Kuias v Waiye [2011] PGDC 10; DC1055 (6 February 2011)

DC1055

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 76 of 2009

BETWEEN

TOBIAS KUIAS
Informant

AND

SAM WAIYE
Defendant

Goroka: G.Madu

2009: October 9, 22 November 23 December 23
2010: January 28 February 15 March 15, 30
: May 10 June 16, 17, 23 July 19 August 4, 6, 9
: September 23, 27 October 19
: November 8, 12, 18 December 9
2011: January 20 February 15, 16

CRIMINAL - Particular – Dangerous driving causing death – Not guilty plea entered – Criminal Code Act S.328 (2) (5) Chapter 262.

CRIMINAL – Evidence – Defendant at fault – failed to reduce gear at reasonable distance – failed to control and manage the vehicle – resulted in death – exposed to the risk of being collided into by riding on the road – case proven beyond reasonable doubt – guilty verdict entered – sentence – substantial compensation paid and contributory negligence mitigating factors – suspended sentence with probation and condition imposed.

Cases Cited

The State –v- John Peso [1994] PNGLR 317
The State –v- Aina Uwantuna N726 (14 June 1989)

The State –v- Delma Tami [1977] PNGLR 57
The State –v- Elias Subane (No.2) [1976] PNGLR 179
Doreen Rose –v- Gosney (1971) 55CR. APP. R. 502

References

Criminal Code Act Ss 325 (2) (5)
Criminal Law (Compensation) Act 1991

Counsel
Senior Sergant James Bonki, for the State
Sam Waiye, for the defendant

16 February 2011.

JUDGEMENT ON DECISION

G Madu,PM. : The accused SAM WAIYE, is charged that on the 1st August 2009 at Benaveto Highlands Highway did drive a motor vehicle, to wit, a Hino truck red in colour registration number, LAP. 013 dangerously and thereby caused the death of one Nanaso Fiya of Korofegu and his horse, an indictable offence under section 328 (2) (5) of the criminal Code Act Chapter 262.

2. Upon arraignment the accused denied the charge and plea of “Not Guilty” was entered.

JURISDICTION

3. This court has jurisdiction to hear and determine all the indictable offences under scheduled 2 in particular s. 240 of the Criminal Code Act. A Principal Magistrate can hear indictable offences summarily under s.20 of the District Courts Act. The charge before the Court is an indictable offence.

ONUS OF PROOF

4. The prosecution has the burden of proving the charge beyond reasonable doubt.

SUMMARY OF THE MATTER BEFORE THE COURT

5. The prosecution alleged that the accused on Saturday 1st of August 2009 at about 2.00pm was driving along Benaveto road Okuk Highway. He was the driver of a Hino truck red in colour, registration number LAP.013 belonging to Coca Cola Amitil and was travelling on the left lane towards Goroka. The victim was riding on his horse towards Kainantu direction on his right side of the road.

6. The accused while driving saw the victim riding on the horse on his left side failed to take necessary steps to avoid hitting the victim riding on his horse. The accused drove and bumped the horse which died instantly upon impact whilst the victim fell into the V drain where he sustained serious head injuries and died on arrival at the Goroka General Hospital. Police conducted investigation into the fatal motor vehicle accident and the accused was located and invited for record of interview. After the interview was completed the accused was then arrested and charged for this offence and released on police bail.

THE ISSUES NOT IN DISPUTE

7. The following issues are agreed by the parties:-

(i) The accused was the driver of a Hino truck, red in colour registration number LAP.013.

(ii) The accused was driving on the left side of the lane of Okuk High way.

(iii) Victim was riding on his horse on his right hand side of road riding in Kainantu direction.

(iv) The visibility was clear and the driver could clearly see the oncoming traffic and the victim riding on the horse on the left side of the road.

(iv) Death of the deceased and his horse resulted directly from motor vehicle accident.

THE ISSUES IN DISPUTE

8. The following facts are in dispute :-

(i) Whether there was any fault on the part of the accused when driving.

(ii) Whether the accused driving was the substantial cause of death of the deceased and his horse.

EVIDENCE

9. In supporting the charge the prosecution called two witnesses whilst the defendant said he wants to remain silent and did not call any witnesses. Record of Interview was tendered by consent and no cross-examination was conducted.

EVIDENCE OF APIKO HUNO

10. This witness testified that on Saturday 1st August 2009, at about 2.00pm he was with his sister Hako at his house which is on left side of the road in Goroka direction. He said he saw the Coca Cola Hino truck red in colour travelling from Kainantu towards Goroka but did not see the registration number. He saw the truck travelling on the left side at a high speed.

