Karauria v Police
[2020] NZHC 2413
•16 September 2020
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2020-476-000014
CRI-2020-476-000013 [2020] NZHC 2413
BETWEEN RICHARD ZACK KARAURIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 September 2020 Appearances:
T Jackson for the Appellant H Bennett for the Respondent
Judgment:
16 September 2020
JUDGMENT OF DOOGUE J
This judgment was delivered by Justice Doogue on 16 September 2020 at 3.00 pm.
Registrar/ Deputy Registrar Date:
Solicitors:
Crown Solicitor, Christchurch
KARAURIA v NEW ZEALAND POLICE [2020] NZHC 2413
Introduction
[1] The appellant, Mr Karauria, appeals against conviction following a judge-alone trial in the District Court at Timaru on 19 June 2020.1
[2] Mr Karauria originally faced a charge of sustained loss of traction,2 which Judge Rollo amended to careless use of a motor vehicle at the conclusion of the trial.3
[3] Mr Karauria appeals the decision, on the ground that the Judge, on amendment of the charge, erred in concluding the evidence amounted to proof of careless driving to such an extent that a miscarriage of justice occurred.
Background
[4] The incident giving rise to the charge occurred on 28 October 2019, when Mr Karauria drove a car on Seadown Road, Timaru.
[5] An independent witness was nearby when she heard a loud noise. She walked around the corner and observed Mr Karauria’s partner’s car in the irrigation ditch at the T-intersection of Beach Road and Seadown Road.
[6]Another car arrived at the location, which Mr Karauria was driving.
[7] The independent witness saw Mr Karauria take his partner out of the car which was in the ditch, and put her in the back seat of his car. The independent witness asked Mr Karauria’s partner if she needed an ambulance. She replied she did not, but the witness decided to ring the police in any event. The witness remained on the phone with the police until they arrived.
[8] The witness observed Mr Karauria get into his car and accelerate away at speed. She said the movement caused the car to “fishtail” as it came off the grass and onto the road.
1 Police v Karauria [2020] NZDC 14023.
2 Land Transport Act 1998, s 36A(1)(c); maximum penalty three months’ imprisonment or fine of
$4,500.
3 Section 37; maximum penalty $3,000 fine.
[9] The witness then observed Mr Karauria drive on and do two 360-degree spins in the car, and again drive the car at speed, and finally do a fast U-turn. Mr Karauria then returned to his partner’s car in the ditch, and started taking property out of the back of it. The first responders arrived shortly thereafter.
Issues raised by the Appeal
[10]The issues for the Court are whether:
(a)Mr Karauria made the driving manoeuvres as alleged above (being the two incidents of “fishtailing”, the two 360-degree spins, and the U-turn at high speed); and
(b)Mr Karauria’s actions were conscious acts.
The District Court decision
[11] The Judge first gave a brief summary of the background facts, and then set out the prosecution evidence from the independent witness and the attending police officer (Constable Mackay).
[12] The Judge recorded that Constable Mackay gave evidence that there were significant tyre marks on the roads where the events took place. There were factors which indicated they had been made by Mr Karauria’s car, including:
(a)the freshness of the tyre marks;
(b)Mr Karauria’s car had a space-saver wheel on the front left, which was consistent with the tyre marks that were on the road; and
(c)the position of the tyre marks was consistent with the evidence given by the independent eye witness as to where Mr Karauria drove.
[13] The Judge set out the defence evidence given by Mr Karauria. Mr Karauria said he left the scene with his partner, who was bleeding, in order to put his car in a safer position by the side of the road and to be able to unload his partner’s car.
[14] The Judge then considered the mental element of the charge of “sustained loss of traction”. He considered that he had to be satisfied beyond reasonable doubt that the state of “sustained” loss existed in the sense that it was consciously allowed or caused to continue by the driver. The Judge considered he could not be satisfied that the loss of traction observed by the independent eye witness was a conscious act instead of an accidental loss of traction.
[15] The Judge considered the charge should be amended to one of careless driving under s 37 of the Land Transport Act 1998. Counsel for Mr Karauria did not oppose the amendment.
[16] The Judge then considered he was satisfied beyond reasonable doubt that the scale and essence of Mr Karauria’s deliberate acceleration of the car in the circumstances fell below the standard of reasonable and prudent care of an average motorist. He did so on the basis of the evidence of the independent eye witness, Constable Mackay, and on Mr Karauria’s own evidence regarding his driving.
Principles governing conviction appeals
[17] Mr Karauria appeals his conviction under s 229 of the Criminal Procedure Act 2011.
[18] The Court must allow Mr Karauria’s conviction appeal if it is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.4 A miscarriage of justice means 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.5
4 Criminal Procedure Act 2011, s 232(2)(b)-(c).
5 Section 232(4).
[19] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.”6 This standard means that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe, only that there is a real possibility the verdict could be unsafe.7
[20] An appeal against conviction proceeds by way of rehearing.8 If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.9 However, the appellant must show that an error has been made.10 Further, the appellate court must remember the advantages a trial Judge has especially where the challenge is to credibility findings based on contested oral evidence.11
Submissions
Appellant’s submissions
[21] It is not at issue that the relevant events occurred on 28 October 2019, as described above.
[22] Mr Jackson, counsel for Mr Karauria, did not take issue with the Judge’s power of amendment, and he acknowledged that he did not make any submissions against the amendment at the trial. However, he wished to record he did not concede that there was sufficient evidence to prove the amended charge.
