State v Wodley [1980] PGNC 19; N239 (11 July 1980)

Unreported National Court Decisions

N239

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
ROSEMARIE WODLEY OF RENNWEBB AUSTRIA

Mount Hagen

Greville Smith J
9-11 July 1980

CRIMINAL LAW - Trial - Dangerous Driving Causing Death - ‘Voir Dire’ to determine admissibility dependent upon a disputed fact - Statement of accused as to speed - not shown to relate to any material time - irrelevance - consequent no case to answer.

GREVILLE SMITH J: In this case the ed is chas charged that on the 10th day of August 1979 in Papua New Guinea she drove a motor vehicle on a road dangerously, thereby causing the death of one Are. The particulars of the dangerous driving alleged were:

(1) &#160essice speed and

(2) &##160;ingilo keto keep a pp a proper lookout.

Evidence was adduced by the State tending to show that tcusedridinonda otorcalongraight level svel stretctretch of h of the main highway from Wapenamanda towa towards ards WabagWabag, at a spot with lengthy visability both fore and aft, at about midday on a fine clear day, and that shortly after she had passed from the outskirts of Wapenamanda her motorcycle struck an old man, Are Igag, thereby causing his death. Such evidence tended to show that when the collision took place the accused’s motorcycle was proceeding along the center of her correct side of the road and that she had applied her brakes over a distance of about eleven meters up to the point of impact, heavily over the last one or two feet. It tended to show that the body of Are Igig was found by the Police about eight feet or somewhat more from the point of impact, and forward of it, about two feet over onto what would have been the accused’s incorrect side of the road. A line drawn from the point of impact to the position of the body would have been at about a 135 degree angle to the path along which the accused had been travelling. The accused’s cycle went from the point of impact to the left, off the road, apparently also at an angle of about 135 degrees, to its former path, sliding on its side, and came to rest about 3 meters from the point of impact. It would appear from the evidence that the accused had been taken to the Emanuel Lutheran Hospital at Wapenamanda before the arrival of the Police on the scene. As things have turned out it is unnecessary to consider these matters further.

The State tendered a record of an interview between the investigating Police Officer, Mr. Robert Ongugo, now an Inspector of Police, and the accused, which took place at the Wabag Police Station on 23rd August, 1979, thirteen days after the accident. The Defence challenged the admissibility of this Record of Interview not, as Counsel stated, on any basis of lack of voluntariness, or insufficient proof of voluntariness, but on the basis that it should be excluded because, as Defence Counsel put it, the accused at the time of interview suffered from amnesia in relation to the crucial events with which the interview dealt. On this somewhat uncertain basis the Court, hoping for enlightenment as matters proceeded, embarked, as both Counsel agreed it should, upon a ‘voir dire’ to determine the question of admissibility.

On the ‘voir dire’ Inspector Ongugo stated as follows. When the accused arrived at the Police Station on the date in question he, knowing that she had been taken to hospital after the collision, asked her if she was alright, and she said she was, except that she had a headache. He said the interview took 50 minutes starting at 11 a.m. The accused was in the Police Office well before the time of interview, for ½ hour to 1 hour, but he had been unable to attend to her immediately because he was engaged on other work. He had not known her before the date of the interview. He said the accused was nervous, not relaxed, and smoking a lot but otherwise appeared normal. She was given a cup of coffee on two occasions. She answered his questions without hesitation. She seemed to have difficulty remembering certain matters. In relation to those matters she told him that she recalled stopping at a service station before apparently proceeding along the road to the point of collision but remembered nothing further until leaving the hospital. The Inspector said he attempted to clarify what had occurred in between, but she said she could not recall.

The Inspector was the only witness for the State on the ‘voir dire’. The first Defence witness was Dr. Christopher Ellicott Lennox, a duly qualified medical practitioner registered to practice in Papua New Guinea, currently and at the date of the collision practicing at the Emanuel Lutheran Hospital, Wapenamanda, Enga Province. Dr. Lennox stated his qualifications as Bachelor of Medicine and Bachelor of Surgery, University of Glasgow, Scotland. He stated that he had been in general medical practice since 1955, the last five years being in Papua New Guinea. He said he had known the accused before 10th August 1979, by virtue of the fact that for about a week before that date she had been attending a nursing course at the hospital. He said that on 10th August she had been brought to the hospital in a truck at about 2 p.m. He attended her then. She had small cuts to the lip and left ear but was also in a state of shock and distress, and completely amnesic as to the preceeding two weeks, being unable to recollect at all visiting the hospital during those two weeks and unable to recollect any participation in the course she had been doing at the hospital. He said she was extremely confused and unable to understand where she was (that is, that she was at the hospital) or why she was there. She was kept in hospital overnight, because physical brain injury was feared. These fears proved groundless. He saw her two days later, and then again about a week after that. That would have been three or four days before the Police interview. He said that her amnesia, which was not due to direct physical injury but to shock had continued, and to the best of his recollection, looking back eleven months, when he last saw her, as aforementioned, the last she could remember was driving towards the scene of the accident and seeing a man ahead by the side of the road. She could not recollect the collision or the details or cause thereof. He said her amnesia followed a well recognized pattern. The witness’s competence to give such expert testimony was not objected to. In saying this I do not mean to imply that such an objection would have succeeded. I simply record the fact of non-objection.

