Pothula v Police
[2023] NZHC 2751
•29 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000348
[2023] NZHC 2751
BETWEEN SARATHU BABU POTHULA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 September 2023 Appearances:
N P Chisnall KC and J Din for the Appellant M W Nathan for the Respondent
Judgment:
29 September 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 29 September 2023 at 4.30 pm.
.....................................................
Registrar / Deputy Registrar
Counsel/Solicitors:
Nicholas Chisnall Kings Counsel, Central Auckland Bespoke Legal Limited, Central Auckland
Meredith Connell, Crown Solicitor, Auckland
POTHULA v NEW ZEALAND POLICE [2023] NZHC 2751 [29 September 2023]
Introduction
[1] On 23 March 2023, Sarath Pothula was convicted of two charges of careless use of a motor vehicle causing injury at a judge-alone trial before Judge S J Maude at the North Shore District Court.1 He was sentenced to 200 hours’ community work, reparation of $5,000 and disqualified from driving for six months. Mr Pothula now appeals those convictions.
[2] Mr Pothula argued that a miscarriage of justice occurred because the Judge erred in his assessment of the evidence for two reasons. First, the Judge failed to apply the proper standard of proof because he did not explicitly reject Mr and Mrs Pothula’s evidence that they were in the correct lane. Although the Judge said this scenario was “unlikely” he did not state whether and why it was not reasonably possible the defence evidence was true. Secondly, the Judge did not address the concessions made by Police witnesses that the collision may have occurred in the northbound lane and did not incorporate the expert’s opinion that it was not possible to determine where on the road the collision occurred.
[3] The Police oppose the appeal. They argue that the Judge expressly provided a reasoned assessment of the defence case, including the expert evidence. In any event, the Police submit that a finding of guilt is justified because the appellant was careless.
[4]The issues for determination are:
(a)Did the Judge err when determining which lane Mr Pothula was driving in?
(b)Did the Judge err in his application of the burden and standard of proof?
(c)Was Mr Pothula’s driving below the standard of a reasonable, prudent driver in the circumstances?
(d)Did a miscarriage of justice occur?
1 Land Transport Act 1998, ss 8 and 38. Maximum penalty is three months’ imprisonment or a
$4,500 fine. Police v Pothula [2023] NZDC 5363.
Facts
[5] On 2 January 2022, Mr Pothula was driving in a Mazda motor vehicle with his wife Mrs Pothula (also known as Ms Veerepalli) sitting in the front seat and cousin in the rear seat on State Highway 1 southbound towards Auckland. Realising they had forgotten something, Mr Pothula turned left off State Highway 1 onto Cowan Bay Road, performed a U-turn, then waited at the intersection of Cowan Bay Road and State Highway 1 to cross the southbound lanes, into the northbound, and return home.
[6] The intersection of Cowan Bay Road and State Highway 1 has a stop sign. State Highway 1 has one northbound lane and two southbound lanes. The outer southbound lane is sometimes referred to as the “slow lane” and the inner southbound lane as the “passing lane” or the “centre lane”. On that date it was a public holiday, and the southbound traffic was heavy. Mr Pothula waited at the intersection for approximately five minutes for a gap. Eventually, one appeared and so he pulled out across the two southbound lanes.
[7] Mr Chrustowski was travelling southbound in a Ford Mustang motor vehicle with his wife. The Mazda and the Mustang collided. There was extensive damage to the vehicles and Mr and Mrs Chrustowski were both seriously injured. That the accident occurred and that Mr and Mrs Chrustowski suffered injuries is accepted.
District Court decision
[8] Judge Maude set out Mr Pothula’s charges and recorded that “the police must prove the charge beyond reasonable doubt”.2 The Judge also laid out the legal test for careless use — that 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. After summarising the facts, the Judge outlined the evidence of the police case. He heard evidence from Mr Chrustowski, Mrs Chrustowski, the Officer- in-charge Constable Fruish and a bystander, Ms Boswell.
2 At [3].
[9] Mr Chrustowski’s evidence was that he was travelling southbound on the outside passing lane as he approached the Cowan Bay Rd intersection, and the traffic was bumper-to-bumper. He had just prior passed a white vehicle that was in the left south-bound lane (the slow lane). He described at the very last minute seeing Mr Pothula’s car coming at right angles to him attempting to get onto the State Highway 1 northbound lane. Mr Chrustowski described breaking heavily to avoid impact. According to Mr Chrustowski, the impact occurred in the outer southbound lane. The Judge recorded that when questioned about whether the impact occurred before the centre line Mr Chrustowski:
accepted that he could not be exactly sure extrapolating that he could not be sure if movement across the centre lane to the point where the vehicles came to rest on the other side of the highway would have occurred as a result of his breaking to avoid impact or impact itself.
Mr Chrustowski stated that right front of Mr Pothula’s vehicle hit the left front of his.
[10] Mrs Chrustowski stated that she estimated travelling at about 70 km/hr, below the speed limit of 80 km/hr due to the busy southbound traffic. She thought she saw Mr Pothula approximately 100 metres prior to impact when he was waiting at the intersection. She could not recall where impact occurred.
[11] Ms Boswell, the independent witness, described travelling northbound at the time of impact at approximately 75 km/hr. She witnessed a vehicle pull out of Cowan Bay Rd while southbound traffic was approaching and did not notice any vehicle travelling at speed. She saw the impact and described it occurring in the centre (southbound passing lane) of State Highway 1. The Judge then recorded her concession to Mr Pothula’s counsel that this description was from memory, which is not 100 per cent recall.
[12] Constable Fruish’s evidence was described by the Judge as “limited”. The Constable had not retained crash scene evidence; did not conduct follow-up interviews; did not determine the impact point; had not been able to discern vehicle speed and while he had identified road scarring, could not indicate whether it was caused by the vehicles of Mr Chrustowski or Mr Pothula.
[13] Judge Maude then summarised the evidence he had heard from the defence, from Mr Pothula, Mrs Pothula (also known as Ms Veerepalli) and crash investigation expert Mr Bass. Mr Pothula’s evidence was that he waited at the stop sign for approximately five minutes. He said he looked left and right, formed a view it was safe to pull out, then drove across the two southbound lanes on State Highway 1 turning to face northbound in the northbound lane, at which point Mr Chrustowski’s car hit his vehicle head-on. He had seen a white vehicle in the inner lane before pulling out but none in the outer lane. He was clear that pre-impact he had straightened his car to face north in the northbound lane. He said the impact point with the vehicle was on its front left. He denied his recall being affected by the accident or any shock.
[14] Mrs Pothula corroborated her husband’s account as to looking both ways (which she also did), entering and straightening on the northbound lane before impact, and the head-on impact towards the left-hand front side of the vehicle. She was adamant that Mr Chrustowski’s car had been completely in the northbound lane before impact. However, Judge Maude recorded that she had not seen any white car in the southbound lane, unlike her husband.
[15] The Judge then considered Mr Bass’ report and evidence. In summary, Mr Bass could not identify the point of impact; he could not attribute the road scarring to the accident although it was consistent with the accident; the resting position of the cars post-accident was consistent with both Mr Pothula’s and Mr Chrustowski’s accounts; Mr Pothula was within 40 per cent of members of the public who would insert themselves into a gap of traffic with less than six seconds from start point to collision, here being between 5 and 5.8 seconds, and that with every 20 seconds of wait time a driver’s propensity to proceed increases. Ultimately, the Judge concluded that he was not assisted by Mr Bass’ evidence.
[16] The Judge then assessed the competing evidence. He first recorded that Mr Pothula had injected himself into a gap in the traffic and there was a collision, so in the absence of evidence of victim speed or other intervening event not foreseeable by Mr Pothula, carelessness is to be presumed.
[17] Taking both accounts of where the collision occurred, the Judge reasoned that Mr Chrustowski’s vehicle hitting Mr Pothula’s vehicle on the front left corner was not consistent with Mr Pothula’s account of having proceeded out of the southbound lanes into the northbound lane. The only way that Mr Pothula’s car would have been struck on its front left while he was in the northbound lane would be if, on sighting Mr Chrustowski’s vehicle, Mr Pothula had veered right into the direction of the oncoming southern traffic. The Judge thought that behaviour would be unlikely.
[18] He then found there was no evidence of speed. Mr and Mrs Chrustowski indicated travelling less than the speed limit of 80 km/hr and the independent witness Ms Boswell did not indicate any other car or speed. Her evidence that she believed the impact occurred in the centre southbound passing lane corroborated the views of Mr and Mrs Chrustowski. The Judge concluded:
[68] Given the improbability that I have described of Mr Pothula’s view, and corroboration of Mr and Mrs Chrustowski’s view by the independent witness Ms Boswell, I am satisfied beyond reasonable doubt that Mr Pothula injected himself into the State Highway 1 southbound traffic lanes carelessly.
