IN THE SUPREME COURT OF SAMOA
Police v Li [2017] WSSC 136

Case name: 	Police v Li	
		
Citation: 	[2017] WSSC 136	
		
Decision date: 	15 September 2017	
		
Parties: 	POLICE (Informant) and KEJI LI, male of Lotopa and China (Defendant)	
		
Hearing date(s): 	17, 18, 19, 20, 21 & 24 July 2017	
		
File number(s): 	S538/17 & S543/17	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Michael Clarke	
		
On appeal from:		
		
Order:	1.	For the reasons that I have set out, Prosecution has failed to prove the charge beyond a reasonable doubt. Accordingly, the charge of manslaughter is dismissed.
2.	The accused has pleaded guilty to the charge of negligent driving causing death (S543/17). That plea was appropriately entered by the accused as the evidence satisfies me that this charge was proven beyond a reasonable doubt. 
3.	This matter is adjourned to Wednesday 18th October 2017 at 12.30pm for pre-sentence report, VIR and sentencing submissions. If any offer, agreement or measure to make amends is reached in respect of section 9 of the Sentencing Act 20
4.	16, any such offer, agreement or measure to make amends is to be notified to the Registrar of the Supreme Court by Memorandum no later than 4.00pm, Friday 29th September 2017. I will hear from counsels at sentencing whether a sentence incorportating or including reparation is appropriate.
5.	The accused is remanded on the same bail conditions to re-appear on Wednesday 18th October 2017 at 12.30pm.	
		
Representation: 	L Su’a Mailo for Prosecution 
L R Schuster for Accused	
		
Catchwords: 		
		
Words and phrases:	Prosecution has failed to prove the charge beyond a reasonable doubt - the charge of manslaughter is dismissed	
		
Legislation cited:	Crimes Act 2013 sections 88, 92(2)(b), 102 and 108, Criminal Procedure Act 2016 section 125	
		
Cases cited:	New Zealand Court of Appeal in R v Powell [2002] 1 NZLR 666 - R v Fenton [2003] 3 NZLR 439 - R v Powell [2002] 1 NZLR 666 - Police v Ini (unreported judgment Sapolu CJ, 9 July 2012) - 
Rv Adomako [1994] 3 A11ER 79; R v Lunt [2004]1 NZLR 498; R v Hamer [2005] 2 NZLR 81 - Police v Siaso  [2014] WSSC 56, His Honour Sapolu CJ

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

KEJI LI, male of Lotopa and China.
Defendant

Counsel:
L Su’a Mailo for Prosecution 
L R Schuster for Accused

Sentence:	15 September 2017

JUDGMENT OF cLARKE j
	1.	The accused is charged with manslaughter (S538/17) involving the use of a motor vehicle contrary to sections 88, 92(2)(b), 102 and 108 of the Crimes Act 2013(“the Act”). This charge is consistent with section 92(5) of the Crimes Act 2013. In the alternative and the accused is charged with negligent driving causing the death of Tanielu Venasio Pati (S543/17) contrary to section 39 of the Road Traffic Ordinance 1960. 
	2.	The charges arise out of a motor vehicle accident at Puipa’a on the West Coast Road on the 11th of March 2017. The accused elected to be tried by Judge alone pursuant to section 125 of the Criminal Procedure Act 2016.
	3.	On the 4th August 2017 in the course of closing submissions, Mr Schuster for the accused applied for leave to vacate the accused not guilty plea to the charge of negligent driving causing death and for a guilty plea to be substituted. Leave was accordingly granted and a plea of guilty substituted. The only charge for determination is the charge of manslaughter.
The Law:
	4.	The legal duty that the prosecution alleges that the accused has breached is that in section 88 of the Crimes Act 2013. Sections 88, 92 and 102 relevantly state:

