DC6025

Papua New Guinea

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

WTC NO 61 & 107 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

WILSON KOYA
[Defendant]

His worship Paul P Nii

16th June 2021

TRAFFIC OFFENCE: - Without Due care and Attention -  s 28(2)(a) - 39(1) – Negligent Driving causing Bodily Injuries-(40)(2)(a)-Road Traffic Regulations-Road User Rules 2017

TRAFFIC OFFENCE- Trial- witness- Evidence- Decision on Verdict- Allegation of Driving Without Due Care and Attention-Negligent driving causing bodily injuries-established Elements of the two(2) charges- Defendant found guilty- 

PNG Cases cited:
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Apami [2020] PGDC 64; DC5061 (24 December 2020)

Overseas cases cited: 
Nil

REFERENCE

Legislation
Road Traffic Regulations 2017
Road Traffic Act

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

DECISION

16th June 2021

INTRODUCTION

NII, P Magistrate: Defendant pleaded not guilty to the charges of Driving without 
Due care and Attention under Section 28(2)(a) of the Road Traffic 
Regulations and Negligent Driving causing Bodily Injuries under Section 40(2)(a) 
of the Road Traffic Act.

1.	Full Trial was administered by this court on 9th June 2021. Both Police and Defendant called in witnesses to support and strengthen their cases.

FACTS

2.	Police identified the Defendant as aged 26 from Ialibu in Southern Highlands Province. Police says on 23rd January 2021, at Manu Auto Port in Port Moresby, the Defendant while being a driver of a car that was registered as a Taxi under the name Asia Pacific Taxi services was involved in an accident at the Manuauto Port round about. Police says Defendant drove the car without due care and attention and thereby he negligently caused bodily injuries to two (2) pedestrians namely Mrs Necklyn Win Lunga and Miss Janet Sape Lunga. 

ISSUE

3.	Will deal with the issues of Driving without due care and attention and Negligent driving causing Bodily Injuries simultaneously. 

RELEVANT LAWS

4.	Defendant is charged under two (2) traffic offences. The offending charges are under the Road Traffic Regulations 2017 and Road Traffic Act 2014.

Road Traffic Rules - Road User Rules 2017

28 GENERAL DRIVING RULES
 
(2) The driver of a motor vehicle on a public street must not– 

(a)	drive without due care and attention

Road Traffic Act 2014

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.

ELEMENTS OF THE CHARGES

5.	I will assess and test evidence presented to me in line with all the elements of the charges. First, is the charge of without due care and attention and second is Negligent driving causing Bodily Injuries. In the first charge of driving a vehicle without due care and attention, I have reformed the elements in Police v Apami by his worship Tanei to my case of Police v Koka 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. 

In the second charge of ‘Negligent Driving causing Bodily Injuries’ I will categorize the elements as: 

a)	A person drove a motor vehicle,
b)	In a public road,
c)	In a negligent matter,
d)	The vehicle,
e)	Causes injuries/damages on the victim or property.

EVIDENCE

6.	There are overall eight (8) elements in both charges. Evidence presented by Police must make a case against the Defendant and hence must satisfy and meet all elements of the offence. Otherwise police case will not stand. Police called two (2) witnesses and Defendant defended himself. 

Mecklyn Lunga-(Vicitm)-First Police witness

7.	She is the first State witness. This witness says she is the victim and she works for the PNG Department of education but she has not been lately attending to her duties due to the injury inflicted on her by the Defendant’s car. Witness says between 3.30pm to 4pm, she was walking on the right towards Manuauto port from Port Moresby general hospital at the pedestrian footpath alongside the Tauram road. Witness says while forthcoming the roundabout that intersects Taurama roads from the South and North and Gavamani road from the west from Manuauto Port market and Turua avenue towards 2K Medical clinic, she decided to walk over to the left. She told the court that she successfully negotiated over on a no man’s land which was separated by the lanes coming from North on Taurama road before approaching the 2K Clinic along the Turua avenue. Witness says her location was few meters away from the Traffic Island from manu round about.

8.	Witness says after few moments of looking though the Taurama and Gavamanai roads there were no vehicles so witness anticipates walking across the road over to Turua Avenue with her daughter. Witness says while she was about to walk over, she saw the Defendant car driving towards North from Taurama road. Witness says, she spotted the Defendant’s car signaling left when approaching the roundabout and thought the Defendant would turn left from the roundabout and drive towards Manu market along the Gavamani road. While seeing the signal, witness says she quickly walked over with her daughter near the left lane of the roundabout just few meters away from the no man’s land and suddenly she and her daughter were bumped by the Defendant’s car. Witness says she was later taken to Port Moresby General Hospital where she received treatment together with her daughter.

9.	On cross examination, Defendant asked the victim that there were no pedestrian crossings on the accident road and also denies that his signal light was signaling left when approaching the roundabout. 

Worin Tingkeo - Arresting Officer

10.	This witness says he is the arresting officer and now employed as traffic police who is stationed at 4 mile. Witness says the Defendant was taken to the Police station by the car owner or the person that owns the Taxi Company where the Defendant was a driver at the time of accident. Police witness says he was informed of the accident involving the Defendant on Police radio. Witness says he went and visited the accident scene and observed that Defendant after bumping the victim and her daughter drove further Turua avenue and pumped another vehicle which was described as a Madza BT 50. Witness says, no person was willing to give evidence at the accident scene.

11.	Police witness says the Defendant was later assaulted by members of the public and he also received medical treatment at Port Moresby General Hospital. Witness says the Defendant was “Under steer”, a traffic terms used to describe drivers who do not control their steers properly when at high speed. Police witness says, Defendant speed his car and hence did not control and steer the vehicle properly which thus caused the accident.

