Police v Kuleko [2021] PGDC 67; DC6022 (7 June 2021)

DC6022

Papua New Guinea

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

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 40-41 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

JOE KULEKO
[Defendant]

His worship Paul P Nii

07th June 2021

TRAFFIC OFFENCE: - Without Due care and Attention - s 28(2)(a) – Unregistered Motor vehicle - s22(1)(a) - Road Traffic Rules-Road User Rules 2017- trial on the former charge-later charge-plead guilty.

PNG Cases cited:

Police- v Tau Naliga [2021] PGDC; (Unreported)

Overseas cases cited:
Nil

REFERENCE

Legislation
Road Traffic Rules 2017

Counsel
Police Prosecutor: J Wamuru For the Informant
In person For the Defendant

RULING ON VERDICT

07^th June 2021

INTRODUCTION

NII, P Magistrate: Defendant was charged with two traffic offences, he pleaded not guilty to the first charge of Driving without due care and Attention subsequently infringing Section 28(2)(a) of the Road Traffic Rules-Road User Rules 2017. However, he pleaded guilty to the charge of unregistered motor vehicle contravening section 22(1)(a)-RTR. Trial was conducted by this court on the 1^th June 2021 where Prosecution opened and closed its case followed by the Defendant and now is my ruling on verdict

FACTS

1. Defendant was arrested by police on 29^th January 2021, for two different types of Traffic offence under the Road Traffic Act. Police have captured the facts of the allegation into their information in the resulting features:
   

“Being the Driver of drive of a Motor vehicle to wit a Nissian Navara, Registration number BEJ 650 upon a public street towit Batabudi street, did drive the said motor vehicle without due care and attention towit driving onto appositive lane and causing collision”

2. On 24^th January 2021, Defendant was driving up from Giung street towards the roundabout that intersects Matabudi street from Morata road. The Complainant was driving off the roundabout and was going uphill back road on Giung Street to 17 mile to drop off a passenger. The Defendant’s car and the Complainant’s vehicles bumped on Giung road just few meters out of the roundabout. It was alleged the Defendant was driving without due care and attention and was driving a vehicle without any license and subsequently he was arrested and charged for the two offences and he is now before this court on bail of K1000.
   

ISSUE

3. Whether the Defendant was driving without due care and attention thereby causing accident on the Complainants car?
   

RELEVANT LAWS

4. The offending Laws subject of allegation is established under Section 28(2)(a) and Section 22(1)(a) of the Road Traffic Rules, as in the succeeding terms:
   

22 DRIVING AN UNREGISTERED MOTOR VEHICLE

(1) Subject to subsection (2) of this Section, a person must not–

(a) drive an unregistered motor vehicle on a public street

28 GENERAL DRIVING RULES

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

(a) drive without due care and attention;

5. I have stated in the traffic matter of Police- v Tau Naliga^[1] that a charge is a mere allegation until substantiated with evidence and hereafter I should inaugurate the elements of the offending charge to establish whether there is merit in the allegation against the Defendant. In the case I have established the elements of the offence of driving without due care and attention as follows:
   
   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.
        

EVIDENCE

6. In the same case I have pointed out that “A more and comprehensive material to the realities is though witness from the Prosecution and Defense who came to the court to give evidence. An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”.
   
7. There were only two witness called to give evidence in the case and they are the Complainant and the Defendant or the accused.
   

Telex Alo ( victim/Complaint)

8. This is the State’s first and only witness; he was the driver of the victim car. This witness says he is a taxi driver and he went to drive off a passenger at 17 mile out of Port Moresby when he was bumped by the defendant. Witness says he spotted the Defendant’s vehicle few meters after he turned left at the round about that intersects Matabudi street from Morata road and Giung road that leads to back road and mile area.
   
