Police v Popna [2021] PGDC 71; DC6026 (16 June 2021)

DC6026

Papua New Guinea

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

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 80 OF 2021
CB NO 786 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

TIMOTHY POPNA
[Defendant]

His worship Paul P Nii

16^st June 2021

TRAFFIC OFFENCE: - Having a Load Projecting in excess - s 34(1) - Road Traffic Regulations 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation of Load Projecting More than 1.5 meters without prescribed warning device-established Elements – not guilty- Dismissed.

PNG Cases cited:

Police v Naliga [2021] PGDC 55; DC6013 (31 May 2021)

Overseas cases cited:
Nil

REFERENCE

Legislation
Road Traffic Regulations 2017

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

RULING ON VERDICT

16^th June 2021

INTRODUCTION

NII, P Magistrate: Defendant pleaded not guilty to the charge of load projecting more

than 1.5 meters without prescribed warning breaching Section 34(1) of the Road Traffic

Regulations 2017.

1. Trial was conducted by this court on 7th June 2021, where Prosecution opened and closed its case followed by the Defendant and now is my ruling on verdict.
   

FACTS

2. Defendant now before this court was arrested on 15^th March 2021, for allegation

of carrying load projecting more than 1.5 meters without prescribed warning and

Therefore he was arrested, interrogated and charged. Police have summarized the

facts giving rise to the allegation in the subsequent modus:

“Did drive a motor vehicle to wit an Isuzu Dump Truck, white in color, Registration Number BFW 902 upon a public street at Waigani Drive, such vehicle having a load projecting in excess of 1.5 meters beyond the front of the vehicle between sunrise and sunset, to with the hour 12.15pm, not having affixed the projecting end a clean red flag at least 400mm long and 300mm wide.”

3. In other words, Police are alleging that Defendant was charged and arrested for the offence of having on his vehicle a load that exceed 1.5 meters and protruded beyond the limit without any prescribed warning devices regarding the access load. Police are saying the Defendant’s action of having such load poses a traffic threat and danger to the lives of other road users including drives and pedestrians.
   

ISSUE

4. Whether the Defendant’s load exceeded 1.5 meters and hence breached Section 34(1) of the Road Traffic Regulations?
   

RELEVANT LAWS

5. The offending Law in which the Defendant was arrested is under Section 34(1) of the Road Traffic Regulations. The Law is as follows:
   

Load projecting more than 1.5 meters without prescribed warning device is guilty of a crime and its penalty is a fine not exceeding K1500.

ELEMENTS

6. The elements of the offence should authenticate the allegation, nevertheless, if elements does not corroborate to the offence then the charge stands no chances of progressing. The elements of the current charge under Section 34(1)^[1] is as follows:
   
   1. The vehicle was loaded
   2. Load projected more than 1.5 meters
   100. The excess exceeds the areas of the vehicle
   4. No authorization or prescribed warning signaling to carry such loads.
      

EVIDENCE

7. I have stated in a number of cases and one such is in Police v Naliga^[2]. In this case I have demonstrated that an allegation will only be supported by evidence. Evidence plays an important role in the administration of criminal justice to ensure proper and fair decision is handed down. All collection of evidence must be supported by the elements of the offence. In the current case against the Defendant, police evidence should meet all the above elements.
   

Rita Nauauredi - Arresting officer

8. She is a traffic officer or police woman who is attached at four(4) mile traffic police. This witness identified the Defendant as the driver. State witness says, the load was long and the Defendant did not get any authorization to transport or carry such loads. Ms Nauredi informed the court that the excess load was more than 2 meters long from the front and back parts of the vehicle. State witness says she used her steps to measure the excess length. However, on cross examination, Defendant says his excess load was not more than 2 meters.
   

Timothy Popna - Defendnat

9. Defendant says, he has 28 years of driving experience and the allegation before this court is his first arrest. Defendant says his load was 8 meters long and his vehicle was 5 meters long and hence only 3 meters was the excess which when divided by 2 would give 1.5 meters excess on both sides. Defendant says, his excess load was less than 2 meters. However, on cross examination Police Prosecutor referred to the exhibits evidence and maintained that the excess loads were more than 2 meters.
   

DISPUTED AND UNDISPUTED FACTS

Undisputed facts

1. The Defendant was the driver
2. The excess load was on the Defendant’s vehicle
   

Disputed facts

1. The length/measurement of the excess load.
   

CONSIDERATION OF EVIDENCE

10. The evidences are from the Defendant and the arresting officer. The State witness says she used her foot to measure the excess load and her legs measured up to 2 meters. Witness also says the Defendant did not have a red flag on both ends of the load indicating load projecting in excess. Defendant on the other hand says, his vehicle was measure 5 meters long and his load excess was only 1.5 meters long hence it was within the excess load requirement as delivered by law.
    

RULINGS

11. I have considered evidence presented in court by both parties. Police witness did not provide to the court a standard measurement report of the vehicle and its excess load indicating how long the excess was. Nevertheless, witness only provided exhibit of load at the time of Defendant’s arrest. Police witness says she measured the excess length with her foot. Measuring of lengths by foot and toes would not give a consistent and standard measurement. A person with tall legs and height may have a different outcome in results than a person with smaller legs and heights. This means measurement by foot may vary according to the length of a person’s legs and toes or their overall height. Consequently, I will not accept evidence from Police that the excess load was more than 2 meters. The court must not be provided with assumptions and estimations.
    
12. On the other hand, Defendant says his dump truck was 5 meters long and the load was 8 meters long and hence half the difference in the load and dump truck would be the excess load. Defendant also did not provide to the court the exact and verified measurements of the excess and the length of his vehicle. I have evidence to believe that the Defendant estimated the excess load length and the vehicle. Therefore, I will not take evidence from Defendant that the excess load was less than 2 meters long.
    

CONCLUSSION

13. Both the Police witness and Defendant are confusing the court with evidences which are not reliable and verified to be proper evidence. I refuse evidence from both parties, the Police and Defendant as they are have not verified and standardized their evidence to be recognized and considered as proper evidence for purposes of this allegation. For this motivation, there is no case before me. All evidences are defective and unreliable.
    

ORDERS

14. I make the following orders:
    
    1. Defendant found not guilty
    2. Matter is dismissed and Defendant discharged.
    100. Bail money is refunded.
         

In person For the defendant
Police Prosecutor For the State

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^[1] Road Traffic Regulations 2017
^[2] [2021] PGDC 55; DC6013 (31 May 2021)