DC5096
Papua New Guinea
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 813 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

MICHAEL MIORI
[Defendant]

His worship Paul P. Nii

17th May 2021

TRAFFIC OFFENCE – Negligent Driving Causing Bodily Injury -  s 40(2)(a)- Road Traffic Act

TRAFFIC OFFENCE- Trial- Trial vacated three times- Police did not call evidence – Complainant unable to assist police – Dismissed 

PNG Cases Cited:

State-v-John [2018] PGNC 62; N7144
Police –v-Abrahamas [2018] PGDC 20; DC3097
Police –v- Philip [2018] PGDC 4; DC4021

Overseas cases cited: 
Nil

References

Legislation
Road Traffic Act 2014
The Constitution

Counsel
Police Prosecutor: Bigam					For the Informant
In person							For the Defendant

RULING

17th May 2021

INTRODUCTION

NII, P Magistrate: The Defendant pleaded not guilty to the charge of Negligent Driving Causing Bodily 
Harm infringing Section 40(2)(a) of the Road Traffic Act.
.
On 3rd May 2021, the accusation against the Defendant was scheduled for trial but Police did not call in their key witness and asked for an adjournment, which the court granted on the condition that police offer evidence on the next hearing. On the 10th May 2021, Prosecutor also offered no evidence and the court summoned the arresting officer to explicate to the court up-to-date development of their case. On 17th May 2021, the arresting officer couldn’t locate the complainant and deliver evidence to the court and consequently Prosecution couldn’t offer evidence and therefore this is my ruling on the matter.

BACKGROUND FACTS

1.	The Police information sheet provides the following facts:

“It was alleged that the Defendant aged 68 years from Eastern Highlands Province being a driver of a motor vehicle, towith a Toyota Coaster bus, white in color, registration number 872 upon a public street towith Waigani drive did drive the said vehicle in a manner that was negligent whereby bodily injury was caused to a Martin Luther’

2.	I have developed the above facts to embrace few other details significant to the case. The Defendant was arrested on 6th October 2020, for Negligent Driving Causing Injury on a Martin Luther and he was subsequently allowed a police bail. The Defendant has ever since appeared before the court on extended bail until the date of my ruling. Police have not provided any summary of facts that would enumerate the particulars prominent to the allegation but the court is understood from the police information sheet the allegation against the Defendant was triggered somewhere along the Waigani drive in NCD, PNG. 

3.	Defendant first appeared before this court on 4th November 2020, but Prosecutor was not present in court and hence the matter was adjourned. On 23rd November 2020, court arraigned the Defendant, his charge was read to him and on plea the Defendant pleaded not guilty and thereafter matter adjourned for mention. On the 15th April 2021, matter was set for trial to be administered on the 26th April 2021 but did not eventuate and court again delayed trial to 3rd May 2021 but this time Prosecutor offered no evidence and the court summoned the arresting officer to testify in court concerning police evidence. On 17th May 2021, the Arresting officer informed the court that she was unable to communicate with the complainant and hence would not assist the court. Subsequently, Prosecutor offered no evidence and therefore this is the court’s ruling in the circumstance. 

ISSUE

4.	Would the information holding the charge against the Defendant be dismissed, struck out or withdrawn    when Prosecutor offers no evidence on the date of trial?

PROSECUTION’S ARGUMENT

5.	Prosecution made two (2) applications to vacate trial or perhaps to have it administered at a later date. Prosecution’s first application to have the trial adjourned was on 3rd May 2021 and the Second on 10th May 2021. Court granted both applications sought by the Prosecution in the interest of justice thinking police would call their witness at the date of trial but they did not. Prosecution kept on updating the court that the arresting officer was not in court but when the arresting officer was summons by the court to give evidence, her explanation was she was not in trace with the Complainant and to me the Prosecutions explanations for the deferment was like a circus where everything was going around in a cycle without any end.

DEFENSE ARGUMENT

6.	Defendant appears to be a person in his early 70s (70 years of age), who comes to court every time when his matter was mentioned. A Court record display Defendant was present in court all throughout the dates when his matter was mentioned including the trial date. He did not take any objections when Prosecution moved applications to have the trial vacated and case adjourned. At all the hearings, Defendant was ready to receive justice for the allegations against him, either that was for or against him; Defendant was present at all time with his evidence.

ANALYSIS OF BOTH CASES

7.	Nondiscriminatory trial is essential for the interest of justice. Prosecution however adjourned and vacated trial dates without any justifiable outcome. Although the matter can be adjourned for the interest of justice, Defendant’s right is also measured. Justice must be fair and equitable to all parties and hence I am gratified that Prosecution has adjourned their case unreasonably at the date of trial without any permissible conclusion. 

