Police v Lano [2021] PGDC 18; DC5074 (19 April 2021)

DC5074

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

In the Matter of Motor Traffic Act

TRAFFIC COURT NO. 04 OF 2021

Between:

THE POLICE

Complainant

And:

STEVEN LANO

Tari: Magistrate Komia

14^th April 2021, 15^th April 2021, and 19^th April 2021

MOTOR TRAFFIC ACT – s.17, driving without due care – negligence defined, and elements of driving without due care – in darkness or rain, every driver must exercise caution at its highest level – safe driving and following traffic rules are essential – non-compliance of simple basic traffic safety rules such as signal-lights and headlights during rain and stormy weather and night amount to gross negligence – responsibility of driving with due care is a collective effort required of all drives who are in a convoy.

CRIMINAL LAW – corroboration of complainant’s evidence required –onus is on the prosecution to adduce evidence to prove beyond reasonable doubt that the accused did commit the offence - where there is no documentary evidence, corroboration is required – where there is no documentary evidence, and there is no corroboration, it is unsafe to convict an accused of a charge.

Legislations

Motor Traffic Act

Cases cited

The State v Takip Palne [1967] PNGLR 90

State –v- Dela Tami [1977] PNGLR 57

State v Masiap [1996] PGNC 21; N1469 (28 August 1996),

State v Sengi [2010] PGNC 63; N4007 (13 May 2010)

State v Jas [2010] PGNC 73; N4013 (22 July 2010)

Kongo v Rocky [2008] PGDC 17; DC653 (9 May 2008)

Text Materials

The Oxford, Advanced Learners Dictionary, 4th Edition

Counsels:

Counsels for Police: Mr. J. Akaku

Counsels for the Defendant: in person

INTRODUCTION

1. The accused was charged with one count of driving without due care under s.17 of the Motor Traffic Act.
   
2. The matter was then set down for trial on 18 March 2021, at 9:30 am in the morning, but was adjourned to 14^th April 2021 for trial to be conducted. Trial was conducted on 14^th and 15^th April 2021, and this is now the court’s ruling on the verdict of the accused.
   

FACTS

3. On 20 December 2020 at around 3pm in the afternoon, the accused drove from Tari Town, headed for Waralo with his family, after picking his family who had just flown in from Port Moresby to spend the Christmas holidays with him.
   
4. Trailing behind the accused was another vehicle driven by another person, one Charlie Hewabe. The approximate distance they were traveling apart from each other was roughly around ten meters. The accused vehicle was a land cruiser, ten seated station wagon, white in colour with the registration LBX 725, which was only two months old.
   
5. When they were nearing Warolo, at a place called Wata, there was a heavy downpour of rain, which narrowed the visibility to almost zero, but as he was turning the corner to speed up the mountain, he could see the vehicle trailing at a distance of approximately twenty to thirty meters.
   
6. From Wata Bridge to Waralo where the lodge is located is about five hundred to six hundred meters. The accused sped up the steep climb, and the other vehicle driven by Mr. Hewabe was trailing behind. The vehicle driven by Mr. Hewabe was an old car, and it was making a slow climb up the hill, thus widening the space between the two cars to considerable distance of about eighty to hundred meters. At the top of the climb is where the Waralo Primary School is located, and about ten meters further up from the entrance of the school is a sharp corner where a trade store is, and about twenty to thirty meters away from the corner is the gate of Waralo Lodge, located on the right hand side of the road if you’re travelling from Tari up, and on the left side if you come from Halimbu, the junction to Nogoli, Komo and Koroba.
   
7. After coming up the steep climb, and negotiating the corner, the accused gave a right signal indicating to turn right into the gate of Waralo Lodge, which is where the accused and his family had booked into, to spend the holidays at Waralo.
   
8. One of the lodge’s security guard who was beside the road, saw the accused’s vehicle signalling to turn in, and quickly ran to the gate and opened the gate for the accused to drive in. The accused waited for about ten (10) seconds for the security guard to open the gate.
   
9. The defendant then turned right to drive in to the Lodge’s gate when he suddenly saw the other vehicle that he had left behind coming up at a very high speed. His reflex made him to steer the vehicle back to the right, as he had not fully swung the vehicle to the right, but because the other vehicle was coming at a high speed. Nevertheless, his vehicle was hit on the right side of the bumper, causing a dent to the right side of his vehicle just inches away from the right bumper sides signal light.
   
10. The accused and Mr. Hewabe then returned to the Police Station to report the matter at Tari Police Station.
    
11. They were both later charged by the Police for one count of driving without due care pursuant to s.17 of the Motor Traffic Act.
    

THE EVIDENCE – ANALYSIS

12. Police gave its evidence through Constable Fidelma Kokele, and the defendant gave his evidence as well. The evidences were straight forward and both gave clear version of the accident, except that the police informant’s statements were never corroborated. In my analysis of the evidence, I summarised the evidence as follows:
    
    1. The accused drove towards Waralo from Tari Town, and it was raining heavily between Wata and Waralo Section of the highway.
       
    2. Since it was cloudy and going towards the afternoon with small drizzle and shower, the accused decided to turn on the headlight and rear lights of the vehicle.
       
    100. There was a considerable amount of distance between the accused’s vehicle and the second vehicle, which was about thirty meters.
         
    4. The accused did put on his right signal light with the intention to take a right turn into Waralo Lodge.
       
    5. Despite the poor visibility, the accused had his lights on, and did turn his right signal on to indicate that he was intending to turn right into the Lodge.
       
    6. The accused did turn in on the assumption that the trailing vehicle was still far away as he had given a considerable distance, and the timing between the gap was safe for him to take a right turn.
       
    7. Even if the trailing vehicle was close by, the driver would have been aware that the accused would turn right and would have slowed down to allow the accused to turn right to ensure his (second vehicles driver) own safety by keeping to his left lane to overtake.
       
    8. If there was an incoming traffic from Waralo to Tari, that second vehicle would have been involved in a fatal accident. Luckily, there was no incoming vehicle on the other lane.
       
    9. The safest thing for the second vehicles driver to have done was to slow down and maintain his course on the left lane and speed off after the accused has turned right. Instead he chose to overtake under heavy downpour of rain.
       
    10. The accused managed to serve his vehicle back to the left, thereby avoiding a major fatal accident, which resulted in a dent on the right side of the vehicle.
        
    11. The accused then followed the first vehicle and they both turned back and at Baibali Technical Vocational Scholl, the accused punched the driver of the second vehicle (as admitted by the accused himself).
        
    50. They came into Tari Police Station where they were both charged for driving without due care and bother bailed at police bail of K500.
        

ISSUE

13. Whether the accused is guilty of driving without due care as charged?
    

THE LAW

14. The law with respect to the charge of unlawful assault is stipulated under s.17 of the Motor Traffic Act, which states;

"17 Dangerous driving and negligent driving

(1) A person who drives a motor vehicle on a public street negligently, furiously or recklessly, or at a speed or in a manner that is dangerous to the public, is guilty of an offence.

Penalty: A fine of not less than K15.00 and not exceeding K200.00 or imprisonment for a term not exceeding six months, or both."

15. In the case of Kongo v Rocky [2008] PGDC 17; DC653 (9 May 2008), Maune. M in defining the term, ‘driver’s negligence’ said that;

“50. The Oxford, Advanced Learners Dictionary, 4th Edition defines Negligent as – “not giving proper attention or care to something; or careless.”

51. A Dictionary of Law by L.B Curzon defines negligent as: “Culpable omission to perform a duty.”

52. In the case of The State –v- Dela Tami [1977] PNGLR 57 at page......... negligent is described as:

“Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.””

16. Negligent driving or driving without due care is therefore, and an act of carelessness attributed by ignorance and blunt disregard of the road safety rules such as driving a vehicle that is unregistered, improperly serviced, with smooth tyres, no rear lights, no park lights, no brake lights and signal lights, no proper brake pads, exhaust puffing excessive smoke and many other related matters regarding a motor vehicles use by its owner or persons without due regard to the general safety of the public. Apart from that, even if the vehicles are full serviced and functional, if a driver fails to give way at a give-way sign despite an oncoming vehicle, fails to give its signal indicator when approaching to turn at an intersection of the road with multiple junctions, and speeding down a road without due regard to the speed limits, then these are all examples of the act of negligence by a driver. It is not a one off definition. The actions of a driver create the scenario of negligence.
    

DISCUSSION OF FACT AND LAW

17. As I noted above, the police evidence was not corroborated, coupled with the fact that the police informant had not given a very clear version of the accident. All she said was that both parties were at fault, the accident was a consequence of both their negligence. The police informant also failed to produce a sketch map describing and explaining nature and circumstance of the accident so as to give a clear picture to this Court.
    
18. In my observation of the evidence, I have come to safely make the finding that the driver of the second vehicle was negligent because of the following reasons;
    
    1. The accused was in front, and Mr. Hayabe was behind him. The signal was on, and the headlight and the tail lights were on, as the accused switched the lights on when it was raining. The signal lights were also on, indicating a possible right turn. All these never mattered to Mr. Hayabe, as he was drunk and already shifted to about third or fourth gear when coming up the mountain and making the turn. To my mind, he was anticipating the accused to give way.
       
