Police v Palenapa [2018] WSDC 19 (11 September 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Palenapa [2018] WSDC 19 (11 September 2018)

Case name:	Police v Palenapa
Citation:	[2018] WSDC 19
Decision date:	11 September 2018
Parties:	POLICE (Informant) v JUNIOR PALENAPA, male of Vaiusu and Leauvaa (Defendant)
Hearing date(s):	10th & 11th September 2018
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	For the foregoing reasons, I find: On the charge of negligent driving causing injury, the prosecution has not proven the charge beyond reasonable doubt. The accused is acquitted of the charge and the charge is dismissed; On the charge of failing to report, that the prosecution has proven the charge beyond reasonable doubt. The accused is found guilty of this charge.
Representation:	Senior Sergeant Kenneth Komiti for the Informant Defendant appears in Person
Catchwords:	Negligent driving causing bodily injury – failing to report accident – failing to stop to assist injured person(s) – vehicle collision
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A; 44(1)(4); 44(2).
Cases cited:	Chang v Attorney General [2018] WSCA 3; Director of Public Prosecution v Yeo & Anor [2008] NSWSC 953; Moss v Police [2015] NZHC 2094; Police v Ata Suluape (Unreported, 01 October 2010); Police v Kerslake [2014] WSDC 5; R v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605 (CA).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

JUNIOR PALENAPA male of Vaiusu and Leauvaa

Defendant

Representation: Senior Sergeant Kenneth Komiti for the Informant
Defendant appears in Person

Hearing: 10 and 11 September 2018
Decision: 11 September 2018

DECISION OF JUDGE SCHUSTER

BACKGROUND

1. At about 7pm the evening of Wednesday 28 March 2018, the complainants Left Hand Drive Toyota Tacoma pickup slowed down to turn into the entrance of the Faleolo International Airport after travelling from Apia. The Defendant at that same time was travelling from Mulifanua in a Silva Transport Freighter truck towards Apia descending from the area of the West Coast road sloping from West to East nearing the entrance of the Faleolo Airport.
2. A collision then occurred right in front of the Faleolo Airport entrance between the complainants vehicle and the freighter truck causing injuries to two of the occupants of the Tacoma pick up who were transported to the Leulumoega Hospital for initial treatment before being taken in an ambulance to Motootua Hospital for a more thorough examination.
3. The driver of the Freighter truck was apprehended on the same day and charged

CHARGES

4. The Defendant faces the following 3 charges under the Road Traffic Ordinance 1960:
   • (i) negligent driving causing bodily injury to Vineseroka Ramandeep a.k.a. Vine Naila or Vinesoreka Singh, female of Saoluafata and Otahuhu, New Zealand (s39A);
   • (ii) negligent driving causing bodily injury to Ane Heather, female of Saoluafata and (s39A);
   • (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 6 eyewitnesses. Mr Leitufia Fala was driver of the pick-up. Vinesoreka Ramandeep a.k.a Vine Naila a.k.a. Vine Singh was the front passenger to the right of the driver. The other four witnesses were sitting in the back tray of the truck.
6. The prosecution did not call evidence from a medical practitioner relying on the evidence of the victims themselves.
7. At the close of the prosecution evidence, the accused elected to call evidence as well as two independent witnesses.

