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Police v Tulaga [2025] WSSC 46 (12 February 2025)

IN THE SUPREME COURT OF SAMOA
Police v Tulaga [2025] WSSC 46 (12 February 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MIKA TULAGA, male of Satuiatua and Tuanai.

Defendant

Counsel: F. Lagaaia for prosecution
M. Lemisio and F. Ainuu for the defendant

Hearing: 27 September 2024

Submissions: 07 February 2025

Decision: 12 February 2025

DECISION AND SENTENCE OF THE COURT

1. The defendant is charged that at Aleisa on 30 September 2022 the defendant of Satuiatua and Tuanai negligently drove a motor vehicle namely a Toyota truck registration number 9503 on Fiaga street and thereby caused the death of Jarazc Kose a male of Vaigaga.
2. The defendant pleaded not guilty to the charge but on trial day changed that to guilty. As this court also sits in a Coronial capacity enquiring into this accident, I certify that Jarazc Kose a male 18 years of age of Vaigaga died on 30 September 2022 at Aleisa, cause of death was from traumatic chest injuries sustained in a motor vehicle accident that day. I further certify that no alcohol was involved in this matter and the defendant will be dealt with today according to the law.
3. The Amended Summary of Facts filed by the Police was challenged by the defendant and after hearing a number of Police witnesses the defendant elected to call no evidence. After hearing from the witnesses the court has reached the following conclusions: firstly, paragraphs 1 to 6 of the Amended Summary of Facts are confirmed viz that the defendant is a 48 year old male of Satuiatua and Tuanai married with children. At the time of the accident he was working as a truck driver for a lawn mowing contracting company, he was responsible for driving workers to and from working sites. The deceased was an 18 year old boy from the village of Vaigaga working for the lawn mowing company.
4. On Friday 30 September 2022 the defendant was driving the truck registration number 9503 belonging to the company to a job at the EPC compound at Aleisa around 11:00 in the morning. Afterwards the defendant drove the truck from the EPC compound towards the town area. Seated beside him in the front seat of the vehicle was Molia Iakopo an employee of the company. And at the back of the vehicle the deceased and Vitale Aiago another employee.
5. I find after hearing the evidence that in relation to paragraphs 7 to 10 of the Amended Summary what occurred was the following: when the truck left the EPC compound it appeared to be proceeding at normal speed. It had to be in order to traverse the various sharp bends that lie between the Compound and the accident scene. Somewhere before the accident site the truck began to pick up speed. Prior to the scene there are two bends in the road which occur immediately after a long downhill strait. I am satisfied that as it proceeded down this long strait, the vehicle continued to pick up speed so that by the time it reached the first bend a left hand bend and the second bend a right hand bend, the driver had lost control.
6. The best evidence of this are the photos taken by the Police of the scene of the accident and exhibited as Exhibit ‘P-1’ for prosecution. Photos 5 and 6 of the left hand bend shows the beginning of skid marks on the tar seal road, 7 and 8 show the continuation of the skid marks and the swerving motion of the truck, 9 and 10 shows the upcoming right hand bend just before the accident site, 11 and 12 show how the truck has now crossed the center line and veered off the road onto the grass verge located in front of the ulu tree in between the two “auala afe”, 13 and 14 support the inference that the truck was now out of control as it veered again to the left side of the road. And the rest of the photos show how it left the road, went onto the left side grass verge and rolled down into a small gully.
7. These are excellent photos of the crime scene for which the Police are to be commended. They say a picture speaks a thousand words and these photos certainly tell a story.
8. The photographic evidence is consistent with the eye witness testimony the court heard firstly from Molia Iakopo who was sitting beside the defendant driver. Whose testimony was that the defendant put the truck into neutral at the top of the hill and began to “fa’ase’e” (coast) downhill. Something he had seen the defendant do before. Molia admitted he did not give the Police this information when he was questioned but what he said does provide some explanation for why the truck speed suddenly increased significantly pre-accident. His Police statement which is consistent with his evidence in court was:
   • “O Ka ma Vitale sa nonofo mai le pito i tua o le pusa o le loli. I le taimi lea na sau ai le matou loli, ou te leiloa pe sa tutu pe na nonofo i lalo le aualii nei pe na tietie mai foi i puipui o le loli. Na matou omai lava, sa sologa lelei lava le sau o le matou taavale, pau le tulaga na ou maitauina ua tau fai si saoasaoa o le loli. Ou te fia taua foi e faapea, o lea sa lelei lava foi le taofiofiina mai o le loli i le taimi na matou omai ai.
