IN THE DISTRICT COURT OF SAMOA
Police v Saili [2017] WSDC 29

Case name: 	Police v Saili	
		
Citation: 	[2017] WSDC 29	
		
Decision date: 	8 December 2017	
		
Parties: 	POLICE v AFELE FAIILAGI SAILI, male of Tanugamanono	
		
Hearing date(s): 	28 September 2017	
		
File number(s): 	D953/17, D973/17,  D975/17	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Talasa Atoa Saaga	
		
On appeal from:		
		
Order:	Not guilty of the offence of negligent driving causing injury. The charge is hereby dismissed.	
		
Representation: 	Sergeant K Stanley for Prosecution	
	K Koria for Defendant
	
Catchwords: 	Negligent driving causing injury	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1961 s.39	
		
Cases cited:	Police v Yvette Kerslake (unreported, District Court, 11 April 2014)
Police v Tunupopo [2015] WSDC 7
Kerslake v Attorney [2014] WSSC 87	
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

AFELE FAIILAGI SAILI, male of Tanugamanono
Defendant

Counsels:		Seargent K Stanley for Prosecution
			K Koria for Defendant

Hearing:		28 September 2017	
Submissions:		06 October 2017
Decision:		08 December 2017

DECISION OF JUDGE SAAGA
THE CHARGES.
1.	The Defendant is charged with two counts of Negligent Driving Causing Injury pursuant to Section 39A of the Road Traffic Ordinance 1961 which carries a fine of 20 penalty units or to imprisonment for a term not exceeding 5 years. 
2.	The Defendant was initially charged with four counts of Negligent Driving Causing Injury but the other two counts were withdrawn on the application of Prosecution during the proceedings due to insufficient evidence.
3.	The particulars of the charges which remain are:
(a)	That at Savaia Lefaga on the 23rd March 2017, the above named Defendant of Tanugamanono being the driver of a motor vehicle namely a Chevrolet Colorado Double Cab Pick up registered MNRE 21 negligently drove such a motor vehicle, on a road namely Southern Coast Road and did thereby cause bodily injury to Sii Lemalu, 45 year old female of Matautu, Lefaga.
(b)	That at Savaia Lefaga on the 23rd March 2017, the above named Defendant of Tanugamanono being the driver of a motor vehicle namely a Chevrolet Colorado Double Cab Pick up registered MNRE 21 negligently drove such a motor vehicle, on a road namely Southern Coast Road and did thereby cause bodily injury to Tausala Saolotoga, 47 year old female of Matautu, Lefaga.
THE LAW:
4.	Section 39A of the Road Traffic Ordinance stipulates that a, “ 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 recklessly or negligently drives and thereby causes injury to any person.”
5.	The elements of the offence are:
(a)	A person drives
(b)	Negligently
(c)	Thereby causing the victim bodily injury.
6.	There is no dispute as to the first element that the Defendant drove a vehicle namely a Chevrolet Colorado Double Cab Pick up registered plate number MNRE 21. 
7.	What has been disputed and is the subject of the hearing is whether the Defendant  drove the vehicle negligently and whether if he is found negligent, his action caused bodily injuries to Sii Lemalu  and Tausala Saolotoga.
8.	Judge Tuala Warren in Police v Yvette Kerslake (unreported, District Court, 11 April 2014) cited with approval the case of DPP v Yeo and Anor (2008) NSWL 953 in which the Court stated 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 care of other users of the road to be expected of an ordinary prudent driver in the circumstances.”
9.	Judge Roma also in Police v Tunupopo [2015] WSDC 7 accepted the following test for negligent driving,
“The test for standard care is whether or not 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 the negligence.”
10.	In Kerslake v Attorney [2014] WSSC 87, Chief Justice Sapolu cited the following passage from the remarks of Richard LJ in English Court of Appeal in Whiteford v Kubas  UAB [2012] EWCA 1017,
“I have well in mind the cautionary remarks of Law LJ in Ahanonu
that one must avoid a counsel of perfection and that the focus must be on the standard to be expected of a reasonable and prudent driver in the circumstances that existed at that time.”

