State v Kambu [2007] PGDC 23; DC515 (19 April 2007)

DC515

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

DCCr 50-51 OF 2007

BETWEEN

STATE

AND

JOHN KAMBU
Defendant

Goroka: F MANUE
2007: April 10, 19

CRIMINAL- Motor Traffic infringement – Driving without due care and attention – Driving recklessly – whether a more serious charge of the two preferred. A reasonable driver to look to rear – failure amounts to driving without due care.

Cases Cited
Nil

References
Motor Traffic Act, s 17(1), (2)

Counsel
Sergeant Warkia, For The State
Mr. Koningi, For The Defendant

10 April 2007

REASONS FOR DECISION

F Manue: The defendant stands charge on two Motor Traffic charges.

2. First is that on the 10 February 2007 at Goroka Gouna car park area, he did drive a motor vehicle towit a Toyota Hilux double cabin registration number EAE 618; purple in colour along the public car park of the Gouna building without due care and attention contrary to Section 17 (2) of the Motor Traffic Act.

3. The second charge is that he drove the same motor vehicle as the same public car park recklessly, contrary to Section 17 (1) of the Motor Traffic Act.

4. Through Counsel, the charges were denied which lead to trial.

5. Prosecution called three (3) witnesses made of two police officers and a civilian complainant.

6. The first two witnesses testified that they were walking to work on the relevant date when they heard a banging noise across the Gouna public car park area from the handy craft market.

7. When they heard the noise they walked across to take a closer look and to investigate. There they observed that the defendant’s car had reversed and parked into the civilian witness’s motor vehicle.

8. The defendant then drove out through footpath and onto the main road. He did not follow the normal drive out. The witnesses stated that prior to them walking across they could see that two vehicles had got involved in an accident. The third witness is the civilian whose care was involved in the accident with that of the defendants.

9. He stated that he is the managing director of Don Kagul Security Services which has an office space at the top of Gouna Centre overlooking directly down the car park. He said he had been to his office and returned to his parked care to drive out. He had commenced reversing and when he turned to look to the rear where he was reversing he saw the defendant also reversing out. Upon seeing that he stopped or applied brakes and stopped. He said the defendant continued to revers and bumped his vehicle at the rear mud guard area. He then came out of the vehicle and confirmed the impact area. According to him the accident was minor one, and he expected the defendant to stop and approach him and offer an apology.

10. However, that did not eventuate as the defendant drove out in a rushing manner across the footpath and onto the main road. The complainant watched him drive out and past the police station. Instead of reporting to Police he drove passing the police station.

11. He concluded that the defendant would not report to police so he got into his car and drove after the defendant. He eventually caught up with the defendant at North Goroka, in front of his bosses premises.

12. The defendant gave evidence on his own behalf. He said he had driven there on that date at about 5pm. He had been to ANZ Bank ATM to withdraw some money. Then returned to his car. He reversed and drove out using the normal drive out. According to him, he said, there is no other parked cars and visibility was clear. He stated that the did not see the defendants car as the car park was clear.

13. The prosecution and the defence had made an end of trial submission which have been considered.

14. The prosecution submitted that the defendants evidence should not be accepted as it was not corroborated.

15. He submitted that the defendant failed to keep a proper look out when he drove into and hit the complainant’s vehicle on the rear mud guard area. He submitted that the defendant was under the influence of liquor then.

16. He submitted that the defendant did not stop after the accident but continued to drive over and through a cement walkway without regards to pedestrians and other motor vehicles. He submitted that the Court accepts the evidence of the state witnesses which are precise and believable.

17. The defence on the other hand submitted that there is no evidence of either reckless driving or driving without due care.

18. The defence also submitted that it would have been fair that the defendant should have been charged on a more serious count rather than on two charges in the given circumstances and facts. I will deal with both matters together.

19. The issues are whether on the charge of driving without due care and attention, he drove in such a manner and on the second count, whether he drove in a reckless manner.

20. I will now discuss the second count first with reference to a point of submission by the defence in saying that the defendant has been unfairly prosecuted and the evidence on foot.

21. The offence is created by the same section and subsection of the Motor Traffic Act.

22. Evidence produced by the prosecution is the same as that of the second charge.

23. The evidence of prosecution is that the defendant was reversing and in the cause of doing that he hit into the car of the victim. Then he drove over cement foot path and fled the scene.

24. This was denied by the defence.

25. I am inclined to accept the prosecution evidence. There is evidence that there were no obstacles between the defendant the victims car or was there any invisibility problem. The weather was fine and there were very few vehicles parked there then.

26. The only piece of evidence that suggests that the defendant drove recklessly, was that of the manner in which he drove out of the car park in fleeing the scene of the accident. Evidence shows he drove over a concrete foot path and onto the main Elizabeth Street without following the proper drive out way. Driving in that manner amounts to driving without due care but not recklessly as there were no traffic nor were there pedestrians.

27. There was no evidence that he drove at speed, or through a crowded foot path or car park for that manner.

28. I find on that basis that there is insufficient evidence of reckless driving.

29. What occurred at North Goroka was not taken into consideration as prosecution declined to make an issue of it in their submission.

30. On that basis I agree with the defence submission that only one serious count should have been preferred.

31. Turning now to the count of driving without due care and attention. I have stated that the facts are the same. I do not accept what the defendant said in relation to the place being clear when he reversed out. Any reasonable driver would have looked to the back while driving out. In my view he did not give a proper look out, thus running into the victims vehicle. His nasty escape through the foot path indicates that he was surprised himself that he had involved in the accident. His continuos driving out indicates that he did not have a caring attitude towards other road users. He could have stopped and investigated or to drive into the police station to report the accident. In all these circumstances, he was careless and amounts to driving without due care and attention

32. In all of the circumstances I find without doubt that the defendant did drive without due care and attention on that date and find that the charge is proven. He is convicted and sentenced.

For the State: Sergeant Warkia
For the Defendant: Mr. B. Koningi of Koningi Lawyers