Police v Polomon [2007] PGDC 166; DC778 (20 November 2007)

DC778

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

GFC 119 of 2007

BETWEEN

POLICE
Informant

AND

WALTER POLOMON
Defendant

Lorengau: G. Madu, PM

2007: November 20

CRIMINAL-Particular offence - Dangerous driving causing death - plea - Evidence.

CRIMINAL -Evidence - Matter for consideration - Evidence did not show that accuse was substantial cause of death - Evidence show his conduct alone caused the accident - Evidence show contributory negligence by victim and father - Accidence avoidable under circumstances.

Case cite

1. RV. Doreen Rose Gosney [1971] 55 cr. App. R. 502
2. R V. Coventry [1937 - [1938] HCA 31; 1938] 59 CLR 633
3. State -v- Elias Subang (No. 2) [1976] PNGLR 179

Legislation

Criminal Code Act Chapter 262

Counsel

For the Police – Sergeant Senais of Lorengau Police Station
For the Defendant – In Person

G. Madu, PM: The accused pleaded not guilty to driving a Toyota Hilux Double Cabin at a high speed knocking the victim causing the death of a child.

1. On Monday 10 of April 2006 between 3.00pm and 3.30pm, the accused was the driver of a Toyota Hilux Double Cabin driving along Lorengau Momote road towards bus stop near the Lorengau Town Market. The accused was driving at a very high speed and hit a pedestrian. The pedestrian was rushed to the hospital and later died from the injuries sustained from the accident. The accused contended that he was not driving on high speed.

2. He further stated that the victim contributed to the cause of his death by not taking proper care when crossing the road. The Prosecution called four (4) witnesses to give evidence against the accused. The first witness was Paul Willie who stated that he was sitting at the bus stop close to the market waiting for PMV to go back to the village. Whilst sitting he saw the father and son crossing the road to Manus Stationary and were in the middle of the road when the vehicle, a grey colour double cabin Toyota Hilux tinted glass was travelling towards the market driven by the accused.

3. The witness observed that the vehicle was driven at a very high speed. The father and the son were already walking towards the left side of the road when the front bonnet of the vehicle hit the child and the body went under the vehicle lying on the left side of the back wheel. The father and the other bystanders got the child out and put him into the accused vehicle. The accused then drove the child and the father to the hospital.

4. The doctor attended to the child for 10-15 minutes but the child died. The second witness Polin Robert, the father of the deceased child said himself and his son wanted to cross over to Manus Stationery when they saw a vehicle coming from Papindo direction towards the Best Buy so they waited.

5. After the vehicle had passed, he and his son then walked across, he saw the accused vehicle travelling at high speed. The father in an attempt to draw the accused attention made a sign to stop as his son was still walking across but it was late. He tried to hold the child back but was late as the child let lose of his hand. The vehicle bumped the child and he was rushed to the hospital.

6. The third witness Freddy Matembuk said that he was in front of Manus Stationery when he saw the father and his son walking across to Manus Stationery from the bus stop. When both had walked over to left hand side of the road, the vehicle came and bumped the child.

7. The fourth witness Charles Kukari stated that the accused reported the incident to the Police after he took the victim to the hospital. The witness than visited the victim at the hospital. The record of interview was then conducted where the accused refused to make his statement. The accused did not dispute the medical report and there is no dispute that the child died from head injuries he received as a result of motor vehicle accident.

8. The report by the mechanic which is also in the file was not contended which showed that the vehicle did not have any mechanical fault and was in good running condition.

9. The defendant called two (2) witnesses. The defendant’s first witness was the accused. In his evidence he stated he was returning from the airport and going back to his office when he looked from Best Buy towards Papindo, he saw some workers from Works Department were working along the Pokapin Petrol Station road. As he was driving alone, he hit the victim. During cross-examination, the accused stated that the road at that time was all clear when he drove.

10. Further during cross-examination when the Prosecution asked the following questions. I put to you, when you drove, you were not having proper lookout and therefore did not see the boy and hit him, what do you say? His answer was, “when I drove I could see all was clear there was no one on the road”. I got surprise when the child ran across and hit the vehicle. The witness presents the picture that there was the victim who is now a deceased ran across the road so suddenly, that he was not given ample time to avoid the accident. It was an accident that was unavoidable given the situation the victim put the accused in.

