Police v Malto [2022] PGDC 33; DC8044 (14 March 2022)

DC8044

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 316 of 2021
BETWEEN

THE POLICE
Informant

AND

GIBSON MALTO
Defendant

Waigani: O Ore Magistrate

2022: 27 January, 23 February & 14 March
      

TRAFFIC OFFENCE – Driving without due care and attention – Section 28 (2) (a) – Road Traffic Rules – Road User Rules 2017

TRAFFIC OFFENCE - Not guilty plea – Trial – Consideration of circumstances of the case - Elements of Offence – Driving without Due Care – Failure to give way -Proven beyond reasonable doubt – Found guilty

PNG Cases Cited
Police v Lano [2021] PGDC 18:DC 5074)
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
Akeya K, for the Defendant

RULING ON VERDICT

14 March 2022

1. O Ore, Magistrate: The Defendant Gibson Malto was charged with one count of Driving Without Due Care which is an offence under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017
   
2. The Defendant pleaded not guilty to the charge and the matter went for trial. After trial, parties made their respective submissions on verdict.
   
3. This is my ruling on verdict after submissions by both parties.
   

FACTS

4. The Police alleged that on the 13^th of October 2021, the Defendant drove a Toyota Mark II Sedan without due care and attention and caused an accident. The vehicle had the registration number T.7477 and was driven on Gabaga Street when it allegedly caused the accident.
   
5. Police arrived at the accident scene sometime later and took the persons involved in the accident to the Police station. At the Police station, the Defendant was formally arrested and charged for driving without due care and attention.
   

ISSUE

6. Whether Gibson Malto drove the vehicle without due care and attention causing an accident.
   

RELEVANT LAW

7. Driving without due care is against the law and is an offence under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
   
8. Section 28 (2) (a) is in the following words:
   

“28 GENERAL DRIVING RULES

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

(a) drive without due care and attention;”

9. I have discussed the elements of this offence in Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021) where I found them to be:
   
   1. A person drove a specific motor vehicle
   2. That vehicle was driven on a public road
   100. The vehicle was driven without due care and attention
        
10. Again, I remind myself that the standard of proof required to obtain a conviction is one beyond reasonable doubt.
    

EVIDENCE

Police Witnesses

11. Police Prosecutor Sergeant Bigam called in 2 witnesses.
    
    1. First Constable Jessica Naki– Arresting officer and Investigating Officer
    2. Stanley Efu – Victim/Complainant
       

1. First Constable Jessica Naki
   

12. This witness is a Policewoman based at 4 Mile Traffic Police Office. She is a First Constable by rank and has served the Royal Papua New Guinea Constabulary for over 10 years. She is currently attached to the Traffic Accident Squad and has been with that section for more than 6 years.
    
13. She says that on 13^th November 2021, she received a radio call about a traffic accident so she attended to it about 30 minutes after the accident happened. The call was about an accident that happened at Gabaga Street. When she arrived at the accident scene, she saw that there were 3 vehicles involved in the accident, one vehicle was a Mazda Atenza which was traveling from the Sione Kami Memorial Church way heading towards Garden Hill. The other was a Kenny Trans Taxi Service Vehicle which was parked and finally a KGM Taxi which was traveling from Dunlop going down trying to turn into Atlantis Club. The vehicles were already moved away from their original positions after the accident when she arrived.
    
14. She said that the collision happened when the KGM Taxi was trying to turn into Atlantis club. Due to the impact, the Mazda Atenza was pushed some 10 meters away and bumped into the Kenny Trans Taxi. Both drivers were asked to go to the Police Station.
    
15. At the Station, she found out that the KGM Taxi should have slowed down and given way but instead turned causing the accident. She then had the Defendant arrested and charged.
    
16. The witness was then shown a copy of the Road Accident Report (RAR) which she identified as being its author. The RAR was then admitted into evidence as Exhibit P1.
    