11. There was no other vehicle in front of him nor was there any coming from Goroka passing him. The road was all clear when the accused was driving his vehicle heading towards Goroka. The accused drove and bumped into the horse and its rider. The rider was thrown into the V drain and the truck drove into the other side of the drain and then came onto the road dragging the horse and leaving it on the other side of the lane and then drove off. The horse was already dead. When the witness saw the vehicle bumped the horse with its rider he shouted and then ran to assist the victim. He took him out of the V drain and put him onto a vehicle coming from Ungai Bena District and took him to Goroka Base Hospital.

EVIDENCE OF HAKO MURPHY

12. This witness in her evidence stated that she was with her brother in his house which is beside the Okuk Highway and looking onto the road on Saturday 1st August 2009 at about 2.00pm. During that time she saw a Coca Cola Hino truck red in colour coming from Kainantu towards Goroka. The witness said when she looked in Goroka direction she saw a boy was riding on the horse on the left side of the road in Kainantu direction. The truck was driven at a high speed and went far left to the edge of the left lane and bumped into the the horse throwing the boy into the drain. The truck went to the other side of the drain dragging the horse and going back onto the road leaving the horse in the middle of right lane of the road.

13. The witness said that herself and her brother ran to help the boy and put him into another vehicle and took him to Goroka Base Hospital. She said that at that time she saw the boy was already dead.

EVIDENCE OF TOBIAS KUIAS

14. This witness stated that he was contacted on Mobile phone of a fatal accident at Benaveto road, Okuk Highway. The witness then proceeded to the accident scene with Senior Constable Silika. On the way at Upegu road, the vehicle transporting the deceased was passed on its way to Goroka Base Hospital. At the scene of the accident the vehicle involved was not sighted except the dead horse on the road side.

15. The witness collected the names of witnesses and drew a sketch of the scene. He also found that there were no skid marks left on the road surface by the motor vehicle. He saw the dead horse was on road centre after the impact but later dragged to road side to clear way for other traffic.

16. The witness was travelling back to Goroka when he located the vehicle involved in the accident. It was a Hino truck owned by Coca Cola Amatil Goroka red in colour registration LAP.013. The truck parts were removed by the villagers and other travelling public. The truck could not be removed as there were threats on the company employees.

17. The witness then drove to Goroka and went to Goroka Base Hospital and saw the deceased and got his particulars and advised the relatives and witnesses to report to him on Monday 3rd of August 2009 at Goroka Police Station.

18. On Monday statement were obtained from witnesses and report on death to the Coroner and other document were compiled. The Post Mortem order was obtained and was conducted by Dr. Leonard N. Kaupa.

19. The relatives made three (3) separate compensation claim which were paid in the following manner: (1) Coca Cola Company paid K20, 000.00 to Mr. Bono Fiya’s Bank account (ii) K20, 000.00 was paid in cheque by Branch Manager Goroka (iii) K3,000.00 was paid by the accused. Total of K43, 000.00 was paid to the relatives of the deceased as Bel Kol.

20. The accused was invited for record of interview with Senior Constable Peter Silika as corroborator. During the interview it was revealed that the accused has been driving for three years and was not an experience driver. At the time of interview the accused did not admit the offence and said that the horse and the rider was in his way and had no space for him to pass as the other vehicle was travelling in the opposite direction which caused him to hit the horse and the rider resulting in their death. The driver was formally charged for this offence.

FINDING OF FACTS

21. During examination in chief and cross-examination observations were made on the witnesses. On the first witness Apiko Huno who was very observant when he saw the accused vehicle travelling from Kainantu direction at high speed. He also saw the horse and the rider were riding on the left side of the road in Kainantu direction. The witness stated that the road was clear and there was no vehicle in front of the accused vehicle travelling to Goroka nor was there any other vehicle travelling in the opposite direction towards Kainantu.

22. The conclusion that can be drawn from this witness’s evidence is that he was observing the accident from about 70-80 metres away from the scene of the accident and there were some under growth which could have affected his visibility and may have obscured him from seen a semi - trailer which the defendant claim was already turning the corner with its left wheels in the accused side of the lane which left the defendant with no choice but to bump into the horse and its rider on the left lane of the road. Prosecution’s evidence could not established whether the witness was in a standing or sitting position when he saw the accident occurring. If the witness was sitting then his visibility would have been obscured by the grass and undergrowths growing at that time.

23. Hako Murphy was also an eye witness who was observant of the manner in which the accused drove the truck and hit the horse and its rider. This witness’s version of the story is similar to the first witness. This witnesses evidence raise doubts whether she was able to see the accused vehicle bumped into the horse and the rider and further whether the right side of the lane was clear from traffic travelling in Kainantu direction. If this witness in her evidence said that she did not see any vehicle coming from Goroka when the accused in his confessional statement said he saw the semi trailer turning the corner which prevented him from driving onto right side lane to clear off the horse and its rider who were riding on accused left lane. He had no option under that circumstance and bumped the horse and the rider. The witness’s visibility could have been affected because there were grass and the undergrowth growing and if she was in a sitting position this could have also affected her visibility.

