Police v Sinclair [2024] WSSC 67 (5 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Sinclair [2024] WSSC 67 (05 August 2024)

Case name:	Police v Sinclair
Citation:	[2024] WSSC 67
Decision date:	05 August 2024
Parties:	POLICE (Informant) v EDWIN SINCLAIR, male of Vaivase (Accused)
Hearing date(s):	27th, 28th, 29th May 2024 14th June 2024 (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:	The charge of negligent driving causing death has been proven beyond a reasonable doubt.
Representation:	J Leung-Wai for Prosecution T Leavai for the Accused
Catchwords:	Negligent driving causing death
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A(1); 39A(3).
Cases cited:	Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953; Fuimaono S. Lautasi -v- Police, unreported Supreme Court decision 15.5.1998, Bisson J; 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:

EDWIN SINCLAIR, male of Vaivase

Accused

Counsel: J Leung Wai for Prosecution
T Leavai for Accused

Hearing: 27^th, 28^th and 29^th May 2024.
14^th June 2024 (Closings submissions)

Judgment: 5^th August 2024

RESERVED JUDGMENT

The Charge

1. Edwin Sinclair is charged that at Vailoa Faleata on the 29^th September 2022, he was the driver of Toyota Hilux registration 32835 who negligently drove that vehicle on Vaitele Street causing the death of two year old Emmanuel Sani Tokuma.

Background

2. In the early evening of the 29^th September 2022, Edwin drove a blue Toyota Hilux truck from Vaitele to Apia on Vaitele Street. It is alleged that at Vailoa Faleata, he struck two-year-old Emmanuel Sani Tokuma between approximately 5pm and 6pm.
3. Emmanuel had been with his two aunties, Imelda and Matilda Tokuma. They had gone to the Best Buy Store. When they came out of Best Buy, Imelda went back in to the shop to buy a ‘pepa keke’ for Emmanuel. In Imelda’s evidence, she told Matilda for her and Emmanuel to wait for her next door at the ‘Ah Ching’ Building. The Ah Ching Building is towards Faleolo Aiport and Best Buy towards Apia on Vaitele Street. Both the Best Buy Store and Ah Ching Building are adjacent to Vaitele Street.
4. When Imelda came out of Best Buy, Matilda and Emmanuel were outside of the Ah Ching Building. In her evidence, Matilda said Emmanuel saw Imelda, cried for her so she placed Emmanuel down. He ran to Imelda, stopped facing the road and was then struck by a blue pick-up. Tragically, Emmanuel later died at approximately 9.00pm that evening.^[1]

The law

5. The charge against Edwin is brought pursuant to section 39A(1) and 39A(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...”
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) Edwin was the driver of Hilux registration number 32835 on Vaitele Street on 29^th September 2022;
   • (2) he drove the vehicle 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 Emmanuel.
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 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.”

The onus of proof

8. The onus of proof is on the prosecution to prove each element of the charge beyond a reasonable doubt. There is no contest in terms of the first element that Edwin was the driver of the Hilux and the Hilux struck Emmanuel. The issues for my determination are whether prosecution has proven beyond a reasonable doubt that (a) Edwin drove the Hilux negligently and (b) that negligence caused Emmanuel’s death.

