Police v Liao [2021] WSDC 7 (21 July 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Liao [2021] WSDC 7 (21 July 2021)

Case name:	Police v Liao
Citation:	[2021] WSDC 7
Decision date:	21 July 2021
Parties:	POLICE (Informant) v SHENGWEN LIAO, male of Matautu, Samoa and the Peoples Republic of China (Defendant)
Hearing date(s):	9th & 10th June 2021
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	I find the defendant guilty and this matter is scheduled for sentence.
Representation:	Inspector R. Ah Ching for the Informant H. Wallwork-Lamb for the Defendant
Catchwords:	Negligent driving causing injury
Words and phrases:
Legislation cited:	Road Traffic Ordianance 1960, s. 39A.
Cases cited:	Chang v Attorney General [2018] WSCA 3.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SHENGWEN LIAO, male of Matautu, Samoa and the Peoples Republic of China

Defendant

Prosecution Counsel: Inspector Richard Ah Ching
Defence Counsel: Ms Hellene Wallwork-Lamb
Date of Hearing: 9th and 10th June 2021
Date of Decision: 21st July 2021

RESERVED RULING OF DCJ SCHUSTER

1. The accused is a 27 years old male of Matautu, Apia, Samoa and a citizen of the People’s Republic of China. The defendant has entered a not guilty plea to the charge of negligent driving causing injury pursuant to section 39A of the Road Traffic Ordinance 1960 (hereinafter referred to as the “RTO”) which states “that at Malifa on the 28^th day of December 2020, the above named defendant of China and Matautu, being the driver of a motor vehicle namely, a Toyota Van Hiace registered plate number 31559, negligently drive such motor vehicle on a road namely, Vaitele Street and did thereby cause bodily injury to Satui Bentin, female of Magiagi”.
2. Section 39A correspondingly provides for a penalty upon conviction to imprisonment for a term not exceeding seven (7) years or to a fine not exceeding 200 penalty units.

