Police v Chan Sau [2013] WSDC 5 (21 June 2013)

DISTRICT COURT OF SAMOA
Police v Chan Sau [2013] WSDC 5

Case name:	Police v Chan Sau
Citation:	[2013] WSDC 5
Decision date:	21 June 2013
Parties:	POLICE (prosecution) v TOGISAU CHAN SAU (accused)
Hearing date(s):	22 May 2013
File number(s):	D703/12
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata Keli Tuatagaloa
On appeal from:
Order:	On the whole of the evidence the court finds the accused guilty of negligent driving thereby causing the death of Talimalama Petelo.
Representation:	Superintendent Sale Salaa & Sergeant Ronnie Keti for the Informant Toleafoa Solomona Toailoa for the Defendant
Catchwords:
Words and phrases:	negligent driving causing death – car accident
Legislation cited:	Road Traffic Ordinance 1960 s 39A
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

TOGISAU CHAN SAU
Male of Vailuutai and Vaitele-uta.
Defendant

Counsel:
Superintendent Sale Salaa & Sergeant Ronnie Keti for the Informant
Toleafoa Solomona Toailoa for the Defendant

Hearing: 22^nd May 2013.

Decision: 21^st June 2013.

DECISION OF DCJ TUATAGALOA

1. The accused is charged under Section 39A of the Road Traffic Ordinance 1960 with negligent driving causing death to Talimalama Petelo on |
   22 February 2012 on the road from Lefaga or Safata towards Leulumoega at around 6pm. The deceased was from Lefaga.
2. The Plan (Exhibit P1) shows arrow going to Safata and arrow going Leulumoega. The witnesses refer to Lefaga or Lefaga-tai as same direction as Safata and Apia as same direction as Leulumoega.
3. The evidence adduced by the prosecution and not contested was that the vehicle was driven by the accused and was travelling from Safata way towards Leulumoega. The deceased was riding his bicycle coming from Leulumoega going Safata way where the accused was driving from. The deceased was going downhill and the accused was travelling uphill. There were no other vehicles on the road at the time of the accident.
4. There were three (3) other people in the vehicle driven by the accused two of whom Sikoloni Sikoloni and Sefo Sefo gave evidence for the prosecution.

The Evidence:

5. The witness Sikoloni Sikoloni said he did not see the accident as he was playing snakes on his mobile phone in the car. He said he heard the vehicle’s horn, felt the vehicle swerved to the right then to the left. He could not tell whether the car was travelling fast as all the windows were up but he heard a loud ‘bang’ and found out that they had hit the deceased. He said the vehicle was travelling on the left lane which was the lane that they should be travelling on heading to Leulumoega.
6. The witness Sefo Sefo basically said the same thing as Sikoloni Sikoloni but that he was texting on his phone. He heard the car’s horn looked up and saw the deceased on his bicycle in front of their vehicle in the middle of the lane their car was travelling on. The accused swerved to the side to avoid hitting the deceased but the deceased also swerved to the same side the accused swerved back in and it then hit the deceased.
7. Sapona Savali was sitting in his faleo’o situated where the road bends when a vehicle coming from Lefaga-tai heading towards Apia went past at 70 – 80 mph and not long after that he heard a loud ‘bang’. He ran to the road and saw skid marks and the same vehicle taking off. He said the skid marks on the road started from the right side of the road. He also said it was a fine day and there were no other cars on the road at the time of the accident.
8. Salilo Pinono gave evidence that the deceased went past his house on his bicycle heading to Lefaga-tai going downhill and not long after the deceased went past he heard a car screeched, ran to the road and saw the bicycle on the road and the men from the vehicle putting the deceased in their vehicle. He said that there was smoke and skid marks on the road from what he believed was from the car travelling at high speed.
9. Vaelaa Molioo said she heard a loud bang looked to the road and saw the deceased flew up and fell behind the vehicle. She said the house that she was at is on higher grounds looking down to the road.
10. Constable Toa Tafunai drew and tendered the Plan ( Exhibit P1) of the scene. On the plan he explained the black dotted lines as tyre marks or skid marks that were on the road when he attended the scene on 24 February 2012, two days after the accident. The road on the Plan did not include the bend that the vehicle came around. He was asked why he did not include the road bend on the Plan and he said he was told by Sergeant Ututau who was in charge to make sure that the tyre marks are on the Plan. I take this to mean that there were no skid marks at the bend.
11. Constable Tiavi Galuvao took Photos (Exhibit P2) of the scene two days after the accident on 24 February 2013. The photos showed the tyre marks and the 5 big rocks on the side of the road that the deceased bicycle was found and where it is alleged the deceased was hit by the vehicle driven by the accused.

