DC5061
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS TRAFFIC JURISDICTION]
WTC No  634 of 2020
BETWEEN
THE POLICE
Informant

AND
ENOCH APAMI
Defendant

Waigani:  S Tanei 

2020:  24th  of December
             

TRAFFIC OFFENCE – Driving Without due care and attention – s 28 (2)(a) – Road Traffic Rules-Road User Rules 2017.

TRAFFIC OFFENCE- Trial- Whether the Defendant drove without due care and attention – Elements of the offence discussed – Defendant exercised due care and attention - Verdict of Not Guilty

Cases Cited

State v John Ekapa [2007] DC518

References

Legislation

Road Traffic Rules – Road User Rules2017
Counsel
Sergeant Emmanuel Bigam, for the Informant 
Mr. Pailaia, I., For the Defendant 
RULING ON VERDICT
24th December 2020

S Tanei: The Defendant pleaded not guilty to one count of Driving Without Due Care and Attention contrary to section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017. 
2.	The matter went for trial on 30th September 2020. Trial continued on 5th October 2020. 

3.	On 30th November 2020, parties made submissions on verdict. 

4.	This is my ruling on verdict.  

FACTS: 

5.	The Police allege that on 14th May 2020, the Defendant, on a Public Street, drove without due care and attention. 

6.	They say that on that day the Defendant drove a grey Nissan Blue Bird Sedan bearing registration number BEZ 859 along Kanudi Road towards the roundabout and intersection at Koura Way. 

7.	Police allege that, at that relevant time, there was a random Mini Road Block by Police at Koura Way roundabout. The Defendant pulled out of his lane and tried to go onto the inside lane when he collided with another vehicle namely a Toyota Harrier, brown in colour, bearing registration number BFS 859. 

8.	The impact of the collision caused damage on both vehicles. 

9.	The Defendant and the victim were brought to 4 Mile Traffic Police Station and charged the following day after out of court negotiations failed. 

ISSUES:

10.	The Court is faced with the following issue;

a)	Whether the Defendant drove without due care and attention? 
THE LAW

11.	Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017 provide that; 

“(2) The driver of a motor vehicle on a public street must not– 
       		(a) drive without due care and attention;……..” 

12.	It is important to know the elements of the offence itself. In the case of State –v- John Ekapa [2006] DC 518, His Worship dealt with the question of driving without due care and attention under section 17 (2) of the Motor Traffic Act and found that these are the elements of the offence; 
a)	A person drove a specific motor vehicle; 
b)	That particular vehicle was driven on a public road; and
c)	That vehicle was driven without due care and attention. 

13.	Section 28 (2)(a)  of the Road Traffic Rules – Road User Rules 2017 is of similar wording to section 17 (2) of the Motor Traffic Act and so I adopt the principles and elements of the offence in this case. 

14.	 In order to return a guilty verdict against the Defendant, all of the elements of the offence must be proven beyond reasonable doubt. 

EVIDENCE

15.	Prosecution called 3 witnesses; 
a)	Sheila Naria
She was the arresting officer and the investigation officer in this case. She testified that she was on duty on 14th May 2020 when the Defendant and Complainant were brought to the Station by an unnamed Traffic Officer who told her that the parties got into a motor vehicle accident. She then got their statements. She says that from the report from the Traffic officer, the Defendant was at fault. She also testified that the Defendant said that he was at fault and agreed to fix the damage on the Complainant’s car. She then told them to come back to the station the next day with quotes so they could settle the matter. She said that when they returned the next day she arrested the Defendant because the quotes were too high and the Defendant could not meet them. 
At Cross Examination, she denied knowing the Complainant and denied pressuring the Defendant to admit to the offence. She also admitted that the damage on the Complainant’s car was not substantial. 
b)	Kaiva Aviri
He is a reserve constable attached with Idubada Police Post. He testified that his unit was called to assist in capturing a stolen motor vehicle in their area on 14th May 2020 so they put up a mini road block at the Hanuabada/Koura Way Junction/Roundabout. He was with 3 of his other colleagues. They were all outside conducting checks on vehicles. He said he saw the Complainant drove up and parked on the side and then he saw the Defendant drove his vehicle into the Complainant’s lane and bumped her vehicle. He then walked over to the parties, talked to them and got their licenses. Just then a Traffic Police Officer on a Motor Cycle rode by so he handed the parties over to the officer and they drove off. He said the Defendant said that he was wrong at that time. 
During Cross examination, he said it was not a road block but a mini road block with no cones. 
c)	Lydia Bengi
She is the Complainant in this matter. She testified that on 14th May 2020, she drove up from Hanuabada towards Koura Way. She was on the inside lane and there was no vehicle in front. On her left there were two police officers who blocked the road and checked a taxi. The Defendant’s car was behind the taxi. She said she was on 60 kms/h. She said as she stopped at the roundabout to look, the Defendant pulled out and bumped her vehicle. The Defendant then admitted that he was wrong. Their licenses were taken and given to the Traffic Officer on a Motor Cycle and they were taken to the Police Station at 4 Mile.  
She then stated that the Defendant admitted to being wrong at the Station and agreed to fix the damage. He later changed his mind when quotes were brought to him. Pictures of the damage to the vehicles were shown to the Complainant and admitted into evidence as Exhibits P1, P2, P3, P4 and P5. 
During Cross Examination, she stated that she was on her lane when the Defendant pulled out and bumped her. When asked if she saw the Defendant give a signal or indication of switching lanes, she said she would not know. She also said she did not toot a horn when she saw the Defendant pulling out. She denied knowing the arresting officer. She said her vehicle only suffered minor dents and scratches and no mechanical problems. 

