Police v Tunupopo [2015] WSDC 7 (26 October 2015)

DISTRICT COURT OF SAMOA
Police v Tunupopo [2015] WSDC

Case name:	Police v Tunupopo
Citation:	[2015] WSDC 7
Decision:	17 November 2015
Parties:	POLICE v TANOALEIA TUNUPOPO, male of Sinamoga.
Hearing date(s):	24 and 25 September 2015
File number(s):	D689/15.D690/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE ROMA
On appeal from:
Order:	On the evidence, I found that: (i) prosecution has proven the charge of negligent driving causing bodily injury. The accused is guilty of the charge; (ii) although also proven the charge of dangerous driving, it is alternative to the charge of negligent driving causing bodily injury and is accordingly dismissed.
Representation:	T. M. Tamaleaoa (SGT) for prosecution R. Schuster (Counsel) for accused
Catchwords:	negligent driving causing bodily injury – dangerous driving
Words and phrases:
Legislation cited:	Police Offence Ordinance 1960 s.39(A) & 39(1)
Cases cited:	Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953 Police v. Ata Sulape
	Police v. Papalii [2011] WSSC 138 Police v. Yvette Kerslake (11 April 2014),
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TANOALEIA TUNUPOPO, male of Sinamoga
Accused

Counsel: R. Schuster for accused
Prosecutor: T. M. Tamaleaoa (SGT) for prosecution
Hearing: 24 and 25 September 2015
Decision: 26 October 2015
Reasons: 17 November 2015

DECISION OF JUDGE ROMA

Introduction

1. In the afternoon of the 6^th March 2015 at Maluafou, a collision involving a Toyota Hiace van (“van”) and a 4 door Pajero SUV (“pajero”) occurred at the 4 corners and traffic lights infront of Bluesky’s main office. It attracted a number of onlookers, and resulted in damage to both vehicles, the Bluesky fence and both drivers being taken to hospital for treatment.
2. The van was on the main road travelling from Tamaligi towards Maluafou. The pajero was on the sub-street travelling from Leone towards Togafuafua. The collision occurred where these roads intersect.
3. As a further result, the accused, who was driver of the van stood trial on 2 charges under the Road Traffic Ordinance 1960, one of negligent driving causing bodily injury and in the alternative, a charge of dangerous driving.
4. On 26 October 2015, I handed down the following verdicts:

(i) On the charge of negligent driving causing injury, I found that the prosecution had proven the charge beyond reasonable doubt. Accordingly, I found the accused guilty as charged;

(ii) On the charge of Dangerous Driving, although on the same evidence, I found the charge proven beyond reasonable doubt, I dismissed the charge because it was alternative.

5. My reasons for those verdicts now follow.

Charges

6. The principal information alleges that the accused was driver of a van; he drove negligently and thereby caused bodily injury to Tauai Tavita Nafoi (“Tauai”), a 48 year old male of Moamoa.
7. The alternative information charges that the accused failed to comply with the traffic lights, which was in the circumstances, dangerous to the public.
8. The charging provisions are respectively sections 39A and 39(1) of the Road Traffic Ordinance 1960.

