Naou v Keso [2008] PGDC 58; DC741 (8 April 2008)

DC741

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

GFCr 74 of 2002

BETWEEN

RUDOLF NAOU
Informant

AND

GERRY KESO
Defendant

Kundiawa: M. Gauli, PM
2008: April 08th

CRIMINAL – Particular offence – Dangerous driving causing death – Driving at high speed while negotiating potholes – Passenger stood up while vehicle on high speed – Passenger fell overboard – Sustained serious head injuries and died of fracture skull and brain damage – No case to answer.

Cases Cited:
1. The State -v-Elias Subane (No,2) [1976] PNGLR 179.

References:
Nil

Counsels:
For the Prosecution - Senior Sergeant Timoty Goiye
For the Defendant - In person

08 April 2008

DECISION OF THE COURT

M. Gauli, PM: The defendant Gerry Keso aged 34 of Goi village, Chuave in the Simbu Province stand trial before this Court on a charge of dangerous driving causing death pursuant to s.325(2)(5) of the Criminal Code, (Chapter 262) which states that:

“(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.”

“(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction or indictment to imprisonment for a term not exceeding five years”.

1. Undisputed Facts:

On the 9th of May 2002 the defendant was driving a motor vehicle to wit a Mazda Dyna T3500 truck registered number BBA 587 along the Okuk Highlands Highway between Chuave and Watabung. He was driving at excessive speed. There were three passengers on his back trailer and two others with the defendant in the drivers cabin. When they reached the Queen’s Corner there were lot of pot holes. As the defendant was negotiating to avoid the pot holes, a container truck was approaching in the opposite direction. The defendant swung his vehicle to his left lane while still on high speed. At that point in time the passenger Michael Aino who was seated directly on the back trailer just above the left rear wheel stood up. The effect of swinging the vehicle to the left forced Michael Aino to fall over board and landed on the pot holes. He suffered a fracture skull and brain damage. The defendant stopped, picked up the victim and rushed him to Goroka Base Hospital. He died on the way to the hospital.

2. Prosecution called four witnesses namely Mrs. Kopa Ako and Mr. Goa Kuman the bystanders who eye witnessed the incident, witness Mr. Timson Rumba who was the passenger on the back tray of the vehicle driven by the defendant and Senior Constable Rudolf Naou the police informant. The witnesses Kopa Ako and Goa Kuman did not see anyone standing on the back trailer of the vehicle defendant drove. However witness Timson Rumba who is the passenger on board with the deceased said the deceased as he stood up for some unknown reason fell off the vehicle at the time defendant swung the vehicle to the left side of the road. I accept Timson Rumba’s evidence of the deceased standing to be the truth of the way the incident occurred. There was a third passenger on the back of the vehicle which police were not able to call.

3. The Issue:

There is only one issue to be considered and that is: “Was the defendant’s driving the substantial cause of the death of the deceased”.

4. There is no dispute that defendant was driving the vehicle at excessive speed over or while negotiating the pot holes at the Queen’s Corner. At that point in time the deceased began to stand up and he fell off board the vehicle. In the case of The State –v- Elias Subane (no.2) [1976]PNGLR 179 at 184 Justice Saldaha said: “The prosecution must prove that dangerous driving on the part of the accused person was a substantial cause of the death of deceased but not that it was the sole substantial cause. The prosecution to show that the accused person’s dangerous driving was the cause of the accident and was something more than de minimis.”

5. Driving at excessive speed may be dangerous however that may not be the substantial cause of the death. In the present case had the deceased not stood up while the vehicle was moving at high speed, it was unlikely that he would have fell off the vehicle. The other two passengers at the back of the vehicle who remained seated did not fall over board except the deceased who decided to stand up. From the prosecution’s evidence as it is presented I do not find that the defendant’s driving the vehicle at high speed was the substantial cause of the deceased’s death. The deceased had in my view contributed to his death. I find that the defendant has no case to answer. And order that the cause be dismissed and the defendant discharge forthwith.

For the Prosecution - Senior Sergeant T. Goiye
For the Defendant - In Person