Police v Yamo [2021] PGDC 27; DC5083 (3 May 2021)

DC5083

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 745-750 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

RICKSON YAMO
[Defendant]

Paul P. Nii

3^rd May 2021

TRAFFIC OFFENCE: -Obstruction to traffic flow - s 31(2), Without due care and attention – 28(2)(a), and Fail to comply with Lawful instructions – 33(a) - Road Traffic Rules-Road User Rules 2017

TRAFFIC OFFENCE- Trial- No Case to Answer Submission- Principles of no case submission discussed and considered. Only police evidence Available-Defense evidence pending-No case submission fall shot- Dismissed.

PNG Cases cited:

The State v Roka Pep [1983] PNGLR 283

Overseas cases cited:
Nil

References

Legislation
Road Traffic Rules – Road User Rules 2017

Counsel
Police Prosecutor: J Wamuru For the Informant
L Aigilo For the Defendant

RULING ON CASE SUBMISSION

03^rd May 2021

INTRODUCTION

1. NII, P: The Defendant pleaded not guilty to the charges of Obstruction to Traffic flow contrary to section 31(2), Without Due care and attention contrary to section 28(2)(a) and Fail to comply with lawful instructions contrary to section 33(a) of the Road Traffic Rules – Road User Rules 2017.
   
2. On 29^th April 2021, Defense made a no case submission at the close of Prosecution’s case.
   

FACTS

3. The following accounts of events are derived from the police information:

3.1 Police allege that on the 20^th day of August 2020, the Defendant while driving on a communal road committed the following traffic violations,

1. Obstruction to traffic flow
2. Without due care and attention

100. Fail to comply with lawful instruction
     

4. Defendant was subsequently arrested, interrogated and charged for the respective allegations.

ISSUE

5. The issue subject to the court’s deliberation is whether the Defendant has no case to answer?
   

THE LAW

The Law on the no case to Answer submission

6. The Defendant has not cited any applicable Laws to support his submission for a no case to answer. Nevertheless, it is the court’s vital duty to ensure that justice should be fairly delivered and hence in its own wisdom cited the case of Roka Pep v the State (No.2)[1983] PNGLR 287. This case delivers the Law on a no case to answer and the principles are:
   

‘Where there is a case to answer but the judge is of the view, on the facts, that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission’.

“It involves a question of fact, the court being asked to weigh the evidence, find guilt not proved beyond reasonable doubt, and there and then acquit. I think that the general principle that the court should not weigh up the evidence until the whole of the evidence is in, points to this submission not being entertained except in what is very clearly a hopeless case, where the state case is intrinsically very weak, or has collapsed badly. It would be the sort of case where the court itself would be considering acting on its own initiative, to stop what amounts to a waste of its time and public money” (emphasis added)”.

Section 31(2) of the Road Traffic Rules-Road User Rules 2017:

31 OBSTRUCTION OF TRAFFIC

(2) A person must not cause or permit a vehicle to stand on a public street in such a position as to obstruct traffic or unreasonably cause inconvenience to any person.

Section 28(2)(a) of the Road Traffic Rules-Road User Rules 2017:

28 GENERAL DRIVING RULES

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

(a) drive without due care and attention;

Section 33(a) of the Road Traffic Rules-Road User Rules 2017:

33 STOPPING AND REPORTING IN CASE OF ACCIDENTS.

Where injury or damage is caused to a person or to an animal or vehicle in the charge of a person because of an accident in which a motor vehicle is concerned, the driver of the motor vehicle must–

(a) stop his or her vehicle;

7. The court should carefully deliberate on the elements of each of the charges.
   

ELEMENTS

Obstruction to Traffic Flow- Section 31(2) of RTR: -

7.1 A person,
7.2 must not cause or permit a vehicle to stand,
7.3 on a public street in such a position ,
7.4 to obstruct traffic or unreasonably,
7.5 cause inconvenience to any person.

Without due care and attention – Section 28(2)(a) of RTR

7.6 The driver,
7.7 of a motor vehicle,
7.8 on a public street,
7.9 must not– drive without due care and attention

Fail to Comply with lawful instructions – Section 33(a) RTR

7.10 Where injury or damage is caused to a person or to an animal or vehicle in the

charge of a person

7.11 because of an accident in which a motor vehicle is concerned,
7.12 the driver of the motor vehicle must–stop his or her vehicle

DISCUSSION

8. At the close of Prosecution case Mr Aigilo for the Defence Made a No Case to Answer Submission. Defense Lawyer argued that police evidence does not correspond to the elements of the charges against the Defendant and henceforth there should be a no case to answer. Mr Aigilo submits that the roundabout next to Boroko market and National Football stadium where the allegation against the Defendant has alleged to have occurred has no proper traffic lights that would regulate the flow of traffic given any time. Defence submits that there are no appropriate speed limits at the road of allegation but the Defendant was travelling at an affordable speed limit. Lawyer for the Defendant submits that the Defendant has compiled with the police officers instructions at the time of commotion and did not infringe any traffic rules and hence there should be a no case to answer.
   
9. Nevertheless, Mr Wamuru for the prosecution submits that there is sufficient evidence against the Defendant. Police says all the elements of the charges have been established by the state witness and therefore the Defendant has a case to answer and subsequently trial should continue. Prosecution submits that there is sufficient evidence to warrant a trial proper. Prosecution says the Defendant has violated traffic rules and hence only after completion of a proper trial would determine the case on its merit.
   
10. I have considered oral submissions by the Defense and Prosecution for a no case submission. The qualification for a no case to succeed is provided in the famous case of Roka Pep v the State (No.2)[1983] PNGLR 287, but before that is measured, the landscape of the remedy sought should be established to ascertain its genesis and that is to define the term “ no case to answer” by the Defendant.
    
11. At the conclusion of the prosecution's case during a criminal trial, the accused could submit to the court that there is a no case for the defendant to answer. If the court agrees, then the matter is dismissed and the defendant is acquitted without having to present any evidence in their defence. If the court does not agree to the submission, the case continues and the defence must present their case.
    
12. The qualifications pronounced in the Roka Pep case should be met if the case was to qualify for a no case submission. After close of State case, the court must be of the view that the “prosecution case will not improve”, or “the prosecution case is hopeless or intrinsically weak”, then the court has the discretion to acquit the Defendant. However, if the Defense is not weak or if the evidence presented by the prosecution is credible then trial will continue for the defense to present their side of the story until a decision is reached.
    
13. Prosecution has opened and closed their case with evidence provided to the court through Michael Irai, Robert Mabona and Kerry Palme, they are policeman employed by Royal Papua New Guinea Constabulary. They all gave evidence against the Defendant and the court records their evidence during trial. What I have before me is an allegation constituting the Police versus the Defendant in which I have Prosecution evidence but not from the Defendant.
    
14. The qualification in the Roka Pep case is relevant only if State evidence does not encompass any merit of the allegation or State failed to establish the elements of the allegation(s). In this case before me, State has given evidence and closed their case but Defense is yet to. In the absence of the Defense evidence, the court cannot rule out the merit and credibility of Prosecution evidence. The strength of the evidence is tested only when evidence from all parties are measured and considered. When applying the qualifications in the Roka Pep case and in absence of Defense evidence I will not rule that Prosecution evidence as weak or lacks credibility to succeed.
    
15. In the absence of the defense evidence there is merit in the Prosecution evidence and the evidence is really strong, Prosecution has established some elements of the allegation. However, the strength and quality of all evidence and those elements will be determined after prosecution and Defense close their cases. As a court I should remind myself that this is only a determination of evidence and not facts. It is my ruling of a No case to Answer submission based on evidence before me and not facts. I have not considered the facts of the allegations. Evidence based on facts should be determined after completion of the whole trial. I am therefore of the view that trial must continue so that Defense shall call its witness. Unless I hear evidence from both sides, I refuse to exercise my discretion to acquit the Defendant at this stage.
    

CONCLUSSION

16. It is the court’s view that in order for a proper and just outcome, trial must continue so that the Defendant’s evidence should be properly assessed with the facts against prosecution evidence and a just and fair decision based on evidence is reached.
    

ORDER

17. The following are the court’s Orders:
    
    1. No case submission by the Defendant is dismissed,
    2. The Defendant be put on trial,
    100. Trial shall continue
         

Gibson Bon Lawyers For the defendant
Police Prosecutor For the State