N4140

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CIA NO 196 0F 2009

ELISON JAVANO
Appellant

V

SAMUEL LAI
Respondent

Madang: Cannings J
2010: 14 May, 10 September

APPEAL

TRAFFIC OFFENCES – appeal against dismissal of information by District Court – charge of driving motor vehicle on public street without due care and attention: Motor Traffic Act, Section 17(2) – whether District Court properly considered elements of offence – whether any error of law made by District Court in finding driver not guilty.

Two vehicles travelling in opposite directions collided on a one-way bridge. A give way sign was at one end of the bridge and faced the driver – the respondent – charged by the police with driving without due care and attention. The respondent was found not guilty by the District Court based on a finding of fact that when his vehicle entered the bridge the other vehicle had not entered the bridge and was not in sight. A part-owner of the other vehicle, aggrieved by the decision of the District Court, appealed against the decision and sought an order that it be quashed and the charge be remitted to the District Court for retrial. The grounds of appeal were that the trial Magistrate erred in law by: (a) not considering the police traffic report; (b) not considering the elements of the offence; (c) giving insufficient weight to evidence of prosecution witnesses; (d) considering a matter that was not in evidence: his personal experience of driving over the bridge.

Held:

(1)	None of the grounds of appeal was upheld as the trial Magistrate: (a) considered the police traffic report; (b) correctly set out and applied the elements of the offence; (c) carefully assessed the evidence of the prosecution witnesses; and (d) legitimately took judicial notice of his own experience driving on the bridge.

(2)	There is no rule of law that says that if there is a collision between two vehicles on a one-way bridge and one of the vehicles has faced a give way sign prior to entering the bridge, the driver of that vehicle is at fault.

(3)	Each case under Section 17(2) of the Motor Traffic Act must be assessed on its merits, the court being obliged by Section 17(3) of the Motor Traffic Act to "have regard to all the circumstances of the case".

(4)	It was open to a reasonable Magistrate, given the evidence placed before the court, to conclude that it was not proven beyond reasonable doubt that the respondent had failed to drive with due care and attention.

(5)	The District Court made no error of law. The appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2005) SC881
Onama Andrew v The State (2009) SC997

APPEAL

This was an appeal from a decision of the District Court finding a driver not guilty of a motor traffic offence.

Counsel

J Sipa, for the appellant
No appearance for the respondent

10 September, 2010 

1. CANNINGS J: This is an appeal against a decision of the Ramu District Court (Mr R Dovina presiding) to find the driver of a truck not guilty of a traffic offence. The truck driver, the respondent, Samuel Lai, was charged with driving without due care and attention following a collision between the Mitsubishi Dyna truck he was driving and a 15-seater Nissan Urvan bus on the Taki Creek Bridge, near Sangkiang village, in the Ramu area of Madang Province on 28 May 2009.

2. The Taki Creek Bridge is on the Bruce Jephcott Highway, the main highway between Lae and Madang. It is a one-lane bridge. The respondent was driving the Dyna from Madang towards Lae. On that side of the bridge there was a give way sign facing him. The Urvan entered the bridge from the Lae side. It was a PMV, carrying passengers from Goroka to Madang. The bridge is 22.1 metres long. The Dyna and the Urvan collided at the Lae end of the bridge. No one was physically injured directly, though the respondent was assaulted immediately after the collision by the boss-crew of the Urvan (who happened to be a part-owner of the Urvan, which was less than three months old) and also by some passengers on the Urvan.

3. The OIC of the Highway Patrol division of the Ramu Police, Sgt Rodney Joppa, investigated the incident and determined that the respondent was at fault and charged him with one count of driving without due care and attention contrary to Section 17(2) of the Motor Traffic Act.

4. The matter went to trial and the prosecution called three witnesses: the driver and the boss-crew of the Urvan and Sgt Joppa. A sketch plan of the incident and the police traffic report prepared by Sgt Joppa were admitted into evidence. The respondent, Mr Lai, gave evidence in his defence.

5. His Worship, Mr Dovina, considered the competing evidence about which vehicle entered the bridge first and determined that, in fact, the Dyna entered first and that when it did so the Urvan was not in sight. He found that the driver of the Urvan, Mr Blacky Binefa, was at fault. He therefore found the respondent not guilty.

THE APPEAL

6. The appeal was filed by another part-owner of the Urvan, Elison Javano. Normally an appeal against the dismissal of an information, which is a criminal matter, would be brought by the Secretary for Justice with the leave of the National Court under Sections 219(2) and (3) (appeal to National Court) of the District Courts Act. However, Section 219(1) allows "a person aggrieved" by an order of a District Court, including an order dismissing an information, to appeal to the National Court; and for that reason, and in view of the fact that there was no objection taken to the National Court hearing the appeal, I am satisfied that Mr Javano has standing and the appeal is properly before the National Court. I granted leave to a friend of Mr Javano, Mr J Sipa, to argue the appeal.

GROUNDS OF APPEAL

7. It is argued that the trial Magistrate erred in law by:

(a) not considering the police traffic report;

(b) not considering the elements of the offence;

(c) giving insufficient weight to the evidence of prosecution witnesses;

(d) considering a matter that was not in evidence, viz his personal experience of driving over the bridge from both directions.

GROUND (a): NOT CONSIDERING THE POLICE TRAFFIC REPORT

8. The argument is that the police traffic report, which concluded that the respondent was at fault, was not considered. However, it is evident from his Worship's nine-page written judgment that he did consider the police traffic report, together with the oral evidence of Sgt Joppa and the sketch plan of the incident prepared by Sgt Joppa. His Worship paid close attention to the measurements of the length and width of the bridge and the estimated point of impact of the two vehicles. His Worship considered that the investigation report of the incident compiled by Sgt Joppa was inconsistent with his evidence in chief. A police traffic report carries no special status as a piece of evidence. It necessarily contains an opinion by the author of the report as to how a motor vehicle accident occurred and who, if anyone, was at fault. The report should be weighed alongside other pieces of evidence.

