Waingal v Beneve [2007] PGDC 10; DC538 (19 February 2007)

DC538

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 74 of 2006

BETWEEN

MARTIN WAINGAL
Informant

AND

ROLLY BENEVE
Defendant

Goroka: M Gauli, PM
2007: February 13, 19

CRIMINAL- Particular offence – Dangerous driving causing death – Driving at slow speed into a service station – Rear wheel rolled over the child.

Cases Cited
State –v- Dela Tamu [1977] PNGLR 57
Karo Gamoga –v- State [1981] PNGLR 443
State –v- Aina Uwantuna (1989) N726 (Unreported)
State –v- Elias Subang (No. 2) [1976] PNGLR 179

References
Criminal Code Act, s. 328 (2) (5)

Counsel
Prosecutor – Senior Constable Bonke of Goroka Police Station
Defendant – In Person

19 February 2007

DECISION OF THE COURT

M Gauli, PM: The defendant pleaded not guilty to a charge of dangerous driving causing death to another person namely a female child Dela Moses on the 13th November 2006, pursuant to Section 328 (2) (5) of the PNG Criminal Code Act, Ch. 262. This provision States and I quote:

“(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of misdemeanour.

Penalty: Subject to the succeeding provisions of this section –

On summary conviction – a fine not exceeding K200.00 or imprisonment for a term not exceeding six months or both.

On conviction on indictment – a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.

(3) - - - - -

(4) - - - - -

(5) If the offender causes death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment to a term not exceeding five years”.

2. The brief facts are that on Monday 13 November 2006 at about 10:00 O’clock in the morning the defendant drove into the Cannan Service Station at Faniufa just on the out sketch of Goroka town along the Okuk highway intending to refuel. He was driving a Mazda T35 open back truck red in colour with the registration number P. 837S. He drove in slowly and the rear left wheels rolled over a female child Dela Moses aged just under two (2) years. She sustained fracture to the head and died instantly.

3. The facts not disputed are that the defendant was driving the said vehicle and that he ran over the deceased child. At the time of the incident the defendant was driving into the service station at slow speed.

4. The facts in dispute are that deceased child was not in front of the vehicle when she was ran over and secondly, was there any fault on defendant’s manner of driving. According to one prosecution witness the child was in front of the vehicle when she was hit.

5. The Issues.

Basing on the disputed facts, only three Issues arise here and these are as follows:-

(1) Was the child in front of the vehicle when she was hit; and
(2) Was there any fault on the part of the defendant in causing the death of the deceased child; and
(3) Was the defendant’s driving dangerous at the time.

6. The prosecution called three witnesses namely Mr. Lelly Mission and Mr. Sambusi Mona, both eye witnesses and the Senior Constable Martin Waingal, the informant. The defendant and his only witness Mr. Hijau Linex gave evidence for the defendant. I will refer to their evidence as I discuss the issues.

7. Issue 1: Was the child in front of the vehicle when she was hit?

8. The Prosecution’s witness Mr. Lelly Mission gave evidence that he is employed at the Cannan Service Station as a Boucher. On the day and the time of the incident he was on duty and refuelling one of the PMV buses when the defendant signalled and drove into the service station. He drove in at slow speed. When he saw the defendant driving in he did not anyone in the way of the defendant’s vehicle in front of him. Suddenly he heard the people shouting and when he looked in the direction of the defendant’s vehicle, he saw a person (child) under the defendant’s vehicle between the front and the rear wheels. The defendant did not stop but the vehicle continued to move forward and the rear wheel rolled over the child. The defendant drove passed witness Lelly Mission, drove onto the highway and drove back towards the town.

9. The witness Mr. Sambusi Mona is a policeman attached traffic section at Goroka Police Station. He was a passenger on a 15 seater PMV buss travelling to Lae. He was standing outside the bus while the bus was refuelling. At that time he saw the defendant drive into the service station at slow speed. He saw the child was in front of the defendant’s vehicle on the left side. The front left side of the vehicle hit the child, she fell some few centimetres in front and the wheels, rolled over her. Constable Mona ran, picked up the child and she died in his hands a minute or two later. He told the driver to go straight and report at the Police Station while he got onto the PMV bus and proceeded to Lae.

10. The witness Senior Constable Martin Waingal, the informant gave evidence of his investigation into the incident. He tendered the Record of Interview (marked EXHIBIT ‘A’), the Medical Post Mortem Report (marked EXHIBIT ‘B’) and the sketch plan of the scene of the accident (marked EXHIBIT ‘C’).

11. The defendant and his only witness Mr. Hijau Linex gave evidence. The witness Mr. Linex was the crew of the vehicle and they were the only persons on that vehicle at the time. Their evidence is that the defendant drove slowly in to Cannan Service Station to refuel. There was no one in the drive way in front of them. They were surprised when they suddenly felt the left rear wheel ran over something as it made the rear wheel jumped. Then the people were shouting that they killed a child and the crowed charged at them. So the driver drove onto the highway and headed back to town. The crowd blocked them off on the highway and were both been assaulted. He then drove to the police station and surrendered himself.