11.	The interpretation of counsel of perfection according to  Defence counsel as defined by Oxford Dictionary is an “ advice that is ideal but impractical.” In Defence Counsel words, “…a standard that is excellent but unrealisable.”
STANDARD OF CARE 
12.	I have been referred by Defence Counsel to the National Road Code 2010 which sets out the national rules and standards for drivers driving on the public roads. I am grateful for the provision of the Code because it provides the standard required or expected of a driver on the road.
13.	Paragraph 2.14 and 2.15 stipulates that, 
(a)	2.14 Turning at Intersections
a.	Left Turn-If you are turning left into another road or street:
i.	Keep on the left side of the road or in the left turn lane
ii.	When the green light is on.
(b)	Free left turn
a.	All vehicles are allowed to make a free left turn at all intersections when clear, except an intersection controlled by traffic lights with left turning light arrows.”
(c)	2.17 Giving way at uncontrolled intersections
a.	Be ready to stop when you approach a GIVE WAY sign at an intersection.
b.	Watch out for:
i.	Vehicles ascending or descending a hill; or
ii.	Emergency vehicles using a siren and/or flashing lights.
c.	A GIVE WAY sign means you need to stop only when there is other traffic that  has the right of way.
(d)	7.9 of the Road Code. What is a good driver
a.	“ A good driver must:
i.	Drive at all times with care, attention and consideration for other road users.
ii.	Protect the safety of the public on roads.
iii.	Comply with Traffic laws
iv.	Drive a safe vehicle.
EVIDENCE
14.	The Prosecution called six witnesses including the victims Sii Lemalu and Tausala Saolotoga.
Prosecution Evidence
15.	Malaesala Fui and Fui Mefi Poseta were selling taros at the market when both heard a vehicle speeding up the hill from the road from Savaia. They looked towards this road and saw the pick up in question speeding onto the main road towards the opposite road. Malaesala said he knew from the sound of the vehicle it was speeding. 
16.	Simultaneously they saw a Getz vehicle on the main road travelling from the left. Malaesala said that the Getz was not speeding and the Getz ran into the MNRE Vehicle as it was making its way towards the other side of the road. On cross examination, Malaesala admitted that in his statement to the police, he did say that Sii who was driving the Getz was speeding. 
17.	The people that were sitting at the back of the pick up driven by the Defendant were thrown onto the road. Both assisted the injured people which included the two victims. They both knew the victims. Malaesala spoke highly of the victim Sii Lemalu. She was screaming hysterically in her vehicle and they had to try and remove her from her vehicle. She was alone.
18.	Sii Lemalu testified that she had just finished school at 1.45 pm and was on her way to her class at NUS at Toomatagi. Her class starts at 3.00pm. As she was ascending the hill after passing the Posini store, she saw that the main road was clear. She was not speeding. She is always late to class and has at times arrived at 4pm. She has no problems arriving late as it is a 3 hour lecture.
19.	She was shocked when a vehicle hit her car when she reached the intersection. She became unconscious upon impact and only regained consciousness when she woke up in the hospital. Since the accident she has experienced dizziness and headaches and has been admitted to hospital several times.
20.	Constable Farani Roberts was on duty the day after when he was assigned this matter by his Senior Officer Tusani. He interviewed the Defendant and also took photos of the scene of the crime. The photos were not made available during the trial. There are photos attached to the submission filed by Prosecution that were not tendered during the trial. As these photographs were not tendered through the proper process, I will not accept these photographs.
21.	The photographs that were provided by Prosecution and tendered through the proper process were taken by Constable Thor Tafunai who is the Forensic Photographer for the Ministry of Police. He took six photographs of the intersection at the Southern Coast Road at Savaia, Lefaga on the 25th September 2017 on the instructions of the Office of the National Prosecution in preparations for the court case. The photographs were from different angles with the main focus on the intersection road where the vehicles collided. I accept that the foliage at that time of the incident 6 months earlier could have been different for reasons I will refer to later in my discussions.
