Mohaghegh v Police
[2024] NZHC 1909
•11 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000193
[2024] NZHC 1909
BETWEEN ARMAN MOHAGHEGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 June 2024 Appearances:
T Clee for the Appellant
M Nash for the Respondent
Judgment:
11 July 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 11 July 2024 at 4 pm Registrar/Deputy Registrar
Solicitors:
T Clee, Barrister, Auckland
M Nash, Meredith Connell, Auckland
MOHAGHEGH v NEW ZEALAND POLICE [2024] NZHC 1909 [11 July 2024]
Introduction
[1] Arman Mohaghegh appeals his conviction following a judge-alone trial before Judge D J Sharp in the Auckland District Court on 16 June 2023.1 The conviction entered was careless driving causing injury, an offence against s 38 of the Land Transport Act 1998.2
[2]He now appeals his conviction.
[3] There is no dispute that Mr Mohaghegh carelessly rode an e-scooter and caused an accident. The appeal is focused on a relatively narrow point—whether any injuries that the motorcyclist received as a result of the collision amounted to an “injury” for the purposes of the charge.
[4] The appellant accepts that in the event the conviction is quashed on appeal, the lesser charge of careless driving is proven. He asks that the conviction be quashed, and the matter remitted back to the District Court to ascertain eligibility for diversion or other resolution.
The facts
[5] Mr Mohaghegh was driving an e-scooter on Grafton Bridge, Grafton Auckland. He drove on the wrong side of the road across double yellow lines to overtake a bus. He collided with a motorcyclist head-on.
[6] The motorcyclist fell and hit his head on the road. He gave evidence that he lost consciousness. He also said that he vomited in the ambulance on the way to hospital. He suffered bruising to his shoulder and lower lip. He also mentioned a bruised hip and shoulder in cross-examination. He was discharged from hospital after six hours, once he had passed a test referred in the hospital notes as the “Westmeads” test. He maintained at trial that he suffered headaches and fatigue for approximately two weeks afterwards. This was not referred to in his original statement to Police.
1 New Zealand Police v Mohaghegh [2023] NZDC 29538.
2 Land Transport Act 1998, s 38. Maximum penalty of up to three months’ imprisonment or a fine not exceeding $4,500, and the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
District Court decision
[7] The Judge expressly acknowledged and focused on the element of the charge requiring proof of injury to the victim. In essence he accepted the evidence given by the victim as to loss of consciousness. In that context he stated:
[5] Injury is analogous to bodily harm. In this case, what appears from the circumstances is that either [Mr K] suffered shock from the accident to a degree that induced nausea and vomiting and absence of recollection or that the result of his head making contact with the road or the defendant was enough to induce the unconsciousness and the mild form of concussion.
[6] In addition to these factors, [Mr K] spoke of the superficial grazing to his lips at a later period, and this is referred to in a police victim impact statement which I have been shown, relates to injury to his shoulder, bruising which came out in respect of his lips, those also being factors the prosecution relies upon.
[7] Mr Clee takes the position that there is not proof beyond reasonable doubt of the requisite injury.
[8] On my appreciation of the evidence, the logical and reasonable inference which is the only tenable inference is that it was the collision that led to the unconsciousness and that the circumstances were there was a bodily injury. In terms of harm caused to the complainant, I am pleased that it was [at] the lower end of the scale by some margin but I do not reach a point that there is not proof of an injury. The presence of an unconscious state is a bodily injury. It does not have to be permanent but it must be more than transitory or trifling and indeed in this case, [Mr K] has spoken of the time that he has had to take off work and the other effects of a concussion that although referred to as mild in the medical diagnosis still had worrying and lasting for a period of time as impacts on the person who was involved in the accident. Accordingly, I find that the prosecution do establish the requisite element of an injury to the point that it is beyond reasonable doubt and the charge is proven.
Grounds of appeal
[8] Counsel for the appellant challenged the sufficiency of evidence. He submits that a witness is not capable of reliably giving evidence of their own loss of consciousness; the medical discharge papers relied on by the prosecution were equivocal and no expert medical evidence was presented to dispel the equally valid narrative that the witness suffered shock rather than injury. As Mr Clee put it, a person who has no recollection of a period of time, cannot themselves recall whether they were unconscious or are shocked and/or dazed and have no recollection.
