POTHULA v NEW ZEALAND POLICE [2023] NZHC 2751

POTHULA v NEW ZEALAND POLICE [2023] NZHC 2751 [29 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000348[2023] NZHC 2751BETWEEN SARATHU BABU POTHULAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 September 2023Appearances: N P Chisnall KC and J Din for the AppellantM W Nathan for the RespondentJudgment: 29 September 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 29 September 2023 at 4.30 pm......................................................Registrar / Deputy RegistrarCounsel/Solicitors:Nicholas Chisnall Kings Counsel, Central AucklandBespoke Legal Limited, Central AucklandMeredith Connell, Crown Solicitor, AucklandIntroduction[1] On 23 March 2023, Sarath Pothula was convicted of two charges of carelessuse of a motor vehicle causing injury at a judge-alone trial before Judge S J Maude atthe 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 nowappeals those convictions.[2] Mr Pothula argued that a miscarriage of justice occurred because the Judgeerred in his assessment of the evidence for two reasons. First, the Judge failed to applythe proper standard of proof because he did not explicitly reject Mr and Mrs Pothula'sevidence 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 defenceevidence was true. Secondly, the Judge did not address the concessions made byPolice witnesses that the collision may have occurred in the northbound lane and didnot incorporate the expert's opinion that it was not possible to determine where on theroad the collision occurred.[3] The Police oppose the appeal. They argue that the Judge expressly provided areasoned 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 drivingin?(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, prudentdriver 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 hiswife Mrs Pothula (also known as Ms Veerepalli) sitting in the front seat and cousin inthe rear seat on State Highway 1 southbound towards Auckland. Realising they hadforgotten something, Mr Pothula turned left off State Highway 1 onto Cowan BayRoad, performed a U-turn, then waited at the intersection of Cowan Bay Road andState 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 outersouthbound lane is sometimes referred to as the "slow lane" and the inner southboundlane 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 forapproximately five minutes for a gap. Eventually, one appeared and so he pulled outacross the two southbound lanes.[7] Mr Chrustowski was travelling southbound in a Ford Mustang motor vehiclewith his wife. The Mazda and the Mustang collided. There was extensive damage tothe vehicles and Mr and Mrs Chrustowski were both seriously injured. That theaccident 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 mustprove the charge beyond reasonable doubt".2 The Judge also laid out the legal test forcareless use — that a person drives carelessly if they do not drive with the degree ofcare and attention that a reasonable and prudent driver would exercise in thecircumstances. After summarising the facts, the Judge outlined the evidence of thepolice 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 theoutside passing lane as he approached the Cowan Bay Rd intersection, and the trafficwas bumper-to-bumper. He had just prior passed a white vehicle that was in the leftsouth-bound lane (the slow lane). He described at the very last minute seeing MrPothula's car coming at right angles to him attempting to get onto the State Highway1 northbound lane. Mr Chrustowski described breaking heavily to avoid impact.According to Mr Chrustowski, the impact occurred in the outer southbound lane. TheJudge recorded that when questioned about whether the impact occurred before thecentre line Mr Chrustowski:accepted that he could not be exactly sure extrapolating that he could not besure if movement across the centre lane to the point where the vehicles cameto rest on the other side of the highway would have occurred as a result of hisbreaking 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, belowthe speed limit of 80 km/hr due to the busy southbound traffic. She thought she sawMr Pothula approximately 100 metres prior to impact when he was waiting at theintersection. She could not recall where impact occurred.[11] Ms Boswell, the independent witness, described travelling northbound at thetime of impact at approximately 75 km/hr. She witnessed a vehicle pull out of CowanBay Rd while southbound traffic was approaching and did not notice any vehicletravelling at speed. She saw the impact and described it occurring in the centre(southbound passing lane) of State Highway 1. The Judge then recorded herconcession to Mr Pothula's counsel that this description was from memory, which isnot 100 per cent recall.