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Chang v Attorney General [2018] WSCA 3 (13 April 2018)

IN THE COURT OF APPEAL OF SAMOA
Chang v Attorney General [2018] WSCA 3


Case name:
Chang v Attorney General


Citation:


Decision date:
13 April 2018


Parties:
PRECIOUS CHANG (Appellant) and ATTORNEY GENERAL OF SAMOA (Respondent)


Hearing date(s):
09 April 2018


File number(s):
CA07/17


Jurisdiction:
CRIMINAL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Rodney Hansen


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The appeal is allowed. On the charge of negligent driving causing injury the appellant is discharged without conviction. The Attorney’s appeal on the charge of failing to stop and ascertain is dismissed.


Representation:
A M Leung-Wai for Appellant
S Perese for Respondent


Catchwords:
Negligent driving causing bodily injury - dangerous driving - failing to stop and ascertain injury


Words and phrases:
Initially appealed from District Court up to Supreme Court; facts not disputed;


Legislation cited:
Criminal Procedure Act 2016, ss.147(1)(a); 154(2)(b)(iii).
Road Traffic Ordinance 1960 ss.39A; 39(1); 44(1)


Cases cited:
Attorney General v Tavui [2014] WSCA 3 (2 May 2014);
Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76;
Houten v Police [1971] NZLR 903;
Kerslake v Attorney General [2014] WSSC 87;
Kouznetsov v NZ Police [2014] NZHC 1482;
R v McArthur [1975] 1 NZLR 486
Rae v International Insurance Brokers (Nelson J
Marlborough) Limited [1998] 3 NZLR 190 (CA);
Waddington v Boyd [1959] NZLR 1332, 1335.


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


CA07/17


BETWEEN:


MAUGA PRECIOUS CHANG
Appellant


AND:


ATTORNEY GENERAL
Respondent


Court:
Honourable Justice Fisher
Honourable Justice Panckhurst
Honourable Justice Hansen


Hearing: 9 April 2018


Counsel:
A M Leung-Wai for Appellant
S Perese for Respondent


Judgment: 13 April 2018


JUDGMENT OF THE COURT


Introduction

  1. The appellant faced three charges in the District Court:
    1. Negligent driving causing bodily injury (section 39A of the Road Traffic Ordinance 1960 (“RTO”));
    2. An alternative charge of dangerous driving (section 39(1) RTO); and
    1. Failing to stop and ascertain injury (section 44(1) RTO).
  2. The District Court dismissed the charges. That was reversed in part by the Supreme Court following a prosecution appeal. The Supreme Court convicted the appellant on the charge of negligent driving causing injury but confirmed the dismissal on the charge of failing to stop and ascertain.
  3. In this Court the appellant appeals against her Supreme Court conviction on the charge of negligent driving causing injury. The Attorney General cross-appeals against the dismissal of the failing to stop and ascertain charge.

Factual Background

  1. The central facts are not in dispute. The appellant was driving a Hyundai Tucson car (“the Tucson”) in an easterly direction along Main Beach Road in Apia. She was accompanied by a front seat passenger, Loretta Teueli. The road in both directions is double lane separated by a central solid white line. On each side there is a broken white line separating the two lanes travelling in that direction. The appellant was driving on the inside lane closest to the centre-line. She was intending to turn right across the oncoming traffic into the entrance-way to the TATTE building.
  2. Approaching from the opposite direction was a west-bound school bus driven by Mr Filipo. The bus was travelling on his inside lane in a westerly direction. The appellant needed to complete her turn across the path of the oncoming bus in order to gain the safety of the TATTE entrance.
  3. As the bus approached the appellant she made her right-hand turn. On seeing the appellant’s Tucson ahead of him the driver of the bus attempted to brake and swerved to the left. Because the bus had defective brakes it was unable to stop in time. The front of the bus struck the front left of the Tucson. The impact occurred in the outer west-bound lane, that is to say the lane closest to the TATTE entrance. The bus pushed the appellant’s vehicle sideways across the TATTE entrance and onto the footpath area. The bus also hit the front of a taxi that was waiting at the TATTE entrance.
  4. Following the collision, the appellant’s passenger, Ms Teueli, told the appellant loudly and urgently that she need to be taken to the hospital. The appellant reversed the Tucson from its stationary position and drove off to the hospital with Ms Teueli. The vehicles left at the scene were damaged but no-one remaining there was injured.
  5. At the hospital Ms Teueli displayed no surface injuries but complained of severe pain in her left side. From the pain Dr Amituanai concluded that she must have internal soft tissue injury.

