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Clarke v R [2011] NZCA 516 (3 October 2011)

Last Updated: 12 October 2011


IN THE COURT OF APPEAL OF NEW ZEALAND
CA251/2011

BETWEEN DANIEL HAMIORA CLARKE
Appellant

AND THE QUEEN
Respondent

Hearing: 7 September 2011

Court: Glazebrook, MacKenzie and Asher JJ

Counsel: E J Forster for Appellant
L C Preston for Respondent

Judgment: 3 October 2011 at 4.00 pm

JUDGMENT OF THE COURT

A. The appeal against conviction is dismissed.
B. The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given By MacKenzie J)


Introduction

[1] At about midnight on 5/6 December 2009, a car with two passengers being driven by the appellant failed to take a bend leading up to the Papatawa rail over bridge on State Highway 2 near Woodville, and crashed into the bridge abutment. The front seat passenger, Andrea Pramm, was killed. The rear seat passenger, Shayla Lawson, was seriously injured. The driver, the appellant, stood trial before Gendall J and a jury in the High Court at Palmerston North in February 2011 on one count of manslaughter and one count of excess blood alcohol causing injury. He pleaded guilty to the excess blood alcohol count and was found guilty by the jury on the manslaughter count. On 25 March 2011 he was sentenced to a term of five years six months imprisonment.[1] He appeals against both conviction and sentence.

The appeal against conviction

[2] There are two grounds raised in the appeal against conviction:

(a) Text message

[3] The Crown had given notice of intention to offer hearsay statements in evidence. Those were text messages said to have been sent from the phones of Ms Pramm and Ms Lawson during the afternoon and evening of 5 December, including messages sent while travelling in the car shortly before it struck the over bridge. Both women were unavailable as witnesses. Ms Pramm died in the crash. Ms Lawson sustained such serious head injuries that she had a brain injury and no memory of the event.
[4] There are three messages which are particularly relevant for this appeal. We set these out, giving in each case the actual message and, in brackets, the Crown’s interpretation of the meaning of the message as put before the jury:
[5] No objection was taken to the admission of the text messages to and from Ms Lawson. The defence objected to the admission of the messages from Ms Pramm’s phone. Gendall J considered the admissibility of these messages at the start of the trial. He noted the respective positions of the parties as being:[2]

... The Crown’s position is that this is a communication from the deceased, a front seat passenger, telling her friend of her belief or concerns. Because of its timing, very close to the car striking the bridge, and its content relating to her belief or perception in the driving of the accused, it is obviously relevant and probative. Mr Forster’s position is that in the absence of cross-examination of the deceased it is not possible to assess what she meant in what he said was a casual communication, and it might be capable of being understood in different or alternative ways. He further argued the statement could not be seen to be reliable nor accurate and the veracity of the deceased and accuracy of the statement could not be tested. ...

[6] Gendall J held that the messages were admissible. He said:[3]

I am satisfied that the circumstances relating to the text messages of the deceased are such that reasonable assurance exists that the texts are reliable. These are communications from a person travelling in the front passenger seat of the motor vehicle at a time very closely proximate to the subsequent crash. The communications are made by a friend of the accused and related to her belief at the time. They are utterances contemporaneous with the travel of the motor vehicle between Dannevirke and Palmerston North and would fall into the category of what would have been, prior to the Evidence Act 2006, been part of the res gestae.

The texts are not evidence of the truth of what is said – although the Crown no doubt will submit that to be the case – but rather they are what the deceased believed (whether accurately or not) at the time. Nevertheless there is significant other evidence from witnesses and from what the accused said to the police, which provide some support for the accuracy or reliability of the belief or view expressed by the deceased. ...

[7] The admissibility of the text message depends on whether, under s 18(1)(a) of the Evidence Act 2006, the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
[8] The first issue which Mr Forster raises as to the reliability of the text message is who was being referred to as “my mate”. He submits that the evidence did not establish conclusively whether Ms Lawson or the appellant was driving when the car left Dannevirke. The appellant, Ms Pramm and Ms Lawson had been socialising with others in Dannevirke in the afternoon and evening of Saturday 5 December. They decided to drive to Palmerston North in Ms Pramm’s car. They bought petrol, and were recorded on CCTV at a Mobil service station at about 11.30 pm. That showed that Ms Lawson was driving when they arrived at the service station, and that the appellant walked off towards a McDonalds’ restaurant near the service station. Ms Pramm was recorded paying for the petrol, at 11.40 pm. The car was recorded driving off towards McDonalds, in the direction the appellant had walked. The CCTV recording showed that Ms Lawson was driving when the car left the service station. The appellant was not then in the car.
[9] The appellant acknowledged, through his plea of guilty to the excess blood alcohol count, that he was driving when the car hit the bridge. The change in driver might have occurred when the appellant rejoined the car (out of sight of the CCTV) or at some later point during the journey. If it were the latter, then Mr Forster submits that the reference to “my mate” might have been a reference to Ms Lawson. Mr Forster notes that the appellant had said, in his statement to police, that Ms Lawson had been driving when they left Dannevirke, and that she was all over the road so that is why he took over driving. Further, Mr Forster submits that it cannot be assumed that the text message was sent immediately after it was drafted, or that it was received instantaneously. So, he submits, no inference could properly be drawn from the timing of the message only a short time before the collision with the bridge that it must have been drafted at a later point in the journey.
[10] Mr Forster advises that this issue, as to the identity of the driver, was not argued on the pre-trial application. At that time, it was understood that the CCTV showed Ms Pramm as the driver when the car left the service station. It was not until trial that Ms Lawson was identified as the driver shown on the CCTV. He submits that, when that emerged, the possibility that “my mate” referred to Ms Lawson arose.
[11] We do not consider that the identification of Ms Lawson as the driver when the car left the service station does give rise to a possible ambiguity, as Mr Forster submits. In the same statement as that to which Mr Forster referred, taken in the ambulance at the scene, and signed the next day, the appellant was asked where he took over driving from Ms Lawson. He answered “at the garage in Dannevirke, the Caltex”. When he signed the notebook entry, he was asked further questions, in answer to which he said that he drove before they went for petrol at the Mobil garage. He was then reminded of his statement in the ambulance that Ms Lawson drove. He said he did not remember her driving out of Dannevirke: he did, and he was driving the car right through until the accident.
[12] Further, the timing of the message indicated that it was sent just after the two messages from Ms Lawson’s phone to which we have referred. In these circumstances we do not consider that there is any issue as to the identity of the driver which might affect the reliability of the text message.
[13] The second issue which Mr Forster raises as to the reliability of the text message relates to the belief or view expressed in the message that the driver “can’t drive straight in my car”. Mr Forster submits that the reliability of the assertion about how the car was being driven could not be assured without knowing the context in which it was made, for example whether the text was sent in bravado or as a joke.
[14] The text is evidence of Ms Pramm’s belief or perception at the time the text message was drafted. The question of its reliability needs to be viewed in that light. It was for the jury to assess the weight to be given to Ms Pramm’s perception, and its accuracy, in the context of the evidence as a whole. There is nothing in the text message to indicate that it might not be an accurate reflection of Ms Pramm’s belief at that time. There was no evidential foundation for a suggestion that the text might have been sent in bravado or as a joke. It is also relevant that Ms Pramm’s text message was sent at about the same time as the two messages from Ms Lawson, which were admitted without objection. The first at least expressed the view that the driving was safe. It was appropriate that all three messages be available to the jury. The weight to be given to Ms Pramm’s message was a matter for the jury.
[15] The text messages were themselves only a minor element in the evidence as to the standard of the appellant’s driving immediately before the impact. There was evidence from the occupants of a vehicle passed by the car driven by the appellant shortly before the impact. They described being over taken by a car travelling at a speed which they both estimated at around 140 kph. There was also the forensic evidence from the examination of the crash scene. In that context, we consider that the Judge’s assessment that the circumstances relating to the statement in the text message provide reasonable assurance that the statement is reliable, was correct and the statement was properly admitted as a part of the evidence available to the jury to assess whether the appellant’s driving involved a major departure from the reasonable standard of care.

(b) The jury question

[16] One plank in the appellant’s defence at trial, and on this appeal, is that there was no proof to the required standard that the appellant’s driving was a substantial and operative cause of Ms Pramm’s death. Counsel submitted in closing that Ms Lawson may not have been wearing a seat belt, that she may have cannoned into Ms Pramm, and that, but for that impact between the two passengers, the accident may have been survivable.
[17] The Judge’s summing up, and the suggested decision path which the Judge gave to the jury for assistance in their deliberations, both referred to the requirement that the jury be satisfied, beyond reasonable doubt, that the appellant’s major departure from the standard of care was a substantial and operative (although not necessarily the only) cause of death. The suggested decision path posed three questions:
  1. Did the accused’s driving on this night involve a major departure from the standard of care expected of a reasonable person driving a motor vehicle?
  2. Was this major departure dangerous as being likely to cause harm to others on or in the vicinity of the road?
  3. Was this major departure a substantial and operative (although not necessarily the only) cause of death of the deceased?

[18] The Judge summarised the defence case on this point in these terms:[4]

Mr Forster put to you the proposition that the injuries and death of the deceased may have arisen through some events that occurred inside the car after the collision with the bridge. He put to you to consider whether it was possible that an unrestrained Ms Lawson could have flown or catapulted around the car so as to come into impact with Ms Pramm and thereby cause her death. Well, those are matters that you may consider and determine whether there is an evidential basis for it. That is entirely for you. But you must, nevertheless, focus on whether the actions of the accused caused her death, bearing in mind as I have told you, there may be several causes. You may know from your own knowledge of the world that in motor vehicle accidents there can be many causes of injury after a violent impact. But what Mr Forster was saying is you cannot exclude as a reasonable possibility that the deceased would have survived but for some unknown actions unrelated to anything the accused did. Well, that is a matter for you. He says you cannot exclude possible driver distraction and you cannot conclude that the actions of the accused were operative and substantial causes of death. Bear in mind they must be the culpable actions. In the end Mr Forster’s submission is the Crown has not proved its case beyond reasonable doubt and you should acquit the accused.

[19] In the course of their deliberations, the jury asked two questions. These are:

(1) If we think it is possible that [Ms Lawson’s] movement after the first impact was the principal cause of [Ms Pramm’s] death, would that be a reasonable basis for doubt?

(2) And could you give us guidance, that is further guidance on (3) (which I interpret to be Issue (3) on the suggested decision path) with special reference to the phrase in brackets and that is the phrase – it is not contained in the communication but the phrase (3) is – “although not necessarily the only”.

[20] The relevant part of the answer given by the Judge to the first question was:

I think the best way I can answer your queries is to tell you that “homicide”, which is either murder or manslaughter and in this case it is alleged to be manslaughter, is the killing of a human being by another, directly or indirectly, by any means whatsoever. So the short answer to your first question is “No”, not unless any wrongful acts, unlawful acts, or breaches or [sic] duty by the accused, if you find that to be substantial major departures from the duty of a driver, were not significant and operative causes leading to the death. So, put in another way, the issue is not whether a passenger’s movement after impact was a or the principal cause of death, but whether the Crown has proved that acts of the accused in driving when the motor vehicle hit the bridge were a substantial – that is real and significant cause – in bringing about her death. ...

[21] Mr Forster submits that this question related to the defence position that it was a reasonable possibility Ms Lawson was an unrestrained passenger in the rear passenger seat and that she had cannoned into Ms Pramm during the deceleration of the crash, causing her death. Counsel submits:

...

[32] Formulating the answer in this way provided the jury a short answer at the beginning so the Jury might not have understood the significance of the long explanation that came after the short answer.

[33] In Counsel’s respectful submission the short answer gave a judicial view of the facts that was a classic jury question namely whether Daniel Clarke’s acts or omissions were a substantial and operative cause of [Ms Pramm’s] death.

[34] In Counsel’s respective submission consideration of other reasonably possible causes are relevant considerations and that the existence of alternative causes of death may assist the jury to assess whether Daniel Clarke’s actions or omissions were a substantial and operative cause of [Ms Pramm’s] death.

...

[22] We are satisfied that there is no substance in this point. The Judge had very clearly, and correctly, instructed the jury on the elements of the offence. Even if the jury were to find that it was reasonably possible that Ms Lawson was unrestrained in the back seat, and had cannoned into Ms Pramm in the crash, and that Ms Pramm’s death resulted from injuries caused by the impact with Ms Lawson, that would not lead to a negative answer to question 3. On that scenario, Ms Lawson would not have cannoned into Ms Pramm but for the deceleration caused by the impact of the car with the bridge. That impact would necessarily be a substantial and operative cause of the injuries which led to Ms Pramm’s death. It is immaterial whether the impact caused Ms Pramm to come directly into contact with a part of the vehicle, or whether it caused Ms Lawson to come into contact with Ms Pramm. In either case, the injuries suffered by Ms Pramm, and consequently her death, were a consequence of the impact. The possibility that Ms Lawson was not wearing a seat belt, and the possibility that if she had been wearing a seat belt the impact would have been survivable by Ms Pramm, does not, in terms of causation, mean that the sole cause of death was the failure to wear a seat belt. The possibility that the accident might have been survivable if there had been no back seat passenger, or if the back seat passenger had been wearing a seat belt, does not mean that the appellant’s driving which caused the impact was not an operative or substantial cause of death.
[23] If the jury answered the first two questions in the affirmative, it necessarily follows that the impact of the car into the bridge was a consequence of that major departure from the standard of care required. Ms Pramm’s death was a consequence of that impact. Even if the jury were to conclude that there was a reasonable possibility that the crash might have been survivable by Ms Pramm if Ms Lawson had not been unrestrained in the back seat, that would not, and could not, lead to a negative answer to question 3.
[24] For these reasons, the appeal against conviction must be dismissed.

The appeal against sentence

[25] Mr Forster submits that the jury’s first question (discussed in the second ground of the appeal against conviction) indicates that the jury thought it a reasonable possibility that Ms Lawson’s omission to wear a seat belt had contributed to Ms Pramm’s death. He submits that the fact that the jury considered this a reasonable possibility was a factor that reduced the gravity of the offending and justified a lower starting point. That is the sole ground of the appeal against sentence.
[26] Gendall J addressed this submission in sentencing in these terms:[5]

I turn to deal briefly with some of your counsel’s submissions about the facts. He submitted that the jury had “determined that your back seat passenger was the principal cause” of the death of Ms Pramm. I need to tell you that that is not correct. The jury foreman delivered a question which was whether, if it thought it possible that the passenger’s movements after the first impact was the principle [sic] cause of death, would that be a reasonable basis for doubt. To which the answer was “No”. It is not a question that points to what the jury was thinking or as a whole thought. Individuals think, corporate groups such as juries do not. It may reflect a query by one or more jury members. But the only issue that matters is that the jury is a composite body which found proven beyond reasonable doubt the elements of the offence. Mr Forster also submitted that it was not possible to assess the matters or matters the juries placed on weight such as on cannabis intoxication, or to assess what excess speed played in its decision; or it was difficult to assess the conduct of bad driving.

It is well known that it is the trial Judge who undertakes the sentencing process, is required to determine from the evidence that he/she hears what is the factual basis for sentencing. And I do so. Speculation as to individual or collective thought processes of juries is fraught with danger. It is impossible to guess what individual members may have been thinking in the process of their reaching their unanimous decision as to guilt. It is clear to me from all the evidence that the jury’s verdict was clearly open to them. It was based upon the evidence that you were driving significantly under the influence of alcohol, made perhaps slightly worse by a small consumption of cannabis, at a dangerously high speed so as to not being able to control the car which drifted off the roadway, smashing at considerable force into the concrete bridge, and with such force that your front seat passenger had no chance of survival.

[27] Under s 24(1) of the Sentencing Act 2002, a Court may accept as proved any fact that was disclosed by evidence at the hearing, and must accept as proved all facts essential to a finding of guilt. It was for Gendall J to determine whether or not he accepted the possibility that failure by Ms Lawson to wear a seat belt may have been a contributory cause of Ms Pramm’s death. He was not bound, by the terms of the jury’s question or otherwise, to accept that possibility. The Judge was entitled to take the view of the facts that he did. Even if Ms Lawson had not been wearing a seat belt (which would, for sentencing, need to have been proved on the balance of probabilities and not just speculation) then we do not consider that it would have led to a reduction in penalty. As we have discussed in dealing with the appeal against conviction, the appellant’s driving would still be a substantial and operative cause of death through causing Ms Lawson to come forward. Ms Lawson’s failure to wear a seat belt (if that were proved) would not have reduced the appellant’s culpability to an extent which would have justified a different sentence.
[28] We are satisfied that the Judge correctly assessed all relevant sentencing factors, and that the sentence imposed was within the available range.
[29] The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent


[1] R v Clarke HC Palmerston North CRI-2010-039-152, 25 March 2011.
[2] R v Clarke (Ruling No 1) HC Palmerston North CRI-2010-039-152, 7 February 2011 at [6].
[3] At [8]–[9].

[4] R v Clarke (Summing Up) HC Palmerston North CRI-2010-039-152, 11 February 2011 at [53].
[5] R v Clarke HC Palmerston North CRI-2010-039-152, 25 March 2011 at [11]–[12].

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