[12] Constable Fruish's evidence was described by the Judge as "limited". TheConstable had not retained crash scene evidence; did not conduct follow-upinterviews; did not determine the impact point; had not been able to discern vehiclespeed and while he had identified road scarring, could not indicate whether it wascaused 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 investigationexpert Mr Bass. Mr Pothula's evidence was that he waited at the stop sign forapproximately five minutes. He said he looked left and right, formed a view it wassafe to pull out, then drove across the two southbound lanes on State Highway 1turning to face northbound in the northbound lane, at which point Mr Chrustowski'scar hit his vehicle head-on. He had seen a white vehicle in the inner lane before pullingout but none in the outer lane. He was clear that pre-impact he had straightened hiscar to face north in the northbound lane. He said the impact point with the vehicle wason 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 wasadamant that Mr Chrustowski's car had been completely in the northbound lane beforeimpact. However, Judge Maude recorded that she had not seen any white car in thesouthbound lane, unlike her husband.[15] The Judge then considered Mr Bass' report and evidence. In summary, MrBass could not identify the point of impact; he could not attribute the road scarring tothe accident although it was consistent with the accident; the resting position of thecars post-accident was consistent with both Mr Pothula's and Mr Chrustowski'saccounts; Mr Pothula was within 40 per cent of members of the public who wouldinsert themselves into a gap of traffic with less than six seconds from start point tocollision, here being between 5 and 5.8 seconds, and that with every 20 seconds ofwait time a driver's propensity to proceed increases. Ultimately, the Judge concludedthat he was not assisted by Mr Bass' evidence.[16] The Judge then assessed the competing evidence. He first recorded that MrPothula had injected himself into a gap in the traffic and there was a collision, so inthe absence of evidence of victim speed or other intervening event not foreseeable byMr Pothula, carelessness is to be presumed.[17] Taking both accounts of where the collision occurred, the Judge reasoned thatMr Chrustowski's vehicle hitting Mr Pothula's vehicle on the front left corner was notconsistent with Mr Pothula's account of having proceeded out of the southbound lanesinto the northbound lane. The only way that Mr Pothula's car would have been struckon its front left while he was in the northbound lane would be if, on sighting MrChrustowski's vehicle, Mr Pothula had veered right into the direction of the oncomingsouthern traffic. The Judge thought that behaviour would be unlikely.[18] He then found there was no evidence of speed. Mr and Mrs Chrustowskiindicated travelling less than the speed limit of 80 km/hr and the independent witnessMs Boswell did not indicate any other car or speed. Her evidence that she believedthe impact occurred in the centre southbound passing lane corroborated the views ofMr 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 independentwitness Ms Boswell, I am satisfied beyond reasonable doubt that Mr Pothulainjected 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 ifsatisfied that,—(a) (b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage of justice hasoccurred; 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 inany 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 theevidence, Austin, Nichols & Co Inc v Stichting Lodestar3 sets out the relevantapproach for civil appeals conducted by way of rehearing.4 Under that approach:5If an appellate court comes to a different view on the evidence, the trial judgenecessarily will have erred and the appeal must be allowed. But [s]ince itis 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 musttake 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 "tosuch an extent that a miscarriage of justice has occurred", the error must be one whichin 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 onethat gives rise to such risk. A real risk arises if there is a reasonable possibility anotherverdict would have been reached.6 The court may exercise its discretion to dismiss anotherwise successful conviction appeal if it assesses the evidence and concludes afinding of guilt was inevitable.7Did 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 andstraightened up. He accepted that the photographs depicted damage "across the frontof" Mr Pothula's vehicle. He also stated that he may have crossed the centre line priorto 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 notbe sure about what area of the road the collision occurred or where on the Mazda the3 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 Boswellaccepted that her memory was not perfect and she could not decisively refute therewas a head-on collision. Mr Chisnall also underscored that the statement was takensome time after the incident and submitted Mrs Chrustowski's memory was not freshat that time.