Police v Tauafao [2024] WSSC 63 (1 July 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tauafao [2024] WSSC 63 (01 July 2024)

Case name:	Police v Tauafao
Citation:	[2024] WSSC 63
Decision date:	01 July 2024
Parties:	POLICE (Informant) v GAFA SIONA TAUAFAO, male of Malie (Accused)
Hearing date(s):	7th, 8th & 9th May 2024 10th June (Closing submissions)
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Accordingly, the charge of negligent driving causing death has been proven beyond a reasonable doubt.
Representation:	MT. Fesili for Prosecution C. Seiuli for Accused
Catchwords:	Negligent driving causing death – failing to stop – driving an unregistered vehicle.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A(1) and (3).
Cases cited:	Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953; Police v Chan Sau [2013] WSDC 5 (21 June 2013); Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

GAFA SIONA TAUAFAO, male of Malie

Accused

Counsel: MT. Fesili for Prosecution

C. Seiuli for Accused

Hearing: 7^th, 8^th and 9^th May 2024.

10^th June 2024 (Closing Submissions)
Judgment: 1 July 2024

RESERVED JUDGMENT

The Charge

1. Gafa Tauafao has pleaded not guilty to negligent driving causing death. He has pleaded guilty to failing to stop top and ascertain whether he has injured a person and driving an unregistered vehicle.

Background

2. On the morning of Sunday 24^th September 2023, Gafa and Talalupelele Leung Wai (“Tala”) were at Gafa’s home at Malie. Tala had felt unwell so Gafa suggested they go for a drive. Gafa and Tala went to Gafa’s Hyundai Getz registration number 22961 and left Malie driving towards Apia on the West-Coast road. Gafa was the driver and Tala a passenger in the front left passenger seat.
3. At approximately 4.50am that morning, a car described as either a Voxy or Noah travelling in the opposite direction from Apia parked on the median strip at Vailoa facing Vaitele, marked E2 on photo 3 exhibit P1. A Chinese female (“the deceased”) came out of the passenger side of this car, walked towards the rear and crossed the West Coast road. She crossed walking towards where Toli Peti was at her fish stand with Norman Williams and 2 others selling her fish. The table was on the tar-sealed road reserve on the seaward side of the West Coast road, E1 photograph 3. As the deceased crossed the road, she was struck by a car heading towards Apia.
4. There is no dispute that the deceased was Zhang Dong Mei and that she was struck by the Hyndai Getz driven by Gafa.

The law

5. The charge against Gafa is brought pursuant to section 39A(1) and (3) of the Road Traffic Ordinance 1960 which provides:
   • (1) A person must not drive or ride a vehicle on a road in a negligent or reckless manner.
   • ...
   • (3) A person who contravenes subsection (1) and by that act causes the death of any person: (a) commits an offence and is liable upon conviction to imprisonment for a term not exceeding ten (10) years or to a fine not exceeding 250 penalty units; and (b) the court must order the person to be disqualified from holding or obtaining a driver licence for one (1) year or more.”
6. The elements of the charge that prosecution must prove beyond a reasonable doubt are that (see for instance: Police v Chan Sau [2013] WSDC 5 (21 June 2013):
   • (1) Gafa was the driver of the Hyundai Getz on 24^th September 2023;
   • (2) he drove the Getz negligently. That is to say that he failed to take reasonable care in all the circumstances (See Fuimaono S. Lautasi -v- Police, unreported Supreme Court decision 15.5.1998, Bisson J at 7); and
   • (3) as a result of his negligent driving, death was thereby caused to Zhang Dong Mei.
7. In Police v Fata Maulolo Tavita (unreported, District Court, 29 April 2011), his Honour Judge Vaepule Va’ai stated in terms of negligent driving that the issue is whether the defendant breached the standard of care expected of a reasonable driver in the circumstances. Overseas authorities have also defined ‘negligent driving in a similar way. In Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953 cited with approval by Her Honour Judge Tuala-Warren in Police v Yvette Kerslake (unreported, District Court, 11 April 2014), His Honour Johnson J in terms of negligent driving causing death said at [27]:
   • “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 of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.”
8. To establish the third element of causing death, it is not necessary to show that Gafa’s driving was the cause or the substantive effective cause of death. It is enough to show it was a cause of the accident.^[1] In Lewis v Police, Greig J described causation as follows, in terms of an accident involving two vehicles:^[2]
   • “In my view the true position is that in the charge which the appellant faced it is not necessary to show that his dangerous driving was the cause or the substantial or effective cause. It is enough to show that it is a cause of the accident or in this case death arising from the accident and the fact that the driver of the deceased’s car may have also been negligent or in breach of his statutory obligations does not avail the appellant unless that is shown to be the sole or effective cause of the accident.”
9. Gafa concedes element (1). The questions are whether (a) he drove the Getz negligently; and (b) as a result, he caused the death of Zhang Dong Mei.

