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Amburoapi v Urull [1999] PGDC 3; DC49 (6 April 1999)

Unreported District Court Decisions

[1999] PNGDC 1 - CONSTABLE GEORGE AMBUROAPI V AMBEN URULL

[1999] PNGDC 1

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CONSTABLE GEORGE AMBUROAPI (Informant)

v

AMBEN URULL (Defendant)

Madang

G Manuhu, Principal Magistrate

NO 291 OF 1999

6 April 1999

4 March 1999

11-12 March 1999

CRIMINAL LAW - driving whilst driving under suspension - public street - public policy considerations.

CRIMINAL LAW - evidence - admission of document by court on its own motion - cross-examination of the prosecution witnesses to put defence case desirable - defence version of facts rejected.

Cases referred to:

The State v Ogadi Minjipa [1977] PNGLR 293

Motor Traffic Act (Ch243) s36A(b)

Representation:

Counsel/Representative:

Informant: Inspector W Tetenga

Defendant: Mr Y Wadau

G MANUHU:

N1>[1]����� The defendant, Amben Urull, was charged for driving upon a public street whilst his driving licence had been suspended by order of a court. The charge is laid under s36A(b) of the Motor Traffic Act (Ch243) (the Act) which carries a minimum penalty of three months.

N1>[2]����� The case for the prosecution came from 3 witnesses. Sergeant Dumob gave evidence that sometimes at the beginning of this year the defendant was charged for driving under the influence of liquor and, amongst others, had his driving licence suspended for 6 months by the court.

N1>[3]����� On the charge Dumob said he was driving a police vehicle on 12 February with 3 other policemen in his company. They drove along North Coast Road and stopped at Nagada Market which is situated at the junction of North Coast/Nobnob Roads. The Nobnob Road is a gravel road that connects with the main North Coast Road. After they stopped Dumob saw the defendant drove passed them from the North Coast Road into Nobnob Road for some metres. Dumob instructed his men to see who was driving adding that the owner/driver of the vehicle has got his driving licence suspended by the court. The defendant then made a U turn and parked his tinted double cabin vehicle directly facing the police vehicle. The vehicles were about 10 metres apart.

N1>[4]����� It was at this time that Dumob said he identified the defendant as the driver. Then whilst he was still watching the driver started to disappear from the drivers seat. Dumob drove the police vehicle to the defendant's vehicle. He went out and opened the driver's door. There he saw the driver's seat flat on the floor with the defendant's upper body reaching for the back seat whilst his legs were still on the driver's seat.

N1>[5]����� Dumob then said to the defendant: "O, Amben, it's you again. Maybe the law didn't have any effect on you ... you're still playing with the law. You're aware your licence is suspended, you're not supposed to be driving."

N1>[6]����� The defendant responded: "Sorry, can you give me chance."

N1>[7]����� "I can give you chance but the court has suspended your licence", replied Dumob.

N1>[8]����� Following this, the witness said the defendant continued to beg for "chance" adding that he would give something to Dumob. Dumob took no notice.

N1>[9]����� The other two witnesses gave similar evidence and there is no need to state them.

N1>[10]��� In cross-examination the witnesses were not challenged on the question of identification of the defendant as the driver. The witnesses were challenged only in relation to whether Nobnob Road is a "public street" and whether the suspension order was shown to the defendant at the time of arrest and laying of charge.

N1>[11]��� There was no cross-examination on the existence or otherwise of the suspension order. I was, therefore, of the impression that the defendant did drive along North Coast Road and then drove into Nobnob Road for not more than 15 metres only to park so that he and his companions could go to the road side market. I was also of the impression that, except that it was not shown to the defendant at the time of arrest and laying of charge, a suspension order existed as a matter of fact against the defendant. Accordingly, I directed the prosecution to locate the relevant court depositions and had it admitted into evidence.

N1>[12]��� My perusal of the deposition reveals the following. An information was laid against Amben Urull on 15 January 1999, that he drove upon a public street whilst under the influence of liquor. The records of 21 January 1999, show that the defendant pleaded guilty to the charge and eventually the following orders were made:

N2>"1.����� Deft. is convicted and ordered to pay court fine of K100.00 i/d of payment be imprisoned for 30 days at CIS Beon.