[24] Mr Chisnall contended that the Judge treated Ms Boswell as the "breaker of aneffective stalemate" between the prosecution and defence narrative. According tocounsel, because of that approach, the Judge erred in four key ways. First, he failedto appreciate that Mr Bass' evidence did assist the Court because it demonstrated thateither scenario was plausible. The Judge therefore needed to articulate precisely whyhe had found the prosecution witnesses more reliable and credible than Mr Pothulaand his wife and why the defence evidence was "unlikely" or "implausible".[25] Secondly, in treating Ms Boswell's evidence as corroborative, the Judge didnot take account of her concessions, which he included in his findings of fact. Forexample, she did not recall whether the vehicles collided head-on and her memory wasnot perfect. Her evidence was expressed in a tentative way and the Judge failed totake that into account. Thirdly, the Judge found that Ms Boswell's evidencecorroborated the Chrustowskis' evidence. This was even though Mrs Chrustowskiconfirmed that she could not say in which lane the collision occurred. Mr Chisnallsubmitted this was a clear error in the assessment of the evidence.[26] Fourthly, the Judge misstated Mr Chrustowski's concession. He characterisedthe concession as that Mr Chrustowski could not be sure if movement across the centrelane occurred as a result of the impact or the evasive braking. However, the concessionwas more fundamental - that Mr Chrustowski could not be sure whether Mr Pothula'svehicle 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 incross-examination and was corroborated by his wife, that he had straightened into thenorthbound lane and the collision was towards the front left side. Mr Chisnall notedMr Bass' evidence that each case theory was "equally plausible"; that 40 per cent ofdrivers would have executed the manoeuvre in the circumstances; and that, while theJudge did not record this evidence, Mr Bass also described the ways in whichdeficiencies 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 eventsunfolded. Counsel highlighted that the reasons for customary caution given in Sena vPolice were not highly engaged here.8 The evidence did not emerge in a slow fashionand this Court would be in a similar position as to assessing the evidence. As tocredibility, Mr Chisnall submitted this would not be conclusory, and credibility in thiscase 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 misstatedthe evidence, but that he did not consider and apply the concessions he had earlierrecorded in his reasoning.Respondent's submissions[29] Mr Nathan submitted that Judge Maude provided a reasoned assessment of theevidence. Counsel contended that the Judge provided "reasons which address thesubstance of the case advanced by the losing party" per Sena v Police.9 Counselcontended that the Judge acknowledged Mr Bass' evidence, including that the restingpositions of the cars was consistent with impact having occurred "either as describedby Mr Chrustowski in the middle lane or Mr Pothula in the northbound lane". MrNathan 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 himand he was unable to prefer one narrative over another.[30] Counsel submitted that the Judge placed some weight on Mr Pothula and MsVeerepalli's evidence that the collision was the front left of their vehicle. Heconcluded it was unlikely Mr Pothula's vehicle would have veered to the right such tobe struck on the front left. Mr Nathan also highlighted that the Judge took account ofthe fact that the evidence given by Mr Pothula and Ms Veerepalli was inconsistent as8 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 thenarrative that Mr Chrustowski crossed the centre line which addressed and rejected areasonable possibility that the substance of Mr Pothula's case was true. It wasinconsistent with any view of Ms Boswell's evidence and inconsistent with theinstantaneous nature of the crash put forward by the Chrustowskis.[31] Mr Nathan then argued that the Judge correctly turned to assess the reliabilityof the prosecution evidence. Counsel submitted that any "concession" given by MrChrustowski as to the position of his car at point of impact must be seen in light of hisotherwise clear evidence that he was in the southbound passing lane prior to impact.Mr Nathan contended that Mr Chrustowski's uncertainty about whether collision withthe Mazda or breaking prior to impact caused him to cross the centre line does notabsolve Mr Pothula from liability. He argued that the effect of Mr Chrustowski'sevidence was correctly summarised in the decision.[32] As to Ms Boswell's evidence, Mr Nathan submitted this supported theconclusion that the collision occurred in the southbound passing lane. He contendedthe fact she could not recall "with 100 per cent certainty" was a reasonable concessionthat 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 theevidence. In any event, counsel urged the Court to remember that the Judge wouldhave advantages in assessing credibility at trial.Discussion[33] I do not accept the appellant's argument that the Judge was incorrect indetermining which lane Mr Pothula was driving in at the time of the collision. MrBass' 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 pointeddifferently towards one scenario or the other or were ambiguous as to which scenariothey proved. Instead, the report and Mr Bass' oral evidence highlighted the dearth offorensic evidence that might prove whose account was true. The high point of MrBass' evidence was that the final resting position of the cars could have resulted fromeither scenario. However, in light of Mr Bass' acceptance that there was little evidenceto base his conclusions on, the Judge was correct to conclude his evidence did not helpto 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 thanexpert witnesses presenting a theoretical approach based on a number of assumptionsis supported in law by Wilson v Police.10 In addition, and in light of that, the Judgewas 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 Pothulaand Ms Veerepalli's accounts were internally inconsistent with reference to the laneand the impact point on their vehicle.[35] Mr Chisnall's submissions as to Mr Chrustowski's "concession" must beassessed 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 StateHighway 1 in lane two of the two, so by reference to the centre line dividingthe northbound and southbound traffic, what do you mean by lane two of thetwo?A. There is two lanes heading south and shortly after that it merges into onelane, 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 andsouthbound?A. Yes.Q. You ended up colliding with that vehicle. So, do you remember where onthe 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 aphotograph 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 laneheading south, and whether it's lane two or outside lane it's the one closest tothe centre line, is that right?A. Correct.Q. Thank you for that. Now when this vehicle pulled – or the dark vehicle, MrPothula'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 straightenedup 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 inthose terms, had he straightened up? Are you saying he straightened up in yourlane, in your outside lane?A. No, I think it was – no, it was a perpendicular thing, so sort of right-handcorner to my left-hand corner, and I imagine the frontal damage there isprobably 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 justprior to the impact, prior to swerving but prior to the impact, you crossed thecentre 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 yourmemory and from the diagram, markings on the diagram, occurred while youwere travelling south, you were still in the outside lane heading south on StateHighway 1?A. The impact, yeah.Q. Yes.A. Yeah.Q. And that Mr Pothula's vehicle was – hadn't crossed the centre line, if Icould put it in those words?A. I can't be sure, sorry, because we both ended up on the other side after theimpact so quickly.Q. So you can't be sure that Mr Pothula hadn't actually crossed the centre lineand 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 crediblenotwithstanding that he could not be certain where Mr Pothula's car was at the pointof impact. That is to be expected where events happen unexpectedly and quickly. MrChrustowski was consistent that he was driving in the centre lane. He never acceptedthat prior to attempting to take evasive action he crossed the centre line into thenorthbound 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 correctto take this into consideration. I agree with Mr Nathan that there is not much in MrChisnall's submission on her concession that she could not be certain. Indeed, if awitness purported to be certain as to their evidence in circumstances like these thatwould likely adversely affect their credibility.[41] Mr Chisnall submitted that the Judge incorrectly stated that Ms Boswell'sevidence corroborated both Mr and Mrs Chrustowski's because Mrs Chrustowskicould not be sure as to where the cars were. Although Mrs Chrustowski was not asequivocal as Mr Chrustowski, her evidence was consistent with his. In oralexamination Mrs Chrustowski was asked to mark on a photograph of the road wheretheir vehicle was when she first saw Mr Pothula's vehicle. The diagram, which is inevidence before me, shows her marking in the centre lane. She clarifies the positionof the marking as "Just there. Further back from Jurgen's red," referring to the impactpoint marked by Mr Chrustowski referenced above. In that context the followingpassage of oral examination is relevant:Q. In your statement you said you noticed a vehicle waiting at the intersectionof Cowan Bay Road, and obviously the vehicle that you were in ended upcolliding with it, so how long would you say time wise when you saw first thevehicle waiting at the Cowan Bay Road and obviously the next minute is theimpact?A. A few second probably.Q. In terms of the distance approximately between where you were when youfirst saw it and the next minute impact with the car, what would you say interms 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 veryquick.