Agu v Poo [2022] PGDC 122; DC9063 (26 September 2022)

DC9063

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 120-121 of 2022
BETWEEN

BENNY AGU
Informant

AND

THOMPSON POO
Defendant

Waigani: O Ore Magistrate

2022: 26^th September
      

TRAFFIC OFFENCE – Negligent Driving – s 40(1) – Road Traffic Act 2014 – False Number Plate – Section 19 (11) - Road Traffic Rules – Registration of Motor Vehicles 2017

TRAFFIC OFFENCE- Not guilty plea – Trial – Consideration of circumstances of the case - Elements of both offences considered – Found not guilty for Negligent Driving – Found guilty for False Number Plate

PNG Cases Cited
State v Uratigal [2018] PGNC 467; N7583 (7 November 2018)

Overseas Cases

References

Legislation
Road Traffic Act 2014
Road Traffic Rules – Road User Rules 2017
Road Traffic Rules – Registration of Motor Vehicles 2017

Counsel
Bigam E, for the Informant
Defendant in Person

RULING ON VERDICT

26^th September 2022

1. O Ore, Magistrate: Thomson Poo a 32-year-old male from Entman Village, Baiyer Western Highlands Province stands charged with one count of Negligent Driving under Section 40 (1) of the Road Traffic Act 2014 and one count of using a false number plate on a vehicle he was driving under Section 19 (11) of the Road Traffic Rules – Registration of Motor Vehicles 2017.
   
2. On a plea of not guilty, trial was conducted with submissions on verdict made. The matter now returns for my decision on verdict.
   

FACTS

3. The Police allege that on Thursday 24^th March 2022 at around 9:30am along 9-mile road near the Peter Kama settlement, the Defendant drove a motor vehicle and got into an accident with another motor vehicle (a 15-Seater Bus) owned by the Institute of Business Studies University (IBSU).
   
4. The Police allege that at that time, the Defendant drove the vehicle negligently and caused the accident. Further to that, they allege that the Defendant was using a false Taxi number plate which he took off and replaced it with another number plate when before the Police arrived. He was therefore arrested and charged for Negligent Driving and also for using a false number plate.
   

ISSUE

5. There are two separate issues which the Court must consider and make its ruling on. They include:
   
   1. Whether the Defendant drove the Vehicle Negligently?
   2. Whether the Defendant did use a false vehicle number plate?
      

RELEVANT LAW

6. Section 40 (1) of the Road Traffic Act 2014 reads as follows:
   

40. CARELESS AND NEGLIGENT DRIVING.

(1) A person who drives a motor vehicle in a careless or negligent manner on a public street is

guilty of an offence.

Penalty: A fine not exceeding K6,000.00.

7. From the excerpt of the provision above, the offence itself is made up of the following elements:
   
   1. That a person drove a specific motor vehicle;
   2. That the vehicle was driven on a public road; and
   100. That the vehicle was driven in a careless or negligent manner.
        
8. Using a false number plate is an offence under Section 19 (11) of the Road Traffic Rules – Registration of Motor Vehicles 2017. This section is in the following words:
   

“(11) A person must not, except as provided in this Rule, drive a motor vehicle on a public street that has on it a number-plate other than the one currently issued for it.”

9. The necessary elements for this offence in my view is that:
   
   1. A person
   2. Must not drive a motor vehicle
   100. On a public Street
   4. That has on a number plate other than the one currently issued for it.
      

EVIDENCE

Police Witnesses

10. The Police called in (5) five witnesses to give evidence. They included
    
    1. Constable Benny Agu – Arresting Officer
    2. Chief Sergeant Kelly Ikuite – OIC Discipline PHQ
    100. Hanen Hizon – IBSU Bus Driver
    4. Martin Lata – Security Guard at IBSU
    5. Roy Iori – IBSU Logistics Officer
       

1. Constable Benny Agu
   

11. This witness is the arresting officer. He basically gave his side of the story on how he conducted his investigations and based on his findings arrested and charged the Defendant for committing both offences. In his evidence, he says that when he checked the Defendant’s car, he found the taxi number plate under the driver’s seat. When asked in cross examination what plate number he saw when he first arrived at IBSU, he said he saw the white plate number.
    
12. When asked if he visited the accident scene, he replied that he did. He visited the accident site later in the afternoon. He also said during cross-examination that he went to the accident site by himself and other police officers.
    
