N4469

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 102 0F 2008

SAM MANASSEH
Appellant

V

THE STATE
Respondent

Madang: Cannings J
2011: 23 September, 16 December

TRAFFIC OFFENCES – driving motor vehicle on public street without due care and attention: Motor Traffic Act, Section 17(2) – appeal against conviction – whether District Court properly considered competing evidence – alleged denial of natural justice – whether any error of law made by District Court in finding appellant guilty.

Two vehicles travelling in opposite directions collided on a straight stretch of road. The police investigated the incident soon after it happened and charged the driver of one of the vehicles, the appellant, with driving without due care and attention. The appellant was convicted by the District Court based on a finding of fact that he had left the left-hand side of the road immediately before the point of impact to avoid potholes and had not returned to the left-hand side of the road by the time that the other vehicle reached the point of impact. The appellant appealed against his conviction on 13 grounds, which may be summarised as being that the trial Magistrate erred in law by (a) conducting the proceedings improperly and contrary to the principles of natural justice; (b) giving insufficient weight to evidence of defence witnesses and improperly admitting evidence for the prosecution; (c) making an adverse assessment of the appellant's eyesight without evidence; (d) shifting the burden of proof to the appellant; and (e) holding that the appellant had admitted the charge when, in fact, he pleaded not guilty.

Held:

(1)	Ground (a) was dismissed as there was no evidence to support the allegation that the trial was conducted improperly or contrary to the principles of natural justice.

(2)	Ground (b) was dismissed as the trial Magistrate carefully assessed all the evidence before the court.

(3)	Ground (c) was upheld as there was no medical or scientific evidence before the court to warrant a finding that the appellant's eyesight was poor.

(4)	Ground (d) was dismissed as although one passage of the trial Magistrate's judgment may suggest, if read literally and out of context, that the burden of disproving the charge had shifted to the appellant, this was not, in fact, the case.

(5)	Ground (e) was dismissed as being frivolous.

(6)	The trial Magistrate made one error of law but the error had no material effect on the finding that the appellant had driven without due care and attention. There was no substantial miscarriage of justice so the appeal was dismissed and the conviction confirmed as correct.

Cases cited

The following cases are cited in the judgment:

Danny Yai v Joseph Pindu (2009) N3630
Elison Javano v Samuel Lai (2010) N4140
Epeli Davinga v The State [1995] PNGLR 263
Evangelical Lutheran Church of New Guinea v Peninsula Hotels Pty Ltd [1977] PNGLR 147
Hami Yawari v Anderson Agiru (2008) SC939
Kutau v The State (2007) SC927
Kwame Okyere Boateng v The State [1990] PNGLR 342
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
SCR No 1 of 1980, Re s 22 of the Police Offences Act [1981] PNGLR 28
SCR No 2 of 1980; Re s 14 of the Summary Offences Act [1981] PNGLR 50
Sela Gipe v The State [2000] PNGLR 271
Siwi Bungo v John Robin (2011) N4195
Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182
APPEAL

This was an appeal from a decision of the District Court finding a driver guilty of a motor traffic offence.

Counsel

G Anis, for the appellant
A Kupmain, for the respondent

16 December, 2011

1. CANNINGS J: This is an appeal against a decision of the Wewak District Court (Ms L Sani presiding) finding the appellant, Sam Manasseh, guilty of a traffic offence arising from a collision between two vehicles near Wewak. It was at 11.00 am on Thursday 7 February 2008 on a straight stretch of road near Passam Primary School that a collision occurred between:

•	a Toyota Dyna PMV truck, with passengers aboard, driven by John Urambari, travelling from Wewak to Yangoru; and

•	a Toyota Landcruiser utility, driven by the appellant, which had left Timbunke earlier in the morning and was heading into Wewak.

2. It was a partial head-on collision in the sense that each vehicle collided with the other on its right-hand front end. Both vehicles were damaged. The occupants of the vehicles suffered no serious injuries, though the appellant had to go to hospital for treatment for minor injuries received at the hands of passengers on the Dyna who assaulted him immediately after the collision. First Constable Alois Gabuor of Wewak Police Traffic Section arrived on the scene soon afterwards, interviewed the two drivers, conducted an investigation, determined that the appellant 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, 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.