[42] So although Mrs Chrustowski could not recall precisely "where and the sectionof road the impact happened" on, her evidence was that she and Mr Chrustowski weretravelling in the centre lane and a few seconds and short distance later collided withMr Pothula's vehicle.[43] In addition, Mrs Chrustowski's evidence referred to "everyone travelling a lotslower 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 belowthe 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 MrsChrustowski indicated travelling at less than 80 km/h the Judge concludes:The independent witness, Ms Boswell, did not identify any other car or speedand indicated her belief that impact occurred in the centre southbound passinglane, corroborating the views of Mr Chrustowski and Mrs Chrustowski.[45] Ms Boswell's evidence corroborated Mrs Chrustowski's evidence that therewas no intervening speed and Mr Chrustowski's evidence that the impact occurred inthe centre southbound lane. In addition, the evidence Mrs Chrustowski could give asto the location of the Mustang shortly before the crash was consistent with the collisionoccurring in the centre southbound lane. Accordingly, I can discern no error in theJudge'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 ofimperfect expression. Whether the charge was proved beyond a reasonable doubtturned on a reasoned resolution of a significant evidential dispute, namely whether MrPothula was on the wrong side of the road when the collision occurred. He submittedthat the Judge's failure to contend with the prosecution witnesses' concessions meantthe decision amounted to a conclusory finding on credibility which was notpermissible. The Judge's use of "unlikely" and "implausible" to describe the defenceevidence does not articulate why there is not a reasonable doubt and is in tension withhis obligation to find Mr Pothula not guilty is there was a reasonable possibility thedefence evidence was true. In other words, the Judge needed to express why therewas not a reasonable doubt.[47] In the context of an incident where events happened so quickly, Mr Chisnallsubmitted that small inconsistencies do not indicate that Mr Pothula or Ms Veerepalli'sevidence 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 notexist may have been in error.Respondent's submissions[49] Regarding [61] of the District Court judgment, Mr Nathan submitted thisreferred to matters of fact that were not in dispute. He contended that this onlyreflected Mr Pothula's obligation to inject himself into the traffic only if it was safe todo so. Mr Nathan submitted it is inherent to the role of a fact finder to determine whatevidence it accepts or rejects. At [67], taking the implausibility of Mr Pothula'saccount, and the evidence of Ms Boswell, the Judge reasoned that the Chrustowski'snarrative was to be preferred. The absence of words to the effect of "therefore I rejectMr Pothula's account" were not necessarily. It was clear from the reasoning the Judgewas satisfied beyond reasonable doubt.Discussion[50] The House of Lord's decision in Woolmington v Department of PublicProsecutions is relevant.11 Viscount Sankey LC confirmed the principle that:12Throughout the web of the English Criminal Law one golden thread is alwaysto be seen, that it is the duty of the prosecution to prove the prisoner's guiltsubject to the defence of insanity and subject also to any statutoryexception. If, at the end of and on the whole of the case, there is a reasonabledoubt, 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 anacquittal. No matter what the charge or where the trial, the principle that theprosecution must prove the guilt of the prisoner is part of the common law ofEngland and no attempt to whittle it down can be entertained.[51] Notwithstanding the formulation of the concept of proof beyond reasonabledoubt in Wanhalla, the discussion in the earlier case of R v McI, which explicitly refersto the consequences of the fact finder's conclusions on the evidence, remains goodlaw.13 In McI the Court of Appeal confirmed:14[I]f you accept the accused's evidence on the key issues, you should acquit; ifyou consider there is a reasonable possibility the accused's evidence on thekey issues might be true, you should acquit; if you reject the accused'sevidence on the key issues, you must not automatically conclude he is guilty,you must still examine all the evidence which you do accept and decidewhether it establishes the accused's guilt beyond reasonable doubt.