DC1072
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]
DCr No. 136 of 2010

BETWEEN

STATE
Police Informant

AND

SUPARAT PHUANUKOONON
Defendant

Goroka: M. IPANG

2010: October 10
November 11, 22, 24
December 13
2011: February 09, 11
March 01

CRIMINAL LAW- CHARGE – Driving motor vehicle without due care and attention (s. 17 (2) Motor Traffic Act) – statement of Facts did not disclose that two (2) vehicles collided – nature of driving without due care and attention in conflict.

Cases Cited
Nil 

References
Ni

Counsel

Lawyer for Informant, The State
Lawyer for Defendant, M. Api’e – Umba Lawyers 

25th March, 2009

DECISION

M. IPANG Magistrate: Defendant Dr. Suparat Phuanukoonon from Meachan, Tailand is a senior Research Fellow with the Institute of Medical Research Institute (IMR) based in Goroka, Eastern Highlands Province.

2. Defendant was charged that on the 4th of June, 2010 at Leigh Vial Street Goroka, She drove a Mazda Lavanti, Short Wheel Base motor vehicle blue in colour without due care and attention contrary to section 17 (2) of the Motor Traffic Act.

3. This case has a chequered history of long adjournments. Initially on the 06th June 2010 Magistrate Manue took carriage of this matter. After several adjournments and on the 4th of October 2010 he transferred the matter on the reason that he was on transfer, I took carriage of this matter on the 29th of October 2010. Under my carriage, this case also was adjournment on 3 – 4 occasions primarily on the reason that defendant was on field duties and eventually on overseas trip.

4. On the 02nd February, 2011 defendant Suparat appeared on a Police Bail of K100.00 accompanied by her counsel Mr. M. Api’e from Umba Lawyers. At that time her K100.00 Police Bail was varied and she was ordered to pay K300.00. So she paid another K200.00 (D25534 dated 02. 02.11). The matter was listed for trial on the 09th February, 2011 at 9:00 am.

5. Prosecution commenced its case on the 9th February, 2011. Prosecutor call his two witnesses Saku Kamilo and Morris Tonny. The case was then adjourned to the 11th February. On 11th February, Prosecuions witness Maika Young, Alex Wayamo and Wilson Unua gave evidence. Prosector then closed his case. Defence call its only witness Suparat Phuanukoonon. The court went to visit the scene of accident at 2.30 pm.

6. Prosecution’s witnesses who gave evidence on the 09th February, Saku Kamilo and Morris Tonny were as follows;

Saku Kamilo said he recognised the defendant as she was the one who bumped them. He gave his account of evidence ht on the 4th June, 2010 at around 10:00 am he got on a Toyota Landcruiser from Goroka Bowling Club and travelled down Hospital Road. He said he sat just at the back trailer close to the Cabin. This witness said the vehicle he travelled in was to turn in to the Boss’ house and a car came and bumped the. He said the car that bumped them was a Mazda Suzuki and it bumped them on their left-side.

- Morris Tonny.

7. This witness said on the 4th June 2010 at around 10:30 a.m he was at Goroka Bowling Club and he got on a Toyota Land Cruiser and drove down to his Boss’ house. He said Muita was the driver. Morris told the court that he was the off-sider to the driver. He said they turned to the left side to go in to their Boss’ house and a car came and bumped their side and went in to the drain.

8. Morris said defendant drove behind them on the left-side and bumped them. He said it was a fine day and the road was in a good condition. He said the driver (Maita) put on signal and the tyres were facing boss’ house and they drove slowly.

Maita Young (Driver).

9. On the 11th February, Maita Young gave evidence before the Court. He said on the 4th June 2010 he drove a Toyota Land Cruiser to Wilson’s house which is located along the Hospital road. He said as he was about to drove in to the Boss’ house he put on a signal to the left side and was about to drove in, he put the tyre on the right lane and pull in, defendant on full speed, hit the Amco and her vehicle jumped and bumped in to this witness’ vehicle hitting it on the left mud-guard.

10. Maita said he came out of the vehicle. He said defendant told him that she was at fault and will meet the cost of damage. At the Police station, Maita said she admitted and told maita to go and get the quotations and Maita said he obtained the quotations and he said defendant now denied being responsible.

Alex Wayamo (The Arresting Officer)

11. This witness is the Arresting Officer attached to the Traffic Section and based at the Goroka Police Station. He did the investigation in to this accident which led to the arrest of the defendant.

12. Alex gave evidence that on the 4th of June, 2010 he was roasted on duty on 8:00 a.m to 4:00 p.m shift. At around 10:00 am he received a report of an accident. There was no Police vehicle so he could not visit the scene of the accident immediately. Then a vehicle belonging to Institute of Medical Research (IMR) came and he went with them to the scene. Following them was the Toyota land Cruiser involved in the accident.

13. They went a little passed rotary Park down to the road leading towards Goroka Base General Hospital. Alex said he saw a small Mazda parked on the drain and its steering had cracked. He said he got the parties to the Police Station.

