Police v Leilua [2015] WSDC 8 (26 October 2015)

DISTRICT COURT OF SAMOA
Police v Leilua[2015] WSDC 8

Case name:	Police v Leilua
Citation:	[2015] WSDC 8
Decision date:	26 October 2015
Parties:	POLICE v FONOTI LIKISONE LEILUA, male of Salimu Fagaloa and Siusega.
Hearing date(s):	30 September 2015
File number(s):	D1183/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE ROMA
On appeal from:
Order:	- On the evidence and for the foregoing reasons I am satisfied that the prosecution has proven the charge of negligent driving causing death. I find the accused guilty as charged.
Representation:	T.M. Tamaleaoa for prosecution R. Papalii for defendant
Catchwords:	Negligent driving causing death
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960/39A
Cases cited:	Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953Police v. Yvette Kerslake Police v. Ata Sulape
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

FONOTI LIKISONE LEILUA, male of Salimu Fagaloa and Siusega.
Defendant

Counsel:
T.M. Tamaleaoa for prosecution
R. Papalii for defendant

Decision : 26 October 2015.

DECISION OF JUDGE ROMA

Introduction

1. In the afternoon of the 11^th May 2015 at Fasitoouta, near Toleafoa Faafisi’s supermarket and petrol station (“supermarket”) and beside the main road, a 9 year old boy of Nofoalii was struck by a Toyota Hilux pickup driven by the accused. The pickup had been travelling from Faleolo towards Apia.
2. As a result of the incident, the accused, a self employed builder and businessman of Salimu, Fagaloa and Siusega, on 30 September 2015, stood trial for one (1) charge of negligent driving causing death.
3. In an oral decision delivered on 26 October 2015, I found that the prosecution had proven the charge beyond reasonable doubt, and remanded the accused to 13 November 2015 for a pre sentence report and sentencing.
4. I also indicated that my reasons for the guilty verdict would be available in writing later. Those reasons now follow.

Charge

5. The accused is charged that at Fasitoouta on the 11^th May 2015, he was driver of a Toyota Hilux pick up; he drove negligently and thereby caused the injuries which led to the death of Manaia Manaia, a 9 year old male of Nofoalii.
6. The accused is charged pursuant to section 39A of the Road Traffic Ordinance 1960.

Prosecution Evidence

7. The prosecution called 5 witnesses. Constables Nepa Papalii and Afalua Fetu took photos and prepared the scene plan. Dr Adam Keil – Howman attended the victim when he was brought to the main TTM Hospital.
8. The main witnesses were Tasesa Junior Vaifa, a male resident of Nofoalii, and the deceased’s mother, Moega Manaia. Both were in the vicinity at the time of the incident.
9. Tasesa lives at Nofoalii with his wife’s family. From there, he was walking to the supermarket at Fasitoouta. He was on the seaward side and when he reached the gate to a reclaimed piece of land immediately before the supermarket, his attention was drawn to a sound of impact (“pao”) from behind. He turned to see a young boy lying on the seaward side, metres from the main road. The accused’s vehicle was stationary on the seaward lane of the road and facing towards Apia. He ran over and turned the young boy on the side. He was then able to see that it was Manaia Manaia.
10. As Tasesa was still at Manaia’s aid, the accused had come around the vehicle to where he and Manaia were. The accused helped Tasesa lift Manaia onto the tray of the pickup. Tasesa says that he then told the accused that they should take Manaia to the Leulumoega Hospital. With both Tasesa and Manaia in the tray of the accused’s vehicle, it drove off metres towards Apia before turning around infront of the supermarket and headed back towards Leulumoega Hospital.
11. Before leaving Fasitoouta, Manaia’s mother Moega, who had been selling vegetables infront of the supermarket, saw Tasesa at the back of the vehicle and noticed someone in Tasesa’s arms. She feared that it might be her son; she ran over and jumped onto the accused’s pick up before it drove off to Leulumoega Hospital.
12. Under cross examination, Tasesa confirms that before hearing the sound of impact from behind, he did not hear any screeching from a sudden application of vehicle brakes, and there was nothing to suggest to him that the accused’s vehicle had been speeding from behind. In fact, his attention was only drawn to what was happening behind him by and at the sound of the impact.
13. At Leulumoega Hospital, the accused tried to talk to Moega who was obviously distraught, and gave her $200.00 to help with Manaia’s medical costs. Moega did not accept the money and at Tasesa’s suggestion, the accused handed Tasesa the money which he subsequently gave to Moega.
14. Moega also says that in her brief conversation with the accused at Leulumoega Hospital, the accused said to her that he was focused more on his children when his vehicle ran off the road (“Ua mua na ou ano i la’u fanau ae oso ese ai le taavale ma le auala”).
15. Manaia was later transferred to Tupua Tamasese Meaole Hospital where he was pronounced dead. According to Dr Keil - Howman, the deceased arrived at TTM Hospital at 3.45pm and showed no signs of life. The cardiac monitor detected no heart rate or independent breathing. They continued CPR with IV adrenaline given, 3 doses over 15 minutes, but the deceased still did not respond. A reassessment showed that he had no heart rate, no respiratory rate and his pupils were fixed and dilated. Manaia’s death was called at 4.15pm.
16. On examination, a soft depression was discovered in the occipital area of the skull, and the left chest wall was deformed with bruising. In Dr Keil – Howman’s opinion, death was most likely due to intracranial bleeding from a skull fracture and associated pneumothorax due to probable rib fractures, both a result of high velocity trauma.

