Hohaia v Police HC Napier CRI-2010-441-0037
[2011] NZHC 37
•3 February 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2010-441-0037
ALLAN JOHN HOHAIA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 2 February 2011
Counsel: C M Clarkson for appellant
F E Cleary for respondent
Judgment: 3 February 2011
RESERVED JUDGMENT OF DOBSON J
[1] Mr Hohaia appealed against a conviction entered in the District Court at Hastings on 21 May 2010 on one charge of dangerous driving causing injury, and also against the sentence imposed on 9 August 2010 in relation to that conviction. Mr Hohaia was sentenced to six months’ community detention and 350 hours’ community work, together with two years’ disqualification from driving, plus orders for reparation of $17,000 and costs of $835.43.
[2] A Minute of Brewer J dated 23 November 2010 records the circumstances in which an earlier fixture for the appeal was adjourned, and foreshadowed an application Ms Clarkson was apparently then intending to make to adduce additional evidence on the appeal. No such application has ensued and the appeal was argued
on the basis of written submissions in support of it that had been filed on 31 January
HOHAIA v NEW ZEALAND POLICE HC NAP CRI-2010-441-0037 3 February 2011
2011. The respondent’s submissions on the appeal had been filed on 19 November
2010, in anticipation of the original fixture.
[3] The charge arose out of driving conduct on 25 January 2010 on Beach Road between Porangahau and the coast, in central Hawke’s Bay. Mr Hohaia was driving a high-performance Holden R8 Club Sport car he then owned. It was powered by a large V8 engine, and I was told by Ms Clarkson that it had modifications including somewhat larger than factory-fitted tyres.
[4] The evidence on the Police case was that Mr Hohaia travelled down a straight stretch of Beach Road, which is in a 100 kilometres per hour zone, at a substantial speed and for some period well in excess of that speed limit. He then unsuccessfully attempted to negotiate a sharp bend in the road, veering across the middle line some distance through the corner, colliding with an oncoming vehicle and ending up with Mr Hohaia’s vehicle facing back in the direction from which he had come.
[5] The sole occupant of the other car suffered very serious injuries, leaving him permanently impaired and with what the Judge found to be very serious personal and financial adverse consequences.
[6] The Police case included evidence from a friend of Mr Hohaia’s, Mr Douglas, who was also travelling along Beach Road at the time of the accident, had been overtaken by Mr Hohaia and gave evidence in respect of his observation of the relevant driving conduct. There was also evidence from Police officers who reconstructed the driving conduct from a scene examination. More controversially, Police investigators later removed a device from Mr Hohaia’s car called an airbag control module (ACM) and had it sent to the United States of America for analysis by an expert, Mr Haight, who subsequently gave evidence to the hearing by videolink.
[7] Mr Haight’s experience is in interrogating devices such as the ACM by electronic means to reconstruct data that the device has stored as to a vehicle’s performance. In a post-accident context, such data can include the speed at which the vehicle was travelling at various times up to a point of impact.
[8] At the hearing, Ms Clarkson challenged the admissibility of the evidence from Mr Haight on the basis that it was not sufficiently reliable to afford substantial help as opinion evidence, in terms of s 25 of the Evidence Act 2006. The same challenge was argued on the appeal. Ms Clarkson focused on an acknowledgement by Mr Haight that to use a particular Bosch crash data retrieval system with which he is familiar, he had to treat the ACM as if taken out of a General Motors Pontiac G8 model vehicle. He did that because the computer software used by him in the United States did not recognise the Holden model owned by Mr Hohaia, whereas the software could interrogate devices taken from Pontiac G8 models, those being the brand under which the particular Holden model is marketed in the United States. Ms Clarkson characterised that step in Mr Haight’s work as “an experiment”, because he had not done it before, and that therefore the outcome was not reliable in the absence of some form of peer review.
