was also charged with the offence of driving without a valid license contrary to Section 21 (1) of the Motor Traffic Act Chapter No. 243. I note he was convicted upon a plea on that charge and was fined K150.00. It is not clear as to whether the accused had driven a motor vehicle at any other time since 10th June 2002, but I should note for the current purposes that the accused failed to renew his license for over one and a half years and he drove on the 10th of January 2004 knowing full well he was not supposed to drive a motor vehicle under any circumstances what so ever.

The Prosecution Case

The prosecution case against this accused is that he did not do enough to avoid hitting the deceased and or alternatively he drove at an excessive speed such that he could not avoid hitting the deceased. The accused further had no right to drive a motor vehicle at the time because he had no valid driver’s license.

I would assess the prosecution case witness by witness in the order its 4 witnesses testified.

The first witness was John Pombre. He said the deceased who was on one side of the road crossed toward the other. As she did a vehicle came speeding down from the general direction of SDA – Kimininga way. People on the roadside yelled to warn her of the danger. The deceased tried to turn and come back but the speeding vehicle ran her down. The accused applied brakes but due to the high speed of his vehicle the tires skidded and the vehicle slummed into the deceased.

The second prosecution witness was Sup Mek. This witness also gave a similar story as the first witness. This witness said the accused was driving too fast such that he could not arrest the speed of his vehicle in time, in fact the vehicle skidded for a long distance and hit the deceased. The witness said the old lady, due to her frailty could not move off the road fast enough.

Traffic Policeman Robin Yapu was the next to testify. He visited the scene of the accident and did a sketch plan of it. Significantly this witness noted that the hit vehicle skidded for 7.6 meters before contact or impact.

The final prosecution witness was Mark Ipuia, who said he too was there at the scene of the accident. He said the old lady crossed the road thinking the vehicle was at a safe distance. However she may have realized it was closer than she thought and she tried to turn back but it was by then too late. The witness, being a driver himself, said had the accused traveled at a slower speed he would have avoided the collision. He said the accused could not slow or stop the vehicle, in fact there was a loud screeching sound caused by the vehicle tires when it skidded before slumming onto the deceased.

The Defence Case

All four of the defence witnesses, including the accused, said the deceased was already on the St. Paul’s Church side of the road. She then walked across to the other side, where the prosecutions witnesses said they were, when hit by the vehicle. These witnesses said the deceased walked suddenly into the path of the vehicle, giving no warning or time to the accused. They said the deceased did not look toward the direction of the accused, which is why she did not see his vehicle before crossing. The accused said he could not do anything. He tried applying the brakes but the lack of space between the deceased and the vehicle made it ineffective.

Scene of the Accident

As requested by the parties the Court visited the scene of the accident on 10th December 2004.

The Issue

The pertinent question in this matter is: Did the accused have sufficient time to take evasive and preventative measures in the management of his vehicle, and if so did he do all that he reasonably could to prevent injury or death?

Findings on the evidence in relation to the Issue

I think there is not much difference between the prosecution and defence cases. Both sides’ evidence establish a common fact, which is that the victim created the dangerous situation by crossing the road. The only contentious issue is that issue of speed. The prosecution case is based on its contention that the accused drove too fast in the circumstances and that is why he could not stop his vehicle in time to prevent a direct hit. Its principal evidence of excessive speed is in the 7.6-meter skid mark.

In my view the accused’s conduct can only be judged in relation to the conduct of the deceased. The reason is simple. The accused was reacting to an eminently dangerous situation being created suddenly by the deceased. Under scrutiny is the adequacy of the accused’s reaction, his reflexes, and his competence as a driver.

That said I now turn to the speed of the vehicle. The prosecution witnesses said had the accused not driven at high speed he would have avoided hitting the deceased. I would agree the deceased would have safely crossed the road had the vehicle traveled a bit slower. However, had the deceased checked the road both ways before stepping onto the road as she is supposed to, she’d have seen the accused’s vehicle speeding down, she’d have noted the speed of the vehicle and she would have stepped back and not cross the road.

Nevertheless that does not tell us how fast the vehicle was traveling at. The only indication of any sense of speed is in the length of the skid mark. Finding fault or guilt by use of extrinsic evidence, for instance skid marks, is only relative. In this instance there is no direct evidence of the real speed of the vehicle other than the length of the skid marks.

