Gumini v Pomaleu [2008] PGDC 68; DC730 (12 May 2008)

DC730

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

GFCr 62of 2007

BETWEEN

ROBERT GUMINI
Informant

AND

ROBERT POMALEU
Defendant

Goroka: M Gauli, PM
2008: April 22
May 05, 07, 12

CRIMINAL – Particular offence – Dangerous driving causing death – Pedestrian ran onto the road at close distance of the coming vehicle – No fault of the driver.

Cases Cited:
1. The State –v- Elias Subang (No. 2) [1976] PNGLR 179
2. Doreen Rose –v- Gosney (1971) 55 CR. APP. R. 502
3. The State –v- Dela Tami [1977] PNGLR 57
4. The State –v- Aina Uwantuna (14 June 1989) N726 (Unreported)
5. Regina –v- Pius Piane [1975] PNGLR 52

References:
Nil

Counsel:
For the Prosecution – Senior Constable Pipi
For the Defendant – In Person

12 May 2008

DECISION OF THE COURT

M Gauli, PM: The defendant stands trial on a charge of dangerous driving causing death of a six year old girl Linda Michael on the 17 October 2007 along Elliot Street, a public street in Goroka town. The defendant was driving a motor vehicle namely a Toyota Land cruiser, 10 seater, white in colour bearing the registration number ZSU 798. He is charged under Section 328 (2) (5) of the Criminal Code Act of Papua New Guinea. These provisions state s that a person who drives a motor vehicle on the road or in a public place dangerously and causes the death of or injures another is guilty of a misdemeanour and he can be sentenced to imprisonment for up to five years.

2. There is no dispute that the defendant drove the said vehicle along the said street at about 9:00 o’clock in the morning. He is a lecturer at Goroka University and was travelling to the campus to work. There is no dispute that he did hit the deceased at the time. The vehicle had no mechanical faults.

3. What is disputed appeared to be the followings. The distance the pedestrian was from the vehicle when she came onto the lane the defendant was travelling. And second if there was fault on the part of the defendant in causing the accident.

4. Issues:

There are two issues that this Court considered if necessary to determine. These issues are:

i. How far was the deceased when the defendant first saw her come onto the defendant’s lane?

ii. Were there any faults on the part of the defendant in causing the accident?

5. The burden of proof rests squarely on the prosecution to prove beyond reasonable doubt the guilt of the defendant. Where there are inconsistencies on the evidence for the prosecution that will be fatal to the prosecution’s case. Where the prosecution has established a prima facie case against the defendant then the burden of proof will shift to the defendant to prove his innocence on the civil balance of probabilities.

6. I have received and heard the submission by the prosecution. He submitted that the evidence for the police witness have corroborated each other. The defendant was driving on high speed while going down the gentle slop while knowing that there is a bridge right on the bend and there is a Salvation Army church just where the accident occurred. That the defendant failed to take consideration of other road users along that street. The speed at which the defendant was driving at that particular part of the street proves that his manner of driving was dangerous. He failed to apply brakes or slow down or sway his vehicle to his right lane when he saw the pedestrian only a metre away from him. He referred the Court to the cases of R-v- Himson Mulas [1969-70] PNGLR and Karo Gamoga –v- The State [198] PNGLR 443. And he submitted that the test to be applied is the objective test. He submitted that the defendant’s driving at high speed created a dangerous driving therefore he was at fault in not taking a proper lookout and care in his driving.

7. The defendant in his submission stated that the deceased ran onto his lane when he was only about a metre away. On seeing this, he swayed his vehicle to his right to avoid hitting her but it was too late as the deceased ran onto the lane so suddenly and at so close a distance. He has paid K10, 500.00 compensation to the deceased relatives already.

8. The cases referred to by the prosecutor are not relevant to the present case. In the case of Himson Mulas, he went off the road on his right hand side and ran over the deceased who was sitting five metres off the road. In the case of Karo Gamoga, he failed to give way to the vehicle coming on his left side of the main carriage at a busy intersection where the vehicle coming on his left was on a high speed and the accused had to cross three lanes to get to the left lane. And in so doing he caused the accident.

9. Issues No. 1: How far was the deceased when the defendant first saw her come onto the defendant’s lane?

The prosecution called four witnesses namely Igondo Babuto, Cathy Michael, Robert Gumini the informant and Clement Tine who took the sketch plan of the scene of the accident. The defendant has no witnesses except himself. He gave sworn evidence.

10. None of the prosecution witnesses saw how the accident occurred. The arresting officer Robert Gumini attended the scene of the accident some ten minutes or so after the accident. He gave evidence of the point of impact based on the blood stains found on the sealed road. His evidence based on the blood stains found on the road is that he point of impact occurred about one (1) metre into the lane the defendant was travelling. Witness Clement Tine went to the scene some days later.

11. The witness Igondo Babuto gave evidence that he was walking on the foot path beside the left side of the lane the defendant was travelling. He just walked passed a woman with her two children on the same side of the road. They were walking up in the opposite direction and going towards North Goroka while Babuto was walking down towards Goroka town. After walking passed the woman (who is witness Cathy Michael) with her children for some three (3) to five (5) metres, he saw the defendant drove passing him and suddenly he heard a ‘bang’ right behind him. When he turned around he saw the vehicle dragged the deceased across to the right land and the wheels rolled over her head. The vehicle stopped for a while and then it speeded away. The accident occurred just before the Zokozoi bridge but directly near the Salvation Army church. There were no other vehicles on the street except the defendant at the time of the accident. He said that the vehicle driven by the defendant was travelling at high speed. At the time he walked passed the deceased and her mother, they were walking on the foot path.

