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 shots taken from two vehicles present at the roundabout at the time of the incident, entering from the west. The footage captured the complainant entering the intersection, the appellant hitting the complainant’s bicycle with his vehicle, and the complainant being knocked off. The Judge described the complainant as both “plainly” and “conspicuously” visible on his bicycle due to his high visibility cycle gear, including a yellow helmet and fluoro yellow windbreaker.7

[8]    The appellant also produced a photograph of the intersection from the perspective at which he entered the roundabout. The Judge considered this photograph showed “ample and unobstructed visibility” at the roundabout.8 The Judge also found there was no weather-related or other deterioration in visibility on the day of the incident.9

[9]    Both the complainant and appellant gave evidence.10 Their evidence was at odds about the speed each was travelling at. The Judge accepted the complainant’s evidence that he entered the roundabout at a speed in the range of 20–25 km/h, describing his evidence as logical, ordered, detailed and containing appropriate concessions and qualifications.11 In any case, however, the Judge observed that even at the speed contended by the appellant (25–30 km/h), the complainant was still travelling well within the speed limit.12

[10]   In contrast, the Judge found the appellant’s evidence unconvincing and inconsistent with other evidence.13 He appeared not to accept Mr Faith’s evidence that he was travelling between 0–10 km/h when approaching and entering the roundabout,

7      At [12] and [36].

8 At [14].

9 At [36].

10     Summarised at [15]–[32] of the judgment.

11 At [34].

12 At [38].

13     At [35]–[36].

and noted that if he was travelling at a greater speed than that, it might explain why the appellant did not see the complainant or give way to him.14

[11]The Judge ultimately concluded:15

For all these reasons I conclude that Mr Faith did not look to his right before entering the roundabout... or was travelling at such greater speed…than 0- 10kph as to prevent him from seeing [the complainant] immediately prior to Mr Faith crossing the give way sign limit line and entering the roundabout. Mr Faith’s evidence on these issues is rejected.

[12]   As a result the Judge was satisfied beyond reasonable doubt that Mr Faith drove his vehicle carelessly causing injury to the complainant.

Approach to Appeal

[13]   This appeal is pursued under s 229 of the Criminal Procedure Act 2011. The Court must allow the appeal if it is satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage has occurred for any reason.16 A miscarriage of justice is defined in the Act as any error, irregularity or occurrence in or in relation to or affecting a 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.17

[14]   The appeal proceeds by way of rehearing and this Court is required to form its own view of the facts.18 If this Court reaches a different view on the evidence, it follows that the trial judge necessarily will have erred and the appeal must be allowed.19 The onus is on the appellant to show that an error occurred.

The issues on appeal and the parties’ cases

[15]   The appellant submits that the Judge failed to set out and therefore apply the relevant legal test of carelessness. In particular, the Judge did not turn his mind to the

14 At [35].

15 At [39].

16     Criminal Procedure Act 2011, s 232(2).

17     Section 232(4).

18     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].

19 At [38].

question of whether Mr Faith’s driving fell below the standard of a reasonable and prudent motorist. Instead the Judge  asked  the  wrong  question,  namely  whether Mr Faith “ought to have seen [the complainant]” and therefore given way to him. The approach of the Judge was to reason backwards from the accident, to infer that it must have occurred due to the appellant’s carelessness, whereas what was required was the identification of an act or omission meeting the objective standard of carelessness. That did not occur.

[16]   Mr O’Connor, for Mr Faith, submits that the appellant’s driving did not fall below the standard of a reasonable and prudent motorist in the circumstances. He says that the appellant did indeed look right, as a reasonable and prudent motorist would have, before entering the intersection. He submits there are many reasons a reasonable and prudent motorist may not see a cyclist in the circumstances, dependent on the speed and position of the cyclist on the road.

[17]   The appellant notes that while the Judge concluded the appellant’s evidence was inconsistent with the evidence of others, the evidence that he looked to the right before entering the roundabout was uncontested. It is submitted that the Judge was wrong to disregard this evidence, and that such evidence gave rise to a reasonable doubt on the critical element of carelessness the Police were obliged to establish.

[18]   It is also suggested the Judge was left in doubt about the mode by which carelessness arose. The Judge’s finding — that either Mr Faith did not look right as he claimed, or was travelling too fast to see the cyclist — was insufficient. Mr O’Connor submits that the Judge should have been sure either way, and in not reaching a conclusion as to how the appellant was careless, there must have been reasonable doubt in his mind as to whether the appellant was driving carelessly.

[19]   Finally, Mr O’Connor notes the Judge mistakenly found the cyclist was turning at the roundabout, when the evidence was that he continued straight through. In addition, the prosecution had failed to disclose a conviction by the complainant for driving with excess breath alcohol. The conviction established a propensity to “drive” carelessly, and a miscarriage has arisen due to the inability to explore that issue in evidence.