[9] Judge Gaskell reviewed the process by which Mr Haight had extracted the data about which he gave evidence, and was satisfied that the steps he undertook would not affect the reliability of his evidence. She went on to review the matters on which Mr Haight was tested in cross-examination by Ms Clarkson and found:[1]
Mr Haight’s evidence is not based on his scientific opinions or experiments. All he has done, as I understand it, is download or retrieve the data from the Holden’s airbag control module. Once he retrieved the data, he checked it, and found nothing questionable about it. He then explained to the Court the data he had found stored inside the module. He said that if he had found anything questionable in the data, then he would have gone to Holden, but that did not happen. He found nothing questionable. He did not have anyone check what he did and I cannot see that that was necessary or that his failure to do so affected the reliability of what he said in evidence because it was not a matter of opinion. I am therefore satisfied that Mr Haight’s evidence is reliable and I accept it.
[1] NZ Police v Hohaia DC Hastings CRI-2009-081-001175, 21 May2010 at [30].
[10] I have considered all of Mr Haight’s report and the transcript of Ms Clarkson’s cross-examination of him.[2] Ms Clarkson placed most weight on the point that because Mr Haight did not exclude the prospect that transposing the brand and model description of the vehicle might in some way impair the accuracy of the data that the Bosch software would then retrieve, the Court could not be satisfied
beyond reasonable doubt that the data Mr Haight had reconstructed was accurate.
However, there is no realistic prospect of that situation arising. From all of Mr Haight’s evidence, it is clear that either the use of the United States equivalent description for the vehicle model would enable the software to work, or it would not. The effect of Mr Haight’s evidence was that the equivalence of the Holden and Pontiac models was researched by him with General Motors in the United States. Had the data produced by applying the software caused him to question it in any
way, then he would have taken it to someone else to check, but that did not arise.[3]
[2] Second transcript, 20 May 2010, pp 2-11.
[3] Transcript, 20 May 2010, p 6.
[11] I concur with the Judge’s determination that Mr Haight’s evidence was admissible, that it was reliable, and I am also satisfied that she did appropriately rely on it.
[12] A subsidiary criticism argued by Ms Clarkson was that Mr Haight’s data did not take account of the fact that Mr Hohaia’s vehicle was equipped with non factory- fitted tyres. Again, that issue was raised with him and he acknowledged that it might lead to a discrepancy of up to three to four per cent. The data finally produced in his report took account of that measure of discrepancy and accordingly there is nothing in the further criticism.
[13] A further attack on Mr Haight’s evidence was raised in Ms Clarkson’s written submissions, namely that it derived from the ACM which had been improperly seized, and ought therefore to be excluded. The Police removed the ACM after the vehicle had been taken to Turner’s Auctions’ premises. The Police proceeded on the assumption that it was by then the property of Mr Hohaia’s insurers, who consented. Against the contingency that that might not be sufficient, the Police had also obtained a warrant to seize the device. I agree with Ms Cleary that the existence of the warrant is a complete answer to this criticism.
[14] The major plank of Ms Clarkson’s arguments on appeal was that Mr Haight’s evidence ought to be excluded, and that once it was, there was insufficient other evidence to establish the speed at which Mr Hohaia was travelling going into the corner. It followed that without that element of the Police case, a level of driving
error that was dangerous rather than careless could not be sustained. Ms Clarkson
also argued that, absent the reconstructed speed shortly before and at the time of impact, the remaining evidence was not inconsistent with a momentary lapse that should have been characterised as carelessness, rather than the greater level of culpability consistent with it being dangerous driving.
[15] For the respondent, Ms Cleary argued that whilst Mr Haight’s evidence was appropriately relied upon, even if it were excluded, the remaining elements of the Police case were more than sufficient to make out the charge of dangerous driving causing injury.
[16] The Police evidence included measurements describing the sharp bend Mr Hohaia had unsuccessfully negotiated as involving a turn of 105 degrees. The corner was governed by an advisory road sign recommending that it be negotiated at
45 kilometres per hour, and the Police reconstruction suggested a maximum speed at which it could be negotiated of 68 kilometres per hour. That compared unfavourably with the speed reconstructed from the data in the ACM of 98 kilometres per hour half a second before the device recorded an impact (down from a reconstructed speed of 150 kilometres per hour 2.5 seconds before the impact).
