Chowdhery v Police
[2021] NZHC 1061
•13 May 2021
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 Waka Kotahi New Zealand Transport Agency (NZTA), proposing to decline Mr Chowdhery’s application for a passenger licence (P) endorsement (though noting that no final decision had been made, and that Mr Chowdhery had the right to make submissions on the proposed decision);
(b)an email from the same NZTA case manager noting Mr Chowdhery’s advice that he had lodged an appeal against conviction for careless driving causing injury, and that a final decision on Mr Chowdhery’s application for a P endorsement was therefore on hold pending the outcome of this appeal; and
(c)a letter from Mr Chowdhery’s employer (Go Bus Transport Ltd (Go Bus)) advising that if Mr Chowdhery is convicted and loses his licence, his employment will be terminated.
[7] The respondent does not take issue with any of these materials being admitted, and I am satisfied that they meet the relevant standard, in that they are fresh and cogent. I admit them accordingly.
[8]I note the following points from these additional materials:
(a)First, the NZTA’s proposed decision referred to at [6](a) above records that, subsequent to Mr Chowdhery’s index offending, he had acquired two further traffic infringements/offences, both for speeding in a 50 kilometre per hour zone.
(b)Second, I was advised at the appeal hearing that Mr Chowdhery is presently employed by Go Bus in the role of refuelling buses. Presumably this does not require a P endorsement. I do not know whether Mr Chowdhery will retain this role if his appeal fails and NZTA does not grant him a P endorsement on his licence. I note, however, that Mr Chowdhery clearly has the full support of his employer, as its letter states:
[Mr Chowdhery] is one of our good operators, honest, respectful, safe driver no customer complaints in terms of Reliability, he has provided good customer service to our customers and built good relationships with our team members.
Background – more detail
[9] On 4 April 2018, Mr Chowdhery was driving his bus along his usual airport route. The complainant’s car, driving ahead of Mr Chowdhery’s bus, stopped on the road, as close to the middle of the road as possible without encroaching onto the opposite lane, in order to turn right into a driveway. There was no suggestion before the Judge that the complainant was not permitted to do this under the relevant road rules. There was disputed evidence as to whether she had indicated to turn right, and whether her brake lights were working. In the event, Mr Chowdhery, upon seeing the car had stopped, attempted to drive around the car by moving left, but the front right side of his bus clipped the side of the complainant’s car. This pushed her car out onto the other side of the road, where it was hit by another oncoming bus. The complainant was quite badly injured in the crash. The sole issue at trial was whether Mr Chowdhery was careless.
[10] Mr Chowdhery has no prior criminal record. His traffic record records one fine for speeding (55 km/h in a 50 km/h zone) in 2017, and as noted earlier, two fines for speeding in 2019, for driving at 66 km/h and 65 km/h in a 50 km/h zone respectively.
The District Court decision
[11]Four of Judge Clark’s decisions are at issue on the present appeal:
(a)her judgment delivered orally on 27 August 2020, in which the Judge found Mr Chowdhery guilty of careless driving causing injury;4
(b)her reserved judgment of the same day, in which the Judge provided further detail for the verdict she had reached;5
(c)a further reserved judgment also delivered on 27 August 2020, in which the Judge set out in some detail her findings on the credibility and reliability of the witnesses who gave evidence at trial;6 and
(d)the Judge’s decision, of 7 December 2020 to decline Mr Chowdhery’s application for a discharge without conviction.7
[12] For the purposes of this judgment, I do not propose to summarise each of the Judge’s first three judgments separately, but rather summarise the essential reasoning why the Judge reached the conclusions she did.
