Police v Kaupa [2021] PGDC 2; DC5044 (14 January 2021)

DC5044

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 670 of 2020
BETWEEN

THE POLICE
Informant

AND

NEWMAN KAUPA
Defendant

Waigani: S Tanei

2021: 14^th of January
      

TRAFFIC OFFENCE – Driving Without due care and attention – s 28 (2)(a) – Road Traffic Rules-Road User Rules 2017.

TRAFFIC OFFENCE- Trial- Whether the Defendant drove without due care and attention – Elements of the offence discussed – Verdict of Not Guilty

Cases Cited

Police –v- Enoch Apami [2020] WTC 634 of 2020, 24.12.2020, Unreported.
State v John Ekapa[2007] DC518
Karo Gamoga –v- The State [1981] PNGLR 443

References

Legislation

Road Traffic Rules – Road User Rules2017
Counsel

Sergeant Emmanuel Bigam, for the Informant

Mr. Newman Kaupa, the Defendant In Person

RULING ON VERDICT

14^th January 2021

S Tanei: The Defendant pleaded not guilty to one count of Driving Without Due Care and Attention contrary to section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.

2. The matter went for trial on 8^th September 2020 and continued on 17^th November 2020.
   
3. On 17^th December 2020, parties made submissions on verdict. Both parties filed written submissions and relied on them during submissions.
   
4. This is my ruling on verdict.
   

FACTS:

5. The Police allege that on 10^th June 2020, the Defendant, on a Public Street, drove without due care and attention.
   
6. They say that on that day the Defendant drove a white Toyota Hilux Ute bearing registration number BFB 606 along the Hubert Murray Highway at Courts Round about and he did so without due care and attention.
   
7. Police allege that the Defendant drove on the outside lane along Poreporena Freeway into the Roundabout at Courts when the accident occurred.
   
8. Police say that the Complainant, Tim Asitore drove a Toyota Camry Garcia 2.2 with Registration number BFO 014 on the inside lane of the roundabout. They say that the complainant signalled left intending to turn in to Gordons but the Defendant sped up and hit the Complainant’s vehicle on the left front side. Both vehicles received minor damage.
   
9. The Defendant was later arrested and charged with Driving without due care and attention.

ISSUES:

10. The Court is faced with the following issue;
    
    1. Whether the Defendant drove without due care and attention?

THE LAW

11. Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017 provide that;
    

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

(a) drive without due care and attention;........”

12. It is important to know the elements of the offence itself. I dealt with this offence in the case of Police –v- Enoch Apami [2020] WTC 634 of 2020 , 24.12.2020, Unreported where I held that the elements of this offence are;
    1. A person drove a specific motor vehicle;
    2. That particular vehicle was driven on a public road; and
    100. That vehicle was driven without due care and attention.
         
13. In order to return a guilty verdict against the Defendant, all of the elements of the offence must be proven beyond reasonable doubt.
    

EVIDENCE

14. Prosecution called 2 witnesses;
    1. Paul Gilmai

He is the arresting officer in this case. He testified that on Wednesday 10^th June 2020 he was on duty at the Four Mile Traffic Police Station when he received a report that an accident had occurred at the intersection at Gordons and Poreporena Freeway at around 6.30 pm. He testified that the Complainant reported the matter at the Police Station. The Defendant failed to turn up at the Station then.

They then went to his place of employment to find the Defendant but did not meet him. It took them two (2) weeks to locate the defendant.

The Defendant was eventually located on 26^th June 2020 where he was arrested and charged.

During cross examination, this witness maintained that he did not see any report placed by the Defendant on 10^th June 2020.

2. Tim Asitore

He is the Complainant in this matter. He testified that on 10^th June 2020 at around 6.30 pm in the afternoon he drove by the Courts Round about in his Toyota Camry Garcia 2.2 Sedan on the inside lane. He said that at that relevant time he looked at his rear mirror and saw no vehicle. All of a sudden, the Defendant’s vehicle came about and hit him. He then stopped and was told by the Defendant that he was wrong. The Defendant then told him to follow him to Boroko Police Station. The Complainant then went and reported the matter at Boroko Police Station and then the Traffic Police Station at 4 mile. He then got Police Traffic Officers and went down to the G4S Security Base at Kone to look for the Defendant. He said he waited for the Defendant to come to the Station until 2 am the next morning but the Defendant did not turn up. This carried on for 2 weeks. He finally caught up with the Defendant on Friday 26^th June 2020.

