Police v Bire [2018] PGDC 25; DC3060 (27 April 2018)

DC3060

PAPUA NEW GUINEA
IN THE DISTRICT COURT SITTING
IN ITS CRIMINAL (TRAFFIC) JURISDICTION

BETWEEN

POLICE
-Informant-

AND

PETER BIRE
-Defendant-

Kundiawa: B. Tanewan

2018: 27^th April

Motor Traffic Act – s.17 (1) - Driving without due cares and attention – s. 18(1)– Plea of not guilty
Practice & Procedure – Burden of Proof – Standard beyond Reasonable doubt –Onus lies with the prosecution - Guilty verdict on charge under s.17(1)
Practice &Procedure – Sentence – fine in default imprisonment.

Cases cited.

SCR 1A of 1981; Motor Traffic Act
Biyang v LiriHaro [1981] PNGLR 28

RULING ON VERDICT

1. INTRODUCTION

The Defendant Peter Bire stands charged with one (1) count of Driving without due care and Attention under section 17 (1) of the Motor Traffic Act.

It is alleged that on 5^th February 2018, at Ku along the Okuk Highway, the defendant was driving at high speed and being a driver of the Toyota Land cruiser with Registration number IAC 677 drove the said vehicle at Ku along the Okuku Highwaywithout taking due care and attentionwhen the vehicle ran into the Ku High School Truck which was going into the gate of Ku High School. He was also charged for driving without due care and attention.

The Charges.

17. DANGEROUS DRIVING AND NEGLIGENT DRIVING.

(2) A person who drives a motor vehicle on a public street without due care and attention, or without reasonable consideration for other road users, is guilty of an offence.

Penalty: A fine not exceeding K500.00.

(3) In considering whether an offence has been committed against this section, the court shall have regard to all the circumstances of the case, including–

(a) the nature, condition and use of the street on which the offence is alleged to have been committed; and

(b) the amount of traffic that was or might reasonably have been expected to have been on the street at the time.

.
The issue for the court to determine is that;

Whether or not there is evidence beyond reasonable doubt by the Prosecution to render a conviction against the Defendant on the charge.

It is trite law in this jurisdiction that the burden of proof lies with the prosecution. This means that the prosecution has to prove its case or the charges against the defendant beyond reasonable doubt according to law. However, if there is slightest doubt in the mind of the court, it will be unsafe to convict.

In the Supreme Court case of SCR 1A of 1981; Motor Traffic Act Kidu CJ said that;

“The main thrust of the Constitution, s. 37(4)(a), is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence. In my opinion the phrase `according to law' refers to the whole body of law in the country, as exhaustively defined in the Constitution, s. 9; it includes both the statute law and the underlying law.

By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged.”

In the National Court case of - SCR No 1 of 1980; Re S22A (b) Police Offences Act; Biyang v LiriHaro [1981] PNGLR 28

“A person charged with an offence shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

Per Greville Smith J:

“As a result of s. 37(4)(a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:

(a) In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.

(b) Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualifications or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

(c) In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence.”

The presence or absence of lack of intent to defraud in s. 22a of the Police Offences Act (Papua) 1912 (repealed), is one which is peculiarly within the knowledge of the person concerned, and the onus is on the person charged under s. 22a of proving lack of intention to defraud as a particular fact.

The expression “according to law” in s. 37(4)(a) of the Constitution encompasses all the laws of Papua New Guinea as set out in s. 9 of the Constitution including the underlying law of which the common law is a part under s. 20 and Sch. 2.2(1), and means in the context of the section according to the common law in England at the time of coming into force of the Constitution and which embodied the concept of the presumption of innocence.”

Prosecution’s Evidence.

In summation, the prosecution’s evidence is that the defendant failed to control the vehicle so as to avoid colliding into the Ku High school truck which had already turned in just about to enter the gate. This was due to the fact that he was travelling at high speed. The witnesses further gave evidence that after the accident theysaw both vehicles having their signal light still on indicating that both vehicles were turning right. Photographic evidences were tendered to support the prosecution’s evidence.

The Defence evidence.

The crux of the defence evidence is that, the defendant was travelling towards Goroka and just as he was avoiding a bus that was parked on the left he saw the school truck. The defence witnesses said they saw the truck but the driver of the truck did not switched on his signal lights to show that he was turning into the Ku High School gate.

This means that the driver was caught by surprise when the vehicle in front suddenly turned right and so he had no time to apply the brakes and instead swung further right in his endeavor to try and avoid the collision.
Analysis of the evidence

The Court in its consideration and analysis of the evidence adduced by both parties at trial noted that the prosecution’s evidence on the charge under section 17 (1) of the Motor Traffic Act is consistent, corroborated and makes sense.

The Prosecution witnesses gave detailed, thorough and corroborative evidence in relation to the fact that the defendant was travelling at high speed and the High School vehicle had already turned into the right lane as a large percentage of the road to the left was free and a smaller percentage to the right was free. It is also evident from the damage done to the Ku High School truck that the impact was huge due to excessive speed from the oncoming vehicle.

The Court is of the view that it is the duty of care of the vehicle travelling directly without any intention to turn to exercise extra caution and keep a fair distance between itself and the vehicle in front as they have the advantage of a full view in front of the compared to a vehicle that is making a turn. The Court finds their evidence to be believable. They are all reliable and truthful witnesses.

Based on the above considerations the court finds that;

(a) The prosecution has proven its case beyond reasonable doubt as to the charge of driving under influence contrary to section 17(1) of the Motor Traffic Act.

Therefore, the formal orders are;

1. The defendant Peter Bire is found guilty and convicted of the offence of Driving without due care and attention under to section 17(1) of the Motor Traffic Act.
   
2. Defendant shall pay a court fine of K500.00 in default 8 months IHL.
   
3. The defendant’s bail be refunded.
   

Orders accordingly,