The Accident

8. The West Coast Road coming from Apia splits into a right turn lane directly in front of the Airport entrance with a block stop line indicating where turning vehicles must stop before turning into the airport entrance. There are 2 road markers for the west bound lane users directing turning traffic in to the airport entrance. There is also a traffic speed control road hump across the West Coast Road which is situated a couple of metres before the West bound road users stop at the turning point into the airport entrance. The East bound lane continues uninterrupted so far as the road markers on the road are concerned at this part of the road.
9. On the evening of the accident, the Tacoma truck driver Mr Leitufia Fala a 37 years old male of Saoluafata married says that when he arrived at the airport entrance he indicated to turn but was shocked to see the “lorry” come out of control, turn and the trailer slid and hit his pick-up. He said this happened at about 630pm. Sitting at the back of the pick-up were Lile, Tuliloa, Rosalina, Tologataua, Afano and Ane. The trailor of the truck slid and hit the front left side of the pick-up the impact causing the pick-up to turn almost 360 degrees facing slightly towards the east and seaward side. The position of the pick-up after the collision is shown on Exhibits D1 – D5 tendered by the Defendant.
10. Mr Fala gave evidence that the Defendant came and asked if anyone was hurt before he got back into his truck, backed up and left the scene. He then asked his wife to get into a taxi with him and went after the Defendant. They stopped the truck at about Nofoalii and they talked about the accident before they came back to the scene of the accident and the Defendant was then apprehended by Police. Mr Fala testified that the truck was travelling at about 60 to 70 miles per hour. He heard the brakes screeching as the truck was braking. Mr Fala said Vine suffered forehead and knee injuries from colliding with the windscreen and dashboard respectively but there was no blood. Ane, Afano and Tuliloa fell out from the tray of the pick-up.
11. Under cross examination, the Defendant asked Mr Fala whether he heard him say that he should not have crossed the centre line unto his lane as he attempted to short cut the turn into the airport entry. Mr Fala denied this happened. The Defendant put to Mr Fala that only the back wheels of the truck collided with the pick-up not the trailer given the white paint marks on the back wheels in photo Exhibit D3 and D4 taken on 30 March 2018 by the Defendant but this was denied by the witness. The Defendant further put to the witness if he maintains that the truck was travelling at 60 – 70 miles per hour as it would mean that the truck would have crashed into the airport authority ticket house. The witness maintained that was his estimate of the speed.
12. The evidence for the second witness for the prosecution was taken by video conference from Manukau District Courts. Ms Vinesoreka is a 24 year old female of Saoluafata and Falealili. After being sworn in she testified she was sitting in front passenger seat. They stopped at the turning point to the airport entrance at about 7pm waiting for the Defendants truck to pass. However, she could see the driver of the truck talking or interacting with another truck driver parked inland side of the West Coast Road and was also speeding. By the time the Defendant looked back to the road, he saw the pick-up and tried to turn his truck into airport to avoid the collision but the trailer collided with the pick-up. The driver came out and asked if anyone was hurt got back into his truck and took off again. Vine testified that her knees were crushed against the dashboard and her forehead collided with Mr Fala’s head. Her knees were scratched, bruised and bleeding and felt a panic attack as a result of the accident. She was carried into a taxi and taken to the hospital where she was later transported by ambulance to the main hospital at Motootua.
13. Under cross examination, Vine testified that the truck was travelling at about 60 – 80 kilometres an hour. The Defendant put to Vine that the left door of the pick-up had already crossed the centre line before the accident happened. Vine responded that the pick-up stopped right on the line. The Defendant put to Vine that the pick-up didn’t stop and he did not wave to anyone. She maintained that the Defendant was distracted because he was talking to another driver.
