DISTRICT COURT OF SAMOA

Police v Kerslake [2014] WSDC 5

Case name: 	Police v Kerslake	
		
Citation: 	[2014] WSDC 5	
		
Decision date: 	11th April 2014	
		
Parties: 	POLICE v YVETTE KERSLAKE, female of Vaiala	
		
Hearing date(s): 	28th February 2014	
		
File number(s): 	D3008/13, D3009/13	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Mulinuu	
		
Judge(s): 	DCJ Tuala-Warren	
		
On appeal from:		
		
Order:		
		
Representation: 	Senior Sergeant Kenneth Komiti for Prosecution 
Mr Shane Wulf for Defendant	
		
Catchwords: 		
		
Words and phrases:	“negligent driving causing bodily injuries”	
		
Legislation cited:	Road Traffic Ordinance 1960, s39A, s39(1), Regulation 109(2)(c)	
		
Cases cited:	Police v Fata Maulolo Tavita [2011](unreported)
Director of Public Prosecutions (NSW) v Yeo and Anor  [2008] NSWSC 953	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE 

Informant 

AND:

YVETTE KERSLAKE, female of Vaiala

Defendant 

Counsel:	Senior Sergeant Kenneth Komiti for Prosecution
		Mr Shane Wulf for Defendant.

Hearing: 	28th February 2014.

Decision: 	11th April 2014

DECISION OF DCJ TUALA-WARREN
The Charges
1.	The defendant is charged under Section 39A of the Road Traffic Ordinance 1960 with negligent driving causing bodily injuries to Avii Sauaso,(“the complainant”’) a petrol station attendant at Leifiifi Petrol Station.  She is also charged in the alternative with Dangerous Driving under section 39(1) of the Road Traffic Ordinance 1960.  
2.	The two charges arose out of a traffic incident that the Police allege occurred on Ifiifi Road at Malifa on 24 May 2013 between 10am and 11am. The defendant’s car  crashed into the petrol station at Leifiifi injuring the complainant.
3.	The traffic incident occurred on Ifiifi Road, the main arterial road from the hospital to town. It is a two way road with two lanes heading inland towards the hospital and two lanes heading seaward from the hospital into town. The road heading inland is on a gradual incline. The road heading seaward is on a gradual slope. When heading seaward, there is a raised pedestrian crossing or a speed bump just before the Leifiifi Petrol Station on the left and Malifa Primary School on the right. 
4.	Sometime between 10am and 11am in the morning of 24 May 2013, both the defendant’s car and the car driven by Maeli Atiae were travelling seaward. When the defendant’s car came to the raised pedestrian crossing, she turned left into the petrol station and was hit from behind by the car driven by Maeli Atiae. The defendant’s car had been on the inside lane closest to the centre line and the car driven by Maeli Atiae was on the outside lane.  
5.	The defendant’s car hit the complainant who was standing next to one of the pumps. Both the complainant and the pump were knocked over by the defendant’s car. The defendant took no issue with the medical report explaining the complainant’s injuries. The complainant sustained severe injuries to both lower legs. His left leg was severely crushed below the knee and was amputated. His right leg sustained fractures to the lower leg and open fractures to the ankle. His right leg was fixed internally with plate and screws.
6.	Maeli Atiae, the driver of the second vehicle licence plate number 12521, was charged with dangerous driving and driving without a licence. He pleaded guilty to both charges and was sentenced by this Court prior to this hearing. I do not know what sentence was given.
Law
7.	The defendant is charged under two sections of the Road Traffic Ordinance 1960, sections 39A and 39(1);
Section 39A 
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.

