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Subang, The State v [1976] PGNC 53; [1976] PNGLR 179 (6 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 179 - The State v Elias Subang, also known as Salia Wangi of Rabaul�

[1976] PNGLR 179

N39

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ELIAS SUBANG (NO 2)

Waigani

Saldanha J

14 April 1976

21-23 April 1976

26-29 April 1976

6 May 1976

CRIMINAL LAW - Particular offences - Dangerous driving causing death - Proof required that dangerous driving on part of accused was a substantial cause of death but not sole substantial cause - Need to show accused�s dangerous driving a cause of accident and something more than de minimis - Criminal Code (Queensland adopted) s. 328a.

On a charge of dangerous driving causing death the prosecution must prove that the dangerous driving on the part of the accused person was a substantial cause of the death of the deceased person but not that it was the sole substantial cause. R. v. Gould (1963) 47 Cr. App. R. 241 followed.

However, it is only necessary for the prosecution to show that the accused person�s dangerous driving was a cause of the accident and was something more than de minimis. R. v. James Hennigan (1971) 55 Cr. App. R. 262 followed.

Trial

The accused was indicted on two charges of manslaughter arising out of a motor vehicle collision. At the close of the case for the prosecution after a submission of no case to answer the trial judge ruled that there was no case to answer on the charges of manslaughter but that there was a case to answer on the lesser charge of dangerous driving causing death under s. 328a of the Criminal Code (Queensland adopted).

Counsel

KB Egan for the State

CF Wall for the Accused

Cur. adv. vult.

6 May 1976

SALDANHA J:� The accused was indicted on two charges of manslaughter. The first alleged that he unlawfully killed John Misik Ambi and the second that he unlawfully killed Unda Ampo. At the close of the prosecution case, after a submission of no case made by defence counsel, I ruled that there was no case to answer on the charges of manslaughter but that there was a case on a charge of dangerous driving causing death. He is, therefore, now indicted on a charge of having caused the death of the two above-named deceased persons by dangerous driving.

Unda Ampo was the driver of a Yamaha 125 c.c. motor cycle and John Misik Ambi was a passenger on the pillion seat. Both died on the 16th January, 1975, when their motor cycle collided with a car driven by the accused. The State alleges that the cause of the collision was the accused�s dangerous driving.

The accused is a driver employed by the Plant and Transport Authority at Port Moresby. The car he was driving was a black medium-sized Holden Sedan, 1974 model, with a 173 c.in. high compression engine and owned by the Government.

On the 16th January, 1975, at approximately six minutes past 4 p.m., after work, the accused, with four passengers, namely, Francis Solonou, Herman Suar, Thomas Mantaleo and Paul Ligaliga, drove the car to the Transport Pool where they filled up with petrol and then to the Konedobu Hotel, where one of the passengers bought a carton of beer. They set off in the direction of Gerehu taking the coastal road past Tatana Causeway. The accused was driving, Solonou was sitting in the passenger seat beside him and the other passengers were seated at the back.

Solonou gave each a bottle of beer but nobody appears to have noticed whether the accused drank his. After passing Baruni they stopped at a rubbish dump or gravel pit where they consumed the rest of the beer. There is no evidence as to how much the accused drank.

In the course of the trial on a submission made by the accused�s counsel, that because there was no evidence that the accused had been adversely affected by drink evidence of alcohol should be excluded on the ground that its prejudicial effect outweighed its probative value, I ruled in his favour. I shall deal with this case on the basis that the accused was in no way affected by any drink he may have taken, and that evidence of drink is, in the circumstances, irrelevant.

They left the dump, the accused again driving, taking the same direction as before, with the same passengers on board sitting in their former places. But they did not go to Gerehu. The accused took the Waigani Road because they wanted to buy food from the shops in Waigani.

He passed the two turnings on the left to Gerehu, negotiated the gentle curve to the right and got to the stretch where the road straightens and goes uphill. The distance from where the road straightens to the top of the hill is about three-tenths of a mile or about 528 yards. It is upon this stretch of the road that the accident occurred.

Mr. Adams, who is a lecturer at the University of Technology in Lae, was in Port Moresby on business. He was living in a flat about half a mile from the scene of the accident. He saw the accident. His evidence is briefly as follows. Between 5 and 5.30 p.m. he left his house and drove down the access drive towards the main road. He was driving a white Mazda Station Wagon and had his wife and children with him. The access drive forms a T-junction with the main road. He stopped at the junction, waited until a car passed along the main road going in the direction of Tatana, and, seeing there was no other traffic in either direction, turned right into the main road and proceeded in the direction of Waigani. He was doing 25-30 m.p.h.

