Clarke v The Queen - [2011] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2011

[2011] NZCA 516

BETWEEN DANIEL HAMIORA CLARKE
Appellant

AND THE QUEEN
Respondent

Hearing: 7 September 2011

Court: Glazebrook, MacKenzie and Asher JJ

Counsel: E J Forster for Appellant
L C Preston for Respondent

Judgment: 3 October 2011 at 4.00 pm

JUDGMENT OF THE COURT

A. The appeal against conviction is dismissed.

B. The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given By MacKenzie J)

Introduction

At about midnight on 5/6 December 2009, a car with two passengers being driven by the appellant failed to take a bend leading up to the Papatawa rail over bridge on State Highway 2 near Woodville, and crashed into the bridge abutment. The front seat passenger, Andrea Pramm, was killed. The rear seat passenger, Shayla Lawson, was seriously injured. The driver, the appellant, stood trial before Gendall J and a jury in the High Court at Palmerston North in February 2011 on one count of manslaughter and one count of excess blood alcohol causing injury. He pleaded guilty to the excess blood alcohol count and was found guilty by the jury on the manslaughter count. On 25 March 2011 he was sentenced to a term of five years six months imprisonment.[1] He appeals against both conviction and sentence.

The appeal against conviction

[1] R v Clarke HC Palmerston North CRI-2010-039-152, 25 March 2011.

There are two grounds raised in the appeal against conviction:
(a)the admissibility of a text message from the deceased passenger; and
(b)a challenge to the correctness of the Judge’s answer to a jury question.

(a) Text message

The Crown had given notice of intention to offer hearsay statements in evidence. Those were text messages said to have been sent from the phones of Ms Pramm and Ms Lawson during the afternoon and evening of 5 December, including messages sent while travelling in the car shortly before it struck the over bridge. Both women were unavailable as witnesses. Ms Pramm died in the crash. Ms Lawson sustained such serious head injuries that she had a brain injury and no memory of the event.
There are three messages which are particularly relevant for this appeal. We set these out, giving in each case the actual message and, in brackets, the Crown’s interpretation of the meaning of the message as put before the jury:
(a)A text message from Ms Lawson’s phone timed at 00.00.52 reading: “DanZ drive safe” (Danz driving safe).
(b)A text message from Ms Lawson’s phone timed at 00.04.13 reading: “Haha safe aZz yup me wil..C yuz ova thea..Pasn oringi” (Haha safe as, yeah I will tell him. See you guys over there. Passing Oringi).
(c)A text message from Ms Pramm’s phone timed at 00.04.27 (and said by the recipient to have been received just after midnight) reading: “Omg. my m8 cnt drive str8 in my car” (Oh my god my mate can’t drive straight in my car).
No objection was taken to the admission of the text messages to and…

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.

Continue reading Clarke v The Queen

Details

AGLC: Clarke v The Queen [2011] NZCA 516
Case: [2011] NZCA 516
Decision Date: 3 October 2011

CaseChat Overview and Summary

Daniel Hamiora Clarke appeals against his conviction and sentence for manslaughter and excess blood alcohol causing injury. The appellant was driving a car with two passengers when it failed to take a bend and crashed into a bridge abutment, resulting in the death of one passenger and serious injury to another. The appellant pleaded guilty to excess blood alcohol causing injury but was found guilty of manslaughter by a jury. The court of appeal dismissed both the appeal against conviction and sentence.

The appeal against conviction raised two issues: the admissibility of a text message from the deceased passenger and the correctness of the Judge’s answer to a jury question. The text message in question was deemed reliable by the trial judge and was properly admitted as evidence. The court of appeal found that the circumstances relating to the text message provided reasonable assurance that the statement was reliable and that it was appropriate for the jury to assess its weight and accuracy. The court also found that the Judge's response to the jury question was correct and did not misdirect the jury on the elements of the offence.

The appeal against sentence was based on the argument that the jury's first question indicated that they thought it a reasonable possibility that the back seat passenger's failure to wear a seat belt contributed to the front seat passenger's death. The court of appeal found that the trial judge was entitled to take the view of the facts that he did and that even if the back seat passenger had not been wearing a seat belt, the appellant's driving would still be a substantial and operative cause of death. The court found that the sentence imposed was within the available range.

In conclusion, the court of appeal dismissed both the appeal against conviction and sentence, upholding the appellant's conviction for manslaughter and excess blood alcohol causing injury and the sentence of five years and six months imprisonment.

Orders