Para No
Introduction [1]
The background facts [4]
A fatal road trip [14]
The respective cases at trial [19]
What went to the jury [21]
The grounds of appeal [27]
Self-defence: the law [30]
Self-defence: this case [40]
Crown closing [49]
The fresh evidence application [58]
Result [60]

Introduction

[1] The appellant, Ms Fairburn, appeals against a conviction for murder which was entered against her, following trial before Harrison J and a jury.[1]
[2] Ms Fairburn pleaded guilty to a count of dangerous driving causing injury arising out of the same incident.
[3] The critical issue on the appeal is whether the justification of self-defence was properly available to Ms Fairburn, in the circumstances of this case.

The background facts

[4] Ms Fairburn and the deceased, Mr Maxwell, had been in a relationship. At the time of the homicide they were separated. Ms Fairburn had a daughter, Y, who was aged around two in August 2007.
[5] On 5 August 2007 Ms Fairburn made a complaint to the police that Mr Maxwell had been alone in a house with Y. The state in which she had found the daughter’s bed and clothing had led her to believe that Mr Maxwell had sexually abused Y. Ms Fairburn was very angry. When she went to the police she took along the bedding and clothing. She also took what she said were black pubic hairs found on the floor of the daughter’s bedroom. She told the police that they had “to get” Mr Maxwell. There was something of an exchange between Ms Fairburn and police officers. A police officer endeavoured to explain to her that real care was required when investigating such allegations, and that suspicion was not enough to justify an arrest then and there.
[6] After she left the police station Ms Fairburn exchanged text messages with a Mr Burridge that suggested she was trying to obtain a “stun gun”.
[7] Over that weekend and on Monday 6 August 2007, there was a tangi for one of Mr Maxwell’s relatives at a marae in Inglewood. Mr Maxwell went to that tangi early on the Monday morning.
[8] That same morning Ms Fairburn sent a text message to a friend, Ms Murphy, relating her belief that Mr Maxwell had abused Y and indicating she had been to the police. She said, “I’m coming down to Inglewood. He be at funeral today. I got something for kiddy fucker.” There were further text messages between Ms Fairburn and Ms Murphy that day which included Ms Fairburn telling Ms Murphy “this stun gun kills in six seconds”. She did not in fact ever procure a stun gun.
[9] By lunch time on the Monday Ms Fairburn had gone to the address at which Mr Maxwell was then living in New Plymouth. She spoke to one of the occupants. She again related, angrily, her concerns at what she regarded as the child abuse she thought had occurred.
[10] Ms Fairburn then went to Ms Murphy’s house in Inglewood for perhaps five hours and consumed alcohol. She kept on about her belief that Mr Maxwell had abused Y. She said she had been to the police, and if they were not going to do anything about it then she would. Over the course of the afternoon Ms Fairburn spoke about killing Mr Maxwell. She talked about poisoning him or using a taser on him. She said she was going to take Mr Maxwell out and was willing to face the consequences but did not think she would “get very much for it”.
[11] Ms Fairburn left Ms Murphy’s home early that evening. She went in her car to the Heritage Hotel, which is on the main street in Inglewood. She anticipated that Mr Maxwell would be drinking there with his friends and family after the tangi.
[12] Mr Maxwell was indeed there. Both Mr Maxwell and Ms Fairburn remained in the bar for a few hours. During the course of the evening Ms Fairburn had some contact with Mr Maxwell’s relatives. She suggested to one of them that he was “nothing but a kiddy fucker”. Mr Maxwell and Ms Fairburn were seen arguing at various points.
[13] At about 9.45pm Ms Fairburn left the hotel through the front door. Her car was parked at the back of the hotel. She walked along the side of the adjacent building to get to it. Mr Maxwell left the bar. He was not detected on the security camera at the front door of the hotel, and is thought to have exited through the rear door of the hotel.

