CHOWDHERY v NZ POLICE [2021] NZHC 1061

CHOWDHERY v NZ POLICE [2021] NZHC 1061 [13 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000010[2021] NZHC 1061BETWEEN MAHENDER CHOWDHERYAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: LM Deane and B So for AppellantHAM Watts for RespondentJudgment: 13 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 13 May 2021 at 12.30pmRegistrar/Deputy RegistrarDateSolicitors: Public Defence Service, AucklandKayes Fletcher Walker, AucklandIntroduction[1] Mahender Chowdhery is a bus driver. In 2018, he was charged with carelessdriving causing injury.1 The events leading to the charge arose while he was drivinghis bus.[2] On 27 August 2020, Mr Chowdhery was convicted after a judge-alone trialbefore Judge T V Clark.2 At sentencing, the Judge invited Mr Chowdhery to apply fora discharge without conviction. On 7 December 2020, the Judge declined thatapplication, as well as Mr Chowdhery's related application to avoid an automaticdriving disqualification.3 Mr Chowdhery now appeals against both his conviction andthe Judge's decision to decline his application for a discharge without conviction.[3] The appeal against conviction is advanced on one ground only, namely that theJudge erred in her assessment of dash-cam evidence from the bus Mr Chowdhery wasdriving at the time of the accident. Mr Chowdhery says that the Judge went beyondher role as fact-finder by undertaking independent calculations based on the footage.Counsel for Mr Chowdhery, Ms Deane, submits, in effect, that expert evidence wasrequired in order to make those calculations.[4] The appeal against the refusal to grant a discharge without conviction isadvanced on three grounds, namely that the Judge:(a) did not apply the correct test when assessing the consequencesof conviction;(b) erred in assessing whether the consequences of conviction wereout of all proportion to the gravity of the offending; and(c) erred by not exercising her discretion to dischargeMr Chowdhery without a conviction.1 Land Transport Act 1998, s 38(1). Maximum penalty 3 months' imprisonment, a $4,500 fine, anda mandatory six months' disqualification from driving.2 Police v Chowdhery [2020] NZDC 17559.3 Police v Chowdhery [2021] NZDC 27453.[5] At the outset of the appeal hearing before me, Ms Deane confirmed that theprimary focus of the appeal was the Judge's decision not to grant a discharge withoutconviction. While confirming that Mr Chowdhery did not abandon his appeal againstconviction, she acknowledged the difficulty inherent in that appeal, given the Judge'sverdict turned on her factual findings and credibility assessments. I consider theapproach taken by Ms Deane both proper and responsible.Should additional evidence be admitted?[6] Before turning to the factual background to the appeal, I first addressMr Chowdhery's application for leave to file additional evidence on his appeal. Heseeks to admit a further affidavit from himself, which annexes:(a) a letter dated 9 December 2020 from a case manager at Waka KotahiNew Zealand Transport Agency (NZTA), proposing to declineMr Chowdhery's application for a passenger licence (P) endorsement(though noting that no final decision had been made, and that MrChowdhery had the right to make submissions on the proposeddecision);(b) an email from the same NZTA case manager noting Mr Chowdhery'sadvice that he had lodged an appeal against conviction for carelessdriving causing injury, and that a final decision on Mr Chowdhery'sapplication for a P endorsement was therefore on hold pending theoutcome of this appeal; and(c) a letter from Mr Chowdhery's employer (Go Bus Transport Ltd (GoBus)) advising that if Mr Chowdhery is convicted and loses his licence,his employment will be terminated.[7] The respondent does not take issue with any of these materials being admitted,and I am satisfied that they meet the relevant standard, in that they are fresh and cogent.I admit them accordingly.[8] I note the following points from these additional materials:(a) First, the NZTA's proposed decision referred to at [6](a) above recordsthat, subsequent to Mr Chowdhery's index offending, he had acquiredtwo further traffic infringements/offences, both for speeding in a 50kilometre per hour zone.