[52] Judge Maude followed the third option, rejecting Mr Pothula's evidence on thekey issues, then determining that the evidence of Mr and Mrs Chrustowski and MsBoswell satisfied him beyond reasonable doubt as to guilt.[53] There is a distinction, as pointed out in Sweeney v Police, between the facts ofthe case and the elements of the charge.15 As the factfinder the Judge was entitled toaccept or reject the evidence. He then had to determine whether, based on the facts ashe 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 correctlyassessed the evidence. Taking the evidence as a whole, I agree that the charge ofcareless driving is made out beyond a reasonable doubt. Mr Pothula pulled out acrosstwo lanes of a busy highway where visibility of southbound traffic was reducedbecause of a corner. He collided with Mr Chrustowski's car. Mr Pothula and his wifewere sure the impact occurred on the left-hand side. On that piece of evidence theywould be best placed to have the most accurate recollection having been inside the carand focused on their own circumstances. I agree with the Judge's reasoning that it isdifficult to understand how it would have been possible for the crash to occur in thenorthbound 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 centreline, this was due to Mr Pothula being in the middle southbound lane at such a shortdistance from Mr Chrustowski that the latter was forced to evasively brake and indoing so move towards the centre line. Indeed, Mr Pothula's own mark on the diagramof the scene overlaps the centre line. Mrs Chrustowski's evidence demonstrates thespeed 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 wasdriving entirely in the wrong lane prior to the crash, thus causing the crash, was notcredible in light of both Mr Chrustowski's and Ms Boswell's evidence. I agree withthe Judge that significant weight can be placed on Ms Boswell's evidence because shewas an independent witness.[57] Accordingly, Judge Maude was correct to find that no external factor, includingthe actions of Mr Chrustowski, caused the collision, that Mr Pothula was responsiblefor the crash by being in the middle southbound lane at or just before the time of thecrash, and therefore that he was satisfied beyond a reasonable doubt that Mr Pothulawas not exercising the care and attention required of a reasonable and prudent driverin the circumstances.[58] As to whether the Judge's expression of his reasoning was sufficient, this Courtrecognised in Taiatini v Police:1616 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 givereasons for rejecting the evidence of a witness whose evidence is material tothe outcome The extent of reasoning required will vary between cases, butthe reasons given should be 'adequate to the occasion' It must not beoverlooked that Judges, in particular District Court Judges operate under timeconstraints and in circumstances which usually require oral decisions to begiven at the conclusion of the evidence Further, there are difficulties inarticulating reasons for a credibility finding 'which is based principally uponan exercise in judgment borne of experience, knowledge of human behaviour,and the evaluative process'. Nevertheless, as Randerson J said in Takareiat [14]:' some brief reasons for rejecting the evidence of a key witnessshould be given.'[59] Although the Judge's reasoning could have been further developed, hisreasoning was set out from [60]–[68] of the decision, and reasons are given at [64] toexplain why Mr Pothula's evidence was rejected. At [61] and [65]–[67] the reasonswhy he found the prosecution case established were set out. Accordingly, I considerreasons were given "adequate to the occasion" that explained how the Judge assessedthe evidence and why it led to his finding of guilt. Despite counsel's submissions tothe contrary, I consider this is a case of imprecision of expression rather than the Judgeerring in his application of the standard and burden of proof.[60] Finally, regarding Judge Maude's approach at [61] to presume carelessness inthe absence of intervening factors, there is no error of law. There is a significantamount of authority, including from appellate courts, that there may be cases whereprima facie the only reasonable inference is of careless driving.17 In short, I acceptthe respondent's argument that the Judge correctly applied the burden and standard ofproof when arriving at his conclusions.Was Mr Pothula's driving below the standard of a reasonable, prudent driver inthe circumstances?Appellant's submissions[61] Regarding the argument that Mr Pothula was driving carelessly regardless ofthe lane the collision occurred in, Mr Chisnall contended that the Judge did not17 See the discussion in Andrew Becroft and Geoff Hall Becroft and Hall's Transport Law (onlineed, LexisNexis) at [LTA37.7], citing (among