16.	Defence Called 2 witnesses; 
a)	Enoch Jambari Apami
This is the Defendant. He testified that on 14th May 2020, he was driving up Hanuabada way with his friend Lionel when they saw a Police Vehicle on the roundabout island. They drove behind a taxi. Just as the Police saw the taxi they left the island and drove down to the lane in front of the taxi and stopped it. There were 2 Policemen in the Police vehicle. This caused a build-up in traffic. There were other vehicles behind them. When he saw traffic building up, he turned on the right indicator (signal light), looked out and when he saw no vehicle, he pulled into the right lane. Just then the Complainant drove up and collided with his vehicle. She was speeding and did not toot her horn. He said three quarters (3/4) of his vehicle was already in the other lane when the Complainant’s car sped up and bumped his car. When he realised that his vehicle would be hit, he quickly turned the steer but it was too late, the Complainant’s vehicle had already hit the right front fender of his vehicle. 
Policemen at the scene came over and pulled them aside. Just then a Police Traffic Officer on a Motor Bike rode by and took over. He escorted the parties to 4 Mile Traffic Police Station. 
At the Station, he drew a sketch and gave it to the arresting officer. When the Defendant and his passenger Lionel Lahoe wanted to speak and explain that he was trying to avoid traffic by switching lanes when he got hit by the Complainant, they were shouted down by the Police officers and they were not given any opportunity to explain. 
He then offered to fix the Complainant’s Motor vehicle because his brother works at Bismilah Motors and he would do it for free. However, the Complainant refused this offer and decided to bring her own quotes. She brought three quotes ranging from K 4, 000 to K 6, 000 the next day. The Defendant refused to accept these quotes and opted to be arrested. He also maintained all along that he did not admit that he was at fault. 
During Cross examination, the Defendant maintained that he put on his light indicator (signal light) and looked carefully before switching lanes. He also said there was no horn being tooted by the Complainant. 
b)	Lionel Lahoe
This witness was with the Defendant at the time of the incident. He testified that on that day he was sitting in the cabin with the Defendant when the Defendant drove up to Koura Way from Hanuabada. He said at that at that relevant time they drive behind a taxi. As they were driving up to the roundabout at the intersection, they saw a police vehicle parked on the island. That police vehicle drove over to their lane and stopped the taxi. Trafic built up. The search took about two (2) minutes. There they looked and there was no vehicle on the other lane so the Defendant switched lanes. Just then, the Complainant sped up and bumped them. 
He stated that there were only two (2) police officers in the Police vehicle. One of them was in the car while the other came out and searched the taxi. 
He said the Defendant indicated that he would switch to the right lane by putting on his indicators before switching lanes. However, the Complainant was at high speed and did not toot any horn at them but ran straight into them. 
He said the Defendant’s car was badly damaged. The right fender was damaged in but the Complainant’s vehicle suffered only a scratch on its left front side. 
A Policeman on a Motorbike rode by and took over from the two (2) Police Officers at the scene and escorted them to the Traffic Police Station at 4 Mile. 
He said that the Policeman on the Motorbike drew a sketch and gave it to the Arresting Officer on how the accident occurred. 
He also testified that he and the Defendant were not given any opportunity to speak at the station or explain themselves. They were shouted down by Police Officers. He maintained that the Defendant at no time admitted that he was wrong but asked the Complainant to bring quotes. The quotes were between K 4,000 and K 6, 000.00. 
During Cross examination, he said the Complainant did not toot her horn and that she was speeding. 
ANALYSIS OF EVIDENCE 
17.	 The prosecutions first witness was the arresting officer. She told of her findings at the Station on 14th May 2020 and 15th May 2020. She did not investigate the report to find out who was at fault. She did not visit the scene of the accident when she had the matter reported. Apart from what transpired at the station, her account of the incident was not helpful. 

18.	The Prosecutions second witness testimony is inconsistent. First he says the Complainant’s vehicle stopped when the Defendant drove into it. This is inconsistent with the Complainant’s testimony who said that the Defendant pulled out and bumped into her as she drove up towards the roundabout. Second, he said there were 4 police officers but the Complainant said there were 2 officers. 

19.	 The Complainant’s testimony was impressive. She gave a good account of her version of the facts. She said she drove up at 60 km/h towards the roundabout when she was hit by the Defendant. She said the Defendant did not indicate that he would be driving out of his lane. However, during cross examination she said she does not know if he gave any indication. She also said she did not toot her horn when she saw him drive out. She was adamant that she was on her lane and had no duty to toot her horn. 

20.	The Defence evidence was not only impressive but consistent. The Defendant and Lionel Lahoe both testified that there was a hold up in traffic because a Police Car stopped a taxi in the middle of the road. The Defendant turned on his right indicator before driving out of his lane. The complainant sped up and bumped into them without tooting a horn. They also both testified that they were shouted down by police officers at the station when they tried to explain. 

21.	During trial, exhibits were tendered by the Prosecution as well as the Defence. The Prosecution tendered exhibits P1 to P5. These exhibits are pictures of the Complainant’s vehicle and the damage it sustained. All of these pictures show minor dents and scratches on the front left hand side of the Complainant’s vehicle. 

22.	The Defendant tendered exhibits as well and these are Exhibits D1 to D3. Exhibit D1 shows the damage done to the Defendant’s vehicle. It sustained a huge dent on its front right fender. Exhibit D2 showed the Complainant’s vehicle and the scratches it sustained on its front left. Exhibit D3 showed the scratch on the front left side of the Complainant’s vehicle. 
UNDISPUTED FACTS 

23.	From the evidence, the following facts turn out to be undisputed; 

a)	There was a build-up of traffic along the Hanuabada/Koura Way junction/roundabout when a Police vehicle stopped a taxicab in the middle of the road on 14th May 2020 at around 9 am in the morning. 
b)	The Complainant drove a Toyota Harrier, brown in colour, with registration number BFS 859 while the Defendant drove a Nissan Sunny Bluebird, grey in colour with Registration number BEZ 859. 
c)	The Defendant was directly behind the taxi. 
d)	The traffic was not heavy. 
e)	There was a mini road block by the Police with no cones or any police officer directing traffic.
f)	A Police vehicle stopped the taxi in the middle of the road. 
g)	The Complainant drove up from the right lane (inside lane). 
h)	There was a build up in traffic
i)	The Defendant pulled out of its lane when there was a collision with the Complainant’s vehicle. 
j)	Both vehicles sustained damage. The Defendant’s vehicle had damage on its right side fender which is dented and caved in while the Complainant’s vehicle sustained scratches on its front left side. 
k)	They were approached by the Policemen at the road block and then a Police Officer in a Motorbike rode by, took over and escorted the parties to the Traffic Police Station at  4 Mile where he filed his report. 
l)	The Defendant was asked to pay compensation with invoices by the Complainant ranging from K 4, 000.00 to K 6, 000.00. 
m)	The Defendant refused to settle the invoices and asked to fix the damage to the Complainant’s vehicle. 
n)	When the Defendant refused to settle, he was formally arrested and charged on 15th May 2020. 

DISPUTED FACTS

The following facts are in dispute; 
a)	The Police vehicle with registration number ZPD 187 was not parked on the traffic island but drove out and parked right in front of the taxi. This blocked off traffic and caused a build up. 
b)	There were four (4) policemen. 
c)	The Defendant put on his right indicator before switching lanes. 
d)	The Defendant drove into the Complainant’s vehicle. 
e)	The Complainant was driving at 60 km per hour. 
f)	The Defendant admitted guilt.   

