The grieving widow of a man killed by a runaway van turned up to Tauranga District Court on Friday seeking an apology.
But during an emotionally charged and confusing sentencing hearing, Andrew Charles Cundy's victims, who were seated in the public gallery, were overlooked.
The hearing proceeded as if they were not present when in fact they were, resulting in the case being concluded and them walking from the court without the judge or police being aware.
Cundy, 40, from Pyes Pa was found guilty of a charge of careless operation of a motor vehicle causing the death of 53-year-old Shi Jun Zhang, following a defended hearing in May. But Cundy's lawyer Rachael Adams yesterday sought a discharge without conviction, arguing his degree of carelessness was at the "lower level of culpability".
The prosecution case centred around Cundy's failure to leave his work van in gear when he parked it uphill at the top of a steep driveway in Castlewold Drive, Bethlehem, in October 29, 2010.
About 10-15 minutes later, the handbrake failed and the van careered down the driveway and across the road at speed, collecting Mr Zhang and pinning him to the ground.
Mr Zhang, working on the foundations of his new house, had been standing in the driveway talking to two other workers when he was caught and dragged under the van.
Despite attempts to resuscitate him, he died at the scene.
During yesterday's hearing, Judge Robert Wolff was told that Mr Zhang's widow and other victims had returned to China and proceeded to hear legal arguments from Ms Adams on that basis.
Ms Adams said Mr Zhang's death was not due to a deliberate act of carelessness but the result of an "unexpected and inexplicable" failure of an otherwise well maintained, reliable van.
"Mr Cundy's error had been in his genuine failure to recognise the risk and to take active steps to prevent it. He is very deeply and sincerely remorseful ... Mr Cundy has struggled to accept he is responsible for the death of another person ... It's a very heavy burden for him to carry," she said.
Ms Adams said Cundy and his wife had met the victim's family to express their regret and condolences shortly after the accident and now offered $5000 to assist the victims with costs.
Because of the significant media publicity about this case, Cundy's character and reputation had been stigmatised, which was a significant punishment in itself.
But Judge Wolff rejected Cundy's bid to avoid conviction and ordered him to pay $5000 to his victims as compensation for emotional harm.
The consequences of Cundy's offending on him were not unique and the judge also noted it was not a one-off lapse.
"You say it was something you had always done and therefore it was a deliberate act."
Judge Wolff said: "In this case, the consequences of your carelessness were undoubtedly serious."
Police had come in for some criticism about charging Cundy but they were obliged to charge him and were right to do so, the judge said.
"I accept you have been the subject of significant publicity but I have no doubt the publicity has done some public good, educating everybody on the importance of not just relying on their handbrake."
Judge Wolff said he hoped the public would also recognise that Cundy had an otherwise blameless record and this was a case of carelessness "nothing more, nothing less".
But there was confusion over the family's presence in court yesterday.
Mr Zhang's widow, Jinfen Liu, and her son-in-law, Qin Weng, walked out of court after the hearing and spoke to the Bay of Plenty Times Weekend outside. Mr Weng said: "We don't really care how this happened but the result is a person is dead, my father-in-law is dead, and Mr Cundy has to take responsibility for that.
"There is no excuse for what happened. We know it was an accident but someone needs to take responsibility.
"A payment of $5000 is nothing, no amount of money is going to make it right. We want an apology."
The Bay of Plenty Times Weekend then alerted the judge and police to the fact the pair had been in court.
An upset Judge Wolff immediately called them into the courtroom and spoke briefly to Mr Weng and apologised for the oversight.
He asked them to return to the court at 2.15pm and asked Cundy to make himself available so he could hear from them in person.
But then the widow and her son-in-law failed to show up.
Judge Wolff told Cundy that, due to the hearing confusion and possible language difficulties, he was willing to meet him and the victims if they wished at a later date.
Sergeant Lester Polglase, of Western Bay road policing, said a meeting between the Cundy and his victims had taken place at Greerton Police Station about a week after the crash, during which he had apologised to Mr Zhang's widow, his son and daughter and other extended family.
Later yesterday afternoon, the widow and her son-in-law returned to court and Cundy took the chance to meet the victims again in private, he said.
"Mr Cundy's remorse is 100 per cent genuine. I saw it today when he met with the victims and apologised again for what happened, he was in tears," Mr Polglase told the Bay of Plenty Times Weekend.