DC297

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 73 OF 2002

Police
Complainant

V

Defendant
Andreas Pu’u

Mt. Hagen: M. M. Pupaka
2002: 05th Nov., 03rd, 13th, 23rd, 30th – 31st December

Criminal Law – Particular offence – Dangerous driving causing death – Elements of offence – Standard of driving to be viewed objectively – Test in King –v- Coventry as adopted and applied.

Criminal trial – Accused represented by council – Cardinal rule in Browne v. Dunn – Nature of defence not opened through cross-examination of prosecution witnesses – Prosecution witness’s integrity severely prejudiced – Demeanour of controversial defence witness unimpressive – Fairness and interests of justice warrant pertinent defence witness’s evidence to be rejected.

Cases Cited
Browne –v- Dunn [1894] 6 R. 67 H.L.
State –v- Ogadi Minjipa [1977] PNGLR 293 at p. 296
R-v- Coventry (1937-38) 59 C.L.R 633
R-v- Pius Piane [1975] PNGLR 52
Karo Gamoga –v- The State [1981] PNGLR 443

Counsel
Senior Constable Giwoso For The Prosecution
Mr Tumun Kuma For The Accused

3rd February 2003

M. PUPAKA, PM: The accused Andreas Pu’u was charged that he on the 18th of August 2002, drove a motor vehicle, a white coloured (with stripes) Mitsubishi L200 (4x4) Reg. No. BAN 409, upon the Kunjip /Banz Road dangerously causing the death of one Kugame Temne, thereby contravening section 328 (5) of the Criminal Code, (the Code).

The accused pleaded not guilty. The facts not in dispute are that around past midnight, in the early hours of the 18/08/02, along the Whagi Valley stretch of the Banz – Kunjip road, the accused ran over the deceased, one Kugame Temne, with his vehicle – white 4x4 Mitsubishi L200. The deceased was taken to the Kunjip Hospital but died on arrival there.

Prosecution’s Case

In the ensuing trial the prosecution called three (3) witnesses, whose evidence consists of the prosecution case, which is as follows.

Very early on 18th August 2002 (around midnight or there after), the accused arrived at the Banz Club in Banz with two people in his Mitsubishi L200 vehicle. There was a dance on at the Banz Club that night. When the accused drove into the Banz Club car park, witness Andrew Koim, who was a security guard at the club, observed him to be visibly drunk and had in his hand a coco cola can, suspected to contain a alcoholic spirit mixture (either "OP" or "Home Brew"). When the accused tried to enter the club Andrew Koim and other security guards refused him entry saying he was already drunk and that it was just about closing time. There was a scuffle, which developed into a fight between the security guards and the accused. The accused’s male companion joined in. The accused and his companion realising that they were out numbered, joined their female companion (who was still in the vehicle) and drove out of the Banz Club premises, and as they were leaving their vehicle hit another vehicle parked there. They sped away towards Kunjip on the Banz – Kunjip road.

Meanwhile Prosecution witness Martin John and the deceased were walking along that same road, the Banz – Kunjip road, headed for their house /village after watching video at a nearby venue. They were walking through the Whagi Valley stretch of the road. That part of road is a long straight stretch. This witness and the deceased walked single file on the right side of the road, headed generally in the Kunjip direction. This witness walked ahead of the deceased. A distance approximately equal to the space from the witness stand to the dock (Mt. Hagen Court House Court Room No. 3) separated them. That would be approximately 6-7 metres between them. As they were walking on the accused drove up behind them at high speed and hit the deceased. The deceased was hit squarely and flung onto the vehicle’s bonnet and then carried forward for some distance. The deceased’s body fell off when the accused applied brakes.

The prosecution contends that the accused drove at high speed, did not keep a proper look out and drove on the wrong side of the road and generally drove his vehicle dangerously such as to cause the death of the deceased.

Defence’s Case

A total of 4 witnesses, including the accused, testified for the defence. A 5th witness, (one Anna Lucy Simon), was not called. The defence could not locate the witness. In any case it was agreed that any evidence of this 5th witness would be similar to the evidence of defence witness Simon Kare.