During Cross examination, Tim Asitore confirmed that he was on the inside lane. He said he did not see the Defendant’s vehicle anywhere when he put the signal light. He said there were passengers at the back of the Defendant’s car. He also confirmed that the Defendant’s vehicle was hit at the back when he turned into the outside lane.

15. Defence Called 3witnesses;
    1. Newman Kaupa

This is the Defendant. He is a Senior Supervisor with the G4S Security Company. He testified that on 10^th June 2020, he was on duty where he was doing drop offs for the night shift. At around 6.30 pm they drove up from the Poreporena Freeway past SP Brewery and into the roundabout at Courts. They were on the outside lane. He said he was driving at a speed of 50-60 kilometres per hour. He said his vehicle was about ¾ past the roundabout when he was hit by the Complainant’s car. He then stopped and told the Complainant to go to the Traffic Police Station at 4 Mile and wait for him and would catch up with him at the Police Station after he dropped off his guards. After 1 hour 30 minutes he went to 4 Mile Traffic Police Station but he could not find the Complainant there. He then saw a Police Officer named Tyson Toon and reported the matter. He was given an Occurance Book (OB) Number 205320. The Police officer got his contact and told him that he would contact him. However, he never contacted him.

Two weeks later, on 26^th June 2020 at 1am in the morning while he was on night shift doing supervising at Boroko, he was stopped by duty Policemen and asked if he was Newman Kaupa. They asked him if he was aware of any offence and he said he already reported the matter. He was then asked to follow them to Boroko Police Station. AT the Station, they waited for 30 mins before the Arresting Officer, Paul Gilmai arrived and told him to go into the office where he questioned him about the incident and why he did not report it. When he told the officer that he reported the matter, the Officer said that Tyson Toon was not a Policeman and that his report could not be found. He then told the Defendant to make a statement.

The Defendant went on to testify about his treatment at the Police Station and how he was assaulted by Policemen prior to being arrested.

During Cross Examination, he maintained that he was on the outer lane and that the Complainant was on the inside lane and that the accident occurred in the middle where the Complainant drove in and hit his vehicle from the back. His vehicle was hit at the back by the Complainant’s vehicle.

2. Joe Jonathan

This witness is a Securty Guard at G4S Security. He testified that on 10^th June 2020 at 6.30 pm, he was a passenger in the Defendant’s vehicle. He and other guards were to be dropped off by the Defendant at that time. He said the taxi was 1- 2 meters behind them. It was on the inside lane. Just as they were about to go past the turn off into Gordons, the Complainant put on his right signal light but turned left and bumped into the back of the Defendant’s vehicle.

During Cross Examination, he said he was at the back of the cabin and saw everything. He also said traffic was jammed and maintained that he saw the Complainant put on his right signal but turned left and ran into them.

100. Alok Ungem

This witness is a security guard at G4S. He testified that on the day of the accident, he was in the cabin with the Defendant. He said they were ¾ past the junction into Gordons when the taxi ran into them.

During Cross Examination, he said that there were six of them on the vehicle and that they were heading to Ela Murray International School. They were on the outside lane and the Complainant was on the inside lane when the taxi ran into them. He said the weather was fine and traffic was ok.

ANALYSIS OF EVIDENCE

16. The Prosecution’s story was that the Defendant drove in a speedily manner on the outer lane which caught the Complainant by surprise when he was turning into Gordons from the roundabout from the inside lane.
    
17. I find the prosecutions first witness to be unreliable. First, as the arresting officer, he was not helpful. He did not conduct any investigation into the accident. He says the Defendant was at fault without even stating why the Defendant was at fault.
    
18. Despite being credible, the Complainant’s testimony did not assist the prosecution’s case. He was on the inside lane. He said he looked at the rear mirror and saw no car but all of a sudden the Defendant’s vehicle hit him.
    
19. The Defence evidence was both impressive and consistent. All witnesses testified that they were on the outside lane and that their vehicle was in their right lane when the Complainant turned in and bumped them.
    
20. I assess the Defendant’s witnesses to be truthful as well.
    

UNDISPUTED FACTS

21. From the evidence, the following facts turn out to be undisputed;
    
    1. On 10^th June 2020 at around 6.30 pm, The Complainant drove a Toyota Camry Garcia Sedan, with registration number BFO 014 while the Defendant drove a Toyota Hilux, white in colour with Registration number BFB 606 at Gordons/Courts roundabout.
       
