Fairburn v R

[2010] NZSC 159

For a Court ready (fee required) version please follow this link

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 evidence but also countered it with a report from Dr Timothy Stevenson who took a different view.  The experts conferred and in a joint statement to the Court of Appeal they offered four possible explanations for the collision.

1.That Ms Fairburn deliberately drove into the oncoming vehicle; or

2.That Ms Fairburn in an attempt to dislodge Mr Maxwell from the bonnet of her car by a double swerve to her right and left accidentally drove into the oncoming vehicle; or

3.That in unsuccessfully endeavouring to regain directional control as she travelled around the bend immediately prior, Ms Fairburn accidentally crossed the centre line and into the path of the oncoming vehicle; or

4.That Ms Fairburn accidentally crossed the centre line by reason of restricted visibility caused by the presence of Mr Maxwell on the bonnet of her car and accidentally drove into the oncoming vehicle.

The two experts said that they were “unable to exclude any of these scenarios”.

[4]       The Court of Appeal nonetheless dismissed Ms Fairburn’s application to admit the evidence of Mr Marks, saying that it was neither fresh nor cogent in the circumstances of the case.  The Court dismissed her appeal against conviction.[1]

[1]      Fairburn v R [2010] NZCA 44 per Hammond, Panckhurst and Keane JJ.

[5]       Ms Fairburn then changed her legal counsel for the purpose of an appeal to this Court.  Her new counsel, Mr Earwaker, has put her case for the first time on the basis of trial counsel error, supporting it with affidavits from Ms Fairburn herself and from Ms Hughes.  Because of the unusual course events had taken, with Ms Hughes having continued to appear for Ms Fairburn in the Court of Appeal, we provisionally admitted those affidavits and granted the Crown’s application to cross-examine the deponents.  Having heard that evidence and submissions from counsel concerning it, we must now decide whether it should be admitted, together with the evidence of the crash analysts, and whether there should be a new trial.

The facts

[6]       To this point in these reasons we have, like the two experts, focused only on the collision and not on the events preceding it.  They were in fact more the focus of the Crown’s case at trial because the crash scene evidence was quite limited, with a number of significant matters being the subject of admission by written agreement.  The evidence about the accident was equivocal and the Crown’s case depended on the prior events in order to prove murderous intent.  To those events we now turn.

[7]       In August 2007 Ms Fairburn and Mr Maxwell were no longer living together but had an infant daughter.  Ms Fairburn formed the belief, which subsequent investigation has shown to be apparently unfounded, that Mr Maxwell had sexually interfered with their daughter.  She was very angry about that and went to the police.  She was not happy when the police responded cautiously and declined to make an immediate arrest of Mr Maxwell.  She talked to friends about “taking Mr Maxwell out” and spoke of poison and the use of a stun gun.  She made enquiries about getting a taser.  The friends to whom she spoke in this way do not appear to have taken her words seriously.

[8]       On Monday 6 August Mr Maxwell attended a tangi near Inglewood.  Ms Fairburn went to Inglewood and again spoke to people about killing Mr Maxwell.  Early in the evening she drove her car to a hotel in Inglewood where she anticipated, correctly, that Mr Maxwell would be drinking.  She said she intended to tell him to stay away from her and their child.  Over the course of a few hours both remained in the bar although for most of the time they were not together.  They quarrelled.  At about 9.45pm Ms Fairburn left the bar and went to her car.  Mr Maxwell appears to have followed her, although exactly what happened between them at that time is unclear.  On one view, he was concerned to prevent her driving away after having consumed alcohol.  She said that she had told him when she went to leave the bar that he was never going to see her again.  She also said that he got onto the bonnet of the car when she was in it and began smashing his head against the windscreen and was “yelling and screaming” at her.  She said that this made her very afraid because Mr Maxwell “had always told me that I would never leave him alive”.  She said she was in shock and that there was “no one around”.  She could not say why she did not sound her horn.  She did not think to use her phone.  She began driving with a view to going to the Inglewood Police Station but then realised that at that time of night it would be closed.  She said that she kept driving but tried to draw attention to her situation when still in Inglewood “by having a few jolts on the road”.  She said she expected someone would have rung the police.

[9]       There was evidence from a witness, Mr McLaughlin, who saw a vehicle at the outskirts of Inglewood veering wildly across both lanes of traffic, with other cars having to avoid it.  That witness estimated the car’s speed at a little over 50 kph.  A man was observed to be lying face down on the bonnet of the car with his legs over the front of the headlights, hanging onto the top of the bonnet at the level of the windscreen.  As the car veered around he was sliding across the bonnet.

