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State v Daniel [1980] PGNC 15; N283 (1 July 1980)

Unreported National Court Decisions

N283

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
KEVIN MARCELLIN DANIEL

Goroka

Narokobi AJ
9-12 December 190

NAROKOBI AJ:

INTRODUCTION

Dangerous driving causing death cases are becoming more and more difficult to deal with as parties rightly resort to technical expertise to support their respective versions of the truth. It is necessary in the interest of justice that the State have well qualified experts at its disposal in contested prosecutions. This is one such case where both sides have made good use of expertise at their disposal. It is left for me as a judge of facts to assess all the evidence and determine guilt or innocence.

PRIMARY FACTS

The following facts are not in dispute: on June 27th, 1980, the accused drove a Toyota Land Cruiser ACH 810, along Highlands Highway from Goroka to Kundiawa. He left Goroka at 3 p.m. Philip Kal, a State witness, sat in the driver’s cabin with the accused. Three other passengers were in the back tray of the vehicle. The vehicle went past at least one vehicle. The road was generally dry and dusty and at the corner where the accident occurred, it was narrow and corrugated.

The corner where the accident occurred was and still is quite dangerous in itself. The road goes through a hill, leaving on the left side (going to Kundiawa), a steep embankment, while on the right side, the road falls off into a cliff.

There is a straight stretch of road some 100 meters in front, before the bend. On both sides are bushes. Driving from Goroka, even at 20 meters from the corner, it is not possible to see any on-coming vehicle until it has actually turned the bend.

About 100 meters away, the vehicle drifted from its correct left side of the road towards the centre. The vehicle actually moved onto the right side of the road, at the head of the bend. In his effort to bring the vehicle into control, the accused managed to return the vehicle to the centre. But its movement caused the back of the vehicle to hit a white barricade post at the edge. The vehicle actually overturned over the bend. A passenger in the tray was thrown off the vehicle. He smashed his head on the hard surface and died immediately.

He smashed his head on the hard surface and died immediately.

BRIEF SURVEY OF EVIDENCE

The deceased was later identified at the Goroka hospital to a medical officer. There was some dispute as to who the medical officer was, but I am satisfied the body identified was the body of the passenger in the vehicle who was killed as a result of this accident.

As can be expected in a case of this nature, once the primary facts are admitted, the question of whether death was a causal result of dangerous driving, depends on facts in dispute and inferences, if any that can be drawn from proven facts.

At the opening of the State’s case, Mr. Baulch defence counsel asked for particulars of dangerous driving. In reply, Mr. Ravu Henao said the State alleges speed in excess of 100 miles per hour; that the accused overtook many vehicles and at the corner, he was not concentrating on his driving on the road. In particular it was alleged that the accused turned his face off the road. These allegations were disputed by the accused. None of these allegations were specifically proved.

The accused gave evidence himself. He also called Allan Frank Legale, lecturer in mechanical trades at Lae Technical College, as an expert witness. Mr. Legale inspected the vehicle on the 20th October, at the request of the solicitor for the accused.

On inspection some months after the accident, he found the vehicle to be a Toyota Land Cruiser, 1 3/4 tons in weight including bull bars. It had an open, locally manufactured tray, but of Japanese specifications.

He checked the steering wheel and found it could move 180?? or half a turn, before any effect was noticed on the wheel’s movement. He found too that the connection between the steering column and the cab union and the steering box connected to the chassis was damaged. This, he thought was the cause of the considerable free movement.

He found in fact that two locating pins were not in their correct position and indeed, a rubber drive disc was badly torne.

Mr. Legale had another look at the vehicle in the week of the trial and found that the cab suspension on the left side was incomplete and a mounting on the right side was missing and the other was no longer in its correct place He concluded that these would have happened before the accident, as the missing one had mud in the gap. The damage was consistent with what he called “severe loading on front wheels and transmitted back”, especially under badly rutted, rocky and corrugated road. The speed of the vehicle and the angles of the ruts have a lot to do with the damage.

He testified that the defects would have shown up on an inspection, but would not be immediately obvious to an ordinary eye. In any case, even with one quarter free play, i.e., vehicle was driveable, if one is used to it, but it was dangerous. He thought the vehicle would have been doing 25 - 30 k.p.h. judging by the damage to the vehicle.

On cross examination by Mr. Henao, Mr. Legale agreed a competent driver would notice the defects very quickly. He knew of responsible drivers who would drive such vehicles in Papua New Guinea, but the defects would be most noticeable by a responsible driver.

The vehicle had done 60,000 kilometers and was a recent model, 2-3 years old.

