DC6023

Papua New Guinea

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

WTC NO 798 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

SAMSON MANDA
[Defendant]

His worship Paul P Nii

07th  June 2021

TRAFFIC OFFENCE: - Negligent Driving Causing Bodily Injury - s 40(2)(a) - Road Traffic Act 2014.

TRAFFIC OFFENCE- Plea of not guilty-Full Trial- eyewitness- Proof- Ruling on Verdict- Elements of the charge - Not guilty- Dismissed.

PNG Cases cited:

Police v  Naliga  [2021] PGDC 55; DC6013 (31 May 2021)

Overseas cases cited: 
Nil

Legislation
Road Traffic Act 2014

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

RULING ON PENALTY

07th June 2021

INTRODUCTION

NII, P Magistrate: At arraignment, Defendant pleaded not guilty and subsequent trial was conducted and concluded on 3rd June 2021. Police called in three witnesses including the victim and Defendant called two witnesses including the Defendant and now is my ruling on verdict.

FACTS

1.	Defendant was arrested on 18th September 2020, for a traffic offence that occurred on 16th September 2020, along the Hubert Murray Highway at Boroko, near the bus stop that goes towards town and three mile area.
 
2.	Police identified the Defendant as aged 30 years, from Mambisanda village of Wapanamanda District, Enga Province. Police allege the Defendant while being a driver of a motor vehicle, a Nissan Navara, double cap utility, red in color and bearing Registration Number BCU 755 was driven on a public street at Hubert Murray Highway near Boroko bus stop and caused the accident on the victim Nande Sayale. Police consequently arrested, interrogated and charged the Defendant for the offence of Negligent driving causing Bodily Injury who is now appearing in this court on a K500 bail. 

ISSUE

3.	The only issue subject of my deliberation is whether the Defendant was negligent on his part when driving the car that caused accident on the victim? 

RELEVANT LAWS

4.	The offending Law is provided under Section 40(2)(a) of the Road Traffic Act 2014 as follows: 

40. CARELESS AND NEGLIGENT DRIVING. 

(2) A person who drives a motor vehicle in a careless or negligent manner on a public street that causes – 
(a) bodily injury to another person is guilty of an offence. 

Penalty: A fine not exceeding K 10,000.00 or imprisonment for a term not exceeding 3 years, or both

EVIDENCE

5.	 have established in Police v  Naliga  that 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. All state witness must prove their case beyond reasonable doubt to attain a verdict on their side. Evidence presented must escalate and obey or support the elements of the offence.

ELEMENTS OF THE OFFENCE 

6.	I have recognized the elements of the offence of Negligent Driving Causing Bodily injury as follows:

a)	A person who drives a motor vehicle,
b)	The vehicle was driven in a careless or negligent manner.
c)	The vehicle was driven on a public street. 
d)	The vehicle causes bodily injury to another person.

7.	All evidence obtainable must validate a case against the Defendant by covering all the above elements. I must be satisfied that the driver of the vehicle is recognized as the person who drove the said vehicle on the date of accident. I must also be satisfied that the driver was driving on a public street and his/her conducts were careless and or negligent which caused injury on the victim.

EVIDENCE

8.	State called in three (3) witness, they are the arresting officer, the victim and the victim’s colleague who were with him at the time of the accident.

Nande Sayale-Victim

9.	He is the first state witness and the victim. This witness informed the court that he works for Pacific Corporate security and was on duty manning Tabari place around Boroko area at the time of accident. Witness says, while he was on duty, he sighted a scene where a street thug snatched a mobile phone from another person and was running towards Hubert Murray highway on his way to freedom from being captured. Witness says he gave chase and in his pursuit the Defendant’s vehicle bumped him on the road. Defendant says his eyes were focused on the criminal in an attempt to recuperate the stolen item and to capture the thug and did not see the Defendant’s vehicle travelling east from three mile way approaching Boroko. Witness says he was latter taken to the Hospital to be treated. 

Koma Gabe- State witness

10.	This witness says he is a security guard, a colleague to the victim who was roosted together with the victim and they were operating around the confinements of Tabari place. Witness says there were lots of stealing going on and hence they were roosted to look after Tabari place, a section of the Boroko area. Witness says while he was there, he spotted the victim running after a thief so he ran after the victim. He said both of them were after the thief in an attempt to recoup the stolen item. Witness says while the victim was on Hubert Murray highway, the Defendant’s vehicle came and bumped him.

Charles Yaleni- Arresting officer

11.	He is the arresting officer and he gave and account of what he witness in his office. Witness said, the Defendant drove to his office after the accident and reported the accident. Witness says he saw some young people in the Defendant’s car. Witness says he later went and inspected the accident scene.