[10]     Ms Fairburn continued driving in the direction of New Plymouth.  Another prosecution witness, Mr Jones, was going in the same direction and was overtaken by Ms Fairburn’s car near Egmont Village, some 7 km from Inglewood.  Her car was “doing at least 120 kph”.  There appeared to be something draped on the bonnet.  The witness also noticed the brake-lights on Ms Fairburn’s car coming on and off although it did not seem to be slowing down significantly.  Following at a distance, he also saw the hazard lights being used.

[11]     The fatal accident occurred at approximately 9.55pm about 60 metres through (that is, north of) the intersection of State Highway 3 and Mangorei Road.  That point is 13.1 km from the hotel car park.  The intersection is on a left-hand curve in the highway.  Ms Fairburn’s vehicle, a Mazda, moved onto the wrong side of the

road and ran head-on into an Isuzu Trooper driven by a Mr X,[2] who was very seriously injured.  He did not give evidence but it was accepted that he had had no opportunity to react and had not braked before the collision.  The Isuzu was being followed by a Toyota van driven by Ms Smillie.  Her vehicle hit both the other vehicles.  She was slightly injured.  She was called as a witness and said that she had seen the oncoming vehicle “wandering a little”.  She also said that as it came closer it veered very suddenly in front of Mr X’s vehicle and collided with him.  But she also told the Court that the oncoming vehicle had started “wavering” shortly before the intersection and at one point was “wavering a lot”.  She indicated by reference to a scene photograph that the wavering action continued through to the point of impact.  She estimated Ms Fairburn’s speed at that time at “about 80-90 ks”.

[2]      A name suppression order has been made in relation to this person.

[12]     No mechanical faults were found in either vehicle which could have caused or contributed to the crash.

[13]     The agreed statement of facts put before the jury recorded that the crash “was a centred impact, head-on collision between the Mazda and Isuzu vehicles”.  It recorded that there were no tyre friction marks on the roadway, which indicated that there was no braking by the Mazda or the Isuzu prior to the crash.  At the time of the impact the Mazda was wholly on the incorrect side of the road.  The statement also said that “the Mazda’s movement into the southbound lane was due only to the accused’s action”.

[14]     Ms Fairburn suffered a head injury in the collision as well as other very serious injuries.  She has no memory of anything after she began to enter the intersection, that is, of the last couple of seconds before impact.  She said that during the drive from Inglewood, intending to go to New Plymouth, she was trying to see around Mr Maxwell and was concentrating on the centre line of the road.[3]  She had

blinkers and hazard lights on at times and used her brake lights to try to attract attention.  She said some vehicles passed her going the other way, that is, towards Inglewood.  It was beginning to rain as she approached the intersection beyond which the collision occurred.  She could not use the windscreen wipers with Mr Maxwell on the bonnet.  She did not remember seeing the Isuzu.  She had been thinking whether to go straight ahead to the police station or to turn right into Mangorei Road where a friend lived.

[3]In her affidavit in this Court she said that she remembered that “just prior to the accident it started to rain and that I was driving by looking out my side window as I could not see through the front windscreen with Mr Maxwell on the bonnet”.  She also said that she remembered “becoming confused by all the white lines on the road.”

[15]     The Crown case was that she deliberately veered into the incorrect lane when she saw approaching vehicles and then straightened up so as to hit the Isuzu head-on.  Ms Fairburn had no memory of this.  In answer to a question, she admitted that she knew that if someone fell off the bonnet at 90 kph they would be killed.

[16]     Ms Fairburn also gave evidence that Mr Maxwell had in the past made threats to her and had inflicted physical abuse, such as slapping her and cutting her with a knife.  She had on more than one occasion gone to a women’s refuge.  On one occasion also, she said, he had jumped on the bonnet of a friend’s car which she herself had been intending to drive.  But when the friend went to ring the police he had removed himself from the bonnet.

[17]     A psychiatrist called for the defence testified that Ms Fairburn suffered from borderline personality disorder with some features of post-traumatic stress disorder, which was consistent with her report of suffering physical and sexual abuse as a child.  This could trigger extremes of emotion.  People with this condition may perceive a threat when it does not exist and may panic easily.  They may also be more prone to anger and poor and impulsive decision-making.

The trial

[18]     At the outset of Ms Fairburn’s trial, defence counsel advised the jury that Ms Fairburn’s defence to murder was to be that she had acted in self-defence.  At the end of the Crown case, however, the Judge heard submissions on whether that defence was available and determined that he would not leave that question before the jury.  He said that he was satisfied that no jury could possibly conclude that the force used by Ms Fairburn in driving her vehicle across the centre line of the road at a speed of about 90 kph, knowing Mr Maxwell was on the bonnet, was a reasonable or proportionate response to the circumstances as Ms Fairburn allegedly understood them to be.  He recorded in his ruling that in fact Ms Hughes’s principal argument had been that Ms Fairburn made an error of judgment in veering accidentally or involuntarily to the right.  Counsel had not suggested that that discrete act was done in self-defence for the purpose of protecting herself from Mr Maxwell.  The defence case was, instead, that Mr Maxwell’s death was an unintended incident of that act.

