DISTRICT COURT OF SAMOA

Police v Risiti [2014] WSDC 4

Case name: Police v Risiti
Citation: [2014] WSDC 4
Decision date: 30th July 2014
Parties: POLICE v SUITUPE RISITI, male of Palisi and Asau
Hearing date(s): 28th May 2014, 13th June 2014
File number(s): D2649/13, D4242/13, D4243/13 ...
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): DCJ Tuala-Warren
On appeal from:
Order:
Representation: 
Inspector Leuluaialii Malama Fauoo for Prosecution
Tuala Karanita Enari for Defendant
Catchwords: “tragic death of a young child”
Words and phrases:
Legislation cited:
Road Traffic Ordinance 1960,s39A,
Cases cited:
Police v Fata Maulolo Tavita [2011](unreported)
Director of Public Prosecutions (NSW) v Yeo and Anor  [2008] NSWSC 953
In Police v Papalii [2011] WSSC 138 (3 October 2011)
R v Ireland; R v Burstow [1998] AC 147, HL’.
Police v Lima [2014]WSSC
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE 

Informant 

AND:

SUITUPE RISITI, male of Palisi and Asau Savaii

Defendant 

Counsel:	Inspector Leuluaialii Malama Fauoo for Prosecution
		Tuala Karanita Enari for Defendant

Hearing: 	2 May 2014, 13 June 2014.

Decision: 	30 July 2014.

DECISION OF DCJ TUALA-WARREN
Introduction
1.	Amongst other things, this case involves the tragic death of a young child.  That immeasurable loss is acknowledged by the Court.
2.	It is beyond dispute that on the morning of 5 November 2013 the Defendant was driving a small goods delivery truck for M & J Ah Fook from Apia to Falefa.  A bus, named Galusina, was travelling in the opposite direction.  Sometime after 7.00am that morning, at a point between Solosolo and Luatuanuu, the truck and the bus passed one another.  At that instance Anthony Samoana lost his life and Pologa Isaako who was also a passenger on the bus, was injured.
3.	Anthony’s mother Faamamalu Samoana did not suffer any physical injuries but psychological injuries.

4.	Consequently the Defendant faces the following charges, all laid under s.39A of the Road Traffic Ordinance 1960:
(i)	Negligent driving causing the death of 11 year old Anthony Samoana (aka Emmanuel Anthony Samoana) of Falefa;

(ii)	Negligent driving causing bodily injury to 49 year old Faamamalu Samoana of Lalomauga and Falefa; and

(iii)	Negligent driving causing bodily injury to 21 year old Pologa Isaako of Lalomauga.  

