Kumar v Police - [2025] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000731

[2025] NZHC 673

BETWEEN
BASANT KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 March 2025

Counsel:

EJ Butler and H Gherra for Appellant CM Fountain for Respondent

Judgment:

31 March 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 31 March 2025 at 10 am.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Manukau.
Public Defence Service, Manukau.

KUMAR v POLICE [2025] NZHC 673 [31 March 2025]

The appeal

[1] Basant Kumar was found guilty of careless driving causing death.1 Mr Kumar was ordered to complete five months’ community detention and pay reparation of
$7,500. He was disqualified from driving for 12 months.

[2] Mr Kumar appeals conviction and sentence. The conviction appeal must be allowed if the District Court erred in its assessment of the evidence to such an extent a miscarriage of justice has occurred.2 The sentence appeal must be allowed if there is an error in the sentence and a different one should be imposed.3

Background

[3] No real dispute attached to the facts, presumably because the incident was captured by closed-circuit television footage from a variety of angles.

[4] Saleyards Road is a busy road in Ōtāhuhu. At approximately 5 pm on 26 October 2022, Craig Todd was riding his motorbike north on Saleyards Road. Mr Todd was speeding. He had been using the flush median to unlawfully overtake other motorists.

[5] Mr Kumar worked at 15 Saleyards Road and was leaving for the day. Mr Kumar was in his Nissan Mistral. When Mr Kumar reached the end of the driveway at number 15, he braked, almost stopped, and then turned right onto Saleyards Road. He was heading south, toward Mr Todd. Mr Kumar had seen, some distance away, an oncoming red Mazda. However, Mr Kumar did not see Mr Todd, who was closer to him and approaching at speed.

[6] Mr Kumar’s righthand turn crossed Mr Todd’s path. The collision caused Mr Todd to slide into the southbound lane. He was struck by an oncoming car — and killed.

1      Land Transport Act 1998, s 38(1A)(b) and (2); maximum penalty, three months’ imprisonment or fine not exceeding $4,500; and disqualification from driving for six months or more.
2      Criminal Procedure Act 2011, s 232(2)(b).
3      Criminal Procedure Act, s 250(2).

[7] As observed, it was common ground Mr Todd was speeding and had, moments earlier, been using the flush median to overtake other motorists. Mr Todd was wearing a distinctive reflector jacket, which was bright orange and green.

[8] Police alleged Mr Kumar failed to give way to Mr Todd. At the heart of the charge was the proposition that Mr Kumar could and should have seen Mr Todd, but for whatever reason, did not see him in the several seconds before the collision.

[9]Judge A S Alofivae found the charge proved:4

[80] Mr Kumar’s evidence is that he saw the red Mazda when…

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.

Continue reading Kumar v Police

Details

AGLC: Kumar v Police [2025] NZHC 673
Case: [2025] NZHC 673
Decision Date: 31 March 2025

CaseChat Overview and Summary

Basant Kumar appeals his conviction and sentence for careless driving causing death, following his turn into the path of Craig Todd, who was riding his motorbike north on Saleyards Road. Mr Todd was wearing a high-visibility jacket and was speeding, having been using the flush median to unlawfully overtake other motorists. Mr Kumar turned into Mr Todd's path, causing the collision that killed Mr Todd. The District Court found Mr Kumar guilty and sentenced him to five months’ community detention, a $7,500 reparation order, and a 12-month driving disqualification.

Mr Kumar argues the District Court erred in finding the charge proved and that the sentence is manifestly excessive. On the conviction appeal, Mr Kumar's counsel submits that the District Court should have found Mr Kumar not guilty because he did not see Mr Todd when he could and should have. The Crown contends the District Court's finding of the charge proved was correct because the evidence established Mr Todd was visible to Mr Kumar from a distance of approximately 85 metres. The Court finds the District Court did not err in concluding Mr Kumar drove carelessly in causing Mr Todd's death. The Court further finds the sentence is not manifestly excessive and dismisses the appeal.

The appeal is dismissed.

Orders