FAITH v NEW ZEALAND POLICE [2022] NZHC 156

FAITH v NEW ZEALAND POLICE [2022] NZHC 156 [11 February 2022]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-25[2022] NZHC 156IN THE MATTER of an appeal against convictionBETWEEN KEEGAN IAN FAITHAppellantAND NEW ZEALAND POLICERespondentHearing: 9 February 2022 (via VMR)Appearances: A O'Connor for AppellantE Pairman for RespondentJudgment: 11 February 2022JUDGMENT OF ISAC J[Appeal against conviction]Introduction[1] Mr Keegan Faith was charged with carelessly operating a vehicle causinginjury.1 He was convicted following a judge alone trial on 9 July 20212 and wassubsequently sentenced to a $1,500 fine, disqualified from driving for 12 months andordered to pay $2,800 in reparation to the complainant.3[2] Mr Faith appeals his conviction. He submits the Judge erred in his approach tothe question of carelessness and in his assessment of the evidence.1 Land Transport Act 1998, s 38; maximum penalty three months' imprisonment or $4,500 fine.2 Police v Faith [2021] NZDC 12823.3 Police v Faith [2021] NZDC 16945.Background[3] The charge arose from a collision that occurred between Mr Faith's car and thecomplainant's bicycle at a roundabout in Palmerston North. The complainant wasapproaching the roundabout from the north (travelling south), while Mr Faithapproached the roundabout from the east. As the complainant was about to take thesecond exit — travelling straight through — Mr Faith also entered the roundabout.The left corner or bumper of Mr Faith's vehicle struck the rear fork of thecomplainant's bicycle and caused the cyclist to crash. The complainant suffered asevere fracture on his lower left leg, requiring multiple surgeries. He was unable toreturn to work or drive for six months.Decision under appeal[4] Judge Carter commenced his decision by setting out the four essential elementsof the offence the prosecution was required to prove.4 The central issue was whetherMr Faith operated his vehicle carelessly.5[5] It was the prosecution's case that Mr Faith ought to have given way. Theappellant acknowledged during his evidence that he would have had to give way toany traffic coming from his right but said he looked right before entering theintersection and did not see the cyclist. Mr Faith accepted hitting the cyclist and thathe would have expected to see the cyclist provided it was travelling at a reasonablespeed.[6] The Judge then identified four key facts in dispute. They were:6(a) the speed at which the complainant was riding his bicycle toward andthrough the intersection;(b) the speed at which Mr Faith was travelling in his car;(c) whether there was clear visibility from Mr Faith's perspective; and4 Police v Faith, above n 2, at [2].5 At [7].6 At [9].(d) whether Mr Faith ought to have seen the complainant and given waybefore entering the roundabout.[7] In assessing the visibility at the roundabout, the Judge considered dash-camfootage and still shots taken from two vehicles present at the roundabout at the timeof the incident, entering from the west. The footage captured the complainant enteringthe intersection, the appellant hitting the complainant's bicycle with his vehicle, andthe complainant being knocked off. The Judge described the complainant as both"plainly" and "conspicuously" visible on his bicycle due to his high visibility cyclegear, including a yellow helmet and fluoro yellow windbreaker.7[8] The appellant also produced a photograph of the intersection from theperspective at which he entered the roundabout. The Judge considered this photographshowed "ample and unobstructed visibility" at the roundabout.8 The Judge also foundthere was no weather-related or other deterioration in visibility on the day of theincident.9[9] Both the complainant and appellant gave evidence.10 Their evidence was atodds about the speed each was travelling at. The Judge accepted the complainant'sevidence that he entered the roundabout at a speed in the range of 20–25 km/h,describing his evidence as logical, ordered, detailed and containing appropriateconcessions and qualifications.11 In any case, however, the Judge observed that evenat the speed contended by the appellant (25–30 km/h), the complainant was stilltravelling well within the speed limit.12[10] In contrast, the Judge found the appellant's evidence unconvincing andinconsistent with other evidence.13 He appeared not to accept Mr Faith's evidence thathe was travelling between 0–10 km/h when approaching and entering the roundabout,7 At [12] and [36].8 At [14].9 At [36].10 Summarised at [15]–[32] of the judgment.11 At [34].12 At [38].13 At [35]–[36].and noted that if he was travelling at a greater speed than that, it might explain whythe appellant did not see the complainant or give way to him.14[11] The Judge ultimately concluded:15For all these reasons I conclude that Mr Faith did not look to his right beforeentering the roundabout... or was travelling at such greater speedthan 0-10kph as to prevent him from seeing [the complainant] immediately prior toMr Faith crossing the give way sign limit line and entering the roundabout.Mr Faith's evidence on these issues is rejected.