District Court Hearing

  1. The three charges mentioned were laid against the appellant. The principal charge was negligent driving causing injury. Negligent driving causing injury is defined in s 39A of the Road Traffic Ordinance 1960 as follows:

39A. Negligent driving causing death – 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 or rides a vehicle and thereby causes bodily injury to or the death of any person.

  1. The three ingredients requiring proof are:
    1. That the Defendant drove a vehicle negligently;
    2. That bodily injury was caused to any person; and
    1. That there was a causal link between the Defendant’s driving and the injury.
  2. In the District Court it was no disputed that the appellant was driving a vehicle at the relevant time and that there was a causal link with the consequence to Ms Teueli. The disputed elements were whether her driving was negligent and whether the effects on Ms Teueli amounted to “bodily injury” for the purposes of s 39A.
  3. At trial the prosecution called seven witnesses. None were called for the defence.
  4. Constable Fetu produced a plan and booklet of plans and photos. The plan showed a skid mark on the road opposite the TATTE entrance.
  5. Mr Filipo, the bus-driver, said that he was driving at 10-15 mph and in third gear. He saw the Tucson coming from the opposite direction. Without either stopping or signalling, it took a sudden and sharp turn across his path towards the TATTE entrance. He pumped his brakes and swerved to the left but could not avoid a collision. He accepted that the brakes were defective, needing to be pumped three times before they were fully effective.
  6. Mr Kereti was a bystander walking in the vicinity of the TATTE entrance. He saw the Tucson turn for the TATTE entrance without stopping or signalling but later conceded that he could not recall if the Tucson’s indicators were turned on.
  7. Mr Selesele was the driver of the stationary taxi. As with the other witnesses, he saw the collision occur in the outer west-bound lane. He maintained that the Tucson did not stop before turning but conceded that he could not see whether its indicators were on before the collision. He thought that the bus was travelling fast.
  8. The appellant’s front seat passenger Ms Teueli recalled that as they approached the TATTE entrance from the west, they were in a queue of vehicles. They stopped in their lane opposite the TATTE entrance and signalled a turn. The appellant then drove slowly across the road towards the TATTE entrance. While she was doing so Ms Teueli was able to see the on-coming bus. At first she had no reason to be concerned because there was enough distance for the bus to slow down and/or stop. However as they reached the outside lane she realised that the bus was not stopping. The collision then occurred. After the collision she felt numb and demanded that the appellant take her to hospital. At the hospital she was prescribed medication and discharged. She felt pain for one to two weeks and was off work for several days.
  9. At the hospital Dr Amituanai saw no visible signs of injury but considered that the pain experienced by Ms Teueli was “a result of a sprain in the muscles and skin on the left side of her body as a result of the vehicle collision”. The doctor maintained that the degree of pain that Ms Teueli appeared to have experienced indicated that it was deeper than the skin and impacted on the muscles and organs.
  10. Sergeant Pule gave evidence as to his dealings with the appellant. His evidence was not significant for appeal purposes.

District Court Judgment

  1. In his judgment the District Court Judge said that in preference to contrary evidence he accepted the evidence of Ms Teueli that the appellant’s car had stopped and signalled before turning across the road. He also accepted her evidence that there was sufficient distance from the bus that she was initially unconcerned. He identified the defective brakes on the bus as the cause of the collision and also considered that the speed of the bus must have been more than 10-15 mph. He considered that the point of impact was in the middle of the west-bound outer lane. He summarised the facts as follows:
  2. On those facts the Judge considered that the appellant had not acted negligently.
  3. The Judge also found that the bodily injury element of the offence was not proved. On that subject he said:

I accept that Ms Teueli was in severe pain. But in the absence of evidence of bruising or actual physical injury and applying Clements v. Gill [1953] SASR 25 and R v. McArthur [1975] 1 NZLR 486 referred to in paragraphs 45 and 46 above, I am left in a reasonable doubt that that pain amounted to ‘bodily injury’ within the meaning of the charge.

  1. The Judge’s finding that there was no negligence necessarily disposed of the alternative charge of dangerous driving.
  2. On the charge of failing to stop and ascertain, the Judge concluded:

I agree with the defence submission that the accused did what any reasonable person would in the circumstances, and that it cannot be the intention of s44 that the accused would delay taking Ms Teueli who was affected by the collision, to check on the passengers of the bus, taxi or any other persons, when there were other people around the vicinity who would inevitably make the inquiry.

  1. In consequence, all three charges were dismissed.

Supreme Court Judgment

  1. The prosecution appealed. On the principal charge of negligent driving causing injury the Supreme Court Judge differed from the District Court Judge on one factual detail. It concerned the position of the Tucson at time of impact. On the Supreme Court Judge’s analysis of the evidence, the point of impact was around the centre of the outside lane but because the bus struck the front left part of the Tucson, the rear of the Tucson must have still been encroaching on the inside lane.
  2. The more fundamental conclusion of the Supreme Court Judge, however, concerned the question of negligence. On that subject she said:

The trial Judge concluded that the respondent turned in front of the bus with
sufficient distance to avoid a collision only if the bus slowed down to avoid that collision. The responsibility therefore has been shifted from the driver making the right hand turn across two lanes of potentially oncoming traffic to the driver in those lanes with right of way. That is an error of law in my view.

...

Whether the respondent indicated to turn right or whether the bus brakes were defective is not the issue, it is whether the respondent was negligent when she turned right while there was a bus travelling on the inside westbound lane at a speed of more than 15mph.

...

The reasonably prudent driver would not commence a right turn across two lanes of traffic without ensuring that such turn could be safely completed without relying on the conduct of the oncoming driver.

  1. As to the injury element of the offence, the Supreme Court Judge said:

From the evidence of Ms Teueli and Dr Amituanai, Ms Teueli obviously suffered injury(ies) from the accident which may not be visual but have nevertheless caused Ms Teueli some amount of discomfort and interfered with her health because she took 1-2 weeks to recover.

  1. For those reasons the Judge concluded that the negligent driving causing injury charge was established and the conviction was entered accordingly.
  2. The Supreme Court Judge did not uphold the failing to stop and ascertain charge. On that subject she held:

The duration to stop is the time reasonably necessary to ascertain whether any person is injured and to render assistance. There is no dispute that the respondent failed to stop, that straight away after the accident reversed and drove off. In the present circumstances, the purpose behind s.44(l) has been achieved regardless that the respondent did not stop but the respondent did ascertain that her passenger (Ms Teueli) had suffered an injury.

Appeal ground one: Standard of Review

  1. In this Court the appellant’s first ground of appeal was that the Supreme Court Judge had reversed the onus of proof.
  2. The context is that the Attorney-General has a general right of appeal to the Supreme Court against the dismissal of an information in the District Court.[1] On appeal the Supreme Court has the power to uphold the appeal and convict the respondent on the charge for which the appeal was brought.[2] As the Supreme Court Judge said, the grounds on which such an appeal could be allowed include a first instance failure to draw the only reasonably available inference from unchallenged primary facts,[3] or a first instance conclusion which was not open on the evidence or the trial judge having been plainly wrong in the conclusion he or she reached.[4]
  3. Having clearly articulated those principles the Judge went on to say:

The test is whether the verdict (in this case the decision of the Trial Judge) is unreasonable, having regard to all the evidence because the jury (assessors or Trial Judge) could not having regard to all the evidence have been satisfied beyond reasonable doubt that the respondent was not guilty.

