White v The Queen - [2011] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

CA396/2010
[2011] NZCA 538

BETWEEN ANTHONY JAMES MANAHI WHITE
Appellant

AND THE QUEEN
Respondent

Hearing: 26 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: J J Maddox for Appellant
R J Collins and R G Ronanyne for Respondent

Judgment: 27 October 2011 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction  [1]
Background  [5]
Trial  [9]
(a)       Direct evidence  [10]
(b)       Circumstantial evidence  [14]
(c)        Medical and seatbelt evidence  [31]
(d)       Conclusion  [36]
Appeal  [40]
(a)       Expert evidence  [40]
(b)       Mr McCormack  [41]
(c)        Professor Raine  [54]
(d)       Conclusion  [57]
Result  [68]

Introduction

The appellant, Anthony White, was found guilty following trial before Priestley J and a jury in the High Court at Hamilton on one count of manslaughter and two of dangerous driving causing injury. He was convicted and sentenced on 4 June 2010 to six and a half years imprisonment and disqualified from driving for two and a half years.[1]
[1] R v White HC Hamilton CRI-2008-070-7669, 4 June 2010.
The charges arose out of a fatal motor vehicle collision between two vehicles. The sole issue at trial was whether Mr White was driving one of the vehicles in which a passenger, Andrew Orpin, died. Mr White’s defence was that the driver was the other surviving occupant of the vehicle, Eligh Smith. The jury by its verdicts rejected this defence.
Mr White appeals only against his conviction. His counsel, Mr Maddox, originally relied on four grounds in support, namely that: (1) the verdicts were unreasonable because the evidence led at trial was insufficient to support the charges; (2) a prosecution failure to disclose pretrial digital photographs and surveys prevented the defence from reconstructing events to support its theory; (3) trial counsel erred by failing to brief and lead expert evidence; and (4) fresh evidence established that Mr White was not the driver.
However, in argument Mr Maddox abandoned the first two grounds and compressed the third and fourth into the composite ground of a miscarriage of justice because trial counsel failed to call relevant and admissible evidence which was fresh, credible and cogent.[2]

Background

[2]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63; Witehira v R [2011] NZCA 255 at [38].

Early on Saturday evening 2 August 2008 Messrs White, Smith and Orpin set out in Mr Orpin’s Subaru Impreza STI from Tauranga. Their intention was to travel to Hamilton over the Kaimai Range on State Highway 29. Previously, they had been watching a rugby test match at a bar in Tauranga. They were travelling in darkness and the road was wet from rain.
Just past the township of Tauriko, west of Tauranga, State Highway 29 descends in a south westerly direction before a sweeping left curve near Belk Road on the left. A warning sign advises drivers to proceed through…

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 White v The Queen

Details

AGLC: White v The Queen [2011] NZCA 538
Case: [2011] NZCA 538
Decision Date: 27 October 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction by Anthony James Manaahi White against his convictions for manslaughter and dangerous driving causing injury. The sole issue at trial was whether Mr White was the driver of the vehicle in which a passenger, Andrew Orpin, died. Mr White's defence was that the driver was the other surviving occupant of the vehicle, Eligh Smith. The jury rejected this defence. Mr White appealed only against his conviction on the ground that trial counsel erred by failing to call relevant and admissible evidence which was fresh, credible and cogent. The Court of Appeal held that the evidence of the expert witness proposed to be called by Mr White would not have qualified as expert evidence and would not have been admissible. The evidence led at trial established that Mr White was the driver of the Subaru at the time of the crash. Accordingly, the appeal was dismissed.

Orders