14. Mrs Lile Heather Faiesea a 52 year old female married with 4 children and living in New Zealand testified they were on their way to the airport for her and her daughter Vine to travel to New Zealand. She was sitting on the left side of the tray at the back of the pick-up. As they stopped at the entrance of the airport, she saw the lorry coming from Mulifanua going to Apia. She says she saw the truck driver waving at another truck parked on the inland side of the road. By the time the driver saw the pick-up it was too late. The truck driver turned the truck but the trailer hit the front of the pick-up and people fell out from the pick-up. She yelled out “le kaavale o le a lavea!”. The impact caused the pick-up to turn back from where they came. She testified there were no other vehicles other than a taxi that was behind them. She testified that it was the trailer that hit the pick-up and caused Afano, Tuliloa and Ane to fall out of the pick-up. She heard someone ask if anyone was hurt but saw the truck back out and carried on towards Apia. Lile saw Vine and she complained of a sore head, feet and knees. Those who fell out limped to the curb on seaward side. Lile saw Ane had injury and blood on her leg. Lile brought Vine to Leulumoega Hospital and later to Motootua.
15. Ane Heather is a 16 year old female of Saoluafata attending Year 10 at Anoamaa College. Ane testified she was sitting in the back tray of the pick-up when she saw the truck. She saw the truck driver talking to someone but could not stop when he saw the pick-up. He tried to turn the truck but the back of the truck hit the pick-up. Ane says that she was facing forward and saw the truck coming from Muliofanua. The impact caused her, Tuli and Afano to fall off the pick-up.
16. Under cross examination, the Defendant put to Ane that the trucks wheels did not cross the centre line as proven by the photos. Ane responded that the truck driver saw them and suddenly turned into the airport entrance. The Defendant put to Ane that the pick-up front left door already crossed the centre line and reason why he swerved to avoid a serious accident and his actions actually saved them. Ane denied this. Ane further added that she fell on her knees and hands from a sitting position from inside the tray of the pick-up.
17. Afano Heather is the wife of Leitufia, has 2 children and lives at Saoluafata. She testified that they went to the airport on the 28 March 2018. They stopped at the entrance indicating to turn. She saw the Silva Transport truck speeding from west to east at about 70. She said the distance of the truck and the pick-up was about 10 metres the trailer collided with the pick-up and she fell out along with Tuliloa and Ane who fell on either side of her. She stood up after with scratches on her knee and elbows. The truck driver reversed and sped towards town. Afano and her husband chased after the truck and stopped at Nofoalii where the Defendant and Leitufia talked and they all returned to Faleolo. She testified that there were no other cars on the road other than a taxi behind them. Afano further testified that the truck driver came out and asked if anyone was dead. She also heard Vine yell out for help.
18. Under cross-examination, the defendant put to Afano that he never said if anyone was dead. Afano confirmed that he did. The defendant further put to Afano that if he was speeding the truck would have rolled over. Afano said he was speeding and the reason why he collided with the pick-up.
19. The last witness for the prosecution was Tuliloa Heather a 16 years old student of Anoamaa College. Tuliloa testified that on the 28 March 2018 they went to the airport to take Lile and Vine who were going to New Zealand. They arrived at the front of the entrance of the airport and indicated to turn into the airport. They stopped on the arrows that indicated to turn into the airport. She saw the Silva transport truck parked on the inland side of the road. She thinks that this distracted the defendant resulting in the truck colliding with the pick-up and causing the pick-up to face Apia again. She testified she fell on the road her back hitting the road first and then her hands and feet. She tried to get off the road in case other cars hit her. Prosecution closed its case following the evidence of Tuliloa.
20. On Tuesday 11 September 2018 at 10am, the court resumed and the Defendant elected to give evidence. The Defendant testified under oath that he was coming from Mulifanua going to Vaitele. Nearing the entrance of the airport, he slowed down using the gear of truck as he was descending and there was a traffic hump in front of the airport entrance. The Defendant said he saw the pick-up coming following a que of vehicles including an EPC vehicle which continued towards Mulifanua. He observed the occupants of the pick-up laughing and talking as well as looking into the airport entrance whilst slowly approaching and started to turn into the airport. It was then the Defendant says he took evasive action as the left door of the pick-up was completely in his lane. He turned into the airport entry to brace the impact of the collision. After the collision, he got out and asked if anyone was hurt but the driver of the pick-up said only the damage to his vehicle. He told the Leitufia “Uso – ova lou faakamala se’i faasao le loli fai se ka kala”. The Defendant said he parked the truck inland side and came back to the scene.