(b) Second, I was advised at the appeal hearing that Mr Chowdhery ispresently employed by Go Bus in the role of refuelling buses.Presumably this does not require a P endorsement. I do not knowwhether Mr Chowdhery will retain this role if his appeal fails andNZTA does not grant him a P endorsement on his licence. I note,however, that Mr Chowdhery clearly has the full support of hisemployer, as its letter states:[Mr Chowdhery] is one of our good operators, honest, respectful,safe driver no customer complaints in terms of Reliability, he hasprovided good customer service to our customers and built goodrelationships with our team members.Background – more detail[9] On 4 April 2018, Mr Chowdhery was driving his bus along his usual airportroute. The complainant's car, driving ahead of Mr Chowdhery's bus, stopped on theroad, as close to the middle of the road as possible without encroaching onto theopposite lane, in order to turn right into a driveway. There was no suggestion beforethe Judge that the complainant was not permitted to do this under the relevant roadrules. There was disputed evidence as to whether she had indicated to turn right, andwhether her brake lights were working. In the event, Mr Chowdhery, upon seeing thecar had stopped, attempted to drive around the car by moving left, but the front rightside of his bus clipped the side of the complainant's car. This pushed her car out ontothe other side of the road, where it was hit by another oncoming bus. The complainantwas quite badly injured in the crash. The sole issue at trial was whether Mr Chowdherywas careless.[10] Mr Chowdhery has no prior criminal record. His traffic record records one finefor speeding (55 km/h in a 50 km/h zone) in 2017, and as noted earlier, two fines forspeeding in 2019, for driving at 66 km/h and 65 km/h in a 50 km/h zone respectively.The District Court decision[11] Four of Judge Clark's decisions are at issue on the present appeal:(a) her judgment delivered orally on 27 August 2020, in which the Judgefound Mr Chowdhery guilty of careless driving causing injury;4(b) her reserved judgment of the same day, in which the Judge providedfurther detail for the verdict she had reached;5(c) a further reserved judgment also delivered on 27 August 2020, in whichthe Judge set out in some detail her findings on the credibility andreliability of the witnesses who gave evidence at trial;6 and(d) the Judge's decision, of 7 December 2020 to decline Mr Chowdhery'sapplication for a discharge without conviction.7[12] For the purposes of this judgment, I do not propose to summarise each of theJudge's first three judgments separately, but rather summarise the essential reasoningwhy the Judge reached the conclusions she did.[13] The Judge first found that the complainant was not at fault in the manner shewent to turn right off the road she and Mr Chowdhery were driving on. The Judgeaccepted that the complainant, who travelled the road regularly, as well as turning intothe driveway in question, had indicated to turn right some time before she slowed andstopped to make the righthand turn. The Judge was less sure that the brake lights onthe complainant's car were working, but noted that the prosecution had not called any4 Police v Chowdhery [2020] NZDC 17559.5 This judgment was never authenticated and thus does not have a formal citation. Nothing turnson this.6 Police v Chowdhery [2020] NZDC 6232.7 Police v Chowdhery [2021] NZDC 27453.evidence to suggest they were not. She also accepted the complainant's evidence thatshe had a valid warrant of fitness. The Judge therefore concluded there was no reasonto suspect the brake lights were not working. The Judge noted that the dash-camfootage from Mr Chowdhery's bus was not of sufficiently good quality to establishwhether either the complainant's indicator was on or her brake lights were showing.[14] The Judge expressly recorded that Mr Chowdhery was not speeding at the timeof the accident, and was not following too close to the complainant's car. The Judgethen considered the dash-cam footage further, noting that while it had not been helpfulin determining whether the complainant's indicator and brake lights were on, it wasvery useful in assessing approximately how much time Mr Chowdhery had had tonotice the complainant's car had slowed and come to a stop to turn right, and thus thetime available to him to take steps to slow down and take evasive action.[15] In this context, the Judge said that her "calculations [from viewing the dash-cam footage] are slightly different to the calculations that were put to the defendantbut not so different that it makes any material difference in my mind".8 She said thatfrom the speedometer she could see that the bus was travelling around 69 to 70kilometres per hour, and that it was clear for some time that the complainant's car hadstopped. She then stated "by my calculations, the defendant had around three to fourseconds to react to the fact that [the complainant] had slowed to a stop or was slowingto a stop".9 Judge Clark considered that this was sufficient time for Mr Chowdhery tohave taken evasive action. She noted that neither party had presented any expertevidence as to speed or stopping times. From the dash-cam footage, however, sheconcluded that at the time of the crash, Mr Chowdhery had only slowed down to about68 or 69 kilometres per hour. In short, the Judge considered that Mr Chowdhery hadnoticed the complainant's vehicle had come to a stop too late for him to take adequateevasive action.