Crown v Nicholas [2016] CKHC 24; CR 378-380 of 2015 (28 November 2016)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO’s 378-380/15

CROWN

v

MAHARA NICHOLAS

Hearing: 22 to 25 November 2016

Counsel: Ms A Mills for the Crown
Mr N George for the Defendant

Judgment: 28 November 2016 (oral)

(1) APPLICATION FOR THAT TRIAL INVALID DUE TO DEFECTIVE INFORMATIONS (2) JUDGMENT OF GRICE J

[12:01:25]

[1] This case results from a tragic accident. Early on the morning of the 23^rd July 2015 two motorcycles collided. The riders and each of the pillion passengers were thrown to the ground. The rider of one of the motor vehicles is the accused Mr Mahara Nicholas. He suffered serious injuries in the crash. The rider of the other motor vehicle was Vetina Nicholas who died of the injuries sustained in the accident some hours later at Rarotonga Hospital. The two pillion passengers were also injured. I refer in this judgment to the riders as “Mahara” the accused and “Vetina” respectively.
[2] As a result of the accident Mahara has been charged under s. 25(2) of the Transport Act. That charge carries a maximum term of imprisonment of 10 years and a fine not exceeding $10,000. Those penalties were increased in 2007 by s. 3 of the Transport Amendment Act. Section 25(2) reads:

Every person commits an offence who, while under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, is in charge of the motor vehicle, and by any act or omission in relation thereto causes bodily injury to or the death of any person.

[3] There is no dispute that the two riders of the respective motorcycles were Mahara and Vetina. They are related. Mahara comes from New Zealand and was here for the celebrations in Rarotonga. Vetina lived in the Cook Islands. Nor is there any dispute that Mahara had been drinking during the evening leading up to the accident. There is considerable dispute as to how the accident occurred, who caused the accident, and what act or omission led to the collision.
[4] Before considering the substantive issues I deal with a matter which was raised by Mr George at the end of his closing submissions. This relates to the informations and whether they were so defective as to be invalid.
[5] Counsel for the defendant submitted that the informations were defective because they omitted the requirement in s. 25(3) that requiring an act or omission causing the death or injury. The information in relation to the causing death charge reads:

“that Mahara Nicholas did drive a motor vehicle namely a black Yamaha Nuovo scooter registration number RAD714, on the main road at Ruatonga whilst under the influence of drink to such an extent as to be incapable of having proper control of the vehicle, and thereby caused the death of Vetina Nicholas.”

[6] The information refers to s. 25(2) and (3) of the Transport Act. Subsection 3 deals with the penalties. It was amended by the 2007 Amendment.
[7] Due to this failure which refer to the act or omission counsel submitted that the information was so defective as to make the whole trial or hearing invalid. Presumably this would result in the trial being aborted or otherwise brought to an end. If Mr George’s submission was accepted, that would be the end of the charges.
[8] He also argued that the informations were defective for non-compliance by failing to set out s. 3 of the Transport Amendment Act 2007. This provision amended the penalty provision in s. 25(3).
[9] Mr George argued that the informations were non-compliant with s. 16 of the Criminal Procedure Act. This requires that every information shall contain:

“...such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.”

[10] Secondly, the particulars of the alleged offence must:

“...so far as is possible, use the words of the enactment creating the offence, and may refer to any portion of that enactment, and, in estimating the sufficiency of any such information, the Court shall have regard to such words or reference.”

[11] Section 16(3) says the particulars must include:

“...the time and place of the alleged offence, and the person (if any) against whom, ... it was committed.”

The requirements of s. 16(3) which is couched in mandatory terms have been met. Subsection 3 clearly has been met.

[12] Section 16(4) provides:

“Except as hereinbefore provided no information shall be held to be defective for want of former substance.”

[13] Mr George submitted that failing to recite the words in the information was an important defect which prejudiced the defendant. Without those words, he says, Mahara would think that the Crown only needed to prove that he was under the influence of alcohol and that an accident occurred. He would suppose that the Crown need not prove that an act or omission by him that caused the injury or the death. In other words, Mr George said that the defence as set out in the informations only had a temporal connection rather than a causative connection with the cause of injury or death.
[14] He submitted that as the Crown case was closed and the trial had finished it was too late to do anything about it. In response to a suggestion that the matter should have been raised earlier he said that he had only recently found the defect, so not been sitting on it for some time. Mr George also candidly agreed that he had run the defendant’s case on the basis that the relevant act or omission relating to the injury or death was required. Nevertheless he said the prejudice was to the defendant personally as he did not have the full wording of the information set out for him.

* Put star and say edits stops here

[15] Mr George also submitted the fact that the defendant was under the influence of alcohol was a key issue for the Crown. He pointed to the pre-trial matter in which the Crown had sought to adduce as evidence the certificate of analysis of blood alcohol taken from Mahara shortly after the accident. The process of the taking of blood did not follow the exact requirements of the legislation. The application was successful. Mr George said the Crown was so focussed on obtaining the evidence on the alcohol reading that this somehow indicated that the evidence of alcohol or being under the influence was the focus of the case to the exclusion of the act or omission causing the injury or death.
[16] He also submitted it was prejudicial because if the Crown left out the need to link the act or omission to the injury or death, it just must be prejudicial to Mahara. He would have relied on the informations as they were all he had so he would have thought he was done for and had no defence. He said this was an ulterior motive of the Crown’s.
[17] The Crown in reply said that there was no substantial prejudice. Ms Mills argued it was not mandatory to have the full wording of s. 25(2) of the Transport Act set out in the informations. She pointed to s. 16(4) of the Criminal Procedure Act which said that no information shall be held to be defective for want of substance. She said the omission was of minor significance and there was clearly no prejudice to the defendant.
[18] In support of her submission Ms Mills pointed out that Mr George had run his case, opened and closed it, on the basis the act or omission was required. Similarly the Crown had opened and closed its case on that basis. There had been a pre-trial application before Justice Hugh Williams in which this issue had not been brought up and in that application and the judgment the full elements of the offence including the requirement of an act or omission were set out despite the fact that the informations .................... did not include the reference to the act or omission. Therefore Mr George was well equipped to deal with the charges and all their elements. There was no prejudice at all.
[19] Ms Mills submitted that s. 18(3) of the Criminal Procedure Act allowed the Court to amend a defect in the information during the trial. She noted that s. 47 allowed amendments to informations by the Court at any time by the trial. In relation to the latter section there is a requirement the amendment is put to the accused and he be asked to plead to it. It also requires any evidence already given to be deemed to have been given and for the purposes of the trial the charge is as amended or substituted. In that case either party has the right to recall and examine or cross-examine or re-examine any witness whose evidence had already been given in respect of the offence originally charged.
[20] Mr George said that the case had closed so the Crown could not amend the charges.
[21] The Crown relied on R v Jones^[1] as authority for the proposition that the trial remained on foot. Mr George appeared to concede that that may well be the case, but nevertheless his client was still prejudiced.
[22] In Jones the New Zealand Court of Appeal held that for the purposes of the New Zealand legislation, which is similar to the Cook Islands legislation, the trial remained on foot until the completion of a reserved judgment for this purpose. In this case the submissions were not yet been completed so it was much earlier than the delivery of a reserved judgment. I am of the view that the trial was not complete and an application for amendment of the informations could properly be made.
[23] The Crown submitted that it had no intention to mislead the defendant. It did not mislead as it had opened and closed on all the elements. It was obvious that it intended to deal with all the elements of the charge.
[24] Ms Mills also referred to an earlier jury trial of Timoti. Justice Hugh Williams presided in a trial in which a charge under s. 25(2) of the Transport Act was dealt with by a jury. In that case the information also omitted the reference to the act or omission as in this case. Mr George appeared for the defendant. There was no issue taken with the information in that case. The correct elements were put to the jury and the matter proceeded on that basis. The Crown argued this support for the fact that Mr George was fully aware of the elements of the offence. Mr George indeed admitted that he was. He also said of course he was not misled as to the elements. He ran his case on the basis of the elements but the fact that he knew all about it should not allow the Crown to get away with having defective informations. He said it was not his duty to raise these defects with the Crown case. He also said candidly that if he were pressed over an amendment, and asked if he wished any witnesses recalled for re-examination in terms of s. 47, he would not.
[25] I am satisfied that the informations sufficiently particularised the charges. The defect does not invalidate the proceedings nor require amendment. The defendant was well aware of the full elements of the case, and the particulars that he was facing. He was aware of this from an early stage at least from the time he instructed his counsel Mr George. This was before the pre-trial applications. Mr George was well aware of all elements of the charge and ran his case on the .......... all were required to be proved. There was no prejudice at all accruing to him. I am satisfied that the information contains sufficient particulars to fairly inform the defendant of the substance of the offence and they did fairly inform him. I do not have to deal with an application for an amendment or make an application by the Court. However if I am wrong I would have had no hesitation about amending the information to include the omitted words.
[26] Now I move to the substance of the case.
[27] The Crown case is that Mahara’s black motorcycle collided head-on and slightly to the left of the front of Vetina’s motorcycle. Both vehicles had pillion passengers on the back. On Mahara’s motorcycle was Ms Nuku, Vetina’s pillion passenger was her friend Ngapare Noovao whom I will refer to as Pare.
[28] The Crown says that Mahara was driving from Avarua township where he had earlier been at the Rehab Nightclub. He was travelling on the Main Road toward the airport near the Punanga Nui market. He was speeding. The speed limit in that stretch of road is 50 kilometres per hour. The road has one lane for each direction. The road leads to the airport so I will refer to the airport side and the Avarua side, although it was variously referred to in the evidence by reference to different locations and landmarks.
[29] The Crown says that Mahara travelled across to Vetina’s side of the road and collided with her motorcycle. She was coming from the airport direction at a speed of something less than 40 kilometres an hour. The collision, the Crown says, occurred on Vetina’s side of the roadway showing that Vetina was in the correct side of the road at the time of the accident and that Mahara had crossed over onto Vetina’s side of the road.
[30] The lighting on the relevant part of the road was not good. The crash occurred on the Avarua side of the entrance to the Punanga Nui market from the airport side. It occurred at a point the road curves. Foliage grows on the seaward side or the Punanga Nui market side of the road. On the inland side of the road there are also hedges and foliage. There is a red container on the inland side of the road near where the accident occurred. This featured in a number of the photographs.
[31] On the night the road surface was not marked with a centreline. The tar seal was relatively new, although there was no evidence of how long it had been down. The road surface now is marked with a yellow line down the centre. That is not clear when these markings were made.
[32] The Crown says Mahara was speeding in the range of 50 to 65 kilometres an hour based on the crash investigator’s calculations. The crash investigator said that there was some difficulty in establishing the exact speeds due to the likely deceleration by the vehicles before the accident.
[33] The Crown allege that Mahara was impaired by the effects of alcohol. He had a blood alcohol reading some hours after the accident well in excess of the legal limit.
[34] Evidence was called from experts to indicate that Mahara’s motor skills, judgement and risk taking behaviour would have been significantly detrimentally affected by the level of alcohol in his bloodstream. Witnesses gave evidence that he had been drinking for some hours before the accident, starting on the “party bus” which left the Rehab Nightclub about 7 pm. On its return he had been at the Rehab Nightclub. Subsequently with his pillion passenger on the back of his motorcycle he rode around the car park of the Rehab Nightclub. He was seen driving away from the Rehab Nightclub on the main road in the direction of the airport.
[35] A witness, Ms Ben, said she had seen him driving around the car park on the motorbike. She said he was weaving and driving in a sloppy manner. In addition a Rehab security guard, Mr Duane Gokisuva, gave evidence that Mahara had had some difficulty with walking and getting off the party bus in the evening and he appeared to be affected by alcohol. He identified the person he observed as Mahara.
[36] Mahara’s pillion passenger had been with him, Mahara’s sister and brother on the “party bus” and at the nightclub. They also had a significant amount to drink. Ms Nuku had a high blood alcohol reading taken sometime after the accident.
[37] On the other hand, Vetina had only a very slight trace of alcohol in her blood. Her passenger Pare had a level of 30 milligrams of alcohol per 100 millilitres of blood. This was the result of a drink Pare had taken shortly before the accident at Vetina’s boyfriend’s house.
[38] As will become apparent I am satisfied beyond reasonable doubt that Mahara was under the influence of drink to such an extent as to be incapable of having proper control of a motor vehicle however I am not satisfied beyond reasonable doubt that it was Mahara who caused the act or omission that led to the injuries and death. I am not satisfied that he crossed the centreline or by virtue of his speed caused the accident.
[39] There is a difference between proof as to the fact that his driving was impaired before the accident and that it was his act or omission that caused the collision and thereby the death and injuries alleged.
[40] Section 28 of the Transport Act is an offence with a substantially lesser penalty which is used where the allegation is that the defendant was under the influence of drink or a drug to such an extent as to be incapable of having proper control and drives or attempts to drive a motor vehicle on the road, that is not the charge here. The further element of act or omission relating to the cause of the accident is required.
[41] For the defence Mr George submitted that the Mahara was driving toward the Avarua township from the airport. He was driving in the same direction as Vetina and that she collided with him in the rear of his cycle so causing the accident. This would explain, he said, why the impact according to the crash investigator occurred on the seaward side or Vetina’s side of the roadway.
[42] This version of events could be said to be in part supported by three witnesses, at least as to the direction of travel. The first was off-duty police officer, Officer Lockington. She was driving from the airport into town to pick up a fellow officer who was also an off-duty at about the time of the accident. Officer Lockington said that just before or around Palace Takeaways which is on the seaward side of the road at the airport end before the accident, a black motorcycle with a male driver and a female pillion passenger came up from behind her and overtook her on the inside left which would be the seaward side of her car and swerved to the right back in front of her. She thinks this may have been around about the Palace Takeaway site or slightly before that. She came upon the accident shortly after and she assisted at the accident scene. Officer Lockington struck me as a reliable witness. She appeared to have a good recollection of the evening’s events and refused to be drawn into conjecture. She had not been drinking that evening and had her 2 year old child in her car. She refused to speculate on who might have been riding the motorcycle. She would also have been aware that the motorcycle coming from the airport side does not assist the Crown theory of the case. I found her to be a reliable, forthright and honest witness.
[43] A further witness that the Crown called which supported the defence case about the direction of the travel of Mahara’s motorcycle was Mrs Amarama. She worked at the Palace Takeaways. This is on the seaward side of the road on the airport side of the accident. She was putting out the rubbish she thought about 12.30 to 1 o’clock. Ms Amarama struggled with establishing the actual times. She did not have a watch on her and had some difficulty in recalling the times. However, somewhere between 12.30 am to 1 am, she said she put out the rubbish. She finished work for the night and was sitting at the table. She then saw someone whom she thought was Mahara on a motorcycle come past her from the airport direction toward Avarua on the main road. She then got on her bike and left Palace Takeaways. She said variously that this was 10 minutes, 15 minutes, 5 or 2 to 3 minutes before the accident. She was not sure. However she heard and then came across to the accident.
[44] In her statement to the Police made near the time of the accident she drew a map. She said she did not know Mahara personally and had not met him, but the family that own the Palace Takeaways was related to him and she had seen Mahara with them. She did not mention to the Police when she gave her statement that she recognised him as the driver of the motorcycle she saw travelling toward Avarua.
[45] Another witness, Ms Tixier, gave evidence saying she was passed on the airport side of the accident site by a black motorcycle. She identified Mahara. I will deal with her evidence later.
[46] Mr George in his opening said that the sole or primary defence was that Mahara did not cause the accident and that the Police analysis of the accident undertaken around about the 23^rd July was “completely and absolutely mistaken and wrong.” Mr George also pointed to the fact that the road had been recently tar-sealed and there were no centre markings on the road. He said this would have also contributed to the accident. He also said that he would highlight the lack of damage in crucial areas on the bikes which went against the Crown case but supported his theory of the case which was that the motorcycles collided while travelling in the same direction, from the airport.
[47] Mr George also said that part of the defence case was that Vetina was speeding, talking to her pillion passenger and was inattentive which caused the accident. He also mentioned that her head injuries were a result of not wearing a helmet.
[48] I now consider the legal position.
[49] I am required to be satisfied beyond reasonable doubt on each of the elements of the charge. This was not addressed in detail on this by either counsel as it was submitted as being self-evident. I must be satisfied beyond reasonable doubt on each element of the charge. A reasonable doubt would be an honest and reasonable uncertainty that has been left in my mind about the guilt of the defendant after I have carefully considered all the evidence. I note that proof beyond reasonable doubt is a very high standard and that the defendant is presumed innocent. He did not have to call evidence, he did so in this case. He does not need to prove his theory of the case, he is entitled to rely on the Crown proving the case, in all its elements, beyond reasonable doubt.
[50] The Crown also referred me to O’Callaghan^[2], a New Zealand Court of Appeal decision. In that case the Court of Appeal was considering a trial direction given by a judge to a jury on a charge under s. 55(2) of the New Zealand Transport Act 1962. It is in the same terms as s. 25(2) of the Cook Islands Transport Act^[3].
[51] The Court of Appeal reviewed various changes to the legislation which had occurred in New Zealand. It then followed the earlier Court of Appeal decision of Walter^[4]. In that case the Court held that the cause or act or omission which must be found against the accused needs not be negligent, but the act or omission must have been of such a character that it would not have happened if the accused had not been under the influence of the drink or drug to an extent as to be incapable of having proper control of the vehicle.
[52] In O’Callaghan the Court of Appeal held that the direction to the jury that the Crown need only prove that the accused did an act while his blood level was excessive and did not have to show any cause or link between the act or omission causing the death, was wrong.
[53] I now turn to the elements of the offence.
[54] From the actions of Mahara during the evening of 22^nd July and early morning of the 23^rd and his physical state, I am satisfied that:

• (a) Mahara was in charge of the relevant black Yamaha motorcycle.
• (b) Mahara was under the influence of alcohol to such an extent as to be incapable of being in charge of a motor vehicle.

[55] In relation to his alcohol intake and the effects it would have had on him I consider the medical evidence. Dr Teapa was the surgical consultant on duty when the victims of the accident arrived at the hospital. He is qualified as a medical practitioner and also understands as to the effects of alcohol on the human body. He is qualified by virtue of both training and experience. He has worked for some 10 years since graduation. Since 2013 he has worked at Rarotonga Hospital as a surgeon.
[56] The Crown also called evidence, which read, of Dr Allan Stowell, a New Zealand scientist and expert on blood and breath alcohol. He gave evidence as to the effects of alcohol on the body and in particular at the levels showing in Mahara’s blood test, the likely effect on him.
[57] Dr Teapa dealt with Mahara when he arrived at hospital. Dr Teapa found that Mahara was highly intoxicated and at times aggressive. The doctor said Mahara was not subject to any life threatening injuries but had reasonably serious facial injuries and injuries to the leg. Dr Teapa considered he suffered a mild concussion. This is the equivalent of a mild brain injury at the time of initial presentation.
[58] Mahara had a Glasgow Coma Score (GCS) score, which measures the severity of head injury, of about 10 to 11. However within 4 hours that score had come up to 15 which is in the normal range. Given the speed of return to normality of the GCS score Dr Teapa was of the view that Mahara’s behaviour was driven by the effects of alcohol rather than a brain injury.
[59] Dr Teapa had also noticed that Mahara smelt strongly of alcohol. The team could not restrain Mahara, he was difficult and aggressive. They asked the ambulance drivers for assistance in order to get the x-rays completed. His view was that Mahara’s psycho-motor skills would have been diminished, his coordination and his ability to handle a vehicle would have been severely affected, his hand and eye coordination would have been affected and his judgment would be poor. Dr Teapa also mentioned there would be loss of orientation to his surroundings and that someone with the alcohol level that Mahara had would show erratic behaviour often leading to risk-taking.
[60] Dr Teapa also noted that he examined Vetina when she arrived and she had suffered severe traumatic primary brain injury. She died at 9am that morning at Rarotonga Hospital. His view was that she had no signs of brain activity when she arrived. He was of the view, after consulting with his colleagues, that it was futile to continue life-saving treatment for her. Severe traumatic primary brain injury was listed as the cause of death in his report to the coroner. He had also considered whether there would have been any difference if there had not been a delay of some 40 minutes before the ambulance arrived to pick Vetina up from the scene of the accident. He and his colleagues came to the conclusion it would not have made any difference to Vetina’s chance of survival as severe brain injuries from the accident were not survivable.
[61] Dr Teapa also examined and gave evidence as to the state of Pare. She stayed overnight for neurological observation and was discharged the following morning. The main diagnosis was mild concussion. She also had a left scalp laceration with several superficial abrasions to her skin.
[62] Rawi Nuku was Mahara’s pillion passenger. She was intoxicated on admission. Her injuries amounted to several abrasions or soft tissue injuries to limbs, in particular her right forearm which had a laceration slightly bigger than the rest.
[63] I now turn to Dr Stowell’s evidence on Mahara’s alcohol levels and the effect on Mahara’s behaviour.
[64] Dr Stowell’s evidence was read by consent. He is qualified as an expert in blood and breath alcohol matters. He is a scientist employed by ESR in New Zealand. He has extensive experience and a post-doctoral research expertise in blood and alcohol breath analysis and a knowledge of the effects of alcohol on the human body. His curriculum vitae is impressive. He has given expert evidence in all Courts in New Zealand over sixty times, mainly involving interpretation of blood or breath alcohol tests under New Zealand law.
[65] Dr Stowell had received the results of Maraha’s blood alcohol test from the Rarotonga Hospital laboratory. He came to the view that the tests indicated that Mahara’s blood alcohol concentration at the time of the crash was likely to have been within the approximately range of 185 to 215 milligrams per 100 millilitres of blood. He came to the conclusion that that could be explained by between 13.5 and 24 standard drinks. The most likely alcohol consumption being approximately 19 standard drinks. A standard drink is the equivalent of 32 millilitres of bourbon with an alcohol content of 40 percent by volume.
[66] Dr Stowell said while there was difficulty in predicting how impaired a person would be at any particular blood alcohol concentration without specific knowledge of the person’s tolerance for alcohol, there was a large body of published scientific research showing the consumption of alcohol and impaired psycho-motor skills. These are important for safe driving. He pointed to the fact that impairment can cause, for example, a degree of tunnel vision and a reduction in the ability to make quick and correct decisions in the event of an emergency. Alcohol also releases inhibitions and this can lead to risk-taking behaviour. He said that in an average person driving skills begin to be significantly impaired at blood alcohol concentrations of somewhat lower than what Mahara had. Higher concentrations result in more serious impairment and that impairment has a strong association with traffic accidents. He said that chronic heavy drinkers do develop a tolerance to intoxicating liquor. However even a heavy chronic drinker would be impaired to some extent if the blood alcohol concentration level of approximately 175 milligrams per 100 millilitres of blood. His evidence was unchallenged.
[67] I therefore have no difficulty in coming to the conclusion on the evidence of particularly Dr Teapa and Dr Stowell that Mahara was under the influence of drink to such an extent as to be incapable of having proper control of the motorcycle.
[68] I also conclude from the evidence of Dr Teapa that Vetina’s death and the body injuries of the two pillion passengers were caused in the accident as alleged in the information.
[69] I now turn to the events of Vetina’s day leading up to the accident.
[70] Vetina had spent most of the day involved in preparation to model a costume made by her Aunty Nane Tau for a show at the Edgewater Resort. There was considerable imprecision as to the exact timing of events in the course of the day and the evening of 22^nd July. However it was clear that Vetina modelled at the show at approximately 7 to 8 pm in the evening and returned to Avarua School where she was staying with about 50 or 60 other participants at the Te Maeva Nui celebrations in Rarotonga. Those participants and people staying at Avarua School included Mahara Nicholas and his family. It is common ground that these celebrations attracted many overseas visitors to the island and many cultural groups. Rarotonga was very busy during that period.
[71] Vetina’s aunt Mrs Tau, was with her for a large part of the day. In the afternoon she told Vetina to have a sleep. She was not sure whether Vetina had done so. After modelling at the Edgewater Resort, Vetina went back to Avarua School. Mrs Tau took her back and stayed to talk to friends and have something to eat.
[72] Vetina told her aunt that she was tired and went off to bed. Mrs Tau went to say goodnight to Vetina and thank her for modelling for her at about midnight. She said Vetina was in bed lying down. Her aunt thought she was still awake as she moved. Her aunt thanked her for modelling and left.
[73] Mrs Tau did not see Pare at all during the evening and she thought that she had left Vetina at about 12 to 12.15 am or 12.20 am.
[74] On the other hand Pare said she had been with Vetina since about 10 pm. Pare had had Vetina’s motorcycle earlier in the evening. Pare did not have a licence but she had ridden around on the motorcycle for some time that evening. She received a text from Vetina about 9pm. She took Vetina’s motorcycle back to Avarua School. When she arrived Vetina was not back so Pare went for another ride into town. When she got back Vetina was lying in bed. Pare felt it was late but she was not carrying a watch.
[75] The times then become imprecise. Pare and Vetina, with Pare driving Vetina’s motorcycle, went off to see Vetina’s boyfriend Rechimaier Rairoa who has a home in Ruatonga. Pare thought they went to see Rechimaier twice that evening, however Rechimaier only recalls them coming once. He thought it was about 2am as he had been in bed. His brother Marcello Rairoa, whose evidence was read, was the one who woke Rechimaier up when Vetina and Pare turned up. Marcello only recalls one visit as well. At the meeting between Rechimaier, Vetina and Pare there was arrangement that Rechimaier would then come to Avarua School to meet up with Vetina and Pare. Rechimaier gave Pare some wine in a wine bottle, she drank this. Rechimaier then told Vetina she should drive because Pare had been drinking and he thought Pare was affected by the wine. Pare agreed that she had drunk the wine and she was a little bit affected by it. Her alcohol intake was confirmed in the results of the blood alcohol test administered after the accident.
[76] Given that Rechimaier and his brother both confirm that there was only one visit to Rechimaier’s home, I accept that evidence. I do not accept the evidence of Pare about there being two visits. I consider Pare’s memory may not be accurate in that regard. She had had something to drink which while was only a small amount did affect her. She also suffered from concussion following the accident. Those incidents are likely to have blurred her memory.
[77] Pare is the only one who does remember the accident itself. She recalled stopping at the roundabout immediately before the accident. Vetina had taken the back road and then was intending to turn into the main road and drive from the airport direction toward Avarua School. Rechimaier’s house is on the back road and it was he who suggested they use the back road.
[78] Pare cannot recall much of the drive but she said she was talking to Vetina. She was leaning on Vetina’s right shoulder, they were talking about Rechimaier. She could not hear easily. She thought they were riding at something above 40 kilometres an hour. She cannot remember any motorbikes passing them. She said she was not looking toward the front but was looking down. However she looked up and saw a bright light coming toward her. She remembers nothing else. She is sure that was a motorcycle light.
[79] Under cross-examination she said that Vetina was excited that Rechimaier was coming to the school. She also confirmed she was sure that it was the one light of a motorcycle, not a car, with one light coming toward them. She also agreed that she was affected by the wine.
[80] I consider that Pare’s evidence in parts is reliable but I do not think she has a perfect recall of the evening. Particularly I do not think she provides reliable assistance as to what happened immediately before the accident. I think her memory is unreliable as to what happened at the time of the accident as is evidenced by her recollection as to the number of visits made to Rechimaier’s house. She may have seen a motorcycle coming toward them. It is difficult to know whether that was Mahara’s motorcycle which then collided with one other or if it was another motorcycle she saw coming toward them. She does not recall any motorcycles overtaking them. However she did recall that there was a motorcycle on the road coming toward them but was not sure whether that was the one which ultimately collided with them or it was another. I am also of the view that she was busy concentrating on a conversation trying to hear Vetina and she may well have missed seeing other vehicles on the road. I therefore do not place a high reliance on her recall of what happened immediately before the accident.
[81] I now turn to the bystanders in the vicinity of the accident.
[82] Tungane Lockington to whom I referred earlier holds the rank of senior constable. As I noted above she was off duty and driving from the airport doing approximately 40 kilometres an hour and drove past Palace Takeaways. It was around then that she says she was overtaken by the black scooter driven by a male with a female passenger. She did not see anyone else. It was only moments afterwards that she came across the accident. She would not enter any conjecture as to who it was riding the motorcycle.
[83] When she reached the accident site she had not long before been overtaken on the inside by that black motorcycle. She saw the bodies strewn across the road. She checked the defendant and smelled alcohol on him. She noticed girls lying about 2 metres from each other in the middle of the road. This would have been Vetina and Pare. She called an ambulance. She checked that everyone was as comfortable as possible. When Sergeant Takai arrived and his constable shortly afterwards she was directed to take up point’s duty. She saw Mrs Tixier at the accident. She did not see Mrs Amarama who was also a bystander. However she was not there to take a list of witnesses. She also said that when the black scooter overtook her on the inside she could not remember if she had lost sight of it on the bend before the accident and it had taken off as she was approaching the Punanga Nui market.
[84] As I mentioned earlier I found Constable Lockington’s evidence to be straightforward and reliable. I accept that she saw a black motorcycle going in the same direction as she was travelling, immediately before the accident.
[85] Another witness I mentioned who says she saw the black motorcycle was Mrs Amarama. As I described, she was in some confusion over the times but was adamant she saw the motorcycle. As I said it was not until she gave evidence that she said that it was Mahara that was driving the motorcycle. Nevertheless even if she was mistaken about it being Mahara it seems that her sighting of another motorcycle travelling in the direction of Avarua corroborates Officer Lockington’s story of the black motorcycle.
[86] Mrs Tixier was driving from the airport direction toward Avarua. She stopped at an intersection near the accident scene. She said a motorbike overtook her with two people on it. She said a man was riding the bike and a woman was the pillion passenger and they were both large. She pulled over to let them pass. She followed the motorbike toward Punanga Nui market. She heard a crash. Mrs Tixier said in evidence that she was sure that the rider of the black motorcycle that had overtaken her was Mahara. However she made a statement to the Police shortly after the collision. In that statement she made no mention that it was Mahara driving or riding the motorcycle. At the site she said she recognised him lying on the road covered in blood and was there when the ambulance arrived. She made much of the fact that Mahara had a distinctive beard which she recognised. She said he looked slightly different in Court now but she was definitely sure that it was him riding the bike. Mrs Tixier told the Police that she had seen the accident, this was in her statement to them shortly after the accident. However in her evidence in Court she said she only “thought” she had seen it and in fact she had only heard it. She had assumed, and told the Police that at the time, that it was a head-on collision with two vehicles coming from different directions. However she is now of the view she could not be sure of that. She said she just “thought” that. She estimated the black motor vehicle was travelling fast, perhaps 40 or 50 kilometres an hour.
[87] Mrs Tixier was also not certain about the times. She did not have a watch. She thought it was early morning. When she was asked in cross-examination whether she knew accident actually occurred about 1.00 am, she asked whether Ms Mills was sure about that. At one stage she said she thought it was close to dawn. I consider Ms Tixier probably did see a motorcycle pass her but I have considerable reservations about whether she was able to identify Mahara. This is due to the fact that the lighting was bad, that she said the motorcycle went past quickly and that she did not mention this important fact to the Police shortly after the accident. However, the fact that she saw a black motorbike is consistent with the observation of Officer Lockington as well as Mrs Amarama.
[88] Mrs Amarama was one of the first people on the scene. She said she saw a woman coming from the hedge yelling about “her brother”. It appears likely that this was Mahara’s sister Aniwa Nicholas. She was also affected by drink and could not remember how she got to the accident site. She remembers holding Mahara, she cannot recall the girls bodies in the middle of the road nor can she recall much of the evening itself. It appears that she stayed with Mahara but it is not clear whether she moved him or whether she was just talking to him and holding his hands.
[89] Tehina Tommy came along a bit later and she moved Vetina into a recovery position at the request of Sergeant Takai. She said she moved Vetina on to her side and straightened her up. She said someone had moved Pare while Ms Tommy was there. Ms Tommy did not see the black motorbike nor can she recall the direction faced by Vetina’s motorcycle.
[90] Sergeant Takai and Constable Ingaua were also one of the first at the crash site. They had been attending a crash at Raro Electrical on the airport side of the Punanganui Market and were driving to attend another crash which had been reported. The crash occurred near the Courthouse in Avarua and they were driving from the airport side into Avarua, they came across this accident. Sergeant Takai considers that it was about 1.14-15 am when they came across the accident. They saw Officer Lockington’s car lights flashing. When they arrived at the scene, the Sergeant received a call from Police communications at 1.16 am to report this accident. He said they were already there. I consider Sergeant Takai gave the most reliable estimate of the time of the accident as it was corroborated by the Police communications call and by his notes concerning the time he was at the Raro Electrical crash site.
[91] He said the two girls, Vetina and Pare were in the centre of the road on the inland side. Sergeant Takai was understandably concerned about the state of the victims as a priority. He checked them all. He managed the site. By this stage there were many bystanders and a lot of traffic. Understandably he was not focused on the cause of the accident nor indeed any markings or debris on the road that might later be needed to assist in establishing the cause.
[92] A fire truck arrived at the incident and those officers were also helping out. Sergeant Takai moved Vetina’s bike.
[93] He said that by the time he had arrived, someone had already moved Mahara’s bike as it was standing up. As I said, Sergeant Takai was quite properly intent on helping the victims and controlling the crowd and the cars which were trying to get through. He did a rough sketch of the scene although it is not clear exactly when he did this. There were no measurements to scale on the sketches he produced. Constable Ingaua did not agree with some of the information on the Sergeants sketch, in particular the location of some of the bodies. She was in the view that the girl in the market or the seaward side of the road by the curb had her head facing the airport and her legs facing Avarua rather than as depicted on the Sergeant’s plan. She also thought that the male victim, which would have been Mahara should have been depicted as lying straighter than shown on the sketch.
[94] The victims were taken to hospital, having awaited approximately 40 minutes for the ambulance. Sergeant Takai then arranged for the fire truck to hose down the road to clear the road of blood, debris and other materials such as plastic and glass. He then allowed the traffic to go through. He arranged for Lisa Tatakura, an off duty policewoman, to take photos at about 3am. These photos were produced. They are not very clear. One of them is the approach to the accident which is difficult to see having been taken at night looking towards the police cordon at the airport end. The other one was also very unclear but showed two jandals in the foreground in what was apparently a pool of blood. It is not clear whether the fire truck had hosed down the road at the time this photo was taken. The pool of blood did not look similar to the markings on the road which were taken the next day. The jandals do not appear in any police sketches including the investigators scheme plans. It is likely therefore that they were hosed away after the 3am photos were taken but that was not in evidence.
[95] No measurements were taken at the time of where the debris was nor were there any scale or precise markings or measurements made as to where the bodies were lying. The bodies and the bikes as I said, were moved at various stages during the evening. Given this confusion, I would not rely on the sketches that Sergeant Takai made at the time as accurate. It was this information which later the crash investigator relied on for his diagrams.
[96] The witnesses who were at the site all agreed there were a lot of people gathered by the time the ambulances arrived to take the victims to the hospital. There were also other vehicles on and near the site at least including the fire truck. It is not clear where that was or whether that made any markings on the road. In relation to the position of the bodies, it is not clear when they were changed during the night but by the time Mrs Tau, Vetina’s aunt arrived, she said that Vetina’s head was near the curb and her head was facing the market. This is different from earlier descriptions of her position. One of Mrs Tau’s nephews who was with the fire truck had already arrived and he was holding Vetina’s hand.
[97] As I said, it is not clear where everything was by the time Sergeant Takai did the sketch map. Presumably the bodies had gone and the debris removed. He was relying on his memory after a very busy and stressful evening. Constable Ingaua in fact did not agree with the Sergeant’s placement in two respects on the sketch plan. There was no attempt to sketch where the debris was, including, for instance what might have ultimately become important evidence such as the footrest from Mahara’s black motorcycle which the Crown alleged hit the ground and broke off. That of course is quite understandable given the fact that it was a serious accident and Sergeant Takai had priorities to care for the victims and manage the site. In addition there were two other accidents which had been reported so the hospital was busy and this resulted in substantial delays before the ambulances arrived.
[98] The road was then reopened. Cars and vehicles used that portion of the road from the time it was reopened until the morning when the traffic accident investigator arrived. He arrived as the road was being cordoned off. He received a call sometime about 8.30am, he was at the Nikao station, so by the time he got to the accident it was after 9am. By that time there would have been many vehicles, cars and motorbikes that had gone over that road. Rarotonga was very busy during the celebrations was at the time. In addition, Sergeant Takai had left the motorcycles on the side of the road. He picked them up the next morning about 9.30am. He did not think they had been interfered with. The vehicles were taken back to the police station. However, he agreed there was no security around them while they waited on the side of the road for the morning.
[99] I consider that the positioning of the bodies and the motorbikes on the sketch plans were not a reliable representation of where they fell at the time of the accident. While it seems clear that Vetina and Pare were somewhere near the centre of the road, I would be hesitant to rely on the exact positioning shown in the sketch plans. The pools of blood by the morning had been cleaned up and it is difficult to match the pools of blood that are indicated in the morning photographs with those from the photographs taken the evening before or the early morning by Constable Lisa Tatakura.
[100] I now turn to the accident investigation. Snr Sgt Teaukura is the officer who carried out the crash investigation. He has received specialised training in traffic law enforcement and crash investigations. He set out his training which included a level 3 advanced training course in crash investigations undertaken in 2015. He prepared a report which he produced as well as two sketch plans showing the placement of the motorcycles, the bodies as well as the markings he observed on the road. He referred to photographs which were taken that morning while he was there. He correlated the markings on his sketch maps to the photographs by use of numbers.
[101] Snr Sgt Teaukura arrived at the scene some 7 or 8 hours after the accident. When he arrived Senior Sergeant Peraua was on the scene and showed where he had been told the various bodies and motorcycles had been positioned.
[102] Snr Sgt Teaukura said the seal on the road was new. The conditions were good at the time and he was able to see some markings on the road. He saw scratch marks and stains which he said were blood stains although there was no evidence of any analysis of that. He also saw a bit of a skid mark. Sergeant Takai later confirmed to Snr Sgt Teaukura where the various bodies and items had been lying. Of course the road was clear by then and the road had been hosed down.
[103] He examined the motor vehicles but he was careful to say he did not claim expertise in the mechanical or structural state of those vehicles.
[104] While the crash investigator insisted that he was not an expert nor did he claim mechanical or structural expertise in relation to the damage of the vehicles, he did visually inspect the vehicles. He looked at the damage and said the front of the red bikes had its forks pushed in, the left side of the fender was damaged and the headlights were pulled off. He said the footrest on the left side was bent back. He made these comments by reference to the photographs of the bike.
[105] As to the black bike, he said the cover on the left side was coming off, the footrest on the left side was gone, the rear vision mirror was broken off on the left side. He saw no damage to the right side of either bike.
[106] The investigator said the black bike was owned by Raro Cars and Bike Rental. The ............. on the red bike, the headlight compartment including the speedometer was badly damaged. This is where the front forks had been pushed to the rear. He concluded that another object had forced the red bike’s front forks from the front and that would have been a head on or an almost head on collision which caused that. He said the tyres were intact.
[107] The Snr Sgt referred to a typing mistake in his report which had not been corrected. In the sketch plan the male body had been transposed with the female pillion passenger’s body on the sketch plan. He could not recall how many blood stain patches there were on the road. He used a green paint to spray ............ the scratch marks, a gouge mark, the skid mark and the blood patches. He marked the road with that. He then allocated numbers to the various marks on the road which co-related to the photographs.
[108] The investigator’s view was that the black bike left footrest had made a gouge on the road which he marked on his sketch plan as being the suspected “point of impact”. He referred to the suspected “point of impact” on one of the sketch plans. On his other sketch plan he referred to it as the “point of impact”. He also measured scratch marks which were beyond the gouge marks and began at approximately 2.8 metres from the seaward edge of the road. This ran for approximately 10 metres in a crooked line seaward. The scratch mark then stopped at about 1.6 metres from the seaward side.
[109] He drew on the sketch maps a centre line on the road of bold broken lines. He said this was for the purposes of the diagram and that there were no actual markings on the road to show the centre line on the morning of the crash. Since the accident, lines had been marked on the road. He returned to the accident site recently and re-measured from the edge of the road to the centre lines. This resulted in a variation on his original measurements. This, he said, was a small variation so the gouge mark or the point of impact as he had described it was 700mm from the centre line rather than 900mm from the centre line that had been his conclusion in the original sketch.
[110] Neither of the two sketch plans produced were to scale. Both were based on the information provided by Sergeant Takai as to where the bodies and motorcycles end up. The skid marks on the road which ran for about 30 centimetres about or just before the point of impact, were shown at the same place as the gouge as they were so short that they could not be depicted in a linear manner on the sketches. His conclusion was that Mahara had been driving toward the airport and veered across the centre line into Vetina’s lane resulting in a head on collision.
[111] Snr Sgt Teaukura said Mahara’s motorcycle footrest had caused the gouge, the left side of Mahara’s motor vehicle had continued along the road coming to rest at the end or toward the end of the scratch mark. His theory was that Vetina had been driving correctly on the seaward side and Mahara had veered toward her at speed. He marked the point of impact as being where the gouge marks were mounted on the plan. However he said that it was more likely that the point of impact would have been before the gouge marks. He said that the motorcycles would have flown into the air and landed somewhere near the middle of the road. On the face of them, the sketch plans indicated that the Sgt’s theory of what occurred was an actual fact. For instance, instead of being marked as a gouge mark, that mark is referred to as the point of impact. However it would not have been the point given the Snr Sgt’s own evidence. The sketch maps indicate that various lines which had been drawn were the actual routes of travel of the two motorcycles before the collision. However they were Sgt Teaukura’s theory of where those motorcycles were travelling.
[112] It is often difficult to separate fact from inference in these cases however, care needs to be ensured in sketch plans to show that what is factual information and where what is inference or theory otherwise it indicates that there is a hypothesis or a supposition are to be taken as facts. There are other difficulties with the sketches, the first as I have said they are not to scale and it is difficult to correlate them to the photographs despite the ...................... of the photographs to match the sketch plans. The pools of blood are not marked on the sketch plans and of course there is no debris shown on the sketch plans because there was no debris left on the road by the time the investigator arrived.
[113] The motorcycles were not properly examined. Sergeant Teaukura was careful to say that he was not an expert in the area. He had not undertaken a proper structural or mechanical inspection of the bikes. That was a perfectly proper response to give. However, in particular, he could not give evidence about the brakes or what type of condition the bikes had been in before or after the accident. He said he had left that aspect to the officer in charge. He did indicate that he had made a mistake in that he missed looking at the rubber tyres on the bike so he was unable to correlate any marks on the tyres themselves to the skid mark. Therefore, apart from the investigator’s theory of the case, it is not clear from the evidence which motorcycle caused the skid marks. According to the Snr Sgt, skid marks come before the scratch marks so on his theory of the case it must have been Mahara’s bike around the time the footrest on the left had side made the gouge on the road. However, he candidly accepted that he had made a mistake in not looking at the tyres and as I noted the footrest has not been found.
[114] The footrest might have been swept up with the debris when it was cleaned up on the night of the accident. It is also possible that the bike did not have a footrest to start with. Importantly, there were no reports on the bikes’ condition, before or after the accident. The officer in charge indicated that the rental company that owned Mahara’s motorcycle had carried out a report but no evidence of that was given. He also said the bikes did have current warrants of fitness. Therefore there is no evidence as to the structural or mechanical position with the motorcycles other than the observations of Sgt Teaukura and the photographs of the motorcycles from which it is very difficult to make any assumptions.
[115] The road was left open. It was a busy night, there were lots of people moving around as I have said, there was a period of about 7 hours when cars were going backwards and forwards on that site. Therefore, the possibility that other cars or vehicles had caused marks during that period cannot be entirely discounted. The road had been cleaned with a fire hose, no evidence was given as to the pressure or the extent of cleansing so it is uncertain as to where other surface markings caused in the accident were removed by the cleaning.
[116] There was no examination to match the tyres of the motorcycles to the skid marks nor was any detail about the nature of the skid marks. For instance, whether they had striations or otherwise which might have indicated which direction the vehicles were travelling. It is impossible to tell this from the photographs.
[117] In cross-examination the Snr Sgt Teaukura was unwilling to accept any other theory of the case than the one put forward by him. He was subjected to rigorous cross-examination in this regard and he was clear that his theory of the case was the only possibility. He was clear that he was reliant on the physical evidence and that the evidence of any person about what happened would have been irrelevant.
[118] I consider that it would have been useful if the Senior Sergeant had considered other theories of the case particularly if he had known that there was some suggestion that there was another motorbike in the vicinity. As to the physical evidence, he had made no measurements of the motorbikes despite his observations on the likely cause of damage to them. For instance, there was no information as to height or the distance between the location of the left foot pedal, or where it would have been, and the height of the bike which may have given some indication of who caused the marks. The fact that there was no in depth on the state of the bikes is of concern. Nor was there any attempt to re-enact the accident as sometimes happens to show how the damage might have occurred. This sometimes happens when crash investigators reassemble the bikes and then show them coming together to illustrate what might have happened in the accident.
[119] Sgt Teaukura was working with limited information. I have concerns about the accuracy of the sketches that he used given that they were supplied by Sgt Takai after the event. He did not have the benefit of the debris, the road had been cleaned off, he did not view the scene until seven hours after the accident and by that time, it had been cleaned presumably with some pressure by a fire hose. He did not have any information about the structural or mechanical assessment of the vehicles to know whether they had any defects, so he could not really comment reliably about the cause of the damage. He had just done a visual examination. He had not looked at the tyres.
[120] As indicated above, I am concerned about the crash investigation evidence and do not consider that a high degree of reliance can be placed on that alone as to what actually occurred. In addition, it seems there was another motorbike travelling quite quickly toward the scene of the accident from the airport only moments before the collision. There is some suggestion it was Mahara however, whether it was Mahara or a third party is irrelevant. This was a factor that should have been taken into account in considering what might have happened. There was another motor vehicle which Officer Lockington said passed her at speed and undertook a reckless manouver around her vehicle. It may for instance have clipped Vetina’s motorcycle so that she swerved into Mahara’s path causing him to swerve to the other side of the road. That is a possibility. While there was no damage to the rear of either motorcycle, according to Sgt Teaukura, I cannot discount the possibility there was another motor vehicle which came from the airport direction and hit one of the other motorcycles causing one motorcycle to swerve.
[121] In addition, Vetina was chatting to Pare who was leaning on her right shoulder. Pare described Vetina as excited that Reichmaier was coming to the school. Pare says it was hard to hear. They were probably both straining and their weight would have been on the right side of the cycle. In my view, it is also possible that Vetina had crossed the centre line in a moment’s inattention and it was Mahara who was swerving across to avoid her.
[122] However, it is not for the defence to prove its or any alternative theory of the case. It is up to the Crown to prove all the elements of the case beyond reasonable doubt. As is clear from my judgment I have a reasonable doubt as to whether it was Mahara who caused the act or omission which led to the death of Vetina and the injury of the pillion passengers. Therefore the elements of the case are not proved beyond reasonable doubt.
[123] In those circumstances, Mr Nicholas is acquitted of all charges.
[124] There will be an order for:

• (a) the return of the bond and the passport;
• (b) the return of the exhibits, or such of them that still exist;

[125] Mr George indicates he wishes to apply for costs. Counsel will put together a timetable application for the exchange of submissions on that issue. These should be addressed on the law as well as the facts.

_______________________
Justice Grice

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^[1] R v Jones [1986] 1 NZLR 1
^[2] R v O’Callaghan [1985] 1NZLR 198, [1984] 1CRNZ 370
^[3] The New Zealand legislation has now been changed in relation to the act or omission which causes the injury or death.
^[4] R v Walter [1959] NZPoliceLawRp 8; [1959] NZLR 1178