Samor v Wakena [2007] PGDC 18; DC529 (30 March 2007)

DC529

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

GFCr 21 of 2006

BETWEEN

GABRIEL SAMOR
Informant

AND

PETER WAKENA
Defendant

Goroka: M Gauli, PM
2007: March 12, 13, 26 27, 28, 29, 30

CRIMINAL- Particular offence – Dangerous driving causing bodily harm – No case submission – Defendant charged for an offence not prescribed by law – Evidence inconsistence.

Cases Cited
The State –v- Tanedo [1975] PNGLR 395
Utula Samana –v- Demas Waki [1984] PNGLR 8
The State –v- Paul Kundi Rape [1976] PNGLR 96
The State –v- Aige Kola [1979] PNGLR 620
The State –v- Tom Morris [1981] PNGLR 493

References
Criminal Code Act, Ch. 262 s. 328 (2) (5), s. 1
Constitution of Papua New Guinea, s. 37 (2)

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

30 March 2007

DECISION OF THE COURT

M Gauli, PM: The defendant Peter Wakena stands trial before this Court on a charge of dangerous driving causing bodily injury, pursuant to Section 328 (2) (5) of the PNG Criminal Code Act, Ch. 262 which states and I quote:

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

(3) - - - - -

(4) - - - - -

(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 not in dispute are that on Monday 14th August 2006 the Defendant was driving a Kenworth truck registration number LAN 084 travelling from Mt. Hagen to Lae. It is a fuel tanker truck. The Toyota Hiace 15 seater PMV bus registered number P.119Z driven by one John Kewa was travelling up to Mt. Hagen from Madang. Both vehicles were travelling along the Okuk Highway. At Onano in Watabung between Goroka and Kundiawa, as both vehicles were negotiating the sharp corner at about 7:00 o’clock in the morning, the trailer of the Kenworth truck came into a collision with the PMV bus causing severe damage to the bus and injuring John Kewa the driver of the bus plus two other passengers namely Thomas Kom and Simon Tingpa. John Kewa sustained fracture to his right leg and left elbow, Thomas Kom sustained fractured right leg and a cut on his nose while Simon Tingpa sustained injury on his left leg.

3. The disputed facts are the lane on which the accident or the point of impact occurred and whether the defendant’s driving was dangerous or whether he was at fault that caused the accident.

4. The prosecution called a total of six witnesses. At the end of the prosecution’s case the defendant made a no case submission, based on both the law and facts. The counsel Mr. N. Sios for the defendant submitted that the defendant is charged for “dangerous driving causing bodily harm” under Section 328 (2) (5) of the Criminal Code Act. He submitted that this provision states “dangerous driving causing grievous bodily injury.” The word “grievous” is missing in the information of the charge therefore the offence to which the defendant is been charged which is “dangerous driving causing bodily harm” is not one of the offence prescribed under Section 328 (2) (5) of the Criminal Code Act. This is a question of law.

5. Under Section 1 (Interpretation) of the Criminal Code Act, the word “bodily harm” is defined to mean any bodily injury that interferes with the health or comfort of a person who suffers the injury. Whereas the term “grievous bodily harm” is defined to mean “any bodily injury of such a nature as to endanger or likely to endanger life or to cause or likely to cause permanent injury to health”. Although the three victims sustained permanent injury to their feet, the defendant was not been charged for dangerous driving causing grievous bodily harm.

6. The prosecutor did not argue on this point of law nor did he make any applications to amend the information either during the cause of the prosecution’s evidence been presented and or after a no case submission is made. In the case of The State –v- Tanedo [1975] PNGLR 395 it was held that an indictment may be amended after a no case submission is made and or before the defence case is heard. And in the case of Utula Samana –v- Demas Waki [1984] PNGLR 8, His Honor Amet J, as then was held that:

“Section 40 of the District Courts Act (which is S.32) permits amendment of an information which may result in the charging of a cognate offence or an offence constituted by facts which would themselves be part and parcel of the offence originally charged, or where the amended charge could in the first place have been stated in the alternative; it does not permit an amendment which would result in a charge of some new offence of a different nature”.

7. Though S. 32 of the District Courts Act does allow the Court for an amendment to be made to the information, there must be an application made for an amendment to be made. The prosecutor has not made that application to amend the information. The Court could not amend the information at his won choice. That been the situation here, the information or the charge remains as it is on its form. And that is that the defendant stands on a charge for “dangerous driving causing bodily harm”.

8. The Section 37 (2) of the Constitution of the Independent State of Papua New Guinea states that and I quote:

(2) Except, subject to any Act of the Parliament to the contrary, in the case of commonly known as contempt of Court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not defined by, a written law”.

9. There is no offence known as “dangerous driving causing bodily harm” under S. 328 (2) (5) or any provisions under the Criminal Code Act or any Act of Parliament. On that basis I would uphold the submission by the counsel for the defendant that the defendant had been charged for an offence that is not defined by any of the laws and in particular under the Criminal Code Act of Papua New Guinea.

10. The second part of the no case submission is based on the question of the fact, and that is whether the defendant’s manner of driving caused the accident. In a no case submission, the principles are clearly stated in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96, in which the National Court held that, and I quote:

“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 an accused could lawfully be convicted, May –v- O’sullivan [1995] HCA 38; (1955) 92 C.L.R. 654”.

