Papua New Guinea

DC6010
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 873 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

MEFI KOKA
[Defendant]

His worship Paul P Nii

31st May 2021

TRAFFIC OFFENCE: - Without Due care and Attention -  s 28(2)(a) – 39(1) - Road Traffic Rules-Road User Rules 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation of Driving without Due Care and Attention-Elements of Contributory Negligence- Fined and warned.

PNG Cases cited:
Police –v- Enoch Apami [2020] DC5061 WTC 634 of 2020, 24.12.2020, (unreported)
State –v- John Ekapa [2007] DC518

Overseas cases cited: 
Butterfield -v- Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809),

REFERENCE

Legislation
Road Traffic Regulations

Counsel
Police Prosecutor: J Wamuru					For the Informant
In person								For the Defendant

RULING ON VERDICT

31st May 2021

INTRODUCTION

NII, P Magistrate: The Defendant pleaded not guilty to the charges of Driving without due care and 
Attention subsequently infringing Section 28(2)(a) of the Road Traffic Rules-Road User Rules 2017.

1.	Trial was happening on the 29th April 2021 and ended on 5th May 2021 where Prosecution opened and closed its case followed by the Defendant. Closing submissions were completed on the 24th May 2021 and now is my ruling on verdict.

FACTS

2.	Defendant was arrested on the 25th November 2020 for an allegation comprising Driving Without due care and attention and thereafter arrested, interrogated and charged on the 23rd November 2020. Police have summarized the all-inclusive allegation into the ensuing brief facts as it appears on their information bearing the charge:

“The Defendant aged 56 years of Muglamb village in the Dei District of Western Highlands Province was alleged to be a drive of a motor vehicle, towit a Nissan Navara wagon, double cab utility, white in color bearing registration number BDC 670 upon a public street, towit Badili Roundabout did drive the said vehicle without due care and attention”.

3.	The agreed facts are the Defendant was driving from two (2) mile down to Koki and was turning left to Scratchley road at the Badili roundabout and hit the Complainant’s car who was driving from Koki up to Badili and turning right towards Scratchley road. These facts are not disputed but the issue shall be warily administered by the court. 

ISSUE

4.	The only issue before me is whether the Defendant was driving without Due Care and Attention and his action has subsequently caused him to crash the victim’s car? 

RELEVANT LAWS

5.	The offending Law subject of allegation is established under Section 28(2)(a) of the Road Traffic Rules in the succeeding terms:
 
28 GENERAL DRIVING RULES

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

6.	A charge is a mere allegation until verified with evidence and henceforth I should establish the elements of the offending charge to ascertain whether there is merit in the allegation against the Defendant.  My brother Magistrate his worship Seth Tanei established the elements of the offending charge in the case of Police -v- Enoh Apami . His worship points out the elements of the offence as:

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. 

EVIDENCE

7.	A more and comprehensive material to the realities is though witness from the Prosecution and Defense who came to the court to give evidence. An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up. 

Prosecution has called two (2) witnesses to give evidence and they are the victim/Complainant and his wife. 

Harry Sammy – (1st State Witness and Complainant)

8.	This is the first State witness and he was the driver of the vehicle that was allegedly bumped by the Defendant. This witness said he was driving up from Koki way and was approaching the Badili roundabout before heading to Scratchley road when he noticed the Defendant’s vehicle travelling down from two (2) mile road heading to the Badili roundabout. Complainant said he was approaching the roundabout and driving towards Scratchley road when he was bumped by the Defendant. State witness said the Defendant was moving fast and failed to slow down and give way when he approached the roundabout. The Complainant said Defendant should give way for the Complainant to drive through. 

9.	State witness has tendered in court an exhibit displaying the scene of accident and images capturing the aftermath effect. In the exhibits the witness reiterated his earlier point that he has the right of drive way through when approaching the roundabout but not the Defendant. Mr. Harry Semi also told the court in his evidence that his signal never goes off quickly.

10.	During cross examination, Defendant did not deny the accident but maintained that he was not travelling at high speed as alleged by the victim. Defendant raised an issue on contributory negligence where he blamed the State witness as his failure to put off the left signal light which was signaling towards two mile way when approaching the roundabout. 

Dorothy Sammy – (2nd State witness)

11.	This is the State’s second witness and she was travelling with the victim at the time of accident. This witness said they were approaching the Badili roundabout after travelling from Koki. Witness said they slowed down to drive through Scratchley road and saw traffic on the left side of the road. She said as they were driving through their lane at the roundabout towards Badili way along the scratchley road, the Defendant vehicle came from the left towards two(2) mile way and collided with their vehicle at the back. The witness says she was struck after the collision and was trapped and unconscious inside the car she was travelling form until bystanders and commuters who were nearby instantaneously came towards her assistance and pulled her out.