When he was about half way along the straight stretch I have mentioned earlier he became aware of a car coming up fast behind him. He himself was not going fast and although maintaining a proper look-out he was not particularly observant. His attention was drawn to this car by the sound of the engine and tyres, the screeching of brakes, and, these combined with the fact that the car had apparently come from nowhere, gave him the impression that the car was travelling at speed. About ten yards further, by which time the car had commenced to overtake him, he noticed a motor cycle coming in the opposite direction. It was travelling normally, on its proper side, in the middle of its own lane, and doing about 25-30 m.p.h. He had a feeling of impending danger, an impression that something was going to happen, that there was going to be a collision between the car and the motor cycle. He swerved to the left. He noticed as the car came abreast of him that it was out of control, it was proceeding sideways at an angle of about 45-50 degrees to the road, with the bonnet pointing uphill and to the off-side and moving from side to side and the rear of the car fish-tailing. Meanwhile the motor cycle came straight on, taking no evasive action, and collided with the car. The motor cycle struck the car on the near-side by the front passenger door. The car was then abreast of Adams� car on the wrong side of the road and at an angle to the road. The impact took place about thirty yards from the place where Adams first became aware of the car. After the impact the car came to a stop about 25 yards further at an angle of about 45 degrees to the road, completely off the road on its off-side, with the tail just off the tarmac and the rest of the car on the gravel. The driver of the motor cycle and his passenger were killed, probably instantly. They were Unda Ampo and John Misik Ambi. The car into which they collided was the black Holden driven by the accused.

Of the passengers in the car Francis Solonou, Herman Suar and Thomas Mantaleo gave evidence for the State.

The evidence of Francis Solonou is briefly as follows. Throughout the journey there was no cause for complaint in the manner of accused�s driving, except that he was driving fast. Before reaching the dump he was doing about 40-50 m.p.h. and after leaving the dump about 50-55 m.p.h. They came to a car in front of them, going in the same direction and travelling on its proper side. He is not sure whether the accused wanted to overtake or avoid the car in front. The driver turned to the right. The witness saw something red coming towards him and felt a bump. Their car was then on the right hand side of the road. He did not see the accident because he had been affected by the beer he had taken and was feeling drowsy.

Herman Suar said as follows. The accused drove normally throughout but fairly fast before reaching the dump and very fast after leaving the dump. They came to a car in front of them. The accused was driving very fast and trying to overtake this car. He himself became so frightened that he put his head down. When he looked up he saw the motor cycle coming towards them and again put his head down. The motor cycle collided with the car when the car was on the right hand side of the road.

John Clive Watkins, a mechanic employed by the Plant and Transport Authority, examined both motor vehicles involved in the accident. He found both were roadworthy before the accident. From the damage to the car he was of the opinion that the motor cycle was going fast, and, probably the Holden also going pretty fast. The motor cycle would have had a top speed of about 90 m.p.h. while the Holden would have been capable of a maximum speed of about 110 m.p.h.

On the 20th January, 1975 Dr. Manase Saott performed autopsies on the bodies of the two deceased. He found on both extensive internal and external injuries consistent with having been sustained in a traffic accident. In the blood of John Misik Ambi was found a concentration of 28 mg. of alcohol per 100 ml. of blood, and in the blood of Unda Ampo 44 mg. of alcohol per 100 ml. of blood. The 28 mg. in the blood of John Misik Ambi was not very significant but the 44 mg. found in the blood of Unda Ampo was only 6 mg. less than the 50 mg. required by the law in Victoria to constitute the statutory offence of driving with excess alcohol in the blood. However, he is unable to say what effect this amount of alcohol would have had on Unda Ampo. A lot would depend upon whether or not Unda Ampo was used to drinking and, if he was so used, he would not be as much affected as a person unused to drink.

The witness Leni Mareya, into whose family Unda Ampo had been adopted, testified that Unda Ampo drank regularly, and, when the opportunity offered itself, heavily. He was not an alcoholic. He drank heavily when drink was available but did not crave for it.

Sub-Inspector Bukikun conducted a record of interview with the accused on the 17th January, 1975. The greater part of the interview concerned what the accused did from the time he started work and is not really relevant. The relevant part is briefly as follows.

