R v Needham [2012] NZHC 1844 (25 July 2012)

Last Updated: 18 August 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-031-693 [2012] NZHC 1844

THE QUEEN

v

MICHAEL JAMES NEEDHAM

Hearing: 23-26 July 2012

Counsel: M Sinclair for the Crown

G King and M Kilbride for the Accused

Judgment: 25 July 2012

ORAL RULING OF MALLON J

_{(Amended indictment and application under s 347 of the Crimes Act)}

[1] Mr Needham is on trial before a jury, charged with two counts of manslaughter and four counts of dangerous driving causing injury. At the end of the Crown case he has applied under s 347 for a discharge on all counts.

[2] The charges arise out of an incident in which two passengers in a car driven by Mr Nicholson-Kuiti were killed and the other four passengers in that car were injured. Mr Nicholson-Kuiti was also charged with two counts of manslaughter and four counts of dangerous driving causing injury. He pleaded guilty to those charges and has been sentenced.

[3] The Crown opened its case on the basis that Mr Needham was guilty on the charges either as a principal or as a party. It now wishes to proceed only on the basis

R v NEEDHAM HC PMN CRI 2011-031-693 [25 July 2012]

that Mr Needham is guilty as a party to Mr Nicholson-Kuiti’s offences by abetting or inciting them. This required an amendment to the charges in the indictment. The defence accepts that it is not prejudiced if the amendment is made. I have before me the proposed amended indictment. I consider it is appropriate to amend the indictment and order that the amendments be made accordingly.

[4] The Crown alleges that the encouragement (the abetting or inciting) was in the form of competitive driving or racing involving Mr Needham and Mr Nicholson- Kuiti. In the early hours of the morning there was a group of people at a rugby league park in Foxton, having earlier attended a party at another location. There were two cars at the park – Mr Needham’s white Honda Civic and a blue Telstar which had been driven from the party by Mr Nicholson-Kuiti. While the group were gathered at the park, Mr Needham had been doing donuts on the field in his car.

[5] Three of the group at the park were looking to get a lift home to Shannon. The rest of the group lived in the Foxton area. Mr Needham could not give the three a ride to Shannon because he did not have enough petrol in his car. Mr Nicholson- Kuiti agreed to give those three a lift to Shannon. Those three that wanted to go to Shannon piled into his car. Mr Nicholson-Kuiti had three other passengers in the car, including Tia Kuiti. When Mr Nicholson-Kuiti left the park he was intending to drive to Shannon. Mr Needham had one passenger in his car, Mr Johnson Nicholson. When he left the park he was intending to drive Mr Nicholson to Foxton Beach.

[6] Had each of those cars driven to the places that they were intending to go by their direct route, the two cars would have left in separate directions from the park. In accordance with this, Mr Nicholson-Kuiti’s car headed off into the Foxton township in the direction of Shannon. Although this was not the direct route to Foxton Beach, Mr Needham’s car headed off in the same direction as Mr Nicholson- Kuiti. Mr Nicholson-Kuiti’s car then turned towards Foxton Beach because one of his passengers (Tia Kuiti) requested that they go to her house. She did not want to go to Shannon.

[7] The exact sequence of events after this is not clear. Not long after leaving the park, Mr Needham’s car failed to take a corner in the street in the Foxton township and landed on the opposite curb, damaging his muffler. Mr Nicholson-Kuiti’s car drove past Mr Needham’s car while it was stationary.

[8] Mr Needham’s car then passed Mr Nicholson-Kuiti’s car. The evidence indicates that this was around the place where the speed limit in the township changes from 50 km/h to 80 km/h. As Mr Needham passed the car, his passenger (Johnson Nicholson) made a gesture to Mr Nicholson-Kuiti’s car.

[9] After this passing manoeuvre, Mr Nicholson-Kuiti lost control of the car. His speed at the point that he veered to the right is estimated by the expert evidence to be

108 km/h to 127 km/h. The car rolled over a few times. Some of the passengers were thrown from the car. Two of the passengers were killed. Mr Nicholson-Kuiti and his other passengers were injured. The expert evidence in the trial is that the major causative factor in the crash was the driver’s actions whilst forbidden to drive and under the influence of alcohol. The expert says that the exact reason as to why Mr Nicholson-Kuiti had steered right into the opposing lane to lose control is unknown, yet his actions in combination with alcohol and speed have led to the crash.

[10] The s 347 application is on the basis that there is no evidence on which the jury could reasonably find that any action of Mr Needham caused Mr Nicholson- Kuiti to accelerate and veer to the right thereby losing control and killing and injuring his passengers. The evidence is that there was no direct impact as between Mr Needham’s car and Mr Nicholson-Kuiti’s car or anything of that nature. Therefore the encouragement from Mr Needham has to be on the basis of competitive driving. The defence submits that the evidence supports only that Mr Needham himself was driving as an idiot. The defence submits that there is no evidence, however, that this manner of driving resulted in a response from Mr Nicholson-Kuiti and that this was the cause of the accident.

[11] In support of this submission the defence submits that there is no evidence of any competitive driving before the passing manoeuvre. The defence says that the

versions of Johnson Nicholson, Jivhan Hubbard (who was a passenger in Mr Nicholson-Kuiti’s car) and Mr Needham (in his video interview with the police) are all consistent that Mr Needham passed Mr Nicholson-Kuiti safely. The defence says that there is no evidence that, other than this passing manoeuvre, Mr Needham did anything to encourage Mr Nicholson-Kuiti. It says that there is also no evidence that Mr Nicholson-Kuiti said or did anything in response to Mr Needham’s driving.

[12] The defence says that, to the extent that Tia Kuiti’s version of events puts Mr Nicholson-Kuiti’s loss of control much closer in time to the passing manoeuvre, there are a number of reasons why she is an unreliable witness. In particular, she was drunk, her evidence is coloured by the reasons it is said that she had to put the blame of the death of her best friend on to Mr Needham, and her subsequent actions at the hospital later that morning when she saw Mr Needham which are said to be inconsistent with her evidence that Mr Needham’s actions were at fault.

[13] Once her evidence is put to one side, the defence submits that all the evidence shows is that Mr Nicholson-Kuiti was accelerating after the passing manoeuvre, that this is consistent with the change in the speed limit from 50 to 80 km/h and that Mr Nicholson-Kuiti was affected by alcohol. The defence submits further that even if the jury accepted that Mr Nicholson-Kuiti responded to the passing manoeuvre, the jury cannot exclude as a reasonable possibility that it was Mr Johnson Nicholson’s gesture that caused a response rather than the passing manoeuvre undertaken by Mr Needham.

[14] The Crown says that there is evidence on which the jury reasonably could be satisfied that the two cars were driving competitively and that this was why Mr Nicholson-Kuiti was driving at the speed he was when he lost control. It says that even putting to one side Tia Kuiti’s evidence as to the timing of the passing manoeuvre in relation to the loss of control, there is evidence on which the jury reasonably could find that the loss of control occurred when Mr Nicholson-Kuiti was speeding in response to Mr Needham’s actions. In other words, that this was a continuation of the competitive driving which Mr Needham had started.

[15] It refers to the evidence of the donuts at the park; that Mr Nicholson-Kuiti and Mr Needham were friends who had known each other for years; the direction in which Mr Needham had travelled; the evidence of Mr Needham’s loss of control in the street which preceded the passing manoeuvre; Mr Slykhuis’ evidence that Mr Needham accelerated quickly through the gears to catch up with Mr Nicholson- Kuiti, the evidence that Mr Nicholson-Kuiti was speeding to the concern of two of his passengers; and the speed at which Mr Nicholson-Kuiti lost control.

[16] I accept the Crown’s submissions that there is evidence on which the jury could infer that the two cars were engaged in competitive driving or racing at the time that Mr Nicholson-Kuiti lost control of the car he was driving. If that is what the jury find then it reasonably could find it proven that:

(a) Mr Needham’s actions (starting at the park, leading up to the passing manoeuvre and in the passing manoeuvre itself) encouraged Mr Nicholson-Kuiti’s high speed, which was a substantial and operative cause of Mr Nicholson-Kuiti’s loss of control and the deaths and injuries to his passengers; and

(b) That Mr Needham knew and intended that his actions would encourage Mr Nicholson-Kuiti to drive in that dangerous way

[17] It is a jury issue whether his actions did actually encourage Mr Nicholson- Kuiti and whether the jury can exclude other possibilities as not reasonable. In terms of the test in R v Flyger,[1] this is not a situation where the evidence is so tenuous or unreliable that a jury could not properly convict.

[18] The s 347 application is dismissed.

_{Mallon J}

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[1] R v Flyger [2001] 2 NZLR 721 (CA).