Police v Banda [2022] PGDC 36; DC8047 (7 April 2022)

DC8047

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

WTC 10, 11 & 12 OF 2022

BETWEEN

THE POLICE
Informant

AND

TALAWAI BANDA
Defendant

Waigani: O Ore Magistrate

2022: 07^th April

TRAFFIC OFFENCE – Driving without due care and attention – Section 28 (2) (a) – Road Traffic Rules – Road User Rules – Fail to Stop Vehicle After Accident – Section 33 (a) Road Traffic Rules – Road User Rules 2017 – Fail to report Accident – Section 33 (c) Road User Rules 2017

TRFFIC OFFENCE – Plea of not guilty - Trial – Whether the Defendant drove without due care and attention – Whether the Defendant failed to stop his vehicle after the accident – Whether the Defendant failed to report the accident – Elements of Offences discussed – Evidence assessed – Defendant found not guilty of each offence

Case Cited
Beng v The State [1977] PNGLR 115
Bate v State (2012) PGSC 46, SC 1216 (20th December 2012)
Police v Boskey [2021] PGDC 160; DC7018
Police v Kambrian [2021] PGDC 167; DC 7021

Legislations Cited
Road Traffic Rules – Road User Rules 2017

Counsel
Sergeant Emmanuel Bigam for the Informant
Talawai Banda the Defendant in person

DECISION ON VERDICT

07^th April, 2022

1. O Ore, Magistrate: The Defendant pleaded not guilty to 3 traffic offences. The matter proceeded to trial. This is my decision on verdict after trial was conducted.
   

BACKGROUND

Summary of Facts

2. The accident that resulted in the Defendant being charged happened on 22^nd of October 2021. It is alleged by the Police that at about 3:30pm, the Defendant drove an Isuzu FSR bearing the registration number BFT 592 without due care and attention causing an accident at 5mile round about along the Sir Hubert Murray Highway and Morea Tobo Road Junction. It is further alleged that the Defendant failed to stop after causing the accident and also further failed to report the accident within 24 hours thereafter as well.
   

Charges

3. The Defendant was charged with committing three (3) separate offences under the Road Traffic Rules – Road User Rules 2017. These include:
   
   1. Driving without dues care and attention under Section 28 (2) (a).
   2. Fail to stop vehicle after accident under Section 33 (a).
   100. Fail to report accident under Section 33 (c).
        

Arraignment

4. The Defendant pleaded not guilty to all three charges when arraigned. The matter proceeded to trial.
   

ISSUE

5. The relevant issues this Court is faced with addressing are:
   1. Whether the Defendant drove without due care and attention causing an accident.
   2. Whether after causing the accident, the Defendant failed to stop.
   100. Whether the Defendant failed to report the accident.
        

LAW

6. All 3 offences which the Defendant has been charged for committing are provided for under the Road Traffic Rules – Road User Rules 2017.
   
7. Section 28 (2) (a) states:
   

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

(a) drive without due care and attention;

8. Section 33 (a) and (c) states:
   

Where injury or damage is caused to a person or to an animal or vehicle in the charge of a

person because of an accident in which a motor vehicle is concerned, the driver of the motor vehicle must–

(a) stop his or her vehicle;
(b) .........
(c) report the accident to a Traffic Enforcement Officer or to the officer-in-charge of the police station nearest the scene of the accident as soon as practicable, and 22 in any case within 24 hours.

9. For the Police to succeed with their case, the elements of the offences have to be proven beyond reasonable doubt. The evidence relied on by police have to established or show that all elements exist without any doubt.
   
10. The elements of driving without due care and attention were discussed in the case of Police v Boskey [2021] PGDC 160; DC7018. They are:
    
    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
         
11. For the second charge of failing to stop after causing an accident, the following are its elements:
    
    1. A person must have driven a motor vehicle
    2. Caused an accident
    100. Injury is caused to a person or animal and damages have been done to another vehicle
    4. Failure to stop his or her vehicle.
       
12. The elements of the offence of failing to report are:
    
    1. A person must have driven a motor vehicle
    2. Caused an accident
    100. Injury is caused to a person or animal and damages have been done to another vehicle
    4. Failure to report the accident to a Traffic Enforcement Officer or to the officer-in-charge of the police station nearest the scene of the accident as soon as practicable, and 22 in any case within 24 hours
       
13. The Defendant denies all the charges laid against him and says that at time of the accident, he was doing his delivery runs somewhere else.
    