N2>2.������ Defendant be suspended from driving for six (6) months.

N2>3.������ Defts K150.00 bail be refunded." (sic.)

N1>[13]��� No doubt, these orders were made in an open court.

N1>[14]��� The defence made a no case submission only on the basis that the admission of the court depositions was unprocedural and therefore unfair on the defendant. The court found, however, that there was no unfairness done to the defendant. In any case, I am now of the view that the relevant evidence has been admitted and would be given equal attention with other evidence. The issue of whether the admission was procedural or not, or whether it was fair or not, are matters that can only be raised on appeal. Accordingly, the court found that the defendant had a case to answer.

N1>[15]��� The defence adduced evidence firstly in relation to the status of the Nobnob Road. I accept the evidence of Zebedee Josingau that Nobnob Road has not been gazzetted as a National Road. The Lands Department has not completed all procedures for State acquisition. Thus, it is still customary land as deposed by another defence witness. The road is about 1 and a half kilometres from the North Coast Road to Summer Institute of Linguistics (SIL). Beyond this point, the villages of Nobnob have access to the road. Telikom also has its facilities up the road.

N1>[16]��� The defendant gave evidence for himself and was supported by witnesses Ut, Dak and Neil. The defendant said his driver, Ut, started driving him and others from his store at Sagalau. They proceeded along North Coast Road to Nagada market but the driver drove into the bushes along Nobnob Road to relieve himself. After the driver had gone, the defendant came out and saw that the tyres had been placed on broken bottles. The defendant got into the drivers seat and drove the vehicle away from the rubbish. In the process, the driver got into the offsider's seat whilst the defendant was behind the wheels. At this point they were confronted by police who apprehended the defendant.

N1>[17]��� The prosecution must prove beyond reasonable doubt the defendant did drive his vehicle upon a public street whilst his driving licence was suspended. Let us consider the evidence against the main elements of the charge.

DEFENDANT'S DRIVING

N1>[18]��� There is no dispute that the defendant was positively identified as the driver at the relevant time at Nagada market. This would be sufficient to satisfy one element of the charge - that the defendant did drive.

N1>[19]��� There is, however, further evidence that the defendant had been driving along North Coast Road also before turning into Nobnob Road. Let it be made plain here that in a criminal trial the court is at liberty to consider all the evidence relevant to the charge to arrive at a practical conclusion. Consequently, whilst Nobnob Road has been mentioned specifically on the Information the court is at liberty to arrive at a finding of fact that the defendant did drive also upon North Coast Road, thereby further satisfying this particular element of the charge. After all, as a matter of fact, the defendant's vehicle did not fall from the sky onto Nobnob Road. And, the same drive had involved two roads.

N1>[20]��� It is necessary, therefore, to consider whether (or not) the defendant was driving upon North Coast Road. As I have mentioned the prosecution evidence is that the defendant drove from North Coast Road into Nobnob Road. The defence version is that the defendant's driver was driving. The defendant drove at Nobnob Road only to remove the vehicle from the rubbish pile. Who do I believe?

N1>[21]��� I am surprised that the defence version was never raised at cross-examination of prosecution witnesses. In a criminal trial there are two main purpose for cross-examination. One is to clarify evidence that would assist the defence case. The other is to contradict the prosecution evidence by confronting the witnesses with the defence version of facts. The principles relevant to fair hearing dictate that parties in a criminal trial are not allowed to employ 'ambush' tactics.

N1>[22]��� In this case, the defence version that the driver ran into the bush; the defendant came out and got into the driver's seat to remove the vehicle from the rubbish pile; that that was the only time the defendant ever drove; etc., were never put to the prosecution witnesses to contradict their version that the defendant drove from North Coast Road into Nobnob Road, then attempted to disappear, then continuously begged for Dumob to let him go.

N1>[23]��� In The State v Ogadi Minjipa [1977] PNGLR 293 where an identical omission or failure by defence counsel occurred Prentice DCJ reacted at 296 thus:

"Before concluding, I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that the State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit - if this course be taken." (my emphasis)

N1>[24]��� "Much credit" is what is lacking here. It is even worse when the defendant was caught gesturing to witness Ut who claimed to be the driver at the relevant time. Witness Ut was apparently struggling when he gave evidence. Witness Neil, like Ut, was also unimpressive. He took his time and appeared to be giving a rehearsed spoon-fed evidence.

