R v Fenton CA452/02 [2003] NZCA 409; [2003] 3 NZLR 439; (2003) 20 CRNZ 76 (6 March 2003)

Last Updated: 23 January 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/02

THE QUEEN



v



ROBERT JOHN FENTON

Hearing: 25 February 2003

Coram: Blanchard J Baragwanath J Goddard J

Appearances: R B Squire QC for Appellant
CL Mander for Crown

Judgment: 6 March 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant is charged with one count of manslaughter by failing to exercise reasonable care to avoid danger to human life when in control of a motor vehicle, which resulted in the death of one of the vehicle’s occupants. The charge is framed in reliance upon ss150A, 156, 160(2)(b) and 171 of the Crimes Act 1961. The appellant applies for leave to appeal a pre-trial ruling in the High Court at Wellington that certain evidence relating to this charge is admissible.

Background

[2] The charge arises from an incident that occurred on Woodside Road near Greytown in the Wairarapa at around 11.00pm on 6 October 2001 after the appellant had been drinking. The appellant, aged just over 17 years of age, was driving a Toyota utility vehicle carrying two passengers on the rear tray. In wet road conditions, it failed to take a sharp left-hand turn on an open highway and left the road. The vehicle rolled a number of times and the two passengers, one male and one female, were thrown off. The female passenger received injuries for which she required hospital treatment, and the male received injuries from which he died. The appellant accepts that he was guilty of dangerous driving and that his driving was influenced by his consumption of alcohol, but he does not accept that what he did as the driver of the motor vehicle amounted to a major departure from the duty specified in s156:

156 Duty of persons in charge of dangerous things

Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

[3] Also relevant are s150A and s160:

150A Standard of care required of persons under legal duties

(1) This section applies in respect of the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157.

(2) For the purposes of this Part, a person is criminally responsible for—

(a) Omitting to discharge or perform a legal duty to which this section applies; or

(b) Neglecting a legal duty to which this section applies—

only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.

160 Culpable homicide

(1) Homicide may be either culpable or not culpable.

(2) Homicide is culpable when it consists in the killing of any person—

(a) By an unlawful act; or

(b) By an omission without lawful excuse to perform or observe any legal duty; or

(c) By both combined; or

...

[4] The evidence which the appellant seeks to have excluded and which was admitted by a High Court Judge is to the following effect:

(a) that the appellant drove the vehicle without a licence;

(b) that the vehicle was unregistered and unwarranted, and this was known to the appellant;

(c) that the appellant drove the vehicle without permission from the owner, the appellant’s employer;

(d) that the vehicle had structural defects and its right front tyre was fitted the wrong way around, with tread that was below the minimum level required;

(e) that the appellant was not wearing a seatbelt; and

(f) that the vehicle was speeding and being driven “erratically” some minutes before the accident.

The High Court decision

[5] The High Court Judge recorded that it was the Crown’s case that the appellant had failed to observe a legal duty of care when making the decision to drive that evening. He held that evidence relating to the unlawful acts of driving without a licence and the conversion of the vehicle was “directly relevant” to whether there was a breach of this duty.
[6] The Judge said that the remaining evidence was admissible, not merely because it was an “important principle” that the jury be entitled to the “whole picture”, but because it was “directly relevant” to the question of whether there had been a major departure from the expected standard of care as required by s150A. He said that it was plain that the prosecution was entitled to call the evidence “having regard to the basis on which the charge has been laid”, namely killing through an omission to observe a legal duty, rather than killing through an unlawful act. The Judge held that, while causation (“a sufficient link”) must be proved in both instances and the death must be a consequence of the omission, the true foundation of the charge related to the exercise of care in the decision to drive “having regard to all the circumstances”.

