Police v Afualo [1999] WSDC 2 (11 August 1999)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN

THE POLICE
Informant

AND

MALUELUE AFUALO
male of Tufutafoe Savaii
Defendant

Superintendent Max Wendt for Police
Mr Toleafoa S. Toailoa for Defence

Date of Hearing: 29.7.99
Date of Decision: 11.8.99

DECISION OF VAAI, J

The accused is charged under Section 39A of the Road Traffic Ordinance 1960 with Negligent Driving a bus at Puipa'a on the 8^th May 1999 and thereby did cause the death of Atonio Lui male of Moamoa. He is also charged under the same section and arising from the same incident with Negligent driving causing bodily injuries to Loreta Tupai female of Vaitele-uta and Eseta Maae female of Falealupo.

The two charges arose out of a traffic accident on a stretch of road at Puipa'a on the morning of Saturday the 8^th May 1999 when the bus driven by the accused towards the west collided with a van heading towards east driven by the deceased. It was a violent collision. The victim was stuck in the wrecked van and he died before he was removed from the wreck. Several facts are not disputed. Firstly the defence concedes that the accused was the driver of the bus which collided with the van and the injuries sustained by the deceased from the collision resulted in his death. Secondly, it is not contested that the collision occurred when the bus driven by the accused overtook another bus which was also travelling westward. Thirdly, it is not contested that the collision took place on the left lane going west alongside the bus being overtaken by the accused's bus. Fourthly, it is not contested that the van driven by the deceased travelling from the opposite heading east was in the process of passing the bus being overtaken by the accused when the collision occurred. In other words the collision took place when the bus driven by the accused was overtaking the other bus while at the same time the van coming from the opposite direction was passing that other bus.

Evidence adduced by the prosecution is that the bus driven by the accused had a full load of passengers. As there were passengers sitting on others I therefore take the view it was overloaded when it travelled behind another bus (which I will refer as the first bus) at Puipaa. Witnesses Eseta Maae and Asera Faleono were passengers on the bus driven by the accused and both confirm that when the first bus slowed down to stop, their bus pulled to the left lane and a collision occurred. Eseta Maae was sitting in the seat immediately behind the driver and she had a clear view of the road ahead as she was sitting on the isle side of the seat. She saw the first bus suddenly stopped and the bus she was travelling in did not stop but overtook the first bus when at that time the van coming from the opposite direction was besides the first bus. As a result of the collision, she was injured on the forehead (She pointed to a scar on her forehead) and taken to hospital for treatment.

Taalo Leusogi a sixty year old man from Fasito'o-tai testified that at the village of Saina, he was following the two buses and he was about 25 metres behind the bus which collided with the van. He too confirmed the collision occurred when the bus he was following moved to the left lane to overtake the first bus.

The van travelling from the opposite direction was followed by a Ford Explorer Land Cruiser driven by one Jew Tuala, an Airport Authority employee. At Puipaa, approaching the scene of collision, Jew Tuala with his wife besides him was following the van at a distance of about 40 metres. Both vehicles were on the right hand lane travelling towards Apia. Jew Tuala saw a bus facing from the opposite direction and appeared to move from a stationary position. As the van he was following was about to pass the bus he saw the engine of another bus behind the first bus and coming on to the lane of the approaching van. His wife then called out auoi, he saw the van swerving to the right just before it collided with the oncoming bus. And the collision was closer to the rear of the first bus.

The driver of the first bus was called by the police and he gave testimony totally different to the evidence of the other eye witnesses. He is a computer engineer by trade but on weekends he drives the family bus. On the morning in question he drove the bus from Toamua towards Leulumoega. He had an assistant (commonly termed supakako) sitting behind him and a woman passenger sitting behind the supakako.

At Puipaa at the scene of the collision, he noticed the van approaching from the opposite direction and it attracted his attention because the van was encroaching onto the right lane going West. He then slowed down, pulled further to the right and brought his bus to a stop and tooted the horn. He kept tooting the horn and when the van was about 25 metres away, it was completely on the bus side of the road. He noticed that the driver of the van appeared to be asleep and when the van was about 10 metres away from the front of the bus, it swerved back to its side of the road and soon after collided with the bus driven by the accused.

