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Police v Kerslake [2014] WSDC 5 (11 April 2014)
DISTRICT COURT OF SAMOA
Police v Kerslake [2014] WSDC 5
Case name: | Police v Kerslake |
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Citation: | |
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Decision date: | 11th April 2014 |
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Parties: | POLICE v YVETTE KERSLAKE, female of Vaiala |
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Hearing date(s): | 28th February 2014 |
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File number(s): | D3008/13, D3009/13 |
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Jurisdiction: | Criminal |
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Place of delivery: | Mulinuu |
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Judge(s): | DCJ Tuala-Warren |
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On appeal from: |
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Order: |
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Representation: | Senior Sergeant Kenneth Komiti for Prosecution Mr Shane Wulf for Defendant |
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Catchwords: |
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Words and phrases: | “negligent driving causing bodily injuries” |
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Legislation cited: | |
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Cases cited: | Police v Fata Maulolo Tavita [2011](unreported) Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 |
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Summary of decision: |
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IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
POLICE
Informant
AND:
YVETTE KERSLAKE, female of Vaiala
Defendant
Counsel: Senior Sergeant Kenneth Komiti for Prosecution
Mr Shane Wulf for Defendant.
Hearing: 28th February 2014.
Decision: 11th April 2014
DECISION OF DCJ TUALA-WARREN
The Charges
- The defendant is charged under Section 39A of the Road Traffic Ordinance 1960 with negligent driving causing bodily injuries to Avii Sauaso,(“the complainant”’) a petrol station attendant at
Leifiifi Petrol Station. She is also charged in the alternative with Dangerous Driving under section 39(1) of the Road Traffic Ordinance 1960.
- The two charges arose out of a traffic incident that the Police allege occurred on Ifiifi Road at Malifa on 24 May 2013 between 10am
and 11am. The defendant’s car crashed into the petrol station at Leifiifi injuring the complainant.
- The traffic incident occurred on Ifiifi Road, the main arterial road from the hospital to town. It is a two way road with two lanes
heading inland towards the hospital and two lanes heading seaward from the hospital into town. The road heading inland is on a gradual
incline. The road heading seaward is on a gradual slope. When heading seaward, there is a raised pedestrian crossing or a speed bump
just before the Leifiifi Petrol Station on the left and Malifa Primary School on the right.
- Sometime between 10am and 11am in the morning of 24 May 2013, both the defendant’s car and the car driven by Maeli Atiae were
travelling seaward. When the defendant’s car came to the raised pedestrian crossing, she turned left into the petrol station
and was hit from behind by the car driven by Maeli Atiae. The defendant’s car had been on the inside lane closest to the centre
line and the car driven by Maeli Atiae was on the outside lane.
- The defendant’s car hit the complainant who was standing next to one of the pumps. Both the complainant and the pump were knocked
over by the defendant’s car. The defendant took no issue with the medical report explaining the complainant’s injuries.
The complainant sustained severe injuries to both lower legs. His left leg was severely crushed below the knee and was amputated.
His right leg sustained fractures to the lower leg and open fractures to the ankle. His right leg was fixed internally with plate
and screws.
- Maeli Atiae, the driver of the second vehicle licence plate number 12521, was charged with dangerous driving and driving without a
licence. He pleaded guilty to both charges and was sentenced by this Court prior to this hearing. I do not know what sentence was
given.
Law
- The defendant is charged under two sections of the Road Traffic Ordinance 1960, sections 39A and 39(1);
Section 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 negligently or recklessly drives or rides a vehicle and thereby causes bodily
injury to or the death of any person.
Section 39
Reckless or Dangerous Driving –(1) If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which
is dangerous to the public having regard to all the circumstances of the case including the nature, condition, and use of the road
and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, the person commits
an offence and is liable upon conviction to a fine not exceeding 10 penalty units and to imprisonment for 2 years.
- I shall deal first with the Negligent driving causing injury charge followed by the dangerous driving charge (if necessary)
Meaning of Negligent Driving
- In the case of Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011), his Honour Judge Vaepule Vaemoa Va’ai stated that in regards to negligent driving,
the issue is whether the accused breached the standard of care expected of a reasonable driver in the circumstances. Overseas authorities
have also defined ‘negligent driving’ in a similar way. I have provided the meaning of ‘negligent driving’
taken from the New South Wales Supreme Court which is right on point on the meaning of ‘negligent driving’.
- His Honour Johnson J in Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953, said at [27]:
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.
- Essentially therefore the test in determining whether the standard of care was breached is that of the reasonable driver in the circumstances.
The Issue for determination
- The burden is on the Prosecution to prove each element of both charges beyond a reasonable doubt. In respect of the primary charge,
the Prosecution must prove that the defendant;
- drives a vehicle;
- negligently;
- which causes bodily harm to any person.
So far as the alternative charge is concerned, the Prosecution must prove that the defendant;
- drives a motor vehicle on a road;
- Recklessly; or
- Dangerously to the public, having regard to all the circumstances of the case including the nature, condition, and use of the road
and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road.
