Worthy Redeemed v The Queen - [2013] NZSC 57

IN THE SUPREME COURT OF NEW ZEALAND

SC 32/2013
[2013] NZSC 57

BETWEEN	WORTHY REDEEMED (AKA LEE ERROL JAMES SILVESTER) Applicant
AND	THE QUEEN Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	L L Heah for Applicant M F Laracy for Respondent
Judgment:	12 June 2013

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The proposed appeal

The applicant was found guilty on three counts of manslaughter. He had been the front seat passenger in a Mitsubishi car which veered to the right across the centre line and collided head on with a bus coming in the other direction. There were five people in the car. The driver and two of the three back seat passengers were killed. The other surviving passenger, Reece Dick-Durham, had been on the left hand side of the rear seat (directly behind the applicant). Mr Dick-Durham was the principal Crown witness at trial. He said that the applicant caused the accident by forcing the steering wheel to the right and thus the car to go across the centre line and collide with the oncoming bus. Mr Dick-Durham remained conscious throughout the incident and his remarks in the immediate aftermath of the collision (which were accusatory) were consistent with his evidence at trial. There was also other evidence which supported the Crown case.
The unlawful act relied on by the Crown was breach of s 270(1)(b) of the Crimes Act 1961 which meant that the Crown had to show that the applicant had acted with reckless disregard for the safety of others.
The proposed appeal relies on two grounds:
(a)The admission of, and directions as to, propensity evidence; and
(b)New evidence.

There is also what seems to be a separate complaint about the plausibility of an aspect of Mr Dick-Durham’s evidence but this does not come close to raising a point which would warrant leave to appeal.

Propensity evidence

The propensity evidence was directed to another occasion on which the applicant had been a front seat passenger in a car and had grabbed the steering wheel, thereby causing the car to swerve to the right. At trial, an objection to this evidence was withdrawn on the basis that it be led in a pre-approved form, as it was. To some extent this incident was relied on by the defence at trial because Mr Dick-Durham had been aware of it and it was suggested to him that he had confused what he had heard of this incident (perhaps along with what he had seen of yet another similar incident immediately before the collision with the bus) with what had caused the accident. In the Court of Appeal, however, counsel for the applicant challenged the admissibility of the evidence and also the way in which the Judge summed up on it.
The applicant’s position seems to be that propensity evidence should only be admitted where it reveals a propensity to act in a way which encompasses all elements of the offending…

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 Worthy Redeemed v The Queen

Details

AGLC: Worthy Redeemed v The Queen [2013] NZSC 57
Case: [2013] NZSC 57
Decision Date: 12 June 2013

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from Worthy Redeemed (also known as Lee Errol James Silvester), who had been found guilty on three counts of manslaughter. The incident in question involved a Mitsubishi car crossing the center line and colliding head-on with a bus. The driver and two rear seat passengers were killed, while the applicant and another passenger survived. The surviving passenger, Reece Dick-Durham, testified that the applicant caused the accident by steering the car to the right. The applicant's appeal hinged on two grounds: the admissibility of propensity evidence and the introduction of new evidence.

The court addressed the issue of propensity evidence first. The applicant argued that such evidence should only be admitted if it reveals a propensity to act in a way that encompasses all elements of the charged offence, including recklessness. The court rejected this argument, stating that evidence tending to show the applicant had caused the collision by grabbing the steering wheel was admissible, regardless of whether it also showed recklessness. The court also dismissed the applicant's complaint about the summing up of this evidence.

Next, the court examined the new evidence presented by the applicant. This evidence challenged the findings of Senior Constable McIntyre, the accident investigator, and Mr. Dick-Durham regarding the angle of deviation of the car and the location of the applicant's hand after the collision. Professor John Raine, an expert witness, provided an alternative assessment of the angle of deviation and the position of the applicant's hand. However, the court found that this evidence would not have led to a different verdict, as it did not exclude the possibility of a significant steering input causing the collision. Furthermore, the court noted that the applicant's defense counsel had already raised the issue of inadvertence and horsing around as potential causes of the accident.

Given the court's assessment that the proposed appeal did not indicate a substantial miscarriage of justice or raise any points of general or public importance, the application for leave to appeal was dismissed.

Orders