Sam Manasseh v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 December 2011
• Citation: (2011) N4469
• Court: National Court
• Year: 2011
• Judgement Number: N4469

Full : CIA NO 102 0F 2008; Sam Manasseh v The State (2011) N4469

National Court: Cannings J

Judgment Delivered: 16 December 2011

N4469

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 102 0F 2008

SAM MANASSEH

Appellant

V

THE STATE

Respondent

Madang: Cannings J

2011: 23 September, 16 December

TRAFFIC OFFENCES – driving motor vehicle on public street without due care and attention: Motor Traffic Act, Section 17(2) – appeal against conviction – whether District Court properly considered competing evidence – alleged denial of natural justice – whether any error of law made by District Court in finding appellant guilty.

Two vehicles travelling in opposite directions collided on a straight stretch of road. The police investigated the incident soon after it happened and charged the driver of one of the vehicles, the appellant, with driving without due care and attention. The appellant was convicted by the District Court based on a finding of fact that he had left the left-hand side of the road immediately before the point of impact to avoid potholes and had not returned to the left-hand side of the road by the time that the other vehicle reached the point of impact. The appellant appealed against his conviction on 13 grounds, which may be summarised as being that the trial Magistrate erred in law by (a) conducting the proceedings improperly and contrary to the principles of natural justice; (b) giving insufficient weight to evidence of defence witnesses and improperly admitting evidence for the prosecution; (c) making an adverse assessment of the appellant’s eyesight without evidence; (d) shifting the burden of proof to the appellant; and (e) holding that the appellant had admitted the charge when, in fact, he pleaded not guilty.

Held:

(1) Ground (a) was dismissed as there was no evidence to support the allegation that the trial was conducted improperly or contrary to the principles of natural justice.

(2) Ground (b) was dismissed as the trial Magistrate carefully assessed all the evidence before the court.

(3) Ground (c) was upheld as there was no medical or scientific evidence before the court to warrant a finding that the appellant’s eyesight was poor.

(4) Ground (d) was dismissed as although one passage of the trial Magistrate’s judgment may suggest, if read literally and out of context, that the burden of disproving the charge had shifted to the appellant, this was not, in fact, the case.

(5) Ground (e) was dismissed as being frivolous.

(6) The trial Magistrate made one error of law but the error had no material effect on the finding that the appellant had driven without due care and attention. There was no substantial miscarriage of justice so the appeal was dismissed and the conviction confirmed as correct.

Cases cited

The following cases are cited in the judgment:

Danny Yai v Joseph Pindu (2009) N3630

Elison Javano v Samuel Lai (2010) N4140

Epeli Davinga v The State [1995] PNGLR 263

Evangelical Lutheran Church of New Guinea v Peninsula Hotels Pty Ltd [1977] PNGLR 147

Hami Yawari v Anderson Agiru (2008) SC939

Kutau v The State (2007) SC927

Kwame Okyere Boateng v The State [1990] PNGLR 342

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

SCR No 1 of 1980, Re s 22 of the Police Offences Act [1981] PNGLR 28

SCR No 2 of 1980; Re s 14 of the Summary Offences Act [1981] PNGLR 50

Sela Gipe v The State [2000] PNGLR 271

Siwi Bungo v John Robin (2011) N4195

Thomas Kavali v Thomas Hoihoi [1984] PNGLR 182

APPEAL

This was an appeal from a decision of the District Court finding a driver guilty of a motor traffic offence.

Counsel

G Anis, for the appellant

A Kupmain, for the respondent

16 December, 2011

1. CANNINGS J: This is an appeal against a decision of the Wewak District Court (Ms L Sani presiding) finding the appellant, Sam Manasseh, guilty of a traffic offence arising from a collision between two vehicles near Wewak. It was at 11.00 am on Thursday 7 February 2008 on a straight stretch of road near Passam Primary School that a collision occurred between:

· a Toyota Dyna PMV truck, with passengers aboard, driven by John Urambari, travelling from Wewak to Yangoru; and

· a Toyota Landcruiser utility, driven by the appellant, which had left Timbunke earlier in the morning and was heading into Wewak.

