Anigum v Yasive [2008] PGDC 105; DC766 (22 August 2008)

DC766

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

DCCr 241 of 2007

BETWEEN

ANICKS ANIGUM
Police Informant

AND

RUSTY YASIVE
Defendant

GOROKA: G VETUNAWA

2007: November 08
2008: March 17
May 07
July 02, 11 - Warrant for Arrest issued, 18
August 06, 22

Cases Cited

Koko Kopele –v- Motor Vehicle Insurance (PNG) Trust and Royal PNG Constabulary and State of PNG (1983) PNG LR 223

References

1. Section 17 (2) Motor Traffic Act

21 Introduction to Criminal Law in Queensland and Western Australia and Ed Butterhelths 1989 p. 206

Counsel

Prosecutor: SGT Gorosahu
Defendant: In Person

JUDGEMENT

G Vetunawa The defendant was charged for driving a motor vehicle a Dyna truck Registration number P. 0153A without due care and attention under section 17 (2) Motor Traffic Act. The nature of the charge alleged that the defendant hit the rear of the Isuzu tipper truck going in front.

2. Facts.

On the 29th of June 2007, at the Dirty Wara Bridge, the defendant drove behind an Isuzu six (6) ton tipper truck which was fully loaded with one hundred and ten bags of coffee beans bound for Goroka. The defendant’s vehicle was also fully loaded with passengers. Few meters away from the bridge there was a big pot hold.

3. Evidence by Prosecution.

The Prosecution claimed that the Isuzu 6 ton tipper truck was trying to go over the big pot hole when the defendant’s vehicle bumped it at its rear and that defendant came at high speed.

4. Evidence by the Defendant.

The defendant admitted there was an accident whereby he bumped the rear of the tipper Isuzu 6 ton truck, but blamed the driver of the tipper truck as the cause of the accident when he reversed because the tipper truck could not go over the big pot hole at second gear.

5. Issues.

1. Was the road public road?
   
2. What constitute without due care and attention?
   
3. Was the defendant’s action or manner of driving without due care and attention?
   

6. Issue One:

Section 1 (1) Motor Traffic Act defines which road is a public road. It reads as follows:

“Public Street” means a street, road, lane, thorough fare, footpath, bridge or place-

1. that is open to or used by the public
   
2. to which the public have or are permitted to have access, whether on payment of fee or otherwise.
   

It can be seen then that the Okuk highway at Dirty Wara Bridge location is a public road since it is open and used by the public. There is no restriction against any individual or group of people or class of people on the use of the Okuk highway. The public use the Okuk highway as of right. Therefore the defendant as well as the driver of the tipper truck were driving on a public road.

7. Issue Two:

The Motor Traffic Act creates a duty for drivers to take due care and to be attentive whilst driving on the public road. This duty can be determined objectively. The duty to take due care and to be attentive is an obligation imposed by the Motor Traffic Act to avoid any actions or conducts or manner of driving which would be regarded as having the nature of being an unreasonable risk of danger to other vehicles, other road users, pedestrian and the driver himself and his passengers.

8. Issue Three:

In the case of Koko Kopele –v- Motor Vehicle Insurance (PNG) Trust and Royal Papua New Guinea Constabulary and the Independence State of PNG (1983) PNGLR 223 MC

MC Dermott J said; “The driver’s prima facie duty is to exercise common care and skill in the management of the vehicle and management means more than just care and skill in driving because the driver was in control and allowed it to be overloaded with passengers.”

9. In this case both vehicles were fully loaded. The defendant had twenty five passengers and the tipper truck had one hundred and ten bags of coffee beans. The most heavily loaded was the tipper truck. The loading of a motor vehicle with passengers or cargo is a process of management of the vehicle in motion. The appropriate application of the gear also amounts to management and control of the vehicle in motion.

In the case of the defendant I can not find any conduct which would be regarded as the immediate cause of the accident. However I do find the driver of the tipper truck as the one who mismanaged and did not control his heavy loaded vehicle. His conduct of attempting to go over the big pot hole on second gear while heavily loaded caused it to reverse when he could not go over. This caused it to hit the defendant’s vehicle coming at the back. I do find the defendant not guilty of driving without due care and attention. It is the driver of the tipper truck who should have been charged. Accordingly case is dismissed and the defendant be discharged and the bail of one hundred kina (K100.00) be refunded.

Prosecutor: SGT Gorosahu
Defendant: In Person