The accused gave evidence and agreed he was travelling at about 60 k.p.h. He said he drove normally around the corner and on turning he had steering problems. He said he saw a white PMV bus, slowing down, giving signal to pull to the left, 100 yards from the bend. This piece of evidence is new. It was not given in the District Court and none of the State witnesses refer to it specifically. State witnesses were not cross examined on this information.

He said, he moved out to overtake the vehicle and changed to third gear. The car “seemed to and did drift to the right”. He then corrected the drift and increased the speed; “and the wheels seemed to lock and did lock, over to the left”; and the car skidded. This was on the far right. He accelerated to the left.

While he was behind the bus, he could not see around the corner, and could not see around it until he was well over the right. In fact, one could not see at all across the bend unless one is either completely on the right side, by the bend, or one is already on the bend itself, on the left side.

The accused was asked on cross examination what might have caused the little drift and he said it was the loose gravel. According to him the drift started at a spot where a white mark was placed, say 100 yards back from the corner; that being the same spot as where he claimed the bus had signalled its movement to the left.

State witnesses included Philip Kal and John Pangio. The latter has had some 20 years driving experience. Both spoke of speed, but no-one could say what speed it was that the accused was doing at the time. Both expressed their opinions that they were worried and afraid and thought they might die. They felt uncomfortable in the vehicle.

The police thought Sgt. Tambua and Constable Joseph Saki did their best by providing information on tyre marks, on the broken barricades and the road condition generally. The sketch was not drawn to scale, the directions were wrong and even the measurements were misleading and wrong. No conclusions could be drawn from the sketches. Nevertheless, the sketches and the photographs, together with the view I took of the scene give me an idea of the general situation.

The court party went out to the scene of the accident and saw the view to better understand the features, the land marks and the general nature of the road. Witnesses pointed to various features and objects, they actually saw, at the time of the accident. I ruled however, that witnesses could not demonstrate or re-construct or recreate history from the view of the scene.

Mr. Noel Tita, plant supervisor, was called as an expert on behalf of the State in respect of the mechanical condition of the vehicle. He found that the front bumper bar was pushed back and there was a dent on the vehicle.

The bonnet was pushed back as well; and so was the radiator. The tyres were good and roadworthy; and the brakes were good too. He also thought the steering was roadworthy. The electrical parts of the vehicle were all damaged. He formed the view that there was no mechanical defect on the vehicle before the accident. He thought the vehicle was new, perhaps one year old, and less than three. He thought the vehicle had about 1/4 or 180° free play.

Mr. Tita thought this was a new vehicle and in his opinion, the rubber drive disc would have broken because of the strain caused by the accident. He thought if one mounting was missing, this in itself should not cause much movement. The other damaged one, in his opinion could have been caused by the force of the impact.

Mr. Tita carried out his inspection on July 1st, 1980, a few days after the accident, while Mr. Legale carried out his inspection, on 20th of October, almost four months after the accident. Mr. Tita’s inspection was not as extensive as that of Mr. Legale in that the former did not look at the mountings and the connections to the chassis or the rubber drive disc connecting the steering to the gear box.

In spite of that he was able to say that as far as he knew “the steering was all right, but now it is in a different stage. On 1st July I had it written down that the steering wheel was o.k. but now, when I went over to test it, the piece of rubber disc is all broken up”. He thought the support pad must have been missing before the accident. He testified that the steering on 1st July was all right, but now, it is completely loose, with too much free play. He went so far as suggesting someone must have pulled the steering upwards.

He also agreed that the rubber pad must have broken quite suddenly on turning the corner, otherwise one could not drive along.

John Noi, another passenger in the vehicle also gave evidence for the State. He testified to being in the vehicle with John Kawa who was alternatively known as Marinkten Kawa. John Noi, John Pangia and John Kawa sat in the back tray. He has been a driver for 9 years and thought the accused must have done 100 or over, but he was unable to tell if this was in miles or kilometers.

None of the State witnesses recalled passing a white PMV bus 100 yards before the corner. Defence counsel asked no questions on this point. According to John Noi, as the vehicle came to the corner, the accused went onto the righthand side of the road. He applied the brakes and turned to the left side and the car overturned. According to him, on the first overturn, the vehicle threw out the deceased, he later named as John Kawa, otherwise known as Marinkten Kawa, and on the second turn he got thrown out. He was the witness who identified the dead body to a doctor at Goroka base hospital. He thought the doctor was a national. He identified the dead body as that of a John Malika Kawa.

