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Varimo, The State v [1978] PGNC 52; [1978] PNGLR 62 (3 March 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 62 - The State v Saka Varimo�

[1978] PNGLR 62

N125

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SAKA VARIMO

Waigani

Prentice CJ

2-3 March 1978

CRIMINAL LAW - Evidence - Cross-examination - Cross-examination of State witnesses to put defence case desirable - Explanation raised for first time in statement from dock - Failure to cross-examine going to credibility.

On a trial on a charge of dangerous driving causing death, after the case for the prosecution was concluded, the accused made a statement from the dock in which an explanation of sudden emergency was raised for the first time in the course of the trial:

Held

N1>(1)����� It is desirable that defence counsel open in cross-examination of State witnesses, the version of facts, or explanation of conduct upon which the defence relies.

Browne v. Dunn (1894) 6 R. 67 H.L. and The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293 followed.

N1>(2)����� Failure to so cross-examine with a view to surprising the prosecution may be taken into account in assessing the credibility of a witness.

Trial

This was the trial of an accused on a charge of dangerous driving causing death contrary to s. 335(4) of the Criminal Code.

Counsel

G. J Lucas, for the State.

M. Kapi, for the accused.

Cur. adv. vult.

3 March 1978

PRENTICE CJ: The accused stands charged with dangerous driving whereby the death of a pedestrian was caused near the junction of Koura Way and Waigani Drive about 7.45 a.m. on 18th January, 1977. It is not denied that the accused drove the motor vehicle concerned, a Toyota land cruiser, nor that the instant death of the pedestrian was caused by the accused�s vehicle colliding with him.

The case apparently being made by the prosecution was that the accused negligently, or deliberately in the course of taking a short cut to avoid traffic drove off the bitumen of Koura Way to cross the dusty verge into Waigani Drive, without waiting for the vehicles stopped ahead of him to get a break in the traffic of Waigani Drive so as to turn.

The accused gave no explanation to investigating police as to the cause of the accident; indeed he refused to answer questions. In cross examination no questions were put to suggest an explanation for accused�s prima facie erratic driving. Indeed defence counsel deliberately sought to establish that none of the State witnesses had the opportunity to observe, or paid much attention to, the driving of the unnamed vehicle which was next ahead of the accused�s vehicle at the intersection. No evidence was called for the defence but the accused made a statement from the dock. Therein, for the first time, the defence raised a story to the effect that a sudden emergency or critical situation developed because a vehicle overtook the accused and cut in, causing the accused to turn sharply left and apply his brakes. Several times last year I pointed out that it is not correct advocacy for either prosecution or defence not to put its case in cross examination of the witness called by the other side. I make reference to my judgment in The State v. Ogadi Minjipa[liii]¹�and the reasons set out there and to Browne v. Dunn[liv]². And I point out again, that keeping an explanation under cover with a view to surprising the other side is most unlikely to add to the credibility of a party.

N1>In this instance, the accused in his statement from the dock gave no details whatever as to the colour, make or kind of this vehicle said to have caused the emergency. Nor of course did he give any details as to it to the police who would have had the opportunity perhaps to have exculpated him, if the story be true.

N1>Despite the fact that I consider the course taken by the counsel in the case for the accused makes it difficult to do so, I shall endeavour to deal seriously with the submission by defence counsel that a �critical situation� has been raised and therefore must be negatived by the prosecution beyond reasonable doubt.

N1>The accused stated that he noticed a vehicle suddenly overtaking him, and because it was near the junction it overtook him, cut in sharply in front of him, and applied its brakes. He said nothing about his own vehicle�s speed. He continued, that at the point when he saw the red light of that vehicle, he pulled his vehicle aside to the left and bumped the pedestrian at a point not very far off the bitumen. He said that though shocked, he applied his brakes at the same time and stopped on Waigani Drive on the wrong side of the road, facing the University.

