State v Ekapa [2007] PGDC 32; DC518 (8 May 2007)

DC518

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

DCCr 134 OF 2006

BETWEEN

STATE

AND

JOHN EKAPA
Defendant

Goroka: F Manue
2006: August 03, 04
2007: March 30; May 08

CRIMINAL- Motor Traffic Act, Driving without due care and attention – what constitutes due care. Failure to take due care and attention – Doctrine of Estopel – vehicle had no documents of registration and insurance – Although payments made – whether it was the failure of the victim – consideration of burocractic delay.

Cases Cited
Nil

References
Section 17 (2) of the Motor Traffic Act

Counsel
For the Prosecution – Sergeant Warkia, Goroka Police Station
For the Defendant – Mr. G. Gendua of Gendua Lawyers

08 May 2007

REASONS FOR DECISION

F Manue: The defendant stands charged that he drove a motor vehicle namely Hino truck registration number EAD 049 upon a public road towit Daulo Pass Okuk Highway without due care and attention on 03 March 2006. Thereby contravening Section 17 (2) of the Motor Traffic Act.

2. Did the defendant drive without due care and attention? The case was first mentioned on the 07 April 2006. It had been adjourned several times for various reasons.

3. Prosecution evidence was heard on 03 August 2006. A no case to answer submission was heard on 04 August 2006 and adjourned to 12 September 2006. A ruling was to have been made on that date, but due to non appearance of the defendant and his counsel, it had to be adjourned further. The ruling on the no case to answer submission was eventually pronounced on the 30 March 2007.

4. The defendant then elected to give an un-sworn statement which was taken on the 11 of April 2007. Final submissions were received and made on the 17 April 2007.

5. Section 17 (2) offence under the Motor Traffic Act has three (3) elements:-

i. That a person drove a specific motor vehicle.

ii. That such motor vehicle was driven on a public road.

iii. That it was driven without due care and attention.

6. I have ruled that there is evidence covering all the elements and so in the final submission the defence did not contest the first two (2) elements of the charge.

7. Their final submission was focused more on the third element. They also re-iterated in the submission the issue of the Doctrine of Istopel which was also raised in the no case to answer submission. I intend not to summarize all the evidence in my discussion.

8. What amounts to or constitutes taking due care.

9. The Oxford pocket dictionary (4th Edition 1942) defines “care” as serious attention, caution (assembled with care, proceed with care) " among other meanings. Take due care would mean paying serious attention particularly in the instant matter, in ones driving.

10. Driving without due care has two aspects.

11. Firstly, under the drivers sole control are the mechanical and electrical devices which he uses to assist him in taking proper control of the vehicle for the safety not only of the vehicle but more importantly for pedestrians and other public road users.

12. Whatever he does in the cabin with those mechanical and electrical devices are within his control whether he uses them or not can only be reflected or manifested externally. For example, if he blinks to turn left, the left signals would blink indicating to pedestrians that the driver has used electrical devices to indicate his intention to turn left.

13. But whatever he does in the cabin is peculiarly within his knowledge. In that regard anyone outside the cabin cannot say whether the driver had applied any of those electrical or mechanical devices. They can only tell of the effects of the use of those devices.

14. Whether a driver is taking due care in his driving is the effect of the use of the devices and when used can be seen by those outside the cabin.

15. For example, if the vehicle is slowing down then it indicates that brakes devices and the fuels accelerator are being used to either slow or stop the motor vehicle.

16. The second aspect of taking due care in driving is that a reasonable driver takes serious attention on the road and the surrounding vicinity of the road. He ensures that the vehicle is properly on the road, and that it is free to run on the road clear of obstacles and pedestrians etc using the electrical and mechanical devices which are within his control only. With that discussion, taking care requires diligent and serious attention and care and control of the mechanical and electrical devices coupled with serious attention on and the vicinity of the road.

17. In the instant case prosecutions witnesses were not in the defendants truck and so were not able to say whether the defendant had applied the mechanical devices under his control. They were however able to tell of the effects of the use of the devices. Their evidence was based on the effect of what the defendant did with the mechanical devices of his vehicle, and as seen by them.

18. Both the prosecution witnesses stated that they had left Kundiawa and were on their way to Goroka. The purpose of their trip was to collect certificates of registration and insurance of the first witnesses vehicle.