Legal principles
[19]Section 232 of the Criminal Procedure Act 2011 is relevant:
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)…
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[20] Where a Judge sitting alone is alleged to have erred in their assessment of the evidence, Austin, Nichols & Co Inc v Stichting Lodestar3 sets out the relevant approach for civil appeals conducted by way of rehearing.4 Under that approach:5
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. But … [s]ince it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”.
[21] In light of the s 232(2)(b) requirement of error in assessing the evidence “to such an extent that a miscarriage of justice has occurred”, the error must be one which in terms of s 232(4) “has created a real risk that the outcome of the trial was affected”. On that basis, the “different view of the evidence” described in Austin, Nichols is one that gives rise to such risk. A real risk arises if there is a reasonable possibility another verdict would have been reached.6 The court may exercise its discretion to dismiss an otherwise successful conviction appeal if it assesses the evidence and concludes a finding of guilt was inevitable.7
Did the Judge err when determining which lane Mr Pothula was driving in?
Appellant’s submissions
[22] Mr Chisnall highlighted the concessions made by the prosecution witnesses. Mr Chrustowski was unsure Mr Pothula had not crossed the centre line and straightened up. He accepted that the photographs depicted damage “across the front of” Mr Pothula’s vehicle. He also stated that he may have crossed the centre line prior to impact as a result of evasive breaking, while denying that it was a head-on collision.
[23] Counsel highlighted that during evidence-in-chief, Mrs Chrustowski could not be sure about what area of the road the collision occurred or where on the Mazda the
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
5 At [38] (footnote omitted).
6 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85;
and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
7 Sweeney v Police [2020] NZHC 803, citing R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145.
impact happened. During cross-examination, the independent witness Ms Boswell accepted that her memory was not perfect and she could not decisively refute there was a head-on collision. Mr Chisnall also underscored that the statement was taken some time after the incident and submitted Mrs Chrustowski’s memory was not fresh at that time.
[24] Mr Chisnall contended that the Judge treated Ms Boswell as the “breaker of an effective stalemate” between the prosecution and defence narrative. According to counsel, because of that approach, the Judge erred in four key ways. First, he failed to appreciate that Mr Bass’ evidence did assist the Court because it demonstrated that either scenario was plausible. The Judge therefore needed to articulate precisely why he had found the prosecution witnesses more reliable and credible than Mr Pothula and his wife and why the defence evidence was “unlikely” or “implausible”.
[25] Secondly, in treating Ms Boswell’s evidence as corroborative, the Judge did not take account of her concessions, which he included in his findings of fact. For example, she did not recall whether the vehicles collided head-on and her memory was not perfect. Her evidence was expressed in a tentative way and the Judge failed to take that into account. Thirdly, the Judge found that Ms Boswell’s evidence corroborated the Chrustowskis’ evidence. This was even though Mrs Chrustowski confirmed that she could not say in which lane the collision occurred. Mr Chisnall submitted this was a clear error in the assessment of the evidence.
[26] Fourthly, the Judge misstated Mr Chrustowski’s concession. He characterised the concession as that Mr Chrustowski could not be sure if movement across the centre lane occurred as a result of the impact or the evasive braking. However, the concession was more fundamental - that Mr Chrustowski could not be sure whether Mr Pothula’s vehicle had crossed the centre line and straightened up at the time of impact. Finally, Mr Chisnall emphasised that the attending officer did not determine point of impact.
[27] On the contrary, counsel submitted that Mr Pothula’s account was unshaken in cross-examination and was corroborated by his wife, that he had straightened into the northbound lane and the collision was towards the front left side. Mr Chisnall noted Mr Bass’ evidence that each case theory was “equally plausible”; that 40 per cent of
drivers would have executed the manoeuvre in the circumstances; and that, while the Judge did not record this evidence, Mr Bass also described the ways in which deficiencies of the road layout impede the ability to see approaching traffic.
[28] Regarding the impact being described on the front left of Mr Pothula’s vehicle, Mr Chisnall submitted the Judge did not make allowances for how quickly events unfolded. Counsel highlighted that the reasons for customary caution given in Sena v Police were not highly engaged here.8 The evidence did not emerge in a slow fashion and this Court would be in a similar position as to assessing the evidence. As to credibility, Mr Chisnall submitted this would not be conclusory, and credibility in this case could only be assessed with regards to the competing narratives of each party. Overall Mr Chisnall emphasised that it was not the case that the Judge had misstated the evidence, but that he did not consider and apply the concessions he had earlier recorded in his reasoning.
