Moere v Mauta [2022] PGDC 77; DC9013 (28 July 2022)

DC9013

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 101 of 2022
BETWEEN

LEANA MOERE
Informant

AND

HELA MAUTA
Defendant

Waigani: O Ore Magistrate

2022: 28^th of July
      

TRAFFIC OFFENCE – Careless Driving – s 40(1) – Road Traffic Act 2014

TRAFFIC OFFENCE- Not guilty plea – Trial – Consideration of circumstances of the case - Elements of Offence – Careless Driving – Elements proven beyond reasonable doubt – Guilty verdict returned

PNG Cases Cited
Police v Ango [2022] PGDC 32; DC8043 (10 March 2022)
Nathaniel v Lausi [2022] PGDC 35; DC8046

Overseas Cases

References

Legislation
Road Traffic Act 2017

Counsel
Wamuru J, for the Informant
J Kolowe, for the Defendant

RULING ON VERDICT

28^th of July 2022

1. O Ore, Magistrate: The Defendant Hela Mauta has been charged with one count of careless driving under Section 40 (1) of the Road Traffic Act 2014.
   
2. On a plea of not guilty, trial was conducted with submissions on verdict made. The matter now returns for my decision on verdict.
   

FACTS

3. The Police allege that on the 20^th of December 2021 on the Poreporena Freeway Road adjacent to the Ungai Oval bus stop at Gordons, the Defendant drove a motor vehicle carelessly. A summary of the charge is contained in the information and is in the following words:
   

“Did drove a motor vehicle to wit, a black Howo semi-trailer truck, registration number: BGD 704, in a careless manner upon a public street namely, Poreporena freeway road, adjacent to Unagi oval bus stop (Gordons).”

4. It was because of this alleged incident that the Defendant was arrested and charged by the Police for one count of careless driving in contravention of Section 40 (1) of the Road Traffic Act.
   

ISSUE

5. Whether or not the Defendant drove a motor vehicle carelessly?
   

RELEVANT LAW

6. Section 40 (1) of the Road Traffic Act 2014 reads as follows:
   

40. CARELESS AND NEGLIGENT DRIVING.

(1) A person who drives a motor vehicle in a careless or negligent manner on a public street is

guilty of an offence.

Penalty: A fine not exceeding K6,000.00.

7. From the excerpt of the provision above, the offence itself is made up of the following elements:
   
   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 in a careless or negligent manner.
        
8. These are the elements that need to be proven beyond reasonable doubt for a conviction to be sustained.
   

EVIDENCE

Police Witnesses

9. Three (3) witnesses were called in by Police to give their evidence. They included
   
   1. Mervan Rupu (Complainant)
   2. Wani Veu (Complainant’s Wife)
   100. Detective Chief Inspector Leana Moere (Case Officer/Investigator)
        

1. Mervan Rupu
   

10. The story given by Mervan Rupu is that on the 20^th of December 2021, he got involved in a car accident with a vehicle that was driven by the Defendant. He said that at that time he was driving a Mazda Atenza sedan bearing the registration number BFR 400. In the vehicle with him were his mother, wife and two children. His mother was seated in the offside seat in the front cabin with him whilst his wife and two children were seated at the back of the cabin.
    
11. He says that at that time in the morning, he was driving opposite the Unagi Oval. He was driving on the outside lane and was concentrating on the road. He was not speeding at that time and was heading to Koki. All of a sudden, a vehicle came from behind and his vehicle was somehow hit at the rear end. He says that when he looked up, he saw the bumper of the Defendant’s vehicle attached to his vehicle in front of him. His vehicle was pushed forward further but somehow reversed out and flew down from the trees down into the drain.
    
12. He was in shock and didn’t know what type of vehicle had hit his vehicle because he was concentrating on the road. He was later on told by by-standers that a vehicle belonging to PIES Transport caused the accident. The by-standers gave him the number plate of the vehicle. He found out later that the vehicle that had hit them was a semi-trailer which was not carrying any cargo container at that time.
    
13. In cross-examination, he said that he was travelling at around 60kmph and further stated that his vehicle was pushed forward for approximately 10 meters when he suddenly reversed out into the drain. He said the impact of the vehicle hitting his vehicle was big and he still felt the effect.
    
    2. Wani Veu
       
14. Wani Veu recalls that it was a sunny day at that time. They had left their home at 9 mile and were heading to Koki. They had passed the street coming out from Gordons International School. There was no vehicles on the road. She was sitting at the back seat of the car with her two children whilst her husband and his mother were in front. Her husband was driving. She heard a bang on the car and thought that a drunkard had hit them. As she turned, she saw that they were attached to the front of a big vehicle. It pushed their vehicle forward for almost 10 meters. She must have passed out and realised that all of a sudden, they were in the drain.
    