24. I am off the view that the two witnesses could have heard the vehicle hit the horse and the rider upon impact but could not tell the court how the accident happened as they could not be in a position to tell from the distance of 70 to 80 metres.

25. The arresting officer’s record of interview was tendered by consent of the accused together with all necessary documents pertaining to the accident. The arresting officer compiled his report based on his visit to the scene of the accident, and statement of witnesses and the accused admission. This Court is off the view that this particular witness was truthful and honest in his conclusion of the accused being responsible for accident which caused the death of boy and his horse.

26. The Accused although had a confessional statement, exercised his constitutional right to remain silent and therefore was not cross-examined.

27. There was no submissions made either by the Prosecution and the Defendant and the court went ahead to consider the issues in dispute:-

Issue No.1: Whether there was any fault on the part of accused when driving.

28. All the witnesses have testified to the court that the accused was driving on the road that had a clear visibility as there was no obstruction. There was no vehicle driving in front and there was no vehicle travelling in the opposite direction towards Kainantu. The horse and its rider were riding on the left side of the road in the opposite direction on the accused vehicles lane. The witnesses observed the driver to be driving at a high speed. If the driver claimed that the horse and its rider were riding on his side of the lane whilst on the opposite lane there was another semi trailer travelling and then there is a possibility that he had no way to avoid the accident by driving into the right lane to avoid hitting the horse and its rider because he would have collided with the semi trailer. So he had no choice but to continue driving on his left lane and bump the horse and the rider

29. There is no dispute that the defendant was driving at a high speed and I do not dispute that as it is normal for the highway driver so long as they exercise care and are able to manage and control the vehicle in a skilful way. One of the factors any driver takes into consideration is the amount of traffic and pedestrian using the road at those material times.

30. In the instant case the evidence clearly shows the accused was not considerate of his passengers, the oncoming traffic and the pedestrians using the road on that day. Although he claimed in the record of interview that he does travel four times in a week and was familiar with the road however it seems obvious that he failed to take proper control and management of the vehicle. Further he failed to give warning of the danger to the pedestrian and the vehicles using that road by putting horn. This could have raised the alarm to the pedestrians and vehicles to be on alert to take necessary steps in the event of danger and emergency.

31. Because the road is fairly straight and the visibility is all clear, the defendant could have seen the horse some 100 to 150 metres to give himself time to reduce his truck gears from high to low gear. This he did not do and instead he was calling out to alert the rider on the horse. He attempted to reduce the gears to low gear at some distance of 40 to 50 metres which he could not because he felt the trailer was swaying from side to side when he was already close to the horse and left him with no choice to avoid but bump the horse and the rider.

32. Further there is no space to the right side of the road because of the V drain which restricted them to go further to the right side for the rider and his horse to ride on the left side. This left no option for the rider to ride his horse on the right lane. If the accused claimed that he knew the road well then he could have been aware of this part of the road and taken precaution of any unexpected situation and reduced his speed at the first sight of the horse.

33. Equally the rider had a responsibility to ensure that the hors e was ridden safely especially when noticing that there was no space for the horse to keep to the right side as there was a V drain. When he drove the horse on the right lane upon a highway knowing full well the flow of traffic, he was exposing himself and the horse to the danger of being ran over and should have acted swiftly to go onto the left side where he could have been safe to ride on. He failed and therefore contributed to his and the horse’s death.

34. The law is very well established in Doreen Rose –v- Gosney (1971) 55 CR. APP.R. 502 which is accepted and adopted in our jurisdiction in the following cases – The State –v- Elias Subang (No.2) [ 1976 ] PNGLR 179 and The State –v- Delma Tami [1977] PNGLR 57 that there must be some fault on the defendant driver. With the instant case, as I have discussed above the accused was at fault by failing to put the gear into low gear at a reasonable distance which could have slow down to avoid hitting the horse. The defendant failed to demonstrate skill in management and control of the vehicle at that material time.

35. In the case of The State –v- Aina Uwantuna N726 (14June 1989), the case precedent in Doreen Rose –v- Gosney was applied. Woods J said “failure does not necessarily mean driving at high speed. Failure simply means failing to do something the driver should have done to prevent the accident for occurring. The failure includes the driver not applying brakes, changing to low gears or swinging the vehicle away to avoid the collision and so forth”. In the instant case I find that the accused failed to take reasonable steps to shift the high gear to low gear at a reasonable distance when seen the horse and its rider riding on the left side of the lane. I find beyond reasonable doubt the accused was at fault thereby caused the death of the rider and his horse.

Issue No.2: Whether the accused driving was the substantial caused of the death.