[19]     The Judge said that a concurrent argument of justification of purposely driving in a dangerous manner to protect herself from imminent harm from Mr Maxwell, would be directly antithetical to that proposition.  Defences of justification and inadvertence would be inherently contradictory, and would confuse the jury.

[20]     The defence case was therefore reduced to one of accident, which left it open to the jury to convict Ms Fairburn of the manslaughter of Mr Maxwell based on the unlawful act of dangerous driving.  Plainly, however, by its verdict the jury concluded that Mr Maxwell’s death was not merely the result of an accident caused by dangerous driving but that Ms Fairburn had acted with one of the murderous intents alleged by the Crown.

The Court of Appeal

[21]     Two grounds of appeal were argued for the appellant by Ms Hughes in the Court of Appeal.  The first was that the Judge had erred in taking the justification of self-defence away from the jury.  This argument was rejected by the Court of Appeal for three reasons.  It said that there was no evidential basis for self-defence to be advanced because Ms Fairburn had not given evidence about what, at the time of the collision, she believed she needed to do by way of self-defence.  Furthermore, if Ms Hughes’s argument were accepted, what had occurred was an accident, not an application of deliberate force to which s 48 of the Crimes Act could apply.  Lastly, on the assumption that the Judge could properly exercise a screening function, that is, that a determination of disproportionate force was not exclusively a jury matter, the Judge had been correct to consider that the force used by Ms Fairburn could not possibly be viewed as reasonable.

[22]     The second ground of appeal was that in the Crown’s closing address counsel had made an inaccurate and improper statement, in asserting that Ms Fairburn had deliberately crossed the centre line, straightened and driven into Mr X’s vehicle (the Isuzu).  It was for the purpose of rebutting this suggestion, made it was said for the first time at that stage in the trial, that the appellant had sought leave to adduce, by way of rebuttal, the evidence of Mr Marks.  The Court of Appeal found, however, that the issue of “straightening” had in fact been put to Ms Fairburn in cross-examination.  It said that the Crown was perfectly entitled to suggest to the jury on the evidence which was before the Court that the jury could infer that this was a case of a deliberate head-on collision:[4]

Whether the jury was prepared to draw that inference was entirely a matter for it.  The Mazda had to straighten after it crossed the centre line, or it would have gone off the road.  It was for the jury to decide why it straightened, right into the path of the Isuzu.

[4] At [57].

[23]     Taking this view, the Court of Appeal declined to receive the evidence of Mr Marks.  It said it was not fresh, it could easily have been obtained before the trial, and the Court did not regard it as cogent or consider that it was necessary to admit it to avoid a miscarriage of justice.

The evidence of the vehicle accident analysts

[24]     But, as we have already explained, the case now comes to us on a very different basis.  The argument in this Court is that trial counsel erred in approaching the trial with a primary reliance upon self-defence, which was bound to fail for the reasons given in the Courts below, and neglecting to call evidence from a vehicle accident analyst who was able to show that, whatever preceded the collision, that event could have been accidental.  Looked at on this basis, it was submitted, the further evidence should have been admitted.

[25]     The principles to be applied by an appeal court when considering the admission of further evidence were stated by the Court of Appeal in its judgment in R v Bain[5] and approved by the Privy Council in that case.[6]  It is worth repeating what the Court of Appeal said:

[22]     An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant's point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[23]Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.

[24]If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.

...

[26]     It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.

[27]     The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control. ...

[5]      R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27].

[6]      Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].

Although not so described in this passage, the third screen or control is often referred to in terms of “cogency”.

[26]     What exactly was the content of the proposed evidence of Mr Marks?  His report on the collision, prepared for Ms Fairburn’s counsel, was written in October 2009, some two years and two months after the event.  He had the notes of evidence from the trial as well as a report prepared by a senior constable and a number of photographs which were produced at the trial.  He also had some drawings made by witnesses, including particularly by Ms Smillie, in an endeavour to record what they had seen.

[27]     The most significant aspect of the expert opinion of Mr Marks, it seems to us, relates to the position of the Mazda relative to the Isuzu at the moment of impact.  It will be recalled that the written statement of facts admitted in evidence by consent said that the collision was “a centred impact, head-on collision” between the two vehicles.  The senior constable’s report also had said that the impact was “centred”.  Mr Marks disagreed.  He described the impact as head-on but “offset to the right by about 0.5 to 0.6 metre”.  In his opinion:

The respective crush angles at the front of the Isuzu and the Mazda give strong support for the contention that they collided when on close to opposing parallel paths, with the Mazda’s path likely to have been angled anticlockwise a small amount relative to that of the Isuzu.  In other words, on a heading angled a small amount towards its correct side of the road.