EVIDENCE

Police Case

14. The Police case is supported by six (6) witnesses and several Exhibits
    

Senior Constable George Koma

15. This witness said that on the 24^th of October 2022, he recived a report about a traffic accident at the 5mile roundabout. He was the lead investigator. He said that his evidence is circumstantial. The accident that happened involved a vehicle owned by Eliseo Supermarket. The Truck has the registration number BFT 592. The truck trailer swiped a PMV Bus. The boss crew of the bus got on a Taxi cab and followed and found out that it belonged to Eliseo.
    
16. The witness said that the accident that occurred was a minor or normal traffic accident. He said that according to his investigations, the truck was driving ahead and the PMV bus came from behind. He said PMV’s should always have to be on the left side.
    
17. From his investigation, the accident occurred on the roundabout at 5 mile. He said that the tracking report of the truck indicated that the truck did travel on that road at that time the accident occurred. Based on the paint on the rear bumper of the truck he arrested the Defendant.
    
18. In cross examination, the Defendant put to this witness that he did not get his full story and that at the time of the accident he did not travel that route because five-mile roundabout was not his normal route. There was no response from the witness.
    

Jacob Gul

19. Jacob Gul is a Constable attached to the Four Mile Traffic Police. He says that he took over the matter from Senior Constable George Koma who fell sick. He saw that there was enough evidence to take the matter to Court.
    
20. He said that according to eye witnesses’ statements, it was reported that the victim’s vehicle and accused’s vehicle ran together and the accused’s vehicle caused the accident without giving due consideration to the victim’s vehicle. When they tried to stop him, he ignored them.
    
21. When asked about the severity of the accident, he said that it was a minor traffic accident which involved a Coaster Bus and Big Truck with registration number BFT 592. He only saw paint mark on the left back bumper of the truck and did not see the bus. He arrested the Defendant on 21^st December 2021. He said the Defendant denied the offence but admitted that he was the only driver who drives that vehicle, an Isuzu FSR Truck Registration No BFT 592.
    
22. He said that when he asked the Defendant if he drove the vehicle at the time the accident occurred, the Defendant answered and said he was the only driver and there was no other driver. He is the only driver that drives the vehicle.
    
23. He said that the Defendant denied causing that accident at that time but admitted driving the vehicle at time. This was confirmed by his supervisor a person named Junior.
    
24. In cross examination, the Defendant said that his side of the story was never taken and did not ask any questions.
    

Ezekiel Dui

25. He was the boss crew of the bus at the time of the accident. He says that at the time, a car bumped their bus and he followed it. When asked what two cars where involved, he said Eliseo FSR 6 wheel with registration number BFT 592 and a Bus. The FSR was white and had Eliseo logo. He was travelling in the bus, standing at the door when the accident happened.
    
26. When asked who drove the big truck, he pointed to the Defendant and said it was him. He also said that there were two passengers with him who wore Eliseo Uniform. He said that when they got into the accident, the bus stopped and the Eliseo Truck continued on. He then got on a cab and chased after the big truck. He caught up with the Truck at the Total round about at Erima and tried to stop him. He was in the Taxi on the inside lane whilst the Truck was on the outside lane. He tried to stop him at the roundabout but the Defendant said “osem wanem”, “osem wanem” and drove towards nine mile and Kennedy Estate. He told the Driver that he got the plate number. They were arguing and driving. The driver of the taxi cab got scared and turned around at the ATS roundabout. He went and put a report at the 4-mile Traffic Police and waited for the Defendant but he did not turn up.
    

Daniel Yama

27. Daniel Yama is the driver of the bus that was involved in the accident. He tells his side of the story of what happened on the 22^nd of October 2022. He stated on that date he was driving a Toyota 25 Seater Coaster Bus. At the roundabout at 5 mile, a vehicle belonging to Eliseo came and bumped into the vehicle he was driving. He said that Eliseo vehicle was travelling from 4 mile whilst he was coming up from 6 mile. He could not recall the plate number but could recall the vehicle having an Eliseo logo. When he bumped into the coaster bus, the truck took off leaving it behind. The bus sustained damage to its front side. He says that he has been a driver since he was young and showed a class 6 PMV permit. He said that after the accident he went an put a report at the Four-mile Traffic Police.
    