Prosecution Evidence

9. The prosecution called 7 witnesses. Apart from the victim Tauai, others include drivers of 2 vehicles that were on the road at the time of the collision; a passenger of one of those vehicles; a pedestrian; a Land Transport Authority (LTA) engineer and the investigating police officer.
10. The prosecution’s evidence is that earlier in the afternoon, Tauai was at a family faalavelave at Saanapu. From there, he went to Vaitele where his family was to distribute what they received from their faalavelave, before heading to Leone to drop off one of his family members at her home, located before the bridge. He was on his way back, travelling from Leone towards Togafuafua, and had reached the point where the 2 roads intersect, when his vehicle was struck at the front right by a van travelling from Tamaligi. Both vehicles skid across towards the Bluesky compound. The pajero became stuck on the footpath. The van knocked over a Bluesky exchange box next to the footpath before it crashed into the fence.
11. He could not remember seeing any other vehicles on the main road immediately before the collision. His attention was on what was before him, and he continued driving because the traffic lights were green.
12. At the time, Tauai did not know about the accused, but when he managed to get out of his vehicle, he told the accused “you saw that the lights were red but you continued to drive through” (“e te vaai mai lava o ola moli mumu ae sau lava”). He could not understand what the accused’s reply was.
13. After the incident, Tauai felt pain on his right side and knees which he says were pressed against the gear as a result of the impact. He was taken to hospital and after seeing a doctor, he was given panadol and discharged the same day. He has scars to his right side from the incident.
14. Under cross examination, Tauai concedes that his was the only vehicle on the sub-street and near the traffic lights when he returned from Leone. He confirms that he was under the influence of alcohol but says that he was able to control the vehicle, and that the lights were green.
15. At the time of collision, Sovite Leota (“Sovite”), a taxi driver was heading towards Matautu to take a passenger, Sili Sakaio (“Sili”), to Frankie Supermarket where she works. Sovite stopped at the lights because they had turned red. From there, he saw the van coming from the opposite direction; the pajero travelling from the sub-street on his right, and how the vehicles collided at the intersection. He also observed the vehicles skid across before them, the van then crashing into the Bluesky fence.
16. Seated in the back was Sili. She confirms that they had stopped at the red lights. She too was able to see the collision infront of them. After the incident, she asked Sovite to continue driving her to her workplace because she was running late.
17. Behind Sovite’s taxi, Peletiso Kalauna (“Peletiso”) had stopped, also because the lights had turned red. He was driving a Toyota Noah minivan and heading into town. From where he was, he saw the van coming from the opposite direction; the pajero travelling from the sub-street on the right, and how the van struck the pajero at the front right side.
18. Other than Sovite, Sili and Peletiso, Sikoa Apetipa (“Sikoa”) also claims to have been around the vicinity. He was walking along the sub-street from Leone towards the traffic lights. He saw the pajero drive past him and towards the traffic lights, and continued across the intersection on green lights. He also saw the van coming from his right and struck the pajero before both vehicles ended up infront of the Bluesky compound.
19. Under cross examination, Sovite, Sili, Peletiso and Sikoa confirm that it was days after the incident that they made statements to police. For Sovite, it was after he coincidentally picked up Tauai from infront of the police station to drop off at Leone, and after their conversation touched on the incident, that he was then asked to make a police statement about what he saw.
20. Apart from the eye witnesses, evidence was also given by Elisaia Junior Kolia, a Principal Engineer with LTA. He explained how the traffic lights at 4 corner intersections operate. They did not receive any complaint that the lights at Maluafou were not working. Under cross examination, he concedes that when there is no traffic, the lights for the main road are always green unless vehicles at or near the traffic light loops on the sub-street trigger a change. He says that a change may also be triggered by a pedestrian crossing the sub-street at or near the traffic lights.

Defence Evidence

21. The accused elected not to testify but called 4 witnesses, 2 are Officers of the Fire and Emergency Services Authority (FESA) who were part of the team called onto the scene to assist; a mechanic who towed the pajero to a workshop; an EFKS TV cameraman who took photos of the scene after the incident, and their main and only eyewitness, Fagaloa Palota (“Fagaloa”), a security guard working at Bluesky on the day.
22. Fagaloa’s evidence is that he was inside Bluesky’s offices before he walked outside towards the gate entrance near the traffic lights. He heard the sound of vehicles approaching, before he saw the pajero speeding from Leone and van travelling from Tamaligi. He also witnessed the collision. From where he was standing immediately before the collision, he was able to see that the lights for the main road from Maluafou towards Tamaligi were green. He did not see any other vehicles on the main road or stopping at the lights.
23. He made a statement to police regarding the incident the following day and was never contacted by the police up to the date of the hearing.
24. Apart from Fagaloa, the evidence of the other defence witnesses is that Tauai was heavily intoxicated; people were seen removing items including fine mats and food from his vehicle moments after the accident, and empty beer bottles were also found in his vehicle.

Relevant Law

25. “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.” (section 39A, Road Traffic Ordinance 1960)
26. “If any 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 ... use of the road and the amount of traffic which is actually on the road ... he or she shall be guilty of an offence and shall be liable upon conviction to imprisonment for 2 years or to a fine not exceeding 10 penalty units.” (section 39(1) Road Traffic Ordinance 1960).
27. The test for determining negligent driving has been stated in numerous decisions of this Court. In Police v. Ata Sulape (1 October 2010), His Honour Judge Vaai 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.”

28. In Police v. Yvette Kerslake (11 April 2014), Judge 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:

“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.”

29. As to the term “bodily injury”, His Honour the Chief Justice, in discussing the meaning of the terms “grievous bodily harm” and “actual bodily harm” in Police v. Papalii [2011] WSSC 138, cites amongst others, the following from Archbold 206 at 19 – 197:

“Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent, but must be more than merely transient or trifling: R v. Donovan [1934] 2 KB498, 25 CrApp RI, CAA cited with approval by Lords Templeman and Jauncey in R v. Brown (A) [1993] UKHL 19; [1994] 1 AC 212, HL at pp 230 and 242 respectively. It may include a momentary loss of consciousness; where there is a injurious impairment to the victim’s sensory functions, ‘it is axiomatic that the bodily harm was actual’: R(T) v. DPP [2003] EWHC 266; [2003] Crim LR 622, QBD (Maurice Kay J)”

Discussion

30. To prove the charge of negligent driving causing injury, the prosecution must satisfy the Court beyond reasonable doubt that:

(i) the accused drove a motor vehicle;

(ii) negligently; and

(iii) thereby caused the victim bodily injury.