“88. Duty of persons-in-charge of dangerous things – A person who has in his or her charge or under his or her control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is:
(a) under a legal duty to take reasonable precautions against and to use reasonable care to avoid the danger; and 
(b) criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.
...
92. Culpable homicide – (1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person by:
(a) an unlawful act; or
(b) an omission without lawful excuse to perform or observe any legal duty; or
	...
102. Manslaughter – Except as provided in section 110, culpable homicide not amounting to murder is manslaughter.”
	5.	While not cited in the charge, section 83 of the Act also applies to the determination of the charge. Section 83 sets the standard of care required of persons under a legal duty specified in sections 84 – 89 of the Crimes Act 2013. Section 83 states:
“83. Standard of care required of persons under legal duties – (1) This section applies in respect of the legal duties specified in any of sections 84 to 89.
(2) For the purposes of this Part, a person is criminally responsible for:
(a) omitting to discharge or perform a legal duty to which this section applies; or
(b) neglecting a legal duty to which this section applies,–
only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.” (emphasis added)
	6.	In order to prove the charge of manslaughter against the accused, the prosecution must prove the following ingredients of the offence beyond a reasonable doubt:
(i)	That the accused was in charge of or had under his control or operates anything whatever which in the absence of precaution or care may endanger human life; and
(ii)	That the accused had a legal duty to take reasonable precautions against and to use reasonable care to avoid the danger; and
(iii)	That the accused breached that legal duty in that the breach by omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances; and
(iv)	The omission or neglect caused the death of the deceased.
	7.	In this case, the accused in closing submissions accepts elements (i), (ii) and (iv) as not being in dispute. The accused however disputes that he breached the legal duty created by section 88, that is his acts or omission did not constitute “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”.
	8.	A leading New Zealand authority on what is often termed “motor manslaughter’ is the judgment of the New Zealand Court of Appeal in R v Powell [2002] 1 NZLR 666. In that judgment, the Court of Appeal examined culpable homicide by an unlawful act and culpable homicide by an omission without lawful excuse to perform or observe any legal duty and stated:
“[32]  It is quite artificial to distinguish between acts and omissions in this context. Where the unlawful act relied upon as a basis for a charge of manslaughter involves negligence, carelessness or other omission there must be applied the same standards for conviction as apply to the omissions giving rise to criminal responsibility to which s 150A expressly applies. The legislature cannot have intended that different standards would apply. The background to the enactment of s 150A clearly indicates that the same standard was intended to apply to the use of motor vehicles. That reflects the reality that driving is a course of conduct. It is artificial in assessing criminal responsibility to try to dissect and separate acts from omissions in motor manslaughter which, except where deliberate acts are alleged, is sensibly and properly characterised as omission to perform a legal duty, ie the failure to exercise care.”
	9.	In Powell, the Court of Appeal examined the legislative history to section 150A of the New Zealand Crimes Act (identical to section 83 of the Crimes Act 2013) importing the ‘major departure test’. In doing so, the Court of Appeal discussed in detail the report of the late Sir Duncan McMullin to the then Minister of Justice concerning manslaughter cases. The Court of Appeal noted:
“[20]  While it is clear that the amendment was stimulated by concern that convictions for manslaughter were too readily obtained in cases of death caused by medical negligence, the legislative history makes it quite clear that its broader application was recognised and intended.
...
[25]  The report set out four reasons for changing ss 155 and 156. The first of these is apposite, at para 12.1, pp 45 – 46:
"(a)There is the philosophical argument that manslaughter is an inappropriate crime for acts of mere carelessness as distinct from gross negligence or recklessness. As the United Kingdom Law Commission in its report on Involuntary Manslaughter states: ‘The crime of manslaughter is the last resort, by which we mean that it should be available only when other sanctions which already exist against the behaviour complained of seem inappropriate, whether these be civil negligence actions, professional condemnation and disqualification, health and safety legislation, or the road traffic laws. It also does, or should, apply only to behaviour which is seriously at fault’. The Australian High Court captured this idea in [R v Callaghan (1952) 87 CLR 115] when it said ‘It (the equivalent of our s 156) is in a criminal code dealing with major crimes involving grave moral guilt. Without in any way denying the difficulties created by the text of The Criminal Code, we think it would be wrong to suppose that it was intended by the Code to make the degree of negligence punishable as manslaughter as low as the standard of fault sufficient to give rise to civil liability’.
This philosophical viewpoint is not just an academic consideration. It has its practical applications. As I have already mentioned, s 156 means that a motorist who kills a pedestrian crossing the road while the motorist's attention is diverted for a few seconds by an advertising hoarding, can be found guilty of manslaughter. Fortunately the Police have taken a common sense view in applying the law and charge only the worst cases of driving causing death with that crime. But a prosecution for manslaughter nonetheless remains open. One could multiply examples in other walks of life where a single act of forgetfulness or inattention could on the present law result in a prosecution for manslaughter.”
[26]  Sir Duncan recommended that the “major departure” standard should be adopted and applied for all crimes under ss 145, 151, 152, 153, 155 and 157. He said at para 13.5:
“13.5 If the amendments I have suggested were to be adopted, cases of very bad driving which would come within the ‘major departure’ test could still be prosecuted as cases of manslaughter. The provisions of the Transport Act 1962 allow for this. The provisions of s 55(1) of the Transport Act 1962 relating to reckless driving causing death or dangerous driving causing death (five years imprisonment) or s 55(2), driving while under the influence of liquor or drugs and by an act or omission causing death (five years imprisonment) would also be available. So would s 56(1A) of the Transport Act relating to the offence of causing death through reckless use in specified circumstances such as speed, under [the] influence [of] drink or drug, or overtaking in a forbidden area. It carries with it the sentence of three years imprisonment. There is also the lesser summary offence of careless use of a motor vehicle causing death (s 56(1)) which would be suitable for my example of the motorist whose attention is distracted by the advertising hoarding.”
	10.	In Powell, the Court of Appeal cited the Explanatory Memorandum accompanying the Crimes Amendment Bill (No. 5) 1996 which included the following excerpt:
“Sir Duncan concluded that there was a strong case for change to sections 155 and 156 to make persons covered by those sections criminally responsible for manslaughter based on a breach of the duty of care only if guilty of something akin to gross negligence. He stated 4 reasons for this, as follows:
(a)Manslaughter is an inappropriate crime for acts of mere carelessness as distinct from gross negligence or recklessness. The law provides other sanctions against mere carelessness. For example, the driver of a motor vehicle who carelessly causes death can be charged under the Transport Act 1962 with careless driving causing death:”

	11.	Similarly, the New Zealand Court of Appeal (differently constituted to Powell) in R v Fenton [2003] 3 NZLR 439 in its judgment delivered by Blanchard J stated:
“[13]  This Court explained in R v Powell [2002] 1 NZLR 666 that, as a result of the changes brought about to the Crimes Act by the amendment in 1997, giving effect to the report of Sir Duncan McMullin, in order to establish manslaughter in relation to a breach of the duty of care imposed by s 156 on persons in charge of dangerous things, whether by unlawful act, omission or by both combined (paras (a), (b) and (c) of s 160(2)), the Crown must prove, in terms of s 150A, “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. In other words, in more traditional language, the Crown must prove not merely negligence but gross negligence. It is worth adding that, as the Court noted in Powell, citing Andrews v Director of Public Prosecutions [1937] AC 576 at p 584 (see Powell at paras [17] and [34]), driving may be dangerous but not to such a degree of negligence as to constitute a major departure from the ordinary standard of care. In the hierarchy of negligent driving, motor manslaughter is now reserved for very bad cases.”
	12.	It is clear from the New Zealand authorities that “a major departure from the standard of care expected of a reasonable person” requires more than carelessness or negligence but gross negligence. For motor manslaughter cases, it “is reserved for very bad cases” or the “worst cases”.  
	13.	Section 150A of the Crimes Act (New Zealand) was considered in Police v Ini (unreported judgment Sapolu CJ, 9 July 2012) in context of the Crimes Ordinance 1960 (repealed). His Honour Sapolu CJ stated:

“51.	The New Zealand Court of Appeal has interpreted the s150A test as involving gross negligence in an omission without lawful excuse by an accused to perform or observe a legal duty.  In R v Lunt [2004], NZLR 498, which was concerned with two charges of manslaughter by omission to perform a legal duty, the Court said at para [29]:
“[29] We should add that, although s150A does not refer to s160, it would seem to be necessary, in order to prove manslaughter on the basis of an accused’s breach of a common law duty, to show that there had been an omission on the  accused’s part involving gross negligence or, as s150A now expresses, a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances: see Andrews v Director of Public Prosecutions [1937] 	AC576, R v Powell [2002]1 NZLR 666 at para [17] and R v Fenton [2003] 3 NZLR 439 at para [13]”
	14.	His Honour Sapolu CJ went on to state:
“55.	On the basis of R v Adomako [1994] 3 A11ER 79; R v Lunt [2004]1 NZLR 498; R v Hamer [2005] 2 NZLR 81, I hold that for the purposes of Samoan criminal law the test to be applied in criminal negligence manslaughter in determining whether a negligent breach of legal duty is criminal is that of gross negligence.  This is an objective test.  For the purpose of directing assessors, the way this test is framed by the House of Lords in R v Adomako [1994]3 A11ER 79, pp 86-87 should be followed, at least at this stage in the development of Samoan criminal law.
…
63.	Furthermore, as the Court of Appeal in Misra v R [2004] EWCA 2375 explained, for negligent breach of duty to be characterised as criminal, the circumstances must have been so reprehensible as to amount to gross negligence.
64	 On the basis of the authorities I have referred to, mere inadvertence would not qualify within the meaning of the words “the conduct of the defendant was so bad in all the circumstances as to amount …to a criminal act or omission.”  Neither would mere inadvertence qualify within the meaning of the words “gross negligence” or “recklessness” which requires a high degree of negligence.”   
	15.	That approach set out in Police v Ini has continued to be applied following the enactment of section 83 of the Crimes Act 2013. In Police v Siaso  [2014] WSSC 56, His Honour Sapolu CJ in a sentencing decision involving a charge of manslaughter arising from the use of a motor vehicle stated: 
“the charge of manslaughter might not be appropriate as the amended summary of facts does not show that the accused was driving with gross negligence or recklessness at the time of the fatal accident.”
The Evidence:
	16.	It is not disputed that on the afternoon of the 11th March 2017 at approximately 2.00pm, the accused was the driver of a Toyota Estima Minivan registration number R 719 (“the minivan”) on the West Coast Road. The accused was driving from the west from the direction of Faleolo Airport to the east towards Apia. He was followed immediately behind by Constable Ioapo Isitolo who was on his traffic patrol on a police motor bike. The weather and road conditions were good.
	17.	Travelling in the opposite direction that afternoon from Apia to Faleula was bus registration number M/O 158 driven by Samuelu Te’evao. The bus is a left hand drive vehicle. Tanielu Venasio Pati (the deceased) was a passenger on the bus that afternoon. He was seated on the right side at the window immediately behind the ‘spare seat’. The ‘spare seat’ was described as the seat at the front of the bus on the right of the bus driver. The deceased was therefore seated on second row on the right window side of the bus. 
	18.	At Puipa’a, the minivan driven by the accused collided with the bus driven by Samuelu Te’evao. The collision between the minivan and the bus caused damage to the right front and side of the bus. That damage can be seen in exhibit P1. However, the evidence was that the exterior metal side of the bus had been jutting out following the accident but was pushed in by the time the photos exhibit P1 had been taken. 
	19.	When the exterior right side of the bus was ripped open, the the deceased fell from the bus together with the baby that he was holding. From the deceased’s fall from the bus, he was seriously injured and from those injuries, he subsequently died.
	20.	The question for determination is whether the prosecution has proven beyond a reasonable doubt that the driving of the minivan by the accused was a major departure from the standard of care expected of a reasonable person. The prosecution case is that the accused driving was a major departure from that standard of care on the basis that:
(a) 	the accused was speeding at the time of the collision; and/or
(b) 	the accused “had momentarily lost attention whilst on the road which thereby caused him to drift and collide with the bus”, which was travelling westbound lane towards Faleolo.
	21.	I will first address the allegation of speeding followed by the area of impact between the minivan and the bus.
Speeding:
	22.	Wolfgang Haist was an expert witness called by prosecution. He is a New Zealand crash investigations expert with 16 years Police experience. He worked in the area of serious crash investigations for 6 years and a further 4 years in road policing. He has also overseen projects for road policing for New Zealand police. His qualifications include traffic crash investigations for trucks, motorcycles and vehicles. He is qualified to level 4 of crash investigations, the highest level that can be obtained in New Zealand. He was also an instructor teaching basic crash investigation courses to the New Zealand police.
	23.	In his report at paragraph 9.20 (exhibit P5), Mr Haist assessed the speed of the bus at the time of collision as approximately 28 mph, equating to 12.5 metres per second. He opined in his report that given the location of the fluid spill and the measured track width of the bus, the left wheels of the bus would have been travelling off the sealed roadway and on the gravel/grass shoulder. On the available information, he could not determine the speed of the minivan. He described the collision as a “relatively low speed offset impact” in terms of the bus.
	24.	In respect of eye witnesses to the accused allegedly speeding, prosecution relies on various witnesses including Samuelu Te’evao, Aleni Saliu, Savelia Se’elua, Etimani Lua, Luse Lafaele and Tuilau Etuale. In his evidence, Samuelu Te’evao, the bus driver said the weather was good and the road was not busy. He described the approaching minivan as follows:
“Wit	ia matou te oo mai loa i le fasi mati’e na ei Puipaa ae ou vaaia loa se minivan ua sau mai i sisifo e agai i sasae o lau maitau iai e fai a si saoasaoa o le taavale toeitiiti a ma fepa’i ae tifa mai loa i lou itu ae o loo ou alu atu a au ia o la e kilia le laina paepae faapena ona tupu ai loa ma le faalavelave. Ua tifa mai i lou itu le minivan ma so’a le pito o le pa’u o le pasi ma faaleaga ai uma vaega ia o le pasi.”
	25.	Aleni Salio, a 14 year old passenger on the bus said he was seated on the left side of the bus on the second row behind the bus door. He was seated on the inside part of the seat on his sister. He marked this seat with an “X” on photo 5 exhibit P1. He said he was looking forward to the direction where the bus was going and he described the approaching minivan as “saoasaoa”. 
