R v Burr
[2016] NZHC 1388
•24 June 2016
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI 2014-031-001017 [2016] NZHC 1388
THE QUEEN
v
PAUL ROBERT BURR
Hearing: 15 June 2016 Counsel:
J Temm for Applicant
B D Vanderkolk for CrownJudgment:
24 June 2016
COSTS JUDGMENT OF BROWN J
Introduction
[1] On 19 December 2013 Lincoln Kidd, an employee of Paul Burr Contracting Ltd, was killed by a falling tree which had been felled by Paul Burr, the applicant, using a Volvo machine equipped with a Warratah head.
[2] Arising from that incident a number of charges were laid against the company and Mr Burr. In a trial at the High Court at Palmerston North which spanned the period 24 August to 14 September 2015 two charges against Mr Burr were heard:
That PAUL ROBERT BURR on the 19th day of December 2013 at Levin being the operator of, and thereby in charge and control of a dangerous thing, namely a Volvo tree felling mechanical harvester with warratah head which in the absence of precaution or care may endanger human life, omitted without lawful excuse to take reasonable precaution or care to avoid such danger, thereby causing the death of Lincoln Isaac Kidd and thereby committed manslaughter.
R v BURR [2016] NZHC 1388 [24 June 2016]
That PAUL ROBERT BURR on the 19th day of December 2013 at Levin, being a director of Paul Burr Contracting Limited (the company) did participate in the failure of the company which, knowing that its failure to take any action would be reasonably likely to cause serious harm to another person, failed to take all steps to ensure that no employee, namely Lincoln Isaac Kidd, was harmed at work in contravention of s 49(2) of the Health & Safety in Employment Act 1992.
[3] On 14 September 2015 the jury acquitted Mr Burr on both charges.
[4] On 25 November 2015 Mr Burr filed an application for costs under the Costs in Criminal Cases Act 1967 (the Act). He seeks an award of costs in respect of:
(a) trial defence costs of $153,577.25;
(b) expert witnesses costs of $19,424.10;
(c) accommodation and disbursements costs of $11,721.32.
Costs in criminal cases: legal principles
[5] The jurisdiction to award costs to a defendant acquitted at trial is conferred by s 5 of the Costs in Criminal Cases Act which states:
5 Costs of successful defendant
(1) Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
(2) Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—
(a) whether the prosecution acted in good faith in bringing and continuing the proceedings:
(b) whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:
(c) whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:
(d) whether generally the investigation into the offence was conducted in a reasonable and proper manner:
(e) whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:
(f) whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:
(g) whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
(3) There shall be no presumption for or against the granting of costs in any case.
(4) No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn.
(5) No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.
“Costs” is defined in s 2 of the Act to include any expenses properly incurred by a party in carrying on defence.
[6] As Heath J observed recently in McLeod v R, while “success” in the proceeding is a jurisdictional prerequisite to an application for costs, the fact of “success” is neutral when the discretion whether to award costs (and, if so, in what amount) is exercised.1
[7] The broad nature of the discretion conferred on the Court was explained by
Hardie-Boys J in R v Margaritis:2
[Section 5(2)] sets out seven considerations to which the Court is to have regard, but it makes it clear that they are not intended to be restrictive of the wide discretion which is given to the Court in respect both of whether costs should be awarded and if so in what sum. It also states that there is no presumption for or against granting costs; that an acquittal is not of itself
1 McLeod v R [2016] NZHC 221.
sufficient reason for an order; nor is the fact that the proceedings were properly brought and continued of itself a ground for refusing one. All this really means [is] that the Court is to do what it thinks right in the particular case.
[8] That approach was endorsed by the Court of Appeal in Solicitor-General v
Moore who commented inter alia on the significance of the s 5(2) factors:3
[33] That is to say, it is a mistake to try to force particular circumstances into one of the paragraphs of s 5(2) or to find them excluded from consideration if they are in any event properly relevant to the exercise of the power; see eg Tipping J in R v T at p 218 and the valuable reminder of Hardie Boys J in R v Margaritis (High Court, Christchurch, T 66/88, 14 July 1989) who, after referring to matters set out in s 5, said that:
“All this really means [is] that the Court is to do what it thinks right in the particular case.”
This is subject, of course, to the legislative limitations on what can be awarded (s 13) and against whom (s7).
[9] The broad nature of the discretion was more recently reinforced by the
Supreme Court in Reid v R:4
[23] Counsel for the Crown accepted that the verdicts of acquittal cannot be challenged by a collateral impugning of the costs orders. That constrains the ability of an appellate court to examine the relative strength of a prosecutor’s case. But, in any event, an appellate court cannot hope to capture the ephemeral but significant impressions which inform the assessments and discretions of the trial judge. That is why, of course, a challenge to the exercise of discretion must demonstrate what would be termed, generally, an error of principle.
The application
[10] The notice of application dated 25 November 2015 included the grounds that the trial was a novel one involving allegations of criminal conduct, including manslaughter, arising in an employment circumstance and that the trial had a
precedent legal component as a result.
3 Solicitor-General v Moore [2000] 1 NZLR 533 (CA).
[11] The application was supported by four affidavits of:
(a) Mr Burr who addressed his and his company’s financial circumstances, the charges, the trial, the cost of his defence and the personal consequences for him of the accident and the trial;
(b)Mr Rodney Caldow who related his knowledge of events subsequent to the incident, the collapse of Mr Burr’s business, insurance and the fact that Mr and Mrs Caldow provided a loan to Mr Burr to fund his defence;
(c) Ms Mikaela Caldow, who is Mr Burr’s partner, who traversed issues relating to loss of business and loss of income and the financial and personal implications of the incident for Mr Burr; and
(d) Ms Neale concerning an adjustment to the amount of the applicant’s
legal costs.
[12] An affidavit of Mr Donald Calder of Worksafe, who was the health and safety investigations inspector assigned to the investigation into the death of Lincoln Kidd, was filed in opposition. That affidavit related the process followed by Worksafe in obtaining an independent expert witness for the prosecution.
Submissions
[13] The submissions for Mr Burr reviewed the circumstances of the case against the framework of the seven s 5(2) considerations. It was accepted that the Crown prosecution was brought in good faith and that the conduct of the case by Crown counsel was not the subject of challenge: s 5(2)(a) and (d). Section 5(2)(e) was said to be not relevant to the proceeding.
[14] However significant criticism was directed at the adequacy of the Worksafe investigation, the points made including the following:
(a) the timeline from the date of the incident to the date of the manslaughter charge involved an eight month delay;
(b) the lack of any police investigation in that initial eight month period;
(c) the “influence of Wellington” in the decision-making process concerning the charges;
(d)the inadequacy and shortcomings of the Worksafe investigation in the formative period;
(e) the Worksafe “theory of the case” being flawed with the consequence that measurements made and the location of the Volvo were in doubt;
(f) the lack of disclosure and production of photographs and exhibits during trial indicating inadequate preparation;
(g)the Crown expert brief was not finalised until the trial had commenced; and
(h)the absence of a New Zealand expert for the Crown was critical to the flawed theory of the case.
[15] With reference to s 5(2)(f) it was said that the Crown witnesses supported the good work history of the defendant and that the defence witnesses provided compelling evidence to contradict the Crown case.
[16] In respect of s 5(2)(g) it was submitted that Mr Burr fully co-operated from the outset, gave two Worksafe interviews and a full and frank Police interview, and participated in a restorative justice process. Hence it was submitted that there was no disqualifying behaviour on the part of the applicant.
[17] Finally the applicant submitted that the case was one which by virtue of its special difficulty, complexity and importance justified a payment of costs greater than scale as provided for in s 13(3) of the Act. The Crown did not appear to contest
that contention. Indeed in its submissions it referred to the investigation having been conducted in a reasonable and proper manner for a case of “such rare technical complexity”.
[18] However the Crown resisted any order for costs. The following points were made:
(a) the defence did not bring any pertinent matter to the attention of the prosecution for further or better investigation;
(b)the prosecution was commenced on a sound and proper basis and there was evidential sufficiency for the charges;
(c) there were strong public interest considerations justifying the prosecution and a full trial;
(d)the defendant’s explanation in the course of detailed and inquisitive interviews was considered and there was no predetermination; and
(e) a core element of the defence was the allegation that the deceased contributed to his own death by failing to act on the reasonable instruction of his employer and by failing himself to follow the “two tree” rule.
