Kongo v Rocky [2008] PGDC 17; DC653 (9 May 2008)

DC653

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

DCCr 221 of 2007

BETWEEN

BOB KONGO
Informant

AND

AINO ROCKY
Defendant

Goroka: F MANUE
2008: February 12, April 02
May 09

CRIMINAL- Particular offence – Negligent Driving – S. 17 (1) Motor Traffic Act – vehicles on convoy – which order did vehicles drive, whether in order as described by Prosecution or as described by Defence – This issue be decided prior to the issue of negligent driving – Negligent driving, in this instant has two scenarios, one by Prosecution and the other by the defence – Whether it is an excuse to drive an opposite lane in one direction is acceptable to avoid potential criminal hold ups.

HELD
1. The order of the vehicle convoy was as per the defence version.
The standard of whether a motorist or driver overtaking at a corner when restricted by unbroken white lines is an objective one and applicable universally.
3. The same standard also applies to driving on opposite lane in one direction – It is an objective one and applicable universally.
4. The grey bus driver – Aron Terra is recommended to be charged as well under Section 17 (1) of MTA as well.

Cases Cited
The State –v- Dela Tami [1977] PNGLR 57
R –v- Coventry (1937–1938) 59 CLR

References
Sections 17 (1) (2) (3) of the Motor Traffic Act

Counsel
Senior Constable Gitene, For the Goroka Police Station
Mr. Yombon from Paraka Lawyers, For the Defendant

09 May 2008

REASONS FOR DECISION

F Manue: This is a Motor Traffic case in which the defendant Mr. Aino Rocky has been charged by Police for driving negligently under Section 17 (1) of the Motor Traffic Act.
2. The main issue is whether the defendant drove negligently. Prior to deciding the issue of negligence, I am confronted with the ancillary issue of the order of the vehicles in the vehicles were convoying before and during the time the accident occurred. In my view resolving this issue is important, as the issue of negligent driving depends on resolving the ancillary issue of order of the vehicles in the convoy. And in deciding the issue of negligence, whether regular hold ups on the highway is an excuse to drive on both lanes of road, in one direction.

3. Evidence by the Prosecution

Prosecution called four (4) witnesses including the informant. Three of the witnesses were on the bus which got involved in the accident with the defendants vehicle, including the driver of the bus.

4. Their evidence was that they drove in the convoy of vehicles. The order of the convoy, in their version was that two dyna trucks were ahead of them, followed by the bus in which they were in and then a dump truck which was followed by the defendants dyna truck.

5. At the straight patch of the road, approaching Barola Primary School and past a double lane bridge, the defendant was said to have attempted to overtake a blue dyna in front. In doing that the defendant was said to be 5 – 6 meters from the corner when he drove to the right lane, over double unbroken lines in the centre of the road. On that part of the road were double/undivided unbroken lines in the middle.

6. The prosecution witnesses stated that while the defendant was in that position, he was parallel with them, (bus) they saw an on coming vehicle from the opposite direction. They could tell of the oncoming vehicle by its lights. They stated that the bus then speeded up closer to the rear of the front dyna in order to give ample space at its rear to allow the defendant to drive into the left lane. The defendant drove to the left lane, but lightly bumped the left rear of the bus which caused it to become unbalance.

7. To avoid running into the V drain on the left, the bus driver then swerved to the right and drove past the right lane and stopped outside the right lane on the far right side of the road.

8. The order of the vehicles convoy as told by the Prosecution witnesses was translated onto a sketch which was drawn by the informant before the defendant and others and presented to Court as evidence.

9. The Evidence as Adduced by the Defence

The defence called three (3) witnesses including the defendant. One of the defence witness was the driver of the dump truck which was at the rear of the convoy of vehicles. The defence disputes the order of the vehicles in the convoy.

10. According to it, there were two dyna trucks in front of the defendants truck. One of them, a white dyna had long driven ahead before the accident. Only a blue dyna was in front of the defendants truck. After his truck was the bus in question. After the bus was a dump truck.

11. According to the defence evidence, the white dyna (defendant’s truck) was on the right lane, when the bus sped up and attempted to overtake the white dyna on the right lane and the blue dyna on the left lane in front. In doing that, the bus drove across to the right lane in front of the defendants truck and the blue dyna in front, on the left lane. It drove across through a small gap created by the front dyna on the left lane and the defendants dyna on the right lane.

12. While doing that they saw an oncoming vehicle by its head lights. They later learned that it was a Police vehicle, which arrived at the scene soon after the accident.

13. As you can see, the order in which the vehicles were in during the convoy and at the time of impact is disputed, especially in relation to the order of the vehicles directly involved in the accident. While the Prosecution is saying their vehicle, the bus was in front of the dyna (defendants truck) the defence is saying the opposite. The order of the other vehicles in front and the rear of them is not disputed.