Arguments on appeal

[7] For the appellant, Mr Squire QC submitted that in order to secure a conviction under the statutory provisions referred to in the indictment, the Crown must prove that the failure to perform the relevant duty was a substantial and operative cause of death, and that the failure involved a risk of danger to life. The decision of this Court in R v Myatt [1991] 1 NZLR 674 was cited in support of these propositions.
[8] Referring to this test, counsel for the appellant submitted that the evidence relating to the failure to hold a licence, the lack of vehicle registration and warrant of fitness, the absence of consent to drive the vehicle, and the failure to wear a seat belt is “irrelevant” because none of these omissions was a substantial or operative cause of the death of the appellant’s passenger.
[9] The evidence concerning the structural integrity of the vehicle and defects in the right front tyre was said to be irrelevant because there was nothing to suggest that these shortcomings were a cause of the accident.
[10] In relation to the evidence that the appellant was speeding and driving erratically some distance before the accident, it was submitted that these events were also not substantial or operative causes of the death; that they had no chronological or geographical connection with the accident.
[11] Mr Mander, for the Crown, supported the view taken in the High Court, and submitted that a jury was entitled to hear evidence of all the circumstances relevant to the appellant’s departure from the standard of care required of a person in control of a motor vehicle, and that it was not a necessary pre-requisite to admissibility that each item in evidence caused the death.
[12] It was the Crown case that there was a combination of factors which caused the accident, including speed, intoxication, inexperience, dangerous driving and permitting the passengers to ride on the tray, and that all these factors were involved in the appellant’s failure to take reasonable care. It was also asserted that the Crown case was that in part the accident resulted from mechanical malfunction but, as will be seen, this is not in fact supported by the evidence tendered. The fact the appellant did not have a licence, knew the vehicle was not registered or warranted, knew that he did not have permission to drive the vehicle, and was not wearing a seatbelt, all were said to exhibit his “reckless” attitude and behaviour. Along with the fact the appellant was earlier speeding and driving erratically, they showed that he was embarking on a deliberate and continuous course of reckless behaviour, and that the fatal accident was not simply due to a momentary indiscretion.

Decision

[13] This Court explained in R v Powell [2002] 1 NZLR 666 that, as a result of the changes brought about to the Crimes Act by the amendment in 1997, giving effect to the report of Sir Duncan McMullin, in order to establish manslaughter in relation to a breach of the duty of care imposed by s156 on persons in charge of dangerous things, whether by unlawful act, omission or by both combined (paras (a), (b) and (c) of s160(1)), the Crown must prove, in terms of s150A, “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”. In other words, in more traditional language, the Crown must prove not merely negligence but gross negligence. It is worth adding that, as the Court noted in Powell, citing Andrews v Director of Public Prosecutions [1937] UKHL 1; [1937] AC 576, 584 (see Powell at paras [17] and [34]), driving may be dangerous but not to such a degree of negligence as to constitute a major departure from the ordinary standard of care. In the hierarchy of negligent driving, motor manslaughter is now reserved for very bad cases.
[14] In our view, Mr Squire QC was correct when he submitted that these changes in the statute have not affected the existing law that for an unlawful act or omission (or combination thereof) to justify a conviction for manslaughter it must be something which is a substantial and operative cause of the death of the deceased: R v Myatt [1991] 1 NZLR 674, 682. It is not permissible for the Crown to prove ordinary negligence by reference to causative acts and omissions and then to seek to adduce evidence of further blameworthy conduct, not causative of the fatality, in order to show that there has been a major departure from the ordinary standard of care. It is as if the words “where the omission is a major departure from the standard expected of a reasonable person to whom that legal duty applies in those circumstances” had been added to s156. The major departure is thus read into s156, and must itself be proved on the basis of the acts or omissions which singly or together caused the death.
[15] It follows that in a case of this kind the directly relevant and probative evidence is that which goes to prove the blameworthiness of acts and omissions which have caused or contributed to the fatal accident. Such evidence will be admissible unless for policy reasons it is excluded by any rule of law. Matters which are merely part of the background to the accident and go to prove acts or omissions which were not, whatever their character, wholly or partly causative of the fatality may be inadmissible because they are not relevant or because their probative value is slight and is exceeded by their potential for unfairly prejudicing the defendant in the eyes of the jury.
[16] These general propositions can be illustrated by the evidentiary matters in issue on this appeal. The context is of course the nature of the particular Crown case and the matters which it seeks to prove as causative of the death of the appellant’s passenger. But the central question is how the contested evidence relates to the alleged causes of the accident.

