IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SETU TIELU
male of Magiagi and Sauano Fagaloa.
Defendant

Senior Sergeant Sapatu Pulepule for Police 
Fagaloa Tufuga for defendant

Date of Hearing: 13.02.2002
Date of Decision: 13.02.2002

ORAL DECISION OF JUDGE NELSON

Setu I have listened carefully to the evidence of the witnesses that have been called in this case. I have also listened carefully to the evidence that you gave and your explanation as well as to the evidence of the witnesses that your lawyer called.

There is no question in my mind that the BMW was speeding. That is clear from the evidence of Alualu Wendt who saw the vehicle just after the Vaisigano bridge and of Sonny Ah Kuoi who saw its skid marks on the road immediately after the accident.

But that is not the real question in this case Setu, it is not a case of whether or not the BMW was speeding. The issue in this case is whether you should be convicted of careless driving and in this regard, certain things are also clear from the evidence.

Firstly, it is clear that you were in my view being quite honest and truthful when you gave your evidence. You were trying to turn right into Funway Rentals to go and see your engineer. I do not accept the suggestion that you were trying to make a u-turn. I believe the evidence supports more what you said as being correct, that you were trying to turn into Funway Rentals and that you were in your lane near the centre line of the road preparing to turn. And as you said, you waited for an oncoming car to go past and when that car went past you then looked at the road in front of you and you saw that it was clear, there was no other vehicle coming. I also accept what you said that you had a clear view of about 100 meters in front of you being from Funway Rentals to about the entrance of Margritays or what was once the Margritays night club – and you saw that there was no oncoming vehicle. But then you said in your evidence, that what you then did was, you checked your side mirror for traffic from behind. You said that you did that because sometimes vehicles behind you try to cut in front of your vehicle,

I must say that this is an unusual thing to do, that drivers would not normally do that – check oncoming cars and then cars coming from the back. But I accept you were telling the truth. And what happened next I think is the most important part. Because you then said, and you demonstrated the actions in giving your evidence, that after you looked in your side mirror to check vehicles from behind, you then turned. It was at that time that the accident occurred. Now that part is important Setu because it is clear from what you said that after you checked the traffic behind you, you did not again check the traffic in front of you. That is important because it is your primary legal duty when you are making a turn across the main road, that it is your duty for you to check oncoming vehicles before turning. For the common sense reason that it is a lane of oncoming traffic that you are crossing over. I believe that if you had looked up again for oncoming traffic you would have seen this speeding vehicle. Because like you said Setu, you had 100 meters of clear road between you and the bend in front of Magritay’s where this vehicle was coming from.

I believe that this accident was caused because of your misjudgment and an error by you. And I also believe that the speed of the oncoming vehicle was a contributing cause of this accident but it was not the main cause.

I have noted that these conclusions are consistent with your admission to the police and also your evidence that you went later on that day to the office of the driver of the BMW to carry out an apology.

Because of these facts Setu the Court concludes that it is satisfied beyond reasonable doubt of your guilt and you are convicted accordingly.

There comes now the question of penalty and in my view a monetary penalty is suitable for you. This is your first offence Setu and under the circumstances of the offence as I say I accept that what happened was more a misjudgment on your part. You are convicted and fined $100.00 payable by 12 noon tomorrow, 14 February 2002, in default one (1) month imprisonment.

JUDGE