His opinions about what Ms Smillie described seeing (“wavering”) were as follows:

... First, with the wet road the light reflections would undoubtedly obscure the road markings for the lane in which the Mazda was travelling, especially the centreline which is the limiting guide for drivers travelling in that direction.  Second, the presence of The Deceased on the Mazda’s bonnet is very likely to have created some forward vision obstruction for The Appellant that could have caused erratic steering entering the bend.  Third, the Mazda’s speed entering the bend would have been greater than its impact speed because speed would certainly have been lost during the “wavering” sequence and right swerve across the road centreline.

The Mazda’s speed at that stage could easily have been sufficiently great for directional control to have become marginal if The Appellant had misjudged the lane alignment when entering the bend and steered more sharply than normally required to recover her intended path through it.  Any such small steering aberration could easily initiate a momentary directional control loss leading to a sequence of diverging left and right over-corrections by The Appellant as the Mazda continued around the bend.  Alternatively, the Appellant could have simply misjudged the lane alignment because of her restricted view ahead combined with the effects of the wet road and initiated a sequence of diverging over-correction without exceeding the available road/tyre traction.

[28]     Mr Marks considers that Ms Fairburn must have been steering left for about 20 to 30 metres following a swerve to the right.  He opines that she was “either trying to avoid collision by steering left prior to impact or was trying to line up the Isuzu and collide with it.”  The latter possibility recognises that after crossing the centre line the Mazda would have had to straighten up if Ms Fairburn was to achieve a purpose of colliding head-on with the other vehicle.  However, Mr Marks says that he considers that his conclusion that the Mazda had been steering left before impact gives “added weight” to the contention that Ms Fairburn:

... either encountered incipient directional control loss as the Mazda entered the bend or that her view ahead was sufficiently obscured for her to slightly overshoot the bend centreline causing her to steer left much more sharply and that she over-corrected, causing a sequence of increasing swerves left and right that culminated in the final right swerve that took the Mazda into the opposing lane where she unsuccessfully tried to correct it by steering left.

[29]     In his conclusions Mr Marks again does not exclude the possibility that Ms Fairburn had “attempted to collide” with the Isuzu but says that an “at least equally likely explanation” for the Mazda’s sequence of diverging right and left swerves, which he believes Ms Smillie was describing as “wavering”, was directional control loss initiated by “erratic or late sudden steering” when entering the bend on State Highway 3 at its intersection with Mangorei Road.

[30]     The credibility and cogency of the proposed evidence of Mr Marks necessarily must be assessed not only against the evidence at trial but also taking full account of the views of the Crown’s expert, Dr Stevenson, formed after he had considered the opinion of Mr Marks.  Dr Stevenson agreed that the collision was slightly offset, with the Mazda probably slightly angled in an anti-clockwise direction, that is, angled left.  Dr Stevenson also accepted that the sudden right swerve of the Mazda as drawn by Ms Smillie would not have been possible.  He does not, however, accept that Ms Smillie’s description of the Mazda wavering is consistent with a scenario of loss of control.  She had not described a progressive and significant increase in the amplitude of left and right swerving.  Nor does he agree with the opinion that the Mazda’s impact speed was less than its speed when it entered the bend.  Dr Stevenson also refers to something not mentioned by Mr Marks:

In a head-on collision between a mid-sized 4x4 vehicle and a sporty compact lift-back some degree of over-ride would be expected, especially as in this instance the nose of the [Mazda] would be likely to be depressed lower than would be usual due to the weight of Mr MAXWELL over the front axle. Given the high closing speed between the two vehicles the influence of the bullbar on the front of the [Isuzu] would be expected to be minor.

It is apparent from the photographs of the vehicles that negligible over-ride occurred in this collision.  One possible explanation is that [Mr X] braked heavily immediately prior to impact, resulting in a nose-down attitude of the [Isuzu] at the moment of impact.  [Mr X] does not recall having sufficient time to initiate any response to the oncoming [Mazda].  It should be noted, however, that emergency braking when confronted with a path-intrusion situation is the most common driver response. ...

Another possibility for the lack of override by the [Isuzu] in this incident is that the [Mazda] was accelerating at the moment of impact.  Heavy acceleration would raise the nose of the vehicle and possibly prevent the [Mazda] from being overridden by a considerably larger and taller vehicle.

[31]     He also criticises Mr Marks’s report because it provides, in his view, no rationale or explanation of his weighting of the likelihood of the “loss-of-control versus in-control” scenarios.  In Dr Stevenson’s opinion, the balance of the evidence indicates that the Mazda was not out of control either at the moment of impact or immediately prior.

