Kerslake v Attorney General [2014] WSSC 87 (23 December 2014)

SUPREME COURT OF SAMOA
Kerslake v Attorney General [2014] WSSC 87

Case name:	Kerslake v Attorney General
Citation:	[2014] WSSC 87
Decision date:	23 December 2014
Parties:	YVETTE KERSLAKE (applicant) v ATTORNEY GENERAL (respondent)
Hearing date(s):	26 November 2014
File number(s):	CA 08/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:	District Court
Order:	- Appeal is dismissed
Representation:	S Wulf for appellant R Titi and B Faafiti-Lo Tam for respondent
Catchwords:	appeal against conviction from the District Court - charge of negligent driving causing bodily injury - dangerous driving - convicted and fined $1,500 - appeal against a finding of fact made by a trial Judge on the basis of issues of credibility – erred in law and in fact-appellant was not driving with the degree of care expected of a reasonable and prudent driver in the circumstances that existed –
Words and phrases:	“defence” – “customary”
Legislation cited:	Road Traffic Ordinance 1960 (s.39A)
Cases cited:	Aiono v Police (HC Hamilton AP 3/99 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 Brownette v Purcell (1941) 58 WN (NSW) 68 Charnock v Tasmanian Police [2013] TASSC 14, Chen v Police [2011] NZHC 374 Clark Boyce v Mouat [1993] 3 NZLR 641 Dennis v Watt (1943) SR (NSW) 32 Kingi v Police [2012] NZHC 1308 Love v Police [2012] NZHC 2952 McCrone v Riding [1938] 1 A11 ER 157 Muaiava Ufiufi v Attorney General [2009] WSCA 13 Neale v Walsh [1932] SAStRp 56; [1932] SA St R 56; [1932] SASR 429, Nocturn v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932 Police v Pio [1999] WSSC 50R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 R v Owen [2008] 2 NLZR 37Rae v International R v Pegler [2003] NZCA 256 Rae v International Insurance Brokers Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 Readings v Police HC Auckland CRI Simpson v Peat [1952] 2 QB 24 Whiteford v Kubas UAB [2012] EWCA 1017 Wintulich v Lenthall [1932] SAStRp 8; [1932] SA St R 8; [1932] SASR 60;
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: CA 08/14

IN THE MATTER: of an appeal

BETWEEN

YVETTE KERSLAKE female of Saoluafata, Environmental Consultant
Appellant

A N D

ATTORNEY GENERAL
Respondent

Counsel:
S Wulf for appellant
R Titi and B Faafiti-Lo Tam for respondent

Hearing: 26 November 2014

Judgment: 23 December 2014

JUDGMENT OF SAPOLU CJ

Proceedings

1. This is an appeal against conviction from a decision of Judge Tuala-Warren delivered on 11 April 2014 in the District Court. The appellant stood trial on one charge of negligent driving causing bodily injury under s.39A of the Road Traffic Ordinance 1960 and on an alternative charge of dangerous driving under s.39 (1) of the same Ordinance. The charge of negligent driving causing bodily injury was found to have been proved by the prosecution beyond reasonable doubt and the appellant was convicted and fined $1,500 on that charge. It was therefore not necessary to come to a decision on the alternative charge of dangerous driving.

