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  it  was 100 mtrs away. When he made his first statement to Det Kirifi on the day of the crash, he stated that the bike came from behind the red car and crashed into him. He maintained this  explanation  in  his  second  interview  with Det Ratcliffe on 6 April 2023.

[81]      In his evidence in chief, he was clear his view was not obstructed by the parked Previa van on the side of the road. He could see over the Previa van, because he was able to see the red Mazda about 100 metres away. He did not see the Harley Davidson that was in front of the red Mazda. Had he seen the motorbike, he is clear, he would not have pulled out of the driveway.

[82]      In this context, one must apply the New Zealand Road Rules that are applicable. I find that when Mr Kumar was at the top of the driveway, he was not required to come to a complete stop before exiting the driveway, there was no STOP sign or a GIVE WAY sign.

[83]      However, when a driver is pulling out of a driveway onto a busy road, the driver is required to ensure that the way is clear before exiting the driveway. The requirement is like the give way rules. Mr Kumar was familiar with Saleyards Road having driven regularly on that road since 2016. The crash happened around 5pm in the afternoon. This is often referred to as peak hour traffic time.

[84]      The weather conditions were fine. The daylight was not fading. The environment is not considered a contributing factor. Mr TODD was wearing a reflector TOLL work jacket. The top half of the jacket was bright orange in colour, and the bottom half was green in colour.

[85]      Mr Kumar’s driver’s window was ¾ quarters down. Ms Sullivan’s evidence is that the rumble of the Harley Davidson’s engine was an 8 out    of 10.

[86]      I find that Mr TODD was visible on the road. He should have been seen and the motorcycle should have been heard. The rumble of the Harley Davidson was heard on the CCTV footage.

4      Police v Kumar [2024] NZDC 18304.

[87]      I find that Mr Kumar’s view was obstructed by the white Previa Van that was parked on the side of the road. When Mr Kumar looked left, he could see cars approaching; when he looked right, he could see the red Mazda. However, Mr TODD on his Harley Davidson was in front of the red Mazda and Mr Kumar did not see him.

[88]      I accept that the crash put Mr Kumar into a state  of shock.  I  find Mr Kumar a genuine witness, his recall however is challenged by the independent CCTV footage that was submitted in evidence by Prosecution and reviewed frame by frame in slow motion and then again in real time.

[89]      Applying the objective test, I find that a reasonable and prudent driver would not have pulled out  onto  Saleyards  Road in these  circumstances.  Mr Kumar was careless by failing to ensure the road was fully clear before turning right out of the driveway to make his way across to the flush median lane.

[90]For the reasons set out above, I find the charge proven.

The case for Mr Kumar on appeal

[10]   On behalf of Mr Kumar, Mr Butler contends the Judge erred in finding the charge proved.

[11]   First, Mr Butler emphasised the steps Mr Kumar took before making the righthand turn:

i.Mr Kumar was not speeding as he approached the end of the driveway.

ii.Mr Kumar did keep a proper look out as was required of him.

iii.Mr Kumar applied his brakes as he approached the end of the driveway to slow his vehicle down further.

iv.Mr Kumar positioned himself in a way that he could check the road was clear before moving off.

v.Mr Kumar intended to enter the centre flush median as this was the safest course of action.

vi.Mr Kumar checked to his left and to his right twice prior to moving off.

vii.Mr Kumar could see the red Mazda to his right, but no motor bike could be seen.

[12]Second, Mr Butler emphasised the manner and speed of Mr Todd’s driving:

(a)   in the seconds before the crash and (b) a little earlier that afternoon:

i.41 Salesyard Road is approximately 530 metres from 15 Salesyard Road.   The speed of the red Mazda at this point was 54 kph and    Mr Todd was travelling at 69 kph seen illegally entering through the right turn bay.

ii.30 Salesyard Road is approximately 481 metres from 15 Salesyard Road. Mr Todd is again seen illegally overtaking using the painted flush median.

iii.26A Salesyard Road is approximately  380  metres  from  number  15 Salesyard Road.

iv.25A Salesyard Road is approximately  180  metres  from  number  15 Salesyard Road. When passing the Southern Gate Mr Todd was travelling at 94.3 kph and when travelling past the Northern Gate  Mr Todd was travelling at 76.7 kph.

v.As travelling past number 21 Salesyard Road Mr Todd was travelling at 79 kph. Number 21  Salesyard  Road  was  estimated  by Constable Jason Brown to be 105 metres away.

