N7763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1486 OF 2018

THE STATE

-V-

BELA GIGMAI WAGLBOGL

Kiunga: Koeget, J
2018:14th August, 15th August, 16th August,
12th October, 23rd October

CRIMINAL LAW- Indictable offence – Dangerous Driving causing Death – acquittal after a trial 

CRIMINAL LAW – Evidence – Testimony of an independent expert witness is crucial in explaining the cause of death of deceased – Deceased did not fall from the vehicle the accused drove on the night of the incident – A blunt object was used to inflict injuries on the body of the deceased and he died as a result.	

FACT

On Saturday 14th January 2017, between 11 o’clock and 12 o’clock at night, the accused Bela Gigmai Waglbogl was the driver of a motor vehicle described as a Daihatsu Dump Truck, registration number:  BBY 541, white in colour.  He parked the motor vehicle along the side of the Kiunga – Tabubil highway opposite the entrance to the Department of Works and Supply office located at Kilometer One in Kiunga town, Western Province.  The accused parked the motor vehicle on a gentle slope because the engine could not start when key is inserted into the ignition to start the engine.

The youths named Cameron Tenai, Liam Kadibu and Stephanie Bogoy walked past the vehicle so the accused asked them to push the motor vehicle down the slope.  The deceased and another youth arrived and assisted in pushing the motor vehicle down the gentle slope.  When the motor vehicle engine started, the youths Cameron Tenai, Liam Kadibu and Stephanie Bogoy requested to be dropped off at Brown House 2 (OTML) junction whilst the deceased Hendrickus Kayamat requested to be dropped off at Michael Corner junction located near Broken Hill Market in Kiunga town.  The accused agreed to drop off the youths as they requested.

The accused sat in the driver’s seat and the youths Liam Kadibu sat in the middle while Stephanie Bogoy sat in the left offsider’s seat in the front cabin.  The deceased and Cameron Tenai sat in the back tray of the motor vehicle.  The accused was the driver of the motor vehicle that night.

It is alleged that when the accused drove the motor vehicle at a speed between 50-60 kilometers per hour towards Broken Hill Market and Michael Corner junction, he failed to slow down and stop to allow the deceased Hendrickus Kayamat to get off.  The accused continued to drive the vehicle to Brown House 2 (OTML) junction so the deceased hit the side of the vehicle signalling the accused to stop but he did not do so.  The deceased then went to the right hand side of the back tray of the vehicle to signal the driver to stop and as he attempted to hit the side of the vehicle, he became unbalanced and fell out of the vehicle to the bitumen surface of the road.

He received injuries and laid motionless on the road until another motorist driving past the location found him and took him to Kiunga Hospital.  He died due to the serious injury he sustain from the fall.

The State further alleged that the driver at the relevant time was intoxicated after drinking beer, and he drove a defective motor vehicle along the public street dangerously causing the deceased to be off balance when attempting to signal him to stop at Michael Corner junction and causing him to fall on to the road and consequently he sustain severe injuries resulting in his death.

The State alleges that accused’s actions contravened section 328 (2), (5) of the Criminal Code Act chapter 262.

Held:	

(1)   The driving of a motor vehicle at the speed of 50-60 kilometres per hour is within speed limit prescribed under the Motor Traffic Act and is not excessive.  So the accused did not drive the motor vehicle dangerously on the public street or road on the night of the alleged accident.

(2)	The deceased did not fall from moving vehicle driven by the accused.  A blunt object was used to inflict injuries on the deceased from which he died.  

Cases Cited:

The State –v- Yasause (2012) PGNC 248
SCR No. 2 of 1980; Re s.22A (b) Police Offences Act; Biyang –v- Leni Haro [1981] PNGLR 28

Counsel:

Ms M. Tamate, Ms T. Aihi, for the State
J. Kolowe, for the accused

23rd October, 2018 

1.      KOEGET J: INTRODUCTION: The accused is charged that on the night of 14th January, 2017 at Kiunga, Western Province of Papua New Guinea, he drove a motor vehicle along Kiunga - Tabubil Highway at Kilometre one, dangerously thereby causing the death of  one Hendrikus Kayarat.  