3. The matter went to trial and the prosecution called three witnesses: the Dyna driver, Mr Urambari, his boss-crew, Fred Mango, and First Constable Gabuor. A sketch plan of the incident prepared by First Constable Gabuor was admitted into evidence. For the defence, the appellant gave sworn evidence and there were two other defence witnesses, passengers on the utility, Simon Kupati (the appellant's off-sider) and Gabriel Wemon (sitting on the tray, behind the appellant). The court made a site visit after the close of evidence and before delivery of verdict. Sgt John Huaimbandi prosecuted the case. The appellant represented himself.

4. Her Worship considered the competing evidence about the point of impact (whether it was on the appellant's side of the road or the Dyna's side) and the speed of the two vehicles. She found that the point of impact was on the Dyna's side of the road. The appellant had driven into the right-hand lane to avoid potholes and had failed to return fully to the left-hand side of the road by the time the Dyna came along. The appellant's submission that the Dyna was speeding was rejected. The conclusion was reached that the prosecution had proven its case beyond reasonable doubt, that the appellant had caused the collision and that he was guilty of driving without due care and attention. The penalty imposed was a fine of K200.00, payable within three days, in default, one month imprisonment.

THE APPEAL

5. The notice of appeal states 13 grounds of appeal. They are prolix and repetitious but I will set them out verbatim before summarising them in a more manageable form.

6. The grounds of appeal are that:

1	The Learned Magistrate refused to accept from the appellant and his witnesses sworn affidavits and statements setting out the circumstances giving rise to the motor vehicle accident, which if admitted would have persuaded the Magistrate's mind in respect of the finding of guilt, thus denying, the appellant his right to natural justice and the right to a fair hearing.

2	The Learned Magistrate had from the beginning of the proceedings, from mention to trial had made a number of detrimental and prejudicial remarks to the appellant with words to the effect that the appellant should admit the charges and that the statement of fact was overwhelming, thus placing herself in a position where she had already made up her mind in respect of the evidence at the outset.

3	The Learned Magistrate during the course of the trial had applied undue pressure on the appellant by spoken words and gestures:-

(a)	by speaking in a loud rough tone voice to the appellant when addressing the appellant;

(b)	with eyes wide open and looking straight into the appellant's eyes thus causing the appellant great emotional and physiological stress in his defence and as a result the appellant decided to remain silent when cross-examining the respondent's witnesses for fear of intimidation and reprisal from the Learned Magistrate, thus denying the appellant the opportunity to properly defend himself including producing photographs of the scene of the accident and the vehicle, which if produced, would have enabled the Court to have before it all necessary evidence;

(c)	and in the process causing the whole of the trial to be conducted in a harsh and unfair manner, and furthermore causing grave injustice by way of breach of natural justice to the appellant and the opportunity to a fair trial.

4	The Learned Magistrate failed to give proper and due consideration to the appellant and his witnesses when their oral evidence was creditable and consistent with the accident scene when inspected.

5	The Court failed to inspect both motor vehicles, as the damage sustained to both vehicles had a bearing on how the vehicles were positioned immediately before the collision, and immediately after the collision and if inspected, the Court would have credible and convincing evidence of how the accident occurred and would have been able to make a finding of fact in favour of the appellant.

6	The Road Accident Report tendered in Court by the prosecution was disputed by the appellant on the basis that it did not take into account the appellant and his witness's statements and despite objections to the Court by the appellant, the report was tendered and was heavily relied on by the Magistrate, thus placing more weight to the prosecution case.

7	During the trial, the appellant had observed that the conduct of her Worship was unfair and biased on the basis of the matters referred to in paragraph three (3) hereinabove and as a result the appellant wrote to the Senior Magistrate, by letter of 6th day of March 2008, objecting to her Worship Loma Sani from presiding over the matter to which the request and application was denied.