Facts – Prosecution’s case

3. The prosecution called four (4) witnesses. Prior to commencing, Prosecution sought to tender by consent the medical report by Doctor Titi Lamese. Ms Wallwork did not object and the medical report was produced as Exhibit P1 for the prosecution. Mose Lotomau is a Police Sergeant with 25 years service and spent two (2) years with Forensics Division. Sergeant Lotomau testified that he was called to an accident on the 28^th December 2020 at the four corners at Malifa sometime in the afternoon. Upon arrival, he observed a blue coloured vehicle, a white Hiace van and other cars. He took photos of the scene and prepared a booklet for evidential purposes. This was tendered and produced by consent as Exhibit P2.
4. Under cross examination, Ms Wallwork focused as to whether Sergeant Lotomau checked whether the traffic lights were operating at the time he arrived to which he responded they were off due to the accident despite photographs 2, 3, 5 and 7 indicating that the traffic lights were working after the accident. Ms Wallwork further asked if he had checked for any records of the servicing of the traffic lights whether they synchronized properly prior to the accident. Sergeant Lotomau responded that he did not know. He confirmed that he did observe tyre marks on the road but did not mention that in his report.
5. It was put to him, based on the damage of the black car where the right side appear to take most of the impact, the van showing damage to the right side of the back door, that it was the black car that hit the van. Sergeant Lotomau said he did not know. Pressed again by Ms Wallwork, he responded that the photos in his opinion show that the black car was trying to avoid as photo number 4 suggest the van was going straight and the black car scraped the side. Put to him again by Ms Wallwork, Sergeant Lotomau finally conceded that based on the appearance of the damage, the black car crashed into the van. Lastly, he confirmed that the traffic lights at the scene were controlled by sensor as opposed to a timer.
6. Constable Taavao Fata was the investigating officer who has seven (7) year’s experience with the Ministry of Police. He has been assigned to the Traffic Division and has been there for two (2) years. He prepared a hand sketch of the scene but an amended sketch was produced by consent as Exhibit P3. He concluded based on the location of the two damaged vehicles and where he believes the point of impact was located, that the van was responsible for the accident.
7. Ms Wallwork put to Constable Taavao that it was the victim, Ms Satui, statement that led him to charge the defendant and not because he did a proper investigation of the scene and arrived at a that conclusion based on the victims statement alone. Constable Taavao said he also based it on the statement from a witness that was inside the defendant’s vehicle at the time. Constable Taavao agreed when put to him that he did not question the victim as to whether she was responsible for the accident by continuing into the intersection when she should have stopped eventhough it was obvious from the damage to the front part of her car. He also agreed that the medical report was given to him by the victim on 25 January 2021. Ms Wallwork put to him that the traffic light has a general timer gap of 5 seconds before the opposite lights turn green. He estimated about 2 – 3 seconds. Furthermore, Constable Taavao confirmed that he was familiar with the Road Code relating to vehicles approaching traffic lights.
8. The court has taken judicial notice of pages 29 and 30 of the Road Code provided by Ms Wallwork. This Code prescribes that the “Red light” means “MUST STOP” at the Stop line before reaching a pedestrian crossing; before entering the intersection; and must remain in stopping position until the light changes to “Green”. An “Orange or Amber light” means “SLOW DOWN AND STOP” before the Stop line. However, if one is so close to the Stop line that he/she cannot stop safely, then he/she can keep going.
9. Ms Satui Dorothy Bentin is the victim and complainant in the matter. She is a 54 years old mother of three from Magiagi and a freelance consultant since 2007. Ms Bentin testified that she was returning from lunch at Lava Hotel at about 3:45pm on her way to the Leifiifi gas station. She came via Beach Road and turned into Ifiifi Street heading inland towards the National Hospital. She was travelling in the outside lane and as she approached the Malifa four corners she observed the traffic lights were on green. A car on the inside lane was turning right towards Lalovaea at the intersection and she indicated and crossed over to the inside lane noting a bus that was immediately behind her. She could not see cars on her left on Vaitele street heading west as there was a car on the outside lane blocking her vision but there were cars on her right side waiting to head east.
10. She was referred Exhibit P3. Ms Bentin labelled “V1” as the direction where she was coming from and “V2” was where she estimated where the point of impact took place. She further added that immediately after the collision, the defendant ran over to her as she was trying to get out and said: “I’m sorry I’m sorry”. She testified of her injuries having felt pain the next day in her right leg, angle, knee, hip and right shoulder as well as her back. She had a previous condition with her back but the collision had aggravated the injury.
11. Ms Bentin was shown Exhibit P2 and she confirmed the scene, her and the defendant’s parked vehicles.
12. Under cross examination, it was put to Ms Bentin that her injuries were not the same in her oral testimony as were on the medical report. Moreover, Dr Lamese refers to a ‘truck’ as opposed to a van. Therefore, Dr Lamese could have been mistaken about her injuries. Ms Bentin responded that the doctor made his own report based on what she told him as to how she got the injuries. It was put to Ms Bentin that there were no other cars just prior to the collision as testified by the passenger who was in the defendant’s vehicle. Ms Bentin disagreed with the suggestion and re-enforced her testimony as accurate.
13. It was further put to Ms Bentin that she said to the defendant “I’ll kill you”. Ms Bentin clarified that as the defendant reached out to her, she said “You touch me I’ll kill you”. She further stated that many cars stopped and people trying to help like a civilian police and people in an MNRE car.
14. Ms Wallwork put to Ms Bentin that she made no reference in her statement that the traffic lights were on green from her direction. Ms Bentin responded that she did but perhaps was missed by the person who took her statement. It was put to Ms Bentin that she must have been worried in case she gets charged for the accident and face a civil claim. Ms Bentin denied this.
15. Ms Bentin was shown Exhibit D1 as questions from the court and asked to track on the exhibit the direction where she was coming from and heading to. She further marked with the letter “3X” where the point of impact was, the letter “A” where her car was located after the collision and the letter “B” where the van ended up.
16. The next prosecution witness was Seneturi Iupeli Alovaononu, a 21 years old male, single and works for K & K Wholesale at Matautu. Seneturi testified that he was a passenger in the Hiace van driven by the defendant and were travelling on Vaitele Street heading west. As they approached the four corners at Malifa, he saw the lights turn orange and as they went past the white line the lights turned red and immediately collided with the black car the van coming to a stop on the side of the west side of the road heading to the hospital. Seneturi pointed to the defendant as the driver he was with that day and he sat in the front seat next to the driver. He said the vehicle was travelling at normal speed.
17. Seneturi was shown Exhibit P3. He indicated on the sketch with the letter “W” the lane they were on; the letter “X” circled is where he saw the orange light; “X2” where he saw the white line; and “X3” where he saw the red light. Seneturi further testified that there were no cars from the opposite side as well as the road from Apia to Motootua. He confirmed that the vans steering wheel was on the right and that it was the right side of the van where the sliding doors is located that was damaged.
18. Exhibit D1 was shown to Seneturi and indicated with the letter “X” the lane that they were on and the exact point where he saw the lights turn orange. Finally, Seneturi identified the defendant as the driver. When asked about the victim, Seneturi said he followed the defendant who went to where the other car was and asked “you ok?”. However, the woman said “Don’t touch me!”.
19. Under cross examination, Seneturi said it was not a busy road as it was Monday after Christmas. He attested that there was no bus or pick-up truck that went past going the hospital direction prior to the collision and there were no cars at the scene after the accident. He further testified that he followed “Kevin” the driver of the van who went towards the driver of the other vehicle that was damaged but as Kevin arrived the woman said “Don’t touch me I will kill you”.
20. At the close of the prosecution’s case, the defendant elected not to give any evidence.