   • Ae peitai o le taimi na matou faaifoifo mai ai lalo i luga o le auala, ona e pei e āegā le auala lea i le agai Fiaga. Na fai mai ai loa le alii lea o Mikey ia te au, ua le maua se kia o le loli. Ua le ai foi taofi, i le taimi lea na ou maitauina ai loa ua fai lava si saoasaoa ane lava o le sau a le matou taavale. Na ou vaai loa i le taimi lea ua alu le matou loli i tua ma le auala i le itu agavale i le agai mai Saute i Matu, po o le agai mai Fiaga EPC ia Ulia.”
9. The photographic evidence is also consistent with the evidence of the other eye witness the young boy Vitale Aiano who was sitting in the rear of the truck with the deceased. He too heard how the truck picked up speed before the left hand bend and right hand bend, and he too heard the crunching of the gears and the screeching of tyres as the truck made its journey downhill. It sounded to him like the driver was trying to put the vehicle into gear. He said prior to the accident the truck swerved first to the right then to the left until it finally left the road altogether. Unlike the deceased he was able to successfully jump off the back of the truck thus avoiding injury to himself.
10. Both these boys Molia and Vitale testified that in subsequent test runs with the Police, the vehicle speed prior to the truck leaving the road was way above the 35mph prescribed speed limit. A further prosecution witness was Jackson Israel a resident of the vicinity of the accident who heard the screeching sounds of the accident from his house some distance away. He said “e faalogo atu o pa’o mai pa’u o le ta’avale e foliga mai o loo taumafai e taofi ma se’e ai i luga o le auala ta.”
11. The Amended Summary of facts continues to relate some other circumstances of the accident from paragraph 11 onwards.
12. The defendant and Molia were still inside the truck when it flipped and rolled down into the trench on the left side of the road. The co-worker Vitale managed to jump off the truck and he fortunately landed on a nearby bush sustaining only minor injuries to his back.
13. The deceased was still at the back of the truck when it flipped and rolled. Unfortunately, the deceased was unable to escape in time and as a result he was crushed under the truck rolling downhill.
14. Nearby neighbours who heard the loud sound of the screeching tyres and the crash quickly rushed over to locate the car accident and offer assistance. A neighbour found Vitale on the road and also discovered the truck on the left side of the road.
15. The co-worker Vitale found the deceased lying motionless next to the crash site. The neighbours and the co-worker Vitale attempted to revive the deceased but were unsuccessful. They could not find a pulse or any sign of life. They then carried the deceaseds body away from the crash site and to the main road for help.
16. One of the EPC trucks that drove by managed to stop and render assistance. They took the deceaseds body together with Vitale and Molia to Motootua Hospital for medical treatment. At that time, the defendant also sustained minor injuries but he remained at the crash site at Fiaga awaiting further help.
17. The deceased was pronounced dead on arrival at the Motootua Hospital Emergency Department at around 12:10pm after unsuccessful efforts at resuscitation by the medical teams. According to the attending Doctor at the Emergency Department Dr. Tanu Toese, the deceased had no sign of life, a bleeding nose, a fractured elbow, a deformed chest and fractured ribs and that the likely cause of death was from severe internal bleeding.
18. The other two victims Vitale and Molia were also treated at Motootua Hospital for their minor injuries from the accident and were later discharged on the same day.
19. On 17 December 2022, the deceaseds body was fully examined by the Pathologist Dr James Kalougivaki. According to the post mortem findings, the deceased sustained the following injuries that led to his death:
    • (a) Severe injuries to the ribs and sternum with complete fractures of the right anterior clavicles with broken ribs from the first to the ninth ribs along the axillary line.
    • (b) Severe injuries to the left anterior with complete fractures of the ribs from the third to the sixth ribs along the axillary line.
    • (c) Thoracic spinal column showed complete transection with complete fracture-dislocation.
    • (d) The sternum showed complete fracture.
20. The deceased died from severe traumatic chest injuries with T3 Vertebra complete fracture dislocation as the principal medical finding.
21. On the 03^rd September 2022, the defendant was brought to the Police Traffic Division at Apia where he was cautioned and interviewed accordingly regarding the traffic incident. He was then charged with one count of negligent driving causing death pursuant to section 39A (1)(3)(a) of the Road Traffic Ordinance 1960.
22. The defendants case was initially called for mention in the District Court but later transferred up to the Supreme Court on the 01 November 2022.
23. On the 28^th November 2022 when the matter was called for mention in the Supreme Court, the defendant through his counsel entered a plea of not guilty to the charge and the matter was adjourned for hearing.
24. On the 01^st July 2024 when the matter was called for hearing, the defendant through his counsel vacated his not guilty plea and substituted it with a plea of guilty to the charge of Negligent driving causing death.