8	The Court erred in fact in finding that the appellant did not have a good eyesight and could not foresee danger from a distance, when there was no scientific or medical evidence before it, to proof the said condition.

9	That the Court had erred in fact when making a finding that the scene and place of the accident was a straight road with no natural obstruction except pot-holes, when the evidence showed that the road was surrounded with tall kunai grass on both sides, requiring drivers to take extra-care and caution and drive slowly.

10	The Court erred in finding that the appellant had drove his vehicle on to on-coming lane to try and avoid a pot-hole on his own lane and as a result had little time in getting back to his lane WHEN the evidence showed that there was no pot-hole on the particular stretch on the road where the accident occurred.

11	The Court erred in law in directing its mind to a wrong principle of Law whereby the Court held "that the Defendant never tried to shift the burden of proving undue care and attention over to the other side" thus ruling that "If the Defendant thinks the Complainant driver was at fault then he should bring evidence to support" and as a result wrongly placing the burden of proof on the appellant rather than on the prosecution.

12	That the Court erred in law and in fact when holding that the appellant himself admitted the charges when the appellant had clearly entered a plea of "not guilty".

13	The whole of the trial and the proceedings was conducted in breach of the rules of natural justice and the manner in which the trial was conducted was in breach of the rules of Court and generally unfair and not impartial for the good management, administration and dispensation of justice. [sic]

7. Those grounds can be summarised by saying that it is alleged that the learned trial Magistrate erred in law by:

(a)	conducting the proceedings improperly and contrary to the principles of natural justice (notice of appeal ground Nos 1, 2, 3, 7, 13);

(b)	giving insufficient weight to evidence of defence witnesses and improperly admitting evidence for the prosecution (notice of appeal ground Nos 4, 5, 6, 9, 10);

(c)	making an adverse assessment of the appellant's eyesight without evidence (notice of appeal ground No 8);

(d)	shifting the burden of proof to the appellant (notice of appeal ground No 11); and

(e)	holding that the appellant had admitted the charge, when, in fact, he pleaded not guilty (notice of appeal ground No 12).

GROUND (a): CONDUCTING THE PROCEEDINGS IMPROPERLY AND CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE

8. The appellant makes numerous allegations of improper conduct of the trial, which, if true, would present a good case for setting aside the conviction. All judicial proceedings must be conducted fairly, free of actual bias on the part of the presiding judge or magistrate and free of a reasonable apprehension of bias. However, a claim that a Magistrate or a Judge is biased must be supported by clear evidence that he or she has a connection with one of the parties or otherwise has an interest in the case or has conducted the proceedings in such an obviously one-sided way that there is a reasonable apprehension of bias (Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182; Kwame Okyere Boateng v The State [1990] PNGLR 342; Sela Gipe v The State [2000] PNGLR 271, Hami Yawari v Anderson Agiru (2008) SC939, Danny Yai v Joseph Pindu (2009) N3630). Here, there is simply nothing on the record of the court or in the form of admissible evidence that the learned trial Magistrate:

•	refused to accept all the appellant's evidence (notice of appeal, ground 1);
•	made detrimental and prejudicial remarks to the appellant (notice of appeal, ground 2);
•	applied undue pressure on the appellant by spoken words or gestures (notice of appeal, ground 3);
•	acted unfairly and was actually biased against the appellant (notice of appeal, grounds 7 and 13).

9. In the absence of evidence of any of those things the presumption of regularity regarding judicial proceedings reflected in the maxim omnia praesumuntor rite essa acta (all things are presumed to be done in due form) applies: unless the contrary is proven, court proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate (Evangelical Lutheran Church of New Guinea v Peninsula Hotels Pty Ltd [1977] PNGLR 147, NCDIC v Crusoe Pty Ltd [1993] PNGLR 139, Siwi Bungo v John Robin (2011) N4195). Ground (a), being notice of appeal ground Nos 1, 2, 3, 7 and 13, is dismissed.

GROUND (b): GIVING INSUFFICIENT WEIGHT TO EVIDENCE OF DEFENCE WITNESSES AND IMPROPERLY ADMITTING EVIDENCE FOR THE PROSECUTION

10. The specific errors of fact or law alleged are that the learned trial Magistrate:

•	failed to give proper weight to the oral evidence of the defence witnesses (notice of appeal, ground 4);
•	failed to inspect both motor vehicles (notice of appeal, ground 5);
•	heavily relied on a road accident report, despite objections by the appellant (notice of appeal, ground 6);
•	held, contrary to the evidence, that the accident scene was a straight stretch of road with no natural obstruction except potholes (notice of appeal, ground 9);
•	erred in finding that the appellant had driven on to the oncoming lane to avoid a pothole, contrary to the evidence that there was no pothole at the accident scene (notice of appeal, ground 10).

11. I am not persuaded that the learned trial Magistrate erred in any of those respects. The trial was conducted over a number of different days. It was not rushed. I have examined her Worship's extensive, and legible, handwritten notes of the evidence (which are in the appeal book), which give no suggestion of favouring one side or the other. There is no record of any application by the appellant for an inspection of both vehicles being refused. The road accident report was not heavily relied on; in fact it is not in the appeal book, so I doubt that it was even admitted into evidence at the trial. As to the findings that were made as to the existence of obstruction at the accident scene, the findings made were reasonably available from the evidence, and the learned Magistrate made a site visit, so she was entitled to take into account what she observed when making findings about the existence or otherwise of obstructions and potholes (Elison Javano v Samuel Lai (2010) N4140). As to the finding that the appellant had driven on to the right side of the road to avoid potholes and failed to return to his own side before the Dyna arrived at the point of impact, this was the critical finding of fact and her Worship was entitled to make it on the evidence available. I find no error in the manner in which her Worship set out and weighed the competing evidence. Ground (b), being notice of appeal ground Nos 4, 5, 6, 9 and 10, is dismissed.

GROUND (c): MAKING AN ADVERSE ASSESSMENT OF THE APPELLANT'S EYESIGHT WITHOUT EVIDENCE

12. Her Worship made a finding as to the appellant's eyesight in the course of drawing the conclusion that the appellant was guilty, in the following way:

The evidence also shows that defendant was speeding on his lane, but upon seeing the potholes in front of him, avoided by driving to the far right side of the road and failed to get back into his own lane because it was too late whereby had caused the accident. The evidence also revealed that defendant does not have good eyesight, therefore could not foresee danger from distance. Defendant did not bring evidence to disprove the causer of the accident. Drivers taking risks pose themselves to unexpected danger, and they cannot expect mercy from the other party.

Finally the court had heard both sides for prosecution and the defendant side and considered in light of all relevant law and decided that the prosecution has proved its case beyond reasonable doubt.

The Court finds defendant guilty as charged for driving without due care and attention, causing the accident by having no reasonable consideration for other road users when he knowingly after seeing the complainant's vehicle coming down his and coming around the corner took the risk to avoid potholes. [Emphasis added.]

13. I accept the submission of Mr Anis, for the appellant, that there was no medical or scientific evidence in support of the finding that the appellant did not have good eyesight. It appears to have been based on the untested evidence of the prosecution witness, Mr Mango, that the appellant had been wearing "dark specs", and a finding that the appellant failed to keep a proper lookout. I do not, with respect, consider that the finding as to the condition of the appellant's eyesight was one that was reasonably available on the evidence. Ground (c), being notice of appeal ground No 8, is upheld.

GROUND (d): SHIFTING THE BURDEN OF PROOF TO THE APPELLANT

14. The argument here is based on the following passages in the trial Magistrate's judgment:

I will not go into detail about what was not disputed in court but what I thought defendant was disputing is that he did not cause the accident – it was the complainant himself that caused the damages on his vehicle. The defendant never tried to shift the burden of proving undue care and attention over to the other side, so he disputed that the complainant was speeding, therefore had caused the considerable damage upon his own vehicle. According to the facts the complainant driver was travelling on his lane which is the right side going towards Passam but maintained a reasonable speed. There was no evidence brought by the defendant to prove the defence element of speed limit except for the witnesses' statement alone is not enough. If the defendant thinks the complainant driver was at fault then he should bring evidence to support. …

The defendant did not raise any constructive defence. His witnesses along with himself admitted all the allegations of driving with undue care and attention. The evidence showed defendant driver did not avoid potholes thereby had posed great danger to the opponent vehicle giving him no freedom to move freely on his lane.

