Police v Falaniko [2016] WSDC 38 (19 September 2016)

DISTRICT COURT OF SAMOA
Police v Falaniko [2016] WSDC 38

Case name:	Police v Falaniko
Citation:	[2016] WSDC 38
Decision date:	19 September 2016
Parties:	POLICE v RETI FALANIKO, male of Vaimoso and Faleapuna
Hearing date(s):	31 August 2016
File number(s):	D1044 /16
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	Judge Leiataualesa D M Clarke
On appeal from:
Order:	- For the foregoing reasons, I am satisfied that the prosecution has proven the offence of dangerous driving beyond a reasonable doubt.
Representation:	Inspector L M Fauoo for Informant (NPO) S Wulf for defendant
Catchwords:	Dangerous Driving
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.39 (1)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

RETI FALANIKO, male of Vaimoso and Faleapuna
Defendant

Counsel:
Inspector. L M Fauoo for Informant (NPO)
S. Wulf for defendant

Decision: 19 September 2016

RESERVED DECISION OF DCJ CLARKE

The Charge.

1. The defendant is charged with one count of dangerous driving that on the 4^th of April 2016, the defendant on the West Coast Road failed to keep a distance from the front vehicle thereby causing an accident and which was dangerous to the public having regard to all the circumstances of the case.
2. The defendant pleaded not guilty to the charge and the matter proceeded to hearing on 31^st August 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 Evidence:

4. The prosecution called three witnesses. These were Joe Nunufolau (the “complainant”), Liva Isaako and Constable Lawrence McFall. Liva Isaako was a passenger in the complainant’s car. The prosecution evidence is that on the 4^th of April 2016, the defendant’s minivan was following behind the complainant’s taxi. Their two cars were travelling from the Mulifanua wharf to Apia after 7.00am. At Saleimoa in front of Farmer Joe, a bus travelling from the direction of the wharf pulled over to the side of the road. There was a taxi and another car in front of the complainant’s car. Both those cars stopped behind the bus. The complainant’s car also came and then stopped behind those two cars and the bus. When the complainant’s car stopped, the complainant heard the sound of brakes and screeching tyres and then he was struck from behind. As a result, the complainant’s car then struck the taxi in front. The complainant’s car suffered damage to the front as well as to the rear bumper.
5. Liva Isaako’s evidence mirrored that of the complainant. He heard only one noise being the screeching and then being struck. He described the road that morning as being busy. Constable McFall tendered the Caution Statement.
6. The defence called two witnesses’. The defendant elected to give evidence and also called Vinnie Falealupo who was a passenger in the defendant’s car. The defendant said that he was travelling to Apia from Mulifanua. The road from the wharf was busy. The complainant said there were two taxi’s in front of him. He was coming behind the complainant’s car and heard the sound of the complainant’s car hit the taxi in front of it. He swerved to the right to avoid colliding with the rear of the complainant’s car but because there was a car coming from the opposite direction, he swerved back inside and then hit the rear of the complainant’s car. At the time he struck the complainant’s car, the complainant’s car was standing still. He did not see the bus pulled up over the side of the road. He only saw the bus after the accident and he said he didn’t see the bus because he was focused on the car in front of him. He confirmed that the road was a straight.
7. Vinnie Sekoni’s evidence mirrored the defendant’s evidence. Importantly however, he described the following distance between the complainant’s car and the defendant’s car as being approximately 4 metres, a distance that he described as from the witness box to the Court room recording equipment.

Discussion:

8. There is no dispute that on the 4^th of April 2016, the defendant’s car followed behind the complainant’s car. At Saleimoa, a bus pulled over in the area in front of the Farmer Joe store. An accident occurred involving the defendant and the complainant’s car. The question is whether in the circumstances, did the defendant drive his Honda Odyssey “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 allegation being he failed to keep a proper distance from the complainant’s car.
9. Based on the evidence, I accept that the West Coast road was busy. It was a Monday morning after 7.00am and there was the usual traffic going towards Apia for the working day. Like the defendant and the complainant, there is also the traffic generated from the Mulifanua ferry and its passengers adding to the Monday morning traffic.
10. I also accept Vinnie Sekoni’s evidence that the defendant’s following distance behind the complainant’s car was approximately 4 metres or the distance from the witness box to the Court recording equipment. That following distance at the speed in which the Defendant was driving and in all the circumstances of the case was dangerous to the public. This is demonstrated by the defendant’s own evidence. Even accepting the defendant’s evidence that the complainant’s car first struck the taxi in front (evidence which I do not accept), he said that he swerved to the right to avoid colliding with the rear of the complainant’s car but because there was a car coming from the opposite direction, he swerved back inside and then hit the rear of the complainant’s car.
11. The following distance of the defendant’s car was too close to the complainant and because of that, he had to take evasive action to avoid rear ending the complainant’s car. In doing so, he swerved to the right representing a danger to the oncoming car from the opposite direction and to avoid that collision, he again swerved back and then hit the complainant’s car. Had the Defendant kept a safe following distance from the complainant’s car, he would have avoided the accident with the complainant’s car. The manner in which the Defendant drove his car on the morning of the 4^th of April 2016 and the following distance he adopted behind the complainant was unsafe and dangerous to the public having regard to all the circumstances of the case and the amount of traffic on the road that morning.
12. For completeness, the defendant alleged that the complainant’s car first hit the taxi in front followed by being struck by the defendant from the rear. I prefer the evidence of the prosecution witnesses to those of the defendant and his witness after having heard from the witnesses and observing their demeanour. Furthermore, given the very close following distance which I accept as being about 4 metres between the defendant and the complainant’s cars, it is not credible that the complainant struck the taxi in front of it, came to a standstill and then the defendant took evasive action by swerving to the right side of the road and back then rear ending the complainant’s car. The defendant’s close following distance to the complainant’s car simply does not support this assertion.

Decision

13. For the foregoing reasons, I am satisfied that the prosecution has proven the offence of dangerous driving beyond a reasonable doubt.

JUDGE LEIATAUALESÃ D M CLARKE