Police v Chang [2016] WSDC 49 (12 December 2016)

DISTRICT COURT OF SAMOA
Police v Chang [2016] WSDC 49

Case name:	Police v Chang
Citation:	[2016] WSDC 49
Decision date:	12 December 2016
Parties:	POLICE v MAUGA PRECISOUS CHANG female of Alafua
Hearing date(s):	27, 28 & 29 November 2016
File number(s):
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	Judge Fepulea’i Ameperosa Roma
On appeal from:
Order:	For the foregoing reasons, I have reached the decision as follows: (i) On the charge of negligent driving causing injury, I find that the prosecution has not proven the charge beyond reasonable doubt. It is accordingly dismissed; (ii) On the alternative charge of dangerous driving, I find that the prosecution has not proven the charge beyond reasonable doubt. It is accordingly dismissed; (iii) On the charge of failing to stop and ascertain whether the accused had injured any person and render all practicable assistance to such person, I find that the prosecution has not proven the charge beyond reasonable doubt. It is also accordingly dismissed.
Representation:	Satiu S Perese of the New Zealand Bar for Prosecution
	A.J.F. Perkins, Q.C. of the New Zealand Bar and Tuatagaloa A.M.C. Leung Wai for the Accused
Catchwords:	negligent driving causing injury – dangerous driving - failing to stop and ascertain – evidence – skid marks and point of collision – admissibility of the accused’s statement - decision
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s39A(1), 42, 44(1)(4),
Cases cited:	Police v Roache [2013] WSSC 23 para 34 (Sapolu CJ), Police v Mataituli [2011] WSSC (Nelson J), Police v Ata Sulape (unreported, 1 October 2010, Vaai DCJ), Police v Kerslake [2014] WSDC 5, (Tuala Warren DCJ) – Director of Public Prosecution v Yeo and Anor [2008] NSWSC 953 (Johnson J), Police v Tunupopo [2015] WSDC 7, Police v Papalii [2011] WSSC 138 (Sapolu CJ – Archbold 206 19 – 197), Clements v Gill [1953] SASR 25, R v McArthur [1975] 1 NZLR 486 para 45 & 46.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

MAUGA PRECIOUS CHANG female of Alafua.

Accused

Counsel:
Mr Satiu S. Perese of the New Zealand Bar for Prosecution
Mr A.J.F. Perkins, Q.C. of the New Zealand Bar and Mr Tuatagaloa A.M.C. Leung Wai for the Accused

Hearing: 27, 28 & 29 November 2016
Decision: 12 December 2016
Reasons: 14 December 2016

DECISION OF JUDGE ROMA

BACKGROUND

1. About 2.45pm on 4^th May 2016, a traffic accident involving 3 vehicles occurred on main Beach Road in Apia infront of the TATTE Building. The first vehicle was a bus transporting school children (“bus”) travelling westward from SNPF Plaza towards Tanoa Hotel. The second vehicle was a Hyundai Tucson (“Tucson”) travelling eastward from Tanoa Hotel and turning into the TATTE gate entrance. The third was a taxi (“taxi”) stationary at the TATTE gate exit and waiting to drive onto the main Beach Road.
2. Apart from damage to the 3 vehicles involved, the passenger of the Tucson was taken to TTM Hospital for treatment.
3. Three months and 12 days later on 16^thAugust 2016, the accused who was driver of the Tucson, was arrested and charged.

CHARGES

4. She faces the following 3 charges under the Road Traffic Ordinance 1960:
   • (i) negligent driving causing bodily injury to Loretta Teueli, female of Afiamalu (s39A);
   • (ii) an alternative charge of dangerous driving (s39(1));
   • (iii) failing to stop and ascertain whether she had injured any person and render all practicable assistance (s44(1)(4)).

EVIDENCE

The Witnesses

5. The prosecution called 4 eyewitnesses. Paulo Filipo was driver of the bus. Tasi Kereti was standing infront of the TATTE gates and facing the road. Tafito Selesele was driver of the taxi and Loretta Teueli, the victim, was seated in the passenger’s seat of the Tucson.
6. The prosecution’s other witnesses were Constable Afalua Fetu of Forensics who prepared the plan and tendered photos of the scene; Dr Agape Amituanai who examined and treated Ms Teueli on arrival at the hospital, and Sergeant Magalo Pule who was subsequently assigned Investigating Officer.
7. At the close of the prosecution evidence, the accused elected not to call evidence.

