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National Prosecutions Office v Chang [2017] WSSC 72 (9 June 2017)

IN THE SUPREME COURT OF SAMOA
National Prosecutions Office v Chang [2017] WSSC 72


Case name:
National Prosecutions Office v Chang


Citation:


Decision date:
09 June 2017


Parties:
NATIONAL PROSECUTIONS OFFICE (Appellant) and MAUGA PRECIOUS CHANG (Respondent)


Hearing date(s):
24 April 2017


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Mata Keli Tuatagaloa


On appeal from:
District Court of Samoa


Order:
The appeal on the charge of negligent driving causing injury is upheld. Pursuant to section 154(b)(iii) of Criminal Procedure Act 2016, the respondent is convicted of the charge of negligent driving causing injury.
The appeal on the charge of failure to stop and ascertain is dismissed.


Representation:
S Perese for the Appellant
A Perkins, Q.C and Aumua M Leung Wai for the Respondent


Catchwords:
erred in law – negligent driving causing injury – appeal is upheld


Words and phrases:
Appeal against decision


Legislation cited:
Road Traffic Ordinance 1960 ss. 39A; 39(1); 44(1); 44 (4)
Criminal Procedure Act 2016 ss.157; 154(b)(iii)


Cases cited:
Attorney General v Tavui [2014] WSCA 3 at [21];
Kerslake v Attorney General [2014] WSSC 187;
Love v Police [2012] NZHC 2952;
R v Munro [2008] 1 NZLR;
Nankivell v O’Donovan (1895) 13 NZLR 60;
Auckland City Council v Wotherspoon [1990] 1NZLR 76;
Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190;
Police v Posala [1994] WSSC 23;
Posala v Attorney General [1995] WSCA 4;
Police v Papalii [2011] WSSC 138;
Clements v Gill [1953] SASR 25;
R v McArthur [1975] 1 NZLR 486;
R v Bowden [1938] NZLR 247;
Waddington v Boyd [1959] NZLR 1332, 1335
Houten v Police [1971] NZLR 903;
Osten v Police HC Wellington AP 272/92, 2 February 1993;
King v Tait [1939] NZGazLawRp 63; [1939] NZLR 499


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


NATIONAL PROSECUTIONS OFFICE
Appellant


AND:


MAUGA PRECIOUS CHANG
Respondent


Presiding Judge: Justice M Tuatagaloa


Counsel:
S Perese for the Appellant
A Perkins, Q.C and Aumua M Leung Wai for the Respondent


Hearing: 24 April 2017
Decision: 09 June 2017


DECISION OF TUATAGALOA J

Proceedings:

  1. This is an appeal against the decision of Judge Roma delivered orally on 12 December 2016 (with the written reasons delivered on 14 December 2016); acquitting the Respondent on the following charges under the Road Traffic Ordinance 1960:
  2. Essentially, the appellant appealed the decision on the grounds that the trial Judge erred in law and/or in fact in deciding to acquit the respondent on all charges.
  3. I understand the appellant’s grounds of appeal for each charge as follows:

The relevant law:

  1. The Court of Appeal in Attorney General v Tavui,[1] held that where there is an appeal on ‘error of law’ such ground of appeal is normally confined to three situations:
  2. Where the appeal is on ‘error of facts’ the Chief Justice in Kerslake v Attorney General,[3] an appeal on the facts will succeed:
  3. The test is whether the verdict (in this case the decision of the Trial Judge) is unreasonable, having regard to all the evidence because the jury (assessors or Trial Judge) could not having regard to all the evidence have been satisfied beyond reasonable doubt that the respondent was not guilty.[5]
  4. An Appellate Court is required to carefully scrutinise all the evidence and ask, whether taken at its highest, the evidence available could have properly led to an acquittal.
  5. I approach such task reminding myself of the principles stated in R v Munro[6] that the Appellate Court performs a review function, not substituting its own view of the evidence and that reasonable minds may differ on matters of fact.
  6. An Appellate Court is therefore, to take a very cautious approach and only in exceptional circumstances depart from the findings of fact of a Trial Judge, for the Trial Judge has had the opportunity to see and hear the witnesses first hand.