11. So at the end of the prosecution’s case the question to be decided is whether there is sufficient evidence before the Court on which the defendant could lawfully be convicted – The State –v- Aige Kola [1979] PNGLR 620 referred. If at the close of the prosecution case the evidence is so insufficient or the evidence is inconsistence then the defendant had to be acquitted. It was held in the case of The State –v- Tom Morris [1981] PNGLR 493 by His Honor Miles J, that:

“Where at the end of the prosecution’s case there are inferences inconsistent with the guilty of the accused, overall view of the case leaves the Court with the conclusion that it would be unsafe and dangerous to convict”.

12. The evidence of the prosecution witness namely John Kewa, Simon Tingpa and Dorothy Anis who where on board the Toyota Hiace 15 seater bus and the two independent eye witnesses namely Supa Paul and his wife Daisy Paul and the investigations officer Senior Sergeant Gabriel Samor, is that the point of impact occurred on lane of the Toyota Hiace bus. The Kenworth fuel tanker truck driven by the defendant was on the lane the Toyota Hiace bus as both vehicles were negotiating the sharp corner. The witnesses Supa Paul and Daisy Paul gave evidence that they were walking along the Okuk Highway on their way to Chuave when the Kenworth truck drove passed at high speed just some 60 metres before the accident, and it was been driven on the opposite lane. They then turned to their back watching that truck as it was approaching the sharp corner. And they saw the Toyota Hiace bus turning the corner in the opposite direction of the Kenworth truck. The driver of the Kenworth truck quickly turned the front of his vehicle to his left land but its trailer hit the bus.

13. The witnesses John Kewa, the driver of the Toyota Hiace bus, Simon Tingpa and Dorothy Anis, who were the passengers on that Hiace bus, all said that they were on their own lane. After they passed the potholes some nine (9) metres before that sharp corner and as they were negotiating the corner, they saw the Kenworth truck approaching them on their side of the lane. They said John Kewa applied the brakes. They saw the Kenworth truck quickly turned to his left lane but because it was so close, the trailer of the truck hit the right front side of the bus and its rear bumper bar hooked the bus and forced it (bus) to spin or twist around. The front windscreen was shattered and the right side of the body severely damaged. The bus came to a stop some 10.30 metres on the centre of the road before the impact on the direction of Kenworth truck was travelling (or after the impact in the direction the Hiace bus was travelling). And the shattered windscreen glasses of the Hiace bus fell off close to the edge of left lane of the Kenworth truck (or the defendant) some distance away from where the Hiace bus came to a stop. The prosecution’s evidence is that these glasses fell there after the shattered windscreen was knocked down by the villagers including witness Supa Paul have knocked down the shattered windscreen in order to rescue the driver John Kewa who was trapped in the driver’s cabin.

14. The Investigation officer tendered in Court his sketch plan (EXHIBIT ‘B’) of the accident. It shows the point of impact, point where the Hiace bus came to a stop after the impact and the point where the shattered windscreen have fallen off. The Investigation officer visited the scene a day after the incident without the defendant or the driver of the Hiace bus. Then on the 13th September 2006, exactly four weeks after the accident, the investigation officer visited the scene this time in the presence of both drivers. On that day he drew the sketch plan.

15. Having considered the evidence for the prosecution as presented I find that there is lot of inconsistencies in the evidence. These inconsistencies centred around the location where the Hiace bus came to stop after the impact and the location of the shattered pieces of the windscreen where they have fallen. Their locations were found some 10.30 metres or more before the point of impact in the direction the defendant’s vehicle was travelling. This in my view is quite odd because the prosecution’s evidence is that at the point of impact the Hiace bus got hooked onto the rear bumper bar of the Kenworth truck and was pulled to the lane of the Kenworth truck and the bus twisted around. If this evidence is the truth of what happened then the bus been hooked onto the rear bumper bar of speeding Kenworth truck, which is much heaver than the 15 seater Hiace bus, the bus would have been dropped on the defendant’s side of the lane some distance between the point of impact and the potholes or even beyond the potholes which the Toyota Hiace bus has driven pass before the accident.

16. I find it difficult to believe or understand that the Hiace bus came to a stop in the direction it was travelling to, because the evidence of John Kewa, the driver of the Hiace bus is that as son as he saw the Kenworth truck was on lane of the Hiace bus, he applied brakes and stopped. And so that bus could not possibly have moved 10.30 metres forward from the point of impact. The only logical thing is that the bus could have been pushed backwards.

17. The other inconsistence is that the bus came to a stop in the centre of the highway. However the shattered pieces of its windscreen were found on the far side of left lane on which the Kenworth truck was travelling. Those pieces of glasses were found some distance way from centre of the highway where the bus came to a stop. There is no evidence that the bus was pushed to the far left lane on the defendant’s side by those who came to assist the victims of the bus. The witness Paul Supa never gave evidence that they pushed the bus to the side of the right or left lane before smashing the shattered windscreen with an iron bar.

18. The defendant in the Record of Interview denied the impact occurring on the lane of the bus. Instead he said that the impact occurred on the defendant’s lane. The inconsistencies explained above seems to support what the defendant has stated in the record of interview.

19. Having considered that the prosecution’s evidence being clouded with inconsistencies and further that the defendant had been charged for an offence that is not defined by, nor the penalty defined by a written law, I find that it is unsafe and dangerous to convict the defendant. And I uphold the defendant’s no case submission and I discharge the defendant. His bail be refunded.

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