Bate v Lahui [2022] PGDC 124; DC9062 (20 October 2022)

DC9062

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

WTC No 119 of 2022
BETWEEN

THOMAS BATE
Informant

AND

MALAGA LAHUI
Defendant

Waigani: O Ore Magistrate

2022: 20^th October
      

TRAFFIC OFFENCE – Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Rules- Road User Rules 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Unsworn Evidence- Decision on Verdict- Allegation of Driving Without Due Care and Attention- failure to established Elements of Driving without due care and attention- not guilty- Acquitted

PNG Cases Cited
Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021)

Overseas Cases

References

Legislation
Road Traffic Rules – Road User Rules 2017

Counsel
Wamuru J, for the Informant
The Defendant in Person

RULING ON VERDICT

20^th October 2022

1. O Ore, Magistrate: Malaga Lahui stands before this Court charged with one count of Driving without due care and attention pursuant to section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
   
2. He pleaded not guilty and a trial was conducted. Trial was conducted for 2 days. Firstly, on the 30^th of July 2022 and later on the 04^th of April 2022. This is now my decision on verdict after submissions by the Prosecution and Defence.
   

FACTS

3. The Police allege that on the 17^th of March 2022 at Taurama Road, NCD the Defendant drove a motor vehicle without due care and attention and caused an accident. Police allege that at that time, the Defendant drove a silver Nissan X-Trail which had the registration number BEN 586.
   
4. It is alleged that the Defendant drove out from Hodava Avenue and in trying to cross over into Taurama road bumped into another vehicle, a black Nissan Murano Registration Number BGS 766 driven by one Bessy Soffy Peter.
   
5. The impact of the hit pushed the other vehicle into Taurama Road hitting a Toyota Pro Box Comfort Taxi Service Cab (T.8920) which was trying to turn into Hodava Road.
   
6. The Defendant was formally arrested and charged after completion of Police investigations. The allegations by Police are summarised in the Police information. An extract of the charge is provided below and reads:
   

“Being the driver of a motor vehicle, towit a Nissan X-Trail, Silver in Colour, registration number BEN 586 upon a public street, towit Taurama Road - Foodland did drive the said motor vehicle without due care and attention.”

ISSUE

7. Whether the Defendant drove his vehicle without due care and attention.
   

RELEVANT LAW

8. The law under which the Defendant has been charged is section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017. This section provides that:
   

“(2) The driver of a motor vehicle on a public street must not–

drive without due care and attention;........”

9. The elements that make up this offence have been discussed in numerous District Court cases and most notably in Police v Boskey [2021] PGDC 160; DC 7018 (18 November 2021). The elements of this offence are:
   
   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 without due care and attention.
        
10. These are the elements that need to be proven beyond reasonable doubt for a conviction to stand.
    

EVIDENCE

Police Witnesses

11. The Prosecution called in 4 witnesses to give their testimony. The witnesses called in were:
    
    1. Constable Thomas Bate (Arresting Officer)
    2. Bessie Soffy Peter (Complainant)
    100. Hitolo Dimere – Passenger
    4. Maba Lohia – Passenger
       

1. Constable Thomas Bate
   

12. Constable Bate is the Arresting Officer. He gave a detailed account of his investigations into the accident. He attended the accident scene and did his investigations. From his investigations, he concluded that the Defendant did drive his vehicle without due care and attention causing the accident.
    
13. He therefore formally arrested and charged the Defendant. His investigation is contained in the Road Accident Report Number 107/22 which was tendered into evidence and labelled as Exhibit P1.
    
    2. Bessy Soffy Peter
       
14. Bessy Soffy Peter is the victim in this case. At the time of the accident, she was driving the black Nissan Murano bearing the registration number BGS 766. She said that on the 17^th of March 2022 at around midday, she was on her way to pick up her son. She was driving from Murray Barracks towards 3 Mile at around 45kmph. There were no traffic signs apart from one a few meters ahead for ambulances to drive in.
    
15. She said that as she was driving, she saw the Defendant driving out from Hodava Street. He was trying to make a U-turn in front of St Johns Ambulance Head Quarters. He drove out without waiting for her to drive past. He should have waited because he was stationary. His vehicle bumped into the left side door of her vehcile. She said that there were three of them in the vehicle. They all received minor injuries and joint aches and a passenger by the name of Hitolo Dimere passed out.
    
16. She said that her vehicle suffered huge damages. It was completely written off. The front tyre came off. She also tendered into evidence some photographs of her damaged vehicle. The photographs were entered into evidence as exhibit P2. The photographs show the full extent of the damage done to her vehicle. The photographs looked to have been taken at her house sometime after the accident. They show the front bumper of the vehicle completely ripped off and also the bonnet smashed in.
    
17. She said that St John Officers had to pull open the doors to get them out and told them to rest and wait for Police to arrive. Police arrived around 10 minutes later and got their licenses. They wrote their statements at the Police Station. She said that the Defendant admitted at the Police station that he failed to give way. She further stated that upon impact, her vehicle was thrown over to the opposite lane and hit a Comfort Taxi which was turning into Taurama Road.
    
18. In cross-examination, she said that she saw the Defendant’s vehicle stationary at the intersection and as she drove past, he hit her. He took off from a starting position. She said she was on the right lane and he drove over and bumped her. The Defendant was trying to drive out of Hodava Street when the accident happened.
    
    100. Hitolo Dimere
         
19. This witness at the time of the accident was seated in the off-side passenger seat. He identified the Defendant as the one who bumped them with his vehicle. He said that they were driving from Hohola to 3 Mile. The Defendant was driving out of Hodava Avenue and failed to give way to his right and bumped into them throwing their vehicle onto the oncoming lane hitting a Comfort Taxi. He said that he conked out at that moment.
    
20. He said that the road where the accident took place was straight. He saw the Defendant’s vehicle stationary and when they drove past, he drove out and hit them. He said that the road was not busy at that time. His statement was reaffirmed during cross-examination when he said that when they drove past, the Defendant just drove out and bumped them.
    
    4. Maba Lohia
       
21. This witness was seated behind the front passenger. He said that they were travelling at 45kmph. He said that he saw the Defendant’s vehicle stationary and when they drove past, he drove out and hit them. The Defendant’s vehicle hit their vehicle and pushed it to the other side of the road where they hit a Comfort Taxi. He said that the front part of their vehicle was damaged and he sustained a neck injury. He said that Police came and did their investigations and told them to go to the Police Station which they did and gave their statements there.
    
22. In cross examination, he said that he saw the Defendant’s vehicle parked at Hodava Street. He saw it from afar and when they drove past, he drove out and hit them. He bumped them in front of their vehicle. He replied no when it was put to him that they were speeding.
    

Defence Witnesses

23. Apart from himself, the Defendant called in one witness a Moera Manoka
    
    1. Malaga Lahui (Defendant)
       
24. Malaga Lahui works as a payroll manager with Department of Justice and Attorney General. He said that he resides at Hodava Avenue. It was lunch time so he went home and had lunch. After having lunch, he was heading back to work. His niece got on with her two children. They sat at the back passenger seat of the vehicle. He said that when he came at the intersection, he stopped and looked to his right. He saw not many vehicles on the road at that time. He saw the victim’s vehicle far away so he drove out on to the road.
    
25. He said that when he drove out, his vehicle’s engine died in the middle of the road and he came to a stop. He tried to start it but it did not start and he turned left and was hit by the victim’s vehicle. The impact caused his vehicle to face towards Shady Rest. He said that his vehicle got hit on the right driver side door. He tried to get out but the door was jammed. He said that the Police insisted that he was wrong and kept telling him that he was guilty.
    
26. He said that he did not tell the Police that his engine had cut off because he was lost at that time. Attempts to have the matter settled out of Court was unsuccessful and he was arrested and charged.
    
27. The Court then asked some question regarding his vehicle. He said that his vehicle was an automatic transmission and had no mechanical defects prior to the accident. It was a 5–6-year-old vehicle and had not broken down before.
    
28. In cross-examination he simply confirmed what he had said in examination in chief.
    
    2. Moera Manoka
       
29. She was a passenger seated at the back when the accident happened. The Defendant is her uncle. She says that she was at her uncle’s house and asked him to give her a lift. They drove out Hodava Avenue and were trying to take the turn at St Johns and the Aquatic Centre. The road was clear at that time. She says that an oncoming vehicle came and hit them. She was with her 2-year-old son at the back seat behind the front passenger seat.
    
30. She says that the car’s engine had died and she saw her uncle trying to start the engine when they were hit by the victim’s vehicle. She said that he was panicking.
    
31. In cross examination, questions were put to her to which she answered confirming her story made earlier on. She also took photographs of the Defendant’s vehicle. The Photographs were tendered into evidence as Exhibit D1 and show the damage done to the Defendant’s vehicle. It shows damages to the Drivers door and the front right side wheel broken and pushed in.
    

DISCUSSION OF LAW AND EVIDENCE

32. When a person is charged for driving without due care and attention, the standard of proof required is one beyond reasonable doubt and rests with the Prosecution. The Prosecution through its evidence must establish that each element of the offence exist beyond reasonable doubt.
    
33. The first two elements of the offence are not in dispute and have been proven beyond reasonable doubt. What is in dispute is whether or not the Defendant drove his vehicle without due care and attention.
    

Driving without Due Care and Attention

34. What is driving without due care and attention? In Police v Boskey (supra), driving without due care and attention is driving that falls below the standard expected of a competent driver or driving that does not show reasonable consideration for other persons using the road.
    