[16] The Judge's reasoning in this regard is encapsulated in the following extractfrom her reserved judgment on credibility and reliability findings:108 Police v Chowdhery [2020] NZDC 17559 at [19].9 At [19].10 Police v Chowdhery [2020] NZDC 6232.[40] I took from this passage of evidence, that the defendant had made achoice as to whether to suddenly stop, which may have avoided the collisionwith [the complainant's] car, or alternatively, to try to slow down and avoid acollision by travelling around the left-hand side of [the complainant's] vehiclefor the safety of his passengers. This was an important part of my finding ofcarelessness on the part of the defendant. It was important for me tounderstand when the defendant had first noticed [the complainant's] car andwas his decision making was at that moment.[41] Overall, I accept that Mr Chowdhery was generally an honest witness,however, I did not accept his suggestion that [the complainant] had suddenlystopped in front of him. I do not consider that she did.[42] Instead, what I consider happened was that he was not payingsufficient attention to what was happening ahead of him. From his perspectivehe may not have seen [the complainant] until the last minute but in my viewshe was there to be seen had he been paying attention. The dashcam footageshowed [the complainant] slowing to a stop some distance, and seconds, aheadof the defendant.(emphasis in original)[17] On this basis, she found Mr Chowdhery guilty of careless driving causinginjury.[18] Turning to the Judge's decision on Mr Chowdhery's application for a dischargewithout conviction, Judge Clark noted at the outset that "the level of carelessness wasat the lower end." She stated that:11[25] But it is very important that I put [Mr Chowdhery's] level ofcarelessness into perspective and into context. I consider these eventsoccurred within a very short period of time and that perhaps the defendant didnot expect that a vehicle would stop and wait to turn right, in the centre of theroad. As I say, I am not criticising [the victim] for her decision-making andnor was what she did unlawful. But I can appreciate from the defendant'spoint of view that that was unexpected. I also appreciate that in not breakinghard, he was actually trying to protect the safety of his passengers that he wascarrying at the time. Unfortunately, in weighing and balancing the competinginterests, it was [the victim] who suffered as a result because there was anaccident and she was terribly injured.[19] In relation to the offending itself, the Judge recorded that she foundMr Chowdhery's culpability as being "low to moderate", taking into account thatMr Chowdhery was a driver of a heavy vehicle with passengers, and thus hadsomewhat heighted responsibilities than the driver of an ordinary car. But after taking11 Police v Chowdhery [2021] NZDC 27453.into account mitigating factors relating to Mr Chowdhery himself, she concluded thatthe overall gravity of his offending was low. She considered Mr Chowdhery to begenuinely remorseful and noted that, despite not having a lot to offer, he hadnevertheless offered to make an emotional harm payment. She also took into accountthat Mr Chowdhery had no previous convictions and that as far as she was aware, hehad "no blemish" on his driving record (which for the reasons noted at [10] above,was not strictly correct). The Judge also took into account that Mr Chowdhery hadreceived further training, and recorded her view that he had been "undertrained" forthe situation that presented itself.12[20] Judge Clark then considered the likelihood of Mr Chowdhery losing his Pendorsement from NZTA, which she accepted would mean he would lose hisemployment. In this context, she noted that she had not been provided with anyevidence as to how NZTA would approach their consideration of Mr Chowdhery'sapplication. The Judge noted that she had herself reviewed publicly availableinformation on P endorsements from NZTA, and noted that part of the endorsementprocess is a "fit and proper person" check. She noted that this would take into accountany transport-related offences, especially those relating to safety. She noted that as faras she was aware, Mr Chowdhery's conviction would not itself act as an automatic barto receiving his P endorsement, but would be a matter taken into account by NZTA.Having considered these matters, the Judge stated:13the consequences that are contended for here, which is the loss ofemployment and P endorsement, relate to your ability