ARANI v NEW ZEALAND POLICE [2023] NZHC 3450

ARANI v NEW ZEALAND POLICE [2023] NZHC 3450 [30 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-449[2023] NZHC 3450BETWEEN NAFISEH JAHANMARD ARANIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 November 2023Appearances: S W Walker for AppellantM C M Nash for RespondentJudgment: 30 November 2023JUDGMENT OF O'GORMAN JThis judgment was delivered by me on 30 November 2023 at 10 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Samuel W Walker Legal, AucklandMeredith Connell, Auckland[1] This is an appeal against a conviction under s 38 of the Land Transport Act1998 for careless driving causing injury. In a judge-alone trial before Judge J M Jelašon 2 August 2023, Ms Arani was found guilty in respect of a traffic crash incident thatoccurred just after 2 am on Friday 18 March 2022 at the intersection of Queen Streetand Wyndham Street, Auckland central.1[2] The complainant was a cyclist travelling north down Queen Street. Theappellant, Ms Arani, was travelling in a southerly direction up Queen Street, intendingto turn right onto Wyndham Street. The collision occurred when Ms Arani made aright turn towards Wyndham Street, failing to give way to the cyclist because she didnot see him. The complainant received injuries. The issue at trial and on appeal iswhether her driving was careless.Legal principles[3] This appeal is pursued under ss 230(1)(b) and 231 of the Criminal ProcedureAct 2011. Under s 229(1) a person convicted of an offence may appeal against theconviction as of right.[4] Section 232(2) of the Criminal Procedure Act provides that this Court mustallow the appeal if it is satisfied that:(a) the Judge erred in her assessment of the evidence to such an extent thata miscarriage of justice had occurred; or(b) a miscarriage of justice has occurred for any reason.[5] A miscarriage of justice is defined in s 232(4) as any error, irregularity, oroccurrence in or in relation to or affecting the trial that "has created a real risk that theoutcome of the trial was affected" or "has resulted in an unfair trial or a trial that wasa nullity".1 New Zealand Police v Arani [2023] NZDC 18799 at [1]–[2].[6] The principles from Austin, Nichols & Co Inc v Stitching Lodestar apply.2 Itis for the appellant to show that an error has been made.3 This Court must take intoaccount any advantages that the trial Judge may have had, including exercising the"customary" caution to a challenge to credibility findings based on contested oralevidence.4 But, if this Court comes to a different view of the evidence, the trial Judgemust necessarily have erred and the appeal must be allowed.5[7] In this case, the issue is whether the appellant drove "carelessly". A person"drives carelessly if they do not drive with the degree of care and attention that areasonable and prudent driver would exercise in the circumstances".6Grounds of appeal[8] The ground for appeal is that the Judge could not reasonably have made afinding beyond reasonable doubt that the appellant drove carelessly.[9] In particular:(a) there was an insufficient factual basis for concluding to the criminalstandard of proof that there were lights operating on the complainant'selectric bike;(b) the factual finding did not take sufficient account of the complainant'sexcessive speed;(c) the conclusion about visibility was not substantiated to the requisitestandard; and(d) issues of alcohol consumption should have been given more weight inassessing the credibility of the complainant, in turn impacting on theabove issues.2 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.3 At [4].4 At [13].5 At [16].6 Savieti v New Zealand Police [2021] NZCA 176 at [32], referencing Simpson v Peat [1952] 2 QB24 at 27–28; followed in Police v Chappell [1974] 1 NZLR 225 (SC) at 228.[10] The appellant places particular reliance on an analogous case, Broderick vNew Zealand Police.7 In that case, the High Court allowed an appeal, and quashed aconviction of careless driving in breach of s 37(1) of the Land Transport Act. Thestarting point was that the Court had to be satisfied beyond reasonable doubt thatMr Broderick did not keep a proper lookout and that his conduct contravened therequired standards. In that case it was accepted that Mr Broderick's driving could onlyhave been described as careless if:(a) the moped that was hit by the appellant had its lights on; or(b) if the moped's lights were not on, there was in any event sufficient lightfor a reasonable driver to see the unlit driver in the prevailingconditions.[11] As to whether the moped's lights were on, the Justices of the Peace whopresided over the first instance hearing could not reach a decision after hearing all theevidence. On appeal, the High Court agreed with their conclusion that the police hadnot established beyond reasonable doubt the fact that the moped's lights were on.[12] On the second issue, the Justices of the Peace decided that Mr Broderick oughtto have been able to see the complainant before impact because of other lighting in thestreet and his own headlights. The High Court held that the Justices of the Peace haderred in their assessment of that issue. The accident happened at 6.45 am on a darkwinter's morning and the complainant was wearing a dark outfit. It was apparent fromthe plan and photographs that the layout of the intersection was such that the dippedheadlights on the reasonable driver's car might not have picked up the complainant inthe intersection before he or she commenced the right hand turn into the car park. TheHigh Court was satisfied that a reasonable driver might well not have seen the mopeduntil the last few seconds before impact.87 Broderick v New Zealand Police HC Whangarei CRI 2009-488-4, 26 April 2010.8 At [15].[13] The appellant contends that the same analysis applies in this case. Thecomplainant gave evidence that lights would have been operating on his electric bikebecause they automatically turn on when the bike is pedalled. However, that evidenceshould not have been treated as credible, and the photographs of the electric bike takenby Constable Morris after the accident (photographs 11 and 12) do not clearly showthat the bike had lights. Constable Morris stated on the traffic crash report that "Thebike had no lights", and this at the very least creates reasonable doubt on the issue,supported by the fact that Ms Arani did not see the cyclist (whereas she would have ifthe bike had lights that were on at the time).