State v Banjel [2007] PGDC 22; DC517 (13 April 2007)

DC517

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

DCCr 21 OF 2006

BETWEEN

STATE

AND

TOL BANJEL
Defendant

Goroka: F Manue
2007: February 20; April 05, 13

CRIMINAL- Motor Traffic Act, Driving without due care and attention – whether there is sufficient evidence covering the three essential elements – Duty of prosecution to produce evidence covering all the elements – cannot take notice without evidence being admitted – submission sustained.

Cases Cited
The State –vs- Paul Kundi Rape [1970] PNGLR 96
The State –vs- Roka Pep (No. 2) PNGLR 287

References
Section 17 (2) of the Motor Traffic Act

Counsel
For the Prosecution – Sergeant Bonki, Goroka Police Station
For the Defendant – Ms. R. Kot of Warner Shand Lawyers

13 April 2007

REASONS FOR DECISION

F Manue: The defence made a no case to answer submission at the close of the Prosecution case on 5 April 2007 on the charge of driving without due care and attention under Section 17 (2) of the Motor Traffic Act.

2. The defence submitted that the evidence by the State is that it is tainted and lack in weight or credibility. The cases of State –vs- Paul Kundi Rape [1976] PNGLR 96 which was followed by The State –vs- Roka Pep (No. 2) [1983] PNGLR 287 were cited in support of the submission.

3. The essential elements of the charge are that:

i. A person drove a particular motor vehicle

ii. Such motor vehicle was driven on a particular public street

iii. The manner in which the motor vehicle was driven was without due care and attention

4. All of these elements of the charge are being contested. The defence submitted that the prosecution failed to adduce evidence to indicate to the Court the existence of the elements of the offence. The prosecutions reply also concentrates on the third element of the charge. I have considered the submissions.

5. Respectfully the defence submission fails to address the first two elements of the charge and that it lacks to say whether there is evidence of whether the defendant drove the said motor vehicle and on the said public street as arraigned in the information.

6. And because the submissions fail to address the two elements of the charge, I assume that they are not being contested.

7. The defence submission is focused more on the element of whether the defendant drove the said motor vehicle without due care and attention. Evidence by the prosecution witnesses stated that the defendant was driving out of a feeder road, the hospital morgue road onto the main road. And because he was driving onto the main road, he did not give way as a right to the witnesses vehicle.

8. Witnesses stated that he failed to give way as expected of him by them or any other traffic users of the main road.

9. Failing to give way and keeping a proper look out amounts to driving without due care and attention.

10. On that basis there is sufficient evidence covering the element.

11. I have stated that the defence seems to concede that there is evidence covering the first two elements of the charge. However, although that is the case I cannot just allow that to go bye as it is quite the opposite of what is before the Court.

12. The prosecution witnesses at no stage identified the public street specifically on which the defendant drove on by name in their oral evidence. All they stated was “the main hospital road”. There was no specific mention of the name of the public street.

13. At the scene, inspection, I noted that the public street on which the accident occurred was on Leigh Vial street, the public road that runs past the Goroka Hospital.

14. It is the duty of the prosecution to proof every element of a charge. In my view the mention of main hospital road is insufficient, or Red Corner road is insufficient, unless there are no specific street names given. In this case the main street to the Hospital has a given name and as such the onus is on the prosecution to provide that.

15. I cannot take it for granted that the main Hospital road is Leigh Vial Street. It could mean the main road out of the Hospital to the main road. Having said that the prosecution is saved in this regard by the Court party visiting the scene and that I take judicial notice of the said street on that basis.

16. As to the particulars of the motor vehicle involved in the accident which is an essential element for the prosecution to cover, I noticed that the prosecution witnesses again failed to disclose the particulars of the vehicle, particularly the registration number.

17. All they stated was that an East West Transport ISUZU truck was involved. They failed to pinpoint the exact registration number. Whilst I accept that the said vehicle was identified on inspection by the Court party, the mere mention of the type of truck or vehicle alone is insufficient to precisely identify the vehicle. All motor vehicles have registration numbers and therefore must be identified with their numbers on their number plates apart from other descriptive particulars.

18. I would be seen to be unfair if I am to rely on my own volition and evidence which was not provided by disputing parties in Court.

19. I find that the first element has not been adequately covered by the prosecution witnesses. Perhaps the informant would have been a vital witness if he had been called. On that basis I find that the evidence is insufficient to sustain a conviction lawfully, and give the benefit for the doubt to the defendant. The defence no case to answer is therefore sustained.

20. Order:

i. Defendant is therefore not called upon to answer.

ii. Case be dismissed.

iii. Defendant be discharged.

iv. Bail be refunded.

For the Prosecution – Sergeant Bonki, Goroka Police Station
For the Defendant – Ms. R. Kot of Warner Shand Lawyers