R v Harrison - [2008] NZCA 514

IN THE COURT OF APPEAL OF NEW ZEALAND
CA511/2008
[2008] NZCA 514
THE QUEEN
v
RYAN CHRISTOPHER HARRISON
Hearing:18 November 2008

Court:Arnold, Venning and Miller JJ
Counsel:D L Bates for Appellant

K Bicknell for Crown

Judgment:1 December 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

[1]        Following a jury trial the appellant was convicted on two counts of dangerous driving causing death and two counts of dangerous driving causing injury. Judge Rollo sentenced him to imprisonment for two years six months on the former charges and for one year nine months on the latter, the sentences to be served concurrently: DC TAU CRI-2007-070-1270 25 July 2008. The appellant now appeals against those sentences.
Factual background
[2]        On 8 October 2006 the appellant was driving a fully laden truck and two trailer combination (known as a B-train) on State Highway 29. The vehicle had an estimated gross weight of over 46,000 kilograms. The open road speed limit for it was 90 kph.
[3]        While attempting to negotiate a moderate left-hand bend at the bottom of a steep hill, the appellant lost control of the vehicle. The second trailer drifted into the wrong lane and ultimately the entire B-train tipped on its side and slid along the road, occupying the full width of the road. While the drivers of some of the oncoming vehicles were able to take evasive action to avoid the B-train without injuring themselves or their passengers, others were not. The result was that two people in oncoming vehicles were killed at the scene and two others suffered serious injuries.
[4]        The Crown theory was that the accident had resulted from two factors – excessive speed and the appellant’s faulty driving of the B-train, in particular turning it too sharply as he rounded the bend. As to speed, the Crown relied in particular on the following:
(a)The B-train was fitted with a global positioning system (GPS) unit, which read the truck’s position at five minute or two kilometre intervals and sent the relevant information to a remote computer. The Crown said that the GPS readings showed that the truck had been travelling at 122 kph immediately before the accident.
(b)Various eyewitnesses gave evidence to the effect that the truck was exceeding the speed limit, in particular two experienced truck drivers who were driving in the opposite direction to the B-train shortly before the accident. However, the estimates of speed made by the various eyewitnesses varied significantly.
(c)Expert evidence from crash analysis experts, to the effect that the B‑train must have been travelling at excessive speed immediately prior to the accident.
(d)Data from the truck’s computer-based engine management system, which the Crown said indicated excessive speed.

[5] For his part, the appellant said he was unable to remember what happened immediately prior to the accident. But he denied that he had been travelling at excessive speed. He said that any error that he made while driving the B-train…

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.

Continue reading R v Harrison

Details

AGLC: R v Harrison [2008] NZCA 514
Case: [2008] NZCA 514
Decision Date: 1 December 2008

CaseChat Overview and Summary

In this case, the appellant, Ryan Christopher Harrison, was convicted on two counts of dangerous driving causing death and two counts of dangerous driving causing injury, following a jury trial. He was sentenced to imprisonment for two years six months on the former charges and for one year nine months on the latter, the sentences to be served concurrently. The appellant appealed against his sentences on the grounds that the Judge had taken an unjustified view of the speed of the vehicle immediately before the accident, incorrectly assessed the significance of the appellant's steering error, wrongly concluded that the appellant had disengaged the Jacob's brake, and given insufficient weight to the appellant's thwarted desire to participate in a restorative justice process.

The court considered the appellant's arguments and found that the Judge was entitled to draw the conclusions which he did, as they were consistent with the jury's verdict. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The court found that there was ample evidence to justify the conclusions that the B-train was travelling at excessive speed at the time of the accident and that excessive speed was a contributing cause of the accident. The court also found that the Judge had given sufficient weight to the appellant's personal mitigating factors, including giving some credit for the apology that the appellant tendered to the victims and their families in Court during sentencing.

The final orders of the court were that the appeal is dismissed, and the appellant's original sentences stand as imposed by Judge Rollo.

Orders