to drive. At themoment, I cannot see any reason why you could not pursue a P endorsementeven if I were to impose a conviction on you today.Because I cannot be satisfied that a conviction will result in the differentconsequences that Mr Bouchier has put forward on your behalf insofar as youremployment is concerned, I am not satisfied that a conviction alone wouldnecessarily hamper your prospects of employment and/or holding a Pendorsement.In my view, the reality here is that you will have to apply to NZTA to see ifyou can regain your P endorsement and you may well be able to do that basedon the comments I have made in my decision today where I have placed yourculpability at the low end. If you are able to get your P endorsement then you12 At [35].13 At [49]-[50] and [53].will be able to work again with Go Bus, subject of course to anydisqualification that may be imposed by me today. Of course, if you are to bedisqualified, once your disqualification ends then you will be able to drive andassist your family with the day-to-day transport of children and so on.[21] The Judge accordingly concluded that the suggested employmentconsequences were "speculative" unless and until Mr Chowdhery made an applicationto NZTA for his P endorsement. The Judge stated that "I consider that there is a chancethat you will in fact be able to gain your P endorsement and continue to work".14The lawThe appeal against conviction[22] Section 232 of the Criminal Procedure Act 2011 (the Act) provides that I mustallow the appeal if the Judge erred in her assessment of the evidence to such an extentthat a miscarriage of justice has occurred, or in any case if a miscarriage of justice hasoccurred for any reason.[23] The Supreme Court in Sena v R has clarified the approach to be taken underthis section.15 I must come to my own assessment of the evidence and determine theappeal accordingly.16 Nonetheless, the appellant must still show some error in the trialJudge's reasoning, and – importantly for this case – I must exercise "customarycaution"17 in overturning the trial Judge's factual and/or credibility findings. The trialJudge had the advantage of hearing all of the evidence as it came out, and could forma view as to its veracity and what sort of people the different witnesses were. Thiscannot be easily duplicated by reading the notes of evidence. As the Supreme Courtput it in Sena:18More generally, the appellate process in which appellate judges are taken,sometimes rather selectively, to the aspects of the evidence on which counsel14 At [54].15 Sena v R [2019] NZSC 55.16 At [38]; see also Herewini v Ministry of Transport [1992] 3 NZLR 482, (1992) 8 CRNZ 247 (HC),which the Court in Sena at [20] notes appears to be where the statutory language is drawn from.This approach is similar to that in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768 in respect of civil appeals conducted by way ofrehearing.17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18PRNZ 768 at [13], cited in Sena v R [2019] NZSC 55 at [38].18 Sena v R [2019] NZSC 55 at [40].rely does not replicate the advantages of a trial judge which we have justdescribed.[24] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to, or affecting, the trial has created a real risk the outcome of the trial wasaffected. In Haunui v R, the Supreme Court stated that:19The question under s 232(4)(a) is 'whether the error, irregularity or occurrencein or in relation to or affecting [the] trial has created a real risk the outcomewas affected'. That question 'requires consideration of whether there is areasonable possibility another verdict would have been reached'. If the answerto that question is 'no', that is the end of the matter and the appeal will bedismissed. If the answer to that question is 'yes', the appeal court then askswhether it is sure of guilt. If the answer is 'no', the appeal will be allowed. Ifthe answer is 'yes', the court determines the error did not in fact create a realrisk that the outcome was affected and the appeal will be dismissed."The appeal against the refusal to grant a discharge without conviction[25] Sections 106 and 107 of the Sentencing Act 2002 enable a court to dischargean offender without conviction, provided the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.[26] As noted by the Court of Appeal, this is a two-stage inquiry.20 First, the courtmust determine the gravity of the offence and the consequences of conviction, andwhether those consequences are out of all proportion to the gravity of the offending.Second, if the court is satisfied the consequences are out of all proportion to the gravityof the offending, it should then consider whether to exercise its discretion to declineto grant a discharge.