A fatal road trip

[14] Ms Fairburn began pulling out of the hotel car park in her Mazda. Somehow or other Mr Maxwell “just ended up” on the bonnet of her car. Ms Fairburn said she did not know how. She said that he started “bashing his head against the windscreen and screaming at her”, although she could not hear what he was saying.
[15] In something of a panic, Ms Fairburn drove out of the car park and on to Rata Street. That is the main road through Inglewood. Mr Maxwell was hanging on to the bonnet of the Mazda. She then drove towards New Plymouth, which was approximately 15 kilometres away. She went down the main street of Inglewood at speed and was seen veering across both lanes of the roadway from side to side. Vehicles coming towards her in the opposite lane had to pull over to the left-hand side of their lane to avoid her. Mr Maxwell was described as lying face down on the bonnet of her car with his legs over the front of the head lights, hanging on very tightly to the top of the bonnet at windscreen wiper level. As Ms Fairburn veered from side to side he was slipping and sliding across the bonnet.
[16] Ms Fairburn continued to drive along State Highway 3 towards New Plymouth. After the Mazda had passed through Egmont Village Ms Fairburn came up behind a vehicle in which Mr Mark Jones and his wife were travelling. Mr Jones said he was travelling at around 100 kilometres per hour. He related that as he came to the end of a passing lane the Mazda suddenly passed his car at a speed he estimated at 120 kilometres per hour. As the Mazda went past Mr Jones got a fleeting glimpse of something on the bonnet of the vehicle. So he followed Ms Fairburn, increasing his speed to perhaps 110-115 kilometres per hour. As Mr Jones followed, at various points the Mazda’s brake lights were going on and off although the Mazda did not seem to slow significantly; at one point it had its right indicator flashing; and elsewhere the hazard lights were flashing.
[17] As the Mazda came to the outskirts of New Plymouth at what is commonly referred to as the Mangorei Road intersection (some 13 kilometres from Inglewood) a Mr McCall was travelling towards the Mazda in an Isuzu vehicle. Miss Smillie, in a van behind the Isuzu, said that the Mazda was wandering a bit, but she said it was in the correct lane.
[18] Suddenly the Mazda appeared directly in front of Mr McCall’s Isuzu. This was so sudden that he had no time to brake or react. He estimated the Mazda’s speed at about 80 or 90 kilometres per hour at that stage. It is common ground that the Mazda was entirely on the incorrect side of the road at impact and crashed head on into the Isuzu. Mr Maxwell was killed, and Ms Fairburn and Mr McCall seriously injured.

The respective cases at trial

[19] The Crown case at trial was that Ms Fairburn killed Mr Maxwell by deliberately crashing her Mazda into the oncoming Isuzu vehicle, with murderous intent.
[20] The defence case, as sought to be advanced, had two limbs. First, the defence maintained that there was an act of self-defence under s 48 of the Crimes Act 1961. This act, on the defence argument, was the act of driving which compelled Mr Maxwell to remain on the bonnet of her vehicle, not the act of crashing into the oncoming Isuzu. Secondly, it was maintained that in any event the head on crash was an “accident” and therefore there was an absence of the mens rea required for murder.

What went to the jury

[21] We use the phraseology “sought to be advanced” because when it became apparent to the trial Judge that the defence was seeking to run self-defence, Harrison J indicated that he would need to hear submissions from counsel on that issue. He had some concerns about such a defence in this case.
[22] In his Bench Note No. 2 Harrison J said: “Following argument Ms Hughes sought an adjournment and, after receipt of instructions, advised that Ms Fairburn did not wish to pursue justification.”[2]
[23] Ms Hughes explained to us that, when she told the Judge, as he recorded, that Ms Fairburn did not wish to pursue justification, that was because, during submissions, she had understood him to intimate that the particular concerns he had appeared to him insuperable.
[24] Whether the point was abandoned or ruled out is now quite academic, because the Judge very properly set out his reasons as to why, had Ms Hughes sought a ruling, he would have ruled self-defence out. These were: [3]

I am independently satisfied that no jury could possibly conclude that the force used by Ms Fairburn was reasonable in the circumstances. While there is a paucity or insufficiency of evidence to establish a plausible narrative of the relevant circumstances as Ms Fairburn allegedly believed them to be, two other factors are particularly dominant.