[13] The Judge first found that the complainant was not at fault in the manner she went to turn right off the road she and Mr Chowdhery were driving on. The Judge accepted that the complainant, who travelled the road regularly, as well as turning into the driveway in question, had indicated to turn right some time before she slowed and stopped to make the righthand turn. The Judge was less sure that the brake lights on the complainant’s car were working, but noted that the prosecution had not called any
4 Police v Chowdhery [2020] NZDC 17559.
5 This judgment was never authenticated and thus does not have a formal citation. Nothing turns on this.
6 Police v Chowdhery [2020] NZDC 6232.
7 Police v Chowdhery [2021] NZDC 27453.
evidence to suggest they were not. She also accepted the complainant’s evidence that she had a valid warrant of fitness. The Judge therefore concluded there was no reason to suspect the brake lights were not working. The Judge noted that the dash-cam footage from Mr Chowdhery’s bus was not of sufficiently good quality to establish whether either the complainant’s indicator was on or her brake lights were showing.
[14] The Judge expressly recorded that Mr Chowdhery was not speeding at the time of the accident, and was not following too close to the complainant’s car. The Judge then considered the dash-cam footage further, noting that while it had not been helpful in determining whether the complainant’s indicator and brake lights were on, it was very useful in assessing approximately how much time Mr Chowdhery had had to notice the complainant’s car had slowed and come to a stop to turn right, and thus the time available to him to take steps to slow down and take evasive action.
[15] In this context, the Judge said that her “calculations [from viewing the dash- cam footage] are slightly different to the calculations that were put to the defendant but not so different that it makes any material difference in my mind”.8 She said that from the speedometer she could see that the bus was travelling around 69 to 70 kilometres per hour, and that it was clear for some time that the complainant’s car had stopped. She then stated “by my calculations, the defendant had around three to four seconds to react to the fact that [the complainant] had slowed to a stop or was slowing to a stop”.9 Judge Clark considered that this was sufficient time for Mr Chowdhery to have taken evasive action. She noted that neither party had presented any expert evidence as to speed or stopping times. From the dash-cam footage, however, she concluded that at the time of the crash, Mr Chowdhery had only slowed down to about 68 or 69 kilometres per hour. In short, the Judge considered that Mr Chowdhery had noticed the complainant’s vehicle had come to a stop too late for him to take adequate evasive action.
[16] The Judge’s reasoning in this regard is encapsulated in the following extract from her reserved judgment on credibility and reliability findings:10
8 Police v Chowdhery [2020] NZDC 17559 at [19].
9 At [19].
10 Police v Chowdhery [2020] NZDC 6232.
[40] I took from this passage of evidence, that the defendant had made a choice as to whether to suddenly stop, which may have avoided the collision with [the complainant’s] car, or alternatively, to try to slow down and avoid a collision by travelling around the left-hand side of [the complainant’s] vehicle for the safety of his passengers. This was an important part of my finding of carelessness on the part of the defendant. It was important for me to understand when the defendant had first noticed [the complainant’s] car and was his decision making was at that moment.
[41] Overall, I accept that Mr Chowdhery was generally an honest witness, however, I did not accept his suggestion that [the complainant] had suddenly stopped in front of him. I do not consider that she did.
[42] Instead, what I consider happened was that he was not paying sufficient attention to what was happening ahead of him. From his perspective he may not have seen [the complainant] until the last minute but in my view she was there to be seen had he been paying attention. The dashcam footage showed [the complainant] slowing to a stop some distance, and seconds, ahead of the defendant.
(emphasis in original)
[17] On this basis, she found Mr Chowdhery guilty of careless driving causing injury.
[18] Turning to the Judge’s decision on Mr Chowdhery’s application for a discharge without conviction, Judge Clark noted at the outset that “the level of carelessness was at the lower end.” She stated that:11
[25] But it is very important that I put [Mr Chowdhery’s] level of carelessness into perspective and into context. I consider these events occurred within a very short period of time and that perhaps the defendant did not expect that a vehicle would stop and wait to turn right, in the centre of the road. As I say, I am not criticising [the victim] for her decision-making and nor was what she did unlawful. But I can appreciate from the defendant’s point of view that that was unexpected. I also appreciate that in not breaking hard, he was actually trying to protect the safety of his passengers that he was carrying at the time. Unfortunately, in weighing and balancing the competing interests, it was [the victim] who suffered as a result because there was an accident and she was terribly injured.