[13]   Third, Mr Butler argued Mr Kumar was not required to anticipate an oncoming motorist driving  as  Mr  Todd  did.  He  contended  the  case  is  analogous  to  Lowen v Police in which Whata J concluded:5

…the act of carelessness must be demonstrated on the facts to the beyond reasonable doubt standard. The evidence in this case is that the appellant looked twice to check the road was clear. Undoubtedly had she seen a cyclist in the left lane at any time she would have needed to take greater care. But she did not, and nor is it available to assume a cyclist might materialise within the short span of time it took the appellant to move onto Riccarton Avenue and off it again. Accordingly, the benefit of the doubt about whether there was such a risk must go to the appellant.

Analysis

[14]   A person drives carelessly if they do not drive with the degree of care and attention a reasonable and prudent driver would exercise in the circumstances.6

[15]   As observed earlier, the incident was caught on closed-circuit television footage from various angles. That footage shows Mr Todd speeding and, moments

5      Lowen v Police [2012] NZHC 2057 at [23].

6      Simpson v Peat [1952] 2 QB 24 at 27–28; and Savieti v Police [2021] NZCA 176 at [32].

earlier, using the flush median to unlawfully overtake other motorists. However, that footage also shows Mr Kumar turning into Mr Todd’s path, when the latter was wearing a high visibility jacket. The question then becomes, did the Judge err in concluding Mr Kumar drove carelessly in causing Mr Todd’s death?

[16]   Senior Constable Jason Brown is a serious crash analyst with many years’ experience in that field. Senior Constable Brown analysed the scene and the evidence, including the footage. The officer testified. He said he noted two parked cars close to the driveway from which Mr Kumar was leaving; one a Toyota Previa, the other a Toyota Prius. The officer considered Mr Kumar would not have been able to see over the top of the Previa, but might have been able to see over the top of the Prius. Had that been so, Mr Todd would have been visible to Mr Kumar from approximately  105 metres away. Senior Constable Brown then added:

13.23When TODD moved back into the lane, he was approximately 85 metres from KUMAR’s driveway, in full view, with no vehicles between him and KUMAR.

13.24As KUMAR moved out onto Saleyards Road turning right, TODD rode into the path of KUMAR’s Nissan.

13.25The front of the Nissan impacted the left side of the Harley Davidson, causing the Harley Davidson to tip over onto it’s right side…

13.26TODD was thrown off and onto the left side of the Harley Davidson where he continued to fall forward onto the road with the upper right portion of his back sliding along the road surface…

[17]   As will be apparent, Senior Constable Brown’s evidence was that Mr Todd was “in full view” of Mr Kumar over a distance of approximately 85 metres. This aspect of the officer’s evidence was not challenged; indeed, no real challenge was made to any aspect of the officer’s (expert opinion) evidence. Furthermore, Mr Butler said in response to a question from me this evidence could not be challenged.

[18]   It follows the Judge had uncontroversial evidence Mr Todd  was visible to  Mr Kumar from a distance of approximately 85 metres, but for whatever reason, not seen by him. That Mr Todd was speeding still left Mr Kumar several seconds in which to detect Mr Todd and give way. Mr Kumar did not do so. Instead, he continued turning right into Mr Todd’s path. In short, Mr Kumar did not see Mr Todd when he could and should have. Expressed in terms of the law, Mr Kumar did not drive with

the degree of care and attention a reasonable, prudent driver would exercise in the circumstances. Like the Judge  then,  I  consider  the  evidence  established  guilt.  Mr Kumar turned right onto a busy street — which he knew to be so — and for whatever reason, failed to see an oncoming motorist, albeit one speeding.

[19]   Two  things  provide  some  (modest)  support  for  this  conclusion.  First,  Mr Todd’s motorbike was noisy; its engine can be heard on the footage. This has relevance as Mr Kumar’s window was three-quarters of the way down. Second, the footage shows a line of motorists leaving the same driveway as Mr Kumar did, a little earlier that afternoon. All waited before making the turn. Mr Kumar did not. He braked, but then pulled out, straight away.

