Police v Agafili [2016] WSDC 3 (7 March 2016)

DISTRICT COURT OF SAMOA
P v Agafili [2016] WSDC 3

Case name:	Police v Agafili
Citation:	[2016] WSDC 3
Decision date:	7 March 2016
Parties:	POLICE v SAMU AGAFILI male of Vaivase tai and Saleaula
Hearing date(s):
File number(s):	D2537/15
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	The charge against the defendant is accordingly dismissed.
Representation:	R Titi for informant Defendant in person
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

SAMU AGAFILI male of Vaivase-tai and Saleaula.
Defendant

Counsel:
R Titi for informant
Defendant in person
Decision : 7 March 2016

DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with a single charge that on the 26^th day of August 2015, he drove a bus registration number M/O 072 on a road, namely the East Coast Road in a manner that was dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic that might be expected to be on the road.
2. The defendant pleaded not guilty to the charge and the matter proceeded to a defended hearing on 18 February 2016.

The Law:

3. The charge against the defendant is brought pursuant to section 39(1) of the Road Traffic Ordinance 1960. Section 39(1) provides:

“39. Reckless or dangerous driving – (1) If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition, and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, the person commits an offence and is liable upon conviction to a fine not exceeding 10 penalty units or to imprisonment for 2 years.”

The Prosecution Evidence:

4. The Prosecution called 5 witnesses. These witnesses were Seuao Sae Tasi, Toe Mamapo, Tailua Malaga, Sinatagi Tasi and Constable Vailala Taunoa.
5. Toe Mamapo is a 63 year old house wife of Falevao. She told the Court that their village team had played English cricket at the Tuanaimato cricket grounds on 26 August 2015. Their team had caught the bus to Tuanaimato in the morning and returned in the afternoon after the game had finished at about 3.30pm. She and her team were on the EFKS Bus driven by Seuao Sae Tasi, a matai of her village. The bus is a wooden bus. On the way back to Falevao from Apia, she said she was seated at the right side window of the bus at the front. As they approached a corner at Laulii, the right side front mirror of the bus in which she sat was struck by a bus from the opposite direction and the mirror shattered. The bus that struck the mirror was the bus driven by the defendant. She stated that the defendant’s bus ‘sa masau laititi le alu’. She claimed that as the bus went past, she saw the defendant driving the bus. After the bus mirror was shattered her evidence that the bus she was on kept going and did not stop.
6. In cross-examination by the defendant, Toe Mamapo told the Court when asked about the speed of the bus she was on that it was going fast but not too fast and that she could not tell the speed as she doesn’t drive a car.
7. Tailua Malaga also gave evidence. She is a 47 year old teacher from Falevao. She had been at the cricket fields at Tuanaimato. After the game at Tuanaimato finished at about 3pm, they returned to Falevao on Seuao’s bus. She said she was seated at the front seat next to the bus driver and next to Toe. She told the Court that Seuao’s bus is a left hand drive bus.
8. In her evidence, Tailua says she was talking with the bus driver. She saw the defendant’s bus coming towards Seuao’s bus. She described the speeds at which both buses were going ‘sa alu masani’. As the defendant’s bus approached Seuao’s bus, she says she saw the defendant’s driving hand moved towards the right (ie towards the centerline of the road). In cross-examination, she described the defendant’s alleged hand movements as ‘sa ta lou lima’ and then clarified this to a minoi (movement). As the defendant moved his hand to the right, the defendant’s bus then struck their bus mirror. She says their bus kept going as did the defendant’s bus. She told the Court she also does not drive
9. In her evidence, Sinatagi Tasi is a 26 year old teacher from Falevao. She was with the cricket team at Tuanaimato and returned on Seuao’s bus. She was seated at the rear of the bus two seats from the back and on the right side window. As they reached Laulii, she heard a noise and then glass shattered and flew towards the back. She saw the defendant’s bus go past.
10. Seuao was called as the Prosecution’s fourth witness. He is no longer a bus driver but is employed as a machine operator for another business now. He told the Court he was returning to Falevao bringing their ladies village English cricket team from Tuanaimato to Falevao after the end of the game at about 3pm.
11. After the bridge at Laulii, Seuao told said he saw the defendant’s bus going back to Apia. He estimated that the defendant’s bus was travelling at about 30mph before they passed each other. As the buses passed each other, the mirror on his bus was struck by the defendant’s bus. After the defendant’s bus struck his bus, he said the defendant’s bus kept going. In his evidence he said the cause of the accident was that ‘Fai siga tele a Samu I lo’u pito.’ He denied that he was on the defendant’s side of the road. He confirmed that the road had marked lines. He says he wasn’t travelling fast, the road was approximately 5 metres wide and as the defendant’s bus approached his bus on the road, he (Seuao) continued to drive straight.
12. Seuao was referred to exhibit P 1 and asked about the right front side mirror protruding on to the right of the road (ie the centerline). He was asked how far the right side mirror extended out from the body of the bus. He demonstrated the distance as that of the palm of his hand. He confirmed that the mirror arm shown in Exhibit P1 was the same as that at the time of the accident, with only a new mirror affixed to the protruding mirror arm.
13. The final witness from the Prosecution was Constable Vailala Taunoa. He tendered photographs Exhibit P1 consisting of two pages of photos.