This testimony is supported by the evidence given by both the passenger and supakako who travelled in the first bus. They gave evidence for the defence and I will come back to consider their evidence. The accused in his evidence said he was following the first bus from Toamua and at Puipaa after ascending the slope he saw the brake lights of the first bus and when the first bus stopped the accused moved to the left lane to overtake; and he suddenly saw a van coming across the front of the stationary bus. All he could do was swerve to the left and apply the brakes. When the accused moved on to the left lane to start the overtaking he was 15 metres behind the stationary bus and travelling at 30-35 miler per hour. He did not see the van on the left lane before he started the overtaking. Neither did he see any vehicle following the van.

From where the collision occurred heading west, there is a clear stretch of road of about 200 yard so that the accused should have seen the Land Cruiser vehicle driven by Jew Tuala and following the van which collided with his bus. In fact the driver of the first bus confirmed Jew Tuala's vehicle was following the van. Jew Tuala did say that the van was travelling on its correct side of the road. I have no reason to doubt the evidence of Jew Tuala and I am therefore satisfied that the van prior to the collision was travelling on its correct side of the road.

I now return to the evidence of the occupants of the first bus. Tumema Sauaga caught the first bus at Toamua and seated herself two seats behind the driver. At Puipaa she saw the van coming from the opposite direction and on the same lane as the bus and the van was less than 20ft away when she saw it (she indicated distance as about from witness box to the window behind the dock). At that distance and while the van was approaching, she saw the driver of the van bending over the wheel as if he was asleep. And at that distance too she told the bus driver to look at the van. The bus driver then tooted the horn after she warned the driver about the van and the van driver then woke up and swerved back to his correct side of the road when the van was about 3-4ft from the front of the bus (she indicated distance to be from witness box to nearest corner of the Registrar's table). She did not see any Land Cruiser or any other vehicle following the van although she had a clear view ahead of some 200 yards. I have no difficulty in treating this evidence as illogical and unreliable. If she did see at about 20 feet away as she indicated the distance from the witness box to the window behind the dock, and she then warned the driver about the oncoming van resulting in the driver tooting the horn, then the van should have crashed into the first bus before it swerved back to its correct side of the road.

Herota Fa'aoso the supakako, who was seated behind also gave evidence to the effect:

(a) that the van was travelling on the incorrect side of the road at Puipaa

(b) the driver of the van appeared to be asleep as it approached the first bus at Puipaa; and

(c) that the van swerved back to its correct side in front of the first bus as the bus driven by the accused was overtaking the first bus.

Like the female passenger who was sitting behind him he did not see any vehicle following the van.

But this witness did give the police a written statement on the morning of the traffic accident. It was made about four hours after the accident. He signed that statement as being correct. His sworn testimony contradicts in material parts what he told the police in his written statement. He made the statement under a different first name.

I cannot help but form the view that there has been some conspiracy between the two bus drivers and the occupants of the first bus to put the blame on the van driver who died from the collision and is therefore unable to give his version of the incident. But probably unknown to the two bus drivers and the lady passenger, the supakako had already related to the police in his signed written statement about four hours after the accident, his version of what he saw prior to what took place and his version was similar to what the other eye witnesses for the police have told the court.

But even if there has been no conspiracy amongst the witnesses concerned, I am not persuaded by the suggestion from defence witnesses and the driver of the first bus that the van driver was asleep at the wheel immediately prior to the accident. The evidence of Jew Tuala which I accept totally together with the evidence of the other eye witnesses satisfies me beyond reasonable doubt that the accused overtook the first bus in the face of the oncoming van resulting in the violent collision which caused the death of the van driver Atonio Lui and injuries to Eseta Maae. I accordingly find the accused guilty of:

(a) Negligently driving bus No. M/O.10324 on the 8^th May 1999 on West Coast Road at Puipaa and did thereby cause the death of Atonio Lui.

(b) Negligently driving bus No. M/O.10324 on the 8^th May 1999 on West Coast Road at Puipaa and did thereby cause injury to Eseta Maae.

JUDGE