Grounds of appeal

2. The appellant’s grounds of appeal may be stated as follows:
   • (a) The Judge erred in law and in fact in believing the evidence of the key prosecution witness Maeli Atiae( Maeli) for these reasons:
     • (i) The witness Maeli had pleaded guilty to the charges of driving without a licence and dangerous driving and therefore had reason to give an untruthful account of what happened in order to push the blame onto the appellant as she was charged with the serious offence of negligent driving causing injuries thereby avoiding any further action being taken by the police against him; and
     • (ii) The Judge should also have considered that the witness Maeli fled the scene of the accident which shows that he had a guilty conscience that he caused the accident to happen.
   • (b) The Judge erred in fact in finding that the witness Maeli Atiae was not travelling in excess of 15mph when the damage to the appellant’s car as well as the car driven by Maeli confirms that the collision was at a speed of more than 15mph.
   • (c) The Judge erred in law and in fact in finding that the appellant was negligent when her car crossed the outside lane of the road to turn into the petrol station. The reasons given in support of this ground of appeal are:
     • (i) There is no law against the action taken by the appellant;
     • (ii) The appellant’s car was already on the outside lane and heading into the petrol station when it was hit from behind by the car driven by Maeli;
     • (iii) The appellant did not take proper care to check the outside lane of the road before crossing it;’
     • (iv) The car driven by Maeli failed to stop to avoid the collision with the appellant’s car which proves that Maeli’s car was travelling at high speed.
3. The first ground of appeal relates to the issue of credibility. It challenges the conclusion reached by the Judge to believe the evidence of the prosecution witness Maeli. The second ground of appeal relates to the finding of fact by the Judge that the car driven by Maeli was not travelling in excess of 15 mph. And the third ground of appeal raises the following issues:
   • (a) whether the decision of the Judge is unreasonable, because having regard to all the evidence, the Judge could not reasonably have been satisfied that the charge of negligent driving causing injuries had been proved beyond reasonable doubt,
   • (b) whether the finding of fact by the Judge that the appellant failed to keep a proper look out in the circumstances is correct, and
   • (c) whether the finding of fact by the Judge that Maeli’s car was not travelling in excess of 15mph is correct.

The relevant law

(a) The approach in Rae v International Insurance Brokers (Nelson Marlborough) Ltd in an appeal against a finding of fact generally.

4. The approach to be applied by an appellate Court in an appeal against a finding of fact by the trial Judge was discussed by the New Zealand Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 where Tipping J in delivering the judgment of himself and Richardson P said at p.195:
   • “While not purporting to set out an exhaustive test, there are two conventional circumstances in which an appellate Court may differ from the trial Judge on a matter of fact. They are: (a) if the conclusion reached was not open on the evidence, ie where there was no evidence to support it, and (b) if the appellate Court is satisfied the trial Judge was plainly wrong in the conclusion reached”.
5. The issue was discussed more broadly by Thomas J who said at pp. 198-199:
   • “The principle that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances is so well established it does not require citation of authority. For present purposes Viscount Haldane LC’s dictum will suffice. In Nocturn v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932 at p. 957, the learned Law Lord said:
     • ‘“...it is only in exceptional circumstances that Judges of appeal, who have not seen the witnesses in the box, ought to differ from the finding of fact of the Judge who tried the case as to the state of mind of the witness’.
   • “See further, and by way of example, the decision of the Privy Council in Clark Boyce v Mouat [1993] 3 NZLR 641 per Lord Jauncey at p. 647, preferring the conclusions of the trial Judge rather than the conclusions drawn by the majority in this Court. More recently, the Board, in Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 at pp. 138-139, reiterated that an appellate Court should not reverse the decision of a trial Judge on a question of fact unless that decision is shown to be wrong. Notwithstanding that it may have been a decision which could have gone either way, at first instance, it cannot be reversed if it was one which the trial Judge was ‘entitled to reach.’

• ...
  • It may not be fully appreciated that the deference of an appellate Court to the finding of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives firsthand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.
  • An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to ‘second guess’ a trial Judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge’s findings of fact are therefore regarded as imperative”.

(b) Appeal against a finding of fact made by a trial Judge based on issues of credibility

6. In respect of an appeal against a finding of fact made by a trial Judge on the basis of issues of credibility, the approach adopted by the New Zealand Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 was stated by Elias CJ at p.150, [13], is in these terms:
   • “The appeal Court must be persuaded that the decision is wrong, but in reaching that view no ‘deference’ is required beyond the ‘customary’ caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial Judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at p.197 per Richardson P and Tipping J and at p.199 per Thomas J and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC)”.
7. In Hurst v New Zealand Police [2008] NZHC 1723 which was concerned with an appeal against conviction and sentence from the New Zealand District Court to the New Zealand High Court, Venning J after referring to the above passage from the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141, 150 at [13], said at [26]”
   • “The Supreme Court recognised in that passage that where issues of credibility were involved the Judge at first instance hearing the evidence does have advantages over an appellate Court”
8. Again in Kingi v Police [2012] NZHC 1308 which was concerned with an appeal against conviction and sentence from the New Zealand District Court to the New Zealand High Court, Clifford J said at [12]:
   • “In Austin, Nichols & Co Inc v Stichting Lodester [2007] NZSC 103; [2008] 2 NZLR 141, 150, the Supreme Court acknowledge that trial Courts may have a distinct advantage over appellate Courts when it comes to issues of credibility. The trial Court will have seen and heard the witnesses. I think Judge Behrens clearly had an advantage in this instance, and therefore I think it is appropriate that I hesitate before reaching a different decision on credibility than he did.”