The Accident

8. The Main Beach Road that runs past TATTE has 4 lanes separated by a solid line. On either side are 2 lanes. The lanes for westbound vehicles from SNPF Plaza towards Tanoa Hotel are inland and closer to the TATTE building. The lanes for eastbound vehicles from Tanoa Hotel towards SNPF Plaza are on the seaward side and further from the TATTE Building.
9. On the afternoon of the incident, Mr Filipo’s bus was travelling westward past SNPF Plaza and heading towards Tanoa Hotel. His passengers were mainly Maluafou College students. They were to be dropped off at the bus depot behind the Savalalo flea market. He drove past the green traffic lights. He was on 4^th gear approaching the lights but shifted to 3^rd gear because of an area where the tarsealing appeared to join. His speed was about 10 to 15 mph.
10. As Mr Filipo approached the TATTE entrance, he saw the Tucson coming from the opposite direction. Without either stopping or signaling, the Tucson took a sudden and sharp turn into the TATTE gates. He was about 5 metres from the Tucson when it crossed his lane. He pumped the brakes 3 times but could not avoid the collision. The front of the bus struck the passenger’s side of the Tucson. The bus pushed the Tucson across the TATTE gates. Before the vehicles came to a stop, the rear of the bus hit the front fender of the taxi which was stationary at the TATTE exit. It caused damage to the taxi and its front bumper to fall off.
11. Not long after the vehicles came to a stop, the Tucson reversed and drove off.
12. The bus had defective brakes. Before and at the time of the accident, it required Mr Filipo to pump 3 times before they became effective. The first pump would press right down without any impact; the second would impact only at the lowest end; a third pump was necessary for the brakes to have a real impact. Mr Filipo had become used to the condition of the brakes and therefore developed a style of driving to accommodate for the defect. Apart from the brakes, the bus’ speedometer was also not working.
13. Mr Kereti was at the TATTE gates when the collision occurred. He had crossed the road from the Tooa Salamasina Building and was on his way to see his brother who works at the TATTE Building. He waved at a friend across the road. He was then able to see the Tucson travelling from Tanoa Hotel and turn into the TATTE compound without stopping and / or signaling. In his evidence, the bus heading towards Tanoa Hotel could do little to avoid the collision because it was very close to the Tucson when the Tucson turned. Mr Kereti maintains that the Tucson had travelled on the bus’ lane and heading directly at the bus before commencing a turn.
14. He conceded under cross examination that he could not recall if the Tucson’s indicators were turned on.
15. Mr Selesele was the driver of the taxi stationary at the TATTE exit. He was waiting to drive onto the main road. He intended to drive westward and turn around the roundabout located metres before the gates to Tanoa Hotel. As he waited for the road to clear, he observed the Tucson travelling from the west and turning inside the TATTE compound. He also noticed the bus travelling from the east, then swerving to the outside lane and colliding with the Tucson. Following impact, both vehicles moved across infront of his taxi, the bus then coming into contact with and causing damage to the front of his taxi.
16. Under cross examination, Mr Selesele maintained that the Tucson did not stop before turning. He conceded however that he could not see whether the indicators were on; that before the collision, the bus was travelling fast; that the bus had started to swerve to the outside and left lane before the collision; and that when the Tucson turned, it was approximately 12 metres from the bus.
17. Ms Teueli is a colleague of the accused. She was seated in the front with the accused but on the passenger’s side. They had been at the Courthouse earlier and were on their way back to their office at the TATTE Building. She recalls that as they approached the TATTE gates, they were in a queue of vehicles. There was a white vehicle infront of them. She could not see the vehicles coming from the opposite direction, but noticed vehicles heading westward past them.
18. Before turning into TATTE, they stopped on their lane opposite the gate entrance and signaled to turn. She was sure they signaled shortly before commencing a right turn because of the ticking sound of the indicators.
19. The accused drove slowly into the TATTE gates, during which Ms Teueli was able to see the bus coming from the opposite direction. At first, she had no reason to be concerned because there was sufficient distance between them for the bus to slow down and / or stop. However as they reached the outside lane and before entering the TATTE gates, she realised that the bus was not stopping and heading straight at them. She closed her eyes. Seconds after impact and immediately after the vehicles came to a stop, she felt numb and demanded the accused to take her to the hospital.
20. At the hospital, Ms Teueli was pushed inside on a wheelchair. She was seen by Dr Agape Amituanai, an Emergency Registrar with the Emergency Department at the National Health Services. She was prescribed oral medication and discharged the same day. She felt pain for 1 to 2 weeks and was required to miss work for a time.

Injuries

21. Dr Amituanai’s medical report dated 22 November 2016 was tendered as Exhibit P3. Under the part headed “Pertinent Findings of Examination”, she states as follows:

“Examination was unremarkable. There were no abnormalities noted. In spite of her severe pain and obvious emotional distress, there were no bruises nor were there any other external injuries. There were no signs indicative of any head injury. Radiographic Investigations revealed neither fractured bones nor other significant abnormality.”

22. Regarding Assessment and Treatment, the report states that the “patient was assessed a having soft tissue injury ... and discharged home with oral pain relief.” Dr Amituanai defines ‘soft tissue injury’ as “any damage to muscle ligaments, tendons and skin causing a strain, sprain or bruise to the particular part of the body.”
23. She assessed that the pain experienced by Ms Teueli was “a result of a sprain in the muscles and skin on the left side of her body as a result of the motor vehicle collision”. The pain and soreness in her view, would have lasted a minimum 7 days and maximum 10 to 14 days.
24. Under cross examination, Dr Amituanai conceded that no radiological examination was conducted on Ms Teueli, but only plain xrays. She conceded further that given she could not see the sprain, her assessment of Ms Teueli having soft tissue injury was her best effort based on her physical examination, though she could not be categorically sure. She maintained however that the degree of pain that Ms Teueli appeared to have experienced, indicated that it was deeper than the skin and impacted on the muscles and organs.

Skid Marks and Point of Collision

25. Using the Scene Plan (Exhibit P1), Mr Filipo and Mr Selesele were asked to identify the point of collision. Mr Filipo made 2 marks, the first near the footpath on the side of the TATTE gate closer to Tanoa Hotel, the second which he later identified as the correct point being opposite the TATTE exit on the outside westbound lane.
26. Mr Selesele also marked as the point of collision, the outside lane closer to the TATTE Building, but opposite the TATTE entrance.
27. Marked on the Plan as skid mark(s) by Constable Fetu, is a short curve directly opposite the TATTE gates and well in the middle of the outside westbound lane. One end of the curve is in the middle of the outside lane, the inland end being in line with the footpath but does not extend beyond the point where the taxi was stationary.
28. The difference with the skid marks seen in the Booklet of Photos (Exhibit P2, pp3 & 12) is that the skid marks in the Photos run past the TATTE exit and onto part of the footpath.
29. Despite these differences, what is common is that the point of collision is on the outside lane closer to the TATTE Building. It is closer to the middle of the outside lane than to the dotted line separating the 2 westbound lanes.

ADMISSIBILITY OF THE ACCUSED’S STATEMENT DATED 11 MAY 2016

30. Towards the end of the prosecution evidence and through the Investigating Officer, Sergeant Magalo Pule, the defence sought to tender a statement by the accused dated 11 May 2016 and headed “Letter of Complaint”.
31. The letter contains the accused’s version in which she denies fault, and is stamped “received by the Office of the Commissioner of Police on 12 May 2016”, 8 days after the incident and 3 months before she was arrested.
32. The prosecution objected on the ground that the statement was self-serving hearsay, which if admitted, was allowed to pass into evidence untested. They relied on the following statement by Sapolu, CJ in Police v. Roache & Crichton [2013] WSSC 23 at para 34

“A statement by an accused to the police is hearsay and is therefore prima facie inadmissible. But if such statement is a confession, then it is admissible as an exception to the hearsay rule. A wholly exculpatory statement made by an accused to the police is not a confession. It therefore does not qualify under the confessional exception to the hearsay rule. As a wholly exculpatory statement is also a prior self-serving statement, it is inadmissible under the rule against the admissibility of prior self-serving statements. I agree with the statements to the same effect made by Nelson, J in Police v. Mataituli [2011] WSSC 154.”

