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Police v Tevaga [2015] WSDC 10 (24 April 2015)

DISTRICT COURT OF SAMOA
Police v Tevaga [2015] WSDC 10

DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

PESETA VAIFOU TEVAGA, male of Vaitele fou and Samalaeulu.
Defendant

Prosecutor & Counsel:
Insp. Leulua’iali’i M. Fauoo and Ms B. Lo Tam – Faafiti for the Prosecution
Mr Te’o R. Fa’ai’uaso for the Defendant.

Hearing: 18^th March 2015.

Decision: 24^th April 2015.

DECISION OF JUDGE ROMA

Charges

1. The accused faces two (2) traffic violation charges under the Road Traffic Ordinance 1960. Both arise out of an incident at the four corner intersection and traffic lights at Maluafou infront of Bluesky Samoa’s main office in the early hours of the 9^th August 2014.
2. The first and more serious is Information D1890/14 alleging that the accused was driving a vehicle registered number MPMC06 whilst the proportion of alcohol in his breath exceeded 40 micrograms of alcohol per 100 millilitres of breath. The charging provision is section 40(1)&(5).
3. The second, Information D1896/14, is one of Dangerous Driving pursuant to section 39(1). Specifically, the information alleges the accused’s failure to comply with the traffic lights.

Evidence

4. The prosecution called 7 witnesses, 4 are police officers. Constables Nepa Papalii and Junior Afereti are employed in the Forensic Division. After the incident, they took photos of the scene (Exhibit P1) and the 2 right hand drive vehicles involved (Exhibit P2). Corporal Heleme Paila and Constable Korama Talailepa are employed in the Traffic Section. They conducted the breathalyzer tests on the accused.
5. The 3 remaining witnesses include Elisaia Junior Kolia, a Senior Engineering Officer with the Land Transport Authority who is responsible for the operation and supervision of the system used for traffic lights; Ioapo Siitia who was driver of the taxi registration number T2199 (“taxi”), the other vehicle involved in the accident, and Seumalu Tagiilima who manages the Rio taxi stand from which the taxi operates.
6. Seumalu was subsequently approached and engaged in discussions with the accused regarding settlement of the damage involved and withdrawal of the charges now before this Court.
7. The prosecution evidence is that the traffic lights operate under a standardised system known as the Quantum Traffic Controller. The system is ‘micro controlled based’ and uses censors or loops that are placed underground and near the white line crossings. The censors pick up and alert the controller whenever a vehicle drives or stops near the white lines. That information is then processed and used by the controller to operate the lights and control traffic.
8. Depending on the number of traffic and whether a street is main or a sub street, the controller allows the ‘green’ lights to remain for a minimum time before it changes. When traffic is light, usually at late night and early morning, the minimum time for the green lights is 3 to 5 seconds for a sub street and 20 to 25 seconds for a main street. At a 4 way intersection for example, if there is only one vehicle on the sub street waiting for the green light, once the green light is given, it would normally remain green for a minimum 3 to 5 seconds before they change and the controller switches to allow for traffic on the main street.
9. As to the incident, the prosecution’s evidence is that Ioapo Siitia was working in the early hours of the 9^th July 2014. He had picked up 2 passengers from their Rio taxi stand at Tufuiopa to transport to Maluafou. They took Logan Road, which connects Ifiifi Street and the main Falealili Street, and leads to the 4 corner intersection and traffic lights at Maluafou. The same road runs past Rendezvous Restaurant and Bluesky Samoa’s main office. He stopped at the red traffic lights.
10. When the lights turned green, he asked his passengers who were both seated at the back which way they were headed. He was told to go right and as their taxi crossed the white line to commence a right turn, a white van (“van”) travelling from Malifa towards Tamaligi drove past. He hit the brakes and fortunately managed to avoid a collision. By the time the lights turned amber, he was almost in the middle of the road. He continued and was about to complete a right turn when unfortunately this time, the accused’s pickup also travelling from Malifa towards Tamaligi did not stop and rammed into the front right side of his taxi. The collision caused substantial damage to both vehicles. Fortunately, neither Ioapo nor the accused suffered serious injury.
11. Immediately after the collision, both drivers engaged in a verbal exchange. Ioapo blamed the accused for not allowing him to complete his right turn given that the lights on his side had turned amber. The accused argued that Ioapo was at fault because the lights on his side were green and he had the right of way. Consequently, at the accused’s suggestion, both went to the main police station where they were interviewed.
12. The accused spoke to Corporal Heleme Paila who suspected that the accused had been drinking. He conducted an initial breath screening test using the Drager Alcotest device. That initial test returned a reading of 57 micrograms. On Corporal Paila’s instructions, Constable Korama Talailepa conducted the second and evidential breath test using the Lion Alcometre device. That second test returned a reading of 53 micrograms.
13. According to both officers, the use of the breath screening and breath evidential tests are in accordance with standard police practice. Both tests are conducted using different devices and usually one after the other when the initial breath screening test returns a result of over 40 micrograms of alcohol per 100 millilitres of breath, as is the legal limit. From the second and breath evidential test, 3 copies of a receipt showing the results are printed, 1 is given to the ‘subject’ and 2 are kept by the police and produced in evidence in any subsequent defended criminal proceedings.
14. Amongst other information, the 53 micrograms reading from the accused’s evidential breath test is shown on the receipt printout, 2 copies were produced in evidence as Exhibit P7 and the third was issued to the accused. Other information shown on the printout includes the date and time the test was conducted; the accused’s details and the names of the Corporal Paila and Constable Talailepa as investigating officer and operator of the device respectively. At the bottom is space provided where both the accused and operator were required to sign. Only Constable Talailepa signed the printout, the accused refused.
15. Crucial however, is information at the top of the printout concerning the serial number and type of device used and from which the results were obtained. On the printout at the top are clearly stated the words “Drager Alcotest 7110” and “Serial- No: MRCF-A002”.
16. The prosecution also produced in evidence 2 other important documents. The first is a copy of an Approval under the Road Traffic Ordinance 1960 dated 30 January 2014 (Exhibit P4), whereby the Minister of Works, Transport and Infrastructure (“Minister”) approves:

“1. The Drager Alcotest 6510 and the Lion Alcometre SD – 400 as a kind of device for the purposes of breath screening tests ...

2. The Drager Alcotest 7110 and the Lion Alcometre SD – 400 as a kind of device for the purposes of conclusive evidential breath tests ...
3. The Commissioner of Police and Prisons as a person to give certificates of compliance under section 40I of the Act.”
17. The second and more important document in these proceedings is a copy of the Certificate of Compliance for the Evidential Breath Testing Device (Exhibit P5) that the Commissioner is required to give under section 40I. The Certificate is dated 1 July 2014 and certifies:

“1. The Lion Alcometre SD – 400 is approved by the Minister for Works ... as a device for the purpose of conclusive evidential breath tests ...;

2. In respect of the Lion Alcometre SD – 400 Serial Number 070346D ...

(a) the maximum period of service is ten years;

(b) period of service began on 28^th May 2014;

(c) the maximum period permitted between the date ... the certificate of compliance is issued and ... by which a test result must be obtained is 6 months;

(d) ...

(e) ... ”

18. After I dismissed a defence submission of a ‘no case to answer’, the accused elected to give evidence. He called no other witnesses.
19. He does not dispute that he had been drinking alcohol but says that he had no more than 2 bottles of beer. He was on his way from Malifa to Greg’s shop at Tamaligi. At the traffic lights, he stopped behind a van which was clearly also waiting for the lights to turn green. From where he stopped, he was also able to see a taxi travelling from the left and also stopping at the lights.
20. When the lights on their side turned green, the van in front of his vehicle drove off. The taxi from the left also drove onto the intersection and almost collided with the van. He followed immediately after the van but the taxi continued past the intersection and was about to complete a right turn and he could do nothing to avoid the collision. He maintains that he drove off after the van and on the green lights and that the taxi driver was at fault.
21. At the police station, he spoke to Corporal Paila outside and explained to him what happened. They both went inside where Corporal Paila requested that he takes the breath screening test. He does not dispute that he was breath tested twice but maintains that both were conducted using the same device that was hooked to a computer. On both occasions, the accused says that he was only informed of the results exceeding the legal limit but the police refused his repeated requests to cite the results on the device.
22. The accused further denies that he was issued a copy of the receipt printout and that he refused to sign all 3 copies. He maintains that even after he was refused to cite the results on the device, his further requests for him to undergo blood tests at the hospital, were not only refused but met with police suggestion that he was interfering with how their work was carried out.
23. As to prosecution evidence about his subsequent attempts to settle with the taxi owner, the accused denies that this was an admission of liability on his part. He says that he offered to assist the owner and in fact provided some spare parts for his vehicle out of goodwill but that he also hoped the matter would reach the Courts because the vehicle he drove and damaged as a result of the accident, was not his but government’s.