12.	Mrs Sammy said, the Defendant should have given way as he was travelling down from two (2) mile way approaching the roundabout and that was not his right of travel. She further told the court that Defendant failed to stop and give way to the traffic.

Defense called three (3) witnesses. These witnesses were the Defendant and two (2) other people travelled with the Defendant at the time of accident.

Mefi Koka (1st Defense witness)

13.	The Defendant is the first Defense witness. He was driving the vehicle that was involved in the collision with the victim’s vehicle. He says he was driving down from the two (2) mile way along the Hubert Murray Highway and was approaching Badili round about. He says he slowed down his vehicle and spotted the Defendant’s car on the outside lane about to approach the roundabout. Defendant informed the court that before he turned left and drive towards Scrathchley road he saw the Complainant’s vehicle with left signal light on specifying that the Complainant would turn left and drive towards two(2) mile way along the Hubert Murray Highway. Defendant says he approached the Scratchley Road and suddenly bumped the side trailer of the complainant’s vehicle.
 
14.	Defendant told the court the victim was signaling his vehicle towards two (2) mile way along the Hubert Murray Highway. Defendant says, he though the victim was driving towards Hubert Murray Highway and he slowly turned left to drive along Scratchley road and colluded with the Complainant’s vehicle. Defendant reiterated that the victim was signaling left to drive up the Hubert Murray Highway. Defense blamed the victim for his vehicle’s signal light. He said the collision was caused as a result of the confusion created by the Complainant’s vehicle through the signal light. Defendant told the court that the collision could have been avoided if Mr Harry had not put on his vehicle’s signal light signifying to turn left towards two (2) mile and up the Hubert Murray Highway. 

Jacqueline Koka (2nd  Defense witness)

15.	This is the Defendant’s wife and travelled with the Defendant at the time of collision. This witness testimony is more an identical version of the Defendant’s witness. She also said the clatter was caused by the misunderstanding twisted by the Defendant’s signal light. This witness says the Defendant was driving slowly and collided with the Complainant’s vehicle.  

Hobert Murphy (3rd Defense witness)

16.	This witness travelled with the Defendant and the 2nd Defense witness. He told the court that he was at the back of the Defendant’s vehicle and saw the Complainant’s vehicle was signaling to go up the Hubert Murray Highway Highway but did not go there and instead drove towards the roundabout and onto Scratachley road and thereby the Defendant bumped on the Complainant’s vehicle.  

CONSIDERATION OF EVIDENCE

17.	The Prosecution called in two (2) witnesses, the Complainant and his wife who was also a witness but prosecution did not call in one of the important State witness and is the arresting officer. The arresting officer’s statement should play an important role in the determination of the police case. The arresting officer should prudently investigate the accident and furnish a report as on who was at fault, in this allegation there is no investigative report. There is also no evidence before me that the arresting officer visited the accident scene after when the accident was conveyed. The arresting officer should establish police case but there is no one to establish this and therefore the key person to establish state evidence is momentously missing.

18.	The First Police witness says Defendant did not stop his vehicle but instead drove through and that was how he bumped his vehicle. Police witness say the Defendant should have stopped his vehicle and give way but that did not happen and instead drove through and crashed the State witness’ vehicle. Prosecution’s first witness says his vehicle’s signal light was on when he approached the roundabout means instantaneously before the accident, state witness’s vehicle’s signal was on. The reason why the signal was on causing the confusion is not known but I have evidence to believe the signal was on. The evidence convinces me that the signal light causes the confusion between the Defendant and the first State witness.  I will now take the evidence that the first state witness car was bumped by the Defendant’s car but it was caused by the confusion in the signal light.

19.	The Second State witness did not mention anything about the signal light but maintained that the Defendant did not stop his vehicle at the give way but instead drove though and collided with the state witness’s vehicle. This witness also mentioned to the court that Defendant was speeding thereby causing the accident.  I will take this evidence that Defendant bumped the vehicle but the accident was caused by the misunderstanding in the signal light of the Complainant’s car.

20.	The Defense evidences were unfailing all throughout the trial. All the three (3) defense witness did not repudiate the accident but alleged that First State witness vehicle’s signal light triggered the confusion thereby causing the accident. I am convinced and will accept the Evidence that the vehicle was bumped by the Defendant but it was caused by the confusion in the Complainant vehicle’s signal light.

21.	There is no accident report by the Arresting officer regarding the aftermath impact of the accident. The First State witness has tendered an unnumbered exhibit to the court capturing pictures of the accident scene and the collided vehicles. I have carefully studied the exhibit that displays the victim and Defendant’s vehicles after the accident. Despite the collision, the positions of the vehicles as how they were travelling seconds before the accident remained the same at the place of accident on the  Scrathchley road few meters next to the roundabout. I will therefore refuse to accept the evidence that Defendant’s vehicle was speeding.   

