DC528

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 72 of 2006

BETWEEN

KAMINIEL SELOT
Informant

AND

BOB OMBA
Defendant

Goroka: M Gauli, PM
2007: February 15, 22

CRIMINAL- Particular offence – Dangerous driving causing death – Faults on the part of the driver. First time offender – compensation as mitigating factor in sentence. 

Cases Cited
Karo Gamoga –v- The State [1981] PNGLR 443
The State –v- Aina Uwantuna (1989) N726 (Unreported)
The State –v- Elias Subang [1976] PNGLR 179
Brown –v- Dunn [1894] 6 R, 67 HL
The State –v- Sima Kone[1979] PNGLR 294
The State –v- Alphonse Naula Raphael [1979] PNGLR 47
The State –v- John Peter Kot N2027 (Unreported)
The State –v- William Muma [1995] PNGLR 161
The State –v- Rex Lulu [1998-89] PNGLR 449

References
Criminal Code Act, CH. 262, s. 328 (2) (5), S. 19 (1) (b) (d) (e)
District Court Act, ss. 132 and 199A

Counsel
Prosecutor – Senior Constable Bonke of Goroka Police Station
Defendant – In Person

22 February 2007

DECISION OF THE COURT

M Gauli, PM: The defendant stands trial before this Court on a charge of dangerous driving causing death, pursuant to Section 328 (2) (5) of the PNG Criminal Code Act, Ch. 262. These provision States and I quote:

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

(4)	- - - - -

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

2. The brief facts are that on the 14 October 2006 the defendant drove a motor vehicle towit a 15 seater Toyota Hiace PMV bus registration number P.8510, dark green in colour along the public street namely the Okuk Highway. He drove the said vehicle across the Zogozoi bridge just on the out sketch of Goroka town heading towards Kabiufa way in the direction of Kundiawa. As he drove passed the Zogozoi bridge he hit a young boy namely Allan Wala who was standing off the highway on the left side road. He died almost instantly. 

3. The facts not undisputed are that the defendant was driving the said vehicle with the full capacity of passengers. He did hit the deceased and died as a result. The disputed facts are whether the defendant was at fault and whether his driving was dangerous. 

4. The prosecution called two witnesses namely Mr. Buka Gimiho, the eye witness and Police Constable Kaminiel Selot, the informant. The defendant elected not to give evidence but he had his only witness Mr. Raphael Witne gave evidence. Their evidences are as follows.

5. The prosecution’s main witness Buka Gimiho gave evidence that on the 14th October 2006 about 2.00 O’clock in the afternoon he was at Zogozoi bridge collecting saw dust for his chicken. After filling the bag with the saw dust he came to the road side waiting to catch a bus to go home. While waiting there, a young boy (now deceased) came up from the river and spoke to him. The boy then walked across to the other side of the road. There were no vehicles on the road then. After the boy had walked across to the other side of the road, the 15 seater Toyota Hiace PMV bus, P.8510 was coming down hill from Goroka town side heading towards 5 Mile (or Kabiufa) way. That vehicle was speeding down. After it drove over the Zogozoi bridge, that PMV bus drove to the side of the road, as if it was going to drop off some passengers. Instead that PMV bus drove straight and hit the young boy (deceased) who was standing on the side of the road and the vehicle came back onto the road and drove away without stopping. Mr. B. Gimiho ran across the road, picked up the boy and offered a prayer before the other people came crying. He then left the victim with them and he proceeded to the police station to report the incident. He then noticed the vehicle involved was parked at the police station car part at the back.

6. The second witness Constable Kaniniel Selot gave evidence of the result of his investigation of the incident. In the Record of Interview (R.O.I) marked EXHIBIT ‘C-1’ and ‘C-2’ the defendant said in answers to Questions 19 to 28: “I was heading towards 5 Mile with 15 passengers on board. I went down to Zogozoi and a dyna came, we were exchanging and a man ran to the front of me and I was too late to apply brake. If I applied brake we would over turn. I bumped him and I turned back to the road to avoid turning over. The man came from the right hand side. The dyna came from 5 Mile and was heading to town. There was no one on both side of the road at the time of the accident. I hit the man on the front close to the driver’s side.”

7. He went on to say that he did not stop to assist the victim because the incident occurred at the corner and on the speedway and also the passengers told him to go straight to police station and reported the accident. He did not take any alcohol. He was driving down to Zogozoi bridge on fourth gear and the brakes were good.

8. The EXHIBIT ‘F-1’ shows the vehicle driven by the defendant sustained a dent on the front bonnet and the front windscreen both in the front centre. The investigation officer gave evidence that there were remains of human hair on the shattered front windscreen. This indicates that the deceased’s head may have hit against the windscreen.

