Solomon v Police

[2015] NZHC 2811

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000077 [2015] NZHC 2811

BETWEEN

TE PEHI MAIRE LEIGH SOLOMON`

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 November 2015
Counsel:	L C Ord for Appellant M J Ferrier for Respondent
Judgment:	12 November 2015

JUDGMENT OF COLLINS J

Introduction

[1]      I  am  allowing  Mr  Solomon’s  appeal  from  his  conviction  for  dangerous driving causing injury1  following a hearing conducted in the Wellington District Court by Judge A I M Tompkins.

[2]      I am ordering a rehearing of the prosecution of Mr Solomon.  This order does not preclude an application being made in the District Court to stay the prosecution.

Background

[3]      On 23 November 2012, at approximately 10.37 pm, there was a serious motor vehicle accident in the south-bound lane of the Johnsonville-Porirua motorway, near Johnsonville.

1      Land Transport Act 1998, s 36(1)(b).

SOLOMON v NEW ZEALAND POLICE [2015] NZHC 2811 [12 November 2015]

[4]      The accident occurred when the driver of a Honda Integra car (the vehicle) lost control of the vehicle while travelling in excess of 150 kmph.   The vehicle collided with a fence on the left side of the motorway, spun three or four times and ended up against the barrier, which divides the north and south-bound sections of the motorway.

[5]      There were two occupants of the vehicle, Mr Solomon and his cousin, Mr Tomkins, who owned the vehicle.   Mr Solomon and Mr Tomkins were both flung from  the  vehicle.    Mr  Solomon  sustained  serious  brain  injuries  and  multiple fractures.  Mr Solomon’s brain injuries have had severe ongoing consequences.  He is in a rehabilitation unit with little immediate prospect of resuming a normal life. Mr Tomkins suffered amongst other injuries, a shattered C3 vertebrae and paralysis for several months.   The injuries to both Mr Solomon and Mr Tomkins were life threatening.

[6]      It is accepted the driving that led to the accident was dangerous and that whoever was driving caused the injuries to both Mr Solomon and Mr Tomkins.

[7]      The  police  carried  out  a  scene  investigation.    At  that  stage  no  forensic evidence was uncovered from which it was possible to determine who was the driver of the vehicle at the time of the accident.

[8]      Exactly six months after the accident the police charged Mr Solomon with dangerous use of a vehicle causing injury to Mr Tomkins.

[9]      The police decision to prosecute Mr Solomon was based on evidence which suggested he was the driver of the vehicle.   That evidence can be distilled to the following key points:

(1)Approximately 10-15 minutes before the accident Mr Solomon was seen by Mr Tomkins’ mother (Ms Vickerstaff) driving the vehicle. This  was  at approximately 10.25  pm  when  the  vehicle arrived at Ms Vickerstaff’s place and Mr Tomkins’ brother, Danny Tomkins, got out  of  the  vehicle.     Ms  Vickerstaff  told  the  police  she  saw

Mr Solomon driving off with Mr Tomkins sitting in the passenger seat.

(2)Mr Tomkins made a statement to the police on 5 February 2013 in which  he  said  that  Mr  Solomon  was  driving  when  they  dropped Danny Tomkins off at Ms Vickerstaff ’s house.  Mr Tomkins said he could not remember anything after that moment and that Mr Solomon was driving because he was the only one with a valid driver’s licence and because Mr Tomkins had been drinking.

(3)      Danny Tomkins told the police Mr Solomon was driving the vehicle

when it left Ms Vickerstaff’s home at approximately 10.30 pm.

[10]     When Mr Solomon was spoken to by the police on 17 May 2013, he said he could not remember anything about the accident or what he had done during the course of 23 November 2012.   He subsequently regained some memory and instructed his lawyer that soon after leaving Ms Vickerstaff’s home Mr Tomkins asked Mr Solomon to pull over so that Mr Tomkins could drive.  The two men duly swapped positions in the vehicle.  Thus, it is Mr Solomon’s case that at the time of the accident Mr Tomkins was driving his car.

[11]     There was other evidence that pointed to the possibility Mr Tomkins was driving the vehicle. That evidence comprised:

(1)A photograph taken of Mr Solomon’s torso approximately two weeks after the accident which shows bruising and abrasions on his torso consistent with him having worn a seatbelt over his left shoulder and buckled at his right hip.   If that evidence is accepted, it suggests Mr Solomon was in the left passenger seat at the time of the accident.

(2)Two witnesses who were at the scene gave evidence which might suggest Mr Tomkins was the driver.   Ms Duncan said she tried to comfort Mr Tomkins and that “when he heard the emergency services sirens approaching he became agitated and began moving as if trying

to get away”.2    A similar statement was made by Mr Stewart, who also tried to assist Mr Tomkins at the scene of the accident.

[12]     After  he  was  charged,  Mr  Solomon,  with  the  assistance  of  his  mother, arranged to be represented by the Public Defence Service (PDS) in Wellington.  A number of PDS lawyers became involved with Mr Solomon’s case.   One of those lawyers,  Mr  L Collins,  appreciated  Mr  Solomon’s  case  would  benefit  from  an accident investigation report.  He applied for funding to be approved for Mr Bass, an expert in vehicle crash investigations, to be retained to prepare a report.

[13]     Mr Bass did not in fact prepare a report because Mr Collins applied to have the prosecution of Mr Solomon stayed on the grounds Mr Solomon could not obtain a fair trial.  It was submitted Mr Solomon would not be able to participate effectively in  the  hearing  because  of  his  injuries.     That  application  was  dismissed  by Judge Broadmore on 8 April 2014 who, on the basis of the evidence then available, concluded Mr Solomon would be able to participate in the trial “provided the process

was taken slowly and with breaks if necessary”.3

[14]     Mr Collins left the PDS at about the time the stay application was heard and determined.   Mr McIlroy joined the PDS in early June 2014 and was assigned Mr Solomon’s file several weeks later.  Mr McIlroy was not aware that Mr Collins had obtained approval for a crash investigator to examine the evidence.

Judgment of Judge Tompkins

[15]     Mr Solomon’s case was heard by Judge Tompkins on 26 August 2014.  The evidence produced by the police comprised oral evidence from Mr Tomkins, Danny Tomkins and Ms Vickerstaff.   Their evidence was broadly consistent with the summary of their police statements, which I have set out in paragraph [9] of this judgment.  The police also relied on the evidence of a police officer, who attended the accident scene.  Statements from Ms Duncan and Mr Stewart were produced by

consent as was a statement of accepted facts filed pursuant to s 9 of the Evidence Act

2 Formal written statement of GT Duncan, 26 October 2013 at [23].

3      Police v Solomon DC Wellington CRI-2013-085-5878, 8 April 2014 at [39].

2006, which set out the matters I have summarised in paragraphs [3]-[7] of this judgment.

[16]     Mr McIlroy defended Mr Solomon, who elected not to give evidence.  It is clear Mr McIlroy had undertaken a lot of preparation.  He had spoken to ambulance officers who attended the scene and had tried to get a statement from the orthopaedic surgeon who had treated Mr Solomon in an effort to have him comment on the injuries to Mr Solomon’s torso, which I have explained in paragraph [11](1) of this judgment.

[17]     Mr McIlroy did not consider getting a crash investigator to examine the evidence and he was unable to get any statement from the orthopaedic surgeon before the hearing.

[18]     Mr    McIlroy    cross-examined    Mr    Tomkins,    Danny    Tomkins    and Ms Vickerstaff.  The approach taken by Mr McIlroy was that ultimately, the police had not proven beyond reasonable doubt Mr Solomon was the driver of the vehicle.

[19]     Judge   Tompkins   rejected   the   submissions   advanced   on   behalf   of

Mr Solomon.  In a succinct oral judgment, Judge Tompkins concluded:4

Having heard all of that evidence I am satisfied beyond reasonable doubt as a result of the cumulative effect of the factors already referred to that the police have established to the required standard that Mr Solomon was the driver.  Mr Solomon had been driving throughout that day, both on occasions when it was just Mr Solomon and Mr Dylan [Tomkins] in the vehicle and on occasions when they were accompanied by Mr Dylan [Tomkins’] younger brother, Danny.  There would have been no reason for that arrangement to change, the various profferred reasons as being put forward by the defence during cross-examination in my view being implausible.

In those circumstances I conclude that Mr Solomon was the driver of the vehicle when he crashed it at high speed on the motorway that night.

The other constituent elements of the offence not being in dispute and being the subject of an agreed statement of facts, Mr Solomon is convicted.

Appeal

[20]     Ms Ord was instructed to conduct Mr Solomon’s appeal.  She arranged for Dr Stevenson, a mechanical engineer and expert in vehicle crash investigations to examine Mr Solomon’s case.   Dr Stevenson submitted a comprehensive report to Ms Ord in May 2015.  I will not traverse the analysis undertaken by Dr Stevenson because his evidence may need to be carefully assessed by the District Court if the rehearing of Mr Solomon’s prosecution proceeds.   Suffice for present purposes to record Dr Stevenson analysed the movements of the occupants of the vehicle during the accident and the “ejection dynamics” of the occupants as a result of the accident. That analysis led Dr Stevenson to the view that the evidence he examined “strongly suggests that Mr Solomon was the passenger and not the driver at the time of the

crash”.5

[21]     When   the   Crown   received   Dr   Stevenson’s   report   it   arranged   for Sergeant Sowter, the police officer in charge of the Wellington Serious Crash Unit to critique Dr Stevenson’s report.   Sergeant Sowter is familiar with Dr Stevenson’s work and described him as being a professional witness.  Again, it is not appropriate for me to analyse Sergeant Sowter’s critique of Dr Stevenson’s report because Sergeant Sowter may also have to give evidence in the District Court.  Suffice for present purposes for me to say Segeant Sowter’s report explains “there is some logic to [Dr Stevenson’s] analysis but also a large number of assumptions and lack of

context which compromise its evidential value”.6    Sergeant Sowter says “there are

too  many  unknown  variables”7   to  draw  any  meaningful  conclusions  about  the ejection dynamics of the occupants of the vehicle.  Sergeant Sowter concludes his report by saying:8

The scenario  offered  by Dr  Stevenson remains  possible,  but  not  to any degree more likely than, any number of other scenarios that I might be able to come up with if asked.

[22]     Ms Ord advanced four discrete grounds of appeal.

5      T J Stevenson Report on a Single Vehicle Loss of Control Crash on the Johnsonville-Porirua motorway, Wellington, on 23 November 2012 13 May 2015 at [7.2.2(i)].

6 P R E Sowter, Formal written statement, undated at [186].

7 P R E Sowter, above n 7, at [189].

8 At [190].

[23]     First, Ms Ord submitted Judge Tompkins misdirected himself on the burden and standard of proof.

[24]     Second,  Ms  Ord  submitted  Judge  Tompkins  failed  to  warn  himself  in accordance with  s  122 of the Evidence Act  2006  about  the unreliability of the evidence given by Mr Tomkins, Danny Tomkins and Ms Vickerstaff.

[25]     Third,  Ms  Ord  submitted  the  crash  expert  analysis  evidence  suggests

Mr Solomon was the passenger at the time of the accident.

[26]     Fourth, Mr McIlroy failed in his duty to Mr Solomon by failing to call a crash expert witness at the hearing conducted before Judge Tompkins.

[27]     The parties agreed that the reports of Dr Stevenson and the critique from Sergeant  Sowter  could  be  produced  and  relied  upon  by  me  when  considering Mr Solomon’s appeal.

[28]     Mr McIlroy swore an affidavit for the purposes of the appeal and was cross- examined by Ms Ord for approximately an hour and a half.  I found Mr McIlroy to be a very honest and reliable witness, who made appropriate concessions and did his best to ensure his evidence was accurate.

Principles governing appeal

[29]     Mr Solomon was charged before the Criminal Procedure Act 2011 came into force.  His appeal is therefore a rehearing conducted pursuant to ss 115, 119 and 121 of the Summary Proceedings Act 1957.  As Mr Solomon’s appeal is a rehearing I have  borne  in  mind  the  principles  articulated  by the  Supreme  Court  in  Austin, Nicholls & Co Inc v Stitching Lodestar.9   It transpires however this appeal is able to be primarily resolved by application of well established legal principles.

First ground of appeal

[30]     Ms Ord submitted Judge Tompkins failed to apply the correct burden and standard of proof.  I disagree.  Judge Tompkins made it clear that after hearing all the evidence he was “… satisfied beyond reasonable doubt … that the police [had] established  to  the  required  standard  that  Mr  Solomon  was  the  driver”  of  the vehicle.10      Ms  Ord  suggested  Judge Tompkins’ reference to  drawing reasonable inferences did not reflect the correct standard of proof.  Again, I disagree.  All Judge Tompkins did was draw inferences available on the evidence presented to him when determining the police had discharged the burden of proof to the requisite standard.

Second ground of appeal

[31]     Ms   Ord   submitted   Judge   Tompkins   failed   to   direct   himself   about Ms Vickerstaff, Danny Tomkins and Mr Tomkins having a motive to lie.   Ms Ord said their motive was to avoid Mr Tomkins being charged, because if he were convicted he would have faced a sentence of imprisonment.  This submission was based upon Ms Ord’s understanding of Mr Tomkins’ previous convictions.

[32]     The  primary  difficulty  with  this  aspect  of  Mr  Solomon’s  appeal  is  that Ms Vickerstaff, Danny Tomkins and Mr Tomkins said Mr Solomon was driving at the time the vehicle left Ms Vickerstaff ’s home at about 10.30 pm.  Mr Solomon’s instructions to his lawyer were that this was the case.  Mr Solomon’s position was that he and Mr Tomkins swapped seats after they had left Ms Vickerstaff’s house. The prosecution’s witnesses were not in any position to refute that suggestion.  There could be no suggestion that the prosecution witnesses lied about who was driving the vehicle when it left Ms Vickerstaff ’s home.

Third and fourth grounds of appeal

[33]     As will become apparent in paragraphs [39] to [41], one aspect of the third and fourth grounds of appeal overlap.  The third and fourth grounds of appeal may be conveniently considered together.

[34]     The  basis  upon  which  new  evidence  should  be  admitted  was  helpfully explained by the Privy Council in Lundy v R, where Lord Kerr explained:11

… the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests.   If the evidence is not credible, it should not be admitted.  If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence.   If the evidence is both credible  and  fresh,  it  should  generally  be  admitted  unless  the  court  is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction.  If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction.  If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

Is Dr Stevenson’s proposed evidence credible?

[35]     Applying the sequential tests set out in Lundy, the first question is whether

Dr Stevenson’s proposed evidence is credible.

[36]     There is no doubt Dr Stevenson is an expert in the area of reconstruction and analysis of vehicle accidents.  Nor can there be any doubt Dr Stevenson has carefully analysed the “ejection dynamics” of those who were in the vehicle at the time of the accident.  Dr Stevenson has advanced a thesis that Mr Solomon was likely to have been in the passenger seat and therefore not the driver at the time of the accident. While not accepting Dr Stevenson’s thesis is correct, Sergeant Sowter acknowledges Dr Stevenson’s hypothesis is logical and a possible scenario.

[37]     For  present  purposes  I  need  not  conclude  Dr  Stevenson’s  conclusion  is

correct. All I need conclude is that his proposed evidence is credible.

[38]     I have no difficulty accepting Ms Ord’s submission Dr Stevenson’s proposed evidence is credible.  Apart from the fact Dr Stevenson is a recognised expert in the field of vehicle accident investigations, his conclusion is broadly consistent with other  independent  evidence,  including  the  evidence  about  the  possible  seatbelt injuries observed on Mr Solomon’s torso.

Is Dr Stevenson’s evidence “fresh”?

[39]     The second question I must consider is whether Dr Stevenson’s evidence could have been obtained with reasonable diligence before the hearing that was conducted in front of Judge Tompkins.

[40]     To his credit, Mr McIlroy acknowledged in his evidence before me that it would have been advisable for him to have obtained a vehicle accident investigator’s report in relation to the accident.  Mr Collins had clearly appreciated the importance of that line of inquiry.

[41]     Mr McIlroy was not a particularly experienced lawyer.  He was acting under supervision.   The failure to obtain a vehicle accident investigator’s report is not a mistake that rests solely on the shoulders of Mr McIlroy.  I am, however, drawn to the conclusion that it would have been possible, with reasonable diligence, for a vehicle accident investigator’s report to have been obtained before the hearing in the District Court.

What is the impact of Dr Stevenson’s report on the safety of the conviction?

[42]     The third inquiry involves me having to assess the strength of Dr Stevenson’s report and its potential impact on the safety of Mr Solomon’s conviction.   If I consider there is a risk of a miscarriage of justice if Dr Stevenson’s evidence is excluded, then I should admit his evidence notwithstanding that the evidence in question is not “fresh”.

[43]     While  Sergeant  Sowter’s  critique  provides  a  foundation  for  questioning aspects  of Dr Stevenson’s  report,  ultimately,  I am  satisfied  that  Dr Stevenson’s proposed evidence is sufficiently cogent that failure to take it into account creates a genuine risk of a miscarriage of justice in the circumstances of this case.   In my assessment, Dr Stevenson’s report may have raised a reasonable doubt in the mind of Judge Tompkins about whether or not Mr Solomon was the driver of the vehicle.  In making this observation I am not saying Dr Stevenson’s evidence will necessarily be accepted by the Judge assigned to rehear Mr Solomon’s case. All I am saying is that Dr Stevenson’s evidence is cogent and, if accepted, may prove to be decisive.

[44]     This conclusion renders it unnecessary for me to specifically address the issues relating to Mr McIlroy’s alleged breach of his duty to Mr Solomon set out in the fourth ground of appeal.  Had it been necessary for me to do so I would have concluded that the failure to obtain a vehicle accident investigator’s report in this case by trial counsel caused a miscarriage of justice of the kind envisaged by the

Supreme Court in Sungsuwan v R.12

Disposition

[45]     I  am  satisfied  that  Mr  Solomon’s  conviction  was  unsafe  and  that  a miscarriage of justice occurred when the District Court was denied the opportunity to consider expert evidence about the factors that are covered by Dr Stevenson’s report.  I accordingly quash Mr Solomon’s conviction.

[46]     Ms Ord urged me not to direct a rehearing of the prosecution of Mr Solomon. That   submission   was   primarily   based   upon   humanitarian   concerns   about Mr Solomon’s deteriorating health.

[47]     Ms Ord’s concerns may ultimately prove to be justified.  My conclusion there needs to be a rehearing is based upon my assessment of the seriousness of the alleged offending and the public interest in ensuring that conduct of the kind in question is properly prosecuted and judged.   This conclusion, however, does not preclude a further stay application being advanced on the basis of any new medical

evidence relating to Mr Solomon’s circumstances.

D B Collins J

Solicitors:

Ord Legal, Wellington for Appellant

Crown Solicitor, Wellington for Respondent

12     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.