19. When they had past the Daulo top of a public road the Okuk Highway they descended at a sharp corner. They said they had driven past a blue Mazda Dyna T3500 truck and were negotiating a sharp corner, when they saw the defendants truck driving uphill but on part of their road lane.

20. The witnesses stated that their vehicle was collided upon the right front side, and dragged backward assumably by the momentum of the defendants moving truck after the collision.

21. They also stated that the pot hole which was the subject of cross examination had been past by them, when the collision occurred. In the defendants statement he suggested that the victim may have avoided the pot hole and in doing so drove into his lane and was attempting to get back onto his own lane when the collision occurred while he was driving up his own lane.

22. In relation to the pot hole, I do not think the victim would have driven into the defendants lane to avoid the pot hole. Prosecution witnesses stated that they had past the blue Mazda dyna and the pot hole, when they saw the defendants truck. Even if what is said was a possibility, the victim’s car was lighter and smaller to handle and as such would have run back onto his own lane on time.

23. Secondly, it would have been too risky for him, especially when he had his family with him and that he was normal.

24. Thirdly, I imagine that big trucks when negotiating sharp or any corners for that matter tend to drive more to the right when and before negotiating to turn left or more to the left when and before turning right. This was also indicated in the defendants statement.

25. Additionally to those reasons, the defendant admitted at the collision sight that he was wrong. That admission was not contested and more importantly, the admission was made voluntarily there and then.

26. In my view the defendant did not do that to enable the trailor to maintain his own lane and as a result his trailor collided into the victims front right vehicle causing damages to the victims car.

27. In my view this is the result of a driver being unreasonable and not only was he not paying serious attention to the road and other road users, but he had not taken due care in steering away to his own lane. Thereby not taking proper control and failing to keep a proper lookout. I therefore find without doubt that the defendant was driving without due care and attention.

28. I now turn to the issue of the Estoppel doctrine which was raised by the defence. They submitted that the victim or the police informant is coming to Court with dirty hands. They argued that the victim has not technically had his vehicle registered, insured and had issued to it a certificate of road worthiness before driving his vehicle on the public road.

29. The issue of registration and insurance came to light only through cross examination by the defence. These facts came to light in answers to cross examination by counsel of defence on the first prosecution witness. The victim said his car registration expired on 23 January 2006.

30. He further stated that he renewed the registration, insurance and road worthy certificate on February 13, 2006.

31. He stated that the originals of those documents were being held in Goroka and he travelled into Goroka on the 03 day of March 2006 purposely to collect them. He said he was given the copies of those documents by the insurance agent and traffic registry officers especially in order for him to use while using the vehicle on the roads. Secondly, the authorities wanted him to clear the ownership issue of the car. They wanted the previous owner to do a Statutory Declaration before they could issue the original documents.

32. In his evidence in chief, he had stated that he had bought his vehicle from a V.H.O officer in Kundiawa on November 2005. The copies of the documents were not produced in Court.

33. In the absence of the defence not providing rebuttal evidence of the said documents and issues relating to registration, insurance and certificate of road worthiness, I accept the facts as given by the first prosecution witness. Secondly, I see no reason why the witness would mislead the Court, particularly on the issue relating to registration of his vehicle.

34. The facts clearly show that he had paid for all the necessary legal fees to have his vehicle registered, insured and have certificate of road worthiness.

35. He could not be given the original documents because of the issue of ownership. It would seem that the agencies who were dealing with registration and insurance wanted to be 100% sure that the vehicle was bought by him from someone else and was his. This caused the delay in him being given the original documents. To me allowing someone copies of registration, insurance and road worthy certificate after payment of necessary legal fees is like giving a licence to the vehicle owners to use on public roads, temporarily.

36. The delay is due to a beauracratic tedious process to ensure rightful ownership. It is as good as if the original documents are with him provided that necessary legal fees have been paid within the given time, but as a temporary measure until the beauracratic process is complete.

37. That process was to have been completed by the trip of the victim to Goroka on that relevant date of the accident.

38. Secondly, the state is prosecuting the matter and not in person by the police informant. I am unable to accept the operation of the doctrine of Estopel in the given situation and circumstances as a defence.

39. I therefore find without doubt that the defendant did drive the said motor vehicle on a public street without due care and attention. He is convicted and sentenced accordingly.

For the Prosecution – Sergeant Warkia, Goroka Police Station
For the Defendant – Mr. G. Gendua of Genda Lawyers