  1. As the appellant rightly says, that articulation of the test reversed the actual onus of proof. Had the Judge rested her decision on that approach applied literally, it would have been fatal to her decision.
  2. However, we are satisfied that the inclusion of “not” in the last line was inadvertent. Following that passage the Judge continued:

An Appellate Court is required to carefully scrutinise all the evidence and ask, whether taken at its highest, the evidence available could have properly led to an acquittal. I approach such task reminding myself of the principles stated in R v Munro6 that the Appellate Court performs a review function, not substituting its own view of the evidence and that reasonable minds may differ on matters of fact.

  1. The correct articulation of the principle in the last passage, combined with the actual approach demonstrated by the Judge, satisfies us that the way she had expressed earlier reversed the onus of proof was a slip of the tongue. It played no part in her actual reasoning. This ground fails.

Grounds Two, Three, Four and Five: District Court factual findings open on the evidence.

  1. In this Court the appellant expressed in various ways the point that the factual findings made by the District Court Judge were open to him on the evidence and could not have been successfully challenged in the Supreme Court.
  2. Our analysis of the Supreme Court judgment is that, with one exception, it did not challenge the factual findings made in the District Court.
  3. The exception is that the Supreme Court Judge challenged the trial Judge’s factual finding that “The Tucson cleared the inside lane and was well on the outside west-bound lane” at the time of the impact. It was not disputed that the point of impact was around the middle of the outside lane and that the bus had struck the Tucson above the left front tyre and front part of the left front door. The Supreme Court Judge pointed out that given the length of the Tucson, a collision with the front of the Tucson in one lane was consistent with location of the back of the vehicle in the other lane.
  4. In this Court the appellant submits that it was not open to the Supreme Court Judge to substitute her own view on what was essentially a point of fact. There may well be something in the Supreme Court Judge’s view on that point but we do not find it necessary to consider it further. The case does not turn on the precise position of the Tucson at time of impact. It is irrefutable that a collision occurred and that it followed the appellant’s turn across the path of oncoming traffic. The real question is whether the appellant’s driving was negligent.
  5. The crux of the Supreme Court judgment was the Judge’s conclusion that a reasonably prudent driver would not have tried to make a right turn across two lanes of traffic without ensuring that the turn could be completed without relying on slowing down or evasive action on the part of the oncoming driver.
  6. We agree. On any approach to the facts, a bus driver who had the right of way was confronted with a situation in which an accident would occur if he did not slow down or successfully swerve away. That he was unable to do so effectively reflected badly on the state of his vehicle, his speed, and/or the way he drove. But that was not the point. No amount of fault on his part could remove the focus from the driving of the appellant. A driver in the appellant’s position was not entitled to turn across the path of oncoming traffic in reliance on successful avoidance action on the part of the oncoming traffic.
  7. We agree with the Supreme Court Judge. Whether there was negligence here does not turn on a dispute over the primary facts. The trial Judge failed to draw the only reasonably available inference from primary facts. The only reasonably available inference was that the appellant was negligent in turning across the path of oncoming traffic without first ensuring that the turn could be safely completed without avoidance action on the part of the oncoming traffic.

Ground Six: No bodily injury.