Preliminary Issue

  1. A preliminary issue arises as to whether or not certain documents annexed to the appellant’s submissions amount to fresh evidence. If they do, s.157 of the Criminal Procedure Act 2016 applies. It provides that:

“157. Fresh evidence on appeal – (1) The appellant court may, on the hearing of an application to admit fresh evidence in the appeal, admit fresh evidence if:

The fresh evidence could not reasonably have been given at the trial; and

The fresh evidence must be such that when viewed in combination with the evidence given at trial it can be said that the Judge or assessors acting reasonably would have acquitted or convicted the defendant; and

The fresh evidence is credible in the sense that it is capable of belief.

(2) If the fresh evidence is suspicious and unreliable the appellant court may reject the fresh evidence.

(3) An appellant who intends to adduce fresh evidence on appeal must:

(a) give the respondent 20 working days notice of the appellant’s intention to do so; and

(b) provide the respondent with the fresh evidence within 10 working days of the giving of the notice.

(4) If fresh evidence has been produced to the respondent under subsection (3)(b), the appellant Court may, on application, adjourn the hearing of the appeal to another date to allow reasonable time to respond.”

  1. The documents which the appellant seeks to introduce are:
  2. I understand the appellant’s submissions as follows that:
  3. The respondent objected to the introduction of the documents upon the following grounds:
  4. I find both documents amount to fresh evidence for the following reasons:
  5. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s.157 of Criminal Procedure Act 2016.
  6. I find that the documents could have been with reasonable diligence given or called at the trial given that the appellant produced other documents as evidence at the trial. The documents therefore, do not qualify for admission as fresh evidence under s.157 (1). If they do qualify under s.157, for the reasons in paragraph [15] above they are to be rejected for being suspicious and unreliable under s.157(2) not to mention that the appellant have not complied with s.157(3) and (4).
  7. The said documents sought to be introduced are not accepted.
  8. I now turn to consider the grounds of appeal.

Negligent driving causing injury:

(i) The trial judge erred in fact when he found the respondent not negligent;

  1. The appeal point advanced in respect of this charge is that the conclusion or decision reached by the trial Judge, having regard to the evidence was so unreasonable or that the trial Judge on the evidence was plainly wrong, and should have convicted the respondent.
  2. The issue of fact challenged by the appellant is the finding of the trial Judge that the Tucson vehicle (driven by the respondent) had cleared the inside lane and was well on the outside lane when the collision happened. The appellant submitted that the finding was an unreasonable conclusion to draw if he had found the point of collision to be more to the middle of the outside lane.
  3. The respondent submitted that all of the above findings of fact by the Judge were available to him on the evidence and that the trial judge was not wrong in any of the conclusions he reached. In other words, the trial Judge was entitled to make the conclusions he made and the inferences he drew on the evidence available to him.
  4. The trial Judge drew his conclusion from the following evidence (paragraphs 58-69 as summarised):
  5. On reviewing the evidence (transcript, scene plans and photos) I find the following evidence crucial to the issue as to whether the Tucson has cleared the inside lane:

Pros: if you look at P1 again, where do you say the car was hit by the bus.

Wit: I think it was on the outside lane not the lane that the bus was on but I think the lane closer to the entry, all I remember was, I closed my eyes before the bus hit, so I can recall accurately, I just remember that we had gone passed that lane that the bus was on.

Pros: so when you say when you had gone passed that lane that the bus was on, is that you as in the whole of the vehicle or is it just you and Ms Chang in your car?

Wit: where I was sitting, yes.

Pros: yes it was the whole vehicle?

Wit: I’m not sure.

Under cross-examination she said:

DC P: but at some stage, do you recall seeing it come over into the lane that you’re in, the outer lane, the lane closest to the TATTE Building?