	26.	Savelia Se’elua was seated on the left side of the bus immediately after the doorway on the inside part of the seat. She marked where she was sitting with the letter “S” on photo 9 exhibit P1. Savelia said the bus was not speeding. She described seeing the minivan about 5 – 6 metres distance away and that “oute molimau maututu atu lava i le aso lenei o le taavale a le saina e saoasaoa oute ioe ma ou faamaonia e saoasaoa lava le taavale a le saina i lau tali atu lea i lau susuga.” 
	27.	Luse Lafaele was seated on the spare seat on the right front of the bus on the window with her 9 year old son sitting on her lap and Tuilau Etuale next to her. She marked “L” on photo 10 exhibit P1 where she was seated. She described seeing the accused car speeding towards the bus as follows:
“Wit		na ou iloa i le saoasaoa mai ma tifa mai i uta ua ala ai ona matou lavevea
Pros	o lea le mamao o le va o le pasi ma le taavale lea ae e iloa atu loa le tifa mai?
Wit		poo se mea o le 5 i le 6 maila.”
	28.	She then described the distance she first saw the car as between the witness box and prosecution counsel. On cross-examination however, Luse was less emphatic:
“Dc	ae o le tulaga sao a ia ete le o silafia poo lea tonu le saoasaoa o le taavale laititi sa iai a?
Wit	o lea lava
Dc	o le mau amiotonu la lena o lau mau o le sao lea?
Wit	o lea lava
Dc	o ou a manatu ina ua e vaai i le leaga o taavale lea e folasia mai ai sou manatu i le saoasaoa o taavale e sao?
Wit	o lea lava.”
	29.	Tuilau Etuale Lemalu Paulo in his evidence was seated inside on the spare seat with Luse. He describes looking forward as the bus was going slowly and looking on the road. Tuilau described the van as coming into the bus lane about 5 to 6 metres distance from the bus. Tuilau estimated the bus speed at approximately 30 km/h and added:
 “Dc	e le o saoasaoa la afai ete iloa e 30 kilomita lea e alu atu ai le pasi o lea la lau fua na ete fua ai i le sau a le taavale lea?
Wit	o lau vaai i le sau a le taavale pe o se mea o le 80 i le 90 i le 100 kilo sa faapea ona sau ai le taavale
Dc	i le 100 kilomita?
Wit	ia.”
	30.	Constable Ioapo Isitolo is a police officer with 7 years experience and having worked traffic for 5 years. On the afternoon of the 11th March 2017, he was on traffic patrol on a police motorbike. He patrolled to Faleula where he turned around and returned to Apia.
	31.	On his return, Constable Isitolo described reaching the speed humps at Wesley College Faleula. He said a line of about 10 cars were behind him. At Le Aute Gas which he described as between Faleula and Puipa’a, he then reached another line of about 10 cars in front of him. The minivan was at the back of that cue of cars in front. Constable Isitolo followed immediately behind the minivan from Le Aute Gas. He said that from Le Aute Gas, they travelled slowly because of the poor road condition. In cross-examination, he accepted that his speed from Le Aute Gas was about 30 km/h or less. After the Kini house however, which was also described in the evidence as a store, he said he followed the minivan by a distance of between 10m – 15m. When the road improved after the Kini house, Constable Isitolo said that all the cars in front of him and behind him then sped up. In describing his own speed, he said:
“…I le taimi lea na matou o ese ai oute talitonu ua iloa e ave ta’avale I le taimi lea ua lau lelei a mea lea matou te omai ai, na alu ai I luga e o’o foi I lau uile. Oute talitonu o le taimi lea na sau ai lau uila ii ae laa tupu le faalavelave e ova i luga ma le 40 kilometres per hour.”
	32.	In re-examination, Constable Isitolo said:
“Pros	o le fesili la na tuuina atu e lau uo a loia na faapea atu o lau lava oe lea talitonuga ao lau mau na faapea mai o lau fika na iai, o le a le uiga o lau faamatalaga?
Wit	o le uiga o lau faamatalaga na ou tolotolo mai i le 30 kilometers per hour agai i luga taimi lea na matou tau mai ai i le lau lelei na toe tuutuu ai i luga le sau o lau uila ona o lea ua toe tuutuu uma i luga le sau o taavale ia na matou omai faatasi 
Pros	le taimi la lea ua fetoai ai taavale o le a la lau maitau iai i le saoasaoa lea ua iai taavale i le taimi lea?
Wit	oute lei iloa iai ia le saoasaoa o taavale sa iai i le taimi lea ae e tu loa lau uila ae velo mai ou mata i lau pasika ae pasi loa gila mai le 40 kilomita
Pros	lea sa fesiligia oe e lau uo a loia e faapea e pipii le pasi i le van e lei faapea matuā saoasaoa lava le sau a le van, o lau faamatalaga a ou fua i le vave tele o le sau mai le mea lea na amata tifa ai, o e manatua le fesili ma le tali lea?
Wit	ia sao lelei
Pros	o le a le uiga o lau faamatalaga?
Wit	o le uiga o lau faamatalaga o le vave tele o iina e tatau ona iloa ai e saoasaoa le van mai le taimi lea na sau ai mai i i le mea lea na amata tifa ai i le itu a le pasi ma le malepe o le pasi i le taimi na la fetoai ai vave tele na oo iai i o i le mea lea na amata tifa mai ai agai i le pasi.”
	33.	The relevant evidence in cross-examination was that it was not speeding such as to stop them. In cross-examination, he had said:
“DC	tusa o lau na ia talitonuga o lea faatoa tou o ese mai le lau leaga pe va I le 100 mita le mea o lo’o iai le lau leaga ma le mea lea na tupu ai le fa’alavelave a lea ua amata loa ona tau saoasaoa laititi mai le omai a ta’avale ua te’a mai le lau leaga, e sa’o?
Wit	Sao lelei.
DC	ae le o se saoasaoa tele foi gale pei ua ono taofia ai ta’avale ua o saoasaoa tele, e sa’o?
Wit	Sa’o lelei.”
	34.	 The distance between the end of the road in poor condition and the accident was estimated at between 100m – 150m.
	35.	According to Constable Isitolo, the speed limit at the accident area is 35 mph. 
Area of Impact:
	36.	The prosecution also alleges that a major departure from the standard of care expected of a reasonable person is the accused crossing into the bus lane heading west. 
	37.	Constable Ieremia Su’a was the Investigating Officer for this matter. He has 12 years experience in traffic, has been trained in serious crash investigations and prepared a sketch plan of the scene (exhibit P6). On the afternoon of Saturday the 11th March 2017, Constable Su’a was travelling from Faleolo to Apia when he came across the scene.
	38.	Constable Su’a described identifying the point of impact shown in exhibit P6 by a gouge mark on the road seen in exhibit D2. Mr Haist described the creation of a gouge mark as characterized “by a deep indentation in the road surface that was caused by a heavy object…” In this case, prosecution says that the gouge mark was caused when the minivan lost its front right wheel, break assembly and most of its suspension resulting in the minivan contacting directly with the road causing the gouge mark. 
	39.	The point of impact identified by Constable Su’a in exhibit P6 is 2.4 metres from the landward roadside. As the lane width is 3.3 metres, the point of impact based on the gouge mark is 0.9 metres inside the bus lane heading west. Constable Su’a said that the only mark on the road he observed following the accident was the gouge mark between the two bottles shown in exhibit D3. The ‘missing seal’ towards the centerline in exhibit D3 was not present at the time of the incident.