9. Witness says the defendant was driving a Nissan Navara and was driving on high speed towards his lane. Complainant says he saw the Defendant’s vehicle on his side and he signaled with horn and also indicated thorough his park light for the defendant to go to his lane but the Defendant was driving too close. Complainant said that in order to avoid his vehicle from being bumped by the Defendant, Complainant changed his lane and drove away to the Defendant’s lane but he was too late. Complainant says Defendant drove on high speed and bumped the left-hand side of his car. State witness says the force form the impact was so much that his car was pushed towards the Defendant’s lane and it swerved out of the road. Complainant says Defendant was driving at a speed of 100-120km/h.
   
10. Witness says police personnel came and took the Defendant to Waignai police station on the date of accident but was arrested and charged by Boroko Traffic Police on the 29th January 2021. On cross examination defendant says he did not travel on 100 km/h and denied that he was speeding.
    

Joe Kuleko (Defendant)

11. Defendant says he was travelling from Giung street back road down towards the round about that intersects Matabudi Street from Morata. Defendant says he was on his lane and did not speed but the Complainant was driving towards his lane and bumped his car. Defendant says he was shocked that his vehicle was bumped by the Complainant. On cross examination, Prosecutor said the Defendant was not on his lane at the time of accident but Defendant denied that he was travelling on his lane and the Complainant came and bumped his vehicle.
    

REFLECTION OF EVIDENCE

Defendant says he was not travelling on high speed. Complainant says, Defendant was travelling at 100 -120 km/h and was travelling on high speed. From the aftermath degree of impact presented by the vehicles from the exhibits shown in court, I accept the Defendant’s evidence that he was not travelling at 100km/h but was travelling at some miles per hour less that that but more than 40 km. This means, Defendant was driving along the Giung Street but was travelling at an average speed between 50 and 80 km/h at the time of accident.

Complaint said the Defendant was on his lane and Defendant denied that he was on his lane. After assessing the exhibits presented in court am convinced that the while trying to avoid being bumped by the Defendant, he changed lane to the Defendant’s lane and hence how his left side was damaged. I will accept the Complainant’s evidence that the Defendant was travelling on the Complainant’s lane.

As to the issue of drive an unregistered motor vehicle, upon plea of guilty by the Defendant, that in itself is sufficient to warrant a penalty which shall come with the outcome of the charge on due care and attention.

DISPUTED AND UNDISPUTED FACTS

Undisputed facts

1. The Defendant was the driver of the vehicle.
   
2. The Defendant drive an unregistered motor vehicle.
   

Disputed facts

1. The Defendant was at driving at high speed.
   
2. Defendant was on his lane.

.

RULINGS

12. Although I accept evidence from the Defendant that he was not traveling at 100 km/h, I have evidence to persuade myself that he average speed less than 100km/h down the slope towards the roundabout on Giung street was momentous enough to cause damage on the Complainant’s car. Moreover, although the Defendant says he was on his lane, the exhibit evidence of the impact on the left side of Complainant’s car shows that the Complainant when trying to avoid being bumped by the Defendant was driving towards the Defendant’s land and subsequently got bumped.
    
13. I accept evidence that Defendant was driving without due care and attention on a vehicle that was not registered, which the Defendant drove on a public road and thereby caused the accident.
    

CONCLUSSION

14. The evidence presented before this court by the Police informant demonstrates that the Defendant was driving on the wrong lane while on a vehicle that was not registered and thereby drove without due care and attention thus caused the accident.
    

ORDERS

15. I make the following orders:
    
    1. Defendant is found guilty for the offence of unlawful driving without due care and attention pursuant to Section 28(2)(a) of the Motor Traffic Rules.
    2. Defendant is found guilty for driving an unregistered vehicle pursuant to Section 22(1)(a) of the Road Traffic Rules.
    100. Matter is adjourned to 8^th June 2021 @ 9.30 am for ruling on Sentence.
    4. Defendant’s bail extended.
       

In person For the defendant
Police Prosecutor For the State

---

^[1] [2021] PGDC 55 (Unreported),