Naki v Liwai [2022] PGDC 125; DC9061 (25 October 2022)

DC9061

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

WTC No 110 of 2022
BETWEEN

JOSSICA NAKI
Informant

AND

NELSON LIWAI
Defendant

Waigani: O Ore Magistrate

2022: 25^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- Elements of Driving without due care and attention- proven beyond reasonable doubt – guilty verdict returned

PNG Cases Cited
Nathaniel v Lausi [2022] PGDC 35; DC8046
Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021)

Overseas Cases

References

Legislation
Road Traffic Rules – Road User Rules 2017

Counsel
Bigam E, for the Informant
Ipame N, for the Defendant

RULING ON VERDICT

25^th October 2022

1. O Ore, Magistrate: Nelson Liwai is a 29-year-old male from Olix/Oliguti Village in Lufa District Eastern Highlands Province. He stands before this Court charged with one count of Driving without due care and attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
   
2. The Defendant was arraigned on the 02^nd of April 2022 and pleaded not guilty. He sought the services a lawyer and the matter was thereafter adjourned on several occasions at the request of his Counsel who needed time to obtain proper instructions. Trial was finally conducted on 30^th June 2022. After trial, the matter was again adjourned for some time due to the National General Elections and also from requests by the Defendant’s Lawyer. Submissions on verdict were finally made on the 04^th of October and this is now my decision thereafter.
   

FACTS

3. Police allege that on that on the 04^th of April 2022 at around 4:30pm the Nelson Liwai drove a Hyundai H100 truck registered as BEX 327. The vehicle is owned by EMCO Limited.
   
4. The Defendant’s vehicle was loaded with timbers and was traveling along the Sivari Road. The Defendant was on the inside right lane whilst the Victim was travelling on the outside left lane in a City Cruz Taxi Cab – Toyota Mark II Sedan T9426.
   
5. Before coming to a roundabout intersection where the Sivari Road meets Waigani Drive and Baruni Road, there is a small street on the left which leads into Kenamu Estate. It was at this spot that Police allege the Defendant made a sudden left turn trying to go into Kenamu Estate. In doing so the Defendant’s vehicle bumped onto the Victims vehicle ripping off its front bumper. The impact also caused one of the timbers on the Defendant’s vehicle to fall off and smash the Victim’s vehicle’s windscreen. The Defendant then fled the scene and went into hiding at the Kenamu Estate.
   

ISSUE

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

RELEVANT LAW

7. Driving without due care and attention is an offence under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017. This particular provision states that:
   

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

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

8. Just by looking at this section, one can easily identify the necessary elements of the offence that need to be proven. Nevertheless, several District Court cases including Police v Boskey [2021] PGDC 160; DC 7018 (18 November 2021) have identified these elements to be as follows:
   
   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.
        
9. The standard of proof required to find an accused person guilty is one beyond reasonable doubt. This is mainly because of the nature of the offence itself which is criminal.
   

EVIDENCE

Police Witnesses

10. The Prosecution called in 2 witnesses. They included;
    
    1. Constable Jossica Naki (Arresting Officer)
    2. Wilson Philip (Victim)
       

1. Constable Jossica Naki
   

11. Policewoman Constable Jossica Naki is the arresting officer. She was the lead investigator into this case and based on her investigations and findings, she found the Defendant to be at fault and had him formally arrested and charged.
    
12. Her findings are summarised in the Road Accident Report No 132/22 which was tendered into evidence as Exhibit P2. She also had tendered into evidence a sketch map of the road where the accident happened. That exhibit is marked P2.
    
    2. Wilson Philip
       
13. Wilson Philip is the Victim. He is the driver of the City Cruz Taxi Cab. He says that on that date he was driving down Sivari Road. He was on the outside lane which is on the left. He was travelling below 60kmph. He was heading to town taking the Baruni Back Road. He said that there were no other vehicles on the road except for both of them. They were travelling parallel to each other.
    
14. He said that the Defendant without any indication turned left from the inside to where he was travelling. He got surprised and applied his break but it was too late. The backside trailer of the Defendant’s vehicle hit his vehicle’s left front side light. A timber got loose from the pile of loaded timber and hit his windscreen damaging it.
    
15. He said the Defendant’s vehicle was overloaded with timber at that time and it just made a sudden left turn trying to turn into Kenamu Estate. He said that he was lucky that he did not get injured. He also said that if he had clients with him, they would have gotten injured.
    
16. In cross examination, he maintained his side of the story. He maintained that the Defendant did not put on his indicator to indicate that he was turning left. He said that if the Defendant had indicated where he was turning, he would have slowed down and avoided the accident. Some photographs of the damages done to his vehicle after the accident where tendered through him as exhibit and marked as P4. The picture shows damage to the front end of his vehicle which are quite extensive.
    