35. Reasonable consideration applies to all road users. In this case, it applies to both parties. So how does one not show reasonable consideration for others? There are many instances where reasonable consideration is not shown. As per the case of Nathaniel v Lausi [2022] PGDC 35; DC8046, it depends on the behaviour of a person whilst driving. It also involves ignorance of road traffic rules. Per the Nathaniel v Lausi case:
    

“Ignorance of road traffic rules depend on the behaviour or poor manoeuvres displayed by a person whilst driving. Instances of careless driving include, tailgating, not giving way at a junction, overtaking and forcing your way into a que of traffic, using the wrong lane at a roundabout, ignoring a lane closed sign and forcing your way into an orderly que, lane hogging, inappropriate speed, overtaking on the inside, over taking and causing an approaching vehicle to break, failing to give way or failing to indicate where you’re turning. This list may go on.”

36. The evidence by the Prosecution’s witnesses is basically the same. They corroborate each other. All of them say that they could see the Defendant’s vehicle stationary at Hodava Avenue and when they drove past him, he drove out and hit them. The impact was massive and forced them on to the other side of the road hitting another vehicle a Comfort Taxi. They say that he should have waited for them to pass and then drive out which he failed to do.
    
37. The Defendant and his witness on the other hand gave a different story. Their story is different from the one given by the Prosecutions witnesses. Malaga Lahui says he saw the Victim’s vehicle coming from afar and from his judgement thought that it was far away so he drove out onto the road intending to cross over and make a turn at the St Johns Ambulance Intersection. He says that his vehicle’s engine died in the middle of the road. As he tried to start his engine again, he was hit by the Victim all the while turning his vehicle left. His statement is supported by Moera Manoka.
    
38. The evidence by the Defendant and his witness that their vehicle’s engine died in the middle of the road is somewhat hard to believe. During cross-examination, he said that his vehicle was an automatic transmission and had never had any mechanical issues. So how could his vehicle have on that faithful day had an engine failure? One could tell from his demeanour that he was not telling the truth. The same also can be said about Moera Manoka. Despite vehemently stating that she knew about the offence of perjury or lying to the Court and knew of its consequences, her demeanour showed otherwise.
    
39. When pressed on the question of engine failure, her demeanour most particularly at the end showed of someone not telling the truth. She also found it difficult to respond when it was put to her that that the engine of the vehicle could not have died because of the vehicle being an automatic transmission and also had never experienced engine failure before. I therefore find that there was no engine failure at that time as testified by the Defendant and his witness.
    
40. The same can also be said about the Police witnesses. Although well-constructed, the evidence given by them is questionable. The photographs adduced by the Prosecution’s witnesses tell a different story from what they said. They said that the Defendant came out and hit them.
    
41. Photographic evidence by Moera Manoka shows that the Defendant’s vehicle was hit at the Driver’s door. This is consistent with their story that it was the Victim’s vehicle that hit them. Photographs of the victim’s vehicle were taken some time after the accident by the victim. At that stage the vehicle had been moved and the evidence was disturbed. It also showed the front of the vehicle damaged.
    
42. Considering the above, I find that the Defendant at that time saw the Victim’s vehicle coming from afar and drove onto the road trying to make a turn into the opposite lane going back towards PNG Motors and Murray Barracks. From the damages sustained by both vehicles as shown in the photographic evidence, it is safe to say that the victim was travelling at a moderately high speed when the collision happened. I find that it was the victim who bumped into the Defendant’s vehicle. I also find that the road where the accident happened was a straight stretch of road and both drivers had a clear view of the surroundings.
    
43. After my findings, I now address the issue at hand which is whether the Defendant did drive his vehicle without due care and attention. In this case, I am not convinced that the Defendant is entirely at fault. The accident can also be attributed to the Victim’s failure to keep a proper lookout ahead and slow down. Her line of sight on the road ahead would have been clear. From what had happened, it would seem that she may have been distracted and acted at the last minute but it was too late. Due care and attention as I have mentioned in the case of Police v Bosky WTC 263 OF 2021 applies to all road users. Caution should be exercised at all times by all road users when using the road.
    
44. This leads me to the standard of proof required in this case. As stated earlier on in my decision, the standard of proof in this case is one beyond reasonable doubt. It simply means that the there has to be no doubt that an offence was committed by a Defendant. If there is any doubt, then the Defendant has to be acquitted. In this case, I must be satisfied beyond reasonable doubt that the Defendant drove his vehicle without due care and attention. Here, I am not convinced entirely that the Defendant was the one who caused the accident. I am doubtful of this. Thus, where there is still doubt in the Court’s mind, the Defendant must be acquitted.
    

CONCLUSION

45. Considering the above, I find that the Prosecution has failed to prove their case beyond reasonable doubt. They have failed to prove that the Defendant did drive a motor vehicle without due care and attention.
    

COURT ORDERS

46. I therefore make the following orders;
    
    1. The Defendant is found not guilty for the offence of Driving without Due Care and Attention.
       
    2. The Defendant is acquitted and discharged.
       
    100. The Defendant’s bail money of K500.00 is to be refunded immediately.
         

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: Ponepai Lawyers