Respondent’s submissions
[29] Mr Nathan submitted that Judge Maude provided a reasoned assessment of the evidence. Counsel contended that the Judge provided “reasons which address the substance of the case advanced by the losing party” per Sena v Police.9 Counsel contended that the Judge acknowledged Mr Bass’ evidence, including that the resting positions of the cars was consistent with impact having occurred “either as described by Mr Chrustowski in the middle lane or Mr Pothula in the northbound lane”. Mr Nathan argued that it was reasonable for Judge Maude to conclude that Mr Bass’ evidence was unhelpful because there were deficiencies in the data available to him and he was unable to prefer one narrative over another.
[30] Counsel submitted that the Judge placed some weight on Mr Pothula and Ms Veerepalli’s evidence that the collision was the front left of their vehicle. He concluded it was unlikely Mr Pothula’s vehicle would have veered to the right such to be struck on the front left. Mr Nathan also highlighted that the Judge took account of the fact that the evidence given by Mr Pothula and Ms Veerepalli was inconsistent as
8 Sena v Police, above n 4.
9 At [37].
to whether they had seen a car approaching as Mr Pothula commenced his turn. Counsel contended that the foregoing was a rational and considered articulation of the narrative that Mr Chrustowski crossed the centre line which addressed and rejected a reasonable possibility that the substance of Mr Pothula’s case was true. It was inconsistent with any view of Ms Boswell’s evidence and inconsistent with the instantaneous nature of the crash put forward by the Chrustowskis.
[31] Mr Nathan then argued that the Judge correctly turned to assess the reliability of the prosecution evidence. Counsel submitted that any “concession” given by Mr Chrustowski as to the position of his car at point of impact must be seen in light of his otherwise clear evidence that he was in the southbound passing lane prior to impact. Mr Nathan contended that Mr Chrustowski’s uncertainty about whether collision with the Mazda or breaking prior to impact caused him to cross the centre line does not absolve Mr Pothula from liability. He argued that the effect of Mr Chrustowski’s evidence was correctly summarised in the decision.
[32] As to Ms Boswell’s evidence, Mr Nathan submitted this supported the conclusion that the collision occurred in the southbound passing lane. He contended the fact she could not recall “with 100 per cent certainty” was a reasonable concession that did not undermine the remaining evidence from a reliable witness. Accordingly, counsel argued that the Judge did not err in providing a reasoned assessment of the evidence. In any event, counsel urged the Court to remember that the Judge would have advantages in assessing credibility at trial.
Discussion
[33] I do not accept the appellant’s argument that the Judge was incorrect in determining which lane Mr Pothula was driving in at the time of the collision. Mr Bass’ report did not establish strong evidence that Mr Pothula’s account was probable. It was not a case where there were strong pieces of evidence which either each pointed differently towards one scenario or the other or were ambiguous as to which scenario they proved. Instead, the report and Mr Bass’ oral evidence highlighted the dearth of forensic evidence that might prove whose account was true. The high point of Mr Bass’ evidence was that the final resting position of the cars could have resulted from
either scenario. However, in light of Mr Bass’ acceptance that there was little evidence to base his conclusions on, the Judge was correct to conclude his evidence did not help to prove one or the other scenario. Mr Pothula’s account was only “equally likely” insofar as there was no forensic evidence that could establish either account.
[34] Judge Maude’s preference for the direct testimony of witnesses rather than expert witnesses presenting a theoretical approach based on a number of assumptions is supported in law by Wilson v Police.10 In addition, and in light of that, the Judge was entitled to make factual findings which relied on the credibility of the parties’ accounts rather than the forensic evidence. He was entitled to find that Mr Pothula and Ms Veerepalli’s accounts were internally inconsistent with reference to the lane and the impact point on their vehicle.
[35] Mr Chisnall’s submissions as to Mr Chrustowski’s “concession” must be assessed in light of his overall evidence. In evidence-in-chief Mr Chrustowski stated:
Q. Okay. Right, you said that you were travelling southbound up the State Highway 1 in lane two of the two, so by reference to the centre line dividing the northbound and southbound traffic, what do you mean by lane two of the two?
A. There is two lanes heading south and shortly after that it merges into one lane, so I was on the outside lane next to another car in lane one.
Q. Okay. Is it closer to the centre line dividing the northbound and southbound?
A. Yes.
…
Q. You ended up colliding with that vehicle. So, do you remember where on the section of the road State Highway 1 the impact occurred?
A. In the lane that I was in.
Q. Okay. Before it crossed the centre line?
A. I think so, yes. It all happened very fast.
[36] Mr Chrustowski also marked where he recalled the impact point being on a photograph of the scene. His marking is clearly in the centre lane.