Defence Witnesses

17. The Defendant gave evidence by himself. His evidence was very brief.
    
    1. Nelson Liwai (Defendant)
       
18. Nelson Liwai’s testimony goes as follows. He says that on that day he loaded his vehicle with 2x3 timbers at 7 mile and was heading to Kenamu Estate. At the Sivari Street he was driving on the inside lane which is the right lane. When he came close to Kenamu Estate, he said that he gave his signal and turned left. The front of his vehicle went in, he heard a hit sound and he looked and he saw a Taxi Cab hit his vehicle’s trailer. A piece of timber fell off and broke the Taxi Cab’s windscreen.
    
19. He said that when he was turning, he did not see the Taxi Cab. He was traveling at around 40kmph.
    
20. In cross examination, he said that it was a straight stretch of road and was not busy at that time. When put to him that as a driver, it was required of him to check for vehicles when turning, he said yes. When asked if he had checked for vehicles before turning, he said, as he had previously stated, he had already tuned so he got surprised when the accident happened.
    
21. In re-examination, he maintained that he put his left indicator on before he turned.
    

DISCUSSION OF LAW AND EVIDENCE

22. The traffic offence of driving without due care and attention is proven when its necessary elements are proven beyond reasonable doubt. In order to come to come to this conclusion, I ask the following questions;
    
    1. Whether a vehicle was driven by a person; and if so
    2. Whether that person drove the vehicle on a public street or road; and if so
    100. Whether that vehicle was driven by that person on that particular public road without due care and attention.
         

Whether a vehicle was driving by a person?

23. The answer to this question is yes. There is no dispute to the fact that the Defendant Nelson Liwai drove a Hyundai H100 truck registered as BEX 327.
    

Whether that person drive the vehicle on a public street?

24. Again, the answer to this question is in the affirmative and there is no dispute to this fact by both the Prosecution and the Defence. The vehicle was driven on a public street namely Sivari Road
    

Whether Nelson Liwai Drove the vehicle on Sivari Road without due care and attention?

25. I have discussed this question a number of times in a number District Court cases I have presided over. None more so than in the case of Police v Boskey [2021] PGDC 160; DC 7018 (18 November 2021) and Nathaniel v Lausi [2022] PGDC 35; DC8046.
    
26. In both cases, I explained that the major cause of a person driving without due care and attention is mainly attributed to his/her state of mind whilst driving. It happens when a person drives below the standard required of a competent driver or when reasonable consideration is not shown for other persons using the road.
    
27. Generally, a competent driver in my mind is a person who is able to drive with care, is skilled and highly knowledgeable in driving. He/she also has to have the right attitude to observe and follow set traffic rules and regulations. That person must have good observations skills to see what is ahead of them and make appropriate decisions that would ensure the safety of the passengers and also other road users as well. This is the standard that is expected of a competent driver. Another attribute of a competent driver which I find important is showing due consideration to other road users whilst driving.
    
28. Driving without showing due consideration of other road users happens when a person has total disregard for other road users. As per Nathaniel v Lausi [2022] PGDC 35; DC8046, it involves ignorance of road traffic rules and added on to that disregard for other road users. A good example would be a case where a person is driving at 40kmph on a 60kmph road causing a traffic jam. Using a wrong lane and trying to turn suddenly causing the other road user to brake suddenly or cause an accident. Also turning without indicating where to turn and switching lanes at the last moment. These are instances where reasonable consideration is not shown to other road users.
    
29. The case before me is one where due consideration was not shown by the Defendant. His destination was Kenamu estate. The vehicle he was driving was fully loaded with timbers and he was driving on the wrong lane. The most logical thing to do was to drive on the outside lane and when he arrived, he would have simply turned left and driven into Kenamu Estate. In this instance, he was driving on the inside lane which would require him to indicate, stop and wait for other vehicles to pass on his outside before turning in. The Defendant’s evidence shows that he did not check his rear-view mirrors before he turned. He said that he indicated and just turned and the Victims vehicle came and bumped into his vehicle. In cross examination he again reiterated as if to make a point that he had just turned without considering other road users.
    
30. Counsel Ipame for the Defendant also pointed out to the Court of a case which the Victim was found guilty of a similar offence. She asked the Court to take this into consideration when making its decision. Regarding this submission, I find it to be irrelevant and having no weight or bearing to this case. What had happened in that case was dealt with and he was punished accordingly. In this case, he is the victim and her client is the Defendant. The facts and circumstances are different and have to be assessed independently.
    
31. In this case, it is her client who I find is at fault. He drove on the wrong side of the road and when trying to turn left into Kenamu estate caused the accident. His behaviour showed a lack of consideration for other road users.
    

CONCLUSION

32. In light of what has been discussed above, I find that last element of the offence being driving without due care and attention has been proven beyond reasonable doubt. It there for results in all elements been proven.
    

COURT ORDERS

33. I therefore make the following orders;
    
    1. The Defendant is found guilty for the offence of Driving without Due Care and Attention under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: Font and Bleau Lawyers