The accused and his first witness, Simon Kare, gave similar evidence. They more or less agreed that there was a fight with the security guards at the Banz Club, and that in their endeavour to flee from the club their vehicle bumped into another vehicle at the club car park. They denied having taken any alcohol that night and that they were never under the influence of liquor when they entered the club premises. Their evidence differs only slightly as to what happened as they proceeded through the Whagi Valley stretch of the Banz – Kunjip road, however and strangely enough, they really said very little as to what took place there. And what took place there along the Whagi Valley part of the Banz – Kunjip road is critical evidence. For his part Simon Kare said he did not see how the deceased got hit because the accused had told him and Anna Lucy Simon to watch the back of the road to see if there was any vehicle following them. His attention was at the back of the vehicle when he heard a "bang noise". He turned around only to realise that the front windscreen had gone "blackout" and that "something" was blocking their vision through it. He thought people at the side of the road had thrown sticks or stones at the vehicle’s windscreen. The accused then applied the brakes and whatever may have blocked their view cleared and that is when the accused told them that they had just hit a man. They never stopped for fear of possible reprisals against them by the victim’s relatives.

The third defence witness was Willie Palme. He said he also drove through the Whagi Valley stretch of the Banz – Kunjip road twice that night. He had driven to Banz about one and half hours before the accident on his first trip. On the way he recalled seeing drunks crisscrossing the road at the scene, the exact spot where the accident occurred later, and he recalled having to slow down to allow people to be pulled off the road by others. He said apparently the men acting disorderly and stumbling around were drunk, because they sang and shouted and stumbled all over the road. He further said the place was a known spot where people drunk on "Home Brew" would act disorderly like that and block the road or stopped vehicles.

He returned the same way after visiting with his wife’s relatives at Banz. At the spot where he had earlier in the night seen the drunken crowd, he was waved down, i.e., he was signalled to stop his vehicle by people there. After a momentary indecisiveness, as to stop or turn around and flee, he did stop. He was then informed that there had just been a motor vehicle accident and that an injured person needed to be taken to hospital. So he took on the injured person in his vehicle and drove him to Kunjip Hospital. Unfortunately the injured person (the deceased) died on arrival.

The final witness called by the defence was Kare Gardner. This witness and his evidence are highly controversial. To appreciate why this witness’s evidence is controversial his evidence needs to be set out fully.

Kare Gardner said he was on guard duties at the Kanda Boral Gas yard on the night in question. Sometime that night he had gone looking for smoke, but could not find any, so he was returning back to his work place. On his way back he met two men who he realised were drunk on "steam". He knew they were drinking "steam" because they had containers in hand and were visibly drunk. He does drink the stuff himself so he could also smell "steam" on the men. He said the two men were on the same side of the road as he (right) so he warily went pass them and proceeded on his way. Soon after passing them he met the accused’s vehicle being driven "normally" down. He said he then saw one of the men push the other onto the path of the oncoming vehicle and it ran over him. When that happened the distance between him and the two men would have been like from "the court room door to the bench". He did not say whether he turned to look back and if so why or what caused him to do so which is why he could see what happened. He also did say if he saw any other persons around there, which does not accord well with rest of the defence witnesses’ evidence that there were many other people apparently high on "home brew" or "steam". 

Assessment of the evidence

I accept the evidence of prosecution witness Andrew Koim. His evidence of the fight with the accused and the latter’s hasty departure from the club’s car park (causing damage to another vehicle in the process) accords well with the accused’s and that of Simon Kare’s evidence. The accused fought with security guards at the club because they refused him entry in his drunken state and it was near closing time. The accused left the club in a hurry because he and his companion were under attack and outnumbered.

The evidence of prosecution witness Martin John is not all that telling of the manner of driving displayed by the accused. One gets the impression that he and the deceased were caught by surprise. I think that is what may have happened. I carefully watched the witness in court when he testified. He did not seem all together confident. He and the deceased may not have been strolling down the middle of the road but they could not have walked completely off the road either. This witness did not recognize the hit and run vehicle. He did not realise how the vehicle was travelling until it was literally upon them. His only vital recollection is his evidence that the vehicle was travelling at full speed such that, after hitting the deceased, he (the witness) was also flung into the side drain by the air current created by its speed. "Sided me into the drain" is how the witness put it.