The Defence Evidence:

14. At the end of the Prosecution evidence, the Defendant elected to give and call evidence. He told the Court that he is 37 years of age. On the day of the incident, he said it was sometime between 3pm – 4pm. He was driving his bus and had turned around at Laulii returning to Apia. Near the bridge at Laulii, he testified that Seuao’s bus was on his side of the road, describing Seuao’s tyres as being over the road line. He could not go to the side of the road as there was a hedge and if he went to the left, the bus would go in to the side. As the buses went past each other, the bottom of his bus front mirror struck the front mirror on Seuao’s bus.
15. Tailua’s evidence was put to the defendant in terms of his hand movements steering his bus towards that of Seuao’s. The defendant said he did not accept Tailua’s evidence and that if he drove his bus as described by Tailua, ‘e oti a’u.’ He described that in his bus, he is seated immediately behind the windscreen of the bus with nothing in front of the windscreen. In Seuao’s bus, there is a bumper, and window.
16. The final witness to give evidence was Tavita Siaki Taulealea. Tavita is 31 years old married man from Falevao. He was on the defendant’s bus on the date of the accident as the “Supa Cargo’. He told the Court that he was seated on the left side front row of the bus located immediately behind the entry stairwell to the bus. There is a ‘fridge’ between the seat and the stairwell. The seat can clearly see over the fridge on to the road.
17. He said that the defendant’s bus turned around at the falesa taiti. Between the bridge and the corner in the road, the buses went past each other. As they went past each other, the mirrors of the buses struck each other. He said that not only did the Seuao’s mirrors go over the centre line but so did Seuao’s bus. He described that the defendant turned the bus to the kerbside but could not do so much as the bus would go over the side of the road.

Discussion:

18. In terms of section 39(1) of the Road Traffic Ordinance 1960, the Prosecution must prove the following elements of the offence beyond a reasonable doubt:

(a) the defendant was the driver of bus M/O 072 on the 26^th day of August 2015 on the East Coast Road as alleged; and

(b) he was driving the bus in a manner dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road.