14. I think it is crucial to resolve or determine this issue first, in order for me to decide whether the defendant was negligent in his driving, with due considerations given as required under Section 17 (3) of the Motor Traffic Act.

15. On this point, the defence submitted that the Prosecution evidence is not creditable. It is not creditable evidence because all the key witnesses are from the bus which got involved in the accident.

16. While it submits that the investigators evidence is not creditable, because there is a likelihood of bias in his investigation and evaluation of his investigation as the bus is owned by one of his colleagues – another Police Traffic Officer.

17. The prosecution on the other hand submitted that the evidence of the prosecution is creditable and reliable.

18. I have considered this part of the submissions and the evidence relating to the point of order of the vehicles in the convoy.

19. I have gone through all the evidence thoroughly, and concluded that there are some crucial evidence which is missing, which would have assisted me in deciding the order of the vehicles. I find from the evidence that it was around 4:45 am. By this time it was dark. This was evident by the fact that all the vehicles still had their lights on.

20. Except for the evidence of Mathew Kau, none of the witnesses stated as to how they knew the order of the vehicles. For example, when taking off from Young Creek, did they all agree on which order they would travel? No one testified to that effect.

21. Witnesses from both sides did not say how they knew or learnt of the order of the vehicles in the convoy. Did they turn to the rear and see which vehicle was following and etc. And if so where did they turn to see? Rear vision mirrors would not have been helpful as it was dark. And how many times did they turn to see? Naturally, it is easier to see who is in front by the car lights, but it is pretty hard to tell the order of vehicles at the back at night, except to see the lights by rear vision mirror.

22. In that regard, Mathew Kau’s evidence is crucial, as he was the last one in the convoy and could see by car lights the order of the convoy in front of him.

23. Part of his evidence in chief is in this manner.

“We drove up together to Barola, Blue dyna went ahead, white dyna drove second. The bus was third, I drove last, white dyna overtook blue dyna and drove up. Both of them were loaded. The bus saw a gap and squeezed into the gap. That was when accident occurred.”

24. In Examination in chief by counsel from the second question he answered:-

“Q. How did you see the accident?

A. By car lights which made the place clear. Bus drove in gap and caused the problem.

Q. Which gap?

A. From Lae to Goroka. Gap would be on left. From Goroka to Lae would be on right. The bus attempted to overtake between gap of blue dyna on left and white dyna on right. Bumper of white dyna scratched bus.

Q. Did you see marks on dyna and bus?

A. Yes, there was scratch on rear of bus.

Q. Was it on left or right?

A. Right rear.”

25. In answer to the last question of chief examination he answered:-

“Q. Did bus attempt to over take the two dynas? (white on right and blue in front)

A. Yes.”

26. I accept the version by this particular witness which supports the defence version. The witness is not only independent but that he was at the rear and the last in the convoy, and that he observed the order of the convoy, commencing from Kainantu. From Kainantu to the accident scene is quite a distance. This was revealed in answer to a series of questions by the prosecution in cross-examination.

27. In the sixth question, it was asked.

“Q. Confirm how many cars convoyed from Kainantu?

A. There were six (6) cars. One of which is BB Boy bus – 15 seater green bus, white dyna owned by a Kotuni (man), bank worker. Another is blue dyna, another is defendants white dyna. Another is a grey bus, 15 seater (latest) model. The last is myself (dump truck, blue in colour).”

28. On this point of the order of vehicles in convoy, I accept the order as described by the defence.

29. Having ruled that, I now consider whether the defendant was negligent in his driving.

30. The defendant does no deny driving a motor vehicle, nor does he deny driving the motor vehicle on a public street. Nor is he denying overtaking close to a corner. He is vigorously contesting, driving the vehicle negligently. He is blaming the driver of the other vehicle in that the other driver was negligent in his driving.

31. He also argues through counsel that, that particular part of the road is notorious, in that Criminals hold up vehicles there regularly and that convoy of vehicles in one direction on both lanes of the road is a way to prevent hold ups, which was why he did it. He submitted that in determining whether the defendant was negligent or not, the Court must bear in mind Section 17 (3) of the Motor Traffic Act.

32. Undisputed Facts

As submitted by the defence, the following are undisputed facts.

1. The accident occurred in the early hours of 28 September 2007 at about 4:45 am to 5:30 am.
2. The accident took place at Barola Section of the Highlands Highway before Barola Primary School and before a corner on the Highway.
3. There were at that point in time four (4) vehicles in the convoy, a white Mitsubishi canter truck, a blue Toyota Dyna, a Grey 5th Element Toyota Hiace 15 Seater bus and a blue dump truck.
4. The accident did occur.
5. An oncoming Police vehicle from Goroka arrived at the accident scene soon after the accident.
6. The owner of the bus is a member of the Police Traffic Section at Goroka Police Station.
7. There is unbroken white line in paint running in the centre of the road – the scene of the accident.
   

