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Police v Leo [2024] WSSC 109 (13 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Leo [2024] WSSC 109 (13 June 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MIKAELE LEO, male of Leauvaa, Samoa

Defendant

Counsel: T Fesili for the Informant
Q Sauaga for Defendant

Hearing: 17^th, 19^th & 23^rd April 2024

Decision: 13^th June 2024

JUDGMENT OF TUATAGALOA J

1. The defendant, Mikaele Leo is charged that on the 6^th February 2021 at Saleufi (Lucky Foodtown three corner), being the driver of a Dyna Isuzu motor vehicle, negligently drove such vehicle thereby caused death to Jane Iona, a female of Vaivase and Taelefaga, Fagaloa.

The Relevant law

2. The elements for the offence of negligent driving causing death are as follows:
   • (i) The defendant drove the vehicle;
   • (ii) The defendant drove the vehicle negligently;
   • (iii) That death resulted or contributed to the death in a significant and operative way (more than minimis)
3. Anyone who drives a vehicle on the road owes a duty of care to other road users. The standard of care is referred to by Vaai J in Police v Ata Suluape (1 October 2010, unreported, p.4) as follows:^[1]
   • “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.”
4. Kos J in Love v Police [2012] NZHC 2952 said of the standard of care:
   • “The standard is an objective one, not related to the individual driver’s degree of proficiency or experience. But that is not to say that the whole context is to be disregarded.”
5. That is, the Court is to consider the actions of the driver charged, not the lack of care of the other driver. The focus must be on the standard to be expected of a reasonable and prudent driver in the circumstances that existed at the time.

The Evidence

6. The Prosecution’s case is that the defendant who is required to give way to the deceased woman’s vehicle on the main road did not give way but instead turned left on to the main road without stopping which caused the vehicle driven by the deceased to collide with the defendant’s vehicle resulting in death to the deceased.
7. The prosecution called eight (8) witnesses. The defendant did not call any evidence and he also exercised his right not to give evidence.
8. The following evidence is not disputed:
   • The defendant was driving a Dyna truck east along Savalalo Road in front or parallel to Lucky Foodtown Supermarket, intended to make a left turn onto Vaea Street at the intersection to head north towards the Town Clock;
   • Vaea Street is the main road and the defendant is required to give way to traffic travelling on the main road;
   • The victim was driving a Ford Ranger on the main road heading north to the direction of the Town Clock.

Did the defendant negligently drove the dyna truck?

9. Counsel for the defendant put to the prosecution witnesses that the defendant stopped at the intersection before he turned left on to the main road. Counsel also put to the prosecution witnesses that the defendant’s dyna had fully got on to the main road and was stuck behind a que of cars before he was hit by the deceased’s Ford Ranger.
10. The evidence by the Prosecution witnesses, Fale Faatoia (taxi driver), Afa Patolomeo (pedestrian) and Aso Faaiuga (Hilux driver) are as follows:

(a) The defendant did not stop at the intersection but went straight on to the main road turning left.

[10.1] Fale Faatoia is a taxi driver for the Central Taxi Stand whose base is a small orangey building on the main road next to the intersection on the left side. His evidence is, that he had just got back to base from dropping a passenger and was standing in front of the Taxi Stand at the corner when he saw the dyna truck coming from the Savalalo road and turned left on to the main road without stopping or giving way to vehicles on the main road. Defense Counsel tried putting to this witness that he did not or could not have had a clear view of the dyna truck from where he was standing and that there were pedestrians on the footpath in front of him but the witness maintained his evidence of what he saw, that he had a clear view and where he was standing was close to the intersection.

[10.2] Afa Patolomeo was to cross the Savalalo road the defendant was travelling on to the Lucky Foodtown Supermarket but had to stop for the dyna to go past. His evidence is that he knows that the dyna did not stop at the intersection for as soon as it went past him, he heard a collision.

[10.3] Aso Faaiuga was driving a left-hand steering Toyota Hilux and had stopped at the intersection to turn right on to the main road to go the opposite direction from the Town Clock. While waiting to get on to the main road, he saw the Ford Ranger approaching heading towards the Town Clock when the dyna truck came from behind his vehicle and turned left on to the main road without stopping. He said he saw this because his car is left-handed and therefore was sitting at the side where the dyna came from behind and turned left on to the main road.

(b) There was no que of cars going the Town Clock way with the witness Aso Faaiuga said there was a que of cars going the opposite direction to Taufusi.