[19] With reference to the applicant’s contention that the Crown in closing had
acknowledged that the case was not the strongest, the Crown submitted:
15.It is said the Crown accepted the case had weakness. That is not the case. The Crown accepted the opportunity to gather more evidence may have been lost. More evidence may have been desirable. At the outset, a critical period in the investigation of any crime, steps were taken to preserve the scene in extremely difficult circumstances. More steps could have been taken to accurately record and depict the scene at relevant times. However, the deceased was pinned under a felled tree. He was administered medical aid. The scene could not be maintained in a pristine investigative state. Persons with a direct and indirect interest in the death and the scene came onto the property in an uncontrolled manner. Notably Mr Burr was not constrained in his movements. Potential exhibits which may have either strengthened or weakened the case against the defendant were
not sought or secured. The evidential value of this conduct is neutral and the effect speculative. It cannot be known for example what the cellphone data of the three cellphones in question may have revealed. Overall the investigation was conducted in a reasonable and proper manner for a case of such rare technical complexity.
[20] In the course of oral argument I pressed both counsel on the issue of when the location of Lincoln Kidd’s combination petrol and chain-bar oil can (the combi fuel can) in the tray of Ray Pakau’s ute had come under the spotlight. I gave leave to counsel to file additional submissions which they did on 17 June 2016.
The significance of the location of the combi fuel can
[21] In my view the outcome of the jury’s verdict was substantially influenced by its view of a factual issue which was not focused upon with any precision by either prosecution or defence until close to the end of the trial. That fact was the location after the accident of Lincoln Kidd’s combi fuel can on the tray of Ray Pakau’s ute which was parked near the skid site. This had potential significance on the issue of Lincoln Kidd’s movements immediately prior to the accident.
[22] The relevant circumstances were as follows. After the initial meeting on site on the morning of 19 December 2013, Mr Burr took the Volvo to an area where he was to fell some trees. Lincoln Kidd and Ray Pakau were to work on the skid site, with Ray driving the Hitachi machine and Lincoln trimming and cutting logs, in preparation for the arrival of some logging trucks at about 7.30 am.
[23] Having cut down the first two trees, Mr Burr then encountered four bushy “outside” trees which he needed to have cut down by chainsaw. Mr Burr called Ray Pakau on his mobile phone and Ray Pakau and Lincoln Kidd proceeded to the area where the Volvo was working. Lincoln took with him his chainsaw, helmet and combi fuel can.
[24] Lincoln felled the four trees (trees three to six) with his chainsaw watched by Mr Burr and Ray Pakau. It was Mr Burr’s intention that Ray Pakau and Lincoln Kidd were to then return to their tasks at the skid site. Indeed Ray Pakau instructed Lincoln Kidd to return to the skid site. It appears that both Mr Burr and Ray Pakau assumed that that was where Lincoln Kidd went.
[25] Mr Burr then proceeded to fell four more trees (trees seven to ten) with the Volvo. He lost control of the tenth tree which fell back past the Volvo and hit Lincoln Kidd.
[26] The Crown accepted that at the material time Mr Burr did not know that Lincoln Kidd was behind the Volvo. However its case was premised on the basis that Lincoln Kidd had remained in the vicinity of the Volvo and did not return to the skid site. It contended that during the period when Mr Burr was felling trees seven to ten that he should have seen Lincoln Kidd within the danger zone.
[27] However in a photograph taken of Ray Pakau’s red ute at the site on
19 December 2013 by Senior Constable Sean Heaphy (number 16 in the Crown’s booklet) a combi fuel can (which was Lincoln Kidd’s) could clearly be seen in the tray of the ute parked adjacent to the skid site. It does not appear that any person investigating the accident appreciated that the combi fuel can belonged to Lincoln Kidd.
[28] One reason for that may have been the fact that it was in Ray Pakau’s ute and not in Lincoln Kidd’s vehicle. Another reason may have been that Ray Pakau’s ute was shifted in the course of the day. In cross-examination Mr Calder said that the red ute was not at the site when he arrived there.
Consideration of the combi fuel can at trial
[29] The Crown’s opening address on 25 August 2015 was critical of Mr Burr in failing to ascertain or be aware of the whereabouts of Lincoln Kidd when he used the Volvo to cut down the tenth tree that killed him. It was said that Mr Burr recklessly assumed that Mr Kidd would be safe and outside the minimum distance required for the forestry operation he was conducting, that is the internationally recognised two tree rule.
[30] The Crown case was that Lincoln Kidd was close to the Volvo and wearing high visibility clothing when he was struck:
[45] So this tree came crashing down into the pile of trees and when it did so it fell and it crushed Lincoln Kidd to death. And at the time that that happened, members of the jury, he was no more than seven metres from the rear of the Volvo. Seven metres. What he was doing there was delimbing with his chainsaw one of the trees that he’d felled earlier. He was wearing an orange hard hat, an orange hair protection, may have been in the same helmet composite, safety helmet. He had a top on with yellow relatively high visibility markings. He was using an orange chainsaw. The defendant had failed to make himself aware of Mr Kidd’s position within the forest anywhere let alone behind his machine. And the reason for that it seems is he made an assumption that he was somewhere else.