The accused himself thought he was driving at a steady 60 k.p.h. As he approached the corner, he saw a white PMV bus in front, 100 yards from the corner. It was slowing down, giving a signal to pull off the road to the left. As he approached the bus, he moved out to overtake the bus and changed to third gear and actually overtook the bus. As he approached the corner, he was still in third gear. As he negotiated the corner, the car seemed to and “did” drift to the right. He corrected it and increased speed slightly to take it out of the drift. The wheels seemed to lock and “did lock” over to the left. The car skidded across the road and hit the bank.

He looked out and saw a fairly dangerous drop and the nose of the vehicle started to go to the left again. He accelerated to get the car across to the left side of the bank. That did not work. The vehicle overturned one half and landed on its roof. He could not get the steering to answer his directions the whole time, except to a sharp left turn.

Mr. Cleary, road supervisor with National Works Authority testified to the dangerous nature of the corner; the fact that the road was corrugated, that work was being done on the road, and that since the accident, the road had been improved even to the extent of widening it some 9 feet, increasing the width by 50%.

Doctor Peter Palmer gave evidence that on 27th June, 1980, he had a look at a body of a dead person, identified to him as John Mareken, by a John Bagi. He found that the right frontal area of the skull was shattered and pulped and the brain was issuing from the injury. The cause of death was a compound fracture with brain damage. He thought the injuries were consistent with a severe blow to the right side of the head.

FACTS AS I FIND THEM.

In reaching the conclusion I will come to soon, I make the following specific findings. First, I adopt the facts as I outlined under primary facts. Secondly, I am satisfied within the criminal standard, that the accused was attempting to negotiate the corner at no less than 60 kilometers per hour. No doubt the State witnesses would have exaggerated their claim, but I have no reason to doubt their assessment that the vehicle was going fast. The accused too would have underestimated his actual speed. The truth may well be that he was actually negotiating the corner at a speed higher than 60, but lower than 100 kilometers per hour.

Thirdly, I hold that an attempt by the accused to overtake a PMV bus, as he claimed he did, some 100 yards from the corner, at no less than 60 kilometers per hour, is in itself dangerous driving. He could not see around the corner, yet, he hazarded an overtake.

Fourthly, the accused’s vehicle did not return to its correct position and went well over the centre of the road onto the right side of the road, very close to the corner of the road. That in itself is dangerous.

Fifthly, the white PMV bus, was never referred to earlier by the accused in the committal or in his statement to the police. If there never was a bus 100 yards from the corner, then it would be quite clear, the accused had driven carelessly and dangerously when he went over the centre of the road on his way to turn the corner.

Giving the accused the benefit of the doubt, does not in my view, improve his case, simply because it is dangerous driving on a narrow road, corrugated as it was, to try to overtake another vehicle only 100 yards from a corner, one cannot see the other side of until one is right on the centre of the corner.

Sixthly, I hold that the accused had gone too far to the right when he realized his error. He tried to correct his error and in a panic, his back tray had knocked down the white barricades far to the right. The barricades were well off the road, some 9 feet from the useable track.

It was, in my view when the accused tried to make a sharp return to the left embankment, on his correct side that the connecting disc snapped. The other defects may well have been caused by the impact.

Seventhly, I prefer the opinion of Mr. Tita to that of Mr. Legale, namely that the defects were caused by the accident.. It may be that an engine mounting may have been missing. It would not be surprising to find a missing engine mounting within three years of a vehicle’s life. But, if that was indeed the state of the vehicle before the accused drove it, then in my view any reasonably experienced driver would have detected that defect.

If the company had allowed such a vehicle to be used by the accused, then that in itself would be a negligent act. If the accused had not been able to detect that defect, then it would tend to show his general incompetence, but not negligence. The evidence is that the vehicle operated normally and had no defects.

In his statement to the police, the accused said the car had drifted to the right side of the road. He corrected it and the steering locked. Thus, this seems more consistent with either a loss of control or a high degree of dangerous driving when the accused drove over the right side of the road (inbound).

Mr. Legale’s own evidence, in my view dsmisses any possibility that the defects he discovered occurred before the accident. He said a competent driver would have noticed the defects very quickly; and said a responsible driver would not drive such a vehicle. He added though that he knew of drivers in P.N.G. who would still drive such vehicles. Indeed he went so far as saying that if the breakage had occurred, the driver would have no control at all. In the result, I find that the damage would have occurred during the accident.

As I indicate, I rely on the findings of Mr. Tita, about the free play aspect of the steering wheel. I do so on the basis that his inspection was the most recent. Mr. Legale’s occurred four months after the accident. There is no evidence to suggest the evidence had been interfered with. But, Mr. Tita’s evidence is that the free play he noticed during the day of this trial is much worse than when he first tested the vehicle.

