Police v Lee Kum [2014] WSDC 13 (23 April 2014)

DISTRICT COURT OF SAMOA
Police v Lee Kum [2014] WSDC 13

Case name:	Police v Lee Kum
Citation:	[2014] WSDC 13
Decision date:	23 April 2014
Parties:	POLICE (Prosecution) v PATI LEE KUM, male of Faga Savaii and Tapatapao (Defendant)
Hearing date(s):	21 March 2014
File number(s):	D4315/13, D4316/13
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai Ameperosa Roma
On appeal from:
Order:	I find on the evidence that the prosecution has not proven to the required standard that the accused drove negligently at the time of the incident. The charge of negligent driving causing death against the accused is accordingly dismissed
Representation:	Sgt R. Ah Ching for Prosecution
	Ms E. Niumata for the Accused
Catchwords:	Negligent driving causing injury and death – unlicensed driver
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s39(a)
Cases cited:	Police v. Ata Sulape (1 October 2010),
	Police v. Yvette Kerslake (11 April 2014), Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953, paragraph 27,
Summary of decision:

DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

A N D:

PATI LEE KUM, male of Faga, Savaii and Tapatapao.
Accused

Counsel:
Sgt R. Ah Ching for the Prosecution
Ms E. Niumata for the Accused

Hearing: 21^st March 2014

Decision: 23^rd April 2014

DECISION OF JUDGE ROMA

Charges

1. The accused faces two (2) traffic violation charges arising out of an incident at Tapatapao in early afternoon on the 25^th November 2013. The first and more serious is Information D4315/13 alleging that the accused drove a Hino Truck registered no. 1466 in a manner that was negligent and thereby causing the injuries which led to the death of Tuasivi Tuasivi (Deceased), male of Tanumapua. The accused pleaded not guilty to that charge and thus the hearing on 21 March 2014.
2. The second Information D4316/13 is one of driving whilst not being the holder of a valid driver’s licence. The accused pleaded guilty and remains to be sentenced on that charge.

Evidence

3. The prosecution called 3 witnesses. Two (2) namely Matavai Tumanuvao and Filipo Panini came onto the scene following the collision. Tenisi Soifua, on the other hand, a 15 year old school boy and a neighbour of the deceased, was on his bicycle and following the deceased when the accident happened.
4. His evidence is that at around 1pm, both he and the deceased rode their bicycles to Filipo Panini’s house which is located uphill from where they live. Their purpose was to request the use of Filipo’s pickup in transporting their bananas. On their way back, Tenisi followed the deceased who was about 20 metres infront. Both were travelling downhill and on the left side of the road. When the deceased reached a sharp right curve and was almost out of Tenisi’s sight, he heard the screeching sounds of a vehicle’s brakes, immediately followed by a loud bang.
5. He saw the deceased rolling backwards and when he reached where the deceased was, he ran over and helped sat him up. From where he was and facing towards Apia, he saw that the truck was stationary on the right side of the road. Its front window was damaged on the top right hand side and the deceased’s bicycle had a flat tyre and was stuck to the front of the truck.
6. In his evidence in chief and under cross examination, Tenisi confirmed that the deceased’s bicycle was an old one with faulty brakes. Despite his calls at him to slow down, the deceased continued downhill fast and appeared to be teasing him back.
7. Apart from Tenisi, the accused and the deceased, Matavai was one of the first people to arrive at the scene. Earlier, he had been working at his plantation and saw Tenisi and the deceased riding past and uphill. Subsequently, he saw only Tenisi return immediately before he heard the sound of a collision. He ran to the road and was able to see the accused trying to help the deceased up. The accused was seen hugging and massaging the back of the deceased’s neck. Obviously, he was still alive and Matavai sent Tenisi to inform his family about the incident.
8. The accused gave evidence. He lives at Tapatapao and knows the deceased and people around the area. On his way to and from home, he always stops and picks up residents of his area that may need transportation. On the day of the incident, he had picked up his son from Vaitele and was on his way to drop him home when the accident happened. He says that he was travelling uphill and slowly. At a sharp left bend, he ensured that he kept to his side when suddenly, he saw a bicycle flying from the opposite direction and heading straight towards the truck. The bicycle struck the truck’s front window on the driver’s side. Before impact, he recalls seeing the deceased trying to brake by placing his foot against the rear tyre (“tuu le vae i le pa’u la e i tua”). After helping the deceased up, he took him to the hospital.
9. The second defence witness is Rebecca Schultz, a businesswoman who was on her way to transport her workers to their Tapatapao plantation. She was in her own vehicle and had been travelling behind the accused’s truck on the way up. She could not overtake the accused’s truck because the road was narrow and had bends. She stopped at a shop to allow for distance but again caught up with the truck when she resumed her journey. Her vehicle was also behind the truck when it suddenly stopped, she saw someone rolling backwards infront of the truck and people rushing over to help him up. Her evidence is that the truck travelled slowly and was always on its side of the road before and at the time the accident occurred.
10. As to the deceased’s injuries, the medical report of Dr Petueli Emose (Exhibit P2) which was tendered by consent confirms that the deceased was admitted to the Intensive Care Unit at TTM Hospital on 25^th November 2013 in a critical state. His head injuries were assessed as severe. He also had lung injuries. A CT SCAN revealed a fracture to his head at the right petorus bone and cerebral oedema; air surrounding trachea at the spine and a lung contusion. Despite treatment, his condition deteriorated until he was pronounced dead.