Ruling on the Defence submission of a No Case to Answer

24. At the end of the prosecution’s evidence and after hearing Defence Counsel’s no case submission, I ruled that there was a prima facie case and indicated that my reasons would be available later.
25. The test in determining a no case submission as held in numerous decisions of the Supreme Court and Court of Appeal is “whether, taken at its highest, the evidence could have probably led to a conviction by a properly directed panel of assessors or in the case of a trial by Judge alone, the finder of facts.” (see Attorney General v. Kolio & Others WSSC CA 03/08 which followed R v. Galbraith 1981 73 Cr. App. R124 & Police v. Samau [2010] WSSC 106).
26. It follows therefore that “it is not appropriate for a trial Judge to make credibility choices between conflicting witnesses unless the evidence of a witness is so patently obscure that it is beyond belief.”
27. The grounds advanced in support of the defence submission were (1) the device used in conducting the evidential breath test was different from the one for which the required certificate of compliance was issued and (2) a contradiction in the evidence of Ioapo Siitia relating to how the accident occurred.
28. In my view, at least after hearing the submission, the inconsistencies advanced by the defence required that I make credibility findings and that taken at its highest, the evidence by the prosecution could probably lead a conviction of the accused.
29. Essentially, the same grounds were argued by the defence at closing and I will deal with that submission in the latter part of this decision.

Issues

30. In respect of the Driving under the influence charge, the main issue in my view is whether or not the evidential breath testing device used in conducting the accused’s test was authorised by law and for which the certificate of compliance produced in evidence was issued under Section 40I.
31. As to the Dangerous Driving charge, the issue is one of credibility. Specifically, whether, on the evidence, I am satisfied to the required standard that the accused failed to comply with the traffic lights on the morning of the incident.

Law

32. For the charge of driving whilst the level of alcohol is in excess of the legal limit, the relevant provisions of section 40 may be cited as follows:

“40(1) A person commits an offence if the person drives ... a motor vehicle while the proportion of alcohol in the person’s breath as ascertained by an evidential breath test subsequently undergone by that person under section 40B exceeds 40 micrograms of alcohol per 100 millilitres of breath.

...

33. Section 40I(1) imposes a further requirement that “An evidential breath testing device must be supported by a certificate of compliance given under this section by a person approved for the purpose by the Minister.” Significantly under subsection (2) it states that:

“... At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device, ... the prosecution must produce to the Court a certified copy of the certificate of compliance. The certification must be given by a person authorized for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate.”

34. As to whether non compliance with the above provisions is a defence, section 40P(2) provides as follows:

“It is no defence to proceedings for an offence that a provision forming part of sections 40A to 40I ... has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions as apply.”

35. The combined effect of the above provisions, in my view, would mean that for this Court to return a finding of guilt against the accused, I must be satisfied beyond reasonable doubt of the following ingredients:
    1. the accused was driver of a motor vehicle;
    2. the proportion of alcohol in his breath, ascertained by an evidential breath test, exceeded 40 micrograms per 100 millilitres of breath;
    3. the evidential breath test device used is supported by a certificate of compliance;
    4. a certified true copy of the certificate of compliance is produced in evidence;
    5. the certification is given by an authorised person and must state that the document tendered is a true copy of the original certificate;
    6. the police have reasonably complied with provisions relating to (iii), (iv) and (v) above.
36. As to the charge of Dangerous Driving, section 39(1) relevantly provides as follows:

“If a person drives a motor vehicle on a road 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 at the time or which might reasonably be expected to be on the road, the person commits an offence ...”