2.     The charge is brought pursuant to section 328 (2)(5) of the Criminal Code Act chapter 262.  The State invoked sections 287 and 288 of the Criminal Code Act.

TRIAL

3.     The accused pleaded not guilty to the charge so a trial commenced to determine the allegations.

4.    The undisputed facts in the case are:

(a)	The accused was the driver of the motor vehicle described as a Daihatsu, dump truck, registration number:  BBY 541, white in colour.
(b)	The accused drove that vehicle during the day from Tabubil to Kiunga and consumed alcohol along the route.

(c)	The State witnesses Cameron Tenai, Liam Kadibu and Stephanie Bogoy requested the accused to give them a lift to OTML (Brown House) junction in his vehicle and the accused agreed.

(d)	The deceased Hendrickus Kayarat also requested the accused to give him a lift in his vehicle to Michael Corner junction near Broken Hill Market in Kiunga town where he will get off and walk to his residence.  The accused agreed to give him a lift.

Disputed Facts

(a)	The accused drove a defective motor vehicle at high speed on a public road.

(b)	The accused drove the motor vehicle dangerously causing the deceased to fall on the road.

(c)	The deceased fell down from the motor vehicle driven by the accused resulting in him sustaining injuries and dying as a result of those injuries.

5.     At the commencement of the trial, the State tendered with consent the following documentary materials forming part of its case:-

Statements

-	Statement of Cameron Tenai dated 15th January 2015 (marked “Exhibit 1”).

-	Statement of Bejawa Tabo dated 17th January 2015 (marked “Exhibit 2”).

-	Post Mortem Report by Dr Asael Kaptigao dated 27th June 2017 (Marked “Exhibit 4”).

-	Statement of Kepo Undi dated 24th June 2017 (Marked “Exhibit 5”).

Photographs of Crime Scene

-	Photo 1 – (Marked “Exhibit 5A”).
-	Photo 2 – (Marked “Exhibit 5B”).

-	Photo 3 – (Marked “Exhibit 5C”).

-	Photo 4 – (Marked “Exhibit 5D”).

-	Photo 5 – (Marked “Exhibit 5E”).

-	Sketch plan of Crime Scene (Marked “Exhibit 5F”).

-	Statement of Sergeant Richmond Wairaf dated 26th April 2017 (Marked “Exhibit 6A”).

-	Supplementary Statement of Sergeant Richmond Wairaf dated 26th April 2017 (Marked “Exhibit 6B”).

-	Record of Interview in Pidgin language (Marked “Exhibit 7A”).

-	Record of Interview - English translation (Marked “Exhibit 7B”).

Oral Evidence for the State

6.     The oral evidence of State witnesses Stephanie Bogoy and Liam Kadibu is that they drank warrior alcohol drink with Cameron Tenai and Janice Gatse at Parama Corner in Kiunga town.

7.     They drank till 10:30 pm at night when the warrior alcohol drink finished, Janice Gatse returned to her residence but they walked with Cameron Tenai to Pajawi club to buy more beer.

8.     When they arrived at Pajawi club, it was close for business so they walked to Kauma club located few meters away from Michael Corner and Broken Hill market.  They walked from Pajawi club along the Kiunga-Tabubil Highway in the southly direction towards Michael’s Corner, Broken Hill Market and Brown House 2 (OTML) junction.  As they walked in the southly direction  past the entrance to the Works Department office, located along the Kiunga-Tabubil Highway, they saw a Daihatsu  motor vehicle, white in colour, described as a dump truck.  The driver was seated in the driver’s seat in the front cabin and he called them to help push the vehicle down the gentle slope.  The vehicle was parked along the left hand side of the Highway opposite the entrance to the Works Department office at Kiunga.

9.     They agreed so Stephanie Bogey stood on the side of the road whilst Cameron Tenai and Liam Kadibu went and push the vehicle.

10.     As they began to push the vehicle, the deceased and Laka Saferus arrived and also assisted to push the vehicle down the gentle slope towards Michael Corner and Broken Hill Market.  They pushed the vehicle for about 6 meters and the engine started so Cameron Tenai, Stephanie Bogey and Liam Kadibu requested to be given a lift to the Brown House 2 (OTML) junction where they will get off, whilst Hendrickus Kayarat requested a lift to Michael Corner junction near Broken Hill Market where he will get off and walk to his residence.  The accused agreed to give them lift in the vehicle he drove.

11.     The State witnesses further stated that the accused drove the vehicle at high speed.  They stated the vehicle travelled quickly from the entrance to the Works Department office to Michael Corner junction and Broken Hill Market, and similarly, to Brown House 2 (OTML) junction so they estimated the speed of the vehicle to be between 50-60 kilometers per hour although they did not see the speedometer of the vehicle.  Neither of them can drive a motor vehicle.

12.     When they reached the Brown House 2 (OTML) junction, the three of them wanted to get out of the vehicle and walk to Kauma club but the accused offered to buy them beer so they remained in the motor vehicle.  The accused drove the vehicle to Lotic located at Tari hill about 50 meters away from the Kiunga Police station and stopped the vehicle.  He walked to his house.  In the absence of the accused, Cameron Tenai told them that the person with him in the tray of the vehicle fell down at Broken Hill Market.  They did not believe him as they thought he was joking so the driver was not alerted about it nor was it reported to the policemen on duty at Kiunga Police station.

13.     The accused returned to the vehicle with a plate of food and they drove to James Warap’s canteen and the accused bought 12 pack beer.

14.     They proceeded to Samagos where they drank beer. As soon as the beer finished, they push-started the vehicle and drove to Igi Pagri’s canteen, Liam and Cameron Tenai fought and Cameron Tenai left.  The accused bought more beer so they returned to Samagos and continue to drink beer till morning.  At day break, Stephanie Bogey and Liam Kadibu returned to their respective houses at Kiunga town.  The statement of Cameron Tenai tendered confirm and support the testimonies of Stephanie Bogey and Liam Kadibu up to the time he departed after the fight at Igi Pagri’s canteen.

15.    The evidence of Dr. Kaptigau is crucial because he is an independent expert witness.  He is a physician and a surgeon at the Kiunga Hospital in the Western Province.  He was directed by the Coroner to perform an autopsy on the body of the deceased in the hospital morgue and furnish a report.  So the doctor conducted the autopsy on the deceased’s body after it had been in the morgue for almost a week.  The body swell so the doctor did not operate on it but only observe the injuries and compiled a report for the coroner from his external examination of those injuries.

16.     The doctor observed the injury to the back of the deceased’s head and concluded that it was possible that such injury was caused by a blunt force or object applied to region of the head.  He further stated that the injury to the back of the head is consistent with a fall from a slow moving vehicle as opposed to a fall from a fast moving vehicle because there would have been more serious injuries noticed such as plenty of bruises and lacerations on the body and broken bones. In this case, there are no broken bones but tear of tissues.

17.     In relation to injuries on the body of the deceased in photograph 2, the doctor stated:  “The injury from right hand side of check bone extending to the nasal is caused by a hit from a blunt object directly to the right hand side of the face below the eye towards the nasal.  If the deceased fell from a slow moving vehicle, the injury to the back of the head is consistent excluding the injury to the face”.

18.     In relation to injuries shown in photograph 4 the doctor was asked:  “The injury shown in photograph 4, is it a fall from a slow moving vehicle?”  The doctor replied:  “Hit with blunt object”.

Evidence for the Defence

19.     The accused gave sworn evidence in defence and stated that the youth pushed the motor vehicle upon his request and when the engine started two youths sat in the front cabin with him and two sat in the back tray of the vehicle.  He stopped the vehicle along the road opposite of Kiunga Fuel Distribution depot because the youths in the back tray of the vehicle were fighting.  He saw the deceased jump down to the ground and ran towards Michael Corner junction and Broken Hill Market.  He had the vehicle head lights switched on so was able to see the deceased run.  He also saw Cameron Tenai run after the deceased with a screw driver in his hand.  He saw Cameron Tenai chase the deceased into the dark area so waited for some time until he returned.  He notice Cameron Tenai was sweating and breathing heavily and he came stood outside the vehicle close to the driver’s side so he opened the door and wanted to get out of the vehicle when Cameron Tenai ran across the swamp towards Parama Corner.  The state witnesses requested him to drive to Parama Corner to check on Cameron Tenai.  This angered him and he became furious, screamed and said: “this is not your hire vehicle” and refused the request.

20.     He drove the vehicle to Brown House 2 (OTML) junction and he offered to buy beer for them so they agreed and he drove to Lotic located at Tari hill where he stopped the vehicle and went to the house to get his food.  He returned to the vehicle with a plate of food and drove to James Warap’s canteen where he purchased 12 pack beer then proceeded to Samagos where they drank the beer.  As soon as the beer finished, he drove to Igi Pagris’ canteen and purchased some more beer and returned to Samagos where they drank the beer till day break when Stephanie Bogey and Liam Kadibu returned to their respective houses in Kiunga town.  He denied that the deceased fell from the vehicle he drove that night and sustained the injuries from which he died.  He denied that the vehicle he drove was defective and he drove it at high speed causing the deceased to fall down to the ground.

21.     He stated that during the day, he drove the same vehicle from Tabubil to Kiunga and experienced no engine failure along the route.

LAW

“Section 328:  Dangerous driving of a motor vehicle.  

(2)	a person who drives a motor vehicle on a road or a public place dangerously is guilty of a misdemeanour.

(5)	If the offender causes the death or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.”

Elements of the Offence

(a)	A person
(b)	Drives a motor vehicle
(c)	On a road or public place
(d)	Dangerously
(e)	Causes death

The elements of dangerous driving explained in section 28(i) of the Criminal Code is as follows:-

“driving a motor vehicle on a road or a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including –

(a)	the nature, condition, and sue of the road or public place; and
(b)	the amount of traffic that –
(i)	is on the road or in the public place at the time; or
(ii)	might reasonably be expected to be on the road or in the public place;”

Analysis of the evidence in the trial

22.     The evidence of the doctor is very crucial in this case because it contradicts the oral evidence of Stephanie Bogey and Liam Kadibu in that the injury to the back of the deceased’s head was caused by a blunt object, applied directly to that part of the body.  The doctor further stated that the injuries seen on the face of the deceased were caused by a blunt object applied to that part of the body.  Even if the deceased fell down from a slow moving vehicle, only the injury to the back of the head would be consistent excluding those on the face.  The doctor’s evidence suggest that the deceased did not fall from a moving vehicle.  He was assaulted with a blunt object to the face and head.  

23.      So that the accused did not drive a motor vehicle on a road at high speed nor dangerously and consequently did not cause the death of the deceased.

24.      Since the State evidence is discredited by those serious inconsistencies, the only credible and believable sworn evidence is that of the accused that the deceased was chased by Cameron Tenai towards Broken Hill Market with a object in his hand.  He alone returned to the vehicle and not the deceased.  An inference is drawn that Cameron Tenai assaulted the deceased and caused injuries to the face and back of the head from which he died.

25.      This account is supported by the medical report and the doctor’s explanation in court.

26.      When Cameron Tenai returned to the vehicle, paused for some time and then fled to Parama Corner.  The parents of Cameron Tenai arranged for their son to leave Western Province to attend a high school in the Sandaun Province for fear of him being arrested and charged by the police for death of the deceased.

27.     The State witness Stephanie Bogey and Liam Kadibu gave incredible and unbelievable evidence in the trial.  Both concealed the truth of what actually happened to the deceased on the night of the 14th January 2017 at Kiunga in the Western Province.  So their evidence is disbelieved.

Verdict

28.     The accused is found not guilty of the offence of Dangerous Driving causing death of the deceased Hendrickus Kayarat.

ORDERS

(1)	The accused is discharged from the indictment and from custody forthwith.

(2)	His motor vehicle registration number BBY 541, a Daihatsu, white in colour be released from police station car park and delivered to him by close of business this afternoon.

(3)	The parents of Cameron Tenai are to be investigated by the police for preventing the police from conducting a thorough investigation into the circumstances of the death of the deceased when they sent their son to attend school in the Sandaun Province.

(4)	The police are to arrest and interrogate Cameron Tenai in regard to the injuries sustained by the deceased resulting in his death.
______________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor: 	Lawyer for the Accused