DISTRICT COURT OF SAMOA
Police v Ieremia [2016] WSDC 44

Case name: 	Police v Ieremia	
		
Citation: 	[2016] WSDC 44	
		
Decision date: 	5 September 2016	
		
Parties: 	POLICE (Informant) 
TIMO MUAGUTUTAGATA IEREMIA (Accused)	
		
Hearing date(s): 	22 August 2016	
		
File number(s): 	D 777/16, D 782/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	In the District Court of Samoa	
		
Judge(s): 	DCJ Fepuleai A. Roma	
		
On appeal from:		
		
Order:	-	The prosecution has proven beyond reasonable doubt that the accused drove negligently at the time of the incident.  I find the accused guilty as charged.	
		
Representation: 	Ms L. Sio for Prosecution
Mr P.T. Mulitalo for Accused	
		
Catchwords: 	Negligent driving causing bodily injury – unlicensed driver –  prosecution evidence – defence evidence	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1960 s39(a), 	
		
Cases cited:	Police v Ata Sulape (1 October 2010 pg 4, His Honour Judge Vaai’s decision)
Police v. Yvette Kerslake (11 April 2014, Her Honour Judge Tuala – Warren’s decision)	
	Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953, paragraph 27 (New South Wales Supreme Court decision)
	
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

TIMO MUAGUTUTAGATA IEREMIA, male of Malie and Vaiusu.
Accused
Counsel:		
Ms L. Sio for National Prosecution Office
Mr P.T. Mulitalo for Accused