21. The Defendant went to testify that he then left but was chased by a taxi with Leitufia in it and his wife at Leulumoega intersection with Lefaga. He stopped and spoke to Leitufia and returned to Faleolo. The Defendant marked with the letter “X” on Exhibit D1 where the pick-up slowly came and turned. He also marked with the letter “Z” on Exhibit D6 where the truck was just before the pick-up turned into the airport. He marked with the letter “Y” on Exhibit D5 where the impact occurred. He testified that the truck was a Right Hand Drive vehicle and said that he only saw one person fall out from the pick-up after the collision.
22. Under cross examination, the Defendant was questioned about telling his witnesses outside about the evidence in court. The Defendant accepted that he spoke to his witnesses but that their evidence is their own. The Prosecution put to the Defendant that he was speeding which is the reason why he could not stop the truck and turned into the airport entrance. The Defendant denied this and responded that he was able to stop because he was slowing down whereas if he was speeding the truck would not have been able to stop so quickly. It was put to the Defendant that the breaks were faulty such is the reason there were no tyre marks but this was disputed by the Defendant given the photos Exhibits D5 and D6.
23. The Defendant called his first witness Filipo Maselo a 35 year old Airport Authority employee married with 1 child and resides at Leulumoega. Filipo testified that the pick-up did not give was y to the truck coming from Apia and the truck was coming from Mulifanua. As the pick-up turned into the airport, he was the truck turn into the airport as well to avoid the collision which caused the left tyre of the truck to hit the left side of the pick-up. Just before the accident, Filipo was constructing the wall that now has the Faleolo name painted on it. He referred to Exhibit P1 Photo 2 and Exhibit D2 and marked with the letter “W” where he was standing at the time of the accident. He testified only about one person jumped from the pick-up but all others were in the tray immediately after the collision. He saw the truck driver move his truck and went and talked to the driver of the pick-up.
24. Under cross examination, Filipo was questioned that his evidence is what the Defendant told him to say. Filipo said that his evidence is what he saw. He agreed that there was a Silva truck parked on the other side inland and did not see the Defendant waving to another driver. Filipo did hear the truck slowing down using the gear. He said the truck was heavy even without a container and heard the tyres screech from stopping. There was a Hiace van that went past the pick-up on the same side but there were no other cars around on the road.
25. Iulai Tesema was second witness for the Defendant. He was a 36 years old male of Vailuutai, married with 4 children and works as a carpenter for Samoa Airports Authority. He testified that he was working on the wall with Filipo and saw the accident from where he was. The pick-up came from Apia and truck was coming from Mulifanua. He saw the pick-up trying to turn into the airport but the truck was coming from the opposite direction. The truck was not approaching fast and I could see the accident as I was standing high on the wall facing the road and Filipo was handing me bricks and cement for the construction.
26. Under cross examination, Iulai was questioned whether what he was telling the court is what the Defendant told him to say. He testified no it was his own evidence of what he saw and he came to tell the truth. He referred to Exhibit D6 as to where he was standing on the wall. He confirmed that there was a Silva Transport truck parked on the other side of the road inland. He heard the truck approaching slowly by hearing the muffler sound. He did not see the Defendant wave to anyone but heard the tyres sudden screeching from the truck but coming on its own side of the road. He agreed that he could not see the wheels of the truck if they were on the inland side of the centre line of the road from where he was standing.