[32]     Nevertheless, when the experts conferred before the hearing in the Court of Appeal, they agreed that there were four possible explanations for the collision, two consistent with the Crown’s case and two with the defence of accident.  They were “unable to exclude any of these scenarios”.[7]

Admissibility of the further evidence

[7] See [3].

[33]     We turn now to whether the evidence of Mr Marks (and that of Dr Stevenson) should be admitted because it passes the three screens or controls discussed in Bain.  First, we consider that it must be regarded as “fresh” evidence.  It could of course have been obtained before the trial but we are satisfied that, as Mr Earwaker submitted, trial counsel did make 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.  Trial counsel, Ms Hughes, with commendable candour accepted as much in her affidavit filed in this Court and in her oral evidence.  We were not persuaded by the attempts of Mr Pike, for the Crown, to get her to change her critical view of her own conduct of the trial.  In this circumstance, particularly where Ms Fairburn’s loss of memory and observable confusion had left relevant decisions in the hands of trial counsel, it would be contrary to the interests of justice to rule the evidence out on the ground that it did not qualify as “fresh”.

[34]     We consider also that it must be regarded as credible evidence.  It comes from someone whose qualifications as an expert in vehicle accident analysis were not challenged before us and, whilst Dr Stevenson raises matters which may seem to contradict the opinion of Mr Marks, we cannot overlook the joint statement in which he too accepts that the collision could possibly have been an accident, although in his earlier report he was clear that that is not his preferred view.

[35]     The crucial question is whether the evidence of Mr Marks is cogent, meaning that when considered alongside the evidence given at the trial (and that of Dr Stevenson) it might reasonably have led the jury to return a verdict of not guilty on the charge of murder.  If that is established, it is, as the Court of Appeal said in Bain, logically impossible to apply the proviso to s 385(1).

[36]     The Crown case against Ms Fairburn must have appeared to be a strong one.  There was, first of all, Ms Fairburn’s apparent animus against Mr Maxwell, exhibited when she made her complaint to the police and in her anger and her expressed desire to kill him after it became apparent that the police would not proceed to make an immediate arrest.  Next, there was her action in seeking him out at the hotel in Inglewood.  Then, and most significantly, there was her action in driving out of the car-park of the hotel with him draped over the bonnet of her car and without trying to attract attention by sounding the horn or calling for aid on her cell phone.  She proceeded to weave her car around at about 50 kph in Inglewood in what could have been an attempt to dislodge him.  Then she drove at high speed towards New Plymouth when any rational person would have considered that, if Mr Maxwell had ever posed a threat to her, he was hardly likely to continue to do so after what he had already gone through.  Her actions were perfectly consistent with a continuing desire to do him harm by dislodging him from the bonnet by some means.  Finally, there were the circumstances of the collision which were put before the jury as a centred head-on crash, with no braking or evasive action on the part of Ms Fairburn.

[37]     Against this, however, there was the evidence of the psychiatrist who was of the view that Ms Fairburn was particularly susceptible of succumbing to panic in circumstances where others might not.  If her evidence of mis-treatment by Mr Maxwell were accepted, that might explain why she reacted as she did in the hotel car-park and thereafter.  There was also Ms Fairburn’s explanation of her behaviour when driving away from Inglewood that she was intent on getting to the nearest operational police station and that by weaving around and using blinkers and hazard lights she was trying to attract attention from people who would help her.  Pertinent, too, was the fact that the collision did not occur for a considerable distance from Inglewood when, according to her evidence, other vehicles had been passing her coming the other way so that she had had the opportunity of creating a crash which she had not taken.  Alternatively, if she wanted to dislodge Mr Maxwell, she could have simply applied the brakes at high speed.

[38]     Having reviewed the evidence of Mr Marks and the evidence given at trial, and taking account of the view expressed by Dr Stevenson, we have concluded that the new evidence could reasonably have made a difference to the jury’s verdict.  Importantly, it would have enabled trial counsel to point to the opinion of an expert when trying to persuade the jury that the crash was an accident and when cross-examining Ms Smillie on what she had seen.  Mr Marks says that the sudden veer to the right described by that witness could not have happened.  Contrary to the argument we heard from Crown counsel, it does seem to us that there is a basis in Ms Smillie’s evidence of “wavering a lot” for the opinion given by Mr Marks.  Crucially, perhaps, the jury was not made aware that, as the two experts are agreed, at the time of impact Ms Fairburn’s car was slightly angled back towards her correct side of the road.  At the trial the collision was presented to the jury as simply “a centred impact”, with nothing to suggest that Ms Fairburn might have tried to take evasive action.  Once the actual position of her car on impact becomes known, the case for an inadvertent crossing of the centre line becomes somewhat easier to argue, albeit that Dr Stevenson has countered by pointing out the lack of override by the Isuzu, in combination with the absence of any evidence of braking by its driver, suggesting a possible acceleration by Ms Fairburn at the moment of impact.  The jury also did not hear that even the Crown’s own expert agrees that the possibility of accident cannot be excluded.

