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State v Duncan [1999] PGDC 8; DC54 (26 May 1999)

Unreported District Court Decisions

[1999] PNGDC 8 - STATE V DANIEL DUNCAN

[1999] PNGDC 8

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 2245 OF 1999

PARTIES:� THE STATE

INFORMANT

V

DANIEL DUNCAN

DEFENDANT

Waigani

Vagi PM

24 March1999

6-7 April 1999

26 May 1999

MOTOR TRAFFIC ACT - (Ch243) s17(1), 129(1).

Representation

Counsel/Representative

Informant:� Sergeant Mainuka

Defendant:� Mr Peter Kuman

Lawyers/Representative

Informant:� Sergeant Mainuka

Defendant:� Blake Dawson Waldron

26 May 1999

VAGI PM:

N1>[1]����� This matter came before me for hearing on 24 March, 6 April and finally on 7 April 1999. The accused is charged that on 16 August 1998 at Port Moresby he did drive a motor vehicle, a Toyota land cruiser registered number BAN. 846 upon a public street to wit Scratchley Road, did drive the same negligently. Thereby contravening section 17(1) of the Motor Traffic Act (Ch243).

N1>[2]����� The essential elements the prosecution is required to prove beyond reasonable doubt are:

N2>(a)����� Date and time of offence.

N2>(b)����� Place of an offence.

N2>(c)����� Identification of the defendant.

N2>(d)����� Did drive.

N2>(e)����� A motor vehicle.

N2>(f)����� On a public street or road.

N2>(g)����� Negligently.

N1>[3]����� The prosecution in trying to prove its case called four (4) witnesses namely Luke Noge, the driver of the PMV a Toyota Coaster 25 seater bus registered No. P508 A which was involved in the accident with the Defendant's vehicle a Toyota Land Cruiser registered No BAN 846, and Paru Rawane the bus crew at the time of the accident. Also called was Alfred Rewa a pedestrian who witnessed the accident and the Informant Constable Dennis Aviupa, who investigated the accident and laid charges against the Defendant.

N1>[4]����� The prosecutor's evidence in brief is that on 16 August 1998 between 7 am-8 am, Mr Luke Noge the driver of the PMV a Toyota coaster bus registered No. P508A on route 17 was driving along Scratchley Road from Manu Auto Port towards Sabama bus stop. The driver stopped and let the passengers off. After all the passengers got off at Sabama bus stop, the driver upon seeing pedestrians crossing the road made an "U" turn from where it was parked, which was behind a Mazda 323, which was also stationary due to the people crossing the pedestrian crossing.

N1>[5]����� While the driver of PMV was in the process of making the "U" turn, the defendant coming from the opposite direction collided into the left front wheel side of the PMV bus and caused damage. The prosecution also called evidence to the effect that one of the pedestrians crossing at that time was nearly ran over by the defendant's vehicle and furthermore as the result of the defendant's vehicle colliding into the PMV bus, the impact of it forced the PMV bus onto another PMV bus stationary on the side of the road.

N1>[6]����� The defence on the other hand called the Defendant himself to give evidence that on the date of the accident, he had dropped of his wife for Church Service and was driving along Scratchly Road from Kila Kila, Horse Camp way towards the Sabama crossing at the speed of 50-60km/hr when suddenly the PMV bus driven by Luke Noge which was travelling at high speed down hill in the opposite direction make an abrupt and sudden "U" turn in front of him, which resulted in his vehicle colliding into it the PMV bus. At that time there were no pedestrians crossing. The defence in its case also relied on a letter tendered to court, which was a letter of request by the OIC research unit to the OIC traffic police to reinvestigate the accident the subject, of this court case.

N1>[7]����� I wish to state at the outset that I do not give much weight to the letter as the author of the letter was not cross examined as to his experience of knowledge in relation to traffic Accident Investigations. Nor was he at the scene of the accident. At the most his letter is based on hearsay.

N1>[8]����� Proceeding on to the evidence before me the Defence has submitted that there is:

N2>(1)����� No evidence to show that the defendant was driving on a Public Street; and

N2>(2)����� There is insufficient evidence in relation to any act or omission that could Constitute Negligence on the part o the Defendant that resulted in the accident.

N1>[9]����� I do not agree with the Submission by the defence on the first point as the Motor Traffic Act, clearly defines the meaning of a Public Street which is and I quote:

"public street" means a street, road lane, thoroughfare, foot path, bridge or place:

(a)����� that is open to or used by the Public."

N1>[10]��� The Prosecution's evidence which was not contested by the Defence but infact confirmed by the defendant in his affidavit sworn on 26 November 1998 was that he was driving along Scratchly Road when the accident occurred, which I have taken Judicial Notice of as a Public Road, as it is used by the Public. In fact I find that the only issue before me, is whether or not the defendant was negligent in causing the accident.

N1>[11]��� In determining this issue I have taken recourse to the evidence before me and I the final analysis I accept the evidence of the PMV driver and his crew, which was collaborated to by Alfred Rewa pedestrian making his crossing at the time of accident, as the truth as to what happened.

N1>[12]��� In saying that I especially refer to Alfred Rewa's evidence-in-chief and cross examination (in part):

N2>Q:����� Can you recall 16 August 1998 on a Sunday?

N2>A:������ Yes, while walking on the Pedestrian crossing with other Public I saw the vehicle was on high speed speeding up from Kila Kila High School was coming up towards the crossing as where I was walking on the Pedestrian Crossing. In fear of my life, thinking that the vehicle might run over me or kill me, so I ran back and the same moment. The same vehicle came on high speed and bumped the turning PMV bus on its left front wheel.

N1>[13]��� In Cross Examination:

N2>Q:����� There were no people crossing the road?

N2>A:������ No there were many people crossing the road including myself.

N2>Q:����� Are you familiar with driver and crew?

N2>A:������ No. I am not, I am from Southern Highlands and they are from Western Highlands and I am not familiar with them.

N1>[14]��� His evidence not only corroborates the evidence of the PMV driver and his crew but also in my view highlights the speed and manner I which the defendant was driving the pedestrian crossing and its eventual collision with the PMV bus.

N1>[15]��� The defendant in my view also collaborates this important aspect of the Prosecution's evidence, when he made a sworn affidavit of 26 November 1998 that he was approaching the Pedestrian Crossing at 50-60 km/hr which is clearly in contravention of s129(1) of the Motor Traffic Regulation, which regulates the speed and manner in which a driver has to observe when approaching a Pedestrian Crossing.

N1>[16]��� In my view, had the defendant been driving at a speed which was not excessive under the circumstances and kept a proper lookout and drove with due regard to other road users, this accident would have been avoided.

N1>[17]��� I therefore find that the defendant was Negligent in causing the accident. Consequently I find the Defendant guilty as charged.

N1>[18]��� I reserve Sentence until I hear Counsel's address on Sentence.

Sergeant Manuka for Police

Blake Dawson Waldron, Lawyer for Defendant