22.	Tausala Saolotoga had just attended a Seminar conducted by MNRE represented by the Defendant and ACEO of Land Registration Filisita Heather. Tausala is from Safaatoa and was at the back of the truck with her daughter. She was sitting whilst her daughter was standing at the back of the pick up. She grabbed her daughter’s legs just prior to the accident. She was shocked when the pick up was hit by another vehicle. The collision resulted in both her daughter and her falling off the pick up.  She said the pick up did not stop at the intersection. She also knew the victim as she was from Lefaga.
23.	The prosecution’s theory is that the MNRE vehicle was speeding and it had continued onto the main road with the intention of going across to the opposite road. The Prosecution theory premised on the photographs of the damaged vehicles. The Getz had at first impact hit the front tyre of the MNRE vehicle before the left side slammed itself against the side of the MNRE vehicle. It was the impact of the collision that caused the vehicle to spin first to the left before landing on the opposite side of the road next to the market. The Prosecution submits that it was the impact of the collision and the uncontrollable speed of the MNRE vehicle that caused the MNRE vehicle to drive straight across into the hedge on the opposite side of the road.
Defence Evidence
24.	The Defendant, Filisita and Leau gave evidence that they were at the MNRE seminar at Safaatoa Lefaga. The seminar was part of a project coordinated by the Defendant on behalf of the Ministry of Natural Resources and Environment. MNRE had two vehicles stationed at the seminar. A van and the pick up. The pick up is a 2017 model. After the seminar, the women requested the MNRE representatives if they could be given a ride to Safaatoa on their way to Apia. The women sat at the back of the truck. Tausala’s daughter was also at the back. She stood and leaned against the double cabin of the pick up for support. Afele drove the pick up whilst Filisita sat in the passenger seat.  Leau sat at the back seat of the double cabin of the pick up behind the Defendant. The van followed afterwards.
25.	Afele, Filisita and Leau maintained that Afele was not speeding and that he had stopped at the Give Way sign. None of them saw any vehicles approaching from the right particularly the Defendant and Leau who were sitting on the right side of the vehicle. All were shocked when they heard a vehicle hitting the side of the pick up on the right side at the back before it hit front tyre of their vehicle. It then spun across and landed on the opposite road next to the market. Upon impact, the people at the back of the pick up fell off.
26.	Both Afele and Filisita said that the wheel got stuck after the collision. With great difficulty, Afele drove the pick up off the road onto the other side of the road. As it was downhill, the vehicle landed in the hedges on the right side of the road. Filisita got out of the vehicle and tried to help the victim who was still stuck in her vehicle and screaming. All of them helped the people injured by transporting them to the hospital in the MNRE van that was following them. Afterwards, the Defendant reported the incident to the Faleolo Police Station. None of the other Defence witnesses were interviewed by the Police.
27.	Fuatino is an independent witness. She lives at Safaatoa Lefaga. She had attended the seminar at Lefaga in her own vehicle and was following the pick up when they reached the intersection. She testified that the MNRE vehicle had stopped at the intersection.  She said she saw the brake lights and it signaled her to stop also behind the MNRE vehicle at the intersection. She also saw the MNRE vehicle indicate that it was turning to the left towards Apia. She too was on her way to Safaatoa. She was shocked to see the Getz on the main road speeding towards the MNRE vehicle and hitting it full on whilst the MNRE vehicle was turning towards Apia. She testified that it was the GETZ that was speeding that caused the accident. 
28.	The Defence theory is that the MNRE was turning onto the road to Apia when the GETZ driven at a speed of more than 80 miles per hour hit the back of the MNRE vehicle on the right side before it slammed again into the front of the vehicle causing it to spin onto its right and landing next to the market on the opposite direction.
DISCUSSION
29.	The Prosecution bears the burden of proof and I must be satisfied all the elements of the offence were proven beyond reasonable doubt.
30.	The elements of the offence are:
(a)	A person drives
(b)	Negligently
(c)	Thereby causing the victim bodily injury.
31.	 There is no dispute that first element has been proven in that the Defendant drove the Chevrolet Colorado Double Cab Pick up registered MNRE 21.
32.	 I have to consider however whether he drove the vehicle negligently and that if he is proven to be negligent whether he did cause the victims Sii Lemalu and Tausala Saolotoga bodily injuries.
