Sambusi v Koreo [2008] PGDC 112; DC803 (17 October 2008)

DC 803

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

DCCr 302 of 2008

BETWEEN

FIRST CONSTABLE MONA SAMBUSI
Police Informant

AND

GEORGE KOREO
Defendant

Goroka: M. IPANG

2008: August 07, 08, 29
September 02, 04, 24
October 03, 17

CRIMINAL LAW – Burden of Proof - “Beyond Reasonable doubt” not discharged – Prosecutor fail to call witnesses who were eyewitnesses of reliable, trustworthy and capable of belief – witnesses necessary to unfold the narrative and give complete account of the events ... only prosecution’s key witness a policeman driving of Isuzu Reg. No. EAE 630 – Proper presentation of Prosecution’s case called in to question.

Cases Cited

1. Whitehorn –v- The Queen [1983] HCA 42; (1983) 152 CLR 657
2. Rchardson [1974] HCA 19; (1974) 131 CLR 116
3. Adel Muhammed El Dabbah –v- A..G of Palestire [1944] AC 156
4. R –v- Harris [1927] 2 KB 587
5. Seneviraine –v- The King [1936] 3 All ER 36

Reference
1. Brown, D “Failure to call vital witnesses in criminal trials” (1974) II UWAL Rev 374
2. Summary Offences Act, Chapter No. 264

Counsels:

Senior Constable Peter Asi - Police Prosecutor
Defendant: In Person

17th October 2008

DECISION

M IPANG, Magistrate: Defendant George Koreo was charged that on the 30th of July, 2008 he as the driver of a blue Mazda truck, open back Registration No. LAR 241 drove the same negligently on the Ketarobo section of the Okuk Highway. The nature of negligent as alleged by Police was that, the complainant Bill Fankuo was driving his Isuzu KB open back Registration No. EAE 360 towards Keiya junction of the Highway. At Ketarobo, he saw a vehicle in front of him, so he said he slowed down, signalled to the left-side and waited for the vehicle in the opposite lane to pass through. It was alleged that at that moment, defendant drove his Mazda truck on complainant’s lane, turned right and saw the on-coming vehicle and turned to the left and in so doing, the trailer of his truck bumped the complainant’s vehicle.

2. Upon being arraigned on the brief facts, defendant denied the charge. Defendant said, he drove his Mazda truck from Goroka down to Ketarobo section of the Okuk Highway. He said he saw the complainant driving his Isuzu KB made a ‘U’ turn and drove towards Bena Bridge way, but slowed down and stopped on the left side. Defendant said he waited for approximately one (1) minute, 30 seconds then put his right signal and over-took complainant’s vehicle, when complainant pulled out and bumped his Dyna truck.

3. Legal Issues.

Whether defendant was driving negligently?

Prosecution opened its case on the 2nd of September by calling the Bill Fankuo and the Police Informant First Constable Mona Sambusi. These are the only two Prosecution’s witnesses. After the Informant completed his evidence, prosecution closed its case.

4. Defence called George Koreo, Jondi Kama, Ian Inafelo and Peter Kawo. Defendant’s witnesses Ian Inafelo and Peter Kawo were passengers at the back of Isuzu when the accident took place. Witness Jondi Kama was the passenger at the back of Blue Dyna truck. These witnesses were in two different vehicles and gave account of what they saw happened and heard.

5. The prosecution’s first witness is Bill Fankuo. He is the complainant in this matter and was the driver of the vehicle Isuzu KB open back Reg. No. EAE 360. He said on the 30th of July 2008 at around 10.00 am, he drove his vehicle towards Bena Bridge. He actually transported some people going to Keiya for SDA Camp. The SDA Church was running two (2) weeks fellowship at Keiya. He told this court he left his passengers at Keiya Bridge and drove back towards Goroka Town. Some people wanted to go to town so he gave them lift.

6. He said as he approached the New Tribes Mission, passengers at the back of his vehicle hit the cabin and told him to stop. He said he stopped at the New Tribes Mission gate and was told by the passengers that one of the passengers dropped his money on the road. The passengers ran to get the money. It was quite far so I turned the vehicle and drove towards them. However, he said the passengers got the money so he stopped and waited for them.