10 Wilson v Police [2007] DCR 379 (HC).
[37]In cross-examination Mr Chrustowski gave the following evidence:
Q. You made it clear you were travelling in what you call the outside lane heading south, and whether it’s lane two or outside lane it’s the one closest to the centre line, is that right?
A. Correct.
…
Q. Thank you for that. Now when this vehicle pulled – or the dark vehicle, Mr Pothula’s vehicle, pulled out of Cowan Bay Road, you were in the inside lane, do you agree that his vehicle had crossed the centre line and had straightened up to head north?
A. No. No, the impact would have happened before that in my lane.
…
Q. Yes, thank you. And had that vehicle, or had Mr Pothula if I can put it in those terms, had he straightened up? Are you saying he straightened up in your lane, in your outside lane?
A. No, I think it was – no, it was a perpendicular thing, so sort of right-hand corner to my left-hand corner, and I imagine the frontal damage there is probably due to the Armco that it ended up hitting.
[38]The concession was follows:
Q. Can you say prior to the impact – well, my proposition to you is that just prior to the impact, prior to swerving but prior to the impact, you crossed the centre line and collided head-on with Mr Pothula?
A. No, it certainly wasn’t head-on. No.
Q. So is it your evidence therefore that the collision occurred, based from your memory and from the diagram, markings on the diagram, occurred while you were travelling south, you were still in the outside lane heading south on State Highway 1?
A. The impact, yeah.
Q. Yes.
A. Yeah.
Q. And that Mr Pothula’s vehicle was – hadn’t crossed the centre line, if I could put it in those words?
A. I can’t be sure, sorry, because we both ended up on the other side after the impact so quickly.
Q. So you can’t be sure that Mr Pothula hadn’t actually crossed the centre line and was straight (inaudible 11:07:56) –
A. I don’t think so.
Q. – had straightened up?
A. I don’t think so.
Q. But you’re not sure?
A. No.
[39] The Judge was entitled to find Mr Chrustowski’s account to be credible notwithstanding that he could not be certain where Mr Pothula’s car was at the point of impact. That is to be expected where events happen unexpectedly and quickly. Mr Chrustowski was consistent that he was driving in the centre lane. He never accepted that prior to attempting to take evasive action he crossed the centre line into the northbound lane. He also maintained that the collision was “perpendicular” and “certainly wasn’t head on”.
[40] This account was corroborated by Ms Boswell and Judge Maude was correct to take this into consideration. I agree with Mr Nathan that there is not much in Mr Chisnall’s submission on her concession that she could not be certain. Indeed, if a witness purported to be certain as to their evidence in circumstances like these that would likely adversely affect their credibility.
[41] Mr Chisnall submitted that the Judge incorrectly stated that Ms Boswell’s evidence corroborated both Mr and Mrs Chrustowski’s because Mrs Chrustowski could not be sure as to where the cars were. Although Mrs Chrustowski was not as equivocal as Mr Chrustowski, her evidence was consistent with his. In oral examination Mrs Chrustowski was asked to mark on a photograph of the road where their vehicle was when she first saw Mr Pothula’s vehicle. The diagram, which is in evidence before me, shows her marking in the centre lane. She clarifies the position of the marking as “Just there. Further back from Jurgen’s red,” referring to the impact point marked by Mr Chrustowski referenced above. In that context the following passage of oral examination is relevant:
Q. In your statement you said you noticed a vehicle waiting at the intersection of Cowan Bay Road, and obviously the vehicle that you were in ended up colliding with it, so how long would you say time wise when you saw first the vehicle waiting at the Cowan Bay Road and obviously the next minute is the impact?
A. A few second probably.
Q. In terms of the distance approximately between where you were when you first saw it and the next minute impact with the car, what would you say in terms of approximate distance?
A. 100 metres, maybe more. I’m not sure. I’m not sure what it would be.
Q. If you’re not sure, that’s fine.
A. It was so quick.
Q. So quick?
A. That – I glanced it, saw it and then next minute we were hit. It was very quick.
[42] So although Mrs Chrustowski could not recall precisely “where and the section of road the impact happened” on, her evidence was that she and Mr Chrustowski were travelling in the centre lane and a few seconds and short distance later collided with Mr Pothula’s vehicle.
[43] In addition, Mrs Chrustowski’s evidence referred to “everyone travelling a lot slower than we usually would be on that road”; “we were travelling at about 70kph”; and “it was just so much traffic that nobody was going fast. Everyone was going below the speed limit”. Mr Chrustowski’s evidence as to speed was more limited.
