Police v Ah Kee [2016] WSDC 15 (15 April 2016)

DISTRICT COURT OF SAMOA
Police v Ah Kee [2016] WSDC 15

Case name:	Police v Ah Kee
Citation:	[2016] WSDC 15
Decision date:	15 April 2016
Parties:	Police v SAMANTHA ULUFAFO HOKENI SAMAU AH KEE female of Vaitele fou.
Hearing date(s):	9 and 10 March 2016
File number(s):	D3162/15
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Having heard all the evidence and considering the evidence in its totality and for the foregoing reasons, I find the Prosecution has not proven the charge against the defendant beyond a reasonable doubt and the charge is therefore dismissed.
Representation:	R Titi for National Prosecutions Office
	D. Roma for defendant
Catchwords:
Words and phrases:	Negligent driving causing death
Legislation cited:	Road Traffic Ordinance 1960 s.39 (a)
Cases cited:	Police v Chan Sau [2013] WSDC 5 Fuimaono S. Lautasi -v- Police Police v Fata Maulolo Tavita Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 Police v Yvette Kerslake
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

BETWEEN

POLICE
Informant

A N D

SAMANTHA ULUFAFO HOKENI SAMAU AH KEE female of Vaitele fou
Defendant

Prosecutor:
R Titi for National Prosecutions Office
D. Roma for defendant

Decision: 15 April 2016

DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with a single charge that on the 16^th of December 2015, she as the driver of a Toyota Hilux Double Cab pick-up registration number 7426 (“the vehicle”) negligently drove that vehicle on the West Coast Road thereby causing death to Maria Fereti Luatua (“the deceased”), a female of 7 years of age of Salepoua’e Saleimoa.
2. The defendant pleaded not guilty to the charge on 2 February 2016 and the matter proceeded to a defended hearing on 9 March 2016. In closing submissions, prosecution informed the Court that identification of the defendant was not in issue and neither was the fact that she was the driver of the vehicle that struck the deceased, namely the Hilux. Defence counsel conceded (a) the defendant was the driver of the vehicle; and (b) the vehicle struck the deceased causing her death. The only issue is whether the defendant was negligent in the terms of section 39A of the Road Traffic Ordinance 1960 (“the Ordinance”).

The Law:

3. The charge against the defendant is brought pursuant to section 39A of the Ordinance which provides:
   • “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 recklessly or negligently drives or rides a vehicle and thereby causes bodily injury to or the death of any person.”
4. The elements of the charge that the Prosecution must prove beyond a reasonable doubt are that (see for instance: Police v Chan Sau [2013] WSDC 5 (21 June 2013):
   • (1) The defendant was the driver of the Hilux vehicle registration number 7426 on the West Coast Road on 16 December 2015;
   • (2) she drove the Hilux vehicle negligently. That is to say that the defendant failed to take reasonable care in all the circumstances. See Fuimaono S. Lautasi -v- Police, unreported Supreme Court decision 15.5.1998, Bisson J at 7; and
   • (3) as a result of the defendant's negligent driving, death was thereby caused to the deceased.
5. Elements (1) and (3) are therefore not in dispute. The question is whether the defendant drove the vehicle negligently (element 2), that is, did she fail to take reasonable care in the circumstances.
6. In Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011), his Honour Judge Vaepule Va’ai stated in terms of negligent driving that the issue is whether the defendant breached the standard of care expected of a reasonable driver in the circumstances. Overseas authorities have also defined ‘ negligent drivi217; in a si a similar way. In Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 cited wted with approval by Her Honour Judge Tuala-Warren in Police v Yvette Kerslake (unreported, District Court, 11 April 2014), His Honour Johnson J in 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.”

The Evidence:

7. The undisputed evidence is that on the afternoon of the 16th of December 2015, the 7 year old deceased was with Time Metusela (“Time”), an 8 year old boy. The time was after 4pm according to witness Laufili Tuitama. As they were on the seaward side of the West Coast Road, the deceased ran across the West Coast Road to the landward side. Time stayed on the side of the road. Time did not cross because of a car coming. As the deceased ran cross the road, she was struck by the vehicle driven by the defendant. The vehicle was travelling from Faleolo to Apia on the seaward side. The deceased suffered significant injuries. The report of Pauli Dr A Pai Enosa dated 7 March 2016 tendered as exhibit P1 concluded as follows:
   • “In conclusion from the examination of her body, she passed away from severe head injury as a result of being involved in a motor vehicle accident.”
8. The Prosecution witnesses were Constable Thor Tafunai, Time Metusela, Luuga Faga’alima, Laufili Ieni Tuitama, Laufili Taua Sa and Ekata Logo, the mother of the deceased. The defendant elected not to give or call evidence.
9. In his evidence, Constable Tafunai said he attended the scene on the 16^th December 2015 with Police Officers from Afega Police Post and the Police Traffic Section. He took the scene photos tendered as exhibit P2. In explaining exhibit P2, he said that photos 1 and 2 were taken facing Apia with his back to Faleolo. He said that on the left of Photo 1, subsequently marked L3 by Luuga Faga’alima, (“Luuga”) is a shop. It is also identified by Luuga as Fatu Pula’s house (see paragraph 16 below). Photo 3 is taken facing Faleolo and is looking to where photograph 1 and 2 were taken from. He estimated that the distance between markers 1 to 4 shown in exhibit P2 is a distance of about 15 to 20 metres. He did not however take any distance measurements. He confirmed under cross-examination that Police traffic officers were present at the scene, prepared a site plan and took measurements of the distances between the markers. That evidence was not however adduced in Court. Constable Tafunai confirmed that no skid marks were seen on the road and that when he arrived, the deceased’s body had been moved off the road.
10. In explaining the markers, he said marker 1 was a yellow hair band. This was later identified by Ekata Logo, the deceased’s mother as the deceased’s hair band. Marker 2 was some red staining that appeared to be blood. Marker 3 marked hair on the road and marker 4 showed red staining on the road that appeared to be blood. He said that the amount of red staining at marker 4 was significant.
11. In his evidence, 8 year old Time said that he is in year 4 at school. He was with the deceased. They went to the main road (West Coast Road) and there, Luuga was at her market. She asked him to go to buy cigarettes and get a light. He then went to Asovalu’s store with the deceased to buy cigarettes and get a light from Emiga’s. They returned to Luuga at the market and gave her the cigarettes and light. They then left Luuga at the market. In his evidence, he went to the area he marked “O” on Exhibit P2 photo 3. At that area, he stayed on the side of the road but the deceased ran across the road. His evidence was as follows:
    • “Titi: Uma na tuu le afi male sikaleti ia Luuga ia ma a lea.
    • Wt: ma omai loa a tamoe maria ae te valaau atu iai ae alu a ao la e sau le taavale.
    • Titi: e iloa o fea sa tu ai olua ae tamoe loa maria.

Wt. O le maketi.

• ...
• Titi: tamoe maria kolosi le auala, le a le mea na tupu ia na ia
• Wt. la e sau le taavale.
  • Titi: ia le a le mea na tupu.
  • Wt. la e fiu e valaau atu ai ae la e agi a, ao la e sau le taavale.
• ...
  • Titi ae iloa e oe fea na oo ai le tamoe a malia?
• Wt. te leiloa iai.
  • Titi: Sa vaai oe ia Malia ua oo ile isi pito ole auala?
  • Wt. I.
  • Titi: Time, le taavale lea fai mai oe lae sau, e mafai na faamatala mai e oe le ituaiga alu la e e alu ai le taavale.
  • Wt. e masau.”

12 Time does not mention going to the seawall to play after leaving the cigarettes, in contrast to Luuga’s evidence. He agreed in cross-examination that when he saw the car coming, it was close to them. In his evidence, Time when asked whether the deceased made it to the other side of the road when she ran across said yes. Time said the car stopped at the front of Andrew’s fale, which is also a store. Time marked Andrew’s fale with the letter “A” on exhibit P2 photo 1. This was also identified by Constable Tafunai as a store and by Luuga as Fatu Pula’s house (see paragraph 9 above).