11. The second defendant’s witness was Philip Pomuh who said he was in front of Manus Stationery when the child was crossing from the bus stop. At the same time the accused car was travelling whilst the child was crossing, the people were shouting and made the child more confused in the way the child moved and he also confused the driver.

12. All the shouting caused the child to go back onto the road and resulted in the victim being hit by the vehicle. During the examination, the Court asked the witness, “In your observation, at what speed was the accused vehicle travelling? The reply was approximately 45-55kmph. The witness stated that the driver drove the vehicle at a reasonable speed.

13. Further the witness also stated that the accused saw the victim very close and there was no chance of avoiding the accident. The defendant’s witness stated that himself being a mechanic, if the accused drove a vehicle at a high speed, the impact would have smash the head of the child and that there would have been a skid mark however the evidence did not show this.

14. The evidence given is contrary to this and the inference is that the vehicle could have been driven at a reasonable speed which would have hit the child who fell on the road hitting his head resulting injuries which caused his death.

15. Although the accused has asserted that he did drive carefully and could have no reason to believe that he had caused the accident. However I want to restate the statement by the High Court of Australia in RV. Conventry [1938] HCA 31; [1937-1938] 59 CLR 633 which is also appropriate to the circumstances of Papua New Guinea and which is similar to Court of Appeal Court in England.

16. The joint judgement of Latham C.J, Rich, Dexor and Mc Teirnan JJ. At 637-638 states:-

“The driver may have honestly believed that he was driving very carefully and yet may be guilty of driving in a manner which is dangerous to the public.... The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other users of the highway’... The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles”.

17. So in this case, the Court is tasked to not only view the driver drove dangerously but that he was at fault in his conduct of driving and fail to exercise care as a driver who was in control of the vehicle at that material time. The test for dangerous driving is laid down in Doreen Rose Gosney [1971] 2QB 674 at 680 is also applicable to PNG states:-

“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or reckless... Fault involves a failure, a failing below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause.”35

18. In the case in issue, it is not disputed that the road is a straight road and the accused could clearly see the oncoming vehicle or a pedestrian walking across the road. The Prosecution witness stated that as the accused was driving, they were waving to him to attract his attention that a child was walking across.

The witness also stated that they were calling out for the driver to stop. Why didn’t the driver response to their waving and calling?

19. Firstly, the vehicle is a tinted vehicle and at the material time the vehicle glasses were wind up that it was not possible for accused to hear people shouting and even when they waved hands to him, it did not appeal to him that they called raising a warning. He may have thought that they were simply waving to him. But at that instant what was the duty of the accused as driver holding the steering under the law, every driver who is at the control of the vehicle is duty bound to exercise care and skill.

20. The question is was the accused exercising that skill? I am of the view that the accused did drive at a moderate speed of 40-50 kmph as stated by the defendant’s witness. The Prosecution stated that the driver was driving at a high speed. The evidence of the Prosecution did not qualify that high speed.

21. Further the Court is of the view that the accused being a driver of fifteen (15) years driving experience is familiar with the road he drove when accident occurred. The other consideration is on the impact of the accident. The evidence does not show that there was a sudden brake applied; nor did the vehicle skid as a result of application of brake so suddenly.

22. Further as indicated by the defence witness should the vehicle was driven at a high speed, the body of the deceased would have been thrown from point of impact to some distance and the death would have been an instant death.

23. However the scenario is quite opposite in that the deceased body was under the vehicle near the back tyres. From this, it could have been inferred that the child ran into the road so suddenly when hit by the vehicle causing injuries to his head resulting in his death. The Court is off the view that the accused drove the vehicle at a moderate speed between 40-50kmph.

24. I want to address the duty was responsibilities of the pedestrian. The law also gives the pedestrian equal duty to exercise care when walking or crossing the road. When the pedestrian is walking on the road or crossing, he must ensure that the child is held tightly and that the road must be clear before crossing.

25. I am satisfied that the father of the child failed to exercise that responsibility. He also misjudged the distance of the vehicle when they walked across. In this prevailing circumstance, the pedestrian put the accused in an extra ordinary situation when the child ran across the road leaving his father.

26. This Court is satisfied that the accident was unavoidable under the circumstance. The deceased equally contributed to the accident which caused his dead.

I therefore find that the Prosecution has not established the case beyond reasonable doubt and accordingly dismissed the case. I acquit the defendant from the charge. Orders accordingly.

For the Prosecution - Sergeant Lawrence Senais, Lorengau Police Station
For the Defendant - In person