Samson Manda - Defendant

12.	Defendant says he was driving down from three (3) mile along the Hubert Murray Highway before approaching 4 mile roundabout near Tabari Place at Boroko when the victim ran onto his vehicle. Defendant says he was on the inside lane when the victim came and ran into his vehicle on the driver’s side. Defendant says he returned from Ela beach with is family and traveled at a reduced speed of 60km/h when the victim ran toward this vehicle.  Defendant says he did not speed; he travelled at an affordable speed when the accident happened. Defendant says at the time of accident his eyes were focused on the road where he was driving to until he was surprised the victim ran and bumped onto the Defendant’s vehicle. Defendant says he did not mean to bump the victim but the victim came and bumped his car.

Fred Nembai-Defendant’s witness

13.	Mr Nembai is the Defendant’s witness and he says he is the Defendant’s uncle who travelled with him from Ela beach onwards after celebrating the country’s independence. He says he was sitting on the left side of the driver’s cabin. This witness says he can’t realize what happened on the road moments before the accident as he was on playing computer games on his mobile phone and his eyes were focused on the ph. Witness says he saw the victim lying near the front side to the driver’s car after the accident. Defendant says the victim later stood up and walked towards the side.

CONSIDERATION OF EVIDENCE

14.	In consideration to the evidence, state witness must satisfy the elements of the crime. As to the first element-A person who drives a motor vehicle- there is no dispute about this since all witness including the Defendant testifies that he was the driver of the vehicle. 

15.	In consideration of the second element- The vehicle was driven in a careless or negligent manner- I must be convinced that the vehicle was driven in a careless and negligent manner. The Oxford Dictionary defines the words ‘careless’ as not giving sufficient attention or thought to avoiding harm or errors and  ‘Negligent’ as failing to take proper care over something. I have evidence before me which validates Defendant was driving at a reduced speed and his eyes were focused on the road ahead. Does the Defendant have a reason to look elsewhere? The Law under section 41 of the Act provides guidelines when dealing with offences under Section 40 as in the succeeding manner:

41. MATTERS FOR CONSIDERATION FOR SECTIONS 39 AND 40.

 In considering whether an offence has been committed under Sections 39 and 40, a court must have regard to all the circumstances of the case, including –
 (a) the nature, condition and use of the place in which the offence is alleged to have been committed; and
 (b) the amount of traffic that was or might reasonably have been expected at the time to have been in the place where the offence is alleged to have been committed.

16.	This provision provides strict guidelines to deliberate the elements of offence under Section 40. The Law says nature, condition and use of the place subject to accident be taken into account. The Defendant says the location of accident is not a pedestrian crossing and also there are spike fence put in between the two lanes that prevents people from walking over but people carelessly walk over due to a gap in the spike fence. The gap poses a risk to people who may wish to cross over. After establishing this, I am convinced that the Defendant has no reason to look outside or elsewhere and hence he is neither negligent nor careless. 

17.	In consideration of the third element-The vehicle was driven on a public street- I have evidence before me to persuade myself which is unfailing although that Defendant was driving a motor vehicle on a public road and hence this element is met.

18.	I have assessed all evidence from Police and Defendant and content the element of -The vehicle causes bodily injury to another person- is met because the vehicle which was driven by the Defendant at the time of accident was the vehicle that caused the accident. 

DISPUTED AND UNDISPUTED FACTS

Undisputed facts

I)	The Defendant was the driver of the vehicle that caused the accident

II)	The Defendant bumped the victim

Disputed facts

i)	Defendant was travelling at high speed. 

ii)	Defendant bumped the victim on the inside lane towards the driver’s side.
.   	

RULINGS

19.	 I have assessed all evidence and authorize that there was an accident on 16th September 2020. I also have evidence to endorse that the Defendant’s vehicle caused the accident which bumped the victim. After having said that, was the Defendant’s demeanor expanses to negligent and careless which contributed towards the accident? The Defendant was travelling along the Hubert Murray High and there are no pedestrians crossing on the road between Tabari place bus stop and four mile roundabout. The road between the opposite lanes is fenced off by spike fence preventing people from crossing over but sometimes do cross over at their own risk through an opening at the spike. The overhead crossing is some few meters close to the roundabout at 4 mile.
 
20.	 The Law at Section 41 of the Road Traffic Act, says before I consider Section 40, I must take into account the Nature, Conditions and Use of the place. I accept evidence from Police that the victim’s eyes were focused on the thief and he did not look into any vehicle that was approaching his way. I also accept evidence that the victim was placed in a hot pursuit that he ran over the section of the highway where people are restrained from crossing over. However, I have evidence to accept that given the use of the place where accident had occurred, the Defendant had no reason to stop nor him having second thoughts of people running in to his vehicle.

CONCLUSSION

21.	Pursuant to Section 41(a) of the Road Traffic Act, I find the Defendant’s actions on the 16th September 2020, is neither careless not negligent. 

ORDERS

22.	My Final Orders:

a)	Defendant is not guilty.
b)	Defendant is discharged from liabilities under the charge of Negligent Driving Causing Bodily Injury pursuant to Section 40(2)(a) of Road Traffic Act, 2014.
c)	Matter is Dismissed
d)	Defendant’s bail be refunded.

In person				For the defendant
Police Prosecutor			For the State