[20]   Lowen is, as will be apparent, distinguishable. In that case, it was not reasonable for the defendant to anticipate the path of another motorist. But in this case it was, as Mr Kumar was turning right onto a busy road during peak hour traffic, again, in circumstances in which he could have seen Mr Todd approaching and given way.

[21]   All of which is to say the Judge did not err, let alone to have caused a miscarriage of justice.

Sentence appeal

[22]   At sentencing, Mr Kumar informed the Judge he preferred a sentence of community detention over community work because of his age and other concerns. As observed, Mr Kumar was sentenced to five months’ community detention and disqualified from driving for 12 months. He was also ordered to pay reparation of

$7,500.

[23]   Mr Butler contends the sentence  is,  overall,  manifestly  excessive  given  Mr Kumar’s momentary inattention; the factors at [11] and [12]; and the (five) cases described below.

[24]   In Bassett v Police,7 the defendant fell asleep and crossed the centre line, hitting two cars. The driver of the second was killed, and passengers in both were badly injured. Mr Bassett pleaded guilty. The District Court imposed 300 hours of community work, 12 months’ disqualification, and $7,500 reparation in connection with the deceased, on the basis culpability was moderate to serious given Mr Bassett had been warned repeatedly against driving while tired.8 The sentence was upheld on appeal.

[25]   In Eades v Police,9 the defendant drove while jetlagged after visiting his dying mother. He fell asleep and hit a lamp post. His passengers — wife, cousin, and granddaughter — were killed. Mr Eades pleaded guilty promptly. Reparation was not sought. This Court quashed the term of 150 hours’ community work and substituted the 60 hours undertaken. But the 12-month term of disqualification went unchanged.

[26]   In Ramsay v Police,10 the defendant struck a person on a mobility scooter using a pedestrian crossing. The victim died. On appeal, this Court reduced the disqualification period from 15 months to 11 months, but the sentence comprising 200 hours’ community work and reparation of  $3,000 was otherwise unchanged.  Ms Ramsay pleaded guilty.

[27]   In Wood v Police,11 the defendant struck an oncoming car, killing a passenger and badly injuring the driver and another passenger. The defendant’s car was on the wrong side of the road “by  a  very  considerable  margin”12  but  culpability  was  “no greater than moderate”.13 On appeal, the period of 18 months’ disqualification was reduced to 12 months, but the term of 200 hours’ community work went unchallenged.

[28]   This leaves Barr v Police,14 which is somewhat similar. The defendant turned out of her driveway (onto a state highway), into the path of a motorcyclist. He was

7      Bassett v Police [2014] NZHC 2188.

8 At [36].

9      Eades v Police HC Christchurch CRI-2009-409-135, 3 December 2009.

10     Ramsay v Police HC Timaru CRI-2008-476-23, 10 September 2008.

11     Wood v Police HC Hamilton CRI-2008-419-85, 1 May 2009.

12 At [6].

13 At [29].

14     Barr v Police HC Rotorua CRI-2011-463-42, 28 November 2011.

killed. The District Court imposed 220 hours of community work; disqualification for two years and six months; and reparation of $8,000. On appeal, this Court reduced the disqualification period to nine months but otherwise upheld the sentence. Unlike Mr Todd, the victim had not been speeding or otherwise driving poorly, but unlike Mr Kumar, Ms Barr pleaded guilty “at the first possible opportunity”.15

[29]   I respectfully disagree with Mr Butler the constellation above illustrates a manifestly excessive sentence. The cases reveal ultimate disqualification periods between nine and 12 months; terms of community work mostly between 200 and  300 hours; and not insubstantial reparation orders. As Mr Fountain for the respondent observes, Mr Kumar’s sentence falls within these brackets once allowance is made for his preference for community detention. I restate the obvious: Mr Todd’s driving was poor, but Mr Kumar did fail to give way on a busy road. Unlike most of the defendants above, he did not plead guilty. Indeed, the pre-sentence report referred to Mr Kumar maintaining his not guilty plea. This appeal is confirmatory of that stance.

[30]It follows there is no error in the sentence and no issue of a different one arises.

Result

[31]The appeal is dismissed.

[32]I thank counsel for their excellent written and oral submissions.

……………………………..

Downs J

15     Barr v Police, above n 14, at [5].