[31] It was apparent too that the Crown contended that Lincoln Kidd had been in the vicinity of the Volvo throughout the period that Mr Burr felled trees seven to ten:
[47] And the Crown says when you are listening to the case Mr Burr had three opportunities, maybe more, that will emerge in the course of the trial. Three opportunities and the Crown says was required on three distinct separate occasions to check where Mr Kidd was. He could have swivelled the Volvo through no more than about 180 degrees that would have turned him up, even 90 degrees would have been sufficient to reveal where Mr Kidd was at the time.
…
[51] And you say well Mr Burr will say, you will hear Mr Burr saying he looked around before he cut any of the three trees and the Crown says that, that can’t be right because on the Crown case Mr Kidd didn’t leave the location where he was, the location of which he had felled the trees and had been placed in a pile by Mr Pakau.
[52] And the Crown case is that Mr Kidd was manually delimbing, he was on the ground with his chainsaw manually delimbing those trees and the Crown will ask you to infer in this case that he was highly visible at all times.
(emphasis added)
[32] At the conclusion of the Crown opening, Mr Temm made a brief preliminary opening in which he drew attention to what he described as four central issues. The second of those issues concerned the reason why Lincoln Kidd was so close to the Volvo when he was killed. As Mr Temm said:
[6] The first thing you need to know is that Mr Burr was operating this machine, it was working. Grabbed a stem, felled it, processed it, grabbed a stem, felled it, processed it, moved the machine, grabbed a stem, felled it, processed it. Lincoln is behind a working machine. Now Mr Burr did not know he was there and the Crown will call no evidence to suggest that he did know. Okay.
[7] But Lincoln less than 10 metres behind the machine, he could see it working so the second issue for the defence in this trial is the Crown has to explain to you why Lincoln was there behind the working machine. Why was he there? Where did he come from and what was he doing? Because you’ll hear evidence in this case that his allocated duties at the toolbox meeting at 6.00 am that morning woodwork on the skid site. There were trucks coming in to be loaded out. That was where he was supposed to be that day. A safe distance away from the working machine.
[8] Issue number two – why was Lincoln there? And remain there as the machine worked away for a period of time before the fatal tree which did fall in an unintended direction.
(emphasis added)
[33] So at the commencement of the trial both sides appeared to accept that Lincoln Kidd was close to the Volvo throughout the period during which Mr Burr felled trees seven to ten. Neither side referred at this time to the combi fuel can.
[34] The Crown photograph booklet containing photograph 16 was produced by consent as Exhibit 1 on 25 August 2015.
[35] It was common ground in the further written submissions of 17 June 2016 that the fact that after the accident the combi fuel can was sitting on the tray of Ray Pakau’s ute was raised for the first time in evidence during the cross-examination of Mr Calder of Worksafe on 4 September 2015, the tenth day of trial:
Q. Now, I want you to turn over to photograph 16. Do you say the red utility was not there when you got to the site?
A. That’s correct.
Q. Do you see on the back of that red utility there’s a red item in the
centre right of the tray? A. Red or orange?
Q. Well I’m not thinking about the orange sign, I’m thinking about the red item with what looks like a yellow funnel on the top of it in the red –
A. Oh, yes a fuel container. Q. Sorry?
A. Looks like a fuel container?
Q. A fuel container? A. Maybe, perhaps.
Q. It is a fuel container, the defence suggests that’s Lincoln’s fuel
container for the chainsaw, were you aware of that item?
THE COURT ADDRESSES MR TEMM (10:35:47) –
CLARIFICATION OF ITEM CROSS–EXAMINATION CONTINUES: MR TEMM
Q. But the point is you don’t recall ever seeing that item other than in
photographs?
A. That’s correct.
Q. And you never saw that vehicle? A. No.
Q. And so obviously you can’t tell us how it got there or where it had
been?
A. No.
[36] The next witness was Ray Pakau. He was not questioned about the fact of the combi fuel can in his ute. He was not cross-examined.
[37] However the significance of the location of the combi fuel can had captured the attention of the jury because on the following Monday, 7 September 2015, I received a jury question which stated:
Who moved the combination fuel/oil can to Ray’s ute?
