DC305

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 33 OF 2004

Police
Complainant

V

Isaac Morris
Defendant

Mt. Hagen: M. M. Pupaka
2004: 29th November & 20th December

Criminal Law – Particular offence – Dangerous driving causing grievous bodily harm – Section 328 (5) of the Criminal Code – Injury & cause not disputed – Defence – Charge denied on the bases that victim suddenly ‘ran’ into the vehicle – Prosecution and defence evidence diametrically opposed to each other – Prosecution’s contention that accused carelessly ran into the victim who was already off the road is pitted against defence assertion of a dangerous situation created by the victim – Evidence of grievous nature of injury element of offence – extend of injury not in evidence

Criminal Law – Particular offence – Dangerous driving causing grievous bodily harm – Issue – One of credibility – Also whether victim caused or levied any level of pressure upon the accused’s driving such as to cause the latter to drive erratically – Straight stretch of road with clear vision – Application of reasonable & competent /experienced driver test – No evidence of malice or ill-will against accused by prosecution witnesses – Critical evidence of which side of the vehicle the victim was picked up from after she fell is missing – Evidence of description and extend of injury which is an element of offence not available – In the circumstances the doubt created favors the accused – Verdict of not guilty returned.

Counsel
Senior Constable Giwoso for the Prosecution
The Accused in person

6th January 2005

M. PUPAKA, PM: The accused, Isaac Morris, aged 25 of Ulga Village, Nebilyer, WHP, is charged that he on 20th of February 2004 drove a Toyota Station wagon vehicle bearing Reg. No. EAB. 493 dangerously and caused grievous bodily injury to one Freda Joe, contrary to section 328 (5) of the Criminal Code (the Code). He entered a not guilty plea to the charge and in the trial that followed the prosecution called 5 witnesses. An accident scene sketch plan was also presented. The accused testified for himself and called two other witnesses who had been with him in the vehicle.

The Prosecution Case

The prosecution case against this accused is that he either drove carelessly onto the victim without giving signal of his intention to turn left into the BP Service Station or that he, either whilst not quite alert enough or whilst being in a distracted state in his driving due to loud music from the vehicle’s stereo, strayed off the road and hit the victim who was no longer in his way or was safely out of his vehicle’s way.

The prosecution’s case is based on evidence that the victim, 12-year-old Freda Joe, was walking toward the BP Service Station opposite the Highlander (Shell) Service Station, after having crossed the main highway. She had crossed the road from the Highlander (Shell) Service Station side of the highway and was walking on the BP Service Station drive-in, toward the fuel pumps to buy kerosene. She was not scurrying or running or otherwise hurrying across the highway as she had safely crossed it moments earlier and was by than already out of harm’s way.

It is said the accused was traveling toward Newtown in his vehicle on the main highway. Then he swung into the BP Service Station, which was on his left as he traveled, and knocked down the victim, injuring her toe. It is said he turned left without giving any signal of his intention to do so. The victim says she was hit by the left side front part of the vehicle. The other 3 prosecution eyewitnesses basically confirm her evidence.

The Defence Case

The accused gave evidence on oath, as did two of three others who had been with him in the vehicle at the time. They said the victim ran across the road toward the BP Service Station as they were about to drive pass the drive-in. They said the victim’s movements were sudden and without warning. The accused said at the moment of his realization of the victim’s presence on the road she was perhaps only about 1.5 meters or so away and directly in directly in front. The accused said he instinctively swung left to avoid hitting her. He said the young girl however panicked and kept running toward the direction taken by the vehicle. Consequently she bumped into the vehicle’s right side grills and one of the right tires ran over her toe as she fell. The accused and his friends came out of the vehicle, and realizing the victim was injured took her to the hospital.

Issues

The prosecution and defence evidence are diametrically opposed to each other. Either the prosecution witnesses are right or the defence witnesses are right. They all cannot be right at the same time – even marginally. At issue is which set of witnesses is right, and by implication, which set has lied. It certainly is not a case of mistaken or unsure recollection of the events that unfolded so the issue becomes: Who is to be believed?

It is not open for the Court to assess the reaction of the accused to the presentation suddenly of a dangerous situation on the road as it normally or otherwise would. The reason is simple. To do so in the circumstances would really mean that the defence version of events is right and the prosecution witnesses are substantially wrong. Consequently it is really a case of whether or not the prosecution witnesses are correct and therefore the accused was at fault. If the accused really reacted to a dangerous situation first created by the victim it means the prosecution witnesses cannot have been truthful.

The two sides’ evidence is diametrically opposed to each other as alluded to already. So who is right? This is a relatively tough assessment to make on the available evidence

Findings upon the evidence

I made the specific point of asking the witnesses as to whether the victim at any time ‘raced’ or competed with the vehicle, meaning did she ever run across to avoid the oncoming vehicle. Did she ever, in any way at all, put pressure on the accused’s driving, and causing him to react, even marginally? 