[27] The court should consider not just those consequences that would "wouldinevitably or probably occur", but all those where there is a "real and appreciable riskthat such consequences would occur."21 The consequences of a conviction on findingfuture employment generally can be taken into account.22 However, the courts arehesitant to grant a discharge when doing so would result in relevant information being19 Haunui v R [2020] NZSC 153 at [67] at [67].20 DC(CA47/2013) v R [2013] NZCA 255 at [31].21 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].22 Tahitahi v Police [2012] NZHC 663 at [25] and [31]."suppressed" from a professional or statutory body, because there is public interest inthe body knowing about the conviction and exercising its discretion accordingly.23Nonetheless, it is still for the court to weigh consequences and in some cases adischarge will be granted despite its suppressive effect.24 Conversely, the case fordischarge may not be as strong when the professional or statutory body (or employer)will know about the offending in any event.25[28] A useful (and relatively recent) summary of the courts' approach to matters ofthis kind can be found in in the Court of Appeal's decisions in Maraj v Police26 andRahim v R.27 In Maraj, the Court stated:28Where, however, Parliament has seen fit to establish a statutory authority withthe task of selecting or screening applicants for admission to whatever tradeor profession may be involved then clearly Parliament has contemplated thatthose bodies should exercise a discretion as to admission in the light of theexpertise that those bodies will build up over a period of time and with theknowledge of the kind of qualities that are appropriate for the particular tradeor profession and those which render admission to that trade or professioninappropriate. It seems to me, and in this respect I think I echo what HollandJ has said, that it would be inappropriate, at any rate in all but the mostexceptional case, for this Court to substitute its discretion as to what may ormay not be relevant on the seeking of admission to a particular profession forthe discretion which Parliament has seen fit to vest in a statutory body. Indeedit is not perhaps going too far to say that to do so the Court would be activelyconcealing from the statutory body information which ought properly to comebefore that body.[29] In Rahim, the Court of Appeal stated:29[28] Courts assessing how a conviction might affect an offender'simmigration status or ability to travel overseas may consider that it isappropriate for the consequences of conviction to be resolved by the specialistauthorities, rather than by a Court pre-empting that decision-making processby a decision to discharge without conviction.[29] The reluctance of courts to intervene in the decision-making ofspecialist bodies such as Immigration New Zealand or, in the employmentcontext, professional disciplinary bodies, is most often evident where the23 Liang v Police HC Wellington AP38/02, 16 April 2003 at [17]; see too Parker v Police [2016]NZHC 2524.24 Phipps v Police [2015] NZHC 614; HM v Police [2015] NZHC 1910.25 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[25].26 Maraj v Police [2016] NZCA 279.27 Rahim v R [2018] NZCA 182.28 Maraj v Police [2016] NZCA 279 at [28].29 Rahim v R [2018] NZCA 182.outcome cannot be reasonably predicted. In such cases, the consequences ofa conviction will be the risk that the offender's immigration status or abilityto travel overseas may change, or that disciplinary action, or some obstacle toqualification or employment, may occur.[30] In the present case, however, Mr Laurent's expert opinion establishesthat the real and appreciable risk is significantly higher than the mere prospectof deportation: it is that, after Mr Rahim has undergone all of the statutoryprocesses, a conviction is likely to result in his being required to leave NewZealand. [31] It is important also to identify whether the consequences underscrutiny are predicted to follow from the offending for from the fact ofconviction. The s 106 cases founded on the risk of employment consequencesprovide a good illustration of the point. Often, in such cases, it is the offender'sconduct not merely the conviction which gives rise to consequences theoffender wishes to avoid. In this case however, it is the conviction rather thanwhat Mr Rahim did that will trigger the real and appreciable risk that he islikely to be deported.[30] There is no reason why these principles should not apply to a specialist bodysuch as NZTA, and its consideration of Mr Chowdhery's application for a Pendorsement.