On the 16th January, 1975, after finishing work, he went to his home in Gerehu where he consumed two bottles of beer. He wanted to come of Port Moresby. On the Gerehu Road he encountered ahead of him a Holden Station Wagon and a white Datsun. The three cars turned into the Waigani Road. Through his rear-vision mirror he noticed a big truck following him. This truck overtook him and came abreast of the white Datsun. He saw a motor cycle with a pillion passenger coming in the opposite direction. The motor cycle passed between the Datsun and the truck and then turned towards him when he was on his correct side. He swerved to the right to avoid the motor cycle but the motor cycle turned in his direction and collided with his car.

The accused gave evidence on his own behalf. Briefly it is as follows. He was driving perfectly well at a speed of 35-40 m.p.h. Before starting to overtake he looked ahead and saw nothing on-coming. But when he was in the process of actually overtaking he saw the motor cycle coming towards him. It was quite close and travelling pretty fast. He thought of swerving to the left and falling behind the car he was overtaking but there was no time for such a manoeuvre. He had depressed the brake pedal once without any result. He wanted to depress it again but there was not enough time. The brakes were defective, there was something wrong with the brake pedal. At other times he had to pump the brake pedal about three times before the brakes would act. He swerved to the right but the car was so close that a collision was inevitable and the motor cycle collided with the car on the left hand side. In short, the accused is implying that when he started to overtake the motor cycle was out of sight over the crest of the hill and by the time he was in the process of overtaking the motor cycle was very near him. He did his best in an emergency but the real cause of the accident was the speed at which the motor cycle was travelling.

When cross-examined the accused admitted that the collision occurred on his incorrect side. He said the reason why he may not have seen the on-coming motor cycle was that at first his vision was obscured by the car in front, then when he was in the process of overtaking he was judging the space between his car and the car he was overtaking and when eventually he looked up he saw the motor cycle. He admitted that he suffered from impaired vision. His left eye has been operated upon twice and causes him trouble when driving. He has difficulty in seeing things when driving. He admitted that whatever defect there may have been in the brakes or the brake pedal he was aware of it before the accident.

The test for dangerous driving is that laid down in Doreen Rose Gosney[ccx]¹�in the following passage from the judgment of Megaw L.J., at p. 508:

�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 and 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 might 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.�

On a charge of causing death by dangerous driving the prosecution must prove that the dangerous driving on the part of the accused person was a substantial cause of the death of the deceased person but not that it was the sole substantial cause. R. v. Gould[ccxi]². However, it is only necessary for the prosecution to show that the accused person�s dangerous driving was a cause of the accident and was something more than de minimis. James Henningan[ccxii]³. The test for dangerous driving in Australia is similar to that laid down in Doreen Rose Gosney[ccxiii]⁴, although expressed in different terms. It is contained in the following passage of Barwick C.J. in McBride v. The Queen[ccxiv]⁵�at p. 49:

�The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.�

The following matters are not in dispute. It was a fine and clear day. At the time of the accident the sun had either set or was about to set but there was enough light and the visibility was good. The road was wide and straight with a good tarmac surface.

The case for the State is that the accused was speeding, that he failed to keep a proper look-out, or, alternatively, attempted to overtake when it was not safe to do so, or both, that at the time of the collision there was no other traffic on the road, the accused was on his incorrect side, out of control and effectively blocking the safe passage of the motor cycle, that he was speeding and attempting to overtake when his eyesight was impaired and was driving with defective brakes and was aware that his brakes were defective, that the motor cycle was on its correct side, travelling normally in the middle of its own lane at the moderate speed of 25-30 m.p.h.

The accused admits that the collision occurred on his incorrect side, he admits he was out of control, albeit he was forced into this situation owing to the emergency in which he found himself owing to the fact that the motor cycle was being driven at speed. He admits that his eyesight is defective. He admits he knew there was a defect in the brake pedal. He denies he was travelling at an excessive speed, denies he failed to keep a proper look-out and denies that he attempted to overtake when it was dangerous to do so. It is not clear whether the accused now admits that there was no other traffic on the road apart from the motor cycle and his own car. But it is clear on his own evidence that if there was other traffic on the road it did not contribute in any way to the accident.

Of all the witnesses who gave evidence for the prosecution Mr. Adams was the best. He is a university lecturer and a man of some intelligence so that his account was clear, accurate and lucid. But what is much more important is that he was impartial. He had no axe to grind. He was not involved in the accident. After the accident he did his utmost to assist. He was at great pains to ensure that his evidence was fair and accurate. He was obviously doing his best, specially under cross-examination, to give a true picture of what he saw and experienced.