I am not convinced Martin John and the deceased were going home from being at the movies. There is no corroborative evidence for that. Therefore the defence proposition that this witness and the deceased were part of a drunken crowd stumbling around there is more convincing. This witness may not have told the truth in that he may have omitted evidence of either being drunk or being part of a drunken or drinking crowd. Nevertheless I do not accept that the deceased may have been pushed onto the road by him.

Constable Alex Kali was the third prosecution witness. He was the police arresting officer. I would place no credence on his evidence however. His sketch map is based on hearsay. He made no independent observation at the scene of the accident; for instance note blood stains or observe brake marks and identify location of broken glasses or scraps on the road; which may indicate the relative positions of the deceased moments prior to impact, the point of impact itself or the final resting place of deceased’s body.

Notwithstanding the accused’s own admission later to being the driver of the hit and run vehicle, the policeman’s recital of an ‘interview’ with the accused is objectionable. In fact I was surprised when that evidence was allowed to remain without a challenge, even though it is not the prosecution’s most vital evidence. What Constable Alex Kali did was basically recall a confession from the accused, which seemed to have been obtained without any caution. This part of the policeman’s evidence caused the court to intervene, setting in motion the course of events that lead to engagement of council and subsequent application and ruling for recall of prosecution witnesses. Yet council took no exception to that aspect of the policeman’s evidence when he had the chance to cross-examine the witness.

Based on Andrew Koim’s and Martin John’s evidence I find that the accused fled from a fight with the security guards at the Banz Club and was driving whilst under the influence of liquor. He also seems to have wanted to get well away from the owners of the vehicle he had just bumped into at the club car park. Soon after leaving the club car park, and whilst still in the condition he was in, he hit and ran over a pedestrian on the road.

I find that because the accused, whilst only merely denying that he was drunk, failed to call any one from the Banz Club who might confirm that he had a valid reason to enter the club that night, which is to pick up his PA system. Such a witness or evidence would perhaps create doubts as to whether the security guards refused the accused entry to the club because he was drunk already. In the absence of such evidence I can only accept that the fight (not in dispute) happened because the accused was trying to enter the club late and in a drunken state.

At this juncture I pause to ask; as the prosecution’s evidence stand, would the accused be convicted on the charge of dangerous driving causing death? To that I would say that at least he had a case to answer. The manner of driving, dangerous as it were, would have been the logical conclusion from the finding and assessment of facts.

The accused was under no obligation or compulsion to give evidence himself and or call witnesses. However he elected to testify under oath and call witnesses. Needless to say he was represented by council.

The accused and his companion Simon Kare have said in words just sort of an admission that they were fleeing from a fight. They were afraid and fearful for their lives. At the instruction of the accused Simon Kare and the female passenger kept their eyes at the back for any vehicles that may be pursuing them. Under the circumstances it is difficult to imagine that the accused was driving "normally". How could he at least not help stepping on it? Any reasonable person would. Further to this I must reject this story of a morning fog and misty road conditions making it difficult to see ahead. Defence witness Willie Palme drove to Banz and back, through the same stretch of road at the relevant times, just as did the accused. He did not recall having difficulty driving. Further he did not recall and was not asked if there was any fog on the road at the time. He did say he saw people on the road clearly by his vehicle lights and slowed down and took precautions and evasive actions. I rather find Willie Palme to be a credible and valuable witness. His story about the drunks being a bother and nuisance on the road does not particularly favour the accused who is under a separate duty to take adequate precautions and evasive actions when there are obstacles or any other potentially dangerous situations on the road ahead.

Moreover the accused can not simply say that the deceased landed on his vehicle’s bonnet from out of nowhere and expect it to be believed by this court. He said he thought his vehicle’s windscreen had been struck by a missile like a stick or a stone, but then when he slowed down a body of a man rolled of the vehicle’s bonnet. No reasonable person or tribunal would accept this assertion to be within the realms of credulity and I do not think this court rightly can, not without any further explanation as to where his attention and focus was moments prior to the man landing on top of his vehicle, such that he could not see where the body had come from.