33. The last undisputed fact was inserted by consent of the defence, during submissions when it was put to the defence by the Court.

34. Disputed Facts

Again as submitted by the defence the following facts are undisputed.

1. The defendant’s vehicle was the last in the convoy, according to the police while the defence position is that it was second from the front.
2. The defendant overtook all the vehicles in front of him and caused the accident according to the Prosecution, while the defendant alleges that he was on the right line, when the bus overtook by driving through a gap between his truck and the blue dyna on the left lane and in front of the bus.
3. The position of the two (2) vehicles before and after the accident.
   

35. I have ruled on the first and third disputed facts relating to the positions of the vehicles before the accident and will determine the other issue of the vehicles positions after the accident

36. I have considered all the evidence and looked at the facts at all angels.

37. In my view, after considering all the evidence and the submissions, the issue is not whether the defendant drove negligently but rather whether the bus driver was reckless in his driving, thereby contributing to the accident and whether the court should give consideration to why he drove in that manner given the situation and, as provided by law under Section 17 (3) of the Motor Traffic Act.

38. The issue is one of the facts and law and can be resolved by analysing the given facts.

39. I have stated that there are two versions of how the accident occurred. The prosecution has its own version, while the defence version is contrary to that of the prosecution.

40. The Perception of Facts as the Court sees

In arriving at my perception, I have collectively analyzed both versions. I accept the disputed facts as submitted by the defence and as alluded. In my view the sequence of events unfolded in this manner prior to the accident.

41. In all at that time there were four (4) motor vehicles which travelled into Goroka in this order on the left lane. Right in front was the blue dyna, followed by the defendants white dyna truck and following him was the grey 15 seater Toyota Hiace bus which was followed by a blue dump truck.

42. They all travelled in that order in one lane, until they past the two lane bridge, before reaching Barola Primary School. Prior to reaching the school was a sharp corner.

43. At some 6 or so meters from the corner, the defendant drove onto the right lane crossing double unbroken lines in the centre of the road.

44. Sooner after when the defendant drove to the right, possibly to avoid being held up by criminals, the grey bus occupied the space left by the white dyna on the left. And because the white dyna was fully loaded and slow, he over took it and attempted to over take the blue dyna in front on the left, by driving through the gap created between the two dyna vehicles. In doing that the grey bus drove across in front of the white dyna. In the process and motion of doing that, the driver of the bus saw an oncoming vehicle by its lights. And because it was too late for him to pull back as he was in the momentum of overtaking, he had to drive across and past the right lane, and came to an immobile position on the far-right outside the right lane. When the grey bus drove across in front of the white dyna, and in that process, the right rear of the bus grazed the left bumper of the white dyna, which went back to the left lane. Soon after that the oncoming vehicle which happened to be a Police van arrived.

45. Evidence does not suggest that the Police van almost collided with either the grey bus or the white dyna and I infer that the Police van arrived at the scene well after the accident.

46. I do not accept the prosecution version when the witness said that the white dyna pumped at the rear of the grey bus which caused it to be unbalanced and almost knocked them into the V drain on the left. And instead drove to the right and then to the far right of the right lane.

47. When analyzing the evidence that could not be so.

48. If the bus was bumped there could have been several features which showed out. First there could have been a bigger dent or damage on the rear of the bus. That did not seem to be so, although I was not given an opportunity to either see the damage or to have heard from oral evidence.

49. Secondly, if the bus and the front blue dyna were driving at the same speed then there was no likelihood of the bus running into the rear of the dyna, and therefore it could have continued to keep driving on the left lane behind the dyna, unless the source of the bump was greater in force to have jerked the bus from its position. That could have only been possible if the dyna was driving at a greater speed to have caused a greater force and jerk on the bus. In my view, that could not have been possible because the white dyna was fully loaded and could not have been travelling faster then the bus. Secondly the dyna which was on the wrong lane could have by then reduced its speed, and thereby reducing travelling force and speed due to the oncoming vehicle.

50. Having said that, I now turn to the issue of negligence and whether the defendant was negligent. I have stated that negligence is not an issue. The Oxford, Advanced Learners Dictionary, 4th Edition defines Negligent as – “not giving proper attention or care to something; or careless.”

51. A Dictionary of Law by L.B Curzon defines negligent as: “Culpable omission to perform a duty.”

52. In the case of The State –v- Dela Tami [1977] PNGLR 57 at page......... negligent is described as:

“Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.”

53. There is evidence, that the defendant was on the right lane and that in the centre of the road there were unbroken paint lines. This indicated to vehicles and road users including drivers that this particular section of the road was restricted from overtaking other vehicles.