Adams� evidence is that the accused was travelling at speed. He appeared behind him apparently from nowhere, with his engine, tyres and brakes making a noise. Adams� evidence is supported by the evidence of Francis Solonou who testified that the accused was travelling at a speed of 50-55 m.ph. It is supported by the evidence of Herman Suar that after they left the dump the accused was travelling so fast that when he attempted to overtake he (Suar) became frightened and put his head down. The accused�s speed and attempt to overtake had a similar effect on Mr. Adams who had an impression of impending danger and promptly moved to his near-side and eventually off the road, albeit he was prompted to do so also because of the presence of the oncoming motor cycle. I am satisfied that the accused was driving fast and much faster than the undisputed speed limit of 40 m.p.h. in that area and much faster than he should have done.

Mr. Adams is of the opinion that when the accused started to overtake the motor cycle was already on the road and not out of sight as alleged by the accused. Counsel for the accused contends that the fact that Adams did not see the motor cycle until it had travelled more than 100 yards from the crest of the hill proves that the motor cycle was travelling at speed. Not so says Mr. Adams. He himself was travelling at a moderate speed, there was no traffic on the road and he was not scanning the road or being particularly observant. The fact that he did not see the motor cycle does not mean that the motor cycle was not there. What made him take notice of what lay ahead and see the motor cycle was the sudden appearance of the car coming up behind him at great speed. Although Mr. Adams did not say so in terms I got the impression that another reason why he thought the motor cycle must have been on this side of the hill and visible was that the motor cycle was not travelling fast, doing about 25-30 m.p.h.

It is true that having regard to the estimate of distances that Adams has given it would appear that while the motor cycle travelled over 100 yards the car travelled only about 30 yards before they collided. This proves, says counsel for the defence, that the motor cycle must have been travelling very fast. The difficulty under which Mr. Adams labours is that in response to questions put to him by counsel for the State, and, in order to assist the court, Mr. Adams is forced to reconstruct the accident some fifteen months after it occurred. He is straining � that being the word used by Mr. Egan, counsel for the State � to be fair and accurate. But what is more important than a rough estimate of distances is the undoubted impression which Adams had at the time, and still has, that the motor cycle was travelling at a moderate speed. I am satisfied that the motor cycle had come over the crest of the hill and was visible on the road when the accused commenced to overtake. I am re-inforced in my conviction from the accused�s own evidence when he was being cross-examined. The following exchange took place between the accused and counsel for the State:

N2>�Q.���� I put it to you that the reason you did not see the motor cycle coming towards you was firstly because you were not keeping a proper look-out and secondly you were going too fast?

N2>A.������ I could not see the motor cycle coming because first of all I was driving behind another car. I started to overtake, the period of time between when I started to overtake and the time when I was parallel to the car or the time when I saw the motor cycle was short. At that time I was judging the space that I could give the car in front of me. Then when I looked up I saw the motor cycle coming.�

I am satisfied, therefore, that when the accused commenced to overtake the car the motor cycle was already on the road and he failed to notice it because either he was not keeping a proper look-out or because of his faulty eyesight or both.

The accused said that when faced with an emergency situation he tried to swerve to the left and fall behind the car he was overtaking but the brakes would not respond and hence he had to go to the right. The accused knew his brakes were defective and should have driven at a speed which enabled him to bring his car to a stop when necessary. Moreover, the emergency was one of his own making. He was driving fast, attempting to overtake, his brakes were defective and he knew they were defective. In attempting to bring his motor vehicle to a stop he lost control and found himself at an angle to the road thus effectively blocking the path of the motor cycle, which was on its proper side, travelling at a moderate speed. The motor cyclist was entitled to assume that the path in front of him would be clear.

In these circumstances, namely, his speed, his attempt to overtake and failure to see the motor cycle made a collision inevitable. He alone was at fault. He was greatly at fault. It was his conduct and his conduct alone that created the situation of danger that resulted in the death of the two unfortunate occupants of the motor cycle.

There is ample evidence of the accused�s guilt and I convict him of the offence of causing the death of John Misik Ambi and Unda Ampo by dangerous driving.

Verdict: Guilty of dangerous driving causing death.

Solicitor for the State: L. W. Roberts-Smith, Public Prosecutor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.