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Koimboti v Bibi [1978] PGNC 35; [1978] PNGLR 124 (1 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 124 - Donald Koimboti v Michael Bibi 

[1978] PNGLR 124

N131

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DONALD KOIMBOTI

V

MICHAEL BIBI

Waigani

Kearney J

28 April 1978

1 May 1978

VEHICLES AND TRAFFIC - Offences - Failure to give right of way - Offence created only where vehicles approaching intersection from different roads - Not applicable to vehicles on same road - “Intersection or junction” - Motor Traffic Regulations 1967, s. 78(4)[ccxxx]¹.

N1>APPEAL - Inferior Courts - Substantial miscarriage of justice - Failure to follow procedure leading to lost chance of acquittal, fairly open - Failure to reject plea of guilty after hearing statement of facts - Local Court Act 1963, s. 43.

N1>WORDS AND PHRASES - “Intersection or junction” - Failing to give right of way when approaching - Motor Traffic Regulations 1967, s. 78(4)[ccxxxi]².

As a result of a collision between two motor vehicles travelling on the same roadway but in opposite directions, which collision occurred when one vehicle turned right across the line of approach of the oncoming traffic, the appellant, K. was charged with, and pleaded guilty to, the offence of failing to give right of way, contrary to s. 78(4) of the Motor Traffic Regulations 1967.

Section 78(4) of the Motor Traffic Regulations 1967, provides “When two motor vehicles are approaching an intersection or junction the driver of the vehicle having the other on its right shall give way to the other vehicle.”

On appeal against conviction and sentence:

Held

N1>(1)      Section 78(4) of the Motor Traffic Regulations 1967 applies only where motor vehicles are approaching an intersection or junction from different roads; it has no application to vehicles approaching an intersection from opposite directions on the same road.

N1>(2)      The phrase “intersection or junction” in s. 78(4) of the Motor Traffic Regulations 1967 refers to the area enclosed by imaginary lines joining the junctions of the lateral boundaries of the roads.

N1>(3)      In the circumstances the appellant had been wrongly convicted.

N1>(4)      Failure to follow accepted procedure which results in an accused losing a chance which is fairly open, of being acquitted, involves a substantial miscarriage of justice sufficient to allow an appeal under s. 43(3) of the Local Courts Act 1963.

N1>(5)      Failure to reject the plea of guilty after hearing the statement of facts in the circumstances caused the appellant to lose a chance, which was fairly open to him in the law, of being acquitted.

N1>(6)      The appeal should be allowed and the conviction quashed.

Appeal

This was an appeal against conviction and sentence on a charge of failing to give right of way contrary to the provisions of s. 78(4) of the Motor Traffic Regulations.

Counsel

J E. Gray, for the appellant.

K. Bona, for the respondent.

Cur. adv. vult.

1 May 1978

KEARNEY J: By summons issued by the Local Court at Ela Beach, the appellant was required to answer a charge that on 4th October, 1976 when driving a motor vehicle on the Hubert Murray Highway he failed “to give way to the right”, thus committing an offence under s. 78(4) of the Motor Traffic Regulations 1967[ccxxxii]3.

N1>The Local Court record discloses that on 21st December, 1976 the appellant appeared in person before the Court, and admitted the charge. A plea of “guilty” was recorded.

N1>The statement of what occurred on 4th October, 1976 was then read out to the court. It consisted of a report by the policeman who attended the scene, Constable Bibi, as follows:

“... attend the accident at Hubert Murray Highway opposite Lahara Service Station. I arrived at the scene of the accident where two vehicles had a collision ... (The appellant) stated that he was travelling outbound towards Boroko and turned right into Lahara Service Station and (the other vehicle) came and collided (with his vehicle). (The appellant) did not give way to right to the traffic travelling inbound Murray Barracks and turned right without giving way to his right”.

The appellant was then asked if he had anything to say why he should not be convicted; he had nothing to say. He was convicted and fined K40.00.

It is reasonably clear that the other vehicle involved in the collision was travelling on the same roadway as the appellant, but in the opposite direction; and that the collision occurred when the appellant’s vehicle turned right, across the line of approach of the on-coming traffic.

By notice of appeal dated 4th February, 1977 the appellant appealed against his conviction and fine. He contends that a plea of guilty should not have been entered, and that the conviction is against the weight of evidence.

Mr. Gray submits that s. 78(4) has no application to the factual situation. It was not a case of two motor vehicles approaching an intersection or junction; here each driver could be said to have the other on his right. Mr. Gray contended that s. 78(4) contemplated vehicles approaching an intersection from different roads.

Section 78(4) is an important regulation to govern traffic control. It indicates how vehicles must behave when approaching intersections, so that collisions may be avoided. Although the phrase “intersection or junction” is not defined, I think it is clear that it refers to the area enclosed by imaginary lines joining the junctions of the lateral boundaries of the roads:

In the present case there was no evidence before the Local Court that the vehicles were approaching an intersection; and in any event I consider that s. 78(4) has no application to vehicles approaching an intersection from opposite directions on the same road.

It is clear that the appellant was wrongly convicted of the offence of which he was charged.

The appeal was opposed on the basis that no substantial miscarriage of justice had occurred, the appellant having pleaded guilty in open court to the charge. An appeal can only be allowed, if it appears to this Court that there has been a substantial miscarriage of justice; see Local Courts Act 1963, s. 43(3).

The proper procedure for a magistrate (or a judge for that matter) to adopt when there is a plea of “Guilty”, has been laid down quite clearly by the court; see Laeka Ivarabou v. Nanau[ccxxxiii]⁴. He has to decide whether it is safe to accept the plea. So first he accepts it, provisionally. Then he learns about the facts of the case, normally, as here, by the police reading out a “statement of facts”. If that discloses nothing to throw doubt on the correctness of the plea of “Guilty” he accepts it, finally, and convicts the defendant.

N1>It is clear that in this case the statement of facts indicated that there was no basis for a charge under s. 78(4) of the Regulations; the plea of “Guilty” should then have been rejected and the police informed that if they wished to proceed, a new charge of negligent driving, or driving in a manner dangerous to the public, should be laid under s. 7(1) of the Motor Traffic Act 1950. Such a charge involves different issues to that involved in a charge under s. 78(4) of the Regulations.

N1>Failure to adopt the proper procedure can, as here, result in a wrongful conviction; that, in itself, is a substantial miscarriage of justice. The appellant was in any event entitled to have the procedure I have outlined, followed. If the failure to follow it results in the appellant thereby losing a chance which was fairly open to him, of being acquitted, and that was the case here, then there is a substantial miscarriage of justice, because the appellant has not had what the law says he is to have, and that is justice according to law.

N1>The appeal is upheld, the conviction is quashed, and the fine imposed is set aside.

N1>Appeal allowed: Conviction quashed.

N1>Solicitor for the appellant: J E. Gray.

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