12. The witness I. Babuto did not see where exactly the deceased was when she was hit by the vehicle. He did not see or could not tell how far the deceased was when the defendant drove passed him before the impact.

13. The witness Cathy Michael gave evidence that she was with her two children going towards North Goroka. She held the younger child in her left arm and the older daughter Linda Michael in her right hand and they were walking on the foot path on the side of the left lane. Her daughter Linda was playing with a rubber as they were walking along. The rubber band fell on the left lane of the road. Linda wanted to pick up the rubber so Cathy let go off her grips. When Linda bent down to pick up the rubber, the vehicle coming from behind them hit Linda on her head and dragged her to the middle of the road. That was all she could remember. The point of impact was on the left lane of the defendant, not off the lane. She did not see how far the vehicle was when the deceased went onto the lane to pick up the rubber.

14. The defendant in his own evidence stated that he suddenly saw the deceased ran across the left lane of the road when he was only about a metre away from her. He then swayed the vehicle to his right and applied the brakes but it was too late to avoid hitting the deceased.

15. The evidence is very straight forward. The deceased was playing with the rubber as she was walking along the side of the left lane. Her rubber happened to fall on the left lane and she went onto the left lane to pick it when the vehicle coming from behind her hit her while on the left lane. None of the police witnesses gave evidence as to how far the vehicle was when the deceased went onto the left lane to pick up her rubber. In the absence of the prosecution’s evidence in regards to the distance, I do accept the defendant’s evidence that the defendant was only about a metre way when he first sighted the deceased ran onto the left lane. A distance so close to avoid the accident.

16. Issues No. 2: Was there any fault on the part of the defendant in causing the accident?

The witness Igondo Babuto gave evidence that he saw the vehicle involved in the accident was been driven at high speed. He was facing the vehicle when it drove passed him. However he was unable to tell at what speed the vehicle was been driven. But from his observation the vehicle was on high speed.

17. The defendant in his own evidence said that he was driving at a speed between 60 to 70 kilometres per hour. It was about 9:00 am and he was trying to get to the Goroka University Campus to arrange transport for those students who were going out on their practical teachings. Going down hill at that speed no doubt can be a high speed. I am satisfied that defendant was travelling at high speed at that particular street at that time.

18. Can speeding be a fault on the part of the defendant? The law is well established in Papua New Guinea that in the cases of dangerous causing death the prosecution must prove that the defendant’s dangerous driving was the substantial cause of the death but not that it was the sole substantial cause – see The State –v- Elias Subang (No. 2) [1976] PNGLR 179 AT 184, His Honour Saldana J, sighted in the case of Doreen Rose –v- Gosney (1971) 55 CR. APP. R. 502 on page 508 the decision of MEGAW LJ, that dangerous driving must not only be viewed objectively that the driving was dangerous but there must be some fault on the part of the driver causing the situations. In The State –v- Dela Tami [1977] PNGLR 57, Frost CJ, in applying this precedent in Doreen Rose –v- Gosney (above), said and I quote:

“But it is established that there must also have been a fault on the part of the driver causing the situation.”

19. In Rose –v- Gosney, I bid Megaw LJ said at page 508, “Faults includes a failure, a falling below the care or skill of a competent and experience driver, in relation to the manner of driving and to the relevant circumstances of the case.” This case precedent is also applied by Woods J, in the case of The State –v- Aina Uwantuna N 726 (14 June 1989) unreported National Court case.

20. Objectively driving a vehicle at high speed may be dangerous but it does not amount to a failure. The prosecution evidence did not identify any failure on the part of the defendant that caused the situation to be dangerous in the circumstances. The defendant’s evidence is that when he saw the deceased ran across or ran onto the defendant’s left lane, the deceased was only about a metre away. He tried to avoid hitting her by swaying the vehicle to his right and he applied the brakes, but it was too late. The decease ran onto the defendant’s lane so suddenly and at so close a distance that even thought the defendant tried to avoid hitting her it was too late. It was so sudden that the defendant had no time to avoid the accident.

21. In the case of Regina –v- Pius Piane [1975] PNGLR 52 the accused was startled as a result of a loud bang on the roof of his cabin of the vehicle he was driving and he turned his head in a voluntary act. And in so doing he ran off the road and over turned causing the death of one of his passengers. The court found him not guilty as there was a sudden bang on the roof that forced him to turn his head away and he ran off the road. In the present case the deceased suddenly ran onto the left lane, where the defendant was travelling, to perhaps pick up her rubber that fell on that lane when the vehicle the defendant was driving was only about a metre away from her. There is no evidence from the prosecution that the deceased was more than one metre way from the coming vehicle that there was sufficient distance in which the defendant could have done everything an experienced driver would have done to avoid hitting the deceased. I am satisfied on the evidence presented before this Court that the defendant did all he could in that short space of time and distance to avoid running into the deceased by swaying his vehicle to towards his right side but it was too late. I am satisfied that the deceased ran onto the left lane to pick up her rubber when the vehicle was only a metre away.

21. I am satisfied that defendant did sway his vehicle to his right lane. This is confirmed by the prosecution’s witness Igondo Babuto who said that when he heard the bang behind him, he turned and saw the vehicle dragged the child onto the other lane and the wheels rolled over her. I find the prosecution evidence failed to prove beyond any doubt that there was some fault on the part of the defendant causing the death of the deceased. And I find the defendant not guilty of the charge. I dismiss the case and discharged the defendant. His bail be refunded.

For the Prosecution – Senior Constable Pipi, Goroka Police Station
For the Defendant – In Person