- In this case it is undisputed that;1
- The defendant was the driver of a dark tuscon vehicle, licence plate number 7706; and
- The complainant sustained bodily injuries as a result of the defendant’s car hitting him, namely, his left leg was severely
crushed below the knee and was amputated and his right leg sustained fractures to the lower leg and open fractures to the ankle and
has been fixed internally with plate and screws; and
- This occurred on 24 May 2012 between 10am and 11am at the Leifiifi Petrol Station.
- The only issue for this Court is whether there was negligence on the part of the Defendant which caused her car to hit the complainant
or in the alternative did the defendant drive recklessly, or at a speed or in a manner which is dangerous to the public having regard
to all the circumstances of the case including the nature, condition, and use of the road and the amount of traffic which is actually
at the time or which might reasonably be expected to be on the road.
- There is no burden on the Defendant to prove her innocence. However on this occasion, she chose to give evidence.
The Hearing
The Evidence of the Prosecution
- At the hearing of this matter, the Prosecution called five witnesses. They were Sauaso Talivaa, Avii Sauaso, Ta Salu, Maeli Atiae,
and Iosefatu Toleafoa. I will only deal with the evidence which goes directly to the issue for determination.
- The main witness for the Prosecution is Maeli Atiae who says that on 24 May 2013, he was on his way from the hospital travelling to
Faleula in a rental car belonging to his boss. He had his boss and her three children in the car with him. They had been to see a
doctor at the hospital. Their car was on the outside lane travelling towards Apia. There was a tuscon on the inside lane travelling
just ahead of their car. As soon as their car reached the raised pedestrian crossing at Leifiifi, the tuscon suddenly crossed his
lane, over the raised pedestrian crossing. He said he tried to swerve to the right to avoid a collision but his car crashed into
the back left side bumper of the tuscon. The tuscon then continued towards the petrol station. He did not see any indicator light
from the tuscon to turn left. He turned his car off immediately and then slid it down to in front of the Anglican Church. He got
out, flagged down a taxi and took his boss and her children back to the hospital as he was concerned that the children had been hurt.
He maintains that he was travelling at about 15 mph prior to the crash and that the tuscon was probably travelling at around 20
mph. He did not have a drivers license at the time of the accident. It was brought out during cross examination that he had been
charged with having no drivers license and dangerous driving. He pleaded guilty and has been sentenced. He maintained under cross
examination that he was not going too fast, it was the defendant’s car that was going too fast and which crossed his lane at
the same speed at which she was travelling at on the road just ahead of him on the inside lane.
- The witness Ta Salu, who is a petrol station attendant, heard a bang, saw a tuscon on the raised pedestrian crossing and then saw
the tuscon heading really fast towards the petrol station. He next saw Avii lying on the ground and the tuscon against the pole of
the petrol station. One of the poles of the petrol station had been bent and the pump had also fallen down.
- Ta Salu confirms that there were two cars travelling towards town. The tuscon was on the inside lane closest to the centre line and
another car was in the outside lane. He identified the car on the outside lane from photos as the car driven by Maeli Atiae and the tuscon as the car driven by the
defendant.
- The witness Iosefatu Toleafoa was inside a TV3 car waiting for petrol when he heard a bang from the road to his right. When he looked
to the road, he saw a car coming towards the petrol station. He heard another bang and the petrol station roof fell onto the TV3
car as the car crashed into the petrol station. He then drove away and parked in front of the Anglican Church. He identified the
car which had crashed into the petrol station as the defendant’s car from photos. He also identified the car driven by Maeli
from photos as that which was parked in front of the Anglican Church, just down from where the TV3 car was parked.
- Avii Sauaso, the complainant, had his back to the road and he was just about to fill up the TV3 car with petrol when he heard a bang
from the road behind him. He turned around and saw a car coming towards him. He tried to jump up but it was too late. The car crashed
into him, crushing him against the pump. He and the pump both fell to the ground.
Evidence of the Defendant
- I accept that the Defendant left home for the petrol station at Leifiifi to put petrol into the car that she was driving which was
a tuscon. I accept that she was driving on the inside lane heading towards Apia when she came out of the cross road at Motootua.
She says that when she got close to the petrol station, she indicated, checked her mirrors, crossed the outside lane and turned left
into the petrol station. She said that the engine of her car was inside the driveway to the petrol station when her car was suddenly
hit from behind. She said she tried to stop her car when she was hit from behind but the push from the car which hit her from behind
was too strong and caused her to crash into the petrol station.
- The defendant said that when she turned right onto the main road from the hospital and travelled towards town, she did not see another
car coming up behind her from the hospital, she only saw cars in front of her. She denies speeding, and suggests that Maeli Atiae
must have been speeding from the hospital to suddenly crash into the back of her car. It was put to her by Prosecution that she did
not see the car driven by Maeli because the car driven by Maeli is low and the tuscon that she was driving is high. She denies having
seen Maeli’s car at all and did not know which car had hit her.
Submission
- Counsel for the defendant submitted that the Prosecution did not prove beyond a reasonable doubt that the accused drove her vehicle
negligently. He submits that in fact the accused would not have crashed into the petrol station but for Maeli crashing into her vehicle.
