State v Kepolo [1980] PGNC 23; N243 (18 July 1980)

Unreported National Court Decisions

N243

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
PETER KEPOLO

Mount Hagen

Narokobi AJ
16-18 July 1980

NAROKOBI AJ: Peter Kepolo s charged undd under s. 336 (4), that he drove a motor vehicle dangerously, causing the death of a male person named Samuel Pombra. The charge is that he drove on a public highway, running between Wabag and Mt. Hagen, at a place called Togoba, where he had an accident the subject of this trial.

The defence does not dispute the fact that the accused did drive a motor vehicle on a public highway and that as a result of that driving an accident did occur resulting in the death of the deceased.

The only issue in this case, as in most cases of dangerous driving causing death is whether the driving was in all the circumstances of this case, and in particular of that vehicle, of that driver, of that time, of that road, and of that manner of driving, and the rate of speed, the position of the vehicle, all amounted to dangerous driving which caused the death of a human life.

The standard of driving necessary in a criminal case goes beyond the civil standard of driving in a tort case. But, as deaths go, the standard of care, in driving to sustain a finding consistent with a finding of a criminal manslaughter is again different. By that I mean that in criminal cases involving dangerous driving causing death, the State has to prove beyond a reasonable doubt that death was a result of the accused’s dangerous driving. However, in manslaughter, a very high degree of reckless driving and disregard for human life has to be proved by the State.

In dangerous driving causing death cases, it is my view that the State has to prove a standard of care beyond a civil standard of driving care, but the court may deduce dangerous driving from facts prior to the accident and the resultant facts. Of course the court must not be misled into assuming that every death resulting from a motor vehicle accident is the result of dangerous driving. In this case, I am especially mindful of that danger. In dangerous driving causing death cases, it is not necessary to prove a high degree of reckless driving.

The issue I have to resolve in this case seems to me to be quite simple. On the basis of certain facts and circumstances which I will find specifically, can I be satisfied that the accused drove dangerously towards other persons who might naturally, normally and reasonably be expected to be on or near the road or are actually on his own vehicle in this case? I have to be satisfied by the state of a particular act or acts or omission which made up the alleged dangerous driving. There may be a number of factors, but these have to be particularised in the sense that they have to be identifiable.

In this case, the State argues that the dangerous act of driving is the fact that the accused was speeding. Now, just what rate of driving may constitute speed is to my mind, a question of relativity. According to the accused in his record of interview, he would have been going at “60 miles per hour”.

Now, if his vehicle was fitted with metric meter the “60 miles per hour” would in fact be 60 kilometers per hour, which is considerably less than 60 miles per hour. On a narrow and winding road, even 20 miles per hour could be regarded as “dangerous speeding”. Again, on a super highway, where a minimum speed may be set at 60 miles per hour, any driving below that speed could be held to be dangerous.

It must never be forgotten that this offence is not a strict liability offence. The exusatory defences ranging from mistake, accident, emergency etcetera are available to the accused.

It must be remembered too that the standard of driving is fixed through the eyes of the “impersonal and universal user or users” of the public highway, including those on the accused’s vehicle, (see McCrone v. RidingN243.html#_edn224" title="">[ccxxiv]¹ and ngman v. SeagarN243.html#_edn225" title="">[ccxxv]² as cited withoval e High Cogh Court of Australia in The King v. Coventry>N243.html#_edn226" title="">vi]³). The driving is judged objectively from all the facts.

In this this case, the evidence on the element of there being a leaked tyre is conflicting; and on that basis, I must find in favour of the accused, namely that his tyres were not leaking. In any case, his own explanation is that it was one of the rubber cushions on which the body of the vehicle rests, that had collapsed.

As a result of that defect which he says he found out about at Aipinda, he advised the passengers to distribute themselves to even out the weight. He further placed two bags of potatoes to balance that weight. It could be argued that in the circumstances, he did what a reasonable driver would have done to remedy a bad situation. I find that to be so in his favour.

The law is that the State has to negative any excuse, defence evidence raises. The only defence raised in this case is that the deceased jumped into his own death. To my mind, on its own this is not a defence of accident or an emergency.

On the clear stretch of the road on which the accident occurred, I am left to ask why the deceased would want to jump? He was not disembarking from the vehicle. There was no reason for him to want to jump off.

The only explanation, to my mind and unfortunately for the accused, is an explanation consistent with dangerous driving.

If the meter was pointing at 60, that could have been 60 miles per hour or 60 kilometers per hour. No evidence was adduced to show if it was kilometers or miles. The accused in his evidence said he did not know if it was kilometers or miles.

In the event of uncertainty, I hold in favour of the accused, namely that he was or could have been cruising at 60 k.p.h. Now that on its own may well have been good speed.

But the question is, is it safe speed? To decide this, I must look at facts. The most influential fact to me, is that the accused was well on the right hand side of the road. To my mind, to drive on that side of the road, for some 80 feet, as the accused did, close to an “s” shaped bend, where, if a car coming in the opposite direction would have collided with the accused, is dangerous driving. On its own, it is dangerous driving.

To my mind, that is objectively dangerous to the passengers and to the public users of the public highway.

This is not a Pius PianeN243.html#_edn227" title="">[ccxxvii]⁴ type case where there is a sudden bang on the roof or a scream and the accused turned around suddenly and capsized. This is a clear case where the accused had breached the Motor Traffic RtionsN243.html#_edn228" t28" title="">[ccxxviii]⁵. He drove on the wrong side of the road and as events turned out, when he realised he was dangerously near a corner, he panicked and the deceased jumped into his death; while the accused capsized the vehicle, causing the injury of other passengers.