31. In respect of the dangerous driving charge, the prosecution must prove the following ingredients:

(i) The accused drove a motor vehicle on a road;

(ii) recklessly; or

(iii) dangerously having regard to the circumstances of the case including the use of the road and amount of traffic on the road at the time.

Negligent driving causing bodily injury

32. There does not seem to be any dispute that the accused was driver of the van. In fact, Tauai identified the accused as the person he saw after the collision in the driver’s seat of the van. He told him that he (accused) had continued driving through the red lights but he did not know of and about him at the time. I find therefore proven the first ingredient.
33. The main dispute however relates to the second and third ingredients.
34. In respect of the second ingredient, the prosecution submits that the fact that the accused continued to drive through the red lights is strong evidence of his negligence and dangerous driving on his part. The prosecution relies on the evidence of Tauai, Sovite, Sili, Peletiso and Sikoa who were on the road, albeit at different locations around the intersection.
35. The defence case on the other hand, is that it was not the accused but the victim who ran the red lights. They strongly suggest that the victim was clearly under the influence of alcohol, and if either of the drivers was impaired to drive, it was the victim, not the accused.
36. The defence relies on the evidence of Fagaloa who was infront of Bluesky, and was able to see that the lights for the main road running through Maluafou towards Tamaligi, were green. Compared to the prosecution’s eyewitnesses, the defence says that Fagaloa’s evidence is consistent with a witness statement he made to the police the day after the incident. On the other hand, the statements of the prosecution witnesses were obtained days later, and only after the victim had travelled in Sovite’s taxi by chance, and spoke with him about the accident.
37. I have carefully considered the evidence and I have decided to accept the evidence by the prosecution witnesses, that at the time of the collision, the lights for the main road (Maluafou to Tamaligi) were red and the lights for the sub-street (Leone to Togafuafua) were green.
38. Firstly, compared to Sovite, Sili and Peletiso, Fagaloa was not on the road and quite a distance away from the traffic lights. I accept that at some point, he might have looked at the lights but in my view, his attention could not have focused on the lights as would that of the actual roadusers. If any person(s) had reason to focus on the lights before and at the time of the collision, it would have been Sovite, Sili and Peletiso. Sovite and Peletiso were drivers of 2 vehicles that were actually on the road; they were both heading towards the same direction and both stopped at the lights, one behind the other because of no reason but the red lights. Sili was a passenger of Sovite’s taxi and should equally have been aware of why they then stopped, because she was on her way to work.
39. Apart from the inconsistencies in their evidence as to which vehicle was speeding, which I find minor, they were unmoved under cross examination. They maintained that they were on the road and at the lights at the time of the collision, not after it occurred.
40. Arguably, there might be reason to consider carefully the evidence of Sovite, given that he had actually discussed the accident with Tauai days after, in a coincidental taxi trip. I cannot however find any reason to doubt the evidence of Sili and Peletise. They are independent of those involved in the accident.
41. Secondly, without infringing on the accused’s constitutional right to silence and right to be presumed innocent until proven otherwise, I am not persuaded by the defence relying on the evidence of Fagaloa who was not on the road and quite a distance away, to support the argument that the lights were green, particularly in the absence of evidence from the accused driver himself, that the lights were in fact green when he drove past.
42. The evidence of the LTA engineer also raises the possibility that Tauai could not have driven on green because there was no evidence of any traffic infront of him, or from the opposite direction of the sub-street to trigger the green lights. There was also no evidence of any pedestrians crossing the sub-street to trigger such change. Technically, that might be so, but in my view, the direct evidence of road users at the time of the accident is highly relevant and cannot be ignored.
43. I find therefore proven the second ingredient.
44. In respect of the third ingredient, I am also satisfied on the evidence of Tauai, that he suffered bodily injury. Even in the absence of a medical report, Tauai was clear that he felt pain on his right side and knees. He referred to scars to his right side. Given the impact of the collision as seen in the photos of the vehicles produced in evidence, it is more likely that anyone travelling in the vehicles would suffer injury.
45. In fact, the accused himself suffered serious injuries and was hospitalised for treatment for some time. Whilst Tauai’s injuries might not appear serious, I am satisfied that they were more than merely transient and did interfere with his health and comfort.
46. I find therefore proven the third ingredient.

Dangerous Driving

47. Having found that the accused continued to drive through the red lights, I have no difficulty also finding proven all ingredients of the Dangerous Driving charge. His failure to stop at the red lights was reckless and dangerous to the public who were on the road at the time. It resulted in an accident in which fortunately, no lives were lost.
48. The charge is alternative to the negligent driving causing bodily injury charge, which I have also found proven. It is accordingly dismissed.

Result

49. Ultimately, for all of the above reasons, I was satisfied beyond reasonable doubt that the accused drove negligently and thereby caused the victim bodily injury.
50. Accordingly, the alternative charge of dangerous driving was dismissed.
    

JUDGE FEPULEAI A. ROMA