Wit: yes well we had gone passed, I recall we had passed the centre lane before got hit, yes so we got hit after we had gone, well at least after where I was sitting had gone passed the centre lane onto the outer lane.

(ii) Photo 4 [p.38] of Record of Evidence shows the damage to the Tucson to be above the left front tyre and front part of the left front door.
(iii) The scene plans, EXH P1 prepared by Constable Fetu and EXH D1 prepared by Sergeant Pule both show the skid mark to start on the middle of the outside lane.
  1. The issue of the skid mark play a pivotal part in the evidence as to the point of contact. All witnesses identified the point of contact as being on the outside lane. The trial Judge accepted the evidence of Constable Fetu who prepared EXH P1 and Sergeant Pule who prepared EXH D1 which both scene plans show the skid mark to start in the middle of the outside lane. As to the length of the skid mark the trial Judge accepted EXH D1 and EXH P2 (photos) that the skid mark goes past the TATTE exit onto the footpath. The trial Judge made no finding as to whether it was the front or back tyres that caused the skid mark. He did however conclude the point of collision more to the middle of the outside lane.
  2. Ms Teueli from the evidence was passenger and was sitting in the front of the Tucson on the left. Ms Teueli’s evidence is, that at least the part of the car where she was sitting had cleared the inside lane and was on the outside lane when they were hit by the bus. The damage to the Tucson was to the left front side. The trial Judge did not say precisely where, that is, whether it was the front, middle or the back. Photo 4 of Record of Evidence [p.38] shows the damage to the Tucson to be above the left front tyre and front part of the left front door. The skid mark indicates the point of collision to be the middle of the outside lane as accepted by the trial Judge.
  3. The only inference available from these facts is that the bus collided with the front left part of the Tucson, around the front left tyre and left door region around the middle of the outside lane.
  4. On appeal, the appellant sought to introduce evidence of the length of the Tucson, to demonstrate that, given the length of the vehicle, it could not have cleared the inside lane. I have declined to admit this new evidence on appeal as it fails to meet the statutory test. The trial Judge concluded that the Tucson was ‘well on the outside lane’, a finding that may be unavailable to him had the actual length of the Tucson been admitted in evidence.
  5. But without that evidence, the findings of the trial Judge are inconsistent: he concludes that the whole vehicle was ‘well on the outside lane’ yet finds that the point of collision was to the middle of that lane. The irrefutable evidence is that the point of collision was in the region of the left front wheel and passenger door – i.e., the front of the vehicle. In the absence of evidence as to the length of the vehicle, the only inference available is that the front of the vehicle was in the middle of the outside lane.
  6. The trial Judge at [58]of his decision went on to conclude:

“I am not satisfied that the accused was negligent in the way she commenced right turn and drove slowly across the 2 westbound lanes when the bus was approaching.”

At [70] the trial Judge provided his findings:

“On the totality of the evidence, I find that the bus had travelled westward on the inside lane. It passed the lights on 3rd gear and at a speed of more than 15mph. Approaching the TATTE gates, the Tucson travelling from the opposite direction had commenced a right turn into the TATTE gate entrance. The Tucson cleared the inside lane heading into the TATTE gate entrance. The Tucson was a fair distance from the bus not to cause concern for Ms Teueli. It was also far enough for the bus to brake and/or slow down. But with defective brakes, Mr Filipo was unable to slow down or brake in time. In an attempt to avoid the collision, he swerved to the outside lane struck the left side of the Tucson around the middle of the outside lane directly in front of the TATTE entrance and pushed the Tucson past the TATTE gates and onto part of the footpath”.

