N402(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. NO. 96 OF 1982

BETWEEN:

ANNA SAUNSBURY
APPELLANT

AND:

JACK WARTOVO
RESPONDENT

Rabaul: Kidu CJ
12 November 1982; 15 November 1982

JUDGMENT

KIDU CJ: On the 15th of November 1982 I allowed this appeal and made the following orders:

1. Appeal allowed, conviction quashed and sentence set aside;
2. Fine money of K600 paid by the appellant be refunded to her.

At that time I said that I would give full reasons later on and I now do so.
The appellant was convicted by the Rabaul District Court on the 15th of April 1982 of dangerous driving causing the death of one Aijapa Oraho. She was fined K600 in default seven months in hard labour. She appealed against her conviction.

On the 23rd of November 1981, at about 6.30pm, the appellant was driving along Kombiu Avenue towards Namanula Road. She said in her testimony as follows:

"It was 6.30pm and I was returning hom along Kombiu Avenue. I was proceeding on a normal fashion. Lights were set on low beam, as correct for a built up area. I was driving on correct position on carriage. My previous driving experience gave me to understand that I was proceeding at a normal speed. The road ahead was clear. Suddenly I was aware of a heavy impact on the front end of the car ... the visibility I had was fifty feet and visibility to either side is very restrictive.
	
Immediately before the accident my attention was not destructed at all".

About half a minute before the impact a motor vehicle had passed her going in the opposite direction. Her lights were on low beam when the impact occurred. She travelled towards Namanual Road and she said her attention was concentrated on the road ahead which appeared to be clear. She did not see who or what caused the impact because the road was clear.

The prosecution called three eye witnesses - two of these were very young children - Tom Rupi aged 5 years and Hukai Keviso aged 4 or 5 years. The third eye witness, Anthony Jenny, was an adult and the main prosecution witness.

The prosecution alleged speeding, driving without due care and attention and failure to keep a proper lookout as constituting the dangerous driving which caused the death of the deceased.

His Worship, the Trial Magistrate, seems to have convicted the appellant twice - of dangerous driving causing death based on speed and of driving without due care and attention. I think, although I am only speculating, that His Worship meant to say that if the appellant was not guilty of dangerous driving causing death she was guilty of driving without due care and attention.

The trial magistrate treated as facts the particulars relied on by the prosecution. On p.3 of the Reasons for Decision the following appears:

"Turning to the facts the State alleged that the accused:

(a) was driving dangerously causing death (speed) or

(b) driving without due care and attention and alternatively

(c) she failed to keep a proper lookout.

Fact 1: The evidence on the allegation of speeding is that of Anthony who stated that the accused was - speed no good - speeding very fast or the speed was not good or that it was dangerous to human beings. ...

Fact 2 & 3: Driving without due care and attention alternatively failing to keep a proper lookout."

It must be emphasised here that allegations made by the prosecution are not facts until proven to be so. I make this point here merely for the assistance of magistrates.

SPEED

The learned magistrate said in his judgment:

"The evidence on the allegations of speeding is that of Anthony who stated that the accused was - speed no good - speeding very fast or the speed was no good or that it was dangerous to human being.

He further support this by his statement when the accused’s vehicle was abreast with him, that the speed was 1-2 and then hit the deceased. The accused in giving her evidence she made no mention of what speed she was making at the time except that her experience made her understand that she was driving at a normal speed. On the other hand although State witness Anthony stated the body of the deceased was carried 8 yards (sketch plan show the body was carried more than 50 feet).

The question could be asked - if the accused was not speeding, would her car pick up the body of the deceased and carried her more than 50 feet from the place of impact. After the deceased was being hit? To put the question the other way - if the accused was not speeding that she was only making 30 miles per hour as she stated in her original statement, would her car pick up the body of the deceased on the bonnet and carried it more than 50 feet from the place of impact?

If she was not speeding would the car just hit the deceased and not caught the whole body, the answer is no. ...

Dangerous driving can be based on circumstances and if not based solely on speed alone. Looking at the medical report, it would appear that the multiple injuries from which the deceased died would seem consistent with speed. There is the fault on the part of the accused in that she failed to observe the law in driving the way she said."