    2. Chief Sergeant Kelly Ikuite
       
13. This witness was one of the Police Officers who accompanied the investigating officer to IBSU after receiving reports of an accident at 9-mile. He said that when they arrived at the IBSU, they (he did not mention who they referred to) came and reported to him that they saw the Defendant changing the number plate of his vehicle. He didn’t know who they were so he couldn’t mention them by name. He said during examination in chief that the Defendant had admitted to him that he was an unlicensed driver so he changed his number plate from a yellow taxi cab number plate to a white number plate. He further said that he did not see the plate number at that time but after at their office, they opened the booth of the Defendant’s vehicle and saw the yellow taxi plate number.
    
14. In cross-examination, it was put to him by the Defendant that he did not ask him about the plate number of his vehicle but only for his license to which he replied yes.
    
    100. Heinrich Hizon
         
15. This witness is the IBSI transport coordinator. He was driving the 15-seater at that time. He said that at that time, he drove out in the morning and did some admin runs and was heading back to IBSU. He said that there was road construction going on and he was not speeding. He was on third gear travelling at around 65-70kmph. He saw the Taxi. And as he passed the Taxi where Peter Kama settlement is located, he felt a bump on the rear back of the bus. He said the Taxi was intending to turn right and caused the accident. The flow of the traffic at that time was a bit busy. There was a bus in front of him.
    
16. He said that when they spoke at the accident site, the Defendant said he was wrong. Because it was not safe, they went to IBSU. At IBSU, the Defendant took out the Taxi plate number. He (the Defendant) said he was wrong and asked to sort it outside. Then he saw the Defendant switch the yellow plate number with the white number plate. The Taxi Plate had the number T1153.
    
17. In cross-examination he said that he did not see a taxi sign on the vehicle but he did see the Taxi plate number.
    
    4. Martin Lata
       
18. He is the Security Team Leader at IBSU. He was on duty at IBSU when the Defendant and the IBSU bus drove in and parked at the car park. He went and assessed the vehicles and saw the Defendant removing the Taxi Plate. When asked how far he was from the vehicles, he said that he was right next to the vehicles and got the report. He witnessed the Defendant coming out of his vehicle and removing the yellow plate and putting the white plate. The demeanour of this witness was truthful.
    
19. In cross examination he said that he saw the Defendant changing the back plate numbers. When asked what was the front number plate of the Defendant’s vehicle, he said he did not see and he would be lying if he said he saw it.
    
    5. Roy Iori
       
20. This witness is an Admin Driver with the IBSU. He said that he saw the Defendant change number plates from yellow taxi plate to private plate. He was standing a few meters away.
    
21. In cross examination he was asked whether the taxi plate was located at the back or front of the vehicle to which he replied yes you changed it.
    

Defence Witnesses

22. Apart from the Defendant, two other witnesses were called in to give evidence. They include:
    
    1. Private Soweto Kevin
    2. Ezekiel Wasu
    100. Thompson Poo
         
    1. Private Soweto Kevin
       
23. He is a Soldier with the PNG Defence Force. He was standing at the bus stop at the opposite side of the road. He saw the Defendant’s vehicle came and parked and wait for car to pass by. He saw the bus speeding by and heard a bumping noise. The bus continued on and stopped some meters away. He saw them talking and hopped on the bus and left.
    
24. He said he did not see whether the Defendant’s vehicle had a yellow plate number on. In cross examination, he said that he did not see the accident happen but only heard the sound of the vehicles bumping.
    
    2. Ezekiel Wasu
       
25. This witness said that the accident happened right in front of him. He said that there is a sharp bend in the road where the accident happened. The Defendant’s car was trying to turn when it was hit by the bus. The bus was speeding at that time. After hitting the Defendant’s vehicle, the bus travelled some 40 to 50 meters down and stopped. The Defendant did not escape.
    
26. In cross examination he said that the bus was on the other lane and when its driver saw another vehicle coming turned back to its lane and its back hit the Defendant’s vehicle. He said that a lot of vehicles were using the road at that time.
    
    100. Thomson Poo
         
27. The Defendant said that the road where the accident occurred was under construction at that time and only one side of the road was used. He came and stopped and looked both ways. He drove out slowly and the front of his vehicle moved out a bit. He saw the bus approaching at a high speed so he stopped. The driver of the bus saw him and took the outside lane. To avoid an oncoming vehicle, the bus came back into its lane and its back hit and scratched the front end of his vehicle. He was shocked and put on his double blinkers. The driver of the bus swore at him saying “kai kai kan”
    
28. He said that he did not put a white number plate in front so he went and found screw to screw his white plate in front. He said that the Taxi plate was in the back booth and how could he have opened it and have it changed. He said that at that time he did not drive with a taxi cab number plate.
    
