Police v Girey [2022] PGDC 114; DC9050 (11 November 2022)

DC9050

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
TRAFFIC COURT

TRF 228 of 2022
BETWEEN

POLICE
Informant

AND

SIMON GIREY
Defendant

Lae: J Morog

2022: 26^th & 30^th September
3^rd, 5^th, 6^th & 26^th October and 11^th November 

TRIAL- Traffic Offence – driving without due care and attention – burden of proof – not discharged by the prosecution – verdict of not guilty.

Cases Cited
No Cases Cited

References
Road Traffic (Offences and Penalties) Regulation 2017

Counsel

SC Cathy ODIS, for the Informant

Steven Kesno, for the Defendant

November 2022

1. J Morog: This is the court’s decision on verdict after the defendant pleaded not guilty to the charge of driving without due care and attention along the Okuk Highway (Highway) in Lae, Morobe Province.

BACKGROUND

2. It was alleged that on the 24^th of December 2021, at Tanam along the Highway in Lae Morobe Province the defendant drove a green Ford Ranger, Rego LAP 952 without due care and attention by overtaking two vehicles at the same time and collided with an oncoming vehicle.

3. The defendant was charged with the offence of driving without due care and attention contrary to section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017

ISSUE

4. It is not in dispute that the defendant drove the ford ranger on the public street and there was a collision with another vehicle hence the only issue is whether or not the defendant is guilty of driving without due care and attention.

EVIDENCE

Police Case

5. Police called four witnesses namely Patick Norman, Moses Mala, First Constable Fred Hagali and Senior Constable Cathy Hambukuma and tendered two Exhibits P1 and P2 Sketch Plan of the Scene and Photograph of damage vehicle Hyundai respectively.

Patrick Norman

6. He was the driver of the Hyundai driving down from Nadzab toward Lae. He said that at the scene the defendant was going up from Lae at high speed and overtaking two vehicles, a twin steer and a station wagon.

Moses Mala

7. He was a bystander who said he was on the opposite side of the road with his family waiting for PMV to send his family to Lae.

8. His evidence supports the contention that the defendant was overtaking two vehicles and caused the collision with the Hyundai

First Constable Fred Hagali

9. He is a policeman based at Nadzab Airport and he arrived at the scene sometime after the collision and only is evidence repeats what he heard from the bystanders who gathered there. He did not do a prudent enquiry or preliminary investigation. He simply did not assist the court with any information.

NoSenior Constable Cathy Hambukuma

10. She is the arresting officer and she confirms that upon her investigation she arrested the accused and charged him. She also confirms that the driver of the Hyundai was charged for driving under the influence of alcohol but the case was struck out for want of prosecution. He was not on duty when the matter was disposed by the court.

Defence Case

11. The defence called three witnesses namely the accused and his offsider in the ford ranger at the time of collision and a driver of another vehicle that was driving ahead of the ford ranger and saw the collision in his rear mirror. They are namely Simon Girey, Joshaia PIP and Titus Kumbori.

12. The defence tendered in the following exhibits;

D1 - Class 6 Driver License of Mr. Simon Girey

D2 - Photograph of Patrich Norman seated in the driver seat of the Hyundai vehicle with blue ice beer can next to him in the water holder of the car soon after the collision

D3 - Photograph of Titus Kumbori talking to Patrich Norman seated in Hyundai and former standing on the road side

D4 - Photograph of damage done to the ford ranger zoomed out

D5 - Photograph of damage done to the Ford Ranger full front view

D6 - Photograph of damage done to the Hyundai front view

D7 - Photograph of Patrick Norman shocked and seated in the Hyundai after the collision

D8 - Registration, Insurance and Road Worthiness Certificate of the Ford Ranger

D9 - Google Image of the location, date and time of collision obtained from Vehicle Tracking System from the owner of Ford Ranger – PNG Ready Mix Ltd

D10 - Extract from the Vehicle Tracking System of Ford Ranger showing speed limit immediately before and after the collision (37 km/hr)

D11 - Detailed Extract on speed limit and location of the Vehicle Tracking System on the Ford Ranger for the entire day since morning when vehicle left home.

Simon Girey

13. He is the accused and his evidence was that he slowed down to negotiate the potholes when the Hyudai was on very high speed and came onto him so he tried to avoid it but the driver of the Hyundai also turned and they collided. He strongly denied overtaking any vehicles as alleged by the prosecution witnesses.

14. He said that after the collision he came out and saw the driver of the Hyundai was drunk, smelt of alcohol and there was a full can of Ice Beer in the water holder next to him and his red bloodshot eyes.

Joshaia PIP

15. He is the Financial Controller of PNG Ready Mix Ltd and he was the offside passenger of the Ford Ranger at all material times. He said the defendant slowed down to negotiate the potholes along that section of the road. He confirmed what the accused said about the speeding Hyundai with its drunk driver with red bloodshot eyes.

16. There was no Twin Steer or Station Wagon on that road at the time of the collision he said.

Titus Kumbori

17. He is an independent witness. He said he was driver along the same road that time doing drop offs of workers of Hornibrooks Company. He was driving up toward Nadzab when he noticed the Hyudai coming down from Nadzab at a very high speed along the gravel road.

18. The Hyundai nearly missed him too and he turned abit to avoid collision and as he looked on in his rear mirror he saw the collision behind him. He stopped his car and came down to the scene and questioned the driver of the Hyundai. He also smelt alcohol on Patrick Norman and also inside the vehicle.

RULING

19. In this case, there is a contentious fact in issue of whether or not the accused was overtaking two vehicles namely a Twin Steer and a Station Wagon.

20. I find that the prosecution has not proved that fact beyond reasonable doubt. Only Patrick Norman and his witness said that the accused was overtaking two other vehicles that time. They both agreed that there was potholes along that stretch of the road. They said the two vehicles that Twin Steer and the Station Wagon never stopped but continued when collision happened.

21. In cross-examination, they both said they could not recall the color of the two cars. Patrick said he was in shock and cannot recall much. Moses Mala said he cannot recall much because it is a long time now. They both were evasive in their answers to questions about the overtaking and the vehicles being overtaken. I find their story about overtaking as a make-up story to find fault in the accused.

22. The Defence witnesses version is summed up in the testimony of Titus Kumbori who is an independent and reliable witness that there were no other vehicles except his car, the Hyundai passing him by and the Ford Ranger.

23. Also I find that the Ford Ranger was not speeding as claimed by Patrick and in fact it was him who was speeding down. This is confirmed by his own witness Moses that the Hyundai was the only vehicle coming down from Nadzab and it was speeding down.

24. There is sufficient and conclusive evidence on the speed limit of the accused person showing that immediately before the collision he had slowed down was doing 37 km/hr then the collision occurred. It proves the assertion by the defence case that the accused was not speeding.

25. I find that the accused person is not guilty of driving without due care and attention because the prosecution has failed to prove their case beyond reasonable doubt that he drove without due care and attention by speeding and overtaking two vehicles while there was an oncoming vehicle.

26. Therefore I find the accused not guilty and discharge him accordingly.

Orders

1. The defendant is found not guilty
2. The defendant is discharged from his bail obligation
3. Bail of K300 shall be refunded forthwith.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Defendant Kesno Lawyers