KARAURIA v NEW ZEALAND POLICE [2020] NZHC 2413

KARAURIA v NEW ZEALAND POLICE [2020] NZHC 2413IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2020-476-000014CRI-2020-476-000013[2020] NZHC 2413BETWEEN RICHARD ZACK KARAURIAAppellantAND NEW ZEALAND POLICERespondentHearing: 9 September 2020Appearances: T Jackson for the AppellantH Bennett for the RespondentJudgment: 16 September 2020JUDGMENT OF DOOGUE JThis judgment was delivered by Justice Doogueon 16 September 2020 at 3.00 pm.Registrar/ Deputy RegistrarDate:Solicitors:Crown Solicitor, ChristchurchIntroduction[1] The appellant, Mr Karauria, appeals against conviction following ajudge-alone trial in the District Court at Timaru on 19 June 2020.1[2] Mr Karauria originally faced a charge of sustained loss of traction,2 whichJudge Rollo amended to careless use of a motor vehicle at the conclusion of the trial.3[3] Mr Karauria appeals the decision, on the ground that the Judge, on amendmentof the charge, erred in concluding the evidence amounted to proof of careless drivingto such an extent that a miscarriage of justice occurred.Background[4] The incident giving rise to the charge occurred on 28 October 2019, whenMr Karauria drove a car on Seadown Road, Timaru.[5] An independent witness was nearby when she heard a loud noise. She walkedaround the corner and observed Mr Karauria's partner's car in the irrigation ditch atthe T-intersection of Beach Road and Seadown Road.[6] Another car arrived at the location, which Mr Karauria was driving.[7] The independent witness saw Mr Karauria take his partner out of the car whichwas in the ditch, and put her in the back seat of his car. The independent witness askedMr Karauria's partner if she needed an ambulance. She replied she did not, but thewitness decided to ring the police in any event. The witness remained on the phonewith the police until they arrived.[8] The witness observed Mr Karauria get into his car and accelerate away atspeed. She said the movement caused the car to "fishtail" as it came off the grass andonto the road.1 Police v Karauria [2020] NZDC 14023.2 Land Transport Act 1998, s 36A(1)(c); maximum penalty three months' imprisonment or fine of$4,500.3 Section 37; maximum penalty $3,000 fine.[9] The witness then observed Mr Karauria drive on and do two 360-degree spinsin the car, and again drive the car at speed, and finally do a fast U-turn. Mr Karauriathen returned to his partner's car in the ditch, and started taking property out of theback of it. The first responders arrived shortly thereafter.Issues raised by the Appeal[10] The issues for the Court are whether:(a) Mr Karauria made the driving manoeuvres as alleged above (being thetwo incidents of "fishtailing", the two 360-degree spins, and the U-turnat high speed); and(b) Mr Karauria's actions were conscious acts.The District Court decision[11] The Judge first gave a brief summary of the background facts, and then set outthe prosecution evidence from the independent witness and the attending police officer(Constable Mackay).[12] The Judge recorded that Constable Mackay gave evidence that there weresignificant tyre marks on the roads where the events took place. There were factorswhich indicated they had been made by Mr Karauria's car, including:(a) the freshness of the tyre marks;(b) Mr Karauria's car had a space-saver wheel on the front left, which wasconsistent with the tyre marks that were on the road; and(c) the position of the tyre marks was consistent with the evidence givenby the independent eye witness as to where Mr Karauria drove.[13] The Judge set out the defence evidence given by Mr Karauria. Mr Karauriasaid he left the scene with his partner, who was bleeding, in order to put his car in asafer position by the side of the road and to be able to unload his partner's car.[14] The Judge then considered the mental element of the charge of "sustained lossof traction". He considered that he had to be satisfied beyond reasonable doubt thatthe state of "sustained" loss existed in the sense that it was consciously allowed orcaused to continue by the driver. The Judge considered he could not be satisfied thatthe loss of traction observed by the independent eye witness was a conscious actinstead of an accidental loss of traction.[15] The Judge considered the charge should be amended to one of careless drivingunder s 37 of the Land Transport Act 1998. Counsel for Mr Karauria did not opposethe amendment.