DC8043
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS TRAFFIC JURISDICTION]
WTC No 276 of 2021
BETWEEN
THE POLICE
Informant

AND
DOROTHY AILEEN ANGO
Defendant

Waigani: O Ore Magistrate 

2022:  10 February & 10 March
             

TRAFFIC OFFENCE – Careless and Negligent Driving Causing Bodily Injury – Section 40 (2) (a) – Road Traffic Act 2014

TRAFFIC OFFENCE - Not guilty plea – Trial – Consideration of circumstances of the case - Elements of Offence – Careless and Negligent Driving – Not proven beyond reasonable doubt – Found not guilty

PNG Cases Cited
Police v Lano [2021] PGDC 18:DC 5074)
Police v Manda [2021] PGDC 68; DC6023 (7 June 2021)
Police v Hamei [2021] PGDC 69; DC6024 (16 June 2021) 
Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021)

Overseas Cases
Bullock v The Queen [2019] SASCF 131

References

Legislation

District Courts Act 1963
Road Traffic Act 2014	

Counsel
Bigam E, for the Informant 
The Defendant in Person
RULING ON VERDICT
10 March 2022

1.	O Ore, Magistrate: Dorothy Aileen Ango stands before this Court charged with one count of Careless and Negligent Driving Causing Bodily Injury under Section 40 (2) (a) of the Road Traffic Act 2014. 

2.	On arraignment she pleaded not guilty to the charge. The matter was adjourned for trial. After several adjournments, parties were ready and trial was conducted on 10th November 2021. Both Parties called in witnesses giving evidence.

3.	This is my ruling on verdict after submissions by both parties.

FACTS

4.	Police alleged that the Defendant on the 16th of September 2021 at the Ela Bear Car Park drove a motor vehicle, a Honda CRV Station Wagon with the Registration Number BEK 722. She drove the vehicle on a public street namely Ela Beach Drive along Ela Beach Road in a manner that was negligent whereby bodily injuries were caused to Devannca Kenken.

5.	A summary of these facts is contained in the information bearing the charge. See below.

“BEING THE DRIVER OF A MOTOR VEHICLE TO WIT A HONDA CR-V (STATION WAGOM) REGISTRATION NUMBER BEK 722 UPON A PUBLIC STREET, TO WIT ELA BEACH DRIVE-IN ALONG ELA BEACH ROAD DID DRIVE THE SAID MOTOR VEHICLE IN A MANNER THAT WAS NEGLIGENT WHEREBY BODILY INURY WAS CAUSED TO DEVANNCA KENKEN.”

6.	The facts which are not in dispute are that the Defendant drove a Honda CR-V on a public road with the registration number BEK 722 and also that Devannca Kenken was injured as a result of the alleged offence by the Defendant. 

ISSUE

7.	The only issue before this Court is whether the Defendant drove the motor vehicle negligently causing injuries to the victim Devannca Kenken.

RELEVANT LAW

8.	Section 40 (2) (a) of the Road Traffic Act provides the legal basis under which the Defendant has been charged. This section is 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; or
(b) a fatal injury to another person,
is guilty of an offence.

Penalty: A fine not exceeding K10, 000.00 or imprisonment for a term not exceeding 3 years, or both.”

9.	If found guilty, an offender is faced with the possibility of a fine not exceeding K10,000.00 or imprisonment for a term not exceeding 3 years or both.

10.	I now turn to the elements of the offence. In Police v Manda [2021] PGDC 68; DC6023 (7 June 2021) and Police v Hamei [2021] PGDC 69; DC6024 (16 June 2021), my brother Magistrate His Worship Paul Puri Nii concisely outlined the elements of this offence. I now outline them below;

a.	A person drove a motor vehicle
b.	That person drove the vehicle in a careless or negligent manner
c.	The vehicle was driven on a public street
d.	That the vehicle caused bodily injury to another person

11.	The standard of proof required in obtaining a conviction or to find the offender guilty is one beyond reasonable doubt. In essence, the prosecution must prove beyond reasonable doubt that all the elements of the offence exist.

EVIDENCE

Police Witnesses

12.	The Police called in 3 witnesses to give evidence.

a.	First Constable Aidah Rusiat – Arresting officer and Investigation Officer 
b.	Angela Kenken (Victims Mother)
c.	Devannca Kenken (Victim)

a.	First Constable Aidah Rusiat

13.	First Constable Rusiat is a Police Officer with the Traffic Office at 4 Mile. She has been with the Traffic section for more than three (3) years now.

14.	She says that she knows the Defendant and recognises her. She said that the Defendant’s car was involved in an accident and she was the case officer assigned to that case. She knew the Defendant from there.

15.	When asked what type of accident had occurred, she said that a car had bumped a little girl who was brought to the hospital. The accident was reported to her by the Defendant and the Police Dog Unit at the Police Station. She did not attend to the report at that instant because there was a blackout and she was the only one at the Police Station. She went to the hospital later on that evening and saw the victim. The victim’s injuries were fresh and she was in pain and didn’t talk. She left her contact and went back to the Police Station.