[25] The Judge then went on to explain that in his view, the point of time to be considered was that immediately before the crash resulting in death. Justification required something to be done deliberately, at that time, for the primary purpose of Ms Fairburn defending herself. In the Judge’s view:[4]

No jury could possibly conclude that Ms Fairburn’s act of driving her vehicle across the centre line at a speed of about 90 kph, knowing Mr Maxwell was on the bonnet, was a reasonable or proportionate response to the circumstances as Ms Fairburn allegedly understood them to be.

[26] Accordingly the case went to the jury on the footing that before she could be convicted of the murder of Mr Maxwell it had to be satisfied beyond reasonable doubt that Ms Fairburn had a murderous intent at the time of the collision. There is no complaint as to the Judge’s summing up on the intention which was required for murder. If the jury had an honest and reasonable uncertainty as to the intention of Ms Fairburn then, as the Judge put it, Ms Fairburn was entitled to the benefit of the jury’s doubt and the proper verdict to return was guilty of manslaughter. In the event, the jury returned a verdict of guilty of murder.

The grounds of appeal

[27] The appeal is mounted on two points.
[28] First, Ms Hughes QC maintains that the Judge was wrong to take the justification of self-defence away from the jury.
[29] Second, it is claimed that in closing Crown counsel made an inaccurate, and it is suggested improper, statement. That in turn is put forward as part of a justification for a fresh evidence application by Ms Fairburn.

Self-defence: the law

[30] Logically, it may be thought preferable to start with the application to admit fresh evidence. However the unusual features of this case make it more convenient to deal with self-defence first.
[31] New Zealand law recognises a justification of self-defence.[5] That is, a person who is attacked may defend him or herself (or another) and may be legally justified in repelling force with force.[6] If the attacked person comes within the justification, there is no conviction.
[32] It is long established law that self-defence involves three elements, namely: whether the force used by the accused was in defence of him or herself; whether in the particular circumstances the accused believed that to be so; and whether the force used was reasonable in the circumstances as the accused believed them to be.[7]
[33] If the issue of self-defence is properly raised by any of the evidence – and the Judge has a responsibility in that respect independent of what the defence might be advancing – it is for the Crown to prove beyond reasonable doubt that the accused was not acting in self-defence.[8] If the Crown does not exclude that as a reasonable possibility, the accused should be acquitted.
[34] It will be observed therefore that there are three questions to consider. [9] First, it is necessary to ascertain what the accused believed the circumstances were at the time: what did she think was happening at that time? What did she think was the nature of the attack or the threat of bodily harm? Secondly, having ascertained that factor, was she acting to defend herself from the harm that was threatening her? Again, that is looked at subjectively. The third step is then to ask whether the force that she used was reasonable, given what she believed was happening at the time.
[35] Sometimes there is a difficulty at trial in that a justification of self-defence may be raised in circumstances that are little more than fanciful. This raises the issue: when, if at all, should self-defence be withheld from a jury (as the Judge did here)?
[36] The principle which has been established for many years in New Zealand, is that as a general proposition: [10]

self-defence should be put to the jury unless it would be impossible for the jury to entertain a reasonable doubt that the accused had acted in the defence of [herself] or another within the terms of s 48.

[37] There may be an issue as to whether a Judge should ever take away the specific issue of reasonable force from a jury. Certainly in a leading UK case, Lord Diplock has said:[11]

What amount of force is “reasonable in the circumstances” for the purpose of preventing crime is, in my view, always a question for the jury in a jury trial, never a “point of law” for the Judge.

[38] The Court in R v Winterburn[12] was a divisional court, admittedly presided over by the then Chief Justice, and with the now Chief Justice also sitting. The observations of the House of Lords were not there referred to. It may be that on some future occasion this Court may have to revisit Lord Diplock’s comment, and whether the New Zealand formulation is overbroad. For reasons we will come to shortly it is not necessary to resolve the point here. However, in case the point should arise, we note that in Canada, on a like criminal code provision, with the identical three elements, it has been held that an “air of reality” test is to be applied to each element.[13] To put this another way: truly fanciful propositions (on each element) will not be advanced to a jury: the Court does have a preliminary screening function.
[39] A further point of potential significance in this instance is: what if an accused’s beliefs are unreasonable?[14] The accused may have had a misapprehension, and one which might objectively be said to be unreasonable. The present principle in New Zealand is that an unreasonable belief that force was necessary may still support a defence provided that belief is honestly held. As this Court said in R v Savage: “When the knife was used, the accused must have seen himself as under a real threat of danger, and not merely think there may be some future danger to him.”[15] Or, to put it another way, there must be an honest belief of a threat of the requisite danger. Thus, to take an extreme example, even an insane delusion might require the defence to be put to the jury.[16] As Wright has correctly observed, “[t]he cases that really concern the judges seem to be those where the defendant’s view of the circumstances is wholly unreasonable”.[17] But on the present state of the law, so long as the belief is honestly held it does not matter that it was unreasonable.

Self-defence: this case

[40] Against all of this we turn to the peculiar facts of this case, which were strung out over a period of time and locales. Ms Hughes contended that when Ms Fairburn drove off from Inglewood with Mr Maxwell on the bonnet of her Mazda she honestly entertained the belief that he was about to attack her. So the threat of violence towards her was apparent in his throwing himself on the car bonnet. Her act of self-defence was to drive off. But then she drove at high speed and at times erratically for over 10 kilometres with him (somehow) clinging on to the bonnet.
[41] Ms Hughes of course contends that everything that happened thereafter was part of one continuous event. We do not think that can be so here. It is one thing to drive off in a car with somebody clinging on to the bonnet; it is quite another for that vehicle to be driven head on into another vehicle some kilometres later with that person still on the bonnet as an act of self-defence. The matter has to be assessed at the point the Mazda approached the Mangorei Road intersection. If that is so, the tests set out in [34] above apply.
[42] Ms Fairburn’s evidence was that she continued to believe she was under threat. Whether Mr Maxwell was in any shape to be a threat to her at that point and after the experience he had been enduring has to be questionable. Undoubtedly he would not have been pleased with her. But the first (subjective) limb must be satisfied.
[43] The difficulty lies with the second and third limbs of the test. Ms Fairburn’s actual evidence was that she has no memory of the final seconds prior to the crash. There was simply no response by her along the lines of: “This is what I thought, and this is why I did what I did.” She at no point asserted that she considered she had to drive into another vehicle at that point.
[44] In short, even if we assume the Judge was not entitled, on Lord Diplock’s view, to make a determination of disproportionate response (as being exclusively a jury matter), the Judge was entirely correct to take self-defence from the jury here because there was simply no evidence from Ms Fairburn along the lines of: “This was the honest belief I had as to what I needed to do then.”
[45] One view of this case is therefore, that there is simply no evidential basis relating to the relevant period of time, to enable the justification to be advanced.
[46] Another way of viewing matters is to accept, for the purpose of argument, Ms Hughes’ submission (from the sidelines as it were, for it was not suggested by Ms Fairburn in evidence) that this crash was “an accident”. Section 48 requires the use of “such force” as is reasonable in the circumstances as the accused believes them to be. Deliberate force is one thing; accidental force is another. If there is no deliberate force, s 48 cannot apply.
[47] A third view, based on the assumption that the present New Zealand law is as stated, and the Judge properly exercised a screening function, that the force actually used could not possibly be viewed as reasonable, which is how the trial Judge saw matters.
[48] In the result, in our view, for all three reasons the Judge was right not to allow this justification to go to the jury.

Crown closing

[49] Complaint is made that in closing Crown counsel (not Mr Brewer) claimed that Ms Fairburn “deliberately crossed the road, straightened and drove into [the Isuzu]”.
[50] Ms Hughes said that whilst the defence accepted that Ms Fairburn had crossed the centre line:

the defence never agreed, that the crossing of the centre line was deliberate nor until the Crown closing was there ever any suggestion, that Ms Fairburn had straightened her vehicle having crossed the centre line to hit head on with the oncoming [Isuzu].

[51] This attack on the Crown closing is then advanced as the substantial reason why fresh evidence should be allowed; in effect as rebuttal evidence on that proposition.
[52] This prospective evidence is an extensive report, adduced by affidavit, from Marks & Associates Limited who are, amongst other things, vehicle accident analysts. It is convenient to note here that, in case that report should be admitted by this Court the Crown obtained its own report from Investigative Engineering Services Limited by way of response.
[53] The experts then conferred and filed a joint statement for the Court in which they recorded their agreement:

... that there are at least four possible alternative explanations for the events giving rise to the fatal collision and they are:

2.1 That Ms Fairburn deliberately drove into the oncoming vehicle; or

2.2 That Ms Fairburn in an attempt to dislodge Mr Maxwell from the bonnet of her car by a double swerve to her right and left accidentally drove into the oncoming vehicle; or

2.3 That in unsuccessfully endeavouring to regain directional control as she travelled around the bend immediately prior, Ms Fairburn accidentally crossed the centre line and into the path of the oncoming vehicle; or

2.4 That Ms Fairburn accidentally crossed the centre line by reason of restricted visibility caused by the presence of Mr Maxwell on the bonnet of her car and accidentally drove into the oncoming vehicle.

The experts went on to say that they were “unable to exclude any of these scenarios.”

[54] We will deal with the fresh evidence application shortly but first we deal with the complaint against the way the Crown closed. This has to be put in context. The issue arises at all because the fatal collision occurred entirely in the wrong carriageway, head on. If Ms Fairburn had been making a right turn into Mangorei Road off State Highway 3 or had even been “wandering” as it were onto the wrong side of the road such a direct head on collision seemed somewhat surprising.
[55] This concern was canvassed in evidence, and indeed was put directly to Ms Fairburn. For instance, the following exchange occurred between Ms Clarke (the Crown counsel) and Ms Fairburn, in cross-examination:

When you came through the Mangorei Road intersection you tried to do what you tried to do in Inglewood to get him off the bonnet into the path of an oncoming vehicle, didn’t you?

No.

You were never thinking about turning right at that intersection were you?

Yes, I was.

You came through that intersection, saw the oncoming vehicles and thought this is your chance, didn’t you?

Not at all.

Anyone would know that if travelling at at least 90ks, someone on your bonnet, if they fell off, they would be killed? You knew that didn’t you?

Anyone knew that as you said, yes.

Let alone veering into the path of an oncoming vehicle?

That’s not what I did.

You got through the Mangorei Road intersection and then you veered very suddenly right in front of the Weather Watch vehicle didn’t you?

I don’t recall that time.

You didn’t just veer to the right – you straightened up and hit it head on didn’t you?

A. I don’t remember.

Q. You straightened up to get Mr Maxwell for good?

A. I don’t remember that time.

Q. You wanted him dead didn’t you Ms Fairburn?

A. Not at all.

You did not veer until you were about 50 or 60 metres past the Mangorei Road intersection did you?
I don’t know.

(Emphasis added.)

[56] The Judge recorded in his summing up what Ms Clarke had to say about this in closing:[18]

Ms Clarke points out that there were no other vehicles on the road. In her submission Ms Fairburn made a deliberate attempt to resume the action of shaking Mr Maxwell off once she reached the outskirts of New Plymouth at the top of Burgess Hill Road. She says there is no evidence of any attempt, conscious and sincere attempt, by Ms Fairburn to turn right. She says the evidence is consistent with an attempt to straighten the vehicle. She points to a centred or head on collision. There was no braking, she said. Speed was between 83 and 130 kph. She says Ms Smillie’s evidence is consistent with wavering starting before Mangorei Road.

[57] It is quite wrong to suggest that this was a misleading statement for the Crown to have made in closing. The Judge raised no concern about it. Neither can we see any room for concern. The issue of “straightening” had been directly put to the witness for her response. The Crown was perfectly entitled to suggest to the jury on the evidence which was before the Court, that the jury could infer that this was a case of a deliberate head on collision. Whether the jury was prepared to draw that inference was entirely a matter for it. The Mazda had to straighten after it crossed the centre line, or it would have gone off the road. It was for the jury to decide why it straightened, right into the path of the Isuzu.

The fresh evidence application

[58] We decline the application to adduce the prospective fresh evidence. We do so on the entirely well-established and orthodox principles that this evidence is not fresh at all - it could easily have been obtained pre-trial (indeed, Ms Hughes responsibly accepted that she should have done this); and it is not cogent, in the circumstances of this case.[19]
[59] Nor do we think that this evidence should be admitted on the sort of basis discussed in R v Bain,[20] where although it does not meet the “standard” tests, admission of the evidence may be necessary to avoid a miscarriage of justice.

Result

[60] This case was put before the jury by Harrison J on a perfectly appropriate and accurate basis. The Crown contended that this was a deliberately engineered crash which killed Mr Maxwell; the defence maintained that what occurred was a tragic accident. The Judge correctly told the jury that it was only if Ms Fairburn had a murderous intent at that time that it could return a verdict of guilty of murder. As the Judge concluded: “If you have an honest and reasonable uncertainty on that issue then she is entitled to the benefit of your doubt and a verdict of manslaughter.” The jury was satisfied as to the requisite intent for murder.
[61] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Fairburn HC New Plymouth CRI-2008-043-000931, 3 March 2009.

[2] R v Fairburn (Bench Note (2) of Harrison J (26 February 2009)) HC New Plymouth CRI-2008-043-000931, 3 March 2009, at [2] (emphasis added).

[3] At [3].

[4] At [10]
[5] Crimes Act 1961, s 48.

[6] See generally AP Simester and WJ Brookbanks, Principles of Criminal Law (3rd ed, Thomson Brookers, Wellington, 2007) at chapter 15. And see generally, Suzanne Uniacke, Permissible Killing: The Self Defence Justification of Homicide (Cambridge University Press, Cambridge, 1994).
[7] Beckford v R [1987] UKPC 1; [1988] AC 130 (PC).
[8] R v Tavete [1988] 1 NZLR 428 (CA).

[9] See R v Bridger [2003] 1 NZLR 636 (CA) at [18].

[10] R v Wang [1990] 2 NZLR 529 (CA) at 534; See also R v Tavete, above n 8, at 430; and more recently, R v Winterburn CA30/98, 8 October 1998.
[11] Attorney-General for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 (HL) at 137.
[12] R v Winterburn, above n 10.

[13] See David Watt and Michelle Fuerst (eds) Tremeear’s Criminal Code (Thomson Carswell 2006) at 101 and the authorities there cited. (This work is the Canadian equivalent of Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) in New Zealand.)
[14] See generally Simester and Brookbanks, above n 6, at 468.
[15] R v Savage [1991] 3 NZLR 155 (CA) at [158].

[16] See R v Green [1992] 9 CRNZ 523 (CA).

[17] Fran Wright, “The circumstances as she believed them to be: Reappraisal of s 48 of the Crimes Act 1961” (1998) 7 Waikato L Rev 109 particularly at 120 et seq.

[18] R v Fairburn HC New Plymouth CRI-2008-043-000931, 3 March 2009 (Summing-up of Harrison J) at [46].
[19] See R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 at 513.
[20] R v Bain [2004] 1 NZLR 638 (CA).

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