[44] After noting that there was no evidence of speed and that Mr and Mrs Chrustowski indicated travelling at less than 80 km/h the Judge concludes:
The independent witness, Ms Boswell, did not identify any other car or speed and indicated her belief that impact occurred in the centre southbound passing lane, corroborating the views of Mr Chrustowski and Mrs Chrustowski.
[45] Ms Boswell’s evidence corroborated Mrs Chrustowski’s evidence that there was no intervening speed and Mr Chrustowski’s evidence that the impact occurred in the centre southbound lane. In addition, the evidence Mrs Chrustowski could give as to the location of the Mustang shortly before the crash was consistent with the collision occurring in the centre southbound lane. Accordingly, I can discern no error in the Judge’s assessment of the evidence.
Did the Judge err in his application of the burden and standard of proof?
Appellant’s submissions
[46] Mr Chisnall submitted that the appeal cannot be dismissed on the basis of imperfect expression. Whether the charge was proved beyond a reasonable doubt turned on a reasoned resolution of a significant evidential dispute, namely whether Mr Pothula was on the wrong side of the road when the collision occurred. He submitted that the Judge’s failure to contend with the prosecution witnesses’ concessions meant the decision amounted to a conclusory finding on credibility which was not permissible. The Judge’s use of “unlikely” and “implausible” to describe the defence evidence does not articulate why there is not a reasonable doubt and is in tension with his obligation to find Mr Pothula not guilty is there was a reasonable possibility the defence evidence was true. In other words, the Judge needed to express why there was not a reasonable doubt.
[47] In the context of an incident where events happened so quickly, Mr Chisnall submitted that small inconsistencies do not indicate that Mr Pothula or Ms Veerepalli’s evidence was unreliable or untruthful.
[48] Mr Chisnall also raised in oral argument the approach taken by the Judge at [61(c)] where he stated carelessness is to be presumed where intervening acts did not exist may have been in error.
Respondent’s submissions
[49] Regarding [61] of the District Court judgment, Mr Nathan submitted this referred to matters of fact that were not in dispute. He contended that this only reflected Mr Pothula’s obligation to inject himself into the traffic only if it was safe to do so. Mr Nathan submitted it is inherent to the role of a fact finder to determine what evidence it accepts or rejects. At [67], taking the implausibility of Mr Pothula’s account, and the evidence of Ms Boswell, the Judge reasoned that the Chrustowski’s narrative was to be preferred. The absence of words to the effect of “therefore I reject Mr Pothula’s account” were not necessarily. It was clear from the reasoning the Judge was satisfied beyond reasonable doubt.
Discussion
[50] The House of Lord’s decision in Woolmington v Department of Public Prosecutions is relevant.11 Viscount Sankey LC confirmed the principle that:12
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject … to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner
… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
[51] Notwithstanding the formulation of the concept of proof beyond reasonable doubt in Wanhalla, the discussion in the earlier case of R v McI, which explicitly refers to the consequences of the fact finder’s conclusions on the evidence, remains good law.13 In McI the Court of Appeal confirmed:14
[I]f you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused's guilt beyond reasonable doubt.
[52] Judge Maude followed the third option, rejecting Mr Pothula’s evidence on the key issues, then determining that the evidence of Mr and Mrs Chrustowski and Ms Boswell satisfied him beyond reasonable doubt as to guilt.
[53] There is a distinction, as pointed out in Sweeney v Police, between the facts of the case and the elements of the charge.15 As the factfinder the Judge was entitled to accept or reject the evidence. He then had to determine whether, based on the facts as he found them to be, the prosecution had proved the charge beyond a reasonable doubt.
11 Woolmington v Department of Public Prosecutions [1935] AC 462 (HL).
12 At 481–482.
13 R v Wanhalla [2007] 2 NZLR 573; R v McI CA120/97, 17 December 1997, upheld R v MacDonald
[2009] NZCA 428 at [2] and Pohutuhutu v R [2017] NZCA 501.
14 R v McI, above n 133.
15 Sweeney, above n 7, at [17]–[18].
[54] I have already set out my reasons as to why I consider the Judge correctly assessed the evidence. Taking the evidence as a whole, I agree that the charge of careless driving is made out beyond a reasonable doubt. Mr Pothula pulled out across two lanes of a busy highway where visibility of southbound traffic was reduced because of a corner. He collided with Mr Chrustowski’s car. Mr Pothula and his wife were sure the impact occurred on the left-hand side. On that piece of evidence they would be best placed to have the most accurate recollection having been inside the car and focused on their own circumstances. I agree with the Judge’s reasoning that it is difficult to understand how it would have been possible for the crash to occur in the northbound lane but for the impact to occur on the left hand side of the car.
