Police v Ti'a [2016] WSDC 1 (5 February 2016)

DISTRICT COURT OF SAMOA
Police v Ti’a [2016] WSDC 1

Case name:	Police v Ti’a
Citation:	[2016] WSDC 1
Decision date:	5 February 2016
Parties:	POLICE v TAEAOMANINO TI’A male of Mulifanua and Tufutafoe
Hearing date(s):	29 October 2015
File number(s):	D1194/15
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE VAAI
On appeal from:
Order:	- I accordingly find the defendant guilty of driving under the influence of alcohol as charged. - The defendant is convicted and ordered to pay Prosecution costs $500 forthwith in 3 months imprisonment.
Representation:	R Titi for prosecution L R Schuster for defendant
Catchwords:	Negligent driving - driving under the influence of alcohol – guilty – sentence
Words and phrases:	breached the standard of care expected of a reasonable driver
Legislation cited:	Road Traffic Breatherlyser Act 2009 s.40 (1)(5)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

FILE NO: D1194/15

BETWEEN

P O L I C E
Prosecution

A N D

TAEAOMANINO TI’A male of Mulifanua and Tufutafoe.
Defendant

Counsel: R Titi for prosecution

L R Schuster for defendant

Sentence: 5 February 2016

DECISION OF DCJ VAAI

The charges

• 1. The defendant faces a charge of negligently driving a Mazda Sedan registered number 14225 which caused injuries to the complainant Tapula’aia Leaupepe of Fasitoouta on the 25^th of April 2015. He is also charged with driving the same car the same day while the proportion of alcohol in his breath exceeded 40 micrograms of alcohol per 100 millilitres of breath, more commonly known as driving under the influence of alcohol.

Background

• 2. The charges arise from an incident which occurred the night of the 25^th of April 2015 at Fasitoouta. The complainant was walking home that night when he was struck by a car. Not long after he was hit, he was taken to Leulumoega District Hospital for treatment. A nurse on duty at the time informed the police. Officers from Faleolo called at the hospital to check on the complainant before attending the scene of the accident. At Fasitoouta they found a Mazda sedan on the inland side of the road facing east with the front and back windows damaged. They made enquiries and took photographs of the scene. Several officers talked to the driver at the scene before escorting him in the police car to Faleolo. According to the officers the driver’s breath smelled of alcohol. Since there was no breathalyser machine at Faleolo the driver was again escorted to the Lotofaga Police outpost for breath testing. Results of the breath screening and the evidential tests including a statement the driver made to the police officer who interviewed him were tendered in evidence as exhibits “P3” and “P4” respectively.

Evidence

• 3. The complainant said he was so drunk that night he could not remember when, where or how he was struck by the car that hit him. According to the medical report tendered as Exhibit “P1” the complainant suffered “....multiple abrasions along the forehead, face and left elbow which were otherwise small and not actively bleeding...” Apart from the complainant, Tavita Peleti, Kelopelei Aiono and Solomona Tualafo who were present at the scene gave evidence.
• 4. Peleti said he was drinking alcohol under a Tamaligi tree on the seaward side of the road with Aiono when the complainant was struck by the moving vehicle. He admitted being drunk that night. He saw the complainant walking in an easterly direction on the inland side of the road before he was hit. He could not tell from where he was whether the complainant was walking on the road or the side of the road. He could not tell either whether the complainant was struck on the road or the side of the road. When the car came to a stop he saw the driver run away.
• 5. Aiono confirmed he was drinking with Peleti on the seaward side of the road. He said he was not drunk. He saw the complainant walking east on the inland side of the road and called out and approached him for a cigarette. While talking to the complainant he noticed a car travelling from the east approach a spot where a lamp post stands on the inland side of the road (seen on photograph 1 exhibit “P2”). He heard the sound of tyres running on gravel just before the complainant was hit by the car he noticed an instant earlier. He saw the complainant fall onto the bonnet of the car, then rolled onto and struck the front windscreen before he was thrown onto the grass on the side of the road. He said he also heard a screeching sound immediately before the car swerved making an anti-clockwise U-Turn ending up facing the direction it travelled from when it came to a stop. He ran towards the complainant concerned and roused him up. He said the car struck the complainant on the side of the road, not on the road. He estimated the speed at which the car was travelling when it struck the complainant to be around 40 to 50mph. He did not see the complainant on the seaward side of the road at all that night.
• 6. Tualafo was walking from the west towards the east with two other men of the village that night on the seaward side of the road around the same time as the complainant. He did not see Peleti or Aiono as they walked past where they were drinking. Like them, he was also at a rugby team party earlier that evening. The complainant was walking not far behind them on the same side and direction as they. As they were walking Tualafo said he heard coming from behind him the sound of a car horn. He turned around and saw the complainant staggering on the middle of the road. One of the men Tualafo was with went back and escorted the complainant off the road and onto the seaward side. They continued on their way and stopped to talk to a man named Fa’au’uga a short distance up ahead. While talking with Fa’au’uga, he heard a sound he described as a thud. When he looked at the direction the sound came from the complainant had already been struck by a car on the inland side of the road. He could not tell when he looked how or where the complainant was struck by the car. He did not know either the time the complainant crossed the road from the seaward side where he saw him last to where he was struck.
• 7. Of the four police officers who attended the scene that night constable(s) Onesemo Semu, Ale Maselo and Talavou Taufao gave evidence. They gave the date of the incident as the 25^th of April 2015 and the time the police received the call as about 11.00pm. They took photographs of the scene that night. They said the driver of the car on the road at the scene told them people damaged the back window of his car. They saw two empty beer bottles inside the car and the defendant also smelled of alcohol.
• 8. He was interviewed by constable Vaavale around 9.07am on the 26^th of April at Faleolo police station. He told constable Vaavale that when his car reached Fasitoouta the previous night a man suddenly came onto the road in the path of his car. He does not mention whether the man came from his left or right side when he appeared. Instead, he says because of what he saw he swerved left to avoid hitting him but it was too late because the front right side of his car struck the man. He admitted drinking three bottles of beer at a function he attended at Leauvaa prior to the incident at Fasitoouta.

