Muchirahondo v Police HC Tauranga CRI-2011-463-74

[2011] NZHC 2041

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-463-74

ZEPHANIAH MUCHIRAHONDO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 December 2011 (Heard at ROTORUA)

Counsel:         Appellant in person

S A Christensen for Respondent

Judgment:      14 December 2011

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

MUCHIRAHONDO V NEW ZEALAND POLICE HC TAU CRI-2011-463-74 14 December 2011

[1]      Mr Muchirahondo faced a charge of careless use of a motor vehicle causing death.  The charge arose as a result of a collision that occurred between two vehicles on State Highway 30 between Kawerau and Whakatane on 15 October 2010.   Mr Muchirahondo was the driver of one of the vehicles.

[2]      Mr  Muchirahondo  denied  the  charge,  but  after  a  defended  hearing  on

1 September 2011 Judge Moore found the essential elements of the charge proved.1

He convicted Mr Muchirahondo and directed him to pay emotional harm reparation of  $2,000  to  the  family  of  the  deceased  driver.     He  also  disqualified  Mr Muchirahondo from driving for a period of six months.

[3]      Mr Muchirahondo now appeals against conviction on the basis that there was insufficient evidence to support the factual conclusions that the Judge reached.

Background

[4]      The incident that gave rise to the charge occurred in the late afternoon of

15 October  2010.     Mr  Muchirahondo  was  travelling  between  Whakatane  and Rotorua. At the same time, a witness for the prosecution, Mr Hudson, was travelling in the other direction.

[5]      The  prosecution  case  largely  depended  on  Mr  Hudson’s  evidence  being accepted.  He said that, as he approached a left hand bend, a red vehicle came round the corner partially on the wrong side of the road.  Mr Hudson said that he swerved to avoid the other vehicle, and veered off the road. When he had gathered his wits he looked in the rear vision mirror and saw the red vehicle “fishtailing” along the road. He then travelled around the bend, and to the top of a small hill.  When he looked in his rear vision mirror, he saw smoke coming from the road behind him.  He turned his vehicle around, and  after  travelling a short  distance discovered  that the red vehicle had collided with a van travelling in the same direction as Mr Hudson had

been travelling.

1 New Zealand Police v Muchirahondo DC Whakatane CRI-2011-087-370, 1 September 2011.

[6]      The driver of the van was obviously dead when Mr Hudson arrived on the scene.  He had taken the full brunt of the collision, and would have died instantly.

[7]      The driver of the other vehicle was found to be Mr Muchirahondo.  He had been badly injured in the collision.   He was bleeding heavily, and had suffered a serious head injury.   Another person who arrived at the scene called emergency services, and Mr Muchirahondo was flown by helicopter to Waikato Hospital.  He was in an induced coma for nine days, and then spent a further period in hospital before being discharged and undergoing significant rehabilitation.   He still suffers significantly from the effects of the injury that he received in the accident.

The hearing in the District Court

[8]      There was no dispute regarding the final sequence of events that led to the collision.  Photographs taken at the scene show tyre marks from Mr Muchirahondo’s vehicle in the grass verge beside the road.  These veer off the road, and then back onto it.  Two clearly discernible yaw marks then travel across the road, marking the progress of Mr Muchirahondo’s vehicle to the point where the collision occurred.

[9]      It   is   obvious   that   the   immediate   cause   of   the   collision   was   Mr Muchirahondo’s vehicle veering onto the road directly into the path of the van.  That does not, however, provide the primary reason for the collision.  In order to ascertain the primary reason for the collision, it was necessary for the Judge to determine why Mr Muchirahondo’s car had left the road in the first place.

[10]     The Judge accepted Mr Hudson’s version of events.  He found him to be a credible and careful witness.  For that reason he found that Mr Muchirahondo had driven his car carelessly when he allowed it to travel onto the side of the road occupied  by  Mr  Hudson’s  vehicle.    The  Judge  found  that  Mr  Muchirahondo obviously over-corrected his vehicle when he tried to avoid colliding with Mr Hudson’s vehicle.  This caused Mr Muchirahondo’s vehicle to fishtail, and veer off the road.  The Judge found that Mr Muchirahondo’s vehicle was, to all intents and purposes, out of control at that point.  It then continued across the road into the path of the oncoming van.

Grounds of appeal

[11]     Mr Muchirahondo frankly accepts that he has no recollection of the collision, or of events that occurred in the hours and days leading up to it.  For that reason he saw no point in giving evidence at the hearing in the District Court.  He considers, however, that several factors ought to have left the Judge in a state of reasonable doubt regarding the primary reason for the collision.  His counsel advanced some of these during the hearing.  Others were developed for the first time before me today.