The onus of proof

10. The onus of proof is on the prosecution to prove each element of the charges beyond a reasonable doubt.

Discussion

11. In the pre-dawn morning of Sunday 24^th September last year as Gafa and Tala drove towards Apia from Malie, there was only light traffic. Tala explained that there weren’t many cars on the road and they only began to see cars around Vaitele.^[3] As they reached Vaiusu where the West Coast road has four lanes (two in each direction), they were behind a taxi. Both cars were in the inner lane as they got to the speed hump. Gafa and Tala continued but as they passed the Catholic Church at Vaiusu, they moved to the outside lane to pass the taxi. As they did so, Tala said she could see from “afar” that a person had crossed into the outer lane. She explained:
    • “As we got on to the outer lane, I’ve seen from afar that someone had crossed going towards the outer lane. And as we were driving I’ve seen a lady crossed onto our lane got into – she’ll be in the middle and it happened like a second she had turn and moved into the lane that our car was on and – everything happened fast. So Gafa had swerved. He tried to avoid hitting her but it was a bit late. At the time I knew he hit the brakes because I had fallen forward onto my seatbelt. Everything was a last-minute reaction kind of and unfortunately had hit her and she had fallen on to my side.”
12. Petelo Alosio, the taxi driver that Gafa passed gave a similar account. He said that shortly after passing the speed hump and Catholic Church at Vaiusu, he was passed by the Getz.^[4] Although it was dark on the road, he could see clearly from the car headlights. He first saw the Chinese pedestrian crossing the road shortly after passing the Catholic Church before the fale komiti a tina.^[5] She was then struck by the Getz. He said she had been near where you buy the fish but was struck in the gap between the two lanes, the “inner” and “outer” lanes.^[6]
13. Although Tala said that it didn’t seem like Gafa was speeding,^[7] this is inconsistent with the other evidence. In his evidence, Petelo described his speed as between 30 – 35 miles per hour and the speed of the Getz as “Saoasaoa tele le taavale”, travelling at between 50 – 60 miles per hour.^[8] Norman Williams who was standing by the fish seller’s table facing the airport described the cars as racing. His evidence was that:
    • “...Ou tu loa iina ae ou vaai atu ua tu le taavale le van uliuli lena ou vaai atu loa ua la’a mai i fafo le teine Saina ae ou vaai atu loa o miliga lae fai mai. I le o a taavale o la ua mili tusa o lae o le a oo mai a le teine Saina i le laulau ou faapea la a’u o le a tu le teine Saina ae ou vaai atu e leai ua sau a le miliga lea omai taia loa ma le teine Saina lea. Na ou iloa o le pa’o leotele o le so’aina o le teine Saina ma le taape o mea o le taavale.” ^[9]
14. Similarly, Toli Peti spoke about the cars speeding, which she gathered from the sound of the car engines.
15. In all the circumstances, I am satisfied beyond a reasonable doubt that Gafa drove the car negligently, that is, he failed to take reasonable care in all the circumstances. In doing so, he caused the death of Zhang Dong Mei.
16. On the seaward side of the road marked D in photo 3 exhibit P1, the fish seller was selling fish with four of them there.^[10] That table was on the tar-sealed road reserve immediately next to the outer lane of the road where traffic passes. On the centre road reserve marked D2 in photograph 3 of exhibit P1, the deceased’s car was parked facing the airport, with some lights on. When the deceased exited her car from the front left passenger side, she walked to the rear and crossed the road. I accept the evidence that the deceased could be seen from “afar”. As Tala described, as their car got to the outer lane in the vicinity of the Catholic Church, Tala could see a lady from “afar” crossing the road on the outer lane, the lane they had moved to. This observation is supported by Petelo’s evidence who was driving the taxi being overtaken by Gafa. He observed the deceased from the area between the speed humps, Catholic Church and somewhere before the fale komiti a tina. As shown in the photos, the sketch plan exhibit P3 and the scene visit, there was ample distance from observing the deceased at this point on the road to allow slowing down to avoid striking her.
17. Although it is difficult to accurately determine the speed that Gafa was driving, I accept the evidence that Gafa was driving above the speed limit and in the prevailing circumstances on the road, at a high speed. He then also did not slow down despite the presence of the deceased’s car parked on the centre reserve, the fish seller’s table on the seaward road reserve with about four people there and a pedestrian on the road crossing towards the fish seller’s table, including onto the outer lane that Gafa himself was driving on. Had Gafa taken reasonable care and exercised the standard of care for other users of the road to be expected of the ordinary prudent driver in those circumstances, he would have observed the parked car, fisher’s table and the deceased crossing the road and slowed right down. He did not do so, continued at speed and only swerved and slowed down at the last moment after striking the pedestrian. In so doing, he drove the vehicle negligently.
18. Although I also accept the evidence that the deceased had been inattentive when crossing the road, it is patently clear to me that Gafa’s negligence was nevertheless a material cause of the accident causing Zhang Dong Mei’s death. This was an entirely avoidable road death.

Result

19. Accordingly, the charge of negligent driving causing death has been proven beyond a reasonable doubt.

JUSTICE CLARKE

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^[1] Becroft and Hall’s Transport Law (NZ) (online edition, Lexis Nexis) LTA36.5, “Causes”.
^[2] [1980] NZHC 329; (1980) 1 CRNZ 659 at p.7.
^[3] NOE, 08 May 2024 at p.9.
^[4] NOE 07/04/2024 at p. 48.
^[5] NOE 07/04/2024 at p. 53.
^[6] NOE 07/05/2024 at p. 55.
^[7] NOE 08/05/2024 at p. 18.
^[8] NOE 07/05/2024 at pp. 50 – 52.
^[9] NOE 07/04/2024 at p. 18.
^[10] Toli Peti, 07/04/2024 at p. 33.