Tami, The State v [1977] PNGLR 57 (8 March 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 57 - The State v Dela Tami 

[1977] PNGLR 57

N85

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

DELA TAMI OF YAMBO

Waigani

Frost CJ

3-4 March 1977

8 March 1977

CRIMINAL LAW - Particular offences - Dangerous driving causing death - Elements of offence - Fault - Defences - Onus of proof - Onus on prosecution to exclude defence - Mischance - Loss of control caused by object being thrown against windscreen - Verdict of not guilty - Criminal Code s. 336.

The accused was charged with dangerous driving causing death under s. 336 of the Criminal Code, as a result of an incident when, whilst driving his taxi along a public road, the taxi swerved to the left and collided with three girls (one of whom later died) who were walking in single file on the gravel portion of the road. The accused (and his passenger) maintained that loss of control of the motor vehicle was caused by an object being thrown against the windscreen. There was no other evidence which provided an explanation for the taxi leaving the road.

Held

(1)      Although proof that a motor vehicle driven by an accused in fact endangers the public, constitutes prima facie evidence that the accused was driving in a manner dangerous to the public, it is also necessary to establish that there was some fault on the part of the driver causing that situation.

R. v. Gosney (1971) 55 Cr. App. R. 502, R. v. Spurge (1961) 45 Cr. App. R. 191, and Hill v. Baxter (1958) 42 Cr. App. R. 51, adopted and applied.

(2)      Upon the evidence the Court could not be satisfied that the State had excluded, beyond reasonable doubt the possibility that some object had been thrown.

(3)      The onus being on the prosecution to negative any defence of sudden mischance, the Court could not be satisfied beyond reasonable doubt that the action instinctively taken by the accused could be attributed to his fault so as to support a conviction of driving in a manner dangerous to the public.

Trial

This was the trial of an accused on a charge under s. 336 of the Criminal Code that on 26th June, 1976, he drove a motor vehicle on a road dangerously and thereby caused the death of a young woman. The relevant facts are reported in the reasons for judgment hereunder.

Counsel

A. J. Alpine and P. Paliau, for the State.

D. C. Anderson and P. F. Liddle, for the accused.

Cur. adv. vult.

8 March 1977

FROST CJ: The accused is charged upon indictment that on 26th June, 1976 he drove a motor vehicle on a road dangerously and thereby caused the death of a young woman, Geno Volu.

It is not disputed that on the afternoon of that date the accused was driving a taxi along Scratchley Road towards Badili where the road passes the golf links, when the taxi swerved to the left and collided with three girls who were walking in single file on the gravel portion of the road. Whether that portion is to be called footpath or road is immaterial because, although there was no formed footpath, it is customary for pedestrians to walk there and the girls were fully visible to passing traffic. The road is flat, the afternoon was fine and dry. There is no suggestion that any liquor had been taken by the taxi driver. He says he does not drink.

The girls who were returning home from netball had shortly before the accident alighted from a bus. The circumstances were indeed tragic for Vagi, the mother of the deceased and also of Vavine who was the first struck, was following behind so the girls were struck before her eyes.

The particulars of dangerous driving relied upon by the State are excessive speed on the part of the accused, failure to have the vehicle under proper control and to exercise a proper lookout. Two eyewitnesses, Aua and Misi, described the movement of the taxi as it approached and then left the road. Aua estimated the speed of the taxi at 60 mph and Misi at 80 mph. Another witness described the speed as fast. Aua has driven for many years and Misi has held a licence for about a year. But the difficulty in their evidence is that according to both drivers the taxi stopped within a distance of 16 to 25 feet before it moved on again, a distance which is quite inconsistent with any high speed.

The other difficulty in the State case is that it provides no explanation for the taxi leaving the road for, although two PMV’s passed in the opposite direction, there was no traffic in the vicinity which contributed to the accident.

Immediately after the accident Constable Kero attended at the scene and took measurements. He noted the three girls lying by the side of the road, each about 5 feet to the left of the bitumen strip for a vehicle approaching Badili. A distance of 71 feet separated the first and the second girl and the third girl, the deceased, was lying another 14 feet away — 85 feet in all from Vavine — towards Badili. The only foreign substance seen on the roadway was some glass, which could have come from a shattered windscreen, and which was lying just left of the bitumen strip about half-way between the positions where the first girl and the deceased were lying on the road.

From the evidence of Vavine and another who escaped injury, Kele Gewa, the girls were walking separated only by short distances. Vavine was struck first, Varaga next and then the deceased. Although the taxi left the bitumen strip its path cannot be taken to be more than 4 or 5 feet off the road. The fact that the taxi travelled about 25 yards off the road is no evidence as to the speed of the vehicle.

The accused’s defence, as explained in the record of interview, is that as he drove along a stone landed on the windscreen. He closed his eyes and bent down into the car. Suddenly he felt he had run into a pedestrian and then stopped. There is no doubt that the windscreen was broken. Aua and Misi said that the windscreen was intact until the second or third girl was struck and her body was thrown up and against the windscreen. Each denied that there was any person in the vicinity who could have thrown a stone. Also there was evidence of blood on the left side of the windscreen, indicating that that portion was intact when the girl was struck.

The accused’s account is no recent invention. After the accident he paused briefly on the roadway and then, to escape an attack being made upon him, he drove to the Boroko Police Station and in a conversation with Sub-Inspector Ila he gave much the same explanation. He said a stone landed on the windscreen, he closed his eyes and did not know what happened next.

Although the accused did not give evidence or make any reference to the events of the afternoon in his unsworn statement he has consistently adhered to the explanation given to Sub-Inspector Ila. It is put forward both in his record of interview on 7th July, 1976 and his statement to the District Court at the committal proceedings. He is also supported by the passenger in the taxi, Beni Gwabunim, who was seated next to him in the front seat. In his evidence Beni said that the taxi was not travelling at a fast speed and the accident followed an incident when an object was thrown against the windscreen and it was broken. This caused the driver to turn the taxi to the side of the road. It was only after the windscreen was broken that the taxi turned on to the side of the road and hit the girls.

After further consideration of the evidence the impression which I had during the hearing has not left me, which is that the State has not excluded beyond reasonable doubt the possibility that some object was thrown, either from the road by a passing PMV or by a person standing off the road. It can be said that the fact that the windscreen was broken by the girl’s body provided a golden opportunity for the defence to be fabricated, but I could not be satisfied to act on the evidence of Aua and Misi having regard to the conflicting accounts of the witnesses, and the swift course of events of the three girls being struck one after the other, making accurate observation difficult. Further, the trees and bushes along the roadway would have provided ample cover for any person minded to throw a stone — a dangerous practice notoriously by no means uncommon in Port Moresby.

The question is whether on this view of the facts the State has established beyond reasonable doubt a case of dangerous driving. It is plain that for a vehicle to be driven off the bitumen and onto the side of the road where pedestrians travel constitutes prima facie evidence that the accused was driving in a manner dangerous to the public. But it is established that there must also have been some fault on the part of the driver causing that situation.

R. v. Gosney[lxiii]¹.—”Fault involves a failure; a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.” ibid. Megaw L.J., at p. 508.

The same point was referred to in the earlier case of R. v. Spurge[lxiv]². Salmon L.J. stated that proof that a motor vehicle driven by an accused in fact endangers the public may be taken in any but the most exceptional circumstances as conclusive evidence that the accused was driving in a manner dangerous to the public. The learned judge then went on: “If, however, a motor-car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame — if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public. (Hill v. Baxter (1958) 42 Cr. App. R. 51; [1958] 1 Q.B. 277.) It would be otherwise if he had felt an illness coming on but had still continued to drive, for that would have been a manifestly dangerous thing to do. It is true that in the examples given above it may be said that in a sense the man at the wheel was not driving at all, and therefore not driving dangerously. Indeed, that was the view expressed by the Divisional Court in Hill v. Baxter (supra), a view with which this Court entirely concurs. But it is also true that the sudden mischance suffered by the man at the wheel totally prevented him from controlling the movements of the motor-car, and that no fault of his in any way contributed to the danger. On that ground also, it seems to this Court that even if the man at the wheel could in any sense be said to be driving, he would not be guilty of driving in a manner dangerous to the public.”— at p. 195. Both counsel relied on these cases. Reference was also made to the judgment of Barwick C.J. in McBride v. R.[lxv]³. In my opinion the law stated in the English cases referred to is entirely appropriate and applicable to the circumstances of Papua New Guinea.

The onus of course remains on the prosecution throughout the case to negative any defence raised upon the evidence of a sudden mischance preventing the driver controlling the movements of the motor car.

This is not a case of the driver suffering any physical disability.

It may be that if the evidence is looked at literally it could be said that the action of the accused, after he noted the noise of the object landing on his front windscreen, in closing his eyes and bending down into the car, was a failure on his part properly to control the car. But in these proceedings the criminal onus is to be applied upon the case as it was presented to me. When the possibility of a sudden emergency has not been excluded full allowance must be made for the accused’s predicament, with his immediate apprehension of being struck by falling glass, and on the whole I am not satisfied beyond reasonable doubt that the action instinctively taken by the accused can be attributed to his fault so as to support a conclusion of driving in a manner dangerous to the public.

Verdict of Not Guilty.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

[lxiii](1971) 55 Cr. App. R. 502.

[lxiv](1961) 45 Cr. App. R. 191.

[lxv][1966] HCA 22; (1966) 115 C.L.R. 44.