Godfrey v Berry [2021] PGDC 132; DC6086 (13 September 2021)

DC6086
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 173 OF 2021

BETWEEN:

STEVEN GODFREY
[Informant]

AND:

SUO BERRY
[Defendant]

Waigani: Paul Puri Nii

13^th September 2021

TRAFFIC PROCEEDINGS: -Charge- Without Due Care and Attention -Section 28 (2)(a) - of the Road Traffic Regulations. Exercise of Traffic jurisdiction to ascertain evidence in the Application.

APPLICATION: Affidavit in support and arguments. The Provisions of the Laws (Section 8 and 9 of the Road Traffic Act) are confusing. Defendant’s employer initiated for the Infringement Fine-Defendant denied the negotiation with Complainant- Infringement Fine of K500 be Refunded-Matter proceed to Trail-Application to dismiss refused.

PNG Cases cited:

Nil

Overseas cases cited:
Nil

References

Legislation
District Court Act 1963, Chapter 40
Road Traffic Regulations
Road Traffic Act

Counsel
Police Prosecutor: Sergeant Bigam For the Informant
Young & William Lawyers: Menchie Numi For the Defendant

RULING ON APPLICATION

13^th September 2021

INTRODUCTION

Magistrate Nii, P. Paul. This is an application by the Defendant filed on 6^th September 2021 pursuant to Section 22 and 132A of the District Court Act and Section 36(8) of the Road Traffic Act. The Application was supported by the Affidavit of Defendant Suo Berry. The objective of the application is to have the charge against the Defendant Dismissed.

FACTS

1. Police allege that on 23^rd May 2021, Defendant while being the Driver of a Motor vehicle, a Toyota Dyna, green in color with the Registration number of BFT 034, drove the vehicle along Waigani Drive without due care and attention thus caused damage on the victim vehicle. The Defendant was subsequently arrested and charged under Section 28(2)(a) of the Road Traffic Act.
   

ISSUE

2. Whether the allegation against the Defendant be dismissed since Defendant had paid Traffic Infringement fine?
   

CHARGE

Section 28(2)(a) Road Traffic Regulations

28 GENERAL DRIVING RULES

(2) The driver of a motor vehicle on a public street must not.

(a) drive without due care and attention.

DEFENSE CASE

3. Defendant says at paragraph 3 of his Affidavit in support that on 23^rd April 2021, he was involved in a Motor traffic accident. Defendant went on to says on 24^th April 2021, his employer paid a Traffic Infringement fee upon production of an infringement notice.
   
4. Defendant then say after paying the infringement fine for the purported offence, he was again rearrested for the same offence. Defendant thus says, under Section 36(8) of the Road Traffic Act says he is not liable for the allegation since he had already paid for the penalty. Defendant though his Lawyer state he cannot be penalized and arrested again for the offence where he was already dealt with.
   

PROSECUTION CASE

5. Prosecution responded to the application through their submission dated 7^th September 2021. Prosecution based their argument on Section 9 of the Road Traffic Act, that the traffic infringement penalty should not be seen as an admission of liability or would stop criminal proceedings. Prosecution asked the court to refuse the application and proceed with the substantive hearing.
   

ASSESMENT OF APPLICATION

6. The presentation of Section 36 (8) and (9) of the Road Traffic Act in the current Application filed by the Defendant.
   

36. TRAFFIC INFRINGEMENT NOTICES.

(8) If the prescribed penalty is paid in accordance with this section, no person is liable to any further proceedings for the offence.

(9) The payment of a prescribed penalty in accordance with this section is not to be regarded as an admission of liability for the purposes of, and does not affect or prejudice, any criminal proceedings other than proceedings for the alleged offence or any civil claim, action or proceeding arising out of the same occurrence.

7. The provisions of the law are confusing in the sense that Section 36(8) of Road Traffic Act says if an infringement fine was paid then the subject person against which the fine has been imposed should not be liable for further proceedings. However, section 36(9) of the Road Traffic Act says the traffic infringement payment should not be regarded as an admission of liability. It also says the fine should not stop criminal proceedings other than the alleged offence. There is no condition or qualifications imposed on when the provisions should be relevant and under what circumstances such provisions should be applicable. Both provisions have the uniform authority and thus I will not say who is correct and who is wrong. I cannot say Defendant is wrong or right and the same to police, the Law is confusing both of them to behave and act the way there are. To my understanding both the Defendant and Police are correct.
   
