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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRRICT COURT OF JUSTICE]
TRAFFIC COURT
TRF 431 of 2021
BETWEEN
POLICE
Informant
AND
DAVID PISA
Defendant
Lae: J Morog
2022: 24th & 31st October; 30th November
TRIAL- Traffic Offence – careless and negligent driving – section 40 (1) – Road Traffic Act 2014 – heavy rain downpour – very low visibility – collision with stationary truck – assessment of evidence – common sense and logic – weight of sworn testimony and out of court statement.
Cases Cited:
Nare & Toropo v State (2022) SC2294
The State v. Tom Morris (1981) SC528
State v Ango (2010) N4034 & State v Kaole (2009) N3842
References:
Road Traffic Act 2014
Counsel:
First Constable Deilynne Kiungu, for the Informant
Mr. Johnah Langah, for the Defendant
30 November 2022
1. J Morog: Mr. John Pono the Managing Director of Fresh Produce Development Agency (FPDA) based in Goroka and his wife were travelling to Lae from Goroka on Friday the 19th of November 2021 in a Toyota Ten Seater Land Cruiser (Land Cruiser) with iron bumper in front. Mr Mala Ahi his Finance & Administration Manager was in their convoy and travelling ahead of them.
2. The defendant was driving a Semi-Trailer Truck (Truck) with heavy load of Chromite from Ramu Nickel Mining in Madang and he was going to Lae.
3. Between 8 to 9 pm the Land Cruiser was travelling at 90km/hr and collided into the back of the truck when it stopped and was giving at the back of two other trucks that broke down and were parked in the road. The front of the land cruiser was smashed. It was raining heavily, steam was rising from the bitumen surface and visibility was very poor that night.
ISSUE
LAW
4. Sections 40 and 41 of the Road Traffic Act 2014 provides as follows;
40. CARELESS AND NEGLIGENT DRIVING.
(1) A person who drives a motor vehicle in a careless or negligent manner on a public street is guilty of an offence.
Penalty: A fine not exceeding K6,000.00.
41. MATTERS FOR CONSIDERATION FOR SECTIONS 39 AND 40.
In considering whether an offence has been committed under Sections 39 and 40, a court must have regard to all the circumstances of the case, including -
(a) the nature, condition and use of the place in which the offence is alleged to have been committed; and
(b) the amount of traffic that was or might reasonably have been expected at the time to have been in the place where the offence is alleged to have been committed.
5. In assessment of the witness evidence the guiding principle is that common sense and logic are the major determining yardstick in accepting evidence. This was recently reaffirmed in the case of Nare & Toropo v State (2022) SC 2294.
6. The court also has authority that it can either accept or reject evidence both by the prosecution and the defence on the basis of whether the evidence is credible or not. This is settled law in the case of The State v. Tom Morris [1981] SC 528.
EVIDENCE
In the Police Case four witnesses were called and I summarise their relevant evidence.
FC Jacintha Singol
7. She is the police woman who visited crime scene about 3 days after the collision and did the sketch map. She found in her investigation that there were three semi-trailer trucks stationary or parked on the lane coming down to Lae before the Umi Bridge in Markham along the Bruce Jephcorth Highway.
John Pono
8. He is the Company Secretary & Executive Manager of Fresh Produce Development Agency (FPDA) based in Goroka, Eastern Highlands Province.
9. He left Goroka with wife around 4pm and had collision just before the Umi Bridge at around 8:45 pm. It was raining heavily and the visibility was very low and he was driving at 90km/hr.
10. Before the collision he saw a tail light of a vehicle somewhere in front and as he drove on he was caught by surprise to see a truck in front of him and was late to slow down or apply his breaks so he collided straight into the back of the truck.
11. He was shocked and when he regained consciousness he did not see the truck in front of him. The truck that he collided into had moved.
Elsie Pono
12. She is the wife of Mr John Pono and she was travelling with her husband to Lae from Goroka. She was seated on the offside and she said it was raining heavily, it was very hard to see and also steam was rising from the bitumen. She also says that the truck parked in the road without lights or cones.
Mala Ahi
13. Mr Ahi said he saw three trucks parked in straight line. He stopped at their back to give way to an oncoming vehicle for about two minutes. It was drizzling and the time was about 8:12 pm because he texted his family on his phone at 8:00pm when he passed Watarais Junction. He says the truck at the back had no lights and there were no cones or lights indicating the parked trucks.
Defence Case
David Pisa
14. Mr Pisa said all his lights were working because they have strict policy at Mine Site Safety so his truck had all lights including the revolving light. If one or any of his lights were faulty then the company would not have been allowed his truck in and load chromite. He was returning from the mine site with full load of chromite and driving slowly.
15. Two other similar trucks to his truck broke down and were parked at the scene. He stopped at the back of them to give way to an oncoming Coaster Bus. There were cones in front of him. He saw in his rear mirror the Land Cruiser speeding up and bumped into his rear. In fear of his safety, in case of injuries or death to the occupants of the Land Cruiser others might attack him so he pulled out and parked further down in front of the two trucks. He waited to confirm any casualties and then he came down and met the couple who were okay.
16. He said his escort car was in front of the trucks and after the collision they all came back and the driver of the escort car used Mrs Pono’s phone to take pictures of the damaged land cruiser.
FINDING/RULING
16. One of the main fact in issue here is whether the truck driven by the defendant had its lights on or not? I find that all his lights were working properly and so he passed through the strict mining policies and loaded its cargo (chromite) and was travelling to Lae. So did he switch off his lights when he was stationary behind the two broken down trucks?
17. All the prosecution witnesses say that the defendant had no lights on. Mr Ahi said he passed by his boss and his wife at Faniufa and by the time he arrived at Watarais Junction it was dark and he texted his family and the time was 8pm. It was drizzling when he passed the three trucks and the time was 8:12pm and he gave way to an oncoming vehicle by stopping behind the trucks.
18. Mr Pono said Mr Ahi was 15 to 20 minutes ahead of him and he estimated the time of collision at 8:45pm. So Mr Ahi would have passed by the defendant about 33 minutes and gone before his boss came within proximity to the defendant. Mr Pono also testified that before the collision he saw tail light of a car in front of him and I find that it would not be Mr Ahi’s vehicle because by then he was gone.
19. So what vehicle’s tail light did Mr Pono see just before the collision? Minutes before the collision the most probable vehicles in the vicinity were the two broken down trucks, the defendant’s truck and his escort vehicle. I find that the tail light seen by Mr Pono was the defendant’s truck.
20. The prosecution did not provide any inspection report on the defendant’s truck to ascertain any faulty lights soon after the collision so I rule out the possibility of faulty lights in light of the defendant’s evidence that due to strict mining policy his lights were all working properly.
21. The defendant testified that he came and stopped behind two broken down Mapai Trucks to give way to an oncoming Coaster Bus and all his lights were ON.
22. By the authority of The State v. Tom Morris, I reject the evidence of Mr Ahi that all three trucks were parked with no lights on. The defendant’s truck was not broken down. It was carrying load to Lae and it is incredible to say that at night and under rainy condition would someone switch off all lights and stop unless it was broken down. The defendant confirmed the statement of Mr Pono that after collision he pulled out and stopped further down so his (defendant) truck was okay. Also Mr Ahi is not entirely an independent witness because the complainant is his boss in his employment so I am not convinced by his assertion.
23. Common sense and logic in the circumstances of this case would require a driver to drive with low beam and slowly under heavy down pour and poor visibility. I find that the land cruiser was at high speed to have sustained such a big damage to its bumper and engine as depicted by the photograph (Exhibit P6 (a) (b) & (c).
24. If it was a head on collision with another oncoming vehicle then it would have made sense to sustain such damage due to impact of two moving together in collision. In this case the truck was stationary and it suffices that the land cruiser sped into its back as it was testified by the defendant.
25. I note the submission by the prosecution about the prior inconsistent statement of the defendant but I do not place weight on the assertion that Mr Pono was remorseful after the collision and that fact is not part of my finding.
26. I accept and rely on the testimony of the defendant and I find assistance in the line of case laws supporting the practice in assessing and weighing evidence that the sworn testimony of witnesses that was subjected to cross examination carries more weight than their record of interview or out of court statements to the police.
27. In the cases of State v Ango (2010) N4034 and State v Kaole (2009) N3842 the Courts reasoned that sworn testimonies of witnesses/accused persons shall be given more weight. Also the same principles were held that sworn evidence carries more weight than an out of court statement because that is being tested or untested in cross examination in the unreported cases of The State v Ali Kei Paiya CR No 478 of 2004, 09.08.05 by, Sawong J and The State v Martin Maso Naipo CR No 92 of 2004, 21.06.05 by Kirriwom J both in Lae.
28. I find that in substance the statement of the defendant corroborates his testimony except the part where he states that Mr Pono was remorseful and accepted responsibility of the accident. That was not put to Mr Pono and rightly the prosecution says that is in breach of Brown and Dunn Rule. However, the statement in its entirety corroborates the defence case as to the reason for parking in the road and that his lights were all ON at all material times.
29. All the prosecution witnesses are not independent witnesses and their assertion that the defendant would, under heavy down pour of rain and very low visibility conditions in the night, switch off all his lights and just stop in the road. To accept that would defy logic and common sense. I give less weight to their evidence as compared to the evidence of the defendant.
30. Therefore, I rule that the prosecution has failed to prove beyond reasonable doubt that the defendant drove in a careless or negligent manner as alleged. The truck stopped to give way on the oncoming vehicle because there were two broken down trucks parked on his lane which is not his fault. There is also some doubt that his lights were switched off under extreme weather conditions in the night.
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URL: http://www.paclii.org/pg/cases/PGDC/2022/126.html