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State v Bonot [2010] PGNC 41; N4042 (21 May 2010)

N4042

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. 360 of 2009

THE STATE

V

GISA BONOT

Kokopo: Sawong, J.
2010: 14, 21 May

DECISION

CRIMINAL LAW – accused charged for dangerous driving causing death – issues to determine – whether accused drove the bus dangerously - whether in so driving he caused the death of the deceased – onus on State to prove that the accused person drove a motor vehicle at a speed or in a manner dangerous to public - testimony of implicating accused of little probative value – doubt in State’s evidence – accused not guilty and acquitted – s 328 (5) of the Criminal Code Act

Cases Cited

Karo Gamoga v The State [1981] PNGLR 443

Counsel

Mr. N. Miviri, for the State
Ms. J. Ainui, for the Accused

21 May, 2010

1. SAWONG, J: The accused pleaded not guilty to a charge of dangerous driving causing death, pursuant to Section 328 (5) of the Criminal Code Act.

2. In order to prove its case, the State called two witnesses who gave sworn oral evidence. They were both cross-examined. In addition, and as part of the State’s case, several documentary evidence were tendered into evidence by consent.

3. For the defence case, the accused and one other witness gave sworn oral evidence. Both were also cross-examined.

4. Turning now to the State evidence, I refer firstly to the documentary evidence.

5. The first was the Record of Interview between the accused and the investigating officer: Exhibits S1(a) & (b). Suffice to say that there are no admissions in it.

6. The second is the statement of the investigator. Exhibit S2. He tells of his involvement in investigating this matter. The second part of his statement contains information from one of the injured victims and from the accused. He states that the two alleged victims were drunk and asleep on the road when they were ran over. He also says that the Defendant was not concentrating because his car stereo volume was high. On this aspect, I would reject that part of his statement or comments because it is probably hearsay and secondly, there is no other evidence supporting this.

7. From the statement he arrives at several conclusions. I hesitate to accept these conclusions, principally, because he was not an eye witness, and because those conclusions are arrived at based on hearsay evidence.

8. The next piece of evidence is the statement of the corroborator. His statement relates to the conduct of the Record of Interview. It is of no probative value.

9. The next piece of evidence is the alleged statement from the accused, Exhibit S5. In it the accused says that he and the driver of the bus drove to Tabuna. When they arrived at Tabuna, some youths wanted to buy some beer so they drove them to Ratavul Village. There they bought Negrita Rum and returned to Tabuna where he and the others drank. They drank till he didn’t feel well and he stopped. After some time, between 1 – 2am in the morning, the accused drove out onto the main road on first gear and upon getting onto the main road and as he was changing to the second gear, he felt that he ran over something.

10. The Medical Report and Certificate of Death shows that the deceased was injured and subsequently died.

11. The sketch plan, Exhibit S6, taken alone has no or very little probative value. However, it shows that the vehicle was coming out of left side of the main road and the two victims were sleeping on the centre of the road when hit by the vehicle. The sketch also shows the distance between the edge of the main road on the left hand side to the point of impact, of 10.1 metre and 11.3 metre respectively.

12. The copy of the photographs Exhibit S7, were also tendered to form part of the State’s case. In photograph 3, there are three figures. Figure 1 shows where the bus came out and figures 2 & 3 show where the victims were lying - they were lying on the centre of the road. Photograph 4 shows this very clearly.

13. The next piece of evidence is the Statement of Herman Terom, Exhibit S8. His evidence sets out some background information which is of little probative value. He then says when he and the accused arrived at Tabuna, they were asked by some boys to drive them to Ratavul to buy whisky. They drove there and came back. He does not say if the boys bought any drinks there or not. They then drove back to Tabuna, where he left the accused and others and went to his in-law’s house.

At between 1-2 am, he says the accused came and told him that he was going to drop him off. He gave the car keys to the accused and he got into the back of the bus and went to sleep. He didn’t see what happened, after that. However, as they drove onto the main road, he felt that the bush had ran over something.

14. The next piece of evidence came from Robin Walue. His evidence is that he was with the accused some time on the afternoon of 12 October, 2008, where he bought six bottle of beer, which they shared equally. This was about 2pm. They left the beach between 3 – 4pm in the afternoon and he was dropped off at his house. Sometime later, around 9pm that night, the accused and the driver of the bus came and woke him up to go to a gambling place at Tabuna. They arrived at Tabuna, and there some boys asked them to give them a lift to go to Ratavul to get some beer. They went to Ratavul and they got some beer and returned back to Tabuna. When they arrived at Tabuna, the witness left the accused and the others at or near the place where the gambling was and left.

15. The final piece of evidence came from Junior Robin. His evidence in summary was that or that of the incident, he was sitting by the road side when he saw the bus run over the two victims. He said the bus came out from a small road on the left side of the main road. He said the driver drove at a speed and came onto the main road, went onto the right side of the main road, went over the two victims who were sleeping on that side of road and then travelled back to the left side.

16. Initially, he said the two victims were sitting on the right side of the road, but subsequently changed his story and said they were sleeping on the road.

He said the bus had its lights and there was also moonlight. He also gave evidence that some people had been drinking but he did not say that the accused was one of them. He said he was sitting closeby and saw the accident. He said that he was watching the gambling and didn’t see the two victims sleeping on the road. It was actually after the bus ran over them and other people were shouting, he went and saw them. He also gave evidence that the bus had to travel down on a small incline or slope, then gets onto the main road.