In the light of all these I find the possibility that the accused drove without any due care and attention more likely than not.

The last defence witness was shifty in giving his story and particularly when subjected to cross-examination. Some of his evidence contradict and make no sense. He said he went past the two men on the same side of the road, close enough to even smell them and recognize what they had in their hands. Yet he also says he could not make out their identities due to the "early morning fog". He also said he saw one of the men being pushed by the other onto the path of the vehicle, and that from a distance much further then the distance at where he could not make out their identities moments earlier – as they passed each other on the same side of the road. Stranger still, given the prevailing conditions and the known fact that the vehicle did not stop, the witness said he recognized the driver of the vehicle (accused) at the time. 

This witness tried to do more than cast doubts upon the credibility and integrity of the prosecution witness Martin John. He implicated John Martin in the death of the deceased. The very least the defence should have done was put the gist of Kare Gardner’s evidence to Martin John, not only to put, as it were, the defence case to the prosecution witnesses, but also so that Martin John would have a chance to defend himself.

The defence had more than one occasion to cross-examine Martin John, first by the accused himself and latter through Mr. Kuma of council. Mr. Kuma specifically requested a chance to, inter alia, "put the defence case" to the prosecution witnesses. Yet the rule in Browne –v- Dunn [1894] 6 R. 67 H.L., the very requirement advocated by the defence in their application for a retrial, was ignored.

It is doubtful as to whether witness Kare Gardner was known to exist, let alone his willingness to testify, even after the accused had given evidence. There was always going to be only three defence witnesses, including the accused. Just how and when witness Kare Gardner was ‘discovered’ was never made known in court. It was always imperative in the circumstances, including why the witness had to give evidence late and that without any prior notice to anyone, that some explanation should have been given in court, so as not to leave it open for adverse conclusions to be drawn.

Given the circumstances surrounding the calling of defence witness Kare Gardner’s, including the nature of his evidence and demeanour, I would in the exercise of my discretion, reject his evidence and place no credence on his alleged recollections of where he was and what he saw on the night of the 18/08/02. It is only fair to the prosecution and their witness Martin John. It also accords with practise in criminal trials, long established by binding precedents. For instance, I would respectfully restate what Prentice CJ said in State –v- Ogadi Minjipa [1977] PNGLR 293 at page 296:

"Before concluding, I should again mention, as other judges and myself have many times done before, that defence councils do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your cases secret until your client gives evidence. Nor can you expect that his story will receive much credit – if this course be taken. I draw council’s attention again to the old case of Brown v. Dunn (1) (reported in Cockles Cases on Statutes & Evidence in 11th ed. at p. 265) which sets out the duty of council in this regard as understood in the United Kingdom and makes comments as to credibility of the opposing case where this course is not taken. The comments of Lord Herschell, Lord Morris, Lord Halsbury, and Lord Bowen, with respect, appear to me to be plain common sense suitable to and applicable in our courts."

Issues raised by the evidence

The issues now posed by the above findings and discussions and ruling are these: How careful should the accused have been? Could he have otherwise avoided the accident? Was he careless or heedless such that he fell below the standard expected of him?

The Law

All motorists have a duty to be careful and exercise due care and attention on the road. Dangerous driving causing death is an offence prescribed by section 328 (5) of the Criminal Code and ‘dangerous driving’ is defined in subsection (1) thereof thus:

"(1) For the purposes 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, 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;
or
(ii) might reasonably be expected to be on the road or in the public place;"

The determination of the standard of driving displayed by a person charged with the offence is the test, as laid down in the case of R –v- Coventry (1937-38) 59 C. L. R. 633, also long accepted in this jurisdiction. The test was adopted applied in the case of R –v- Pius Piane [1975] PNGLR 52. Since then the Supreme Court confirmed it and declared that it is the appropriate test to be followed in the case of Karo Gamoga –v- The State [1981] PNGLR 443, which to date is binding precedent. It is necessary to reprint in full the pertinent part of the judgement delivered by Pratt J in the Karo Gamoga case (supra) which is at page 451:

"I am also of the view that the statement of law by the High Court of Australia in R. v. Coventry is appropriate to the circumstances of Papua New Guinea and is certainly not at odds with anything stated by the court of appeal in England. I particularly draw attention, for example, to the words of the joint judgement of Latham C.J., Rich. Dixon and McTiernan JJ. At pp.637 to 638:

"The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public…The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other 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 persons who drive motor vehicles."