	40.	 In preparing his report, Mr Haist referred to and relied on the sketch plan prepared by Constable Su’a. He said that standard New Zealand police procedure is to prepare a sketch plan and take measurements. This would then be the prime piece of evidence. Photographs are supplementary evidence to the sketch plan. In describing the sketch plan prepared by Constable Su’a, Mr Haist stated:
“no, in my view the constable who drew the scene sketch he triangulated the measurements he did not take a single measurement of .9 metres he measured the area of impact from the centre line he took a further measurement from southern side of the road way he then measured the complete width of the road way he indicated a point of fix point of interest in a pole and he measured the distances where the vehicles came to rest. These are a classic example of a scene measurement as extort by to serious crash unit members in a basic crash cause. So I rely on his evidence and that evidence is backed up in summary to summarize it any which way you look at it in my view the Toyota van at the time of impact was on the wrong side of the road. This is my evidence.”
	41.	Mr Haist continued under cross-examination: 
“As I stated before the constable who drew the sketch referred to the area of impact .9 metres south of the gouge line this is confirmed by a gouge mark. The only way the gouge mark could have caused or the also mentioned a fluid spill, a fluid spill that led from the westbound lane across the eastbound lane to the northern side the fluid spill was the result of fluids leaking from the bus. That was pieces of evidence confirm to me that the impact had to be those .9 metres south off the centre line because if your theory suggest it happen on the centre line so that would means that all the evidence of the impact should be on the centre line but it is not.”
	42.	Mr Haist maintained that the gouge mark 0.9 metres inside the bus lane was the area of impact, that is “that the collision between the two vehicles occurred 0.9 metres south of the centre line in the westbound lane.” He concluded at paragraph 9.25 of his report:
“This would indicate that the bus driver perceived and reacted to the oncoming vehicle and moves as far as practical to the left in the available time.”
	 43.	Mr Haist was cross examined about exhibit D3 and the ‘missing seal’ adjacent to the water bottles in photo 1 closer to the centre line. Mr Haist described this as ‘missing seal’. In response to the proposition by accused counsel that the collision occurred towards the centerline, Mr Haist stated “in my view it is impossible for the gouge mark to have been caused if the impact occurred on the centre line it’s not possible.”