[19] In relation to the offending itself, the Judge recorded that she found Mr Chowdhery’s culpability as being “low to moderate”, taking into account that Mr Chowdhery was a driver of a heavy vehicle with passengers, and thus had somewhat heighted responsibilities than the driver of an ordinary car. But after taking
11 Police v Chowdhery [2021] NZDC 27453.
into account mitigating factors relating to Mr Chowdhery himself, she concluded that the overall gravity of his offending was low. She considered Mr Chowdhery to be genuinely remorseful and noted that, despite not having a lot to offer, he had nevertheless offered to make an emotional harm payment. She also took into account that Mr Chowdhery had no previous convictions and that as far as she was aware, he had “no blemish” on his driving record (which for the reasons noted at [10] above, was not strictly correct). The Judge also took into account that Mr Chowdhery had received further training, and recorded her view that he had been “undertrained” for the situation that presented itself.12
[20] Judge Clark then considered the likelihood of Mr Chowdhery losing his P endorsement from NZTA, which she accepted would mean he would lose his employment. In this context, she noted that she had not been provided with any evidence as to how NZTA would approach their consideration of Mr Chowdhery’s application. The Judge noted that she had herself reviewed publicly available information on P endorsements from NZTA, and noted that part of the endorsement process is a “fit and proper person” check. She noted that this would take into account any transport-related offences, especially those relating to safety. She noted that as far as she was aware, Mr Chowdhery’s conviction would not itself act as an automatic bar to receiving his P endorsement, but would be a matter taken into account by NZTA. Having considered these matters, the Judge stated:13
…the consequences that are contended for here, which is the loss of employment and P endorsement, relate to your ability to drive. At the moment, I cannot see any reason why you could not pursue a P endorsement even if I were to impose a conviction on you today.
Because I cannot be satisfied that a conviction will result in the different consequences that Mr Bouchier has put forward on your behalf insofar as your employment is concerned, I am not satisfied that a conviction alone would necessarily hamper your prospects of employment and/or holding a P endorsement.
…
In my view, the reality here is that you will have to apply to NZTA to see if you can regain your P endorsement and you may well be able to do that based on the comments I have made in my decision today where I have placed your culpability at the low end. If you are able to get your P endorsement then you
12 At [35].
13 At [49]-[50] and [53].
will be able to work again with Go Bus, subject of course to any disqualification that may be imposed by me today. Of course, if you are to be disqualified, once your disqualification ends then you will be able to drive and assist your family with the day-to-day transport of children and so on.
[21] The Judge accordingly concluded that the suggested employment consequences were “speculative” unless and until Mr Chowdhery made an application to NZTA for his P endorsement. The Judge stated that “I consider that there is a chance that you will in fact be able to gain your P endorsement and continue to work”.14
The law
The appeal against conviction
[22] Section 232 of the Criminal Procedure Act 2011 (the Act) provides that I must allow the appeal if the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or in any case if a miscarriage of justice has occurred for any reason.
[23] The Supreme Court in Sena v R has clarified the approach to be taken under this section.15 I must come to my own assessment of the evidence and determine the appeal accordingly.16 Nonetheless, the appellant must still show some error in the trial Judge’s reasoning, and – importantly for this case – I must exercise “customary caution”17 in overturning the trial Judge’s factual and/or credibility findings. The trial Judge had the advantage of hearing all of the evidence as it came out, and could form a view as to its veracity and what sort of people the different witnesses were. This cannot be easily duplicated by reading the notes of evidence. As the Supreme Court put it in Sena:18
More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel
14 At [54].
15 Sena v R [2019] NZSC 55.
16 At [38]; see also Herewini v Ministry of Transport [1992] 3 NZLR 482, (1992) 8 CRNZ 247 (HC), which the Court in Sena at [20] notes appears to be where the statutory language is drawn from. This approach is similar to that in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 in respect of civil appeals conducted by way of rehearing.
17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 at [13], cited in Sena v R [2019] NZSC 55 at [38].
18 Sena v R [2019] NZSC 55 at [40].
rely does not replicate the advantages of a trial judge which we have just described.