The current approach in New Zealand

9. The current approach applied in New Zealand by an appellate Court on an appeal in relation to findings of fact, issues of credibility, and whether a verdict by a jury is unreasonable, was comprehensively canvassed by the Court of Appeal in R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 which was concerned with an appeal against conviction from a verdict of a jury in the District Court. The decision in R v Munro was later explained and endorsed by the Supreme Court in R v Owen [2008] 2 NLZR 37 at p. 43 – 44, [13], in these terms:
   • “We return to the discussion of the Court of Appeal in R v Munro [2007] NZCA 510; [2008] 2 NZLR 87. We propose to discuss the main judgment in that case only to the extent necessary for present purposes. We would endorse the following aspects of the decision in Munro:
     • (a) The appellate Court is performing a review function, not substituting its own view of the evidence.
     • (b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate Court. Assessment of honesty and reliability of the witnesses is a classic example.
     • (c) The weight to be given to individual pieces of evidence is essentially a jury function.
     • (d) Reasonable minds may disagree on matters of fact.
     • (e) Under our judicial system the body charged with finding the facts is the jury. Appellate Courts should not lightly interfere in this area.
     • (f) An appellant who invokes s.385 (1) (a) must recognise that the appellate Court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.”
10. Further at [17], the Court stated the approach to the question of whether the verdict of the jury is unreasonable in these terms:
    • “[A] verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.”
11. In Muaiava Ufiufi v Attorney General [2009] WSCA 13, at 2, which was concerned with an appeal against conviction from a verdict of assessors in a rape trial in the Supreme Court, our Court of Appeal adopted the approach stated in Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 at [17] by saying:
    • “The issue is whether the verdicts are unreasonable because, having regard to all the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt that the appellant was guilty: Owen v R [2007] NZSC 102; [2008] 2 NZLR 37 (SC) at [17].”
12. The R v Munro and R v Owen decisions were concerned with verdicts by juries and not with a decision by a Judge sitting alone. However, I do not see any valid reason for not applying the same approach enunciated in those two cases to an appellate Court hearing an appeal from a trial Judge sitting alone. In fact, in Xu v Mayes [2014] NZHC 349 which was concerned with an appeal to the New Zealand High Court against a restraining order granted by a Judge of the New Zealand District Court, Toogood J in the High Court said at [37] – [38]:
    • “[37] Applying the approach described by the Supreme Court in Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13], the appellant must persuade this Court that the decision below was wrong. I am not required to defer to the District Court Judge’s views but ‘customary’ caution is appropriate when the facts found by the trial Judge turn on issues of credibility: Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 197 per Richardson P and Tipping J and 199 per Thomas J.
    • [38] Because the issue of credibility is central to this appeal, I bear in mind also the following principles contained in the Court of Appeal’s decision in R v Munro [2007] NZCA 102, [2008] 2 NZLR 87 (albeit in the context of an appeal from a criminal conviction in a jury trial), which were endorsed by the Supreme Court in R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13], modified for the circumstances of this appeal:

(a) An appellate Court is performing a review function, not substituting its own view of the evidence.

(b) An appellate review of the evidence must give appropriate weight to the advantages the District Court Judge may have had in assessing the honesty and reliability of the witnesses.

(c) It is essentially for the District Court Judge to determine the weight to be given to individual pieces of evidence.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system, the body charged with finding the facts in this case is the District Court. Appellate Courts should not lightly interfere in this area.