	44.	In describing the angle in which the accused minivan crossed into the bus lane, Mr Haist said that it was a shallow offset crash of approximately 10 degrees, the physical evidence told him so and the crash occurred in the bus lane. 
	45.	Constable Ioapo described the accused minivan almost colliding with a pick-up in front of the bus. The collision between the bus and the minivan occurred in the lane of the bus and because from his observation of the van, he knew there would be a collision, he stopped his motor bike. He described the bus as having tried to swerve. He said that the bus was not touching nor was it close to the centre line.
	46.	In describing his observations of the minivan driver, Constable Ioapo said he could see clearly. Immediately prior to the collision, he said that he could see the driver looking for something between him and the door. The driver was looking downwards, left hand on the steering wheel and right hand searching. The van crossed into the bus land and then collided with the bus. The collision occurred about a second after he stopped his motor bike.
	47.	In his evidence, Samuelu Te’evao said that he was driving on his lane and that it was the minivan that crossed into his westbound lane. He said:
“Wit	ia o le lane lea oute alu atu ai ao le lane lea le sau ai le minivan 
Pros	fea lea ete agai ai?
Wit	agai i sisifo
Pros	o iloa atu iina le vaega lea ete faapea mai na oo atu ai loa le pasi ae so’a loa e le 
Wit	ia o le mea lea e iai le sign lea o le itu agavale o i tonu a lava na lavea ai le pasi i le mea lea e iai le sign lea e tusi ai le itu agavale o i tonu a na tupu ai le faalavelave
Pros	gafea la e iai lau pasi – o e iloa atu le laina tositosi ogatotonu i le ata lona 2?
Wit	ia o au la lea ei totonu ii o lau lane lea o lea e kilia le laina paepae o au lea ei totonu ii e le o afaina le laina paepae i lau pasi 
Pros	o lea le saoga o lau mau? toe fai mai lau mau lea na fai mai
Wit	o au lea oute alu atu sao i lau au lane lea oute alu agai i sisifo 
Pros	ia?
Wit	ae oute le o alu agai i le isi lane o lea oute alu sao agai i le lane lea o le laina paepae lea e le o lavea i lau taavale o lea oute alu a au ia i totonu ii a lae kilia atoa le laina paepae
Pros	faafefea ona e silafia le tulaga lena?
Wit	o faata ia ei luma o le pasi tamai faata autafa ete autilo ai ona e iloa lea le kilia atoa o le a o oe ma le laina paepae ete maua uma ai a itu le itu taumatau o le pasi ma le itu agavale 
Pros	i lou iloa atu loa o le van lea ao sau o lea lau gaioiga sa fai i le taimi lea?
Wit	le taimi lea ina ua tifa faafuasei mai i lau itu sa ou taumafai e tau tuu i tua ae ona e va iti – silasila foi e va iti le va o i agai ii i le pa lea sa ou taumafai e tau tuutuu agai i tua ae o lona faalavelave e va iti le va lea ae ua vave a le sau a le van ma so’a le pito i luma o le pasi  
Pros	o lea le uiga o lau faamatalaga sa e taumafai e tuu te isi i le 
Wit	sa ou taumafai e tuu i tua ina ia sao le van
Pros	o lea le uiga o lau tala ia sao?
Wit	ona ua tifa mai ii i lou itu o le mafuaaga la lena na ala ai ona ou taumafai e tau seu i tua le taavale i tua i luga i autafa ia 
Pros	tau seu la i tua i gafea?
Wit	i autafa i luga i le iliili ma le mutia
Pros	ia o lea le tulaga na oo ai?
Wit	ia ae ua leai ua vave a le pa’i mai o le van
Pros	o lea le uiga o lau tala ua vave le pa’i mai o le van?
Wit	ua vave a le oo atu – le tifa atu a le van ma so’a ai loa le pasi.”
	48.	Samuelu maintained his evidence under cross-examination. He estimated that the distance between the bus and the minivan was 4 – 5 metres when the minivan drifted into the bus lane.
	49.	The prosecution eye witnesses on the bus are largely consistent that it was the accused van that crossed into the bus’ westbound lane. Savelia Se’elua said:
“Pros	lea na e faapea mai i lau mau lea na e vaai atu o sau le taavale fetoai, e mafai ona e famalamalama auiliili mai lau mau lea?
Wit	sa ou vaaia le sau o le taavale a le saina sa faapea ona ou – o lau a tilotilo iai a au ia pe o se mea o le 5 mita i le 6 mita le va o le pasi ma le taavale a le saina sa ou vaaia loa le fetoai a le pasi ma le taavale a le saina na ala ai ona tupu ai loa le faalavelave.
…
Wit	ou tilotilo atu loa ua fetoai le taavale a le saina i le side lea e iai le pasi le itu a le pasi lea na ala ai ona mafua ona tupu le faalavelave.”
	50.	Savelia marked exhibit P2 photo 2 with an “X” where she says the collision occurred between the minivan and the bus. This area is generally consistent with the evidence identified by Mr Haist and Constable Ieremia as the area of impact demarcated by the gouge mark. Under cross-examination, she also marked photos 3, 10 and 11 with an “X” to demarcate the area of collision. These consistently are on the west bound bus lane.
	51.	In his evidence, Tuilau Etuale Lemalu Paulo said:
“Wit	o le matou oo atu la iina i Puipaa sa faapena ona ou vaaia ai se vegi o sau mai i sisifo agai i sasae sa faateia ia au i lou vaai atu ua pi’o faafuasei mai le vegi agai i uta i le itu ala o loo alu atu ai le matou pasi ma sa ou vaaia le saoasaoa tele o le sau a le vegi na sau loa taia autafa o le matou pasi.”
	52.	Tuilau’s evidence that it was the accused minivan that swerved into the bus lane was maintained in cross-examination. This evidence was also supported by the evidence of other prosecution witnesses on the bus.
	53.	The accused called three witnesses, Luatimu Samau, Junior Devoe and Lupematasila Etimani. Luatimu Samau is a former inspector of Police. He resigned in March 2017. He was formerly a traffic officer from approximately 1993 or 1994 to 1999. He claims to have completed Crime Scene Investigations including traffic crash. He tendered into evidence exhibits D1, D2 and D3. The photos in exhibit D3 (showing the gouge martk demarcated by water bottles) were taken on the 20th July 2017, approximately 4 months after the accident. Mr Samau had visited the scene on the 14th March 2017 as part of his involvement in this matter but did not take any photographs of the area in which the accident occurred saying he did not have a camera. He however took photographs later that day of the bus (exhibit D1 and D2) using his phone camera that he also apparently had when he had earlier visted the scene of the accident that day.