[38] On 10 September 2015 after the conclusion of the Crown case the defendant made an application under s 147 of the Criminal Procedure Act 2011. The application was directed only to the charge under the Health & Safety in Employment Act 1992 and it was primarily focused on the interpretation of a number of sections in that Act. In the course of my reasons for dismissing the application I
said with reference to the element of knowledge in s 2A(2):5
[37] … So far as the s 2A(2) knowledge of circumstances is concerned, it seems clear that the defendant was not aware that Mr Kidd was working in close proximity to the Volvo harvester.
5 R v Burr [2015] NZHC 2207.
[38] However I consider that at the least there is a question as to whether he ought reasonably to have known. Given that it was the defendant who caused Mr Kidd to enter the zone in the first place in the course of an interruption to the mechanical harvesting process, I consider that the evidence as to the basis on which Mr Burr believed Mr Kidd was no longer in the zone is sufficient in law for the jury to find that Mr Burr ought to have known that Mr Kidd could still be in the vicinity.
[39] Mr Temm then made a more detailed opening address on 10 September 2015. In the course of doing so he made reference to the four themes in his preliminary opening, stating with reference to the second theme:
(b) The second thing is the Crown has to satisfy you as to what Lincoln was doing there and I won’t retreat from this proposition, what was he doing there, because the direct instruction he had from his supervisor Mr Pakau was “we have to go back up there”. So what was he doing there? Why was he there and where had he come from? Because if the Crown can’t satisfy you about that then you’ll have a doubt as to just what is going on here and if you have doubt then the Crown haven’t met their burden because you won’t be sure.
[40] In closing the Crown reiterated the opportunities available to the Volvo driver for checking for people within the danger zone (ie, looking out the window, slewing the Volvo cab around and the use of the rear view camera). The point was made again that it was simply not good enough to make an assumption that Lincoln Kidd had moved out of the danger zone.
[41] Mr Vanderkolk produced a document entitled “Crown analysis of timing” which postulated that on the morning of 19 December 2013 after trees three to six were felled by Lincoln Kidd, Ray Pakau returned to the skid site at 6.28 am. As the phone call from Mr Burr to Ray Pakau advising of the accident was at 6.50 am, Mr Vanderkolk advanced a submission which I summarised in my summing up as follows:
[94] Mr Vanderkolk completed his address by submitting that Mr Kidd may have been unaccounted for on the site for a minimum of 22 minutes. On this basis he submitted that it was a major departure from the duties of Mr Burr to be fully and consciously aware of the whereabouts of Mr Kidd. He submitted that the accident and Mr Kidd’s death would have been avoidable if Mr Burr had been in a position to ask and had asked: where are you Lincoln? where is Lincoln?
[42] After criticising various aspects of the Crown evidence Mr Temm’s closing address placed considerable emphasis on the implications of the location of Lincoln Kidd’s combi fuel can. I summarised his argument in the course of my summing up in this way:
[102] Mr Temm then focused on the evidence relating to the combi fuel container which Mr Kidd had taken with him when he left the skid site and went to cut down trees three, four, five and six. I do not propose to rehearse that analysis. Suffice to say, Mr Temm contended that the problem for the Crown was how the combi can ended up on the back of Mr Pakau’s ute? Having referred to what Mr Burr and Mr Pakau were doing, driving the Volvo and the Hitachi respectively, he concluded that the only other person who could have placed the Combi in the ute was Mr Kidd. That analysis appears sound if the Combi can was placed in the ute before the accident. But was it? If it was not placed in the ute until after the accident then there are a number of other candidates, for example, the other four persons with Mr Caldow on the fire truck. But there is no evidence of that.
[103] Mr Temm argued that there was a high probability that Lincoln placed the Combi in the ute. The hypothesis appears to be that Lincoln walked both to the skid site, placed the Combi can in Mr Pakau’s ute, not in Lincoln’s own vehicle, and then after a short period walked back down to where the Volvo was underway again and started delimbing trees close behind it. However Mr Temm further submitted that even if you did not accept the high probability proposition, it still remained a possibility, and he emphasised the point, correctly, that it is for the Crown to satisfy you on the charge beyond reasonable doubt.
[43] My summing up discussed the issue of Lincoln Kidd’s location in this way:
[109] … Having heard all the evidence, seen the Volvo and visited the site you now have the full perspective. As I noted earlier, some of the bigger pieces of the jigsaw are clear enough:
(a) you know why Lincoln and Ray left the skid site to go down to where the Volvo was working: for Lincoln to fell some trees which were either too big for the Volvo or which leaned out: two explanations were in the interviews;
(b) you heard Ray’s evidence about what he said and did after
he had moved the four trees Lincoln had cut down;
(c) you know Ray returned to the skid site in the Hitachi.