[39]     In short, the defence of accident, that is, lack of murderous intent, was hopelessly handicapped at the trial by the lack of support from an expert.  With the evidence of Mr Marks it is reasonably possible, although far from certain, that the jury might have concluded that the Crown had not negatived the possibility that the collision was an accident, even if it was caused by the very dangerous driving of Ms Fairburn.  In other words, we cannot be sure that, if it had heard the evidence of Mr Marks, the jury would still have found Ms Fairburn guilty of murder, rather than manslaughter. 

Result

[40]     The evidence has been shown to be fresh, credible and sufficiently cogent and leave should be granted to admit it.  As a consequence, the appeal must therefore be allowed, the conviction for murder quashed and a new trial ordered.

WILLIAM YOUNG J

Overview

[41]     The case turns primarily on whether Ms Hughes QC made errors in the conduct of the case which resulted in a miscarriage of justice.  The primary error attributed to her is a failure to call expert evidence addressed to the circumstances directly associated with the impact (that is, what happened between the Mangorei Road intersection and the point of collision).  Given the central role in the appeal of the report by Mr Marks, and for ease of reference, I will treat and refer to this alleged error as the failure to call evidence from Mr Marks. 

[42]     I consider that the case falls to be assessed in terms of the principles discussed in Sungsuwan v R.[8]  As Elias CJ explained:

[7]       Counsel error is not itself a ground of appeal under s 385(1). The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused. Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed. The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.

[8]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

I think that the failure to call the evidence of Mr Marks was a relevant “deficiency in the trial” only if, upon a proper appreciation of the “additional evidence likely to have been elicited in response” (for practical purposes that of Dr Stevenson and possibly also of the driver of the Isuzu) and of “any risk to the defence in calling the evidence” of Mr Marks, the calling the evidence of Mr Marks would have materially increased Ms Fairburn’s chance of acquittal.

[43]     Counsel in a criminal trial have choices to make as to what evidence to call and what lines of argument to pursue.  This is more so of defence counsel,[9] for whom such choices are sometimes affected by uncertainty.  The orality of the trial process means that it is not always possible to predict in advance how the evidence of a particular witness will come across.  And it is just a fact of life (illustrated to some extent by the difference of opinion in this case) that a set of facts may strike different people in different ways.  The way in which a particular piece of evidence influences the ultimate verdict will depend in part on the impact on individual jurors of that evidence (which will necessarily be affected by their impressions of the other evidence in the case) and more importantly on how those individual jurors contribute to the collective deliberating process of the jury as a whole, a process which involves extremely complex personal interactions and is very difficult to model.  For those who have strategic trial decisions to make, the criminal trial process can sometimes seem to be a pretty chancy business.

[9]The choices available to a prosecutor are more constrained by law and convention.

[44]     Had Mrs Hughes called the evidence of Mr Marks, there would have been the potential for both advantage and disadvantage.  I entirely agree that the jury might have been influenced in favour of Ms Fairburn by the evidence of Mr Marks.  But the jury may have also been adversely influenced by the over-ride issue which would necessarily have emerged from the evidence in response.  It all depends on the vagaries of how the evidence would have played out and how the jurors collectively would have reacted to that evidence in light of their appreciation of the case as a whole.

[45]     The approach of the majority seems to be that there was a miscarriage of justice because:

(a)Ms Hughes made a mistake in failing to call evidence from Mr Marks;

(b)That mistake obviates the usual admissibility requirement for his evidence to be fresh; and

(c)Given the credibility and cogency of the evidence of Mr Marks, there is a reasonable possibility that Ms Fairburn would have been acquitted if Mr Marks had given evidence.

[46]     Where I differ from this analysis is primarily on the first point.  I see nothing inconsistent with (a) recognising (as I do) that if Mr Marks had given evidence along the lines of his report, there is a reasonable possibility that Ms Fairburn might have been acquitted, but (b) concluding (as I also do) that in fact her chances of acquittal would not have been better than they were with the defence as advanced.  On the basis of that conclusion, I do not see an error on the part of Ms Hughes which had a relevant adverse forensic impact on Ms Fairburn.  I thus consider the admissibility of the evidence of Mr Marks as being dependent on its either being fresh (which it obviously is not) or sufficiently cogent to obviate the need for freshness.  It is, I think, at least implicit in R v Bain[10] that where the freshness criterion has not been satisfied, the cogency threshold for admitting new evidence requires more than a mere showing that it might have resulted in a different verdict.[11]  As is no doubt implicit in what I have already said, I do not consider that the evidence of Mr Marks is sufficiently cogent.

[10]      R v Bain [2004] 1 NZLR 638 (CA) at [22]–[26].