[12]     Mr Muchirahondo’s first complaint is that the police have proceeded from the outset on the basis that Mr Hudson is a truthful witness.  For that reason, he believes that the police have developed a mindset that he, and he alone, caused the collision. As a result, they have been unwilling to consider other possibilities, particularly because the time limit for laying any charges in relation to the incident has now well and truly expired.

[13]     Mr Muchirahondo points out that he was interviewed for the first time some weeks after the accident.  He told the officer who interviewed him that he could not recollect anything about the accident.  When the officer explained to him what Mr Hudson had said, Mr Muchirahondo says that he immediately told the officer that there were problems with that version of events.   He also told the officer that the police needed to investigate what Mr Hudson had told them in order to ascertain whether or not it was credible.

[14]     Mr Muchirahondo considers that there is evidence to suggest that it may have been Mr Hudson, and not Mr Muchirahondo, who drove onto the wrong side of the road.  He points to the fact that there are no tyre marks on the grass verge on the side of the road on which Mr Hudson’s vehicle was travelling.  The photographs show that the grass verge extended to the side of the road.  Mr Muchirahondo points out that, if Mr Hudson had veered off the road as he claimed, there ought to have been tyre marks confirming that fact.  The photographs do not show any such marks.  He submits that this supports a scenario in which Mr Hudson caused his vehicle to travel over to the wrong side of the road.

[15]     Mr  Muchirahondo  also  considers  that  there  are  inconsistencies  in  Mr Hudson’s evidence.  He points to the fact that Mr Hudson says that he had overtaken the van in which the deceased was travelling a few minutes prior to the accident.  Mr Hudson says that he was travelling at about 90 kilometres per hour, and that the van was travelling at the same speed.  Mr Muchirahondo says that this leads to one of two inconsistencies.  First, how and why would Mr Hudson overtake a van that was travelling at the same speed as his own vehicle?  Alternatively, it suggests that Mr Hudson was in fact travelling faster than he claimed to have been travelling at the time that he encountered Mr Muchirahondo’s vehicle.

[16]     Mr Muchirahondo also points to the fact that Mr Hudson would have been aware that the driver of the van was dead, and there were real doubts as to whether Mr Muchirahondo would survive.   For that reason, if Mr Hudson had been responsible for causing the accident, he would naturally given the police a version of events favourable to him.   He had every incentive to make it look as though somebody other than himself was responsible for the accident.

Decision

[17]     Counsel for Mr Muchirahondo directly challenged Mr Hudson regarding his assertion that Mr Muchirahondo had been travelling on the wrong side of the road. He suggested to Mr Hudson that it was he, and not Mr Muchirahondo, who had crossed the centre line.  Mr Hudson denied that that was the case.

[18]     Counsel for Mr Muchirahondo also directed Mr Hudson’s attention to the fact that there were no marks in the grass to confirm that he had veered off the road as he claimed.     Mr  Hudson  responded  by  saying  that  he  had  not  been  travelling particularly fast, and that he had not needed to brake.  He viewed that as providing a reasonable explanation for the lack of any physical evidence to confirm that his vehicle had veered off the road.

[19]     Counsel for Mr Muchirahondo also suggested to Mr Hudson that he had been travelling faster than he claimed at the time that he encountered Mr Muchirahondo’s vehicle.  He denied this as well.

[20]     All of these issues were therefore before the Judge at the time he made his decision.

[21]     In the end, this case turned on an assessment of the credibility and reliability of Mr Hudson’s evidence.  Although this Court is entitled to reach its own view of the  facts,2   it  will  defer  to  the  Court  of  first  instance  in  situations  where  the assessment of a witness’s credibility or reliability is important.3   I take the view that the Judge was entitled to accept Mr Hudson’s evidence in the absence of other

evidence suggesting that it was not credible or unreliable.   The Judge reached his conclusion after his attention had been drawn to virtually all of the factors upon which Mr Muchirahondo now relies.  There is no basis on which I can interfere with the Judge’s conclusion that Mr Hudson’s evidence was both credible and reliable. That being the case, the appeal cannot succeed.

[22]     I wish to emphasise, however, that I accept that Mr Muchirahondo is genuine when  he  says  that  he  is  anxious  to  know  the  true  cause  of  the  crash.    He acknowledges that he may have been responsible, but he is not prepared to make that concession in the absence of direct evidence supporting Mr Hudson’s version of events.

[23]     I appreciate that this matter has caused Mr Muchirahondo much distress, and that it is unlikely that this judgment will give him any great satisfaction.  The other side of the coin, however, is that a person is dead as a result of the collision, and the Judge was entitled to conclude that Mr Muchirahondo was responsible for causing it.

Result

[24]     The appeal is dismissed.

Lang J

2 Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

3 At [5].

Solicitors:

Crown Solicitor, Tauranga

Copy to:

Appellant