R v Lyon [2018] NZHC 952 (4 May 2018)

Last Updated: 23 May 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-091-2272 [2018] NZHC 952

THE QUEEN

v

NATHAN JAMES LYON

Hearing:	30 April 2018
Counsel:	D La Hood and R H De Silva for Crown C W J Stevenson for Defendant
Judgment:	4 May 2018

JUDGMENT OF THOMAS J (DISPUTED FACT)

[1] At approximately 10.20 am on 19 March 2017, Mr Lyon was driving a car north on Wellington Road, Paekakariki. His 10 year old stepdaughter was in the passenger seat. Mr Lyon lost control of the car, which mounted the footpath on the opposite side of the road and hit the victim, a woman who was out jogging that morning. She suffered multiple serious injuries as a result of the crash, from which she did not recover. She died at the scene. Mr Lyon’s stepdaughter sustained a gash to her head requiring stitches.

[2] On 7 December 2017, I gave Mr Lyon a sentence indication in respect of one charge of reckless driving causing death, one charge of reckless driving causing injury and one charge of driving while suspended. In that decision, I identified the disputed fact the subject of this decision, that is, whether Mr Lyon had intentionally allowed

R v LYON [2018] NZHC 952 [4 May 2018]

the car to lose traction or whether, as he maintains, he lost control of the vehicle when he accelerated after changing gear at the bend on Wellington Road. I indicated that, if the disputed fact was not proved beyond reasonable doubt, then the starting point of four years’ imprisonment taken for the purpose of the sentence indication would be reduced by six months.

[3] Mr Lyon accepted the sentence indication but requested a disputed fact hearing, which was held on 30 April 2017.

Uncontested background

[4] Wellington Road, Paekakariki travels for about 110 metres north of the intersection with Ocean Road before taking a slight left bend and an uphill gradient to the intersection with Tarawa Street. At the slight left bend the road is approximately
9.2 metres wide. There is raised curbing on the outside of the roadway.

[5] This part of Wellington Road is a residential area with a footpath on the eastern side leading to a primary school. There is no footpath on the western side.

[6] The stretch of Wellington Road between Ocean Road (to the south of the accident site) and Tarawa Street (to the north) was resealed on 15 March 2017 although the road had not been swept of loose gravel. As a result, there were no road markings on this part of the road. The patch of loose gravel began about 90 metres before the slight left bend, at the start of a vehicle bay at the side of the road. The vehicle bay spans most of that 90 metres.

[7] The area is a 50 kilometre per hour zone. By the day of the accident, the temporary 30 kilometre per hour signage in force during resealing had been removed. The Traffic Management Plan for the resealing works required that the speed restriction of 30 kilometres per hour should have remained in place until the road was swept clear of the loose chip. This did not occur.

[8] There were roadwork signs, northbound and southbound, warning drivers of loose chip and the fact of a new seal. The signs were on Wellington Road at the corner
of Ocean Road, the corner of Tarawa Street and Wellington Road, and on Pingau Street before the Wellington Road intersection.

[9] Driving conditions were good and the weather was fine.

[10] The police arranged for Mr Lyon’s car, a 1997 Mazda RX7 Twin Turbo (the Mazda), to undergo a complete crash vehicle inspection. This revealed that the front brakes were in good condition and the rear brake pads were three-quarters worn. The front tyres were in good condition, but those at the back were very old, badly cracked between the tread and would not pass a warrant of fitness. The rear shock absorbers were both leaking and the Mazda had no suspension downward travel. Incorrect springs had been fitted. The steering was in good condition.

Issue

[11] The sole issue for determination is whether the Crown has proved beyond reasonable doubt that Mr Lyon deliberately allowed the Mazda to lose traction, including “fishtailing” prior to the bend in Wellington Road.¹ The Crown says it was this manoeuvre which caused Mr Lyon to lose complete control of the Mazda, resulting in it mounting the curb and colliding with the victim before coming to rest against a tree.

[12] The Crown case relies on Mr Lyon’s knowledge of the condition of the road and what would happen when someone drove at speed; witnesses’ observations of Mr Lyon’s driving; what Mr Lyon himself said in his police interview; and expert evidence.

[13] The evidence consisted of the formal written statements and statements of witnesses recorded in police notebooks, as well as the Crown exhibits. Two witnesses, including an expert, were called by the Crown to give viva voce evidence at the disputed fact hearing.

¹ Sentencing Act 2002, s 24(2)(c).

[14] The defence engaged an independent expert who also gave evidence at the disputed fact hearing.

[15] In analysing the issue, I will start by considering the evidence of Mr Lyon and the witnesses. I will then turn to the expert evidence and address their conclusions in light of the context provided by the witnesses’ evidence.

Mr Lyon’s interview

[16] Mr Lyon was interviewed by the police on the afternoon of the accident, 19 March 2017.

[17] Mr Lyon freely accepted responsibility for what had happened. He said he had taken his stepdaughter to the dairy that morning and had taken a longer route home because his stepdaughter wanted to drive past the school to see if any of her friends were there.

[18] Mr Lyon said he had purchased the Mazda from a former partner about a week and a half prior to the accident. It was not in working condition and he had managed to get the motor going again. He said the tyres were in good condition, with a good grip, but the brakes were a bit poor. He was aware the Mazda had no warrant of fitness or registration.

[19] Mr Lyon agreed the Mazda was very powerful. He said it was only the second time he had driven it.

[20] Mr Lyon was consistent in his version of what had happened. He said he accelerated in first gear from the intersection with Ocean Road until past the vehicle bay just before the left-hand bend, where he manually changed into second gear. He estimated the Mazda was running at around 5,000 revolutions per minute at the bend and travelling at around 45 kilometres per hour before he changed gear. It was just after the clutch was disengaged, and he had put his foot back on the accelerator, that the Mazda lost traction and the wheels spun on the fresh gravel, causing him to lose control. The back end slid out towards the right. In an attempt to recover, he applied power and tried to correct the slide. He said the Mazda then started to spin in the
opposite direction and effectively did a 180-degree spin, which led to him sliding off the road sideways facing towards the way he had initially travelled. He said he had applied the brakes at the time he was sliding off the road when travelling around 65 kilometres per hour.

Mr Lyon’s knowledge of road conditions

[21] Mr Lyon accepted he knew the road had been resurfaced three or four days prior to the accident and that there was loose chip on the road which had not been swept. He was aware there had previously been a 30 kilometre per hour speed limit but noted “the other day” it had been changed back to 50 kilometres per hour.

[22] There is an issue as to the route Mr Lyon had driven prior to the accident. In his interview, Mr Lyon said he had driven from his home to The Beach Store on The Parade, but the route he took did not take him south down Wellington Road where he would have seen the road signs. Instead, he said he had turned right into Wellington Road (not left as the Crown alleges) and driven to The Beach Store via Henare Street. The Crown says Mr Lyon turned left into Wellington Road and had therefore driven that morning the reverse of the route he was driving when the accident occurred. This would add to the Crown case that Mr Lyon was aware of the condition of the road, and the gravel on it, and would have seen the signs at the intersection of Wellington Road and Tarawa Street, which indicated the school zone for Paekakariki School.

[23] There are three witnesses whose unchallenged statements say Mr Lyon had driven south down Wellington Road that morning (Mr Hepburn, Mr Garton and Ms Tavenier). The evidence is supported by Mr Lyon’s stepdaughter’s description of the route they took to The Beach Store that morning, saying they had passed a church and describing the hills on the road, both matters being consistent with Wellington Road.

[24] Two witnesses (Ms Goad and Mr Comerford) gave evidence of the Mazda being driven on the same stretch of Wellington Road the previous day, revving and rapidly accelerating.

Witnesses’ observations as to manner of driving

[25] Mr Lyon’s stepdaughter was interviewed on 5 April 2017. She said that on the morning of the accident Mr Lyon had told her he had a really fast car and asked if she wanted to drive to the beach and back. She described the Mazda going fast and Mr Lyon trying to show how fast it was.

[26] Seven civilian witnesses either observed or heard the Mazda prior to the accident.

