Police v Gau [2005] PGDC 63; DC307 (9 February 2005)

DC307

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

Case No 44 of 2004

POLICE
Complainant

V

JAMES GAU
Defendant

Mt. Hagen: M. M. Pupaka
2004: 20th October & 16th December
2005: 14th January

Criminal Law – Particular offence – Dangerous driving causing death – Death & cause not disputed – Defence – Unavoidable accident due to brake failure.

Criminal Law – Particular offence – Dangerous driving causing death – Issue – Whether accused had the opportunity in terms of time and distance and prior opportunity before date of accident to avoid causing the accident – Secondary issue of excessive speed particularly with knowledge of defective brakes on vehicle – Visit of scene by Court – The ‘corner’ on road turns out to be a wide curve only – Application of the reasonable and competent /experienced driver test – On the evidence the accused had the opportunity in terms of time and distance on the day of accident to avoid accident – The accused had further opportunity prior to date of accident to avoid the accident by not driving at all – The accused drove a vehicle with faulty brakes – Verdict of guilty returned.

Counsel
Constable John Sangom for the Prosecution
The Accused in person

9th February 2005

M. PUPAKA, PM: The accused James Gau, in his thirties, of Kane Village, Kunjip, of Minj, WHP, was charged that he on 17th May 2004, drove a Tata Flattop Truck bearing the registration No. P. 607W dangerously upon the Kindeng – Toman Road and caused the death of one Jasua On, which is contrary to section 328 (5) of the Criminal Code (the Code).

The accused entered a not guilty plea to the charge and in the trial that followed the prosecution called 5 witnesses and closed its case. It also presented a Record of Interview (ROI) and an accident scene sketch plan through the arresting officer (1st witness), Paul Iwaga. The 5th prosecution witness (Chief Sergeant R. Tokam) was the Police Vehicle Examiner. A Vehicle Examination Report was tendered though him. This witness said the accused’s vehicle’s brake lining and brake drums were worn out completely and the accused needed to have pumped his brake pedal many times to effect the brakes sufficiently to stop the vehicle. He also said other parts of the vehicle including the brake pipes were intact. The examiner thought the accused had driven a vehicle with faulty brakes and that whilst knowingly so because the brake lining and drums take months and years to wear out. Given the type and extend of the damage sustained upon the brake lining and drums, there must have been reckless neglect on the part of the accused because these damages cannot occur without quite audible sounds emanating from the brake drums.

The Prosecution Case

The prosecution’s other evidence is that on the day of accident there was a big church gathering at around Pugmi Community School. A lot of people from around PNG and delegates and invited representatives from overseas were present. Prosecution evidence is that it was a much-publicized event. The day’s ceremony and activities included a march from the Pugmi to Papon, where overseas delegates were met and escorted back in the return march to Pugmi for the other activities.

The accused drove the subject vehicle on the day in question. Sometime prior to the time of accident, in the earlier part of the day the accused drove up the road, passed Pugmi Community School, and one of the prosecution witnesses – Pastor Daniel Kambi – recalled stopping the accused at the Pugmi Community School gate area and informing him of the day’s activities, especially the planned march on the road and further advised him to take care and drive slowly when he returned. Pastor Daniel Kambi said in fact he stopped every vehicle traveling up the road that morning and advised them to drive slow and take care. He says he was specifically tasked to be on the road very early that morning to warn all motorists on the Kindeng – Toman Road of the planned march and the fact that there would be plenty of people on that particular stretch of the road that day.

The prosecution case is that on the return march from Papon the crowd was paused at a corner. There were two men singing and dancing in front of the crowd, obviously playing lead roles in the ceremonial march. Much of the people in the crowd had gone passed the corner and the two dancing men and most of the people in the front were on the start of the straight stretch. The crowd was paused and the two men up in the lead were doing their bit. The road was packed with people such that it was impossible for the crowd to make way for any vehicles of any size to pass through. It was then that the accused’s vehicle came speeding down the straight stretch from the direction of Pugmi Community School.

The vehicle did not stop or slow down. It came straight down toward the front of the paused crowd. Just before the vehicle crashed into people in front of the crowd and hit one of the dancing duo and propel him into the coffee garden on the side of the road, it was seen swinging from side to side.

Other witnesses who had been among the people in front of the crowd also testified. They said the accused had clear vision of the mass of people from a safe distance. Obviously people thought he would slow down and stop but he did not. In any case the people could not do anything like move aside or make way as the mass of people was packed into the width of the road for over a fair length of it. Had the vehicle not veered off onto the side and into the coffee garden, many other people would have been crushed as well.

The State case is centered on the speed employed by the accused, which is said to have been excessive in the circumstances. It is said the accused should have known of his faulty brakes. He was informed of the planned march and was pointedly advised to take care. The vehicle was later found to have faulty brakes. In the circumstances the accused should either have not driven at all or should have driven at a slower and manageable speed. It is therefore said the accused drove carelessly, recklessly and dangerously.

The Defense case

The accused says his vehicle’s brakes failed on him when he applied the same to stop the vehicle, which is why the accident occurred. He says had he not swung toward the coffee garden he would have rammed into the jam packed crowd and caused a lot of other fatalities as well.