(f) An appellant who invokes a right to appeal under s.34 of the Act must recognise that this Court is not conducting a retrial on the written record. An appellant must articulate clearly and precisely in what respect or respects the decision appealed from is said to be unreasonable and why, after making proper allowance for the points made above, the decision should nevertheless be set aside.”

13. For present purposes, I have decided to adopt the approach in R v Munro as endorsed by R v Owen. At the same time, I bear in mind the principles stated in Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Austin, Nichols & Co Inc v Stichting Lodestar, as well as the adaptation of the Munro and Owen approach and principles in Xu v Mayes to an appeal from a decision of a District Court Judge.
14. I will now consider each of the three grounds of appeal.

First ground – The Judge erred in law and in fact in believing the evidence of the key prosecution witness Maeli Atiae

15. The issue here is clearly one of credibility, that is, whether the learned trial Judge erred in believing the evidence of the key prosecution witness Maeli. In her well - reasoned decision, the learned Judge says she is inclined to believe the evidence of the witness Maeli as the charges against him which were for dangerous driving and driving without a driver’s licence have been disposed. Therefore, Maeli has nothing to lose or gain by giving anything other than a truthful account of what happened in this case. Her Honour also says that it is entirely plausible that after the crash Maeli was concerned for his boss’s three children and therefore wanted to take them back to the hospital where they had just come from. Maeli would also have been scared about the fact that he did not have a driver’s licence. Her Honour also finds that Maeli was not driving in excess of 15mph at the time of the crash.
16. Counsel for the appellant submits that since the witness Maeli had already pleaded guilty to the two charges of dangerous driving and driving without a driver’s licence, the Judge should have been cautious in accepting his evidence. Counsel for the appellant also submits that Maeli should not have been believed as he had every reason not to tell the truth as he can still be charged with the more serious charge of negligent driving causing injury. He further submits that as Maeli is an unlicenced driver it is therefore most likely that he was not fully aware of the speed limits and road rules. Maeli also fled the scene of the accident and should have been charged with failure to stop when the accident occurred.
17. Maeli may or may not have been aware of the speed limits and road rules. There is no evidence in that regard. However, Maeli testified that he had been driving for five years. So it may be inferred that he has some knowledge of speed limits and road rules. But even if Maeli does not know the speed limits or road rules, it does not necessarily follow that he was not being truthful in his evidence. Some of the road traffic offenders who appear before the Courts are licensed drivers but they are not aware of the speed limits and road rules and are sometimes untruthful witnesses.
18. Having perused the Judge’s decision and notes of the evidence, I am of the respectful view that her conclusion to believe the evidence of the witness Maeli was one Her Honour was entitled to come to. The Judge had the advantage of hearing and seeing the witnesses in the stand and of assessing their reliability and credibility. It is also the District Court that is charged with finding the facts in this case and this Court in its appellate capacity should not lightly interfere in this area. I am not satisfied that the conclusion reached by the learned Judge has been shown to be wrong. In fact, I respectfully agree with it.
19. Furthermore, it is clear from the Judge’s decision that she found the evidence of the witness Maeli as to what occurred in this accident to be plausible and that of the appellant to be implausible. This must have encouraged the Judge to believe the witness Maeli and not the appellant.
20. In addition, to say that the witness Maeli should not have been believed as he had every reason not to tell the truth as he can still be charged with the more serious charge of negligent driving causing injury sounds speculative. That is because if the police from their investigation had seen fit to charge Maeli with the more serious charge of negligent driving causing injury, I am confident they would have done so. But the police have not done so. This incident also occurred on 24 May 2013 more than a year ago. But since that time the police have not filed any further charge of negligent driving causing bodily injury against Maeli. It is unlikely that the police would do so now.
21. I am also not convinced that because Maeli does not have a driver’s licence and therefore most likely not to be fully aware of the relevant speed limits and speed rules is of any significance. The real issue here is not whether Maeli is an unlicenced driver or whether he is aware of the relevant speed limits and road rules but whether the appellant was driving negligently.
22. In respect of the submission that the witness Maeli ‘fled’ the scene of the accident and should have been charged with failure to stop when the accident occurred, there is no evidence that Maeli ‘fled’ the scene of the accident. The evidence given by Maeli at trial is that he turned off the key of his car and slid the car down to just in front of the Anglican Church which is very close to where the accident had just occurred. He then flagged down a taxi and took the children of his boss who were inside the car back to the hospital where they had just come from as he was concerned whether the children were hurt. Maeli also testified that he was not aware that anyone had been injured by the appellant’s car. On that evidence, I am not satisfied that Maeli ‘fled’ the scene after the accident occurred. Perhaps, that is why the police did not charge Maeli with failure to stop after the accident.
23. For those reasons, the first ground of appeal is dismissed.