19. There is no dispute in this case that the defendant was the driver of the bus registration number MO 072 on the 26^th day of August 2015 and the first limb of identifying the defendant as the driver is satisfied beyond a reasonable doubt. The question for determination by the Court is whether the defendant was driving the bus in a manner dangerous to the public within the terms of section 39(1). There is no dispute that the mirror of the bus driven by the defendant struck the mirror of the bus driven by Seuao Sae Tasi resulting in the mirror on Seuao’s bus to smash.
20. In her evidence before the Court, Toe Mamapo said that the speed of the defendant’s bus was ‘sa masau laititi le alu’. She however does not drive and as she told the Court, cannot assess speed.
21. In Seuao’s evidence, he estimated that the speed of the defendant’s bus before the buses passed each other as approximately 30 mph. Seuao is the only witness that gave evidence as to the estimated speed of the defendant’s bus. As a bus driver familiar with vehicle speeds and having a clear view of the oncoming bus being driven by the defendant, the evidence of Seuao is preferred over the evidence of Toe Mamapo in terms of the speed of the defendant’s bus.
22. The key issue in contention between the Prosecution and Defence witnesses was whether the defendant was driving his bus on the wrong side of the road to that of Seuao’s oncoming bus. Seuao described to the Court the cause of the damage to the mirror as caused by the defendant coming to his side of the road. He denied that his bus was on the wrong side and estimated road width to be approximately 5 metres. In her evidence, Tailua who sat at the front seat of the Seuao’s bus also said that as the defendant’s bus approached, she saw the defendant move his driving hand to the right and after that, the buses struck each other. Her evidence did not go so far as to say that the defendant’s bus crossed into Seuao’s bus though that appeared to be the effect of her evidence.
23. For the defendant, both the defendant and his witness Tavita Taulealea stated that Seuao’s bus was on the defendant’s side of the road as they passed each other. They both also referred to the right side front mirror on Seuao’s bus with the defendant stating that the mirror went to his side of the road.
24. There was no evidence before the Court as to the conditions of the road, whether it was raining or dry or whether there were any other factors on that day that made the speed of the defendant’s driving dangerous to the public having regard to all the circumstances of the case. In terms of the speed of the defendant’s bus, I accept the evidence of Seuao that the defendant’s bus was travelling at approximately 30 mph. In the words of the witness Tailua, the speed of the defendant’s bus was that it was travelling at the usual speed, ‘alu masani’. I am therefore not satisfied that the speed of the defendant’s bus was dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road.
25. The key issue in contention was whether the defendant drove his bus on to Seuao’s side of the road. I am also in reasonable doubt about the Prosecution evidence on this point. Tailua claims to have observed the defendant’s left hand which was steering the bus move (‘minoi’) to the right and after that movement, the defendant’s bus struck the right front mirror of Seuao’s bus. The distance in which she allegedly observed this was from the dock to the witness in the Court room. I did not find her evidence credible as the alleged hand movement was not significant, observed very fleetingly and was given by a witness who does not drive a vehicle. There is reasonable doubt as to what it was she in fact saw. The evidence of the defendant himself was very compelling. As exhibit P1 clearly shows, should he have driven in the way alleged by Tailua, he risked a head on collision with Seuao’s bus that would have placed the defendant’s life (and all lives on both the buses) at serious risk. As he said, he would have died. As the person on the front right side of the bus directly in the impact zone with no protection beyond the windshield, such a collision would likely result in his death. Such an action would have been very dangerous and the defendant’s evidence on this point was credible to the Court as to why he would not drive in such a manner. Both the defendant and Tavita Siaki testified and gave credible evidence that the defendant’s bus remained on its side of the road and the Court is left in reasonable doubt that the defendant crossed into Seuao’s oncoming lane.
26. The likely answer to the cause of the incident was addressed by the defendant in his line of questioning and in his evidence and that of Tavita Taulealea. In questioning and in evidence, they testified that it was Seuao’s bus mirror (and bus) that encroached into their lane. Exhibit P1 depicting bus MO 015 driven by Seuao shows the right side mirror damaged in the accident. The mirror shown in the photograph is a new mirror but in Seuao’s evidence, he confirmed that the mirror arm on which the mirror rests was the same mirror arm. In his evidence, Seuao testified and demonstrated that the distance of the mirror from the body of the bus was the palm of a hand. This evidence was not credible. As exhibit P1 clearly shows, the right side front mirror protrudes well away from the body of the bus so that even if the bus is in its lane or on road lines, the mirror can protrude a distance into the opposite lane and would represent a risk to oncoming traffic, such as the defendant’s bus.
27. I am therefore not satisfied beyond a reasonable doubt that the defendant was driving the bus in a manner dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road. The charge against the defendant is accordingly dismissed.

JUDGE L D M CLARKE