[24] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to, or affecting, the trial has created a real risk the outcome of the trial was affected. In Haunui v R, the Supreme Court stated that:19
The question under s 232(4)(a) is ‘whether the error, irregularity or occurrence in or in relation to or affecting [the] trial has created a real risk the outcome was affected’. That question ‘requires consideration of whether there is a reasonable possibility another verdict would have been reached’. If the answer to that question is ‘no’, that is the end of the matter and the appeal will be dismissed. If the answer to that question is ‘yes’, …the appeal court then asks whether it is sure of guilt. If the answer is ‘no’, the appeal will be allowed. If the answer is ‘yes’, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed.”
The appeal against the refusal to grant a discharge without conviction
[25] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[26] As noted by the Court of Appeal, this is a two-stage inquiry.20 First, the court must determine the gravity of the offence and the consequences of conviction, and whether those consequences are out of all proportion to the gravity of the offending. Second, if the court is satisfied the consequences are out of all proportion to the gravity of the offending, it should then consider whether to exercise its discretion to decline to grant a discharge.
[27] The court should consider not just those consequences that would “would inevitably or probably occur”, but all those where there is a “real and appreciable risk that such consequences would occur.”21 The consequences of a conviction on finding future employment generally can be taken into account.22 However, the courts are hesitant to grant a discharge when doing so would result in relevant information being
19 Haunui v R [2020] NZSC 153 at [67] at [67].
20 DC(CA47/2013) v R [2013] NZCA 255 at [31].
21 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
22 Tahitahi v Police [2012] NZHC 663 at [25] and [31].
“suppressed” from a professional or statutory body, because there is public interest in the body knowing about the conviction and exercising its discretion accordingly.23 Nonetheless, it is still for the court to weigh consequences and in some cases a discharge will be granted despite its suppressive effect.24 Conversely, the case for discharge may not be as strong when the professional or statutory body (or employer) will know about the offending in any event.25
[28] A useful (and relatively recent) summary of the courts’ approach to matters of this kind can be found in in the Court of Appeal’s decisions in Maraj v Police26 and Rahim v R.27 In Maraj, the Court stated:28
Where, however, Parliament has seen fit to establish a statutory authority with the task of selecting or screening applicants for admission to whatever trade or profession may be involved then clearly Parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of the kind of qualities that are appropriate for the particular trade or profession and those which render admission to that trade or profession inappropriate. It seems to me, and in this respect I think I echo what Holland J has said, that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.
[29]In Rahim, the Court of Appeal stated:29
[28] Courts assessing how a conviction might affect an offender’s immigration status or ability to travel overseas may consider that it is appropriate for the consequences of conviction to be resolved by the specialist authorities, rather than by a Court pre-empting that decision-making process by a decision to discharge without conviction.
[29] The reluctance of courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand or, in the employment context, professional disciplinary bodies, is most often evident where the
23 Liang v Police HC Wellington AP38/02, 16 April 2003 at [17]; see too Parker v Police [2016] NZHC 2524.
24 Phipps v Police [2015] NZHC 614; HM v Police [2015] NZHC 1910.
25 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [25].
26 Maraj v Police [2016] NZCA 279.
27 Rahim v R [2018] NZCA 182.
28 Maraj v Police [2016] NZCA 279 at [28].
29 Rahim v R [2018] NZCA 182.
outcome cannot be reasonably predicted. In such cases, the consequences of a conviction will be the risk that the offender’s immigration status or ability to travel overseas may change, or that disciplinary action, or some obstacle to qualification or employment, may occur.
[30] In the present case, however, Mr Laurent’s expert opinion establishes that the real and appreciable risk is significantly higher than the mere prospect of deportation: it is that, after Mr Rahim has undergone all of the statutory processes, a conviction is likely to result in his being required to leave New Zealand. …
[31] It is important also to identify whether the consequences under scrutiny are predicted to follow from the offending for from the fact of conviction. The s 106 cases founded on the risk of employment consequences provide a good illustration of the point. Often, in such cases, it is the offender’s conduct not merely the conviction which gives rise to consequences the offender wishes to avoid. In this case however, it is the conviction rather than what Mr Rahim did that will trigger the real and appreciable risk that he is likely to be deported.
