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Police v Tofi [2014] WSSC 118 (28 February 2014)

IN THE SUPREME COURT OF SAMOA
Police v Tofi [2014] WSSC 118

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TA’AVAO TOFI, male of Nofoalii.
Defendant

Counsel: G Nelson for prosecution
J Brunt for defendant

Decision: 28 February 2014

ORAL JUDGMENT OF NELSON J
(Change of plea application)

1. The defendant faces three charges. One count of manslaughter, one count of negligent driving causing bodily injury and one count of driving an unlicensed vehicle. At the first mention of these charges on 16 September 2013 the defendant pleaded guilty to all three. At the time he was not represented by counsel.
2. The prosecution say that he was given an opportunity by the court to engage legal counsel and that he indicated he did not require counsel. No affidavit has been filed by the defendant to the contrary. I note that the defendant in both police interviews concerning this matter of 21 August 2013 and 11 September 2013 was also given an opportunity to consult a lawyer. His answers were as per written statements he gave to the police that he did not require the services of a lawyer:

“You have a right to contact a lawyer and ask that lawyer to be present at the interview. Do you understand this right that I have just explained to you?

E iai lau aia tatau e faafesootai ai se loia ma talosaga le loia e auai i le tatou faatalatalanoaga. Ua e malamalama i lau aia tatau lea e pei ona ou faamalamalama atu?

Tali: ia

Question: Do you want to contact a lawyer to be present at the interview?

Fesili: O e manao e faafesootai se loia e auai i le faatalatalanoaga?

Tali: Leai ouke le magao ise loia.”

3. On sentencing day the defendant appeared with defence counsel who indicated the defendant wished to file a change of plea application in respect of all charges. The application asserts that firstly the defendant did not really plead guilty, that he was in a state of shock and uncertainty, that he had just lost a close relative in fact a cousin and he was still recovering from the trauma of the accident. Furthermore that the accident had affected his state of mind.
4. The second ground of the application is that the defendant made a mistake when he pleaded guilty because this is his first experience of a court room. He was nervous confused and under pressure. He just wanted to give the Registrar an answer and then sit down.
5. The third ground of the application is the defendant has a clear defence to all the charges.
6. The relevant law is correctly summarized by the prosecution quoting from the judgment of Chief Justice Sapolu in Police v Viliamu [2008] WSSC 74;

“The principles which are applicable to the exercise of the Court’s discretion whether to allow an accused who has pleaded guilty to a charge to withdraw his plea of guilty before sentence and to substitute it with a not guilty plea are not well established: see Police v Mafuao Gaia [200] WSSC 3; Police v Maina Sio [2000] WSSC 5; Police v Reopoamo Ekalesia [2003] WSSC 13; Kereti Tulitoa v Police [2006] WSSC 13; Onosai Nofoaiga v Police [2007] WSCA 3. The guiding principle is whether the interests of justice require that an accused who has pleaded guilty to a charge should be granted leave to withdraw his plea of guilty and substitute it with a plea of not guilty. Situations where such leave may be granted include where an accused has not really pleaded guilty, where the accused was under a mistake or misunderstanding as to what he was pleading guilty to, where there is a clear defence, or where considerable pressure was put on the accused to plead guilty contrary to his wishes. These are only examples of the interests of justice test: Onosai Nofoaiga v Police [2007] WSCA 3.”