17. In cross examination, the witness agreed that there are 4 lanes on this section of the road and that 2 were used for parking and the other 2 were used by vehicles travelling up and down that road. When asked if she was there when the accident happened, she said no.
    
18. She went there after the accident had occurred to investigate the accident. After the investigation, she completed her report.
    
    2. Stanley Efu
       
19. This witness is the complainant or victim in this case. He was the driver of the Mazda Atenza driving from the Sione Kami Memorial Church up. During trial, he recognised the Defendant from the accident.
    
20. He says that on the 13^th of November 2021 at around 5pm, he had finished from church and was driving down from 5 mile. He was driving the Mazda Atenza and with him in the vehicle were his mother and nieces. The accident happened between Esco Junction and Courts Junction.
    
21. The KGM Taxi was driving from Garden Hills down. At that section, there is no junction to turn right or left. He knew that he had the right of way to drive on and was driving at around 30-40kph speed mark. He says that the KGM Taxi did a sudden turn and hit him on his front wheel. The impact changed is vehicles direction and he hit the Kenny Trans Taxi and the power pole at the Atlantis Pokies.
    
22. When asked if the KGM Taxi gave his indication to turn right, he said he was concentrating on driving and did not pay attention but he did not see him give his signal. He said that there were no road signs along that road.
    
23. This witness says that since the accident, his car has been grounded. The right wheel is damaged along with the radiator which got damaged on impact with the power pole.
    
24. During cross examination, this witness said he lived at the Department of Works Compound. Counsel for the Defendant put to him that he was driving at very high speed and caused the collision. He responded saying that it was not true and that he was driving at a speed between 30-40kmph and that it was the KGM Taxi that hit him and not him hitting the KGM Taxi.
    

Defence Witnesses

25. The Defendant did not call in any other witnesses to give evidence. He gave evidence by himself.
    

Gibson Malto

26. Gibson Malto says that on 13^th November 2021, he was driving at Gabaga Street. He came to Garden Hill and drove down to Dunlop and parked at Dunlop side. He gave his signal and came out heading towards Atlantic Club. As he was turning, a car came speeding along and hit his car. There were light showers at that time. The driver of the other vehicle got shocked and swerved out and hit the Kenny Taxi and the power pole. His car’s engine was still on.
    
27. People came and hit him and assaulted him and got his phone. They said that he was wrong so they beat him up. The Police arrived in a Nissan Patrol and stayed with him. It took 30 minutes for the Traffic Police to arrive. They did not get his side of the story and wrote an unfair statement. He was then charged and locked up in the cells where he was later released on bail.
    
28. In cross examination, a series of questions were put to him by Sergeant Bigam;
    

Q. What was the speed limit?

Ans: I was parked and wanted to turn and the vehicle bumped into me.

Q. I put to you that you did not put your signal and caused the accident?

Ans: I gave signal and was trying to turn.

Q. I put it to you that when you bumped the car, you pushed it towards the Kenny Trans Taxi?

Ans: No I did not bump him, he bumped into my car and was shocked and swerved towards Kenny Taxi Services.

29. The Defence then closed their case after no questions were made on re-examination.
    

ANALYSIS OF EVIDENCE

30. The Police in their case say that the Defendant drove his vehicle without due care and attention causing the accident. They say that this all happened when the Defendant in trying to make a right turn, failed to take reasonable care by not observing the oncoming traffic and waiting before turning right. By not doing this and hurriedly turning right, he caused the accident.
    
31. Prosecutions first witness was not an eyewitness to the accident. She arrived 30 minutes later and did her investigations. As to how she did her investigations, we do not know. But after her investigations, she concluded that the Defendant was at fault so he was arrested and charged. Her final investigation report in the form of the Road Accident Report showed that the Defendant had failed to wait and give way to the oncoming vehicle.
    