He disagreed with Pastor Daniel Kambi saying the latter did not inform him of the proposed march earlier that day or that there was any previous publicity about the event.

The accused further disagreed with the vehicle examiner that his vehicle’s brake lining and brake drum were worn out and faulty. He simple said that his brakes failed him. The accused desperately wants the Court to accept his brake failure theory. He, it seems to me, relies on a defence of what I can loosely refer to as ‘unavoidable accident’.

Unfortunately though the accused failed to say how the brakes failed. The brake failure argument on its own cannot stack up as a defence unless he establishes why brakes failed. Was it perhaps because a brake pipe or any of the other brake features including brake cylinders and kit were suddenly dysfunctional? The accused must say what caused the brake failure. Only then the Court would decide if the cause of the brake failure was a thing or matter outside the control of the accused. If the Court concluded that the cause of the accident was due to brake failure and the cause of the brake failure was outside the control of the accused he is entitled to an acquittal. If the Court concluded that though the accident was as a result of brake failure but the brake failure was preventable or was a matter within the control of the accused he stands to be convicted on the charge.

Findings on the evidence

I find that the accused drove toward the crowd of people, toward Kindeng junction generally. He had passengers in his vehicle, which from the P. plate on it, I understand must have been a PMV. How many passengers he had on the vehicle is not known. The road was and still is a good road with properly sealed surface. The accused was approaching a slight curve, which really was a wide arc that opens up evenly as one drives toward it, and then flattens out completely onto the next straight.

The accused had clear vision of the crowd from a fairly long way away. He at least tried desperately to retard speed and stop the vehicle, at a fairly safe distance from the people in the lead of the crowd. The vehicle was seen swinging from left to right, which is consistent with what he said he did.

The accused did the right thing or tried to do the right thing by going off into the bush once he realized he could not stop the vehicle. Whether he could have safely gone off the road much earlier, before reaching the crowd as he did, is debate able because whether people were along the road, on either side of it ahead of the main body of the crowd is not known. However had he done so he may just have prevented the fatality and the other injuries. There was (and still is) a power post on the left of the accused but he could have avoided that easily. In any case the accused may have delayed taking evasive or preventative action, i.e. go off the road into the coffee garden, until it was too late. Had he been alert and had driven at a reasonable speed he could have tried stopping while he was still at a safe distance, and he would have realized just in the nick of time that his brakes did not work, and perhaps he may have swung off the road earlier, without causing injuries.

This therefore raises the issue of the speed of the vehicle. It is not known just how fast the accused drove. However the scene visit proved that the accused had clear view of the front of the crowd from a relatively long way away. Had he driven at reasonable speed, as he should have given the rural and village environment he was passing through, he would have realized that his brakes did not work and swing sideways into the coffee field on either side of the road, well before reaching the front of the crowd. The accused seems to have had little time to take evasive action earlier than he did, meaning he covered a lot distance in a short time, which must mean he drove relatively too fast. The accused drove that fairly long distance without doing anything, until it was too late.

A critical and pivotal finding of fact though is that the accused clearly drove a vehicle with defective brakes. And he can only have known it.

Firstly the vehicle examiner said the accused could have applied brakes – but only by pumping the brake pedal many times. Again had the accused drove sensibly he would have stopped the vehicle.

Secondly the examiner said the brake lining and drums were completely worn out. This is something the accused, both as driver and owner of the vehicle, cannot have been unaware of as I alluded to earlier. Therefore the accused had no right to drive the vehicle at a speed, which would make it incapable for him to stop the vehicle suddenly. If he had to drive it that day he should have driven very slowly. As I said all indications are that he drove relatively fast when he could not afford to, given the defective brakes.

Alternatively the accused should not have driven the vehicle at all. He had defective brakes and he knew that or ought to have known that. Driving a vehicle with defective braking mechanisms is negligent conduct. He should not have driven that vehicle in that condition at all, under any circumstances

Having said that I should iterate that I do not accept the accused’s "sudden brake failure" story. It is worth iterating that he cannot continue to maintain the brake failure theory without saying or giving evidence of how the brakes failed. The brake failure argument, on its own, cannot stack up as a defence unless he establishes why brake failed. On the contrary it is evident that the accused drove a vehicle with faulty brakes. He ought to have known his brakes were faulty. It was no ‘sudden failure’.

The Law generally

The law on assessing the driving of a person charged with this sort of offence is clear. Driving is an inherently risky business and all drivers are required to drive with due care and attention. A failure in the requisite standard is punishable, regardless of whether there was another or other drivers or pedestrians involved who may have caused a dangerous situation.

In this case the accused not only fell below the ordinary standard of a competent driver, he was recklessly negligent in driving a vehicle with seriously defective brakes, and in the circumstances I think he must have had full knowledge of the defects. That alone, at any time and under any circumstances, is dangerous driving.

Ergo the accused James Gau must be guilty as charged on the charge of dangerous driving causing death and I accordingly do so.

In person: Complainant
Constable Sangom: Defendant