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State v Waisi [2013] PGNC 196; N5438 (11 December 2013)

N5438

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 766 OF 2011

THE STATE

V

JAMES WAISI

Madang: Cannings J
2013: 10 September, 11 November, 11 December

CRIMINAL LAW – dangerous driving of a motor vehicle – Criminal Code, Section 328 – trial – elements – whether the accused drove dangerously – whether the accused's dangerous driving caused the death of another person.

The accused, a truck driver, was charged with one count of the offence known as dangerous driving causing death, contrary to Sections 328(2) and (5) of the Criminal Code. He pleaded not guilty, so a trial was conducted. There was a collision between the dump truck he was driving and a 15-seater PMV bus that resulted in the death of a passenger in the PMV. It was the State's case that the accused, while attempting to make a right-hand turn, off a highway, crossed into the path of the oncoming PMV, which was in its correct lane and not speeding; and that he failed to signal his turn and failed to keep a proper lookout for oncoming traffic. The accused denied that he failed to signal and said that he did not see the approaching PMV because it was speeding. His defence was that the collision was an accident and not a consequence of any dangerous driving on his part, but more a consequence of dangerous driving by the driver of the PMV. The State relied on oral evidence of the driver of a tractor that was overtaken by the PMV immediately before the collision, the PMV driver, the PMV boss-crew and the Police investigator. The accused's record of interview and a post-mortem report and photographs and a sketch map of the crash scene were admitted into evidence by consent. The accused gave sworn evidence and was the only defence witness.

Held:

(1) The elements of the offence of dangerous driving causing death are that the accused:

• drove;
• a motor vehicle;
• on a road or in a public place;
• dangerously; so as to
• cause the death of another person.
  

(2) The first three elements were non-contentious. The critical issues were whether the accused drove dangerously and whether dangerous driving was the cause of the death of the deceased.

(3) To prove that a person has driven dangerously the State must prove beyond reasonable doubt that the accused was at fault and displayed a level of care and attention significantly less than that of a reasonable person in the prevailing circumstances. It does not have to be proven that the accused acted deliberately or that he was recklessly indifferent to the consequences of his manner of driving. An objective, not a subjective, test must be applied to a determination of whether the accused drove dangerously.

(4) If the defence of accident is raised, the State must prove beyond reasonable doubt that the event that occurred was not an accident, ie that it was not in the circumstances something that was unforeseeable and unlikely.

(5) The final element requires proof beyond reasonable doubt that death was the result of the dangerous driving. A clear causal connexion between the dangerous driving and the death of the deceased must be established.

(6) In this case, given the circumstances of the collision (the PMV in which the deceased was a passenger was in its correct lane and the accused drove the truck across its path) the presumption necessarily arises that according to the rules of the road the accused was at fault. Nevertheless the onus of proof never shifted from the State, which in this case bore the burden of proving beyond reasonable doubt that the PMV was not speeding. There was ample evidence that the PMV was not speeding and that it was not being driven dangerously. The accused's evidence was uncorroborated and unconvincing.

(7) Further the State proved that the collision was not an accident. It was a foreseeable consequence of the manner in which the accused drove the truck. The defence of accident did not apply. Hence the State proved that the accused drove dangerously by failing to signal and failing to keep a proper lookout for oncoming traffic.

(8) The final element was easily proven as there was no intervening event between the dangerous driving of the accused, which caused the collision, which directly caused the death of the deceased.

(9) All elements were proven and the accused was convicted, as charged.

Cases cited

The following cases are cited in the judgment:

Migi Barton v The State (1981) SC213
The State v Dela Tami [1977] PNGLR 57
The State v Peter Kepolo (1980) N243
Thick v Hoeter [1963] PNGLR 87

TRIAL

This was the trial of an accused charged with one count of dangerous driving causing death.

Counsel

J Morog, for the State
A Meten, for the accused

11th December, 2013

1. CANNINGS J: The accused, James Waisi, is charged with one count of dangerous driving causing death contrary to Sections 328(2) and (5) of the Criminal Code. The State's case is that at Ramu on Friday 10 September 2010 the accused, a truck driver, dangerously drove a 10-wheel Isuzu dump truck, fully laden with gravel, into the path of a 15-seater Nissan Urvan, PMV bus, which had a full load of passengers, causing a collision between the two vehicles, which led to the death of one of the PMV passengers, 33-year-old Philip Sareng. The accused pleaded not guilty so a trial has been conducted.

2. Specifically the State argues that the accused, while attempting to make a right-hand turn, off the Bruce Jephcott Highway, crossed into the path of the oncoming PMV, which was in its correct lane and not speeding; and that he failed to signal his turn and failed to keep a proper lookout for oncoming traffic. The accused denies that he failed to signal and said that he did not see the approaching PMV because it was speeding. His defence is that the collision was an accident and not a consequence of any dangerous driving on his part, but more a consequence of dangerous driving by the driver of the PMV.

3. The State relied on oral evidence of the driver of a tractor that was overtaken by the PMV immediately before the collision, the PMV driver, the PMV boss-crew and the Police investigator. The accused's record of interview and a post-mortem report and photographs and a sketch map of the crash scene were admitted into evidence by consent. The accused gave sworn evidence and was the only defence witness.

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

• The collision occurred at 7.15 am at a minor junction about 100 metres from Ramu Police Station, between the Station and a bridge that crosses a river 400 metres up the highway from the crash scene in the direction of Madang.
  
