Police v Tanielu [2021] WSDC 8 (1 October 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Tanielu [2021] WSDC 8 (01 October 2021)

Case name:	Police v Tanielu
Citation:	[2021] WSDC 8
Decision date:	01 October 2021
Parties:	POLICE (Informant) v PULUSI TANIELU (Defendant)
Hearing date(s):	19th & 20th August 2021
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	I conclude that the standard of the defendant’s driving had fallen below what was requisite, and had created a situation of danger. It was dangerous as to the manner or situation created by the driver and not by any of the other parties involved. Given the conclusion I have arrived at, there is no need to discuss the alternative careless driving charge and I therefore dismiss that charge. This is matter is adjourned for sentencing.
Representation:	Inspector K. Komiti for the Informant M. Lui: for the Defendant
Catchwords:	Dangerous driving – careless driving.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 38; 39(1).
Cases cited:	G v Police [2006] DCR 346.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PULUSI TANIELU, male of Vaipuna, Samoa

Defendant

Prosecution Counsel: Inspector Kenneth Komiti
Defence Counsel: Ms Muriel Lui
Date of Hearing: 19^th and 20^th August 2021
Date of Decision: 1^st October 2021

RESERVED RULING OF DCJ SCHUSTER

1. The defendant is a 34 years old male of Vaipuna, Apia, Samoa. The defendant has entered a not guilty plea to the charge of dangerous driving and to the alternative charge of careless driving pursuant to section 39(1) and 38 of the Road Traffic Ordinance 1960 (hereinafter referred to as the “RTO”). The first charge in 39(1) states “that at Savalalo on the 2^nd day of October 2021, the above named defendant of Vaipuna and Lelata, being the driver of a motor vehicle namely, a Toyota Hilux registered plate number 22487, drive such motor vehicle on a road namely, Convent Street in a manner namely reversing on the main road, which was dangerous to the public having regards to all 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”.
2. The second alternative charge in section 38 states: ““that at Savalalo on the 2^nd day of October 2021, the above named defendant of Vaipuna and Lelata, being the driver of a motor vehicle namely, a Toyota Hilux registered plate number 22487, drive such motor vehicle on a road namely, Convent Street without due care and attention.”

Facts

3. The facts are straightforward and unremarkable. The defendant was driving his sister to work at Digicel main office at the NPF Plaza. He entered Convent Street from the east and proceeded west until he came to the Frankie’s Supermarket loading zone. The defendant stated under oath that he made a right turn into the loading zone entrance so that he could turn back to the east as he received a call from his other sister to return pick her up. It was in the course of executing his turning back that the accident occurred when he backed out unto the main road and collided with the Attorney General’s van that was heading east.
4. The only two notable dispute as to facts relate to the defendant alleging that the Attorney Generals driver was driving fast and should have looked out for his reversing vehicle and it was due to his negligence that the accident happened. The second relates to the complainant alleging that the defendant was pulling out not from the loading zone but in front of an adjoining gate that was closed which caused the defendants truck to obstruct the inside lane.

The Law

5. The test for dangerous driving is that the prosecution had to prove a situation which, viewed objectively, was dangerous, caused by the defendant driving in a manner which fell below the standard of care and skill of a competent and experienced driver.
6. To answer the question as to whether the defendant’s driving had fallen below the required standard of the reasonably competent driver, the court must consider two main questions about the facts: firstly, that it could be shown by irresistible inference from the proven facts and without identification of a specific act by the driver falling below the prescribed standard. Secondly, where particular actions of the driver were focused on, a Court could conclude that an action, or actions, fell below the standard required by law, and had created a situation of danger. If there were a single such identified deficiency, it would have to be proved beyond reasonable doubt. However, proof of such a fact might itself be a matter of inference from a number of circumstances, and if so, not all of those circumstances needed to be proved beyond a reasonable doubt^[1].
7. Therefore, the manner of driving that constitutes the actus reus of an offence under section 39(1) must be such as to create a real risk of causing physical injury to someone else who happens to be using the road or damage to property more substantial than the kind of minor damage that may be caused by an error of judgment in the course of parking one’s car.

The Decision Making Process

8. 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.
9. 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.
10. In this case the defendant has given evidence himself. The fact the defendant gave evidence does not change the onus or standard of proof.
11. 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.
12. 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.
13. 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.
14. 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.
15. In doing that, however, it is necessary for me to resolve some primary disputes over the facts.

Discussion

16. The charge specifically refers to the dangerous act being “reversing unto the main road”. Such an act is certainly dangerous when done in an area where it should not be done given the risk of causing an accident or damage to property. In saying that, it is accepted that it is not unlawful to reverse unto the main road in circumstances where it is permissible to do so.
17. There is no reason or cause for me to not believe the prosecution witnesses evidence specifically from Mateola Taulapapa and Kalaka Faalavaau Mamona. The defendant clearly from the evidence because of a call he received from his sister to pick her up, made an on the spot decision and decided to make an unplanned but immediate stop so that he could return eastward on Convent Street. I accept that the defendant turned not into the loading zone but in front of the adjoining gate as observed from the prosecution evidence that there was a truck already parked in the loading zone based on the photos in Exhibit P3 immediately after the accident.
18. To attempt to execute the act that the defendant did due to an urgency to turn back, by pulling unto the pedestrian walkway in front of a closed gate obstructing the outside lane and then reversing unto the main road without himself being more patient and checking for oncoming vehicles instead of relying on his passengers as look out was at law dangerous. It created a real risk of causing physical injury to someone else who happens to be using the road or substantial damage to property.
19. Even if I were to accept the defendant’s version that he was already on the main road across the inside lane before the Attorney General’s van arrived, a competent and experienced driver would not expect the driver who has the right of way to give way to a dangerous reverse. But that was not the case for I accept that the defendant reversed unto the Attorney General’s van as it was in passing otherwise they could have taken evasive action to avoid the accident.

Conclusion

20. I conclude that the standard of the defendant’s driving had fallen below what was requisite, and had created a situation of danger. It was dangerous as to the manner or situation created by the driver and not by any of the other parties involved.
21. Given the conclusion I have arrived at, there is no need to discuss the alternative careless driving charge and I therefore dismiss that charge.
22. This is matter is adjourned for sentencing.
    

MATA’UTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE

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^[1] G v Police — [2006] DCR 346