Perhaps it is convenient at this stage to set out the law on dangerous driving. Section 328 of the Criminal Code provides what dangerous driving is and it provides as follows:

"328. Dangerous driving of a motor vehicle

(1) 	For the purpose of this section:

	"driving a motor vehicle on a road or in a public place dangerously" includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including:

(a) 	the nature, condition, and use of the road or public place; and

(b) 	the amount of traffic that:

(i) 	is on the road or in the public place at the time; or

(ii) 	might reasonably be expected to be on the road or in the public place;

	"public place":

(a) 	includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but

(b) 	does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

(2) 	A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.

	Penalty: Subject to the succeeding provisions of this section:

	On summary conviction - a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

	On conviction on indictment - a fine not exceeding K1 000.00 or imprisonment for a term not exceeding two years, or both.

(3) 	If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.

(4) 	If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.

(5) 	If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.

(6) 	A person may be arrested without warrant for an offence against Subsection (2)."

The test for dangerous driving is set out in a recent Supreme Court Decision Karo Gamoga v. The State. In that case Andrew, J. said as follows:

"In the determination of the question of whether the driving constitutes a danger it is well-established that the test is an objective one: The King against Coventry; McBride against The Queen per Barwick C.J. at pp.49 and 50: "the section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either increase intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving is in the real sense potentially dangerous to a human being or human being who as a member or members of the public may be upon or in the vicinity of the roadway on which the driving is taking place... a person may drive at a speed in a manner to the public without causing any actual injury: it is the potentiality fact danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculating, potentially dangerous to others."

The test of objectivity does not exclude as irrelevant an issue of fault or culpability. See R. v. Warner. The statement of Court of Appeal is R. v. Gosney is of assistance, "it is not an absolute offence. In order to justify a conviction there must be, not only a situation which are viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation."

This statement is to be read in the light of the provisions of Chapter 5 of the Criminal Code (the exquisitory provisions). See R. v. Warner, Greg v. Pious Piane and Smith v. R.

In the King v. Coventry, the judgments emphasised that the question was not whether a person was indifferent to the consequences of this driving (which might be considered as recklessness) but whether the acts of the driver constituted a danger, real or potential, to the public, and that the standard was an objective impersonal and universal, fixed in relation to the other uses of the highway, citing McCrome v. Riding. The High Court added that casual behaviour and momentary lapses of attention, if they result in danger to the public and not outside the prohibition of the provision of the provision. See per Jackson C.J. in Smith v. R."

In this case the dangerous driving alleged, firstly was speed - that is the appellant drove her motor vehicle at a speed dangerous to the public having regard to all the circumstances of the case including (a) the nature, condition, and the use of the road; and (b) the amount of traffic that:

(1) is on the road at the time; or

(2) might be reasonably expected to be on the road.

The speed of the appellant’s vehicle was, in the words of witness Anthony Jeni "spid no gut". This means very little although the learned magistrate took the view that it meant "speeding very fast or the speed was not good or that it was dangerous to human beings." Anthony saw the appellant’s vehicle "1-2" before it reached the deceased - that is that from the time he saw the vehicle to the time of the impact the time that elapsed was 1-2 - a very, very short time indeed. He hardly had time to determine the speed of the appellant’s motor vehicle. It was, according to the appellant, about 6.30pm. Jeni said it was 9pm. Whatever the time was it was dark because according to the evidence street lights were already on at the time of the accident. Young Hukai Keviso said the accident happened on a Monday night.

Anthony’s evidence contains very glaring inconsistencies which the learned magistrate dismissed as miscalculation or mis-estimations. In his evidence-in-chief he said "I came up from the playground, stood on the road next to Rabaul High School and due to some vehicle travelling fast, I stood off waiting for these cars to pass. As I stood I saw vehicle travelling very fast (spid no gut) ... it was 9pm and there was no rain. There was street light where I stood."

In cross-examination, he said:

"Q. You were standing near street light?
A. Yes. It is correct.

Q. Was it directly above you, left or right of you?
A. Straight above me...

Q. Where you stood when you saw vehicle coming you were still standing on same spot when you saw accident?
A. Yes. On same place. ... ...

Q. Are you sure you were standing directly under the street light?
A. I was under the street light."

It seems that from where the accident occurred - that is point of impact - to where Jeni said he stood under the street light the distant was 50 yards. During cross-examination at the view he placed himself closer to the point of impact.

