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Police v Tufuga [2021] WSDC 2 (20 August 2021)

DISTRICT COURT OF SAMOA
Police v Tufuga [2021] WSDC 2


Case name:
Police v Tufuga


Citation:


Decision date:
20 August 2021


Parties:
Police
Malamene Tufuga


Hearing date(s):
10 August 2021


File number(s):



Jurisdiction:
Criminal


Place of delivery:
District Court of Samoa, Mulinu’u


Judge(s):
Judge Atoa-Saaga


On appeal from:


Order:
Defendant is not guilty of negligent of driving causing injury, the charge is hereby dismissed


Representation:
Sergeant Tenari Vaai for Prosecution
Matafeo George Latu for Defendant


Catchwords:



Words and phrases:


Legislation cited:


Cases cited:
DPP V Yeo & Anor [2008] NZWL 953,
Police v Tunupopo [2015] WSDC 7
Police v Yvette Kerslake,


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U


BETWEEN


P O L I C E
Informant


A N D


MALAMENE TUFUGA of Pesega
Defendant


Counsels:
Sergeant Tenari Vaai for Prosecution
Matafeo George Latu for Defendant


Hearing: 10th August 2021
Decision: 20th August 2021


DECISION OF JUDGE SAAGA

INTRODUCTION

  1. The Defendant is alleged to have driven a vehicle negligently resulting in the injury of Moealia Alifipo, a 15 year old male of Toamua Uta. Prosecution bears the burden of proof in proving the element of the offence beyond reasonable doubt.
  2. In determining whether the Defendant drove the vehicle negligently, I must consider the law on negligent driving and the test that has been applied by the Court.
  3. The relevant provision as amended on 20th March 2020 is Section 39A of the Road Traffic Ordinance 1960 which stipulates that,
  4. Notwithstanding the recent amendment, the elements of the offence of Negligent driving causing injury still remains as:

(a) Identification of the Defendant as the person who drove the vehicle;

(b) The Defendant drove the vehicle negligently; and

(c) The Victim suffered bodily injuries as a result of the negligent driving.

  1. There is no dispute that the Defendant was the driver of the vehicle with a registered number 37562 and that the victim sustained bodily injuries. The main issue that was for determination by this Court is whether the Defendant drove the vehicle negligently.
  2. In Police v Yvette Kerslake (unreported, District Court, 11 April 2014) Judge Tuala-Warren cited with approval the case of DPP v Yeo and Anor (2008) NSWL 953 in which the Court stated that:
  3. “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 care of other users of the road to be expected of an ordinary prudent driver in the circumstances.”
  4. Judge Roma also in Police v Tunupopo [2015] WSDC 7 accepted the following test for negligent driving:
  5. “The test for standard care is whether or not 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 the negligence.”