ISSUES

27. It is conceded that the accused was driver of the Silva Transport truck and the said truck collided with the complainants pick-up. Not long after the accident the accused drove away from the scene towards Apia.
28. It is disputed however that the accused drove negligently resulting in a collision between the accused’s truck and the complainants pick-up such collision caused bodily injuries to two of the pick-ups occupants.
29. In respect of the negligent driving causing injury charge, the issues for determination would be:
    • (i) Did the accused operate a motor vehicle on West Coast Road on the date and time alleged;
    • (ii) If the answer is yes, did the accused act carelessly, or without reasonable consideration for other persons using the road, according to an “objective standard of a reasonable and prudent driver.”
    • (iii) If the accused drove negligently, did that negligence cause a motor vehicle accident resulting in bodily injury to Vinesoreka J Ramandeep a.k.a. Vine Naila a.k.a. Vinesoreka Singh and Ane Heather.
30. On the charge of failing to report an accident, the elements would be:
    • (i) Was the accused in charge of a motor vehicle?
    • (ii) Whilst in charge of a motor vehicle, did an accident occur involving the vehicle of the accused?
    • (iii) Did the accused report the accident in person at the nearest police station or to a constable as soon as reasonably practicable?

RELEVANT LAW

Negligent driving causing injury

31. 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.”
32. 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.”
33. 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.”
34. In Moss v Police [2015] NZHC 2094 (1 September 2015) Mander J re-stated the test citing the relevant passage from the leading authority in R v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605 (CA) as thus:
    • “This does not mean to say that the defendant would be liable for conviction under s 61 if the fact he was in charge of a motor vehicle was not causative of the deceased's death. The section expressly applies where the defendant is in charge of a motor vehicle and “causes” bodily injury to or the death of a person. The word “causes” is to be given its conventional meaning in criminal law. The behaviour of the defendant must be linked to the prohibited result in a way which can be described as not “insubstantial” or not “insignificant”. See R v Myatt [1991] 1 NZLR 674 (CA) at pp 682 – 683 and R v Cheshire [1991] 3 All ER 670 at p 677. This does not mean that the defendant's conduct must be the main cause of the result, simply that its effect must be more than de minimis. Once established, the link may, of course, be broken by an intervening act. A “free, deliberate and informed” act of a third party will usually be considered an intervening act. See R v Pagett [1983] EWCA Crim 1; (1983) 76 Cr App R 279. But note the comments of Lord Hoffmann in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] UKHL 5; [1998] 1 All ER 481 (HL) to the effect that this approach may not be appropriate to every provision creating a criminal offence.”
35. As to the expression “bodily injury”, in Chang v Attorney General [2018] WSCA 3 (13 April 2018), the Court of Appeal in confirming the Supreme Courts finding on appeal said:
    • 44. The trial Judge considered that bodily injury was not proved. The Supreme Court Judge disagreed. The appellant submitted that on the evidence it was open to the trial Judge to find a reasonable doubt on that score.
    • 45. The onus is undoubtedly on the prosecution to prove bodily injury. The question is whether the symptoms reported by Ms Teueli, coupled with the diagnosis of the doctor, amounted to “bodily injury” for the purposes of s 39A of the Road Traffic Ordinance.
    • 46. There is bodily injury for present purposes where the application of an external force to a person’s body causes an interference with that person’s health and comfort that is more than merely transitory or trifling.^[5] That is not intended to be an exhaustive definition, but it is sufficient for cases like the present one. We do not think that authorities on “bodily harm” are of help given the different considerations that may apply.
    • 47. Although the onus lies on the prosecution to prove such an injury, there is no limitation on the means by which the onus is discharged. One means of proof is evidence of signs which are visible to the naked eye, such as surface bruising, cuts or lacerations.^[6] But equally, the existence of the injury can be proved by the symptoms suffered coupled with the diagnosis of a doctor. There is nothing in the Act confining injuries to external or visible injuries.
    • 48. In the present case it was not disputed that Ms Teueli felt numbness in her left side following the collision, that her symptoms were such that she demanded that the appellant take her immediately to hospital, that she reported severe pain to the doctor, that the doctor diagnosed soft tissue injuries which she described as injuries to muscles, tendons, ligaments, usually bruises or strains not usually manifesting in external appearance, that the symptoms persisted for one to two weeks and that this entailed her taking several days off work.
    • 49. We do not think that those detrimental effects can be dismissed as transient or trifling. Nor is there any ground for questioning the doctor’s diagnosis. In our view the evidence demonstrates bodily injury. The trial Judge’s assumption that external signs were necessary was an error of law.

Failure to report the accident

36. Section 44(2) 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.
    • (2) In the case of any such accidents (whether any person has been injured thereby or not), the driver of the motor vehicle shall, if required, give to any constable or to any person concerned his or her name and address and also the name and address of the owners and numbers assigned to the registration plates and license label of the motor vehicle. If the accident involves injury to any person the driver shall report the accident in person at the nearest police station or to constable as soon as is reasonably practicable, and in any case not later than 24 hours after the time of the accident, unless the driver is incapable of doing so by reason of injuries sustained by him or her in the accident.

The decision making process

37. Before I begin my consideration of the evidence and the law, it is important that I set out my role in a Judge Alone Trial. I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt.
38. This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.
39. In this case the defendant has given evidence himself. The fact the defendant gave evidence does not change the onus or standard of proof.
40. I have considered all of the evidence that has been placed before me in this case. This includes the evidence given on oath and the exhibits.
41. The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.
42. It has been necessary for me to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.
43. I also emphasise that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.

Evidence
DISCUSSION

Negligent Driving Causing Injury

(i) Did the accused drive negligently?