The victim said she checked both directions and saw the road to be clear. The accused’s vehicle was a long way away, traveling up along the Hagen Kofi area when she walked across the road. She and the other prosecution witnesses said her crossing placed no pressure on the accused’s driving. The latter did not have to take evasive action they said, as there was no need for him to. If it was the accused’s intention to proceed straight toward Newtown he could have done so on the highway. Yet he turned into the BP Service Station drive-in. His was a deliberate act, but without giving any indication by use of the left signal light. In any event the victim had her back turned toward the general direction of the accused’s vehicle and the highway so she did not see the accused’s vehicle turning into BP Service Station.

I understand the prosecution witnesses to be saying the accused drove his vehicle recklessly, without due care and attention, when there was no pressure at all on his driving by a pedestrian or a vehicle or other traffic hazard. This is of course denied and disputed by the defence.

I further made the specific point of asking the defence witnesses as to which side of the accused’s vehicle the victim was picked up from, after the vehicle stopped. Was she located parallel to the vehicle – whether it be on the left side of the vehicle or the right side of it? Indeed it is not clear as to whether the length of the vehicle had gone past the fallen victim or she was still alongside or beside it. Was she perhaps at the front of the vehicle when it stopped? Could she have been at the back of the vehicle when it stopped? This is crucial evidence, which incidentally is either missing or unclear.

If the victim had been laying at the front or parallel to the vehicle on the right side, the benefit would go to accused. It would mean the victim had not yet crossed over toward BP Service Station, especially given the location of the impact point which is marked and identified on the sketch plan to be more along the side or edge of the highway than inside the BP Service Station drive-in proper as alleged by the prosecution witnesses. The sketch plan is prosecution documentary evidence, but it does not support the argument that the accused was well into the BP Service Station drive-in.

On the other hand, if she laid in front of the vehicle with the vehicle facing the BP Service Station; or parallel to the vehicle but on the left side of it; the evidence would strengthen the prosecution witnesses’ credibility more. If the victim were located at the back of the vehicle when it stopped, it would be unclear and difficult to isolate fault in the circumstances.

Wherever the exact location of the accused was in relation to the position of the vehicle when it stopped is crucial evidence. I iterate that this vital evidence is either missing or unclear. The victim’s assertion that she was hit by the front left side of the vehicle is only merely an assertion so is the defence contention that she was hit by the front right side of the vehicle.
 
I also thought it proper to query with the defence witnesses as to whether the 3 prosecution eyewitnesses had any spite with the accused. If there was any it may at least indicate the existence of a motive to lie. My query raised no positive response from either side. Therefore I can only think there is no malice or ill will between the accused and the prosecution eyewitnesses.

The victim is only a minor who is by law entitled to have the benefit of a presumption that she cannot fully understand the significance of the administration of oath. Nevertheless it does not eradicate the real possibility that immature witnesses may be easily influenced to tell a version of the events that others may want them to tell the Court. Minor witnesses are of necessity to be treated with caution.

In the end I am unable to say whether the prosecution has established a case beyond any shred of doubt, as much as I am unable to say if the defence has convincingly established that the prosecution witnesses have lied in Court. It is simply a case of the two sides stories’ failing to match the standard – which, for the prosecution mostly, is beyond any reasonable doubt.

As a direct result it is extremely dangerous to record a conviction against this accused. Consequently the benefit of the unease that the Court has and the doubts the evidence creates belong to the accused.

I must make mention one further point by which alone, even without the doubts referred to above, the accused is also entitled to an acquittal.

There is little or no evidence as to how serious or grievous the victim’s injuries were. It is a vital element of the offence for which this accused is being tried. Without evidence of the element of "grievous bodily harm" a charge under Section 328 (5) of the Code cannot be sustained. It is simply a matter of law. The phrase "grievous bodily harm" is defined by the Code to mean:

"any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health". 

So how serious was the victim’s toe injury? Does her injury fit the definition "grievous bodily harm" as defined by the Code? There is only the barest of evidence of a toe injury. There is no medical report of her injuries. Was her injury of such a nature as to endanger or be likely to endanger her life or to cause or be likely to cause permanent injury to her toe, for instance causing permanent disfigurement to the limb perhaps? The severity or grievousness of the victim’s toe injury is uncertain and remains unknown on the evidence as it stands. Therefore on this basis also the accused must be acquitted.

The prosecution or rather the police did have the option of charging the accused for Dangerous or negligent driving and or Driving without due care and attention under Section 17 of the Motor Traffic Act but did not. I think theirs was a deliberate exercise of Police discretion over which nothing further need to be said by the Court other than to say that even if a charge under Section 17 of the Motor Traffic Act was proved, quite unlike the National Court with its inherent powers, this Court has no powers to convict on a charge proved by the evidence.

Ergo the accused is acquitted on the charge of dangerous driving causing grievous bodily harm contrary to Section 328 (5) of the Code.

Senior Constable Giwoso: Complainant
In person: Defendant