EVIDENCE

Prosecution’s Evidence

  1. Prosecution called the victim Moealia; his cousins Lini Sio and Mikaele Isitolo; Jack Semu, Mose Maua, Fisa Lesa, Corporal Benhuro Loimata (“the Investigating Officer”) and Ioane Iosefo the Forensic Officer.
  2. On the 08th February 2021 at around 6pm, Moealia and his cousins Lini and Mikaele had just left the village pool where they had been bathing for hours earlier. The village pool is located on the left side of the main road just next to the bend. They left the pool and walked along the left side of the main road with Lini walking in front of Moealia and Mikaele in the direction of going towards Faleolo Airport. They walked past Mose Maua who was walking on the same side in the opposite direction towards Apia Township. On the right side of the road, further up in the direction of Faleolo Airport, Jack Semu was sitting in front of a shop watching Lini, Mikaele and Moealia. He knew Lini and Mikaele as they are from his village.
  3. Moealia and Mikaele were walking side by side with Moealia next to the road. They all wanted some ice cake but there was no ice cake sold at the market located on the left side of the road. As Moealia still wanted some ice cake, Mikaele gave 50 sene to Moealia although Moealia cannot recall receiving any money. All Moealia recalled was standing on the white marking and then waking up in hospital.
  4. Moealia also could not remember hearing the beeping of the horn nor seeing any vehicle. Both Lini and Mikaele tuned when they heard the beeping of the horn just before the vehicle hit Moealia. Momentarily, Mikaele recalled the oncoming vehicle speeding before it struck Moealia. Jack Semu also heard the beeping of the horn twice. The last beep was just prior to the vehicle hitting Moealia.
  5. Mose Maua was just about to cross the road right in front of the pool. He saw the vehicle hit Moealia before the vehicle propelled itself and Moealia across the road where Moealia landed onto the other side of the main road. He ran to where Moealia was lying and lifted him up and carried him to the other side of the road with the assistance of Mikaele. There were no other vehicles on the road.
  6. Fisa Lesa was working outside their garden. Her house is located near the shop where Jack Semu was sitting. She heard a loud noise and when she looked towards the main road, she saw a vehicle standing on the road. She was able to see the number plate while the vehicle was on the main road. She also saw the body of the young boy lying on the road. She informed the police who arrived later that day to conduct the investigation of the number plate of the vehicle she saw.
  7. During examination in chief, Mikaele, Lini, Moealia, Mose and Jack were adamant that Moealia did not cross the white marking and that he was standing on the inland side of the white marking. Lini recalled that Moealia had his left foot on the white marking.
  8. I.O Benhuro Fiu was at the Apia Police Station when he received a call that a child had been involved in an accident. He travelled with members of his team to Tuanai to investigate. There was no one at the crime scene. They were told that the victim had already been transported to the hospital. They proceeded with their investigation after arranging with a Senior member of their team from Apia to visit the victim at the hospital.
  9. They were able to gauge from eye witnesses a description of the vehicle. It was not until the next morning that he was advised by the team on duty that the driver of the vehicle had been found. He went to see the Defendant and discovered that he was a friend. He interviewed the Defendant and prepared a sketch plan of the crime scene. After his investigations, he concluded that there was insufficient evidence to bring the charge. Nevertheless, after submitting his report to his Senior Officer, he proceeded to lay a charge of negligent driving causing injury.
  10. Ioane Ioapo the Forensic Officer took the photographs of the vehicle at Afega Police Station on 10th February 2021. On 27th July 2021 he took photographs of the crime scene.
  11. On cross-examination, Moealia admitted that he did jump onto the road. Mikaele and Lini both agreed that Moealia may have jumped onto the road. Mose agreed that he was too far away to know exactly which part of the road Moelia was standing when the vehicle hit him. Jack Semu initially denied that his previous statement taken on the 08th Feburary 2021 was correct. In his written statement, he had stipulated that he saw Moelia jump onto the road. In cross-examination, he reluctantly accepted his written statement as the more accurate account of the incident.

Defence’s Evidence

  1. The Defendant and his wife gave evidence.
  2. The Defendant and his wife were invited to a birthday party of a one year old nephew in Falelatai. The birthday party was scheduled to commence at 8pm. Malamena picked up his wife from her work place at Matautu at 5pm. His children were also with him in the car.
  3. They were coming around the bend at Tuanai. There is a speed bump on the main road before the village pool. He could see the young boys walking on the left side of the road. They were not paying attention to the cars on the road. They were skipping. He beeped his horn first but no one paid attention.
  4. When they had almost reached the boys, he again beeped his horn. He was shocked when one of them ran onto the road instantly. It was too late for him to stop the vehicle as the boy was already halfway across the road. He swerved the vehicle to the right to avoid hitting the young boy but it was too late as the vehicle had already reached the young boy and upon hitting him, the body of the victim flung across the left side of the bonnet onto the windshield of the car shattering the glass. Moealia also tried to grab onto the side of the vehicle but by then the vehicle had propelled across the road and the boy’s body fell off the vehicle leaving him lying on the opposite side of the main road.
  5. They stopped for a while reeling from the shock of hitting the young boy unexpectedly. While the vehicle was still parked on the other side of the main road, he wound the window down to see whether the victim was moving. By then, he saw people running towards the vehicle. Fearing for his wife who was 4 months pregnant at the time and his children he continued driving until they reached Falelatai. He admitted that he was so scared and confused that he did not report the accident that day and it was only the next day when the police approached him that he admitted that he was the driver of the vehicle.
  6. On cross-examination, the Defendant admitted that the dent on the left side of the vehicle could infer that he was speeding as the young boy is of small stature and his body could not have caused such a dent unless his body was propelled onto the car upon impact.