Later in court the following was said by the witness:

"Q. Is it true you did not see the vehicle until beside you (abreast of you).
A. Yes. That is true."

The learned magistrate said of these inconsistencies as follows:

"The defence raised certain part of this witness’s evidence which seem to be inconsistent. I consider these are not being inconsistent but they are more miscalculation or mis-estimation of time, distances etc. typical of uneducated population."

With the greatest respect to His Worship, it was an error to brush aside these most important inconsistencies in the evidence of the main prosecution witness. Whether a person is educated or not, he should know simple things like where he stood or how far from where the accident occurred. One does not need a high school or university education to determine things like that. Either Jeni was near the point of impact or he was 50 yards away under the street light when the accident happened.

He advanced the only explanation as to how the accident happened but this was not accepted by the learned trial magistrate. The magistrate said:

"though he gave evidence that the accused’s vehicle hit the gully grating, ran off the road onto the grass and hit the deceased, is unfortunately the Court does not accept this part of the evidence as being true as was not supported by any further evidence." (My underlining).

The learned magistrate said it was not true. If Jeni lied on this point, why accept his inconsistent evidence about where he stood at the time of the accident?

Exhibit ‘A’ before the District Court shows that the deceased was 6 feet from the curb of the road towards the middle of the road when the accident occurred. This sketch plan (Exhibit ‘A’) was drawn by Constable Wartovo on particulars provided by the witness Jeni on the night of the accident. The road is 30 feet wide from curb, she was about 9 feet from the centre of the road. According to Anthony Jeni, she was standing on the grass right away from the edge of the road. This inconsistency also should have rendered unreliable the evidence of Anthony Jeni.

His worship said Jeni’s evidence of speed was supported by his further statement that when the appellant’s vehicle was abreast of him, the speed was ‘1-2’ and then hit the deceased. This is an error. Jeni did not say that. What he said was as follows:

"Q. How much time could you guess between the time you saw the vehicle to the time the girl was struct?
A. Very fast 1-2 from when I first saw the vehicle to the time the vehicle hit the girl in 1 or immediately."

He was explaining the time that elapsed between his first sighting of the appellant’s vehicle and the impact with the deceased. He did not say the "1-2" was the speed of the vehicle.

Anthony Jeni’s evidence of "spid no gut" was based on a momentary observation of the vehicle 1-2 before the impact with the deceased. It was dark at the time and he was 50 yards so from the point of impact - that is the point impact was 50 yards behind him.

The Court also concluded from the fact that the deceased was lying 51 feet from the point of impact that the appellant must have been speeding. This conclusion is a very glaring flaw. There was no evidence that the deceased was hit by the vehicle and landed 51 feet away from the point where she was hit. If this had been the case, it would have been open to the trial magistrate to conclude as he did. However, the evidence seems to be that somehow the deceased landed on the bonnet of the car and was carried 51 feet. A vehicle travelling 10 kilometers an hour or 60-80 or 80 kilometers an hour or more could have carried the deceased 51 feet. This distance between the point of impact and where the body landed does not show any in any way the speed of the vehicle. No expert, in my view, would be able to make such a estimation.

His worship also said that the vehicle was speeding also because it was supported by the injuries sustained by the deceased. I quote what His Worship said in his reasons for decision:

"looking at the medical report, it would appear that the multiple injuries from which the deceased died would seem consistent with speed."

If the evidence was that the vehicle had hit the deceased and the deceased landed away 51 feet from the point of impact and sustained the injuries described in the medical evidence then perhaps it would have been reasonable to say that the vehicle must have been speeding. But once again the evidence does not say that. The evidence once again seems to be that somehow the deceased landed on the bonnet of the car, was carried 51 feet and then dropped.

It could be that she fell onto the road and was squeezed in between the car and the edge of the road hence the injuries on the side and her head or that she somehow fell underneath the car and sustained the injuries that are described in the medical report. Most certainly it is not indicative of the speed of the vehicle. No expert in my opinion could calculate speed of the vehicle from the type of injuries in this case. In my view, there was no evidence of speeding of the accused’s vehicle on which to base the decision that the learned magistrate came to in Page 4 of his reasons of decision.