N1>[25]��� In all the circumstances, I am satisfied beyond reasonable doubt that the defendant did drive from North Coast Road, in fact, all the way from Sagalau and then drove into Nobnob Road as described by the prosecution witnesses. I reject the defence evidence that Ut was driving.

PUBLIC STREET

N1>[26]��� As I have found that the defendant did drive upon North Coast Road there is no need to discuss the definition of public street. North Coast Road is certainly a public street; and, the court, as I have said, is at liberty to arrive at an appropriate finding of fact on the evidence. Consequently, in the circumstances where a single trip/drive by the same driver involving both roads, there is no harm in substituting Nobnob Road for North Coast Road.

N1>[27]��� In any case, public street is defined by the Act (s1) as a street, road, lane, thoroughfare, footpath, bridge or place that is open to the public or to which the public have or are permitted to have access, whether on payment of a fee or otherwise. It is clear that lands department gazzettal is merely one factor that may be taken into account. Other factors such as how long the road is, who has access to the road, the intention of the legislators and public policy considerations are all relevant to deciding whether Nobnob Road is or is not a public street.

N1>[28]��� I have accepted that the road is not gazzetted as a National road but to arrive at a conclusion that it is not a public street would surely place everyone using the road now in an immeasurable danger. The road is about one and a half kilometres to SIL and then extends beyond to villages in Nobnob. The villagers, the officers of SIL and Telikom employees must have the protection of the law as guaranteed by the Constitution. In other words, unless the road is used by an individual and his immediate family members, it is public street if it is being used by people of different villages, of different organisations, of different nationality, and so on. Public policy considerations dictate that for the purpose of the Act each villager of a village in Nobnob must be regarded as a member of the public, officers of SIL are members of the public, Telikom employees are members of the public. When these people travel on that road they all need the protection of the law.

N1>[29]��� The defendant comes from Nobnob area and must be equally concerned that Motor Traffic laws should be applied along Nobnob Road to protect his people from unscrupulous drivers. Otherwise, how does he propose the law to deal with traffic accidents along this road. This court is not going to issue licences to drivers to drive anyhow on Nobnob Road. As I have said, that road does not belong to an individual. Indeed, there is no evidence that the defendant owns the road.

N1>[30]��� I am satisfied, therefore, that, for the purpose of the Act, Nobnob Road is a public street. If I am wrong in arriving at this conclusion, this particular element has, nonetheless, been proved on the basis of the earlier finding that the defendant did drive upon North Coast Road as well.

DRIVING LICENCE ON SUSPENSION

N1>[31]��� The evidence is clear. Prosecution witness Dumob's evidence on the suspension of driving licence is further corroborated by the court records. The defendant did not deny Dumob's evidence. Neither did he deny the contents of the court records. There is, therefore, no basis for any reasonable doubt to be entertained by the court.

SIDE ISSUES

N1>[32]��� I would like to briefly deal with two matters raised by defence counsel. First is the question of whether the vehicle driven by Dumob was registered or not. Counsel succeeded in tendering documentary evidence to show that the vehicle registration had expired. There are two things I would like to say.

N1>[33]��� Firstly, I am not required by law to determine whether Dumob's vehicle was unregistered but if it was not I share counsel's statement that police must live by the same law they enforce. Secondly, the relevant evidence was admitted to discredit Dumob's identification of the defendant as the driver. However, the defendant did not deny that he drove along Nobnob Road. This means that weighing of the evidence on identification was unnecessary.

N1>[34]��� Defence counsel also tendered into evidence a receipt to show that on the same day one of the defendant's tyres was repaired in Madang. I would probably accept that this evidence shows that the defendant's vehicle was indeed driven onto broken bottles along Nobnob Road but it is too remote for such evidence to prove who the driver was at the relevant time.

N1>[35]��� In the final analysis, I find that all the elements of the charge have been proved beyond reasonable doubt and I find the defendant guilty as charged.

N1>[36]��� Convicted accordingly.