44. I have carefully considered the evidence and I am not satisfied that the accused was negligent when in operation of the truck as he approached the entrance of the Faleolo International Airport. There is no evidence from the prosecution witnesses direct or evidence that a primary inference can be drawn that the accused was driving negligently, carelessly or recklessly but alleging that the accused’s attention was momentarily distracted by waving to another Silva Transport truck driver who parked his truck on the inland side of the West Coast Road.
45. There was no evidence that the accused was driving on or over the centre line as it approached the complainants vehicle and his occupants. There was no evidence of tyre screech marks on the road inland side of the centre line except for those on the lane of the truck as it came to a stop in front of the airport entrance.
46. The inference is that which supports the evidence of the accused as he approached the entrance of the airport, the complainants pick-up did not give way but made a right turn into the airport entrance crossing the centre line. Mr Leitufia Fala himself gave evidence that he saw the truck approaching but never said that the truck was coming towards the pick-up on the inland lane or on the centre line as his pick-up was standing at the arrow turning into the airport entrance. All he said was that the truck driver suddenly turned the truck away realizing he was about to collide into his pick-up because he was distracted by another truck driver parked on the inland side of the road.
47. I accept the evidence of the accused and the two independent eye witnesses Filipo Maselo and Iulai Tesema Airport Authority employees who were at the time constructing a wall on the western end of the airports entrance as shown in the Exhibit. The truck was approaching at low speed as there was a road hump a few metres past the airport entrance going to Apia. The tyre marks at the point of impact suggest that the accused was able to control the truck and cause it to stop immediately as he was slowing down prior to the point of impact. The suggestion by Mr Fala and other prosecution witnesses that the truck was travelling very fast at 60-70 miles or kilometres an hour would have resulted in a completely different and most likely more serious scenario. The facts just does not support the complainants suggestion.
48. The prosecution under cross examination suggest of possible evidence collusion between the accused and his witnesses before they gave evidence. Having listened to the evidence and watched the demeanor of the Mr Maselo and Mr Tesema, I have no reason to reject their evidence as to the relevant parts relating to the charge.
49. I do not accept the evidence primarily of Mr Fala and Vinesoreka being the front cabin occupants of the pick-up as to their version of the accident. Both main witnesses were in the best position to witness the accident. However, the absence of direct and specific evidence as to the alleged negligence of the accused and their estimate of the speed of the truck suggest that either one or both failed to observe other road users as Mr Fala attempted to make a right turn into the airport entrance.
50. Having found that the accused was not negligent in operation of the motor vehicle under his control, I therefore do not need to consider the third element and find the accused not guilty of the charge of negligent driving causing injury. The accused is acquitted and the charge dismissed.

Failure to report an accident

51. On the charge of failing to report the accident, I find on the evidence that the prosecution have proven the charge beyond reasonable doubt. The accident occurred in front of the airport entrance and almost opposite from the Faleolo Police Post. Despite that, the accused without any justifiable excuse to delay reporting the accident, continued towards Apia after he firstly ascertained as to whether any persons were injured. The accused admitted in evidence under oath that he was the driver of the vehicle, that the truck under his control was involved in an accident on West Coast Road at Faleolo and that he left the scene of the accident due to work commitments. By his own admission, as well as the evidence from the prosecution witnesses and the two independent eye witnesses, I find that this charge proven beyond a reasonable doubt.
52. The offence makes it a mandatory duty on the part of drivers of motor vehicles when involved in traffic accidents causing injury to any person to report such accident immediately or as soon as reasonably practicable. It is fortunate for the accused that the accident occurred on a busy road and would be brought to the attention of road users or residents of the area very quickly and serious injury or death may be prevented by early action and urgent medical attention. This would not be the case if the area an accident occurred was remote and isolated and the victims of an accident were left unattended for an unspecified amount of time. Such is the policy concern this offence was enacted making the duty to report mandatory and failure to do so would expose an offender to prosecution for failing to act on such duty.
53. The accused having been involved in an accident failed to immediately report the accident to the Police post at Faleolo opposite from where the accident occurred without any reasonably justified ground for delaying the report.

DECISION

54. For the foregoing reasons, I find:
    • (i) On the charge of negligent driving causing injury, the prosecution has not proven the charge beyond reasonable doubt. The accused is acquitted of the charge and the charge is dismissed;
    • (ii) On the charge of failing to report, that the prosecution has proven the charge beyond reasonable doubt. The accused is found guilty of this charge.
      

JUDGE MATA’UTIA RAYMOND SCHUSTER