Section 39 
Reckless or Dangerous Driving –(1) If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition, and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, the person commits an offence and is liable upon conviction to a fine not exceeding 10 penalty units and to imprisonment for 2 years.
8.	I shall deal first with the Negligent driving causing injury charge followed by the dangerous driving charge (if necessary)
Meaning of Negligent Driving
9.	In the case of Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011), his Honour Judge Vaepule Vaemoa Va’ai stated that in regards to negligent driving, the issue is whether the accused breached the standard of care expected of a reasonable driver in the circumstances. Overseas authorities have also defined ‘negligent driving’ in a similar way. I have provided the meaning of ‘negligent driving’ taken from the New South Wales Supreme Court which is right on point on the meaning of ‘negligent driving’. 
10.	His Honour Johnson J in Director of Public Prosecutions (NSW) v Yeo and Anor  [2008] NSWSC 953, said at [27]:
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.
11.	Essentially therefore the test in determining whether the standard of care was breached is that of the reasonable driver in the circumstances.
The Issue for determination
12.	The burden is on the Prosecution to prove each element of both charges beyond a reasonable doubt. In respect of the primary charge, the Prosecution must prove that the defendant; 
a.	drives a vehicle; 
b.	negligently;
c.	which causes bodily harm to any person. 
So far as the alternative charge is concerned, the Prosecution must prove that the defendant;
d.	 drives a motor vehicle on a road;
e.	 Recklessly; or
f.	Dangerously to the public, having regard to all the circumstances of the case including the nature, condition, and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road.
13.	In this case it is undisputed that;1
1.	The defendant was the driver of a dark tuscon vehicle,  licence plate number 7706; and
2.	The complainant sustained bodily injuries as a result of the defendant’s car hitting him, namely, his left leg was severely crushed below the knee and was amputated and his right leg sustained fractures to the lower leg and open fractures to the ankle and has been fixed internally with plate and screws; and
3.	This occurred on 24 May 2012 between 10am and 11am at the Leifiifi Petrol Station.
14.	The only issue for this Court is whether there was negligence on the part of the Defendant which caused her car to hit the complainant or in the alternative did the defendant drive recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition, and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road.
15.	There is no burden on the Defendant to prove her innocence. However on this occasion, she chose to give evidence. 
The Hearing
The Evidence of the Prosecution
16.	At the hearing of this matter, the Prosecution called five witnesses. They were Sauaso Talivaa, Avii Sauaso, Ta Salu, Maeli Atiae, and Iosefatu Toleafoa. I will only deal with the evidence which goes directly to the issue for determination.
17.	The main witness for the Prosecution is Maeli Atiae who says that on 24 May 2013, he was on his way from the hospital travelling to Faleula in a rental car belonging to his boss. He had his boss and her three children in the car with him. They had been to see a doctor at the hospital. Their car was on the outside lane travelling towards Apia. There was a tuscon on the inside lane travelling just ahead of their car. As soon as their car reached the raised pedestrian crossing at Leifiifi, the tuscon suddenly crossed his lane, over the raised pedestrian crossing.  He said he tried to swerve to the right to avoid a collision but his car crashed into the back left side bumper of the tuscon. The tuscon then continued towards the petrol station. He did not see any indicator light from the tuscon to turn left. He turned his car off immediately and then slid it down to in front of the Anglican Church. He got out, flagged down a taxi and took his boss and her children back to the hospital as he was concerned that the children had been hurt.  He maintains that he was travelling at about 15 mph prior to the crash and that the tuscon was probably travelling at around 20 mph. He did not have a drivers license at the time of the accident. It was brought out during cross examination that he had been charged with having no drivers license and dangerous driving. He pleaded guilty and has been sentenced. He maintained under cross examination that he was not going too fast, it was the defendant’s car that was going too fast and which crossed his lane at the same speed at which she was travelling at on the road just ahead of him on the inside lane. 
18.	The witness Ta Salu, who is a petrol station attendant, heard a bang, saw a tuscon on the raised pedestrian crossing and then saw the tuscon heading really fast towards the petrol station. He next saw Avii lying on the ground and the tuscon against the pole of the petrol station. One of the poles of the petrol station had been bent and the pump had also fallen down.
19.	Ta Salu confirms that there were two cars travelling towards town. The tuscon was on the inside lane closest to the centre line and another car was in the outside lane. He identified the car on the outside lane from photos as the car driven by Maeli Atiae and the tuscon as the car driven by the defendant.
20.	The witness Iosefatu Toleafoa was inside a TV3 car waiting for petrol when he heard a bang from the road to his right. When he looked to the road, he saw a car coming towards the petrol station. He heard another bang and the petrol station roof fell onto the TV3 car as the car crashed into the petrol station. He then drove away and parked in front of the Anglican Church. He identified the car which had crashed into the petrol station as the defendant’s car from photos. He also identified the car driven by Maeli from photos as that which was parked in front of the Anglican Church, just down from where the TV3 car was parked.
21.	Avii Sauaso, the complainant, had his back to the road and he was just about to fill up the TV3 car with petrol when he heard a bang from the road behind him. He turned around and saw a car coming towards him. He tried to jump up but it was too late. The car crashed into him, crushing him against the pump. He and the pump both fell to the ground. 
Evidence of the Defendant
22.	I accept that the Defendant left home for the petrol station at Leifiifi to put petrol into the car that she was driving which was a tuscon.  I accept that she was driving on the inside lane heading towards Apia when she came out of the cross road at Motootua. She says that when she got close to the petrol station, she indicated, checked her mirrors, crossed the outside lane and turned left into the petrol station. She said that the engine of her car was inside the driveway to the petrol station when her car was suddenly hit from behind. She said she tried to stop her car when she was hit from behind but the push from the car which hit her from behind was too strong and caused her to crash into the petrol station.