33. Whilst conceding that the statement was self-serving, the defence argued that it was not the typical self-serving statement because it was given to Police well before the accused was arrested and charged. As I understand the defence submission, time is the most significant point, and the accused, they argued, could not be prejudiced in not having her account before the Court because the police were not in a position to or did not indicate that they would not be producing her letter as part of their evidence. The defence provided no authority on the point.
34. Ruling the statement inadmissible, I relied on Police v. Roache and Crichton [2013] WSSC 23. In my view, whether or not the statement was made well before the accused was arrested, it was clearly exculpatory and therefore does not qualify under the confessional exception to the hearsay rule.

ISSUES

35. It is conceded that the accused was driver of the Tucson, and immediately after the accident, she drove Ms Teueli to hospital where she was treated and discharged the same day.
36. It is disputed however that she drove negligently or in the alternative dangerously, and that the accused suffered bodily injury as a result.
37. In respect of the negligent driving causing injury charge, the issues for determination would be:
    • (i) Did the accused drive negligently;
    • (ii) If she did, then did that negligence cause bodily injury to Ms Teueli.
38. On the alternative charge of dangerous driving, the question would be:
    • (i) Did the accused drive dangerously having regard to the circumstances of the case including the nature, condition and use of the road and the amount of traffic which might reasonably be expected to be on the road.
39. On the charge of failing to stop and ascertain, the questions would be:
    • (i) Did an accident occur, which arose from the accused’s use of the Tucson?
    • (ii) Did the accused stop to ascertain whether anyone had been injured?

RELEVANT LAW

Negligent driving causing injury

40. Section 39A of the Road Traffic Ordinance 1960 provides as follows:
    • “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.”
41. The test for determining negligent driving has been stated in numerous decisions of this Court. In Police v. Ata Sulape (Unreported, 1 October 2010), Vaai, DCJ as he then was states at page 4:
    • “The test for the standard of care is whether or not in the circumstances, the defendant drove in a reasonable and prudent manner. If on the evidence he did not, he is considered to have negligently driven at the time. But if he did, then the police case must fail as it has not satisfied the Court regarding proof of one of the elements of negligence.”
42. In Police v. Kerslake [2014] WSDC 5, Tuala – Warren, DCJ as she then was, relies on the following passage of Johnson, J in Director of Public Prosecution v. Yeo and Anor [2008] NSWSC 953:
    • “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.”
43. I have referred to both authorities in recent similar cases, one of which is Police v. Tunupopo [2015] WSDC 7.
44. As to the expression “bodily injury”, Sapolu, CJ discusses the meanings of “grievous bodily harm” and “actual bodily harm” in Police v. Papalii [2011] WSSC 138 and refers to the following from Archbold 206 at 19-197:
    • “Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent, but must be more than merely transient or trifling: R v. Donovan [1934] 2 KB498, 25 Cr App RI, CAA cited with approval by Lords Templeman and Jauncey in R v. Brown (A) [1993] UKHL 19; [1994] 1 AC 212, HL at pp 230 and 242 respectively. It may include a momentary loss of consciousness; where there is a injurious impairment to the victim’s sensory functions, ‘it is axiomatic that the bodily harm was actual’: R(T) v. DPP [2003] EWHC 266; [2003] Crim LR 622, QBD (Maurice Kay J)”
45. In Clements v. Gill [1953] SASR 25, a case cited by the defence, a pedestrian was struck by a motor vehicle and thrown to the ground. Evidence was given that he was shaken and dazed and it was reasonably expected that at least some bruising was caused. But there was no such evidence and there was no evidence of any actual physical injury. It was held that there was insufficient evidence to prove that he had suffered “an injury” in terms of the relevant section of the South Australian Road Traffic Act.
46. In R v. McArthur [1975] 1 NZLR 486, a case referred to by prosecution and defence, the complainant was knocked down by a vehicle while walking. An eyewitness who helped him to his feet gave evidence that he appeared to be dazed. The complainant himself gave evidence that when he was left sitting on the footpath, his head “was spinning round”. It was held that:
    • “ ... in the absence of evidence of any broken bone or bruising or cuts or lacerations suffered by the victim who had been knocked down, there was no proof that he had suffered an injury.”