[12] As a result the Judge was satisfied beyond reasonable doubt that Mr Faithdrove his vehicle carelessly causing injury to the complainant.Approach to Appeal[13] This appeal is pursued under s 229 of the Criminal Procedure Act 2011. TheCourt must allow the appeal if it is satisfied the Judge erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred, or that amiscarriage has occurred for any reason.16 A miscarriage of justice is defined in theAct as any error, irregularity or occurrence in or in relation to or affecting a trial thathas created a real risk that the outcome of the trial was affected or has resulted in anunfair trial, or a trial that was a nullity.17[14] The appeal proceeds by way of rehearing and this Court is required to form itsown view of the facts.18 If this Court reaches a different view on the evidence, itfollows that the trial judge necessarily will have erred and the appeal must beallowed.19 The onus is on the appellant to show that an error occurred.The issues on appeal and the parties' cases[15] The appellant submits that the Judge failed to set out and therefore apply therelevant legal test of carelessness. In particular, the Judge did not turn his mind to the14 At [35].15 At [39].16 Criminal Procedure Act 2011, s 232(2).17 Section 232(4).18 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].19 At [38].question of whether Mr Faith's driving fell below the standard of a reasonable andprudent motorist. Instead the Judge asked the wrong question, namely whetherMr Faith "ought to have seen [the complainant]" and therefore given way to him. Theapproach of the Judge was to reason backwards from the accident, to infer that it musthave occurred due to the appellant's carelessness, whereas what was required was theidentification of an act or omission meeting the objective standard of carelessness.That did not occur.[16] Mr O'Connor, for Mr Faith, submits that the appellant's driving did not fallbelow the standard of a reasonable and prudent motorist in the circumstances. He saysthat the appellant did indeed look right, as a reasonable and prudent motorist wouldhave, before entering the intersection. He submits there are many reasons a reasonableand prudent motorist may not see a cyclist in the circumstances, dependent on thespeed and position of the cyclist on the road.[17] The appellant notes that while the Judge concluded the appellant's evidencewas inconsistent with the evidence of others, the evidence that he looked to the rightbefore entering the roundabout was uncontested. It is submitted that the Judge waswrong to disregard this evidence, and that such evidence gave rise to a reasonabledoubt on the critical element of carelessness the Police were obliged to establish.[18] It is also suggested the Judge was left in doubt about the mode by whichcarelessness arose. The Judge's finding — that either Mr Faith did not look right as heclaimed, or was travelling too fast to see the cyclist — was insufficient. Mr O'Connorsubmits that the Judge should have been sure either way, and in not reaching aconclusion as to how the appellant was careless, there must have been reasonabledoubt in his mind as to whether the appellant was driving carelessly.[19] Finally, Mr O'Connor notes the Judge mistakenly found the cyclist was turningat the roundabout, when the evidence was that he continued straight through. Inaddition, the prosecution had failed to disclose a conviction by the complainant fordriving with excess breath alcohol. The conviction established a propensity to "drive"carelessly, and a miscarriage has arisen due to the inability to explore that issue inevidence.[20] The Crown submits that Mr Faith's own evidence, as summarised by the Judge,is a complete answer to the appeal. I set out the relevant paragraphs from the judgmentbelow:[30] Mr Faith acknowledged that twenty to thirty metres back from theroundabout, the give way sign would be clearly visible, there was goodvisibility and that he would have expected to see a bicycle rider in highvisibility gear, enter the roundabout, provided the cyclist was travelling atreasonable speed.[31] Mr Faith acknowledged that the first time he saw the cyclist was whenhe hit him, that he had not seen the cyclist when Mr Faith entered theroundabout but that the cyclist must have entered the intersection beforeMr Faith did. Mr Faith estimated the speed that [the complainant] was goingon his bicycle at 25-30 kph at the point [the complainant] entered theintersection however the basis for this estimate was not explained.