9. The Sketch Plan (EXHIBIT ‘E’) showed that the victim was about a metre or so away from the edge of the bitumen surfaces lane of the Okuk Highway on the left side of the defendant when he was hit by the vehicle. And he was about 31.10 metres after the bridge from direction the defendant was travelling. The highway is 7.9 metres wide with two way lane traffic.

10. The Post Mortem report rendered (EXHIBIT ‘D’) showed that the deceased sustained lacerations to his right leg exposing muscle and bone, bruises on the hips to the lower abdomen, broken right arm, broken cervical spine and neck, fractured skull and 5th and 6th right ribs.

11. The deep dent on the front bonnet and the round shattered windscreen in front and the injuries sustained by the deceased shows the speed at which the vehicle was travelling at the time of the impact would have been at excessive speed.

12. For the evidence on behalf of the defendant, he elected to remain silence after he was cautioned whether or not he has anything to say for himself. He called his only witness Mr. Raphael Witne. He was a passenger on the vehicle driver by the defendant and he occupied a back seat on the far left side. His evidence is as follows: The weather was fine, the bus was full to capacity with 15 passengers, the speed of the vehicle was normal on the highway. Some 5 – 10 metres after crossing the Zogozoi bridge, he felt the vehicle was unsteady, it was sort of up and down. Its left wheels were off the bitumen surfaced road. So he stood up to see what was happening. When he looked to the back of the vehicle, he saw a boy laying on the side of the road, head towards the bridge, legs towards 5 Mile, the body way laying about 45 degree angle. And he saw a dyna truck crossing over the bridge going towards Goroka town. He told the defendant that he killed the boy and he must drive straight to the police station by following road through China Town. When questioned regarding the speed the vehicle was travelling, he said between 50 to 60 kilometres per hour.

13. There is no dispute that the defendant drove the said vehicle and he ran over and killed the deceased namely Allan Wala aged about 15 years old. The only issues to be considered here are:

1. Was the defendant’s driving dangerous?
2. Was there any fault on the part of the defendant’s manner of driving?

I consider these issues together as they are inter-related.

14. The burden is on the prosecution to prove that the defendant’s driving at the relevant time was dangerous and that the defendant was at fault as well. Driving a vehicle at a speed of 50 kmh or at an excessive speed may or may not be dangerous depending on the circumstances of the case at a time.

15. In dangerous driving causing death, the law in our jurisdiction is very clear. And that is that there must be some faults found on the part of the driver causing the situation – refer to KARO GAMOGA –v- THE STATE [1981] PNGLR 443 and STATE –v- AINA UWANTUNA (1989) N726 (Unreported). In the former case the Supreme Court held that: “_ _ _ _ whether the driving constituted a danger must include a finding of fault on the part of the driver causing the situation. Such faults to involve a failure or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case.”

16. And in the later case His Honour Woods J, in explaining what ‘fault’ is, has this to say: 

“Fault does not necessarily involve deliberate misconduct or recklessness, nor does it involve moral blame. At its lowest fault involves a failure or falling below the care or skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case. Such a fault may only be slight or momentary lapse.”

17. From the decisions of thee two cases it is without doubt that even with a slightest fault on the part of the driver was enough to find him guilty of dangerous driving. It is not necessary that the defendant’s driving was the sole cause but that it was the substantial cause of the death of the deceased, see THE STATE –v- ELIAS SUBANG (No. 2) [1976] PNGLR 179.

18. From the evidence as given before this Court, the defendant was going down a gentle slope at high speed, as per the prosecutions only eye witness Buka Gimiho. From the evidence of Mr. Raphael Witne, the only witness for the defendant, he felt the vehicle was travelling at a speed between 50 – 60 kmh. He was seated right at the very back row of the seats therefore he cannot be definite of the exact speed the defendant was descending on fourth gear with a full capacity of passengers on board. On the other side of the Zogozoi bridge towards 5 Mile there is a small hill to climb. The defendant would be on high speed to get over that rise knowing the vehicle has full capacity of passengers on board.

19. The damages sustained by the vehicle and the injuries received by the deceased would show that there was a much greater force involved at the time of the impact, than if the vehicle was travelling at 50 – 60 kmh. I find the evidence of the witness Buka Gimiho to be convincing that the defendant was driving at high speed. And I find that he was driving at a speed greater than 50 – 60 kmh.