15. They did not sustain any injuries. The big vehicle hit them and took off. By-standers informed them of the big vehicle and they went and looked for it and located it. They took photographs of the paint marks on the big vehicle. The vehicle is owned by a company called PIES. PIES agreed to fix the vehicle and settle the matter out of Court and that never did eventuate.
    
16. After two weeks, they went to the Traffic Police and reported the matter. Officers there attended to them but no arrests were made. They then called Detective Chief Inspector Leana Moere who then did his investigations and arrested and charged the Defendant.
    
17. In cross-examination, she said that she was seated in the middle at the back seat. As she looked out, she saw the truck and the last thing she remembered was in the drain. She does not know how they ended up in the drain.
    
    100. Detective Chief Inspector Leana Moere
         
18. He says that this matter was brought to his attention in January 2022. There was a long delay in investigations and the matter was reactivated on 31 March 2022. He went down to the Defendant’s work place and his bosses identified him as the driver of the big truck. He explained to the Defendant why he was there and reminded him that he had caused the accident. All parties including himself then went to the accident site and parties explained what happened.
    
19. Based on his investigations, he had the Defendant arrested and charged.
    

Defence Witnesses

20. Two (2) witnesses gave evidence on behalf of the Defence. They include:
    
    1. Raymond Luke (Operator with PIES)
    2. Hela Mauta (Defendant)
       
    1. Raymond Luke
       
21. He is an operator with PIES. At that time, he was seated in the passenger seat of the truck beside the Defendant who was driving. He said that they drove along Gordons Market. They were travelling on the inside lane. He said that at the roundabout, the Defendant was travelling at 7^th gear at below 40kmph. He said that he did not see the small vehicle as he had pushed his seat back and was laying down. He only felt the Defendant turning the steer and said “yumi mas accident”. When he looked down, he saw that they were in an accident.
    
22. The glasses on the vehicle’s windows were down. The Defendant applied his breaks. He said that people were attacking them so in fear of their lives, they took off. A container was thrown at his face. When asked how their vehicle hit the small sedan, he said that when he looked, he saw the small vehicle stuck on their tyre. He does not know how long the car was pushed forward. He said the small car reversed by itself down the drain.
    
23. In cross-examination, he said that he did not know how the accident happened as he was sleeping. He only found out that there was an accident when he was informed by the Defendant and when he looked down saw the small vehicle stuck in the big vehicle’s tyre.
    
24. He also further stated during cross-examination that when they hit the small vehicle, it swerved to their lane facing Unagi Oval and they dragged it.
    
    2. Hela Mauta
       
25. Hela Mauta is the driver of the big truck and is the Defendant. He says that on that day at 11:30am, he drove from 9 mile and was heading to Hohola going past Gordons Market. There was a small vehicle at the back travelling up. He said that there are four mirrors on his truck and he could see vehicle’s coming from the back.
    
26. He said that he was on the inside lane and the small car was on the outside lane. The small vehicle came close to his left side tyre and touched it and that dragged the vehicle in. He was on 7^th gear travelling at less than 40kmph. His vehicle pushed the small vehicle forward for less than 5 meters. He said when he stopped the twin stear vehicle he was driving, the small car reversed out all the way down to the drain. The by-standers were throwing stones at them so he took off and reported the accident to their base. They then went straight to their base for safety reasons.
    
27. In cross-examination, the Defendant said that he started driving in 2015 and holds a class 4 and 6 driver’s licenses. When asked if he had seen the small vehicle in front, he said no. they came from the back and themselves got stuck on his tyre. They came close and he tried to apply his brakes and they got stuck in the tyre. There is a curve at the stretch of road. He denied bumping into the small vehicle at the curved when it was put to him. The Prosecutor put to him that he was close to the white line and caused the accident to which he replied that he saw the vehicle on the front mirror and said he did not move to his side. He maintained his story that the small vehicle was at fault when it touched his vehicle’s tyre dragging it in. He maintained his side of his story.
    

DISCUSSION OF LAW AND EVIDENCE

28. Mr Kolowe for the Defendant questioned the validity of the arrest of the Defendant. He submitted that the arrest of the Defendant by Chief Inspector Moere was not legal and was not proper. He submitted through his written submission that Chief Inspector Moere is a church member of the Complainant and is also a close family friend of theirs. I do accept this submission because of the following reasons.
    
29. Firstly, there is no evidence before this Court to substantiate the claim that the Chief Inspector is the Complainant’s Church member and a close family friend. None of the witnesses both prosecutions and Defence gave evidence on this.
    