Wilson Koya- Defendant

12.	Defendant says he resides at Hohola 4 with some extended family and he is currently a student at the Department of Distance Learning Education (DODL) but was driving taxi to securing funds for his studies. Defendant says, he was driving from Taurama road heading towards the North because he says he was anticipating driving down the Turua Avenue to 2K Medical center. Defendant says, while approaching the roundabout intersection, he switched his signal to right indicating that he would turn right at the roundabout.  Defendant says while he was on the left lane turning right at the roundabout and approaching the no man’s land before approaching Turua drive, the victim and her daughter walked onto the road holding hands and his car bumped them. 

13.	Defendant says he was not speeding his car but was driving at a speed millage of 20-30km/h. Defendant denied that he was drunk and says he did not bump the victim and her daughter but the victim and her daughter walked into where he was driving on left land and bumped his car. On cross examination, Defendant denies that he was an inexperience driver but says he was driving similar cars before. Defendant says he has no Taxi permit to drive taxi. Witness also says, he was freaked out and accelerated his car after he bumped the victim and her daughter. Defendant says he has 2 years and 6 months experience driving vehicles but started driving taxi in January 2021. 

CONSIDERATION OF EVIDENCE

14.	I have considered and evaluated evidences from both parties. I have evidence from Victim that the Defendant was driving at high speed and without due care and attention when crossing the roundabout and bumped the victim and her daughter. I have evidence from the victim that Defendant confused her by his signal lights. On the other hand, I have evidence from the Defendant that he did not speed and also he maintains that he was signaling right to drive through the Turua avenue but the Defendant and her daughter walked to the road and bumped his car. 

DISPUTED AND UNDISPUTED FACTS

Undisputed facts

I)	Defendant was the driver of the accident car.
II)	Defendant involved in the accident.

Disputed facts

i)	Defendant did not speed
ii)	Defendant did not signal left. 
.   	

RULINGS

15.	I do appreciate the evidence presented by Defendant that the accident scene was not a pedestrian crossing and therefore it was illegal for the victim to go near the road. Although there is no crossing on the road, there are no spike fence prohibiting people from walking over. Moreover, the Road Traffic Authority though the Department of transport have not sealed this area off from people travelling or crossing from one lane to another, it is open for people to travel and hence the diver owes a duty of care when driving because people may walk over the lanes anytime when there is no car on the road. If the “no man’s” land was sealed off by spike fetch then people are completely restrained from walking over. The Difference is along the Hubert Murray highway near the 4 mile bus stop at Tabari Place.  That place was blocked off for pedestrian by NCD and Road Traffic Authority so when a driver drives along that passage of the highway, he/she has no reason to look elsewhere but at Manuauto port, the driver must have a reason to watch out for people walking near.  

16.	Firstly, I have considered both evidence and after assessing both of them, I am convinced on the Prosecution evidence that Defendant was an inexperienced driver. Defendant admitted he has been driving for two (2) years and 6 months before but said he only learnt to drive taxi in January 2021.Whether the length to two (2) years and six (6) months was a regular and uninterrupted driving or random driving is uncertain at this stage. Accident had occurred on 23rd January 2021, and Defendant admitted that he knew how to drive Taxi in January 2021. Although the exact date when Defendant started driving taxi in Port Moresby is not given, I have evidence to satisfy myself that Defendant knew how to drive taxi at the time when he bumped the victim or maybe before or after but it all happened in January 2021. A person cannot proclaim that he is an experienced taxi driver after driving for one day or one week. Therefore given the length of experience the Defendant has in driving vehicles and taxis in Port Moresby, I have evidence to satisfy myself that the Defendant is an inexperienced driver. The evidence that Defendant panicked after bumping the victim and her daughter shows to me that Defendant is not a confident driver. If the Defendant was a confident driver he should have stopped on the accident scene. 

17.	Secondly, Defendant informed the court that he did not speed his car when approaching the roundabout; he says he was travelling at 20-30km/h. When referring to exhibit No 2 tendered by Prosecution, I have evidence of the victim and her daughter’s injuries which are severe. Furthermore, a medical report dated 17th March 2021, which as tendered as exhibit 4 emanated from Port Moresby General Hospital and authored by Dr Jack Amana assessed the victim’s injuries as 70% for fracture of the tibia and dislocation of the L5-S1 vertebra. If the Defendant was driving slowly as he was asserting then the extent and magnitude of injuries would not have gone to 70%, it should have been less than 50% or even much lesser. I shall therefore satisfy myself that the Defendant was speeding when approaching the roundabout.

18.	I have evidence satisfying the elements of both charges. I have enough evidence to convince myself the Defendant was driving a taxi on a public road and he was driving the said car without due care and attention. The Defendants conduct on the date of accident amount to negligent in nature. Due to Defendant’s inexperience the Defendant speed his car after the accident and also gave wrong signal. An accident driver cannot be easily panicked when encountering accident.

CONCLUSSION

19.	I am satisfied beyond reasonable doubt with Prosecution evidence that Defendant has a case to answer. I accept all the evidence presented by Police that Defendant is guilty for the charge of Negligent Driving causing bodily injuries pursuant to Section 40(2)(a) of Road Traffic Act 2014, and  Driving without due care and attention pursuant to Section 28(2)(a) of Road Traffic Regulations.  

ORDERS

20.	I make the following orders:

a)	Defendant is guilty on both charges.
b)	Matter adjourned to 17th June 2021 at 9.30am, for ruling on sentence.
c)	Bail extended.

In person				For the defendant
Police Prosecutor			For the State