[110] However some aspects are either not clear or are the subject of conflicting evidence:
(a) after Lincoln felled four trees with his chainsaw, did Mr Burr fell three or four trees? That is material for at least two reasons:
(i) how long Mr Burr was operating while Lincoln may have been in the vicinity;
(ii) if there is an obligation on the Volvo operator to check the surroundings regularly, then whether that should have happened before the fourth tree (No 10). I remind you that when I asked Mr Jennings to give an indication of what he meant by “regularly” (p 979) he said probably every second or third tree;
(b) on the 10th tree, did Mr Burr make one cut or two. This is not a big point but it may have relevance to the time taken to fell that tree. There is certainly a conflict on the evidence. Mr Burr’s interviews. Mr Howard. Mr Prebble;
(c) how long was Lincoln working behind the Volvo? No one knows of course. Only Lincoln could tell us. The defence invites the conclusion that it was a short time, pointing to the extent of the delimbing that can be seen in the photographs. But was that all Lincoln did down there? Was he there for the duration? Had he gone behind a tree to have a pee, as Mr Burr reflected at the end of the police interview? Or did he return to the skid site, deposit the Combi can, work there briefly and then return to where the Volvo was working and start some delimbing?
(d) the best evidence after Lincoln himself would have to be Ray Pakau. It seems that he was the last person to see Lincoln alive (p 783):
Q. As you were making your way to the skid site, did you see Lincoln walking beside you?
A. When I turned around and started walking that’s the
last time I seen Lincoln.
Ray Pakau went back to the skid site and started moving logs out of the stack (874/8). He was expecting the trucks to be arriving soon (p 875/5). Then there were the following exchanges (at 875 and
880):
Q. All right, so you’re on the skid site and you are moving, said you are moving logs from one place to another, is that correct?
A. Yes.
Q. And you are expecting trucks to be arriving soon? A. Yeah.
Q. What’s the next thing that happened?
A. My phone went.
Q. And it was the call from Mr Burr to you, that something had happened to Lincoln?
A. Yeah.
Q. Where did you think Lincoln was? A. I don’t know, I didn’t see it.
…
Q. And when you were back at the skid site did you
realise that he wasn’t with you?
A. It was only about five to 10 minutes at the most before I got the phone call.
These are questions of fact. The facts are for you the jury to decide having considered all the evidence.
[44] Given the complexity of the nature of the charges, as reflected both in the Jury Issue Sheet and the fact that, with the agreement of counsel, prior to their closing addresses I explained the elements of the offences to the jury in some detail, it would not have been unexpected for the jury to have been out for a significant period.
[45] However, as Mr Temm emphasised in his submission on costs, the jury deliberated for less than two and a half hours. As earlier observed6 I infer that the issue as to Lincoln Kidd’s movements after he felled trees three to six with his chainsaw was of major significance in the jury’s conclusion.
The quality of the investigation concerning Lincoln’s movements
[46] As noted above the Crown’s case proceeded on the footing that, after cutting down trees three to six with his chainsaw, Lincoln Kidd remained in the vicinity of
the Volvo and did not return to the skid site.
6 At [21].
[47] On the face of it that might appear to have been a logical conclusion for those conducting the investigation to draw. First of all, no witness saw Lincoln Kidd return to or present at the skid site after he felled the four trees. Both Mr Burr and Ray Pakau simply assumed that he had returned there.
[48] Secondly in his statement to the Police dated 14 August 2014 Ray Pakau said:
My belief in this incident is that Lincoln failed to join me to finish the deck we had started.
If he had done he would still be alive.
What Lincoln did was to use his chainsaw to limb a tree (strip branches from a tree) as opposed to returning with me.
In any event, we didn’t have enough time to do that. We had to get back to
our earlier job.
I don’t know what Lincoln was doing or thinking but I think I am correct when I say that Lincoln’s work ethic killed him.
It’s in my view that he was choosing to busy himself doing something so as
to be helpful.
He broke the cardinal rule by simply not being two tree lengths away from
Paul and his Volvo.
To me this is the stand-out thing in the matter. (emphasis added)
[49] Mr Pakau appeared to still be of that view at the trial as reflected in this exchange in his evidence-in-chief:
Q. So it may well be that you’ve thought about this a lot, Mr Pakau, but do you know why Lincoln didn’t go back to the skid site and started delimbing these trees?