The trial Judge went on to say at [71]:

“I accept the submission by Mr Perese that the Court is obliged to focus on the driving of the accused. But in the circumstances of this case, I cannot see how there can be negligence on the part of the accused. She and Ms Teueli had cleared the inside lane on which the bus was travelling. They were well on the outside lane. Their distance relative to the bus was sufficient for the bus to slow down and avoid a collision. She could not be expected to know of the condition of the bus brakes and accommodate for that defect”

  1. In other words, the trial Judge concluded that the respondent turned in front of the bus with sufficient distance to avoid a collision only if the bus slowed down to avoid that collision. The responsibility therefore has been shifted from the driver making the right hand turn across two lanes of potentially oncoming traffic to the driver in those lanes with right of way. That is an error of law in my view.
  2. The respondent was coming from the Tanoa Hotel direction going east or heading in to town. Vehicles travelling from the Tanoa Hotel do not have a right of way if they want to turn right into the TATTE Building. Therefore, even if they indicate to turn right into the TATTE building they still must wait, until they are given way to by vehicles going west or when the lanes going west are free or clear of any vehicle.
  3. Whether the respondent indicated to turn right or whether the bus brakes were defective is not the issue, it is whether the respondent was negligent when she turned right while there was a bus travelling on the inside westbound lane at a speed of more than 15mph. The Chief Justice in Kerslake refers to the decision of Kos J in Love v Police[7] at [23]:

“The Court is to consider the actions of the driver charged, not the lack of care of the other driver: Readings v Police HC Auckland CRI – 2006-404-00437, 26 April 2007. The fact that the truck driver may have some culpability is not the appropriate focus in considering whether in fact the appellant was careless.”

  1. The test for the standard of care in negligent driving is whether in the circumstances the respondent drove in a reasonable and prudent manner[8].
  2. The reasonably prudent driver would not commence a right turn across two lanes of traffic without ensuring that such turn could be safely completed without relying on the conduct of the oncoming driver. In this case, the trial Judge accepted that the bus driver could have stopped to avoid a collision; that finding itself reinforced the fact that the respondent made the right turn when it was not safe or clear to do so. While Ms Teueli’s evidence was difficult to reconcile (on the one hand the way was clear and the turn is made slowly, yet on the other within seconds the bus is upon her) the distance travelled (as accepted by the trial Judge) was across one lane and to the middle of the second or outside lane. This is a very short distance and such a turn required, again on the evidence before the trial Judge, an immediate response from the bus driver. In the circumstances, the respondent was clearly negligent.
  3. In reaching the conclusion the respondent was not negligent, the trial Judge observed that he found it difficult to accept that, at 5-10 metres away, the respondent could not have noticed the bus travelling in the opposite direction. The respondent did not give evidence but her passenger did. In his decision the trial Judge noted at [17] that she (passenger) could not see the vehicles coming from the opposite direction. The Judge appears to have accepted that evidence. In such circumstances, the inference he appears to have drawn was not available to him.
  4. The trial Judge erred in fact in proceeding on the basis that the Tucson has completely cleared the inside lane given his findings as to the points of collision (on both the car and the road) and in law in concluding that the respondent was not negligent because she was entitled, in effect, to rely on the actions of the oncoming bus to slow down or in some other way avoid colliding with her.
  5. This ground of appeal succeeds.
  6. I now turn to the second limb of the appeal that:

(ii) The trial judge was wrong in law as to what amounts to ‘injury’.

  1. The trial Judge’s found in relation to ‘injury’ that (at paragraph [76]):

“I accept that Ms Teueli was in severe pain. But in the absence of bruising or actual physical injury and applying Clements v Gill [1953] SASR 25 and R v McArthur [1975] 1 NZLR 486 referred to in paragraphs 45 and 46 above I am left in a reasonable doubt that, that pain amounted to bodily injury within the meaning of the charge.”

  1. The question on appeal is whether the trial Judge erred in fact and/or in law in concluding that, in the absence of visible bruising or actual injury, ‘bodily injury’ was not proved.
  2. What amounts to ‘bodily injury’ whether grievous or actual is that established in the case of Police v Posala[9], upheld by the Court of Appeal in Posala v Attorney General[10] and also adopted by the Chief Justice in Police v Papalii[11] at paragraphs [61]- [63].
  3. The trial Judge rightly referred to the decision of Police v Papalii and quoted what the Chief Justice adopted in that case as to ‘bodily injury’. That is the law or the approach accepted and applied by the Samoan courts:

“Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury, need not be permanent but must be more than merely transient or trifling... it may include a momentary loss of consciousness; where there is injurious, impairment to the victim’s sensory function; it is axiomatic that the bodily harm was actual.”

  1. The evidence of Ms Teueli was that she felt numb on her left side shortly after the collision; she had internal muscle bruising with pain which lasted for 1-2 weeks resulting in her remaining at home for that period.
  2. In her report, Dr Agape Amituanai noted:

“There were no abnormalities noted in spite of her severe pain and obvious emotional distress. There were no bruises nor were there any other external injuries. There were no signs indicative of any visual injuries. Radiographic investigations revealed neither fractured bones nor other significant abnormalities.”

  1. In her evidence in chief the Doctor said that Ms Teueli had soft tissue injuries which she described as injuries to muscles, tendons, ligaments, usually bruises or strains, not usually manifesting in external appearance.
  2. In cross-examination, some attempt was made to challenge the Doctor’s professional opinion of these soft tissue injuries but I do not find that diminishes her evidence in any significant way. She is a professional experienced doctor who expressed her professional opinion. In the absence of any professional evidence to the contrary, her evidence was available to the trial Judge who did not reject it. Instead, in reliance on two earlier decisions (1953 and 1945)[12] he (trial Judge) concluded that there must be visual evidence of bruising or actual physical injury amount to bodily injury.
  3. With respect to the trial Judge such a finding is contrary to the dicta of the Chief Justice in Papalii. To that extent he erred in law in concluding that the injury suffered by Ms Teueli, as described by the doctor, could not amount to ‘bodily injury’.
  4. From the evidence of Ms Teueli and Dr Amituanai, Ms Teueli obviously suffered injury(ies) from the accident which may not be visual but have nevertheless caused Ms Teueli some amount of discomfort and interfered with her health because she took 1-2 weeks to recover. Doctor Amituanai also referred to obvious emotional distress.
  5. The ‘injuries’ sustained by Ms Teueli which may not be visual nevertheless amount to ‘bodily injury.’
  6. The trial Judge has erred in the law he applied and in his finding that the injury suffered by Ms Loretta Teueli did not fall within the meaning of ‘bodily injury.’
  7. This ground of appeal also succeeds.

The alternative charge of dangerous driving

  1. Given my finding on the grounds of appeal for the negligent driving causing injury I do not need to consider the grounds of appeal for the alternative charge of dangerous driving.
  2. I now turn to consider the last charge.

Failure to stop and ascertain

(i) The trial Judge failed to apply or correctly apply the law with respect to sections 44(1) and (4) of the Road Traffic Ordinance 1960;

  1. The appellant submitted that this is a statutory duty that the respondent had breached because she had failed to stop and ascertain whether ‘any person’ other than her passenger Ms Loretta Teueli was injured.
  2. Section 44 (1) says:
  3. I agree with the appellant that section 44(1) imposes 3 obligations on the driver as follows:
  4. The trial Judge decision at paragraphs [83] to [85] held:
  5. I have found no local authorities regarding this particular law. The appellant has referred to (and provided) a number of New Zealand cases where there is a similar provision to section 44. I am mindful that Samoa (before becoming Independent) adopted New Zealand laws to become laws of this land. The Road Traffic Ordinance 1960 is one of those laws (with the exception of some amendments) has not been revoked. This then, would make the New Zealand cases referred to by the appellant more relevant.
  6. The word ‘stop’ was held to be capable of two meanings (a) ceasing to move[13]and (b) stopping and remaining stopped.[14] Houten v Police[15] was an appeal from the Magistrates Court. The respondent was charged under section 65(1) of Transport Act 1962 (similar to s.44(1) Road Traffic Ordinance 1960) for failure to stop and ascertain. It was held that, the Court should interpret the duty to stop in such a way as will enable to fulfil some useful purpose. Richmond J in Waddington v Boyd[16] said the meaning to use depends on the context of s65 (1) and said:

“I think that the actual purpose of subs (1) is to ensure that a driver must ascertain whether anyone is injured at a time when his own vehicle is stopped and not merely by observation from a moving vehicle. It follows that the duration of the stop which is required by the Act must be measured at least by the time reasonably necessary in all the prevailing circumstances to enable proper inquiry to be made. Possibly it may also have to be measured by reference to the duty to render assistance, but that question does not arise in the present case as nobody was in fact injured”.