Legal Principles
5.	Section 39A of the Road Traffic Ordinance 1960 provides as follows:
Negligent Driving Causing Death - A person commits an offence and is liable on conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 5 years who negligently or recklessly drives or rides a vehicle and thereby causes bodily injury to or the death of any person.
6.	In Police v Fata Maulolo Tavita (Unreported, District Court, 29 April 2011) His Honour, Judge Vaepule Vaemoa Va’ai held that in respect of negligent driving the issue is whether the accused breached the standard of care expected of a reasonable driver in the circumstances. 
7.	That approach is consistent with that taken by the New South Wales Supreme Court in Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953.  In that case Johnson J held at paragraph [27] that:
‘Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.’
8.	The Prosecution have the burden of proving each element of the charges beyond reasonable doubt.  In this particular case they must prove:
(i)	That the Defendant was driving a motor vehicle;
(ii)	That he did so negligently; and
(iii) 	Thereby caused the death of a person and/or bodily injury to other persons.
9.	As to the meaning of ‘bodily injury’ guidance can be taken from the interpretation by the Supreme Court of the term ‘grievous bodily harm’.  In Police v Papalii [2011] WSSC 138 (3 October 2011) at paragraph 32 the Chief Justice referred to Archbold 2006 at 19-206 where the learned authors held that ‘bodily harm includes psychiatric injury:  R v Ireland; R v Burstow [1998] AC 147, HL’.
10.	In Police v Lima (WSSC, 19 June 2014) Malosi J extended that to include psychological injury.
11.	There is no burden on the Defendant to prove his innocence, but as it turns out in this case he elected to give evidence.
Prosecution evidence
12.	There is no issue as to identity in this case or that the Defendant was driving a motor vehicle on the day in question.  He accepts he was the driver of an Isuzu delivery truck, License Plate number 6148.  For the sake of completeness the bus License Plate Number was MO 283.
13.	Likewise there is no dispute in respect of the medical evidence regarding Anthony’s injuries which led to his death.  He died instantly as a result of his head being crushed beyond recognition.  Upon impact his whole face was gone.  It was a gruesome scene which needs no further description.  The fact is Anthony lost his life.    
14.	In terms of the injuries sustained by Pologa, again it is accepted by the Defendant that Pologa sustained an open fracture of his right hand and an 11-12 cm laceration to his right forearm.
15.	The psychological injury suffered by Faamamalu was evident from her evidence. This was not disputed by the Defendant.
16.	The core issue in this case then is whether or not the Defendant was driving the truck negligently, thereby causing the death of Anthony and bodily injuries to Faamamalu and Pologa. 
17.	The Prosecution called 11 witnesses in total but it is not necessary for me to refer to all of them.
18.	In terms of who was where on the bus the following is agreed:
(i)	Onolima Taumai was the bus driver;
(ii)	Because the bus was full, Anthony was seated on his mother’s lap facing the front, on the right hand side of the bus (closest to the centre line of the road) three seats back from the front of the bus;
(iii)	Buncho Feauai was sitting right next to them on the aisle seat;
(iv)	Luaipou Lefaoseu was sitting directly behind them on the aisle seat;
(v)	Pologa was two seats back from Anthony and Faamamalu, on the right hand side of the bus also, on the window seat.
19.	Faamamalu’s evidence was that Anthony had his right hand up against an inside pole of the bus and was leaning his head onto it.  She had her right hand around his waist and was resting her head on his back.  They were both awake.
20.	Without warning she heard a bang and Anthony’s head flung back onto her left shoulder.  His face was gone.  He died instantly.
21.	Unsurprisingly, passengers on the bus started screaming and she just froze in shock. She held her son until Police arrived.  
22.	Buncho Feauai who was sitting right next to them also said he awake, and heard a bang just as the delivery truck was passing the bus.  He described it as sounding like a shotgun and recounted that immediately thereafter he saw the child next to him without a face.  He did not consider that the bus was speeding or that it was full on that morning.  
23.	The bus driver, Onolima Taumai said that as the bus approached Solosolo he saw the delivery truck heading towards them on a straight section of the road.  The truck was speeding and he tried to move the bus over to the left side of his lane as the truck was heading towards them on their side of the road. 
24.	His evidence was that the truck was speeding and encroaching on his side of the road.  Consequently Onolima said he tried to move over as far as he could to the left.  Under cross examination by Mr Enari, he was adamant that the incident occurred on a straight stretch of road and that the truck had crossed over onto the side of the road the bus was travelling along.  
25.	As the two vehicles passed he said he was shocked to hear a bang after which he then heard screams.  Confusion reigned.  Passengers were yelling out different instructions to him.  He eventually stopped the bus.  The Defendant stopped too.  Shortly thereafter the Defendant was on the scene.
26.	Onolima accepted that although he had a driver’s licence it was not one which allowed him to drive a bus.  
27.	Luaipou Lefaoseu who was sitting behind Anthony and his mother, on the aisle seat said she saw a truck pass the bus and then she heard a loud noise akin to something breaking.  She then described blood splattered all over passengers, including her and them screaming.

28.	Pologa Isaako was sitting five seats back from the driver on the right hand side of the bus next to the window, two seats back from Anthony and his mother.  His right arm was resting on the window.  He too said he heard a bang, then his forearm was struck by the mirror of the truck and his fingers scrapped by the back end of the truck.  He suffered an open fracture of the right hand and an 11-12 cm laceration on the right forearm.
29.	All of these witnesses said the bus was not speeding, rather travelling at normal speed.  
30.	Senior Sergeant Sekai, who has been in the Ministry of Police for 20 years, led a team of three officers to the scene as a result of an emergency call.  When he arrived at Solosolo, the bus was parked on the left hand side of the road facing Apia.  Anthony’s mother was sitting on the bus holding Anthony across her legs.  His face was covered with a lavalava. 
31.	He described the inside of the bus as being splattered all over with blood.  He saw what looked like teeth, brain tissue, hard plastic matter and mirror fragments on the floor of the bus. He also drew a sketch plan (Exhibit P7) which showed fragments of the mirror of the bus on the side of the road.
 32.	Constable Junior Afereti took photos of the scene about 40 minutes after the accident occurred.  
Defence evidence 
33.	There is no dispute that on the morning of 5 November 2013 the Defendant was driving a truck from Apia to Falefa to deliver soft drinks, beer and cigarettes.  The truck was a left hand drive so he was closest to the sea side of the road.  George Kenison was seated right next to the Defendant, and Faapau Feiloai to the immediate right of George, closest to the right hand window.  Tinoifili Tiomai was seated directly behind George.  All of them gave evidence.     
34.	The Defendant’s evidence was that he first saw the bus come around a bend over the centre line about 100 metres away.  According to him the incident occurred on a straight section of the road at Solosolo.   On the one hand he recounted that he said to the others in the truck that the bus was coming towards them in their lane, meaning the bus had crossed onto the truck’s lane but on the other he said that when the bus was about 50 metres away Faapau told him twice to move to the side of the road to avoid the bus but he said he was unable to do so otherwise the truck ‘would fall off the road’.  Under cross examination however, he accepted that in fact there was sufficient flat grass area on the side to be able to move and avoid a collision.