DISPUTED AND UNDISPUTED FACTS

Disputed facts

I)	The Defendant was travelling at high speed and caused the accident on the victim’s vehicle.

II)	State witness vehicle had its left signal light on while going around the Badili roundabout towards Scrathchley road.

III)	The Second State witness was hit by the collision and thereby fell into unconscious before bystanders came and pulled her out. 
 
Undisputed facts

i)	The Defendant was the drive of the said vehicle that collided with the State witness’ vehicle. 

ii)	The Defendant bumped the victim’s vehicle at the back trailer and caused some dent.

iii)	Both parties to the proceeding were present at the scene of accident and witnessed same.   	

OUTCOMES

22.	Police Evidence presented in court established two (2) elements of the offence against the Defendant and these are the Defendant was driving the vehicle on a public street and the vehicle that he was driving caused the accident. After launching these elements the court further need to classify the other two elements of due care and attention and that is whether the Defendant at the time of accident was driving his vehicle without due care and attention thereby triggering the accident. 

23.	Prosecution has demonstrated to the court that Defendant had a legal commitment to take a rational standard of care when undertaking actions that might foreseeably damage others. Prosecution says Defendant should have taken reasonable steps to circumvent causing harm on the other person’s vehicle, however, in the failure to comply with such duty would categorically attack criminal liability. In the current case I must be convinced that the Defendant’s demeanors had breached the duty he had with Commuters including the Defendant at the time of accident. I must be also persuaded the Defendant’s behavior had deliberately unnoticed an apparent risk and henceforth had placed the life and safety of the first and second State witness at risk. 

24.	Does the Defendant’s action amount to Criminal Negligence in that he failed to obey a duty of care? The First State witness indicated to the court that his signal light was on when he was approaching the Badili roundabout before heading up the Scrathchley road but I do not know the reason why the signal light was on while driving through. His worship F Manue in State –v- John Ekapa , held that:

“Whatever the driver does in the cabin without those mechanical and electrical devices are within his control whether he use them or not can only be reflected or manifested externally, for example if he blinks to turn left, the left signal would blink indicating to pedestrians that the driver has used electrical device to indicate his intention to turn left’
But whenever 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.”

25.	After applying the above principle in the existing case the reason why the Defendant had his signal light on was within his information to the exclusion of the pedestrians including the Defendant. It is manifested before me that only the State witness would know the reason why the device in his car that produces the signal light was blinking that lead to the accident. The Defendant only reacted to the effect of what was produced by the device in the state witness’ vehicle by driving through. Ignorance of the law is not an excuse but whoever seeking equity should come with clean hands. This would now raise the issue of contributory criminal negligent. Therefore, the duty of care becomes a two (2) way thing; it applies to both parties under the Law of Criminal Contributory Negligent. I will adapt the principle in Police –v- Enoch Apami case that duty of care is a two (2) way thing. Although the Defendant had a duty of care to stop and give way in order not to come into contact with any oncoming traffic, the State witness also had a duty of care to ensure his driveway was free, no electrical and mechanical defects in his vehicle and there was no traffic before him before driving through. Both parties had a duty to ensure driving on public road is safe for commuters, it’s a communal obligation.

26.	 I have decided to use the old English case of Butterfield v. Forrester in the existing circumstance because it affords the principles on contributory criminal negligent. In this landmark case the Complainant sued the Defendant after he sustained injuries from bumping a pole that was placed against the road next to the Defendant’s house. The court said the Complainant did not use reasonable care to see what was before him before travelling and therefore dismissed the Complainant’s case. 

27.	When applying the above principle in the current case, the state witness had his signal light on while turning the roundabout at Badili which then caused confusion on the Defendant who was oncoming to travel the same drive way as the state witness. I am satisfied that the State witness did not take reasonable care to see the electrical device in his vehicle that gives signal light was blinking when when he advanced the roundabout. Thus, I will conclude that the Complainant or the State witness has triggered the confusion which lead to the accident.

CONCLUSSION

28.	I have evidence to believe that the Defendant while travelling on a public road which was at the Badili roundabout intersection of Hubert Murray Highway and Scratchley road triggered the accident on the victim’s vehicle but it was caused by the Complainant’s signal light. The Accident was contributed by the Complainant.

ORDERS

29.	I make the ensuing orders:

a)	Defendant is Found Not Guilty,
b)	Defendant is acquitted and discharged
c)	Defendant’s bail money be refunded

In person				For the defendant
Police Prosecutor			For the State