9. I find that the learned trial Magistrate did not err in his treatment of the police traffic report. Ground (a) of the appeal is dismissed.

GROUND (b): NOT CONSIDERING ELEMENTS OF THE OFFENCE

10. This ground of appeal is actually expressed as "his Worship erred in law by not considering the cause of action". I have interpreted it as an argument that his Worship did not properly set out the elements of the offence. It is important that a trial court in a criminal case demonstrate through its reasons for decision that it had had a legally correct understanding of the elements of the offence with which the defendant (also known as the accused) is charged. A failure to properly set out and focus on the elements of the relevant offence can lead to a miscarriage of justice (Devlyn David v The State (2005) SC881, Onama Andrew v The State (2009) SC997).

11. Did the learned trial Magistrate properly set out, and apply, the elements of the offence? His Worship made it clear that the offence with which the defendant was charged was created by Section 17(2) of the Motor Traffic Act, which states:

A person who drives a motor vehicle on a public street without due care and attention, or without reasonable consideration for other road users, is guilty of an offence.

Penalty: A fine not exceeding K500.00.

12. His Worship stated that:

The essential elements of the charge are that:

(i)	A person

(ii)	Drove a particular vehicle

(iii)	On a public street

(iv)	Without due care and attention.

13. His Worship said that the first three elements were non-contentious. As to the final element, his Worship made two pertinent points. First, the defendant (the respondent, Mr Lai) was not charged with disobeying a give way sign, which is a separate offence under Section 129(1)(d) of the Motor Traffic Regulation. The question he had to decide was not whether the defendant failed to give way. The question was whether he drove without due care and attention. Secondly, his Worship pointed out that in determining whether the defendant drove without due care and attention, he was obliged to consider all the circumstances of the case as Section 17(3) of the Motor Traffic Act states:

In considering whether an offence has been committed against this section, the court shall have regard to all the circumstances of the case, including—

(a) the nature, condition and use of the street on which the offence is alleged to have been committed; and

(b) the amount of traffic that was or might reasonably have been expected to have been on the street at the time.

14. There is no rule of law that says that if there is a collision between two vehicles on a one way bridge and one of the vehicles has faced a give way sign prior to entering the bridge, the driver of that vehicle is at fault or will be deemed to have driven without due care and attention. As his Worship pointed out, all the circumstances of the case must be considered.

15. I find no error in the manner in which his Worship set out and applied the elements of the offence. Ground (b) of the appeal is dismissed.

GROUND (c): GIVING INSUFFICIENT WEIGHT TO THE EVIDENCE OF PROSECUTION WITNESSES

16. The argument is that there were three prosecution witnesses who all said that the Urvan entered the bridge before the Dyna. Mr Binefa and Mr Lapise gave an eyewitness account of what happened and Sgt Joppa accepted their version of events as correct. Messrs Binefa and Lapise also testified that the Dyna was speeding and that immediately after the collision, Mr Lai apologised to them and said that his brakes had failed.

17. It is apparent from his Worship's judgment that this evidence was considered, but rejected. His Worship found that he could not accept the evidence that the Urvan entered the bridge first in view of the sketch plan of the incident that showed that the Dyna was driven 18.4 metres along the 22.1-metre bridge before the point of impact. He weighed that evidence against the respondent's evidence: on approach to the bridge, he observed the give way sign and satisfied himself that there was no approaching traffic on or about to enter the bridge. His Worship found the respondent's evidence more credible in view of the longer line of sight available to traffic entering the bridge from the Madang side compared to that available to traffic entering from the Lae side.

18. As to evidence of the respondent apologising and admitting that he was in the wrong, his Worship found that he could take no account of it as the respondent was pulled out of his truck and assaulted and prone to saying anything to save himself from further assault.

19. I find that his Worship's assessment of the evidence was logical and coherent and that he did not give insufficient weight to the evidence of prosecution witnesses. It was open to a reasonable Magistrate, given the evidence placed before the court, to conclude that it was not proven beyond reasonable doubt that the respondent had failed to drive with due care and attention. Ground (c) is dismissed.

GROUND (d): CONSIDERING A MATTER THAT WAS NOT IN EVIDENCE

20. The argument is that his Worship took into account something that was not in evidence: his own experience driving across the bridge. His Worship noted that on the approach to the bridge from the Lae side there was a 600-metre stretch of road with yellow coloured broken lines painted on the left-hand side. The road meanders towards the bridge with tall elephant grass growing on each side. By contrast, drivers approaching the bridge from Madang can see the bridge from about 400 metres out. His Worship was saying that though drivers approaching from the Madang side are faced with a give way sign, those approaching from the Lae side must also drive with a high degree of caution.

21. I consider that his Worship was entitled to take judicial notice of his observations. No error of law was committed in taking them into account or in setting them out in his judgment. Ground (d) is dismissed.

CONCLUSION

22. All grounds of appeal have been dismissed, so the appeal must be dismissed.

ORDER

(1)	The appeal is dismissed.

(2)	The decision of the Ramu District Court of 28 October 2009 in CTR 47 of 2009 finding the defendant Samuel Lai not guilty of an offence of driving without due care and attention is confirmed as correct.

(3)	The parties shall bear their own costs.

(4)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

_______________

Lawyers for the appellant: Nil
Lawyers for the respondent: Nil