29. On cross examination he said that he was parked when the bus came and hit is vehicle. If I was moving, it would have been a huge accident.
    

DISCUSSION OF LAW AND EVIDENCE

30. For the charge of careless and negligent driving, all other elements are present and are not in dispute apart from whether the vehicle was driven in a careless or negligent manner. All police witnesses except the driver Henrich Rizon where not there when the accident happened. Henrich Rizon said he was not speeding and was travelling at about 65-70kmph. There was ongoing road construction going on and vehicles were using one side of the road. His evidence is not corroborated. There were other witnesses on the bus at that time and they have not come forward giving their side of the story. The Court is left with this uncorroborated evidence.
    
31. The Defendant and his witnesses on the other hand gave a clear picture of what had happened. The IBSU bus was speeding and it had seen the Defendant’s vehicle trying to turn. It moved to the outer lane and when seeing an oncoming vehicle approaching, moved quickly back into its lane and as it did so its back rear left side hit the Defendant’s vehicle. I find this version of the story to be truthful. It also matches the photographs showing damages to both vehicles.
    
32. I find that the Defendant was trying to drive out onto the main road and when seeing the bus approaching, stopped. The bus was travelling at a high speed and when seeing the Defendant’s vehicle, switched lanes to avoid it and quickly tried to return to lane upon seen an oncoming vehicle resulting in its back left side rear end just after the tire hitting the Defendant’s vehicle front end. The photographs taken and the damage done to the vehicles are consistent with this. If the Defendant were to have driven out and bumped the bus, the accident would in my view would have been much serious.
    
33. I find that the Defendant did not drive negligently. He had taken all necessary steps to avoid the accident. The speed that Henrich Rizon was driving at was unnecessary given the road was still under construction, one side of the lane was closed and many vehicles were using the road. Section 15 of the Road Traffic Rules – Road User Rules 2017 provides that the maximum speed limit within a town is 60kmph. Here he was travelling at a speed higher than this. This accident could have been avoided if he had just slowed down.
    
34. I therefore find that the Defendant did not drive his vehicle negligently on a public road.
    
35. As to the second charge of driving with a false number plate, most of the evidence is circumstantial. No one actually saw the Defendant driving whilst using a taxi cab yellow number plate. They all assumed that he had used a false number plate because he had switched number plates when at IBSU. This was clearly seen by several of the police witness. The Defendant denied this by saying that he had not used the yellow taxi cab number plate. He was simply trying to screw on his normal number plate in front because he did not have it on at the time. I find the evidence by the Defendant quite hard to believe. The Prosecutions witnesses where all there and saw him change the number plates especially the one at the back. Roy Iori, Martin Lata and Henrich Rizon were all there and witnessed what had happened. They were just right next to the Defendant watching him change the number plates.
    
36. This part of the Police evidence is highly circumstantial. There is no Direct evidence meaning that no one actually saw him driving the vehicle with a false number plate. However, as seen in the case of State v Uratigal [2018] PGNC 467 N7583 (7 November 2018):
    

“The Court is entitled to enter a conviction on circumstantial evidence if it is credible and strong enough for the Court to draw reasonable inferences in applying principles of logic and common sense. The Court being a tribunal of law and fact must be satisfied beyond reasonable doubt that the only rational inference that can be drawn from the circumstances is the accused is guilty of the crime. If, however no reasonable inferences can be safely drawn from the facts accused is entitled to the benefit of doubt and must be acquitted.”

37. Here, reasonable inference can be drawn from the actions of the Defendant that he had been driving his vehicle using a false number plate. By changing the back number plate when he came and stopped at the IBSU clearly indicates that he had been driving with a false number plate. I am satisfied beyond reasonable doubt that he was driving with a false number plate when the accident happened and in order to avoid been detected switched it as soon as he a chance to. He must therefore be found guilty of this offence.
    

CONCLUSION

38. In light of what has been said and discussed above, I therefore find the Defendant to be not guilty of the charge of careless and negligent driving and guilty for the charge of driving with a false number plate.
    

COURT ORDERS

39. I now make the following orders;
    
    1. The Defendant is found not guilty for the offence of Negligent Driving and is discharged accordingly for this charge.
       
    2. The Defendant is found guilty for the charge of driving with a false number plate.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Defendant: In person