[55] It was also possible that although the crash itself occurred on or over the centre line, this was due to Mr Pothula being in the middle southbound lane at such a short distance from Mr Chrustowski that the latter was forced to evasively brake and in doing so move towards the centre line. Indeed, Mr Pothula’s own mark on the diagram of the scene overlaps the centre line. Mrs Chrustowski’s evidence demonstrates the speed at which the incident occurred and this was echoed by several other witnesses.
[56] In any event, it was clear that Mr Pothula’s account that Mr Chrustowski was driving entirely in the wrong lane prior to the crash, thus causing the crash, was not credible in light of both Mr Chrustowski’s and Ms Boswell’s evidence. I agree with the Judge that significant weight can be placed on Ms Boswell’s evidence because she was an independent witness.
[57] Accordingly, Judge Maude was correct to find that no external factor, including the actions of Mr Chrustowski, caused the collision, that Mr Pothula was responsible for the crash by being in the middle southbound lane at or just before the time of the crash, and therefore that he was satisfied beyond a reasonable doubt that Mr Pothula was not exercising the care and attention required of a reasonable and prudent driver in the circumstances.
[58] As to whether the Judge’s expression of his reasoning was sufficient, this Court recognised in Taiatini v Police:16
16 Taiatini v Police HC Rotorua CIV-2005-463-0059, 7 October 2005 at [12] (citations omitted).
“Where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome … The extent of reasoning required will vary between cases, but the reasons given should be ‘adequate to the occasion’ … It must not be overlooked that Judges, in particular District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence … Further, there are difficulties in articulating reasons for a credibility finding ‘which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process’. … Nevertheless, as Randerson J said in Takarei at [14]:
‘ … some brief reasons for rejecting the evidence of a key witness should be given.’
[59] Although the Judge’s reasoning could have been further developed, his reasoning was set out from [60]–[68] of the decision, and reasons are given at [64] to explain why Mr Pothula’s evidence was rejected. At [61] and [65]–[67] the reasons why he found the prosecution case established were set out. Accordingly, I consider reasons were given “adequate to the occasion” that explained how the Judge assessed the evidence and why it led to his finding of guilt. Despite counsel’s submissions to the contrary, I consider this is a case of imprecision of expression rather than the Judge erring in his application of the standard and burden of proof.
[60] Finally, regarding Judge Maude’s approach at [61] to presume carelessness in the absence of intervening factors, there is no error of law. There is a significant amount of authority, including from appellate courts, that there may be cases where prima facie the only reasonable inference is of careless driving.17 In short, I accept the respondent’s argument that the Judge correctly applied the burden and standard of proof when arriving at his conclusions.
Was Mr Pothula’s driving below the standard of a reasonable, prudent driver in the circumstances?
Appellant’s submissions
[61] Regarding the argument that Mr Pothula was driving carelessly regardless of the lane the collision occurred in, Mr Chisnall contended that the Judge did not
17 See the discussion in Andrew Becroft and Geoff Hall Becroft and Hall’s Transport Law (online ed, LexisNexis) at [LTA37.7], citing (among others) Police v Chappell [1974] 1 NZLR 225 and R v Pegler CA214/03, 10 November 2003.
explicitly find the charges proved on that basis. Counsel submitted that it is impliedly clear that the Judge saw Mr Chrustowski’s alleged encroachment into the northbound lane as an “intervening event” of the kind the Judge said was necessary to avoid liability. He referred to Sweeney v Police where Downs J stated:
[29] This approach was open to the Judge for the reasons explained earlier but did not obviate the need for clear articulation as to how the charge was proved. As observed, scenario A offered an obvious and easy path to conviction, whereas scenario B—or some variant of that scenario—was less clear cut. … Again, while it was open to the Judge to consider the case irrespective of the competing theories, the Judge was required to clearly articulate why the charge was proved. In Sena v Police, the Supreme Court emphasised the importance of this requirement. This obligation was not met.
[62] Mr Chisnall submitted that the case Mr Pothula was to answer was that he was in the incorrect lane. Counsel underscored that the onus never shifts from the prosecution to the defence.
[63] Mr Chisnall referred to Haunui v R.18 There the argument was that the Court could be sure of the appellant’s guilt, on a different basis, regardless of an established error.19 Counsel submitted that the Supreme Court rejected that submission, holding that it was unfair to rely on a case that was not run at trial.20 As a result it was not defended on that basis, which is inconsistent with the right to a fair trial.
