Waingal v Guwero [2007] PGDC 15; DC537 (26 March 2007)

DC537

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

GFCr 85 of 2006

BETWEEN

MARTIN WAINGAL
Informant

AND

GREG GUWERO
Defendant

Goroka: M Gauli, PM
2007: March 23, 24, 25, 26

CRIMINAL- Particular offence – Dangerous driving causing grievous bodily harm – No case submission – Prosecution’s evidence inconsistent.

Cases Cited
Regina –v- Himson Mulas [1969–70] PNGLR 1
Regina –v- Tango [1975] PNGLR 250
The State –v- Paul Kundi Rape [1976] PNGLR 96
The State –v- Tom Morris [1981] PNGLR 493
The State –v- Roka Pep [1983] PNGLR 287

References
Criminal Code Act, s. 328 (1) (2) (5)

Counsel
For the Prosecution – Sergeant Yamuje, Goroka Police Station
For the Defendant – Mr. N. Sios

26 March 2007

DECISION OF THE COURT

M Gauli, PM: The defendant stands before this Court on a charge of dangerous driving causing grievous bodily harm to another person namely Petrus Awari on 23 of January 2007 in Goroka town, 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 a public place dangerously is guilty of misdemeanour.

(5) If the offender causes death 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 facts are that on the 23 January 2007 between 4:00 pm and 6:00 pm the defendant drove a motor vehicle towit a Kenworth Tanker Truck registered number LAK 526 along the Gurney street within Goroka town. When he came to the junction of Gurney/ Elizabeth streets he turned to his left side as he entered the Elizabeth street. And in so doing the trailer of his truck hit the pedestrian Petrus Awari on the right side of his body. He sustained injuries to his right ear, right shoulder, right arm and ribs on his right side. He was standing about one (1) metre off the lane or road when he was hit. The defendant denied driving the vehicle dangerously.

3. The prosecution relied on the evidence of the arresting officer Sergeant Martin Waingal, Tobby Mondia, Petrus Awari (victim) and Julu Bepo who testified on Oath. While the Medical Report, Mechanical Report, Record of Interview, the statements of witnesses Joe Welamino, Nelson Otogoma and the statement of the defendant Greg Guwero were tendered to Court by consent of the defendant’s counsel and admitted into evidence. There is no dispute that the vehicle driven by the defendant was roadworthy. It had no mechanical defects or faults. There is no dispute that the injuries the defendant sustained resulted from this motor vehicle accident.

4. The evidence of Martin Waingal, the police informant, relied entirely on what he was told by the eye witnesses during his investigation. His evidence would only confirm the evidence of the eye witnesses and the victim. He made a sketch plan of the scene of the accident showing the point of impact and the position of the two eye witnesses namely Tobby Mondia and Joe Welamino. The sketch plan showed that the victim was hit about 1.2 metres off the lane at Gurney/ Elizabeth junction opposite Goroka Police Station.

5. The witness Tobby Mondia was standing some 13 to 15 metres from the point of impact. He was standing on the right side of the junction of Gurney/ Elizabeth streets in the direction the defendant was driving up from. He saw the victim standing off the road on the left side of the junction. He did not say whether the victim was trying to cross to the right side of Gurney street or he had crossed over to the left side and was just standing there before the defendant drove up to the junction from Gurney street. When the defendant turned to his left onto the Elizabeth street the witness Tobby Mondia did not see how the vehicle hit the victim who was on the left side of the vehicle as Tobby was on the right side of the vehicle. He only saw the victim fell to the ground after the defendant had driven passed the junction.

6. The victim himself Petrus Awari gave evidence that he had crossed the Gurney Street to the left side and was walking away from the direction of the junction of Gurney/ Elizabeth streets when he was hit by a vehicle from his back on his right side of his body and sustained the injuries mentioned above. He said he stood about a metre off the road at the junction and was facing across the Elizabeth street towards the Goroka Police Station on the other side when he was hit. He contradicts himself in his evidence as to whether he was hit while standing or while walking away from the junction.

7. The witness Joe Welamino was some six (6) metres from the point of impact and he was on the same side as the victim was at the time. He had a clear view from where he was when he saw the victim been hit by the vehicle driven by the defendant. He was not present but his statement was tendered by consent of the defence counsel. His statement did not state whether the victim was standing or walking when he was hit. He said the trailer of the vehicle hit the victim but he did not state if the vehicle’s left wheels were off the road when the trailer hit the victim about a metre off the road.