7. He also told the court he put his signal ten (10) metres away to turn to the right side. He said there was a small curve (corner) and he saw three (3) 15 Seater Bus coming from Goroka way. He said he waited for the buses to overtake him, then he will turn to the right side. He said two (2) buses left and the third bus was a bit far. This witness said defendant’s truck a Mazda Dyna T35 Registration No. LAR 241 was right behind his vehicle.

8. Witness Fankuo said he turned to the right side at the same time, defendant over took his vehicle and bumped his vehicle in front. Witness said defendant drove to the far right lane but when he saw the on-coming bus, he drove back to the left-lane and bumped complainant’s vehicle. Witness said the road was slightly curved, it was in the morning and there was no rain, no fog. There was clear visibility.

9. Mr. Fankuo said after the accident, he stopped his vehicle. He said defendant stopped his truck about 20 metres away from the point of impact. He said he told defendant to drop off the passengers and to go to the Police Station so that they could sort the accident out.

10. Prosecution’s second witness is First Constable Sambusi. He is the Arresting Officer who investigated the complaint and arrested the defendant. The Arresting Officer was not present when the accident took place but only visited the scene of the accident and made his own assessment which led him to have the defendant arrested and charged.

11. On the contrary, defendant said he drove from Goroka Town and was heading towards Bena Bridge. Upon approaching the New Tribes Mission Gate defendant said he saw the complainant driving up and made a ‘U’ turn and drove back towards Bena Bridge. He said he saw complainant stopped at the left side so he slowed down and waited for one minute, 30 seconds but saw that complainant not drive further so he put right signal and drove out. Defendant said all of a sudden, complainant drove out and bumped his truck. The passengers at the back of his truck shouted at the Isuzu driver saying he was at fault. Defendant said he saw complainant put his head down. Defendant said he told the complainant that he will lay complaint at the Police Station but complainant came quickly and laid the complaint.

12. Defendant’s witness Jondi Kama was a passenger at the back of defendant’s truck. He said he was at West Goroka waiting to get on a PMV truck going to Lufa. He saw defendant’s truck came so he got on and travelled home to Lufa. At New Tribes Station – Lapilo, he said the Isuzu came up and made a ‘U’ turn and stopped. He said defendant slowed down and stopped. One Hiace Bus drove up Goroka way passed and defendant put on his right signal and took off. This witness said the front of defendant’s truck passed Isuzu. The driver of the Isuzu pulled out and bumped the trailer of the Blue Dyna truck driven by the defendant. Witness Kama said we (all the passengers) shouted at the Isuzu driver as he was at fault to bump us and nearly we all sustained injuries.

13. I consider these two (2) of defendant’s witnesses to be neutral and of integrity. Ian Inafelo said he was a passenger of Isuzu. Initially, he said he was at Keiya, when Isuzu EAE 630 was to travel back to Goroka. He said he got on the Isuzu and was travelling up to Goroka. At Lapilo Service Station, he said a passenger’s money fall down. Isuzu driver was alerted and he stopped at the right side and the passenger went back to pick up the money.

14. Witness Inafelo told the court the driver of Isuzu moved from the vehicle to the left side. Blue Dyna truck was driving down. This Blue Dyna truck stopped behind the Isuzu for about one (1), 30 seconds, then the Blue Dyna truck put right signal and drove down towards Bena Bridge way. The Isuzu drove out and bumped the backside (trailer) of the Dyna.

15. Inafelo said he shouted at the driver of Isuzu that we almost receive injuries and I also saw the passengers of Blue Dyna truck shouted at the driver of Isuzu. The driver of Isuzu kept quite. This witness said he heard the driver of Blue Dyna truck said he will report the driver of the Isuzu to the Police. Witness said the driver of Isuzu was at fault and should have waited but was quick to go to the Police Station. He was the one who bumped the trailer of Blue Dyna truck.

16. During Cross Examination the following questions were put to this witness and the following responses were given:-

a) Q. You were a passenger in the Isuzu vehicle?

A. Yes.

b) Q. Did the driver of the Isuzu put signal to turn right and did you see this?

