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State v Joseph [1999] PGDC 9; DC55 (3 June 1999)

Unreported District Court Decisions

[1999] PNGDC 10 - STATE V JOHN JOSEPH

[1999] PNGDC 10

PAPAUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 252 OF 1999

THE STATE (Informant)

v

JOHN JOSEPH (Defendant)

Waigani

Vagi PM

20 May 1999

3 June 1999

Cases referred to:

R v Gosney [1971] 55 Crim AR

Motor Traffic Act (Ch243) s17(2)

Representation:

Counsel/Representative:

Informant: Sgt. Wafihambu

Defendant: Mr Ligett

Lawyers/Representative:

Informant: Sergeant Mainuka

Defendant: Warner Shand Lawyers

VAGI PM:

N1>[1]      This was the trial of an accused on a charge under s17(2) of the Motor Traffic Act (Ch243) that on 26 January 1999, the accused at Port Moresby, did drive a motor vehicle to wit a Toyota crown white in colour, registration number IAA 789, upon a public street to Hunter Street without due care and attention.

N1>[2]      It is not disputed that on the morning of that date the accused was driving a Toyota crown along Hunter Street towards the junction between the Steamships Head Office and the Defence Haus at Port Moresby township. When the accused pulled out on to the Champion Parade from where it was stationary, there was a collision with the complainant's (Mr Henao) vehicle. As a result of the collision there was minor damage caused to the accused's vehicle, while the complainant in comparison suffered damages to a greater extent. The road at the time of accident which was about 8-8.15 am was busy and the morning was fine and dry. The particulars of driving without due care and attention relied on by the state was that the Defendant failed to give way and made a sudden turn in to Champion Parade, which resulted in the collision with the complainant's vehicle.

N1>[3]      The defence on the other hand contends that according to the motor traffic handbook regarding the right of way and which is referred to in paragraph 14 and diagram 3, thereof he the accused is entitled to a right of way as the Hunter Street Champion Parade intersection is uncontrolled: there is no give way or stop sign.

N1>[4]      After considering the evidence before me and finding no evidence to suggest that Hunter Street is an arterial road. I am satisfied that the defendant had the right of way considering that there is no give way or stop sign at the intersection. Thus applying the right hand rule, the defendant would be entitled to a right of way.

N1>[5]      I however find on the whole of the evidence that the accused was the one at fault in causing the collision with the complainants vehicle.

N1>[6]      In coming to this conclusion, I have adverted to the defendant's own evidence, which collaborates the evidence of the Prosecution and more particularly his evidence-in-chief and I quote.

N2>Q:      Can you tell his worship what happened on 26 January 1999?

N2>A:       I drive down, I saw plenty cars coming from left and right so I stopped and I saw one car coming from right give me way by signaling by his hand so I drove out and the complainant hit me.

N2>Q:      Where did Mr Henao's (Complainant) car come from?

N2>A:       Left hand side.

N2>Q:      When you came down Hunter Street did you notice any Give way sign?

N2>A:       No

N2>Q:      When you were turning right did you look to see that the way was clear?

N2>A:       I did not see the left side but took off when the car on the right give me way.

N1>[7]      In my view the only reasonable inference to be drawn from the evidence is that the accident occurred as a result of some fault on the part of the Defendant. In the case of R v Gosney [1971] 55 Crim AR at 502, his Honour Megaw LJ stated:

"Fault involves 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."

N1>[8]      As has been said the defendant was pulling into a busy street Champion Parade a situation which called for the exercise of a high degree of a care on the part of the driver. It appears also from the Diagram of the accident and especially the point of impact of both vehicles that there are a further two inferences that can be drawn. The first is that the defendant miscalculated the speed and distance at which, the complainant's vehicle was coming and secondly he failed to observe the presence of the complainant's vehicle coming from his left side. Thus driving out hastily and causing the collision.

N1>[9]      In consequence it is my view after considering all circumstances that the accident can be attributed to the defendant's failure to drive with due care and attention.

N1>[10]    I therefore find beyond reasonable doubt that the defendant is guilty as charged.

N1>[11]    I accordingly impose, the following penalty.

N1>[12]    Defendant Convicted and fined K100.00. Defendant's bail of K100.00 to be converted to his fine.