Issues

• 9. The first issue in relation to the negligent driving charge is identification of the defendant. That is, whether the Court is satisfied from the evidence that the person to whom the witnesses referred to as the driver of the car which struck the complainant on the night in question was in fact the defendant. The second issue also in relation to the negligent driving charge is whether the defendant was driving his car negligently at the crucial time it struck the complainant.
• 10. The third issue which relates to the charge of driving under the influence is whether the prosecution has established that the defendant on the night in question was in fact driving under the influence of alcohol pursuant to the Road Traffic (Breathalyser) Amendment Act 2009.

Discussion

Identification

• 11. There was no dock identification of the defendant by any of the witnesses. Defense counsel submitted the identification of the defendant was at no time conceded during the hearing. Since the prosecution has the burden of proving the defendant’s identification and since there was no dock identification he argued the standard of proving it was not satisfied by the evidence
• 12. The prosecution responded firstly, the issue of identification was not a ‘live’ issue during the hearing. Secondly despite the absence of any dock identification, identifying the defendant as the person who drove the car at the relevant time was sufficiently established from the totality of the evidence of the officers who attended the scene. Third, the defendant signed his name on both police exhibits “P3” and “P4”, produced without objection.

In my respectful view identification of the defendant as the driver of the car which struck the complainant at the relevant time poses little difficulty when seen in the context of the totality of the evidence heard. During examination in chief and cross examination of witnesses specifically on the identification of the driver of the car involved, identification was neither seen as a ‘live’ issue throughout the hearing nor raised by counsel as part of his client’s defence. The Court is quite satisfied in the circumstances the defendant has been sufficiently identified as the driver of the car which struck the complainant on the night in question.

Negligent Driving (Information D1193/15)

• 13. The issues relating to the duty of care and the cause of the bodily injuries the complainant suffered are neither in dispute nor in issue. The real issue therefore relates only to whether on the evidence the standard of driving expected of a reasonable driver was breached by the defendant’s driving in the specific circumstances of this case.
• 14. The prosecution submitted, the indicators which show that the defendant breached the standard of care expected of a reasonable driver at the crucial time the complainant was struck by the car are first, the estimated speed of 40 to 50mph at which the defendant’s car was allegedly travelling before it struck the complainant was excessive in the circumstances. Second, the complainant was struck not on the road but on the side of the road. Third, the defendant’s admission to having consumed alcohol earlier the same evening was also another contributing factor to breaching the standards of reasonable driving.
• 15. The defence on the other hand submitted firstly, the recall of the witnesses present at the scene especially Aiono should be treated with caution because they were in varying degrees intoxicated at the relevant time. Further, the defendant told Constable Vaavale in his interview the complainant suddenly jumped onto the road in the path of his car. That, counsel argues is not evidence of negligent driving on the defendant’s part. Finally, Aiono’s evidence regarding the estimated speed at which the defendant’s car was travelling when it struck the complainant is not supported by the minimal nature of the complainant’s injuries described in the medical report.
• 16. In determining whether the standard of care expected of a reasonable driver was breached the Court finds helpful Aiono’s evidence and what the defendant told Constable Vaavale in the interview of him she conducted. Aiono gave an estimate of the speed at around 40 to 50mph. He heard a screeching sound from which I understand his evidence to mean the car was speeding with all or some of its tyres on the road. He said the car struck the complainant not on the road but on the side of the road implying that the car went off the road and onto the complainant’s path. This evidence contradicts what the defendant told Constable Vaavale that the complainant went onto the road in the path of his car and not the other way round. Aiono also described seeing the car after he heard the screeching sound make an anti-clockwise U-Turn facing east where it came from when it came to a complete stop. Because of the lack of forensic evidence of the scene the night of the incident, where the car ended up when it came to a complete stop cannot be accurately determined. Markings made by witnesses on the photographs tendered are not reliable or helpful in corroborating Aiono’s account of what he said he heard and saw. There was no evidence of any screech or skid marks evidencing an anti-clockwise U-Turn either on the side of the road where Aiono said the complainant was struck or on the road where the defendant claims his car struck the complainant. Given that the complainant was struck on the right front side of the defendant’s car Aiono’s view that the complainant was struck on the side of the road instead of on the road implies the car was either in the process of going off the road or it was travelling straight but was completely or almost completely off the road and on the side of the road when it struck the complainant. One would think that a car travelling at a speed of 40 to 50mph and doing an anticlockwise U-Turn either on the side of the road or partly on and partly off the road would surely leave some evidential traces or marks to show what Aiono described he heard and saw, either on the grass strip on the side of the road or on part of the road itself or both. The lack of any reliable forensic evidence to support the grounds the prosecution rely on in establishing the defendant breached the standard expected of a reasonable driver in the circumstances of this case leaves the Court in a state of some doubt. The defendant in my view gets the benefit of that doubt. The charge of negligent driving causing bodily injury to Tapulaaia Leaupepe on the 25^th of April at Fasitoouta has not been proven to the required standard of proof. It is dismissed.

Driving under the influence: (Information # D1194/15)

• 17. The prosecution evidence in relation to this charge comprises primarily of the result of the evidential breath test taken with a brief record of the defendant’s statement (Exh“P4”) and constable Vaavale’s testimony. Exh“P4” confirms constable Vaavale’s testimony that the machine used to test the defendant for alcohol was a Lion Alcolmeter SD400. The serial number for the Lion Alcolmeter SD400 machine certified in the Certificate of Compliance issued under the hand of Assistant Commissioner Misa Talaimanu Keti on the 3^rd of March 2015 and served on counsel is 070346D. The result of the test shows a reading of 41 micrograms of alcohol per 100 millilitres of the defendant’s breath. There is no evidence the defendant objected to being breath-tested. He also signed his name on the document showing the test results.
• 18. Mr Schuster first contended that there is no serial number of the Lion Alcolmeter SD400 machine used to breath-test the defendant. In fact this is not the case because the number (presumably the serial number) shown in page 11 of Exh “P4” is SD400. Clearly the number is different from the serial number of the machine of similar make and model in the Certificate of Compliance served on counsel. Counsel seems to suggest that this difference in numbers causes an evidential problem for the prosecution. The problem seems to him to be a lack of evidential connection between what constable Vaavale said happened during the test and interview, and what was in fact done. Alternatively, the machine used for breath-testing the defendant was not the same machine as the machine the certificate of compliance served with the trial documents relates to. I have considered this submission carefully and cannot agree with or see the logic in it. It does not necessarily follow from the differences in serial numbers as appear in the evidence that the Lion Alcolmeter SD400 machine used to test the defendant at Lotofaga was different from the Lion Alcolmeter SD400 machine the certificate of compliance served on the defendant relates to. It is obvious, the number SD400 constable Vaavale inserted in page 11 of the record of her interview of the defendant after the evidential breath test was done under the heading of serial number is the number which identifies the model rather than the serial number for the particular model of the machine used. The discrepancy in serial numbers in my humble view is most likely due to a lack of proper police training or understanding of the quite technical nature of the process surrounding breath testing procedures and the associated paperwork. It does not make the breath-testing of the defendant as happened at Lotofaga technically defective or effectively any less lawful. Nor does it affect the legitimacy of the procedure and equipment used to conduct the test and the consequential results which the defendant accepted and signed. It is not fatal to the prosecution’s case.
• 19. Mr Schuster secondly contended that because the Certificate of Compliance was not produced there is no evidence the breathalyser machine used was compliant. Further and more significant the prosecution has also breached its statutory duty to produce a certificate of compliance in accordance with Section 40I (2) of the Road Traffic (Breathalyser) Amendment Act 2009 which says:
  • “At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device....the prosecution must produce to the Court a certified copy of the certificate of compliance.”
• 20. The prosecution did not produce the certificate of compliance for the breathalyser machine used in the breath-test. But the matter does not end there. Section 40P (2) of the Act also states:
  • “...it is no defence to proceedings for an offence that a provision forming part of sections 40A to 40I has not been strictly complied with or has not been complied with at all provided there has been reasonable compliance with such of those provisions as apply.”
• 21. The question therefore is, does the proviso in Section 40P (2) save the prosecution’s case? In my view it does, because the certificate of compliance together with the rest of the trial documents was served on the defendant through counsel sometime before the trial. In the circumstances, I reach the conclusion the prosecution has reasonably complied with the spirit and intent of section 40 of the Amendment Act 2009.
• 22. I accordingly find the defendant guilty of driving under the influence of alcohol as charged.

Judge Vaepule Vaemoa Vaai