[11]If the cogency requirement is not more exacting in relation to evidence which is not fresh, we may as well abandon the freshness requirement.

[47]     I accept that the actual defence strategy was adopted by default (in the sense that Ms Hughes did not assess the advantages and disadvantages of calling expert evidence as to the impact).  It follows too that Ms Fairburn was not given the opportunity to make an informed decision as to the defence strategy to be followed.  And of course both Ms Fairburn and Ms Hughes now maintain, post-verdict, that if only the evidence that Mr Marks could give had been appreciated before trial, that

evidence would have been called at trial.  In the particular circumstances of this case (given the nature of the defence, Ms Fairburn’s passive role in relation to the advice of counsel and the commonsense requirement for the defence to be conducted in a way which was to Ms Fairburn’s best advantage), I do not see these considerations as controlling.  It is important to keep steadily in mind the reality that ordering retrials is not a cost-free exercise in terms of the tangible and intangible effects on the justice system and those affected by the process.  If all that Ms Fairburn lost was the opportunity to run a case which, objectively assessed, was no better than the case that was advanced, I consider that there was no miscarriage of justice.

The errors attributed to (and acknowledged by) Ms Hughes

[48]     I accept that the pre-trial analysis and preparation of Ms Hughes was deficient.  She did not have a clear understanding of the path taken by Ms Fairburn’s Mazda between the Mangorei Road intersection and the point of impact, a distance of some 60 metres.  In particular, she had not realised that the Mazda must have made two distinct movements, that is, a turn to the right (so as to get onto the incorrect side of the road) and then a turn to the left (so that it was travelling on a path which was practically opposing that of the Isuzu).  That there must have been such a double movement was perfectly clear from the agreed statement of facts and the damage to the vehicles shown in the photographs produced at trial.  Her failure to grasp the obvious is surprising, at least at first sight.  It is, however, perhaps not so surprising once it is realised that the focus of the case at trial was not on the circumstances directly associated with the impact.  This is because it was common ground that those circumstances were consistent with both the murder theory advanced by the Crown and the accident theory put up by the defence.  The case really turned on whether murderous intent could be established by reference to the earlier conduct of Ms Fairburn.

[49]     I accept that prudence required Ms Hughes to obtain an engineering report.  Further analysis of the circumstances directly associated with the impact (that is going beyond that of the police accident investigator) was appropriate to see whether they provided any substantial support for the accident theory.

[50]     I note in passing that Ms Hughes also now regrets advancing self-defence as a discrete defence, and in the reasons prepared by Blanchard J the running of that defence is bundled up with her failure to call the evidence of Mr Marks.  As I understand the majority, however, the criticism of Ms Hughes in relation to the self-defence argument is just contextual.  It is not suggested that it would be likely to have had any adverse impact on the way in which the jury approached the case.  For this reason I see no need to discuss it, save to observe that the general narrative of self-defence was an essential part of Ms Fairburn’s defence as it provided an explanation for how she came to be driving with Mr Maxwell on the bonnet.

The Crown case as to murder

[51]     On the Crown case as run, establishing that Ms Fairburn had deliberately crossed the centre line was a necessary precondition to the Crown securing a conviction for murder and, to my way of thinking, was probably a sufficient precondition as well.  So in addressing the evidence, I will focus primarily on its relevance to the question whether Ms Fairburn deliberately crossed the centre line.

[52]     It is clear that the circumstances directly associated with the impact were consistent with a deliberate turn to the right by Ms Fairburn with the intention of either dislodging Mr Maxwell from the bonnet (relevant to liability for murder under s 167(b) of the Crimes Act 1961) or, alternatively, to get into position so that she could line up and run into the Isuzu (relevant to liability under s 167(a)).  The Crown case trial placed more emphasis on the first of these theories than the second.  Significantly, there was nothing associated with the circumstances directly associated with the impact which was inconsistent with the Crown case.

[53]     Likewise, however, the circumstances directly associated with the impact were consistent with the crossing of the centre-line being accidental.  The road follows a sweeping bend, the surface was wet and there are a number of road markings associated with the Mangorei Road intersection which could be regarded as distracting or confusing.  Mr Maxwell’s position on the bonnet of the Mazda meant that he was obstructing Ms Fairburn’s forward vision.  Ms Fairburn was, on any view, in an agitated state of mind. 

To what extent does the new evidence assist Ms Fairburn?

[54]     Three particular points which emerge from the report of Mr Marks are highlighted in the reasons prepared by Blanchard J: (a) the fact that each vehicle overlapped the other to the right by 500-600 millimetres; (b) that although the two vehicles were effectively on opposing paths at the point of impact, it is likely that the Mazda was angled slightly to the left; and (c) his opinion that the movements of the Mazda as described by Ms Smillie were consistent with a loss of directional control. 

