Godfrey v Berry [2022] PGDC 60; DC8063 (22 April 2022)

DC8063

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 173 OF 2021

BETWEEN:

STEVEN GODFREY
[Informant]

AND:

SUE BERRY
[Defendants]

Waigani: Paul Puri Nii

22nd April 2022

TRAFFIC PROCEEDINGS: Charge-Without due care and Attention-Section 28(2)(a) of the Road Traffic Regulations Act. Witness statements- State evidence- suitable formation of a case beyond reasonable doubt - elements of the charge persistent –Evidence is equal- Defendant is guilty.

PRACTISE AND PROCEDURE: Testing of evidence –witness statements examined accident at Waigani drive near the Theodist supermarket. Defendant’s vehicle travelling towards north from Boroko area and victim’s vehicle travelling towards south from Boroko Motors area-accident at the ‘U-turn’ near the Theodist area.

PNG Cases cited:

Police v Koka [2021] PGDC 53; DC6010
Police v Enoc Apami [2020] WTC 634 (Unreported)

Overseas cases cited:

NIL

REFERENCE

Legislation

Road Traffic Regulations
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Sergeant Bigam For the Informant
Young and Williams: Menchie Numi For the Defendant

RULING

22^th April 2022

INTRODUCTION

NII, P. Paul Magistrate. Defendant pleaded not guilty to the charge of Driving without due care and attention under Section 28(2)(a) of the Road Traffic Regulation and subsequently witnesses were called in for a full trial. The decision on penalty is after trial.

CHARGE

1. Defendant is charged under Section 28(2)(a) of the Road Traffic Regulations. The particulars of the charge is exposed below:
   

28. General Driving Rules.

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

(a) drive without due care and attention.

BRIEF PARTICULARS

2. Police allege that defendant is aged 47 years old and of Keari village of Sol Nomane in Chimbu province. Police further allege that on 23^rd May 2021, defendant was driving a motor vehicle described as a Toyota Dyna, green in colour and bearing the registration number of BFT 034 which was driven on a public street at Waigani driver but he drove the said motor vehicle without due care and attention thereby causing an accident involving the Complainant’s vehicle.
   

ISSUE

3. Whether or not the defendant is liable for the offence of driving without due care and attention under Section 28(2)(a) of the Road Traffic Regulations.
   

THE EVIDENCE

4. The evidence tested is from the defendant and state witnesses. Defense has called in three witnesses and State has called 2 in witnesses.
   

ELEMENTS OF THE OFFENCE

5. In Police v Koka[2021]PGDC 53; DC6010, I had adapted the elements of the subject offence in Police v Enoc Apami [2020] WTC 634 (Unreported) as:
   

a. A person drove a specific motor vehicle;

b. That particular vehicle was driven on a public road; and

c. That the vehicle was driven without due care and attention.

Police evidence

a) Peter Johanese –victim bus driver –(First state witness)

6. This witness says he was the victim bus river bearing registration number P 692D and says at 4pm he was driving along Waigani driver towards Boroko way and was on the outside lane since he was intending to turn in left at Ahuia Street from the old seeto kui building. Witness says the defendant was travelling towards Vision city way until he reached the U-turn section that intersects the driveway to Theodist. Witness said he had already occupied the left lane but the defendant drove through and bumped his vehicle.
   

b) Sergeant Jeffery Steven- (Second State witness)

7. This witness says he is a policeman who was travelling to Gordons from Boroko along Waigani drive way until he drove near the U-Turn sign. He says he was driving on the middle lane and was the fourth vehicle behind the defendant’s vehicle. He says he saw the defendant made a U-Turn and drove towards the third lane on the right and bumped the victim's vehicle. Witness says after the accident he went to the scene and controlled traffic and also asked the parties to report to the traffic office. Witness says during the investigation it was revealed that the defendant was at fault and thus the defendant was arrested and charged.
   

Defense evidence

c) Sao Berry-Defendant (First defense witness)

8. Witness says on 23^rd April 2021 he was doing his ordinary delivery duties. He says he did a refill at the gas station before proceeding to Waigani drive until the U-turn section where he was negotiating to make a U-turn since there were two cars before him. Defendant says the traffic was busy but when he was making his U-turn some traffic on the Waigani drive leading to the Boroko area gave way. Defendant says as soon as he had approached the second lane the Complainant’s vehicle came and bumped his vehicle.
   

d) Penias Berry-(Second Defense witness)

9. This witness says he was with the defendant in the same vehicle and encountered the accident. Witness says traffic was busy and after they had driven to the U-turn section the defendant’s vehicle was bumped by the Complainant’s vehicle and the impact was on lane 2.
   

e) Sereke Gurago-(Third defense witness)

10. Witness says him and the other state witness including the defendant were travelling on the same vehicle until the vehicle was bumped by the Complainant’s vehicle. He says on 23^rd April 2021, after refueling they were travelling on the Waigani drive until they came to the U-turn section near Theodist stationery shopping where they had encountered the accident.
    

AFREED FACTS

11. On 23^rd April 2021 along the Waigani drive near the Theodist stationery shopping center, there was a road accident near the U-Turn section.
    
