Arani v Police
[2023] NZHC 3450
•30 November 2023
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 care and attention that a reasonable and prudent driver would exercise in the circumstances”.6
Grounds of appeal
[8] The ground for appeal is that the Judge could not reasonably have made a finding beyond reasonable doubt that the appellant drove carelessly.
[9]In particular:
(a)there was an insufficient factual basis for concluding to the criminal standard of proof that there were lights operating on the complainant’s electric bike;
(b)the factual finding did not take sufficient account of the complainant’s excessive speed;
(c)the conclusion about visibility was not substantiated to the requisite standard; and
(d)issues of alcohol consumption should have been given more weight in assessing the credibility of the complainant, in turn impacting on the above issues.
2 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3 At [4].
4 At [13].
5 At [16].
6 Savieti v New Zealand Police [2021] NZCA 176 at [32], referencing Simpson v Peat [1952] 2 QB 24 at 27–28; followed in Police v Chappell [1974] 1 NZLR 225 (SC) at 228.
[10] The appellant places particular reliance on an analogous case, Broderick v New Zealand Police.7 In that case, the High Court allowed an appeal, and quashed a conviction of careless driving in breach of s 37(1) of the Land Transport Act. The starting point was that the Court had to be satisfied beyond reasonable doubt that Mr Broderick did not keep a proper lookout and that his conduct contravened the required standards. In that case it was accepted that Mr Broderick’s driving could only have been described as careless if:
(a)the moped that was hit by the appellant had its lights on; or
(b)if the moped’s lights were not on, there was in any event sufficient light for a reasonable driver to see the unlit driver in the prevailing conditions.
[11] As to whether the moped’s lights were on, the Justices of the Peace who presided over the first instance hearing could not reach a decision after hearing all the evidence. On appeal, the High Court agreed with their conclusion that the police had not established beyond reasonable doubt the fact that the moped’s lights were on.
[12] On the second issue, the Justices of the Peace decided that Mr Broderick ought to have been able to see the complainant before impact because of other lighting in the street and his own headlights. The High Court held that the Justices of the Peace had erred in their assessment of that issue. The accident happened at 6.45 am on a dark winter’s morning and the complainant was wearing a dark outfit. It was apparent from the plan and photographs that the layout of the intersection was such that the dipped headlights on the reasonable driver’s car might not have picked up the complainant in the intersection before he or she commenced the right hand turn into the car park. The High Court was satisfied that a reasonable driver might well not have seen the moped until the last few seconds before impact.8
7 Broderick v New Zealand Police HC Whangarei CRI 2009-488-4, 26 April 2010.
8 At [15].
[13] The appellant contends that the same analysis applies in this case. The complainant gave evidence that lights would have been operating on his electric bike because they automatically turn on when the bike is pedalled. However, that evidence should not have been treated as credible, and the photographs of the electric bike taken by Constable Morris after the accident (photographs 11 and 12) do not clearly show that the bike had lights. Constable Morris stated on the traffic crash report that “The bike had no lights”, and this at the very least creates reasonable doubt on the issue, supported by the fact that Ms Arani did not see the cyclist (whereas she would have if the bike had lights that were on at the time).
[14] The appellant contends that the complainant was not credible on this issue, for the following reasons:
(a)his statement that he had only three to four beers was not in line with the accepted blood ethanol reading;
(b)his assertion that he was wearing “contrasting black and white” clothing was inconsistent with the fact that only black clothing was visible from the front (the white hood fell down behind his back);
(c)his recollections about the route taken and speed called into question his reliability; and
(d)insufficient weight was given to other evidence indicating that the bike did not have lights and/or were not on at the time of the accident.
District Court decision
[15] On the key issue of whether the complainant should have been visible to the appellant, the Judge accepted that the complainant was wearing dark clothing, and the colour of the bike was dark in shade which made it more difficult for it to be seen. More problematic was the evidence about whether or not the bike had lights on at the time of the accident.
[16] Detective Constable Moss and Constable Morris, who both attended the accident, gave some evidence on the point. Detective Constable Moss was not immediately sure if the bike had a light but, retrospectively looking at photograph 12, he thought he could see one in the middle of the front handlebars. The traffic crash report prepared by Constable Morris recorded “The bike had no lights”, but with the passage of time she had no independent recollection of where that evidence came from or whether the statement was true or not.