[30] There is no reason why these principles should not apply to a specialist body such as NZTA, and its consideration of Mr Chowdhery’s application for a P endorsement.
[31] Against these legal principles, I next briefly summarise the parties’ submissions.
The appellant’s submissions
The appeal against conviction
[32] As noted, Mr Chowdhery says that the Judge went beyond the proper scope of her fact-finding role, in making independent calculations on the dash-cam footage. Counsel submits that the Judge speculated on matters that neither the defence nor prosecution had produced evidence in relation to, and that the types of calculations the Judge carried out are more appropriately addressed by expert evidence.
[33] Further, Ms Deane submits that the Judge took an inconsistent approach to her treatment of the dash-cam footage. She says that on the one hand, the Judge did not consider that it was fair to ask the complainant, when she was cross-examined, to point out the indicator or brake lights on the footage, due to its very low quality. Yet on the
other hand, the Judge relied on the footage to a significant extent in other ways, including in her overall conclusion that Mr Chowdhery had been careless.
The appeal against the refusal to grant a discharge without conviction
[34] Mr Chowdhery submits that the Judge mis-stated the test as to the consequences of a conviction, in that she referred to what consequences “automatically” follow a conviction, when the proper test is whether there is a “real or appreciable risk” that the stated consequences will occur. Counsel further submits that the evidence tendered demonstrated that a conviction, and not just Mr Chowdhery’s alleged wrongdoing, will mean he will not receive a P endorsement from NZTA and hence will not be able to work. Counsel also notes that the disqualification that automatically follows a conviction will prevent Mr Chowdhery from driving during the period of disqualification, both in an employment and personal context.
The respondent’s submissions
The appeal against conviction
[35] The respondent says that the “calculations” referred to by the Judge were not calculations as such, but rather simply her own factual findings from watching the dash-cam footage. The respondent says that no particular expertise is required for this purpose. The respondent further submits that there is nothing objectionable in the Judge reviewing the dash-cam footage further times after she had reserved her decision, just as a jury can request to see video footage again if it wishes.
[36] The respondent notes that unlike the footage of the accident itself, where the camera quality is not particularly clear, there is an “overlay” on that footage of a banner showing the bus’s speedometer and the time, both of which are very clear. The respondent accordingly says that there was nothing inconsistent in the Judge observing that the footage was not clear enough to determine if the victim’s indicator and brake lights were on, yet still relying on the (clear) overlaid banner as to speed and time.
The appeal against the refusal to grant a discharge without conviction
[37] The respondent submits that the Judge appropriately stated the test for assessing the consequences of a conviction, namely whether they have a “real and appreciable” chance of occurring.30 Counsel submits that the Judge considered the loss of Mr Chowdhery’s job to be speculative, insofar as it could not be determined at the time of sentencing that Mr Chowdhery would “necessarily” lose his P endorsement if a conviction were entered. The respondent submits that the Judge properly left the assessment of Mr Chowdhery’s offending to NZTA, rather than to usurp its decision- making role. The respondent also submits that as the NZTA is already aware of Mr Chowdhery’s offending, it is not a conviction per se that is giving rise to the consequences Mr Chowdhery relies on.31 Thus, the respondent says that even if Mr Chowdhery were to be granted a discharge without conviction, NZTA would remain aware of the underlying offending and will no doubt take that into account when making its final decision whether to grant him a P endorsement.
Analysis
Appeal against conviction
[38] As noted at the outset of this judgment, Ms Deane confirmed that the primary focus of Mr Chowdhery’s appeal is the appeal against the Judge’s decision to decline to grant a discharge without conviction. For the reasons which follow, I consider that was an appropriate approach, as I have concluded that the appeal against conviction must fail.
[39] In short, the Judge’s finding that Mr Chowdhery had driven carelessly causing injury turned on her factual findings, and also her findings on the witness’s credibility and reliability. I do not discern any error in the approach the Judge took to the witness’s evidence, nor is any suggested by Mr Chowdhery in any event.
