Police v Mararang [2017] PGDC 5; DC3029 (20 October 2017)

DC3029
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE FIVE CRIMINAL COURT JURISDICTION]

GFCr: 1240of 2017

BETWEEN

POLICE/ FRANCIS KUGAME

Complainant

AND

SOLOMON MARARANG

Defendant

Goroka: R. APPA, PM

2017: March 20
April 5
July 21
October 20

CRIMINAL –

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Informant, State / Police Prosecution

Lawyer for the Defendant, Mapai Co. Lawyer
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20^th October, 2017

DECISION OF THE COURT

R. APPA, PM: The defendant was charged that on the 20^th May 2016 he was driving a Kenworth Semi –trailer Reg. No. HAE-670 on a public street along Faniufa section of the Okuk Highway, dangerously causing death of one David Mark, a national, contrary to section 328 (2) (a) PNG Criminal Code Act.

2. On arraignment, the defendant pleaded not guilty to the charge so trial was conducted.

3. The prosecutor called in five witnesses and gave evidence on what they saw and knew about the fatal accident. There were two key witnesses whose evidence was to the effect the driver (defendant) drove on high speed onto the foot path where the deceased was and knocked him down and took off.

4. The arresting officer (Francis Kugame) was called in to give evidence on what he deserved at the scene of the accident and to identify his sketch map. He said he did the sketch map based on the statement given by the defendant pointing to the point of impact. It was observed by the court that the point of impact was on the left inside the sealed vehicle road. That was not favourable to the Prosecution case so was objected to but it was tendered in any case marked for identification.

5. After considering the no case submission by defence counsel and reply from Prosecution, Court ruled there was a prima facie case. Court wanted to find out how that accident happened.

6. Defence called four witnesses and gave sworn evidence. Defendant gave his evidence and his wife Freda who was in the front seat also gave evidence. Two other witnesses who were around the scene of accident gave evidence on how the accident happened.

7. These defence witnesses gave evidence to the effect that the deceased was apparently under liquor and or on a suicide mission, stood in front, middle of driver’s left lane and according to the defendant’s evidence and his wife, it was a short distance to apply brake so as he tried to avoid, the deceased still moved into his path and as the result the left edge of the front bumper hit the deceased.

8. The law, under section 328 (2) (d) CCA there are three elements to be proven in evidence:-

1. Dangerous driving of a motor vehicle,
2. On public road,
3. Causing death.
   

9. There were no issues with the 2^nd and 3^rd elements. The only issue was on dangerous driving.

10. The prosecution alleged cause of the fatal accident was speeding. Prosecution witnesses were cross examined at length by defence Counsel to elaborate on what they meant by speeding and they said they could tell by the movement of the truck and the wind it created.

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11. The Prosecution and defence counsel filed in their final submission to sum up their respective cases on guilty or innocent of the defendant. Both have cited some precedent cases dealing with the issues.

12. Some of the cases cited and the decisions considered for this case were:-

1. Migi Barton v. The State Sc. No. 213
2. The State v. Elias Subang (No. 2) (1976) PNGLR, (it’s about fault of driver)
3. The State v. James Waisi (2013) No. 54 38
4. Cathy Kairi v. The State (2009) No. 3766
5. KaroGamoga v. The State [1981] PNGLR, 443
   

16. These cases applied the objective test on dangerous driving. Dangerous driving alone would not be sufficient but there must be some fault on the pact of the driver.e.g. in the recent case of Cathy Kairi v. The State quoted above, on speeding, driver applied brake to avoid hitting a pedestrian crossing the road, path of the driver but could not avoid the accident. The judge said that it was not the fault of the driver.

17. It was similarly said in those cases that even the driver could be speeding but if an object or bee struck the eyes of the driver and caused the accident, the driver under such circumstance could not be at fault.

18. At the close of the Prosecution case I thought there was sufficient evidence to establish the element of dangerous driving but after having heard evidence in defence case I was put into a doubtful situation. Defence evidence was consistent from Record of interview, defendant’s statement down to defencewitnesses evidence that the defendant was not at fault, even if he was speeding. The decisions of those precedent cases quoted would apply to the present case.

19. Since this is a criminal trial, the standard of proof is beyond any reasonable doubt (100%), basing on the total evidence discussed above, I have serious doubt on the guilt of the defendant so I have to award the benefit of doubt to the defendant. It is therefore I entered the verdict of not guilty of the charge.

20. However, by highlands custom and in the Melanesian way as per se., liability (if any) is often without fault.

21. Orders:

Defendant is found not guilty of the charge andis acquitted.
Case is dismissed.
Defendant discharged.
Bail be refunded.

Counsels:

Lawyer for the Informant, State / Police Prosecution
Lawyer for the Defendant, Mapai Co. Lawyer