20. The evidence in the Record of Interview shows that the defendant failed to either apply brake and or even change to low gear when he saw the deceased crossing the road In the Record of Interview the defendant stated that there was an on-coming vehicle, a dyna truck. As both vehicles pass-by each other the deceased suddenly appeared on the lane in front of the defendant and it was too late for him to apply brake. It is not clear whether the deceased person appeared from the rear of the passing dyna truck or from the side of the road on the defendant’s left side. The defendant’s witness Mr. R. Witne gave no evidence of where the deceased person was before he was hit. According to the prosecutor’s eye witness Buka Gimiho, there were no vehicles on either side of the road at the time the deceased person crossed the road to the left side of the defendant. The deceased had already crossed to the other side of the road and he was standing off the highway when the defendant drove down and hit the deceased while standing off the road. The evidence established that the left side wheels of the defendant’s vehicle were some metres off the bitumen surfaced road when it hit the deceased. Upon the impact the deceased’s body was pushed forward some 5.8 metres and the body rested still off the road. The defendant’s witness Mr. R. Witne did confirm that he saw the body of the deceased laying on the side of the road. 

21.	 From the evidence as it stands, I find that the deceased was standing off the side of the road when he was hit by the vehicle driven by the defendant. He was not hit on the lane. The highway been a two way lane, I see no reason why the defendant had to partially cause his vehicle to go off the lane. The allegations by the defendant’s witness of the passing on-coming dyna truck soon after or at the time of the accident cannot be accepted since the defendant failed to put that to the prosecution’s witnesses as per the rule in BROWN –v- DUNN [1894] 6R. 67 HL. The evidence of the defendant’s witness that the speed the defendant was driving was 50 to 60 kmh cannot be accepted as this witness was seated at the back row of the seats. He was not able to see the speed limit on the meter.

22.	I find that the defendant was going down hill at high speed while knowing that he had a full capacity of passengers on board. He failed to apply brake and or changed to low gear nor tooted his horn the moment he saw the deceased in front of him. I find that there was fault on the part of the defendant in the manner he drove the vehicle at the relevant time. And I find the defendant guilty as charged for dangerous driving causing death of one Allan Wala. 

23.	I now consider the sentence. The penalty for dangerous driving causing death is a term of imprisonment not exceeding five years pursuant to Section 328 (2) of the Criminal Code Act. The Court has power to impose a fine or to discharge the offender on entering into his own recognizance, pursuant to Section 19 (1) (b) (d) (e) of the Criminal Code Act where the offence he is charged with carries a term of imprisonment. The Court has power to dismiss the charge even after finding the offender guilty or discharge him conditionally on entering into his own recognisance pursuant to Section 132 of the District Courts Act, or even place him on Community work, pursuant to Section 199A of the Act.

24.	However there are ample case laws in our jurisdiction that calls for imprisonment for the cases of dangerous driving causing death. In the case of The State –v- Sima Kone [1979] PNGLR 294, the accused pleaded guilty to a charge of dangerous driving causing death. The National Court placed him of two years own recognizance. On appeal against insufficient sentence, the Supreme Court held that: “in dangerous driving causing death, only in most exceptional cases that imprisonment may not be imposed.” The Supreme Court then imposed a term of 8 months imprisonment. And the National Court, in the case of The State –v- Alphonse Naula Raphael [1979] PNGLR 47 in sentencing the accused to three years imprisonment held that: “the sentence should be severe because of the prevalence of serious driving offences in Papua New Guinea.” There are more deaths resulting from dangerous driving than from other causes in Papua New Guinea each year. In both these cases the accuseds were under the influence of liquor. In the present case there is no evidence that the defendant had consumed alcohol before driving nor the vehicle was defective.

25.	I also consider the defendants mitigating factors. He is the first time offender and married with children. He has also paid a compensation to the amount of K6, 300.00 to the deceased’s relatives. And he asked the Court for leniency in sentencing. One must remember that a precious life was lost as a result of the defendant’s dangerous driving and no matter however substantial the compensation may have been, the lost life could never be restored. However the compensation may be taken into account as a mitigation factor in sentencing. The State –v- John Peter Kot, N2027 (CR. 559 OF 2000) (Unreported) and The State –v- William Muma [1995] PNGLR 161 referred. The compensation cannot be taken as a form of punishment. It was decided that in The State –v- Rex Lulu [1988 – 89] PNGLR 449 that customary compensation must not be accepted as a substitute for the formal and institutionalised punishment. The customary compensation may assist the Court to decide whether the defendant should receive more or less term of imprisonment as the case may be.

26.	Having considered the defendant’s mitigating factors that he is a first offender and has paid substantial amount of compensation, I consider that a term of twelve months imprisonment is appropriate in the circumstances. Accordingly I convict the defendant and sentenced him to twelve months imprisonment in hard labour. I further order that his driving licence be suspended for two years. His bail be refunded.

Prosecutor - Senior Constable Bonke of Goroka Police Station 
Defendant - In Person