23.	The defendant said that when she turned right onto the main road from the hospital and travelled towards town, she did not see another car coming up behind her from the hospital, she only saw cars in front of her. She denies speeding, and suggests that Maeli Atiae must have been speeding from the hospital to suddenly crash into the back of her car. It was put to her by Prosecution that she did not see the car driven by Maeli because the car driven by Maeli is low and the tuscon that she was driving is high. She denies having seen Maeli’s car at all and did not know which car had hit her.
Submission
24.	Counsel for the defendant submitted that the Prosecution did not prove beyond a reasonable doubt that the accused drove her vehicle negligently. He submits that in fact the accused would not have crashed into the petrol station but for Maeli crashing into her vehicle. He submits that the accused was not negligent and in fact she tried everything to avoid the collision with the petrol station by trying to stop her vehicle. He submits that unfortunately the force of the impact caused her vehicle to smash into the petrol station resulting in the injury caused to Avii. 
Discussion
25.	The Court is inclined to believe the evidence of Maeli Atiae. His case has been disposed with in the District Court so he has nothing to gain or lose by giving anything other than a truthful account at this hearing. It is entirely plausible that after the crash, he was concerned for the three children inside his car, and therefore wanted to take them back to the hospital. He would also have been scared about the fact that he did not have a driver’s licence. I accept that he was not aware of anyone getting hurt at the petrol station. As to the issue of speed raised by defence counsel, under Regulation 109(2)(c) of the Road Traffic Regulations 1961,  the speed limit when passing any school (which in this case is Malifa Primary School) is 15 mph, at a time when pupils are going to or leaving school. The time of the incident was between 10am and 11am, when pupils are already in class. In any event I find that Maeli Atiae was travelling no faster than 15 mph.  
26.	The defendant’s evidence is that she was on her way from home to the petrol station at Leifiifi to put petrol into the car that she was driving. But once she turned right onto the main arterial road heading towards town, she drove on the inside lane of that two lane road leading to the petrol station. The inside lane is the lane closest to the centre line. This is not the action of a reasonable prudent driver. She is aware that the petrol station is on the left hand side of the road when she is travelling towards town and should have been driving on the outside lane, making a left turn easier and safer. The crossing of an entire lane to turn left is risky in itself. The crossing of the outside lane also took place on the raised pedestrian crossing. She maintains that she did not see the car driven by Maeli Atiae when she turned left. This is plausible as the car driven by Maeli Atiae was most likely in her blind spot and did not show up in her mirrors. This is why she got a shock when the car driven by Maeli Atiae hit the back of her car. Her suggestion that the car driven by Maeli Atiae turned up suddenly after she had checked her mirrors is implausible. She said she indicated to turn left, checked her mirrors, crossed the outside lane and then entered the driveway of the petrol station when she was suddenly hit from behind.  This would have taken a matter of seconds.  If the car driven by Maeli Atiae had been speeding from the hospital, she would at least have seen it in her mirrors as the road behind her is on a gradual incline and she would have been able to see in her mirrors any car coming from some distance behind her. The defendant said that it was all clear when she checked her mirrors. This means that Maeli Atiae would have taken seconds to come from the hospital to crash into the defendant’s car at Leifiifi.  She maintains that she never saw any other car behind her until she felt a car hit the back of her car. Even if the engine of the defendant’s car was in the driveway of the petrol station, the rest of the car would still be on the road, making it plausible that the left side bumper of the defendant’s car was hit. 
27.	I find that the defendant failed to keep a proper look out in all the circumstances, the circumstances being that she was crossing an entire outside lane to make a left turn on a main road, when there was a car travelling on the outside lane. Her failure to do so falls below the standard expected of a reasonably prudent driver. A reasonably prudent driver would have used the outside lane if she was intending to turn off to the left and in any event would have carefully checked her outside lane when crossing it. That failure amounts to criminal negligence. The defendant’s negligence in not carefully checking her outside lane before crossing it, led to the defendant’s car being hit on the back left side bumper by the car driven by Maeli Atiae. 
28.	I accept that the extensive damage to the petrol station with the fallen pump and bent pole indicates the fast speed of the defendant’s car. There would have been some momentum caused by Maeli Atiae’s car hitting the back of the defendant’s car.  This is to be expected when a car is hit from behind. However I find that the defendant was already travelling too fast when she crossed the outside lane and entered the driveway of the petrol station. The speed at which the defendant crossed the outside lane is the speed with which she hit the complainant.
29.	I accept that there were two cars on the road travelling in the direction of town. This is the evidence of Ta Salu. He heard a bang and looked to see the defendant’s car on the raised pedestrian crossing and another car on the outside lane. He did not see what happened to cause the bang but his evidence is crucial because it establishes that there were two cars, the defendant’s car and the car driven by Maeli Atiae which he identified from photos.
30.	At that time of the day, being mid morning, it is expected that there are other road users on that road as it is the main arterial road connecting the hospital and town and has several schools and a petrol station.
Decision
31.	In relation to the primary charge, I find beyond reasonable doubt the following:
a.	The defendant drove a vehicle, namely a tuscon license plate number 7706;
b.	the defendant’s car which was travelling on the inside lane closest to the centre line, crossed an entire outside lane suddenly in front of the car driven by Maeli Atiae to turn left, without carefully checking her outside lane. She crossed the outside lane over a raised pedestrian crossing. This caused the car driven by Maeli Atiae, which was on the outside lane to crash into the back left side bumper of the defendant’s car; and
c.	the defendant’s car then crashed into the complainant causing bodily injuries.

32.	I therefore find the defendant, Yvette Kerslake guilty of negligent driving causing bodily injuries to Avii Sauaso.
33.	 Given the above, I do not need to consider the alternative charge of dangerous driving and I dismiss that charge.

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