In the light of this evidence I cannot place too much weight on the results of an examination that occurred 4 months later. I so hold, even though Mr. Tita did not make such an extensive examination.

I hold that the accused had acted properly, according to good driving practice, not to apply brakes, but to accelerate to get the vehicle out of its panic position. I also hold in favour of the accused that the vehicle did not roll twice, but one half time, landing on and resting upon its roof.

In relation to the dead body, I am satisfied that the deceased was a passenger in the vehicle accused drove. The deceased was thrown off as a result of the dangerous driving which was the substantial cause of his death.

I appreciate that there is a valid point in favour of the accused, concerning identity. But knowing the conditions in P.N.G., people are often known by various names. The deceased and even John Noi had different names. The deceased was known as John Kawa or Mariken Kawa. John Noi was also known as John Bagi or Begi as it appeared on the depositions, and it was by that name that he identified the deceased to a Doctor Palmer. Strict proof of identity is necessary, but in this case, there is no challenge to the fact that a man was killed instantly following the overturn.

Finally, there is the evidence of the passenger drivers. It may be that they were exaggerating. But I see no reason to doubt their general truthfulness. They have everything to lose, as they were testifying against their superior. They and the accused work for the same company. The deceased is not related to them at all. Two witnesses have, between themselves, 29 years driving experience. I have no reason to believe they told the court lies.

THE LAW

Dangerous driving causing death cases turn largely on facts. The question of law here is whether the accused drove at a standard dangerous to road users and thereby caused the death of the deceased? (see R. v. Bimson MulasN283.html#_edn484" title="">[cdlxxxiv]¹).

Road users are members of the public to whom the relevant section of the Criminal Code applies and the passengers are members of the public as well. (see R. v. Moses TangoN283.html#_edn485" title="">[cdlxxxv]²).

The Highlands Highway is a public place because it is open to any member of the public, as of right to use the road. The standard of driving required to secure a conviction for dangerous driving causing death must go beyond the civil standard required to establish negligence. But it is not to be confused with the much higher standard required for manslaughter. This is the opinion expressed in The State v. John KoeN283.html#_edn486" title="">[cdlxxxvi]³.

I would have thought that the safest test to apply is this. On the whole of the evidence, viewed objectively, having regard to all the proven facts and all inferences that can reasonably be deduced, can it be said that the accused’s driving was, not only dangerous, but also, it was the substantial though not the only, cause of death? (See State v. Elias Subang (No. 2)N283.html#_edn487" title="">[cdlxxxvii]⁴.

Whilst every effort should be made to avoid the temptation to look at death and deduce or infer negligent or dangerous driving, one should not be so cautious that one cannot probe into the quality of driving from the nature of injuries or even death. (See The State v. John Koe (supra)N283.html#_edn488" title="">[cdlxxxviii]⁵).

Mr. Baulch submitted for the accused that this is a clear case of an accident, brought about by a sudden mechanical defect, beyond the control of the accused. On this view, it was submitted that even if I were to hold that the vehicle was doing higher than 60 k.p.h., the real and the causal connection between the driving and the death is not speed, but the sudden break up of the steering and the mounting mechanism.

It was submitted on the basis of McBride v. The QueenN283.html#_edn489" title="">[cdlxxxix]⁶ that if death was caused byed by the accident, that the death was not a direct result of dangerous driving. It was submitted that the only view to reach about the mechanical defect should be that curred immediately before tore the accident and was the cause of the accident. It is, with respect a probable conclusion, but expert evidence of both sides, in my view does not support it as the only possible conclusion.

The learned defence counsel, in the course of his argument referred to R. v. SpurgeN283.html#_edn490" title="">[cdxc]⁷ on the questi mechanical deal defect.

It seems to me that Simson v. PeatN283.html#_edn491" title="">[cdxci]⁸ sut the correct tone for coor considering mechanical defects as defences to cases involving dangerous driving. Certainly where the accused is well aware of a defect, he cannot rely on it, unlesis relatively minor or insi insignificant. It seems to me that this principle can be extended to say that even if the defect was not known, there are cases where a reasonably experienced driver with reasonable prudence, should have discovered such a defect, he should not come to the court and say, I knew nothing about the defect.

In saying this I am not in any way shifting the onus of proof to the accused. In the facts of this case, I accept that the vehicle was relatively new. It had done 60,000 kilometers and was not more than 3 years old. If the vehicle had any defects, they would have been known to either the accused or his company. “The essence of the defence is that the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver”. (See Spurge’s Case (supra)N283.html#_edn492" title="">[cdxcii]⁹ at p. 197).