30 At [41].
31 Referring in this context to Heynen v R [2018] NZCA 123 at [19], as well as those principles from
Rahim referred to at [29] above.
[40] Further, I do not agree that the Judge stepped outside her proper role in her assessment of the dash-cam footage. I observe that neither the prosecution nor the defence called any expert evidence on matters such as speed, stopping distances and similar matters. The Judge was accordingly required to make her own assessment of the dash-cam footage, in the context of all the other evidence before her. Having viewed the footage three times in Court on the present appeal, I am not persuaded that expert evidence was required before the Judge could make factual findings based on it. The footage itself is clear enough to establish what occurred (though not, as the Judge noted, sufficiently clear to see whether the victim’s car was indicating and/or had its brake lights on). The banner overlay of the bus’s speed and the time is clear. A review of the footage simply requires the fact-finder, in this case the Judge, to make her own assessment of what she saw in the footage. Juries as fact-finders are often asked to make similar assessments of CCTV footage, video footage and the like, which can sometimes be fast paced and not of the best quality. Juries will also sometimes request to view such footage a further time (or multiple times). There was accordingly nothing wrong in my view with the Judge’s approach to or assessment of what she saw in the dash-cam footage.
[41] As this was the only ground advanced in support of the appeal against conviction, the appeal must fail.
Appeal against decision declining to grant a discharge without conviction
[42] It is not in dispute that, having regard to the aggravating and mitigating factors relevant to Mr Chowdhery’s offending and Mr Chowdhery himself, the overall gravity of his offending is low. Are the direct and indirect consequences of a conviction out of all proportion to the gravity of this offending?
[43] In light of the updating material now before the Court, I accept that there is a real and appreciable risk that NZTA will not grant Mr Chowdhery’s application for a P endorsement. If that is the case, it will mean he will no longer be able to continue in his employment with Go Bus as a bus driver (though I note that Go Bus is presently employing him in the role of refuelling buses). Are these consequences out of all proportion to Mr Chowdhery’s offending? And were I to allow the appeal and grant
Mr Chowdhery a discharge without conviction, would I inappropriately usurp NZTA’s decision-making function?
[44] Although I have considerable sympathy for the position in which Mr Chowdhery now finds himself, I conclude 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. I say this for the following reasons.
[45] First, while I accept that in light of the new materials there is a real and appreciable risk that NZTA will not grant Mr Chowdhery’s P endorsement, it is not in my view certain that this will be the outcome. I accept that the test is not whether the adverse circumstances relied are certain to arise, but whether there is a real and appreciable risk that they will. But where the adverse consequences are certain or highly likely to arise, a court may be more willing to intervene and grant a discharge without conviction, particularly where the offending in question can truly be described as low level.
[46] But as stated, I do not consider it is certain that NZTA will decline Mr Chowdhery’s application for a P endorsement as a result of a conviction. Those at NZTA considering Mr Chowdhery’s position will no doubt take into account both this and the District Court’s assessment of the gravity of Mr Chowdhery’s offending as low, including the various mitigating factors applicable to him and the clear support he enjoys from his employer. NZTA will also no doubt have regard to the fact that offending appears to have stemmed from a momentary lapse of attention on Mr Chowdhery’s part, and his desire to avoid injury to his own bus passengers. As noted, the Judge expressly found that he was not speeding or following too closely to the car in front of him.
[47] But what is material, in my view, is that it is not clear it is a conviction per se that gives rise to the risk of Mr Chowdhery not being granted his P endorsement, rather Mr Chowdhery’s offending itself. NZTA is already aware of the fact and details of the offending, and it will remain aware of those matters irrespective of whether a discharge without conviction is granted. I accept that the NZTA’s decision to put their
assessment of Mr Chowdhery’s application for a P endorsement on hold pending the outcome of the present appeal could suggest that it is the conviction that is the key issue, rather than the offending itself. But Mr Chowdhery also appealed against his conviction for the offending, which if granted, would have meant he did not in fact commit an offence at all. In those circumstances, it made sense for NZTA to await this Court’s decision on Mr Chowdhery’s appeal.