There was no evidence of driving without due care and attention. Also there was no evidence of not keeping a proper lookout. I cannot see how such lack of evidence could result in a person being convicted of either dangerous driving causing death or driving without due care and attention. Courts do not speculate on evidence. There must be evidence on which verdicts of courts must be based. If the prosecution’s case is full of holes, then the defendant or the accused is entitled to the benefit of doubt or benefit of the State or Prosecution failing to prove their case beyond reasonable doubt.

I make some general comments about the case and the evidence on which the decision of the learned magistrate was founded.

His Worship did not believe Anthony Jeni that the appellant’s vehicle hit the gully grating on the edge of the road, went off the road and hit the deceased.

According to the witness, the accident would not have occurred if the appellant’s vehicle had not left the road:

Q. If the vehicle had not left the road and gone up on the grass, would there be any accident?
A. No, as she had been standing on the grass...

Q. In your opinion, caused by the vehicle hit the gully iron and therefore ran off the road and hit the girl.
A. Vehicle speeding very fast (spid no gut) hit the iron gully gone onto the grass onto the deceased and struct the girl."

As I said the Court did not believe this. Therefore if the vehicle did not leave the road, how was the girl hit by the appellant’s vehicle?
There is no conclusive evidence. Even if the appellant had been speeding, there would be no way to explain how the vehicle and the deceased collided. Let us look at the position of the deceased when the accident occurred:

1. Anthony Jeni
"Q. Was the deceased when struct standing on the carriage way or behind the curb?
A. Outside the cement on the grass."

Jeni said that in cross-examination.

2. Tom Rupi, "she walked first to the other side of the road. I saw the vehicle killing her on the side near cement.
Q. Was near cement but inside or near cement but outside on grass?
A. Near cement. The vehicle caught her by the hand when she had gone and stood on the cement. She told us not to cross the road because the vehicle was near, at the same time wave to us same time car hit her."

This was said by Tom Rupi in his evidence-in-chief, then in cross-examination, the following appears:

"Q. When calling out and waving at you she was facing you, is is not?
A. Yes she was facing us.

Q. Is it not true she took one or two steps towards you when she was calling out and waving to you?
A. No".

Q. Is it not true when she was hit by vehicle she was standing inside on the road?
A. No, she was standing on grass".

The Prosecution’s evidence was therefore that the deceased was standing well away from curb or edge of the road at the time the accident occurred. Unless the vehicle went off the road and hit her, there is no other explanation of how the accident happened except what one of the little boys said in evidence but I’ll come to that later on.

If the appellant was travelling on the correct side of road near to the side of the street according to Anthony Jeni then how did the vehicle hit the deceased who was standing well away from the edge of the road on the grass? Part of His Worship’s findings read "she was concerned for the safety of the boys as the accused’s vehicle was already very near. She called out to the boys stopping them not to cross the road while standing on the grass or outside the curb. In so doing, the vehicle caught her hand and such lead to her death."

How did the vehicle "caught her hand"? Either she was leaning over the road waving at the boys on the other side of the road or running across the road or the vehicle went off the road and hit her. The last is of course not so because the learned magistrate did not believe Anthony Jeni’s story.

Hukai Keviso’s evidence the position of body and the point of impact on sketch plan made by Constable Wartovo on the particulars given by Jeni explains, I think, how the accident happened. In his evidence young Hukai Keviso said:

"The vehicle was still far away when she crossed the road. When she told us to wait, the vehicle was very near. She ran across the road. The vehicle came and pushed her on the road drop on (coltar) butimen road". (My underlining)

The sketch plan, as I have pointed out already, shows that the point of impact was 6 feet towards the middle from the edge of the road. This plan was drawn by Constable Wartovo on particulars provided by the witness Anthony Jeni on the night the accident happened. At the time his mind was fresh and it seems that perhaps he gave a better explanation to the Constable as to where the deceased was standing or where she was positioned when she was hit or when she collided with the appellant’s vehicle. It is possible (and this is based on what Hukai Keviso said) that the deceased being concerned for the safety of the two little boys when she saw the appellant’s car approaching she was standing very close to the edge of the road and ran into the bonnet side of the appellant’s car went over onto the bonnet and was carried 51 feet. This would be a reasonable explanation of how the deceased met her death. It is possible that she was responsible for her own death.

Counsel for the Appellant: Mr G Payne, Warner Shand, Wilson & Associates
Counsel for the Respondent: Mr E Kariko Public Prosecutor’s Office.