  1. As ‘to ascertain’ the appellant referred to Osten v Police[17] where that court held to mean ‘to find out for a certainty’, which section 44(1) requires, if someone has been injured and that all practical assistance be rendered to that person including transporting that person to hospital. The duty to stop and ascertain is imposed only on the driver.[18]
  2. I agree with Richmond J in Waddington that the meaning of ‘stop’ to use depends on the context of section 65(1); “The actual purpose of subs (1) is to ensure that a driver must ascertain whether anyone is injured at a time when his own vehicle is stopped....” The whole point of stopping is to ascertain whether anyone is injured. The duration to stop is the time reasonably necessary to ascertain whether any person is injured and to render assistance. In the circumstances, was there a need for the respondent to stop when her passenger Ms Teueli had suffered an injury and whatever that was, was sufficient to meet the ‘ascertain injury test’?
  3. Section 44(1) imposes a duty to stop and a duty to ascertain whether anyone is injured. There is no dispute that the respondent failed to stop, that straight away after the accident reversed and drove off. Section 44(1) has to be given liberal interpretation applicable to the circumstances to give it practicality. The purpose of section 44(1) is about ascertaining whether any person is injured where there is a vehicle accident. The duty to stop is imposed in order to achieve this purpose.
  4. In the present circumstances, the purpose behind s.44(1) has been achieved regardless that the respondent did not stop but the respondent did ascertain that her passenger (Ms Teueli) had suffered an injury. Ms Teueli insisted to the respondent to take her to the hospital straight away. Understandably, the respondent took her straight away to hospital. No one else was, in fact, injured in any event.
  5. The words ‘any person’ in s.44(1) is not defined to mean a person or persons other than the passenger(s) of your vehicle. Those words must be given ordinary meaning and would therefore, include Ms Teueli who was a passenger of the respondent.
  6. As to section 44(4) I fail to see what relevance this section is as, it refers to where no one is injured.
  7. This ground of appeal is dismissed.

Conclusion:

  1. The appeal on the charge of negligent driving causing injury is upheld. Pursuant to section 154(b)(iii) of Criminal Procedure Act 2016, the respondent is convicted of the charge of negligent driving causing injury.
  2. The appeal on the charge of failure to stop and ascertain is dismissed.

JUSTICE TUATAGALOA

[1] [2014] WSCA 3 (2 May 2014) at [21]

[2] Cited cases referred to; Nankivell v O’Donovan (1895) 13 NZLR 60; Auckland City Council v Wotherspoon [1990] 1 NZLR 76
[3] [2014] WSSC 187.

[4] Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 referred to in Kerslake v Attorney General [2014] WSSC 87

[5] R v Munro [2008] 1 NZLR affirmed in R v Owen [2007] NZSC 102; [2008] 2 NZLR 37 adopted by Court of Appeal in Muaiava Ufiufi v Attorney General [2009] WSCA 13
[6] Ibid [1]
[7] [2012] NZHC 2952
[8] The law as to negligent driving is well canvassed by the Chief Justice in Kerslake v Attorney General [2014]
[9] [1994] WSSC 23
[10] [1995] WSCA 4
[11] [2011] WSSC 138
[12] Clements v Gill [1953] SASR 25; R v McArthur [1975] 1 NZLR 486
[13] R v Bowden [1938] NZLR 247
[14] Waddington v Boyd [1959] NZLR 1332, 1335
[15] [1971] NZLR 903
[16] Supra, n 14
[17] HC Wellington AP 272/92, 2 February 1993
[18] King v Tait [1939] NZGazLawRp 63; [1939] NZLR 499

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