Nathaniel v Lausi [2022] PGDC 35; DC8046 (4 April 2022)

DC8046

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

WTC 23 OF 2022

BETWEEN

GEORGE NATHANIEL
Informant

AND

JOHN AUGEREA LAUSI
Defendant

Waigani: O Ore Magistrate

2022: 04^th April

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

TRFFIC OFFENCE – Plea of not guilty - Trial - Due Care and Attention – Failure to keep proper look out of vehicles in front – driving at an unreasonable speed or speeding – proven beyond reasonable doubt – guilty verdict returned

Case Cited
Police v Boskey [2021] PGDC 160; DC7018

Legislations Cited
Road Traffic Rules – Road User Rules 2017

Counsel
Senior Sergeant John Wamugl for the Informant
Defendant in person

DECISION ON VERDICT

04^th April, 2022

1. O Ore, Magistrate: This is my decision on the verdict for the Defendant who pleaded not guilty to a Traffic offence.
   

BACKGROUND

Incident

2. The incident that gave rise to the charge against the Defendant occurred along the Wards Road, Hohola, NCD on 09^th of January 2022. It is alleged that the Defendant drove a motor vehicle without due care and attention and caused an accident by bumping into the complainant’s vehicle.
   

Information

3. An information was laid against the Defendant on 14^th of January 2022 containing the following charge:
   

“.... on the 09^th day of January 2022 at Hohola in Papua New Guinea, John Augerea Lausi aged 40 years of Sepoe Village, Malalawa, Gulf Province being the driver of a motor vehicle, towit a Toyota Land Cruiser white s/wagon Reg# BGC 867 upon a public street towit wards road, did drive the vehicle without due care and attention.”

4. The information was laid under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
   

Arraignment

5. The Defendant pleaded not guilty to the charge when arraigned. The matter proceeded to trial.
   

ISSUE

6. The issue I am to decide on is whether the Defendant drove his motor vehicle without due care and attention.
   

LAW

7. The Defendant is charged for driving without due care and attention under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017. This section provides that a driver of a motor vehicle on a public street must not drive without due care and attention.
   
8. The necessary elements of this offence have been discussed in a number of District Court cases. One that comes to my mind is the recent case of Police v Boskey [2021] PGDC 160; DC7018. I found the elements of this offence to be:
   
   1. A person must have driven a specific motor vehicle
   2. The vehicle was driven on a public road
   100. The vehicle was driven without due care and attention
        
9. With the case before me, the first two elements are not in dispute. The Defendant drove a motor vehicle on a public road.
   
10. What is at dispute at the moment is whether he drove the vehicle negligently on a public road.
    

Without due care and attention

11. I have laboriously discussed this element of the offence in Police v Boskey (supra) citing other cases. Driving without due care is simply careless driving by a person that falls below the standard expected of a competent and careful driver. It includes situations which causes inconvenience to other drivers and can be attributed to ignorance of road traffic rules.
    
12. Ignorance of road traffic rules depend on the behavior or poor maneuvers 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.
    

EVIDENCE

Police Case

13. The Police produced 2 witnesses. The first witness called was the Complainant Kharl Ala. The Second witness is Sergeant George Nathaniel who is attached to the 4 Mile Traffic Police. Apart from the witnesses, several exhibits were tendered into evidence. They include;
    

Exhibits

1. P1 – Sketch map of the accident scene
2. P2 – Photographs of damage to the Complainant’s vehicle

100. P3 – Photographs of damage to the Defendant’s vehicle and of the Defendant himself after the accident

4. P4 – Statement by Complainant made at Police Station
5. P5 – Complainant’s Medical Report
6. P6 – Road Accident Report
7. P7 – Statement by the Defendant taken at Police Station
   

Kharl Mark

14. This witness is the Complainant in this matter. At the beginning of trial, he identified the Defendant as the driver of the other vehicle that he was involved in an accident with.
    
15. In his recollection of the events that took place, he says that in the early hours of Sunday, he was driving from his workplace to his residence at Section 2 Allotment 8 in a Toyota Land Cruiser 10 Seater. He was driving around 40-60kmph and the road was clear. He was driving on Wards Road towards Hilton Hotel. He had passed the Hohola overhead bridge, passed Kumarere Street and suddenly heard a scratching noise and a sudden bang. He said that he was hit so hard he bumped into the steer of his vehicle. His vehicle was pushed over the median strip separating the lanes onto the other side and spun and reversed backwards towards Satin Street.
    
16. He says that luckily enough, there were no vehicles on the other lane. He lost control of the vehicle and quickly put the vehicle into first gear. He went out and saw the other vehicle with the distress sign. He felt pain all over his body and was shocked and shivering. He didn’t have time to see the other vehicle. He went straight to the hospital because he had no strength. He lives 200 meters away from the accident scene so he waked to his house and asked the security to drive him to hospital where he was stabilized and discharged the next day.
    
17. In cross-examination, it was put to him that he was driving on the outside lanes and switched lanes. He said he did not switch lanes and had been driving on the inside lane. He denied that he was trying to make a U-turn when he was hit.
    
18. On re-examination, this witness said people at the scene said that the driver of the vehicle was really drunk, restless and sleepless.
    

Sergeant George Nathaniel

19. This witness says that at the time of the accident, he was on duty roster from 11pm to 7am shift. He said that at around 1am, he recived a broadcast call from the Operation Center about an accident along Wards Road at the intersection of Kumarere Street.
    
20. He says that when he arrived at the scene, he noticed that the Complainant’s vehicle was pushed off the road on the opposite lane about 30-40 meters away from the impact zone. He assessed the damage to both vehicles and saw that the Defendant’s vehicle sustained damages to its front with the front bumper bent backwards towards the body of the vehicle. The body was smashed back at the right front tire and in his opinion would not move if driven. The damage on the Complainant’s vehicle was at the back. It was smashed in. He approached the Defendant and asked for his driving license and noted that he was not in a stable mind. He noted that the Defendant was stressed and was intoxicated. He says that the complainant was not around. He was informed that the Complainant was rushed to the hospital. He says that from his observation on the final resting place of the Complainant’s vehicle, the Defendant’s vehicle must have been travelling at a very high speed.
    
21. In cross-examination when asked if he confirmed that the Defendant was drunk, he said that he only confirmed it from his observation of the Defendant. He did not do a breath test.
    

Defence Case

John Augerea Lausi

22. The Defendant gave evidence by himself. In his oral statement. He said that on the night of the accident, he was doing drop off runs and did a last drop off at Taurama and was heading back to his work place. He said that from Wards Road after turning where the overhead bridge is, he was driving on the inside lane. On his way, he saw the Complainant’s car signaling to turn into Kumarere Street Tokara and he was right behind him. Midway coming through, he saw the Complainant signaling out again and pulled in. As he pulled in, the Defendant was already close and he did not have time to think. The only thing he did was to pull out from the right side to the left. He thought he would avoid the vehicle but actually hit it.
    
23. He said that the vehicle he was driving belonged to Dream Inn and was an 8-month-old vehicle travelling at 65kmph. He said that, they should not be here now if the Complainant had let him pass through. He stated further stated that cars have mirrors to look at.
    
24. During cross-examination, he was showed a copy the statement he made at the Police Station. Senior Sergeant Wamugl asked him if driving long hours and being stressed contributed to the accident. He said no. When asked if he was drunk. He said no, the statement he made is exactly what he said in Court. The Defence then closed its case.
    

DISCUSSION OF EVIDENCE

25. Prosecutor SS Wamugl for the Police submits that the Defendant drove a vehicle without due care and attention. They say that the Defendant at that time was under the influence of liquor and driving at a high speed.
    
26. The Defendant denies this by saying that it was the Complainants fault that the accident occurred. He noticed the Complainant signaling to turn into Kumarere Street and continued to drive when the Complainant suddenly gave his signal to pull out again. He said that by then it was too late. In his attempt to avoid the accident by swerving, he hit the Complainant’s vehicle.
    
27. The evidence given by the Defendant during trial is different from the written statement he gave at the Police Station. In his written statement he states that he was very tired and decided to drive quickly to go and clock out and go home. He stated that he was travelling at around 60kmph and saw the white 10-seater in front of him trying to make a U turn. He tooted his horn but it was too late. He turned his steer left and hit the vehicle in front. He stated that he was tired and stressed and it could have clouded his judgment. This version of events is different from the one he gave in Court.
    
28. The photographs of the damage to both vehicles are consistent with the fact that the Complainant’s vehicle was hit at the back by right side of the vehicle the Defendant was driving.
    
29. Evidence by the Complainant is clear and consistent with his written statement. He was driving along Wards Road at around 40-50kmph towards the roundabout before Hilton Hotel where he would turn back and head to his house on the opposite side of the road when his vehicle was suddenly hit by another vehicle. The impact of the hit caused his vehicle to veer of the road over the median strip separating the road lanes and reverse towards Satin Street.
    
30. After assessing the evidence before me, I refuse to accept the evidence given by the Defendant. His evidence seems to have changed over the course of time. I also note that his version of events has also changed in submission where he states that he tooted his horn. This fact was not stated in both his written statement and also when giving evidence in Court. He seems to be making up his story as the case progresses.
    
31. I am not satisfied that the Complainant had indicated to go into Kumarere Street and then changed his mind on the last minute. I say this because, the Complainant in his evidence said that he lives 200meters away from the accident scene. His house is on the other side of road on which his vehicle was hit. After the accident, he walked to his house and was rushed to the hospital by security guards. So, the question I ask myself is, why would the complainant who was heading home late in the night, decide to turn into Kumarere street which leads to Tokarara and not his house on the other side of the road? In my mind, this doesn’t add up. Thus, I refuse this evidence by the Defendant. As to whether the Defendant was drunk, I find no evidence to show that he was drunk. I do not accept the evidence by Sergeant George Nathaniel. He looked unsure when asked by the Defendant if he had observed him to be drunk. He only said that the Defendant appeared to be drunk. Also, there is no other evidence proving this. The evidence by the Complainant cannot be relied on as he was not there and I give no wight to this.
    
32. In summing up all the evidence before me, I find that the Defendant at that time was driving a vehicle at a high speed. He failed to keep a proper lookout of the road ahead. I accept what is said in his written statement that he had worked over his normal shift hours and was tired and was driving hurriedly to go home. Being tired and stressed, his judgement was clouded and caused the accident.
    
33. If he was so tired and stressed, the most sensible thing to do would have been to drive slowly back to his office. Instead, he chose to rush back to his office to home.
    

CONCLUSION

34. Given what has been discussed above, I find that the Defendant did drive his vehicle without due care and attention and caused the accident.
    

ORDER

35. 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 Applicant : Public Solicitor
Lawyer for the Police : Police Prosecutions