	54.	In his evidence, he referred to the road damage shown in D3 and opined that the road damage appeared to be from something heavy or by rain, saying that the type of damage could be due to a variety of causes. Under cross-examination, he did not understand the meaning or relevance of gouge marks in traffic crash investigations:
“Pros	you attended the crash investigation course right?
Wit	ia o lea lava
Pros	mai le training lea sa e attend ai ete maua mai igoa o maka i luga o le 	scene igoa faapalagi?
Wit	ua fai foi si galo ua fai foi si leva
Pros	ete taliaina pe a ou fai atu ia te oe o le mea lea e tau o le couch mark?
Wit	ia o lena
Pros	o e iloaina la le uiga o le couch mark?
Wit	leai lau afioga.”
	55.	He however gave an opinion that the ‘missing seal’ in exhibit D3 photo 1 was “na pei o se mea ua pau ai poo le ta’eta’e e se isi i se mea malō faaleaga ai le auala.”
	56.	Junior Devoe was a taxi driver who said he was following immediately behind the bus by a distance of almost 3 car lengths. In terms of the side of the road the bus was travelling, he said:
“Wit	o le pasi la nai totonu o le laina pa’epa’e nai tua o le laina pa’epa’e tele i totonu 
	Dc	tele i totonu i fea le itu?
	Wit	itu taumatau o le auala
	Dc	aea ia lau taavale?
	Wit	sa ou tele foi au ia i le isi itu o le laina pa’epa’e.”
Discussion:
	57.	The key issue is whether the accused acts or omission constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty  applies in those circumstances”. The relevant legal duty is the duty of the accused having the charge of or under his control or operation a car which in the absence of precaution or care may endanger life. The prosecution case is that (a) the accused was speeding and (b) he had failed to give his full attention to the road leading him to drift over the centreline into the oncoming bus thereby breaching this duty.
	58.	I accept Constable Ioapo’s evidence that the speed limit at the accident area is 35 miles per hour. 
	59.	The eye witnesses on the bus called by the prosecution said that the minivan was speeding. Tuilau Etuale Lemalu Paulo estimated the speed of the minivan at between 80, 90 and 100 kilometres per hour. The bus driver Samuelu Te’evao described the minivan speed in far less dramatic terms as “e fai a si saoasaoa o le taavale.” Other passengers described the minivan as speeding. Apart from the speed estimate given by Tuilau, the other bus passengers gave descriptive accounts of the minivan’s speed as it approached them. Such observations necessarily were brief and in respect of the accused oncoming car.
	60.	I do not accept at all that the accused was driving at 80, 90 or 100 kilometres per hour. It is simply not supported by the evidence. It is also not supported by the fact that following immediately behind the accused was Constable Ioapo who was on patrol. Had the accused been driving at such high speed, Constable Ioapo who was following immediately behind would have intervened. His evidence of speed as they approached the bus together with the accused following behind 10 or so other cars simply does not support Tuilau Etuale Lemalu Paulo’s evidence. 
	61.	In terms of the speed of the minivan, the evidence I prefer and consider more reliable is the evidence of Constable Ioapo.  He is a traffic officer of 7 years experience. He was on patrol on the afternoon of the 11th March and was following immediately behind the accused. His observations were detailed in respect of the road conditions, the number of cars on the road and how the easterly heading traffic was moving. His observation of the accused was over a longer period of time from the Le Aute Gas to the accident scene. I also accept that he had paid specific attention to the minivan as he anticipated the accident and stopped immediately beforehand to avoid becoming part of it.
	 62.	I do not however find that the prosecution has proven that the speed the accused driving constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. Where the road conditions were poor, the cars travelling in the easterly direction including the accused and Constable Ioapo had slowed down. Constable Ioapo was travelling he said at 30 kmh or less. 
	63.	From the Kini house to the scene of the accident, Constable Ioapo said that the line of cars sped up. He himself also sped up. The accused minivan was behind 10 or more other vehicles which were in front of him. Accordingly, the speed the accused could travel was no more than those cars in front of him. Furthermore, if the accused was speeding or driving at a speed that was a “major departure from the standard of care expected of a reasonable person”, he certainly was not stopped by Constable Ioapo as would be expected. Constable Ioapo who has 7 years policing experience did not in his evidence suggest any intention to stop the accused for speeding immediately prior to the accident. Indeed Constable Ioapo described his own speed as above 40 kmh (approximately 25mph) just before the accident, but that he had also sped up after they had passed the bad part of the road. Constable Ioapo’s evidence of his speed and of the movement of traffic towards Apia raises real doubts in my mind that the accused was speeding. Even if he was travelling above the speed limit, which I am not satisfiued that he was, any excess above the speed limit could not be said to be “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. Indeed, he was at the end of a cue of 10 or more cars in front of him.
Area of Impact:
	64.	The accused contends that “the bus contributed to the collision [because] its’ right front and back wheels having travelled on the centre line at the point where the minivan veered suddenly towards the centre line at Puipa’a.” The accused relies on the evidence of Junior Devoe.
	67.	The accused also relies on the evidence of Luatimu Samau that the ‘missing seal’ seen in exhibit D3 is an alternative area of impact to that identified by Mr Haist and Constable Ieremia.
