R v Fenton Ca452/02 - [2003] NZCA 409

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA452/02
THE QUEEN
v
ROBERT JOHN FENTON
Hearing:25 February 2003

Coram:Blanchard J
Baragwanath J
Goddard J
Appearances: R B Squire QC for Appellant

CL Mander for Crown

Judgment:6 March 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]       The appellant is charged with one count of manslaughter by failing to exercise reasonable care to avoid danger to human life when in control of a motor vehicle, which resulted in the death of one of the vehicle’s occupants. The charge is framed in reliance upon ss150A, 156, 160(2)(b) and 171 of the Crimes Act 1961. The appellant applies for leave to appeal a pre-trial ruling in the High Court at Wellington that certain evidence relating to this charge is admissible.
Background
[2]       The charge arises from an incident that occurred on Woodside Road near Greytown in the Wairarapa at around 11.00pm on 6 October 2001 after the appellant had been drinking. The appellant, aged just over 17 years of age, was driving a Toyota utility vehicle carrying two passengers on the rear tray. In wet road conditions, it failed to take a sharp left-hand turn on an open highway and left the road. The vehicle rolled a number of times and the two passengers, one male and one female, were thrown off. The female passenger received injuries for which she required hospital treatment, and the male received injuries from which he died. The appellant accepts that he was guilty of dangerous driving and that his driving was influenced by his consumption of alcohol, but he does not accept that what he did as the driver of the motor vehicle amounted to a major departure from the duty specified in s156:
156     Duty of persons in charge of dangerous things
Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

[3]       Also relevant are s150A and s160:
150A   Standard of care required of persons under legal duties
(1)       This section applies in respect of the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157.
(2)       For the purposes of this Part, a person is criminally responsible for—
(a)       Omitting to discharge or perform a legal duty to which this section applies; or
(b)       Neglecting a legal duty to which this section applies—
only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NZCA 409
Decision Date: 6 March 2003

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal in the case of R v Fenton, where the appellant, Robert John Fenton, is charged with manslaughter by failing to exercise reasonable care to avoid danger to human life when in control of a motor vehicle, resulting in the death of one of the vehicle’s occupants. The appellant applies for leave to appeal a pre-trial ruling in the High Court that certain evidence relating to this charge is admissible. The charge arises from an incident that occurred on Woodside Road near Greytown in the Wairarapa at around 11.00pm on 6 October 2001 after the appellant had been drinking. The appellant, aged just over 17 years of age, was driving a Toyota utility vehicle carrying two passengers on the rear tray. In wet road conditions, it failed to take a sharp left-hand turn on an open highway and left the road. The vehicle rolled a number of times and the two passengers, one male and one female, were thrown off. The female passenger received injuries for which she required hospital treatment, and the male received injuries from which he died.

The legal issues the court was required to decide were whether the evidence relating to the appellant's failure to hold a licence, the vehicle being unregistered and unwarranted, the appellant driving without permission from the owner, the appellant's failure to wear a seatbelt, and the appellant speeding and driving erratically some distance before the accident, were relevant and admissible. The court held that the evidence relating to the appellant's failure to hold a licence was relevant and capable of being probative that the appellant was an inexperienced driver. The evidence of the appellant driving an unregistered and unwarranted vehicle, driving without permission from the owner, and not wearing a seatbelt was excluded as it was not relevant or its probative value was slight and exceeded by its potential for unfairly prejudicing the defendant in the eyes of the jury. The evidence concerning the structural integrity of the vehicle and defects in the right front tyre was admitted on the limited basis that the jury needed to be informed about the mechanical condition of the vehicle and the Crown needed to negate the possibility that the accident was caused by a sudden mechanical failure which could not have been anticipated. The evidence of speeding and erratic driving was admitted as it was part of the one journey and supported the view that the appellant was under the influence of alcohol.

The final orders of the court were that leave to appeal was granted, and the appeal was allowed to the extent that the proposed evidence pertaining to the appellant driving an unregistered and unwarranted vehicle, driving without permission from the owner, and not wearing a seatbelt would be excluded from the evidence at trial. In other respects, the proposed evidence would be admitted but, in relation to the evidence concerning mechanical defects in the vehicle, on the limited basis indicated in paragraph 26 of this judgment.

Orders