Arani v Police - [2023] NZHC 3450

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-449

[2023] NZHC 3450

BETWEEN
NAFISEH JAHANMARD ARANI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 November 2023

Appearances:

S W Walker for Appellant

M C M Nash for Respondent

Judgment:

30 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 30 November 2023 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Samuel W Walker Legal, Auckland Meredith Connell, Auckland

ARANI v NEW ZEALAND POLICE [2023] NZHC 3450 [30 November 2023]

[1] This is an appeal against a conviction under s 38 of the Land Transport Act 1998 for careless driving causing injury. In a judge-alone trial before Judge J M Jelaš on 2 August 2023, Ms Arani was found guilty in respect of a traffic crash incident that occurred just after 2 am on Friday 18 March 2022 at the intersection of Queen Street and Wyndham Street, Auckland central.1

[2] The complainant was a cyclist travelling north down Queen Street. The appellant, Ms Arani, was travelling in a southerly direction up Queen Street, intending to turn right onto Wyndham Street. The collision occurred when Ms Arani made a right turn towards Wyndham Street, failing to give way to the cyclist because she did not see him. The complainant received injuries. The issue at trial and on appeal is whether her driving was careless.

Legal principles

[3] This appeal is pursued under ss 230(1)(b) and 231 of the Criminal Procedure Act 2011. Under s 229(1) a person convicted of an offence may appeal against the conviction as of right.

[4] Section 232(2) of the Criminal Procedure Act provides that this Court must allow the appeal if it is satisfied that:

(a)the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred; or

(b)a miscarriage of justice has occurred for any reason.

[5] A miscarriage of justice is defined in s 232(4) as any error, irregularity, or occurrence in or in relation to or affecting the trial that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.

1 New Zealand Police v Arani [2023] NZDC 18799 at [1]–[2].

[6] The principles from Austin, Nichols & Co Inc v Stitching Lodestar apply.2 It is for the appellant to show that an error has been made.3 This Court must take into account any advantages that the trial Judge may have had, including exercising the “customary” caution to a challenge to credibility findings based on contested oral evidence.4 But, if this Court comes to a different view of the evidence, the trial Judge must necessarily have erred and the appeal must be allowed.5

[7] In this case, the issue is whether the appellant drove “carelessly”. A person “drives carelessly if they do not drive with the degree of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3450
Decision Date: 30 November 2023

CaseChat Overview and Summary

In this case, Ms. Nafiseh Jahanmard Arani appeals against her conviction for careless driving causing injury, under s 38 of the Land Transport Act 1998. The incident occurred on 18 March 2022, when Ms. Arani collided with a cyclist at an intersection in Auckland. The cyclist sustained injuries as a result of the collision. The central issue in both the trial and the appeal is whether Ms. Arani's driving was careless.

The appeal hinges on whether the trial Judge erred in her assessment of the evidence, leading to a miscarriage of justice. The appellant argues that the Judge could not reasonably have found beyond reasonable doubt that she drove carelessly, citing issues with the credibility of the cyclist's evidence, the visibility conditions, and the cyclist's speed. Ms. Arani contends that the Judge should not have accepted the cyclist's claim that his bike lights were on, that his speed was not excessive, and that alcohol consumption should have played a larger role in assessing the cyclist's credibility.

The Court carefully reviewed the evidence, including CCTV footage and photographs, and found no basis to interfere with the Judge’s assessment of the cyclist's credibility. The Court concluded that there was a proper factual basis for concluding, beyond reasonable doubt, that the cyclist's lights were on. Even if that were not the case, the site of the accident was well-lit, and a reasonable and prudent driver should have seen the cyclist and given way. The Court held that the facts of this case were more analogous to Chen v New Zealand Police, where it was not vital for the prosecution to prove that vehicle lights were on, but rather that there was sufficient lighting for a reasonable driver to see an unlit vehicle.

Accordingly, the Court dismissed the appeal, finding no error in the Judge's assessment of the evidence or the conclusion that Ms. Arani's driving fell below the standard expected of a reasonable and prudent driver.

Orders