Driving without a licence

[17] It was Mr Squire’s submission that evidence that the appellant did not hold a licence to drive a motor vehicle should not be admitted because his omission in that respect, although it put him in breach of s31 of the Land Transport Act 1998, was not an omission which created a danger to life and was not a substantial and operative cause of the accident, and therefore of the death. Counsel said it was not even necessarily an indication of an inability to properly control a motor vehicle. People who are competent drivers may not hold a licence to drive in New Zealand for reasons other than lack of competence, for example, because they have forgotten to renew their licence or have been disqualified as a result of committing an offence which does not exhibit incompetence, or because they have recently arrived in this country and have not had time to obtain a New Zealand licence. It was submitted that evidence of a defendant’s lack of a licence will prejudice his case before the jury and be of little or no probative value.
[18] As a general proposition this submission has some force. It is supported by a decision of the Criminal Division of the Court of Appeal in England which held in R v O’Neale [1988] Crim LR 122 that the fact that a driver had been in breach of a law relating to persons holding provisional licences would be inadmissible per se. It would only become admissible if the breach (in that case driving without prescribed supervision) could be shown to be causally connected with the ensuing accident. In a comment appended to the report of the decision, Professor John Smith said that, if the evidence were admissible at all, it must surely be as circumstantial evidence, first, of the actus reus, in that an unqualified and unsupervised driver was more likely to have been at fault in causing the accident than one who was qualified or, if unqualified, properly supervised; and, second, of his state of mind, that he was aware of the risk he was taking, or that he had given no thought to it. But the relevance of such evidence was “probably slight” while its prejudicial effect might be great and where that was so, the Judge had a discretion to exclude it.
[19] The argument for the appellant might accordingly have been persuasive if this appellant were a person well above the age at which a driving licence may be held. The position would then have been that, although the absence of a licence might have suggested a possibility of inexperience or incompetence with regard to motor vehicles, it would not have carried proof of that matter very far. But one of the elements which the Crown says caused the accident was this appellant’s inexperience in driving motor vehicles. He was only just 17 at the time of the accident. No one can hold any form of driver licence until attaining 15 years of age (s25 Land Transport Act 1998) and a young person who then seeks a licence has first to hold a learner’s licence for six months (cl 17 Land Transport (Driver Licensing) Rule 1999) and then a restricted licence for 18 months (reduced to 12 months if an approved course is undertaken) before he or she can gain a full licence (cl 19 of the Rule). Prima facie, then, the appellant would have had no opportunity to learn to drive on a road until about two years before the accident. The fact that he did not hold a licence would suggest that either he has never undergone the disciplines of learning to drive, studying the road code and passing the requisite tests of practical skill and theoretical knowledge or that, having obtained a form of limited licence, he has had it removed. (The Crown may of course be in a position to clarify this picture by reference to licensing records.)
[20] The evidence of failure to hold a licence at the time of the accident is therefore relevant and capable of being probative that this appellant was an inexperienced driver. On this basis, the evidence ought to be admitted.