N1>Even taking this story at face-value, it would be difficult to see how the accused could escape the imputation of dangerous driving, if he were driving so fast as he approached a line of stationary vehicles a very short distance ahead of him that he could not avoid colliding with another vehicle cutting in, except by turning to his left off the bitumen surface and on to a pedestrian�s locality. I pause to say the junction is a busy one both for pedestrians and vehicles, and has bus stops there. Neither the possibility of the cutting in by another vehicle (the critical situation), nor the eccentric course of his own vehicle to a position stationary on its wrong side of Waigani Drive facing the University nor its braking, was put to the witness Gary Young who was driving towards the University of Papua New Guinea in Waigani Drive and would certainly have noticed its coming to a stop and might well have been expected to notice both the other features, because he became alerted to the accused�s vehicle�s movements in relation to his own. Young was a quiet, reserved witness, clearly not given to exaggeration. He noticed two or three cars stopped at the intersection (obviously to give way to him and possibly others) in Koura Way. He saw the land cruiser approaching the intersection behind these cars and leave the bitumen and drive across a track which crossed the footpath (this has now been blocked off with a row of posts). He was watching it closely as its intention seemed to be to pull into Waigani Drive in front of him. He saw it hit a pedestrian half way across the area of gravel adjacent to the intersection. He said the Toyota land cruiser continued on its way to Waigani without stopping. It carried the deceased�s body some 20/30 feet. The witness recalled that he saw the accused�s vehicle before it reached the other vehicles. He stated that the vehicle in front of the accused was stationary when he saw it. When it left the bitumen the accused�s vehicle was doing about 25 m.p.h. He could detect no change of speed until it entered Waigani Drive when it accelerated fairly rapidly.

N1>The deceased�s brother also stated that the accused�s car did not stop and he described its movements as �top speed� which I take to indicate at least �fairly fast�. He stated that while it was crossing the gravel and grassway and veering from the bitumen of Koura Way to the bitumen of Waigani Drive its speed did not alter.

N1>A pedestrian, Tau Hota, who was on the other (Kone Tiger�s Club) side of Waigani Drive, waiting to cross, saw the accident, and also used the phrase �top speed� about the accused�s car. He also said the car did not stop, and it did not change speed in crossing from bitumen to bitumen.

N1>Gary Young, as I have outlined, saw the land cruiser approach the 2 to 3 stationary cars which were waiting to turn right into Waigani Drive. He saw it leave the road to its left as though to negotiate the track across the footpath. He was adamant that he saw this vehicle coming before it reached the other vehicles. To the question in cross examination �It would be fair to say you are not able to describe the manner that vehicle immediately in front of the land cruiser was being driven?�; he answered: �I recall it was stationary when I saw it�. Questions were put in cross examination of Tau Hota on the basis that the vehicle immediately in front of the accused�s had been standing some time with others waiting to turn. No question was put suggesting a cutting in. To one question, he replied that those vehicles (waiting to turn), had stopped before he arrived at the scene. He did, he said, see the land cruiser turn off the bitumen. I consider it almost inconceivable that both Gary Young and Tau Hota would not have seen the cutting in of a vehicle in front of the land cruiser if such a thing happened in the way described in the statment from the dock.

N1>I detected nothing in the State witnesses� demeanour that would suggest they were fabricating evidence or were unreliable. There are as set out above a number of major differences between the evidence of the State witnesses and the accused�s statement. I have no hesitation in accepting the State witnesses, and I reject the improbable statement, as I find it, of the accused.

N1>I find myself satisfied beyond reasonable doubt that the accused was approaching a line of stationary cars in Koura Way. Either through negligent control of his vehicle, or deliberately in his impatience to get into Waigani Drive, he drove his vehicle, and at some 25 m.p.h. speed, on to the grass and gravel area adjoining Koura Way on which pedestrians were walking. I am so satisfied, that the spot where he collided with the deceased was considerably more than the 2 to 3 feet submitted by counsel, and was in the proximity of an advertising sign as marked on the photos exhibited. In either case his driving was objectively dangerous in my opinion, and a direct cause of the deceased�s death.

N1>It is clear that the brakes on his car were in good working order, and I should add that, if I accepted the accused�s version of an emergency created by a driver cutting in, or was not satisfied that it had been excluded beyond reasonable doubt, I would still form the view that the accused, because of his speed of driving, insufficient attention, failure to brake and control his car and in running off the road and colliding with a pedestrian in the vicinity marked on the photographs was guilty of dangerous driving.

N1>I convict the accused as charged.

N1>Verdict: guilty as charged.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.