Chowdhery v Police - [2021] NZHC 1061

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000010

[2021] NZHC 1061

BETWEEN
MAHENDER CHOWDHERY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 May 2021

Appearances:

LM Deane and B So for Appellant HAM Watts for Respondent

Judgment:

13 May 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 13 May 2021 at 12.30pm

Registrar/Deputy Registrar

Date……………

Solicitors: Public Defence Service, Auckland

Kayes Fletcher Walker, Auckland

CHOWDHERY v NZ POLICE [2021] NZHC 1061 [13 May 2021]

Introduction

[1] Mahender Chowdhery is a bus driver. In 2018, he was charged with careless driving causing injury.1 The events leading to the charge arose while he was driving his bus.

[2] On 27 August 2020, Mr Chowdhery was convicted after a judge-alone trial before Judge T V Clark.2 At sentencing, the Judge invited Mr Chowdhery to apply for a discharge without conviction. On 7 December 2020, the Judge declined that application, as well as Mr Chowdhery’s related application to avoid an automatic driving disqualification.3 Mr Chowdhery now appeals against both his conviction and the Judge’s decision to decline his application for a discharge without conviction.

[3] The appeal against conviction is advanced on one ground only, namely that the Judge erred in her assessment of dash-cam evidence from the bus Mr Chowdhery was driving at the time of the accident. Mr Chowdhery says that the Judge went beyond her role as fact-finder by undertaking independent calculations based on the footage. Counsel for Mr Chowdhery, Ms Deane, submits, in effect, that expert evidence was required in order to make those calculations.

[4] The appeal against the refusal to grant a discharge without conviction is advanced on three grounds, namely that the Judge:

(a)did not apply the correct test when assessing the consequences of conviction;
(b)erred in assessing whether the consequences of conviction were out of all proportion to the gravity of the offending; and
(c)erred by not exercising her discretion to discharge Mr Chowdhery without a conviction.

1      Land Transport Act 1998, s 38(1). Maximum penalty 3 months’ imprisonment, a $4,500 fine, and a mandatory six months’ disqualification from driving.
2      Police v Chowdhery [2020] NZDC 17559.
3      Police v Chowdhery [2021] NZDC 27453.

[5] At the outset of the appeal hearing before me, Ms Deane confirmed that the primary focus of the appeal was the Judge’s decision not to grant a discharge without conviction. While confirming that Mr Chowdhery did not abandon his appeal against conviction, she acknowledged the difficulty inherent in that appeal, given the Judge’s verdict turned on her factual findings and credibility assessments. I consider the approach taken by Ms Deane both proper and responsible.

Should additional evidence be admitted?

[6] Before turning to the factual background to the appeal, I first address Mr Chowdhery’s application for leave to file additional evidence on his appeal. He seeks to admit a further affidavit from himself, which annexes:

(a)a letter dated 9 December 2020 from a case manager at…

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.

Keep reading for free

Create a free CaseChat account to read Chowdhery v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 1061
Decision Date: 13 May 2021

CaseChat Overview and Summary

Mahender Chowdhery is appealing his conviction for careless driving causing injury, as well as the District Court's decision to decline his application for a discharge without conviction. The appeal against conviction is based on the argument that the District Court judge erred in her assessment of dash-cam evidence from the bus Mr Chowdhery was driving at the time of the accident. The appeal against the refusal to grant a discharge without conviction is based on three grounds: the judge did not apply the correct test when assessing the consequences of conviction, she erred in assessing whether the consequences of conviction were out of all proportion to the gravity of the offending, and she erred by not exercising her discretion to discharge Mr Chowdhery without a conviction.

The Court found that the appeal against conviction must fail, as the Judge's finding that Mr Chowdhery had driven carelessly causing injury turned on her factual findings and her findings on the witness's credibility and reliability. The Court concluded that there was no error in the approach the Judge took to the evidence, and that expert evidence was not required before the Judge could make factual findings based on the dash-cam footage.

Regarding the appeal against the decision declining to grant a discharge without conviction, the Court found that to grant a discharge without conviction on the present facts would inappropriately interfere with NZTA's decision-making function on Mr Chowdhery's application for a P endorsement. The Court concluded that it is not clear that it is a conviction per se that gives rise to the risk of Mr Chowdhery not being granted his P endorsement, but rather Mr Chowdhery's offending itself. The Court found that it would be inappropriate to interfere with NZTA's ongoing decision-making process, particularly when the type of conviction involved relates directly to transportation safety. The appeal against the refusal to grant a discharge without conviction was accordingly dismissed.

Orders