16.	The witness was shown a Traffic Accident Report (TAR) and asked if she recognised it. She recognised the TAR and said she was the one who prepared the document. The Document was tendered into evidence as exhibit P1.

17.	There were no questions asked during cross-examination and re-examination.

b.	Angela Kenken

18.	Angela Kenken is the victim’s biological mother. She comes from Mt Hagen, Western Highlands Province and is a house wife. She recognises the Defendant and calls her by her name Dorothy. She said that the Defendant is from Southern Highlands Province. 

19.	This witness says that on 16th September 2021 at around 5:30pm, she was setting up her SME stall at Ela Beach for the Independence Day celebrations. There were a lot of people around. 

20.	When asked where the Defendant was at that time, she said that she saw the Defendant running. She did know that the Defendant had caused the accident. She said that the Defendant drove a blue car that looked like a CRV but was bigger. She could not clearly recall the model. She said that from where she was sitting at the beach, she clearly saw the Defendant and heard people saying a car bumped someone.

21.	When asked about what the victim was doing at that time, she said that the victim went to swim in the sea and came back because she was thirsty. She stood at her back and then took off. She did not notice the victim taking off. She then heard some boys yelling that a car had bumped a child. She then ran and saw that the victim was under the car and the tire of the car was on her chest and boys were trying to pull her out. The boys eventually pulled her out.

22.	After the accident, they took her to 3-mile hospital with the assistance of St Johns Ambulance. The child sustained scratches and a loose collar bone and was in pain all the way to 3-mile hospital. The victim was admitted for 2 days and discharged. A Doctor’s medical report was obtained as well and was tendered in as evidence exhibit P2.

23.	The victim was 9 years old at the time of the accident. She further stated that she did not see how the accident happen but only saw her child under the car.

c.	Devannca Kenken

24.	Since the victim was a 9-year child, the Court had the room prepared for her to give evidence. Everyone except the child’s mother, prosecutor and the Defendant were asked to leave the room.

25.	The Court then asked the victim’s mother to politely ask the victim if she was ready to give evidence to which she became restless and told her mother that she did not want to give evidence. She asked her mother if they could leave and go home. The Court noted her unwillingness and after asking the third time decided to proceed on with trial without her giving her evidence. 

26.	At this stage, I must point out that being the victim, her evidence was important/crucial to the police case. It would have given a clear picture of what happened that day. The prosecution made no objections or further suggestions on how we should proceed and opted to proceed with trial. Their key witness did not give evidence.

Defence Witnesses

27.	The Defence called in 4 witnesses including the Defendant herself. A list of the witnesses are as follows:

a.	Arnold Poka
b.	Henry Moses
c.	Turbo Titus
d.	Dorothy Aileen Ango

a.	Arnold Poka

28.	This witness is an adult male and comes from Kofena, Asaro, Eastern Highlands Province. He is a marine engineer and gave a sworn statement. He said that at the time of the accident, he was at the roundabout leading up to Travel Lodge (Crown Plaza Hotel).

29.	He said that the child was playing along and came and bumped into the car and fell down. It was around quarter to 6pm and Police where there. The car park was full at that time.

30.	In cross-examination, he said that he saw the child run by and bumped into the vehicle. He was so close and witnessed it. There was no space for children to play and people where everywhere trying to go home and the child bumped into the car. When put to him that the tire ran over the child, he said no. The child just bumped into the car. He stressed that the car did not run over the victim. It was the victim who ran into the car.

b.	Henry Moses

31.	Henry Moses aged 41 is from Henagaru, Okapa District in the Eastern Highlands Province. He recalls that on 16th September 2021 at around 5-6pm, he was selling flags with his brother at Ela Beach. They were at the SDA Church and walked up towards the bus stop.

32.	At the second roundabout going towards town, there were plenty of people and the Defendant was driving very slowly. They were walking slowly and saw the small girl bump into the car. The Defendant was shocked and stepped out.

33.	This witness knew that Defendant because she was a teacher at Badili Vocational. They came to her and tried to comfort her. The child’s mother and father were nowhere to be seen. They offered to be her witness if she came to court.

34.	In cross examination, the witness maintained that the Defendant was driving slowly as there were a lot of people around. He said that the child was rushing when she bumped into the vehicle. He was very close and saw it with his own eyes. She bumped into the car and fell backwards. The car’s tire never ran over her.

c.	Turbo Titus

35.	Turbo Titus aged 28 from Simbu Province gave his sworn statement. He said on 16 September 2021 at around 5-6pm. The place was very busy with a lot of people trying to go home. There was a traffic jam. He was doing his marketing/sales when an accident occurred right in front of him. He was an eye witness. He says that the Defendant did not bump the victim, it was the victim who hit the car by herself on the driver side. He told the Defendant that it was not her fault. It was the girl’s fault. He knows the Defendant as a teacher at the Badili Vocational Centre.

36.	In cross examination, the witness said that he was approximately 2 meters away from the accident scene. He said the small girl hit the car which was in the car park in line trying to drive out. He says he did not see how she fell. He only saw her bumping the car.

d.	Dorothy Aileen Ango (Defendant)

37.	The Defendant gave a sworn statement in Court. She said that at the time of accident, she got a stall at Ela Beach and took 3 small girls to look after the stall. She drove a Honda CRV. Between 5-6pm, there were a lot of cars and she was driving slowly as the car park was filled up. Out of nowhere, a child came and hit the side of her vehicle. She was shocked and switched off her engine.