A. I have no idea why Lincoln started limbing trees. I didn’t ask him to
limb the trees, I asked him to come back with me.
[50] Thirdly Mr Caldow, who completed the duty holder’s investigators report on Mr Burr’s behalf and in consultation with him, wrote in that report that “Lincoln never went back to the skid site”.
[51] Fourthly, it was to be expected that Lincoln Kidd would have returned to the skid site because he was told by Ray Pakau to do so and there was work there which needed to be done. However, if he had in fact walked back to the skid site, it made little sense for him to then almost immediately retrace his steps back to where the Volvo was operating.
[52] However the investigators do not appear to have realised that Lincoln Kidd’s combi fuel can was on the tray of Ray Pakau’s ute. Hence they did not turn their attention to how it came to be there. In my view, because the combi fuel can was not at the actual site of the accident and nor was it in Lincoln Kidd’s vehicle, the investigators should have taken steps to locate it. Even though the presence of a fuel can in the vehicle of a person other than the deceased might not normally prompt an inquiry, in this instance the deceased’s combi fuel can was not located. A thorough inquiry as to its location should have identified it in Ray Pakau’s vehicle.
[53] Had the investigators done so, then it would have been necessary for them to endeavour to identify who had put the combi fuel can in Ray Pakau’s ute so as to exclude the possibility that Lincoln had put it there. For if Lincoln had put it there, then it followed that he must have returned to the skid site as directed but then surprisingly elected to go back and re-enter the danger zone. That scenario would have serious implications for the Crown case because Mr Burr might not be susceptible to criticism if, without any warning to Mr Burr, Lincoln Kidd had re-entered the danger zone very shortly before the fatal tenth tree fell.
[54] However no steps appear to have been taken to identify whether some person other than Lincoln Kidd had put the combi fuel can in Ray Pakau’s ute. The potential candidates included Mr Burr and Mr Pakau (unlikely perhaps, but neither was asked), Mr Caldow, other members of the fire engine crew, ambulance staff, police officers and work and safety investigators.
[55] In my view this omission was a major flaw in the investigation.
[56] However, while recognising that the burden of proof lay with the Crown, it needs to be borne in mind that the defence also failed to appreciate the significance of the matter. As already noted, statements provided by Mr Pakau and Mr Caldow tended to support the view that Lincoln Kidd had remained within the vicinity of the Volvo and had not returned to the skid site.
[57] The photograph of Ray Pakau’s ute was available early in the inquiry but neither Mr Burr nor Mr Pakau (both of whom should have recognised the combi fuel can) raised the point. Had they done so, then the implications for the Crown, in not being able to exclude the possibility that someone other than Lincoln Kidd had placed the combi fuel can in the ute, would have been manifest, since the Crown case assumed that Mr Burr had failed to notice the presence of Lincoln Kidd in the vicinity of the Volvo for a significant period of time.
[58] I note that in Mr Temm’s further submission of 17 June 2016 he makes the point that in his interviews Mr Burr “raised the issue of the fuel container and combi unit” on several occasions. However my understanding is that those references to the combi fuel can were in the context of explaining that after Lincoln Kidd felled trees three to six, Mr Burr observed that the can and Lincoln Kidd’s “gear” had gone. That was a factor that caused Mr Burr to assume that Lincoln Kidd had returned to the skid site.
[59] Of course Mr Burr may have been the beneficiary of this omission in the investigation. Had the combi fuel can in the ute been recognised, then it may have proved possible for the investigators to identify that some person, such as a diligent fire brigade officer, had seen the deserted combi fuel can and in the interests of safety had placed it on the vehicle.
[60] Had such evidence come to light, then I consider that the jury would have likely concluded that Lincoln Kidd did not return to the skid site but had stayed near the Volvo while Mr Burr felled trees seven to ten. In those circumstances my assessment is that the jury could well have convicted Mr Burr on the manslaughter charge.
[61] Two factors consistent with the third person theory are the unlikelihood of Lincoln Kidd placing his combi fuel can in a vehicle other than his own and the improbability of his walking back to the skid site and then turning round and retracing his steps to where the Volvo was operating.
[62] The short point is that the deficiency in the investigation precluded such eventualities being thoroughly explored. And of course one possible outcome was the discovery that it was Lincoln Kidd who moved the combi fuel can to the ute near the skid site. In those circumstances it is possible that the prosecution may ultimately have not been pursued.
