Francis Tarei v The State (2008) N3539

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 December 2008
• Citation: (2008) N3539
• Docket Number: CA NO 4 0F 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3539

Full Title: CA NO 4 0F 2008; Francis Tarei v The State (2008) N3539

National Court: Cannings J

Judgment Delivered: 11 December 2008

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CA NO 4 0F 2008

FRANCIS TAREI

Appellant

V

THE STATE

Respondent

Kimbe: Cannings J

2008: 16 October

11 December

APPEAL

CRIMINAL LAW – dangerous driving causing death – appeal against conviction in District Court.

The appellant was convicted by the District Court of an offence under Criminal Code, Section 328, of dangerous driving causing death. He appealed against his conviction on four grounds:

(1) the State witnesses gave contradictory evidence, which the magistrate failed to sufficiently take into account;

(2) procedural unfairness arising from the State being permitted to introduce two witnesses without sufficient notice being given to the defence;

(3) the magistrate erred by rejecting for insufficient reasons the evidence of two passengers in the vehicle driven by the appellant;

(4) the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel.

Held:

(1) There were no material inconsistencies in the evidence of the main State witnesses. The District Court did not err in its assessment of their evidence.

(2) The complaint that two State witnesses were introduced without sufficient notice being given to the defence was vague and poorly articulated. There is no reasonable inference of procedural unfairness arising from an examination of the District Court record.

(3) There was good reason for the magistrate to reject or at least give little weight to the written statements of the two passengers: they were friends of the appellant and more importantly they did not give oral evidence at the trial.

(4) The complaint that the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel was vague and poorly articulated. There is no reasonable inference of procedural unfairness arising from an examination of the District Court record.

(5) All grounds of the appeal were dismissed. The National Court was not satisfied that there has been any miscarriage of justice. The appeal was accordingly dismissed.

Cases cited

The following case is cited in the judgment:

John Beng v The State [1977] PNGLR 115

Abbreviations

The following abbreviations appear in the judgment:

CA – Criminal Appeal

J – Justice

N – National Court judgment

NBPOL – New Britain Palm Oil Limited

No – number

PNGLR – Papua New Guinea Law Reports

v – versus

APPEAL

This was an appeal from a decision of the District Court finding the appellant guilty of a criminal offence.

Counsel

T Gene, for the appellant

F Popeu, for the respondent

11 December, 2008

1. CANNINGS J: This is an appeal against a decision of the Kimbe District Court, constituted by Principal Magistrate, Mr Luke Vava, finding the appellant, Francis Tarei, guilty of the offence of dangerous driving causing death. Mr Tarei was sentenced to two years imprisonment. His appeal is only against his conviction, not the sentence.

THE DISTRICT COURT TRIAL

2. The appellant was found guilty of driving a Toyota Landcruiser dangerously in the early hours of Sunday 29 August 2004 on the Hoskins-Kimbe Highway, thereby causing the death of a 17-year-old pedestrian, Jeffery McKibben. The District Court found that the appellant had a night out at the San Remo club with two female friends, Emily Brown and Debora Nomi. They left San Remo and drove to Mosa to look for cigarettes but found none and headed back towards Kimbe. He was under the influence of liquor when the vehicle ran off the road at Morokea. He failed to negotiate a slight bend in the road, and the vehicle collided with Mr McKibben, who was walking on the side of the road, on the left side of his body, breaking his pelvis and causing internal injuries. The vehicle overturned. Mr McKibben died later that day from the injuries received in the collision.

3. The appellant was represented at the trial by Mr Oiveka of the Public Solicitor’s office. Police Prosecutor, Mr Sukena, ran the State’s case.

4. For the State, four witnesses gave oral evidence. James Baki and Peter John testified that they saw the appellant’s vehicle being driven at high speed and run off the road and hit Mr McKibben on his left side. Ruth Michael and Elizabeth Michael said that they arrived on the scene soon afterwards and saw the overturned vehicle and saw Mr McKibben lying on the side of the road, injured.