28. The Defendant did not ask any questions in cross examination but said that it was not his route and he was not there.
    

Margaret Naki

29. This witness at the time of the accident was a passenger on board the coaster bus. She said that at that time she was selling meri blouse at 6 mile and had got on the bus to go to Gordons. She was sitting in the middle seat. She said that she saw the Eliseo truck bump into them and did not see the driver. She got shocked and screamed.
    
30. She said that she was seated in the middle of the bus and the big truck was on the right side. She clearly saw the plate number and recalled it to be BFT 592. The big truck did not stop when it got into the accident. The bus was greatly damaged. She got out and got on another bus and continued her journey. She thought that the driver of the big vehicle was drunk.
    
31. The Defendant did not ask any questions during cross-examination but instead maintained that that was not his route.
    

Benjamin Kombra

32. He is a Sargent with the Royal Papua New Guinea Constabulary. He says that he has been with the force for over 27 years. He assisted the two Police Officers with investigations. He said that he was present at the accident site after it had occurred and saw the bus. The bus’s front side bumper was ripped off and the glass was shattered.
    
33. The bus was a route number 15. It was green but was painted blue. He assisted in locating the truck and saw blue paint on its left-hand side. He then took photos of the paint on the bumper of the truck and gave it to the investigating officer. He said that there were give way signs on the left of the road.
    
34. The Defendant in cross examination did not ask any questions bust said he was telling the truth and that he was not at the roundabout. Only God knows.
    

Defence Case

Talawai Banda

35. This is the Defendant in this matter. He says that on that day, his boss man rang him at Waigani and he said he did not bump the car. He went to their base and was told to go to the Station. He went to the station and told the Police that he did not drive there and did not bump the car. When asked if what he said was true, he said yes.
    
36. He waited for a while at the Police station and another officer arriver and arrested him. He did not get his side of the story. He paid bail and was released. The witnesses came and talked about what they wanted to say and he still maintained his story.
    
37. The Court then asked him where he was when the accident happened. He replied and said he must have been at the base, he didn’t know.
    
38. In cross examination he said that he drove the vehicle on 22^nd of October 2022 to his base. He said that the only route he follows is from Erima, Gordons and Hohola areas. When asked about the paint marks on the rear bumper of his vehicle, he said that he swiped a shipping container at his base.
    

Desmond Dominic

39. This witness was the travelling with the Defendant on the 22^nd of October 2022. He states that on that date, they did not pass through that area. They went to Gordons, Hohola, Waigani and Erima. They don’t use the 5-mile roundabout way. At that time, they were driving around different locations at Gordons and Erima.
    
40. He says that they were called in after one month to the Police Station. He does not know anything about the accident.
    

Exhibits

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

DISCUSSION OF EVIDENCE

41. The Prosecution’s case is that on the 22^nd of October 2021, the Defendant was driving a motor vehicle on a public street and drove it without due care and attention causing an accident. After causing the accident the Defendant failed to stop his vehicle and further failed to have the incident reported to the Police within 24 hours.
    
42. The statement by the prosecutions witnesses were less coherent and deferred from each other. Witnesses Jacob Gul and George Koma were not at the scene of the accident. Their side of the story is primarily based on their investigations into the matter. George Koma was initially the one doing investigations and handed it over to Jacob Gul after falling ill. They made their arrest based on the paint found at the rear end of the vehicle allegedly driven by the Defendant. The arrest was made a month later on 21^st December 2021. There is nothing in their story that suggests that the Defendant was identified by the Ezekiel Dui at the station who was the bus crew at the time of the incident. Evidence given by both witnesses indicated that the accident was a normal traffic accident and a minor one.
    
43. Ezekiel Dui is the only witness that claims to have seen and argued with the Defendant. He said that straight after the accident, he got on a taxi cab and chased after the big truck. He was on the inner lane and tried to stop the big truck. He could clearly identify the face of the driver as the cab he was in was traveling on the inner lane whilst the truck was on the outer lane. He identified the Defendant in Court as being the driver and said that there were two other passengers with him. All of them wore Eliseo uniforms. His evidence is consistent with his written statement. His attempts to stop the vehicle were unsuccessful so he got the plate number of the vehicle as BFT 592.
    
