Neap v The State [1982] PGSC 7; SC234 (1 October 1982)

Unreported Supreme Court Decisions

SC234

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 19 OF 1981
BETWEEN: JAMES NEAP
APPELLANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENT

Waigani

Pratt Gajewicz McDermott JJ
30 April 1982
3 May 1982
26 May 1982
1 October 1982

REVIEW OF DECISION OF TRIAL JUDGE SITTING WITHOUT A JURY - principles reiterated - acceptance of evidence seen to be unreliable contradictory and inherently suspicious - verdict for defendant unsatisfactory - set aside - judgment for plaintiff - remit to trial judge for assessment of damages.

Authorities

Karo Gamoga v. The State Unreported Supreme Court Judgment SC212 dated 27th October 1981

Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370

Warren v. Coombs [1979] HCA 9; (1978-79) 23 A.L.R. 405

PRATT J: I have read the draft judgment of McDermott J. and I agree with the reasoning and conclusions. There were so many inconsistencies in important matters that the trial judge must have been left in considerable doubt as to the defendant’s case. To some extent the credibility of the witnesses is involved, but the overall feeling of dissatisfaction stems not from matters of credit but from the patent conflicts. The two civilian witnesses were plainly telling lies. If one of them was going into town in order to attend the evening movies, it is impossible that the accident could have occurred at 11.30 p.m. The time of the accident is about the only point on which the plaintiff and defendant’s evidence are at one. The latter was clearly lying to the Court when he said that the civilians were in the vehicle because they were suspects. Of itself, this attempt to cover-up a breach of Police Regulations may not be of great significance but in a case involving an accident by a police vehicle which is driven by a police constable whose observed condition was such as to oblige another police constable to recommend proceedings against him for driving under the influence, then the whole complexion of the incidence is vastly altered. Further, there was no suggestion by the investigating constable that he smelt liquor on the plaintiff’s breath.

Constable Pius Kapase was extremely lax in his investigations, particularly in view of the fact that a police vehicle was involved with a driver whom he considered to be noticeably affected by alcohol. His description of the plaintiff’s vehicle however casts doubt on the whole of his evidence. Although he gave the correct registration number, he insisted on describing it as a Mini Mog utility whereas it was clearly a Honda sedan. Perhaps this error might well have been overlooked were it not for the fact that the witness swore to the fact that the words “Mini Mog Utility” were written on the vehicle. This is obviously false and casts doubt on the credibility of the entire testimony of the witness.

Whilst I agree with the learned trial judge that there are some unsatisfactory aspects about the plaintiff’s case, his evidence was largely unshaken. There is little point in sending the matter back for retrial. The logical outcome of the reasoning of this Court is that the plaintiff has established his case on the balance of probabilities. I would therefore allow the appeal, set aside judgment for the defendant and enter a verdict for the plaintiff. The question of quantum should be remitted back to the learned trial judge for assessment.

GAJEWICZ J: I have had the advantage of reading the draft judgments of Pratt and McDermott JJ. and I agree with their conclusions that the appeal should be allowed, and the matter be remitted to the trial judge for assessment.

MCDERMOTT J: The principles governing a review by this court of a decision by a Judge sitting without a jury have been fully canvassed in Karo Gamoga v. The StateSC234.html#_edn175" title="">[clxxv]¹.

My own approach to this appeal is on the following statement of principle by Lord Reid in Benmax v. Austin Motor Co. LtdSC234.html#_edn176" title="">[clxxvi]².

‘But in cases where there is no question of the credibility or reliability of any witness and in cases where the point in dispute is the proper inference to be drawn from proved facts an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not shrink from that task, though it ought, of course, to give weight to his opinion.’

The High Court majority in Warren v. CoombsSC234.html#_edn177" title="">[clxxvii]³ said in similar terms:

‘... the established principles are we think that in general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial Judge. On deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the trial Judge ...’

A little later at p.423 (and this is the approach I will now adopt) their Honours continue:

‘The duty of the appellate court is to decide the case, the facts as well as the law, for itself. In so doing, it must recognise the advantages enjoyed by the Judge who conducted the trial. But if the Judges of appeal consider that in the circumstances the trial Judge was in no better position to decide the particular question than they are themselves, or if after giving full weight to his decision, they consider that he was wrong, they must discharge their duty and give effect to their own Judgment.’

I do not consider that the grounds of this appeal call into question a discretionary Judgment.

This appeal is against a judgment for the State in a claim for damages against it, following the collision of two motor vehicles on Wahgi Parade, Mount Hagen.

The plaintiff’s claim was founded on the negligence of the defendant’s driver (constable Maila driving a police vehicle). The particular acts of negligence alleged are those commonly found in cases of this sort, - the more important being failing to keep a proper lookout, failing to drive on the correct side of the roadway and driving whilst under the influence of alcohol. The same claims were also made against the plaintiff in the statement of defence.

