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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…
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
AGLC
Fairburn v R [2010] NZSC 159
Case
[2010] NZSC 159
Decision Date
CaseChat Overview and Summary
The case of Fairburn v R involved a tragic car accident where Mr Darin Maxwell was killed after being driven at high speed by Ms Cyndi Marcia Fairburn, his former partner, who had him on the bonnet of her car. Ms Fairburn was convicted of murder, but she appealed on the grounds of trial counsel error. Her initial counsel, Ms Hughes, had failed to call expert evidence from a vehicle accident analyst to support the defence of accident, instead focusing on self-defence which the trial judge ruled was not available. Ms Fairburn's new counsel, Mr Earwaker, argued that the trial counsel's error resulted in a miscarriage of justice and that expert evidence should be admitted. The Supreme Court agreed, holding that the evidence was fresh and credible, and that it might reasonably have led the jury to return a verdict of not guilty on the charge of murder. The appeal was allowed, the conviction for murder was quashed, and a new trial was ordered. Justice William Young dissented, concluding that the new evidence was neither fresh nor sufficiently cogent to warrant a new trial.