5. The main defence offered was that Mr McKibben was asleep on the road and the appellant veered off the road to avoid hitting him. The appellant gave an unsworn written statement to that effect. Ms Brown and Ms Nomi made similar statements to the police, which were admitted into evidence. However, none of them gave oral evidence.

6. Mr Vava gave little weight to the evidence of the female passengers, Ms Brown and Ms Nomi, as they were friends of the appellant, they had all attended the dance at the San Remo club and they all had the same employer, NBPOL. His Worship relied on the evidence of Mr Baki and Mr John, which confirmed that the appellant was driving at very high speed when he ran off the road and accidentally hit Mr McKibben, on his left side. His Worship rejected the defence case that Mr McKibben was sleeping in the middle of the road as there was “no evidence” to support this version of events.

7. His Worship concluded that the prosecution had proven its case beyond reasonable doubt. A conviction was entered under Sections 328(2) and (5) of the Criminal Code.

GROUNDS OF APPEAL

8. There are four grounds:

(1) the State witnesses gave contradictory evidence, which the magistrate failed to sufficiently take into account;

(2) procedural unfairness arising from the State being permitted to present two witnesses without sufficient notice being given to the defence;

(3) the magistrate erred by rejecting for insufficient reasons the evidence of the two passengers in the vehicle driven by the appellant;

(4) the magistrate erred by ordering the trial to proceed in the absence at a critical time of the defence counsel.

9. Before proceeding to address the four grounds, I need to explain why I regard them as forming the basis of the appeal as it is not possible to look at just one document to work out what the grounds of appeal actually are.

10. The notice of appeal filed on 5 February 2008 comprised three grounds of appeal. Another document, entitled ‘further grounds of appeal’ was filed on 28 May 2008. It consisted of 29 paragraphs, amongst which were some additional appeal points. But, really, the document is more of a submission than an appeal document.

11. At the hearing of the appeal, on 16 October 2008, the appellant’s counsel, Mr Gene, filed a written submission that referred to seven grounds of appeal, three of which he said were not being pursued. I have regarded the four remaining grounds as the grounds of appeal that must be determined.

GROUND 1: STATE WITNESSES GIVING CONTRADICTORY EVIDENCE

12. Mr Gene submitted that the evidence of Ruth Michael and Elizabeth Michael contradicted the evidence of James Baki and Peter John in three respects:

· the date on which the incident happened;

· the position in which the deceased was at the time of the incident; and

· how the incident happened.

13. It is correct that Ruth Michael and Elizabeth Michael gave confusing evidence about the date on which the incident occurred. Elizabeth Michael said it occurred on 28 October 2004, while Ruth Michael said it was 28 September 2004.

14. However, I do not consider the discrepancy in dates to be significant. It is clear from the nature of their written witness statements and their oral evidence to the District Court that both these witnesses knew the deceased personally. They were obviously giving evidence about the serious incident as a result of which the deceased lost his life. The fact that they have given wrong dates is inconsequential.

15. As to the alleged inconsistency in their evidence concerning the time of the incident and how it happened, neither Ruth Michael nor Elizabeth Michael gave direct evidence on these issues of fact. Their evidence was of hearing a crash and racing to the scene to see what had happened and finding an overturned vehicle and Mr McKibben lying on the side of the road. Their evidence does not contradict the evidence of James Baki or Peter John, which was eyewitness evidence of seeing the collision between the vehicle and Mr McKibben.

16. I dismiss this ground of appeal.

GROUND 2: PROCEDURAL UNFAIRNESS ARISING FROM INTRODUCTION OF TWO ADDITIONAL WITNESSES

17. The two additional witnesses are Ruth Michael and Elizabeth Michael. Mr Gene submits that the appellant was ambushed when the State, at the 11th hour, introduced these two women as additional witnesses. The argument is based on the contention that their witness statements did not form part of the court depositions and that the appellant and his counsel, Mr Oiveka, were given insufficient notice that they would be giving evidence. This is said to be a breach of the right to a fair trial, in particular a breach of Section 37(4)(c) of the Constitution, which provides that a person charged with an offence shall be given adequate time and facilities for the preparation of his defence.

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