[27] Mr Garton lives on Wellington Road, north of the accident site. He was in the front yard of his property that morning before the accident occurred and saw the Mazda pass his property travelling at speed. He described it sounding as though the Mazda came from a standing start and the driver had planted his foot flat down on the accelerator. When the Mazda travelled south past his property, he estimated the speed at about 80 kilometres per hour. He was able to recognise the vehicle type because a friend has a car exactly the same.

[28] Mr Hepburn lives on Wellington Road north of the accident site. He also described seeing Mr Lyon’s car travelling southbound on Wellington Road that morning. He said the Mazda was travelling “noticeably faster than anything I have seen go down that road”. He is familiar with Mazda RX7s and has also driven a turbo boosted car before and seen the power increase. He described “pop-off valves” and is familiar with how they operate, saying “flames come from the exhaust”. When the Mazda was travelling south on Wellington Road that morning, Mr Hepburn said:

The driver “lifted his foot” for a brief second as he crested a slight rise by Paneta Street and the “blow off valve” made its noise as it was “dumping” the excess air.

There were also two flames and bangs that emitted from the exhaust as the turbo charger “over ran”.

[29] Ms Goad lives on Ocean Road south of the accident site. She had heard the Mazda the previous day, saying she heard “a car rev and then blast up our road, the noise was really noticeable and distinctive enough for me to take notice of it”. She heard the same noise before the accident. When she was aware of the accident, she
walked down to the scene and saw the Mazda, recognising it as the same car she had seen the previous day.

[30] Mr Comerford described hearing a car revving and rapid acceleration the day prior to the accident, 18 March, and then heard the same noise the following day.

[31] On the morning of the accident, Ms Tavenier was walking south on Tilley Road when she heard the Mazda drive past her twice as she was walking. She described it as loud and travelling over the speed limit.

[32] Two witnesses saw the Mazda immediately prior to and at the time of the accident and I deal with their evidence in the following section.

[33] The uncontested evidence was, therefore, that Mr Lyon drove the Mazda at excessive speed that day, first when travelling south down Wellington Road and then on his return travelling north. Mr Lyon has, however, pleaded guilty to reckless driving causing death and the issue for this decision is what happened just prior to the accident. In saying that, Mr Lyon’s manner of driving prior to the accident is important context when assessing what happened at the crucial time.

Eye witness accounts

[34] When interviewed, Mr Lyon’s stepdaughter said:

Well, my dad can sometimes be a bit silly and pretend to swivel around so at first when the car started slipping around I thought he was joking and he, I looked to see when he, he looked really scared and so was like, I was really scared too when I realised.

[35] Later on, when she was asked about that comment, she said she did not feel comfortable saying it, and when asked about her discomfort, she said:

I don’t know, ‘cos my dad he’s just kind of silly. He pretends to swerve out of there but he does, but he actually does it safely he just goes like, he just wiggles the car a bit...

[36] Mr Lyon’s evidence of when he lost control of the Mazda was different from that of Dr Joy, who was travelling behind him north along Wellington Road that day. In his formal written statement, Dr Joy said:

15. I’m unsure what speed the vehicle was travelling however I was travelling at approximately 40kph and the gap between us was increasing.

16. This stretch of road is a 50kph speed area.

17. I continued watching the black vehicle and saw it reach the newly sealed section of the road.

18. I have marked on the map where I was on the road when it first reached the newly sealed road as point “C” and I have marked where the black vehicle was as point “D”.

19. As soon as the vehicle reached this section it started to fish tail.

20. By this I mean the vehicle was skidding from side to side.

21. It looked to me as he was using the gravel as a skid pan.

22. The vehicle skidded from side to side approximately 2 times and was accelerating as this was happening.

23. I could also see the loose gravel and stone chips flying everywhere as it travelled along the road.

24. I remember thinking to myself the vehicle must be travelling fast because of how quickly the gap was increasing between the two of us.

25. I lost sight of the vehicle as it travelled around a left hand bend.

[37] Dr Joy gave evidence at the disputed fact hearing. He was consistent in his observation that the Mazda began to fishtail about two lengths into the gravel section of the road, well before the bend. He explained this was about half way along the vehicle bay, which is about 50 to 60 metres before the point where Mr Lyon changed into second gear. He was adamant his recollection was correct, saying his attention was drawn by what he described as a “rooster tail” of stones being thrown up by the Mazda. He recalled thinking to himself there would likely be grooves in the road and resealing needed as a consequence. Although Dr Joy acknowledged he could not be precise about the location of his vehicle and the Mazda given both were moving, he remained clear in his description of when the Mazda first caught his attention because of the flying gravel and the Mazda fishtailing. He described seeing the back end of
the Mazda move to the left, then to the right, and that the Mazda went into the left bend with the rear wheels sliding to the right.

[38] Dr Joy rejected the contention that Mr Lyon had lost control around the bend. He said the driver had taken advantage of the loose seal deliberately to skid the Mazda and, had the loss of control occurred around the bend, he would not have been able to see it.

[39] Dr Joy’s evidence was therefore at odds with that of Mr Lyon. He described the fishtailing occurring almost immediately after Mr Lyon reached the gravel, whereas Mr Lyon said his loss of control occurred on the bend as he changed into second gear.

[40] Ms Bowyer was out for a walk that morning and was north of the accident site. She heard a loud vehicle which she described as loud enough to draw her attention, saying it sounded like it was accelerating. She then heard what she described as the sound of the Mazda losing control, she could hear the engine revving and the sound of loose gravel being flung around. She then saw the Mazda lose control past the bend in the road, spin sideways, cross the road, hit the footpath and crash into the tree.

After the accident

[41] Mr Garton heard the sound of the accident and walked to the scene. He overheard Mr Lyon say:

I was showing off for my daughter and lost control and hit a runner.

[42] Dr Joy overheard Mr Lyon’s stepdaughter at the scene, saying to Mr Lyon, “you were being stupid” or words to that effect. She appeared to be angry.

[43] Before turning to the experts’ evidence, there are two assertions made by Mr Lyon in his interview with the police which have been shown to be incorrect. The first relates to the route he had driven on his way to The Beach Store that morning. It is plain that he drove south along Wellington Road and did not take the route he described to the police. Secondly, Mr Lyon said he had put his foot on the brake when
he was trying to correct the spin. The experts agree there was no evidence that the Mazda had braked.

[44] I can accept that Mr Lyon’s recollection of what happened at the time might have been influenced by a number of factors, including the trauma of the accident and knowledge of the victim’s death, and I take that into account when considering his statement that he had applied the brakes. That qualification does not, however, apply to what he told the police about the route he took to The Beach Store that morning. The uncontested evidence proved that Mr Lyon lied about that. I am aware that people lie for various reasons, including because they panic and say something stupid. I do not necessarily conclude Mr Lyon’s explanation of what happened at the crucial time was wrong just because he lied about the route he had taken earlier that morning. It is, however, a piece of evidence I can consider.

Expert reports

[45] Constable Walker from the Wellington Serious Crash Unit produced a crash analysis report dated 19 March 2017. His conclusion was that Mr Lyon’s driving was consistent with an attempt to lose traction.

[46] Constable Walker’s opinion was that, although the pre-existing condition of the Mazda would have had some effect on its handling, it was not causative of the accident. He did agree the Mazda would have more of a tendency for the rear end to slip if travelling at high speed or under harsh acceleration.

[47] Constable Walker was able to plot the route of the Mazda from the tyre marks on the road, starting near the left bend. From this, he concluded the Mazda had weaved left to right, still under acceleration. Traction was lost, pushing the rear of the Mazda to the left. The Mazda rotated clockwise and was still rotating clockwise as it hit the curb on the other side of the road. The tyre marks on the pavement showed the Mazda was accelerating when it crossed the footpath. There was no indication of braking. Constable Walker concluded that, had Mr Lyon braked rather than accelerating, he would have stopped in about 12 to 14 metres and not collided with the victim.
[48] Constable Walker accepted the contribution of the loose chip on the road and that the 30 kilometre per hour speed limit should have stayed in place until the road was swept. However, friction testing showed there was sufficient grip for a vehicle to negotiate the bend at 50 kilometres per hour and indeed at speeds up to 89 kilometres per hour. He concluded that the only reason the Mazda would have lost traction at 45 kilometres per hour would be as a result of excessive acceleration by Mr Lyon.

[49] Constable Walker’s opinion, having considered the various witness statements, was that Mr Lyon’s actions were consistent with an attempt to drift the Mazda (cause loss of traction) and show off.² Had Mr Lyon braked instead of accelerating when he started to lose control, he would have come to a stop well before the victim. Speed and manner of driving were therefore considered the major causative factors in the crash.

[50] Mr Lyon instructed his own expert to prepare a report. Mr Bass considered Constable Walker’s report and noted a number of respects in which his opinion differed from that of Constable Walker.³ In his opinion, a number of factors may have caused or contributed to the initial loss of traction and other possible causative factors could not be eliminated.

[51] Mr Bass’s conclusion was as follows:

What has caused the initial loss of traction at the commencement of Exh1 (causative factors) is unclear, namely:

Hard longitudinal acceleration out of the corner (mid to exit) leaving little or no friction available to generate lateral friction (fy) i.e. the friction circle concept – cannot be eliminated.

A sudden reduction of available friction (friction max) as a result of “Lift off” in changing between 1st and 2nd gears followed by rapid or harsh re-application of acceleration in 2nd gear mid – corner exit – cannot be eliminated.

Intentional steering and acceleration inputs by the driver as he exited the corner – cannot be eliminated.

2. Constable Walker referred to an intention to “drift”. Mr Bass criticised that term. It was agreed the correct term was loss of traction.

³ A meeting of the experts before the hearing resolved a number of those differences.

The secondary oversteer dynamic involved clockwise rotation (commencement Exh3) and progressed rapidly into a slide dynamic.

The quick transition between the initial slippage anti-clockwise rotation to the secondary clockwise rotation – is not inconsistent with driver over-correction inputs as asserted by LYON’s.

The secondary oversteer (Exh3) progressed rapidly into an uncontrolled slide under acceleration to impact.

[52] When considering the evidence of experts, I must be mindful that when experts discuss their opinions and probabilities, it should not be assumed they are talking about a degree of likelihood or probability in the same way as that required in the criminal law.⁴

Expert evidence in context

[53] The issue is whether the loss of traction around the bend of Wellington Road was intentional or not. The experts agreed the physical evidence on the road was consistent with either.

[54] Constable Walker accepted the three possibilities as identified by Mr Bass but was satisfied it was the third which applied in this case. He accepted the first possibility could have applied at the start of Mr Lyon’s loss of control and the second when he changed gear. He accepted that the physical evidence from the initial loss of control was consistent with Mr Lyon’s description of what had happened under hard acceleration. He further accepted that, on the initial acceleration following the change into second gear and loss of control, an oversteer correction could have sent the Mazda in a clockwise direction. He noted, however, there was a distance of 45 metres travelling uphill from the point of the gear change to where the Mazda crashed into the tree.

[55] Constable Walker’s evidence was that, whilst the physical evidence on the road was consistent with either bad driving or an intentional loss of traction, that evidence, plus that from the various witnesses, led him to conclude the evidence was consistent with a deliberate intention to lose traction. He considered the physical evidence was

⁴ S v R [2016] NZCA 367; R v Kuka [2009] NZCA 572.

more consistent with a deliberate loss of traction and, when all the other evidence was taken into account, he was confident there had been a deliberate loss of traction.

[56] Constable Walker concluded it was Mr Lyon’s intentional steering and acceleration which caused the loss of traction. He rejected the proposition that the loss of traction occurred as a result of overcorrecting because of the distance the Mazda travelled, emphasising that the initial loss of control occurred about 45 metres from the Mazda’s final resting place and the evidence suggested that acceleration and steering by Mr Lyon continued over the whole 45 metres.

[57] In Mr Bass’s opinion, the pre-existing faults on the Mazda would have had an impact on handling, making it very “tail happy”, meaning it would be easy for the rear tyres to track outside the line of the front.

[58] Mr Bass did not dispute that the driving was reckless. He understood Mr Lyon was well aware of the road conditions. Mr Bass conceded he had referred to two civilian witnesses only in his analysis and not others, for example the three unchallenged witnesses who discussed Mr Lyon’s manner of driving prior to the accident when he drove south to The Beach Store. He said, however, he had isolated his consideration to the dynamics of the crash, and the fact Mr Lyon had driven the same piece of road at speed within 30 minutes of the accident, and therefore would have known how the Mazda would respond in the conditions, was not relevant to his consideration.

[59] Mr Bass’s opinion was that the physical evidence was consistent with a corrected slide. The marks on the road showed the Mazda maintained acceleration to the point of impact. In his opinion, intent cannot be inferred from acceleration, noting that correction techniques are diverse, depending upon the cause of the problem.

[60] Dr Joy’s evidence was put to Mr Bass, in particular, that the fishtailing began some 50 to 60 metres before the initial loss of traction. Mr Bass confirmed that “driver input” would have been required for that to occur, in particular, “hard acceleration”.
[61] Mr Bass accepted, if Mr Lyon had lost some control around 60 metres prior to the bend, that should have given him a clear indication of how the Mazda would react by the time he reached the bend. Mr Bass said:

If ... he’s lost traction back there where Joy’s talking about. He’s still got, he’s still got control in regard to he’s moving forward but the rear is fishtailing so, having known that from the acceleration he input there, yes, he should be fully aware that he input hard acceleration out of that corner then he would lose traction at the rear wheel.

[62] Mr Bass agreed Mr Lyon accelerated hard out of the bend and should have known that would break traction at the rear wheels. This supports the conclusion that the loss of traction was intentional.

[63] Mr Bass did not necessarily accept that the fact Mr Lyon did not brake supported that conclusion, but acknowledged, had Mr Lyon braked, he would have stopped short by some considerable distance. It was put to Mr Bass that the most natural thing for a driver to do once he or she started to lose traction on gravel, particularly when going up an incline, would be to either brake or stop accelerating. While not wanting to concede that, Mr Bass did agree that accelerating was the wrong thing to do to correct a “speed induced oversteer”. He also accepted that there had been plenty of opportunity for Mr Lyon to decelerate and brake between the point where he had lost traction and the point where he had lost all control.

[64] As noted, Mr Lyon said in his police interview that he had attempted to brake, something both experts agree was not the case.

[65] As Mr Bass had to concede, if Dr Joy’s evidence was accepted, then the most likely scenario was that, in accelerating around the bend at speed, Mr Lyon knew he would cause a loss of traction to the rear wheels.

[66] The evidence of Dr Joy is particularly important. He was driving directly behind Mr Lyon in the same direction. He was present at the scene. He had good cause to notice when the Mazda began fishtailing and, given his distance behind the Mazda, he did not see the point where Mr Lyon lost all control and crossed the road.
[67] I am in no doubt that the fishtailing manoeuvre was intentional and occurred well before the bend. Mr Lyon had driven the same stretch of road a short time before, when on his way to The Beach Store. He knew there was loose gravel on the road. The uncontested evidence of a number of civilian witnesses was that he was driving at high speed. That he intended to do so was evident from what he said to his stepdaughter when suggesting the outing that morning. She described Mr Lyon’s tendency to “be a bit silly” and that “he pretends to swerve”. Mr Lyon himself said at the scene that he was showing off and lost control.

[68] I am satisfied that by the time Mr Lyon was at the bend, he was accelerating too hard and must have known it could well result in a loss of traction. His intention in accelerating hard out of the bend must have been to lose traction. Mr Bass accepted this, saying Mr Lyon should have known from the earlier fishtailing, as observed by Dr Joy, that the Mazda would lose traction under harsh acceleration on that surface.

[69] The evidence leads to the irresistible conclusion that Mr Lyon knew he would lose traction when driving on that surface under hard acceleration.

Result

[70] For the reasons given, I am satisfied the Crown has proved beyond reasonable doubt the issue in dispute. That is, Mr Lyon deliberately allowed the Mazda to lose traction, including fishtailing prior to the bend in Wellington Road.

[71] The starting point of the sentence indication therefore remains unchanged.

Thomas J

Solicitors:

Crown Solicitor’s Office, Wellington for Crown