Police v Wright [2016] WSDC 23 (8 June 2016)

DISTRICT COURT OF SAMOA
Police v Wright [2016] WSDC 23

Case name:	Police v Wright
Citation:	[2016] WSDC 23
Decision date:	8 June 2016
Parties:	POLICE v SINAPATI SCOTT WRIGHT, male of Pesega
Hearing date(s):	27 and 29 April 2016
File number(s):	D518/16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	- Charge is therefore dismissed.
Representation:	F Ioane for prosecution K Kruse for defendant
Catchwords:	Negligent Driving Causing Bodily Injury
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.39A
Cases cited:	Police v Chan Sau [2013] WSDC 5 (21 June 2013): Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 Police v Yvette Kerslake (unreported, District Court, 11 April 2014) Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011)
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

SINAPATI SCOTT WRIGHT, male of Pesega.
Defendant

Counsel:
F Ioane for National Prosecutions Office
K Kruse for defendant

Decision: 8 June 2016

DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with a single charge that on the 25^th January 2016, the defendant as the driver of a Toyota Voxy registration number 20520 (“the car”) negligently drove on Vaitele-Uta Road thereby causing injury to Tifi Nepa, a 28 year old male of Vaitele-Uta and Samauga Savaii.
2. The defendant pleaded not guilty to the charge on 15 March 2016 and the matter proceeded to a defended hearing on 27 and 29 April 2016.

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 car on Vaitele-Uta Road on the 25^th January 2016;
   • (2) he drove the car 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, the injury was thereby caused to Tifi Nepa.
5. Element (1) is not in dispute. The question is whether the defendant drove the car negligently (element 2), that is, did he fail to take reasonable care in the circumstances and whether Tifi Nepa suffered injury as a result of the defendant’s negligent driving (element 3).
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 driving’ in a similar way. In Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 cited 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 prosecution called 4 witnesses, Tifi Nepa, Lagi Asueru, Norman Maota and Constable Ieremia Su’a. Mr Nepa told the Court that on the morning of Monday the 25^th January 2016 at approximately 9.00am, he was the driver of a right hand drive dyna truck (“the truck”) with two work colleagues as passengers. Norman was seated in the middle and Lagi on the far passenger side. They were travelling from the seaward direction from Vailima Breweries inland to the Land Transport Authority (LTA) Vaitele. The evidence was that as you drive to LTA, there is a ‘T’ intersection. Mr Nepa driving straight going through the ‘T’ intersection has the right of way whilst the defendant who reaches the ‘T’ intersection at the end point of the ‘T’ intersection must give way. In his evidence in chief, Mr Nepa said that about 5 metres before reaching the ‘T’ intersection, the defendant’s car came out of the left side road of the ‘T’ intersection. The defendant’s car crossed his lane to turn right cutting across Mr Nepa as he was driving straight.
8. In cross examination, Mr Nepa said his truck wasn’t far away from the defendant’s car when he first saw the defendant’s car and he agreed it was crossing and half way across the road. He reiterated this in re-examination saying he swerved because the defendant’s car was half way across the road. Mr Nepa said that the defendant’s car stopped in the middle of the road as his truck was approaching. As he swerved his truck to the right side to avoid a collision, he lost control and the truck overturned onto its right side. He was on the bottom side as the lorry slid along. His hand was injured as it scraped along the ground. He confirmed that he was speeding. He accepted that it was his action of swerving the truck that caused it to roll. The truck then slid 10 metres. He denied a conversation with the defendant and his wife where he is alleged to have accepted responsibility for the accident.
9. Lagi Asueru was a co-worker of Mr Nepa and Norman Maota working for R M Nanai, a plant business. She confirmed that she was on the far left passenger side. She was making a telephone call as they reached the LTA three corners and the defendant’s car came on to their lane. She says she had not been paying attention nor was she looking to the front. When she did look up, she saw they had reached the defendant’s car. The defendant’s car crossed the ‘T’ intersection and was half way across the road turning right when this occurred. She couldn’t say how fast they were driving. She didn’t see Mr Nepa attempt to stop the truck. Mr Nepa tried to swerve the car but couldn’t do much. As a result, their car rolled and Mr Nepa injured his right hand and right elbow as a result.
10. In his evidence, Norman Maota said he was a co-worker with Mr Nepa and Ms Asueru. On the 25^th January 2016, he and his co-workers were on their way to the LTA at Vaitele. As they were driving to the LTA, he was seated in the middle of the front. He said Mr Nepa had been driving ‘saoasaoa masani’ but ‘e le ova le saoasaoa’. He said the defendant’s car suddenly came in to their lane, Mr Nepa was surprised so he turned right onto the gravel and the truck then over-turned. He said that the defendant’s car was required to give way. There was a line on the road for the defendant to give way. Mr Nepa injured his right arm as a result scraping skin off. In cross-examination, Mr Maota accepted that he had been speaking often to Mr Nepa and Ms Asueru about the accident. He agreed that he had been sitting quietly in the cab looking forward. He said he only saw the defendant’s car when they were close together, a distance of approximately 5 metres and he saw the defendant’s car when it was on their lane. He also observed that Mr Nepa’s truck had time to stop.
11. The defendant elected to give evidence. He is 28 years old and said that at approximately 9.00am on 25 January 2016, he had been on his way to work. He had reached the ‘T’ intersection. He stopped, looked left and then right and saw no cars coming, the road being clear. He later said in evidence as to having looked right then left. His car crawled forward and then got a shock to see on his right side the truck coming. He then stood on the brakes as he had gone into the lane of Mr Nepa’s truck. The truck did not appear to slow down, swerved and over-turned. He said he first saw the truck when it was 30 – 40 metres away, describing the truck as travelling fast. He described the truck as having skidded approximately 30 – 40 metres. He said he crossed the road as the road was clear and safe to go forward. He later spoke to Mr Nepa at the hospital and said that Mr Nepa admitted to him that he (Mr Nepa) was speeding. Under cross-examination, he said there is a slight corner there when he described where Mr Nepa’s car was coming from. His evidence was that it blocked the view of the cars coming from around that corner, being a distance of about 40 to 45 metres.
12. The defendant’s wife Annie Betham gave evidence. She testified as to Mr Nepa admitting that he was driving fast.