Dangerous Driving

47. “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.” (s39(1), Road Traffic Ordinance 1960)
48. As to restriction on prosecution for an offence relating to the maximum speed at which motor vehicles may be driven, reckless or dangerous driving, and careless driving, s42, Road Traffic Ordinance 1960 relevantly provides that if a person is prosecuted for such an offence:
    • “ ...he or she shall not be convicted unless either:

(a) the person was warned at the time the offence was committed that the question of prosecuting him or her for an offence under some one or other of the provisions of this Part would be taken into consideration; or

(b) within 14 days of the commission of the offence a summons for the offence was served on him or her; or

(c) within that 14 days, a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or her or the person registered as the owner of the vehicle at the time of the commission of the offence:”

Failure to stop and ascertain whether she had injured any person

49. Sections 44(1) and (4) of the Road Traffic Ordinance 1960 states:
    • “44. Duties of drivers in cases of accidents – (1) If an accident, arising directly or indirectly from the use of a motor vehicle, occurs to a person or to any horse or vehicle in charge of any person, the driver of the motor vehicle shall stop, and shall also ascertain whether he or she has injured any person, in which event it shall be his or her duty to render all practicable assistance to the injured person including transportation of that person to hospital.
      • ...........
      • (4) A driver who fails to comply with any obligation imposed on him or her by subsection (1) in any case where no other person is injured in the accident commits an offence and is liable on summary conviction to a fine not exceeding 2 penalty units or to imprisonment for a term not exceeding 3 months.”

SUBMISSIONS BY THE PROSECUTION

Negligent Driving Causing Injury

50. Prosecution submitted that the accused was negligent in slowly crossing the 2 westbound lanes with a bus so close, making the accident an accident just waiting to happen. They rely on the evidence of Mr Filipo and Mr Selesele who say that the Tucson turned without indicating when the bus was so close, and of Ms Teueli that when they commenced and completed a right turn, the accused was driving slowly.
51. Prosecution argued that the difference between distances of 5 and 12 metres identified by Mr Filipo and Mr Selesele as distance between the bus and Tucson when the Tucson turned, is due to perspective.
52. As to the point of impact, prosecution submitted that it would have been around the area marked by both Mr Filipo and Mr Selesele, both of which points are closer to the dotted line separating the 2 westbound lanes. They submitted that those support the prosecution’s contention that the Tucson was straddling the 2 westbound lanes, and had only turned and travelled a short distance when it was hit by the bus.
53. There is no evidence as to which tyre(s) and of which vehicle caused the skid mark(s) identified on the Plan and seen in the Photos. But prosecution submitted that it was caused by the front left tyre of the bus, and that it also supports their argument that the Tucson had travelled a short distance before it was hit by the bus.
54. Prosecution also argued that the accident could not have been caused by the bus’ faulty brakes, speed or lack of Mr Filipo’s driving skills. They submitted that the Court is obliged to focus on the driving of the accused and not of Mr Filipo.
55. As to Ms Teueli’s injury, prosecution relies on the evidence of Dr Amituanai who diagnosed the pain as “the result of a sprain in the muscles and skin on the left side of her body” resulting from a motor vehicle collision. In Dr. Amituanai’s view, it required a minimum 7 and maximum 10 to 14 days to heal. It is consistent with Ms Teueli’s evidence that she was in pain and it took 1 to 2 weeks to heal.

Dangerous Driving

56. Prosecution submitted that in the alternative, the accused drove dangerously by trying to force, or expecting the bus to slow down and / or stop, in order for the Tucson to get halfway across, and then all the way across if the outside lane was clear.

Failure to stop and ascertain

57. On this charge, prosecution relies on the evidence that shortly after the vehicles came to a stop, the Tucson reversed and drove off. They submitted that the accused had a statutory duty to check whether anyone apart from Ms Teueli, be it a passenger of the bus or taxi, or an innocent bystander was injured. She drove off without satisfying that duty.

DISCUSSION

Negligent Driving Causing Injury

(i) Did the accused drive negligently?

58. I have carefully considered the evidence and I am not satisfied that the accused was negligent in the way she commenced a right turn and drove slowly across the 2 westbound lanes when the bus was approaching. I form that view because of the following reasons.

