Papua New Guinea

DC6013
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS TRAFFIC JURISDICTION

WTC NO 89 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

TAU NALIGA
[Defendant]

His worship Paul P Nii

31st May 2021

TRAFFIC OFFENCE: - Without Due care and Attention -  s 28(2)(a) – 39(1) - Road Traffic Rules-Road User Rules 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation of Driving Without Due Care and Attention-established Elements of Driving without due care and attention- guilty- Convicted compensated with penalty

PNG Cases cited:
Police –v- Enoch Apami [2020] DC5061 WTC 634 of 2020, 24.12.2020, (unreported)

Overseas cases cited: 
Nil 

REFERENCE

Legislation
Road Traffic Rules 2017

Counsel
Police Prosecutor: J Wamuru					For the Informant
In person								For the Defendant

RULING ON VERDICT

31st May 2021

INTRODUCTION

NII, P Magistrate: The Defendant pleaded not guilty to the charge of Driving without due care and 
Attention subsequently infringing Section 28(2)(a) of the Road Traffic Rules-Road User Rules 2017.

1.	Trial was conducted by this court on the 27th May 2021 where Prosecution opened and closed its case followed by the Defendant and now is my ruling on verdict and sentence.

FACTS

2.	Defendant was arrested on the 11th March 2021, for an allegation encompassing Driving Without due care and attention and thereafter arrested, interrogated and charged on the 22th March 2021. Police have summarized the all-inclusive allegation into the ensuing brief facts as it performs on their information bearing the charge:

“Being the Driver of a Motor vehicle towit a Toyota Land Cruiser Prado black in color, Station Wagon, bearing registration number CAW 764 upon a public street, towit courts roundabout, Gordons, did drive the said motor vehicle without due care and attention”

3.	The agreed facts are on the 22nd March 2021, the Defendant was driving from Spring Garden Road, commonly denoted to as the free way towards the big roundabout that intersects Geauta drive and Boroko drive. The Defendant instead of turning left towards his driveway around the roundabout, drove straight onto the roundabout and thus the traffic island. The Defendant’s vehicle swerved and overturned off the traffic island near Geauta Drive after crossing the traffic island for virtually 100 meters.

ISSUE

4.	The only issue before me is whether the Defendant was driving without Due Care and Attention and his action has subsequently caused him to drive over the traffic island and overturned? 

RELEVANT LAWS

5.	The offending Law subject of allegation is established under Section 28(2)(a) of the Road Traffic Rules, which is  in the succeeding terms: 

28 GENERAL DRIVING RULES

(2) The driver of a motor vehicle on a public street must not–
 (a) drive without due care and attention;

6.	A charge is a mere allegation until substantiated with evidence and hereafter I should inaugurate the elements of the offending charge to establish whether there is merit in the allegation against the Defendant.  My brother Magistrate his worship Seth Tanei warily recognized the elements of the felonious charge in the case of Police -v- Enoh Apami . His worship establishes the elements of the offence as:

a)	A person Drove a Specific Motor vehicle;
b)	That particular vehicle was driven on a public road; and
c)	That vehicle was driven without due care and attention. 

EVIDENCE

7.	A more and comprehensive material to the realities is though witness from the Prosecution and Defense who came to the court to give evidence. An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up. 

Prosecution has called one (1) witness to give evidence and he is the arresting officer.

7.1	Frank Lo’o – (State Witness)

8.	This witness says he is now attached with 4 Mille traffic Section of the Police Force and he says he has been in the traffic office for more than 10 years. Witness says he has been arresting and dealing with so many similar offences and hence that was not the first time dealing with the current Defendant. 

9.	Witness says, it was in an early morning perhaps 30-40 minutes after the accident he went and witnessed the accident scene. Witness says the Defendant was travelling from town towards Gordons and lost control when he approached the courts roundabout along the Spring Garden road and drove direct towards the traffic island. The court was told that the Defendant drove for 100 meters inside the traffic island and overturned after going over a drain. State witness says Defendant was later taken to Port Moresby General Hospital for medication by St Johns ambulance. Witness told the court that there were empty cans of liquor found inside the Defendant’s overturned vehicle and he subsequently informed the court that Defendant was under the influence of liquor which caused him to drive without due care and attention, thus caused the traffic offence.

10.	Mr Lo’o informed the court that Defendant was not arrested immediately after the accident because of wounds he sustained during the injury but was finally arrested for the offence of driving without care and attention on  22nd March 2021. During cross examination, the Defendant decided not to respond to the state evidence when the Defendant was asked by the court to respond.

7.2  Tau Naliga – (Defendant)

11.	Defendant says he was driving from Spring Garden road towards courts roundabout in the early hours of the morning after a meeting between elders from his village. Defendant says he was driving on high speed because some members of Kuima security guards were pursuing him since he was swearing at them. Defendant says the Security guards started chasing him from somewhere at under tunnel next to shop n shop supermarket along the Waigani drive. Defendant says while he was looking through the rear mirror he could spot the security vehicle speeding very fast at the back of Defendant’s car and thus out of fear he drove very fast and forgot to slow down to turn left around the roundabout.

12.	Defendant says he was on full police uniform and had in his possession a gun while speeding his car before driving it straight onto the traffic island. Defendant says he feared for his life and the safety of the gun and hence he sped without slowing down at the roundabout and thus he caused the accident. Defendant denied drinking alcohol while driving but instead told the court that the empty cans of alcohol were framed up and put in the car after the accident by supporters of Sylvester Kalaut and Fred Yakasa as there is currently two (2) factions in the police force because of the Police Commissioner’s position. 

CONSIDERATION OF EVIDENCE

13.	State evidence is a direct account of what transpired during the course of the early hours when the Police informant was on duty. State told the court that the Defendant was on high speed and did not stop or slow down at the roundabout before driving his right of way was the left turn at the roundabout. Defendant admitted speeding but justified by saying he was pursued or chased by some members of Kuima security for swearing at them. The court was told that the Defendant was under the influence of liquor and hence drove in high speed without slowing down thereby causing the accident. An interesting account of event here is a mere security vehicle chasing a policeman who was on full police uniform and had a gun with him. This evidence is contradicting and to me I am not convinced that a civilian would chase a policeman, it should have been the opposite.

DISPUTED AND UNDISPUTED FACTS

Undisputed facts

I)	The Defendant was travelling at high speed and caused the accident on traffic island.

II)	The Defendant did not slow down at the roundabout.

Disputed facts

i)	The Defendant was under the influence of liquor and involved in the accident. 

ii)	The Defendant was chased by some members of Kuima security guards for searing at them. 
.   	
RULINGS

14.	I accept the evidence presented by Frank Lo’o that the Defendant was speeding. I am not convinced that the Defendant was chased by members of the Kuima security guards. The question that a reasonable man should ask is why would a member of a security guard chase a policeman in full uniform and with a gun in a car?  Defendant’s position displays a differing inference which is out of the ordinary. I have evidence of exhibits encompassing empty beer cans in the Defendant’s car which I am convinced the Defendant prior to the accident was under the weather meaning was drunk.

CONCLUSSION

15.	The evidence presented before this court by the Police informant demonstrates that the Defendant was driving on high speed while under the influence of liquor on the early morning hours of the 11th March 2021 and thereby drove without due care and attention thus caused the accident.

ORDERS

16.	I make the following orders:

a)	Defendant is found guilty for the offence of unlawful driving without due care and attention.

b)	Matter is adjourned to 1st June 2021 at 9.30am for ruling on Penalty.

c)	Defendant’s bail extended.

In person				For the defendant
Police Prosecutor			For the State