DISCUSSION

  1. Prosecution bears the burden of proof in providing the elements of the charge beyond reasonable doubt. To prove the element of negligent driving, the Defendant must be shown to have departed from the standard of care expected of a prudent driver.
  2. Prosecution contends that the vehicle driven by the Defendant while speeding struck the victim while he was standing on the white marking.
  3. Consistency in the evidence adduced by Prosecution’s witnesses Moealia, Lini and Mikaele who are all young boys of 13 to 15 suggest that they were all attentive to the road markings and were fully aware of the vehicles on the road. Their evidence under scrutiny however indicated that they were only aware of the vehicle just seconds before the accident and that there is no way that any of them could have all noticed whether Moealia was standing on the white marking or not. While there is reference by Mikaele to the speed of the vehicle, it was just a minute observation, just a few seconds prior to the vehicle hitting Moealia. None of the eye witnesses saw the vehicle prior as their backs were turned to the vehicle. Mose Maua also passed the vehicle and did not mention that the vehicle was speeding.
  4. The admission by Moealia also that he had ran onto the road further creates reasonable doubt that the Defendant drove the vehicle negligently. The truth it appears from Moealia’s admission during cross-examination is that he was so fixated on getting his ice cake after getting money from Mikaele that he was not fully cognizant of how close he was to the road and the oncoming vehicle that by the time he heard the beeping of the horn, he was already on the road. I am persuaded to accept his admission that he did run onto road as a genuine and truthful account of what had happened having observed his demeanour, the display of emotions and overwhelming sense of relief after his admission. I also do not accept his initial denial that he did not hear beeping of the horn when he was in a better position to hear the horn than both Lini and Mikaele who were further away from the road and Jack Semu who was sitting across the road. There is no evidence before the Court to suggest that he had hearing problems before the accident.
  5. In respect of the inconsistency in Jack Semu’s testimony, I reject his current position and denial of his previous written statement. The change in perception appears to be motivated by his own understanding of Lini and Mikaele’s version of the incident. At the time he took his written statement his memory of the incident was still vivid and fresh in his mind and it was not influenced by any other person.
  6. Photographs of the vehicle also disproves the contention that the vehicle had hit the victim head on while he was standing on the white marking. There is no damage to the front of the bonnet and engine. The only visible damages to the vehicle are seen on the left side of the bonnet just above the tyre and left side of the windshield. Damages that include a dent above the tyre, a scratch a few metres in length on the side of the bonnet, a dislocated light bulb wire and further up, a partly shattered but still intact windshield. At least two thirds of the windshield remain unharmed.
  7. The damages to the vehicle corroborates the Defence’s evidence that Moealia had run onto the road just after the beeping of the horn. It happened instantaneously. In trying to avoid hitting the victim, the Defendant swerved the vehicle to the right but he could not stop the traction of the vehicle which resulted in the left side of the vehicle hitting the victim on impact while he was running. The impact caused him to fall onto the vehicle causing a dent to the left side of the bonnet just above the tyre and the shattering of the glass on the left side of the windshield. As a result of trying to shield himself from the impact, he grabbed onto the vehicle and as a result pulled out the light bulb on the side. As the vehicle was still moving, the vehicle was propelled across the road with the body of the victim falling off the vehicle when the vehicle stopped just after the line in the middle of the main road.
  8. In weighing the evidence, I am persuaded that the Defendant was not negligent and that the victim had run onto the road just before the vehicle hit him.

CONCLUSION

  1. I hereby find the Defendant not guilty of negligent driving causing injury. The charge is dismissed.

JUDGE ATOA SAAGA

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