DC792

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

GFC NO 03 OF 2001

BETWEEN

THE STATE
COMPLAINANT

AND

PERES MUSAS
DEFENDANT

Madang: C BIDAR, PM
2001: 30 November

CRIMINAL LAW- Dangerous Driving causing Death – Test to be applied – Test objective one – Finding of fault required- what constitutes fault – Criminal Code Act (ch No.262) s328(5)

CRIMINAL LAW- Defence – Jurisdiction and excuses –
Compulsion – Accident – whether any
Exculpatory defence or defences available on facts in Criminal Code Act, ss24(1)(6), 32(1)(c)

Cases Cited

The following cases are cited in the Judgment

R –vs Coventry [1938] 59 C.L.R. 633
McBride –v- The Queen (1966) 115 CLR 44
McGrone –v- Riding [1938] ALLER 157
State –v- Dela Tami [1977] PNGLR 57

Legislation

Trial 

This was a trial of the defendant charged with dangerous driving causing death, contrary to s 328(5) Criminal Code Act. The facts appear sufficiently from the judgment.

Counsel

Chief Sergeant Noah Pitu, for the Police Informant.
Mr. Seri Mitige, for the defendant

30 November 2001

BIDAR C PM: The defendant Pere Musas is charged that, he on the 6 September 2000 at Madang drove a motor vehicle, Mitsubishi Canter Truck, Registration Number MAC 344 upon a public street, North Coast Road, dangerously, thereby caused the death of one, Kob Mauhak, contrary to s. 328(5) Code.

2. The state case consists of both oral sworn evidence and documentary evidence. Three witnesses gave oral sworn evidence. The first witness was Otek Molan Kob. His evidence is that, he is the son of the deceased Kob Mauhak. He lives at Matupi village but originally from Nobnob area of the province. On the morning of 6 September 2000 he got up as usual and was ready to go to work at RD Tuna Cannery about a kilometre and half away along North Coast Road. He was ready and was with his father (deceased). His father was a Village Court Magistrate from Wagi Village Court Areas. Since it was Wednesday, which as a Village Court Sitting day, his father was also ready. Whilst he was with father sometimes between 7 and 8 am, defendant’s father Kumai Mumun went to them. Kumai Mumun’s house is only a few metres away from the witness and his father’s house. At first Kumai Mumun asked the deceased for a certain pig then he returned to his house. He went back again the second time. He informed the deceased that Siar people (villagers) were at his over certain dispute and that he (deceased) should attend to attempt settlement of the dispute. Since the deceased was a Village Court Magistrate, he was duty bound to attempt settlement of the dispute. There was some dispute between Siar villagers and the defendant and his family. I will revert to this aspect later on. The deceased then walked out of his house towards the defendant and his family’s premises. Shortly thereafter, the witness followed his father (deceased) and he ran past his father to see what was happening at defendant and his family area. As he approached an entrance to defendant’s premises, defendant drove the vehicle in question from North Coast way towards town. He turned right towards an entrance to his house almost running down the witness who jumped out of the way. As he turned and looked he saw the vehicle run down his father (deceased). He ran to his father and picked him up and noted that deceased was fatally injured. Shortly afterwards a taxi arrived and he took his father to the hospital. 

According to the witness the vehicle was speeding and attempted to run down pedestrians on his left side and then swung the vehicle to the right side of the road almost knocking the witness down. The vehicle zigzagged from left side of the road onto the right side where witness and the deceased walked on.

3. There was a dispute between Siar people and defendant andhis family. The evidence is not clear but it seems the dispute may have started from burning down of Siar people’s market house (shelters) opposite the cannery. Siar people suspected defendant to be responsible for burning down the market (shelters) opposite the cannery. There was a further reason which involved certain pig, which Kumai Mumun asked the deceased about that morning. There is however no evidence as to what became of the pig. Perhaps a pig owned by Kumai family went missing for which Kumai Mumun briefly asked the deceased about.

These seem to be the reasons, Siar people were there on the road and in the vicinity of Kumai Mumun and his family residence.