54. There is also evidence that there was a sharp corner, 6 meters in front where the defendant had attempted to overtake the front blue dyna. These were the very facts, which the informant relied on preferably to have had the defendant charged.

55. In my view, these facts show that the defendant was negligent in his driving. He failed to perform his obligatory duty of remaining on left lane while there were unbroken lines on the centre of the road. He failed to foresee oncoming vehicles at a corner when overtaking at a corner. In my view he was at fault, in initially to have driven to the right lane across unbroken lines in the centre of the road. Had it not for his faulty and culpable action, the accident would not have occurred.

56. I am also of the view that the driver of the grey bus was also reckless in his driving, given the analyzes I made in my earlier discussion, and in my view he should also be charged.

57. The defence has submitted that the Court should have regard to all the circumstances of the case and relied on Section 17 (3) of the Motor Traffic Act. It states:

17. Dangerous driving and negligent driving

(3) In considering whether an offence has been committed against this section, the court shall have regard to all the circumstances of the case, including –

(a) the nature, condition and use of the street on which the offence is alleged to have been committed; and
(b) the amount of traffic that was or might reasonably have been expected to have been on the street at the time.

58. It is mandatory for the Court to consider application of this section prior to arriving at a decision of offences committed under Section 17 (1) of the Motor Traffic Act.

59. Circumstances for Consideration

What were the circumstances under which the offence was committed, which the court must take into consideration.

60. There are two circumstances that come into my mind, which may be said to give rise for consideration.

61. First is that of the time of the accident. It occurred in the early hours of that morning when traffic was not heavy at that time and hour of the day, and that it was still dark. Whilst that may be true to some extent, a reasonable motorist in this part of the country must bear in mind that the Okuk Highway is one of busiest highways in the country. It serves not only the most populated region but also other regions indirectly through the use of sea ports of Lae and Madang.

62. Also, any reasonable motorist would be mindful of the risks involved in overtaking at any corner, where it is invisible to see the road on the other end of the corner. Any reasonable driver would foresee the risks and danger involved. Although the traffic was not heavy, motorist should not take advantage of that and the notion that due to time of the day, traffic was unlikely to be heavy, given the fact of unpredictable oncoming vehicles as in this instant case. A reasonable driver or motorist has a duty to be careful and watchful.

63. The statement of law by the High Court of Australia in R –v- Coventry (1937 – 1938) 59 CCR 633 is appropriate to the circumstances of Papua New Guinea and in this case. At pages 637 – 638 the Court stated that:

“The driver may have honestly believed that he was driving very carefully and yet may be guilty of driving in a manner which is dangerous to the public.... The standard is an objective standard, impersonal and universal, fixed in relation to the safety of others of the highway, .... The standard in the sense that it is applicable in the case of all persons who drive motor vehicles..”

64. The second consideration is that of the spot being notorious to criminals holding up motorist.

65. There is no evidence that there was a hold up. Although it may be foreseeable a fact and a believe, the trend and practice in vehicles driving in one direction on both lanes is too dangerous a practice, especially before or at any road corners, regardless of the time of day.

66. For me to accept that as an excuse, would be a bad and a dangerous precedent in law and to all motorists on the highway and anywhere else for that matter. In my view, at any time of the day and on any public roads, the standard must be an objective standard; impersonal and universal fixed in relation to the safety of others of the highway or public roads (See R –v- Coventry – (Supra).

67. Before concluding, the defence raised an ancillary issue of the police informant who may have been biased in his investigations and evaluation of it prior to laying charges, because the bus owner is also a police traffic officer.

68. There may be some merits in that claim. There is evidence the bus owner followed up on it by approaching the defendant at his village and inviting him to the police station. There is also evidence that he accompanied the informant and the parties of this case to the accident scene.

69. However, in my view the claim should have been raised at the Police station so that another officer outside the traffic section could have been assigned to investigate.

70. Secondly, to avoid that scenario the defendant had an opportunity to report to Henganofi police which is the nearest to the accident scene, despite the other party driving all the way to Goroka. Had it been reported initially at Henganofi Police Station, no doubt the case may have been investigated by them.

71. Thirdly, the issue could have been raised as a preliminary matter by way of motion prior to the substantive trial for determination by the Court.

72. At this stage, I do not have evidence as to the degree of influence the bus owner had in having the defendant charged.

73. In any case, I have also made a finding that the bus driver, Avon Terra was just as reckless in his driving. It is now up to the defendant to seek redress with the appropriate authorities.

74. In Conclusion

I therefore hold and find without reasonable doubt that the defendant drove negligently and that there exists no due considerations to warrant a leniency or innocence of the defendant.

75. He is therefore guilty as charged.

For the State - Senior Constable Gitene of Goroka Police Station
For the Defendant – Mr. Yombon of Paraka Lawyers