The decision making process

21. 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 offence have been proved beyond reasonable doubt.
22. This is a criminal prosecution. The onus is on the police to prove the elements of the 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.
23. In this case the defendant has elected not to give evidence. The fact the defendant has not given evidence does not draw any negative inference to his detriment. It is the prosecution who brought the charge and they carry the burden to prove the charge beyond a reasonable doubt.
24. I have considered all of the evidence that has been placed before me in this case with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence. This includes the evidence given on oath and the exhibits.
25. There are no facts in dispute given the defendant has not called any evidence. It is therefore necessary for me to consider the honesty, reliability and credibility of each of the prosecutions witnesses for they are the only witnesses in this matter and the defendant has put them to proof. I do not have to accept or reject anything that a witness says so long as it meets the test of relevance to the elements of the charge.
26. 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.

The Law

27. Section 39A of the RTO stipulates:
    • 39A. Negligent driving causing bodily injury or death – (1) A person must not drive or ride a vehicle on a road in a negligent or reckless manner.
    • (2) A person who contravenes subsection (1) and by that act causes an injury to any person:

(a) commits an offence and is liable upon conviction to imprisonment for a term not exceeding seven (7) years or to a fine not exceeding 200 penalty units; and

(b) the court must order the person to be disqualified from holding or obtaining a driving licence for one (1) year or more.

28. The three ingredients requiring proof are:
    • (i) That the Defendant drove a vehicle negligently;
    • (ii) That bodily injury was caused to any person; and
    • (iii) That there was a causal link between the Defendant’s driving and the injury.
29. The law is well settled in Samoa so far as negligent driving causing injury is concerned^[1]. The essential question is whether or not the defendant acted carelessly, or without reasonable consideration for other persons using the road, according to an “objective standard of a reasonable and prudent driver.”