[48] In addition, it appears that a further factor being considered by NZTA is Mr Chowdhery’s two speeding infringements which occurred after the index offending. It is not possible or appropriate for this Court to comment on those matters, including if and how they ought to feature in Mr Chowdhery’s application for a P endorsement.
[49] Counsel for Mr Chowdhery referred me to Pankhurst J’s decision in Ryan v Police, which concerned a taxi driver involved in low level offending (also careless use causing injury), and where the Judge granted a discharge without conviction.32 But my reading of that decision is that it turned on the particular facts in that case, including Mr Ryan’s unfortunate history in the years preceding the accident. Pankhurst J also did not refer to any authorities or concerns about usurping the role of an appropriate statutory body when making decisions about Mr Ryan’s ability to continue to drive, an issue which, as stated, is of material relevance in this case.
[50] Counsel also referred me to Mallon J’s decision in McMillan v Police.33 In that case, the offending involved Mr McMillan’s car hitting a pedestrian pushing a pram on a zebra crossing. Mallon J accepted that Mr McMillan’s overall culpability was low. A consequence of a conviction was the likelihood of Mr McMillan not being able to travel to Canada to live and work as a firefighter (as part of an exchange programme in which the New Zealand Fire Service participates). Mallon J concluded that these consequences were out of all proportion to the offending and granted a discharge without conviction.
32 Ryan v Police HC Christchurch, CRI-2008-409-000282, 4 December 2008.
33 McMillan v Police HC Wellington, CRI-2010-485-36, 21 July 2010.
[51] I am not persuaded this decision alters the appropriate outcome in this case. In particular, Mallon J was not faced with the quite stark position which arises in this case, namely that granting a discharge without conviction would, in effect, interfere with active and ongoing decision-making by NZTA. Further, and as already noted, it does not appear to be a conviction per se that is the issue in this case, but the fact of the offending itself, as well as Mr Chowdhery’s wider driving record.
[52] Counsel also referred me to Walker J’s decision in Elmeleh v Police in which her Honour allowed an appeal and granted Mr Elmeleh a discharge without conviction.34 That was on the basis that fresh evidence admitted on the appeal persuaded the Judge that Mr Elmeleh’s P endorsement would be revoked if his conviction were to stand. Walker J did not, however, consider the authorities referred to earlier regarding the courts’ hesitation to intrude on an expert statutory body’s decision-making function. The outcome in that case also turned on the particular facts pertaining to Mr Elmeleh himself and which had led to his offending in the first place.35 Again, I do not consider the outcome in this Elmeleh alters the conclusion I have reached.
[53] Finally and for completeness, I accept that a conviction might have a negative effect on Mr Chowdhery’s employment prospects more generally. But in my view, there would only be a real and appreciable risk of a material impact in the context of Mr Chowdhery seeking employment which involves him driving in a professional capacity. I note that Mr Chowdhery’s employment history is varied, and his present role with NZ Bus is his first job involving driving. A conviction for careless driving causing injury may well not give rise to significant concern in other fields of employment. Mr Chowdhery’s conviction does not involve, for example, sexual, violence or dishonesty offending which can be expected to give rise to much more concern on the part of prospective employers. Further, the inconvenience to Mr Chowdhery and his family from his inability to drive during the period of his disqualification is an inevitable and ultimately normal consequence of a conviction of this kind.
34 Elmeleh v Police [2019] NZHC 3371.
35 Namely a prior injury which likely sparked his “spontaneous reaction” which led to his offending (see [44]).
[54] Standing back, I consider that to grant a discharge without conviction now would inappropriately interfere with NZTA’s ongoing decision-making process. This is particularly so when the type of conviction involved relates directly to transportation safety. As noted, NZTA will no doubt take into account this and the District Court’s view of the gravity of Mr Chowdhery’s offending, namely as low. I have accordingly (though somewhat reluctantly) concluded that the appropriate course is to dismiss the appeal.
Fitzgerald J
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