Vehicle unwarranted and unregistered

[21] The owner of the vehicle, Mr Winter, was the appellant’s employer with whom the appellant was living at Greytown. Mr Winter had told the appellant on the evening of the accident: “Don’t even think you can drive the Ute. It’s not registered or warranted”, to which the appellant is alleged to have replied: “I wouldn’t be so stupid”. Mr Mander sought, in the first place, to use this evidence to show that the appellant knew that the vehicle had no warrant of fitness and was not registered for use on the road. But obviously it does not follow from the lack of a warrant and registration that the vehicle was actually in an unroadworthy condition. Vehicles which are warranted and registered may nevertheless be unroadworthy on any given day, particularly if the warrant was issued some months earlier. As such, the proposed evidence would not prove anything about the cause of the crash.
[22] The Crown submitted that evidence of the appellant’s willingness to drive the vehicle, despite knowing it had no warrant of fitness or registration and despite having said to his employer that it would be stupid to do so, demonstrated his reckless state of mind on the night in question. It said that recklessness in his manner of driving was a cause of the accident. However, his state of mind in relation to his decision to drive the vehicle does not, we think, provide any real proof of the lack of quality of his driving at the time of the accident and should not be admitted. Many people elect to drive vehicles that are unwarranted and/or unregistered, yet do so without breaching any duty of care. The prejudice created by such evidence could, in contrast, be considerable.

The defects in the vehicle

[23] The faults found in the vehicle when it was inspected after the accident by Mr Green, an inspector with Vehicle Testing New Zealand, were that:

• (a) the right front tyre was fitted to the wheel rim in the wrong direction so that it was not rotating correctly in relationship to the tread pattern;

(b) the tread of that tyre was below the minimum legal requirement; and

(c) there was some structural weakness and corrosion of body panels.
[24] Mr Green is, however, quite tentative in ascribing to any of these faults any role in the accident. It appears from his report that all he feels able to say is that the faults in the tyre “may have been a contributing factor”.
[25] There is no evidence that the appellant was aware of any of the defects. If he had had such awareness and if there were a proper basis for the Crown to assert at trial that one or more of them was a contributing cause of the death of the deceased, there could not possibly be any sensible objection to the admission of the evidence in proof of the appellant’s breach of duty of care.
[26] In the present case, however, where the Crown does not have that basis for advancing its case, and the defects are not shown to have been known to the appellant, the inspector’s report must play a lesser role. The Crown will be permitted to tender it in evidence because the jury will need to be informed about the mechanical condition of the vehicle and because the Crown will need to negate the possibility that the accident was caused by a sudden mechanical failure which could not have been anticipated. Mr Squire indicated that he had no objection to the admission of the evidence for such limited purpose.

Conversion of vehicle by appellant

[27] As already appears, the appellant drove the vehicle without the owner’s permission. Indeed, there was an express prohibition. The appellant therefore converted the vehicle. But the conversion was not causative of the accident. It merely provided the opportunity for it to occur. Again, we agree with Mr Squire that there would be obvious prejudice in the admission of any evidence about Mr Winter’s prohibition on the use of the vehicle. For the same reason we have given in relation to the lack of the warrant and registration, that evidence would not be probative of the lack of quality of the appellant’s driving and, because of its prejudice, should not be admitted.

Failure to wear seatbelt

[28] The appellant’s omission to wear a seatbelt created a danger to himself, not to the deceased. It sheds no real light on the quality of his driving at the relevant time. This evidence is prejudicial and should not be admitted.

Evidence of speeding and erratic driving

[29] Mr Winter and his wife had gone away for the weekend. The appellant, the deceased and the female passenger, Ms Te Tau, consumed a quantity of beer and bourbon. At about 10pm the appellant drove the vehicle with the two passengers from Greytown to Carterton. Ms Te Tau, who at that stage was sitting in the front passenger seat, says that he drove at a speed of between 120 and 140kph. A purchase was made at a store in Carterton. The vehicle was seen in Carterton by Constable Farley, an off duty police officer, about 35 minutes before the accident. It was driving quite “erratically” through the town centre. It began to accelerate away from the constable’s vehicle travelling at a speed which he estimated to be in excess of 100kph in a 70kph restricted area. He noted the registration number. He followed the vehicle on its return trip to Greytown where it failed to stop at a compulsory stop sign, making no effort to slow. It stopped near public toilets in Greytown and a male passenger got out and was observed by the constable to stagger towards the toilets, appearing intoxicated. This is acknowledged to have been the deceased. The constable stopped in Greytown to use a public telephone to advise on-duty police staff of his observations. He did not see the vehicle again.
[30] There will be evidence that the appellant drove to his home at the property of the Winters. The vehicle was seen there by a police patrol at 10.41pm but evidently their inquiries were taken no further. After taking the item purchased at Carterton inside and going to the toilet, the appellant drove off again with the two passengers now on the tray. They were intending to go to the Woodside railway station, not far from Greytown. Ms Te Tau’s evidence describes the appellant’s driving as erratic. He was stopping and starting and swerving along the road prior to approaching the bend on which the crash occurred at 80 to 100kph, which was within the speed limit but allegedly a dangerous speed at which to attempt to negotiate the bend in question.
[31] The evidence about the observations of the appellant’s driving which is objected to is, firstly, that of Constable Farley in its entirety. The second objection is to Ms Te Tau’s evidence about the speed of the appellant’s driving on the way to Carterton. No objection is taken to her description of his driving between leaving the Winter home for the final time and the accident.
[32] A state of affairs, quality or tendency at a given time may be able to be proved by showing that such a state of affairs, quality or tendency existed not long before or not long after that time: see Wigmore, 3ed §437 (1). The probative value of the earlier or later happening will depend upon all the circumstances, including the nature of the proof and the probability of changes during the time interval. This is sometimes spoken of as a presumption of continuance but, as Halsbury 4ed Reissue Vol 17(1), para 505 and Cross on Evidence, NZ ed, para 2.3 observe, the better opinion is that it is merely a probability, or presumption of fact, the effect of which will vary with particular circumstances. It is a process of deduction, reasoning and inference from probabilities and depends upon the accompanying facts: Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 405 per Dixon J.
[33] The application of this process of reasoning in decisions on the admissibility and application of evidence in cases involving the unlawful use of motor vehicles has developed over many years. In an early case, Beresford v Justices of St. Albans (1905) 22 TLR 1, it was held that evidence that a defendant was driving a car at point B, where the car had proceeded at a known speed (28 mph) from point A to point B, provided proof that he had driven it over the whole distance in excess of the speed limit of 20mph. The Courts have also long been willing to allow evidence of the speed or quality of driving in the time preceding an accident in order to show the dangerous or other quality of the driving at the time of the accident. In another early case, R v Lewis [1913] ArgusLawRp 49; [1913] VLR 227 at 229-230, it was held that the rate at which a car was travelling half a mile before an accident “bears directly on the probabilities as to the rate of speed at which the car was travelling when the accident occurred”. In Hallett v Warren, a case in 1926, but reported in (1929) 93 JP 225, it was said to be the duty of the Justices hearing a charge of driving in a manner dangerous to the public to hear evidence as to the way in which the defendant was driving up to two miles away from the scene of the accident. In a concurring judgment, Avory J said that assuming the case were presented to the Justices on the footing that the allegation of dangerous driving was limited to the moment at which the collision occurred, he would still be of the opinion that the Justices had been wrong in law in saying that no inference as to the manner of driving at that moment could be drawn from the manner of driving at the places where the defendant was seen by the witnesses. It appeared to Avory J that the Justices had confused or omitted to distinguish between “that which is relevant and the weight of the evidence after it has been admitted” (p226-7). And in R v Burdon (1927) 20 Cr App Rep 80 the English Court of Criminal Appeal saw nothing wrong with the admission of evidence of the way in which a vehicle had been driven some three miles before it was involved in an accident.
[34] The cases naturally indicate an approach which grows more cautious about the probative value of the evidence as the distance and time from the observation to the accident becomes greater but, as a Full Court of the Supreme Court of New South Wales noted in Duffus v Collins [1961] 1 NSWR 464 at 470, it is a question of degree, and under modern conditions “and taking a real view of what happens on roads”, that Court considered that it was “quite legitimate to infer the speed at point “X” by reference to the speed at point “Y” which may be a considerable distance away from it”. In R v Martin (1981) 4 A. Crim. R. 302 the Court of Criminal Appeal of Queensland approved the admission of evidence by a witness who described how he had followed the defendant from a point some 29 kilometres away from the scene of the accident, describing three incidents of overtaking and driving at excessive speed. The last observation by the witness had been at a point some 10 kilometres from the scene of the accident. The Court of Appeal inclined to the view that the defendant’s manner of driving over the whole of that distance was relevant to the question whether he drove dangerously at the place where the accident occurred.
[35] The Court distinguished the case before it from R v Horvath [1972] VicRp 60; [1972] VR 533, where evidence was held to have been wrongly admitted of dangerous driving 45 minutes and 30 to 35 miles before the accident from which the charge arose. In Horvath the Full Court of the Supreme Court of Victoria had made the following observation:

Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place. (p538)

In Horvath it seems to have been significant that the circumstances in which the accident occurred differed considerably from the incident of dangerous driving described by the witness, in that it appeared that the defendant earlier seen overtaking dangerously may at the time of the accident have simply fallen asleep at the wheel. It had not been shown that he was affected by alcohol. The Victorian Court distinguished its earlier decision in R v Buchanan [1966] VicRp 3; [1966] VR 9 in which evidence of the manner in which the accused was driving 35 to 40 minutes prior to the collision was admitted, partly, it seems, because the incident described by the witness was a “replica” of dangerous driving described by witnesses at the time the fatal accident occurred but also, and importantly for the present case, because there was found to be a connection between the accused’s manner of driving at the earlier time and that which occurred at the time of the accident. That connection was said to exist in evidence that during the day in question the accused had consumed a quantity of alcohol. The Court in Buchanan was of the opinion that the incident 35 to 40 minutes before the accident was relevant to show “how the accused and his handling and control of the car was affected by the liquor he had taken” (p12). In the leading judgment, Winneke CJ spoke of

a connecting link between the incident...and the driving of the applicant at the time of the accident, and that collecting link was...that the applicant was affected by alcoholic liquor, and the earlier incident could be used by the jury as an indication that the applicant was affected in his judgment and his management and control of the car. (p12)

In the present case the consumption of alcohol with some influence on the appellant’s driving is admitted and the Crown is seeking to show the degree to which it affected the appellant’s driving and was causative of the accident.

[36] In the end, it will in each case be a question of fact and degree whether observations of an accused’s erratic driving or speed at a point prior to the accident scene can sufficiently provide proof of the character of his or her driving at the time of the accident, so as to outweigh its prejudicial effect. But where there is continuity, from a number of observations or from someone who has followed or travelled in the accused’s vehicle, and particularly where the observations in question tend to support the view that the accused was under the influence of alcohol (that being established by a testing procedure or an admission from the accused), we consider that the evidence may more readily be admitted even though, in whole or in part, it concerns observations related to a place or time somewhat distant from the accident which is the focus of the trial.
[37] In this case we have no doubt that all the disputed evidence should be admitted. Constable Farley followed the appellant for some distance. Ms Te Tau travelled with him. Both give accounts consistent with alcohol impaired driving and the appellant has admitted that he was to some extent under the influence of alcohol. Ms Te Tau’s evidence describes what was essentially the one journey, namely from Greytown to Carterton and return, and then the final and fatal portion of the journey. The brief stops at the store in Carteron, the toilet in Greytown and the appellant’s home did not in any way break the continuity. We note in this connection that in Buchanan the disputed evidence was held correctly admitted despite the accused having made what was described in the concurring judgment of Sholl J (at p16) as “a fairly long stop” between the time of the observation by the witness and the time of the accident.

Result

[38] Leave to appeal is granted. The appeal is allowed to the extent only that there will be excluded from the evidence at trial the proposed evidence pertaining to the appellant driving an unregistered and unwarranted vehicle, driving without permission from the owner and not wearing a seatbelt. In other respects the proposed evidence will be admitted but, in relation to the evidence concerning mechanical defects in the vehicle, on the limited basis indicated in para [26] of this judgment.

Solicitors:
Gawith Burridge, Masterton
Crown Solicitor, Wellington