Discussion

30. The evidence is straight forward and unremarkable. There is no dispute as to the date, time and place of the offending so far as Ms Bentin and Seneturi’s evidence are concerned. As to the identification of the defendant as the driver of the white van that collided with the complainant’s vehicle, that also appears uncontested given Seneturi’s evidence as the front seat passenger of the van and Ms Bentin who heard the defendant apologize to her immediately after the collision. I therefore find that the prosecution have proven this element beyond a reasonable doubt.
31. The issue as raised by Ms Wallwork, is whether the defendant drove negligently and therefore the sole person responsible or contributed substantially or significantly to Ms Bentin’s injuries as a result of his negligence? The only evidence to be considered is that of the prosecution witness testimonies. Ms Wallwork raised in cross examination against Sergeant Lotomau, Constable Taavao and Ms Bentin the possibility that the lights may not have worked or synchronized properly. However, that is as far as it went having not called any witness as to the working condition of the traffic lights prior to the collision. Therefore, in the absence of evidence to the contrary, I find that the traffic lights were working properly prior to and up to the time of the collision.
32. The evidence at this point from the prosecution witnesses appears conflicting. Ms Bentin testified that she entered the intersection because the traffic lights showed green for Ifiifi Street traffic but was shocked as she neared the ‘cross-over’ to the other side when the collision occurred. The mark “X3” on Exhibit P3 and D1 show the point of impact well past the ‘Vaitele Street intersection centre line’ and directly in the ‘line of sight’ of the inside lane of the traffic heading west towards Lalovaea. This was the same lane marked “W” by Seneturi that they were travelling from. It is unfortunate for the prosecution that Sergeant Lotomau did not take any measurements from the suspected point of impact to any relevant fixed point. It would have given the court a better idea of the distance involved. In saying that, I am familiar with this intersection and will take a common sense, logical and fair approach as to the consideration of space and time.
33. Seneturi however testified that he saw the traffic lights turning orange for the Vaitele Street traffic before the van reached the ‘stop line’ heading west to Lalovaea. He marked with the letter ‘X’ on Exhibit P3 and D1 where he believed was the spot where the van was when he saw the orange light. On my assessment, that appears to be about at least 2 at the most 3 car lengths from the ‘stop line’. He further testified that the van was located at the spot marked ‘X3’ on Exhibits P3 and D1 when the lights turned red and where the collision occurred.
34. Ms Bentin testified that the only reason she proceeded into the intersection was because the lights showed green for heading towards the hospital. Seneturi, on the other hand, testified that the traffic lights only turned red whilst the van was in the intersection. Ms Wallwork crossed Sergeant Lotomau as to the traffic lights being controlled by sensor and put to Constable Taavao that it takes 5 seconds for the lights to transition from ‘red’ to ‘green’ suggesting that Ms Bentin tried to anticipate the light turning green before it turned green. Ms Bentin denied this.
35. Ms Wallwork put to Ms Bentin that her motivation for her criminal complaint was due to the fact that a conviction may lead to a successful civil claim against the defendant. Furthermore, that if she were charged for having been responsible for the collision, a conviction would be detrimental to her civil claim. In considering the evidence, a mere assertion would not suffice to call into question the credibility of a witness. It must be firstly a fact in evidence and relevant to the circumstances.
36. I find that the evidence of Seneturi and Ms Bentin actually are consistent but for a lapse of the recollection of time and detail. The question is on whose part? If we consider the point of impact, it is some distance away from where Ms Bentin entered the intersection as opposed to the defendant. That may suggest that the traffic lights were green or just turned orange for traffic from Ifiifi Street. I believe that Seneturi was mistaken as to the colour of the traffic lights on Vaitele Street just before the ‘stop line’. I am of the view based on the evidence that the lights had just turned ‘green’ for traffic on Ifiifi Street and ‘red’ on Vaitele Street. It follows then that the defendant must have ignored or was not alert as to the colour of the traffic lights and should have come to a stop.
37. Even if I were to give the benefit of the doubt to the defendant, Seneturi should have at the very least observed the traffic lights on ‘green’ prior to ‘orange’ to suggest that the Ifiifi lights must have been on ‘red’ and Ms Bentin should have stopped. But that is not the evidence. There is no evidence that the defendant was speeding in excess of the speed limit and will not have any regard to that. I can an only assess the evidence based on the testimonies of the prosecution witnesses. I observed the demeanour of the witnesses and listened attentively to their evidence. I find no reason to reject all or any part of the witnesses’ testimony. I am therefore satisfied beyond a reasonable doubt that the defendant was driving negligently.
38. As to the injuries of Ms Bentin, I find no reason to reject the contents of the medical report despite the fact that there were facts from Ms Bentin’s testimony that were not consistent with the report, i.e., reference to struck by a ‘truck’ and her injuries. However, I do not find these inconsistencies substantial and therefore fatal to the prosecution’s case. The prosecution have proven beyond a reasonable doubt that Ms Bentin did receive injuries based on her evidence and a medical examination report as a result of a vehicular collision. Such injuries in my view were more than ‘merely transitory or trifling’^[2].
39. The final question is whether it was the defendants negligent driving that was the substantial or significant cause of Ms Bentin’s injuries? Considering the outcome above, it only follows that I have no difficulty in answering this question in the affirmative and that the prosecution have proven this final element beyond a reasonable doubt.

Conclusion

40. I find the defendant guilty and this matter is scheduled for sentence.

MATA’UTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE

---

^[1] Chang v Attorney General [2018] WSCA 3 (13 April 2018)
^[2] Paragraph 46 Chang v Attorney General