    2. Secondly, the accused explains that before turning towards the gate, he didn’t see the other vehicle trying to overtake, but it was when he was in the process of making the right turn into the gate, when the vehicle came from behind trying overtake, ultimately causing the accident.
       
    3. Thirdly, the arresting officer, or the informant was not certain as to who caused the accident, but made a general comment that, it was the failure of both drivers. Whilst it may be logical, the question is, how would the car behind not see the signal and the rear lights, and even the brake lights for that matter, when all those light and signal indicators were switched on? This to my mind simply means the investigating officer didn’t carry out her investigation in a prudent manner. The explanation yearns for more particularities, and given the lack of corroboration, this court will be minded to adopt the version of the accused.
       
19. Corroboration is an important aspect of police case, and there must be a person to corroborate the statement of the complainant or the informant. In State v Jas [2010] PGNC 73; N4013 (22 July 2010), Cannings J in dealing with a complainant and informants lack of corroboration to the prosecution’s evidence held that, there was a need for corroboration if there were no other evidences to support the complainants version of events. His Honour stated in summary;
    

“25. The State presented no evidence to corroborate the complainants evidence and I thought that this was a case that, in view of the shortcomings in the complainants evidence, required corroboration......................................................................................

26. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but pointing out that in this particular case, corroboration was desirable. The lack of corroboration means that there are gaps in the evidence, giving rise to doubt about acceptance of the complainants story.

20. I also found out that the accused version was more straightforward and precise. What makes me believe the accused is the evidence of a heavy downpour of rain, and the manner in which the parties were travelling, coupled with his description of the road and the speed at which he was travelling at between Tari and Waralo.
    
21. In my consideration of the arguments put forward by both the police and the accused, I note that the accused did drive at a high speed from Wata Bridge, up the mountain and onto Waralo, but that does not establish dangerous driving, as he was driving within sixty and eighty kilometres per hour. There was also a heavy downpour of rain between Wata and Waralo.
    
22. The accused had turn on his signal indicator to show that he was going to turn right. That would mean that, if the second driver who was behind the accused had seen it, it would have been proper for the second driver to slow down and wait for the accused to turn right before he (second driver) sped off. Instead, he opted to overtake the accused. I also note that, given the difficulty with respect to the visibility of the road on a heavy downpour at the time of the accident, the most logical and safe thing to do was for the second vehicles driver to wait. There is no excuse why Mr. Hayabe could not see the vehicle in front, as the accused had indicated to turn right by putting on his right side signal.
    
23. The accused’s vision was hampered by the heavy downpour of the rain. Even so, the second vehicle would have seen the rear lights and the right signal, if the second vehicle was right behind the accused’s vehicle. This to my mind reflects well that the second driver was in fact careless.
    
24. A closer look at the prosecutions case and evidence establish that both drivers were at fault, as stated by the traffic officer, who was the only police witness. I am of the strongest opinion that, the mistake is actually not with the accused but the driver of the second vehicle, bring for the reasons I have just alluded to above.
    
25. I am therefore of the view that the accused was not negligent on his part, as he had followed all traffic regulations. He had his head light and rear lights on since it was raining, and he did signal to drive in to the gate of Warolo Lodge. I also note that about thirty meters away from the Lodge’s gate, there is a corner after a steep climb up, which would require proper negotiation before speeding up. To my kind, the driver of the second vehicle after coming up the mountain on a low gear (either first or second) must have shifted to a higher gear around third or fourth and come at a high speed thinking the accused was far away, but when coming around the corner, realised that it was tok late to stop and just headed on causing the collision. It was the reflex of the accused that saved both the accused and the second vehicles drivers and passengers.
    
26. It is a well settled principle in all common law jurisdiction that, the onus remains on the prosecution to prove beyond reasonable doubt that the criminal responsibility, must be proved against an accused. Such doubts must be very unambiguous and therefore, satisfy the essential elements of the offence. The State v Takip Palne [1967] PNGLR 90, State v Masiap [1996] PGNC 21; N1469 (28 August 1996), State v Sengi [2010] PGNC 63; N4007 (13 May 2010) and many other cases. In this case, the prosecution has failed to point out the elements of negligence such as turning without signal or looking at the rear mirror and side mirror before driving in. The police case longs for such elements to directly point to the accused for being negligent. I am therefore, fortified in my view that, the police with respect have not proved beyond reasonable doubt that the accused had been driving in a negligent manner at the time of the accident.
    
27. As such, I will make an order that the accused be acquitted of the charges, and his bail money of K500 be reimbursed forthwith.
    

Orders Accordingly

Per Magistrate Komia