25. The other significant piece of evidence is the testimony of Peter Ah Siu the mechanic who maintains the fleet of the lawn mowing company. He confirms the truck in question is an old dyna vehicle a 2001 left hand drive model. But the truck was regularly serviced and at least two weeks before the accident he installed new brakes in the vehicle.
26. This reinforces the view that it was not sudden brake failure that caused this accident. But a failure to re-engage the engine after the defendant put the vehicle into neutral. In certain old model trucks, this can cause failure in the operating power system resulting in inability to re-engage gears and a loss of brakes.
27. Mika, this was undoubtedly a tragedy that did not need to happen. The question however is whether it is attributable to momentary inattention or error of judgment on your part which is at the lower end of the negligence scale. Or is it due to your driving in a manner showing a selfish disregard for the safety of others on the road or with a high degree of recklessness which usually requires a prison sentence.
28. Prosecution suggests it is the second, your counsel argues it is the first. My assessment is this is a border-line case, but tending more towards an error of judgment on your part rather than selfish disregard and high degree of recklessness. It was a mistake to put the gear into neutral and try to cruise the truck downhill. And while the court accepts the two bends before the accident were not as sharp as others on this road, they nevertheless had to be negotiated safely. You made a wrong decision and the question now is what are the consequence of that decision for you?
29. In respect of your personal circumstances you have a record of previous convictions from another country but that does not concern the court because those are old convictions and also they are for a different kind of offending. But what does concern me is that you have according to the Probation Service a previous conviction for drunken driving in 2020, so this is not your first driving offence. No credit can therefore be given to you for a clean record or previous good character.
30. No credit can be given either for your guilty plea because you disputed the summary of facts meaning this matter had to proceed to hearing evidence. It was not a full trial but it was a trial nevertheless which occupied a lot of time and resources and in the final analysis, the scene photos and eye witnesses testimony were more than sufficient to sustain the negligence charge against you.
31. I also cannot overlook the effect this matter has had on the deceaseds family in particular his mother who says in her victim impact report
    • “Ou te fia ta’ua o Jarcz o se atalii e au malosi e faamoemoe lava iai le matou aiga i le faiga o feau aemaise le tausiga o le matou aiga. Ua ou misi lava si au tama. Ina ua faigaluega sa lagona lava le fiafia ua maua foi seisi fesoasoani i mea tau seleni, e fesoasoani mai i mea fai a le aiga ma a’u nei o le tinā. Ua motusia le ma mafutaga ma le atalii ae le uma le alofa. O lo’u lima taumatau lea i le matou aiga. Peita’i o le mea moni lava e le o mafai ona toe vaai atu i la’u tama. Ua misia foi le mafutaga ae ua ou faamagalo i le alii lea na tupu ai le faalavelave i si a’u tama, e ui ina e le’o mafai ona ou faagaloina.”
32. In perusing your personal circumstances the only matter in your favour is the Probation Office have now confirmed that your step-father who owns this company did a “fa’atoesega” on your behalf and contributed substantially to the deceaseds lauava. As required by law this factor must be taken into account in your favour.
33. In considering all these matters and also the way this accident has come about, as stated earlier I believe this is a matter where you just made bad choices on the road. The circumstances are not severe enough to warrant a custodial penalty, I will deal with your case by way of monetary penalties. But the monetary penalty must reflect the seriousness of the case. I am also satisfied from what I have read you have the ability to meet any financial penalties.
34. In respect of the charge of negligent driving causing death you will be convicted and ordered to pay the following sums: a fine of $3,500.00. In addition to that you will pay Police costs of $1,000.00, Probation service costs of $250.00, Court costs $250.00, that is a total sum of $5,000.00.
35. In addition to that I will accept your counsels recommendation that a further sum of $2,000.00 as reparation be paid directly to the mother of the deceased. That money to be paid to the Probation Office and they will forward it to the deceaseds mother. The total sum of $7,000.00 is payable by 12:00 noon Friday 14 February 2025, in default you will be ordered to serve 18 months in prison.
36. In respect of your license that is suspended forthwith and is not to be reinstated until you satisfactorily complete the Land Transport Authority course for safe and defensive driving. If you have not already done so your license should be immediately surrendered to the Registrar of the Court to be held pending that part of the penalty that needs to be carried out.
    

SENIOR JUSTICE NELSON