  1. The trial Judge considered that bodily injury was not proved. The Supreme Court Judge disagreed. The appellant submitted that on the evidence it was open to the trial Judge to find a reasonable doubt on that score.
  2. The onus is undoubtedly on the prosecution to prove bodily injury. The question is whether the symptoms reported by Ms Teueli, coupled with the diagnosis of the doctor, amounted to “bodily injury” for the purposes of s 39A of the Road Traffic Ordinance.
  3. There is bodily injury for present purposes where the application of an external force to a person’s body causes an interference with that person’s health and comfort that is more than merely transitory or trifling.[5] That is not intended to be an exhaustive definition, but it is sufficient for cases like the present one. We do not think that authorities on “bodily harm” are of help given the different considerations that may apply.
  4. Although the onus lies on the prosecution to prove such an injury, there is no limitation on the means by which the onus is discharged. One means of proof is evidence of signs which are visible to the naked eye, such as surface bruising, cuts or lacerations.[6] But equally, the existence of the injury can be proved by the symptoms suffered coupled with the diagnosis of a doctor. There is nothing in the Act confining injuries to external or visible injuries.
  5. In the present case it was not disputed that Ms Teueli felt numbness in her left side following the collision, that her symptoms were such that she demanded that the appellant take her immediately to hospital, that she reported severe pain to the doctor, that the doctor diagnosed soft tissue injuries which she described as injuries to muscles, tendons, ligaments, usually bruises or strains not usually manifesting in external appearance, that the symptoms persisted for one to two weeks and that this entailed her taking several days off work.
  6. We do not think that those detrimental effects can be dismissed as transient or trifling. Nor is there any ground for questioning the doctor’s diagnosis. In our view the evidence demonstrates bodily injury. The trial Judge’s assumption that external signs were necessary was an error of law.
  7. All elements of the charge of negligent driving causing injury were therefore established. We agree with the Supreme Court Judge on that score. That made it unnecessary for the Court to consider the alternative charge of dangerous driving.

Ground Seven: No opportunity to be heard as to entry of conviction.

  1. The appellant submitted that the Supreme Court Judge erred in law by entering a conviction for negligent driving causing injury without offering her the opportunity to seek a discharge without conviction.
  2. The matter is governed by s 11 of the Sentencing Act 2016 which provides:

11. Discharge or order to come up for sentence if called on (1) If a defendant is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the defendant would be more appropriately dealt with by:

(a) Discharging the defendant without conviction under section 69; or ...

  1. It appears from s 11 that in every case the Court is to consider the possibility of such a discharge. There is no suggestion in the Supreme Court judgment that such a possibility was considered.
  2. There could be no criticism of the Judge in that respect. If the defence had contemplated such a plea it would have been preferable for the defence to say so at the conclusion of the hearing. However the statute requires that consideration be given to the possibility of a discharge. We will therefore undertake that responsibility at the end of this judgment.

Failing to stop and ascertain

  1. The respondent cross-appeals against the dismissal of the charge of failing to stop and ascertain. In that regard, s 44 of the Road Traffic Ordinance provides:

44. Duties of drivers in cases of accidents – (1) If an accident, arising directly or indirectly from the use of a motor vehicle, occurs to a person or to any horse or vehicle in charge of any person, the driver of the motor vehicle shall stop, and shall also ascertain whether he or she has injured any person, in which event it shall be his or her duty to render all practicable assistance to the injured person including transportation of that person to hospital.

  1. In the present case it is not disputed that there was an accident arising from the Defendant’s use of a motor vehicle and that an accident occurred to various persons including Ms Teueli and the occupants of the other two vehicles. The question is whether the driver failed to stop, ascertain and render all practicable assistance.
  2. As with the respondent and the Supreme Court Judge, we think that s 44(1) imposes three obligations on a driver where an accident occurs to a person arising directly or indirectly from the driver’s use of a motor vehicle, namely:
    1. To stop.
    2. To ascertain whether a person has been injured; and
    1. To render all practical assistance to the injured person including transportation to hospital where appropriate.
  3. The District Court Judge recorded that the vehicles had come to a stop after the collision. He understood the Prosecution case to be that “the accused should have done more by stopping to check whether any other people had been injured”. In other words, in the District Court it was not disputed either that the appellant had come to a stop or that the appellant was stopped long enough to ascertain from Ms Teueli (twice) that she needed to be taken to the hospital. The Judge put it this way:

Shortly after the collision and the vehicles came to a stop, the accused reversed and drove off. Ms Teueli’s evidence is that this was after she forcefully told the accused at least twice to take her to the hospital. From the scene, they headed straight to TTM Hospital where Ms Teueli was treated.

Prosecution submitted that the accused should have done more by stopping to check whether any other people had been injured.