Results of road mishaps or accidents may be a good indicator of the cause of the mishap or accident. For instance if a driver causes an overturn after loosing control of the vehicle, speed may have been the cause is an open possibility. By the same token if a vehicle runs over a person who suddenly crosses the road in front with no regard to the oncoming vehicle, the driver cannot automatically be said to have been at fault, regardless of what level of speed is employed. The driver’s fault would instead depend on how much at fault the victim was. If the victim cannot be held liable, then the driver’s reaction and reflexes would come under scrutiny, to gauge whether there had been sufficient time and opportunity to avoid an accident.

The law does not expect drivers to show the skills of say a grand prix competitor. The law demands demonstration of competence and skills of an ordinary driver. Drivers reacting to a separately created dangerous situation are expected to react like any other driver would, not act like superman.

During the Court’s visit to the accident scene the contour of the road was noted to commence with a descent at a gradient terminating over a sliding trough and then rise relatively up hill. The layout of the road is naturally conducive for drivers to accelerate down and on uphill rather than reduce speed or slow down. Unless there is other traffic in front that they are tailing, drivers would be inclined to accelerate. They would not normally be expecting anyone to be out and about on the road anyway as there are no schools or crossings or any other traffic hazards on that stretch of road. One important aspect I noticed during the scene visit, again given the peculiar layout of that stretch of road, is that a vehicle coming into view on the top of the rise at the SDA entrance is closer than it may otherwise seem to someone about to cross the road at the spot the victim in this case did.

Significantly though, I also think the deceased gave very little warning to the accused. She may have not seen the accused’s vehicle anyway as the evidence that she was faced toward when she crossed the road St. Paul’s Church direction is uncontested.

The length of the skid marks, relied on by the prosecution to establish speed, is 7.6 meters long. However there was no broken glasses or paint scrap or other debris indicating the exact point of impact. This means the point of impact could easily be closer than at the end of the 7.6 meters. The skid marks could have continued after the impact. The deceased’s bilum bag was said to have fallen off at the point of impact. Nevertheless a bilum bag is a thing that can and could easily have been tossed forward in the impact. It cannot possibly just drop down straight when dislodged with a forceful forward motion. The point is the 7.6 meters is not a definitive measure of the distance between the crossing deceased and the accused’s vehicle, at the point of realization of the deceased by the accused, the moment in time when the accused would have applied the vehicle’s brakes.

In the end I think the deceased victim was way too much at fault. To say the least she acted in a way that tested the driving skills of the accused, and I think any other competent driver’s driving skills would be similarly tested. Crossing the road in front of oncoming vehicles is a reckless and dangerous thing to do. Death and injury cannot only result upon the person crossing but also the vehicle’s occupants who are put at risk. The driver might be forced to panic by a sudden crossing of the road or he might hit another bystander whilst trying to avoid the first person or he might similarly collide into another vehicle or building nearby or cause any number of damages. Simply put people have no right to suddenly cross the road and thereby endanger their own and other people’s lives. I think the deceased victim in this case acted recklessly and completely endangered her own life. She is said to be quite old and may have had a weakened sense or awareness of danger. Nevertheless she, quite unintentionally I am sure, was too much at fault than the accused. This is vital aspect, which is extremely hard to ignore.

Consequently the accused would have the benefit of the doubt. I must therefore return a verdict of not guilty.

I would make just one other point, as it is important in the circumstances. The accused drove without a valid driver’s license. He was charged over that offence and was fined upon a plea. Driving without a valid driver’s license is not an element of the offence of dangerous driving causing death so the conviction on the first charge, on its own, cannot affect the outcome in this trial. However had the accused been found guilty in relation to this current charge, his conviction on the unlicensed driving offence would have been considered as an aggravating factor.

Moreover this accused could have driven a police vehicle prior to 10th January 2004. He had been unlicensed for one and half years to the time of accident after his driver’s license expired on 10th June 2002. The accused drove a police vehicle on the 10th of January 2004 knowing full well that he was not supposed to drive any vehicle under any circumstances what so ever. Therefore, for the record, it ought to be noted that it is a serious misconduct for this accused who is a policeman to have driven without a valid license in the circumstances.

Sergeant Singol: Complainant
Dowa Lawyers: Defendant