State v Ati [2007] PGDC 112; DC642 (4 December 2007)

DC642

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

DCCr 223 of 2007

BETWEEN

STATE

AND

KARAFA ATI
Defendant

Goroka: F MANUE
2007: November 12, December 04

CRIMINAL- Particular offence – Motor traffic offence – Driving without due care and attention – whether it was a case of driving without due care and attention and whether the case be declared as an accident.

Held – What the defendant did was reasonable in the given situation.
Case declared as an accident under Section 41 of the Motor Traffic Act.

Cases Cited
Nil

References

1. Motor Traffic Act, Section 17 (2), Section 41
   

Counsel
For The State - Sergeant Yamuje of Goroka Police Station
For The Defendant - In Person

04 December, 2007

REASONS FOR DECISION

F Manue: The defendant has been charged that he did on the 09 October 2007 at Ifiufa, Goroka, drove a motor vehicle, a Toyota Hiace bus registration number P.3602 upon a public street, Ifiufa, Okuk Highway without due care and attention, thereby contravening to Section 17 (2) of the Motor Traffic Act.

2. Having heard the evidence, I consider that the issue for determination is whether the defendant took due care and attention in his driving.

3. Evidence by Prosecution

The Summary of the Prosecution evidence from two (2) witnesses is that the defendant was driving towards Asaro from Goroka. By contrast, the other vehicle which was a dyna truck was traveling from Asaro in bound Goroka.

4. At Ifiufa Primary School at the junction of Asaroka High School, the dyna turned right into the Asaroka High School road. Evidence suggests that he had signaled right before turning in and that there was no sign of the defendants bus in sight at a shallow corner in front.

5. According to their evidence the point of impact was at the far right edge of the sealed road and on the Asaroka High School road.

6. The left front around the left lights area of the bus impacted on the left rear trailor of the dyna truck.

7. This piece of evidence is undisputed by both parties.

8. There is evidence also that the dyna truck was un-roadworthy, unregistered and uninsured. This evidence is also not disputed.

9. According to one of the witness, there was a 15 seater bus at his rear but had stopped on the left to pick up some passengers. This assertion by the prosecution witness is being disputed by the defence in their evidence, particularly the blinking of his right signal lights.

10. Evidence by the Defence

Evidence from the defence was from two witnesses who were the defendant himself and the bus crew. In their evidence they do not dispute that the defendant drove the bus along the said public road.

11. In the evidence of the defendant, he stated that he was traveling to Asaro from Goroka. At the corner before reaching Asaroka High School junction he had slowed down and that the driver of the dyna truck had actually seen him, and had turned into Asaroka High School road without signaling by blinker lights to the right stopping to give way. He said he was about one (1) meter away when that happened. Due to the short distance he had to drive into the rear of the dyna truck. He could not avoid by turning right as there was an oncoming bus from the opposite direction and also, there was another bus which was stationary on his right picking and dropping off passengers. He said the only possible thing for him to do was to apply sudden brake, causing a skid and running into the rear of the dyna so that would avoid a collision and injuries of his passengers.

12. His crew gave a similar account. He also stated that the dyna driver did not blink to turn to his right, nor did he give way when he saw them (his bus and driver).

13. Prior to determining whether the defendant drove the said vehicle with due care and attention, certain issues of facts have to be first decided.

14. First, there is the issue of whether the dyna driver had given the right blinker signal before turning right and prior to doing that, whether he did see the oncoming defendants bus, before blinking and turning right. The issue was brought into light by the defence only.

15. The issue was not elaborated and tested by way of examination and cross-examination.

16. It follows then that this piece of evidence has not been discredited and still stands. In view of that, I am inclined to accept this evidence on two basis. Firstly, the dyna driver’s evidence was not corroborated in any manner and secondly, he was said to have driven an un-roadworthy, uninsured and unregistered motor vehicle. He has been found guilty on those counts and sentenced accordingly. As he has been guilty of driving an un-roadworthy vehicle, this leads me to conclude that his blinkers may not have been in good order and working condition and therefore, what the defence alleges that he did not apply the blinkers before turning right may probably be true. There is no evidence that the blinkers were tested and in good working condition after the accident.

17. This then creates a doubt of whether it was the defendant who was driving without paying proper attention in his driving, or was it due to un-roadworthy vehicles being allowed to use public roads.

18. Secondly, there is the issue of another bus running after the dyna truck. The dyna truck driver stated that a bus behind him has stopped on the left side from Asaro to drop off and pick passengers and was some distance away from the road junction to Asaroka High School.

19. By contrast, the defendant said that there was an oncoming bus, in his opposite direction which occupied its own lane while another bus parked on his right which prevented him from swinging his bus to the far right to avoid the collision, on both the oncoming bus and the dyna.

20. As he was conscious of the lives of his passengers, he had to drive into the rear back trailor of the dyna truck but he only did that after applying his brakes and the bus skidding along the sealed road before running into the truck.

21. The defence witness also stated that there was another bus parked on the opposite side and direction which prevented the defendant from turning right to avoid the collision.

22. I have to accept that there was another bus stationary on the right side of the defendant and on the opposite direction. Both the prosecution and the defence are agreeable on this fact.

23. Whether there was another oncoming bus is not well established by evidence.

24. It is not clear how far it was from the defendant, but I assume it must have been close because had he turned right as he said, there may have been a fatal accident.

25. Again this has brought in some doubt in my mind, whether defendant drove without due care.

26. I accept the explanation of the defence and give the benefit of my doubt to it in view of Section 41 of the Motor Traffic Act. It states that:-

“A person is not liable to be convicted of an offence against this Act if he proves to the satisfaction of the Court hearing the case that the offence could not have been avoided by reasonable efforts on his part”.

27. I therefore find that what defendant did was reasonable in the given situation and find him not guilty as charged.

28. Order Accordingly.

For the State: Sergeant Yamuje
For the Defendant: In Person