33.	The duty of the driver at this intersection according to the National Code is that he must stop at the Give Way sign, check to see if there are any incoming vehicles before he then makes a left turn onto the main road. Prosecution submits that he did not stop at the Give Way sign but was speeding across the main road to the opposite road.
34.	The Defendant and all the occupants of the Vehicle had no intention of travelling onto the opposite road. The Defendant, Filisita and Leau were on their way to Apia. The occupants of the vehicle which included Tausala Saolotoga and her daughter who  live at Safaatoa were also on the vehicle destined to be dropped off on the way to Apia. The vehicle was meant to travel onto the main road and to the left of the Give Way sign rather than going towards the opposite direction.
35.	Sii Lemalu testified that her vehicle was hit by the Pick up. Conversely, it was established in court that her vehicle had hit the pick up and it was the impact of the collision that caused her vehicle to spin before landing on the right side of the market which is located on the opposite road. 
36.	During the site inspection, I observed that there was a curve to the main road just a few metres from the intersection and that the foliage around this curve limits a full appraisal and visibility of the whole stretch of the main road from the uphill climb after Posini’s Store to the curve. A vehicle that drives up this intersection will have to drive further up and into the main road way past the Give Way sign in order to turn to the left or to look to the right to see any approaching vehicles beyond the curve. A driver can stop just after the Give Way sign and just before main road in discharge of its duty under the National Code and see no incoming traffic from the right if there are no vehicles after the curve. Further, they will not be able to see any vehicles beyond the curve at that point. The distance also from the curve to the intersection is less than 30 metres. 
37.	A vehicle that is driving on the main road beyond the curve at a speed of more than 80 metres will have no problem covering this short distance to the intersection. I cannot ascertain what the condition of the foliage around this curve was at the time as the photographs provided by Prosecution were taken in September 2017 and not in March 2017. I must stress that the foliage around the curve of this road is an important factor to consider as the density of the foliage determines the visibility of the road after the curve if you are driving up from the intersection.
38.	I do not accept the evidence of Prosecution witness Malaesala that he could hear the vehicle speeding as it was coming up the hill and he knew and was confirmed by Fiu that there will likely to be an accident. Fiu also denied that he had made such observations and that he said anything to that effect. Both were selling taros at the intersection and had no qualms that there will be an accident that day. Their attention also prior to the accident was focused on the sale of their produce. During site inspection, I observed that every vehicle that comes up this intersection makes a lot of noise as it ascends the hill and more so if it is an older model. There were trucks and SUV that drove up the intersection when we were observing the activities at the intersection.
39.	 During the reenactment of the scene, the police drove the vehicle used by the Prosecution up the intersection and uphill from Posini’ store at Lefaga. The vehicle used by Prosecution was an older Tuscon model and its engine was much noisier than the 2016 Santa Fe that I was using. The former vehicle had difficulty ascending the hill whilst the 2016 Santa Fe effortlessly drove up the hill towards the intersection with less noise emanating from its engine. Similarly when it drove on the main road. The vehicle driven by the Defendant is a 2017 model and it is a newer model than the Santa Fe that I was driving. It is likely to drive up towards the intersection without much problem or emanate a sound that is so extraordinary that will draw the attention of any onlookers. I found that part of the evidence as an exaggeration.
40.	 I found the evidence also of Malaesala and Fiu quite biased towards the victim Sii. Both Malaesala and Fiu spoke highly of Sii as a teacher and as a resident of Lefaga. Malaesala also had familial connections to her. 
