State v Panipe [2019] PGNC 419; N8101 (18 October 2019)

N8101

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1099 OF 2019

THE STATE

V

JOHN PANIPE

Kiunga: Koeget, J
2019: 14^th, 15^th , 16^th, 18^th October.

CRIMINAL LAW- Indictable offence – Dangerous Driving causing death – pursuant to section 328(2) (5) of the Criminal Code Act – acquittal after a trial as he was not driver of the vehicle when involved in the accident.

FACT

On 19^th July 2018 at about 2 o’clock in the morning the accused John Panipe was driving a motor vehicle described as a Toyota Land Cruiser, (open tray) registration number: BED: 903, white in colour along the Tabubil – Kiunga Highway. The deceased Emmanuel Evara and Senior constable Henry Abea were passengers on the motor vehicle as it travelled towards Ningrum station when it ran off the road at Kilometer 119 and over turned. The deceased, a passenger in the front cabin died instantly upon impact.

The State alleged that on 18^th July 2018, the accused with the deceased and Senior constable Henry Abea drank alcohol at Tabubil before the accused drove the vehicle to Ningrum station.

The State further alleges that the accused was under the influence of intoxication liquor and was unlicensed when he drove the motor vehicle on the public road.

The post mortem report attributed death to the motor vehicle accident on 19^th July 2018 at Kilometer 119 at two o’clock in the morning.

Case Cited:

Nil

Counsel:

D. Mark, for the State
J. Kolowe, for the Accused

TRIAL

18^th October, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Dangerous Driving Causing Death pursuant to section 328(2)(5) of the Criminal Code Act chapter 262. He pleaded not guilty to the charge on arraignment.

2. The undisputed facts of the case are:

- The motor vehicle registration number: BED 903, a Toyota Land Cruiser (open tray) white in colour was hired by the accused John Panipe on 18^th July 2018.

- The Deceased Emmanuel Evara and son were passengers in the vehicle with the accused on 18^th July 2018. The deceased and Senior constable Henry Abea bought goods in the shops in Kiunga town and loaded them in the motor vehicle before they departed for Ningrum.

- From Kiunga town to Ningrum, Sisimakam and Tabubil, Senior constable Henry Abea was the driver of the motor vehicle. The driver with passengers late Emmanuel Evara and the accused drank alcohol from Kiunga town to Tabubil.

- Senior constable Henry Abea drove the vehicle whilst late Emmanuel Evara sat in the off-sider’s seat, the accused sat in the front cabin in the middle between the driver and the off-sider. The son of late Emmanuel Evara sat in the back try of the vehicle.

- They drove to Ningrum station and Senior constable Henry Abea and late Emmanuel Evara delivered the shopping bags with food and protein to their respective families. Both Senior constable Henry Abea and late Emmanuel Evara changed into police uniforms. Senior constable Henry Abea had in his possession a police issued AR15 rifle and late Emmanuel Evara held a gas gun with canisters.

- Senior constable Henry Abea drove the motor vehicle from Ningrum station to Sisimakam village. When they arrived at Sisimakam village, it was between 7 o’clock and 8 o’clock at night and dark. The person they went to meet was not available so they drove out of the village. As they drove along the road, a group of women from the Highlands were carrying their betel nut bags so they assisted the women and took them with their betel nut bags and left them at Tabubil.

- At Tabubil, they went to Gazebo club and drank more beer until the club closed so, drove to a friend’s house where they drank more beer.

- After mid night they departed Tabubil and headed for Ningrum station. Senior constable Henry Abea drove the vehicle from Tabubil to the check-point (“boom gate”) the entry to and exit out of Tabubil. The estimated time was two o’clock in the morning.

- The vehicle was involved in an accident at Kilometer 119 when it ran off the road. The deceased Emmanuel Evara died in that accident and the accused was unconscious and both were retrieved from inside of the vehicle by the by-standers from villages located along the highway.

- Senior constable Henry Abea was not injured so he opened the door of the vehicle and climbed out. He walked towards Tabubil seeking assistance but no one was available so he returned to the vehicle.

- The vehicle after the accident was facing the direction of Tabubil and the tail was facing Ningrum station.

- The vehicle was on the left-hand side of the Tabubil – Kiunga highway (if travelling from Tabubil to Ningrum).

Evidence of the State

3. The witness Senior constable Henry Abea stated that he drove the vehicle to the check-point (“boom gate”) where they stopped and went outside to relieve themselves.

4. As he returned to the vehicle, the accused John Panipe was already seated in the driver’s seat so he sat in the front cabin between the driver and the offsider. The deceased Emmanuel Evara sat in the left front seat (refer to as offsider’s seat).

5. The accused drove the vehicle until it reached Kilometer 119 when it was involved in the accident. The vehicle rolled twice and rested on its roof with four tyres in the air and the vehicle tilted slightly on its side so the driver’s side door touched the ditch so it was hard to open. The accused was trapped in the driver’s seat. He pushed late Evara’s body aside and climbed out from the offsider’s door.

6. The witness Chief Sergeant James Tapea, from Lake Murray sub-district. He knows Senior constable Henry Abea as both are from Lake Murray sub-district. He interviewed and obtained statements from Senior constable Henry Abea alone and no one else.

7. He stated when he attended the crime scene, the vehicle was on the side of the road after the accident. It had rolled twice and rested on its roof with four tyres up in the air. The vehicle tilted so the four tyres were facing the bush. The vehicle was facing direction of Tabubil and the driver’s side of the door was resting on the side of the ditch so it was difficult to open it. But the offsider’s door was up and free so it was accessible for people to open it.

8. But when shown the sketch plan of the crime scene, he admitted the motor vehicle ran off the road and was 3 meters on the side of the road. The vehicle rested on its four tyres and slightly tilted so that the offsider’s door touched the ground and it was difficult to open it. The vehicle faced the direction of Tabubil.

Evidence for the Accused

9. The accused maintained that at the material time, Senior constable Henry Abea was the driver of the vehicle. The deceased Emmanuel Evara sat in the offsider’s seat in the front cabin of the vehicle. He does not have a drivers licence and does not know how to drive a motor vehicle.

10. After the accident, the deceased was trapped in the vehicle as his side of the door touched the ground because the vehicle titled so it was difficult to retrieve his body out quickly. He was knocked unconscious due to the impact so he was still in the front cabin but Senior constable Henry Abea climbed out from the driver’s side of the door as it was free and accessible.

Analysis of Evidence

11. The State witnesses’ account that the vehicle rolled twice and rested on its roof is not true as the sketch plan drawn by Chief Sergeant James Tapea shows the vehicle ran off the road and was 3 meters on the other side of the ditch. The vehicle rested on its four tyres facing the direction of Tabubil.

12. The motor vehicle rested on its four tyres and titled on its left side and the offsider’s door touch the ditch so the only door free and accessible was the driver’s door.

13. The sketch plan contradicts the oral evidence of Senior constable Henry Abea and Chief Sergeant James Tapea.

14. It was opened when he attended the crime scene and saw Senior constable Henry Abea outside the vehicle.

Findings

Question: So which door of the motor vehicle did Senior constable Henry Abea open and climb outside?

15. The driver’s side of the door was free and accessible and was opened so Senior constable Henry Abea opened that door and climbed outside of the motor vehicle.

Quest: Who was the driver of the motor vehicle at the time of the accident?

16. The driver of the motor vehicle when involved in the accident was Senior constable Henry Abea and not the accused. I accept the evidence of the accused that Senior constable Henry Abea was the driver of the motor vehicle at the time of the accident.

17. Both Chief Sergeant James Tapea and Senior constable Henry Abea lied on oath when they testified in the trial. So essentially their evidence verbally cannot be relied upon or believed.

18. In my view, a wrong person was charged with the offence and taken to court to stand trial.

Verdict

19. The accused is found not guilty of the offence of Dangerous Driving Causing Death and is acquitted accordingly.

ORDERS

(1) The accused is acquitted and discharged from the indictment forthwith.
(2) The accused’s bail money is to be refunded to him.
(3) The OIC and CID of Kiunga Police station are to take care of this case, to investigate and arrest Senior constable Henry Abea for offence of Dangerous Driving Causing Death of late Emmanuel Evara.

Accordingly ordered.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused