Kagasi v Apae [2008] PGDC 6; DC680 (22 January 2008)

DC680

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

DCCr 187 of 2007

BETWEEN

ELIJAH KAGASI
Informant

AND

ETANO APAE
Defendant

Kainantu: I Kurei, SM
2008: January 22

CRIMINAL – Particular offence – Driving Negligently – Not Guilty – Adult - Sentence – Dismissed.

Cases Cited
Nil

References
1. Motor Traffic Act, s. 17 (1)
2. Wrongs Miscellaneous Provisions Act, s. 37 (2), s. 37 (3)

Counsel
For the Prosecution – Senior Sergeant Michael Hausere
For the Defendant – Mr. Kamo Pilisa of Pilisa Lawyers

22 January 2008

DECISION OF THE COURT

Facts

Defendant Etano Apae of Katigi Hauslain, Henganofi District, Eastern Highlands Province was charged for negligent driving on 22 October 2007, at Moandefa Village, Kassam.

2. Defendant is a driver with Evangelical Brotherhood Church Mission at Kassam. Defendant on 22 October 2007 drove a White Mitsubishi Canter Truck No. Plate LAQ 695, on his way to Ramu.

3. Defendant was driving the Canter Truck along Okuk Highway at Moandefa Village, at a bend/curve of the road and other vehicle, a Toyota Hiace 15 Seater bus driven by Kaioma Norauba, was traveling from Goroka to Lae on a PMV round, ran into the Canter truck.

4. At a curve or bend along Okuk Highway at Moandefa Village, the PMV bus Plate No. P0040F driven by Kaioma Norauba ran into the rear of the Canter Truck driven by the Defendant, Etano Apae.

Issue

5. Was the Defendant driving negligently which caused the accident?
Was the PMV bus driver driving negligently?

Law

S 17 (1) of Motor Traffic Act creates an offence for driving negligently.

Evidence

6. The evidence as it is before this Court is in the following manners. All four (4) Prosecution witnesses gave evidence orally on oath. Whereas Defence elected to go by way of Affidavit evidence as such.

7. Defendant and two (2) witnesses all filed their respective Affidavits and were examined in Court. It is not surprising, in this type of cases all Prosecution witnesses are on one side as oppose to Defence witness on one side.

8. Basically, there is no doubt there was a non-fatal motor traffic accident along Okuk Highway at vicinity of Moandefa Village. The front of the PMV 15 Seater bus and the rear of the Canter Truck came into contact with each other.

Facts

9. Prosecution witness basically say, the Canter Truck which was traveling outbound EBC Mission, at the bend/Corner at Moandefa stopped on the middle of the lane, no signal after being waved down by road side by standers.

10. As the result of the Canter Truck stopping on the lane, the PMV 15 Seater bus also on the same lane ran into the rear of the Canter Truck causing extensive damage to its front. There was hardly any damage to the rear of the Canter Truck.

11. Directly in contrast, the Defendant and his witness say, the Canter Truck was traveling and the PMV 15 Seater bus followed in high speed at the corner/bend, the two (2) bystanders on the right side of the road, one asked to travel so the driver put his head out to hear what the bystander was saying as such was not taking precaution and which caused the accident.

Assessment of the Evidence

12. With two conflicting views on what actually had happened, it is left to this Court to draw its inference to accept one version or the other.
This is no surprising in PNG, when one party calls witness they all gave same or similar account of what happened.

13. Likewise, on the other party, same account or very similar account is given depending very much on what the party is claiming. These types of situation make task of Courts difficult, instead of witnesses, as they ought to give what actually they have seen simply support whichever side is calling them.

14. In this case, it can be seen that out of one scene or what led to the accident two versions arises and is the contending issue in this matter. This Court did not have the opportunity to visit the scene of the accident. In the documents filed by Defence, there is sketch plan on the Police Report.

15. Defence had gone onto file black and white photographs of the bus. That is the extent of damage done. The line of questions in both Examination in Chief and Cross-examination have all been noted.

Finding

16. The onus is on the Prosecution to prove or establish before this Court on what the Defendant had done beyond reasonable doubt. In this case, I find that the matter is more a 50/50 call. That is, if Prosecution evidence is accepted then Defendant is found driving negligently. If Defence evidence is accepted then Defendant was not driving negligently.

17. The truth of the matter is only known to the Defendant, the PMV 15 Seater bus driver and possibly the two (2) bystanders. The PMV bus driver is fully aware of the presence of the Canter Truck driving ahead.

18. Both drivers have the duty of care firstly on themselves, the passengers they have and other road users, including other vehicles, the bystanders or pedestrians. Defendant was driving ahead of the PMV bus; his duty is to ensure he drives safely in particular those in front of him. At the same time, common sense should prevail that whatever he does, may in some way affect those that are following him.

19. As for the PMV bus driver, the same duty of care applies. In this situation, bus driver is aware of the Canter Truck’s presence. It is his duty to ensure he drives at a reasonable pace at the rear of the Canter Truck. Here I apply reasonable persons test, in other words what would a reasonable person would do.

20. It is a fact there is bend/curve on the road, in such situation, in my view, extra precaution be taken by the bus driver. It is not Canter Truck driver’s duty to keep reasonable pace ahead of the PMV bus.

21. From the Police Report sketch plan and also personal knowledge of the sketch of road, the bend/curve is not sharp. It is a gradual bend, the driver either at rear or on coming have view of what is in front of them.

22. In weighing what I have before me in the final analysis, I find I have certain doubts in the matter as such benefit of doubt is given. I therefore, find the Defendant not guilty of the traffic offence he is charged for, that is driving negligently.

Order made accordingly.

For the Prosecution – Senior Sergeant Michael Hausere
For the Defendant - Mr. Kamo Pilisa of Pilisa Lawyers