41.	The passengers or the occupants of the double cabin of the pick up which is a confined space with windows sealed from the air outside will also have a different perception of the speed of the pick up from Tausala who was sitting at the back in open air and who is likely to assess the speed of the vehicle according to the movement of the vehicle whether it accelerates or slows down. Her understanding of the speed of the vehicle will not be based on her knowledge of the mileage but of the movement of the vehicle on the road. She will not be able ascertain from where she was sitting whether the vehicle was driving more than 35mph but will assess the speed according to whether it accelerates or slows down. Also, as there was no expectation that there will be any accident, she will not be particularly interested at the time as to whether the vehicle stops at the Give Way sign.
42.	I found Fuatino as a truthful witness. She was forthcoming with her evidence. She is  a resident of Safaatoa who drives regularly through this intersection. She has no ties or affiliations with both the Defendant and the victim. Her evidence was helpful as she was also able to identify the problems with this intersection and the vulnerability of any person driving uphill to the intersection and a person who is on the main road with the right of way. She was in the vehicle behind so took her cues from the MNRE vehicle in front. Her evidence supports the Defendant and the passengers in the MNRE vehicle that the Defendant had stopped as his brakes light were on before he indicated that he will be making a left turn. She also stopped when the pick up stopped and was about to move forward after the pick up had moved onto the main road indicating that it will be turning left when she saw the Getz from the right hitting the pick up full on. She maintains that it was the Getz that caused the collision.
43.	Sii Lemalu was on her way to her class. She is familiar with the road. Her class starts at 3.00pm. I do not accept her explanation that it is her habit that she gets to class at 4pm at times. These classes costs money on her salary as a teacher at Lefaga Primary School. An hour missed a day for weeks for a term is a waste of fees paid. I do not find her as a person who is wasteful of resources. She is a hard working and determined woman. I am inclined to accept that she was speeding when she saw that the road was clear out of familiarity and her determination to make it to her class on time.
44.	I found Sii also evasive on the stand when she was asked specifically as to how the accident had happened. She feigned ignorance and said she was unconscious from the time of the impact to when she was in the hospital but knew that the pick up had hit her car. Her evidence is contrary to the evidence of all the eye witnesses.
45.	After weighing all of the evidence, I am not satisfied beyond reasonable doubt that the Prosecution has proven beyond reasonable doubt that the Defendant was driving negligently. What the evidence before the Court has proven is that the Defendant had stopped at the Give way sign and that seeing no vehicle as far as the curve he then proceeded onto the main road before turning to the left. I accept that he would not be able to see beyond the curve because of the foliage. Leau was also behind and did not see any approaching vehicles. He too like the Defendant could see as far as the curve. The vehicle also after stopping at the Give Way sign was not at full speed.
46.	It was when the pick up was on the main road and turning to the left, that the pick up was hit by the Getz which was speeding around the curve at a high speed. The Getz was unable to stop upon seeing the vehicle. The Getz initially hit the side of the pick up at the back. The paint on the bumper of the Getz is seen on the back of the pick up on the right hand side. The immediate impact of the collision because of the speed of the Getz was a sudden movement of the pick up towards the right. This caused the front of Getz which was still in full speed to propel against the right side of the pick up. By pressing against the right side of the pick up, it squeezed the bonnet upwards and engine inwards and propelled the left side of the Getz against the pick up with the front of the Getz hitting the right tyre in the front dislocating it. It then spun off to the right and landed at the right side of the market. As a consequence, Sii and Tausala sustained bodily injuries.
47.	As an observation, drivers both on the intersection and on the main road must take extra caution when driving on this stretch as the hedge limits the visibility of both the driver on the main road and the driver driving up to the intersection.  The foliage should be removed or this front part of the intersection be redesigned so that at the Give Way sign or right before the main road, the driver at the intersection is able to see the whole stretch of the road up to where the vehicle ascends after the Poisini Store. Accidents around this intersection can be avoided if such precautionary measures are taken.

CONCLUSION
48.	I find the Defendant not guilty of the offence of negligent driving causing injury. The charge is hereby dismissed.
JUDGE ATOA-SAAGA