The next Defence witness was the defendant herself. She stated that she was by occupation a general nurse working for the Austrian Services Development Corporation, at the time of the accident known as Austrian Volunteers Abroad. She said she recalled the interview with the Inspector. She said that she was at the time feeling very nervous and tired as she had been finding it difficult to sleep at night. She said she went to the Police Station unaccompanied, in response to a Police request, and that in the interview she answered all the questions she was able. In response to most of them she said truthfully that she couldn’t remember.

She told the Police that she could recall stopping at the “Wase Workshop” (the service station), then being in hospital having her hand x-rayed, and nothing in between. She said that the interview was in two parts, one being a preliminary discussion, and then the second part in which she was asked questions from a list, and a typewritten record was made. Under cross-examination she was asked, obviously from the Record of Interview, whether she remembered being asked by the Inspector the following question, and giving the following answer, namely:

“Q. ҈ Can you tell tell me how fast you were driving at the time?

A. &##160; Not really. The acce accelerator of the bike is 0;bog8221; and the bike couldn’t travel faster tter than 70 KMPH. I guess I might have beee been travelling 70 KM.”

She she t thae talking abng about hout her sper speed over the last part of the time she could remember, that is, up to arriving at the Workshop or service station.

That was the essential evidence on the ‘voir dire’. Neither party moved to have the Court look at the Record so as to see the Q. & A. in context. No doubt they had their reasons.

It will be noted that on her own evidence the accused at the Police Station stated that she could not recall the collision or the circumstances and that her last recollection before hospital was of visiting the service station. It will be noted that Inspector Ongugo confirms that she told him this. Whether this was in the preliminary discussion or later has not been made known to me. Dr. Lennox’s evidence is confirmatory that she would have told the Police that she could not recollect the collision or the details, and confirmatory of the truth of this. It is true that the doctor’s recollection, somewhat uncertain due to lapse of time, was that she could recall up to driving towards what was established as the scene of the accident and seeing a man ahead beside the road. It may be that that was an uncertain or fluctuating recollection that she mentioned at some time to him. In any event it is not on the face of it necessarily or probably a recollection relating to speed at any really relevant time.

The accused thus made two statements to the Police - one in the Q. & A. referred to and one that she could not recollect the collision or any details of it. Leaving these statements themselves aside there is no evidence before me of a change of intention on the part of the accused at the Police Station as to what she would say to the Police, no evidence or suggestion of pressure or anything else that might have induced the abandonment of her statement that she did not recollect, in favour of a statement that she was travelling at 70 KMPH at a relevant time, and no attack by way of cross-examination as to her credibility.

The onus was on the prosecution to establish admissibility. I was far from satisfied that when she was speaking to the Police the accused changed her account of what had happened, or made two inconsistent statements relating to the same events. Especially having regard to the fact that English is not the native language of either the accused or the Inspector, and the fact that the accused obviously had some little difficulty in Court in understanding, for instance she did not comprehend the meaning of the word “guilty”, I formed the view that there might well have been a misunderstanding as between herself and the Inspector, and I was inclined to accept the accused’s statement that her aforementioned reference to speed related to a time before the collision not shown to be relevant.

I therefore found that the question and answer referred to was inadmissible because it had not been shown to be relevant, in that it had not been shown to refer to a fact so connected with the collision as to supply a basis for any inference adverse to the accused in respect of the charge to which she had pleaded not guilty.

By way of another method of putting it, I held that if admitted it would be worthless from the point of view of assisting to establish the offence charged. I might add that the State did not submit that other than proof of speed at the time of the collision the evidence had or could have any relevance in the circumstances of the particular case. I stated in respect of this ruling that I would give full reasons at the end of the case.

Apparently this question and answer were regarded as vital to the State case, for upon such ruling Counsel for the State informed the Court that the State would call no further evidence.

Defence Counsel then submitted that there was no case to answer in that there was no evidence as to just how the collision occurred, or any evidence upon which any blame could be attached to the accused. Counsel for the State quite properly, as such was in my view plainly the fact, did not contest this. I find no case to answer, and the accused is entitled to a verdict of not guilty and to be discharged.

I return a verdict of not guilty and the accused is accordingly discharged.

Solicitor for the State: L. Gavara-Nanu A/Public Prosecutor

Counsel: C. Bourke

Solicitor for the Defence: Beresford Love & Co.

Counsel: M. May