A. No.

c) Q. Did Isuzu made a ‘U’ turn and did the driver of Blue Dyna truck saw this ?

A. Yes.

d) Q. Who was to report the accident first?

A. The driver of Blue Dyna truck.

17. Witness Peter Kawo, gave more similar version of evidence like the evidence given by Inafelo. Peter Kawo was also one of the passengers of the Isuzu Reg. No. EAE 630. Kawo gave a short, brief and got straight to the point evidence that Isuzu took-off and turned to the left-side. A Toyota Hiace Bus came up heading towards Goroka way. Blue Dyna truck put the signal and took-off however the Isuzu vehicle turned out quickly and bumped the back of the Dyna. We shouted from the back of Isuzu to our driver. He made a mistake to turn. We told him, he was wrong. At the end of Examination In-Chief, this witness was not being cross-examined at length by the Prosecutor.

18. Analysis of Evidence as Presented

Prosecution’s Case.

In any criminal trial the heavy burden of proof which is “beyond reasonable doubt” lies with the prosecution. The prosecutor is therefore has an obligation or duty to conduct his trial to discharge this burden bestowed on him or her. In this present, prosecution only called Fankuo was the driver of the Isuzu Reg. No. EAE 630. Fankuo was the only prosecution witness who was present during the accident. The other prosecution’s witness, the Arresting Officer First Constable M. Sambusi. The Arresting Officer only acted upon complaint, investigated the accident, made his own assessment, arrested and charged the defendant. Prosecution did not call any other witnesses who were present when the accident happened.

19. There were variable set of facts presented by the prosecution and the defence. Substantial facts disputed and the only way to go about to convince the court depends on the credible witnesses each side calls. Defendant has called witnesses who were passengers on both vehicles and who gave account of what they witnessed. The aftermath of the accident and the natural reactions of who was at fault and the blamed for caused of this accident as demonstrated by defendant’s witnesses have more weight.

20. Duty of Prosecutor and the Trial.

There is huge burden on how prosecutor asses his witnesses, conduct his trial with an aim to discharge the criminal burden of proof. In Whitehorn –v- The Queen [1983] HCA 42; (1983) 152 CLR 657 at p. 682 per Deane, J stated:- “ the prosecuting counsel in a criminal trial represents the state. The accused, the court and the Community are entitled to expect that in performing his function of presenting the case against an account, he will act with fairness and detachment and always with objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accuser’s trial is a fair one.” The complainant Fankuo is a police officer attached to the Traffic Section and is a work colleague of F/C M. Sambusi, the Arresting Officer. How can we detached the likelihood of bias investigation by the Arresting Officer?

21. In Richardson [1974] HCA 19; (1974) 131 CLR 116, the High Court was told it was the duty of the prosecutor to cali all eyewitnesses. However, the High Court held that it is for the prosecutor and the prosecutor alone to determine what witnesses will be called in the presentation of the prosecution. Case “ In conformance with the dictates of fairness to the accused.” Thus, the High Court stated:

“In making his decision as to the witnesses who will be called, he may be required in a particular case to take in to account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of crown case, whether the evidence is credible and truthful, whether in the interests of Justice it should be subject to Cross-examination by the crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and in the light of those factors to determine the course which will ensure proper presentation of the Crown Case comfortably with the dictates of fairness to the accused.”

22. In line with the Richardson’s case, there are number of cases dealing with this issue. See Adel Muhammed el Dabbah –v- Attorney – General of Palestine [1944] AC 156; R –v- Harris [1927] 2 KB 587 and Seneviraine –v- The King [1936] 3 All ER 36. See also Brown. D. “Failure to call vital witnesses in Criminal Trials,” (1974) 11 UWAL Rov 374 at 375.

23. Findings:

I find prosecution has not proven its case beyond reasonable doubt. Apart from complainant’s evidence there is no credible, witnesses to support complainant’s version of evidence.

24. Decision.

Defendant not guilty of driving negligently. His charge is dismissed and he is discharged. Defendant’s bail of K100.00 be refunded.

Counsel:
Senior Constable Peter Asi - Police Prosecutor
Defendant: In Person