Respondent’s submissions
[64] Mr Nathan submitted that even if this Court made a different factual finding as to the location of the collision, it is clear from the evidence that the Judge considered the appellant’s actions sufficiently careless to meet the legal test, irrespective of which lane the collision occurred in.
[65] Counsel contended that the standard of care of a reasonable and prudent driver depends on the surrounding environment and circumstances and argued that in the context of a motorway, the standard of care is high.21 He submitted that a driver must
18 Haunui, above n 6.
19 At [78].
20 At [82].
21 Police v Vialle [1989] 1 NZLR 521 (CA) at 523.
not enter a motorway except at an opportunity and at a speed that will place the driver correctly in the stream of traffic without danger to any other user of the motorway.22
[66] Mr Nathan referred to Judge Maude’s observation that Mr Pothula was stopped at the intersection, injected himself into a gap in the traffic and following that, there was a collision between his and Mr Chrustowski’s vehicles. In the absence of evidence of victim speed or other intervening event not foreseeable by Mr Pothula, carelessness was, in Judge Maude’s view, to be presumed. Counsel submitted that there is a clear onus on Mr Pothula in this situation, where he must give way, to ensure he safely enters the flow of traffic on an arterial highway. The evidence demonstrated that there is a bend in the road which means oncoming traffic is obscured from a significant distance. In these circumstances, counsel argued, the reasonable and prudent driver would exercise greater care.
[67] In addition, Mr Nathan submitted that Mr Pothula’s evidence was that he had waited for approximately five minutes for a gap in heavy holiday traffic. Given the time he spent waiting and his observations of the traffic, counsel contended that Mr Pothula was aware of the dangers of injecting himself into traffic in a busy state highway, whether into the southbound or northbound lane. Mr Nathan also referred to Mr Bass’ expert evidence that for every 20 seconds of wait time, a driver’s desire to proceed increases. Mr Pothula stated he saw another vehicle travelling south in the inner lane before pulling out. Mr Nathan submitted that this suggested he was exercising less care than five minutes earlier.
[68] As foreshadowed, absent any evidence of speeding on the part of Mr Chrustowski and considering the resulting collision, irrespective of precisely where this occurred, counsel contended that Mr Pothula did not exercise the degree of care and attention required in the circumstances. He acted carelessly when turning into “heavy” holiday traffic onto this particular part of State Highway 1, despite observing oncoming traffic. According to Mr Nathan, the Judge’s decision is consistent with that conclusion.
22 Citing Land Transport (Road User) Rule 2004, r 2.12.
[69] If Mr Chrustowski was forced to take evasive action to avoid collision, counsel argued that even if the collision occurred wholly or partially in the northbound lane, that was immaterial and did not absolve Mr Pothula of criminal culpability.
[70] Mr Nathan, in response to Mr Chisnall’s submissions, submitted that the evidential dispute as to lanes was never determinative at trial. He highlighted, for instance, the Judge’s statement at [59] that Mr Bass’ evidence did not help him determine “whether Mr Pothula had been careless when attempting to cross the lanes…”. Counsel emphasised the issue was Mr Pothula’s conduct as a whole, not the question of what lane he was in, and in particular it was Mr Pothula’s decision to inject himself from the stop sign into the traffic that was under consideration.
Discussion
[71] Given my conclusions on the first two issues, consideration of this submission by the respondent is not necessary. Even so, I make some brief comments. Taking account of the available evidence, and the facts, including that the appellant turning into oncoming traffic on a busy motorway during a holiday period, the argument that Mr Pothula failed to exercise care to the standard of a reasonable and prudent driver in the circumstances, has merit. The duty to keep a proper lookout is a “fundamental obligation on all road users”.23
[72] In any event, I see no reason why this Court should depart from Downs J’s decision in Sweeney. Judge Maude entered the conviction because he rejected Mr Pothula’s version and accepted Mr Chrustowski’s account. If the conviction were to be on the basis that Mr Pothula’s driving was careless, regardless of the lane he was driving in, the Judge was required to express and explain as such. Accordingly, had I allowed the appeal, a retrial would have been necessary.
Did a miscarriage of justice occur?
[73] Having concluded that the learned Judge was not in error with his decision, it follows that no miscarriage of justice has occurred.
23 King-Turner v Police HC Nelson AP5/99, 6 July 1999.
Decision
[74]The appeal is dismissed.
Harvey J
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