36. The evidence is very clear that the death of the horse and the rider was caused by the motor vehicle. The vehicle was driven by the accused. The horse died instantly at the scene while the rider died on arrival at the hospital. Autopsy report shows that the deceased Namaso Fiya on general examination revealed that a light-brown skin and ginger hair coloured, peri-pubertal, single teen aged boy with a flattened , deformed right forehead and face and bleedings from his head, both ears and both nostrils. No gross injuries to chest, abdomen, genitalia, upper and lower limbs and the spine were noted.

37. Autopsy report for deceased Namaso Fiya shows that he had severe fracture to the skull and severe bruised and floppy neck. The report concluded that the deceased and his horse died directly as a result fatal motor vehicle accident and sustaining multiple head and neck injuries.

38. From the evidence adduced to the court, I find that the accused driving was the substantial cause of the death of Namaso Fiya and his horse..

39. Having carefully considered all the evidence given to the court, in the light of my expressed views of the witnesses and their evidence, I make the following findings of fact:-

40. I am satisfied beyond reasonable doubt that the accused driving was dangerous when he drove the vehicle at a high speed and failed to reduce to a lower gear at a reasonable distance to avoid hitting the deceased and his horse. He further failed to give warning to the oncoming traffic and pedestrians to put them on notice of the danger the vehicle was in. He failed to demonstrate care and skill of a competent or experienced driver to avoid accident.

41. I also find that the deceased also contributed to his death by directing and controlling the horse to be ridden on the right lane of the highway knowing that he was exposing himself and the horse into danger of being hit by a vehicle. He could have positioned the horse and himself on the side of the road to be safe. However I find the accused guilty as charged.

THE APPLICABLE LAW

42. The law with respect to dangerous driving causing death is found in s.328 of the Criminal Code Act. S.328 (2) (5) creates the offence and states:

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

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

43. I had the benefit of hearing the accused in allocutus and submitted that after the accident he paid “bel sori” of K3,000.00 and the Coca Cola company had paid K40,000.00 and that he said sorry to the parents of the deceased and the relationship is now restored.

44. In sentencing, the following mitigating factors are considered the accused is a first time offender. He has never been to court and this is his first appearance and some credit must be given as held in The State –v- Aiton Ipai [1977] PGNC 118, N1629, (26th September 1977).

45. I also take into account that the decease contributed to the accident and to his death and that of his horse for directing the horse to ride on the right lane knowing well of the dangers exposed to himself and his horse.

46. I requested the Probation Officer Mr Worowi to provide pre-sentence and means assessment reports since I was of the view that the deceased contributed to the accident and to his death and that of his horse and therefore imprisonment was not appropriate in the circumstances. The Court should consider alternative to imprisonment taking into account the mitigating factors.

47. The pre-sentence report recommends that the accused is a suitable candidate for probation supervision as he is not a danger to the community and is one off accident that has become a lesson and to be careful and more cautious in his driving. The means assessment report recommends that the compensation has been adequately met with no further demand and therefore has no obligation to wards the deceased’s family.

48. The accused paid K3000.00 and the Coco Cola company paid K40.000.00 as “Bel Sori” The National Court held that compensation payment is a mitigating factor as it is provided for in the Criminal Law (Compensation) Act 1991. In the case of The State –v- John Peso [1994] PNGLR 317, Injia AJ, (as he then was) decided to take compensation as a mitigating factor and not as a form of punishment. Though compensation cannot restore lives, the Criminal Law (Compensation) Act1991 has made compensation as a form of punishment therefore any compensation paid before conviction and sentence should be taken as a mitigating factor to consider whether or not the accused should receive a lesser punishment as the case may be.

49. The aggravation factor is the accused caused death to a young life and his horse. The young life is irreplaceable even the compensation cannot replace the life. The accused failed to take control of the vehicle and taking measures to avoid the accident, see The State –v- Delma Tami [1977] PNGLR 57 which states that there must be some fault on the driver and further it was held in The State –v- Aina Uwantuna N726 (14 June 1989) failure simply means failing to do something the driver should have done to prevent the accident from occurring.

50. Having considered the mitigating and aggravating factors, I find that in the circumstances the appropriate sentence would be a partial suspended sentence with good behaviour. I sentence the prisoner to two (2) years IHL. Two (2) years is wholly suspended and the prisoner is placed on probation for Two (2) years with additional conditions and these are:-

1. The offender shall perform community work at his local Church for 150 hours and be supervised by his local Church Pastor Jack Sito who than should provide progressive report to CBC Community Work Co-ordinator Rev. Anthony Elemy at end of each month.

2. That the offender shall not change his current location which is Komiufa village during the term of his probation period.

3. That for the purpose of proper and effective management of this case all work plans and records shall be provided to the Court upon completion of the community work in its review report for its endorsement.

Orders accordingly

______________________________________
Lawyer for the Informant, Police Prosecution
Lawyer for the Defendant, In Person