[17] The remaining evidence established marks made by the tyres on Mr Hohaia’s car consistent with it braking, on a course taking the vehicle across the middle line of the road, to a point of impact substantially on the other, on-coming, side of the road. Although Mr Douglas made no attempt at a precise reconstruction of Mr Hohaia’s speed into the corner, his evidence was consistent with the Police reconstruction that Mr Hohaia entered the corner at a speed too fast to safely negotiate it, and that it was that speed which caused his vehicle to be on the other side of the road, and to end up facing back the way he had come from.
[18] The Judge explicitly rejected Mr Hohaia’s own evidence that he had travelled into the corner at somewhere between 50 and 60 kilometres per hour. She found that at odds with Mr Douglas’s evidence, and at odds with the expert evidence of the Police officer who applied expertise in reconstructing the events at the scene. She also treated it as at odds with the evidence found at the scene, including the damage caused to the two solid vehicles. The Judge explicitly found that if Mr Haight’s
evidence was to be excluded, then the remainder was still sufficient for her to conclude that he was driving at a speed that was dangerous. Again, I concur with that assessment.
[19] Accordingly, the appeal against conviction is dismissed.
Appeal against sentence
[20] Ms Clarkson submitted that the combination of the elements in the sentence imposed was manifestly excessive. She amplified that in oral comments by characterising some elements as being “maximum sentences” and that cumulatively they were high-handed. Ms Clarkson acknowledged that there is no “tariff” set for offending of this type, and also submitted that the variations between sentences imposed for serious cases of careless driving causing injury when compared with cases of dangerous driving causing injury can be too wide.
[21] Judge Gaskell’s observations on sentencing on 9 August 2010 focused substantially on the very severe consequences of the injuries suffered by the driver of the other vehicle, Mr Kerr. He had spent six months in hospital, totally immobile, has needed reconstructive surgery on his knees and hips and is not expected to re-gain the use of his right arm. He has not been able to work since the accident and the prospects of any future employment were unclear. Mr and Mrs Kerr had assessed that the direct and indirect costs to them exceeded $300,000.
[22] I consider the sentencing Judge was appropriately focused on the prospects of some reparation, and that that appropriately influenced her against a custodial sentence when a prison sentence might otherwise have been considered. The Judge contemplated that Mr Hohaia’s earning capacity might continue substantially, in particular if he qualified for a limited licence for working purposes.
[23] In R v Fallowfield,[4] the Court of Appeal cautioned that the consequences for victims are only one factor to be weighed in the balance. That decision directs that it
[4] R v Fallowfield (1996) 14 CRNZ 87 at 92
is preferable for a sentencing Judge to endeavour to place the particular case of
offending in its proper position in the scale of seriousness of offending, and sentence on that basis. Comparisons are of limited use but I note that in the decision in Shapleski v Police[5]the High Court dismissed an appeal against sentences of
[5] Shapleski v Police HC Auckland CRI-2005-404-439, 31 May 2006.
18 months’ imprisonment, where leave was granted to apply for home detention, and
18 months’ disqualification. From the description of the driving in that decision, it does not appear to have been as serious as the present. The appellant in that case had been driving a four-wheel drive vehicle at 85 kilometres per hour along a two-lane open road area and took his eyes off the road to alter the settings on his radio, whilst negotiating a bend. He had drifted across the centre line and although an on-coming motor cyclist swerved to the extreme left of his lane, a collision ensued.
[24] As implicitly conceded by Ms Clarkson, the seriousness of the offending in this case could well have warranted a custodial sentence, if it were not appropriate for the Judge to have focused on the prospects for reparation. On any view, the cumulative impact of the sentences imposed here is less serious than a period of imprisonment. I discern considerable care taken by the sentencing Judge in the combination of the elements of the sentences, and I am far from persuaded that cumulatively there is anything excessive about them. Accordingly, the appeal against sentence is also dismissed.
Dobson J
Solicitors:
Crown Solicitor, Napier for respondent
Counsel:
C Clarkson, Hastings for appellant
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