He submits that the accused was not negligent and in fact she tried everything to avoid the collision with the petrol station by
trying to stop her vehicle. He submits that unfortunately the force of the impact caused her vehicle to smash into the petrol station
resulting in the injury caused to Avii.
Discussion
- The Court is inclined to believe the evidence of Maeli Atiae. His case has been disposed with in the District Court so he has nothing
to gain or lose by giving anything other than a truthful account at this hearing. It is entirely plausible that after the crash,
he was concerned for the three children inside his car, and therefore wanted to take them back to the hospital. He would also have
been scared about the fact that he did not have a driver’s licence. I accept that he was not aware of anyone getting hurt at
the petrol station. As to the issue of speed raised by defence counsel, under Regulation 109(2)(c) of the Road Traffic Regulations
1961, the speed limit when passing any school (which in this case is Malifa Primary School) is 15 mph, at a time when pupils are
going to or leaving school. The time of the incident was between 10am and 11am, when pupils are already in class. In any event I
find that Maeli Atiae was travelling no faster than 15 mph.
- The defendant’s evidence is that she was on her way from home to the petrol station at Leifiifi to put petrol into the car that
she was driving. But once she turned right onto the main arterial road heading towards town, she drove on the inside lane of that
two lane road leading to the petrol station. The inside lane is the lane closest to the centre line. This is not the action of a
reasonable prudent driver. She is aware that the petrol station is on the left hand side of the road when she is travelling towards
town and should have been driving on the outside lane, making a left turn easier and safer. The crossing of an entire lane to turn
left is risky in itself. The crossing of the outside lane also took place on the raised pedestrian crossing. She maintains that she
did not see the car driven by Maeli Atiae when she turned left. This is plausible as the car driven by Maeli Atiae was most likely
in her blind spot and did not show up in her mirrors. This is why she got a shock when the car driven by Maeli Atiae hit the back
of her car. Her suggestion that the car driven by Maeli Atiae turned up suddenly after she had checked her mirrors is implausible.
She said she indicated to turn left, checked her mirrors, crossed the outside lane and then entered the driveway of the petrol station
when she was suddenly hit from behind. This would have taken a matter of seconds. If the car driven by Maeli Atiae had been speeding
from the hospital, she would at least have seen it in her mirrors as the road behind her is on a gradual incline and she would have
been able to see in her mirrors any car coming from some distance behind her. The defendant said that it was all clear when she checked
her mirrors. This means that Maeli Atiae would have taken seconds to come from the hospital to crash into the defendant’s car
at Leifiifi. She maintains that she never saw any other car behind her until she felt a car hit the back of her car. Even if the
engine of the defendant’s car was in the driveway of the petrol station, the rest of the car would still be on the road, making
it plausible that the left side bumper of the defendant’s car was hit.
- I find that the defendant failed to keep a proper look out in all the circumstances, the circumstances being that she was crossing
an entire outside lane to make a left turn on a main road, when there was a car travelling on the outside lane. Her failure to do
so falls below the standard expected of a reasonably prudent driver. A reasonably prudent driver would have used the outside lane
if she was intending to turn off to the left and in any event would have carefully checked her outside lane when crossing it. That
failure amounts to criminal negligence. The defendant’s negligence in not carefully checking her outside lane before crossing
it, led to the defendant’s car being hit on the back left side bumper by the car driven by Maeli Atiae.
- I accept that the extensive damage to the petrol station with the fallen pump and bent pole indicates the fast speed of the defendant’s
car. There would have been some momentum caused by Maeli Atiae’s car hitting the back of the defendant’s car. This is
to be expected when a car is hit from behind. However I find that the defendant was already travelling too fast when she crossed
the outside lane and entered the driveway of the petrol station. The speed at which the defendant crossed the outside lane is the
speed with which she hit the complainant.
- I accept that there were two cars on the road travelling in the direction of town. This is the evidence of Ta Salu. He heard a bang
and looked to see the defendant’s car on the raised pedestrian crossing and another car on the outside lane. He did not see
what happened to cause the bang but his evidence is crucial because it establishes that there were two cars, the defendant’s
car and the car driven by Maeli Atiae which he identified from photos.
- At that time of the day, being mid morning, it is expected that there are other road users on that road as it is the main arterial
road connecting the hospital and town and has several schools and a petrol station.
Decision
- In relation to the primary charge, I find beyond reasonable doubt the following:
- The defendant drove a vehicle, namely a tuscon license plate number 7706;
- the defendant’s car which was travelling on the inside lane closest to the centre line, crossed an entire outside lane suddenly
in front of the car driven by Maeli Atiae to turn left, without carefully checking her outside lane. She crossed the outside lane
over a raised pedestrian crossing. This caused the car driven by Maeli Atiae, which was on the outside lane to crash into the back
left side bumper of the defendant’s car; and
- the defendant’s car then crashed into the complainant causing bodily injuries.
- I therefore find the defendant, Yvette Kerslake guilty of negligent driving causing bodily injuries to Avii Sauaso.
- Given the above, I do not need to consider the alternative charge of dangerous driving and I dismiss that charge.
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Judge Leilani Tuala-Warren
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