[23]Mr Jackson referred to [16] and [17] of the Judge’s decision:
[16] I am satisfied on the evidence I have heard that the scale and essence of your driving which was deliberate by your acceleration in those circumstances, falls below the standard of reasonable and prudent care of the average motorist, and in that sense, you have committed the offence of ‘careless use of a motor vehicle’.
6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
7 At [110].
8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
9 At [38].
10 At [38].
11 At [38].
[17] So, I accept the observations of [the] independent witness. I substantially accept the inferences drawn by Constable Mackay from his observations of the skid marks on the road and from the evidence that he heard from [the independent witness] and also the confirmation in your own evidence of your standard of driving. It was below that of a reasonable and prudent motorist by a significant degree, Mr Karauria. Therefore, I am satisfied that is the appropriate charge and I find the charge proven.
[24] Mr Jackson argued that it is not clear from the decision which facts were accepted as proved or which of the proved facts amounted to proof of carelessness. The basis for the conclusion was therefore reliance on: the acceptance of the independent witness; inferences drawn by Constable Mackay from his observations of the tyre marks on the road, and from what he had been told by the independent witness; and confirmation in Mr Karauria’s evidence of his own standard of driving.
Respondent’s submissions
[25] Ms Bennett, for the Police, submitted that it was open to the Judge to prefer the evidence of the independent witness over Mr Karauria, and the Judge was correct as to the finding of fact that Mr Karauria did the alleged actions that constituted loss of traction.
[26] As to the mens rea element of the charge, Ms Bennett submitted that as the Judge was not satisfied beyond a reasonable doubt that the action was deliberate, it was appropriate to amend the charge to one of careless use of a motor vehicle. She submitted the Judge was correct to find that charge was proved against Mr Jackson.
Analysis
Was the independent witness’ evidence reliable?
[27]Dealing with each of these in turn, Mr Jackson submitted that:
(a)it was reasonably doubtful that the independent witness could have seen Mr Karauria’s driving on Dominion Road;
(b)at best, all she could have seen was Mr Karauria driving away quickly, then driving to and turning left onto Dominion Road; and
(c)she may simply have seen Mr Karauria turn his car around once and come back in a hurry.
[28] Mr Jackson’s submission was that there was a possibility the witness had conflated what she had heard and seen with notions of street racing or other known driving behaviour in that vicinity.
[29] I have reviewed the transcript, and in particular the cross-examination as to whether or not the independent witness could have seen Mr Karauria and his movements on Dominion Road. The witness was consistent and adamant that she did see his driving on Dominion Road. She evidenced a very good knowledge of the area, and specific knowledge of the trees and the gap through which she was able to observe Mr Karauria.
[30] Throughout her evidence she was unshaken on the core elements of carelessness, being the sudden acceleration and erratic behaviour as Mr Karauria drove away, skidded, and fishtailed. She described the speed Mr Karauria maintained, the turns that he did at speed, the sounds accompanying the skidding, and then what the witness termed the “squealy” as Mr Karauria skidded his wheels sharply coming out of the corner back towards Seadown Road from Dominion Road.
[31] The fact that Mr Karauria’s driving was erratic and fast is evidenced by her fear of the consequences of the driving when she was questioned about him coming back out of Dominion Road and onto Seadown Road; in her evidence she said:
It hadn’t calmed down. Like he was still travelling at speed and the comms lady heard the squeal noise on the phone and I said “I’m getting out of here because I think he’s going to run us over.”
[32] I consider that the witness was unshaken on her core testimony, and that she was a reliable and informed witness who observed Mr Karauria drive in circumstances that fell below the standard of reasonable and prudent care of an average motorist. I find the Judge was entitled to find the witness reliable.
Was the Judge correct to draw the inferences he did from Constable Mackay’s evidence?
[33] Mr Jackson established through his cross-examination that the Constable had not seen any of the driving. He conceded he was not a designated traffic-crash investigator and that no traffic-crash investigation was carried out in relation to the events.
[34] The Constable confirmed that marks at the scene were consistent with someone simply turning around in a hurry, rather than doing a donut or coming to a stand-still and accelerating thus causing a sustained loss of traction. There is nothing in my estimation particularly conclusive in the Constable’s evidence, apart from his observations about the marks associated with the acceleration. That is, in my view, the full extent of the conclusions that could be safely drawn about the markings on the road.
Was there confirmation in Mr Karauria’s own evidence of his standard of driving?
[35] Here, Mr Jackson submitted Mr Karauria’s evidence went no further than to explain his actions in that he was driving in an environment of urgency and he was panicking.
[36] In my view, the Judge was entitled to rely on confirmation by Mr Karauria himself that his driving fell below the standard of reasonable and prudent care of an average motorist. Mr Karauria admitted his judgment was clouded, that he was trying to be fast, and that he was angry. He acknowledged that he did leave a mark when he was turning, and that when he came around the corner it was gravelly and there was dust everywhere because he was “accelerating pretty fast but it was like I wasn’t going over 100 k/ph”.
[37] In summary Mr Karauria accepts that his driving was not prudent, that it was at speed and that he did skid.
[38] The fact that there were no cars in the area does not eliminate the potential for there to have been harm to others by virtue of the careless driving.
Conclusion
[39] On my evaluation of the evidence, the Judge was entitled as the fact-finder to rely on the evidence of the independent eye witness as to what she had seen, and the limited concessions made by Mr Karauria himself that he did deliberately accelerate and that his car did skid.
[40] The Judge was entitled on the evidence before him to find that Mr Karauria’s driving fell below the standard of reasonable and prudent care of an average motorist, thus constituting the elements of the charge of careless use of a motor vehicle.
Result
[41]The appeal against conviction is dismissed.
Doogue J
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