13. Luuga in her evidence said she is almost 28 years of age and has a vegetable market on the West Coast Road at Salepouae Saleimoa. The vegetable market is made out of timber and is located on the seaward side of the West Coast Road. It is shown on the right of photo 3 exhibit P2. It stands in front of the sea wall and adjacent to the road as shown in photo 3.
14. Luuga said she saw Time with the deceased. They were walking on the landward side of the road. She called to Time and asked Time if they can go do her shopping. He said yes so he and the deceased crossed the West Coast Road to the seaward side and went to Luuga at the market. She asked Time to go buy her 3 cigarettes and said for the deceased to stay with her. The deceased however ran off with Time. They returned from Faasovale’s Store with the cigarettes. She told them to go home but in her evidence, Time said they are going to play on the sea wall. About 2 minutes after Time and the deceased left, Laufili Ieni Tuitama (“Laufili Ieni”) arrived at the market. He parked his car at the corner of the market marked “L1” on photo 3 exhibit 2. She spoke with Laufili Ieni inside her market. In chief, she said they had not spoken for long and then she heard a noise. In cross examination, she said that the children left the market, 2 minutes later, Laufili Ieni arrived and that the period between the children leaving the market and the accident occurring was about half an hour. Her evidence on this point, if accepted, would mean that Laufili Ieni was at the market for approximately 28 minutes before the accident occurred. I prefer Laufili Ieni’s evidence on how long he was at the market before the accident occurred. Luuga’s evidence on this point was as follows:
    • “Roma: Le a se va ole o ese o tamaiti ma le taunuu atu o laufili.
      • Wt. Pe a mase lua minute.
      • Roma. Ao le a le va ole lua talanoa ma Laufili ae tupu le faalavelave
      • Wt. Poo se afa itula le taimi na o ese ai tamaiti nae tupu le fa’alavelave.”
15. In terms of hearing the noise, she said in evidence as follows:
    • “Titi: Na e faalogo ile gapa na ona a laia?
      • Wt. na ma tulioso loa ma Laufili Ieni I fafo.
    • Titi. Ona a laia
      • Wt. na ma tulioso mai loa ma laufili ieni ma fai mai laufili ole pau ole taavale ua pa.”
16. She then saw Time standing next to the market. She marked this L2 on photo 3 exhibit P2. She said Time was saying “fai atu a e tu ae oso a.” She then saw the vehicle, it had passed the market and passed Fatu Pula’s home marked L3 at photo 1 exhibit P2. The vehicle then reversed back to Fatu Pula’s house and only after it reversed back, she realized what had happened when she saw the deceased lying on the road. She said that not long after the deceased had been injured, a bus arrived and stopped on the landward side of the road. This was when the vehicle was reversing to Fatu Pula’s house. Her evidence in terms of the car’s speed (in reference to the Hilux) was as follows:
    • “Titi: Taimi muamua na e vaai atu I le ta’avale o minoi le ta’avale?
    • Wt. la e minoi
    • Titi. Le a le sau vaai ile taavale le taimi na alu ai?
    • Wt. E saosaoa. E masau.”
17. In cross-examination, her evidence on when she saw the vehicle was as follows:
    • “Roma:O le mea a ia ete leiloa pe na masau ole taavale pe na lemu aua na o le pao lea ete fa’alogoina, e sao?
    • Wt. lau afioga le tamaitai loia, na ou iloa ai le ta’avale ua ii pau ole taavale ua pasi le fale a Fatu Pula. Pau na o le taimi na ou iloa ai le ta’avale.”
18. This evidence under cross-examination suggests that the first time she saw the vehicle was after it had passed Fatu Pula’s house and the tyres were screeching. In cross-examination, she also confirmed that her Police statement did not refer to the screeching tyres.
19. Laufili Ieni is 56 years old and from Salepouae Saleimoa. He was at Luuga’s vegetable market at the time of the accident. He drove his van that day and parked at T1 on photo 3 Exhibit P2. After he came out of his car and went to the market, the two children walked next to and past him going to the east (towards Apia). In his evidence, he went and stood on the western side of the market towards Faleolo on the side (‘autafa’) of the market. After the kids walked past him, it was a period of about half a minute and he then heard the sound like a burst tyre. His evidence was as follows:
    • “Titi: le a se umi na pasi tamaiti ae e fa’alogo le pao ole mea.
      • Wt. se mea poo le va o le afa miuite.
      • Titi. Ia na ole aumai a ose fa’ataitaiga
    • Wt. afa minute poo va o le mea na

Titi: oi e le umi poo se afa minute I le tasi talu na pasi tamaiti na e faalogoina le a.

• Wt. na ou fa’alogo I le pao.
• Titi le a le ituaiga pa’o.
• Wt. pei se pau pa.
  • ...
• Wt. O’u oso faapea ou tilotilo le taavale lae sau agai mai Apia.
  • ...
• Titi. Le a sou vaai ile alu ole ta’avale ile taimi lea?
• Wt. oute tilotilo atu ua lemu le taavale.
• Titi. Ona a laia le a lesi mea na e vaai ai?
  • Wt. E lei umi ae ua pasi le ta’avale ae ou vaai atu o taatia mai le teneititi luga le auala.”

20 Laufili Ieni later clarified his evidence that the car that struck the deceased had come from Faleolo. After the accident, he went to the deceased on the road and the vehicle (truck) was parked next to the faifeau’s house. The faifeau’s house is on the landward side facing Fatu Pula’s house. Before he heard the sound, Laufili Ieni had not seen the vehicle. When he saw the pick-up truck, it wasn’t long and a distance of only about 10 yards and the pick-up came to a stop on the seaward side. After the sound he heard, it was about 10 seconds before he saw the pick-up truck as it slowed down. He said at the time of the bang, there were no other cars on the road.

