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State v Kotapu (No 1) [2018] PGNC 549; N7701 (25 October 2018)

N7701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1133 OF 2016

THE STATE

V

DANLEY KOTAPU
(NO 1)

Alotau : Toliken, J
2018: 25^th October

CRIMINAL LAW – Particular offence – Dangerous driving causing grievous bodily harm – Three counts – Trial – Accused carrying detainees to court – Travelling at high speed – Another vehicle turning onto accused lane at safe distance – Accused failed to slow down or apply brakes from safe distance – Runs off road – Passengers sustain grievous bodily harm – Failure to slow down – A substantial fault – Verdict – Guilty – Criminal Code Ch. 262, s 328(2)(5).

Cases Cited:
Papua New Guinea Cases

Karo Gamoga v The State [19981] PNGLR 443
The State v Dela Tami [1977] PNGLR 57
The State v Elias Subang (No.2) [1976] PNGLR 179
R v Piane [1975] PNGLR 52

Overseas Cases

R v Gosney [1971] PNGLR 2 QB 674

Counsel:

H Roalakona, for the State
P Palek, for the Accused

VERDICT

25^th October, 2018

1. TOLIKEN J: The accused, Danley Kotapu, was indicted with three counts of dangerous driving causing grievous bodily harm, thereby contravening Section 328(2)(5) of the Criminal Code Ch. 262 (the Code). His charges are that on 09^th November 2015 he drove a motor vehicle on a road, the Charles Abel Highway dangerously and caused grievous bodily harm to Kepas Mote Kevandi (count 1), Paul Patrick (count 2) and Milari Eric (count 3).
   
2. The State alleged that on 09^th November 2015, the accused, a Police officer was on duty. Between 9.00a.m – 10.00a.m, he was driving a Toyota Land Cruiser bearing the Registration No. ZPD:304, at high speed along the Charles Abel Highway bound for Alotau Town. He was transporting detainees from Giligili Corrective Institution for their court appearances at the Alotau District Court. Ahead of him a truck belonging to New Britain Palm Oil Ltd was turning across the accused’s lane into a feeder road. On seeing the vehicle turn, the accused, still a distance away, ran off the road still at high speed and crashed into a drain. He had failed to take care and drove dangerously thus causing grievous bodily harm to three of his passengers.
   
3. The accused pleaded NOT GUILTY. He denied driving dangerously but does not deny that the persons suffered grievous bodily harm.
   
4. To secure a conviction the State has to prove the following elements of the charge beyond reasonable doubt:
   
   1. The accused
   2. Drove a motor vehicle
   3. On a road or public place
   4. Dangerously
   5. Causing grievous harm to another person
      
5. The accused does not challenge the other elements of the charge. He only denies that he drove dangerously.
   
6. The issue to determine there is, whether his driving was dangerous.
   
7. Having heard the evidence, I find the following undisputed facts. The accused is a police officer based here in Alotau. On the date in question he drove to the CS Giligili together with two other officers to pick up detainees to attend their hearings in the District Court. One officer sat at his side in front while the other sat at the back of the 10 Seater Land Cruiser armed with a gun. They picked up detainees Kepas Mote Kevandi, Paul Patrick and Milari Eric and left for Alotau. They were running late hence the accused drove out at high speed.
   
8. As they were approaching the Gurney Airport junction a Truck travelling from the other direction was turning into a feeder road on the other side of the main highway in which the accused was travelling. In an attempt to avoid colliding with the truck the accused swerved to the side of the road narrowly missing the front of the truck which by then had seen the accused’s vehicle run off the main road and stopped, as the accused vehicle ran into a drain. The three detainees all sustained grievous bodily harm.
   
9. State witness Paul Abita who was driving the truck testified that he was already onto the feeder road when the accused left the main road and ran into the drain narrowly missing his truck.
   
10. The accused testified though that the other truck turned into the feeder road when he was already very close and in order to avoid a head-on collision he veered of the road deliberately. He admitted that he was rushing to get to court and was doing about 100 k.p.h. He also admitted that he did not attempt to slow down as he approached the turning truck. So was the accused’s driving dangerous in the circumstances?
    
11. What is the law in regard to dangerous driving? Dangerous driving has been held to involve a fault on the part of the driver in his manner of driving. In The State v Dela Tami [1977] PNGLR 57 it was held that:
    

“Fault involves a failure; a falling below the care and skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances of the case. If the dangerous driving occurs, however, as a result of some sudden overwhelming misfortune suffered by the driver for which he is in no way to blame – if, for example he suddenly has an epileptic fit or passes into a comma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone – then he is not driving in a manner dangerous to the public.”

12. The Supreme Court in Karo Gamoga v The State [19981] PNGLR 443 adopted and followed the statement of the law by the English Criminal Court of Appeal in R v Gosney [1971] 2 QB 674 where at 680 it said:
    

“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though, it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do.”

13. So the prosecution must prove that there was some fault on the part of the driver. However, the driver need not have been the sole cause of the accident. He will be convicted if it is proved on the criminal standard that there was some appreciable fault on his part that fell below the care and skill of a competent and careful driver. The prosecution must prove that the dangerous driving on the part of the accused was a substantial cause of death, but not that it was the sole cause. A substantial cause must be more than de minimis. (The State v Elias Subang (No.2) [1976] PNGLR 179).
    
14. The standard of driving is an objective one and not subjective. The State must, however, adduce evidence that goes beyond showing merely that the accused’s driving was dangerous (R v Piane [1975] PNGLR 52). The standard is also impersonal and universal. “Impersonal” because it does not vary with individuals and “universal” because it applies to all persons who drive motor vehicles. So it does not matter whether one is an experienced or an inexperienced driver (Karo Gamoga v The State. (Supra).
    
15. Coming back to the instant case, it is not disputed that the accused was speeding. The accused does admit to have been travelling in excess of 100k.p.h, his excuse being that they did not have the number of men required for transporting detainees, which ought to have included a NCO, but did not, and the fact that they were running late for court. The accused does not deny that he did not slow down, nor applied his brakes when approaching the Gurney junction and upon seeing the oncoming truck turn, make a turn into the feeder road on his (accused) side of the highway.
    
16. He said he was some 40 meters away from the oncoming truck when it turned without indicating that it will do so. I find however, that Paul Abita did signal from afar and that he was observant of the speeding vehicle coming from the other direction and correctly judged that he can safely turn to the other side. He in fact was already on the feeder road though a bit of the truck may still have been on the main road and there were a couple of vehicle behind him.
    
17. Now, had the accused maintained a reasonable speed as he was approaching the junction and had he slowed down or applied his brakes he would not have had to veer off the road to avoid a collision with the truck. I find that because he was speeding and did not slow down or apply his break from a safe distance, the accused was faced with the sure prospect of hitting the truck as it entered the feeder road or colliding with the other two vehicles that were following the truck.
    
18. The law as we have seen does not require that the accused’s fault was the sole cause of the accident. Rather all that is required is that his fault was a substantial fault. His failure to slow down and apply his brakes from a safe distance was in my opinion a substantial fault that caused the accident.
    
19. I therefore find that the accused driving at the time was dangerous and I return a verdict of GUILTY.
    

Ordered accordingly.

P Kaluwin, Public Prosecutor: Lawyer for the State
L M Mamu, Public Solicitor: Lawyer for the Accused