44. The evidence given by Daniel Yama is quiet confusing and inconsistent. In his story, he says that he was driving the PMV bus on the inside lane while the big truck was travelling on the outside lane. He says that the big truck gave a sudden brake to avoid hitting a car in front and its back trailer ripped off the left front side of the bus he was driving. This statement is inconsistent with the photographic evidence. The Photographs show paint on the left side of the big truck’s rear bumper. If the left side of the bus was ripped off or swiped by the big truck, then the paint marks should have been on the right side of the back part of the big truck’s trailer.
    
45. Margret Naki was a passenger on the bus when the accident occurred. She was seated in the middle of the bus when it got into the accident. She confirms that the damage was done to the bus on its front left front side. I however find it hard to believe that she saw the plate number of the big truck. I also find it hard to believe that she remembered the plate number after more then 5 months since the accident happened. She was seated in the middle of the bus and for her to have a clear view of the plate number is highly unlikely. To have a clear view, one would likely have to be seated at the right window side of the bus.
    
46. The story by Benjamin Kombra is straight forward. He was on his way home when he came across the accident. He saw the bus only and from his observation saw that the front side bumper of the bus was ripped off and the glass was shattered. He said the internal paint of the bus was blue but painted green. He also testified that he took photographs of the big truck with blue paint on the back left side of its trailer.
    
47. The Defendant’s story is that he works for Eliseo Company and drives the said vehicle BFT 592 that is alleged to have been involved in the accident. He however denies causing the accident. He says that at the time of the accident, he did not drive his vehicle at 5mile. He stated that 5mile roundabout way was not his route. He said that he may have been at his base when the accident occurred. He could not remember. He remained calm when giving his evidence.
    
48. The Defendant’s witness Desmond Dominic corroborated the Defendant’s story. He said that on the day the accident, he was with the Defendant. They did not drive through 5mile roundabout area. That was not their route. They normally drove through, Gordons, Hohola, Waigani and Erima. At that time, they were driving around Gordons and Erima. He said that only small vehicles travel that route going through 5-mile roundabout. He remained calm during the examination in chief and cross-examination.
    

FINDINGS

Charge 1: Driving without due care and attention

Whether the Defendant drove without due care and attention?

49. This charge alone lays the foundation upon which the other two charges have been made. If found guilty of this charge, it opens the door to having evidence tested to prove the other two charges.
    
50. The elements of the offence have been outlined above. These elements must be proven beyond reasonable doubt if the Defendant is to be found guilty of the offence. In determining guilt, I will adopt the approach taken by His Worship Magistrate Seth Tanei in Police v Kambrian [2021] PGDC 167; DC 7021 and ask relevant questions. The first question I ask is whether the Defendant drove that particular vehicle on the 5mle roundabout on the 22^nd of October 2022.
    

Did the Defendant on the 22^nd of October 2022, drive the vehicle, an Isuzu FSR Truck Registration Number BFT 592 on the 5 mile round about?

52. This question gives rise to the issue of identification. In the Supreme Court case of Beng v The State [1977] PNGLR 115 (Prentice DCJ, Williams and Kearny JJ) set out guidelines to be used when identification is an issue. They said in that case that:
    

“ in proceedings where evidence of identification is relevant, the Court should be mindful of all inherent dangers, the need for caution before convicting in reliance in the correctness of identification... the court should examine closely all the circumstances in which identification by each witness came to be made bearing in mind the recognition may be more reliable then identification of a stranger, but that even where the witness is purporting to recognize someone he knows, mistakes can be made. When the quality of identification is good, the matter should proceed to verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

53. This case was later applied in Bate v State (2012) PGSC 46, SC 1216 (20th December 2012) Injia CJ, Cannings and Gai JJ. Court held that:
    

“In assessing identification evidence, relevant consideration include, that an honest witness can be mistaken and still be convincing that an identification witness must both be honest and accurate; whether the evidence is corroborated, whether the witness is purporting to identify a person who was a stranger or someone he recognized, the length of time the witness observed the accused (prolonged or fleeting glance), the emotional state of the witness at the time of the incident, the prevailing conditions, the line of sight (did the witness have a clear view of the front or the line of sight interrupted, the witness just see the accused from the side)”

54. The Defendant although admitting to driving the vehicle on that date, denied driving it at 5mile round about. Apart from Ezekiel Dui, I find from evidence that the statements by other witnesses (Daniel Yama and Margaret Naki) identifying the plate number of the Isuzu FSR as BFT 592 are not credible. I am not convinced that they saw the plate number of the vehicle. The accident happened in a split second and everyone was shocked. Daniel Yama in giving his statement could not recall the registration number of the vehicle when asked about it. I am not convinced that they had a clear line of sight towards the plate number of the truck.
    
55. I am also not satisfied that the alleged vehicle Isuzu FSR BFT 592 was involved in the accident. The evidence that arrest was made after noticing that the vehicle had blue paint marks on the back of its trailer on the left side raises doubt in my mind. The driver of the PMV bus gave evidence that he was driving on the inside lane when the truck hit his vehicle. If that is the case, paint marks should have been on the right side of the trailer and not the left side. This is commons sense and muddles up his story.
    
56. As to Ezekiel Dui’s story, I find that after the accident had occurred, he did get on a taxi and chased after the truck. That part of the story is corroborated by the driver of the PMV bus. However, I am not convinced about the latter part of his story that he caught up with the truck and started arguing with the driver who he identified as the Defendant. I say this because firstly, his evidence is not corroborated. Secondly, this witness is purporting to identify a complete stranger who he doesn’t know. The length of time he observed the accused may have been limited given the distance from Total roundabout to ATS roundabout which is not that far. Also, the line of sight is an issue. The witness was in a small taxi cab whilst the Defendant was allegedly in a big FSR Truck. The witness would have been looking up and I am not convinced that he had a clear sight of the driver of the vehicle let alone the two passengers he claims where in the vehicle.
    
57. Apart from the above, there are other questions that I ask myself when refusing to accept his side of the story. For instance, there is a roundabout at Erima big rooster and then traffic lights under the fly over and another roundabout at Total Service Station Erima. These are all places where he would have stopped as you have on coming vehicles using the round abouts and also traffic lights operating. What did he do at these points? Did he stop or just travel through? From the sketch map, the accident is said to have occurred between 3-4pm. This is midafternoon and a time when the traffic would have been moderately busy. There would have been a considerable delay in catching up with purported vehicle. All of these does not make sense or add up.
    
58. Apart from the above, I also find that the PMV Bus bearing the registration number P.383D driven by Daniel Yama to have been unregistered at that time. The accident happened on the 22^nd of October 2022 and the PMV bus registration expired on 18^th of October 2022. Evidence also shows that Daniel Yama’s driver’s license had also expired at that time. He in effect was driving an unregistered vehicle without being licensed. Driving an unregistered vehicle is an offence, likewise driving without a valid license. Persons found committing these types of offences should be arrested and charged. I will not dwell further into that as it is something for the Police to think about. I am merely pointing out what is before me in Court.
    
59. Given the above, I find that the evidence given by the Prosecution does not prove beyond reasonable doubt that the Defendant had driven the Isuzu FSR Truck BFT 592 at 5mile round about at that time. Upon these findings, there is no need for me to discuss the other elements of the charge and also the other charges. The Defendant is therefore found not guilty and acquitted of all 3 charges.
    

ORDER

60. The following are the orders of the Court:
    
    1. The Defendant is found not guilty and acquitted for the offence of Driving without due care and attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
       
    2. The Defendant is found not guilty and acquitted for the offence of Fail to stop vehicle after an accident under Section 33 (a) of the Road Traffic Rules – Road User Rules 2017.
       
    100. The Defendant is found not guilty and acquitted for the offence of Fail to report accident under Section 33 (c) of the Road Traffic Rules – Road User Rules 2017.
         
    4. The charges against the Defendant are dismissed.
       
    5. The Defendant is discharged with his bail money of K500.00 to be refunded immediately.
       

Lawyer for the Applicant : In Person
Lawyer for the Police : Police Prosecutions