[20]   The Crown submits that Mr Faith’s own evidence, as summarised by the Judge, is a complete answer to the appeal. I set out the relevant paragraphs from the judgment below:

[30]      Mr Faith acknowledged that twenty to thirty metres back … from the roundabout, the give way sign … would be clearly visible, there was good visibility and that he would have expected to see a bicycle rider in high visibility gear, enter the roundabout, provided the cyclist was travelling at reasonable speed.

[31]      Mr Faith acknowledged that the first time he saw the cyclist was when he hit him, that he had not seen the cyclist when Mr Faith entered the roundabout but that the cyclist must have entered the  intersection before   Mr Faith did. Mr Faith estimated the speed that [the complainant] was going on his bicycle at 25-30 kph at the point [the complainant] entered the intersection however the basis for this estimate was not explained.

[32]      Mr Faith acknowledged that he ought to have seen the cyclist and ought to have given way. He said that as he was approaching the roundabout, he would have looked right and that he specifically recalled actually looking right on this occasion in the [cyclist’s] direction … but did not see any cyclist approaching in his direction.

[21]   The Crown submits this amounted to an admission of carelessness by the appellant. It notes that those admissions and the Judge’s summary of Mr Faith’s evidence are not challenged in the appellant’s submissions.

[22]   The Crown also highlights that Mr Faith produced photographs which showed that his view was unobstructed at the point when he should have given way. He hit the rear of the complainant’s bicycle, indicating the complainant was likely in front of the car at the moment Mr Faith travelled through the give way sign.

[23]   In response to Mr Faith’s suggestion that the Judge had the direction of the complainant’s travel incorrect, the respondent submits this is immaterial. Mr Faith was required to give way and failed to do so.

Decision

[24]   In Savieti v Police the Court of Appeal confirmed 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”.20 The test is an objective one.

[25]   I do not accept Mr Faith’s submission that the District Court Judge did not consider whether Mr Faith’s driving fell below the standard of a reasonable and prudent motorist. While the test was not expressly articulated in the judgment, it is clear from the Judge’s analysis that he was aware of the applicable test and applied it.

[26]   But even if I had been satisfied there was an error of approach on the part of the Judge, the difficulty for Mr Faith is that there was ample evidence to support the conclusion that he fell below the standard of care of a reasonable and prudent driver. I have also had the benefit of watching the dash-cam videos. They provide a clear account of the accident and the conditions at the time.

[27]   Given the lack of any weather related visibility issues, Mr Faith’s unobstructed view of the intersection and of approaching road users, the complainant’s high- visibility clothing and use of cycle lights, and the speed at which the cyclist was travelling, I agree with the Judge’s assessment that either Mr Faith failed to look to his right at all or, if he did, he was travelling at a speed that prevented him from avoiding a collision. Either way, the driving clearly fell below that of the reasonable and prudent motorist.

[28]   Of further significance to the question of carelessness is the location of the cyclist when he was struck. Mr Faith did not pull into the intersection in front of the cyclist causing the cyclist to collide with the right side of Mr Faith’s vehicle. Instead, the cyclist had almost passed through the intersection — travelling directly in front of and across Mr Faith’s field of vision — before he was hit. And this occurred in circumstances of excellent visibility and an unobstructed view of a cyclist wearing high-visibility gear with front and back lights. The cyclist was largely situated on the

20     Savieti v Police [2021] NZCA 176 at [32], citing Simpson v Peat [1952] 2 QB 24 at 27–28; followed in Police v Chappell [1974] 1 NZLR 225 at 228.

left of Mr Faith’s vehicle at the time of the accident, and the collision involved the left-hand corner of Mr Faith’s vehicle clipping the rear of the bike.

[29]   And, as set out above,21 Mr Faith acknowledged that he ought to have seen the cyclist and ought to have given way.22 This is not challenged on appeal.

[30]   The Judge did not need to make a definitive finding about the credibility of Mr Faith’s claim to have looked to his right before entering the intersection, or make an election between the two modes of carelessness he identified, provided he was satisfied beyond reasonable doubt that one had been established. In any case, on my own review of the evidence, especially the dash-cam footage, I am satisfied beyond reasonable doubt that the appellant failed to look adequately before entering the intersection, and that such a failure fell below the standard of a reasonable and prudent motorist in the circumstances.

[31]Given all of this the conviction was clearly supported by the evidence.

[32]   Finally, there is nothing in 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. Neither were material to the result. Without determining the point, it is not evident that the complainant’s previous conviction was relevant to a fact in issue.

Conclusion

[33]The appeal is dismissed.

Isac J

Solicitors:

Iorns Legal, Porirua for Appellant

BVA Law, Palmerston North for Respondent

21 Above at [20].

22     Police v Faith, above n 2, at [32].