8. The statement of Arresting Officer Godfrey Steven dated 5^th September 2021, says he went and arrested the Defendant but the Defendant’s employer Primus Property Limited asked Police not to proceed with the arrest but to issue a Traffic Infringement fine so that the evidence of fine would be used by the insurance company to repair the victim’s vehicle. Arresting officer says when the victim presented to the Defendant’s company evidence of infringement fine, the company denied that victim had no court order nor Defendant was found guilty by the court. Therefore, the Defendant was this time formally arrested and charged so that the normal court process would run though and the court should make a ruling on the Defendant’s faith rather than the infringement notice.
   

RULING

9. Evidence shows the infringement fine was issued by police against the Defendant upon the Defendant’s agreement that Complainant’s vehicle would be fixed. Based on that understanding Defendant was not formally arrested. However, when the notice of payment was presented to the Defendant’s employer, it denied that traffic infringement notice was not a court order and thus they would not action. There is evidence form the arresting officer that Defendant’s employer initially negotiated for the traffic infringement fine rather than having the Defendant arrested. My question is why asking for fine as an evidence to fixing the Complainant’s vehicle from the insurance at the first place but denying when the fine notice was presented? It was the Defendant’s employer’s request that the fine was initially imposed.
   
10. I should have already dismissed the proceedings under Section36(8) of the Road Traffic Act if the Defendant’s employer had not played a part that led to the issuing of the traffic infringement fine against the Defendant. If the person who negotiated for traffic infringement fine refused to accept the negotiation, then I will rule that there was no efficiency or the objective for the traffic infringement fine which was succeeded between the parties had not been achieved.
    
11. Although Sections 36(8) and (9) of the Road Traffic Act are confusing, my opinion is each provisions of the Law should be utilized on the occurrence and nature of each traffic infringement fine. The only evidence I am not motivated to uphold the Defendant’s application under Section 36(8) of the Road Traffic Act is the Defendant’s employer’s own request to having the Traffic infringement fine rather than letting the court decided. Give this circumstance, it appears that the motive of the fine is in question and hence I will concede with Section 36(9) of the Road Traffic Act so that the court will decided on the outcome. if I were to concede with Section 36(9) of the Road Traffic Act, then the former activity of traffic infringement fine would be unlawful as Defendant may be seen to have been already penalized for the offence because of the wordings in Section 36(8) of the Road Traffic Act.. I do not understand why the Law was enacted to give two opposing remedies. It does not make sense to me. What is the purpose of maintaining a criminal proceeding despite having the traffic infringement fine paid? This appears to me like double jeopardy. Therefore, in order to maintain the status core, it is also my opinion that the infringement fine of K500 be refunded to the Defendant. Finally evidence suggests Defendant’s employer appears to have prejudiced the motive why infringement fine was issued. My ruling is based on the Defendant’s own action of proposing for fine which then appears that such action was denied and hence attracts Section 36(9) of the Road Traffic Act.
    

CONCLUSION

12. The provisions of Section 36(9) and (8) of the Road Traffic Act, is confusing. However, the traffic fine will be refunded to the Defendant to revert to the initial position and let the normal court process take its own cause. By doing this, Defendant is neither prejudiced nor penalized twice for the same office. It is finalized that Traffic Infringement notice was paid as a result of an undertaking whereby Defendant’s employer would meet the victim’s damages. However, evidence suggest, the initial agreement was twisted to arrive at a conclusion contrary to the ones discussed. Given this the Application to dismiss the proceedings is refused.
    

ORDER

1. The Defendant’s Application to dismiss the information is refused.
   
2. The Traffic Police to refund the Traffic Infringement fine of K500 dated 28^th April 2021 to the Defendant forthwith.
   
3. Matter is adjourned to the 22^th September 2021 at 9.30am for Trail.
   
4. Defendant’s bail extended.
   

Young & William Lawyers For the defendant
Police Prosecutor For the State