Earl v Police - [2014] NZHC 911

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-476-000007 [2014] NZHC 911

ANDREW JOHN EARL

v

NEW ZEALAND POLICE

Hearing: 2 April 2014

Appearances:

J A Westgate for Appellant
A R McRae for the Respondent

Judgment:

6 May 2014

JUDGMENT OF DUNNINGHAM J

[1] Early in the afternoon of 2 September 2011, on a straight, dry section of State Highway One in North Otago, a head-on collision occurred between Mr Earl’s Holden utility and a Honda hatchback car driven by Mrs Hubbard. Sadly, Mrs Hubbard’s passenger, her husband Mr Hubbard, died as a result of the injuries he received in the crash. Mrs Hubbard was also injured.

[2] Neither Mr Earl, nor Mrs Hubbard, remember the impact itself or how it occurred. There were two eye witnesses who gave conflicting versions of what they saw. There was also forensic evidence gathered at the scene of the crash, which was analysed in an accident report.

[3] On 1 August 2013, after a Judge alone hearing, Mr Earl was convicted on two charges under s 38 of the Land Transport Act 1988 of operating a motor vehicle on a road carelessly and thereby causing the death of Alan James Hubbard and injury to
Margaret Jane Hubbard. Mr Earl now appeals those convictions. The basis of his

EARL v NEW ZEALAND POLICE [2014] NZHC 911 [6 May 2014]

appeal is that the Judge’s decision was either unreasonable or cannot be supported by the evidence.

Background

[4] The motor vehicle crash occurred on a straight, level section of State

Highway One about eight kilometres north of Oamaru.

[5] The defendant, Mr Earl, was driving a red Holden Rodeo 4 x 4 utility and was towing a trailer. Mr Earl had left a property he was working on in Milton that morning to travel north back to Nelson. Mr and Mrs Hubbard were making an impromptu trip from Ashburton to Oamaru to see Mrs Hubbard’s brother and his wife. They stopped briefly at Glenavy township where Mr Hubbard purchased ice- creams prior to resuming their journey south.

[6] The crash itself occurred in the southbound lane. At the point of impact, Mr Earl’s northbound vehicle had crossed over to, and was in the lane that Mrs Hubbard was travelling south in. That is not in dispute. What is in dispute is what occurred in the moments before to cause both vehicles to be in the same lane heading towards each other.

[7] There were two witnesses to the accident. Mr Gee was travelling in front of Mr Earl and was also headed north. In the minutes preceding the crash, Mr Gee said he noticed erratic driving on the part of Mr Earl, and in particular, Mr Earl drove wide on a bend and crossed the centre line. He had expected Mr Earl’s vehicle to overtake him, but when he did not, he was relieved to gain some distance on Mr Earl’s vehicle. He then continued to check on this vehicle in his rear view…

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: [2014] NZHC 911
Decision Date: 6 May 2014

CaseChat Overview and Summary

In the case of Earl v Police, the appellant, Andrew John Earl, appealed against his convictions under section 38 of the Land Transport Act 1998 for operating a motor vehicle carelessly and thereby causing the death of Alan James Hubbard and injury to Margaret Jane Hubbard. The collision occurred when Mr Earl’s vehicle crossed over the centre line and collided head-on with the Hubbards’ vehicle. Mr Earl argued that the convictions should be quashed as the decision was unreasonable and could not be supported by the evidence.

The legal issues in this case were whether the District Court Judge’s decision was unreasonable and whether it could be supported by the evidence. The appellant submitted that the Judge ignored certain evidence, failed to assess inconsistencies in the witnesses’ evidence, and did not properly assess the reliability of the witnesses. The appellant also argued that the Judge failed to consider the reasonable possibility that Mr Earl’s memory was affected by a head injury, rather than because he fell asleep.

The Court found that the Judge’s decision was reasonable and could be supported by the evidence. The Court held that the Judge had ample evidence to discount the reasonable possibility that Mrs Hubbard was distracted by ice-cream at the time of the crash. The Court found that it was open to the Judge to prefer the evidence of Mr Gee over that of Mr Lindegreen, as Mr Gee’s evidence was more reliable and consistent with the scenario described in the accident investigation report. The Court also found that the Judge was entitled to discount the reasonable possibility that Mr Earl’s memory was affected by his head injury, based on Dr Rodwell’s evidence. The cumulative weight of the evidence, including the eye witness evidence, expert crash analysis, and Dr Rodwell’s evidence, pointed to the District Court Judge’s decision being reasonable.

The Court dismissed the appeal against conviction.

Orders