Discussion

9. The prosecution case is that Edwin was negligent in that he was speeding while on his phone and swerved from the outside lane of Vaitele Street crossing into the lined section of the roadside used by pedestrians and where Emmanuel was standing striking and killing him. This area is seen as the crossed white lines in photo 1 of exhibit P3 (“roadside”).
10. Edwin does not dispute that he drove the Hilux and that he struck Emmanuel killing him. ^[2] He also, quite rightly, accepts that he owed a duty of care to Emmanuel who was a roadside pedestrian.^[3] However, Edwin denies that he was negligent.^[4] He wasn’t speeding, was not on his phone and his car did not veer off the road onto the roadside where Emmanuel was.
11. On the evening of 29^th September 2022, 68 year old Edwin had finished work and was driving through Vailoa to his home at Vaivase. Waiting at a T-intersection to enter Vaitele Street and then following behind Edwin going to Apia in his taxi was Don Williams with 2 passengers. Don’s evidence, which I accept, describing generally the traffic conditions were that the weather was clear and the traffic was busy^[5] but not that busy yet.^[6] As a taxi driver with some 20 years taxi driving experience, I found his evidence of the traffic conditions to be reliable.
12. Although the traffic conditions were busy, but not that busy yet as this incident occurred at the end of the working day, I also accept what Imelda said about the traffic when Emmanuel was put down:^[7]
    • “So when I came out of the shop o le taimi tonu a lena o lae faatali mai pea Matilda i luma i le falemai clinic lea a le Salote ma si’i Emanuel taimi tonu foi lena o lae gaogao taavale e le o pisi luma i le auala.”
13. Imela’s evidence is consistent with Don’s evidence as he was at the T intersection waiting to enter Vaitele Street to go towards Apia that “there were a couple of cars passing by and two cars ahead and I’ve seen a back car, it was a blue truck coming on the far end of the outside lane of the traffic going opposite to Apia.”^[8] Imelda’s evidence is also consistent with Edwin’s evidence of the traffic at the location where he struck Emmanuel. Although Edwin could not at first recall, he then subsequently said that no car were in front of him immediately prior to hearing the noise which he a short-time later realized was him striking Emanuel.^[9] I also accept Imelda’s evidence that a taxi had been in front of Edwin then changed lanes in or around the area she marked “B1” in photo 1 exhibit P3.^[10]
14. I also accept Matilda and Imelda’s evidence that they had been to Best Buy and when they came out, Imelda returned to buy a ‘pepa keke’ for Emmanuel. Imelda returned inside the shop and Matilda and Emmanuel went next door to the Ah Ching Building to wait for her. When Imelda came out of the Best Buy shop, Matilda and Emmanuel were in the roadside area in front of the Ah Ching Building, off the main road. Imelda said that this was in front of Salote’s Clinic. Although there are some minor variations in Matilda and Imelda’s evidence as to where exactly they were when Matilda put Emmanuel down, their evidence is clear and which I accept that Matilda and Emmanuel were on the roadside and off Vaitele Street when Matilda put Emmanuel down.
15. A key fact in dispute is what did Emmanuel do once he was put down by Matilda and where did he go. In particular, when Emmanuel was struck by the Hilux, was Emmanuel still on the roadside used by pedestrians or had he strayed on to the road itself.
16. In her evidence, Matilda marked photograph 2 of exhibit P1 with:
    • A1 where she was when she put Emmanuel down;
    • A2 where Imelda was when she put Emmanuel down;
    • A3^[11] (between A1 and A2) where Emmanuel ran to and then stopped and faced the road. In her evidence, she said that:
      • “Taimi lea ua faasaga atu ai Emanuel ae suki loa e le taavale ae o le taimi tonu foi lena na ou tilotilo atu ai i le alu a Emanuel o la na masau tele le taavale.”^[12]
17. Under cross- examination, Matilda then gave the following evidence:^[13]
    • “DC: E sa’o la pe a ou fai atu ona o lea ua e faasinoa mai le mea na fiki ai le tino osi mea ina ua tupu le faalavelave, e fesootai loa le taavale ma le tino o Emanuelu ua i luga o ia i le auala tele, o le sa’o lea?
    • Wit: O lea lava.
    • DC: Thank you Your Honour no further questions.”
18. Matilda also then in responding to questions from the Court said, without marking photograph 2 of exhibit P1, that when Emmanuel was struck, he was to the left of the line.
19. In her evidence, Imelda described their locations with reference to photograph 5 of exhibit P3. Imelda marked photograph 5 with:
    • B2 where she was when she saw Matilda and Emmanuel;
    • B3 Matilda was when she placed Emmanuel down;
    • B4 where Emmanuel went to and stopped before being struck; and
    • B5 where Imelda picked Emmanuel up from after being struck.
20. Although as I said there is some discrepancy between Matilda and Imelda’s evidence as to their precise locations, that is to be expected given the lapse of time, the serious nature of the incident, events occurring quickly and the circumstances in which they found themselves in that evening. However, I accept Imelda’s evidence which is consistent with Matilda’s evidence in chief that when Emmanuel was struck, he had run towards Imelda. He then stopped and was then struck by the Hilux driven by Edwin on the roadside and while Emmanuel was off the main road. Although Matilda’s evidence was shaken in cross-examination, her evidence in chief together with Imelda’s evidence as to where Emmanuel was when he was struck by Edwin is supported by Don’s evidence, an independent witness who marked “C3” on exhibit P3 photograph 5 where he said was the area Emannuel was struck. It is also generally consistent with the evidence of Tinomalu Selesele who was a passenger in Donald’s taxi who was sitting behind Donald. She explained:^[14]
    • “Ae na ou iloa atu teine e toalua ma le tamaititi Emanuel ae e le’i oso i totonu i le auala taavale na savavali lava i tua i le auala na savavali i le mea lea e savavali ai tagata. Na muamua mai i luma le tamaititi. I le taimi na omiomi ai le telefoni a si tamā lea ae na o le misi a o lana vaai ma luma o le taavale, e le’i ova tele i tua le alu o lana taavale ae lavea ai le tamaititi.”
21. Edwin’s evidence however was that he did not stray off the road striking Emmanuel. He said that his car drove straight and did not swerve. He explained that as he was driving on the left kerbside lane eastwards to Apia:^[15]
    • “Wit: Ona o’o atu lea i le mea lea na tulai ai le faalavelave ua ou te’i i le pa’ōo le itu agavale. O le itu taumatau e ave ai le taavale ae o le itu agavale i lalo o le faitotoa ua ou te’i i le pa’ō.”
22. Edwin’s evidence is that he was driving at between 35 - 40 kilometers per hour and that Emmannuel “bumped in to the left door of my car.”^[16]
23. He did not see Emmanuel or any people on the side of the road:^[17]
    • “Wit: E leai ma se isi. I la’u vaai agai i luma ma le alu a le taavale e leai se mea o le a ou vaavaai ai fua i autafa. Afai sa iai se tagata oute le’i vaai iai.”
24. In cross-examination, Edwin reiterated the point again stating:^[18]
    • “Wit: I did not see them before the accident. I did not see anybody there especially on the left side where the accident took place. I didn’t see anybody.”
25. I do not accept Edwin’s evidence that he drove straight and did not stray off the road onto the section used by Imelda, Matilda and Emmanuel that evening. His evidence of how he drove immediately prior to the accident seemed contrived. Although Edwin through counsel accepts that he owed Emannuel a duty of care as a pedestrian, he did not even see Imelda, Matilda or Emmanuel on the roadside section adjacent to the road lanes that evening as he drove along, all of whom should have been patently clear to him to see. This is despite Imelda, Matilda and Emmanuel being seen by Don and Tinomalu who were in a taxi following from behind Edwin. I am satisfied that Edwin was not paying attention to his driving nor proper attention to the road and the roadside for had he been doing so, he would have seen Imelda, Matilda and Emmanuel on the side of the road. Not paying proper attention to his driving nor the roadside, he then strayed into where Emmanuel was on the roadside and struck him. In doing so, he was driving the Hilux negligently, failing to take reasonable care in all the circumstances.
26. For completeness and in the event of any uncertainty as to my findings, I find that when Emmanuel ran and then stopped, he looked towards the road but did not stray on to the road itself. He was then struck by the Hilux.
27. Although I accept that Edwin had strayed into the left roadside striking Emmanuel, I am not satisfied that he was speeding or on the phone. The evidence as to Edwin’s speed (“masau” and “saoasaoa”) given by Matilda and Imelda was based on momentary and brief observations and does not by itself establish that Edwin was driving above 35 miles per hour. Similarly, Don’s evidence that Edwin was driving at between 35 and 40 miles per hour are approximations from his general observations over a short period and also do not establish to my satisfaction that Edwin was speeding.
28. While there is evidence that Edwin was on the phone immediately prior to the accident given by Tinomalu which might explain why Edwin veered off the road striking Emmanuel, I also cannot at all be sure of this. Tinomalu was seated in the back seat behind Don. In her evidence, Tinomalu said:^[19]
    • “Sa sau le matou taxi a lae sau o ia i matou autafa na matou omai faatasi a tu i molī. I lo’u iloa i le mea sa ou vaai ai na omiomi lana telefoni ma ave le taavale. Na tilotilo i luma ma omiomi lana telefoni ma ave lana taavale. I know e le’i expect e gaia se mea e tupu – o se mea e tupu e le tatau foi ona tupu.”
29. The evidence suggests that from the T intersection in which Don’s taxi entered Vaitele Street to the point of the accident, there are no traffic lights. Further, when Tinomalu gave her statement to Police, she made no mention of having observed Edwin on the phone. The evidence is unreliable and I am far from satisfied that Edwin had been on the phone immediately prior to the accident.
30. For the reasons given, I am satisfied beyond reasonable doubt that:
    • Edwin was the driver of Hilux registration number 32835 on Vaitele Street on 29^th September 2022; he drove the vehicle negligently. That is to say that he failed to take reasonable care in all the circumstances by straying off the road and striking Emmanuel; and as a result of his negligent driving, death was thereby caused to Emmanuel.