[55]     That the vehicles overlapped each other to the right seems to me to be immaterial.[12]  On the other hand, I accept that the second and third of the points just mentioned support the argument that Ms Fairburn’s crossing of the centre line may not have been deliberate and that just before the impact she was trying to get back on to her correct side of the road.  I confess, however, to reservations about the reliance on the evidence of Ms Smillie, which seems to me to provide a frail premise for any conclusions.  Her account of the movements of the Mazda immediately before impact was plainly wrong,[13] and, at least according to the evidence given to us by Ms Hughes, she (that is, Ms Hughes) realised this.  Further, Dr Stevenson plainly does not agree with Mr Marks’s treatment of Ms Smillie’s evidence.  In any event, Mr Marks’s evidence is obviously not inconsistent with Ms Fairburn trying to dislodge Mr Maxwell by movements to the right and left and it is likewise not inconsistent with the deliberate collision theory.  Ms Fairburn did not need to collide with the Isuzu at an angle of precisely 180 degrees to ensure that Mr Maxwell died and, in any event, Ms Fairburn’s circumstances (driving at open road speeds with a man on the bonnet) and state of mind were not conducive to complete precision and accuracy in her driving. 

[12]I suppose that this point has been mentioned because the agreed statement of facts, based on a police investigator’s reconstruction, referred to a “centred impact, head-on collision”. 

[13]She described and depicted a sudden movement to the right resulting in the Mazda hitting the front right corner of the Isuzu at a 45-degree angle.

[56]     If Mr Marks had given evidence at the trial, he could have articulated in a scientific and credible way the various respects in which the circumstances directly related to the impact were consistent with accident.  Given the tone of his report, he may well have been something of an advocate for the accident theory.[14]  It is obviously possible that this might have influenced the jury in a way which is favourable to Ms Fairburn. 

[14]This comment is based particularly on the fact that in his report, which ostensibly was focused on the circumstances directly associated with the impact, the only reference to the more general context was to the fact that Ms Fairburn had not dislodged Mr Maxwell earlier on the journey from Inglewood.  If that contextual factor merited attention so too might her earlier threats to kill Mr Maxwell, her hostility towards him and the extraordinary nature of her conduct in driving at open road speeds with a man clinging to the bonnet.

[57]     The reality, however, is that the first trial was conducted on the basis that the circumstances directly associated with the impact were equivocal.  I consider that at the very best from the point of view of Ms Fairburn, that would have likewise been the position if Mr Marks had given evidence.  So the jury would have been left to determine whether there was murderous intent by reference to the other evidence in the case, which is exactly what was required of the jury at the trial on the defence case as run. 

[58]     I simply do not agree with the majority that at the first trial the defence “was hopelessly handicapped at the trial by the lack of support from an expert”.[15]  Given that the Crown never denied that the circumstances directly associated with the impact were consistent with accident, I do not consider that the defence was appreciably handicapped by the absence of expert evidence to that effect.  All in all (and allowing for the countervailing view of Dr Stevenson) I see the interpretation of the movements of the Mazda advanced by Mr Marks as providing only modest support for the defence case and this primarily in relation to the likelihood that the Mazda was angled slightly left at the point of impact.

The risks for the defence if the defence had, at trial, called evidence along the lines of the report of Mr Marks

[15]See [39].

[59]     If the defence had at trial called evidence from Mr Marks, there would have been a focus on an aspect of the case which emerges from the reports of the engineers and which seems to me to favour the Crown.  In the ordinary course of events, a head-on collision between the Isuzu and the Mazda would have resulted in an appreciable over-ride with the Isuzu going over the top of the front of the Mazda.  This might be thought to be particularly likely to have happened in the present situation given the position (and weight) of Mr Maxwell on the bonnet, which would have tended to depress the front of the Mazda.  But in fact the over-ride was only negligible.  The two most probable causes of this are:

(a)The driver of the Isuzu had applied his brakes before the collision; and/or

(b)Ms Fairburn was accelerating at the point of impact.

[60]     There was no evidence on the road of either driver having applied the brakes.  As well, the evidence of the driver of the Isuzu at the preliminary hearing[16] was that he had not applied his brakes.  In this respect, the new material might be thought to provide distinct support for the theory that Ms Fairburn lined up the Isuzu and accelerated into it.

Evaluation

[16]He did not give evidence at trial.

[61]     For the reasons I have given I conclude that the risks (to Ms Fairburn) of a defence focused on the circumstances directly associated with the impact would have outweighed the likely forensic benefit and am accordingly of the view that:

(a)The miscarriage of justice argument based on counsel error fails; and

(b)The new evidence is inadmissible because it is neither fresh nor sufficiently cogent to make up for not being fresh.

Accordingly I would dismiss the appeal.

Solicitors:
Crown Law Office, Wellington