[17] The Judge ultimately relied on the evidence of the complainant on that point. In his evidence, the complainant confirmed that his bike has reflectors and multiple lights, including a light at the front. Critically the complainant explained that, because it is an electric bike, the lights go on automatically when the bike is pedalled. The Judge assessed that evidence as credible and consistent with what he considered to be a light visible in photograph 12.9
[18] On the issue of speed, the Judge assumed that the complainant was travelling at around the speed limit of 30 kilometres and possibly “slightly over” that limit but, even if that were the case, the Judge concluded that speed would not have been a contributing factor to the appellant not seeing the complainant on his bike, having regard to other conditions (it being a straight road with good visibility from the street lighting and shop lighting).10
[19] On the issue of intoxication, the Judge did not consider alcohol to be a relevant factor. While the complainant may have drunk more alcohol than he said, this was causatively unrelated to the accident, and the reliability of any estimate of alcohol consumption was understandable in the circumstances and did not undermine his overall credibility.11
9 New Zealand Police v Arani, above n 1, at [18].
10 At [20]-[21].
11 At [24].
Analysis
[20] I have considered the points raised by the appellant and have reviewed the evidence, including the CCTV footage and photographs. I do not consider that the Judge erred in accepting the cyclist’s evidence that he had his lights on.
[21] In terms of the credibility of the complainant, I do not see any basis for interfering with the Judge’s assessment of his reliability. The Judge heard the complainant’s oral evidence and was well-placed to assess his credibility,12 also consistent with other evidence. The level of alcohol consumption was not relevant to causation of the accident, and an inaccurate recollection about the number of drinks consumed that night was understandable in the circumstances of the accident. The complainant’s evidence about the colour of clothing worn was accurate, as seen in the CCTV footage, even if he did not think through the visibility implications from the perspective of a driver coming from the opposite direction. In terms of his statements about what he could recall and not recall, this demonstrates his efforts to be truthful. His statements about speed are consistent with the evidence, rather than demonstrating unreliability.
[22] I agree that a light does seem apparent in photograph 12 in the middle of the bike’s handlebars. This is inconsistent with the crash report note by Constable Morris that there were no lights. She may simply not have noticed those lights, because they are also black and would not have been lit while the bike was stationary. Given that Constable Morris did not see any lights, she did not test whether they functioned automatically when the electric bike was pedalled. This is something that the complainant would be expected to know as the owner and regular rider of the bike. He was under oath, and I have no reason to interfere with the credibility findings of the Judge on that issue.
[23] Even if the lights had not been operational, the Judge also found that it was “a very well-lit area on a straight road with good visibility”.13 This is evident from the CCTV footage and the various photos of the accident area. I accept that there are trees
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].
13 New Zealand Police v Arani, above n 1, at [25].
lining Queen Street to the south of the intersection that could have caused some shadowing, but this does not obstruct comprehensive lighting of the road from both street and shop lights. While not expressly stated, I accept that even if it could not be proved to the requisite standards that the lights were switched on, a reasonable and prudent driver would still be expected to see a cyclist riding north across this intersection and would not have made the right hand turn without giving way.
[24] The facts are distinguishable from Broderick and instead are analogous to Chen v New Zealand Police.14 In that case the High Court explained that it was not vital for the prosecution to prove that vehicle lights were on. What had to be proven was that either the lights of the vehicle were on, or that there was sufficient lighting for a reasonable driver to see an unlit vehicle.15
[25] Overall, there was no error in the finding that the appellant’s driving fell below the standard expected of a reasonable and prudent driver. 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 factual findings were that the site of the accident was well-lit. In those circumstances, it is reasonable to expect a driver to take reasonable caution and see and give way to a cyclist going straight, even one wearing dark clothing on a dark bike without lights.
Result
[26]Accordingly, I dismiss the appeal.
O’Gorman J
14 Chen v New Zealand Police HC Auckland CRI 2010-404-344, 22 February 2011
15 At [33].
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