Second ground – The Judge erred in finding as a fact that the witness Maeli was not travelling in excess of 15mph at the time of the collision

24. This ground clearly relates to the finding of fact made by the learned Judge that Maeli’s car was travelling no faster than 15mph at the time of the accident. This is an area where an appellate Court should not lightly interfere. It is the District Court Judge that is charged with finding the facts in this case. It is also essentially for the District Court Judge to determine the weight to be given to individual pieces of evidence whether direct or circumstantial.
25. Maeli testified under cross-examination that he was driving at about 15mph at the time of the accident. When defence counsel put to Maeli that he was driving too fast, he replied no, it was the tucson driven by the appellant that was fast. When defence counsel again put to Maeli that he was going too fast, he again replied no, it was the tucson driven by the appellant that was going too fast and suddenly crossed in front of him and continued at that fast speed to the petrol station close by on the side of the road. Thus, there was evidence from Maeli to support the finding of fact made by the Judge that Maeli was driving no faster than 15mph at the time of the accident. This is, therefore, not a case where a finding of fact is made by a trial Judge without any evidence to support it. There is also no direct evidence from any witness to contradict the finding of fact made by the Judge. What the appellant is relying on is circumstantial evidence to contradict Maeli’s direct evidence. I turn now to circumstantial evidence.
26. In Police v Pio [1999] WSSC 50, Wilson J, in explaining what circumstantial evidence is, said:
    • “When I speak of circumstantial evidence, I mean generally, evidence from which the fact to be proven can be inferred. Circumstantial evidence, as distinct from direct evidence (such as the evidence of an eye witness), has been defined as ‘evidence of minor facts of such a nature that the mind is led by a process of reasoning, to the conviction that some other fact (the fact to be proved) may be inferred.’ Circumstantial evidence may be as strong as (in fact, it may be stronger than) direct evidence. It may be weak.
    • ...
    • If there is evidence of two, or three, or more independent facts all pointing to the same direction, that may be more reliable than the evidence of one witness, purporting to give direct testimony of what was said or done, who might be mistaken, or who might be forgetful, or who might be attempting to falsify evidence.
    • ...
    • When two, or three, or more facts independent of each other are proved and they point in the same direction, the coincidence between them is yet another fact of greater weight to establish an ultimate fact than the two or more independent facts considered separately.
    • A number of circumstances, each individually very slight, may so tally with (and confine) each other so as to leave no room for doubt of the fact they tend to establish. Of course, the strength of circumstantial evidence lies in the fact that there are a number of different things all pointing in the same direction.
    • The strength of circumstantial evidence lies in the number of circumstances which all point in the same direction and in the absence of any circumstance which points in the opposite direction. If one circumstance shows that what is alleged to be a fact cannot be (or is most unlikely to be) true, then, of course, the whole pattern is destroyed. As to the weight to be given to circumstantial evidence, that is a matter for the trier of the facts (in this instance, me). As I have said, the circumstantial evidence may be strong or it may be weak. That depends upon the circumstances of the particular case.”
27. The appellant points to the nature of the damage to her car and the damage to Maeli’s car as shown from the photographs taken by the police and seeks to draw the inference that Maeli must have been driving fast in excess of 15mph at the time of the accident. This is in conflict with the direct evidence given by Maeli that he was driving at about 15mph.
28. The evidence given by Maeli which the Judge believed is set out in para 17 of her decision. It says that on 24 May 2013 Maeli was on his way from the hospital in a rental car belonging to his boss. With Maeli in the car were his boss and her three children. They had been to see a doctor at the hospital and their car was on the outside lane travelling towards Apia. There was a tuscon on the inside lane travelling just ahead of their car. As soon as their car reached the raised pedestrian crossing at Leififi, the tuscon suddenly crossed his lane in front of his car, over the pedestrian crossing. Maeli tried to swerve to the right to avoid a collision but his car crashed into the back left side bumper of the tucson. The tuscon then continued towards the petrol station on the side of the road. Maeli did not see any indicator light from the tuscon to turn left.
29. The evidence given by the appellant is that when her car got close to the petrol station at Leififi she indicated, checked her mirrors, crossed the outside lane, which is the lane Maeli said he was travelling on, and turned left into the petrol station on the left side of the road. As the engine of her car was inside the drive way to the petrol station, her car was suddenly hit from behind. This pushed her car forward and it crashed into the petrol station seriously injuring the victim Avii Sauaso.
30. It was open to the Judge as trier of fact to prefer the evidence of Maeli as opposed to the evidence of the appellant. This is a matter within the province of the trial Judge. The Judge found the evidence of Maeli to be plausible and that of the appellant to be implausible. I accept this conclusion by the trial Judge.
31. From Maeli’s evidence, there was no time for him to stop or to slow down sufficiently in order to avoid a collision because of the suddenness with which the appellant’s car which was travelling on the inside lane crossed over on to his lane in front of his car without an indicator light when his car was close behind on the outside lane. In other words, when the collision occurred, Maeli’s car was still moving forward. There was no time to stop. The best he could do was to try and swerve his car to the right. But it was impossible to avoid a collision. Given the position the two cars were in at the time of the collision as related by Maeli, the Judge was entitled to accept Maeli’s evidence that his car hit the back left side bumper of the appellant’s tuscon and not the rear of the tuscon. In the circumstances, Maeli’s car could not have crashed into the rear of the tuscon. The appellant’s evidence that Maeli’s car crashed into the back of her car while its engine was inside the driveway to the petrol station is implausible given that the two cars were heading in the same direction. The damage shown from one of the police photographs on the rear of the tuscon must have resulted from the impact when Maeli’s car crashed into the back left side bumper of the tuscon. In those circumstances, the damage shown on the tuscon is weak circumstantial evidence from which to draw an inference that Maeli was driving fast in excess of 15mph. It was for the Judge to determine the weight to be given to the circumstantial evidence. Her Honour must have considered that it was insufficient to negate Maeli’s direct evidence that he was travelling at about 15mph. She was entitled to arrive at that conclusion. The second ground of appeal is therefore dismissed.