Discussion:

13. The defendant was required to give way to traffic travelling on the straight towards the LTA. This was not apparently in dispute. The key question is did the defendant drive his car negligently, that is, did he fail to take reasonable care in all the circumstances.
14. In his evidence, the defendant said that he had stopped at the ‘T’ intersection and looked left and right. He later said it was right and left, evidence he reiterated in cross-examination. I accept the defendant’s evidence that he had stopped at the intersection and checked the traffic before proceeding through the intersection. The key however is where the defendant looked at the ‘T’ intersection. I find that the defendant’s later evidence that he looked right and then left before proceeding through the intersection explains why he didn’t see Mr Nepa’s truck coming until he was in Mr Nepa’s lane. As he looked right then to the left, he proceeded through the ‘T’ intersection when looking left. Only when he again looked right as he was crossing and in Mr Nepa’s lane did he see Mr Nepa’s car coming at speed. Had the defendant looked right at the ‘T’ intersection to re-confirm that the lane remained clear before proceeding through the intersection, he would have seen Mr Nepa’s truck coming and he would not have proceeded through the intersection.
15. I find that the prosecution has proven the second element beyond a reasonable doubt, namely, that the defendant failed to take reasonable care in all the circumstances. Had the defendant looked right before proceeding through the intersection, he would have seen Mr Nepa’s truck coming.
16. Whether Mr Nepa suffered injuries was in dispute. I find on the evidence of the prosecution witnesses that Mr Nepa suffered an injury to right arm and hand. The nature and extent of the injury was not however subject to any detailed evidence nor was there any medical evidence to specify the injuries. There was no evidence that any injuries suffered by Mr Nepa was ongoing or permanent and the injury suffered by Mr Nepa was therefore likely to have been minor and not permanent in nature. The issue however is whether the injuries suffered by Mr Nepa were caused by the defendant’s negligence.
17. Highly relevant to the determination of this issue is the speed in which Mr Nepa was driving. There is no question Mr Nepa was speeding. This was admitted by Mr Nepa and Mr Maota and was also the evidence of the defendant. I also infer this from the fact that the truck he was driving over-turned. I do not however accept the prosecution evidence that when the defendant’s car entered the T intersection and it was first seen, the vehicles were 5 metres apart. I do not find that evidence credible. If the vehicles had been 5 metres apart at that point and Mr Nepa was speeding, a collision would have I expect occurred with the defendant’s car. Furthermore, as Mr Maota said in evidence, Mr Nepa could have stopped his truck in time. Ms Asueru never saw Mr Nepa even apply the brakes to try and slow down. Given the likely speed Mr Nepa was driving and this observation by Mr Maota, the distance between the two vehicles would have been significantly greater than the 5 metres stated by Mr Nepa and Mr Maota. I find the defendant’s assessment of a distance of 30 to 40 metres when he first saw Mr Nepa’s truck as likely to be more reliable.
18. In all, I find that the Prosecution has failed to prove the third element beyond a reasonable doubt. The injuries suffered by Mr Nepa were due to the truck he was driving over-turning. The truck over-turned because of the speed with which Mr Nepa was driving. If Mr Nepa had not been speeding, the truck would not have over-turned and Mr Nepa would not have suffered injury. As Mr Maota himself observed under cross-examination, Mr Nepa could have stopped the truck in time, this observation even despite the fact that Mr Nepa was speeding. Had Mr Nepa not been speeding, I find it likely on the evidence that Mr Nepa could have safely stopped his vehicle. In any event, he never appeared to have attempted to apply the brakes. I am therefore not satisfied beyond a reasonable doubt that it was the defendant’s negligence that resulted in Mr Nepa’s injuries. There was a significant element of contributory negligence on the part of Mr Nepa.

Decision:

19. 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 LEIATAUALESA D M CLARKE