Further at the bottom of page 638 and at the top of page 639 their Honours say:

"But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further the ‘manner of driving’ includes, in our opinion, all matters connected with the manner and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven."

In a separate judgement in the same case at p. 639, Starke J. points out that –

"Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public."

Discussion of the evidence

The accused only merely denied that he was at fault. He also did not say if the victim was at fault and if so how. He does not know how the deceased landed on the bonnet of his vehicle. The onus is always on the prosecution to negate, beyond any reasonable doubt, every defence fairly raised by the evidence. Yet the accused did not fully assert and raise any specific defence to any of the prosecution evidence. He generally referred to the road conditions prevailing at the time and led evidence to show that the deceased may have been drinking "steam", but it is not a direct defence to the charge preferred against him. 

The contention that there were drunks on the road and that the deceased may have been one such drunk is not a complete defence. The defence must say whether the deceased jumped into the pathway of the vehicle quite suddenly or some such other contention which would exonerate the accused completely of any criminal culpability. The assertion of the last defence witness that the deceased was pushed onto the path of the oncoming vehicle would have raised a lawful defence however all of that witness’s evidence was rejected for the reasons given and is now non-evidence.

The defence contention that there was fog on the road and the conditions were misty has also been rejected for the reasons given, especially for the seeming contradiction highlighted and the contrast painted in the accused’s and his witness Willie Palme’s ability to drive, see who and what was on the road ahead, and take precautionary and evasive actions. Willie Palme seems to have been careful, took note of what was ahead and around him, and avoided accidents, whereas the accused failed to do all that. The accused’s failure was due not to misty road conditions but to being under the influence of liquor and deliberate hasty driving to flee from a fight, particularly possible pursuers.

There was always a need for the accused to be careful. That stretch of the road seems to be quite notorious for being frequented by drunks high on "steam" or "home brew". The accused should have been extra careful, more so if it is true that the road conditions were foggy as he said.

Could he have otherwise avoided the accident? Yes the accused could have avoided the accident if he had been careful and took precautions like his own witness Willie Palme.

The contention that the accused was fleeing from a fight, in fear of the safety of both himself and the two others with him, can not stand up as a defence. First of all, on the evidence, the fight was a brawl at a club, amply aided by liquor consumption. No one has said why the accused or any of his companions would be killed, so was there any real need for the accused to drive with such haste, without any regard to the safety of many others who had the right to use the road? Secondly, the reckless driving under the prevailing conditions not only endangered lives of other road users, it also put at risk the safety of his passengers, perhaps more so than the anger of the Banz Club security guards. Even so the accused can not expect to derive any respite from criminal culpability for having got himself intoxicated in the first place, then get into a fight when refused entry at a club late at night, bumped into someone’s vehicle in his haste to get away from the fight, and finally run over someone whilst fleeing. 

Conclusion

I have already stated, after some discussions of the prosecution evidence, the likely possibility that the accused drove without any due care and attention. At this juncture the possibility has now become the only possible explanation, which therefore means it is the only logical conclusion as to why the deceased was run over. The accused’s manner of driving was careless and overly hasty such that it was very dangerous to other road users including pedestrians, be they drunks or others more in control of themselves. By application of the test in King –v- Coventry (supra), the guilt of this accused, over the charge preferred, is in no doubt. He drove without due care and attention such that he fell below the standard expected of him as a reasonable driver of his experience.

Ergo I find the accused, Andreas Pu’u, guilty as charged.

Senior Constable Giwoso: Complainant
Paraka Lawyers: Defendant