[16] The Judge then considered he was satisfied beyond reasonable doubt that thescale and essence of Mr Karauria's deliberate acceleration of the car in thecircumstances fell below the standard of reasonable and prudent care of an averagemotorist. He did so on the basis of the evidence of the independent eye witness,Constable Mackay, and on Mr Karauria's own evidence regarding his driving.Principles governing conviction appeals[17] Mr Karauria appeals his conviction under s 229 of the Criminal Procedure Act2011.[18] The Court must allow Mr Karauria's conviction appeal if it is satisfied that theJudge erred in his assessment of the evidence to such an extent that a miscarriage ofjustice has occurred, or if a miscarriage of justice has occurred for any reason.4 Amiscarriage of justice means any error, irregularity, or occurrence in or in relation toor affecting the trial that: has created a real risk that the outcome of the trial wasaffected; or has resulted in an unfair trial, or a trial that was a nullity.54 Criminal Procedure Act 2011, s 232(2)(b)-(c).5 Section 232(4).[19] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or a more favourable) verdict might have been deliveredif nothing had gone wrong."6 This standard means that an appellant does not have toestablish a miscarriage in the sense that the verdict actually is unsafe, only that thereis a real possibility the verdict could be unsafe.7[20] An appeal against conviction proceeds by way of rehearing.8 If an appellatecourt comes to a different view on the evidence, the trial Judge necessarily will haveerred and the appeal must be allowed.9 However, the appellant must show that anerror has been made.10 Further, the appellate court must remember the advantages atrial Judge has especially where the challenge is to credibility findings based oncontested oral evidence.11SubmissionsAppellant's submissions[21] It is not at issue that the relevant events occurred on 28 October 2019, asdescribed above.[22] Mr Jackson, counsel for Mr Karauria, did not take issue with the Judge's powerof amendment, and he acknowledged that he did not make any submissions againstthe amendment at the trial. However, he wished to record he did not concede thatthere was sufficient evidence to prove the amended charge.[23] Mr Jackson referred to [16] and [17] of the Judge's decision:[16] I am satisfied on the evidence I have heard that the scale and essenceof your driving which was deliberate by your acceleration in thosecircumstances, falls below the standard of reasonable and prudent care of theaverage motorist, and in that sense, you have committed the offence of'careless use of a motor vehicle'.6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.7 At [110].8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].9 At [38].10 At [38].11 At [38].[17] So, I accept the observations of [the] independent witness. Isubstantially accept the inferences drawn by Constable Mackay from hisobservations of the skid marks on the road and from the evidence that he heardfrom [the independent witness] and also the confirmation in your ownevidence of your standard of driving. It was below that of a reasonable andprudent motorist by a significant degree, Mr Karauria. Therefore, I amsatisfied that is the appropriate charge and I find the charge proven.[24] Mr Jackson argued that it is not clear from the decision which facts wereaccepted as proved or which of the proved facts amounted to proof of carelessness.The basis for the conclusion was therefore reliance on: the acceptance of theindependent witness; inferences drawn by Constable Mackay from his observations ofthe tyre marks on the road, and from what he had been told by the independent witness;and confirmation in Mr Karauria's evidence of his own standard of driving.Respondent's submissions[25] Ms Bennett, for the Police, submitted that it was open to the Judge to preferthe evidence of the independent witness over Mr Karauria, and the Judge was correctas to the finding of fact that Mr Karauria did the alleged actions that constituted lossof traction.[26] As to the mens rea element of the charge, Ms Bennett submitted that as theJudge was not satisfied beyond a reasonable doubt that the action was deliberate, itwas appropriate to amend the charge to one of careless use of a motor vehicle. Shesubmitted the Judge was correct to find that charge was proved against Mr Jackson.AnalysisWas the independent witness' evidence reliable?