[31] Against these legal principles, I next briefly summarise the parties'submissions.The appellant's submissionsThe appeal against conviction[32] As noted, Mr Chowdhery says that the Judge went beyond the proper scope ofher fact-finding role, in making independent calculations on the dash-cam footage.Counsel submits that the Judge speculated on matters that neither the defence norprosecution had produced evidence in relation to, and that the types of calculations theJudge carried out are more appropriately addressed by expert evidence.[33] Further, Ms Deane submits that the Judge took an inconsistent approach to hertreatment of the dash-cam footage. She says that on the one hand, the Judge did notconsider that it was fair to ask the complainant, when she was cross-examined, to pointout the indicator or brake lights on the footage, due to its very low quality. Yet on theother hand, the Judge relied on the footage to a significant extent in other ways,including in her overall conclusion that Mr Chowdhery had been careless.The appeal against the refusal to grant a discharge without conviction[34] Mr Chowdhery submits that the Judge mis-stated the test as to theconsequences of a conviction, in that she referred to what consequences"automatically" follow a conviction, when the proper test is whether there is a "real orappreciable risk" that the stated consequences will occur. Counsel further submits thatthe evidence tendered demonstrated that a conviction, and not just Mr Chowdhery'salleged wrongdoing, will mean he will not receive a P endorsement from NZTA andhence will not be able to work. Counsel also notes that the disqualification thatautomatically follows a conviction will prevent Mr Chowdhery from driving duringthe period of disqualification, both in an employment and personal context.The respondent's submissionsThe appeal against conviction[35] The respondent says that the "calculations" referred to by the Judge were notcalculations as such, but rather simply her own factual findings from watching thedash-cam footage. The respondent says that no particular expertise is required for thispurpose. The respondent further submits that there is nothing objectionable in theJudge reviewing the dash-cam footage further times after she had reserved herdecision, just as a jury can request to see video footage again if it wishes.[36] The respondent notes that unlike the footage of the accident itself, where thecamera quality is not particularly clear, there is an "overlay" on that footage of abanner showing the bus's speedometer and the time, both of which are very clear. Therespondent accordingly says that there was nothing inconsistent in the Judge observingthat the footage was not clear enough to determine if the victim's indicator and brakelights were on, yet still relying on the (clear) overlaid banner as to speed and time.The appeal against the refusal to grant a discharge without conviction[37] The respondent submits that the Judge appropriately stated the test forassessing the consequences of a conviction, namely whether they have a "real andappreciable" chance of occurring.30 Counsel submits that the Judge considered the lossof Mr Chowdhery's job to be speculative, insofar as it could not be determined at thetime of sentencing that Mr Chowdhery would "necessarily" lose his P endorsement ifa conviction were entered. The respondent submits that the Judge properly left theassessment of Mr Chowdhery's offending to NZTA, rather than to usurp its decision-making role. The respondent also submits that as the NZTA is already aware ofMr Chowdhery's offending, it is not a conviction per se that is giving rise to theconsequences Mr Chowdhery relies on.31 Thus, the respondent says that even ifMr Chowdhery were to be granted a discharge without conviction, NZTA wouldremain aware of the underlying offending and will no doubt take that into accountwhen making its final decision whether to grant him a P endorsement.AnalysisAppeal against conviction[38] As noted at the outset of this judgment, Ms Deane confirmed that the primaryfocus of Mr Chowdhery's appeal is the appeal against the Judge's decision to declineto grant a discharge without conviction. For the reasons which follow, I consider thatwas an appropriate approach, as I have concluded that the appeal against convictionmust fail.[39] In short, the Judge's finding that Mr Chowdhery had driven carelessly causinginjury turned on her factual findings, and also her findings on the witness's credibilityand reliability. I do not discern any error in the approach the Judge took to thewitness's evidence, nor is any suggested by Mr Chowdhery in any event.30 At [41].31 Referring in this context to Heynen v R [2018] NZCA 123 at [19], as well as those principles fromRahim referred to at [29] above.