17. Gisa Bonot gave evidence and confirm the events he did that night as given by the two State witnesses, Herman Damien and Robin Walue. He said he was not drunk nor speeding at the relevant and material time. He also said he was in full control of the vehicle. He said he didn’t see the two people sleeping on the road. He stated that he started the bus and drove down a small road which was sloppy and then onto the main road. He said he drove slowly, because if he speeds, the front of the bus would bump the edge of the main road. He said that he drove out on 1st gear, and when he was on the main road, and as he was changing into second gear, he felt a bump. He also said that the main road was a narrow one. Despite attempts by Mr. Miviri to discredit his evidence, he withstood the challenge.

18. The final witness for the accused was William Takatme. He too was one of those people gambling that night at Tabuna village. He said he saw the accused at Tabuna with Ereman. They were just sitting. He said the accused was the driver and he sat on the offside and Ereman went to the back of the bus and slept there. He said the accused started the bus and he drove down a small incline or slope to go onto the main road and they were surprised when the vehicle ran over the victims. He said that as they drove down and onto the main road, they did not see anyone. He said they were not speeding. He also stated that the accused was not drunk. He also confirms that the main road is a narrow one.

19. There are two issues to be determined in this case. The first is whether the accused drove the bus dangerously. Secondly, whether in so driving he caused the death of the deceased.

20. Section 328(5) of the Criminal Code Act creates the offence of dangerous driving causing death. It reads, inter alia, as follows:-

"328. Dangerous driving of a motor vehicle.

(1) For the purposes of this section –

"driving a motor vehicle on a road or in a public place dangerously" – includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including –

(a) the nature, condition, and use of the road or public place; and

(b) the amount of traffic that –

(i) is on the road or in the public place at the time; or

(ii) might reasonably be expected to be on the road or in the public place;

"public place" –

(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but

(b) does not include a tract that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time."

21. This section has been juristically considered and interpreted in many cases that have come up before the courts. The principles of law have been quite settled in a jurisdiction. These principles are set out in Karo Gamoga v The State [1981] PNGLR 443 and I would adapt and apply those principles to the case before me.

22. Thus, in order to prove its case, the State must call evidence that the accused person drove a motor vehicle at a speed or in a manner dangerous to the public. To determine whether the accused did drive in a dangerous manner the State must call evidence regarding all the circumstances of the case. These would include the nature, condition and use of the road or public at relevant/or material time and the amount of traffic that was on the road at the time.

The onus is on the State to prove these matters. It is not on the accused or the accused to prove his/her innocence.

23. In this case, I have considered carefully all the evidence given in this case. As I have stated earlier, the Record of Interview does not contain any admissions and therefore is of no probative value as well.

24. The statement of the corroborator is of no probative value as well

25. Turning now to the statement of the accused, exhibit S5. The problem with this alleged admission is that there is no evidence that the accused was cautioned by the investigator before taking his statement or for the accused to give his statement.

26. This in my view, is in breach of the accuseds’ rights under s 37 (10) and s 42 (2) of the Constitution. Section 37 (10) reads:

"No person shall be compelled in the trial of an offence to be a witness against himself."

And Section 42(2) reads:

"A person who is arrested or detained –

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained."

27. Further, it would be a breach of ss12 and 14 of the Evidence Act.

Sections 12 and 14 of the Evidence Act read as follows:-

S.12 – Accused as witness.

"A person charged with an offence is a competent but not a compellable witness for himself in any legal proceedings in connexion with the offence with which he is charged."

S.14 – Accused as witness for prosecution.

(1) A person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence.

(2) Notwithstanding Subsection (1), where a person charged with an offence is a witness he may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence.

28. In my considered opinion s14 enforces, strengthens and gives effect to an accused person’s right given in or by s 37(10) of the Constitution.

29. Thus in my view, it would be prejudicial to the accused to rely on this evidence. It is my view that to rely on this piece of evidence, even if it is by consent would amount to self incrimination. The Court must protect its integrity. I therefore reject that statement in its entity, in the exercise of my discretion.

30. Further more, the statement of Herman Terom does not in any way implicate the accused. He does not say anything about the condition of the accused, that is whether he was drunk or sober. He also does not say anything about the manner of driving of the vehicle, for instance, whether accused was speeding etc or not.

31. That leaves the evidence of Junior Robin. But his evidence is limited. His evidence lacks details of what is required under s 328 of the Code to prove the case. For instance, he gives a generalized statement that the accused drove at a speed. He does not state how he was able to tell this. He does not give any evidence on the nature, condition and use of the road and the amount of traffic that was on the road that night. His evidence is also in variance with the evidence as depicted in the photographs and the sketch plan. For instance in his evidence, he said the two victims were asleep on the right side of the road, with their feet towards the side of road. But the sketch plan and the photographs show that the two victims were sleeping more or less on the center of the road. The road is said to be a narrow road. There is also evidence that the two victims were drunk and sleeping on the road.

32. He gave no evidence of the conditions of the accused that night. He also did not give any evidence of whether the accused was drinking any alcohol that night at Tabuna. He also gave no evidence of the accused’s driving immediately before or at the time of the incident. To that extent, his testimony of implicating the accused is of little probative value.

33. In the circumstances, I have some lurking doubts in the state of the evidence. The benefit of these must be given to the accused.

34. In the final analysis, I find the accused not guilty and acquit him.

_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused