R v McLeay CA349/96 [1997] NZCA 35 (14 April 1997)

At approximately 11.00pm on 14 April 1995 the appellant, having driven from Arrowtown towards Invercargill, was travelling south on State Highway Six near Makarewa in his near-new Honda Accord. At the same time three young women going home from the cinema were travelling north on the same road in a Honda CRX. The two cars collided on a slight bend. There were no witnesses. The three young women died in their vehicle which was engulfed in flames. The appellant has no recollection of the accident or of immediately preceding events.

Police from Invercargill attended the scene. The officer in charge of the investigation made a “quick appreciation” of the scene. He marked with dazzle paint the position of the appellant’s Accord which was across the north bound lane. From a cheque book he picked up he realised he might be acquainted with one of the deceased in the CRX. He marked the position of that car which was off the roadway. He said the vehicle was burnt to such a degree he could not obtain any useful information from it. He conducted a further quick appreciation of the scene on the roadway, assisted the police photographer to record the scene and then returned to Invercargill. He briefed a senior officer and was relieved of the file because of his apprehended relationship with one of the deceased. The following morning both in Invercargill and at the scene he briefed the officer who had assumed responsibility for the investigation.

There were no skid marks on the road indicating the paths of the two vehicles before impact. There were certain gouges, scuff marks and debris on the road but no obvious indication of the point of impact. In due course the sergeant supervising police staff at the scene arranged removal of the vehicles (the CRX with the deceased still inside) and authorised the Fire Service to hose down the road. Grit was spread over an area where there was a heavy deposit of fluid.

The view formed by a number of police officers involved on the night and in the period immediately thereafter, was that the point of impact of the two cars was in the south bound lane so that the appellant’s vehicle was on its correct side of the road at the time. They included the police photographer, an experienced police officer who had undertaken a police accident investigation course. There were others who held differing views. Requests for authority to instruct an independent engineer to investigate the accident were denied.

About four days after the crash the police released the two vehicles. Three days later the CRX was buried at the Invercargill tip and could not be recovered later. The Accord was released to Honda Motors at Invercargill where, on the request made by the police approximately two weeks after the accident, it remained untouched until August. After that it was again released. It remained at Honda Motors at Timaru

where it was subjected to chassis straightening and the removal of some parts but otherwise remained available for inspection.

In May of 1995 the appellant was charged with driving with excessive blood- alcohol concentration. He was convicted in August of that year, fined $2,000 and disqualified from driving for 12 months. It is reasonable to conclude that at that time the police considered that there was no sufficient evidence to charge the appellant with causing the accident.

Subsequently Mr Marks, a professional engineer with qualifications and experience in accident investigation and analysis, carried out investigations into the cause of the crash. This was done initially for family members of the deceased but subsequently for the police. He concluded that the impact location was mainly on the north bound lane of the highway. If that was correct it indicated that at the time of impact the appellant’s vehicle was on the wrong side of the road. On 8 March 1996 the appellant was charged with causing the deaths of each of the three young women by the unlawful act of driving with excessive blood alcohol concentration or alternatively by driving dangerously.

5 and 13 August 1996 the Crown case rested heavily on the evidence of Mr Marks and the circumstances of the appellant. He had eaten little in the course of the day, had competed in a 30 km bicycle event and a specimen of blood taken from him some time after the accident had been analysed to show the proportion of alcohol at 195 mg per

100 ml of blood - said to reflect a level approaching three times the legal limit at the time of the accident.

Prior to the trial the Judge heard an application under s 347 Crimes Act 1961 on which it was contended on behalf of the appellant that the proceeding should be stayed as an abuse of process. Five grounds were advanced but were reduced to four in light of the exclusion of certain evidence: they were that having been charged and

convicted of driving with excessive blood alcohol concentration the accused should not be required to face the further charges; that the defence was prejudiced by the unavailability of the CRX vehicle; that there had been prejudicial delay in laying the charges; and that there was a risk of undue prejudice against the accused in assessing the cause of the accident because of his blood alcohol level. The Judge, in a carefully reasoned ruling given on 19 July 1996, refused the application. He also ruled against objections to some of the Crown’s technical evidence drawing the difficult distinction between expert analysis and reconstruction.

At the trial Mr Marks gave evidence at length and of some complexity. From the Judge’s notes of evidence available to us it appears he gave his evidence authoritatively and with confidence expressing his conclusions with a degree of assurance. A brief summary only is sufficient for the present judgment. He said that as a result of his inspection and analysis of all of the photographs (there were some 60 taken of the scene), the scene of the accident, the Accord as inspected at Honda Motors at Timaru, the police site sketches and reports and witness statements, he had been able to form opinions on the post-impact vehicle movements, the relative vehicle positions at impact, vehicle speed range at impact, vehicle location range at impact, the vehicle angles at impact, the collision sequence, and the impact location on the road. In light of these considerations he concluded that the collision took place mainly in the north bound lane. The key items of evidence relied upon were the damage to the vehicles as depicted in the photographs, the positions the vehicles came to rest and the gouge scrape and tyre marks on the road indicating the post-impact movement of the vehicles. Of particular importance was a long central gouge mark which crossed the centre line of the road in a slight crescent shape running in approximately an east-west direction. He said that he relied also, and completely independently, upon oil deposited on the road as appearing in police photographs. Other factors, including calculations involving the balance of momentum and energy in the collision and computer simulations, proved consistent with his assessment as did the location of debris shown in the photographs. He also gave detailed evidence of his examination of the steering system of the Accord and his conclusion that this together with his study of the photographs of the CRX supported a conclusion that the Accord could not have been steering right at the impact and was consistent with a last second attempt to steer

left, while the CRX was steering to the right seemingly from the north bound lane in an avoidance manoeuvre.

Marks on the road about which there was no dispute, taken with the damage to the two vehicles, showed a head-on collision off-set by approximately 15 degrees with the right side of the front of each car extending beyond the outside of the other. The Accord was the heavier vehicle. After impact it rotated anti-clockwise, airborne at least at the back for part of the time, and came to rest in the north bound lane with the front almost directly over the central gouge in the road. The CRX was propelled by the impact back and at an angle across the road without rotating and ended up on the verge on the eastern side.

It had become apparent that the gouge across the centre line of the road surface was important. The final position of the accord indicated that this gouge could only have been caused by the Accord if it resulted from an east to west movement. That would mean that at impact the Accord was on the correct side of the road. Similarly, the post-impact motion of the CRX was such that if it caused the gouge it would have been on its correct side of the road at impact. Mr Marks’ opinion was that the gouge was caused by the CRX and that the evidence was inconsistent with it having been caused by the Accord.

Mr Marks was closely cross-examined. In addition, evidence was called for the defence from Mr Lindsay, a highly qualified engineer with a background in highway and traffic engineering, Dr Raine, Associate Professor in Mechanical Engineering at Canterbury University and a specialist in automotive and mechanical engineering, Dr Pidwerbesky, a Senior Lecturer in Civil Engineering at Canterbury University and a specialist in road construction, and Dr Nicholson, a Senior Lecturer in Civil Engineering at Canterbury University with expertise in accident analysis. The challenge to the Marks’ evidence was comprehensive. Of major importance was the criticism that the inadequacy of evidence available made it impossible for any view as to the point of impact of the vehicles to be put forward with the certainty conveyed by Mr Marks. The deficiencies in the evidence recorded at the time, the late involvement of experts, the unavailability of the CRX and the interference with the Accord all were

pointed to. In particular there was strong contradictory evidence of the interpretations by Mr Marks of the debris field, the oil on the road (indeed it was contested that it was oil), the steering mechanism of the Accord and the significance of certain of the road markings particularly the central gouge and a tyre scuff mark seemingly extending to the west from it.

Dr Lindsay put forward an alternative analysis with a conclusion that the impact was at a point which placed the CRX 500 mm into the south bound lane. This view was similar to that arrived at by the police photographer on the night of the crash.

One difficulty for the defence was the absence of evidence of any part of the Accord projecting beneath it so as to have caused the central gouge in the road consistent with that vehicles post impact movement. The police photographer, at the scene and subsequently, when inspecting the Accord was not able to see anything. A suggestion that it might have been caused by a tie-down lug on the side of the vehicle later observed to be scratched and to have what appeared to be bitumen adhering to it was excluded by Mr Marks and by Professor Raine. Nothing is apparent from the photographs which clearly show the front of the Accord above the gouge in the road. Professor Raine suggested there might have been something, possibly plastic, trapped between the vehicle and the road which subsequently fell away but there was no strong support for that.

The jury had the benefit of a clear summing-up of which we heard no criticism. The Judge highlighted the areas of agreement and difference between the experts. With reference to the criticisms of the inadequacy of the evidence the Judge said:

Ladies and gentlemen, the adequacy of the evidence is obviously a very important consideration in this case. There is common ground between the experts that there were deficiencies in the investigation, deficiencies in the preservation of the evidence and that is a very important matter for you to weigh. This is a problem not of the Accused’s making. It has nothing to do with him. Where there are problems of this kind they will weigh or sound in the area of proof so that what you will have to grapple with is, whether given such deficiencies, is it a situation where the Crown can discharge the onus? Is it a situation where the Crown has at the end of the day discharged

the onus of proof beyond reasonable doubt? Where there are deficiencies particular care is required because one cannot fill in gaps, if there are gaps, by speculation or guesswork. You must weigh the matter and make that decision on the basis of evidence.

It was for the jury to decide whether to accept the opinion expressed by Mr Marks. In doing so, they were entitled to have regard to the criticisms of his evidence expressed by the experts called by the defence including the deficiencies in the investigation. They were also entitled to consider all the other surrounding circumstances, including the fact that the impact occurred on what would have been for the appellant, a bend to the left after he had driven along a long straight stretch of road, that the appellant had eaten little during the day during which he had competed in a physically demanding sporting event, and that his blood alcohol level was exceedingly high. If there had been a momentary lapse of attention on his part, the left hand bend he was approaching would have resulted in his crossing to his incorrect side. In all of these circumstances it was clearly open to the jury to accept the substance of Mr Marks’ evidence.

The notice of appeal specified as the only ground of appeal that the verdict of the jury was against the weight of scientific evidence. That, of course, is not an available ground of appeal. Section 385 of the Crimes Act provides four grounds of appeal the first of which is that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In this case there was ample evidence as given by Mr Marks which, if accepted, supported the verdict and there can be nothing unreasonable in the preference by a jury of the evidence of one witness to that given by others.

Mr Gibson, who did not appear at the trial, nine days in advance of the hearing filed written submissions supported by eight affidavits including one from a witness who had given evidence at the trial and three from expert engineers from other countries. It was only after notice of objection from the Crown (entirely reasonable given the short period until the hearing) that an application was made on 24 March for leave to introduce these affidavits as further evidence on the appeal.

At the commencement of the hearing we heard argument from Mr Gibson in support of his application. He submitted that this is a case in which the Court should be concerned that there has been a miscarriage of justice arising from an impressive Crown expert giving speculative and unsupported opinion with such confidence and authority that it received weight out of all proportion to its reliability. He contended that the further affidavit evidence was necessary to show that the available factual information does not permit conclusions of such assurance.

While we have not made any extensive analysis of the affidavits, it appears that in general they simply re-emphasise the criticisms made at the trial of the Marks’ evidence. They seek to repeat suggestions made in the course of the trial that the tyre scuff mark seemingly extending from the central gouge on the road was made in the course of the recovery of the Accord, that the Marks’ evidence misinterpreted the “oil” marks, the debris field and the Accord’s steering mechanism, and that his conclusions as to the direction of movement causing the central gouge and as to the impact point were speculative and inappropriately accorded a degree of certainty that could not be justified on the available evidence. All of these matters were alive before the jury and were fairly put to them in the summing-up.

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While there is an over-arching test of the interests of justice, that is to be assessed on an application to admit further evidence on appeal by reference to well established criteria: R v Fryer [1981] 1 NZLR 748,753. The first of those is that the evidence must be fresh in the sense that it could not with reasonable diligence have been obtained for use at the trial. The proposed evidence in this case plainly fails on that ground. Nor do we consider that additional evidence of the same kind as that given at the trial to further bolster a defence case is to be admitted simply by reference

to the general assertion that the interests of justice so require. We declined to receive the further evidence.

The grounds of appeal argued were to a large degree the grounds advanced before trial as abuse of process. They were set out in Mr Gibson’s written submissions as follows:

1.	The just	re was manifest unfairness resulting in a miscarriage of ice caused by:
	(a)	The appellant being materially prejudiced by an inadequate police investigation.
	(b)	The delay in charging the appellant with manslaughter prejudiced him.
	(c)	The Crown expert was inappropriately engaged by the police given his association with the families of the victims.
2.	The safe	re was insufficient scientific evidence for the Jury to reach verdicts:
	(a)	As a result of the police investigation there was insufficient surveying of the accident site and

(b) The scientific evidence of the Crown falls below the standards of objectivity expected of an expert witness.

(c) Conclusions were drawn by the Crown’s expert witness that were speculative in nature and not based on sound scientific principles.

These can be formulated for present purposes as whether there has been a miscarriage of justice arising in aggregate out of the prejudice to the appellant caused by first, the inadequate police investigation and delay in charging the appellant with the further offences and secondly, the evidence of Mr Marks. For the reason already given it is

not appropriate to engage in any assessment of the relative weight that should have been attached to the evidence of the experts for the Crown and defence. That was for the jury.

It is accepted by the Crown that the investigation and recording of the accident scene fell short of acceptable standards. A major accident involving multiple fatalities called for greater attention to detail. The points of criticism were:

(d) There was no examination of the vehicles at the scene as to structural damage, tyres, steering, fluids.

(f) There was an inadequate investigation of the most heavily concentrated area of debris.

(j) The CRX was prematurely disposed of. The Accord was sold, dismantled and straightened in a chassis jig. Neither vehicle was subjected to an inspection by an independent engineer immediately after the accident.

The material issue, however, is the prejudice to the appellant flowing from these inadequacies. We do not overlook that if more information had been available there may have been increased possibilities for testing or excluding various theories. Nor do we overlook that generally the absence of evidence will increase the difficulty of showing guilt beyond reasonable doubt. But it is productive first to examine the

impact of the investigation on those parts of the evidence of Mr Marks that were contested. His view based on oil deposits on the road as depicted in scene photographs was said by him to be entirely independent of his principal reasons for his conclusions. His opinions as to the steering of both cars were also referred to as consistent with, not material to, his primary conclusions. In any event these particular criticisms were not directed to unavailability of the CRX. His interpretation of the debris field was said by him simply to be consistent with his conclusion as to the point of impact. It is fair to add that Mr Marks did not have access to any matters not also available to the defence experts.

It appears that three police officers who had been trained in accident investigation attended the scene on the night of the accident or the next day. There is not to be discounted that any further indicators of the point of impact, had they been there, would have been noted. It cannot be expected that in every serious traffic accident on rural roads at night resulting in a vehicle blocking the carriageway, the police investigation will be carried out to perfection such that in retrospect it is accepted that nothing more might have been done. We have not been satisfied that shortcomings in the police investigation were such as to give concern for the verdict as a miscarriage of justice.

There was a considerable time lapse between the accident and the appellant being charged with the offences with which we are concerned. We do not see, however, that that raises any additional element of prejudice beyond that flowing from the nature of the investigation. Certainly the position did not materially change subsequent to the release of the vehicles by the police which occurred within a few days.

The charge and conviction for driving with excess blood-alcohol concentration may have led the appellant to believe that would be the only consequence for him but we see no abuse of process in the subsequent more serious charges once the police obtained the further evidence of Mr Marks. Section 10(4) Crimes Act prohibits punishing twice for the same offence. That is affirmed in s26(2) New Zealand Bill of Rights Act 1990. Just what constitute offences of such similarity as to be considered

“the same” has been considered in R v Clarke [1982] 1 NZLR 654 and R v Witaka [1993] 2 NZLR 424. The appellant was convicted of driving with an excess proportion of alcohol in his blood. That offence was complete before any accident. He subsequently was charged with causing death. That is not the same offence even though his blood alcohol concentration was an element of both. Nor can there be any suggestion of double punishment. The sentence of imprisonment for 2½ years on these charges was certainly not inappropriate for the separate additional culpability involved.

In his submissions Mr Gibson argued that the trial Judge adopted too high a test - oppressiveness - for abuse of process. He submitted that the appropriate test should have been simply of fairness. The Judge applied the test with reference to the decision of this Court in Moevao v Department of Labour [1980] NZLR 464 and we find no error. In any event, after conviction, the appropriate approach is to determine whether there has been a miscarriage of justice. Embraced within that, in addition to the right not to be punished twice for the same offence, is whether the appellant received a fair trial in public before an impartial Court, had the opportunity to be present and present a defence and the right to examine the witnesses: s 25(a),(e) and (f) New Zealand Bill of Rights Act. These were accorded him.

We agree with the Judge that the prosecution of the appellant on these charges was not an abuse of the Court’s processes and we find no miscarriage of justice.

We turn to the Marks’ evidence. Its weight was for the jury to assess in the light of the cross-examination and the defence expert evidence. The particular complaints were that he was not independent or objective, that he usurped the function of the jury and that his evidence was unnecessarily technical and unsound scientifically. As to the first point it was contended that having earlier conducted an investigation for the deceaseds’ families and given evidence at the inquest he should not have been put forward by the Crown as an expert witness. We cannot accept this. Mr Marks’ prior involvement would have been well known to the appellant and his counsel who could have challenged his impartiality before the jury had that been considered wise. Similarly his expertise could have been and was, challenged before the jury.

We do not find that his evidence usurped the function of the jury in the sense of giving evidence on the issue they were to determine. After having appropriately qualified himself, he was entitled to express opinion on what might be deduced from the factual information proved at the trial. This could extend to the point of impact of the vehicles. The essential questions for the jury were whether the appellant caused the deaths of the deceased by either of the unlawful acts charged. Mr Marks gave no evidence as to that.

His evidence was technical but no doubt, had he not fully supported his opinions, he would have been equally criticised for that. The Judge’s notes of evidence show that he stated his conclusions and the evidence upon which they were based simply and briefly. Then, at great length, he explained his methodology and reasoning. That was complex but understandable when presented in conjunction with diagrams and transparencies which were produced as exhibits. We consider the evidence was such that it could be followed without confusion by a jury. Further, they were assisted by a clear and concise summary in the Judge’s summing-up.

We find no valid grounds for rejecting the evidence of Mr Marks. The grounds advanced really amounted to further complaint as to the fact that his evidence was accepted by the jury. That was their prerogative.

Having carefully considered Mr Gibson’s extensive written and oral submissions we are not convinced that justice has gone astray in this case.

Court of Appeal of New Zealand

R v McLeay CA349/96 [1997] NZCA 35 (14 April 1997)