THE ESSENCE OF TRIAL

8.	The determination of conducting a criminal trial is to verify on the conditions concerning a crime. During the time of trial, parties’ present evidence before the court to decide if the accused person committed the crime. In a trial, a court scrutinizes the evidence to agree whether, "beyond a reasonable doubt," the accused purportedly committed the crime in inquiry. A trial is the Defendant and Prosecutions prospect to debate on its case, in the anticipation of gaining a verdict in their favor. Nevertheless, in the absence of such the court would be placed in a challenging position to make a ruling regarding the interest of State and Prosecution case.

9.	The tenacity of criminal trials is to guarantee that a person suspected of a crime obtains a reasonable and unprejudiced assessment of the circumstance surrounding his/her case in order to conclude if they are liable or not. Trial is important because it places an obligation on the prosecution to establish their case with merit based evidence to build their case or otherwise an unverified allegation is not worthy to stand the light of justice. An allegation does not hold someone accountable immediately unless the allegation is tested.

10.	The Constitution protects the accused person. The Constitution: 

37. Protection of the law.
 
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

The principle of remaining blameless until proven guilty is only determined thorough trial when all the evidence is established before the court. If evidence favours the Defendant then the principle remains, however, if evidence does not support the Defendant’s argument then the Defendant is found guilty. 

THE OFFENDING LAW

The Defendant before this court was arrested and charged under the Road Traffic Act 2014. The Provision of the Law also provides the penalty. The Law is as follows:

40. CARELESS AND NEGLIGENT DRIVING. 

(2) A person who drives a motor vehicle in a careless or negligent manner on a public street that causes - (a) bodily injury to another person; is guilty of an offence. 
Penalty: A fine not exceeding K 10,000.00 or imprisonment for a term not exceeding 3 years, or both. 

RULING

11.	The Defendant was arrested and charged for the said traffic office but he endured blameless unless a proper trial was conducted to determine the allegation. If trial was not conducted and a determination was not established then the Defendant maintained his status prior to arrest. Unless proper trial and adjudication is missing, Arrest, Interrogation and charge would not taint, change or smear the Defendant’s status prior to arrest. 

12.	There are evidence based arrest and arrest without evidence, for the evidence based, the progress of trial should be quicker than the non-evidenced based arrest. For non-evidenced based arrest, evidence is gathered while the matter progresses but both types of arrests are tested at trail to ascertain whether there is merit in the arrest. Defendant’s case was listed for trial for police to prove the allegation because it was an arrest without evidence. On the date of trial prosecution failed to provide evidence. The matter was fixed for trial and hence police should call in their witness to launch their case against the Defendant.  Nevertheless, in the absence of police proving their case, the Defendant would be inevitably reverted to his original status before arrest as if he was not arrested.

13.	I will therefore rule that since Police has failed to prove its case at trial when the matter has already progressed, I will dismiss the case. I will adapt the principle in the matter of State -v- John in my ruling. This is a National court matter but the principle is the same, this matter was listed for trial but on the date of trial State Lawyer informed the court that State had no evidence to present and the court dismissed the charge against the Defendant and Defendant acquitted and discharged. The second case that sustains my ruling is Police v Abrahams , this is a District Court matter. On the date of trial, the Prosecutor applied to the court to have the charge withdrawn because of non-appearance of state witness to give evidence. In consideration the court took into account the following issues on whether the District Court can allow the Police Prosecution to withdraw the charge or District Court have power to dismiss the case? The court stated that police can withdraw the charge because it is their case and they have all the right to withdraw it but since the case was set for trial so on hearing the court uses its powers under the District Court Act to dismiss it. The final case where I will base my ruling is in another district court case of Police v Philip . This matter was also set down for trial but on the eve of trial there were nonappearance of State witnesses to give evidence and subsequently Prosecution offered no evidence and Matter was dismissed.

14.	Once when a matter is fixed for trial but when Prosecution failed to produce or offer evidence then the matter in my opinion is or should be dismissed. Prosecutions options to have the charge reexamined or withdrawn could be done at the mention stages or before the matter is fixed for trial. The charges should be withdrawn or struck out if police cannot establish their case at the earliest mentions. Once a matter is fixed for trial, the evidence is ready to be tested in the court therefore police should stand primed to launch their case by way of calling their evidence. Nevertheless, if Prosecution unable to deliver to the court then I am persuaded that the charge against the Defendant be dismissed than struck out or withdrawn. My Judicial position to dismiss the charge against the Defendant is pertinent only to Summary and Schedule two (2) offences where trial is administered by the District Court.

CONCLUSSION

15.	It is this court’s verdict that the charge of Negligent Driving Causing Bodily Injury is dismissed. 

ORDERS 

16.	The following are the court’s Orders:

a)	The charge against the Defendant is Dismissed 
b)	Defendant is Discharged
c)	Defendant’s Bail money be refunded

In person							For the defendant
Police Prosecutor						For the State