The exercise of my discretion
[63] Like Hammond J in Long v R,7 I consider that there is no necessity for me to retraverse the numerous cases in which the exercise of the discretion has been discussed. However two observations in that decision are pertinent:8
… Paragraphs (c) and (d) of s 5(2) do enable a Court to look at the police conduct of a prosecution. But obviously the test there is an objective one. The language used is “proper steps” and “in a reasonable and proper manner”. By all the standard approaches to statutory construction that must mean something less than would be adopted by the reasonably prudent prosecutorial authority; and of course the burden of establishing such would rest on the applicant. It will necessarily be a difficult burden to surmount.
The second point is that in D v R Barker ACJ referred to an observation of
Devlin LJ (as then was) in Berry v British Transport Commission [1962] 1
QB 306,327: “A prosecutor brings proceedings in a public interest, and so should be treated more tenderly.” And Baker ACJ referred to Australian
authority in support of the proposition that the long-standing principle of
public policy that “criminal trials are for many reasons not to be equiparated with contests between civil litigants” should not be watered down. The judgments of Lord Devlin (as he was to become) command great respect; and there is I think no doubt that rightly or wrongly the rule of public policy has been seen to be as stated by Barker ACJ. I say “rightly or wrongly” because there may be room for argument, if the matter were ever to be subject to review by a higher Court, or if the statute were to be reviewed, for questioning whether in today’s context the state should remain privileged to the extent that it is, by the present policy. There are complex moral, philosophical, and economic questions involved there. But the present policy is very well established and has been followed by Courts of high authority without question. I would require at least the Court of Appeal, and more likely Parliament, to reverse the policy now.
7 Long v R [1996] 1 NZLR 377 (HC).
8 At 381.
[64] None of the matters raised in the applicant’s written submissions persuade me that an award of costs should be made. For example, errors in measurements or in ascertaining the location of the Volvo at the moment the tenth tree was felled had no bearing on the outcome of the case. Nor was the fact that the prosecution expert was from Australia.
[65] The fact is that a young forestry worker died because of a manifest failure to observe the international two tree rule. The fact that the investigation was protracted, while regrettable, does not of itself mean that the decision to prosecute was flawed or unjustified.
[66] Indeed, if it had been proved beyond all reasonable doubt that Lincoln Kidd was in the immediate vicinity of the Volvo during the period when Mr Burr felled the seventh, eighth, and ninth trees, then in my assessment the likelihood is that Mr Burr would have been convicted on the manslaughter charge.
[67] However my perception is that the investigators allowed themselves to be distracted by several matters, which were particularised in the context of the Health
& Safety in Employment Act charge, such as the adequacy of tailgate meetings and issues concerning hi-visibility apparel and effective communication by radio on site as well as the two incidents involving the bringing down of overhead power lines. In doing so they failed to identify and resolve a small, but critical, factual issue concerning Lincoln Kidd’s combi fuel can, a can which was taken to the scene of the accident by Lincoln Kidd but which, after the accident, was demonstrated to be in a vehicle near the skid site. As the jury asked, who moved the combi fuel can to the ute?
[68] In my assessment that failure had important implications for the outcome given the Crown’s burden of proof. It is conceivable that had that issue been properly explored, the outcome could have been different. However when at an advanced stage in the course of the trial the issue emerged so starkly, it was too late to embark upon inquiries in order to provide the answer to the jury’s question.
[69] I consider that an award of costs is warranted in recognition of that failure and the possible outcome noted at [62]. However I intend to reduce the quantum of the amount to reflect the fact that the applicant (via Mr Caldow and Mr Pakau) not only contributed to the Crown’s perception that Lincoln Kidd did not return to the skid site but also failed to identify and bring to the Crown’s attention the fact that Lincoln Kidd’s combi fuel can was so plainly visible in Mr Pakau’s ute in photograph 16.
[70] I agree with Mr Temm’s submission that the present case satisfies the s 13(3) criteria. The complexity of the statutory provisions, the content of the charges, the nature of the evidence, together with the need for both a site visit and an inspection of the Volvo, demonstrate that this case had special difficulty and complexity. However whether it was also important in the sense recognised in R v Rust may be doubted.9
[71] On the basis of the considerations explained above I consider that an award of 17.5 per cent of the total sum of costs, witness expenses and disbursements is
justified which I calculate to be $32,326.47.
Brown J
9 R v Rust [1998] 3 NZLR 159 (CA) at 164.