FINDINGS
24.	 From the evidence, the first two elements of the offence are met by the Prosecution’s evidence. Here, the Defendant drove a Motor Vehicle and that he drove it on a Public Street. 

25.	It now boils down to the question of whether the Defendant drove without due care and attention at that relevant time. 

26.	I appreciate the submissions of Sergeant Bigam of Police Prosecutions in relation to duty of care and attention. It helped in determining what is meant by due care and attention. 

27.	From my understanding of the law and from my research, due care and attention work together. Here, the Police must prove that the Defendant did not take all reasonable steps to ensure that his safety and safety of others is preserved. In the case of State v John Ekapa[2007] DC518 , His Worship F Manue, when dealing with this issue held that; 

“10. Driving without due care has two aspects.

11. Firstly, under the drivers sole control are the mechanical and electrical devices which he uses to assist him in taking proper control of the vehicle for the safety not only of the vehicle but more importantly for pedestrians and other public road users.

12. Whatever he does in the cabin with those mechanical and electrical devices are within his control whether he uses them or not can only be reflected or manifested externally. For example, if he blinks to turn left, the left signals would blink indicating to pedestrians that the driver has used electrical devices to indicate his intention to turn left.

13. But whatever he does in the cabin is peculiarly within his knowledge. In that regard anyone outside the cabin cannot say whether the driver had applied any of those electrical or mechanical devices. They can only tell of the effects of the use of those devices.

14. Whether a driver is taking due care in his driving is the effect of the use of the devices and when used can be seen by those outside the cabin. 

15. For example, if the vehicle is slowing down then it indicates that brakes devices and the fuels accelerator are being used to either slow or stop the motor vehicle.

16. The second aspect of taking due care in driving is that a reasonable driver takes serious attention on the road and the surrounding vicinity of the road. He ensures that the vehicle is properly on the road, and that it is free to run on the road clear of obstacles and pedestrians etc using the electrical and mechanical devices which are within his control only. With that discussion, taking care requires diligent and serious attention and care and control of the mechanical and electrical devices coupled with serious attention on and the vicinity of the road.” (Emphasis mine). 

28.	When I apply the principles in the above case, I find from the Evidence that the Police failed to prove beyond reasonable doubt that the Defendant drove without due care and attention. 
29.	This is because from the evidence, the Defendant turned on his right indicator (Signal light) and checked the oncoming traffic prior to pulling out of his lane. His story was corroborated by his witness. This evidence was not discredited by the Prosecution. The Defendant had exercised all due care and attention by using the electrical devices (signal light/right indicator) in his vehicle as well as personally checking if the road was clear. This story is well corroborated by his witness and there is nothing from the prosecution to discredit this.
30.	It is my view that due care and attention operates both ways. While the Defendant has a duty to drive with due care and attention, the Complainant must also exercise the same. I find from the evidence that the Complainant never tooted her vehicle’s horn when she saw the Defendant pull out. She continued to drive because she thought that she had the right of way. This, in my view, amounts to driving without due care and attention on the part of the Complainant. 
31.	 Also, from the exhibits tendered in Court, there can be no dispute that the Defendant’s vehicle sustained more damage than the Complainant’s. The Defendant’s vehicle suffered a huge dent on its right fender while the Complainant’s vehicle sustained scratches on its left side. These go to show that the Complainant did not drive at the speed that she mentioned during trial. She was driving beyond 60km per hour and did not slow down when she saw the Defendant pulling out into her lane. She drove without due care and attention. 
32.	I also find that there was no proper police road block. The purported road block was not a sanctioned road block and not proper as there were no cones or policemen directing traffic. I uphold the submissions of Mr. Pailaea of Counsel for the Defendant in that the action by the Police to stop the taxicab obstructed traffic at that relevant time. When traffic is slow and heavy on one lane, it is natural for a driver to switch to the lane that has less traffic and has no vehicles moving on it. 
CONCLUSION 
33.	I find that the Prosecution failed to prove their case beyond reasonable doubt. The Defendant took all reasonable care and paid all due attention at the time of the accident. Therefore, he did not drive without due care and attention. 

COURT ORDERS

34.	The following are the formal orders of the Court; 
a)	The Defendant is found not guilty. 
b)	The Defendant is acquitted and discharged.  
c)	The Defendant’s bail money of K 300 is to be refunded forthwith. 

Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Offender: 		Public Solicitor