Cornish v Like [1978] PGLawRp 56 (1 March 1978)

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CRIMINAL LAW - Evidence - Burden of proof - Inferior courts - Standard of proof not to be altered because of standards of prosecution - All cases to be decided on merits.

CRIMINAL LAW - Practice and procedure - Sentence - Relevant considerations - Inferior courts - Prescribed sentencing policies not to be rigidly applied - Superior court decisions to be accepted according to letter and spirit.

JUDGMENTS AND ORDERS - Judicial decisions as authorities - Inferior courts - Superior court decisions to be accepted according to letter and spirit.

On appeal against conviction and sentence on a charge of negligent driving of a motor vehicle contrary to s. 7(1) of the Motor Traffic Act 1950, the magistrate appealed from, delivered lengthy and somewhat provocative reasons for his conviction, fine of K50 and order suspending the appellant�s licence for a period of six months:

N1>(1)�� In the trial of all criminal cases in inferior courts, the standard of proof required is that of proof beyond reasonable doubt: in no circumstances is that standard to be lowered because of a poor standard of prosecution, whether through inexperience or other causes.

N1>(3)�� All sentences in such cases should be imposed with reference to the particular circumstance of the case and not according to any rigid sentencing policies which may be prescribed by magistrates.

Kapena Boe Arua v. Anthony Bulanasoi [1975] P.N.G.L.R. 44 and Ling Ainui v. Luke Ouki [1977] P.N.G.L.R. 11 referred to.

N1>(4)�� Inferior courts being bound by decisions of the superior courts should accept and apply both the letter and the spirit of decisions of the superior courts.

This was an appeal against conviction and sentence on a charge of negligent driving contrary to s. 7(1) of the Motor Traffic Act 1950.

RAINE DCJ: There is only one thing about this appeal that is at all remarkable, and that is the magistrate�s extremely provocative report. I set it out in full, because I intend to make a number of comments about it.

The appellant, a man of previous good record, was convicted on a charge of negligent driving under s. 7(1) of the Motor Traffic Act 1950. He was fined K50.00 and ordered to have his licence suspended for a period of six months.

The appellant, who said he was just back from piloting the M.V. Samos into the Harbour at about 7.30 p.m. was, shortly thereafter, driving down Ela Beach Road when he went off the road, and hit a tree, apparently with great force. He was quite seriously injured, waking up in hospital the following day. He had memory loss. There was much blood and it is obvious that things could have ended up much worse than they did.

The appellant was apparently proceeding towards Koki, the accident was near the Davara Hotel. The road there is quite straight, for a significant distance both before and after the scene of the accident.

The appellant could give no explanation for the accident to the magistrate. He did not know of any witnesses. He said that he found out after the accident three tyres were seen to be flat, and said there was a possibility of �a blowout�. But that was as far as he could take it.

�I welcome this appeal because the result may decide if, in future traffic accident cases, Australian methods of proof are to be applied willy nilly to Papua New Guinea irrespective of the circumstances here, or if different methods of proof apply to Papua New Guinea cases, because of the different circumstances in Papua New Guinea.

N2>2.�� Taking the first three grounds of appeal together, I would agree that if this case had been heard in Australia with the evidence which was given before me only, then a conviction would have been unlikely. However, I would suggest that if this case had been heard in Australia, then in addition to the evidence which now appears in the record, there would have been other evidence of crumple data, indicating from the amount of damage to the vehicle on impact, the speed at which it was travelling before impact. In addition there might have been forensic evidence from blood samples in the car indicating the defendant�s medical condition before impact, and sifting through the wreckage afterwards, police mechanics might have been expected to come up with an accurate assessment of the mechanical condition of the vehicle before its accident. There probably would have been medical evidence of some kind, and the court could have expected to see maps and diagrams and plans and photographs, all supporting the charge in one way or another. All this is expected of a criminal justice system in a technologically advanced country like Australia.