4. Second witness James Keith is from Siar village. He is employed by United Pacific Drilling as a driller. He was off duty (break period) at the time, he accompanied Siar people to Kumai Mumun and his family area at Matupi to settle a dispute which occurred previously. The witness with the group of Siar people walked to the market house which was burnt down. They then walked back towards defendant’s house. Some Siar boys were cutting sago palms on the road and James’ group walked past them. Defendant was not at his house. Shortly after, defendant drove from town towards canner, the witness and his group waved him down and tried to stop him, but he did not stop. James Keith and four others followed him towards cannery. As they walked up, defendant drove back from cannery way towards town. Defendant drove back in a high speed. From cannery towards town he drove on his left side and James and others right going towards cannery. He swung the vehicle towards James Keith who jumped out of way. He then swung onto the right side where his house is located, towards Otek and his father. The vehicle travelled straight at Otek and the deceased. Shortly thereafter, he heard a noise of vehicle colliding into a person, some nine (9) metres or so away. He ran up and saw deceased lying on the grass. He assisted Otek and stopped a vehicle and took the deceased to the hospital. 

5. The third witness, Elis Kob, deceased’s daughter. She gave evidence substantially similar to that of Otek Kob and James Keith. She left her house sometime after her father and brother left for Kumai Mumun and his family residence. She carried her baby as she walked up. Here observation was from the back of her father and brother going towards RD Tuna Cannery. She saw her brother Otek run past their father and walked infront of him. As she followed she heard a car engine travelling from North Coast road towards town. She saw the vehicle zigzagged to the left where James Keith and others were. She then heard a woman’s voice calling out, ‘kilim ol, kilim ol’ (kil them, kill them). She identified the woman, she was John Musas’s wife. From left the vehicle swung to the right, and missed Otek who jumped out of the way. She saw her father raised his hands to stop the vehicle but the vehicle ran him down and drove off towards town. The vehicle did not stop. She had a clear observation of what happened, whilst Otek’s observation would have been somewhat blocked by the vehicle which was between him and his father. James Keith was also a distance away on the other side of the road when he heard noise of vehicle colliding into something. 

6. State also tendered the following documents by consent and were admitted into evidence:

"A" 	Record of interview between investigating officer and defendant

"B"	Medical Report prepared by Doctor Philip Basse.

"C"	Report of Death to Coroner

"D"	Sketch plan by the investigating officer

At the end of the State case, defence made a no case to answer submission which I rejected. Defence case consist of sworn evidence of five (5) witnesses, defendant’s inclusive.

7. When the deceased passed the witness and his son, they did not turn back and observe him ride on. He also did not turn back and see the boy, when he saw the vehicle approaching from Ulingan way. Sometime after the vehicle passed him and his son, he heard a loud bang at his back, and this bang made him turn back and saw what he related to Court.

8. Defendant’s evidence is that he was the driver of the vehicle Mitsubshi Canter Truck, Registration number (Reg. No.) MAC 544 on the date in question. The vehicle in question is owned by Daghan Company. He dove off to town sometimes in the morning to pick up RD Tuna employees. As he was returning after drop off, he saw a lot of people on the road armed with fighting implements. They stood on the road as he drove back this was between RD Tuna and his house. As he drove on towards his house, some of those people struck the body of the vehicle with items. Closer to his house, some of those people struck the body of the vehicle with items. Closer to his house, he slowed down and signalled right to turn into the entrance of his house. He stopped at the front of his house to find out what was happening. As he stopped people rushed at the vehicle shouting kill him, kill him, scared of his life, he drove off towards town. As there were lot of people and being in a sate of panic, he drove off. He did not know that the vehicle had knocked down someone. He learned of this later on, that the deceased was a relative of his, a small father. He does not say how many people were on the road as he made a return trip but there were many people. He had no idea why so many people were there and acting in the manner they did. This was the reason he turned towards his house to find out what was happening and why so many people were there. He identified James Keith and his mob rushed at him from all sides of the vehicle. They pushed sticks and other items through wire mesh to poke at the defendant and his offsider. They threatened to harm and injure them. Defendant became frightened and in a state of panic drove off. Those in the front of the vehicle jumped out of the way but unfortunately for the deceased he was run down. He could not tell where the deceased was when he was run down.

9. The second witness Puma Putmai gave substantially the same sort of evidence as that of the defendant, especially as they drove back from RD Tuna towards defendant’s house. There were lot of people from the bridge towards defendant’s house. They threatened defendant by calling out, "paitime em, kilim em" and called him names. These people were armed with knives, iron rods, axes and they struck parts of the vehicle. The threats became worse when defendant pulled to the side of his house where he was rushed at and attacked. Fearing for safety, the defendant drove off towards town. In that process, the deceased was run down. The third witness Ronny Sibert witnessed looting and damage to properties such as cooking utensils. The people involved were Siar people and other plantation people. He identified James Keith and Tamilong Tabb. As they were called out onto the road by their leaders, the defendant drove in. The crowd then converged on the vehicle and pounding on it. There were people on the sides and front of the vehicle. As the vehicle drove off, those in the front jumped out of the way. The crown realised that someone was knocked down so they dispersed. 

10. When put to the witness about his observation of the bicycle when he got to the scene, he stated the front wheel was seriously damaged.

11. When asked in cross-examination by defence counsel if there were children on the road, he answered in the affirmative and said, they walked in front on him, the deceased boy on the bicycle was at the back of the children and witness was at the rear. His evidence contradicts that of the first witness who said, the deceased on the bicycle was in front on the children when he passed him.

12. The third witness was Tony Aisaka.

He is from Sikor village, Ulingan. On the 3 December 2003, about half past one (1:30pm), he was returning to his place of work from his village. As he walked up, he heard a vehicle travelling from Bogia way towards town. He heard the engine and figured the vehicle was speeding. He moved to the side of the road on the right and heard a noise at his back. When he turned and looked back, he realized that the vehicle had bumped someone, drove into the bush went past him and back on the road and drove off. As he got back on the road, he saw a boy lying on the road. He was shocked and he sat down. When he regained his consciousness, he called to the children to get the plate number of the vehicle. The vehicle was a green Isuzu utility.
 
13. When asked in examination in chief, as to why he jumped back on the road, he said he had to, because the vehicle travelled off the road towards him. When further put to him that the boy fell in front of him, he answered in the affirmative, but this contradicts his earlier evidence that, he heard the noise at his back and as he turned he saw a boy lying on the road. When he observed the body of the deceased it was motionless, blood coming out of nose but no apparent injury to his body.

14. When put to witness on cross examination as to why he jumped to the side of the road, he said, when he heard the noise or bang at his back, he moved to the side of the road.

15. When further pressed if he turned back after hearing the bang, he answered that he did and saw the boy lying down. When further pressed, if he saw people gathered at the scene of the accident, he said, he could not =
=//*recall.

16. Fourth witness was Paulus Mavera. He is from Sapra village, Malala. On that day he and a group of men from the village had a contract to cut grass on the road. As they cut grass, a vehicle travelled from Bogia towards town in a high speed. He got up and jumped to the side of the road, as the vehicle drove close to him. He described the vehicle as green colour. Later on he heard that, the vehicle had bumped a school kid.h

17. The fifth and final witness was the Police Investigating Officer, Senior Constable Anton Sapadimi. He has been a member of the Police Force for 26 years. His evidence is that, he received report of the traffic accident about ten o’clock in the night (10:00 pm) on the 4 December 2003. He arranged fuel and travelled to the scene of the accident with two (2) other policemen. There was no one at the scene. There were stone0s placed on the spot on the road, where the deceased laid. He observed skid marks on the side of the road. There were sticks planted to show where the bicycle rested. He drove to the village and took some men with him to the scene again. These men showed him the scene and he took measurements and drew up a sketch plan of the scene. He obtained witnesses names and located witnesses later on. He then returned to Bogia where he is based. On the 5 December 2003, he returned to check on the witnesses. He located Clement who took the investigating Officer to the scene again and showed him how the accident occurred. He obtained witness statements. Sometimes later during December, he travelled into town, went to Amri Transport workshop and saw the manager and told him that, he was investigating the fatal accident on 3 December 2003, and would like to talk to his company driver. On 19 January 2004, he took the defendant to Traffic office and conducted the record of interview. After the completion of interview, defendant read the contents of it and signed it. Prior to the interview defendant was given his constitutional rights. Later on the defendant was charged with this offence. On examination in chief, as to when he drew up the sketch plan, he said it was on the 4 December 2003. No one was present with him, he was stones which marked spot body laid and skid marks and sticks and drew up the plan. Defendant was not present at the scene when measurements were taken. In the witnesses’ opinion, the cause of the accident was due to speeding.
The prosecution also admitted into evidence, record of interview, pidgin and English translation, Post Morterm Report, Sketch Plan and a bicycle or what’s left of it.

