Faith v Police - [2022] NZHC 156

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-25

[2022] NZHC 156

IN THE MATTER of an appeal against conviction

BETWEEN

KEEGAN IAN FAITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 February 2022 (via VMR)

Appearances:

A O’Connor for Appellant E Pairman for Respondent

Judgment:

11 February 2022

JUDGMENT OF ISAC J

[Appeal against conviction]

Introduction

[1] Mr Keegan Faith was charged with carelessly operating a vehicle causing injury.1 He was convicted following a judge alone trial on 9 July 20212 and was subsequently sentenced to a $1,500 fine, disqualified from driving for 12 months and ordered to pay $2,800 in reparation to the complainant.3

[2] Mr Faith appeals his conviction. He submits the Judge erred in his approach to the question of carelessness and in his assessment of the evidence.

1      Land Transport Act 1998, s 38; maximum penalty three months’ imprisonment or $4,500 fine.
2      Police v Faith [2021] NZDC 12823.
3      Police v Faith [2021] NZDC 16945.

FAITH v NEW ZEALAND POLICE [2022] NZHC 156 [11 February 2022]

Background

[3] The charge arose from a collision that occurred between Mr Faith’s car and the complainant’s bicycle at a roundabout in Palmerston North. The complainant was approaching the roundabout from the north (travelling south), while Mr Faith approached the roundabout from the east. As the complainant was about to take the second exit — travelling straight through — Mr Faith also entered the roundabout. The left corner or bumper of Mr Faith’s vehicle struck the rear fork of the complainant’s bicycle and caused the cyclist to crash. The complainant suffered a severe fracture on his lower left leg, requiring multiple surgeries. He was unable to return to work or drive for six months.

Decision under appeal

[4] Judge Carter commenced his decision by setting out the four essential elements of the offence the prosecution was required to prove.4 The central issue was whether Mr Faith operated his vehicle carelessly.5

[5] It was the prosecution’s case that Mr Faith ought to have given way. The appellant acknowledged during his evidence that he would have had to give way to any traffic coming from his right but said he looked right before entering the intersection and did not see the cyclist. Mr Faith accepted hitting the cyclist and that he would have expected to see the cyclist provided it was travelling at a reasonable speed.

[6]The Judge then identified four key facts in dispute. They were:6

(a)the speed at which the complainant was riding his bicycle toward and through the intersection;
(b)the speed at which Mr Faith was travelling in his car;

(c)whether there was clear visibility from Mr Faith’s perspective; and

4 Police v Faith, above n 2, at [2].
5 At [7].
6 At [9].

(d)whether Mr Faith ought to have seen the complainant and given way before entering the roundabout.

[7] In assessing the visibility at the roundabout, the Judge considered dash-cam footage and still…

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: [2022] NZHC 156
Decision Date: 11 February 2022

CaseChat Overview and Summary

In this case, Keegan Ian Faith appeals against his conviction for carelessly operating a vehicle causing injury. The appeal was heard via video link and the Court was required to determine whether the District Court Judge erred in his assessment of the evidence or approach to the question of carelessness, to such an extent that a miscarriage of justice occurred. The appeal was dismissed.

The Court found that the Judge did not err in his approach or assessment of the evidence. The Judge was satisfied beyond reasonable doubt that Mr Faith's driving fell below the standard of a reasonable and prudent motorist in the circumstances. The appellant failed to look adequately before entering the intersection and this failure fell below the standard of a reasonable and prudent motorist, particularly given the excellent visibility and the complainant's high-visibility gear. The Court also found that the apparent factual error made by the Judge about the cyclist's direction of travel, or the prosecution's failure to disclose the complainant's previous conviction, were not material to the result.

The Court dismissed the appeal and upheld the conviction. The appellant was to remain subject to the conviction and sentence imposed by the District Court.

Orders