Indicators and distance between bus and Tucson when it turned

59. Firstly, there is conflicting evidence as to what happened immediately before the accused commenced a right turn, and the distance between the Tucson and bus when the accused completed the right turn.
60. On one hand, there is evidence of Mr Filipo, Mr Kereti and Mr Selesele that the accused neither stopped nor indicated before turning; and that the distance between the bus and Tucson when it turned was as close as 5 to 12 metres. Mr Selesele and Mr Kereti conceded under cross examination the possibility that they were unable to see the Tucson’s indicators being turned on, but Mr Filipo stuck to his evidence in chief and insisted that there were no indicators.
61. On the other hand, Ms Teueli was sure that not only did they stop and signal before commencing a turn, the distance between them and the bus was also not close enough to cause her concern. In her evidence, she says that there was sufficient distance and time for the bus to slow down or brake, and that she became concerned only when she realised that the bus was not slowing down or stopping, but heading straight at the left side of the Tucson.
62. I accept that witnesses sometimes make mistakes and that differences in their evidence may be due to perspectives. But unlike Mr Selesele and Mr Kereti who conceded the obvious possibility that they might not have seen the Tucson’s indicators working, Mr Filipo stuck valiantly to the main aspects of his evidence. He went so far as to defend the safety aspect of the braking system on the bus. He refused to accept it was unsafe even when the scenario of a person suddenly stepping out from behind a car was put to him.
63. In contrast, Ms Teueli was inside the Tucson and as submitted by the defence, had every reason to be acutely aware of the position of the bus relative to the Tucson when it made the turn. I remind myself that Ms Teueli was not only a passenger but colleague of the accused. But having listened to her evidence and observed her in the stand, I find no reason to doubt the reliability of her evidence.
64. I also find it difficult to accept that at 5 to 12 metres, the accused could not have noticed a bus travelling from the opposite direction. In my view, if it was that short a distance, Mr Filipo would not have managed to pump the brakes 3 times as he says he did; the point of impact would have been on the inside lane, and the impact and damage to the Tucson would have been more severe.

Bus Brakes and Speed

65. The second reason relates to the brakes’ condition and speed of the bus. The bus had defective brakes which needed pumping 3 times before they served their purpose. Mr Filipo downplayed the defective brakes, but agreed that it was important, especially for public transport to have no such defects. The brakes had been in that condition for some time and Mr Filipo had obviously developed a driving style to accommodate for the defects.
66. As to speed, I consider the evidence of Mr Filipo that his bus was travelling at 10 to 15mph in light of his own evidence that he was on 3^rd gear, and that of Mr Selesele under cross examination that the bus was speeding before it crashed into the Tucson. Taking all that evidence into consideration, I am of the view that Mr Filipo’s bus was travelling at a speed of more than 10 to 15mph.

Skid marks and point of impact

67. The third reason relates to the point of impact. It is no issue that the point of impact was on the outside westbound lane. On the Plan (Exhibit P1), Mr Filipo and Mr Selesele identify it as closer to the dotted line separating the 2 westbound lanes. Constable Fetu on the other hand marks it more towards the middle of the outside lane. Compared to the skid marks seen in the Photos (exhibit P2), the one on the Plan does not extend beyond the TATTE exit.
68. Listening to the witnesses’ evidence and looking at the Plan and Photos, I find that the point of impact would have been more towards the middle of the outside lane directly infront of the TATTE entrance. I also find that the skid marks ran past the TATTE exit and onto part of the footpath.
69. I also accept that the skid marks were caused by tyre(s) of the Tucson being pushed by the bus in an unnatural way following the impact. The bus had defective brakes and needed pumping 3 times. Its tyres could not have caused the marks. The length of the skid marks is indicative of the distance that the Tucson was pushed across by the bus. In my view, it required speed for the bus to have pushed the Tucson across that distance.

Finding

70. On the totality of the evidence, I find that the bus had travelled westward on the inside lane. It passed the lights on 3^rd gear and at a speed of more than 15mph. Approaching the TATTE gates, the Tucson travelling from the opposite direction had commenced a right turn into the TATTE entrance. The Tucson cleared the inside lane and was on the outside lane heading into the TATTE gate entrance. The Tucson was a fair distance from the bus not to cause concern for Ms Teueli. It was also far enough for the bus to brake and / or slow down. But with defective brakes, Mr Filipo was unable to slow down or brake in time. In an attempt to avoid the collision, he swerved to the outside lane, struck the left side of the Tucson around the middle of the outside lane directly infront of the TATTE entrance, and pushed the Tucson past the TATTE gates and onto part of the footpath.
71. I accept the submission by Mr Perese that the Court is obliged to focus on the driving of the accused. But in the circumstances of this case, I cannot see how there can be negligence on the part of the accused. She and Ms Teueli had cleared the inside lane on which the bus travelling. They were well on the outside lane. Their distance relative to the bus was sufficient for the bus to slow down and avoid a collision. She could not be expected to know of the condition of the bus’ brakes and accommodate for that defect.
72. At the very least, the evidence in my view raises a reasonable doubt that the accused had driven in a manner not expected of an ordinary prudent driver. The benefit of that doubt must be exercised in favour of the accused.
73. The prosecution case on this charge must therefore fail on this ingredient, and I need not consider the second ingredient.