Defence Evidence

17. Following an indication to the defence that there was a prima facie case, the accused elected to call evidence.
18. The accused does not dispute that he was driver of the pickup. He and his 3 children had been to the Airport to check on one of his projects. His 6 year old son was properly seated in the passenger’s seat whilst his other son and daughter were in the back seat. At Nofoalii and approaching Fasitoouta, he could see a child running on the seaward side of the road towards the supermarket. He further says that the child suddenly crossed the road and in an attempt to avoid the accident, he swerved right but it was too late as the child was struck by the front left bumper of his pick up.
19. The accused denies that he was speeding because, as he claims, he was approaching the hump crossing infront of the supermarket. He says that immediately after impact, he straightened his vehicle so that it was parked on his lane before he jumped out to assist the child. He denies that he drove off the road and maintains that the deceased suddenly crossed when his vehicle was approaching.
20. The accused concedes that at Leulumoega Hospital, he tried to speak to the deceased’s mother, Moega. He denies however saying to her that he was focused more on his children when his vehicle ran off the road.
21. According to the accused, when he saw that there was nothing else he could do at Leulumoega Hospital, he asked Moega to take the $200 to help out and told her that he was sorry but he had to go and take his children. (“Faamalie atu ae avatu le $200 ma se’i o’u alu e ave la’u fanau”).
22. The accused also left his phone number with Moega and later that evening, he received a call from Moega to say that her son had died.

Law

23. 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.”

24. 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.”

25. 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, 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

