How two families battled with police over crash that killed loved ones

1:08 pm on 20 December 2021

Two West Otago families came to the police eight years ago seeking answers to a truck crash double fatality. The police, ultimately chastened by the coroner's findings this year, would apologise to the widows for their "narrow" and deficient work. Regardless, the families had been subjected to what became one of the country's longest and most fraught fatal crash investigations. So, what went wrong?

No caption

Photo: RNZ / Tim Brown

Part One

Dale Waitokia and Shona Brenssell of Tapanui took on the police, local and national, and won.

It is a hollow victory. Their husbands are gone. The women are not quoted in the story below - they have been in the media before, a little at least, and it is a stress for them. They have been through enough.

When their partners, driver Wayne Brenssell and his passenger, colleague and friend, Toby Waitokia were killed close to Christmas 2013, in a truck that flipped through no fault of their own on a moderate highway bend on a bright, hot summer's afternoon, the women could not have imagined how long and hard they'd have to fight to remove any taint of blame from the men.

Friend and the families' legal advocate, Denise Lormans, says the men are "loved, respected and are deeply missed".

The men were known, and are remembered, by the likes of Lyndon Chittock, 45. His family's fifth-generation 264ha sheep farm borders both sides of the road, where the truck crashed. Two white named crosses are in the grass.

"The family go there once a week nearly," Lyndon said. "They weedeat it. They planted two rhodondendrons there."

Barry Munro, Wayne's cousin, does the talking, bluntly, on the widows' and men's behalf. He has done so for years in their tiny support group that he calls "the five dumb monkeys", in reference to how he feels the police treated them, and which Lormans calls "Team Tapanui" to recognise the town's support. "We had calls from people and businesses all over the place offering help when it got out we were assisting the whānau," she said.

They needed help - "something had gone wrong", Munro said.

It couldn't be - as police would put forward across the first five investigation reports, that would multiply into an extraordinary 14 reports and reviews, at least, before the matter was done - that Brenssell had braked in the corner, and oversteered, and probably or actually caused the crash. "He's been driving since he was out of nappies, yeh," said his cousin, Munro.

It began in grief, and in some ways got worse. "I mean, it was bloody tough. The funerals were held at the school. And there was, I don't know, six or 700 people at both funerals."

Himself a driver of a Kenworth and digger for a living, Munro says the families only did what the two men, in turn, would have done for others, if need be. "They would be into the cops, because of the cock-ups," he said. "They would not be happy at all.

"That's the type of fellas they were. They wouldn't let anything rest until it was sorted out."

And neither did the "five dumb monkeys".

**************

The two men were just 15km outside Tapanui, their hometown, and halfway through their day delivering 23 tonnes of concrete panels from Wanaka to Lorneville, when they died, the truck tipping, then pivoting off the top of the panels strapped tightly with chains to two steel A-frames on the back, and slamming the cab roof into the shoulder of State Highway 90 in the early afternoon of 6 December.

Police initially stressed driver error but the families did not believe it. The to-and-fro, between officers trusted to perform investigations as best they can, and the grieving families who wanted to trust them, are caught in more than 1000 pages of mostly police reports and emails released by police, and NZTA, to RNZ under the OIA.

This year a new coronial finding said the load of panels held upright on the badly designed and badly cracked steel A-frames, most probably shifted, and the slightly undulating road surface, possibly combined with the semi-trailer's suspension, set up a lethal rocking.

"Probably", "possibly", and other equivocation make it into the coroner's reports, both in 2015 the first time around and even in 2021, and these words litter the earlier police investigation reports, and expert reviews, right to the end.

A poor examination of a crash scene, and lack of evidence gathering, can do that to a case.

Veteran crash investigator professor John Raine said: "There is absolutely nothing better than to get the best possible evidence from a site in order to try and reach a swift conclusion and the most accurate possible conclusion."

Raine has surveyed all the evidence there was from the Tapanui crash, for an expert group he convened last year at the behest of the coroner, to try to at last reach a resolution. "The evidence that was available to look at later on, was less complete than we would have liked," Raine said carefully.

Everyone is agreed that is what happened here, that the Gore police handled the scene poorly, there were too few photos of crucial tyre marks, and not all the wreckage was recovered. "Family members returned to the scene once police had finished examining it and located numerous items from the crash, including personal items of the deceased," the police would later admit.

Lyndon Chittock's father 'Chubby' Chittock found a steel brace torn from the A-frame supports at the scene, well after the police had left. The families picked the brace up in 2015 from the farmers, and say they dropped it into Gore police station. The A-frames were crucial to determining what had happened; the brace could have been key evidence, though if it were, by then it was inadmissable.

The families themselves found a personal GPS, left behind. "The level of what I see as callous disregard for the lives of these two men is astounding," Lormans said

Lyndon's mother Diane Chitton had been gardening at the farmhouse when the crash occurred around 1.30pm. She was first on the scene, then a milk tanker arrived and she dashed home, a minute away, and called 111.

Toby Waitokia

Toby Waitokia Photo: Supplied

"We thought the police investigation was pretty poor," said Lyndon. "They never asked mum a helluva lot. They could've said 'what do you think?' They never come up to my parent's house and went into it in depth with my parents, which they probably should have. Maybe they wouldn't have got much, but it could've helped."

A Serious Crash Unit (SCU) investigator, and a reviewer of the initial Tapanui crash report of March 2014, Senior Constable Karl Bevin of Waitemata, put it like this in early 2015: "There are conflictions throughout the report.

"The report author concludes there is no evidence of load shift. Respectfully, I suggest there is contradictory evidence, conjecture and suppositions, and I could not rule it out."

*******************

The Brenssell and Waitokia families were caught up in what, if not an actual turf war, was devolving into a damaging stalemate between sections of police.

The lead police investigator Alastair Crosland of the SCU, championed the driver error theory - based on maths and the evidence, he said. He tweaked the theory at least five times in response to the families' criticisms. He revised his report to the coroner three times alone within a few weeks of the first coroner's hearing in mid-2015 (at his superiors' bidding, he told RNZ).

Emails were flying in this period between Crosland, other police officers, and even NZTA chimed in.

"There is no evidence to say Brenssell applied the brakes in the curve," Jeff Fleury of Waka Kotahi emailed - Fleury had examined the crashed truck and cleared it of mechanical defects; Crosland pushed back: "All enquiries and re-examination of the evidence to date have substantiated my initial opinion on the day of the crash that this rollover was the result of braking into the curve."

What appalls Lormans, is that the email record shows several senior police officers were privy to the exchanges and the deep doubts expressed about the driver error theory "but they failed to do anything about it" at the actual inquest a month later in July 2015, when this theory was emphasised, she said.

A few officers did intervene on the families' behalf, over time, for which they were grateful, she said.

Crosland's work triggered multiple internal and external reviews from early 2014 up to 2020. An engineer concluded the fatigued A-frames were an accident waiting to happen but it still was not certain they failed and caused the crash. Crosland said he was kept in the dark.

"These investigations have been done in the background, with an an intent to undermine what I've been doing," he told RNZ in a blunt 30-minute interview.

"I've had no criticism from anybody that's qualified as a crash investigator. The criticism's not justified. As far as I'm aware, there are no mistakes.

"These guys were just talking off the top of their head to a large extent."

The reviews do not reflect that, and the reviewers included some very qualified people down the years -heavy vehicle engineer Richard Wilson (2014), a private-accredited Australian crash investigator RJ Ruller (2017), mechanical and forensic engineers Prosolve (2019), and Professor Raine (2020-21).

A second 83-page investigation in 2017-18 was done by a sergeant in the CVIU's successor agency, the Commercial Vehicle Safety Team - the CVST typically does its own sub-inquiry into a serious heavy vehicle crash, that it submits to the Serious Crash Unit, which collates all the reports to the coroner. The agencies are meant to get along, but Crosland says, "I do not know why the CVIU have been so uncooperative with me in particular".

Crosland accused Raine of "cognitive bias ... when you think of a proposal and you write up the evidence to fit it". Raine said to criticise the reviewers was "out of order" but he did not want to get into it, other than to restate his experience in doing 250-plus crash reports and witnessing the often awful results of vehicle dynamics.

The families were picking up hints of this background tension in the lack of the required clarity - and urgency - around the case, and sought a meeting with Crosland in 2015.

This was meant to address their concerns: Instead, six years on, this July, police apologised to them for their own lead investigator's "lack of compassion and empathy".

Barry Munro was there that day, with Dale Waitokia and Shona Brenssell.

"He said to us right at the start that it was very unusual to go and talk to the family," Munro recalled.

"He come down to explain to us exactly what happened. And he was an expert in crash investigations. And the family might not like what they hear about it.

"So he was more or less telling you, 'You don't know what you're talking about. What I say is gospel, and that's it'."

The police in a letter in July 2021 from Southern District Commander Paul Basham, acknowledged the families had found Crosland "rude" and that his attitude and language diminished the "mana of loved ones, inferring that they knew nothing about vehicle crashes".

Crosland, though, defends both his findings - he was highly-qualified for a police crash investigator, with a degree in the work he gained part-time from a UK university, and has attended hundreds of crashes - and his actions at the meeting.

"I didn't know they'd taken offence, and I certainly didn't do anything to cause offence," he said. "I explained in several different ways to try and sort of make sure they fully understood what I was trying to say. There could not be any mistakes.

"I did the best I could."

Crosland said the first he knew of this was when RNZ told him about the letter from Basham.

"I wasn't aware that an apology had been made on my behalf. I haven't been advised that an apology was necessary or even what the apology was for."

He added that if his police superiors were worried about the quality of his work, they did not show it; that after 2013 they never took him aside to upbraid or upskill him, and he continued working as before.

"I would expect them to tell me and explain why they thought it was deficient. But that was never mentioned, never raised. I continued doing serious crash investigations for the police - truck crashes, car crashes, motorcycle crashes. And I continued to work on this particular crash as and when comments or questions were asked."

Even now, retired from the force last year and living in Alexandra, he has done four crash investigations under private contract for the police this year, including one that went to court in Queenstown this month, he said.

Crosland is unapologetic. He is keen to express his strong views about the rigour of his own physics-based approach. A saying pasted to the bottom of an email from him quotes theoretical physicist Brian Greene: "Mathematics, when used with sufficient care, is a proven pathway to truth."

*********************

The truth at Tapanui had eluded seekers despite the inordinate amount of resource put into threshing the inadequate evidence.

But gradually, from 2017 on, Lormans says, when police realised they would not go away, things changed. Like a tanker with propellors akimbo from each other, the ship slowly turned. The shift could not come soon enough, she said. "They must have known, and appeared to acknowledge well before the first inquest, that the investigation was botched."

In late July this year, after the second coroner's findings had come out, several senior officers, though not Basham, arrived in Tapanui and gave the Commander's three-page letter to Dale Waitokia and Shona Brenssell.

They had produced the letter in response to an inquiry by the Independent Police Complaints Authority, which the families had complained to way back in May 2015.

The women did not open the letter on the spot.

They should have, said Barry Munro, who was there.

"They [police] come in and they're all lovey-dovey .. 'sorry to hear what happened', all this sort of rubbish. What we should have done is opened the letter while they were still there. If the girls had read that while the police were there, they'd of burst into tears in front of the police."

Instead, they burst into tears afterwards.

There was no genuine apology in the letter, Munro said. "It says they could have improved on their investigation. They might have made some errors."

It appears to him, the police, having made a "complete cock-up", wanted to walk away free, without paying compensation.

Lormans said the Commander's letter had been held up prior to the meeting as something really substantive. It was full of acknowledgement of 'learnings' but light on actual substance, and a "massive" disappointment to the women, she said.

"They were both so angry and disappointed after that meeting, even though the police would never have guessed it as they held themselves together (as we all did)."

The letter in part reads: "Police recognise and acknowledge that there will be no adequate response to the tragic circumstances involving the death of your loved ones."

It speaks of losing the families' trust and confidence and needing to rebuild it, of police's "sympathies".

"Your complaint will serve to remind the police that our interpretation and application of the law is constantly assessed by the public," Commander Basham wrote.

The letter does not use the word "sorry".

"The families shoved the letter in the back of a drawer," said Lormans.

They took it out again recently. Team Tapanui is not convinced enough has changed, to prevent this happening again, to someone else. They don't want that. There may be some fight left in them.

Get the RNZ app

for ad-free news and current affairs