Discussion

1. Information D1890/14 – Driving while the proportion of alcohol was in excess of the legal limit
37. It is not disputed that the accused was driver of a government vehicle registration no. MPMC06 at the time of the incident. The first ingredient is therefore proven without difficulty.
38. Similarly, I find proven the second ingredient, namely that the proportion of alcohol in the accused’s breath exceeded 40 micrograms per 100 millilitres of breath as ascertained by an evidential breath test.
39. I do not find credible the accused’s claims that the 2 breath tests he underwent used the same device; that the police refused to show him the results on both occasions and that he requested but was also refused the opportunity to undergo blood tests at the hospital. Not only are these claims strongly denied by the police, I can also find no reason why the police would conduct their work as recklessly as claimed by the accused. After all, the police knew the accused, they know of his office as a Member of Parliament, they knew that the vehicle involved was government vehicle, and with recent publicity over similar traffic cases also involving other Members of Parliament and in which the police were criticised in the performance of their duties, they had every reason to ensure that their duties were carried out properly and in accordance with normal police practice.
40. Even if I accept the accused’s claims abovementioned, they still do not negate the fact that he was tested and that results were obtained.
41. I find that the accused was breath tested twice and that the results of the second and evidential breath test are shown on the receipt printout admitted in evidence as Exhibit P7. The document clearly shows the accused’s personal details; the name of the officer who operated the device; the times that the tests were carried out and more importantly, the reading of “53 micrograms per 100 millilitres of breath.”
42. The fact that the receipt was not signed by the accused is immaterial and again, I find no reason to doubt police evidence that the results were in fact shown to the accused; that he was given his copy of the receipt printout and that he refused to sign all 3 copies including his own.
43. That aside, the accused does not also seem to dispute that the proportion of alcohol in his breath exceeded the legal limit. In fact, his argument is that whatever the results, the evidential tests he underwent were not in compliance with the provisions of The Road Traffic Ordinance 1960.
44. Unlike the first and second, the third ingredient namely that the evidential breath device used is supported by a certificate of compliance is strongly disputed by the defence. Essentially, the defence’s argument is that the device used by the police and from which the 53 micrograms result was obtained is not the same as the one certified as approved in the Certificate of Compliance (Exhibit P5).
45. I am persuaded by the defence on this point and I accept their submission because there are glaring and unexplained differences in the evidential breath test device used, and the one for which the Certificate of Compliance produced in evidence was issued.
46. On one hand, the Certificate of Compliance (Exhibit P5) certifies (1) the “Lion Alcometre SD-400” as being approved by the Minister as a kind of device for the purpose of conclusive evidential breath tests in accordance with the Act and (2) the required information relating specifically to a “Lion Alcometre SD-400 Serial Number 070346D.”
47. On the other, the receipt printout (Exhibit P7) which the prosecution says was issued from the evidential breath device used bears at the top the words “Drager Alcotest 7110”. Those words clearly identify the device used in conducting the accused’s evidential breath test and from which the receipt was printed. I find the Lion Alcometre SD-400 and Drager Alcotest 7110 are 2 separate and different devices.
48. Even if I am wrong on this point, which I doubt, and if for some unknown reason, the Lion Alcometre SD-400 on the certificate of compliance (Exhibit P5) is the same as the Drager Alcotest 7110 on the receipt (Exhibit P7), there is a second and equally significant inconsistency. This relates to the serial number of the device.
49. On the Certificate of Compliance (Exhibit P5), the serial number of the evidential breath device approved is 070346D. In contrast, the serial number of the device used to conduct the accused’s test and which returned the 53 micrograms result, as seen at the top of the receipt printout (Exhibit P7) is MRCF-A002. As a result of these significant differences and in the absence of any explanation from the prosecution, the only logical conclusion I am able to draw is that the device used in conducting the accused’s breath evidential test is different from the device approved in the certificate of compliance, a copy of which was produced in evidence.
50. I am not satisfied beyond reasonable doubt that the evidential breath device is supported by (a copy of) the certificate of compliance produced in evidence by the prosecution. The prosecution’s case must therefore fail on the third ingredient.