In the circumstances, I am not satisfied that she could have done more. Ms Teueli was seated directly against the point of impact. She demanded the accused immediately after the accident to take her to the hospital, and the accused could not have known the seriousness or otherwise of her condition.

I agree with the defence submission that the accused did what any reasonable person would in the circumstances, and that it cannot be the intention of s44 that the accused would delay taking Ms Teueli who was affected by the collision, to check on the passengers of the bus, taxi or any other persons, when there were other people around the vicinity who would inevitably make the inquiry.

  1. The Supreme Court Judge appears to have approached the matter rather differently in her conclusion as follows:

In the present circumstances, the purpose behind s.44 (l) has been achieved regardless that the respondent did not stop but the respondent did ascertain that her passenger (Ms Teueli) had suffered an injury. Ms Teueli insisted to the respondent to take her to the hospital straight away. Understandably, the respondent took her straight away to hospital. No one else was, in fact, injured in any event.

  1. In our view the duration of the stop required by the Act must be measured by the time which is reasonably necessary in the particular circumstances to enable proper inquiry to be made as to whether anyone is injured and requiring assistance.[7] The requirement is to be interpreted in such a way as to fulfil the purpose of ensuring that persons who have been injured in an accident arising from the driving of a motor vehicle will receive assistance and, where appropriate, taken to hospital. All the circumstances must be closely considered to see whether that purpose has been fulfilled in the particular case.
  2. In the present case the circumstances were these:
    1. A number of vehicles were involved in the accident, and the fact that one was a bus, meant that the number of victims was potentially wide.
    2. On the other hand this was not akin to a catastrophic accident on an open road where significant injuries would have been almost inevitable. The relatively low forces involved in the accident is evidenced by the lack of injury to anyone other than Ms Teueli.
    1. The accident occurred during daylight hours in a busy part of town. There were many adults in the vicinity who could be expected to step in and render such assistance as might be required.
    1. The appellant stopped long enough to ascertain that Ms Teueli had an injury and needed to be taken immediately to hospital. To the appellant’s knowledge at that time, remaining at the scene might have caused critical delay in getting treatment for Ms Teueli
    2. The appellant did render immediate assistance by taking Ms Teueli to hospital as the statute requires.
  3. We think that even in those circumstances many drivers would have made a quick check of the passengers in the other vehicles before leaving the scene. It cannot be assumed that the duties imposed by s 44 will be discharged simply because a passenger in the defendant’s vehicle needs to be taken to a hospital. However in the particular circumstances we have outlined we are not satisfied that the prosecution proved its case that the appellant failed to stop and ascertain.

Grounds for discharge without conviction

  1. Sections 69 and 70 of the Sentencing Act 2016 provide:

69. Discharge without conviction-(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the defendant without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is taken to be an acquittal.

(3) A court discharging a defendant under this section may:

(a) make an order for payment of costs or the restitution of any property; or

(b) make an order for the payment of any sum that the court thinks fair and reasonable to compensate person who, through, or by means of, the offence, has suffered -

(i) loss of, or damage to, property; or

(ii) physical harm; or

(iii) loss or damage consequential on any physical harm or loss of, or damage to, property; or

(c) make an order that the court is required to make on conviction.

(4) If the court is considering making an order under subsection (3)(b), it may order a reparation report to be prepared under section 25 as if the court were considering imposing a sentence of reparation.

(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any physical harm, or loss or damage consequential on physical harm, unless the person who suffered the physical harm is a person described in paragraph (a) of the definition of “victim” in section 2.