12. From the evidence as it stands the evidence of the prosecution witnesses Lelly Mission and Sambusi Mona contradicts themselves. The evidence of witness Lelly Mission seems to support the defence evidence that the deceased child was not in front of the vehicle when she was ran over. If the child was in front of the vehicle then there is no evidence showing that both the defendant and his crew were not concentrating to their front. How that child happened to be under the defendants vehicle between left front and the rear wheels remains to be a mystery. The person who was with that child at that time had not been called to testify in Court. In the light of the prosecution’s evidence been contradictory, that contradictory must be in favour of the defendant. I find that the child was not in front of the vehicle when she was hit and ran over. Rather she some how came under the vehicle in between the left front and rear wheel and the rear wheels rolled over her while the vehicle was slowly moving towards the fuel pump to refuel.

13. Issue 2: Was there any fault on the part of the defendant in causing the death of the deceased child?

14. In dangerous driving causing death or bodily injury, the law in our jurisdiction is very clear, that there must be some fault on the part of the offender driver – see the cases of THE STATE –v- DELA TAMI [1977] PNGLR 57; KARO GAMOGA –v- THE STATE [1981] PNGLR 443 and THE STATE –v- AINA UWANTUNA (1981) N 726 (Unreported). On an appeal in the case of KARO GAMOGA –v- THE STATE (above), the Supreme Court held that: “in dangerous driving causing death the test to be applied is an objective one which apart from the question whether the driving constituted a danger must include a finding of fault on part of the driver causing the situation. Such fault to involve a failure or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case”.

15. The evidence established that the defendant drove into the service station at slow speed. There was no person in front of him when he drove along the drive-way of the service station. He was on third gear then. The defendant did not say whether he shifted to second gear and or applied brake when he heard the people shouting. The prosecution’s witness Mr. L. Mission said that when he heard the people shouting, he turned and saw the child was under the back wheel. This suggests that the back wheel was just rolling over the child when this witness turned and saw it. The second prosecution’s witness Constable Sambusi Mona never mentioned anything of the people shouting immediately before the vehicle ran over the child. The defendant’s evidence is that the people only shouted immediately after he felt his rear left wheel rolled over the child. The burden is on the prosecution to prove beyond any doubt that the defendant never shifted to 2nd or 1st gear nor applied brakes as the defendant approached the fuel pump. Under these circumstances I could not find any fault on the part of the defendant. One cannot expect the driver to look into his rear vision mirrors while moving in a forward motion except when he is reversing. And he did not run over the child while reversing.

16. Issue 3: Was the defendant’s driving dangerous at the time?

17. The dangerous driving includes the driving of a motor vehicle at a speed or in a manner that is dangerous to the public, REGINA –v- HIMSON MULAS [1969 – 70] PNGLR 1 and REGINA –v- TANGO [1975] PNGLR 250 refers. In the present case the defendant drove into the service station slowly. There is no evidence of faults on the part of the defendant driver. Faults includes driving a mechanically defective vehicle, driving under the influence of alcohol, failing to apply appropriate gear and or brakes, failing to take a proper lookout and so forth. These faults, if one of them is proven would constitute his manner of driving to be dangerous. From the evidence as it stands I could not be satisfied that the defendant’s driving at the relevant time and situation was dangerous.

18. There is no doubt that the vehicle driven by the defendant rolled over the child causing her death instantly. Was the defendants driving the substantial cause of the death. In the case of THE STATE –v-ELIAS SUBANG (No. 2) [1976] PNGLR 179, His Honour Saldana J said at page 184:

“The prosecution must prove that dangerous driving on the part of the accused person was the substantial cause of the death of the deceased but not that it was the sole substantial cause. The prosecution to show that the accused person’s dangerous driving was the cause of the accident and was something more than diminish”.

19. In the present case the prosecution’s evidence failed to establish beyond doubt that the defendant’s driving was the substantial cause of the death of the child. That child was under the age of two years. Surely she would have been in that place with one of her parents or a guardian. Nobody came to testify on how the child happened to be at the service station. It would appear that the child, while unobserved had walked under the vehicle between the left front and rear wheels while the vehicle was still moving slowly up to the fuel pump and was ran over. The defendant was therefore not in a position to see that the child was underneath the left side of his vehicle.

20. From the evidence as it stands I find that the defendant’s manner of driving at the material was not dangerous. And although the vehicle driven by the defendant ran over the deceased child he was not the substantial cause of the incident. Accordingly I find the defendant not guilty of the charge. And I order that the case be dismissed and the defendant discharged fortwith. And that the bail of K500.00 be refunded.

21. Verdict: Not guilty, case dismissed.
    

Prosecutor - Senior Constable Bonke of Goroka Police Station
Defendant - In Person