Cindy Marcia Fairburn v The Queen - [2010] NZSC 1579

ORDER PROHIBITING PUBLICATION OF REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE SUPREME COURT OF NEW ZEALAND
SC 20/2010
[2010] NZSC 159
CYNDI MARCIA FAIRBURN
v
THE QUEEN
Hearing:29 and 30 November 2010

Court:Elias CJ, Blanchard, Tipping, McGrath and William Young JJ
Counsel:R J Earwaker and C B Williams for Appellant
J C Pike and F E Guy Kidd for Crown

Judgment:17 December 2010

JUDGMENT OF THE COURT

A        The further evidence is admitted.
B        The appeal is allowed and the conviction is quashed.
C        A new trial is ordered.

REASONS

Para No

Elias CJ, Blanchard J, Tipping and McGrath JJ [1]
William Young J [41]

ELIAS CJ, BLANCHARD, TIPPING AND McGRATH JJ
(Given by Blanchard J)
Introduction
[1]       In very unusual circumstances Mr Darin Maxwell was killed in a car accident which was indisputably caused by the driving of his former partner, Ms Fairburn. The particularly unusual feature of the accident was that it occurred at high speed (90-100 kph) and that Mr Maxwell was clinging to the bonnet of Ms Fairburn’s car at the time, having been there for some 10 minutes while she drove approximately 13 kilometres from Inglewood to the crash site just south of New Plymouth. She has been convicted of murdering Mr Maxwell. The central question at her trial was whether the Crown could prove that Ms Fairburn meant to cause his death and with that intent deliberately drove head on into an approaching vehicle which was on its correct side of the road (murder under s 167(a) of the Crimes Act 1961). The Crown’s alternative case was that Ms Fairburn steered her vehicle across the centre line of the road immediately before the collision as part of an endeavour to dislodge Mr Maxwell from the bonnet and that in taking such action she intended thereby to cause his death, or to cause him bodily injury which she knew to be likely to cause death and was reckless whether death ensued or not (murder under s 167(b)).
[2]       Ms Fairburn’s defence was that she drove as she did because she was fearful of Mr Maxwell and that she intended to stop at the police station in New Plymouth and have the police remove him from the bonnet of her car. She said that the collision was an accident which happened when attempting at night to drive through an intersection with her vision and her ability to steer the car impaired by Mr Maxwell’s presence on the bonnet.
[3]       She claims that she left all decisions at her trial to her counsel, Ms Hughes QC, who committed a serious error in failing to call expert evidence from a vehicle accident analyst. A report from such an expert, Mr Christopher Marks, was tendered to the Court of Appeal. Mr Marks drew conclusions favourable to Ms Fairburn’s case. The Crown objected to the Court receiving that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZSC 1579
Decision Date: 17 December 2010

CaseChat Overview and Summary

This case involved an appeal against conviction for murder by Ms Fairburn. Ms Fairburn was convicted of murdering Mr Maxwell by driving into an oncoming vehicle while he was clinging to the bonnet of her car. The central issue on appeal was whether trial counsel had made a serious error in failing to call evidence from a vehicle accident analyst, which could have supported a defence of accident. The Court held that the evidence of the vehicle accident analyst should have been admitted as it was fresh, credible and sufficiently cogent. The Court held that had the evidence been admitted, it could have led the jury to return a verdict of not guilty, and therefore, the conviction for murder was quashed and a new trial ordered. The Court of Appeal had previously dismissed Ms Fairburn's application to admit the evidence of the vehicle accident analyst, finding it was neither fresh nor cogent in the circumstances of the case. The Court held that the evidence of the vehicle accident analyst was fresh because trial counsel had made a serious error in proceeding to trial on the basis of an untenable defence of justified self-defence and in overlooking the need for an expert opinion to support the defence of accident. The Court also held that the evidence was credible as it came from someone whose qualifications as an expert in vehicle accident analysis were not challenged before the Court. The crucial question was whether the evidence of the vehicle accident analyst was cogent, meaning that when considered alongside the evidence given at the trial, it might reasonably have led the jury to return a verdict of not guilty on the charge of murder. The Court held that the evidence could reasonably have made a difference to the jury’s verdict and therefore, the appeal must be allowed, the conviction for murder quashed and a new trial ordered.

Orders