I find that the deceased jumped off on the left side of the vehicle and landed in the centre of the road.

The fact that the vehicle ran out of water and there was smoke coming out of the engine, to my mind tells ill of the accused. Careful as he might have been, it is clear that either he was not in the habit of checking his radiator, and hence his vehicle generally or in the alternative that the vehicle might not have been in as good a condition as he claimed it had. The only evidence on the condition of the vehicle is from the accused who said the vehicle was in good condition.

Certainly, to my mind, this driver has done the best he could. When he realised the rubber cushion had gone, he took appropriate steps. When the radiator dried up, he also took appropriate steps. Unfortunately for him and fatal to a human life and to his own vehicle, he was driving on the wrong side of the road. At the speed he was doing, good as it was and without discomfort to his passengers as it was, he lost control of the vehicle. That to my mind is dangerous driving to the public.

I agree, the stretch of road some 100 feet long could be negotiated at 60 - 80 k.p.h. without brakes or a change of gear. As it was, the accused was doing 60, whether it was k.p.h. or m.p.h. is something we should have known but we don’t know. Fatal to the accused and to the deceased, that driving was, to my mind dangerous.

The area was an area close to the leprosarium. It was an area where any vehicle could have been coming the opposite direction. It was a corner and there was no explanation whatever for going on the wrong side of the road.

To my mind, the accused’s claim that the people had all moved into one side and caused the vehicle to capsize is an after thought theory. His guess is that the accident was due to these imagined events. Even if that was true, it would still not establish a defence, that the State would have to negative.

In my view, the movement of the people was, more a panic move after the vehicle can begun on its dangerous course. One State witness claimed the vehicle had moved around. Another State witness said, it went from side to side. I am satisfied beyond a reasonable doubt that the accused drove:

(i) ;ټ O60; On the the wrong side of a public road;

(ii) & That that the speed he was doing gave him no time to control heerin his s; he had to pump the brakes twice;

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(iii) That thet tlede im th swer swerve towards the left to r his ful pon;

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(iv)&#iv) The time span and the spee speed he did combined to cause the impact;

(60;&##160;; That That the the deceaseceased had actually jumped off the vehicle before it turned over and smashed; and

(vi) That tmping off was due to the dangerous driving of the accused; and

(vii) s that dangerougerous driv driving thated theased7;s d

I find that the crash occurred after the deceased hadd had jump jumped ofed off, buf, but the jumping off was the direct resu the ed&#8 dangerangerous dous drivinriving.

Section 24 defence is not available here because there is no question of a mistake.

Section 25 defence of an extraordinary emergency is also not available. Section 25 gives effect to the principle that “no man is expected to be wiser or better than all mankind”. Unfortunately, if the accused had been on his correct side of the road, he would not have caused the accident but that is a historical “if” quite irrelevant to this case.

I therefore find him guilty as charged.

I indicated I would give a bond.

Ms. Bourke of counsel for the State agrees this is not the worst type of dangerous driving case. There was no drink involved. The dangerous driving itself covered a short time and distance. The prisoner has been a good man until he met this bad day. He is a family man. He has no prior convictions. His line offered to pay compensation in cash, but the deceased’s line preferred pigs. Pigs worth K11,000 have been paid out to the deceased’s line. The prisoner himself paid out K1,700 worth of pigs to the deceased’s line. He has been in custody 9 days.

Taking all these factors into account, I would place the prisoner on a two years good behaviour bond on condition that if in that time he breaches that condition, he is to appear before a justice of the National Court and receive his sentence. He is also to owe the State a sum of K100.00 without cash.

A custodial sentence was considered on the specific request of the State Counsel, but it was rejected first because in my view the bond is itself a deterrent and secondly the payment of pigs as compensation is also a deterrent. Admittedly that is a voluntary payment, but it speaks in favour of the prisoner.

In giving that customary payment specific consideration, I am mindful of what His Honour Kapi J. said in a recent unreported judgment of The State v. Keputong NagongN243.html#_edn229" title="">[ccxxix]⁶. Although that was a stealing case and the punishment consisted of a fine of K500.00 relatives would no doubt contribute towards.

The payment of pigs by the relatives does not in my view relieve the prisoner entirely of his responsibilities. He continues to bear the burden of having to repay his relatives. It may well be a lifelong obligation. Indeed, a custodial sentence for any length of time may well create, for this man two forms of punishment, a situation the spirit, if not the letter of the Constitution, prohibits.

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

Counsel: C. Bourke

Solicitor for the Accused: A/Public Solicitor, D.J. McDermott

Counsel: A. Yer.

<24">N243.html#_ednref224" title="">[ccxxiv] ^{(1938) 1 All E.R. 157}

N243.html#_ednref225" title="">[ccxxv] ^{(1938) 1 K.B. 397}

N243.html#_ednref226" title="">[ccxxvi]^{[1938] HCA 31; 59 C.L.R. 633}

N243.html#_ednref227" title="">[ccxxvii]^{(1975) P.N.G.L.R. 52}

N243.html#_ednref228" title="">[ccxxviii]^{Motor Traffic Regulations, No. 14 of 1951, regulation 64 (1)(a) that “The driver of a motor vehicle upon a public street shall keep the vehicle as near as practicable to the footpath on his left side).}

N243.html#_ednref229" title="">[ccxxix]^{unreported National Court Judgment N225 13 March, 1980.}