38.	She went out and saw that the girl did not fall under the vehicle but on the door side. She immediately went and looked for help. A Police Dog Unit assisted and got the St Johns Ambulance to take the child to the hospital. She states also that it was her own idea to bring the matter to Court.

39.	In cross examination, she said that her driving speed was less than 20kph as she was parked and there were plenty vehicles around at that time. She said that she did not hit child. It was her that ran and bumped into the vehicle. She fell on the side of the road and the car did not run over her.

ANALYSIS OF EVIDENCE 

40.	The evidence by First Constable Rusiat is all hearsay. Her evidence is only relevant in so far as tendering in the Road Accident Report into Court as part of the evidence is concerned. She was not at the scene and did not see the Defendant driving the vehicle

41.	The statement by the victim’s mother Angela Kenken shows that she was not there when the accident occurred. She only arrived later to see her daughter under the vehicle with the vehicle’s tire on her chest. I find this quite hard to believe. If the vehicle had run over the victim and had stopped with the tire on her chest, the weight of the vehicle would have crushed the victim’s chest and the injury would have been serious or fatal. Her version of events is not supported by the medical report. The medical report shows an injury which is not consistent with the situation where the car had run over the victim.

42.	Her evidence does not show the Defendant driving the vehicle in a careless manner. She was not there to witness what had happened.

43.	I also point out the demeanour of this witness. During trial, she seemed unconcerned and disinterested in the matter. One could tell that she was in a hurry to go somewhere.

44.	The evidence given by Defence witnesses Arnold Poka, Henry Moses and Turbo Titus all show that the Defendant was driving slowly and that the Victim was at fault when she ran into the vehicle. I find evidence given by them to be impressive and gave a clear picture of the scene at that time. It was Independence Day and as per the tradition, Ela Beach was full of people. Part of the road was closed and since it was the end of the day, there would have been a long line of cars moving slowly out.

45.	The Evidence by the Defendant was clear and straight forward. Prosecution in their submissions submitted that she had given an unsworn statement. I am inclined to disagree with this submission. This is because my records show that she gave a sworn statement and was thereafter cross examined by the Prosecution. An unsworn statement cannot be tested in Court.

46.	The Defendant said that she was driving slowly and that it was the victim who ran into her car and fell on the side. The place was packed at that time and cars were moving slowly. This evidence is consistent with the evidence given by the other 3 Defence witness.

DISCUSSION OF LAW AND EVIDENCE

47.	In order to find the Defendant guilty, all the elements of the offence must be proven beyond reasonable doubt. Here, all other elements are not in dispute except for driving the vehicle in a careless or negligent manner.

48.	In considering the evidence, I am also guided by Section 41 of the Road Traffic Act which requires this Court to take into consideration relevant factors when making its decision or findings. Section 41 of the RTA reads as follows:

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.”

49.	Section 41 provides that the Court must have regards to all circumstances of the case including the nature, condition, use of the place, the amount of traffic that was or might reasonably have been expected at the time to have been in place when the offence was alleged to have been committed.

50.	I now discuss the element in dispute.

Driving in a careless or negligent manner

51.	Driving in a careless of negligent manner is basically driving without due care and attention. In my recent case of Police v Boskey [2021] PGDC 160; DC7018 (18 November 2021), I went deep into discussing its definition citing cases such as Bullock v The Queen [2019] SASCF 131 (29 October 2019) and Police v Lano [2021] PGDC 18:DC 5074).

52.	So, driving without due care and attention is driving that falls below the standard expected of a competent driver or driving that does not show reasonable consideration for other persons using the road. 

53.	When taking into consideration the conditions, the use of the place and the amount of traffic at that time, the place was crowded and movement of traffic at that time was very slow. This was because one side of the 4 lane was closed off and vehicles were using the other side. The Defendant was driving out from the car park and was in a long line moving slowly. She was not speeding at that time. I accept her and her other witnesses’ evidences that it was the Victim who ran into her vehicle and fell on the side and not under the vehicle.

54.	In this case, the evidence by the prosecution fails to show that Defendant drove in a careless and negligent manner. It fails to establish that the Defendant did not show reasonable consideration for pedestrians and other road users. This case should have been dismissed straight after the prosecution had closed their case. It proceeded through to completion of trial mainly because the Defendant did not make the appropriate no case to answer application at that time. 

CONCLUSION

55.	In light of the above, I find that the Police have failed to prove their case beyond reasonable doubt. I find that the Defendant did not drive her vehicle in a careless and negligent manner. 

COURT ORDERS

56.	I therefore make the following orders;

a.	The Defendant is found not guilty for the offence of Careless and Negligent Driving Causing Bodily Injury.

b.	The Defendant is acquitted and discharged.

c.	The Defendant’s bail money of K1000.00 is to be refunded immediately.
 
Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Offender: 		In Person