[40] Further, I do not agree that the Judge stepped outside her proper role in herassessment of the dash-cam footage. I observe that neither the prosecution nor thedefence called any expert evidence on matters such as speed, stopping distances andsimilar matters. The Judge was accordingly required to make her own assessment ofthe dash-cam footage, in the context of all the other evidence before her. Havingviewed the footage three times in Court on the present appeal, I am not persuaded thatexpert evidence was required before the Judge could make factual findings based onit. The footage itself is clear enough to establish what occurred (though not, as theJudge noted, sufficiently clear to see whether the victim's car was indicating and/orhad its brake lights on). The banner overlay of the bus's speed and the time is clear.A review of the footage simply requires the fact-finder, in this case the Judge, to makeher own assessment of what she saw in the footage. Juries as fact-finders are oftenasked to make similar assessments of CCTV footage, video footage and the like, whichcan sometimes be fast paced and not of the best quality. Juries will also sometimesrequest to view such footage a further time (or multiple times). There was accordinglynothing wrong in my view with the Judge's approach to or assessment of what she sawin the dash-cam footage.[41] As this was the only ground advanced in support of the appeal againstconviction, the appeal must fail.Appeal against decision declining to grant a discharge without conviction[42] It is not in dispute that, having regard to the aggravating and mitigating factorsrelevant to Mr Chowdhery's offending and Mr Chowdhery himself, the overall gravityof his offending is low. Are the direct and indirect consequences of a conviction outof all proportion to the gravity of this offending?[43] In light of the updating material now before the Court, I accept that there is areal and appreciable risk that NZTA will not grant Mr Chowdhery's application for aP endorsement. If that is the case, it will mean he will no longer be able to continuein his employment with Go Bus as a bus driver (though I note that Go Bus is presentlyemploying him in the role of refuelling buses). Are these consequences out of allproportion to Mr Chowdhery's offending? And were I to allow the appeal and grantMr Chowdhery a discharge without conviction, would I inappropriately usurp NZTA'sdecision-making function?[44] Although I have considerable sympathy for the position in whichMr Chowdhery now finds himself, I conclude that to grant a discharge withoutconviction on the present facts would inappropriately interfere with NZTA's decision-making function on Mr Chowdhery's application for a P endorsement. I say this forthe following reasons.[45] First, while I accept that in light of the new materials there is a real andappreciable risk that NZTA will not grant Mr Chowdhery's P endorsement, it is not inmy view certain that this will be the outcome. I accept that the test is not whether theadverse circumstances relied are certain to arise, but whether there is a real andappreciable risk that they will. But where the adverse consequences are certain orhighly likely to arise, a court may be more willing to intervene and grant a dischargewithout conviction, particularly where the offending in question can truly be describedas low level.[46] But as stated, I do not consider it is certain that NZTA will declineMr Chowdhery's application for a P endorsement as a result of a conviction. Those atNZTA considering Mr Chowdhery's position will no doubt take into account both thisand the District Court's assessment of the gravity of Mr Chowdhery's offending aslow, including the various mitigating factors applicable to him and the clear supporthe enjoys from his employer. NZTA will also no doubt have regard to the fact thatoffending appears to have stemmed from a momentary lapse of attention onMr Chowdhery's part, and his desire to avoid injury to his own bus passengers. Asnoted, the Judge expressly found that he was not speeding or following too closely tothe car in front of him.[47] But what is material, in my view, is that it is not clear it is a conviction per sethat gives rise to the risk of Mr Chowdhery not being granted his P endorsement, ratherMr Chowdhery's offending itself. NZTA is already aware of the fact and details of theoffending, and it will remain aware of those matters irrespective of whether a dischargewithout conviction is granted. I accept that the NZTA's decision to put theirassessment of Mr Chowdhery's application for a P endorsement on hold pending theoutcome of the present appeal could suggest that it is the conviction that is the keyissue, rather than the offending itself. But Mr Chowdhery also appealed against hisconviction for the offending, which if granted, would have meant he did not in factcommit an offence at all. In those circumstances, it made sense for NZTA to awaitthis Court's decision on Mr Chowdhery's appeal.