35.	As the two vehicles passed one another the Defendant said he heard a bang, looked back and saw the bus had not stopped so he turned his truck around.  By this time the bus was stationary and he parked behind it.  When he got out of his truck someone tried to beat him up, so he got back in and headed towards Apia.  
36.	The Defendant identified the truck he drove in Photo 07 which shows a missing mirror on the front right hand side.  He confirmed that this is the side of the truck which swiped the bus, and as a result the front right hand side mirror was broken off.
37.	Tinoifili Tiomai has worked at M & J Ah Fook for 6 years. The defendant has been working there for 3 years.  He was sitting in the back seat of the truck.  I accept that meant he had a clear view of the road.  His evidence was that the bus was speeding towards them and had crossed the centre line into their lane.  He also said Faapau told the Defendant to move the truck over to avoid the bus.  According to him the truck then swiped the side of the bus (oloia) and the truck swerved away.
38.	He says that this accident occurred as the bus rounded the bend of the road and impact occurred on the actual bend section of the road. He marked that point on Photo 1a during his evidence.
39.	George Kenison who was also in the truck, right next to the Defendant, has worked with him since October 2013.  He described 5 November 2013 as a clear morning.  He said he saw the bus approaching at Solosolo on their side of the road.  He called to the others to look out for the bus but was not sure if anyone else said anything.  He described the bus as speeding and thought if the truck did not swerve there would be a collision. He says that their truck went off the road to try to avoid the bus. 
40.	Faapau Feiloai has been working at M & J Ah Fook for one and a half years.  He was sitting in the front too, on the far right side of the truck, closest to the center line.  He said that from 50 metres away he could see the bus coming towards their truck on their side of the road. He also said that he called out twice to the Defendant to move their truck to the side to avoid the bus which had crossed onto their side of the road. 
Discussion
41.	Crucially, the Defence position that the bus was speeding and had crossed the centre line was not put to any of the Prosecution witnesses.  The first the Court heard of this was when the Defendant and his co-workers gave evidence.  

42.	I take into account that the Defendant and his three witnesses have worked together for some time.  They drove back into Apia immediately after the incident, before any interviews with the Police, and had ample opportunity to compare notes as it were.   It was only when they got to Faatoia that they dispersed, and Tonoifili accompanied the Police back to the scene.
43.	As it turned out he was the only witness in the whole case who described the point of impact occurring on a bend in the road as opposed to a straight stretch which is what all of the other witnesses agreed upon.  I find that Tonoifili’s evidence on this point was motivated by a desire to reinforce the fault of the bus driver, ie if the point of impact happened as the bus rounded a bend, it would be more plausible that the bus was at fault.  I am bound to say that this strategy back fired.
44.	The desire of the Defendant’s co-workers to protect him is on one hand an admirable one, and on the other deplorable.
45.	In contrast I find that the bus driver and passengers who gave evidence had no reason to be anything other than truthful.  None of them knew Anthony or his mother before that fateful day.  
46.	I prefer the evidence of the Prosecution witnesses over any of the Defence witnesses.  
47.	The damage to the truck and bus, as evidenced by the photographs produced by the Prosecution is consistent with the account of the incident outlined by the Prosecution.
48.	The truck sustained damage to its front right hand side mirror.  Part of the mirror was found inside the bus.  The front of the bus was undamaged.  However, scratches were photographed on the bus above the petrol gage, in the middle of the bus where Anthony and his mother were seated.
49.	I find that at all relevant times the bus was being driven in a safe manner, despite the bus driver not having a bus driver’s license.  I reject the evidence that he was speeding and had crossed the centre line.  
50.	I find that no part of Anthony’s body was outside of the bus prior to the point of impact.
51.	I accept the Prosecution evidence that it was the truck, being driven by the Defendant, that crossed the centre line on a straight stretch of road, and that the bus driver had no room to move in order to take sufficient evasive action.

52.	As the two vehicles passed one another, I find that the right hand side mirror of the truck swiped the right hand side of the bus, which accounts for the loud bang witnesses heard, and that mirror then tragically hit Anthony in the face causing his instant death.  
53.	I find that same mirror then hit Pologa’s right forearm and his fingers were scrapped by a piece of steel which was sticking out from the back right hand side of the  truck, which was shown in Photograph 11 with blood and a thick white substance on it, both of which I accept are from his injured arm.
54.	There is nothing in the Prosecution evidence which establishes any physical bodily injuries to Faamamalu.  The psychological distress to her however, was immeasurable and was clearly evident on the day of hearing as she gave her evidence. The untimely and gruesome way in which her son was killed  will no doubt haunt her for the rest of her life.  I am satisfied that impact falls within the definition of bodily injury.
Result
55.	For all of the above reasons I am satisfied beyond reasonable doubt that the Defendant breached the standard of care expected of an ordinary prudent driver in the circumstances.
56.	Accordingly, I am satisfied beyond reasonable doubt that all elements of each charge have been made out beyond reasonable doubt.
57.	I therefore find the Defendant guilty of all charges.

......……………………….......
Judge Leilani Tuala-Warren