Jury throws out road-rage murder charge
The trial in Auckland was an epic fail for police and the Crown,
Difficult verdict, right verdict. There are times when it feels as if we are living in a mean, punitive age, that New Zealand society has become quick to condemn and mad keen to lock up. But something else played out on Wednesday afternoon in the High Court at Auckland, when a jury had the moral courage to reject a charge of murder in the trial of Brayden Towler, 28, who caused the death of Petunu Talitumu in a road-rage killing.
It was a violent death. Towler drove his Holden Commodore straight into Talitumu as he stood on the edge of a pedestrian crossing. Talitumu was thrown head-first into the windscreen. The glass shattered, his blood stained the roof. He died at the scene. Towler was arrested that night, on November 23, 2022, and said to a constable on the way to the Henderson police station: “I didn’t mean it”. Right then and there he provided his defence, that he had not intended to kill or even hit Talitumu, and the jury took him at his word.
They found him guilty of the alternative charge of manslaughter. There was no avoiding that verdict.
The trial was an epic fail for police and the Crown. They presented the jury with a garish, sensationalist narrative, accusing Towler of a road rage so abrupt and psychotic that he spun his Holden into a screeching U-turn in the Glen Eden shops and towards where Talitumu was standing with the deliberate intent to hit him at speed, take him out, execute him. “He was acting quickly to get it done,” Crown prosecutor Claire Paterson said in her closing address. But the verdict dismissed it as fantasy; it confirmed Towler’s defence that he was desperate to get away from Talitumu, and didn’t see him until it was too late.
“It was an accident,” he told police on the night of his arrest, and asked, “Did he die?”
IT ALL happened so . . . slowly, at first, the Holden doing about 14km/h when it turned into Glenmall Place on a warm Wednesday afternoon in early summer. Towler cut in front of a Ford Territory driven by Anna-Marie Taateo. Talitumu, her partner, was in the passenger seat. Taateo honked her horn. She claimed Towler shouted at her, “F*** up or I’ll put a bullet through you.” No one else told the court they heard this threat. She then pursued Towler, revving her engine, tailgating the Holden.
Witnesses described a startling sight: Talitumu got out of the Ford, and stood on its running board as the two cars continued along the onelane Glenmall Place. “I thought he was going to attack the guy,” said a woman who witnessed the strange procession when she stepped out of her barber shop for a cigarette.
Talitumu jumped off at the intersection of Glendale Rd. He hit the back of the Holden with his fist. Towler tried to turn right, but the Ford boxed him in. He turned left, then almost immediately performed a U-turn opposite the Glen Eden RSA. Witnesses thought he was travelling at 50km/h, maybe even 70km/h, but a car crash analyst told the court that his estimation was about 34km/h. The U-turn took three seconds. When Towler exited the turn, a Toyota was in his way. He served to avoid it and drove on to the wrong side of the road, where Talitumu was standing. “His injuries,” prosecutor Kristy Li told the jury, “were catastrophic and unsurvivable.”
Guilty verdicts are often reached quickly — sometimes probably even before the jury is sent out, their minds made up in the courtroom. The jury at Towler’s trial took an hour on Tuesday afternoon and then almost all of the next day to consider the evidence. Their verdict was not unanimous; the 11-1 majority suggested one juror held out, and wanted more than manslaughter. The prosecution case was strong. “This was a hit and run,” said Claire Paterson for the Crown, and that seemed neither garish or sensationalist, merely accurate: it was a fact that Towler drove away after his car struck Talitumu, and didn’t stop to check on his victim.
The defence case was . . . minimal. Towler’s lawyer Adam Couchman, assisted by Kate Blackmore, took a king hit when two witnesses were disallowed. The prosecution argued they did not have any probative value, that neither saw anything that happened on the day of the killing.
Couchman argued that they helped illuminate why Towler felt threatened: the witnesses were going to speak of previous examples of road rage displayed by Talitumu and Taateo. “They were acting as a team,” Couchman described the couple.
Justice Jagose favoured the prosecution argument. He ruled against the two witnesses giving evidence.
That left Couchman with only one witness to call in Towler’s defence. But it was one hell of a witness: car crash analyst Bruce Wilson is a kind of sanctioned, professional petrolhead. His father was a mechanic to racing car legend Chris Amon. In his 16 years with the police, he attended maybe 1000 crashes, 300 of them serious or fatal. He now works as an independent consultant.
He made four visits to the Glen Eden crash site and filmed himself executing a U-turn at the precise location. He studied the CCTV footage of the incident and made careful estimations of exact times, down to the millisecond (in contrast to the courtroom clock, which is still set one hour behind, on daylight saving time). “Velocity,” he lectured, “is distance over time.” His knowledge was formidable but his enthusiasm was even more evident. He used to drive a Holden Commodore, knew the car inside out, and clearly loved every inch of it.
His major contribution in the witness box was to analyse the Holden’s course after it came out of the U-turn on Glendale Rd. A Toyota was directly in front of it: “That would be the initial and present hazard to the occupant of the Holden.” Towler, then, had no choice but to swerve around the Toyota, into the wrong side of the road. Wilson was asked if there was time to veer back to the left. Answer: “No.” He expanded, “It’s my experience that people tend to make one decision when we drive, and we will stick to that decision.”
He was asked whether Towler, after making his U-turn, would have seen Talitumu standing on the road. He replied, “There are sometimes delays to recognising an object in front of us. Seeing is one thing, being totally conspicuous is another.” As well, he estimated there were only two seconds between coming out of the U-and striking Talitumu. The jury had their answer.
There was a curious subplot to the trial: the case of the toy gun. Towler faced a second charge, of presenting a firearm. He pleaded not guilty.
The curiousness of the gun was something that Couchman beat around the bush with stealth. He approached that particular bush carefully, circled it, looked at it from different angles, and only ever beat around it from a distance. He attempted to cast doubt about the gun’s existence; he also cast aspersions, sometimes through innuendo and sometimes through sorrow, on the police. “I don’t make these submissions with any joy,
‘It was an accident,’ Towler told police when he was arrested, and asked, ‘Did he die?’
believe me,” said Couchman, a former Crown prosecutor.
The first sighting of what may or may not have been a gun on the day of the killing was when a witness set off in hot pursuit of Towler’s Holden after he struck Talitumu. She said that Towler pulled a gun out of the window, and held it in a meaningful or threatening manner while making eye contact in the side view mirror: “I’ll never forget his dark eyes,” she said in court, “just like I’ll never forget I saw a gun.”
Kate Blackmore cross-examined her, and suggested that what she saw was Towler’s sleeve wrapped around his hand. “I seen what I saw,” the witness insisted.
One of the few certainties is that Towler did not possess an actual gun. Police photographed a plastic toy gun in the back footwell of the Holden. It had a long barrel, and looked like a real gun. After Towler was arrested, Detective Megan Harris found the toy beneath some rubbish in the Holden’s footwell.
Earlier that day, a constable made a note of another toy gun, in a bedroom. He pointed it out to Harris. But that gun was neither photographed nor placed in an exhibit bag.
Couchman cross-examined Harris, and asked, “Where’s that gun? Where’s the gun that was found in the house, because there should be two, shouldn’t there?”
She replied, “I recall making the decision that it wasn’t relevant . . . There was something to me that suggested that it wasn’t relevant, or it wasn’t the one we were looking for.”
Couchman: “Wouldn’t it have been sensible just to take a photo and log it as an exhibit?”
Detective: “Yes, it would have been sensible to do that.”
Couchman: “But in any event, that didn’t happen, and we’ve just got the one gun in the back of the car in the footwell, discovered by you under some wrapping?” Detective: “Yes.” Couchman: “Just in terms of this important decision of yours not to do anything more with the gun in the house, did you make a notation in your notebook?” Detective: “No.” Couchman: “At the point you were shown the gun, no other gun had been found?”
Detective: “I don’t think so.” Couchman: “So that’s the first thing you come across in terms of the order of guns, and you’ve not made a single note about it?” Detective: “No, I haven’t.” Harris was re-examined by the Crown, and asked, “Why did you decide it wasn’t relevant?”
She replied, “The size of the gun, and the realism of it, because people believed it was a real firearm, so in my head I was looking for something that looked like a real firearm … I didn’t think people would think that gun was real.”
In his closing address, Couchman said, “You’d think she would make a note of it. Nothing. Nothing in her notebook. Nothing at all.”
He described the police search, saying that two constables and an ESR team had left the scene: “The only person left was Detective Harris. At that point she decides to rummage around in the Holden, and finds the toy gun under a wrapper or two.” He repeated, numerous times: “There should be two guns.” But the only gun, on record, apart from a note in a constable’s notebook, was the longbarrelled toy pistol that Harris discovered inside the Holden, and which resembled a real firearm. He found it “significant” that when the prosecution called the constable who made a note of the toy gun in the house, they failed to show him a photo of the gun in the Holden and ask if it was, in fact, the same gun. “It’s hard to say,” Couchman ventured, “how the pieces fit together.”
The verdict of the jury, this time, was unanimous: not guilty. Epic fail for police and the Crown, #2.
The jury came back with two questions during their deliberations. Neither concerned the gun. They wanted to rewatch CCTV footage of the incident, and asked for a legal definition of the term “intention”.
THERE IS a legal definition for seemingly everything we ever do or even think; weirdly, though, there is nothing for intention. In chambers, the judge put it to prosecution and defence that he would give its English definition. Their response was that it would be preferable to have something a bit more than that, but Justice Jagose ruled that the dictionary would be good enough.
Collins dictionary defines intention as, “An idea or plan of what you are going to do.” Merriam-Webster puts it differently: “A determination to act in a certain way.” The judge streamlined it, gave it a kind of purity, when he told the jury that the definition is, “What did he mean to do.”
The verdict declared that Brayden Towler did not mean to kill Petunu Talitumu in Glen Eden when he hit him with his 2006 black Holden Commodore. He will be sentenced for manslaughter on April 22. Towler’s family will return to the High Court to hear the punishment. His parents, sister, and grandmother sat behind him throughout the trial, touching the glass that separated him.
Towler was taken back into custody after the verdict. His folks left the courtroom, and stood together in a daze in the courtyard. Friends and family of Talitumu approached them beneath the magnolia tree. There was no conflict. The two families held each other, weeping in bright afternoon sunshine. Towler’s nana, Maureen, wanted to make a statement. “We’ve both lost someone,” she said. “Our boy has gone, temporarily. Their loss is permanent. The family has shown such dignity.” She was grateful to Couchman and Blackmore, and also thanked the jury.
A few minutes later, a few jurors walked into the courtyard and sat in the shade of a wisteria. They looked exhausted. They looked like they had won a battle.