8. From the evidence for the prosecution as presented before this Court, there is no doubt that the trailer of the vehicle driven by the defendant hit the victim on the 23 of January 2006 at the junction of Gurney/ Elizabeth streets. At the close of the prosecutions case the defendant by his counsel, made a no case submission. And the prosecution made his reply. The question to be asked here is whether the defendant’s driving at the relevant time was dangerous, that is to say whether or not his manner of driving was dangerous – refer to Regina –v- Tango [1975] PNGLR, 250. Speeding may not necessary a dangerous driving but the manner in which the vehicle was been driven that may create a danger to the public.

9. In a no case submission the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted but whether or not on the evidence as it stands the defendant could lawfully be convicted – refer to the case of The State –v- Paul Kundi Rape [1976] PNGLR 96. If at the end of the prosecution’s evidence there are inferences inconsistent with the guilt of the defendant, then the Court has a discretion to discharge the defendant where the Court is left with an overall view that it is unsafe or dangerous to convict the defendant – The State –v- Tom Morris [1981] PNGLR 493 applied. The Court may even stop the case even though there is evidence showing that the defendant has a case to answer where there is a yota or a mere scintilla of evidence but such evidence is lacking in weight or reliability that it is unsafe to convict – The State –v- Roka Pep [1983] PNGLR 287 refers.

10. Having considered the case laws sighted above I have to consider whether the prosecution has established every element of the charge. In dangerous driving charges, the elements includes the driving of a motor vehicle at a speed or in a manner that is dangerous to the public having regard to the circumstances of the case including the nature condition and the use of the road or a public place, the amount of traffic on the road that night be reasonably expected at the time – see Section 328 (1) of the Criminal Code Act.

11. From the evidence as presented for the prosecution I find the followings existed. There is no evidence that the traffic along the Elizabeth street and the Gurney street was heavy at the material time. There is no evidence that there were a lot of people present along the left sides of both Gurney and Elizabeth streets immediately or within the vicinity of that junction where the accident occurred. There is no evidence that the left wheels or whole of the vehicle driven by the defendant had been driven off his left lane and onto the pedestrians walkway to prove that the manner in which the defendant drove the vehicle was dangerous at the time.

12. The evidence of witness Tobby Mondia is not reliable. He was standing some 13 to 15 metres on the right side of the Gurney Street at the junction. His views were obstructed by the body of the vehicle driven by the defendant as the victim was on the left side of the said vehicle. He did not exactly see where the victim was standing when he was hit. This witness further said that before the defendant drove up to the junction, he saw the victim standing a metre of the road at the junction and the victim was facing the Goroka Police Station across the road. The victim himself gave evidence. He gave contradictory evidence. He said he was standing off the road at the junction facing the police station across the street when he was hit. Later in his evidence he said he was walking along about a metre off the road and walking away from the junction when he was hit by a vehicle coming from his back. The other eye witness namely Joe Welamino, in his statement, which was tendered by consent, did not say whether the victim was standing or walking along the side of the road when he was hit. The witness Joe Welamino was about 6 or 7 metres away from the victim and on the same side of the street as the victim. There was nothing obstructing his view. Under these inconsistent evidence for and on behalf of the prosecution I could not be satisfied that the victim was hit by a vehicle a metre off the road.

13. The prosecution’s evidence also established that the front wheels of the vehicle driven by the defendant were on their proper lane but the trailer hit the victim about a metre off the road while the truck was turning to its left onto the Elizabeth street at the junction. There is no evidence that the trailer of this particular vehicle is wider than the head of the truck. There is no evidence that the trailer is affixed to the head of the truck in such a way that the trailer could sway off the lane when the truck is turning to its right or left. There is no evidence that the left rear wheels were driven off the left lane. Where the front left wheels are on the lane or the road there is a probability that the rear left wheels are also on the lane. And so the whole body of the truck should be on the lane or the road. It is impossible to have the front left wheels on the road but its trailer to be off the lane when neither wheels on the left side have been driven off the road. The only possible answer is that the victim could have walked into the way of the truck and was hit. I find this doubt I have to be in favour of the defendant. I find that it is dangerous or unsafe to convict the defendant based on the prosecution’s evidence as it stands.

14. Accordingly I must uphold the defendant’s no case submission and I ordered that the defendant be discharged fortwith and his bail refunded.

For the Prosecution - Sergeant Yamuje of Goroka Police Station
For the Defendant - Mr. N. Sios