Police v Overhoff [2016] WSDC 12 (29 March 2016)

DISTRICT COURT OF SAMOA
Police v Overhoff [2016] WSDC 12

Case name:	Police v Overhoff
Citation:	[2016] WSDC 12
Decision date:	29 March 2016
Parties:	POLICE v HERMAN OVERHOFF male of Sinamoga
Hearing date(s):	10 March 2016
File number(s):	D2254/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	For all the foregoing reasons and based on the evidence, I am therefore satisfied beyond a reasonable doubt that the Prosecution has proven the offence charged beyond a reasonable doubt, namely that the defendant on the 3rd of August 2015 drove a Toyota Crown registered plate number 20127 on Vaitele Street without due care and attention. The defendant is remanded at liberty to Wednesday 13 April 2016 at 10.00am for sentencing. .
Representation:	O Tagaloa for prosecution Defendant in person
Catchwords:
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.38 & 72A(2)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D:

HERMAN OVERHOFF male of Sinamoga.
Defendant

Counsel:
O Tagaloa for Prosecution
Defendant in person

Decision : 29 March 2016

DECISION OF DCJ CLARKE

The Charge.

3. The defendant is charged with two charges as follows:
   • (a) That on the 20^th day of July 2015, the defendant drove a Toyota Hiace van registered plate number 4647 on a road, namely, the Flea Market Car Park, without due care and attention (Information D2093/15); and
   • (b) That on the 3^rd of August 2015, the defendant drove a Toyota Crown registered plate number 20127 on Vaitele Street without due care and attention (Information D2254/15).
4. The defendant pleaded not guilty to the charges and the matter set down for a defended hearing on 10 March 2016. At the hearing at the close of the Prosecution evidence, Prosecution counsel applied for leave to withdraw Information D2093/15 on the grounds that there was no evidence to offer at the hearing. Leave was granted to withdraw and information D2093/15 dismissed on the grounds of no evidence.
5. The matter therefore was heard only in respect of information D2254/15 in respect of the alleged incident on 3^rd August 2015.

The Law:

6. The charge against the defendant is brought pursuant to section 38 of the Road Traffic Ordinance 1960. Section 38 provides:
   • (c) “38. Careless driving – If a person drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road, the person commits an offence.”

The Evidence:

7. Two witnesses gave evidence at the hearing. They were Alistair Sagato Molioo for the prosecution and Herman Overhoff, who elected to give evidence.
8. Much of the evidence is not in dispute. On the 3^rd of August 2015, Mr Molioo was driving from the direction of the town clock towards Taufusi after work. At the Taufusi three corners traffic lights in front of H J Keils store, the Toyota Hilux driven by Mr Molioo came to the “T” intersection to turn left to go towards Malifa. In the front of Mr Molioo’s car was the car driven by the defendant, also turning left. At the “T” intersection, the defendant’s car turned first onto Vaitele Street heading towards Malifa using the left lane. Mr Molioo’s car followed turning left but instead of going into the left lane behind that of the defendant, Mr Molioo entered Vaitele Street and immediately went to the right lane.
9. In his evidence, Mr Molioo said that as he was accelerating his car on the right lane, the defendant turned into his lane and hit the front bumper of his car. The impact area on the defendant’s car was the back right door. After the accident, he said that the defendant said ‘sorry bro’, that he had not seen Mr Molioo but that the defendant blamed Mr Molioo for the accident. Mr Molioo said in evidence that he cannot recall if the defendant indicated to change lanes and he did not see the defendant indicate as ‘I was fixated on my lane’ and the defendant’s car was too close.
10. In his evidence, the defendant said that at the H J Keil intersection Taufusi, he decided to go left towards Lalovaea so he can take the Palisi way home. As he turned left and went towards Lalovaea, he put his indicator on to go to the right lane. He said he had checked all his views and there was a double cab pick-up behind him coming out of the bend he saw in his mirror. His distance from the vehicle driven by Mr Molioo when he checked the rear vision mirror was between 20 – 30 metres. He then indicated to go into the right lane and when he went to the right lane, he struck Mr Molioo’s car. The defendant said that the time between him checking his mirrors and seeing Mr Molioo some 15 – 20 metres away and when he changed lanes was ‘not even 5 seconds’. He then later again said that the period between checking the mirror and changing lanes was 5 seconds between checking and changing lanes. Only at the end of cross-examination did the defendant then claim that after the initial check and change, he again checked before he executed his lane change.
11. In his evidence, the defendant said that the procedure of the road set out in the regulations at an intersection where cars turn on to a road with two lanes is that the cars must first turn on to the left lane and only after being on the left lane, can they go to the right lane.