11. Fale said the road was wet and was busy for it was a Saturday but the traffic was moving and the cars going the Town clock way were not in a que. Aso also gave evidence that the traffic going the Town clock way was moving and not in a que unlike the vehicles going the opposite direction to Taufusi were in a que thus the reason why it was hard for him to turn right on to the main road. Afa also said that the road was wet.

(c) The road at the time was wet and it was sprinkling with light rain (mauluulu).

12. All three witnesses, Aso, Fale and Afa said the road was wet and was sprinkling with light rain (mauluulu). This was also the evidence of Senior Sergeant Mose Lotemau who attended and took the crime scene photos and Sergeant Toa who inspected and assessed the vehicles.

(d) The front left side of the deceased vehicle collided with the right side of the dyna truck base (or bed) towards the end.

13. Both Fale^[2] and Aso^[3] said that the Ford Ranger driven by the deceased collided or hit the right side of the dyna base driven by the defendant but different parts. The witness Aso referred to the middle of the right side of the dyna, while witness Fale referred to the right side of the dyna truck towards the end. Fale said Ford Ranger was almost in front of his vehicle when the dyna turned left on to the main road without stopping. The Ford Ranger hit the right side of the dyna bed that was not fully on the main road. Fale further said that the Ford Ranger did not stop when it hit the dyna (so’aso’a) with the dyna ending up across the lane as in the photos.
    • Transcript, pp 36-37
    • “Wit: tusa na so’a muamua e le loomatua le taavale e le’I tu la le ranger, tusa na toe so’aso’a mai a ai ua te’I le loomatua ina ua vaai le faalavelave ile taeao lea ma faatafa ai ma le dyna I le moa o le auala.
    • .......................
    • Pros: Sa e vaai la a’o faatali le taimi e maua sou avanoa e te alu ai I uta, le a le taimi muamua a na e iloa atu ai le ford ranger?
    • Wit: ou te iloa atu le ford ranger ua lata mai luma o la’u taavale
    • Pro: A o fea le loli le taimi na?
    • Wit: o le loli na oso ma a e le’I tu, na sau a le loli alu sa’o loa, ou te autilo le loli ua o’o autafa o la’u taavale ma agai loa e alu I tai.
    • ................
    • DC: ...I le mea lea na so’a e le ford ranger, o le pito I tua o le pito taumatau o le loli?
    • Wit: ia o lea lava
    • DC: I le taimi na so’a ai, ua leva la na o’o le loli I luga o le auala?
    • Wit: leai e le’I iai se mamao tusa e le’i ai se va tele o le loli ma le ford ranger.
    • DC: ....ae le sa’o sa tatau la ona lavea le pito I luma o le faitotoa o le aveloli? Ona o lea ua fetaui faatasi a le o’o mai?
    • Wit: faafetai mo le faafesili, o la’u tala lea na fai atu I la’u vaai, ua oo mai luma, lata mai la’u taavale ae oso ifo loa le dyna ga e alu, tusa ua uma I luma le ulu o le afi o le dyna ae o le pito I tua sa tautau lea na alu atu le ranger so’a.”
14. Senior Sergeant Mose Lotemau attended after the accident to take crime scene photos. The photos he took showed the two vehicles where both vehicles came to a rest after the accident took place.^[4] Where the vehicles came to rest when the photos were taken does not reflect the point of impact. Photo 2 showed broken glass underneath the petrol tank most likely from the Ford Ranger’s damaged front left side headlight from the collision. According to Senior Sergeant Lotemau there was no damage to that part of the dyna. His evidence was drawn by Defence counsel towards the back of the right side of the dyna’s long bed where there were scratches and bent hooks beneath the dyna’s long bed. According to Defence counsel this was the point of impact and is consistent with the evidence of the prosecution witness Aso Faaiuga.
15. Sergeant Ainua Uiese works within the Traffic Section of the Ministry of Police. He not only carried out a full inspection of the vehicles involved both internal and external but he also tests drove the vehicles to make sure that there was no mechanical fault to the engines and the brake pedals including the hand brakes of both vehicles. Sergeant Uiese found that there was no mechanical fault to each vehicle and their brakes were not faulty. Sergeant Uiese confirmed scratches on the right side towards the back of the dyna truck and damages to the Ford Ranger on the front left side towards the engine.
    • Transcript, page 47
    • “DC: .... Sergeant I le taavale lea Ford Ranger, na ole pau lava le itu lea na aafia na o le itu agavale e lei aafia faatasi le pito I luma pe taei ni, I lau oe a ia inspection ese mai ata ia?
    • Wit: Ia na o le pito a I luma agavale ia ma faasolo mai le pito I luma o le afi o le taavale.”

[15.1] Sergeant Uiese was asked as to the damages to the Ford Ranger when compared to the Dyna truck with only scratches on the side where it was hit by the Ford Ranger. He explained that the frame of the Dyna’s bed or base called the jersey is solid steel and that is the part of the Dyna that was hit by the Ford Ranger causing much damage to the ranger’s front left side.

Transcript, page 48
“HH: Ae tagai ifo iai le dyna, I le pito I tua o le dyna e leai a ma se mea o leaga, ....... a e tagai la I ai I autafa o le dyna lea e fesiligia e le alii loia e iai maosiosia pei sa see le taiaina e le ford ranger, e talafeagai lena scratch agai le omo lea e iai pe a faapea o le itu lena o le dyna na o le scratch le dyna a’o lea e matua omo le moli lea e I autafa? E talafeagai?
Wit: Lau afioga o la’u vaai iai e talafeagai.
HH: Aisea?
Wit: O le uiga o le faamatalaga, o le jersey atoa a lea o le loli le pito lea I lalo le mea lea e iai hooks atoa lea le frame pito I lalo o le loli.
HH: O le pusa?
Wit: O le pusa e fai sina solid tele o le vaega lea, silasila iai tusa o le base lena o le loli, lea e taoto iai le frame lautele lea e pito I lalo, ia ma e malosi foi le pito lena, e fua la iai le aafia o le taavale, o le ford ranger a ia le tulaga e iai e mo’I a e le solid tele ia apa ma tulaga ia, lea e mafua ai ona tele le aafia o le ford ranger ona e fai si malo tele o le side o le loli.”

[15.2] Sergeant Uiese in evidence given that the road was wet on the morning of the accident, that it was possible that the Ford Ranger may have braked but the vehicle because of the condition of the road still had traction and took the dyna truck with it ending up across the lane.

Did the accident cause the death of the deceased?

16. Afa Patolomeo who was crossing the road to Lucky Foodtown supermarket gave evidence that when he heard the collision, he turned around and walked to where the accident was. He saw that the deceased driver was sitting behind the wheel with her head down. When no one approached to give help after about five (5) seconds, he walked over and gave first aid assistance to the deceased by first finding a pulse and when he did not find a pulse, he released the seatbelt and tried to put the deceased chair back so he can resuscitate when the ambulance arrived.^[5]
17. When the accident happened, Aso Faaiuga was able to turn right onto the main road. Instead of driving away he parked in front of ACE Hardware and walked back to where the two vehicles were. He said he got to the ford ranger and a man who had opened the deceased door said that that the old woman is dead. I left and went and stood on the other side of the road and shortly after the ambulance arrived and took the deceased.
18. Dr Chandler Tuilagi was the attending physician when the deceased was taken to Motootua Hospital. Dr Tuilagi’s evidence is that the deceased was pronounced dead on arrival. Dr Tuilagi found no external wounds on the deceased and the deceased does not have any known medical illness such as high blood pressure, diabetes or any heart problems noted on her file with the Hospital. His evidence is simply that the deceased died from a likely fatal cardiac arrhythmia (heart attack) due to the impact of the vehicle accident on the deceased. Dr Chandler’s further evidence is that a fatal cardiac arrhythmia can happen to anyone not just those who have underlying heart problems. He was 90-95% satisfied as to the cause of death and did not seek for a post mortem to be carried out.^[6]
    • Transcript, page 53
    • “Pros: Is it possible for individuals involved in a motor vehicle accident to experience severe cardiac events as a result of an accident even if there are no visible external injuries?
    • Wit: Yes, yes indeed either any car accident on top of and major causes to any sudden cardiac death is due to the severe impact or force exerted into that individual. So even if they don’t have injuries but still there is impact that causes the likelihood of fatal cardiac arrhythmia, so yes, any vehicle accident is one of the top in terms of sudden cardiac death.
    • Pros: My next question is, in your observation based on the information provided is there any other medical explanation for the cause of death other than the collision that you think is possible in this matter?
    • Wit: No. So clinically as documented within everything, all the pertinent findings there, I clearly outlined some of the things that might lead to her death but the word that I want to emphasize is “sudden” or basically acute that the patient can die within minutes to an hour...”