21. Laufili Taua Sa gave evidence. He came to the scene after the accident. He saw the deceased’s body laying on the road and she had passed away. She had suffered head injuries. She was laying in front of Fatu Pula’s house. The deceased’s mother Ekata Logo also gave evidence. She confirmed the deceased’s birth date and tendered the deceased’s birth certificate. She also confirmed that the hair band marked 1 in Exhibit P 2 belonged to the deceased.

Discussion:

22. Based on the evidence, the road conditions at the time of the accident were apparently normal. There is no evidence of rain and the photos of the road exhibit P2 taken that same afternoon do not suggest otherwise. There was also apparently no other traffic on the road at the material time of the accident, only a bus that arrived soon after. In any event, if there was traffic, it was very light.
23. The sole issue in is whether the defendant drove the vehicle negligently. The key factors that Prosecution submit in terms of the defendant’s alleged negligence was (a) the speed of the vehicle; (b) the defendant not exercising due caution when ‘speeding’ beside a parked car, the parked car being Laufili Ieni’s car parked next to the market on the Faleolo side; and (c) failing to exercise caution upon seeing two children on the side of the road. The defence on the other hand say that say the defendant was not negligent, the evidence of Luuga should not be given weight and deceased crossing the road was sudden and unexpected.
24. In terms of speed, Prosecution relies on the evidence of Time who said that the vehicle was ‘masau’ and Luuga who described it as “masau” and “saosao”. Prosecution also draws inferences from the evidence of Laufili Ieni in terms of speed. Apart from these observations of speed from Time, Luuga and Laufili Ieni, there is no other direct evidence about how the defendant’s car was being driven.
25. In terms of Time’s evidence as to speed, he is an 8 year old child in year 4. He does not drive a vehicle nor do I place much weight on his evidence in terms of vehicle speed. His life experience is such that any such assessment of speed by him is likely to be unreliable. I must have regard to the totality of the evidence.
    