18. After the close of the prosecution case, defence made no case submission which the court rejected. 

19. Defence case consist of sworn oral evidence of the defendant. No other witnesses testified for defence. His evidence is that, on the 3 December 2003, he was instructed by his manager to travel to Bogia to pick up the company’s other vehicle at Bogia. Some of the company employees were working on the road at Bogia. After checking the vehicle and refuelling, he departed Madang town about half past eight (8:30am). He drove on and on straight road he was travelling between eighty to ninety (80 –90) kilometres per hour. At schools or villages, he would slow down to about fifty (50) kilometres per hour. He arrived at Bogia about twelve 0’clock (12:00) mid day. He left the vehicle, checking oil and water, he rested and had lunch. About one o’clock (1:00pm), he drove back. The vehicle was a new one, Izusu, green in colour. Again, he was registering eighty to ninety (80 – 90) kilometres per hour on a straight road and would slow down near the villages and school. At Sapra village, he saw men cutting grass on the side of the road. Some men were sitting on the side of the road and others standing around. At Toto village, again men were cutting grass on the side of the road. At Ulingan area, he saw first group of children walking on the right side of the road. He drove past them. He saw second group of children walking on left side of the road and he paced the vehicle on the centre of the road and travelled at reduced speed. All of a sudden he boy riding on a bicycle travelling towards town on left side of the road, made a quick turn to the right side of the road and came in contact with the front of the vehicle and he flew to the side. Defendant made a hard turn to the right in an attempt to avoid the boy but it was late. He drove into the bushes for a distance and back onto the road and drove off. It was an accident and he did not stop but continued to town. He reported to his manager and with him they reported the accident of the Police. The police took his driving licence and informed him to wait. He waited until January 2004, when he was taken in and charged with this offence. When put to him on cross-examination by prosecutor, as to when he first saw the boy on the bike; he answered, as he drove along, the boy on the bike made a sudden right turn to the front of the vehicle. 

20. When further put to him, as to why he did not see the boy on the bike, he answered, he was riding bike among the group of children walking and made a sudden turn to right, which is onto the centre of the road, the vehicle was travelling on. When further pressed as to the distance he was to the bicycle, he said, it was between three to four (3 – 4) meters. When further put to him that, at that distance, he could see the boy, he answered, that the boy made a sudden turn to right in front of the vehicle and that was when he saw the boy. At the time, he was travelling at about fifty (50) kilometres per hour. When further put to him that, he could have avoided the boy on the bike, he said, because it was a sudden turn to right onto the centre of the road, this surprised him. It was suggested to him that, the vehicle struck the boy on the bike on left side of the road, he denied saying the impact was on right and bicycle came into contact on left side of vehicle. When suggested to him that, if contact was made on the right side, he could have avoided such an impact, he said he turned hard to right but the bike had collided into the front of the vehicle. He swung hard to right and into the bush to avoid him, but the collision have already taken place. When suggested to him that, he was speeding, at the time and it was hard to avoid accident, he said, if that was the case, he would injured himself too.

SUBMISSIONS

21. Defence submissions basically set out certain case authority such as Regina –v- Pius Piane [1975] PNGLR 52 The King –v- Coventry [1937-38] 59 CLR 367 [PacLII Editor Note: [1938] 59 CLR 633] and at p 368 the following passage appears:

"The standard is an objective standard impersonal and niveral, fixed in relation to the safety of other road users of the highway. The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all person who drives motor vehicle."

22. Counsel for defendant further submitted that on the evidence certain exculpatory defences are available to the defendant. Possible defences under s 23, 24, 25 and 26 of the Code. Section 23 involves intention and motive. Requirement is that when any of these exculpatory defences are fairly raised, the onus is on the State to remove such defence beyond reasonable doubt. It is submitted for defence that prosecution has not negatived these defences raised to the requisite standard. In any event, the evidence adduced by prosecution is ordinary and does not establish proof of all elements beyond reasonable doubt and therefore a verdict of not guilty should be returned.

23. Prosecutions response is that the evidence is before the Court. On the evidence, the defendant’s driving, at the time was dangerous, simply because he was speeding and did not take heed of or proper care and consideration for pedestrians. He referred Court to case of Karo Gamoga –v- The State [1981] PNGLR 443 which adopted the principles in English Court of Appeal decision in R –v- Gosney [1971] 2QB 674:

"In order to justify conviction there be not only a situation which viewed objectively was dangerous, but there must also have been some fault on the part of the driver, causing that situation. "Fault" certainly does not necessarily involve deliberate misconduct or recklessness. Fault involves a failure or falling below the care and skill of a competent experienced driver, in relation the manner of driving and to the relevant circumstances of the case. A fault in that sense though normally no danger would have arisen from it, is sufficient. The fault need not be sole cause of dangerous driving situation. It is enough if it is, looked at sensible a cause."