15. I can understand how these passages, read out of context, could give rise to an impression that the trial Magistrate had shifted the burden of proof to the appellant, ie that her Worship was placing the onus of disproving the charge on the appellant. This is a proper ground of appeal in a criminal appeal. The presumption of innocence is a human right guaranteed by Section 37(4)(a) of the Constitution. If a trial judge or magistrate fails to enforce it, the almost inevitable consequence will be a miscarriage of justice, and quashing of a conviction (Epeli Davinga v The State [1995] PNGLR 263, Kutau v The State (2007) SC927). It is a fundamental principle of the criminal law of Papua New Guinea that unless expressly required otherwise by a written law the prosecution has the burden of proving the elements of a criminal offence beyond reasonable doubt (SCR No 2 of 1980; Re s 14 of the Summary Offences Act [1981] PNGLR 50, SCR No 1 of 1980, Re s 22 of the Police Offences Act [1981] PNGLR 28).

16. I am not persuaded, however, that her Worship shifted the burden of proof to the appellant. She was simply commenting that the appellant did not take the opportunity given to him during the trial to bring clear evidence that it was the driver of the Dyna who caused the collision. The State's case was that the point of impact was on the Dyna's left-hand side of the road, and on the appellant's right-hand side. The prosecution witnesses gave evidence to that effect and the appellant and his witnesses failed to directly contradict it. It seemed from her Worship's point of view that the defence witnesses were more intent on giving evidence about the speed at which the Dyna was travelling. They seemed to be suggesting that if the Dyna had not been travelling so fast, the appellant would have had time to get back on to his side of the road. They did not give clear evidence that the point of impact was on the appellant's left-hand side of the road. Hence her Worship commented that "the defendant never tried to shift the burden of proving undue care and attention over to the other side, so he disputed ["argued" would have been a better word choice] that the complainant was speeding" and "If the defendant thinks the complainant driver was at fault then he should bring evidence to support" and that "the defendant did not raise any constructive defence".

17. With respect, her Worship's assessment of the appellant's evidence and the theory of the defence case could have been more clearly expressed. But there was no shifting of the burden of proof to the appellant. Ground (d), being notice of appeal ground No 11, is dismissed.

GROUND (e): HOLDING THAT APPELLANT HAD ADMITTED THE CHARGE WHEN, IN FACT, HE PLEADED NOT GUILTY

18. This ground of appeal was not pursued at the hearing of the appeal but neither was it abandoned, so it must be considered. It has no merit as the learned trial Magistrate conducted a trial, which was necessitated by the appellant pleading not guilty. Her Worship published a written judgment giving her reasons for finding the appellant guilty. Ground (f), being notice of appeal ground No 12, is frivolous and is dismissed.

CONCLUSION

19. All but one of the grounds of appeal have been dismissed. The appellant has succeeded in establishing that the learned trial Magistrate made one error of law, regarding the finding of fact that he did not have good eyesight. I do not consider that that finding had any material effect on the finding that the appellant had driven without due care and attention. The guilty verdict was based on the critical finding of fact that the point of impact was on the Dyna's side of the road. The appellant was in the wrong lane. There has been no substantial miscarriage of justice, which is the test under Section 230(2) of the District Courts Act that would need to be satisfied if this appeal were to be upheld. Therefore the appeal must be dismissed.

ORDER

(1)	The appeal is dismissed.

(2)	The decision of the Wewak District Court of 23 May 2008 in MT No 13 of 2008 finding the appellant guilty of the offence of driving without due care and attention is confirmed as correct.

(3)	The parties shall bear their own costs.
__________________________________________

Gamoga & Co Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent