Manslaughter verdicts

Press, 9 July 1983, Page 5

Manslaughter verdicts

Two Americans from Operation Deep Freeze were found guilty of manslaughter in the High Court at Christchurch yesterday by a jury which deliberated for two hours. They were remanded on bail to August 26 for sentence. The couple had married after the fatal accident in Memorial Avenue last year, Mr Justice Cook and the jury were told. Elizabeth Mary Piwoski, aged 21, an electronics technician, and Virgil Joseph Smith, aged 25, an electrician, were charged with causing the death of Kresimir Peter Ivos, aged 17, by an unlawful act and thereby committing manslaughter. When the trial began on Monday the couple faced ar. alternative charge of driving motor-vehicles at a dangerous speed and causing the death of Mr Ivos, but after a direction from Mr Justice Cook on Thursday the Crown elected to proceed on the manslaughter charge only. The Crown alleged that Piwoski and Smith were racing powerful American cars along Memorial Avenue early on the evening of August 17, 1982, when the Mercury Cougar driven by Piwoski ran into the back of a Mini car driven by Ivanka Ivos, the mother of Kresimir Ivos.

The defence denied that the couple were racing and submitted that the accident was caused by the Mini moving into the right lane and the path of the Cougar. Messrs C. B. Atkinson, Q.C., and A. M. Mclntosh appeared for the Crown, Mr B. P. Henry and Miss N. E. McGowan, of Auckland, for Piwoski, and Mr P. D. Lublow for Smith. In his final address Mr Atkinson said that manslaughter was a serious charge that at times was committed by decent lawabiding citizens. He had not the slightest doubt that the two accused were honour-

able persons who had never been in trouble before and it

was most unlikely that they would ever face a charge again. They were charged with committing an unlawful act in a motor-vehicle which caused or substantially contributed to the death of a human being. Mr Atkinson said that he disagreed with Mr Henry’s submission in opening his case that the Crown had to persuade the jury that the accused had to be punished for being careless and negligent beyond that of the normal motorist. The Crown said that the conduct of the accused fell below that of a normal prudent motorist, and if that had been established then a verdict of guilty had to be returned. It was not right for the jury to equate the charge of manslaughter as one of practically murder. If the jury was satisfied that Piwoski had been driving at an excessive speed or failed to keep a proper lookout or a combination of both and as a result collided with the Mini car then that was sufficient to find her guilty of manslaughter. This was not a case of the Mini car changing lanes without warning into the parth of the Cougar as was claimed by the defence. Mrs Ivos, a cautious driver, had stopped at the “give way” sign in Kendal Avenue before turning left into Memorial Avenue. At that time two cars were approaching and Mrs Ivos saw neither because they were either too far away or that she did not look. It was for the jury to determine issues of fact. The evidence of Dr L. L Treadgold, the pathologist, about the injuries of the dead youth, those suffered by Mrs Ivos and the terrible damage done to the Mini car all pointed conclusively to the fact that it had been involved in a sudden, violent, high-speed collision.

According to the expert evidence called by the de-

fence, that damage was done by a vehicle travelling at 16 miles an hour faster than the Mini. The jury would use its common sense in assessing the value of that testimony. A number of witnesses had given evidence of what they saw immediately before and during the impact; the speed of the Cougar had been estimated at being at least 80 miles an hour and that the two cars were racing. Smith’s car, the Cobra, had drawn alongside that of the Cougar driven by Piwoski. All the Crown had to prove was that the speed was excessive in the circumstances. It was very apparent to eye witnesses that the two vehicles could not go on being driven at that speed without something happening. All the evidence pointed to the conclusion that Piwoski was driving at a grossly excessive speed, Mr Atkinson said. Mr Henry in his final address said that fatal accidents caused a lot of distress. For the rest of their lives both accused would carry a burden in their minds no matter what the outcome of the trial. Had they left five minutes earlier or later the young man would still be alive. The Crown alleged that

Piwoski had travelled down Memorial Avenue, a fourlane highway divided by a median strip, at 80 miles an hour, but that was denied by the defence. Manslaughter was one of the most serious charges in the Crimes Act and to establish the charge the Crown had to satisfy the jury beyond reasonable doubt that all elements of the offence had been proved, but that had not been done in this case. The Crown had to prove that Miss Piwoski had committed an unlawful act which was the sole or substantial cause of death, Mr

Henry said. The Crown case depended on the eye-witnesses who described their impressions of the speed of the Cougar at a time when it was getting dark.

An expert witness called by the defence gave an estimate of speed which corresponded to that given by one Crown witness and to the figure given to the police by Miss Piwoski shortly after the accident. Had Miss Piwoski intended to fabricate her story she would not have given a speed which was slightly in excess of the limit; she was no villian intent on outwitting the police. The noise, size and look of the Cougar all tended to give the impression of speed in the half light of dusk and naturally witnesses would be influenced in their impressions by the fatal accident which occurred. If there was any doubt it had to go to the benefit of the accused. It had to be remembered that the speed alleged by the Crown was virtually double that given by Miss Piwoski — a major discrepancy. A traffic expert called for the Crown estimated the speed of the Cougar at 130 km/h, and a similar expert for the defence estimated it at 76 km/h. Another serious disagreement among the experts was the gap in the skidding by the Mini car after it was struck. The common sense view was that while the Cougar and the Mini were in contact the Mini had great difficulty in turning and when they parted the Mini’s wheels were able to rotate.

Unfortunately, there was no substitute for a thorough analysis of the scene soon after the accident occurred, but the jury was denied the benefit of such evidence in this case. It was entitled to all the evidence, not just part of it.

The Crown had failed to do a proper reconstruction of the accident with adequate detail. It was Miss Piwoski’s commanding officer who had photographed the scene not long after the accident occurred.

The accounts by the eye witnesses were not consistent. Their evidence contained conflicts and contradictions. The Crown said that Miss Piwoski could be found

guilty because of inattention because she had looked in her rear vision miror — something the normal motorist did at intervals. If a driver did that and a child jumped out in front of his vehicle and was killed then he could end up facing a manslaughter charge. “We all feel sorry for Mrs Ivos as it was not pleasant to be driving a car in which her son was killed. While we feel tremendous compassion for her, that should not colour the judgment of members of the jury when deciding the verdict because it could result in a serious injustice,” Mr Henry said.

The law stated that when Mrs Ivos was turning left she had to go into the left lane nearest the kerb and stay there until the way was clear. Had she done that then there would have been no accident, but she went across into the right lane and there was no evidence that she signalled the lane change.

Miss Piwoski’s car was there but Mrs Ivos did not see it, possibly because of a blind spot in the Mini. She never saw the Cougar which had its lights on.

Miss Piwoski had no indication from the driver of the Mini that she was going to change lanes. The Cougar was not that badly damaged, which was not consistent with the speed that the Crown alleged it was travelling. It was not a high-speed collision as had been claimed, said Mr Henry. In his address to the jury Mr Lublow said that the jury had to find that Miss Piwoski had committed the very serious criminal of- ’ fence of manslaughter before it could consider any possible guilt on Smith’s part and then it had to find beyong reasonable doubt that he was a party to Piwoski’s driving.

The Crown had to show to the very high standard of proof required on a criminal charge that Smith had incited or encouraged Piwoski to race with him. Merely being on the same road was not enough nor was the fact that they were independently travelling at speed.