14. Alex said he assessed that defendant was at fault. The Toyota Land Cruiser turned in at left side, gave signal. The car at the back should give some distance and time to allow First vehicle to turn in. Alex said he made up his mind to charge the defendant as she plunged in to the drain and bumped the Land Cruiser.

15. Alex said prior to laying charge on the defendant, she said she does no want to appear in court and wanted an out of Court Settlement. The Arresting Officer said the next day she approached him and advised him that she has changed her mind.

Wilson Unua.

16. This witness is the owner of the Toyota Land cruiser involved in the accident. He was not actually on the said vehicle when the accident happened. But he took some photos of the damage he claimed was caused by the defendant’s vehicle. He has tendered photographs of damage done to his Toyota Land Cruiser. Another photographs taken before accident was contested by the defence counsel on the basis of timing of the photographs. Court upheld the objection on the premise that how soon before the photos were taken can not be proved to this Court.

17. Wilson further told the Court that the defendant approached him soon after the accident and admitted causing the accident and sought out of Court Settlement.

Defence Case.
Suparat Phankoonnon (Defendant)

18. She said after doing banking on the 04th June, 2010 she drove back to the Institute of Medical Research (IMR). She said she followed the road leading towards Goroka Base General Hospital. She said she followed a Toyota Land Cruiser in front of her at a normal speed of 30 – 40 kilometre per hour (Km/ hr).

19. At the junction, she said the Land Cruiser swung to the right hand side and made a sudden turn. She said she had no way to go so she drove in to the drain. Two (2) men who she did not identify, she said two (20 came and said, “you stupid meri.” She said she called IMR and they came and assisted her. Later Police came and they went to Police Station.

20. She said the crew side of her vehicle was on the drain and the driver side was on the road, she said her vehicle had an impact on the rain and her vehicle sustained damage underneath. She said her vehicle did not bumped the drain or amco, jumped and bumped a vehicle. She tendered a photograph showing no damage to her vehicle. See Exhibit marked “D1.”

Issues:

1. Did defendant drive without proper due care and attention?

2. Did defendant drive her vehicle and bumped in to the Toyota Land Cruiser?

21. The two witnesses for the prosecution who gave evidence on the 9th February namely Saku Kamilo and Morris Tonny said as they were about to turn into their boss’s house as car came and bumped the. Both these two (2) witnesses did not specify or indicted to this Court that the car at the back of them came bumped into the Amco (drain) jumped and bumped their vehicle. Both told the Court of only one impact and that was the collision on their vehicle.

22. Two days later on the 11th February 2011 witnesses Maita Young (Driver), Alex Wayamo (Arresting Officer) gave evidence that the defendant’s vehicle bumped the drain (Amco) and jumped and bumped the Toyota Land Cruiser on its front –left side mud-guard causing damage to it.

23. On the issue of impact or collision on the Toyota Land Cruiser and with due regard to the prosecution’s evidence there are two (2) different segment regarding the issue. The first two (2) witnesses gave evidence indicating one (1) impact or collision whilst the other two (2) prosecution’s witnesses (Maita & Alex) gave evidence indicating double impacts, i.,e drain (Amco) and collision with the Land Cruiser.

24. Saku sat at the back of this open back trailer Toyota Land Cruisers facing back wards and would be in a proper position to monitor vehicles coming at the back of the Land Cruiser. Morris was the off-sider (crew) and after the Land Cruiser made a left turn would be in a clear vicinity to see how defendant came and bumped them. Alex was not present when accident occurred but based his assessment on what he heard and his observation on the after math of the accident. He also mentioned seeing a white silver paint stuck on the front of defendant’s vehicle.

25. This throws a lot of doubt in the prosecution’s case of the alleged collision by defendant’s vehicle in to the Wilson’s vehicle, Toyota Land Cruiser. Because of this, the Arresting Officer did not really specify in the statement of Facts (SOF) that the Prosecutor has a copy of and so as the Defence counsel and that was raised by the Defence counsel. Therefore, the facts upon which he charge was framed and the nature of charged under section 17 (2) of the Motor Traffic Act is certainly unclear as admitted by the Arresting Officer.

26. Another most important factor to note is the impact on both vehicles. There is dent or bent as shown on the Toyota Land Cruiser and no signs of impact on the defendant’s vehicle. As rationalised by one of prosecutions witness was that Toyota Land Cruiser was aluminium and defendant’s vehicle was plastic was beyond my comprehension. In a normal accident like this with type of impact and the shock has described by prosecution obviously defendant’s vehicle would have bore some of the damage.

27. Defendant on the other hand argued that she was driving at a normal speed which was at 30 – 40 Km/ hr and was at a distance of 3 metres apart. I am of the view that this driving is careless in that when Toyota Land Cruiser pulled right and turned left to go into Wilson’s house, defendant had closed in already and as a result she drove in to the drain. Her driving was without due care to other road users. I find her guilty as charged under section 17 (2) of the Motor Traffic Act.

________________________________
Lawyer for Informant, The State
Lawyer for Defendant, Mr. M. Api’e – Umba Lawyers