Earl v Police
[2014] NZHC 911
•6 May 2014
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 RespondentJudgment:
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 mirror and, when he was 300 to 400 metres in front of it, he says he saw Mr Earl’s vehicle head completely onto the wrong side of the road in a big arc motion. He saw the small white car braking heavily, whereas the other vehicle seemed to maintain the same speed and take no evasive action. The impact followed, with the Holden utility and trailer rolling and coming to rest off to the side of the southbound lane, but facing the road, whereas the Honda Jazz spun around and stopped on the verge of the northbound lane.
[8] The other witness to the crash was Mr Lindegreen. He was travelling south to Dunedin in a work truck behind the Hubbards’ vehicle, although he says he was not aware of their car until “all hell broke loose in front of me”. He estimated he was about 200 metres away from the scene of the accident. He recalled an image of the white car drifting into the northbound lane. He also had images of dust and glass and cars going everywhere. While he acknowledged his recollection was “fragmentary” and “disjointed”, his recollection was that he saw the image of the white car drifting over the centre line before, not after, the impact.
District Court decision
[9] The District Court Judge’s decision begins by summarising the agreed facts and identifying the key issue in dispute. He explains that the defence case is that moments before the impact, the Hubbards’ car had wholly, or almost wholly, crossed the centre line into northbound lane and that Mr Earl swerved to avoid it to avoid a head-on collision in the northbound lane, but that this led to a collision in the southbound lane because Mrs Hubbard directed her line of travel back into it. The Judge recorded that if Mr Earl was taking evasive action in this way, or if there was a reasonable doubt as to whether he did or not, then he was entitled to be acquitted.
[10] The Judge then summarised the evidence given by Mrs Hubbard, Mr Gee and Mr Lindegreen as set out above, as well as Mr Earl’s statement to the police and the evidence of Dr Rodwell, a medical specialist who attended upon Mr and Mrs Hubbard and Mr Earl. Dr Rodwell gave evidence that Mr Earl suffered “pre- incident amnesia, but his memory of the noise during the crash indicated no post- incident amnesia”. He said pre-incident amnesia was consistent with both a head injury or falling asleep. However, to have pre-incident amnesia alone, with no post- incident amnesia, was in his opinion, “most unusual with a head injury”. In his 39 years of practicing medicine he had never seen a head injury with only pre-incident amnesia.
[11] Critical from Mr Earl’s point of view is the Judge’s assessment of Mr Gee’s and Mr Lindegreen’s evidence. The Judge concluded that “Mr Gee’s account is substantially consistent with the crash investigator’s analysis as to the movements of
the vehicle immediately following the impact”. The Judge accepted that Mr Gee was a reliable witness and concluded that if Mr Earl’s vehicle had veered into the southbound lane to avoid the Hubbards’ vehicle, Mr Gee would have seen that, but he did not.
[12] The Judge acknowledged that the evidence of Mr Lindegreen was critical to the defence case and assessed him as an “honest and sincere witness”. However, he noted that Mr Lindegreen had difficulty, and continued to have difficulty, in reconciling his image of the Honda straddling the centreline with his observations of the impact and what he has since learnt about the position of the impact. He concluded that “the image he described of the Honda straddling the centreline entered his conscious mind only after the crash”. He noted errors in Mr Lindegreen’s account, for example, he says “his estimate that the defendant’s vehicle was five metres distant from the Honda in his image cannot be correct because there would have been insufficient time for either vehicle to move into the southbound lane before colliding. Also in his recollection of the post-impact events, he reversed the motions of the Honda and the utility, which casts some doubt on the reliability of his perception as to what was happening, or of his memory as to what had happened”. He concludes that “To the extent that their accounts are in conflict, therefore, I accept Mr Gee’s evidence and reject Mr Lindegreen’s evidence”.
[13] The Judge ultimately concluded that Mr Earl’s Holden utility veered across the roadway into the southbound lane and into the path of the Hubbards’ Honda because he was drowsy or had fallen asleep. The fact that Mr Earl had no memory of the events leading up to the impact, but recalls what happened post-impact, was more consistent with that scenario than with amnesia caused by injury. He therefore found the element of carelessness in both charges proved beyond reasonable doubt, leading to a finding of guilt on both charges.
The appeal
[14] The appellant submitted that the conviction should be quashed because the Judge’s decision was either unreasonable or could not be supported by the evidence. In submissions this argument was developed in reliance on the following matters:
(a) The Judge ignored the evidence that Mr and Mrs Hubbard could not have stopped for five to 10 minutes to eat ice-creams after leaving the Glenavy store, taking into account the time security video showed them leaving the store, and the time the crash occurred. This led to the possibility that Mrs Hubbard was still eating her ice-cream in the car which distracted her. Furthermore, the Judge “effectively reversed the onus” by stating that he could not “safely conclude” that Mrs Hubbard was eating her ice-cream at the moment of impact or immediately before it. In expressing it in this way the Judge has erroneously failed to assess whether it was a reasonable possibility that Mrs Hubbard was eating her ice-cream at the moment of impact, or immediately before it.
(b) The Judge made no reference to inconsistencies contained in
Mrs Hubbard’s evidence.
(c) The Judge’s conclusion that Mr Gee was a reliable witness failed to take into account that his reliability was undermined through cross- examination. Specifically:
(i) the Judge failed to take into account inconsistencies between
Mr Gee’s statement to the Police and evidence given in Court;
(ii)he failed to take into account the length of time between the accident and when Mr Gee first spoke to the police (approximately 30 days);
(iii)he failed to consider that Mr Gee observed the accident from a distance of approximately 400 metres in a low vehicle in his rear view mirror;
(iv)he failed to take into account that Mr Gee’s attention would be divided between driving forward and watching what was going on the road in front of him and glancing in the rear view
mirror as he was moving away from the defendant’s vehicle at
approximately 100 kilometres per hour;
(d)While the Judge was entitled to cast doubt on the reliability of Mr Lindegreen’s evidence, he did not apply the same reasoning when assessing Mr Gee’s evidence, even though Mr Gee was also mistaken as to some post-impact events.
(e) The Judge failed to take account of cross-examination of the expert accident investigator who conceded that the defence case was plausible.
(f) The Judge failed to take into account evidence elicited in cross- examination regarding the reasonable possibility that the appellant’s memory was affected by his head injury and not because he fell asleep.
[15] In totality, the appellant’s case was that the Court could not exclude, as a reasonable possibility, the scenario that the Hubbards’ car crossed the centre line first, and that the appellant’s vehicle swerved right to avoid a head-on collision, followed by the victim’s car coming back into the southbound lane and the collision occurring at that point.
Approach to appeal
[16] There was no dispute regarding the approach to this appeal. As summarised by Kos J in the case of Police v Richmond:1
These appeals are governed by ss 115 and 119 of the Summary Proceedings Act 1957. It is a general appeal to be heard by way of rehearing. The onus lies on the appellants to satisfy the Court that the grounds of their appeals have been made out and that this Court should differ from the original District Court decisions. The appellate Court must come to its own view on the merits.
[17] However, as was said in Timoti v Police:2
1 Police v Richmond [2013] NZHC 356 at [20].
In forming its own opinion on the evidence, this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge’s findings of fact or fact and degree were wrong.
[18] In the present case where the ground of appeal is that the decision was unreasonable and cannot be supported having regard to the evidence, I am essentially undertaking a review function to decide whether the Judge, having regard to all the evidence and directing himself properly on the law “could not reasonably have been satisfied beyond reasonable doubt that the accused was guilty of the offence
charged”.3
Discussion
[19] The first issue raised on appeal was the Judge’s conclusion that “I could not safely conclude that Mrs Hubbard was eating her ice-cream at the moment of impact or immediately before it, or that she was distracted by chocolate dropping on her cardigan”. The significance of this was that, had Mrs Hubbard been eating her ice- cream, this would have provided a reason for her to be sufficiently distracted to veer over the centre line.
[20] While I accept that the Judge was in error in the way he expressed this conclusion, because it suggests an onus on the defence to prove the defence case, I am satisfied that there was ample evidence on which he could discount the reasonable possibility that she was distracted by ice-cream when the accident occurred.
[21] First, on the issue of timing, it was immaterial whether her stop was three minutes (as suggested by security video timing at the Glenavy store) or five or more minutes as Mrs Hubbard’s evidence suggests. Clearly there was time for the stop to have occurred. Despite being repeatedly cross-examined on the issue, Mrs Hubbard was clear in her recollection of stopping to eat her ice-cream and had a good
recollection of exactly where on the road that was. Finally, and most importantly, as
2 Timoti v Police HC Auckland CRI-2009-404-000320, 17 December 2009 at [19].
3 Police v Richmond, above n 1, at [22].
the Judge pointed out, the police examination of the vehicle found no evidence of uneaten ice-cream or chocolate in the vehicle.
[22] As it was, Mr Westgate conceded in the hearing that this issue was probably something of a “red herring”. I agree, and am satisfied there was an ample basis for the Judge discounting, as a reasonable possibility, that Mrs Hubbard was distracted by ice-cream at the time of the crash.
[23] Of far more moment to the defence case was the contest between Mr Gee’s and Mr Lindegreen’s evidence. Neither of them knew the occupants of the vehicles, and both appeared to give honest, independent evidence to the best of their ability. However, the Judge concluded that Mr Gee was the more reliable witness and preferred his evidence over Mr Lindegreen’s.
[24] His reasons for this conclusion are fully explained. Mr Gee’s attention was drawn to Mr Earl’s vehicle prior to the crash because it seemed to be driving quite erratically, including moving across the centre line and then abruptly coming back into his own lane on two occasions. He then had a clear recollection of the red Holden utility heading completely onto the wrong side of the road in a big arc motion which “definitely got my attention”. He recalls seeing the white car about two to three seconds before impact “absolutely 100 per cent in their lane”. Just prior to the collision he says he could “see the little white car braking extremely heavy” as he saw the red vehicle heading across the road to collide with the white vehicle. He then recalled seeing the red vehicle roll and the white vehicle spin across the road to end up on the opposite side of the road from where the Holden utility ended up.
[25] Despite the fact he was seeing this through his rear vision mirror, it was a logical and sequential description of the accident that lined up well with the scenario described in the accident investigation report.
[26] While Mr Westgate emphasised that there were errors and inconsistencies in Mr Gee’s evidence, none of those struck me as material errors. For example, when he initially saw Mr Earl’s vehicle he thought it was a “people mover”, but he later identified it as a utility. This was clearly a superficial error which was corrected as
he had more reason to pay attention to what the vehicle was doing. Mr Gee readily accepted that he was some distance from the impact and looking in the rear view mirror while driving in the opposite direction, but none of that appeared to have any impact on the clarity with which he recalled the events of the accident. In respect of his recollection that, post-impact, the white car was heading forwards onto the wrong side of the road and then backwards, Mr Gee accepted that was erroneous. However, again, that seems a relatively minor detail which does not undermine the key aspects of his evidence. Importantly, he was unshakable in his evidence that, despite the time lag before giving a statement, the limited view, and his distance from the vehicles, he did not make a mistake about the red utility being the only vehicle in the wrong lane pre-impact.
[27] The appellant’s submissions are critical of the Judge for discounting Mr Lindegreen’s evidence because of errors in it, when the Judge does not apply that same reasoning when assessing Mr Gee’s evidence. However, on reading the notes of evidence, it is quite clear why the evidence of Mr Gee is preferred over that of Mr Lindegreen. The errors he makes are relatively minor, and he readily concedes where he is mistaken, for example, on the path of travel of the white car post-impact. His narrative of events, when looked at overall, is chronologically ordered and cohesive, and is prompted by a reason to take more interest than usual in Mr Earl’s vehicle because of its earlier behaviour.
[28] Mr Lindegreen, in contrast, acknowledges frankly that he has a disjointed memory of events and that he is still trying to make sense of them. He acknowledges that he did not notice the white car in front of him until the accident happened, and his image of the white car crossing over the centre line was “like a white, dried out Polaroid picture with a white bit of plastic along the bottom and it’s stuck in my head”. However, in his recollection, he sees the red vehicle “also holding his line … in the northbound lane. I see the red car in what I would consider to be the correct position”. If this was seen pre-impact then it would have been expected that he would have also seen the next stage in the defence sequence of events, which was both vehicles moving into the southbound lane where the accident happened. However, he does not recall that. Instead his only other recollection was
of the movement of the vehicles post-impact. It was clearly open to the Judge to make the finding that he did on which eye witness account was more reliable.
[29] The appellant’s submissions then move to the Judge’s assessment of Dr Rodwell’s evidence and, in particular, the Judge’s failure to find that it was a reasonable possibility that Mr Earl’s memory was affected by his head injury and not because he fell asleep.
[30] The Judge placed considerable weight on Dr Rodwell’s evidence that pre- incident amnesia alone would be most unusual with a head injury and was not something he had seen in 39 years of practice, including 16 years in a major trauma unit, when he was head of Middlemore Hospital’s Emergency Department. The Judge did acknowledge that it was a “possibility” that the head injury caused the pre- incident amnesia alone. However, on the basis of the evidence he heard, the Judge was entitled to discount this as a reasonable possibility, and to conclude that Mr Earl’s lack of memory pre-incident was consistent with him falling asleep.
[31] The final criticism was that the Judge did not deal with the scientific evidence from the police crash analysis expert, Senior Constable Crosland, and that his evidence was sufficiently undermined by cross-examination to allow for it being a reasonable possibility that the victim’s car crossed the centre line first. However, the scientific evidence from the police expert reached conclusions which were consistent with the Judge’s findings, meaning it was strictly speaking unnecessary to repeat them.
[32] The crash investigation report concluded that:
9.28The momentum analysis demonstrates that Andrew Earl was travelling north and has crossed the centre line into the southbound lane at a minimum speed of 80 kph.
9.29There is no evidence to suggest that Andrew Earl attempted to reduce his speed or take any other kind of avoidance action before the impact.
9.30 This is characteristic of a somnolent driver.
9.31Margaret Hubbard was travelling south in the correct lane. She reacted to the situation by braking and managed to reduce her speed to less than 17 kph at impact.
9.32 This is a characteristic of an alert driver.
[33] At Section 8 of his accident investigation report, the crash analysts spent considerable time calculating the time and distance which would have been involved for Mrs Hubbard to have completed the manoeuvre required for the scenario to have occurred, and for her still to have had time to resume her correct travel path and brake before the head-on collision occurred in the southbound land.
[34] At paragraphs 8.18 to 8.21 he concludes that the total distance required for Mrs Hubbard, travelling at 90 kph to swerve from the centre line of the southbound lane, across the centre line and back, would be between 73 and 107 metres and would take between 2.94 and 4.28 seconds.
[35] Because the area of impact showed the Honda was travelling straight along the southbound lane at impact, it had completed any out of lane excursion before the crash and any other impact scenario is “impossible”. To then have braked to a stop in a straight line, he calculates would have taken the total time to complete the manoeuvre to between 5.3 and 5.8 seconds.
[36] Furthermore, at paragraph 8.30, he says that Mrs Hubbard must have perceived the hazard of the oncoming utility at least 4.3 seconds before the collision. Less than 100 per cent braking and/or slower perception and reaction times would result in a longer time to both react to a hazard and to brake from a speed of 90 kph to zero kph. In other words, the red vehicle must have been apparently coming towards her for at least 4.3 seconds before the impact occurred for her to have completed her braking response in the way she did.
[37] He also records at paragraphs 9.24 to 9.26, that if Mrs Hubbard had crossed the centre line into Mr Earl’s path, and he reacted to that event by braking then, including a 1.5 second perception/reaction delay, he could have stopped in sufficient time to avoid a collision. However, based on his calculations, he says
Mrs Hubbard’s vehicle would have been back in the southbound lane before Mr Earl had even managed to touch the brake pedal.
[38] In short, Senior Constable Crosland’s calculations in his report make the defence scenario highly improbable. The manoeuvres involved required significant physical space and time in order for the impact to have occurred in the way it did, where Mrs Hubbard was back in her own lane, travelling straight and with time to respond to the hazard of the utility in her lane.
[39] It would also be surprising that Mr Lindegreen did not see any of the vehicle movements which would have had to occur over a period of several seconds between him seeing the white car in the northbound lane, and the subsequent impact, if the defence scenario was correct.
[40] While Constable Crosland’s acknowledged, under cross-examination, that it was a “possibility” that Mr Earl’s vehicle turned to cross the lane and straightened up his vehicle before impact, this is clearly not the scenario he favours in his report as the most logical explanation for the physical evidence of the crash.
[41] More importantly, though, the Judge had to assess the evidence in its totality. While individual pieces of evidence, on their own, will not necessarily suffice to prove guilt beyond reasonable doubt, when the evidence is looked at in totality, the cumulative impact of evidence pointing to one scenario over another can be sufficient to prove guilt beyond reasonable doubt.
[42] In the present case I am satisfied that this is such a case. The cumulative weight of the evidence supporting the prosecution scenario, including Mr Gee’s cogent eye witness evidence, the expert crash analysis which concludes that Mr Earl veered over the centre line without taking any evasive action, while Mrs Hubbard stayed in her own lane and did take evasive action, and Dr Rodwell’s evidence that Mr Earl’s pre-incident amnesia alone was far more likely to be caused by sleep than a head injury, point to the District Court Judge’s decision being reasonable.
[43] For these reasons I am satisfied that the District Court Judge’s decision was reasonable and could be supported by the evidence. The appeal against conviction is therefore dismissed.
Solicitors:
J A Westgate, Barrister, Dunedin
Gresson Dorman & Co, Timaru