Issues

11. The accused does not dispute that he owed a duty of care to the deceased. Nor does he dispute that the collision was the cause of the deceased’s injuries which led to his death. The only element in issue therefore is whether the accused breached the standard of care expected of a reasonable driver in the circumstances. The accused’s argument is that he did not.

Law

12. Section 39A of the Road Traffic Ordinance 1960 under which the accused is charged states:

“Negligent driving causing death – Every person commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding 20 penalty units who recklessly or negligently drives or rides any vehicle and thereby causes bodily injury to or death of any person.”

13. As to the test for determining negligent driving, His Honour DCJ Vaai, in an unreported decision of this Court in Police v. Ata Sulape (1 October 2010), states at page 4:

“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.”

14. Similarly, in a more recent and unreported decision in Police v. Yvette Kerslake (11 April 2014), DCJ Tuala – Warren relies on the following passage from a New South Wales Supreme Court decision in Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953, paragraph 27, as to what constitutes negligent driving:

“Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.”

Discussion

15. The prosecution in my view rightly concedes that the accused drove on the correct side of the road at the time of the collision. Firstly, the accused’s own evidence that he did is supported by that of Rebecca Schultz, an independent witness who had followed the truck in her own vehicle along the way and more importantly at the time of the collision. Secondly, the prosecution’s own witness Tenisi, confirmed under cross examination that the deceased had cut the bend and onto the right side of the road immediately before the sound of the impact. Thirdly, the damage to the truck as shown in Exhibit P1C is to the right hand side of its front window and consistent with the evidence of both the accused and Tenisi.
16. The prosecution’s submission however is that the accused’s negligence is in the speed in which he drove the truck and the fact he did not sound its horn to give warning to other road users and the deceased.
17. I do not accept that submission. Firstly, there is clear evidence by the accused supported by Rebecca Schultz that the accused drove slowly. According to Mrs Schultz, she had been following the truck in her own vehicle up to Tapatapao for a while. She could not overtake because the road was narrow, she stopped at a shop to allow for distance but again caught up with the truck and was right behind it when the accident happened. Secondly, the truck was travelling uphill and would be very unlikely to gain momentum and speed especially when also approaching a curve as sharp as the one seen in the photos (Exhibit P1C) where the accident happened. Thirdly, whilst the accused conceded under cross examination that he did not sound the horn, he was also clear in his evidence that he could not in the circumstances. He was at a sharp curve (“pioga tu”), he could not see the top of the hill and had no time (“vave le taimi”) because the deceased was flying downhill on the accused’s side of the road and heading straight towards the truck. According to the accused, all he could do was stop the truck.
18. In my view also, the incident could not have been avoided by the accused sounding the horn. The deceased was speeding downhill on a bicycle that had faulty brakes. He cut a sharp curve onto the side of the oncoming truck and the accused could do little if anything to avoid the collision. I accept the submission by Ms Niumata that the collision was instantaneous as soon as the accused saw the deceased coming down the bend, and in the circumstances he could only stop the truck. A reasonable and prudent driver, in the circumstances, would have acted as did the accused.
19. Though not raised in the submissions, I should also mention in view of that finding that the fact that the accused was not the holder of a valid driver’s licence at the time of the incident has no impact on the charge of negligent driving causing death against him.

Decision

20. I find therefore on the evidence that the prosecution has not proven to the required standard that the accused drove negligently at the time of the incident. The charge of negligent driving causing death against the accused is accordingly dismissed.

JUDGE FEPULEA’I A ROMA