The wreckage of the Subaru in which two men were killed and the campervan driven by Reiss Berger. Photo / Supplied
It was "probable" a double-fatality in the Far North came after a driver deliberately steered his car at an oncoming campervan, a court judgment says.
Police have been ordered to pay $30,000 legal costs to the tourist whose campervan was struck by the car, and who was originally charged with aggravated careless driving causing death and injury.
The charges were thrown out of Kaikohe District Court and the highly unusual costs award granted by Judge John McDonald after an investigation by former police detective Mike Sabin.
Sabin identified the driver, Yvarn Tepania, 24, as in the grip of a methamphetamine addiction and suicidal in the months before his death.
The 2018 crash in the Far North involved a Subaru carrying four men, driven by Tepania, and the campervan in which US visitors Reiss Berger and his girlfriend were travelling.
Tepania and his cousin James Hamiora, 26, were killed and Berger, aged 21 at the time, was charged over their deaths less than four hours after the crash.
Charges against Berger were upgraded to aggravated careless driving causing death and injury before his first court appearance two days later, by which time police had statements from both US citizens alleging Tepania was in the wrong lane.
Berger's statement said: "My clear recollection is that I travelled around the left-hand bend immediately before the accident on my correct left-hand side of the road and only swerved into the other lane when confronted by the alleged victims' vehicle in my lane."
His partner Dita Cavdarbasha told police: "As we came around the left-hand corner, I saw very bright lights directly in front of us. I started yelling. I was conscious that after seeing the bright lights, our car moved or swerved."
The turning point in the case was Hamiora's father, Steven Samuels, approaching police to provide information about Tepania's state of mind in the months leading up to the crash. When police didn't respond to Samuels' approach, he told the defence he believed a mistake had been made and that his nephew had deliberately driven at Berger's vehicle.
"I was concerned that there was a reasonable possibility, from what I had learned, that Yvarn Tepania in fact was committing suicide in the accident," Samuels told Kaikohe District Court.
Samuels' approach to defence lawyer Mike Dodds led to a search for more information by Sabin, who was once Northland's MP and is now a private investigator.
Sabin's investigation led to interviews with Tepania's friends and former partner in which they sketched out the young man's collapse into methamphetamine addiction and the suicidal ideation that went with it.
Troy Sabine, the Crown's key witness, expanded on information he provided to police when interviewed by Sabin. In a second statement, he talked of Hamiora and Tepania arguing about scoring meth in the hour leading up to the crash.
His statement also detailed Tepania driving at speed, swerving into the wrong lane, narrowly missing a car before he appeared to steer at the campervan driven by Berger, taking his hands from the wheel before impact and saying "sorry cuzzies" to those in his car.
Other evidence compiled by Dodds included the presence of alcohol and meth in Tepania's blood at the time of the crash and his suspended driver's licence. Dodds also found Tepania had recently been charged with drink driving - charges that were dropped after his death and not revealed by police until a year after they were laid.
A crash investigator's report prepared for the defence also raised "fake left syndrome" - a known phenomena in crash investigations in which a driver attempts to avoid a driver on the wrong side of the road by using the oncoming lane.
Dodds also presented evidence of a Champagne box said to hold drug paraphernalia that was allegedly given to Tepania's family by police from the wreck of the car.
Tow truck operator Dimitrios Zaloumis told Sabin a constable from Kerikeri police had visited the yard with Tepania's mother and sister to recover personal items from the Subaru. Zaloumis said he watched the constable and Tepania's family members remove clothing, phones and papers from the wreck.
Zaloumis said he was aware the vehicles were still police exhibits so asked for the items to be laid out on the ground and photographed by the constable to keep a record of what had come out of the car.
"There was also a gold Champagne box, like a flash box. Inside that was a black sock with a P pipe inside it. Under the sock in the tin was a few small plastic zip lock bags just like all the other point bags I see come through here in vehicles.
"It was very distinctive. It had like holographic patterns on it. Very blingy. Very shiny."
Yet when Dodds sought copies of the photographs through the discovery process, he was told they did not exist because they had been deleted through a technical malfunction.
Dodds had sought $150,000 from police on the basis the charges should never have been laid and that police had proceeded with the prosecution in bad faith.
Judge McDonald said there was sufficient evidence to charge Berger after the crash with the two cars coming to rest on the wrong side of the road. He also disagreed over the police acting in bad faith.
But he was critical of police failing to properly protect the vehicles and their contents when they were exhibits although he said little turned on it in relation to the charges.
He said the case had required further investigation by police, particularly as evidence came to light revealing Tepania's blood-alcohol level and methamphetamine use, and the further statement by Sabine that undermined his value as a Crown witness.
Judge McDonald said it was "probable" that Tepania "tracked Mr Berger as Mr Berger moved to the wrong side of the road to avoid Mr Tepania driving towards him on his correct side of the road".
"This case was not difficult or complex. It did require a crash expert and private investigator to be engaged. Mr Dodds repeatedly asked for the case to be reviewed. It was the police who could have done better."
The coroner's office accepted McDonald's judgment as the ruling on Hamiora and Tepania's cause of death.
Far North Area Commander Inspector Riki Whiu said police had made the right call to charge Berger - a decision supported by the Serious Crash Unit report and reviews of the prosecution file by "experienced and senior officers who reviewed the file". It was a decision Judge McDonald endorsed in his ruling, said Whiu.
Asked if police agreed with McDonald's finding it was "probable" Tepania steered at Berger's vehicle, he said: "The prosecution evidence is that Mr Berger was on the incorrect side of the road at the point of collision."
Whiu said "inferences" about Tepania's state of mind had "caused great offence to his whānau".
He said withdrawing charges after defendants died was "standard practice" but a change in prosecutors in the case meant delays providing that information to the defence.
Whiu said all property taken from the vehicle was examined by the constable and recorded in her notebook and did not include the box described.
"There is absolutely no evidence from her of any gold box containing drug utensils and paraphernalia being present at the time she attended or returned by her to the family."
He said a "possible explanation" for the absence of photographs was that the constable's device was rebooted during which all information on it was deleted.
Whiu said changes had been made since the crash in 2018 with two serious crash investigators now working on similar incidents.
He said a full review of the handling of the case had been planned for February but had been delayed.
Where to get help:
• Lifeline: 0800 543 354 (available 24/7)
• Suicide Crisis Helpline: 0508 828 865 (0508 TAUTOKO) (available 24/7)
• Youthline: 0800 376 633 or text 234 (available 24/7)
• Kidsline: 0800 543 754 (available 24/7)
• Whatsup: 0800 942 8787 (12pm to 11pm)
• Depression helpline: 0800 111 757 or text 4202 (available 24/7)
• Anxiety helpline: 0800 269 4389 (0800 ANXIETY) (available 24/7)
• Rainbow Youth: (09) 376 4155
If it is an emergency and you feel like you or someone else is at risk, call 111.
The participant's death was unrelated to the pilot, according to Oranga Tamariki.