N2>3.�� But I respectfully suggest to the Appeal Court that we cannot expect to have such sophisticated evidence in Papua New Guinean lower courts. In this country we have to do without that kind of evidence. We cannot even expect to have medical evidence in the lower courts. In assault cases magistrates have to look at bandaged arms and bruised fingers and scratched faces and stitch marks on wound scars and so on because there are insufficient doctors available to give evidence in so many cases. Similarly in traffic cases, there are too few doctors and too many accidents. In December 1977 for example, the month before this appellant was convicted before me, 125 accident cases passed through this Court House. There were 28 convictions of cases involving accidents, like the appellant�s, all without medical evidence or other sophisticated evidence.

N2>4.�� But this does not mean that all such cases were not adequately proved. It means that evidence lacking in one direction is made up from evidence supplied from another. Courts in Papua New Guinea have to use different methods of ascertaining facts as in Ainui�s case (Appeal No. 205/76) where the judge took into account his own knowledge of a particular place to decide one aspect of the appeal.

N2>5.�� In this particular appeal, I supplemented the evidence in court with my own knowledge of Ela Beach Road which runs past this Court House and I came to the conclusion that the appellant must have driven negligently to have run into that particular tree at that particular time, on that road.

N2>6.�� In relation to the fourth ground of appeal, a claim that the sentence was manifestly excessive, I would like to lay before the Appeal Court some information regarding the seriousness of the traffic accident situation in Port Moresby. I regret having to bore his Honour, the Appeal Judge, with all these facts and figures, but I feel it is necessary to supply these statistics in order that the sentence in this particular case can be seen in its proper perspective.

N2>7.�� To begin with, the attached report of a survey of traffic accident cases passing through this Court House in December 1977 shows that the area in which the appellant had his accident is the fifth most accident prone suburban area of Port Moresby City. It also shows that the fine of K50 which the appellant received is the most frequently imposed penalty following conviction for an accident case.

N2>8.�� In relation to disqualification of licence, I refer to the case of Kapena Boe Arua v. Anthony Bulanasoi (SC 823 of 3.3.75). This case has for the last two years dominated the disqualification policy of the lower courts and for this reason, of the 242 licences suspended during the first year of operation of this Court House, most were for periods of three months or less. Since Kapena�s case however, there has been an increase in the accident rate on Port Moresby�s streets, and this increase has begun to show itself in the case listings of this Court House. For example, for the first 1,000 cases to pass through this Court House from 1/9/76 to 24/11/76 accident cases constituted only 2% of the case loading. But from January to June 1977 of a loading of 2,851 cases, the percentage of accident cases had risen to 7. By November 1977 accident cases constituted 13% of the case load for that month, and by December 1977 the accident case rate had risen to 14%. By the end of 1977 one vehicle in every five registered in Port Moresby had been involved in a road accident of one kind or another.

N2>9.�� It is now clear that the limitations imposed by Kapena�s case are no longer effective in Port Moresby and if disqualification is to have any meaningful deterrent effect, then it must be for periods longer than those imposed in the past.

N2>10.�� The appellant�s case was one of the worst road accidents in Port Moresby. It happened outside one of the city�s hotels and could have been even more disastrous if he had hit a tourist instead of a tree. This kind of accident and its accompanying negligence against the background of the rising rate of street accidents can only attract a suspension period in excess of those imposed in the past.

N2>11.�� Whatever the outcome of this appeal, the traffic magistrates would be grateful for the guidance of the National Court in future similar cases. The main question is: Do we dismiss all contested cases because police investigative methods here are not the same as they are in Australia, or do we continue to adapt the introduced law to the circumstances of Papua New Guinea. It is very important for us to know the National Court�s opinion on this question because if our criminal justice system is still locked in to that of Australia as though Independence had never happened, then there will in future be few, if any, convictions for contested accident cases, given the present accident investigative methods in Port Moresby. On the other hand, if we can match the methods with the circumstances then the lower courts can at least try to do their bit to reduce death and distress and disaster in the streets. M. MacKellar.�

Firstly, the report, and the question it poses at the end thereof, seems to suggest that there is a need for convictions rather than for justice, and that different standards should be applied here than in Australia.

