Police v Yamo [2021] PGDC 57; DC6012 (31 May 2021)

Papua New Guinea

DC6012

[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

31^st 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- Assessment of evidence-Elements of the offence-Strict rule of evidence not quite appropriate.

PNG Cases cited:

Police –v- Enoch Apami [2020] DC5061 WTC 634 of 2020, 24.12.2020, (unreported)
Police v Kaupa [2021] PDGC 2; DC5044 (14 January 2021)

Overseas cases cited:
Nil

REFERENCE

Legislation
Road Traffic Rules – Road User Rules 2017
Road Traffic (Offences and Penalties) Regulations 2017

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

RULING ON VERDICT

31^st May 2021

INTRODUCTION

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.

Defense closed their case on 3^rd May 2021 after Prosecution closed their case on 29^th April 2021. It was a drawn-out (lengthy) trial that took me almost a week to complete. Prosecution called in three (3) witnesses and Defense called in two (2) witnesses, all gave subjective testimonies’ of what they observed on the date of accusation against the Defendant.

FACTS

1. The Defendant is thirty four (34) years of age and comes from Andira village in Koroba- Kopiago District in the Hela Province. He is married with two (2) children and he is presently the PNG’s World Kickboxing federation (WKF) champion for two (2) times. The Defendant is self -employed and presently residing at Hohola in NCD.
   
2. Defendant was arrested by Police on 20^th August 2020 for a total of six (6) offences, three (3) under the summary Jurisdiction and three (3) under the traffic Jurisdiction. For the determination of this court’s jurisdiction, it has overseen all the three (3) traffic offences against the Defendant. These offences are Obstruction to traffic flow, without due care and attention and fail to comply with lawful instruction.
   
3. Defendant was refused Police Bail after arrest and on 20^th August 2020 though NiuAge Lawyers filed a bail application at the Waigani District Court and bail was allowed on 21^st August 2020. Bail was for all the offences but after the permitting of bail, the offences under summary jurisdiction were transferred to Boroko Summary Court and Traffic at Waigani District Court.
   
4. Defendant’s case was first mentioned on 21^st September 2021 and on the 2th September 2020, Defendant changed his legal representation from NiuAge Lawyers to Gibson Bon Lawyers. On 2^nd November 2020, Defendant’s matter was mentioned in court but neither him nor the Prosecutor was present in court. Defendant was arraigned on 3^rd September 2020 and his next mention was on 21^st September 2020. The matter was adjourned for several times until trial was conducted on 28^th April 2021 and trial ended on 3^rd May 2021 followed by is my ruling on verdict.
   

ISSUE

5. Whether or not the Defendant is guilty for the three traffic offences of Obstruction to Traffic Flow-31(2) RTR, Driving without due care and attention-28(2)(a) RTR and Fail to Comply with lawful instructions- 33(a) RTR?
   

THE OFFENDING LAW

6. Defendant is arrested and charged under the Road Traffic Rules –Road User Rules 2017 and its offences and Penalties are established under the Road Traffic Regulations 2017. I have stated the law as presented below:
   

28 GENERAL DRIVING RULES

(2) The driver of a motor vehicle on a public street must not–
(a) drive without due care and attention

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.

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

EVIDENCE

State witness

Michael Rai

7. Michael Rai is a regular member of the Policeman involved with Public Safety and is based at Boroko Police Station. He has informed the court that he has 39 years of service to Royal PNG Constabulary and at the time of the occurrence encompassing the Defendant, he was on 7am to 3pm duty and was traversing around his scheduled locations covering the Gordon’s and Boroko zones. Mr Rai informed the court that at around 8,30am he was travelling from Gordons and was going pass the five mile united church along the Boroko drive to five mile roundabout when he marked the Defendant. The witness said Defendant car was tinted and was driving very slowly at 30 - 40 km/h and hence hindered the moment of entire traffic flow which took the same lane as the Defendant. Witness says Defendant was on his mobile phone and calling someone which triggered the interruption in the traffic flow.
   
8. Mr Rai informed the court that Police were trying to stop the Defendant’s car to query about the motives why he was driving slowly but the flow of traffic didn’t permit. The court was told that Defendant turned right at the five mile roundabout and was driving west along the Hubert Murray Highway towards Boroko way until he was pulled over by police near the Jack Pidik park and police walked out of their car and went over to the Defendant’s car to ask him about his actions that delayed the flow of traffic along the Boroko drive. Mr Rai said as policemen were about to ask him, he walked out of this car and questioned the police men and swore at them. Mr Rai says the Defendant probed their roles as policemen by communicating in the pidgin word as “Yu pela wokim wok stret, corrupt polis” which is best translated in the English language as “ policemen should discharge their duties in line of their roles, corrupt police” (end of quote).
   
9. Witness said subsequently Defendant was requested by Policemen to drive direct to Boroko Police station but he instead drove up Hubert Murray Highway and turned left and drove towards Boroko Market and National Football Stadium along the Hagwa Street until the Defendant’s car was blocked off by police at the Hagwa street. Kerry Palme a police Constable who was in the police car came out to dialogue with the Defendant but Defendant punched him and said why police were bumping his car. Witness says when Kerry Palme was attacked by the Defendant; a reinforcement unit of the Police came to the Policeman’s liberation. Witness says Defendant’s behavior was not obliging to police manifestation and their duties towards the Defendant’s engagements.
   
10. Mr Rai said the Defendant was later taken to Boroko Police station. Witness said the Defendant’s car was bought by the Prime Minister, a testament from the Defendant. This witness says the Defendant is a sports person and was with someone in his car. Witness says Defendant refused to offer his license to the police when he was requested to do so. Witness says when police blocked off the Defendant’s car, his drive way was constrained and narrowed such that he would not drive out. Nevertheless, Defendant reversed his car and bumped on the police vehicle and damaged his vehicle.
    
11. During cross examination, the witness maintained his evidence but the Defendant says the witness did not see him inside the car because his window was up. The Defendant refutes State witness’ assertion that the Defendant was on a phone call and that caused the normal interruption in the traffic flow.
    

Robert Mabona

12. Mr Mabona is the second state witness and he was also part of the policeman that travelled with the first state witness. This witness’ statement is same as the first State witness in most aspects and regards. This state witness says when the Defendant was pulled over he came out of his car and uttered unfamiliar conducts which were ferocious and precarious in nature. The witness says he branded Police as “corrupt policemen” or an expression of a person that abuses entrusted power for personal gains. Witness says Police were hesitant to deal with the Defendant because they were unaware of his comportments, personalities and background.
    
13. Witness says, the Defendant came out of his car and threw punches with the Police vehicle’s driver. Witness says since police could not handle the Defendant’s behavior, police reinforcement was requested which came and took the Defendant to Boroko police station.
    

Kerry Palme

14. Mr Palme is the Third state witness. He is the one who was driving the police vehicle that was roosted for 7am – 3pm duty. This witness statement is uniform to the other state witness. The Defendant was driving very slowly at 20 - 30 km/h which produced the traffic to slow down. State witness says the Defendant was on his phone and his window was down. He said the Defendant was asked to pull over by Police because he was driving very slowly and instigating traffic congestion. Witness says when he went to comfort the Defendant since his behavior was destructive and violent, Defendant swore at him in the pidgin language as I quite “yo pela kai kai kan na wok gud” which is translated in English as “Policemen to eat woman’s vagina and do their police duties conscientiously”. Mr Palme says, when he walked over to the Defendant to ease and determine the reasons for his behaviors, he over reacted and punched the state witness and he fell to the ground. Mr Palme says he was punched by the Defendant three (3) times.
    
15. Witness says, Defendant was not corporative with Police and his behavior was so aggressive. Police got the Defendant’s license but Defendant pulled his license back from the Police hands and refused to hand over his license when requested and also did not go straight to Boroko police station as demanded by Police at the time when he was pulled over near Jack Pidik park along the Huber Murray highway. Witness says when he was blocked off again he decided to reserve his car and that was how he bumped his car, he says Defendant bumped his car with Police car and not police bumped his car.
    

Defense witness

Rickson Yamo

16. Mr Yamo is the first Defense witness and he is the Defendant. Defendant says he was driving from Hohola towards City Boutique along the Lahara Avenue. He says when he was approaching Boroko Drive before going the five mile roundabout the traffic flow was very busy and hence was travelling at 14-20 km/h, traffic was awfully busy which it was obvious from the nearby pedestrians and commuters. He says while he was still travelling, police vehicle came at the back and sounded their horn gesturing for him to stop. Witness says he had his car window up and turned his vehicle right at the five mile roundabout and drove west long the Hubert Murray highway heading towards four mile way.
    
17. Defendant says he went and stopped his car near the Jack Pidik park along the Hubery Murray Highway and walked out, while he was out the policeman demanded his license. The Defendant’s uncle who was with the Defendant in the car told the Defendant to give Policemen some money so that they would let them go without being charged. However, Defendant says he refused to honor his uncle’s request as he deemed that was not proper. Defendant says the driver of the vehicle was under the influence of liquor.
    
18. Defendant says his intention was to drive to City Boutique first then to Boroko Police station since he had to drop off his uncle with him in the car who was to attend a meeting. Nonetheless, Police drove in full speed and bumped his car which socked him and he came out of his car. The witness says he then came out of his car and asked police why they bumped his car but they did not say anything. Defendant further says he was pulled out to the street and was badly assaulted by members of Police reinforcement. Defendant says even though he was bitten up by police he did not fight back.
    
19. Defendant says he represented PNG in the sports of Kickboxing for the past 19 years and his family is currently living in Australia. He says he visited 26 countries by representing PNG in the sports. As a sports person he says he respected police duty and corporated with them.
    
20. During cross examination witness maintains that he was not on the phone and was travelling with the flow of traffic because it was in a morning and the traffic along Boroko drive towards five mile roundabout road was very busy. Defendant also claims that Police were under the influence of liquor. However, Police Prosecutor refutes the Defendant’s assertion and claims he was on the phone and that initiated the delay in traffic.
    

Andria Wabiria

21. Mr Wabiria says he was in the car driven by the Defendant along the Boroko drive to five mile roundabout heading right to Hubert Murray high way. This witness says, when the Defendant pulled over near Jack Pidik Park, police came and stopped their vehicle at the back of Defendant’s car. Witness says, the policeman who was sitting on the off side to the driver opened the door and came towards the Defendant’s car and demanded for the license. This witness says, Police demanded the Defendant for money before he may let them drive away. Witness says he smelled alcohol in the Policeman who was demanding for money and also says he saw a policeman throwing empty bottle of alcohol out of the police vehicle.
    
22. On cross examination, Defendant says he is the Defendant’s uncle and the Defendant was driving from Hohola to City Boutique hotel to drive him off for a meeting. Defendant says he heard State witness Kerry Palme swearing at the Defendant.
    

ELEMENTS

23. The facts and evidence presented by Prosecution must all meet the elements of the respective offences to establish their case. Elements of the offences play an important role in the administration of criminal justice. In order for an offence to transpire, there should be two (2) leading elements and these are the forbidden behavior and the elements of intention or the guilty mind. Since this is a traffic offence and it’s governed by the Road Traffic Rules where its penalties would differ from serious or indictable offences, for the purpose of determining elements in the current case, I will look into the prohibited behavior than the intention. I have all the three(3) charges labeled as follows:
    

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

1. A person,
2. must not cause or permit a vehicle to stand,

100. on a public street in such a position ,

4. to obstruct traffic or unreasonably,
5. cause inconvenience to any person.
   

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

1. The driver,
2. of a motor vehicle,

100. on a public street,

4. must not– drive without due care and attention
   

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

1. Where injury or damage is caused to a person or to an animal or vehicle in the
2. charge of a person

100. because of an accident in which a motor vehicle is concerned,

4. the driver of the motor vehicle must–stop his or her vehicle
   

EVALUATION OF THE EVIDENCE

24. Prosecution’s case was unvarying all through the trial. Policemen Michael Rai, Robert Mabona and Kerry Palme maintained that the Defendant was driving very slowly and hence disturbed the normal traffic flow along the Boroko drive heading towards five mile round about. They said the Defendant was travelling at 30 -40km/h. Defendant also says he was driving slowly because the traffic was busy. From the evidence presented in court I find that the Defendant was driving slowly because of the traffic along the Boroko drive at the prime part of the morning (7.30am -9am) where people including parents drive off their children to school and work people drive to work. State evidence despite being credible and consistent is not supporting the court because there is no exhibit before me to heighten the assertion that Defendant was unreasonable driving slowly that is; I do not have any evidence before me that the slowness in the Defendant’s driving was caused by him taking phone calls or making phone calls while driving on the road and moreover there are no accurate speed limits along the roads.
    
25. There is evidence from Defendant and Police that the Defendant was pulled over along the Hubert Murray Highway near the Jack Pidik Park. I accept Police evidence that Defendant was asked to produce his license which he did and later took it back. This part of the evidence is consistent with Defendant himself testifying same. I also accept police evidence that the Defendant was asked to drive direct to Boroko Police station from the location of pull over near the Hubert Murray Highway but instead turned left and drove direct towards Boroko Market and National Football Stadium along the Hagwa Street where he was blocked off by members of the police unit. I accept evidence form Police that Defendant violated lawful instructions from Police.
    

UNQUESTIONABLE PARTICULARS IN THE CASE

26. I have assessed all the evidence and found out the following are unquestionable facts:
    
    1. The Defendant was the drive of the said vehicle which was alleged to have caused the delay in the traffic flow,
    2. Defendant was driving slowly and hence it caused the attention of the Police which then led to him being arrested and charged,
    100. Defendant was travelling with his uncle as the lone passenger in the car
         

QUESTIONABLE PARTICULARS IN THE CASE

27. The following facts have been disputed by Police and Defendant;
    
    1. Defendant was on the phone while driving,
    2. Defendant and police swear at each other,
    100. Police were drinking alcohol and demanding the Defendant for money.
         

DETERMINATION

28. I have assessed evidence presented in court and satisfied that Prosecution has met the first elements of the allegation and that is the Defendant was driving a vehicle and that vehicle was driven on a public road. Nevertheless, that does not qualify to place the other elements on the same perspective, the court will hereafter query deeper to inaugurate these elements.
    
29. Firstly, on the issue of obstruction to traffic flow, I have read the evidence and satisfied that although the Defendant was driving his car on a public road, his conduct at the material time was owed to the traffic congestion along the road and hence I find that the Defendant’s action was not unreasonable and did not cause any inconvenience to any person. Most roads in NCD have no proper speed limits. Neither the Police nor the Defendant told the court the exact speed limit along the Boroko drive from Courts round about to five mile around about. In the absence of such, I will accept evidence from Defendant that he was driving slowly because of the traffic or the movement of his vehicle was determined by the movement of traffic before his vehicle.
    
30. Secondly, on the issue of driving without care and attention, I would like to adapt the principle applied in Police v Kaupa ^[1] that driving with due care and attention is a two way thing. His worship Tanei said both the Defendant and Police have a communal duty to the road, they both should drive with care and attention and hence the duty of care is owed to each other. Although the Law places an obligation on the Defendant to drive with due care and attention, all other users of road should also take reasonable steps to avoid any foreseeable danger forthcoming. The duty of care is a communal obligation that is owed to all road users including drivers and pedestrians.
    
31. Although Police says the Defendant bumped his car with the Police vehicle when he was blocked off by members of Police, the Defendant’s conduct at the material time was triggered by Police when police blocked off the road. Therefore, I will not accept the evidence that Defendant was driving without due care and attention thereby bumping his car.
    
32. Lastly, the Defendant was instructed by Police to drive direct to Boroko Police station after he was stopped along the Hubert Murray Highway near the Jack Pidik Park. The Defendant did not drive direct to Boroko Police station but instead turned left at drive all the way along the Hagwa street towards Bisini parade until he was blocked off by Police. I find that the Defendant was blocked off because he did not obey lawful instructions from police to drive direct to Boroko Police station. Boroko Police station is situated between Angau drive and Okari street, it is not towards Bisini parade and Lahara avenue. Defendant in his evidence says he did not drive to Boroko Police station because he was to drive off his uncle at City Boutique for a meeting. Although the Defendant’s evidence may be quite permissible, I will not accept this evidence because he was already directed to go to Boroko Police station. However, when he drove direct to Bisini parade, his conducts in its self-breached what police told him at the pull over along the Hubert Murray highway. Therefore, I will take the Police evidence that Defendant disobeyed Lawful instructions.
    
33. I have assessed evidence conforming to all the three(3) charges and I have arrived at the following supposition:
    

NO	CHARGE	VERDICT
1	Obstruction to Traffic Flow - (31)(2) RTR	No Guilty
2	Driving without due care and Attention -(28)(2)(a) RTR	Not Guilty
3	Fail to Comply with lawful instructions- (33)(a) RTR	Guilty

CONCLUSSION

34. After arriving at the conclusion, I find that the Defendant is not guilty for the charges of Obstruction to Traffic and Driving without due care and attention but I find the Defendant guilty of the charge of failing to comply with Lawful instructions.
    

ORDER

35. The following are the Orders of the Court:
    
    1. Defendant is not guilty for the charges of “Obstruction to Traffic Flow” and “Driving without Due care and Attention”. Defendant’s bail money of K1000 for the dismissed charges is refunded.
       
    2. Defendant is guilty for the charge of “Fail to comply with lawful instructions”.
       
    100. Matter is adjourned to 1^st June 2021 at 9.30am, for decision on penalty for the guilty charge.
         
    4. Guarantors’ surety shall be refunded after decision on penalty.
       

Gibson Bon Lawyers For the defendant
Police Prosecutor For the State

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^[1] [2021] PDGC 2; DC 044 (14 January 2021)