White v R [2011] NZCA 538 (27 October 2011)

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White v R [2011] NZCA 538 (27 October 2011)

Last Updated: 2 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA396/2010 [2011] NZCA 538

BETWEEN ANTHONY JAMES MANAHI WHITE Appellant

AND THE QUEEN Respondent

Hearing: 26 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: J J Maddox for Appellant R J Collins and R G Ronanyne for Respondent

Judgment: 27 October 2011 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Anthony White, was found guilty following trial before Priestley J and a jury in the High Court at Hamilton on one count of manslaughter and two of dangerous driving causing injury. He was convicted and sentenced on 4 June 2010 to six and a half years imprisonment and disqualified from driving for two and a half years.[1]
[2] The charges arose out of a fatal motor vehicle collision between two vehicles. The sole issue at trial was whether Mr White was driving one of the vehicles in which a passenger, Andrew Orpin, died. Mr White’s defence was that the driver was the other surviving occupant of the vehicle, Eligh Smith. The jury by its verdicts rejected this defence.
[3] Mr White appeals only against his conviction. His counsel, Mr Maddox, originally relied on four grounds in support, namely that: (1) the verdicts were unreasonable because the evidence led at trial was insufficient to support the charges; (2) a prosecution failure to disclose pretrial digital photographs and surveys prevented the defence from reconstructing events to support its theory; (3) trial counsel erred by failing to brief and lead expert evidence; and (4) fresh evidence established that Mr White was not the driver.
[4] However, in argument Mr Maddox abandoned the first two grounds and compressed the third and fourth into the composite ground of a miscarriage of justice because trial counsel failed to call relevant and admissible evidence which was fresh, credible and cogent.[2]

Background

[5] Early on Saturday evening 2 August 2008 Messrs White, Smith and Orpin set out in Mr Orpin’s Subaru Impreza STI from Tauranga. Their intention was to travel to Hamilton over the Kaimai Range on State Highway 29. Previously, they had been watching a rugby test match at a bar in Tauranga. They were travelling in darkness and the road was wet from rain.
[6] Just past the township of Tauriko, west of Tauranga, State Highway 29 descends in a south westerly direction before a sweeping left curve near Belk Road on the left. A warning sign advises drivers to proceed through the curve at no more than 75 kilometres per hour. Subsequent tests showed that the Subaru drove through the corner at 133 or more kilometres per hour. The driver lost control and the vehicle crossed the centre line and the opposite lane before striking a barrier on the right hand side of the road and rebounding back into the opposite lane.
[7] Ms Meghan Bowker was driving a Volkswagen Passat in that lane. Her vehicle was travelling in the opposite direction to the Subaru at a speed of about 59 kilometres per hour when they collided almost squarely head on. The force of the impact shunted the Volkswagen 15 metres backwards.
[8] Witnesses who arrived immediately after the accident found Mr Orpin in the left rear passenger seat of the Subaru. He was wearing a seatbelt but had suffered such severe injuries that he died at the crash scene. Mr Smith was found in the front passenger’s seat. He suffered serious injuries to his head and lower left leg and foot. Mr White was seen either in the driver’s seat or outside the vehicle. Ms Bowker suffered life threatening injuries from which she recovered.

Trial

[9] As noted, driver identity was the sole issue for determination at trial. The Crown called a number of witnesses to support its case that Mr White was driving. Its evidence fell into three categories – direct, circumstantial and medical.

(a) Direct evidence

[10] Messrs Smith and White were friends. Mr Smith’s evidence was that Mr Orpin had driven the vehicle from Hamilton to Tauranga with the other two as passengers. All three men took turns at driving after they arrived at Tauranga and drove around the city and to outlying towns. They watched the All Black rugby test on a television screen in a hotel through a street window while sitting in the car. They left before the test match finished to return to Hamilton.
[11] On Mr Smith’s account, Mr White was driving when the car left Tauranga. Mr Smith was in the front passenger seat. Mr Orpin was in the rear passenger seat. Mr Smith’s last memory was of travelling through a traffic roundabout on the main highway out of Tauranga. Mr White was still driving. Mr Smith did not remember whether he was himself wearing a seatbelt.
[12] Mr White’s trial counsel, Mr Balme, cross-examined Mr Smith carefully. Mr Smith admitted that he frequently drove Mr Orpin’s car; that he had been convicted of various traffic offences while driving the car including speeding, unnecessary exhibition of acceleration, failing to stop and dangerous driving; that he had drunk about half a dozen cans of alcohol and probably smoked some cannabis since midday on the day of the accident; that he made a statement to a police officer while in hospital on the day after the accident in which he said that Mr Orpin was driving when the vehicle left Tauranga, Mr Smith was in the front passenger seat and Mr White was seated behind him; and that Mr Orpin had driven to Tauranga without any subsequent change of driver.
[13] Mr Smith said that he lied to the police officer to help out his friend, Mr White. He consistently denied Mr Balme’s proposition that he was driving the Subaru at the time of the accident.

(b) Circumstantial evidence

[14] A number of witnesses gave circumstantial evidence. Its thrust was to corroborate Mr Smith’s account that Mr White was driving. Two brothers, Jason and Darren Eastwood, were in a vehicle which had earlier been passed by the Subaru. On arrival at the accident scene Jason Eastwood saw others removing a man whom he assumed was the passenger from the front passenger window. The man was suffering a cut head and was bleeding. Another person was in the rear passenger seat. A third was walking around in a frantic state calling for his mates to be removed from the car.
[15] Darren Eastwood left the vehicle before his brother who was driving. He ran to the Subaru where he saw two occupants – one in the front passenger seat and the other in the rear passenger seat. The bottom part of the front passenger’s body was still on the seat but the upper part of his torso was lying towards the handbrake in a prone position. He was suffering head abrasions. His left foot was trapped – “busted and bent around the wrong way when he was pulled out of the car”. He saw another man walking around in “hysterics”.
[16] Darren Eastwood was also carefully cross-examined by Mr Balme. In the course of it he said that he assisted the man who was trapped in the front passenger seat out of the vehicle. He was extracted through a window by a group. He described the passenger’s head when he first saw him as leaning towards the driver’s seat across the gap to the driver’s seat.
[17] Shane Wills, who was travelling with the Eastwood brothers, gave similar evidence. He noted that the driver’s window was “may be a bit ajar at the top because it was twisted out of shape’. He saw a person lying in the front of the Subaru with his feet under the glove box area and his body across the seats. He looked like he was trapped. His hips were towards the centre of the front seat and his head was on the driver’s seat. He saw another person in the rear passenger seat. He did not see anyone in the driver’s seat.
[18] Mr Wills remembered seeing the front passenger being lifted out of the front passenger side window. That person did not appear to be wearing a seatbelt when he first saw him. Mr Wills did not see how his legs were freed. Mr Wills confirmed under cross-examination that the driver’s door was jammed.
[19] Elliot Moore also arrived early on the accident scene. He and his friend Jeremy Ross a little earlier had been driving in a car which was overtaken by the Subaru as it “flew past us”. He estimated it was travelling at a speed of about 120 kilometres per hour. On arrival he went straight to the Subaru. He saw three people in the car. The person in the driver’s seat was screaming. The front passenger was still moving around. But the back passenger was still, seated in the rear left hand side. Mr Moore saw a little later that the driver was one of those who pulled the front passenger from the vehicle. He noted that the passenger’s left foot was sloppy. Later, the person whom he saw originally in the driver’s seat asked him for a ride away from the scene because he believed he would be in trouble.
[20] In cross-examination Mr Moore said that he remembered two people attempting to assist the driver to leave the vehicle. He did not see the driver’s door open or the driver leave the vehicle. At that time the other person in the front passenger seat was still sitting upright. He remembered the driver assisting the passenger out through the front window. He denied that there was a person in the rear seat on the right hand side in the vehicle at any time. He denied suggestions that he had been drinking or smoking cannabis that evening.
[21] Jeremy Ross arrived with Elliot Moore. He had earlier seen the Subaru pass his vehicle at a speed which he estimated at between 120 and 140 kilometres per hour. On arrival he could see three occupants – the driver, the front passenger and the back left seat passenger who was not breathing. He called 111. The man in the front passenger seat was moaning and the driver appeared to be panicking. There was definitely only one person in the back seat. Two other men were present at this time and together they conferred with Mr Ross about what steps to take given a risk of fire. One of the other men he already knew as Darren Eastwood.
[22] Mr Ross said the driver was calling for others to help him leave the vehicle apparently because he was afraid of fire. He saw the driver “gathering stuff, jammed in the bag, a back pack or something” from the front centre console area. He saw Darren Eastwood pulling the front passenger from the vehicle.
[23] Mr Ross spoke further about the driver. He did not see the driver leave the vehicle. Mr Ross was worried that the driver was going to “do a runner”. He saw him start to leave the scene before he threw his bag into the scrub and returned. He remembered the driver returning to assist in the front passenger’s removal. He saw that the front passenger had a “mashed up ankle” which was bleeding and bent.
[24] Mr Balme also questioned Mr Ross closely. Mr Ross confirmed that he had not been drinking before arriving at the accident scene. He said that his recollection of events was “pretty clear”. He maintained his account given in chief, in particular that there were three people in the vehicle when he returned from making his 111 call, two in the front and one in the left rear; that the person whom he assumed was the driver later participated in removing the front passenger from the vehicle; and that he was the person whom he saw packing articles into a bag.
[25] Christopher and Jill Zimmerman and their daughter Sarah arrived together. Sarah saw others remove the front passenger from the vehicle. She learned from speaking to him later that his name was Eligh. He had a very obvious foot injury and was also complaining about a sore hip. The back of his head was bleeding heavily. He asked Sarah who was driving the car.
[26] Jill Zimmerman also saw the injured passenger after removal from the Subaru. She saw another man whose name she learned was Anthony. He was wandering around disorientated without any visible injuries.
[27] Christopher Zimmerman confirmed that the front seat passenger was jammed by his feet. He climbed through to the back seat of the car to assist a doctor treating Mr Orpin. Mr Smith asked him repeatedly whether or not he was driving. Mr White who was then lying down in a state of apparent shock was saying “kill me, kill me”. Mr Zimmerman had first seen Mr White on the driver’s side of the vehicle. Later he saw Mr White clearing debris from the passenger’s side. He went from the driver’s side around the rear of the vehicle to the passenger’s side.
[28] Gabriel Nielsen was another who arrived early at the accident scene. She is an emergency department nurse. She described Mr Smith’s injuries and confused disposition. She also noticed that the man whom she learned was called “AJ” was lying very still and quiet. She observed on AJ’s upper body when paramedics cut off his clothing “a mark that appeared to be a seatbelt mark ... it went front across his right shoulder down to his left hip and across his abdomen”. He told her that only two people had been in the car.
[29] Carryline Anderson arrived at the scene travelling in the opposite direction from Matamata. She saw three people in the Subaru – “two Maori guys in the front”. She then left the immediate crash scene to help stop traffic for a short time. She returned to see one man lying down by the passenger’s side of the Subaru. He had head and leg injuries. In answer to her inquiry this man told her that he was from “Dinsdale” (a suburb of Hamilton). Somebody that she had not identified before said “don’t say that”. She quickly formed an impression that the two men knew each other.
[30] Wendy Mossop attended the scene. She described a man lying near the Subaru with a twisted leg and a head injury. He said that his name was Eligh. The other man was “agitated and wobbly”. He said something to the effect of “I am in big trouble”.