[9] The respondent opposes the appeal. Counsel for the respondent submits that there was sufficient evidence that the victim was both knocked unconscious and suffered a mild concussion because of the collision. She submits both are injuries for the purpose of s 38 of the Land Transport Act (the Act). She further says that the victim suffered other injuries which would also have provided a sufficient alternative basis for conviction.
Discussion
[10] The Judge accepted both that there had been loss of consciousness and that the loss of consciousness amounted to injury. He found it was more than transitory or trifling in view of the victim’s evidence of the effects of concussion in the following weeks.
[11] The appellant challenges the finding of an unconscious state and that it amounts to a bodily injury if proven. He contends there is no evidence of an “unconscious state” and that the victim’s oral evidence was not his own recollection but formed later.
[12]The victim’s evidence in chief was:
So as I got hit I remember feeling the impact and after that nothing else. I lost consciousness and the next thing I remember was waking up on the floor.
I don’t actually remember the few seconds after the impact. I remember…when I woke up my teeth had felt like they were kicked in.
I passed out. It was very, very intense. I remember blacking out and then after a few seconds I came to again. Everything was very, very fuzzy.
I passed out and as that moment happened I actually couldn’t remember anything that had happened a few minutes before that.
[13] That evidence needs to be viewed in light of the evidence in the recorded hospital clinical summary notes although Mr Clee describes these as ambiguous and uncertain.
[14]The clinical summary states:
(a)Does not recall events, likely LOC; and
(b)In ambulance, initially looked well. Had a period of 2-3 mins of altered LOC, a bit confused and drowsy.
[15] It is common ground that certain parts of the notes recorded in the hospital clinical summary were attributable to the ambulance officer. It is reasonable to infer that “LOC” refers to loss of consciousness, but it is not as clear what “altered LOC” means.
[16]The hospital clinical summary records at the top:
(a)Primary diagnosis: minor head injury
(b)Secondary diagnoses: superficial abrasions both lips
[17] The clinical summary records a “CT Head non con - no intracranial injury” and “[n]o significant injury, likely mild concussion.” An ACC form was completed and a minor head injury/concussion advice sheet provided to the victim on discharge.
[18]By the time of discharge the clinical summary noted:
(a)CT found no intracranial injury;
(b)passed Westmeads; and
(c)concluded as “likely mild concussion”.
[19] The victim did not require treatment, presumably because this “injury” would resolve over time without intervention. Notably the victim gave evidence that it took him multiple attempts before he passed the Westmeads recall test.
[20] The Judge had the benefit of seeing and hearing the victim give evidence. He clearly assessed him as credible and reliable. I agree that there was ample support for the Judge to properly conclude beyond reasonable doubt that the victim had been
knocked unconscious and suffered a mild concussion. I see no reason why an unconscious state, even a temporary one, cannot amount to a bodily injury in circumstances where there is corroborative evidence of an impact and force. I do not find the case of R v McArthur3 to say otherwise. The Judge in that case distinguishes between a dazed state and a bruise, rather than an unconscious state and a bruise. But, in any event, even a mild form of concussion amounts to an injury. It was put to the witness that ongoing headaches may have been caused by the shock of the incident and he rejected that proposition. I accept that there was no basis for the Judge to conclude that “shock” could or would lead to the ongoing impacts described by the witness.
[21] That means it is not necessary to determine whether the other injuries described by the victim—including those which developed days after the incident—also amount to injuries. Those injuries included abrasions and grazes ending up with a bruised lip and ulcers in the mouth. There was also reference to a bruised hip. The victim gave evidence that he could not eat for a few days and that it was extremely painful. Clearly that amounted to interference with the victim’s health and comfort. It is however worth noting the decision of Kouznetsov v New Zealand Police4 in which a “grape- sized bruise” not requiring treatment was an injury for the purposes of s 38 of the Act.
[22]It follows that the grounds for appeal fail.
Result
[23]The appeal against conviction is dismissed.
............................................................
Walker J
3 R v McArthur [1975] 1 NZLR 486 (SC)
4 Kouznetsov v New Zealand Police [2014] NZHC 1482.
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