	68.	First, I do not accept Junior Devoe’s evidence. He was an unsatisfactory witness. When he was interviewed by Police following the accident, he also made no mention of the bus travelling on the centerline. His evidence was also entirely inconsistent with the evidence of Samuelu Tevaga which I prefer which is that he was driving in his westbound lane when the collision occurred and that it was the accused that was in the wrong lane. This is further supported by other witnesses including Constable Ioapo, Savelia Se’elua and Tuilau Etuale Lemalu Paulo. On the evidence, I also accept that Samuelu attempted to swerve to avoid the accident. This was observed by Constable Ioapo and was supported by Mr Haist.
	69.	Secondly, in terms of the evidence of Luatimu Samau, I did not find his evidence satisfactory or reliable. Despite his claims of expertise in crash investigations, he did not understand the meaning of a “gouge mark”. More tellingly, when he went to the scene on the 14th March 2017 three days after the accident, he made general observations of the accident area only. There is no evidence that he searched for or located the ‘gouge mark’ on that day, which Mr Haist described as the “standard evidence that crash investigators will look for to determine a crash location.” He also took no photos of the scene on the 14th March despite apparent possession of his cell phone which he later used to take photos of the bus that same day, a very basic investigative step one would expect him to have been carried out. Indeed, there is no evidence that the ‘missing seal’ shown in exhibit D3 taken by Mr Samau on the 20th July 2017 (exhibit D3) existed at the time of the accident. 
	70.	In terms of the area of impact, I accept that the area of impact between the accused minivan and the bus was 0.9 metres (ie 90 centimetres) inside the westbound lane as depicted in exhibit P6. Constable Ieremia who is the Investigating Officer and inspected the scene prepared the sketch plan and identified the “Point of Impact” on exhibit P6 on the day of the accident. On inspecting the scene, he said that the area with missing seal relied on by the accused to suggest that area of impact was closer to the centerline was not present on the day of the accident. It must therefore have formed in the preceding months following the accident on the 11th March 2017 and when the photographs exhibit D3 were taken by Mr Samau on the 20th July 2017.
	71.	I found Mr Haist evidence clear and compelling. He said “that the collision between the two vehicles occurred 0.9 metres south of the centre line in the westbound lane.” He also said that the gouge mark could not have been created in its location if the collision occurred towards the centerline, as contended by the accused. In relation to the ‘missing seal’ relied on by the accused as an alternative area of impact, I accept Mr Haist’s evidence that was not caused by a heavy impact and is not an alternative area of impact. The area of impact was 0.9 metres south of the centre line in the westbound bus lane.
	72.	Whilst I accept that the area of impact was 0.9 metres from the centerline of the westbound lane, I am not however satisfied beyond a reasonable doubt that the accused acts or omission constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. Prosecution in its own submissions at paragraph 17.2 says that “the defendant had momentarily lost attention whilst on the road which thereby caused him to drift and collide with the bus”. At paragraph 20.1.3.2, Prosecution further says “Whether it was a momentary inattention or not, the fact remains that he had for even a split second failed to pay attention on the road and to other road users.”
	73.	Motor vehicle manslaughter “is reserved for very bad cases” or the “worst cases” with a high level of culpability.  The ‘major departure’ test was expressly adopted with the view to avoid circumstances where, for example, “a motorist who kills a pedestrian crossing the road while the motorist's attention is diverted for a few seconds by an advertising hoarding...” 
	74.	Based on the evidence of Constable Ioapo, it appeared that the accused was looking for something between him and the door. He was looking downwards, left hand on the steering wheel and right hand searching. The minivan crossed into the bus lane and then collided with the bus. The collision occurred about a second after Constable Ioapo stopped his motor bike. 
	75.	Based on the evidence, I am left in real doubt that the accused crossing into the west bound lane constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. Based on the evidence, the accused crossing of the centreline was apparently the result of momentary inattention, perhaps over a few seconds, as he drove along the Westcoast road.  Tragically, it resulted in the death of the deceased. The evidence in this case in my respectful view falls well short of establishing manslaughter and is the type of case in which the New Zealand equivalent of section 83 was expressly legislated to avoid.
Result:
	76.	For the reasons that I have set out, Prosecution has failed to prove the charge beyond a reasonable doubt. Accordingly, the charge of manslaughter is dismissed.
	77.	The accused has pleaded guilty to the charge of negligent driving causing death (S543/17). That plea was appropriately entered by the accused as the evidence satisfies me that this charge was proven beyond a reasonable doubt. 
	78.	This matter is adjourned to Wednesday 18th October 2017 at 12.30pm for pre-sentence report, VIR and sentencing submissions. If any offer, agreement or measure to make amends is reached in respect of section 9 of the Sentencing Act 20
	79.	16, any such offer, agreement or measure to make amends is to be notified to the Registrar of the Supreme Court by Memorandum no later than 4.00pm, Friday 29th September 2017. I will hear from counsels at sentencing whether a sentence incorportating or including reparation is appropriate.
	80.	The accused is remanded on the same bail conditions to re-appear on Wednesday 18th October 2017 at 12.30pm.
JUSTICE CLARKE