Result

31. The charge of negligent driving causing death has been proven beyond a reasonable doubt.

JUSTICE CLARKE

---

^[1] Exhibit P7.
^[2] Submissions for the Defendant, paragraph 8.
^[3] Submissions for the Defendant, paragraph 8.
^[4] Submissions for the Defendant, paragraph 8.
^[5] NOE 27/05/2024 at p. 33.
^[6] NOE 27/05/2024 at pp 44 – 45.
^[7] NOE 27/05/2024 at p. 14.
^[8] NOE 27/05/2024 at p. 33.
^[9] NOE 27/05/2024 at pp. 6 - 7.
^[10] NOE 27/05/2024 at p. 16. The transcript erroneously refers to the marking as “P1”.
^[11] “A3” was faintly marked by the witness on exhibit P1 photograph 2. “A3” marked by the witness is immediately below and to the right of “D4”.
^[12] NOE, 27/05/2024 at p. 4. See also evidence NOE, 27/05/2024 at p.6.
^[13] NOE, 27/05/2024 at p. 8.
^[14] NOE, 28/05/2024 at p.2.
^[15] NOE 29 May 2024 at p. 4.
^[16] NOE 29/05/2024 at p 5, p. 15.
^[17] NOE 29/05/24 at p. 6.
^[18] NOE 29/05/24 at p. 11.
^[19] NOE 28/05/2024 at p.2.