7. Applying these criteria in the order listed in that judgment firstly dealing with the first criteria. That the defendant did not really plead guilty because of his state of mind. This criteria relies on the defendants state of mind when he appeared at first mention on 16 September 2013. The problem with this argument is no affidavit has been filed by the defendant or anyone else in support of the argument. The only affidavit filed in support of the defendants application was that of the defendants father. And that refers to the accident itself and other matters arising out of the accident. There is no reference in that affidavit to the defendants state of mind on 16 September 2013 when he first appeared in court. I also note that the defendant gave full and detailed statements to the police on 21 August and 11 September. He did not make any complaint or mention that he was at the time in a state of shock and uncertainty as a result of the accident. There is no factual basis for the first argument.
8. In relation to the second argument that he made a mistake when he pleaded guilty. Again no affidavit has been filed by the defendant or anyone else indicating that on 16 September 2013 the defendant was nervous, confused and under pressure. Or that he mistakenly pleaded guilty to the charges instead of pleading not guilty. I also note that his probation office pre-sentence report says he is a 31 year old married man with 3 children. He graduated as a welder from Don Bosco Technical Institute following secondary school education at Paul VI College. He has held various jobs and at the time of the accident was employed by the engineering division of the Samoa Airport Authority.
9. There are various testimonials attached to his probation office pre-sentence report from his employer, faifeau and various other people. They all speak very highly of his character and ability. So this is not a case of a naïve 16 year old or uneducated planter from some remote village. None of these references filed portray the defendant as unintelligent or incapable of understanding what was happening.
10. I accept that the court room atmosphere can be intimidating and challenging to those appearing therein for the first time. But that does not mean that people are therefore driven to make untrue statements or admissions in order to escape quickly from the room. The charges against the defendant would have as per normal procedure been read to him in Samoan. There is nothing complicated about the allegations. The charges are not of a complex nature. I am of the view the defendant was well able as an educated man to understand them, even the main one alleging that he committed manslaughter. The second argument must fail.
11. The third argument is that the defendant says he has clear defences to the charges against him. I will deal with each of the charges in turn. The first is that he was driving an unlicensed vehicle.
12. The vehicle involved in this accident is a left hand drive Toyota Hilux pick-up. According to the defendants first cautioned statement to the police it is a 1990 model. There is nothing in defence counsels submission indicating what clear defence the defendant has to this charge of driving an unlicensed vehicle. The defendant himself in his first cautioned statement says the vehicle belonged to his father and was unlicensed. I quote from the top of the fifth page of that statement:

“Fesili: Taavale a oe a ia?

Tali: Kaavale a lou kama

Fesili: E laisene le tou taavale pe leai?

Tali: Leai

Fesili: O le a se umi e lei laisenea ai le tou taavale lea?

Tali: Pe kusa o le 2008 ga gaka ai le laisegeiga o le makou kaavale lea.”

13. According to that statement the vehicle had therefore been unlicensed for over 5 years. And the defendant knew this to be the case. In his second cautioned statement to the police he acknowledges the same thing where he says;

“Fesili: O leisi lea moliaga e faasaga ia te oe o lou tauaveina lea o le taavale pikiapu Toyota Hilux numera 6950 e le laiseneina faaletulafono e fealuai ai luga o le alatele. Ua e malamalama?

Tali: ia

Fesili: Sa tatau lava ia te oe ona faatu lau taavale lea sei laisene ona faaaoga lea. Peitai ane lea ua tulai mai ai le faalavelave lea ua maimau ai le soifua o si taulealea ia Aquino.

Tali: ia sao lelei.”

14. Again another acknowledgment by the defendant that he was driving an unlicensed vehicle. The defendants own father who owns the vehicle refers in his affidavit to allowing his son to use his “unlicensed vehicle.” He is fortunate he has not been charged with permitting the use of a vehicle that had not been licensed as fit to travel on the road for over 5 years. The fathers affidavit overlooks that contribution to this tragedy and seeks instead to shift the blame to the driver of the oncoming vehicle. All this evidence shows the defendant has no defence to the charge of driving an unlicensed vehicle. The application to change his plea from guilty to not guilty in respect of that charge must be dismissed.
15. The second charge against the defendant is negligent driving causing injury. The allegation here is that the defendant drove the vehicle in a negligent manner and thereby caused injury to the driver of the oncoming Honda. The police case is that at the relevant time the defendant was heavily intoxicated having drunk kava and beer throughout the day while engaged in delivering barbeques to customers of their autalavous fundraising event. Customers who had purchased tickets but resided some distance from where the event was being held being at the residence of the Nofoalii Catholic fesoasoani.
16. In his first cautioned statement to the police the defendant told the police that draft beer was being sold at the barbeque. Also that the deceased was present at the barbeque. He also told the police that the deceased and him were returning to the barbeque after delivering the deceaseds food to his family. That is when the accident occurred. The defendant said he was driving and the deceased was in the passengers seat. The police allegation is that the defendant was travelling from west to east towards Apia. As such it would therefore have been on the seaward side of the main road. The barbeque was being held at the fesoasoanis residence on the inland side of the road.
17. The police case is that the victims vehicle a white Honda Sedan was travelling in the opposite direction East to West heading towards Leulumoega-tuai. As such it would therefore have been on the inland side of the main road. In front of the faifeau’s house where the barbeque was taking place the defendants vehicle suddenly turned inland into the lane and path of the oncoming Honda. The police allege the defendants maneuver was sudden and was done without signaling his intent to turn inland whether by way of an indicator or a hand signal. The Honda swerved seaward to try and avoid the turning vehicle but could not resulting in a severe collision between the Honda and the pick-up, causing the defendants vehicle to veer inland and smash into a lamp post. The Honda was hurled to the seaward side of the road and came to rest facing the sea. The victim in respect of this charge was injured in the crash which also killed the deceased.
18. The police allegation of negligence seems to rest on two basis. Firstly that the defendant was intoxicated from the ava and beer he had been drinking and was therefore negligent in driving the vehicle in that condition and secondly that he failed to give way to the oncoming Honda resulting in the fatal accident. As to the first basis of the police case this was not addressed by the defence in their application or submission which appears to focus on the second basis only.
19. The defendants fathers affidavit did not touch upon this aspect. It talks about the defendants condition at about mid-day of that day when the defendant left home to go and help out at the fundraising barbeque. The accident did not occur until about 6:00 pm according to the defendants second cautioned statement to the police. That leaves therefore only the defendants denial in his statement to the police where he says he did not drink any beer or any form of alcohol that day. Aapart from that there is no other evidence adduced for the purposes of this application by way of for example the results of a blood test or breathalyser analysis supporting the denials by the defendant. There is therefore nothing that can be said to amount to “a clear defence” against the first allegation. The court cannot characterise the defendants denials as amounting to “a clear defence”. There is no defence advanced in the application to meet the first of the two bases of the police case.
20. The second basis of the police case which is what the defendants application focuses on is the defendants failure to give way as he should have when turning inland across the lane of oncoming traffic and vehicles. There seems to be no dispute the Honda was in its proper lane namely the inland lane. And that it was travelling East to West from Apia to Leulumoega-tuai. There is no evidence that it had crossed the centre line or was anywhere other than on its proper side of the road at all material times. There is no evidence adduced by the defendant in his application to support his suggestion in counsels submission that the Honda was out of control.
21. The defendant told the police that there was a vehicle preceding the Honda. And that when it passed his pickup he turned inland. It appears from what he told the police that he did not see the Honda following behind this vehicle. In his first cautioned statement to the police he says:

Fesili: Sei fai la sau faamatalaga i le mea sa tupu?

Tali: Sa ma o aku mai le fale o Pulou ma oute le o mailoa foi pe na ou iloa aku le kaavale lea sa sau mai Apia pe leai ae ga ou afe loa i le fale o le Fesoasoagi ae ou leiloa loa ma se mea.

Fesili: Sa iai se taavale na sau mai Apia ao lua i luga o le auala?

Tali: Ia e iai le kaavale ga makou fepasia’i ae ou afe loa i uka.

Fesili: Sa e iloa atu le taavale lea o le ituaiga o le Honda lanu efuefu lea sa lua fetoai o sau mai leisi itu?

Tali: Mea lega makua ou leiloa lava pega sau se kaavale.”

22. In the next sentence of the cautioned statement he then makes the following significant admission:

“Fesili: Ae leo lou tiute lea faaaveta’avale o le vaai lelei o le auala poo kilia pe leai?

Tali: Ia sa’o lelei...Faakamala kele au.

Fesili: Aisea ua e fai mai ai ua e faatamala tele?

Tali: Ia, faakamala i lau kiuke o le vaai lelei o le auala po’o kilia pe leai.”

23. In his second statement to the police the defendant also says similar things including telling the police that he could not recall if he signaled to indicate his turn inland:

“Fesili: E faapefea ona lavea le lua taavale?

Tali: Lau susuga e oo mai le kaimi legei makuai ou leiloaiga lava se mea sa kupu.

Fesili: Sa emo lau sign e afe ai i uta i le fale o le Fesoasoani Pope?

Tali: Ouke le o magakuaiga foi.

Fesili: Sa faatu atu e seisi lau taavale?

Tali: makuai ou leiloa a.

Fesili: Sa iai le taulealea lea sa savali atu i le auala e agai i Fasitoo-uta ma lana avega. Sa ia ta’ua na tago faatu atu lau taavale e lifi atu ai i Fasitoo-uta ma lana avega. Sa ia ta’ua na mafua ona ia faatuina lau taavale ona e lei emo lau sign e afe i uta lau taavale. Sa e manatuaina lea tulaga?

Tali: Lau susuga e leai.

Fesili: O le a sou manatu i lea tulaga

Tali: e sao lelei sa kakau lava ia ke au oga ou ku lelei ma vaai sei kilia le auala.

Fesili: o le faamatalaga a le ave taavale o le Honda lea sa lua fetoai e faapea sa kilia lava lana pito ma o le mafuaaga lea sa alai ona sau lava ia ona o lo’o kilia lelei lana lane ae faateia o ia i le afe o lau pikiapu i uta e aunoa ma se emo o lau sign ma tu lelei lau taavale sei kilia.

Tali Ia sao lelei sa kakau lava ia te au oga ou ku ma sign foi ae ouke lei afe i uka.”

24. These are quotes from statements made by the defendant himself to the police. Statements at the end of which the defendant says were given to him to read and correct if so desired and which he then signed and confirmed to have been voluntarily given. There is no stronger evidence than the words of a defendant himself. By those words he admitted to being careless at best, negligent at worst. He now seeks to argue the opposite without challenging the admissions contained in those statements given by him to the police when interviewed shortly after the accident. The first statement was given four days post-accident. The second five days before he appeared in court at first mention and pleading guilty to all charges.
25. I find it difficult to reconcile his changing position. As to the arguments themselves he raises essentially two matters which he says gives him a clear defence to the negligent driving causing injury charge as well as to the manslaughter charge. Firstly that the driver of the Honda was heavily intoxicated and secondly that the Honda was travelling at an excessive speed. The argument is these factors caused or at least contributed to causing the accident.
26. I understand the defendants argument but there are obvious difficulties in his way. Firstly the doctrine of contributory negligence has no application to the criminal law. For the purposes of the criminal law either a defendant is guilty of a crime or he is not guilty. The standard of proving guilt is beyond reasonable doubt. If the crime is one involving an allegation of negligence the question is whether it has been proven beyond reasonable doubt that the defendant was negligent. The contributing behaviour of others to that issue is only one factor to be taken into account. But taken into consideration in assessing the defendants guilt or innocence. Not for some other purpose.
27. In the United Kingdom it is long established that it is no defence to a charge of manslaughter that the death of the deceased is shown to have been caused in part by the negligence of the deceased, that the deceased was also guilty of negligence and so contributed to his own death. See Archibold 42^nd Edition para 20-70 and following paragraphs. A similar position prevails in New Zealand - see R v Storey [1931] NZLR 417. Counsel can refer to Adams on ‘Criminal Law’ for other New Zealand authorities. The reason for this is that the central enquiry is as to the culpability of the defendant. Not the conduct of the deceased or in a negligent driving causing injury charge the conduct of the victim. The question is not whether they were negligent, the question is whether the defendant was negligent and whether his actions caused or substantially caused the accident or incident leading to the demise of the deceased. The actions of the deceased, the victim or other persons is only relevant in so far as they concern and are material to that enquiry.
28. The second difficulty with the defendants argument is even if the Honda driver was intoxicated whether heavily or not there is no evidence suggesting this caused or contributed to causing the accident. There is no evidence the drunkenness of the Honda driver caused the vehicle to for example stray into the path of the defendants pick-up or into the defendants lane and was therefore a contributory cause of the accident. The evidence is that the Honda at all material times was on its proper side of the road proceeding towards Leulumoega-tuai even though it may have been driven by a drunken driver. The cause of the accident is not the intoxication of the driver of the Honda but the defendants action of suddenly and without warning turning inland in front of the path of the Honda. Had the defendant not executed that turn the Honda and its drunken driver would have happily passed the defendants pick-up which would have been waiting to execute its inland turn. No accident would have occurred.
29. A similar observation applies to the second of the defendants arguments that the Honda was speeding. Firstly the damage to the vehicles is not necessarily indicative of excessive speed. The facts indicate the defendants pickup was turning inland and as such the pickup would have been progressing at a relatively slow speed. A vehicle travelling at 35 miles an hour the designated speed limit for that area striking a vehicle travelling at slow speed is not significantly different to a vehicle driving 35 miles an hour striking a stationery vehicle. The impact would in both cases be dramatic and severe.
30. In this regard I do not accept the evidence of the Australian expert witness for the applicant. Firstly his report fails to note that the pickup in question was according to the defendant over 20 years old. Or to note as would reports of this nature the details of the vehicles involved, the date of inspection of the vehicles and the other background investigations carried out by the author. The findings in the report also make no reference to the damage to the Honda which leads me to the conclusion that the author only viewed photographs of the pick-up and none of the Honda sedan. How an assessment as to relative speed prior to impact can be made without considering the damage to the other vehicle is beyond me. I would have thought any prudent and independent expert would have examined the damage to the other vehicle involved in the collision. It also seems the report is based on photographic evidence only. There is no evidence a physical inspection of the vehicles was carried out by the author. There are obvious limitations to an expert opinion based on photographic evidence alone.
31. There is also no explanation as to why the author believes the other vehicle was travelling in excess of 55 miles per hour. No studies, no methodology, engineering or otherwise, no analysis or data of any sort is provided to justify such conclusions. The author of the report is asking the court to accept what he says based on his professional opinion having viewed many past motor vehicle collisions. Without stating how many he has viewed, over what time, what vehicles were involved, were they similar in type to these vehicles, whether these were accidents in Samoa or in Australia where different road rules and vehicle regulations apply. Such material is required to establish expertise and credibility. The courts are not obligated to accept expert opinions based on a generic statement that it is because I have seen many of these before. I too have seen many of these before.
32. The report also stresses the non-wearing of seat belts by the defendant and his passenger as a significant factor. I have no doubt it was. That is why the severity of the impact caused both to be thrown from the vehicle. But if the pick-up was a 1990 model as the defendant told the police then it was unlikely it was imported into Samoa with seat belts as those were not required at the time. And there is no evidence in the photographs the vehicle was in fact equipped with seat belts. One would see belt remnants hanging loose in the cab of the vehicle if that were the case.
33. Then the report goes on to quote the current National Road Code as supporting its conclusions. But overlooks to mention that the Road Code exempts people wearing seatbelts when “driving any vehicle previously imported without seatbelts.” Something that seems to clearly apply to this case. The expert also argues against himself by quoting the relevant provisions of the Code which also states: “The driver is responsible for making sure all passengers use their seatbelts.” So that even if the vehicle had seatbelts he accepts the obligation to use them rests completely on the defendant driver. This is hard to reconcile with the recommendation that the defendant should not be penalized for the decision of his passenger.
34. I do not propose to comment further on the suggestion in the report without any evidential foundation that the police pressured the defendant into pleading guilty to hastily settle the case. No affidavits have been put before the court supporting such a suggestion. Neither do I express any view on the impertinent suggestion that it would be unfair for the court to uphold the guilty plea originally entered by none other than the defendant himself. Such comments add nothing useful to the debate and does not advance the defendants case. The experts report is in my view of little to no value.
35. Returning to the issues at hand. Even if the court were to accept that the Honda sedan was in fact speeding again I reiterate there is no evidence that speeding caused or contributed to causing the accident. If the defendant had not executed his sudden and unexpected turn without giving way the speeding Honda would have passed his vehicle by without incident. There is nothing in the facts placed before the court to suggest otherwise.
36. To put it another way the fact that the Honda may have been speeding and was driven by a drunk driver does not absolve the defendant of his duty to keep a proper lookout and to give way to oncoming traffic. In my assessment neither of these two factors provides the defendant with a “clear defence” to either negligent driving causing injury or manslaughter. The defendant fails to meet the third of the three criteria required by law to be satisfied before his guilty plea to the negligent driving causing injury charge can be set aside.
37. The defendant faces similar difficulties in relation to trying to change his plea to manslaughter. The two issues of intoxication of the Honda driver and its excessive speed as observed afford him no clear defence. Had he had one I would have no difficulty in allowing him his change of plea. But that is a pointless exercise when in my respectful view he has no prospect of succeeding in such defences based on the present evidence before the court.
38. On the facts as the court sees them it would appear it was the defendants act of turning suddenly and without warning across the path of the oncoming vehicle that caused the accident. No basis for charging the Honda driver in respect of the accident exists. But if there exists sufficient evidence that the Honda driver was intoxicated and/or was speeding the appropriate charges against him would be drunken driver and driving at an excessive speed.
39. Considering all the circumstances and the arguments that have been raised it would not in my view be in the interests of justice to grant the application by the defendant to change his plea. The application is accordingly dismissed and the defendant will remain in custody until the next available sentencing date.
40. O le aso 24 Mati lea ua tolopo iai lau mataupu Ta’avao mo se fa’aiuga mai le fa’amasinoga. O lea ua poloaiga foi le ofisa o leoleo e tatau ona fa’ao’o i le alii loia o lo’o tula’i mo lau susuga ia pepa lea ua fa’ata’atia mai e le ofisa o leoleo i luma o le fa’amasinoga mo le fa’aiuga o le mataupu lenei. I le tulaga o lau talosaga lea na tu’u mai e toe fa’aliliu lau ioe i le tete’e ia masalo o lena ua e silafia le fa’aiuga lea ua maea ona lau atu. Ae se’i oo i se taimi fa’aoo atu se kopi tusitusia o le fa’aiuga i lau loia.
41. Relevant sentencing documents to be served by the prosecution on defence counsel forthwith.
    

JUSTICE NELSON