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Police v Kali [2001] PGDC 23; DC308 (30 May 2001)

DC308

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 101OF 2001

Police
Complainant

V

James Kali
Defendant

Mt. Hagen: M. M. Pupaka
Dates: 24/11/00 & 30/05/01

Criminal Law – Particular offence – Dangerous driving causing death – Elements of offence – ‘Dangerous driving’ element of offence need to be established – Reckless as against heedless driving.

Cases Cited
R-V- Coventry [1938] HCA 31; (1937-38) 59 C.L.R 633
R-V- Pius Piane [1975] PNGLR 52
Karo Gamoga –V- The State [1981] PNGLR 443

Counsel
Sgt. Major Singol for the Prosecution
The Accused in person

25th June 2001

M. PUPAKA, PM: The accused James Kali is charged that he on the 14th of July 2000, on a public street namely at Kukpa on the Sir Okuk Highway, drove a motor vehicle, a white coloured Toyota Hiace G15, Reg. No. OAA.263, dangerously causing the death of one Gilpip Tun, a National adult male, thereby contravening section 328 (2)(5) of the Criminal Code Act chapter No. 262, (the Code).

For a variety of reasons that need not necessarily be recorded in full, the trial of the accused took relatively long to complete, and consequently the decision in this matter was delayed.

The Undisputed Facts

The facts of the matter are these: At approximately 1.30 PM on the 06th of April 2000 the accused and three others including the deceased were travelling towards Minj on the Sir Okuk Highway. They were travelling in the accused’s vehicle, which was a white Toyota Hiace G15, Reg. No. OAA.263. The accused was driving. The deceased was riding at the back of the vehicle. His two other companions were with him in the cabin. At Kukpa, whilst the vehicle was travelling up a slope, the accused suddenly swang the vehicle’s steering wheel towards the left and then back right just as suddenly. The swerving back and forth motion caused the deceased to topple over and fall headfirst onto the hard sealed surface of the road. The deceased’s head was cracked. The vehicle proceeded forth with none of the three inside (front) realising the deceased falling. Pedestrians on the side of the road called out that the deceased had fallen. The accused stopped the vehicle. The deceased was loaded into the vehicle and was immediately taken to Kunjip Hospital, however he was pronounced dead on arrival.

The Prosecution Case

The prosecution case is based on the evidence of the accused’s two companions, one Keple Bukamil and one Stanley Kunangil (a reserve policeman). The evidence of these two is that they, the accused, and the deceased started off to Minj together from the Kurumul Tea Factory after the accused and Keple Bukamil arrived at the Factory in the accused’s vehicle. Keple Bukamil said he and the accused had been drinking liquor, ("OP", or dark rum). The accused wanted to refill his vehicle at Minj so the four of them drove to Minj.

On the way there was evidently two stopovers; once for the accused to buy a bottle of dark rum ("OP") and further on for soft drinks at a roadside store. A soft drink – a Coke – was given to the accused. The dark rum was then "mixed" with the rest of the soft drinks and the accused, Keple Bukamil and Stanley Kunangil shared the mixture and proceeded to drink as they drove on to Minj.

They said the deceased sat on a spare tyre that was laying, (evidently not fixed to anything), at the back of the vehicle. The witnesses further said the accused was driving very fast.

Then after passing Kukpa Bridge and whilst proceeding up the straight, they saw some ladies ahead, at the left side of the road. The accused saw them too and steered towards those ladies. But then realising that the vehicle was about to either go off the road or about to hit the ladies (it is not said or clear what could have resulted in the initial left swing) the accused swang back the vehicle’s steer to the right.

The witnesses said it was in the swinging or swerving motion that the deceased toppled off the back of the vehicle. It was not said but the movement of the spare tyre (on which the deceased was sitting) and the general swinging motion may have also caused the deceased to be unbalanced.

The Defence Case

The accused of course denied he drank any liquor that day. He did say that his two companions, the prosecution witnesses, drank liquor as they drove towards Minj. He also denied that he was driving fast. Further, he said a "small kid" suddenly crossed the road ahead, which necessitated the swing left and then the swing right.