26. In Luuga’s evidence, she did not give an assessment of speed except to observe that it was ‘masau’ and ‘saosaoa’. There is no evidence as to any assessment of how fast the car was going except for these observations. Luuga’s first observation of the car according to her evidence under cross-examination was after it had passed Fatu Pula’s house and the tyres were screeching. For the reasons I set out further below (see paragraph 29), I do not accept this witness’ evidence in relation to hearing the screeching tyres. This then raises serious doubts in my mind over what she claims she saw and any purported observation made by her.
27. Even if what Luuga says is correct in terms of her observation, her view of the defendant’s car was from the rear after it had passed her market and struck the deceased. She does not drive a car and observing car speeds from the rear in what would have been a probably fleeting observation does not provide a reliable basis for her evidence.
28. Prosecution submits that in terms of the observation of the vehicle, Luuga saw the vehicle before Laufili Ieni. In essence, that explains her observation that the vehicle was going fast and Laufili Ieni’s observation that when he saw the vehicle, “Oute tilotilo atu ua lemu le taavale.” I have my serious doubts that Luuga saw the truck before Laufili Ieni. In her evidence cited above at paragraph 15, the impression I had from Luuga’s evidence is that she and Laufili Ieni went out of the market together or at about the same time. Furthermore, Luuga in cross-examination purportedly saw the truck after it had passed Fatu Pula’s house when she heard the tyre screeching. In Laufili Ieni’s evidence however, he saw the car slowing down in a distance of about 10 yards and it pulled up it seems in the area in front of the faifeau’s house, which faces Fatu Pula’s house. I am not satisfied on the evidence that Luuga saw the truck before Laufili.
29. In all, I found Luuga’s evidence to be unreliable and unsatisfactory. She said in evidence that the defendant’s car went past Fatu Pula’s house, stopped and reversed back and stopped in front of Fatu Pula’s house. She also said that she heard the sound of screeching tyres. In their evidence, neither Time nor Laufili Ieni said that the defendant’s car went past Fatu Pula’s house. Neither of them also said that the defendant’s car then reversed back to Fatu Pula’s house. Time and Lauifili Ieni also did not give any evidence about hearing screeching tyres. When she spoke with Police and gave her written statement to Police, she made no mention in her statement of hearing the screeching tyres. Constable Thor Tafunai who attended the scene that same afternoon perhaps after 5.00pm also said that there were no skid marks on the road. In Constable Thor Tafunai’s evidence, skid marks can occur when cars speed up suddenly or come to a sudden stop. Furthermore, based on her evidence under cross-examination, there was a period of almost half an hour between Laufili Ieni being at the market and hearing the bang is not credible. I prefer the evidence of Time and Laufili to that of Luuga and I found her evidence and her as a witness unreliable, particularly in respect of the vehicle’s speed.
30. In considering this matter, I have also taken into account the evidence where the deceased was likely at on the road when she was struck by the truck. The defendant was travelling on the seaward side from Faleolo towards Apia. The deceased was struck by the defendant as she ran across the West Coast Road from the seaward side to its landward side. The evidence in my view is that the deceased was struck whilst she was still on the seaward half of the West Coast Road, the side from which she was crossing. The placement of the deceased’s hair tie at marker 1, the blood at marker 2, the hair at marker 3 and the blood at marker 4 suggest a left (from the seaward side) to right movement of the deceased’s body on the road as it was struck by the car as shown in exhibit P2 photo 1 and 2.
31. Time also said that he didn’t cross the road because the car was coming. In his evidence under cross-examination, Time agreed that the car was close to them when he saw the car coming. The deceased however ran across. As she ran across, the evidence considered as a whole is that she was struck on the seaward side from which she came. There will have likely been very little if any warning at all in my view to the defendant. This is supported by Time’s agreement that the car was close by when he saw it.
32. Thor Tafunai estimated the distance from markers 1 to point 4 in exhibit 2 as approximately 15 to 20 metres. Marker 1 is near to the general area where Time and the deceased were standing and marked “O”. The distance from where Time and the deceased were to Fatu Pula’s house is not far, as also seen in the photos exhibit P2. Given I do not accept that the defendant abruptly applied the brakes to leave skid marks and that the vehicle also apparently stopped at Fatu Pula’s house or that general area according to the evidence of Laufili Ieni and Time, this also raises doubts in my mind that she was speeding or that she was travelling at a speed that was negligent in the circumstances. There was no evidence from Laufili Ieni or Time that the deceased’s vehicle went past Fatu Pula’s house.
33. Luuga and Laufili Ieni were in the market. Laufili in fact says that he was ‘autafa’ the market. The market as is obvious from photo 3 exhibit 2 is immediately next to the seaward lane of the West Coast Road that the defendant was driving on as she headed towards Apia. She had to drive past the market before striking the deceased. Despite the very close proximity of the market to the road, neither Luuga nor Laufili Ieni saw or were alerted to the defendant driving past the market. This also suggests in my mind that the defendant’s driving was not out of the ordinary.
34. In terms of the Prosecution submission that the defendant did not exercise due care by speeding beside a parked vehicle beside the road and there being an oncoming vehicle, I have addressed the issue of speed and my doubts that the defendant was speeding or was driving at such a speed that was negligent in the circumstances. I am also in reasonable doubt that the speed and the manner in which she drove involved a departure from the standard of care for other road users to be expected of the ordinary prudent driver in the circumstances including where a vehicle is parked as in the circumstances in this case or based on her observations of the children as she drove. The evidence in my view suggests that the deceased ran abruptly on to the road, was likely struck towards the kerbside of the road but in any event never made it to the middle of the road. Any driver would have had very little warning in my view. Having had regard to the evidence in its totality, I am left in reasonable doubt that the defendant failed to take reasonable care in the circumstances or the defendant breached the standard of care expected of a reasonable driver in the circumstances.
35. There are two aspects of this matter that I wish to address. Both relate in different ways to the care and supervision of children. The first is that what is clear is that there was no supervision of either Time or the deceased along the road. Children should not be left unsupervised and permitted to wander unsupervised near roads and certainly not at the age of the deceased or that of Time. This is far too common an occurrence in Samoa and tragically, results in the unnecessary loss of lives of our children.
36. Secondly, the sale of tobacco products is prohibited to persons under 21 years of age and constitutes a breach of section 23 of the Tobacco Control Act 2008. Despite the prohibition against sale of tobacco products to persons under 21, Luuga nevertheless asked 8 year old Time to buy cigarettes for her and the cigarettes were sold to him. Time should not have been asked to buy cigarettes and cigarettes ought never have been sold to him.
37. There is a need in my respectful view for far greater programs on road safety education and particularly with an emphasis on the proper supervision of young children by roads.

Decision:

38. Having heard all the evidence and considering the evidence in its totality and for the foregoing reasons, I find the Prosecution has not proven the charge against the defendant beyond a reasonable doubt and the charge is therefore dismissed.

JUDGE D M CLARKE