[14] The appellant contends that the complainant was not credible on this issue, forthe following reasons:(a) his statement that he had only three to four beers was not in line withthe accepted blood ethanol reading;(b) his assertion that he was wearing "contrasting black and white"clothing was inconsistent with the fact that only black clothing wasvisible from the front (the white hood fell down behind his back);(c) his recollections about the route taken and speed called into questionhis reliability; and(d) insufficient weight was given to other evidence indicating that the bikedid not have lights and/or were not on at the time of the accident.District Court decision[15] On the key issue of whether the complainant should have been visible to theappellant, the Judge accepted that the complainant was wearing dark clothing, and thecolour of the bike was dark in shade which made it more difficult for it to be seen.More problematic was the evidence about whether or not the bike had lights on at thetime of the accident.[16] Detective Constable Moss and Constable Morris, who both attended theaccident, gave some evidence on the point. Detective Constable Moss was notimmediately sure if the bike had a light but, retrospectively looking at photograph 12,he thought he could see one in the middle of the front handlebars. The traffic crashreport prepared by Constable Morris recorded "The bike had no lights", but with thepassage of time she had no independent recollection of where that evidence came fromor whether the statement was true or not.[17] The Judge ultimately relied on the evidence of the complainant on that point.In his evidence, the complainant confirmed that his bike has reflectors and multiplelights, including a light at the front. Critically the complainant explained that, becauseit is an electric bike, the lights go on automatically when the bike is pedalled. TheJudge assessed that evidence as credible and consistent with what he considered to bea light visible in photograph 12.9[18] On the issue of speed, the Judge assumed that the complainant was travellingat around the speed limit of 30 kilometres and possibly "slightly over" that limit but,even if that were the case, the Judge concluded that speed would not have been acontributing factor to the appellant not seeing the complainant on his bike, havingregard to other conditions (it being a straight road with good visibility from the streetlighting and shop lighting).10[19] On the issue of intoxication, the Judge did not consider alcohol to be a relevantfactor. While the complainant may have drunk more alcohol than he said, this wascausatively unrelated to the accident, and the reliability of any estimate of alcoholconsumption was understandable in the circumstances and did not undermine hisoverall credibility.119 New Zealand Police v Arani, above n 1, at [18].10 At [20]-[21].11 At [24].Analysis[20] I have considered the points raised by the appellant and have reviewed theevidence, including the CCTV footage and photographs. I do not consider that theJudge erred in accepting the cyclist's evidence that he had his lights on.[21] In terms of the credibility of the complainant, I do not see any basis forinterfering with the Judge's assessment of his reliability. The Judge heard thecomplainant's oral evidence and was well-placed to assess his credibility,12 alsoconsistent with other evidence. The level of alcohol consumption was not relevant tocausation of the accident, and an inaccurate recollection about the number of drinksconsumed that night was understandable in the circumstances of the accident. Thecomplainant's evidence about the colour of clothing worn was accurate, as seen in theCCTV footage, even if he did not think through the visibility implications from theperspective of a driver coming from the opposite direction. In terms of his statementsabout what he could recall and not recall, this demonstrates his efforts to be truthful.His statements about speed are consistent with the evidence, rather than demonstratingunreliability.[22] I agree that a light does seem apparent in photograph 12 in the middle of thebike's handlebars. This is inconsistent with the crash report note by Constable Morristhat there were no lights. She may simply not have noticed those lights, because theyare also black and would not have been lit while the bike was stationary. Given thatConstable Morris did not see any lights, she did not test whether they functionedautomatically when the electric bike was pedalled. This is something that thecomplainant would be expected to know as the owner and regular rider of the bike.He was under oath, and I have no reason to interfere with the credibility findings ofthe Judge on that issue.[23] Even if the lights had not been operational, the Judge also found that it was "avery well-lit area on a straight road with good visibility".13 This is evident from theCCTV footage and the various photos of the accident area. I accept that there are trees12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]–[40].13 New Zealand Police v Arani, above n 1, at [25].lining Queen Street to the south of the intersection that could have caused someshadowing, but this does not obstruct comprehensive lighting of the road from bothstreet and shop lights. While not expressly stated, I accept that even if it could not beproved to the requisite standards that the lights were switched on, a reasonable andprudent driver would still be expected to see a cyclist riding north across thisintersection and would not have made the right hand turn without giving way.[24] The facts are distinguishable from Broderick and instead are analogous toChen v New Zealand Police.14 In that case the High Court explained that it was notvital for the prosecution to prove that vehicle lights were on. What had to be provenwas that either the lights of the vehicle were on, or that there was sufficient lightingfor a reasonable driver to see an unlit vehicle.15[25] Overall, there was no error in the finding that the appellant's driving fell belowthe standard expected of a reasonable and prudent driver. There was a proper factualbasis for concluding, beyond reasonable doubt, that the cyclist's lights were on. Evenif that were not the case, the factual findings were that the site of the accident waswell-lit. In those circumstances, it is reasonable to expect a driver to take reasonablecaution and see and give way to a cyclist going straight, even one wearing darkclothing on a dark bike without lights.Result[26] Accordingly, I dismiss the appeal.____________________O'Gorman J14 Chen v New Zealand Police HC Auckland CRI 2010-404-344, 22 February 201115 At [33].