Third ground – The finding by the Judge that the appellant was negligent when her car crossed the outside lane of the road to turn into the petrol station was wrong in fact and in law.

32. The main ground of appeal is whether the finding by the Judge that the appellant was negligent when her car crossed the outside lane of the road to turn into the petrol station was wrong in fact and in law. This is the central issue in these proceedings. The first reason given in the notice of appeal in support of the third ground of appeal is that there is no law against the action taken by the appellant. With respect to counsel for the appellant, if the action taken by the appellant in crossing the outside lane of the road to turn into the petrol station on the side of the road amounted to negligent driving causing bodily injury to someone, then that is an offence under s.39A of the Road Traffic Ordinance 1960 and therefore contrary to law.
33. The other reasons given in support of this ground of appeal may be considered under the umbrella of whether the decision of the Judge was unreasonable. But before I move on to the evidence, I need to refer first to the test to be applied in negligent driving. In Chen v Police [2011] NZHC 374 which was concerned with an appeal against a conviction for careless driving from the New Zealand District Court, Andrews J in the New Zealand High Court said at [44]:
    • “The test for ‘carless use’ is whether the defendant was not ‘exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances: see Simpson v Peat [1952] 2 QB 24 at 27. It is an objective standard. In his judgment in Aiono v Police (HC Hamilton AP 3/99, March 1990 at 11), Penlington J referred to McCrone v Riding [1938] 1 A11 ER 157 in which Lord Hewart LCJ said at 158:
      • “The standard is an objective standard, impersonal and universal, fixed in relation to safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver”
34. In Love v Police [2012] NZHC 2952 at [22] – [23], Kos J in the High Court of New Zealand said:
    • “[22] Whether a person is driving carelessly is a matter of fact. As Lord Goddard CJ said in Simpson v Peat [1952] 2 QB 24;
      • “The question for the justices was, was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? If he was not, they should convict. If on the other hand the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver the case has not been proved’

“The standard is an objective one, not related to the individual driver’s degree of proficiency or experience. But that is not to say that the whole context is to be disregarded.