24. It is submitted that the evidence clearly establishes fault on part of the defendant. The defendant realizing pedestrians on the road namely school children failed to reduce the speed he was travelling. The school children heard the vehicle engine and moved to the left side of the road. There is no bend, the road is straight and clear. If other children heard the vehicle, the deceased would have heard the vehicle engine as well. There was no reason at all for deceased to cross the road to right when the defendant’s vehicle was only six (6) meters away. If the deceased turned to right at all, the most probable reason would have been, as he turned to see the vehicle, the front wheel of his bicycle would have turned slightly to the road, i.e. to centre of the road and as a result, defendant’s vehicle struck him.

25. Prosecution further submitted that, it was not a case of sudden or extra ordinary emergency so as to rely on s 26 of the Code. In an event, defendant’s story is not supported by any other evidence. Prosecution finally submitted that it has proven all the elements of the offence beyond reasonable doubt and that a verdict of guilty should be returned.

THE LAW

26. The law is clear which is provided under s 328 of the Code.

"S 328

(1) For the purposes of this section –

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

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

b)	amount of traffic that

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

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

2	 ……………………….

3 ……………………….

4	 ……………………….

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

27. In deciding whether the driving constitutes a danger, it is well established that the test is an objective one. See R –v- Coventry [1938] 59 C.L.R. 633; Mc Bride –v- The Queen [1966] 115 C.R. 44. This section speaks of speed or manner, which is dangerous to public. It imports a quality of in the speed or manner of driving whether intrinsically in all the circumstances surrounding the driving in a real sense of potentially dangerous to human beings who are as a member or as members of thepublic may be upon or in the vicinity of the roadway on which the driving is taking place. The objectivity test is one which is impersonal and universally fixed in relation to safety of others users of highway."

See McCrone -v- Riding [1938] 1ALLER 157 

28. When applying the objective test as to whether or not a manner of driving is dangerous, there must be some fault on the part of the defendant which creates a danger on the part of the driver.

State –v- Dela Tami [1977] PNGLR 57; R-v- Gosney [1971] 2QB 674; Karo Gamoga –v- The State [1981] PNGLR 443.

29. The onus is on the State to establish these elements beyond reasonable doubt.

a)	the identify of defendant

b)	drive or drove a vehicle

c)	on a road or public place

d)	dangerously and caused someone’s death.

30. At the same time State hears the same onus to negative any excusatory defences under Part one (I) Division five (5) of the Criminal Code. For instance, defence of accident or extra ordinary emergency. Some of which the defence attempts to raise here.

31. Having assessed and weighed whole of the evidence and submissions thoroughly and applying the principles which I referred to, I am satisfied beyond reasonable doubt that it was the defendant who drove the vehicle on the date revealed by evidence. That he drove Isuzu utility, registration number MAC 962 on Ulingan road, which is a public road, and as a result of his driving a young male child Leonard Patrick died due to injuries he received. As to whether or not defendant’s manner of driving was dangerous, the prosecution case relies heavily on the speed; the defendant was travelling on, despite presence of pedestrians on the side of the road, including the deceased. There is evidence that further up the road at Sapra village, which is some four (4) to five (5) kilometres away, men cutting grass on the road, some either sitting or standing around hap to jump clear because the defendant’s vehicle was speeding. The evidence is that on a straight road defendant was travelling between eighty (80) to ninety (90) kilometres per hour (kmph) and at villages or schools he would reduce speed to fifty (50) kilometres per hour (kmph) or so. At Ulingan road, he saw school children, he reduced speed and placed the vehicle at the centre of the road and drove up. There is also evidence that tall grass grew on both sides of the road, which was not cut. This was presumably the reason children walked on the road and when they heard vehicle, they moved to the edge of the road. Just before the point of impact, the deceased on the bicycle according to defendant, made a sudden turn to right and in an attempt to avoid colliding into him, defendant turned his steering wheel hard to the right but it was late, the bicycle had collided into the front left of the vehicle, which resulted in the deceased being thrown to a distance. The defendant was surprised and tried to avoid collision but was late. What may have probably happened was that, when children heard the vehicle engine they looked back including the deceased on the bike and in that process, the front wheel of his bicycle may have turned towards the centre of the road, which was why the front wheel was extensively damaged. The defendant is a very experienced driver of many many years. I assume he has travelled that road many times previously. In all the circumstances, I have reasonable doubt as to the defendant’s manner of driving just before the impact, whether he was still on high speed or at a reduced speed and taking into account the pedestrians who were school children and others.

32. I would therefore award the benefit of doubt to the defendant and return a verdict of not guilty:

VERDICT:	NOT GUILTY

___________________________

Lawyer for State, Police Prosecution Section
Madang Police Station
Young Wadau & Associates Lawyers, for the Defendants