[48] In addition, it appears that a further factor being considered by NZTA isMr Chowdhery's two speeding infringements which occurred after the indexoffending. It is not possible or appropriate for this Court to comment on those matters,including if and how they ought to feature in Mr Chowdhery's application for a Pendorsement.[49] Counsel for Mr Chowdhery referred me to Pankhurst J's decision in Ryan vPolice, which concerned a taxi driver involved in low level offending (also carelessuse causing injury), and where the Judge granted a discharge without conviction.32But my reading of that decision is that it turned on the particular facts in that case,including Mr Ryan's unfortunate history in the years preceding the accident.Pankhurst J also did not refer to any authorities or concerns about usurping the role ofan appropriate statutory body when making decisions about Mr Ryan's ability tocontinue to drive, an issue which, as stated, is of material relevance in this case.[50] Counsel also referred me to Mallon J's decision in McMillan v Police.33 In thatcase, the offending involved Mr McMillan's car hitting a pedestrian pushing a pramon a zebra crossing. Mallon J accepted that Mr McMillan's overall culpability waslow. A consequence of a conviction was the likelihood of Mr McMillan not being ableto travel to Canada to live and work as a firefighter (as part of an exchange programmein which the New Zealand Fire Service participates). Mallon J concluded that theseconsequences were out of all proportion to the offending and granted a dischargewithout conviction.32 Ryan v Police HC Christchurch, CRI-2008-409-000282, 4 December 2008.33 McMillan v Police HC Wellington, CRI-2010-485-36, 21 July 2010.[51] I am not persuaded this decision alters the appropriate outcome in this case. Inparticular, Mallon J was not faced with the quite stark position which arises in thiscase, namely that granting a discharge without conviction would, in effect, interferewith active and ongoing decision-making by NZTA. Further, and as already noted, itdoes not appear to be a conviction per se that is the issue in this case, but the fact ofthe offending itself, as well as Mr Chowdhery's wider driving record.[52] Counsel also referred me to Walker J's decision in Elmeleh v Police in whichher Honour allowed an appeal and granted Mr Elmeleh a discharge withoutconviction.34 That was on the basis that fresh evidence admitted on the appealpersuaded the Judge that Mr Elmeleh's P endorsement would be revoked if hisconviction were to stand. Walker J did not, however, consider the authorities referredto earlier regarding the courts' hesitation to intrude on an expert statutory body'sdecision-making function. The outcome in that case also turned on the particular factspertaining to Mr Elmeleh himself and which had led to his offending in the firstplace.35 Again, I do not consider the outcome in this Elmeleh alters the conclusion Ihave reached.[53] Finally and for completeness, I accept that a conviction might have a negativeeffect on Mr Chowdhery's employment prospects more generally. But in my view,there would only be a real and appreciable risk of a material impact in the context ofMr Chowdhery seeking employment which involves him driving in a professionalcapacity. I note that Mr Chowdhery's employment history is varied, and his presentrole with NZ Bus is his first job involving driving. A conviction for careless drivingcausing injury may well not give rise to significant concern in other fields ofemployment. Mr Chowdhery's conviction does not involve, for example, sexual,violence or dishonesty offending which can be expected to give rise to much moreconcern on the part of prospective employers. Further, the inconvenience toMr Chowdhery and his family from his inability to drive during the period of hisdisqualification is an inevitable and ultimately normal consequence of a conviction ofthis kind.34 Elmeleh v Police [2019] NZHC 3371.35 Namely a prior injury which likely sparked his "spontaneous reaction" which led to his offending(see [44]).[54] Standing back, I consider that to grant a discharge without conviction nowwould inappropriately interfere with NZTA's ongoing decision-making process. Thisis particularly so when the type of conviction involved relates directly to transportationsafety. As noted, NZTA will no doubt take into account this and the District Court'sview of the gravity of Mr Chowdhery's offending, namely as low. I have accordingly(though somewhat reluctantly) concluded that the appropriate course is to dismiss theappeal.___________________________Fitzgerald J