32. The Prosecutions second witness who is the victim gave his side of the story. His story or recollection of the events is clear. He was driving along with his family after church service and all of a sudden, a taxi cab turns into his lane and bumped into his right side, damaging the tyre and causing him to lose control and hit a Kenny Trans Taxi and eventually veer further off the road hitting a power pole.
    
33. The photographs taken (exhibit P2) are consistent with the second witness’s story. The photographs show the Mazda Atenza with extensive damage to its right wheel side. One can also see the vehicle been pushed into the power pole with damage to its front bumper.
    
34. The Defendant’s story is that he was parked, gave his signal to turn and was bumped by the other vehicle. The other vehicle’s driver upon impact, got shocked and swerved away hitting the Kenny Taxi and power pole. The other vehicle was speeding at that time.
    
35. I find the Defendant’s story hard to believe. From his story, he says he was assaulted by the members of the public after the accident. When asked why he was beaten, he said that they said he was wrong. This gives a clear indication of who was at fault.
    
36. Also, his story is not consistent with the photographic evidence. If his vehicle was stationary, the accident wouldn’t have happened. The Mazda Atenza would have just continued on driving past unless the following scenarios took place. Firstly, in order for his vehicle to be hit, the Mazda Atenza would have left the lane it was travelling on, veered off and hit his vehicle front on. Or secondly, made a sudden right turn hitting his vehicle. There is no evidence by him to show that the Mazda Atenza had switched lanes or better still made a sudden right turn into his vehicle.
    
37. The only scenario an ordinary person would draw from this is that the Defendant made a sudden right turn and rammed into the right side of the oncoming vehicle. The impact would have caused the other vehicle to veer of the road. The sketch drawn on the white board during submissions and also on the Road Accident Report Confirms this. The bystanders and people who were on the scene, saw this and blamed him for causing the accident and assaulted him.
    

DISCUSSION OF LAW AND EVIDENCE

38. To secure a conviction, all the elements of the offence must be proved to exist beyond reasonable doubt.
    
39. From the evidence before me, I find that the first two elements of the offence have been proven in that the Defendant drove a motor vehicle namely a Toyota Mark II Sedan Registration No T7477upon a public road namely Gabaka Street. These are not in dispute and the Defendant has admitted to these.
    
40. The main element in dispute is whether he drove the vehicle without due care and attention.
    

Driving without due care and attention

41. As per the case of Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021), 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.
    
42. The act of without due care is best summarised in Police v Lano [2021] PGDC 18: DC 5074 where the Court (Magistrate Komia) states that:
    

“Negligent driving or driving without due care is therefore, and an act of carelessness attributed by ignorance and blunt disregard of the road safety rules such as driving a vehicle that is unregistered, improperly serviced, with smooth tyres, no rear lights, no park lights, no brake lights and signal lights, no proper brake pads, exhaust puffing excessive smoke and many other related matters regarding a motor vehicles use by its owner or persons without due regard to the general safety of the public. Apart from that, even if the vehicles are full serviced and functional, if a driver fails to give way at a give-way sign despite an oncoming vehicle, fails to give its signal indicator when approaching to turn at an intersection of the road with multiple junctions, and speeding down a road without due regard to the speed limits, then these are all examples of the act of negligence by a driver. It is not a one-off definition. The actions of a driver create the scenario of negligence.”

43. By failing to give way or by failing to indicate where your turning are all acts of driving without due care. No consideration is given to the road users. This is the case here. The Defendant failed to give way to the oncoming vehicle instead making a right turn as the other vehicle was passing by. His failure was witnessed by bystanders who assaulted him for being the wrong doer.
    
44. In this case, the element of driving without due care is proven beyond reasonable doubt. I accept the evidence by the Prosecution and find that all 3 elements of the offence exist and have been proven.
    

CONCLUSION

45. In light of the above, I find that the Police have proven their case beyond reasonable doubt. I find that the Defendant did drive his vehicle without due care and attention causing the accident.
    

COURT ORDERS

46. 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: Ponepai Lawyers