Discussion

19. Counsel for the defendant advanced questions that the accident was not fatal because the dyna only had scratches and that it could not have caused death of the deceased. Furthermore, counsel for the defendant said the heart attack must have been due to an underlying medical condition or that the deceased has a heart problem.
20. There is no other evidence other than the evidence by the prosecution witnesses. I accept the evidence of the witnesses, Aso Faaiuga and Fale Faatoia that the defendant who was supposed to give way to the deceased ford ranger did not give way but instead turned left on to the main road when the ford ranger driven by the deceased was on the main road. If the defendant had stopped before turning left, he would have seen that the deceased ford ranger was approaching and was at short distance from his vehicle.
21. The evidence of Aso Faaiuga of where the ford ranger on its left front side collided with or hit the dyna on the right side of its bed/base towards the end is corroborated by the evidence or photos taken by Senior Sergeant Mose Lotemau. The photos showed scratches on the dyna’s bed/base jersey^[7]. This was also the argument by counsel for the defendant as the point of impact and confirmed by Sergeant Uiese as the point of impact.
22. The point of impact means that the dyna has not fully immersed itself on to the main road or that its whole body was not fully on the main road when it was hit by the ford ranger driven by the deceased. If the Dyna had fully gotten on to the main road, the ford ranger would have hit the dyna squarely on the back of the bed/base, but it did not. It was hit on the right side by the front left side of the ford ranger. This is consistent with the evidence of Aso Faaiuga who said that the dyna had not fully gotten on to the main road when it was hit by the ford ranger on the right side of its base.
    • Transcript, p.37
    • “DC: ....ae le sa’o sa tatau la ona lavea le pito I luma o le faitotoa o le aveloli? Ona o lea ua fetaui faatasi a le o’o mai?
    • Wit: faafetai mo le faafesili, o la’u tala lea na fai atu I la’u vaai, ua oo mai luma, lata mai la’u taavale ae oso ifo loa le dyna ga e alu, tusa ua uma I luma le ulu o le afi o le dyna ae o le pito I tua sa tautau lea na alu atu le ranger so’a.” (my emphasis)”
23. There is evidence the road was busy as it was a Saturday and was wet and slippery for it had rained earlier and was still drizzly. A prudent driver under those conditions driving a dyna truck, would have exercised much care by stopping first at the intersection to make a quick assessment to see if it’s safe to turn left on to the main road. Accordingly, the defendant was not a prudent driver.
24. The evidence of Afa Patolomeo is, that he could not find a pulse or resuscitated the deceased when the accident happened. Dr Chandler Tuilagi confirmed that the deceased has no known medical condition or heart problem with her medical records at the hospital. In his medical opinion the deceased died of a fatal heart attack due to the impact of the collision on the deceased. That is, the deceased would not have died but for the collision or car accident that cause the deceased to suffer a fatal heart attack. Dr Tuilagi declared the deceased, dead on arrival. He also did not order a post mortem for he was satisfied as to the cause of death was due to fatal cardiac arrhythmia.
25. I accept the evidence of the prosecution witnesses, Fale Faatoia and Aso Faaiuga as to the collision between the ford ranger driven by the deceased and the Dyna driven by the defendant. Both had a clear view of the Dyna, the Ford Ranger approaching and the collision. These two witnesses do not know each other, the possibility of collusion is therefore, minimal to non-existent. They also have no reason to lie for they do not know the deceased. I find them to be credible witnesses. Their evidence was supported by the evidence Senior Sergeant Mose Lotemau and Sergeant Ainea Uiese.
26. I also accept the evidence of Afa Patolomeo when he attended to the deceased when the accident happened that he could not find or feel pulse and that he was unable to resuscitate the deceased. His evidence is consistent with the evidence of Dr Chandler Tuilagi who declared the deceased dead, on arrival at Moto’otua Hospital. I also find his evidence reliable and accurate.
27. I accept the following evidence to have been proven beyond reasonable:
    • (i) the defendant did not give way or stopped to see if the main road was clear before turning left;

(ii) the defendant’s Dyna was not fully immersed or got on to the main road when it turned left;
(iii) the deceased vehicle was on the main road and hit or collided with the right side of the Dyna bed; and
(iv) the deceased suffered a fatal heart attack.

Findings

28. I find that Prosecution have proven beyond reasonable doubt that the defendant on the 6^th February 2021 at Saleufi (Lucky Foodtown three corner), being the driver of a Dyna Isuzu motor vehicle, negligently drove such vehicle thereby caused death to Jane Iona, a female of Vaivase and Taelefaga, Fagaloa.

JUSTICE TUATAGALOA

^[1] see also Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 cited in Police v Yvette Kerslake,
^[2] Transcript, pp38 & 39
^[3] Transcript, p15
^[4] Crime Scene Photos – Exhibit P1
^[5] Transcript, p.23
^[6] Report of Medical Doctor to Coroner – EXH P3
^[7] EXH P2 - Crime Scene Photo 2 marked “A”