26. To prove the charge, the prosecution must satisfy the Court beyond reasonable doubt of the following ingredients:
    • (i) the accused was driver of a motor vehicle;
    • (ii) he drove in a manner involving a departure from the standard of care for other road users to be expected of the ordinary prudent driver in the circumstances (negligence); and
    • (iii) as a result of the accused’s negligence, the deceased was caused injuries which led to his death.
27. It is not disputed that the accused was driver of the Toyota Hilux pick up involved. I find therefore proven the first ingredient.
28. The main dispute however relates to the second and third ingredients.
29. In respect of the second ingredient, the prosecution submitted that the accused’s negligence lies in the fact that he did not sound his horn so as to warn the deceased when his vehicle was approaching. I am not satisfied, at least in the circumstances of this case, that the accused’s failure to sound his horn amounts to negligence on his part. The deceased was clearly off the main road and on the side; the accused was not speeding because he was approaching a hump and depending on a pedestrian’s distance off the main road and the vehicle’s speed, an ordinary prudent driver in my view, would have either sounded or not sounded his horn as did the accused.
30. Even if such failure by the accused constitutes negligence, I am still not satisfied on the evidence that that was the cause of the accident. The argument by the prosecution that the accused’s negligence lies in the fact that he did not sound his horn so as to warn the deceased of the vehicle approaching, therefore fails.
31. It does not however end there, because whilst not emphasised by the prosecution in its closing submissions, there was clear evidence by the deceased’s mother, Moega that in her brief conversation with the accused at Leulumoega Hospital, the accused admitted to her that he was focused on his children when he vehicle drove off the main road (“Ua mua na ou ano i la’u fanau ae oso ese ai le taavale ma le auala.”).
32. On the accused’s evidence, the defence denies that he made any such admission. The inference is that the accused could not have made any such admission, because not only did he drive carefully, but the accident was also caused by the deceased suddenly crossing the road.
33. I have listened to and considered the evidence carefully. Other than the accused’s denial, I find no reason to doubt Moega’s evidence that at Leulumoega Hospital, the accused did admit to her that at the time of the accident, his attention focused on his children and he could not see his vehicle run off the road.
34. Firstly, whilst Moega was obviously shaken by the accident and the impact on her son, she would at the same time, have also been concerned to know how the accident occurred, so that in my view, she could not have testified to such an admission by the accused if it was in fact, never made.
35. Secondly, if the accident was, as claimed by the accused, caused by Manaia suddenly crossing the road, then naturally in my view, that would have been the first thing the accused would have said to those concerned, even if he was not asked as to how the accident occurred. But there was no such evidence by Moega. More significantly, when the accused testified, he gave no evidence to the effect that he told Moega or anyone else there that the accident was caused by the deceased crossing the road. Thus, the first time it seems, that the accused has claimed the deceased crossing the road to be the cause of the accident, was in his evidence in chief.
36. Thirdly, Moega’s evidence about the accused’s admission was crucial because it suggests that the accused was at fault, but Moega was never cross examined on that part when she gave evidence.
37. Apart from finding that the accused made the above admission to Moega, I am also satisfied on the evidence, that the accident occurred just as how Moega says, was explained to her by the accused. That the accused’s attention was focused on his children and he could not see that his vehicle had gone off the road and hit the deceased who had been walking or running along the side.
38. Immediately after impact, the deceased was lying on the seaward side, metres off the main road, and I accept that there was no speeding by the accused. But in my view, it was the accused’s momentary lapse of concentration that caused the vehicle to run off and hit the deceased who was walking or running along the side. The fact that he was lying on the side of the road, in my view, significantly supports the conclusion that he was struck not on, but off the main road on the seaward side.
39. As to the defence’s version that the deceased suddenly crossed the road and that he was struck when the accused swerved inland to avoid him, I am of the respectful view that that account is not plausible on the evidence. Firstly, the point of impact would then have most likely been directly the front of the accused’s vehicle and not towards the left as is the evidence of the accused. Secondly, the deceased would most certainly have been been found lying on the main road and not at the side and metres off it. Thirdly, the deceased, according to Moega, was on his way back to where he had been with her earlier and selling vegetables infront of Toleafoa’s shop. He was already on the same side of the road and had almost reached the shop. He had no reason to cross the road as claimed by the accused.
40. After a careful consideration of the evidence and for the above reasons, I find that the accused drove negligently and thereby caused the accident. Though not speeding, he had a momentary lapse of concentration; he drove off the road and struck the deceased who was on the seaward side walking towards Toleafoa’s shop, the same direction that the accused’s vehicle was also heading.
41. I find therefore that the prosecution has proven the second ingredient beyond reasonable doubt.
42. I also have no difficulty finding proven the third ingredient. Even in the absence of a post mortem report, there is overwhelming evidence on the injuries suffered by Manaia when and after he was struck by the accused’s vehicle. He had to be transferred to TTM Hospital from Leulumoega and upon arrival, according to Dr Keil - Howman, he showed no signs of life; the cardiac monitor detected no heart rate or independent breathing; and his pupils were fixed and dilated. Following unsuccessful attempts to resuscitate him, he was pronounced dead at 4.15pm.
43. The most obvious and logical conclusion is that death resulted from a combination of the head, chest and rib injuries identified by the Dr Keil – Howman and suffered by the deceased, clearly as a result of being struck by the accused’s vehicle.

Conclusion

44. On the evidence and for the foregoing reasons I am satisfied that the prosecution has proven the charge of negligent driving causing death. I find the accused guilty as charged.

JUDGE ROMA