51. But even if I find that the evidential breath device is supported by (a copy of) the certificate of compliance, the prosecution faces another major hurdle in respect of the fourth and fifth ingredients regarding the production and certification of the certificate as a true copy of the original. Clearly, the document produced is a copy of the certificate of compliance. It is not a certified true copy of the original certificate as is mandatory under s40I(2).
52. As to the sixth ingredient, whether the Police have ‘reasonably’ complied with the provisions of s40I, I am also not satisfied that they have. Firstly, there are major differences in the evidential breath device used on the accused and the one approved in a copy of the certificate of compliance produced in evidence. There is absolutely nothing to suggest that the Police took any steps to rectify the error and understandably, they offered no explanation. Secondly, the document produced in support of the device is not a certified true copy as required under the Act. Compliance with this provision is clearly mandatory and again, the police took no steps to at least rectify their non compliance.
53. The prosecution has not proven this charge to the required standard. It is accordingly dismissed.
2. Information D1896/14 – Dangerous Driving
54. Simply, the prosecution alleges on this charge that the accused failed to comply with the traffic lights. He ran the red lights and failed to give way to the taxi which had the right of way. They rely on the evidence of one witness and that is the taxi driver, Ioapo Siitia.
55. The defence on the other hand argues that the accused had the right of way. He had stopped behind a van because the lights had turned red; he drove off immediately after the van when the lights turned green, the accused had driven from the left and onto the intersection and only managed to avoid a collision with the van, the accused continued across the intersection on the red lights and infront of his vehicle and thereby causing the collision. The defence relies on the evidence of its only witness and that is the accused.
56. I have carefully listened to the testimonies of both witnesses. I have observed their demeanour in the witness box. I have also considered closely the photographic evidence of the 2 vehicles involved (Exhibit P2) and I am inclined to accept the account by the prosecution.
57. Firstly, the photos indicate as the point of impact, the front of the taxi from the centre towards the right and of the accused’s vehicle, the front from the centre towards the left. It is not directly on the right side of the taxi. In my view, this supports the evidence of Ioapo that he had passed the white line, commenced and was about to complete a right turn when his vehicle was struck by that of the accused.
58. Secondly, for these reasons I find it difficult to accept the possibility of the accused’s version. (1) There is no way that the taxi could have possibly crossed onto the intersection and in between the van and the accused’s vehicle if the accused had ‘immediately’ followed the van towards Tamaligi when the lights turned green (2) Even if that was a possibility, the point of impact should have more likely been the right side of the taxi and not the front as is shown in Exhibit P2 and (3) I very much doubt that a driver of one vehicle who had just avoided a collision with another travelling across an intersection, would have again continued across when a third vehicle is also travelling immediately after that second vehicle.
59. On the evidence, it is more plausible that the taxi had stopped at the red traffic lights, it drove off when they turned green but managed to avoid a collision with a van travelling from Malifa towards Tamaligi, it again continued across the intersection and commenced a right turn when the lights turned amber and was completing its right turn when the accused’s vehicle, also travelling from Malifa towards Tamaligi struck the taxi at the front and towards the right on the taxi driver’s side. Such was the evidence by the prosecution.
60. The possibility of that happening is also strongly supported by the evidence of Elisaia Junior Kolia, that at a 4 corner intersection when there is not much traffic, the green lights would remain for a minimum 3 to 5 seconds for a sub street before it changes and the controller switches to allow for traffic on the main street.
61. I find that the accused did not comply with the traffic lights. He ran the red lights just as the van that had travelled before him and towards the same direction. It was dangerous to the public. It resulted in a collision and substantial damage to both vehicles involved.
62. In view of that finding, I consider it unnecessary to accord any weight and draw a conclusion from the fact that the accused made attempts to settle the damage and seek withdrawal of the charges against him.
63. I find therefore this charge proven beyond reasonable doubt.

Findings

64. On the evidence and for the foregoing reasons I make the following findings:
    3. On the charge of driving while the proportion of alcohol in the accused’s breath exceeded the legal limit (Information D1890/14), I find that the prosecution has not proven the charge beyond reasonable doubt. It is accordingly dismissed.
    4. On the charge of Dangerous Driving (D1896/14), I find that the prosecution has proven the charge beyond reasonable doubt. The accused is found guilty as charged.
65. The accused is remanded at liberty to 8 May 2015 for sentencing.

JUDGE FEPULEA’I A ROMA