Police v Nulai [2021] PGDC 75; DC6030 (28 June 2021)

DC6030

Papua New Guinea

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

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 1152 OF 2021
CB NO 1379 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

RAPHAEL NULAI
[Defendant]

His worship Paul P Nii

28^st June 2021

TRAFFIC OFFENCE: - Driving without due care and attention - s 28(2)(a) –Road Traffic Regulations

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation-Elements of the offence met-Defendant is guilt for the offence of Driving without due care and attention - charge sustained with evidence.

PNG Cases cited:
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)

Overseas cases cited:
Nil

References

Legislation
Road Traffic Rules-Road User Rules

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

RULING ON VERDICT

28^th June 2021

INTRODUCTION

NII, P Magistrate: The Defendant pleaded not guilty to the charge of Driving without due care and attention under section 28(2)(a) of the Road Traffic Regulations.
.

1. Trial was administered on the 18^th June 2021, and now is my ruling on verdict.
   

FACTS

2. The Defendant is identified by police as aged 56 years of Yani village in the Gumini District of Simbu Province.
   
3. Defendant was arrested by police on 17^th February 2021, for the above offence. Police say the Defendant while being a driver of a motor vehicle where its description is a Mazda NPR truck, with the registration No. BER 070. Police allege the Defendant was driving on a public street at Cobon street and the vehicle was driven without due care and attention and bumped the victim and subsequently he was arrested and charged for the offence of driving without due care and attention under Section 28(2)(a) of the Road Traffic Regulations. There are three (3) witnesses from Police and Defendant being the lone witness.
   

Police evidence

Matha Hikikia(victim)- Police witness

4. This is the first State witness and she identified the Defendant. She is the victim and she says on the date of allegation she was coming out from the AOG Cornerstone church ground at Gordon’s to buy flex card. This witness says she was bumped by the Defendant’s vehicle when coming out of the church gate area. Witness says she was later rushed to the hospital where she was treated.
   

Philomena – Second police witness

5. This witness says she was walking out of the church area with the victim when the Defendant bumped the victim. Witness says Defendant was trying to park the vehicle in the section where several cars were also parked. Witness says, he gave no signal and horn when he drove in to park his vehicle. This witness says she could also have been a victim if she did not run away from being bumped. Witness says as soon as after learning that the victim was bumped, she approached the Defendant to stop his vehicle but he did not. On cross examination, Defendant denied dragging the Defendant or bumped her.
   
6. James Nare – he is the arresting officer and police in charge of the case regarding the Defendant’s arrest and its subsequent investigations. His evidence is only about the Defendant and how he was arrested and the Defendants conditions after he was arrested. Moreover this witness says the Defendant spotted the victim coming out from the church gate but he continues to drive thought and squeezed the victim between vehicles.
   

Defense witness- Raphael Nulai

7. Defendant says he is a driver with the Das Bash Company. He says he saw a dyna parked so he drove to park his vehicle near where the dinner was parked. Witness says although the parking space was too small, Defendant walked into without going away and bumped the Defendant’s car. Defendant says after what happened he stopped his vehicle and victim walked away. After then he says he heard church people walking out and told him that he bumped the victim.
   

ISSUE

8. The issue before me is whether the Defendant was driving without due care and attention and thereby bumped the victim?
   

RELEVANT LAWS

9. The offending Law subject of allegation is established under Section 28(2(a), of the Road Traffic Regulations in the succeeding terms:
   

1. Road Traffic Rules –Road Unser 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

.

CONSIDERATION OF EVIDENCE

10. I have considered the evidence from all parties. Defendant says the victim did not stop but walked all the way to where he was coming to park. Victim say, the parking space was not conducive for him to park but he squeezed his way in to park. Second State witness says the victim was dragged in and squeezed by the Defendant’s car. When I am assessing and testing all evidence I am satisfied that the incident happened on a parking area near Das bash limiting and Corner stone church at Gordons. The incident did not happen on the road but on the parking area where vehicles are parked and people come out and walk around to do shopping, marketing and for church activities.
    

DISPUTED AND UNDISPUTED FACTS

Disputed facts

1. Defendant did not bump the victim.
   

Undisputed facts

1. Defendant was the driver

.

RULINGS

11. Although the duty of care is a two (2) way thing as I have pointed out in Police v Koka^[1] where both the victim and the Defendant owed each other a duty of care while on the road, the one that come into realization of any foreseeable endangerments first must act first to avoid such act. Being a driver of the vehicle, the Defendant had a duty to make sure the parking space is clear and no people are nearby or other vehicles obstructing his way. In here the Defendant did not look into the parking area and thus drove through. If the Defendant saw the victim walking near his drive way then he could have stopped because it was not a drive way but a parking area where people are bound to walk anywhere. The first in contact should act first but in here the Defendant failed to act after he spotted the victim.
    
12. In the current case, I have evidence that the Defendant kept on driving when he was asked to stop after the victim was trapped and dragged along by the Defendant’s car. State witness Philomena Maru’s evidence shows that even after the Defendant was asked to stop his vehicle he did not stop and kept on driving therefore the victim was squeezed by the Defendant’s car. After assessing all these I am satisfied that the Defendant drove his vehicle without due care and attention and therefore he bumped the victim.
    

CONCLUSSION

13. There is evidence against the Defendant. Police have proven their case beyond reasonable doubt.
    

ORDERS

14. I make the subsequent orders:
    
    1. Defendant is guilty on the charge of Driving without due care and attention. Contravening Section 28(2)(a) of the Road Traffic Rule-Road User Rules.
       

In person For the defendant
Police Prosecutor For the State

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^[1] [2021] PGDC 53; DC6010 (31 May 2021)