The Law:

12. The Prosecution must prove three elements:

(i) The accused was the driver;

(ii) The accused negligently drove the vehicle, and

(iii) The negligent driving caused the death of the deceased.

Discussion:

13. It is clear from the evidence that the accused, Togisau Chan Sau was driving the vehicle. It is also clear from the evidence that the vehicle was travelling from Safata going to Leulumoega. The arrow going Safata is where the vehicle was travelling from and referred to by the witnesses as coming from Lefaga, which is Lefaga-tai heading to Apia or Leulumoega way. The deceased was coming from Leulumoega going Safata or Lefaga-tai. The road where it happened is in the District of Lefaga.
14. It is also clear from the evidence that the vehicle driven by the accused was travelling at high speed. This is evidenced by the skid marks on the road from when the accused tried to stop and swerved at the same time to avoid hitting the deceased. The witness Salilo Pinono said he heard the vehicle screech and saw smoke on the road when he ran out to the road. Sapona Savali said the car came around the bend at high speed , heard a loud bang, went to the road and saw skid marks on the road. Vaelaa Molioo heard a loud bang looked to the road and saw the deceased flew up and fell behind the vehicle. This is the impact of a car travelling at high speed. The skid marks on the road and the smoke means that the accused was trying to stop the vehicle but could not stop the vehicle and that could be because it was travelling at high speed coming around the bend. Even if the vehicle was going uphill it was obvious that it was travelling at high speed.
15. The question is, was the vehicle travelling on the left lane as it should be and was the deceased on the same lane but going the opposite direction?
16. Sikoloni Sikoloni when asked by Counsel for the accused said the car was travelling on the left lane but that he felt the car swerved to the right and then to the left before it hit the deceased. Sikoloni did not see how the accident happened as he was playing games on his mobile phone. Sefo Sefo basically said the same thing as Sikoloni Sikoloni and said the deceased was travelling in the middle of the left lane that they were travelling on. Sapona Savali said the vehicle was travelling on the left lane going Leulumoega way and was the only car on the road at the time.
17. I find the evidence of the witnesses Sikoloni Sikoloni and Sefo Sefo not forthcoming, inconsistent and contradictory. They said that when the vehicle came off the bend the accused swerved to the right then to the left where it hit the deceased. If the accused had swerved to the right at the bend not having come around it then the deceased would have been hit by the vehicle just coming off the bend. The Exhibits show the skid marks come from the right lane to the left lane coming off the bend but not at the bend and the point of impact is where the 5 rocks are on the left side of the road. Sapona Savali said that the deceased’s bicycle was found in front of these 5 rocks (see Photo #2). Even if I’m wrong with the point of impact the outcome would remain the same.
18. The evidence that the accused was driving on the left lane is not consistent with the skid marks on the road. The Plan (Exhibit P1) and Photos (Exhibit P2) showed the skid marks from the vehicle to come from the right lane to the left lane and off the left lane. This means that the vehicle coming around the bend was travelling on the right lane and the deceased was on the correct lane that he should be going Safata way. The accused may have been travelling on the left lane but it is clear from the skid marks in the Photos and the Plan that it was travelling on the right lane when it came around the bend.

Conclusion:

19. The court accepts the evidence by the prosecution and is satisfied beyond reasonable doubt that the accused was travelling at speed on the wrong lane when it came around the bend, swerved to the left to which the deceased also swerved and was hit by the said vehicle. There was no other suggestion that there were any other vehicle on the road at the time of the accident.
20. On the whole of the evidence the court finds the accused guilty of negligent driving thereby causing the death of Talimalama Petelo.
    

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Judge Mata K Tuatagaloa