70. Guidance for discharge without conviction - The court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.

  1. We have been assisted by the submissions of both counsel in this Court as to the application of these provisions to the present case.
  2. Two steps are involved. The first is that in terms of s 70 a Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
  3. In the normal course a discharge of this kind falls for consideration at a time when an attempt must be made to foresee what the consequences of a conviction might be in the future. In the present case we largely know of the consequences already due to the lapse of time since the charges were originally brought before the District Court. But Parliament cannot have intended that in a case like this the consequences of the prosecution that have already occurred must be ignored. With the benefit of hindsight the plea for a discharge ought to have been heard in the District Court. It is no fault of the appellant that they have not come before the Court for consideration until now. The other point is that the indirect consequences of a conviction must include the effect which a conviction would now have in publicly endorsing and justifying the harm that the appellant has already suffered. By now the consequences suffered by the appellant in this case have already been major and public. To uphold the conviction would be to imply that those consequences were justified. To withhold a conviction would be to imply that the consequences were disproportionate. For those reasons we are required to consider the consequences to the appellant since the prosecution was commenced as well as in the future.
  4. As to those consequences Mr Leung-Wai said or implied that the appellant’s career with the Attorney General’s office, and as Director of Public Prosecutions, has been destroyed by the prosecution and that it brought to an end her rise to a position as the youngest CEO in Samoa by the age of 34. We were not given sufficient information to form a view as to the cause of the appellant’s resignation. We therefore put that question to one side.
  5. However Mr Leung Wai went on to point to the following:
    1. In August 2016 the Police saw fit to arrest the appellant at her place of work rather than serve the summons that would be normal for traffic offences of this kind. This reflects no credit on the Police and added unnecessarily to the appellant’s public humiliation.
    2. Once arrested the appellant was suspended from her position as Director of Public Prosecutions. She remained suspended until her resignation in March 2017.
    1. The appellant and her family suffered humiliation and material hardship as a result of the prosecution and its attendant publicity.
    1. Proceedings have now been on foot for a total of 20 months with the inevitable stress and uncertainty which this caused to the appellant and her family.
    2. If left in place, the conviction would cast a permanent and public shadow over the appellant and might have unforeseen repercussions for her career, for her travel and for similar situations in the future.
  6. Those consequences are to be compared with the gravity of the offence. The accident was due to a moment’s inadvertence. Without in any way condoning the error made, split second misjudgements of this kind are the sort of error that many drivers may make. In this case the appellant was unlucky enough to make that mistake when approaching a bus with defective brakes. Instead of slowing or stopping, as an oncoming vehicle could normally be expected to do, the bus was unable to stop and ploughed into the side of the appellant’s car. The appellant should never have created that possibility in the first place. But in terms of culpability, this was at the lowest end of the scale for this type of offence. And fortunately the injury to Ms Teueli was of short duration.
  7. For those reasons we are satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.
  8. We turn to the overriding discretion. Mr Leung Wai drew attention to the appellant’s good character, her work for charities, and the outstanding contribution she made to the Samoan community through her work as a civil servant. Added to the factors already discussed we are satisfied that in this case there should be a discharge without conviction.
  9. Lest it be thought that a discharge will readily be granted for a conviction of this kind, we emphasise that this is very much an exceptional case. It has nothing to do with the appellant’s profession or her former position as a civil servant. It has to do with an unfortunate and unusual combination. The combination is the moment’s inadvertence on the part of the appellant, the defective brakes on the other vehicle, and the disproportionate consequences for the appellant. That combination will be rare indeed.

Result

  1. The appeal is allowed. On the charge of negligent driving causing injury the appellant is discharged without conviction. The Attorney’s appeal on the charge of failing to stop and ascertain is dismissed.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE PANCKHURST
HONOURABLE JUSTICE RODNEY HANSEN


[1] Criminal Procedure Act 2016, s 147(1)(a).
[2] Section 154(2)(b)(iii).
[3]Attorney General v Tavui [2014] WSCA 3 (2 May 2014) at [21]; Auckland City Council v Wotherspoon [1990] 1 NZLR 76.
[4]Kerslake v Attorney General [2014] WSSC 87; Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190 (CA).
[5] As to the latter part of that definition see Kouznetsov v NZ Police [2014] NZHC 1482 at [ 33].
[6] R v McArthur [1975] 1 NZLR 486, 487 lines 29- 31
[7]Waddington v Boyd [1959] NZLR 1332, 1335; Houten v Police [1971] NZLR 903.

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