(ii) Did the accused’s negligence cause bodily injury to Ms Teueli

74. But even if I found that the accused was negligent, and were therefore required to consider the second ingredient, I would still be left with a reasonable doubt that Ms Teueli suffered bodily injury within the meaning of the charge.
75. Dr Amituanai assessed Ms Teueli as having soft tissue injury, specifically a sprain in the muscles and skin on the left side of her body. She accepted under cross examination that because she was never able to see the injury, the diagnosis was her best effort based on her physical examination and the degree of pain Ms Teueli appeared to be in. There were no bruises, cuts or lacerations, but the pain and soreness took 1 to 2 weeks to heal.
76. I accept that Ms Teueli was in severe pain. But in the absence of evidence of bruising or actual physical injury and applying Clements v. Gill [1953] SASR 25 and R v. McArthur [1975] 1 NZLR 486 referred to in paragraphs 45 and 46 above, I am left in a reasonable doubt that that pain amounted to ‘bodily injury’ within the meaning of the charge.

Dangerous Driving

(i) Did the accused drive dangerously having regard to the circumstances of the case including the nature, condition and use of the road and the amount of traffic which might reasonably be expected to be on the road?

77. For the same reasons stated in paragraph 71 above, I am not satisfied beyond reasonable doubt that the accused drove dangerously in the circumstances.
78. There is also no evidence that seconds before the collision, there was another vehicle on the outside westbound lane. The argument that the accused had driven slowly across halfway and continued across when the outside lane was clear and in turn, forcing or expecting the bus to slow down cannot be sustained.
79. In any event, under s42 Road Traffic Ordinance 1960, a conviction cannot be entered against the accused because there is no evidence that “at the time” the incident occurred, she was warned that the question of prosecuting her would be taken into consideration. There is also no evidence that within 14 days of the incident, the accused was served with any summons or notice of an intended prosecution against her.

Failure to stop and ascertain

(i) Did an accident occur, which arose from the accused’s use of the Tucson?

80. There is no dispute that the accident occurred arising from the accused’s use of the Tucson.

(ii) Did the accused stop to ascertain whether anyone had been injured?

81. Shortly after the collision and the vehicles came to a stop, the accused reversed and drove off. Ms Teueli’s evidence is that this was after she forcefully told the accused at least twice to take her to the hospital. From the scene, they headed straight to TTM Hospital where Ms Teueli was treated.
82. Prosecution submitted that the accused should have done more by stopping to check whether any other people had been injured.
83. In the circumstances, I am not satisfied that she could have done more. Ms Teueli was seated directly against the point of impact. She demanded the accused immediately after the accident to take her to the hospital, and the accused could not have known the seriousness or otherwise of her condition.
84. I agree with the defence submission that the accused did what any reasonable person would in the circumstances, and that it cannot be the intention of s44 that the accused would delay taking Ms Teueli who was affected by the collision, to check on the passengers of the bus, taxi or any other persons, when there were other people around the vicinity who would inevitably make the inquiry.
85. I am therefore not satisfied beyond reasonable doubt that this charge has been made out.

DECISION

86. For the foregoing reasons, I have reached the decision as follows:
    • (iv) On the charge of negligent driving causing injury, I find that the prosecution has not proven the charge beyond reasonable doubt. It is accordingly dismissed;
    • (v) On the alternative charge of dangerous driving, I find that the prosecution has not proven the charge beyond reasonable doubt. It is accordingly dismissed;
    • (vi) On the charge of failing to stop and ascertain whether the accused had injured any person and render all practicable assistance to such person, I find that the prosecution has not proven the charge beyond reasonable doubt. It is also accordingly dismissed.

JUDGE FEPULEAI A ROMA