Discussion:

12. Much of the evidence is not in dispute. The defendant turned left on to Vaitele Street heading east taking the left lane. Mr Molioo who followed behind the defendant turned left and took the right lane. As Mr Molioo was travelling on the right lane, the defendant turned into the right lane from the left lane. In turning from the left lane to the right lane, did the defendant breached section 38 of the Road Traffic Ordinance 1960?
13. Mr Molioo was travelling on the right lane eastward towards Lalovaea. The defendant was driving on the left lane and it was the defendant who wished to change lanes to the right lane. As the car driving the right lane, Mr Molioo had the right of way. The defendant did not have the right of way and could only change into the right lane when it was clear and safe to do so.
14. Late in his evidence, the defendant claimed that after he had checked the mirror and then changed lanes, being a period of ‘not even 5 seconds’, he checked again before changing lanes during that intervening 5 second period. This had not been stated in his evidence in chief and I do not accept that evidence. If the defendant had checked the right lane immediately before changing lanes to see if it was clear, he would have seen Mr Molioo’s car and not have changed lanes. The lane was not clear. I accept the defendant’s earlier evidence of an approximately 5 second delay between checking the view mirror and changing lanes.
15. The delay of approximately 5 seconds between checking that the right lane was clear and then changing lanes is a long delay in the circumstances. The defendant should have again checked the right lane to ensure that the right lane was clear immediately prior to changing lanes to ensure that the lane was clear and it was safe to change lanes. In changing lanes without again checking to see it is clear and safe, the defendant drove the car without due care and attention.
16. That the defendant claims that he had his indicator on is not sufficient. It does not absolve him from culpability in terms of section 38 because it was Mr Molioo who had the right of way. Had the defendant taken due care and paid adequate attention before changing to the right lane, he would have seen Mr Molioo’s car.
17. In his evidence, the defendant referred to and relied upon purported Land Transport Authority regulations to the effect that Mr Molioo was required as a matter of law to enter Vaitele Street on the left lane before changing lanes to the right lane. The defendant was given until 18 March 2016 to file with the Court and serve on Prosecution the relevant regulation. To date, no such Regulation has been filed with the Court by the defendant. Prosecution has following a review of the “relevant laws” has informed the Court that no such law as claimed by the defendant could be identified.
18. The defendant has not produced the purported regulation upon which he relies. The Court is also not cognizant of the existence of such a regulation, a view reaffirmed by the Prosecution. Even if such a purported regulation existed, it would in any event not be material to the outcome of this matter. Independent of such a law, even if it existed, the defendant nevertheless had a duty to drive his car on the road with due care and attention or with reasonable consideration for other persons using the road including that of Mr Molioo who was driving on the right lane.

Decision:

19. For all the foregoing reasons and based on the evidence, I am therefore satisfied beyond a reasonable doubt that the Prosecution has proven the offence charged beyond a reasonable doubt, namely that the defendant on the 3^rd of August 2015 drove a Toyota Crown registered plate number 20127 on Vaitele Street without due care and attention.
20. The defendant is remanded at liberty to Wednesday 13 April 2016 at 10.00am for sentencing.

JUDGE D M CLARKE