Police v Solovi [2018] WSSC 51 (23 February 2018)

SUPREME COURT OF SAMOA
Police v Solovi [2018] WSSC 51

Case name:	Police v Solovi
Citation:	[2018] WSSC 51
Ruling date:	23 February 2018
Parties:	POLICE v MALAUULU SOLOVI male Saleaumua Aleipata.
Hearing date of Submissions:	7 February 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- For the foregoing reasons, I am not satisfied that the Prosecution has established that the applicable speed limit at the time of the accident was 15mph in accordance with regulation 109(2)(c)(iii) of the Road Traffic Regulations 1960 because it is not established that at the time of the incident, the deceased constituted a “congregations... leaving such ... church.” - This matter is adjourned for mention to Friday 2 March 2018 at 12.30pm for counsels to discuss this matter and to file and serve any further documents as may be appropriate.
Representation:	L Sio for prosecution D Kerslake for the Accused
Catchwords:	motor manslaughter,
Words and phrases:	applicable speed limit at the time of the accident, relevance of the speed limit,
Legislation cited:	Crimes Act 2013, Road Traffic Ordinance 1960, Road Traffic Regulations 1960.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MALAUULU SOLOVI male Saleaumua Aleipata.
Accused

Counsel:
L Sio for prosecution
D Kerslake for the Accused

Ruling: 23 February 2018

RULING

1. The accused has pleaded guilty to one charge commonly referred to as motor manslaughter contrary to sections 88, 92(2)(b), 102 and 108 of the Crimes Act 2013 and one charge of unlicensed driving contrary to sections 27(1) and 72A(2) of the Road Traffic Ordinance 1960.

The Facts:

2. The Summary of Facts accepted by the accused through counsel at paragraph 5 states:

“On even dates, the defendant was speeding from Lauli’i up to the point of impact where he was travelling at 50 – 60 miles per hour. The speed limit before any church is 15 miles per hour or 24 kilometres per hour pursuant to the Land Transport Authority National Road Code.” (“Code”)

3. Relevantly, the summary of the facts is that the deceased victim was the Church Minister for the village of Lauli’i. He was leaving his church at Lauli’i on Monday evening 10 April 2017 to go to his home on the opposite side of the road to the church. He had passed the centre line of the road when he was struck by a rental vehicle driven by the accused. In the accused VIR, he states the time as approximately 7pm. The deceased’s wife says that it was approximately 8.00pm. It is accepted by prosecution that when the victim left the church, he was not leaving a church service but returning from the church building to his home.

The Legal Issue:

4. When this matter proceeded to sentencing, prosecution was questioned by the Court whether the Code created the 15 mph speed limit alleged or whether speed limits are made by Regulation. Prosecution originally relied on the Code as creating the 15 mile per hour speed limit alleged to apply. The Code relevantly states at p. 15 sub-paragraph 2.18:

“15mph or 25 kph: When passing any school or church when pupils and churchgoers are entering or leaving.”

5. Due to this question and potential relevance of the speed limit to the plea to the charge of motor manslaughter, counsels were requested to make submissions on the applicable speed limit at Lauli’i at the time of the incident. In their submissions, prosecution accepts that speed limits are generally made by Regulation and referred to section 37 of the Road Traffic Ordinance 1960 (“the Ordinance”) which relevantly states:

“37. Speed limit – If a person drives a motor vehicle on a road at a speed greater than the speed prescribed by regulation, the person commits an offence:
...”

6. In terms of the applicable speed limit, prosecution relies on regulation 109(2) of the Road Traffic Regulations 1960 to establish the 15 mph or 24 kph. Regulation 109(2) relevantly states:

“(2) No person shall drive any motor vehicle in excess of the following speeds-

...

“c) Fifteen miles per hour-

(iii) when passing any ... church at a time when ... congregations are going to or leaving such ... church.”

7. Prosecution submits, ostensibly, that the victim constitutes a “congregations” for the purposes of the Regulations and that the 15mph speed limit applies no matter what the time is because the church is an open building to church members at any time. It is submitted that the speed limit is 15 mph at all times.
8. With respect to counsel for the prosecution, I do not agree with this submission on the interpretation of regulation 109(2)(c)(iii). First, ‘congregations’ is expressly drafted in the plural.
9. Secondly, if that was the intention of the regulations, why then was regulation 109(2)(c)(iii) not expressly drafted to state that, namely for example:

“c) Fifteen miles per hour-

(iii) when passing any ... church at any time.”

10. It must be that the regulation was expressly qualified to apply the 15mph only when passing a church building ‘at a time’ when congregations are going to or leaving such church.
11. Thirdly, in Words and Phrases Legally defined Third Edition, London Butterworths 1988 Vol: 1 A – C, it states:

“Congregation: ‘What is necessary to constitute a congregation has not been very strictly defined: but it has been commonly considered that ‘where two or three are gathered there together’ there is a sufficient number to constitute a congregation.’ Barnes v Shore (1846) 1 Rob Eccl 382 at 396, 397 per Sir Herbert Jenner Fust.

“It was contended that ...three ladies and one other person do not constitute a congregation. It is no doubt a small congregation, but I am unaware of any authority which makes a large multitude of person or persons essential to the constitution of a congregation.’ Re. Hutchinson’s Trusts [1914] 1 IR 271 at 282, 283 per O’Connor R.”

12. The Oxford Concise Dictionary of Current English, Seventh Edition (1982) defines a ‘congregation’ as follows:

“n. collection into a crowd or mass; assemblage; ...body assembled for religious worship or to hear preacher; body of persons regularly attending a particular church etc.,(RC Ch.), body of persons obeying a common religious rule...”

13. In the Merriam-Webster online dictionary, it also relevantly defines a congregation as:

“a : an assembly of persons : gathering; especially : an assembly of persons met for worship and religious instruction

b : a religious community: such as

(1) : an organized body of believers in a particular locality

• The pastor delivered a lengthy sermon to the congregation.

...

(3) : a group of monasteries forming an independent subdivision of an order

2 : the act or an instance of congregating or bringing together : the state of being congregated.”

14. In its ordinary meaning, a congregation cannot be constituted by a single person. A congregation requires a gathering of at least more than one person. Prosecution does not contend that the victim was leaving a church service nor, on what has been submitted or on the Summary of Facts, any gathering of members of the congregation of the church. On the facts set out, the requirements of regulation 109(2)(c)(iii) have not been satisfied such as to trigger the 15 mph speed limit to apply.

Result:

15. For the foregoing reasons, I am not satisfied that the Prosecution has established that the applicable speed limit at the time of the accident was 15mph in accordance with regulation 109(2)(c)(iii) of the Road Traffic Regulations 1960 because it is not established that at the time of the incident, the deceased constituted a “congregations... leaving such ... church.”
16. This matter is adjourned for mention to Friday 2 March 2018 at 12.30pm for counsels to discuss this matter and to file and serve any further documents as may be appropriate.
    

JUSTICE CLARKE