12. The defendant’s vehicle was driven by Sao Berry and the Complainant’s vehicle was driven by Peter Johannes.
    

DISPUTED FACTS

13. Defended says the accident occurred on the second lane while State says it was on the third lane.
    

TESTING OF EVIDENCE

14. I have tested out all the evidence presented and noted that there was an accident on the 23^rd of April 2021 at 4pm along the Waigani drive near the Theodist stationery supermarket. It was an accident involving a vehicle driven by the defendant described as bearing the registration number BFT 034 and Complainant’s vehicle with registration number as P692D. There is no issue about the accident; however, the issue is who is at fault under the guidelines in Road traffic Regulations?
    

RULING

15. I have seen that all people giving evidence are parties to the accident scene and they all have given an account of what each had witnessed. The Waigani drive stretches from the 4 mile roundabout and goes all the way to NRI and back road to the roundabout that separates Baruni road and Sivari road. Otherwise the road in between these is called the “Waigani drive”. The road of accident near Theoditst is therefore “Waigni drive” since it is in-between the 4 mile roundabout and the roundabout that separates Baruni and Sivari roads.
    
16. The Waigani drive near the accident scene is separated by a long traffic island making it 3 lanes on either side. The lanes should be described depending on which side one is using the Waigani drive. State witness says the driver of the victim's vehicle was on the third lane meaning he was driving on the outside lane travelling towards Boroko way. However, Defendant says the collusion occurred on the middle lane meaning on the second lane towards Boroko way.
    
17. Defendant and witnesses Pinias Berry and Sareke Gurago say traffic was busy on the 23^rd of April 2021 at 4pm but they made a U-turn because the traffic on the opposite side stopped and gave them way to intersect into the opposite direction. Defendant says the victim drove into the second lane and caused the accident. Defendant during cross examination says the three lane stops near the U turn and form the U-turn section towards Boroko was 2 lanes.
    
18. My correct investigations about the correct streets and lanes of roads in NCD revealed that the road by-passing Theodist all the way before reaching the intersection of Ahuia Street near the old seeto kui building is 3 lanes. However, the outside lane follows Ahuia street passing the old Seeto Kui building making it only 2 lines to go through before reaching the bus stop before the under tunnel. Although the defendant says the victim vehicle changed lane and drive into the second lane thus accident was caused because the three lanes stops there, this evidence is not true because the third lane does not stop there and thus I will rule that the victim vehicle was on the outside lane or the third lane travelling towards Boroko way. Consequently, I rule that the accident was caused on the third lane.
    
19. A U-turn sign is a sign permitting a vehicle to turn its direction around at an intersection and travel in the opposite direction by using oncoming lanes. An U-turn sign is not a give way sign nor a sign permitting a traffic to intersect but it is a sign for vehicles to go the opposite direction if and only when there is no oncoming traffic occupying the oncoming lane. If the oncoming lane was occupied or busy with traffic, then the vehicle proposing to negotiate the U-turn must stop and wait.
    
20. Therefore when the defendant’s vehicle was permitted by the oncoming traffics to intersect at the U-Turn, Defendant at all times owed to the oncoming traffics an extraordinary responsibility of precaution because he was intersecting at the mercy of the oncoming traffic but not through a lawful traffic signal for him to intersect. The principles in Police v Koka[i] is appropriate here. Although both drivers owe a duty of care while on the public road, the one that sees or has knowledge that his/her act would cause any accidents or an accident was about to be caused by the opposite driver should act first to avoid any accidents.
    
21. Defendant was permitted by the vehicles on the inside and middle lane to intersect the U-Turn but not the vehicle on the third or outside lane. Defendant from a sensible man’s point of view could have driven with restraint and caution because the driver of the vehicle on the last or third lane did not permit him to intersect and thus he should have exercised caution and care to avoid an accident from traffic on the third lane. The victim driver on the third lane had no knowledge that the defendant was intersecting because he was not part of the vehicles at the middle and inside lanes that permitted him to intersect at the U-Turn.
    
22. A driver who is driving at the mercy of oncoming traffic must exercise the standard of caution that would be anticipated by an average, sensible and careful person in similar circumstances to evade unlawful responsibility. However, that was not done and thus an accident was caused.
    
23. In my ruling, I am satisfied that on the 23^rd April 2021 at 4pm, the defendant was driving a vehicle with registration No BFT 034 on the Waignai drive from Boroka way until reaching the U-Turn near the Theodist stationery supermarket and intersected the road to the opposite direction toads Boroko way. In doing so, the defendant drove the said vehicle without due care and attention thereby causing the accident on the victim's vehicle.
    

CONCLUSION

24. I have considered and studied all evidence presented before me by both defense and police. However, I am satisfied with Police evidence that the defendant has a case to answer for the charge under Section 28(2)(a) of the Road Traffic Regulations. Thus, I will return a verdict in favor of the police.
    

ORDERS

25. My Orders:
    
    1. Defendant is found guilty by the court for the offence of Driving without due care and Attention under Section 28(2)(a) of the Road Traffic Regulations.
       

Public Solicitor For the defendant
Police Prosecutor For the State

[i] [2021] PGDC 53; DC6010