The accused said as he swang the steer to avoid hitting the small kid, the deceased who was perched on the vehicle trailer railings fell off and cracked his head. The accused denied that the deceased was sitting on the trailer proper or on the spare tyre. He particularly recalled asking the deceased to sit properly and not sit to on the trailer railings. At his request the accused recalled the deceased replying "mi save" – ("I know").

There is not much difference in the prosecution and the accused’s own account of the cause of the deceased’s death. He was forced off (literally thrown off) the vehicle by the suddenly executed sharp swing or swerve motion of the vehicle. The difference is as to where exactly the deceased sat, and as to what caused the accused to swing the steer left and then right to create the swerving motion.

Finding of Facts

On the disputed facts I find as proved that the accused and Keple Bukamil had drank liquor prior to picking up the deceased and Stanley Kunangil at Kurumul Tea Factory. I also find that the accused drank liquor with both prosecution witnesses on the way to Minj. Keple Bukamil said he and the accused had drunk liquor prior to arriving at the Tea Factory. On the way to Minj he said they were drinking and driving, as did the other witness. That evidence stand unchallenged in any way. The accused’s mere denials would not suffice.

Prosecution witness Stanley Kunangil referred to the other - Keple Bukamil - as the accused’s "brother". I understood that to mean the accused and Keple Bukamil were related. That evidence has not been refuted. There is no evidence, and I find no cause to suspect the two prosecution witnesses may be prejudiced towards the accused. The accused was given ample opportunities to cross-examine both witnesses. He never sought to point out that the prosecution witnesses were lying or were being untruthful. I find that the witness Keple Bukamil, being a relative of the accused would only have been truthful in the circumstances.

The other finding of fact is as to where the deceased sat on the vehicle. I find proved as a matter of fact that the deceased had sat on a spare tyre not properly stabilised or fixed to anything. I neither find truth in the assertion of the accused that the deceased was sitting on the vehicle’s trailer railing nor in the assertion of the accused that he had asked the deceased to sit down properly in the tray of the trailer. The reason for the finding on this aspect is the failure of the accused to cross-examine the prosecution witnesses. The prosecution witnesses testified in relation to this aspect. The accused, though properly given all opportunities to do so, fail to raise issue with these vital recollections of the prosecution witnesses. Then later whilst giving his evidence, the accused was shifty and he raised the point about asking the deceased to sit properly and not on the trailer rail only as an afterthought.

On the issue of just what caused the accused to swing left and right I decline to accept the accused’s assertion that a "small kid" suddenly crossed the road in front. This is the most crucial issue. He quite deliberately failed to cross-examine both prosecution witnesses in relation to this aspect. The prosecution witnesses plainly, but without offending him, said the accused did a bit, either to scare or impress the ladies on the side, possibly because they his ‘friends’. The witnesses did not say any thing at all, at anytime, about a "small kid". The story of a small kid crossing the road at the critical moment remains an assertion of the accused alone. It was never properly raised and discussed or argued in court as the possible or probable cause of accident. I find proved the real cause, of the seemingly erratic behaviour of the accused in swinging left and then right, to be his excitement at seeing the ladies at the left. There was no "small kid" crossing the road then.

If the accused was not completely drunk, he was nonetheless under the influence of liquor.

Of course in arriving at all these conclusions of fact I am mindful of the more than likely case that the prosecution witnesses were themselves also under the influence of liquor. They could have particularly failed to see a child crossing the road at the critical moment in time. However I have ruled that possibility out for other reasons as well. For instance I asked the accused in court as to where each of them, (the deceased, the two prosecution witnesses and the accused himself), were from. The accused said all of them were from Kurumul Village, which is a long way from the scene of the accident. This might mean, among other things, that the ladies at the scene of the accident are not their (all them) relatives or friends. The accused could have called them as independent witnesses to verify his story. He did not. He can not possibly expect the Court to just accept his story as the truthful account of what happened. There is no credibility issue attached to the prosecution witness’ evidence, which does much damage to the accused’s own credibility rating.

One other fact is borne out by these findings of facts. The deceased was clearly at fault on one aspect. He was sitting on an object (spare tyre) not properly fixed to the vehicle. He took it upon himself to take a ride on the back a vehicle, which was relatively not safe. That, in the tortious sense, could have also contributed to his demise.

Discussions on the Law

I have concluded that the accused steered the vehicle left and then right for no good reason at all. Consequently I have concluded that that resulted in the deceased being tossed off or thrown off or flung off the vehicle as the case may be. I must next decide as to whether the accused drove the vehicle dangerously. I would then decide if the deceased in any way contributed to his own death at all, or to a sufficient degree such as to fully exonerate the accused of any criminal capability.

However the criminal culpability of the accused must be found on the bases of what the accused alone did or failed to do in all the circumstances.

The accused drove the vehicle not only whilst under the influence alcohol, he also drank alcohol whilst driving. He allowed a passenger to ride on the back of his vehicle when the same was not safe for that purpose. These are unlawful conducts on his part. He could otherwise be found guilty upon the proven breach of section 18 of the Motor Traffic Act Chapter- No. 243, (Driving under the influence etc).

As I said in another case of dangerous driving causing death, (see the case of Police –vs- Fred Topa, GV Case No. 155 of 2000 decided on 07/12/00 at Mt. Hagen), the determination of the standard of driving displayed by a person charged with the offence is the test long accepted in this jurisdiction as laid down in the case of R –v- Coventry [1938] HCA 31; (1937-38) 59 C.L.R. 633. The test was first adopted and applied here in the case of R –v- Puis Piane [1975] PNGLR 52. Since then the Supreme Court has declared that it is the appropriate test to be followed in this jurisdiction in the case of Karo Gamoga –v- The State [1981] PNGLR 443, and to date the proposition is binding precedent. It is necessary to reprint in full the relevant part of the judgement delivered by Pratt J in the Gamoga case (supra) which restates the test in the R –v- Coventry case (supra). I quote at page 451:

"I am also of the view that the statement of law by the High Court of Australia in R. v. Coventry is appropriate to the circumstances of Papua New Guinea and is certainly not at odds with anything stated by the court of appeal in England. I particularly draw attention, for example, to the words of the joint judgement of Latham C.J., Rich. Dixon and McTiernan JJ. At pp.637 to 638:

"The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public...The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other users of the highway’... The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles."

Further at the bottom of page 638 and at the top of page 639 their Honours say:

"But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further the ‘manner of driving’ includes, in our opinion, all matters connected with the manner and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven."

In a separate judgement in the same case at p. 639, Starke J. points out that –

"Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public." "

Conclusion

On the established fact it is clear that the accused created the dangerous situation. His acts constituted danger. He swang and swerved the small vehicle whilst it was in full forward motion. The accused had no good reason for doing what he did. He thereby endangered the safety of all those in the vehicle, including himself. Putting it another way, had the accused not done what he did the deceased would not have been tossed or flung off the vehicle, which necessarily means the deceased would not have died in the way he did. The conduct of the accused at the relevant point in time was simply this: He was driving dangerously. He did more than drive heedlessly. He was reckless in the in the manner of the control of the vehicle. Needless to say the death of the deceased was a direct consequence of the manner his of driving.

Whether the accused’s mental focus on the job at hand was sufficiently adversely affected by the consumption of alcohol is, in the circumstances not necessary to determine. It would be an appropriate matter to be taken into account in sentencing. Whether the accused thought he was in adequate control of the vehicle is also not necessary to say. All that is required of this Court is to objectively gauge the manner of driving displayed by the accused at the relevant times in the context of the evidence.

His manner of driving is adequately borne out by the established facts. Therefore only one conclusion is open here, and that is that the accused drove the said vehicle dangerously thereby causing the death of the deceased. Consequently the accused is found guilty as charged.

Sergeant Major Single: Complainant
In Person: Defendant