30. Secondly, Chief Inspector Moere is a commissioned member of the Police force and the arrest made by him is lawful. As a Police Officer, he is authorised to make an arrest if he believes on reasonable grounds that the Defendant had committed an offence. Counsel has also not pointed out to this Court any relevant provisions of relevant Acts of Parliament that was breached or case laws to support his submissions.
    
31. Because of the above, I find the arrest of the Defendant to be lawful. I now turn to the substantive issue at hand.
    
32. In deciding whether or not the Defendant drove his vehicle carelessly or negligently, the following question will be asked.
    
    1. Was the Defendant the one who drove the motor vehicle?
    2. If so, was the vehicle driven on a public road?
    100. If so, was the vehicle driven in a careless or negligent manner?
         

Was the Defendant the one who drove the motor vehicle?

33. The answer to this question is yes. This issue is not disputed as both parties have acknowledged that the Defendant was the one who drove the motor vehicle.
    

If so, was the vehicle driven on a public road?

34. Again, the answer to this question is yes. The vehicle was driven on a public road namely Poreporena Freeway.
    

Was the Vehicle driven in a careless or negligent manner?

35. What is driving in a careless or negligent manner? In Police v Ango [2022] PGDC 32; DC8043 (10 March 2022), driving in careless or negligent manner is driving without due care and attention. As stated by the Court in that case, it is:
    

“... driving that falls below the reasonable standard expected of a competent driver or driving that does not show reasonable consideration for other persons using the road.”

36. Some instances where a vehicle may be seen as being driven in a negligent manner in include, tailgating, failing to look properly or keep a proper lookout, sudden breaking, overtaking on the inside lane hogging, running a red light, using a mobile phone whilst driving and the list may go on. It depends largely on the behaviour of a person whilst driving (See Nathaniel v Lausi [2022] PGDC 35; DC8046).
    
37. When considering whether an offence has been committed or not the Court is required under Section 41 of the Road Traffic Act to consider:
    
    1. The nature, condition and use do the place in which the offence is alleged to have been committed; and
    2. The amount of traffic that was or might reasonably have been expected at the time to have been in the place where the offence is alleged to have been committed.
       
38. The weather was fine at that time and there were not many vehicles on the road. From evidence given by witnesses, both vehicles were the only vehicles travelling together that time. The Prosecutions witnesses say that they were hit from the back whilst the Defendant in his testimony says that the Complainant drove from behind and got caught on his vehicles tyre and was dragged in. These are two different versions of events that took place. Witnesses from both sides also confirm that there is a bend in the road where the accident happened.
    
39. I find the evidence given by the Mervan Rupa and Wani Veu to be truthful in that they were hit from the back. The photographs taken by Wani Veu proves this by showing the back bumper of their vehicle hanging loosely from the impact. I find that by hitting the small vehicle at the back caused it to get caught in front of the big vehicle.
    
40. This leaves me with the question of whose fault was it that caused the accident. Was it the Defendant’s fault or was it Mervan Rupu’s fault? Mervan Rupu says that he was concentrating on the road ahead. This part of his evidence is supported by his wife Wani Veu. He was driving at around 60kmph and was on the outside lane. He was shocked when he was hit from behind and realised that his vehicle was already in front of the big truck being pushed forward.
    
41. Hela Mauta in his evidence says that he had four mirrors on his vehicle and could see vehicles coming from the back. He said that he saw the small vehicle coming from the back and got stuck on his vehicle’s left wheel and was pushed forward for some 5 meters. If he saw the small vehicle coming from the back, he should have taken steps to avoid any accident. A reasonable driver would have immediately done something like tooting your horn, slowing down or turning the steer away from the vehicle. Here, the Defendant kept driving on. He was in a big vehicle and had all the advantage. I find the actions of the Defendant to be careless and negligent in that he failed to keep a proper look out and also failed to take reasonable steps to avoid the accident.
    
42. The accident itself was serious. Luckily enough, no lives were lost or injuries sustained. From the evidence given by Wani Veu, after being hit and seeing that they were stuck to the front bumper of the big truck, she forgot what happened and only remembers being in the drain.
    
43. I also do not accept the evidence by the Defendant that they were travelling at less than 40kmph. This is because if he had been travelling at that speed, it would have been easier to come to a stop quickly. Here the small vehicle was pushed forward for some meters and managed to reverse out after the truck came to a stop.
    
44. In light of the above, I find that the Defendant did drive his vehicle in a careless manner by not considering other road users.
    

CONCLUSION

45. I therefore find that the third element of the offence is proven and the prosecutions have proven their case beyond reasonable doubt.
    

COURT ORDERS

46. I now make the following orders;
    
    1. The Defendant is found guilty for the offence of Careless and Negligent Driving.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Defendant: Public Solicitors Officer