    2. The Defendant’s vehicle was on the outside lane while the Complainant’s vehicle was on the inside lane.
       
    100. There was an accident involving the two (2) vehicles where the Complainant’s vehicle hit the Defendant’s vehicle at the back left hand side.
         
    4. Both vehicles sustained damage. The Complainant’s vehicle had its front left hand lights damaged while the Defendant’s vehicle suffered damages to its rear right hand light and wheel.
       

DISPUTED FACTS

1. The Complainant indicated to turn left and was ahead of the Defendant’s vehicle.
   
2. The Complainant turned on his left indicator.
   

100. The Defendant’s vehicle sped by and bumped into the Complainant’s vehicle.
     

FINDINGS

22. From the evidence, the first two elements of the offence are met by the Prosecution’s evidence. Here, the Defendant drove a Motor Vehicle and that he drove it on a Public Street.
    
23. The third element of driving without due care and attention is left for the Court to deliberate on.
    
24. While I appreciate the submissions on law and the duty of care, I do not agree with the submissions of Police Prosecutor Bigam who submitted that the Defence witnesses are contradictory and unreliable. Insofar as the elements of the offence of driving without due care and attention is concerned, the Defence evidence is reliable as they corroborate each other. First, all Defence witnesses testified that they were in the Defendants vehicle. Second, they all stated that they were on the outside lane while the Complainant was on the inside lane. They all stated the Defendant’s vehicle was ahead of the Complainant’s and went past the turn off into Gordons when the Complainant’s vehicle hit them at the back.
    
25. I apply the principle in the case of State v John Ekapa[2007] DC518 where His Worship F Manue, when dealing with this offence held that driving with due care and attention has two aspects. First, the driver of a motor vehicle on a public street has the duty to take control of the mechanical and electrical devices in his vehicle such as horns, indicators (signal lights), lights, steer, gear and brakes, etc in a way that ensures that the safety of his vehicle as well other vehicles, pedestrians and other road users. Second, serious attention must be given to the use of these devices so that the safety of others is not compromised.
    
26. This principle was applied in the case of Police –v- Enoch Apami [2020] WTC 834 Unreported where it was found that the Defendant took all necessary steps to use the electronic devices in his vehicle to ensure his safety and the safety of others while the Complainant did not do that. The Defendant was found not guilty in that case.
27. As stated in the case of Police –v- Enoch Apami, the duty to drive with due care and attention operates both ways. While the Defendant is charged with that duty, the Complainant must also exercise due care and attention while driving.
28. I find from the evidence that the Complainant was at fault in this matter. I accept the evidence of the Defence because they corroborate. Here, there is overwhelming evidence that the Complainant was in the inside lane. He did not have the right of way. He should have waited and put out his left indicator. In this case, the evidence show that the Complainant did not put on his left indicator but put on his right indicator and then sped up and turned left. The Defendant’s vehicle was 3 quarters of the way past the turn of into Gordons when it was hit at the back by the Complainant’s vehicle.
29. There is nothing from the Prosecution to challenge and or discredit the evidence from the Defence.
30. I find it difficult to believe the Complainant’s story because the rear mirror is used for assisting the driver to look through the rear window and see vehicles behind it. In our case, the Defendant’s vehicle was not running behind him. He was on a different lane. The Complainant had a duty to assess when it is safe to cross into the outer lane. A careful driver in that lane would have put on his left indicator and waited for oncoming vehicles to pass or give way before he switches lanes because he did not have the right of way. This did not happen in our case. The Complainant put on his right indicator but suddenly turned left and ran into the Defendant’s vehicle.
    
31. The evidence from the Defence showed that the Defendant had the right of way and that he was driving at a reasonable speed of 50-60 kilometres per hour. This was never challenged by the Prosecution during trial.
    
32. Also, I fail to believe the Complainant’s story that it was the Defendant who sped up and caused the accident. This is because the accident happened at the back of the Defendant’s vehicle on the outside lane. I find that the Complainant was at fault as he drove into the Defendant’s vehicle without taking reasonable steps to ascertain that the left/outside lane was free and possible for him to cross over.
33. I therefore find that the Defendant drove with due care and attention.

CONCLUSION

34. I find that the Prosecution failed to prove their case beyond reasonable doubt. Therefore, the Defendant did not drive without due care and attention.
    

COURT ORDERS

35. The following are the formal orders of the Court;
    1. The Defendant is found not guilty.
    2. The Defendant is acquitted and discharged.
    100. The Defendant’s bail money of K 500 be refunded forthwith.
         

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: Public Solicitor