[27] Dealing with each of these in turn, Mr Jackson submitted that:(a) it was reasonably doubtful that the independent witness could have seenMr Karauria's driving on Dominion Road;(b) at best, all she could have seen was Mr Karauria driving away quickly,then driving to and turning left onto Dominion Road; and(c) she may simply have seen Mr Karauria turn his car around once andcome back in a hurry.[28] Mr Jackson's submission was that there was a possibility the witness hadconflated what she had heard and seen with notions of street racing or other knowndriving behaviour in that vicinity.[29] I have reviewed the transcript, and in particular the cross-examination as towhether or not the independent witness could have seen Mr Karauria and hismovements on Dominion Road. The witness was consistent and adamant that she didsee his driving on Dominion Road. She evidenced a very good knowledge of the area,and specific knowledge of the trees and the gap through which she was able to observeMr Karauria.[30] Throughout her evidence she was unshaken on the core elements ofcarelessness, being the sudden acceleration and erratic behaviour as Mr Karauria droveaway, skidded, and fishtailed. She described the speed Mr Karauria maintained, theturns that he did at speed, the sounds accompanying the skidding, and then what thewitness termed the "squealy" as Mr Karauria skidded his wheels sharply coming outof the corner back towards Seadown Road from Dominion Road.[31] The fact that Mr Karauria's driving was erratic and fast is evidenced by herfear of the consequences of the driving when she was questioned about him comingback out of Dominion Road and onto Seadown Road; in her evidence she said:It hadn't calmed down. Like he was still travelling at speed and the commslady heard the squeal noise on the phone and I said "I'm getting out of herebecause I think he's going to run us over."[32] I consider that the witness was unshaken on her core testimony, and that shewas a reliable and informed witness who observed Mr Karauria drive in circumstancesthat fell below the standard of reasonable and prudent care of an average motorist. Ifind the Judge was entitled to find the witness reliable.Was the Judge correct to draw the inferences he did from Constable Mackay'sevidence?[33] Mr Jackson established through his cross-examination that the Constable hadnot seen any of the driving. He conceded he was not a designated traffic-crashinvestigator and that no traffic-crash investigation was carried out in relation to theevents.[34] The Constable confirmed that marks at the scene were consistent with someonesimply turning around in a hurry, rather than doing a donut or coming to a stand-stilland accelerating thus causing a sustained loss of traction. There is nothing in myestimation particularly conclusive in the Constable's evidence, apart from hisobservations about the marks associated with the acceleration. That is, in my view,the full extent of the conclusions that could be safely drawn about the markings on theroad.Was there confirmation in Mr Karauria's own evidence of his standard of driving?[35] Here, Mr Jackson submitted Mr Karauria's evidence went no further than toexplain his actions in that he was driving in an environment of urgency and he waspanicking.[36] In my view, the Judge was entitled to rely on confirmation by Mr Karauriahimself that his driving fell below the standard of reasonable and prudent care of anaverage motorist. Mr Karauria admitted his judgment was clouded, that he was tryingto be fast, and that he was angry. He acknowledged that he did leave a mark when hewas turning, and that when he came around the corner it was gravelly and there wasdust everywhere because he was "accelerating pretty fast but it was like I wasn't goingover 100 k/ph".[37] In summary Mr Karauria accepts that his driving was not prudent, that it wasat speed and that he did skid.[38] The fact that there were no cars in the area does not eliminate the potential forthere to have been harm to others by virtue of the careless driving.Conclusion[39] On my evaluation of the evidence, the Judge was entitled as the fact-finder torely on the evidence of the independent eye witness as to what she had seen, and thelimited concessions made by Mr Karauria himself that he did deliberately accelerateand that his car did skid.[40] The Judge was entitled on the evidence before him to find that Mr Karauria'sdriving fell below the standard of reasonable and prudent care of an average motorist,thus constituting the elements of the charge of careless use of a motor vehicle.Result[41] The appeal against conviction is dismissed.Doogue J