Police v Opa [2021] PGDC 81; DC6038 (5 July 2021)

DC6038

Papua New Guinea

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

SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 159 OF 2021
C/B NO 1338 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

THOMAS M. OPA
[Defendant]

His worship Paul P Nii

5^th July 2021

TRAFFIC OFFENCE: - Using Mobile Phone while driving - s 34(1)(a) - Road Traffic Regulations

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation of Using Mobile Phone while driving Driving -Elements of the offence not met- Dismissed.

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

Overseas cases cited:
Nil

References

Legislation
Road Traffic Regulations

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

RULING ON VERDICT

5^th July 2021

INTRODUCTION

NII, P Magistrate: The Defendant pleaded not guilty to the charge of using mobile

Phone while driving under Section 34(1) of the Road Traffic Regulations.

1. Trial was administered on the 24^th June 2021, and now is my ruling on verdict.
   

FACTS

2. The Defendant is identified by police as aged 43 years of Yokea in the Malalua District of Gulf Province.
   
3. Defendant was arrested on the 7^th May 2021, for an allegation including using mobile phone while driving and thereafter arrested, interrogated and charged on the same day. Police have summarized the all-inclusive allegation into the following brief facts as it seems on their information bearing the charge:
   

“Being the driver of a Motor Vehicle towith Toyota Surf, Black, registration number BEO 825, upon a public street, towith Lawes road, Konedobu, did while driving, use a mobile phone without the use of a hands free device.”

Police evidence

4. Jerry Aurua- he is the arresting officer and the only police witness in the case. He introduced himself as a policeman with 6 years of experience and with a rank of Constable who is based at Port Moresby police station. He identified the Defendant as the suspect who was arrested for the offence of using mobile phone while driving. Witness says he was patrolling along the Konedobu area with three other colleagues namely Julius Sabila, Philemon Paru and Colin Kink when they cited the Defendant. Witness says Defendant was driving on Champion parade towards the Spring garden road when he was spotted somewhere near the v section of the intersection between police lane that runs south west to champion parade. Witness says Defendant was cited some 4-5 meters from where he was when he talked on the phone while driving. Defendant was later taken to the police station where he was arrested, interrogated and charged for the offence of talking on the phone while driving.

Defense evidence

5. Thomas Opa – he is the Defendant and Defense only witness. He admitted that he was driving on the road described by Police on the date of allegation but denied that he did not talk on the phone while driving. Defendant however said while he was driving his phone was ringing by an unknown number for some connective times so he had to pick up the phone to see who was calling on the phone. Defendant says the traffic was busy so he had to drive slowly and hence picked up his phone to see who was calling. Defendant says he then slipped his phone back to his trousers pocket. Defendant says he was spotted by police at the very instance when he picked his phone up to see who was calling.

.
ISSUE

6. The only issue before me is whether the Defendant was using mobile phone while driving?
   

RELEVANT LAWS

7. The offending Law subject of allegation is established under Section 34(1)of the Road Traffic Regulations in the succeeding terms:
   

34 MOBILE PHONE USE PROHIBITED WHILE DRIVING

(1) Subject to Subsection (2) a person, while driving a motor vehicle on a public street, must not use a mobile phone or two-way radio without the use of a hands-free device.

(2) A member of an emergency service, acting in his or her capacity as a member of an emergency service may use a mobile phone or two-way radio while driving in the execution of their work tasks.

8. A charge is a mere allegation until substantiated with evidence. Evidence plays an important role in the administration of criminal justice to ensure all the elements of the crime are met. The importance of evidence is well itemized in Police v Koka^[1] which I have included below:
   

“....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....”

9. I will now proceed to examine and test both evidence from Police and Defendant to make sure the evidence satisfy the elements of the charge of Using Mobile phone while driving as:
   
   1. a person,
   2. while driving a motor vehicle
   3. on a public street,
   4. must not use a mobile phone
   5. or two-way radio
   6. without the use of a hands-free device.
      

EVIDENCE

10. There is no doubt that the Defendant is identified as the person who was holding the phone at the time when he was cited by Police and hence the first element is met. There is evidence that the Defendant while driving on the public street was holding the phone and hence elements number 2 and 3 are met. Will touch element No 4 later but now will proceed to element number 6. This element is met by police because Defendant was using the phone without the use of a hand free device. The 5th element is irrelevant here and hence will go to element No 4. This element is about the actual use of a mobile phone while driving on the road. Does the word “use” on this element refer to the actual talking on the phone or mere citing the phone while driving? To answer this I will answer another question and that is what is Mobile phone used for? Oxford dictionary defines this as:
    

‘Modern cell phones are capable of receiving and making phone calls. Mobile phones used in today's world allow users to send and receive text messages, emails, photos and video as well as access the Internet, play games, listen to music.’

11. I do not know what the legislators meant when used the word “use” In the wordings of the subject charge. Did they mean the actual communication or just a mere touching and looking at the phone or both? Currently, it is unclear but after establishing the above, I am satisfied that the word ‘use’ is more to do with the actual transaction form the sender to the receiver or vice versa and the operation is subsequently completed when communication is effectively transmitted form one point to another or from one person to another.
    

CONSIDERATION OF EVIDENCE

12. I have considered the evidence and satisfied that the Defendant was cited some 4 to 5 meters away from where the police were, Defendant and Police were not close to each other; Defendant was on the other side of the lane from the police. I am also satisfied that all the elements of the offence of Using Mobile Phone while driving are met by Police. However, element No 4 is not clear. Defendant says he did not use the phone but was citing the phone only to see who was calling his phone since the caller appears to be a contact not registered on his phone. Because of the Distance between them am satisfied that police did not actually see what the Defendant was doing with the Phone but he was sighted holding the phone.
    

DISPUTED AND UNDISPUTED FACTS

Disputed facts

1. The Defendant was not talking on the phone.
   

Undisputed facts

1. Defendant had a phone.

.

RULINGS

13. There is no issue that the Defendant had a phone but when the Defendant sighted the phone to see who was calling it became an issue. The act of sighting the phone does not meet the elements that he was truly using the phone. Therefore the definition of the word “use” of mobile phone does not meet the Defendant’s act. “Use” is the actual communication or effecting a transaction between two or more people while sighting is just a mere observation without any actual communication and usage of the phone. Therefore, I am satisfied that Defendant was not using the phone but was sighting the phone.
    
14. Moreover, if police were ingenious enough they should have obtained a search warrant against the Defendant’s number and check with Digicel or BMobile or whichever mobile service provider to confirm whether Defendnat made some calls on the date and moment of allegation, in the absence of such I cannot assume that Defendant made calls to merely satisfy the meaning of the word ‘use’. There is nothing wrong with looking, sliding your phone into your pocket, taking it out from your pocket while driving. It is the same as looking at who is on the side of the road while driving or looking at who is sitting on the offside seat or back seat in the car but the exception is only not to make calls or sent messages while driving, which is a traffic offence.
    

CONCLUSSION

15. Although police evidence met the other elements of the offence of using Mobile Phone while driving, element No 4 is not met, this element is very essential in the circumstance of this case because it forms the crux of the elements and hence evidence is insufficient to find the Defendant guilty.
    

ORDERS

16. I make the ensuing orders:
    
    1. Defendant is Found Not Guilty
    2. Defendant is acquitted and discharged
    100. Defendant’s bail money be refunded
         

In person For the defendant
Police Prosecutor For the State

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