It cannot be said too strongly that such a proposition, apart from being wrong, is highly dangerous.

The magistracy and this magistrate, in trying a criminal case, will apply the criminal onus of proof, that of proof beyond all reasonable doubt. If the standard of prosecution of a case is poor and the case does not come up to the mark, then, if not satisfied beyond reasonable doubt, the magistrate will dismiss the charge.

The magistrate asks �Do we dismiss all contested cases because police investigative methods here are not the same as they are in Australia?� My answer is very simple. It is this, that magistrates will forget about Australia, and, doing their duty as judicial officers here, will decide each case on its own merits, applying the onus of proof applicable in a criminal case.

Secondly, a good deal is said in the report about the lack of expert evidence, it is said �In assault cases magistrates have to look at bandaged arms and bruised fingers and scratched faces and stitch marks on wound scars and so on because there are insufficient doctors available to give evidence in so many cases.� Of course they do, and so do I, and my brothers on the National Court in the trials before us. We have to do this also when a doctor is called, because it is our duty, and a magistrate�s duty, to evaluate the expert�s evidence. But in many cases judges and magistrates need no expert medical evidence.

Of course, there are cases when medical evidence is essential, for while most lay adults are perfectly well able to recognize knife cuts or black eyes when they see them, they would not be qualified to say that death resulted, for instance, from peritonitis, or a ruptured spleen or aorta, or whether some injuries could give rise to grievous as opposed to mere bodily harm.

Thirdly, as to sentence. This magistrate has chosen to refer to the decision of Frost CJ in Kapena Boe Arua v. Anthony Bulanasoi[li]¹. The magistrate states �This case has for the last two years dominated the disqualification policy of the lower courts.� So it should have done, for that judgment binds the lower courts. See also a decision of Williams J. in Ling Ainui v. Luke Ouki[lii]²�an appeal heard by his Honour from this magistrate. Williams J. took the same stance as did the former Chief Justice. Both judges pointed out that rigid scales for certain offences are impermissible. I respectfully agree.

N1>These judgments are to be followed and applied with loyalty, but I seem to detect in the magistrate�s report some canvassing of the judgment of the former Chief Justice.

N1>Rigid scales of punishment inevitably lead to individual cases not being tried on their merits. There is nothing wrong with magistrates meeting and deciding, from their collective experience, that certain offences are becoming much too prevalent, nor in them agreeing that a more serious view of them be taken, and a higher tariff expected by future offenders. But rigid norms are very dangerous and can lead to great injustice. Is it suggested that a man with a splendid record is, in effect, to have it ignored, and to receive the same sentence as a fairly worthless person? Of course not.

N1>Fourthly, the report seems to denigrate the Royal Papua New Guinea Constabulary, comparing it very unfavourably with Australian police in relation to the conduct of prosecutions.

N1>This is a young country and the police are a young lot. But Rome was not built in a day. I must say I have noticed a very considerable improvement in the standard of C.I.B. work in the last two years in my court. Records of interview are greatly improved. In accident cases I have been getting really excellent diagrams of the scene, some are absolutely first rate. Those police who do not measure up, after having had cases they have instituted dismissed, will, so I trust, see the need to prepare prosecutions more thoroughly.

N1>But, if there is a proportion of cases badly prepared, through inexperience, or for other causes, then this is no reason to reduce the burden of proof that lies on the prosecution. Such a suggestion, if it is made, as I suspect it is, cannot be countenanced, let alone even thought of.

N1>[His Honour then dealt shortly with the appeal, which was not opposed by counsel for the State. His Honour allowed the appeal and quashed the fine and suspension of licence.]

[li][1975] P.N.G.L.R. 44.

[lii][1977] P.N.G.L.R. 11.

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Papua New Guinea Law Reports

Cornish v Like [1978] PGLawRp 56 (1 March 1978)

Papua New Guinea Law Reports - 1978