Maila gave his evidence on Commission before Judge Miles on 25th September, 1980 in Kundiawa. At the taking of this evidence, the plaintiff was represented by a different Counsel at the trial which commenced before another Judge on 16th June, 1981 in Mount Hagen.

The accident happened at about 11.30pm on the 8th April, 1978. The roadway was sealed and street-lit. It curved away to the left as the plaintiff travelled outbound Mt. Hagen. Maila was travelling inbound. The road was wide enough for 3 vehicles to pass. The bend was not sharp. Both plaintiff and Maila agree as to the time of the accident. The plaintiff described the accident thus:

‘The other vehicle came towards me and I went to the other side and stopped my vehicle ... The other vehicle came straight towards me and bumped onto my vehicle.’

He said the vehicle; ‘a police car - Land Cruiser’ ‘was on high beam.’

In cross examination, he further explained:

‘When he came to the corner - he cut into my side... My car beside the left side of the road. Then he bumped into mine ...’

Of the plaintiff, it was found that there were ‘long and curious gaps in ... what he did on the day of the accident.’ The trial Judge was satisfied, the plaintiff (1) had been drinking and was affected by alcohol and (2) that ‘he did not negotiate the bend correctly but came across onto the defendant’s side of the road where the collision took place.’

Yet the trial judge said, ‘I do not think he was an obviously untruthfull witness. But I think he had been drinking and his evidence is designed to shift the blame to Maila. I doubt that he really recalls much of what happened.’

This is a puzzling conclusion because the plaintiff gave an explanation of what he did for the entire day, an explanation of the accident up until the time when he saw 3 men emerge from the other vehicle. He recalls that no police came to see him in the 4 weeks he was in hospital and that he heard nothing further from them. He denied the presence of beer bottles in his car. In cross examination:

‘It was in 1978 - there were no beer black market - it is a false statement.’

As to glass on the roadway:

‘If glass was on other side, they would have got me straight away. It is a false story.’

To find intoxication, the plaintiff with his explanation of consuming 3 bottles in the morning (some 13 1/2 hours before the accident) was disbelieved, likewise, with his positioning of the accident. The trial judge came to his conclusions by believing the evidence of Maila and Dum Wanka as to the physical condition of the plaintiff; the evidence of Maila and Kapase as to the presence of beer bottles, and as to evidence of debris on the defendant’s side of the roadway, the evidence of all defence witnesses.

The appellant now alleges this evidence is unreliable, contradictory and inherently suspicious, there being enough minor discrepancies to raise a large doubt over the whole.

My view of this evidence is as follows:

Maila - first saw the plaintiff’s vehicle 80 feet away and when it ‘ran across the road, I stopped my vehicle.’ ‘... I stopped because I saw the vehicle coming towards me.’

In cross examination:

‘When I first saw it was no longer on its correct side, it was about 25 feet distant. The vehicle moved suddenly towards me. It swerved to my side of the road in that distance of 25 feet... I was close to grass on side my wheels were one foot from the grass.’

Further he says his lights were on low beam, he sounded his horn. The other driver did not flash his lights.

‘There were people in my car. After the accident, they ran off before the police came.’

He said they were suspects. He recalled seeing skid marks leading to the impact point.

And:

‘After the accident, I went to the other vehicle and tried to help the policeman get the other man out of the car.’ ‘He smelt of strong drinks and alcohol. We lifted him and put him in police car. Police took him to police station.’

In cross examination:

‘The police who came to the scene were first Constable Kapase Buis and other policemen but I don’t know their names ... they came straightaway. He asked me what happened. I told him. He took notes.’

Kapase - investigated the accident and submitted a report, (Exhibits ‘D’ tended by the plaintiff in cross examination).

It is a matter of concern that a motor vehicle accident in which serious damages both of personnel and property was investigated without the usual procedures being followed. No measurements, no photographs, no statements of the plaintiff or defence witnesses were taken. That there was no serviceable tape-measure and no-one able to operate a camera are unacceptable excuses by a police investigator.

There is a sketch plan, without measurements, in the report which shows a point of impact on the right, (defendant’s) side of the road. This tallies with a diagram made during examination-in-chief. There is no mention or notation of skid marks.

Kapase said he completed the report on the basis of what he found out himself. However, despite his insistence, he is clearly incorrect in describing the plaintiff’s vehicle as a ‘MINI MOO UTILITY.’

It is of significance that the report says:

‘Drivers of vehicle (1) (the plaintiff) and vehicle (2) was drunk. Both drivers will be charged for DUI and driver of vehicle (2) had been charge for DUI. Driver of vehicle (1) will be charged after discharge from hospital.’

Kapase admitted under examination that his only evidence of the plaintiff’s intoxication was the bottles. He intended to conduct a record of interview. Yet he spoke with Maila after the accident and obviously formed an opinion as to his state of society.

The report was attacked as being of recent invention. The correct registration number of the plaintiff’s vehicle, the Station Breach Report numbers assigned and the evidence of Kapase put this beyond a probability.

Dum Wanka - was held to be ‘an independent witness to the extent that he is not a member of the Police Force and appears to have no interest in either side’s case.’ The trial judge acknowledged Wanka was an illegal passenger.

Wanka wanted to visit his brother at Hagen Technical College. He got a lift with Maila. He sat at the centre with the other passenger at his side.

‘The accident happened at 8pm or 9pm something.’ ‘I saw the other taxi come up - he didn’t put off his high light - Maila saw that and put his high light off and slowed down as we came slowly - the other vehicle came and bumped into us.’ ‘It happened on our side.’ The glass and debris was ‘on our side.’

In cross examination, he said he first saw the other vehicle about 40 yards away. Regarding Maila’s action:

‘He slowed down and put his lights on law beam and came right onto his left side.’ At all times he maintained the other vehicle was on high beam.

Following the collision he recalled:

‘We got a shock and came out after 3 minutes. I went to the taxi driver.’

In cross examination he said of Maila:

‘After the accident, I don’t know where he ended up’, of what Maila and Jarius were doing; ‘they have come out already don’t know what they were doing - it was too dark ... Later when I came out, I saw them. They stood where accident took place - talking to each other - I went and spoke to the driver. Then I went home.’

Jarius - The third witnesses evidence was dismissed. There is a doubt whether any notice was taken of it as the trial judge said, ‘... he appears to me to be an honest witness but his memory of the events appears clouded, perhaps by reason of the fact that he has since been involved in an accident, so that I take little notice of his evidence.

However, Jarius recalled events in a way not suggesting memory loss. He recounted substantially that said by Dum as to cause and position, notwithstanding his view was from the rear tray of the defendant’s vehicle. He recalled the accident happening at 8pm. He and Dum were going to the pictures in Mount Hagen. He differed from Dum by saying Dum was already in the car by the time he was collected. Significantly:

‘I got out first 3 minutes later they came out. Dum next. Maila still on the steer - the door had been bumped then we opened the door. We stood there and waited for the policeman.’ The police arrived ‘say 2 minutes.’ He did not see the plaintiff and left with Dum.’

It was only during his re-examination that his recollection ability was raised. ‘Some recollections are clear some not.’ The usual situation. ‘I have been in another accident and I black-out. I sometimes can’t remember.’

Constable Kapase thus remains the only witness with any semblance of independence but his evidence was said to be ‘confusing’. He positioned the debris and glass in a position which bears no relation to the evidence of the plaintiff or Maila. His report diagram is not particularly helpful because no distances were measured. The road was tarred yet it is not clear where this surface ceased, whether there was a gravelled verge and whether there was a further width of grass. The trial judge noted that the road was unmarked. Positions to the Right or Left, (the plaintiff’s or defendant’s side) only make sense in my view, when given in relation to an imaginary centre line. This is not indicated.

Kapase’s investigation does not reflect the experience which he should have gained after 9 ½ years as a policeman.

I am troubled that with an accident of this type, Kapase made no real effort to see the plaintiff prosecuted not only for D.U.I., but driving without due care and attention, if there was any truth, in what his investigations revealed. I am troubled that Kapase was unable to say anything about what latter happened to Maila in a situation where he had obviously observed him to be drunk whilst driving a police vehicle involved in an accident.

Kapase agreed with the other witnesses in matters, which carried great weight with the trial judge.

As I have discredited those witnesses, and as I have grave doubts as to Kapase’s impartiality, I am unable to see how his evidence could be reliable on these matters when he was unreliable in others.

I have come to the conclusion that the defence evidence is, as alleged, unreliable, contradictory and inherently suspicious.

The court is left with the plaintiff’s account. It appears to me that what really tipped the scales against him in the trial judge’s mind, was his insobriety. I cannot come to the same conclusion. On the balance of probabilities, he makes his case.

Accordingly, I would allow the appeal set aside the verdict for the defendant, enter judgment for the plaintiff and remit the matter to the National Court for learned trial judge’s assessment of damages.

ORDER

Appeal allowed, verdict set aside. Judgment for Plaintiff. Remitted to trial judge for assessment of damages.

Solicitor for the Appellant: A. Amet, Public Solicitor

Counsel: P. O’Brien

Solicitor for the Respondent: B. Emos, State Solicitor

Counsel: A. Mullumby

NOTICE

THIS JUDGMENT, SC 235 IS TO REPLACE the same judgment sent out earlier which was found to contain errors.

The earlier judgment should either be destroyed or returned to the National Court upon receipt of the new judgment.

JUDGE ANDREW

SC234.html#_ednref175" title="">[clxxv]^{Unreported Supreme Court Judgment SC212 dated 27 October 1981}

SC234.html#_ednref176" title="">[clxxvi] ^{(1955) A.C. 370 p.376}

SC234.html#_ednref177" title="">[clxxvii]^{[1979] HCA 9; (1978-79) 23 A.L.R. 405}