2. It was a partial head-on collision in the sense that each vehicle collided with the other on its right-hand front end. Both vehicles were damaged. The occupants of the vehicles suffered no serious injuries, though the appellant had to go to hospital for treatment for minor injuries received at the hands of passengers on the Dyna who assaulted him immediately after the collision. First Constable Alois Gabuor of Wewak Police Traffic Section arrived on the scene soon afterwards, interviewed the two drivers, conducted an investigation, determined that the appellant was at fault and charged him with one count of driving without due care and attention contrary to Section 17(2) of the Motor Traffic Act, which states:

A person who drives a motor vehicle on a public street without due care and attention, or without reasonable consideration for other road users, is guilty of an offence.

Penalty: A fine not exceeding K500.00.

3. The matter went to trial and the prosecution called three witnesses: the Dyna driver, Mr Urambari, his boss-crew, Fred Mango, and First Constable Gabuor. A sketch plan of the incident prepared by First Constable Gabuor was admitted into evidence. For the defence, the appellant gave sworn evidence and there were two other defence witnesses, passengers on the utility, Simon Kupati (the appellant’s off-sider) and Gabriel Wemon (sitting on the tray, behind the appellant). The court made a site visit after the close of evidence and before delivery of verdict. Sgt John Huaimbandi prosecuted the case. The appellant represented himself.

4. Her Worship considered the competing evidence about the point of impact (whether it was on the appellant’s side of the road or the Dyna’s side) and the speed of the two vehicles. She found that the point of impact was on the Dyna’s side of the road. The appellant had driven into the right-hand lane to avoid potholes and had failed to return fully to the left-hand side of the road by the time the Dyna came along. The appellant’s submission that the Dyna was speeding was rejected. The conclusion was reached that the prosecution had proven its case beyond reasonable doubt, that the appellant had caused the collision and that he was guilty of driving without due care and attention. The penalty imposed was a fine of K200.00, payable within three days, in default, one month imprisonment.

THE APPEAL

5. The notice of appeal states 13 grounds of appeal. They are prolix and repetitious but I will set them out verbatim before summarising them in a more manageable form.

6. The grounds of appeal are that:

1 The Learned Magistrate refused to accept from the appellant and his witnesses sworn affidavits and statements setting out the circumstances giving rise to the motor vehicle accident, which if admitted would have persuaded the Magistrate’s mind in respect of the finding of guilt, thus denying, the appellant his right to natural justice and the right to a fair hearing.

2 The Learned Magistrate had from the beginning of the proceedings, from mention to trial had made a number of detrimental and prejudicial remarks to the appellant with words to the effect that the appellant should admit the charges and that the statement of fact was overwhelming, thus placing herself in a position where she had already made up her mind in respect of the evidence at the outset.

3 The Learned Magistrate during the course of the trial had applied undue pressure on the appellant by spoken words and gestures:-

(a) by speaking in a loud rough tone voice to the appellant when addressing the appellant;

(b) with eyes wide open and looking straight into the appellant’s eyes thus causing the appellant great emotional and physiological stress in his defence and as a result the appellant decided to remain silent when cross-examining the respondent’s witnesses for fear of intimidation and reprisal from the Learned Magistrate, thus denying the appellant the opportunity to properly defend himself including producing photographs of the scene of the accident and the vehicle, which if produced, would have enabled the Court to have before it all necessary evidence;

(c) and in the process causing the whole of the trial to be conducted in a harsh and unfair manner, and furthermore causing grave injustice by way of breach of natural justice to the appellant and the opportunity to a fair trial.

4 The Learned Magistrate failed to give proper and due consideration to the appellant and his witnesses when their oral evidence was creditable and consistent with the accident scene when inspected.

5 The Court failed to inspect both motor vehicles, as the damage sustained to both vehicles had a bearing on how the vehicles were positioned immediately before the collision, and immediately after the collision and if inspected, the Court would have...