Hearing:	22 August 2016
Decision:	5 September 2016
Reasons:	12 October 2016

REASONS FOR DECISION OF JUDGE ROMA
Introduction
1.	The accused faces 2 charges, one of negligent driving causing bodily injury to Francis Aina, a male of Nofoalii, and one of being an unlicensed driver.  Both charges arise out of a traffic accident that occurred at Saleimoa in the afternoon of the 10th November 2015.
2.	The accused pleaded guilty to the unlicensed driver charge, and not guilty to the one of negligent driving causing injury.
3.	Following a defended hearing on 22 August 2016 and in conclusions delivered orally on 5 September 2016, I found the accused guilty of the negligent driving causing injury charge.
4.	My reasons for that finding now follow.
Prosecution Evidence
5.	The prosecution called 4 witnesses.  Constable Kent Onesemo visited the scene and took photos (Exhibit P2).  The other 3 were Francis Aina, the victim and a passenger of the other vehicle involved; Matagisila Omeka, driver of that other vehicle, and Fofoaivaoese Puna, a female who was selling goods infront of the nearby Farmer Joe’s supermarket, and whose attention was drawn to the scene by the sound of the impact.
6.	Francis and Matagisila’s evidence is that they had been to town earlier that day and were travelling back to Nofoalii in a white van (“van”).  Matagisila was driving and Francis was seated next to him on the passenger’s seat.
7.	They were driving on the left side of the road.  At the curve at Saleimoa metres away from the nearby Farmer Joe’s supermarket, they saw a pick up travelling from the opposite direction.  They estimate that it was about 20 metres when they saw the pickup approaching.
8.	Francis was then playing with his phone and was shocked seconds later by the impact of the collision.  He regained consciousness to find that their vehicle had tipped and ended up on its side on the left side of the road.  With the help of nearby residents, both Francis and Matagisila were able to climb out of the van.
9.	Francis sustained cuts and lacerations to his left hand from broken glass.  He was taken to Leulumoega Hospital and later brought to Apia.
10.	He did not see much of how the collision happened except to say that the pickup was driving fast.
11.	Matagisila, who was driving the van, however says that when they came past the curve and approaching the supermarket, the pick up from the opposite direction suddenly crossed the white line over to their lane.  His only option was to swerve left to avoid the collision.  He managed to save the front of their van being struck, as the pickup then scraped the right side of the van from the driver’s door towards the back, causing the van to tip and end up on its side on the left side of the road.
12.	Matagisila’s evidence is that they were about 6 metres away from the pick up when it crossed over to their lane.
13.	By the time Francis and Matagisila got out of the van, the pickup was stationary several metres off the main road on an inland field, the skid marks and tyre tracks clearly visible both on the inland side of the road and on the field.
Defence Evidence
14.	Electing to call evidence, the defence called the accused driver and his passenger Paulo Leitu.
15.	They did not dispute that the accused was driver of the pickup.  They denied however the prosecution’s version of how the collision occurred.
16.	The accused and Paulo maintain that their pick up did not cross the white line, but that the van crossed over and struck the right side of the pickup.  The accused says that when the vehicles collided, his pickup stopped on its own side of the road whilst the van continued on the inland lane before it tipped and ended on the side.
17.	As to how their pick up ended up metres off the main road on the field located inland, the accused says that the collision crooked one of the pickup tyres, and they had to push the pick up all the way inland as it was blocking traffic.
Issue
18.	It is not disputed that the accused was driver and therefore owed a duty of care to the road user victim.  It is not also disputed that the collision caused the victim injuries which required him to be taken to hospital for treatment.
19.	The real dispute is whether the accused breached the standard of care expected of a reasonable driver in the circumstances.  The accused’s argument is that he did not.
Law
20.	Section 39A of the Road Traffic Ordinance 1960 under which the accused is charged states:
“Negligent driving causing death – Every person commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding 20 penalty units who recklessly or negligently drives or rides any vehicle and thereby causes bodily injury to or death of any person.”
21.	As to the test for determining negligent driving, His Honour Judge Vaai, in an unreported decision of this Court in Police v. Ata Sulape (1 October 2010), states at page 4:
“The test for the standard of care is whether or not in the circumstances, the defendant drove in a reasonable and prudent manner.  If on the evidence he did not, he is considered to have negligently driven at the time.  But if he did, then the police case must fail as it has not satisfied the Court regarding proof of one of the elements of negligence.”
22.	In Police v. Yvette Kerslake (11 April 2014), Her Honour Judge Tuala – Warren, as she then was, relies on the following passage from a New South Wales Supreme Court decision in Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953, paragraph 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.”
23.	To prove the charge therefore, the prosecution must satisfy the Court beyond reasonable doubt that (i) the accused driver owed the victim a duty of care; (ii) the accused was in breach of the standard of care imposed by such duty and (iii) the breach resulted in bodily injury to the victim.
Discussion
24.	I have no difficulty finding that the accused owed the victim a duty of care.  It is not disputed that he was driver of a Toyota hilux double cab pickup registration number 6877 (Exhibit P2).  As such, he owed a duty to all road users in the vicinity, including the passenger of the van who became the victim of this incident.
25.	I am also satisfied beyond reasonable doubt that Francis Aina, male of Nofoalii suffered bodily injury as a result of the accident.  As mentioned in paragraph 9 of this decision, he sustained cuts and lacerations to his left hand from broken glass.  He was taken to Leulumoega Hospital and later brought to Apia.
26.	As to whether or not the accused was in breach of the required standard of care, the prosecution relies on the evidence of Francis and Matagisila that the accused was speeding, and that the accused crossed the white line over to their lane metres before the collision.  They further rely on the photos (Exhibit P2) showing the scraped left side of the van starting from the driver’s door towards the back, the skid marks on the inland side of the road, and tyre marks showing the pickup’s tracks on the inland side of the road and onto the field. 
27.	The defence on the other hand argues that the van crossed the white line and struck the accused’s pickup on the seaward side of the road.  The tyre marks, Counsel submits, were a result of the pick up being pushed off the main road and onto the inland field to allow for the flow of traffic.
28.	I have carefully considered the testimonies of the witnesses, particularly of Matagisila and the accused, examined the photos and decided to accept the evidence for the prosecution.
29.	Firstly, from the photos of the van, it is clear that the right side was scraped from the driver’s door towards the back.  It is consistent with Matagisila’s testimony that the pickup crossed the white line metres before impact and that he swerved to avoid the collision.  He managed to save the front part but not the right side from the door towards the back.
30.	Secondly, the only damage to the pick up as seen from the photos is at the front right side near the headlight.  In my view, if the van had crossed the white line and struck the pickup, that would not have been the only damage.  It would have damaged more of the right side of the pickup.   
31.	Thirdly, I find it difficult to accept the accused’s version that following impact, his pick up stopped on its side of the road but had to be pushed across onto the inland field to allow the flow of traffic.  In my view, the pickup ended on the inland side because it crossed the white line and was heading that way.  I find that the pickup did not stop after impact, and the skid marks on the inland side of the road and tyre marks visible on the field is consistent with the speed that the pickup was travelling in at the time of and following impact.
32.	I find that the accused crossed the white line.  It struck the right side of the van from the driver’s door towards the back.  It continued across the van’s lane and onto the inland field where it finally stopped a fair distance from the main road.
Decision 
33.	For the foregoing reasons, I find that the prosecution has proven beyond reasonable doubt that the accused drove negligently at the time of the incident.  I find the accused guilty as charged.
JUDGE FEPULEAI A ROMA