(c) Medical and seatbelt evidence

[31] The Crown also led medical and seatbelt evidence. Dr Lynn Williams treated Messrs Smith and White and Ms Bowker at Tauranga Hospital. She observed that Mr Smith had suffered a fracture to the right side of his pelvis, a minor head injury, skin loss over his right eye brow and eye lid, both a fractured and dislocated left hip and multiple fractures together with dislocated bones in his left foot. She did not observe any definite signs of seatbelt injury to Mr Smith’s left hand side, either from her examination or from considering a relevant photographic exhibit. She positively identified seatbelt marks on the photographs of Messrs Orpin and White. In Dr Williams’ opinion, it would have been surprising if Mr Smith had been wearing a seatbelt. She believed that the mark on Mr Smith’s right collar bone may possibly have been caused by the air bag.
[32] Dr Paul Little treated Mr White. He observed bruising across his chest and abdomen. In his opinion Mr White had “obvious seatbelt bruising from his right shoulder across to his left chest”.
[33] The cumulative effect of the medical evidence was that it was unlikely that Mr Smith was wearing a seatbelt but both Messrs White and Orpin were wearing seatbelts – the former sitting on the left hand side of the car and the latter on the right hand side.
[34] Peter Nelson, a vehicle inspector for Vehicle Testing New Zealand, inspected the Subaru’s seatbelts. In his opinion the melt and stretch marks on the driver’s seatbelt indicated a large amount of force consistent with deployment to restrain the driver. The left rear seatbelt also had started to melt severely and stretch out of shape, consistent with deployment. The front left seatbelt did not appear to have been worn. Neither the centre lap belt of the rear sear nor the right hand rear passenger seatbelt showed any damage consistent with wear.
[35] Based solely on this seatbelt evidence – and leaving aside the direct witnesses – the prosecutor in closing to the jury submitted that the only possible defence theory available was that: (1) Mr Smith, who suffered no seatbelt injury despite the damage to the driver’s seatbelt, was the driver; and (2) that Mr White was in the rear right passenger seat and suffered undoubted seatbelt injuries to his right side, even though there was no evidence that that seatbelt was activated or damaged.

(d) Conclusion

[36] Mr White did not give evidence or call witnesses. While conceding that he was one of the three occupants of the Subaru when it crashed, Mr White’s defence was that he was seated in the right rear of the vehicle beside Mr Orpin and directly behind the driver, Mr Smith, who was alone in the front (Mr Collins noted the incongruity of this internal configuration for three young men travelling in a motor vehicle).
[37] There was no suggestion of collusion among the Crown witnesses. The common and uncontradicted thread of their evidence was that three men were found in the Subaru, two in the front and one in the back; Mr Smith was pinned by his left leg in the front passenger seat with the upper part of his body either upright or leaning over the console towards the driver’s seat, suffering from head and foot injuries; another person who was relatively uninjured was sitting beside him in the driver’s seat and who after leaving the vehicle made incriminating comments; and Mr Orpin was alone in the rear seat.
[38] Both Messrs White and Orpin were wearing seatbelts at the time of the crash but Mr Smith was not. The only two seatbelts which showed signs of being activated and damaged were the seatbelts worn by the driver and Mr Orpin. And there was Mr Smith’s evidence that Mr White was driving when the Subaru left Tauranga shortly before the accident.
[39] The Crown cases against Mr White both direct and circumstantial was very strong, if not overwhelming. It is unsurprising that the jury convicted him on all charges on the evidence given at trial.

Appeal

(a) Expert evidence

[40] Mr Maddox for Mr White submits that a miscarriage of justice has arisen. He says that Mr Balme erred by failing to lead evidence from an expert motor crash investigator. He submits that evidence now briefed and available from Todd McCormack is credible and cogent in Mr White’s defence. Mr McCormack provided two written reports in support of Mr White’s appeal and gave evidence before us. The question is whether Mr McCormack’s evidence, considered alongside the evidence given at trial – and evidence briefed by the Crown from Professor John Raine in answer to Mr McCormack – might reasonably have led the jury to return a verdict of not guilty.[3]

(b) Mr McCormack

[41] Mr McCormack is the managing director of New Zealand Crash Investigations Ltd. He had three years experience working on crash analysis while in the New Zealand Police. He resigned from the New Zealand Police in October 2004 after eight years of service. He has completed specialist courses in basic and advanced crash analysis and forensic mapping. He has also completed elementary physics and mathematics courses at Otago Polytechnic. He said that he has given evidence in the High Court for both prosecution and defence (in cross-examination by Mr Collins he acknowledged that he has never been called to give evidence for the Crown in the capacity of a crash investigator).
[42] Mr McCormack’s first report is dated 25 July 2011. It represents Mr McCormack’s own detailed review of the Crown evidence given at trial. He purported to provide a forensic dissection and criticism of each witness’s account. In his opinion the evidence was not sufficient – individually and collectively – to support the jury’s verdicts.
[43] Mr McCormack would not have been competent to give evidence for the defence at trial on the sufficiency of the Crown case. He is not qualified by virtue of any particular training or skill to give an opinion about the veracity or reliability of witnesses’ recollection or narration of the facts. Provided the Court is satisfied there is a sufficient evidential basis to go to the jury, which was plainly not in question in this trial, the evaluation and assessment of the facts are solely the jury’s functions.[4] Mr McCormack’s interpretation of the facts would not have been helpful to a jury.[5]
[44] Also, Mr McCormack’s opinion on the merits of the prosecution case is a mixture of assertions and argument based upon a selective and frequently incorrect understanding of the prosecution evidence. Its partisan nature also reflects on the weight which might otherwise be given to Mr McCormack’s second report if it qualifies as expert evidence.
[45] Mr McCormack’s second report is dated 23 August 2011. It expresses Mr McCormack’s opinion based upon a review of the evidence and a crash analysis that Mr Smith was most likely driving the Subaru at the time of the accident. The introduction explains that:

Due to the unreliability of witnesses and the lack of forensic evidence, which is now unobtainable, the only method which can assist in determining where occupants were sitting in the vehicle is occupant kinematics. Occupant kinematics is the study of occupants’ injury severity based upon the forces placed upon them during the crash...

(Our emphasis.)

[46] Without any disrespect, Mr McCormack’s second report was not easy to follow. He expanded upon it in evidence before us. In summary, we understand Mr McCormack’s conclusion that Mr Smith was most likely driving the Subaru at the time of the accident is based upon these reconstructive steps:

• (a) After the driver lost control, the front right corner of the Subaru struck the barrier along the right hand side of the highway causing the vehicle to rotate counter clockwise, with its right rear also striking the barrier.
• (b) The pre-existing natural movement of the bodies of the Subaru’s occupants towards the right would have been compounded or aggravated by striking the barrier.
• (c) The airbags in the front of the vehicle would “probably” have been deployed instantaneously with the barrier collision and then almost instantaneously deflated.
• (d) Deployment of the airbags would also have activated the pre-tensioned front seatbelts. In Mr McCormack’s words they “basically explode” when the airbags deploy, pulling the passengers back into the seat. After this event, the front seatbelts would become floppy and no longer of any use in the impact with the Volkswagen. By contrast, the rear seatbelts, because there are no airbags in the back, can be used continuously and handle multiple impacts.
• (e) By resorting to his thesis of occupant kinematics, Mr McCormack identified what he called “the principal direction of force” based upon the point of maximum engagement between the Subaru and the Volkswagen. That was the moment when the impact forces passed through the vehicles at the maximum amount of penetration into each other before they departed on their respective paths to final resting positions.
• (f) The Subaru had rotated anti-clockwise and come to a rest at approximately 90 degrees to its original path of travel when it collided with the Volkswagen. The principal direction of force passed through each vehicle from the centre of contact damage along a path determined by the displaced vehicle components. In this case the principal direction of force passed through the left of the Subaru centre of mass causing it to rotate anti-clockwise to its final position and more rapidly as rotational forces overcame the forward deceleration while the vehicle slid to a stop.

[47] On this thesis, the Subaru’s change of direction triggered a change in the direction of the occupants’ bodies. The process from first contact between the two vehicles to maximum engagement would force the Subaru’s occupants to move violently forward and left while the Subaru rotated counter clockwise to its rest. Those seated nearest to the line of the principal direction of force typically suffer the most injuries in a crash while those further away suffer the least. Accordingly, the person sitting in the Subaru’s front left seat would have suffered unsurvivable injuries, followed in descending order by the person seated immediately behind him, the driver and finally the right rear passenger.
[48] Mr McCormack concluded that:

[Mr Orpin] was in the back left seat where we know he was, [Mr Smith] was in the driver’s seat with his head striking the windscreen and putting blood all over the dashboard and airbag and Mr White in the back right seat with the least amount of injuries by far and with a seatbelt mark coming from his right shoulder.

[49] Towards the end of his evidence Mr McCormack volunteered that he had based his opinion upon a training manual produced by an American crash analyst for use at tertiary institutions. It became apparent that Mr McCormack had not conducted his own independent analysis. Instead he had purported to apply to these reconstructed facts a theory formulated by a third party.
[50] Mr Collins cross-examined Mr McCormack about the evidence that Mr Smith was found with his left foot crushed and trapped in the front passenger’s foot well. In Professor Raine’s opinion, this event would have occurred within .07 of a second of the Subaru’s impact with the Volkswagen. Mr Collins asked Mr McCormack whether he was in a position to counter this opinion.
[51] In answer Mr McCormack first asserted that the evidence established that Mr Smith was pulled out feet first through the passenger’s window. Thus it could not be said that his feet were trapped. This proposition was so contrary to the evidence and lacking in credibility that it compounded our impression of Mr McCormack’s partisan approach. Mr McCormack later accepted, however, that his opinion could not be maintained if the factual premise for Professor Raine’s opinion was right.
[52] Mr Collins also cross-examined Mr McCormack on his opinion that the airbags were deployed on the Subaru’s contact with the barrier. Mr McCormack accepted that the driver was wearing a seatbelt and that there was no evidence that Mr Smith suffered a seatbelt injury. Again, Mr McCormack’s answer on this point was less than satisfactory.
[53] Eventually Mr McCormack speculated that a person who was assisted by an airbag may not suffer a seatbelt injury. He speculated also that by the time of the impact with the Volkswagen the driver’s seatbelt would be of no use with the result that the driver’s head would be propelled into the windscreen. He “suspected” that because Mr Smith had a cut to his head he had hit the windscreen on the driver’s side.

(c) Professor Raine

[54] Professor Raine is a Professor of Mechanical Engineering and Head of the School of Engineering at AUT University, Auckland. He has a Bachelor of Engineering (First Class Honours) and a PhD in Mechanical Engineering from Canterbury University. He has produced over 100 publications and 200 technical or consulting reports. He has been employed in this area in industry and academia since 1974. Since 1999 he has been engaged on many occasions to investigate motor vehicle crash damage and conduct crash analyses. He has frequently given expert evidence.
[55] In summary, Professor Raine advised that based on the available evidence:

• (a) The Subaru struck the barrier a glancing blow on a five to ten degree angle, not right front on.
• (b) The natural movement of the bodies of the Subaru’s occupants would have been in the same direction as the car until it struck the barrier, correcting its direction and then applying a corrective force to the occupants.
• (c) As a result the vehicle would have lost about 10 kilometres per hour speed, well below the 10 to 20 kilometres per hour necessary for a front on impact with a stationary barrier to trigger airbags.
• (d) About one second then elapsed before the Subaru which was travelling in a near straight line collided with the Volkswagen. At that point of impact the force was coming on the left front corner of the Subaru causing its tail to rotate away anti-clockwise (the front of the car to the left, the rear to the right) and its occupants to move forward and to the right. Within less than 50 milliseconds (or .05 of a second) an unrestrained occupant would be likely to hit the windscreen when the vehicle was rotating in that way.
• (e) The injury suffered by Mr Smith was consistent with him being seated in the left front side of the vehicle – the area which experienced the most crush damage.

[56] In Professor Raine’s opinion, Mr McCormack’s thesis that the occupants most vulnerable to injury would be those closest to the line of the principal direction of force was misconceived. He observed that:

... the force experienced by the occupants is dependent only on the deceleration that they experience as they come into contact with the interior of the vehicle during or subsequent to the initial impact ... so the injuries are dependent on decelerations experienced by the human body not on their position in the vehicle. It is true to say that if someone is in the front of the vehicle and close to the point to which the vehicle hits the other vehicle or a stationary object and the front of the vehicle is crushed, then the person in the front of the car may well be more vulnerable to injury simply because of his or her position. But all things being equal that vulnerability to injury is purely dependent on deceleration.

(d) Conclusion

[57] We have outlined in some detail the evidence from Mr McCormack which Mr Maddox submits ought to have been led at trial because we appreciate its importance to Mr White’s family who believe that Mr White is the victim of a miscarriage of justice. However, Mr McCormack’s evidence fails to cross either of the two threshold hurdles for admissibility.
[58] First, we are not satisfied that Mr McCormack meets the qualifying requirement of expertise. He is not a person “... who has specialised knowledge or skill based on training, study or experience” on the question for determination by the jury – whether Mr White was driving the Subaru at the time of the crash.[6] We accept that Mr McCormack has acquired a degree of proficiency in motor crash investigations. But that proficiency does not constitute a recognised expertise which qualifies Mr McCormack to express an opinion either in physics on the movement of a vehicle’s occupants following a crash or in medicine or a related discipline on the nature and extent of physical forces which might render an accident unsurvivable.
[59] It was plain from listening to Mr McCormack that his conclusion was based upon his application of a training manual to certain selective facts. He was purporting to apply what he understood was a principle of physics.[7] He has no specialist qualification in this area other than completing some basic courses. His deficiencies were exposed by Professor Raine who explained how the relevant physical forces would not have worked on the Subaru’s occupants in the way asserted by Mr McCormack and how Mr McCormack’s reconstruction was scientifically incorrect.
[60] It was equally plain that Mr McCormack did not understand the requirements of an expert witness. When asked whether he had taken into account the views of others who had provided reports on the accident for the Crown and Mr White, Mr McCormack answered that he did not consider it was his role to allow their views to influence his opinion once formed. That answer is antithetical to the expert’s duty to assist the Court.
[61] Second, if Mr McCormack did qualify as an expert, his opinion would not have been admissible. The Evidence Act provides that:[8]

An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

[62] We are not satisfied that Mr McCormack’s opinion meets this statutory requirement. The law starts from the premise that statements of opinion are not admissible except as provided by the Evidence Act.[9] An opinion is a “... statement of opinion that tends to prove or disprove a fact”.[10] Mr McCormack’s opinion is not based upon the facts objectively known and proved at trial. To the contrary, its acceptance depends upon ignoring those facts by introducing speculation and partisan assertion.
[63] While some of it was challenged, the Crown led this uncontradicted evidence at trial:

• (a) Mr White was driving the Subaru when it left Tauranga.
• (b) Three occupants were found in the car shortly after the accident – Mr Smith in the front passenger seat, Mr Orpin in the rear passenger seat immediately behind him, and another man in the driver’s seat.
• (c) Nobody was seated in the rear right seat behind the driver.
• (d) Mr Smith was trapped by his left foot in the front passenger’s well, with his upper torso tilting towards the right across the middle console.
• (e) The person seated in the driver’s seat was conscious and unrelatively uninjured, and he later conducted himself in a self-incriminating manner both by his actions and words.
• (f) Mr Smith was not wearing a seatbelt. The driver’s seatbelt was activated indicating that it was used. The left rear seatbelt was used and probably caused Mr Orpin’s fatal injuries. The right rear seatbelt was not used.
• (g) Mr White suffered superficial injuries which indicated that he was wearing a seatbelt at the time of the accident.

[64] Any two or more of these factors considered in combination, particularly the evidence of Mr Smith’s position in the front passenger seat, deprive Mr McCormack’s opinion of a tenable factual foundation. Ultimately, Mr McCormack’s thesis came down to this proposition: that contrary to the evidence led at trial, Mr Smith would not have survived the accident if he was in the front passenger seat at the time. The remoteness of that opinion from the evidence coupled with its speculative nature impugn its credibility. As a result, it would be of no assistance whatsoever to the jury in determining whether Mr White was in fact driving the Subaru.
[65] Accordingly, in our judgment, trial counsel did not err by not calling Mr McCormack. His evidence would not have been admissible in Mr White’s defence. It follows that it could not reasonably have led the jury to return verdicts of not guilty and there was no possibility that justice miscarried.
[66] We should add two points. One is that Mr Morgan QC, who was previously representing Mr White on this appeal, advised that he had commissioned and received a report on the accident from Dr Timothy Stevenson. Mr Morgan advised that Dr Stevenson’s report did not assist Mr White’s appeal. It is regrettable that Mr Maddox did not obtain instructions to provide a copy to the Court.
[67] The other point is to record our satisfaction based upon the transcript that Mr Balme represented Mr White at trial with commendable skill and care and performed his professional duties to Mr White’s best advantage in conducting in accordance with his instructions a defence which had little if any prospect of success.

Result

[68] Mr White’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v White HC Hamilton CRI-2008-070-7669, 4 June 2010.

[2] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63; Witehira v R [2011] NZCA 255 at [38].
[3] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [33].
[4] Evidence Act 2006, s 4.
[5] Evidence Act 2006, s 25.
[6] Evidence Act, s 4(1), definition of “expert”.
[7] See also Platt v R [2010] NZCA 43 at [44].
[8] Evidence Act, s 25(1).
[9] Evidence Act, s 23.
[10] Evidence Act, s 4(1), definition of “opinion”.