[32] Mr Faith acknowledged that he ought to have seen the cyclist andought to have given way. He said that as he was approaching the roundabout,he would have looked right and that he specifically recalled actually lookingright on this occasion in the [cyclist's] direction but did not see any cyclistapproaching in his direction.[21] The Crown submits this amounted to an admission of carelessness by theappellant. It notes that those admissions and the Judge's summary of Mr Faith'sevidence are not challenged in the appellant's submissions.[22] The Crown also highlights that Mr Faith produced photographs which showedthat his view was unobstructed at the point when he should have given way. He hit therear of the complainant's bicycle, indicating the complainant was likely in front of thecar at the moment Mr Faith travelled through the give way sign.[23] In response to Mr Faith's suggestion that the Judge had the direction of thecomplainant's travel incorrect, the respondent submits this is immaterial. Mr Faith wasrequired to give way and failed to do so.Decision[24] In Savieti v Police the Court of Appeal confirmed a "person drives carelesslyif they do not drive with the degree of care and attention that a reasonable and prudentdriver would exercise in the circumstances".20 The test is an objective one.[25] I do not accept Mr Faith's submission that the District Court Judge did notconsider whether Mr Faith's driving fell below the standard of a reasonable andprudent motorist. While the test was not expressly articulated in the judgment, it isclear from the Judge's analysis that he was aware of the applicable test and applied it.[26] But even if I had been satisfied there was an error of approach on the part ofthe Judge, the difficulty for Mr Faith is that there was ample evidence to support theconclusion that he fell below the standard of care of a reasonable and prudent driver.I have also had the benefit of watching the dash-cam videos. They provide a clearaccount of the accident and the conditions at the time.[27] Given the lack of any weather related visibility issues, Mr Faith's unobstructedview of the intersection and of approaching road users, the complainant's high-visibility clothing and use of cycle lights, and the speed at which the cyclist wastravelling, I agree with the Judge's assessment that either Mr Faith failed to look to hisright at all or, if he did, he was travelling at a speed that prevented him from avoidinga collision. Either way, the driving clearly fell below that of the reasonable and prudentmotorist.[28] Of further significance to the question of carelessness is the location of thecyclist when he was struck. Mr Faith did not pull into the intersection in front of thecyclist causing the cyclist to collide with the right side of Mr Faith's vehicle. Instead,the cyclist had almost passed through the intersection — travelling directly in front ofand across Mr Faith's field of vision — before he was hit. And this occurred incircumstances of excellent visibility and an unobstructed view of a cyclist wearinghigh-visibility gear with front and back lights. The cyclist was largely situated on the20 Savieti v Police [2021] NZCA 176 at [32], citing Simpson v Peat [1952] 2 QB 24 at 27–28;followed in Police v Chappell [1974] 1 NZLR 225 at 228.left of Mr Faith's vehicle at the time of the accident, and the collision involved theleft-hand corner of Mr Faith's vehicle clipping the rear of the bike.[29] And, as set out above,21 Mr Faith acknowledged that he ought to have seen thecyclist and ought to have given way.22 This is not challenged on appeal.[30] The Judge did not need to make a definitive finding about the credibility ofMr Faith's claim to have looked to his right before entering the intersection, or makean election between the two modes of carelessness he identified, provided he wassatisfied beyond reasonable doubt that one had been established. In any case, on myown review of the evidence, especially the dash-cam footage, I am satisfied beyondreasonable doubt that the appellant failed to look adequately before entering theintersection, and that such a failure fell below the standard of a reasonable and prudentmotorist in the circumstances.[31] Given all of this the conviction was clearly supported by the evidence.[32] Finally, there is nothing in the apparent factual error made by the Judge aboutthe cyclist's direction of travel, or the prosecution's failure to disclose thecomplainant's previous conviction. Neither were material to the result. Withoutdetermining the point, it is not evident that the complainant's previous conviction wasrelevant to a fact in issue.Conclusion[33] The appeal is dismissed.Isac JSolicitors:Iorns Legal, Porirua for AppellantBVA Law, Palmerston North for Respondent21 Above at [20].22 Police v Faith, above n 2, at [32].