• The truck was being driven into Ramu from the direction of the Lae end of the highway. The PMV, which was carrying school students on an excursion bound for Lae, was being driven from the direction of the Madang end of the highway.
  
• The PMV had crossed the bridge which, 400 metres up the highway, crosses a river. As the PMV entered Ramu town it passed a tractor. The driver moved into the right-hand-lane of the double-lane road and having overtaken the tractor, returned to the left-hand lane.
  
• The accused was attempting a right-hand turn into a small road, at a point 100 metres up the highway from Ramu Police Station.
  
• The truck had turned right and was half way across the intersection when the collision with the PMV occurred. The major point of impact was between the front left side of the truck and the front, primarily right, side of the PMV.
  
• The deceased was seated in the off-sider's front seat.
  
• The deceased was the only occupant of the PMV to be seriously physically injured.
  

THE OFFENCE

5. Dangerous driving causing death is an offence under Section 328 (dangerous driving of a motor vehicle) of the Criminal Code, which states:

(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 track 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.

(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.

Penalty: Subject to the succeeding provisions of this section–

On summary conviction–a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment–a fine not exceeding K1,000.00 or imprisonment for a term not exceeding two years, or both.

(3) If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.

(4) If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.

(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.

6. To be precise, the offence is properly called the offence of dangerous driving, which is created by Section 328(2), committed in circumstances of aggravation under Section 328(5). The elements of the offence of what is commonly called dangerous driving causing death are that the accused:

• drove;
• a motor vehicle;
• on a road or in a public place;
• dangerously; so as to
• cause the death of another person.
  

7. The first three elements are non-contentious. The critical issues were whether the accused drove dangerously and whether dangerous driving was the cause of the death of the deceased.

DID THE ACCUSED DRIVE DANGEROUSLY?

8. Resolution of this question requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• statement by the court of its findings of facts; followed by
• formal determination of this element of the offence, which raises two issues: does the defence of accident apply? and if it does not, did the accused drive dangerously?
  

Evidence for the State

9. Four witnesses gave oral evidence for the State, as summarised in the following table.

10. A number of exhibits were admitted into evidence by consent: a sketch map of the place of the collision and the immediate environs, the accused's record of interview, two photographs of the vehicles involved in the collision (taken soon after the collision) and a post-mortem report (revealing that the deceased died of a severe head injury).

Evidence for the defence

11. The accused gave sworn evidence, which was the only evidence presented by the defence.

Findings of fact

12. Having regard to the demeanour of the State witnesses and noting that there was no corroboration of the evidence of the accused, I find that the State has proven that:

• The PMV was not speeding. It was travelling at 50 to 60 kph.
  
• The accused failed to signal right.
  
• The accused did not see the oncoming PMV, the reason for that being he was not paying attention.
  
• The PMV had the right of way. The accused should not have entered the intersection until after it had passed.
  

Does the defence of accident apply?

13. The defence counsel, Mrs Meten, rather belatedly raised the defence of accident and as there was no serious objection by the prosecutor, Mr Morog, to it being relied on, it has been considered on its merits. Mrs Meten bases this defence on Section 24(1)(b) (intention: motive) of the Criminal Code, which states:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for–

(a) ....; or

(b) an event that occurs by accident.

14. If the defence of accident is raised, the State must prove beyond reasonable doubt that the event that occurred was not an accident, ie that it was not in the circumstances something that was unforeseeable and unlikely (Thick v Hoeter [1963] PNGLR 87).

15. I am satisfied that the State has proven beyond reasonable doubt that the collision was not an accident. It was a foreseeable consequence of the manner in which the accused drove the truck. The defence of accident does not apply.

Determination of the element: did the accused drive dangerously?

16. To prove that a person has driven dangerously the State must prove beyond reasonable doubt that the accused was at fault, that he displayed a level of care and attention significantly less than that of a reasonable person in the prevailing circumstances (The State v Dela Tami [1977] PNGLR 57, Migi Barton v The State (1981) SC213). It does not have to be proven that the accused acted deliberately or that he was recklessly indifferent to the consequences of his manner of driving. An objective, not a subjective, test must be applied to a determination of whether the accused drove dangerously (The State v Peter Kepolo (1980) N243).

17. In this case, given the circumstances of the collision (the PMV in which the deceased was a passenger was in its correct lane and the accused drove the truck across its path) the presumption necessarily arises that according to the rules of the road the accused was at fault. Nevertheless the onus of proof never shifted from the State, which in this case bore the burden of proving beyond reasonable doubt that the PMV was not speeding. There was ample evidence that it was not speeding and that the PMV was not being driven dangerously. The accused's evidence was uncorroborated and unconvincing. The State has proven beyond reasonable doubt that the accused drove dangerously by failing to signal and failing to keep a proper lookout for oncoming traffic.

DID THE ACCUSED'S DANGEROUS DRIVING CAUSE THE DEATH OF THE DECEASED?

18. The final element is easily proven as there was no intervening event between the dangerous driving of the accused, which caused the collision, which directly caused the death of the deceased.

CONCLUSION

19. Both contentious elements have been proven beyond reasonable doubt. A verdict of guilty must be entered.

VERDICT

20. James Waisi, having been indicted on one count of dangerous driving causing death contrary to Sections 328(2) and (5) of the Criminal Code, is found guilty, as charged.

Verdict accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused