Anyone can die on the roads. In the aftermath, families are left dealing with the wreckage, and trusting the crash investigation system to identify the cause, seek accountability and make the roads safer. The second of a two-part series looks at two Tapanui families waiting to have their trust in the system restored.
Stock image. Photo: 123rf
Even halfway into what would become a seven-and-a-half-year investigation, police knew they had a real problem on their hands with their Brenssell-Waitokia truck crash inquiry.
It was 26 July, 2017, and sergeant Lance King of the police's commercial vehicle safety team was vexed. He was working up an email, to warn his superior that a crash inquiry already bogged in disagreement and chain-dragging, was a PR disaster waiting to happen.
"This matter will be subject to Police Executive review and, I believe, immense media scrutiny," he wrote to Senior Sergeant Philip Critchley, in an email obtained by RNZ under the OIA that is part of a 1000-page cache revealing just how an investigation can go wrong.
King had been going through the five crash investigation reports done by then, and the four reviews of those reports, into a truck rollover in December 2013 that killed driver Wayne Brenssell and his colleague Toby Waitokia, near their hometown of Tapanui.
The reports were all from the same lead police investigator, Alastair Crosland, whose meeting in 2015 with the families of the deceased left them feeling, according to police, with their mana "diminished" and that "they knew nothing about vehicle crashes" - and that he was fixated on the idea of driver error. Crosland contended over and over that braking and oversteer caused the crash; later reviews focused on the load of heavy concrete panels, and the steel A-frames that supported it.
Police apologised just recently, in July 2021, to the families about that lack of empathy following a review requested by the Independent Police Conduct Authority. "The review acknowledges that the senior crash investigator had a narrow view as to the cause of the crash and wouldn't accept that the A-frame may have failed," Southern district commander Paul Basham wrote to the families.
The red flags had been popping up for years. They had not been dealt with.
"The calibre of materials gleaned so far has given Superintendent [Steve] Greally, national manager road policing, grounds to believe that a considerable risk to corporate reputation exists," Sergeant King wrote, in his 2017 plea to Critchley.
Greally was senior and had asked for the King review. But King's boss, Critchley, saw other duties stacking up around King undone, according to the email. King warned that any pause in his crash review would "hamper" progress. Nevertheless he did pause, to await yet another external expert's report. At this stage, it was already two years since the IPCA opened a file on the Tapanui crash. It closed it in August 2015, only to reopen it under family pressure.
"To say that this particular matter has far-reaching implications is not overstating the case," King told Pritchley.
King's review eventually was delivered up the chain months later, in 2018. It panned the original investigation: "It became clear very early on that many of the conclusions ... had no firm basis in fact and were therefore unable to be relied upon."
The lead investigator, Alastair Crosland, speaking to RNZ in recent days, is less than complimentary in turn about his then-police colleague, King's, work: "His report was basically nonsense from start to finish."
***
Lance King need not have worried about a media storm. There wasn't one, just a couple of stories in May and June this year on the second coroner's findings, about how the load and probably the slightly undulating road combined to cause lethal rocking of the semi-trailer, and that if Brenssell had braked at all it was as the vehicle was already tipping and was too late to save.
The stories quoted police praising the families: It had been a long, hard road for them, said Detective Senior Sergeant Malcolm Inglis. "They were determined to make sure they got the answers as to what caused this crash and took the lives of their loved ones."
Toby Waitokia. Photo: Supplied
A few weeks later, Inglis and two other officers went to Tapanui, to apologise face-to-face to Dale Waitokia and Shona Brensell. The meeting went badly for the women - they only just "held it together" in the face of an apology they believe lacked substance, said their legal advocate, Denise Lormans of the Southland Community Law Centre, who was at the meeting and had fought beside the widows for years.
What of King's "far-reaching implications"? He does not spell them out. Lance King and Malcolm Inglis referred RNZ's questions to Police National Headquarters.
But a case like this goes to the heart of the effectiveness of the country's crash investigation system. The test of the system is not the many, many crashes that are not complex in cause, but the ones that are.
Other cases have similarly raised questions about the authorities' response: The Desert Road deaths of two little boys that WorkSafe did not begin an investigation into for 10 months; the Turoa skifield bus fatal of a girl marked by "confusion and miscommunication" between police and WorkSafe, according to the coroner.
In the Tapanui case, the police in July said in their apology letter to the families that they had learned their lessons, and made changes so there would be no repeat and roads would "a safer place for all".
But their statement last Friday to RNZ is at odds with that letter in key respects. So what is the public to think?
***
Wrong or right?
* "There is no evidence to suggest that the original report was erroneous." - Superintendent Steve Greally, director of the National Road Policing Centre, to RNZ , December 2021
* "Deficiencies in the original crash investigation were identified." - Apology by Southern District Commander Paul Basham to Shona Brenssell and Dale Waitokia, July 2021
* "The serious crash investigator ... supplied six reports ... Numerous mistakes were made within those reports." - Detective Senior Sergeant Malcolm Inglis to Lance King, May 2017
The July 2021 police apology lists seven deficiencies, including - according to expert reviewers - the root cause of all that was to come. "Areas of the scene examination were lacking and more detail should have been recorded ... insufficient photos were taken at the scene at the time of the crash which hindered the review." Gore police were in charge of the scene examination.
The December 2021 statement refers to the first investigation report in March 2014 by the Serious Crash Unit's Senior Constable Alastair Crosland. This said: "The cause of the crash was braking in a curve". It said of the A-frames: "There was no evidence of any previously existing cracks or any evidence that the structure had collapsed before the vehicle rolled over."
However, engineer Richard Wilson in May 2014 found many existing fatigue cracks in the A-frames. He said the probability the A-frames failed, causing the accident, was "significantly high but it is not a certainty" and suggested they collapsed in the rollover itself.
The 2018 King report said Wilson looked at five failure scenarios for the load, but "the crash investigation report remained largely silent on any of these possibilities". An expert group rejected King's contention the A-frames collapsed completely, causing the crash, and thought they most likely partially failed. The coroner in 2021 found "the compromised structural integrity" of the A-frames was a starting point for the probable cause of the crash.
How many versions?
The families have seven versions of the Crosland crash investigation, including drafts, the last of which came just before the inquest in July 2015. Police released five versions to RNZ. Why so many versions if the original report was not erroneous?
* "The report writer reserves the right to amend the report to reflect their consideration of the evidence as a case evolves and further information becomes known. We have apologised for the distress this may have caused the victims' families." - Greally, Dec 2021
* "We apologise for the protracted nature of the review and for any anxiety caused." - Police apology, July 2021
* "Ordinarily I would only prepare one report and perhaps an amendment if further information came to light. However, in this instance, because my report did not support a structural failure, an ongoing series of allegations were made by police management suggesting that I had failed to consider some of the hypothesis on the file. Each time, I was expected to include this additional information in my report." - Alastair Crosland to RNZ, Dec 2021
One change was necessitated by a supposed witness of the crash later being shown not to have witnessed it.
Every avenue?
* "As crash investigators our role is to ensure that every possible outcome is explored to ensure we determine the correct cause of the crash for the victims' families and to ensure any learnings or those responsible are held to account to prevent further death and serious injury on our roads. ...The second investigation [by King] did find an alternative cause for the crash, however it is important to note no one cause of the Tapanui crash could be determined, which was also reflected in the final coronial investigation." - Greally, Dec 2021
* "The review acknowledges that the senior crash investigator had a narrow view as to the cause of the crash and wouldn't accept that the A-frame may have failed." - Police apology, July 2021
* "As far as I'm aware, there are no mistakes." - Crosland, Dec 2021
Australian crash investigator R J Ruller asked in 2017 why the crash reports had no overall history of the A-frames, or of Brenssell's driving career (he was known as a safety-conscious driver). He stated over and over: "There is no physical evidence which would support this statement". Ruller was certain of one thing: "There is no evidence which would support any determination of driver error being a factor in the cause of the crash."
Lormans told RNZ one single cause was not found because the police failed to do their job thoroughly, even - as police admit occurred - leaving behind evidence at the crash site. "Since when is it acceptable for a group of family or friends to go and retrieve personal items and parts of wreckage?" she asked.
Raine in June 2020 said in an email to an NZTA official: "You will be aware that Alastair Crossland [sic] is very firm as to cause, although others who have looked at the evidence and done reports, myself included, believe that there was a possibility or likelihood of one or both A-frames supporting the concrete panels having finally begun to structurally fail (they had major fatigue cracking) and a shift of the load centre of mass caused the rollover."
'Lack of compassion'
"The senior crash investigator's attitude and language was received by the families as being rude and demonstrated an overall lack of empathy ... Police do not condone any Police member using language that is inconsistent with our values. Police apologise for the lack of empathy and compassion." - Police apology, July 2021
The December 2021 Greally statement makes no mention of this, but says: "The former officer retired from Police in November last year. Following his retirement, he has been contracted to assist with other serious crash investigations."
RNZ wished to know if police had trained Crosland after the Tapanui crash to deal with the problems their apology said they identified. Police replied: "New Zealand Police has the same privacy obligations when it comes to employment matters as any other employer, and as such, we are not in a position to provide any further information."
Crosland said he was not told there were deficiencies in his work, given training, and was not aware police apologised to the families in July 2021 for his behaviour. He had done four crash investigations for police under contract this year, he told RNZ.
Tensions
"Serious crash investigators are highly experienced staff... Police have a mandatory national serious crash investigation policy to allow an independent peer review." - Greally, Dec 2021
Crosland said he was kept in the dark by police, from early on in 2014. "They just engaged an engineer and then presented this report as a fait accompli, 'Look, we've got an engineer says you're wrong'. And that's when it all went belly up.
King criticised Crosland's reports, and police told RNZ that King was "suitably qualified with extensive experience in investigating crashes, including heavy motor vehicle crashes". But Greally said there was no evidence the original report was wrong.
Crosland hit back at King and his process: "King did not contact me, seek clarification, or discuss any issues before preparing his report... King does not have any crash training or field experience with crash scene evidence."
Crosland said he was never interviewed for the Independent Police Complaints Authority (IPCA) inquiry that began in May 2015. "I don't know what the complaint was, it was never communicated to me".
Outcome
*"Police have acknowledged the lessons drawn from the issues raised in the review and have taken appropriate steps to ensure that they do not happen again. Police recognised and acknowledge that there will be no adequate response to the tragic circumstances involving the death of your loved ones. Your complaint will serve to remind the Police that our interpretation and application of law is constantly assessed by the public." - Police apology, July 2021
* "I agree that it is inaccurate and unfair to state that the braking input by Mr Brenssell was the cause of the roll-over." - Coroner J P Ryan's findings, March 2021
The December statement does not go into this.
***
The 2017 warning about reputational damage made no difference. On the case dragged. It would take another two years for it to get back to the coroner, and only after the Chief Coroner and Solicitor-General's interventions.
However, the families believe 2017 was the turning point, and say some officers intervened to turn it around, for which they are grateful. Wayne Brenssell's cousin Barry Munro, and his wife Heather, were in the core group that Detective Senior Sergeant Malcolm Inglis would later praise for their grit and resilience. "The thing that stands out, as far as the investigation, was the the brick walls that we hit when we started asking questions," Munro said.
They persisted, and prevailed. So the group came to the meeting in the town with police in the middle of this year, expecting an unconditional "sorry" and a solid demonstration that all the implications that had worried Sergeant King, had been addressed, for the sake of the whole crash investigation system, not just their own case.
They feel they are still waiting. Left hanging, too, is the question of accountability, both for the investigation and for the crash itself.
Munro recalls of meeting Inglis that day in July, that they asked him whether "naturally there'd be compensation?", given several police officers with decades of experience had botched things so badly. He recalls Inglis told them this would go nowhere because there was "no malicious intent".
The July apology acknowledges the family feel let down over police interactions with the men's employer, Calder Developments.
They were unable to get any resolution or reparations through the courts. No one was charged.
The police in their apology admit they were just too slow at the start, while emails show they were too rushed at the end.
The deadline to lay charges in this case was six months, 6 June, 2014.
Because it was a crash on the job, WorkSafe was notified. Either it or police could investigate if there were health and safety breaches.
WorkSafe's records are scant, the OIA documents show. It was first notified of the crash four days after it happened, by the company, on 10 December.
"Due to the sensitivity of the issue not much information was provided," the WorkSafe file said.
It added that same day: "File Status: Closed; Outcome: Resolved; Recommend Prosecution: No."
The form provides no details of what happened or even where. The dates suggest the file was closed before WorkSafe knew that Gore police were investigating the crash.
The next WorkSafe entry is not till after the Christmas holiday break, 20 January, 2014, after an officer phoned Calder Developments. They recorded: "It is unclear exactly what has happened, NZ Police are investigating the road accident (and under HSE [Health and Safety 1992 laws]).
"Something has happened to the truck and it has collided with another vehicle."
There had been no collision. WorkSafe's records are not just short, but wrong.
Road crashes were not a high priority for WorkSafe, until last year when it began to change tack. WorkSafe usually cedes work-related crash death investigations to the police, who have delegated powers under health and safety laws to look into them. It did that in this case.
But police had their own problems. They had only got a video interview done with Calder Developments on 19 May 2014, with the 6 June deadline to lay any charges looming.
Emails show Senior Constable Richard Bates in the CVIU said a "thorough investigation" had identified two health and safety breaches, around employers ensuring the safety of workers, and training. He recommended prosecution against Calder Developments.
This centred on the A-frames. Reviewers said they were badly designed, badly maintained and badly cracked - in an "appalling" state, Raine says repeatedly. J-hook anchors used on the load were also below design standard. The frames had been used more than 50 times before, and Brenssell had carried prefabricated panels hundreds of times, without incident, but not on a semi-trailer as he was that day.
But at the same time, other officers were still focused on Crosland's finding that the cause of the crash was the driver braking in the corner.
Police had talked to WorkSafe, which said it could help with wording the charge, but "ultimately" it was police's call, emails show.
With mere days till deadline, Wellington police headquarters said it wanted a proper WorkSafe legal peer review, as was "common practice".
That did not happen. It was too late.
Three days out, the course was set not to prosecute. The CVIU's South Island manager, Senior Sergeant Warren Newbury, said "I am now of the opinion that we perhaps need to follow the view of ..." and the name is blanked out, and issue a Prohibition Notice and an Improvement Notice to Calder.
And on 6 June, that is what happened.
Malcolm Inglis later told Lance King that police's legal section "came back saying there was insufficient for a prosecution to proceed".
The police apology to the families in July this year reveals the file only got to their legal section two weeks before the deadline. "There are several reasons for this, including the complexity of the crash and the timing pre-Christmas when key staff went on leave."
Time restrictions had scuttled the desired WorkSafe legal review, and "the recommendation resulted in the company not being prosecuted", the apology said.
"Police acknowledge the length of time that was taken to make a decision."
Calder Developments contract manager Lynne Calder provided an email to RNZ:
"As we have advised previous reporters and we urge you, to report in a balanced way that accurately represents the outcome of the coroner's findings, particularly as the 'experts' that you refer had not, as we are aware, viewed or tested the A-frames. There has been no finding that a direct cause of the accident can be linked to the A-frames.
"There were many factors that were considered by the coroner and the reasons are given clearly within the decision, an incorrect emphasis should not be reported. We are not aware that the police did not lay charges due to time pressure.
"This was a tragic accident for the families and all of those at Calder Developments having lost two employees and had and still has, a huge impact on our small family-run company," Lynne Calder wrote.
***
Anyone can die on the roads, and any family can be thrown into a tragedy. The Tapanui case is unusual for just how fraught it became, but other crash investigations have struggled to identify a cause, seek accountability and safeguard the bereaved. It is not just investigators who can struggle, but their legal departments that scramble and finally trip at key junctures, with far-reaching consequences for families.
The police apology mid-year says their review of the Tapanui case "has provided a lot of learnings", weighed against Superintendent Greally's December statement that "there is no evidence to suggest that the original report was erroneous".
For John Raine, the lesson of Tapanui revolves around confronting gaps in the evidence and contentious matters sooner: "It's a greater risk where a case doesn't go to trial. Because in that case, additional experts are likely to be brought in ... and that would happen much sooner," Raine said.
"So I think there may be a flag there that, where something is simply going to be a coroner's inquest, there's a good case for trying to expedite that as well and get other experts looking at reports and so on. If, for example, other experts had been brought in to do a review of the available reports around 2015, then, perhaps the coroner's report might have been available late 2016. That would have saved, you know, getting on for five years."
Back in May this year, police told the media: "It is our expectation that any [coronial] recommendations are met to ensure our roads are a safer place for all."
Those recommendations were for tougher checks on the design and manufacture of A-frames, which, as the coroner noted, are very little regulated.
The transport agency Waka Kotahi told RNZ it was drafting changes to the truck loading code to align with WorkSafe guidelines on A-frames, and the Heavy Vehicle Rule would also be reviewed.
The apology to Shona Brenssell and Dale Waitokia was also more personal, with Commander Basham telling them: "Central to our focus in delivering services that New Zealanders expect and deserve, is rebuilding your trust and confidence, which was clearly lost following the initial investigation of this crash."
RNZ chose not to re-interview the two women for these reports. They communicated through Denise Lormans that they are not convinced by the apology.
Back in May, Dale took a moment out from her customers at the Tapanui Four Square to speak to RNZ about the second coronial finding that had just come out, exonerating Wayne Brenssell.
"When you know something's not right, don't accept it lying down," she said.
"Just because the police or somebody tells you it's right, doesn't mean it is. So just stand up and fight."