“[23] The Court is to consider the actions of the driver charged, not the lack of care of the other driver: Readings v Police HC Auckland CRI – 2006 – 404 – 00437, 26 April 2007. The fact that the truck driver may have had some culpability is not the appropriate focus in considering whether in fact the appellant was careless”

35. In R v Pegler [2003] NZCA 256, Baragwanath J in delivering the judgment of the New Zealand Court of Appeal appears to have accepted that the test to be applied in a case of careless driving is whether the defendant exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.
36. In the Tasmanian case of Charnock v Tasmanian Police [2013] TASSC 14, Pearce J, in summarising the authorities dealing with the law relating to the meaning of negligent driving, stated at para 23:
    • “In Robertson v Watts (1964) 14 Tas R 18, Crawford J considered negligent driving in Tasmania. He followed Wintulich v Lenthall [1932] SAStRp 8; [1932] SA St R 8; [1932] SASR 60; Neale v Walsh [1932] SAStRp 56; [1932] SA St R 56; [1932] SASR 429, Brownette v Purcell (1941) 58 WN (NSW) 68 and Dennis v Watt (1943) SR (NSW) 32 and concluded that the question to be determined is whether the defendant exercised the degree of care that a reasonable and prudent driver would exercise in the circumstances”.
37. In Whiteford v Kubas UAB [2012] EWCA 1017 which was concerned with a motor accident on a road, Richards LJ in the English Court of Appeal stated at para 21:
    • “I have well in mind the cautionary remarks of Laws LJ in Ahanonu that one must avoid a counsel of perfection and that the focus must be on the standard to be expected of a reasonable and prudent driver in the circumstances that existed at the time”
38. From the above authorities, the test I will apply in this appeal is whether the appellant was exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. This is an objective test.
39. Applying the said test to this appeal, I am satisfied on the evidence that the Judge accepted and was entitled to accept that the appellant was negligent in the way she was driving her car when she crossed the outside lane on the road to turn into the petrol station on the side of the road when there was a car just behind her on the outside lane travelling in the same direction. That clearly demonstrates that the appellant was not driving with the degree of care expected of a reasonable and prudent driver in the circumstances that existed. The appellant’s evidence that she looked at her mirrors but did not see any car behind her is evidence that the appellant was not driving with the degree of attention expected of a reasonable and prudent driver in the circumstances because Maeli’s car was in fact close behind her on the outside lane and the appellant should have seen Maeli’s car from her mirrors.
40. There is also evidence that was given by Maeli that the appellant’s car was travelling fast at the speed of about 20mph when it crossed the outside lane in front of his car to turn into the petrol station. The prosecution witness Ta Salu who works at the petrol station also testified in examination in chief that he saw the appellant’s car coming fast, really fast, towards the pump at the petrol station and crashed into the prosecution witness Avii Sauaso, a pump attendant, and then hit a pole of the petrol station causing it to bend. Under cross-examination, Ta Salu said the appellant’s car came into the petrol station very fast. Evidently, the Judge did not accept the suggestion from the appellant that it was Maeli’s car that crashed into the rear of her car causing it to move forward at speed and crashed into Avii. In the circumstances of what happened, I agree with the Judge.
41. As a result of the appellant’s car crashing into Avii, his left leg was amputated below the knee and steel plates were inserted in his right leg which was also badly injured.
42. For all of the forgoing reasons, I am in agreement with the decision reached by the trial Judge that the appellant was negligent when her car which was travelling on the inside lane of the road crossed the outside lane in front of Maeli’s car, which was travelling in the same direction, to turn into the petrol station. The decision was not unreasonable.

Result

43. The appeal is dismissed.
    

CHIEF JUSTICE