others) Police v Chappell [1974] 1 NZLR 225 andR v Pegler CA214/03, 10 November 2003.explicitly find the charges proved on that basis. Counsel submitted that it is impliedlyclear that the Judge saw Mr Chrustowski's alleged encroachment into the northboundlane as an "intervening event" of the kind the Judge said was necessary to avoidliability. He referred to Sweeney v Police where Downs J stated:[29] This approach was open to the Judge for the reasons explained earlierbut did not obviate the need for clear articulation as to how the charge wasproved. As observed, scenario A offered an obvious and easy path toconviction, whereas scenario B—or some variant of that scenario—was lessclear cut. Again, while it was open to the Judge to consider the caseirrespective of the competing theories, the Judge was required to clearlyarticulate why the charge was proved. In Sena v Police, the Supreme Courtemphasised 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 wasin the incorrect lane. Counsel underscored that the onus never shifts from theprosecution to the defence.[63] Mr Chisnall referred to Haunui v R.18 There the argument was that the Courtcould be sure of the appellant's guilt, on a different basis, regardless of an establishederror.19 Counsel submitted that the Supreme Court rejected that submission, holdingthat it was unfair to rely on a case that was not run at trial.20 As a result it was notdefended 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 asto the location of the collision, it is clear from the evidence that the Judge consideredthe appellant's actions sufficiently careless to meet the legal test, irrespective of whichlane the collision occurred in.[65] Counsel contended that the standard of care of a reasonable and prudent driverdepends on the surrounding environment and circumstances and argued that in thecontext of a motorway, the standard of care is high.21 He submitted that a driver must18 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 drivercorrectly 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 stoppedat the intersection, injected himself into a gap in the traffic and following that, therewas a collision between his and Mr Chrustowski's vehicles. In the absence of evidenceof victim speed or other intervening event not foreseeable by Mr Pothula, carelessnesswas, in Judge Maude's view, to be presumed. Counsel submitted that there is a clearonus on Mr Pothula in this situation, where he must give way, to ensure he safelyenters the flow of traffic on an arterial highway. The evidence demonstrated that thereis a bend in the road which means oncoming traffic is obscured from a significantdistance. In these circumstances, counsel argued, the reasonable and prudent driverwould exercise greater care.[67] In addition, Mr Nathan submitted that Mr Pothula's evidence was that he hadwaited for approximately five minutes for a gap in heavy holiday traffic. Given thetime he spent waiting and his observations of the traffic, counsel contended that MrPothula was aware of the dangers of injecting himself into traffic in a busy statehighway, whether into the southbound or northbound lane. Mr Nathan also referredto Mr Bass' expert evidence that for every 20 seconds of wait time, a driver's desireto proceed increases. Mr Pothula stated he saw another vehicle travelling south in theinner lane before pulling out. Mr Nathan submitted that this suggested he wasexercising less care than five minutes earlier.[68] As foreshadowed, absent any evidence of speeding on the part of MrChrustowski and considering the resulting collision, irrespective of precisely wherethis occurred, counsel contended that Mr Pothula did not exercise the degree of careand attention required in the circumstances. He acted carelessly when turning into"heavy" holiday traffic onto this particular part of State Highway 1, despite observingoncoming traffic. According to Mr Nathan, the Judge's decision is consistent with thatconclusion.22 Citing Land Transport (Road User) Rule 2004, r 2.12.[69] If Mr Chrustowski was forced to take evasive action to avoid collision, counselargued 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 theevidential dispute as to lanes was never determinative at trial. He highlighted, forinstance, the Judge's statement at [59] that Mr Bass' evidence did not help himdetermine "whether Mr Pothula had been careless when attempting to cross thelanes". Counsel emphasised the issue was Mr Pothula's conduct as a whole, not thequestion of what lane he was in, and in particular it was Mr Pothula's decision to injecthimself from the stop sign into the traffic that was under consideration.Discussion[71] Given my conclusions on the first two issues, consideration of this submissionby the respondent is not necessary. Even so, I make some brief comments. Takingaccount of the available evidence, and the facts, including that the appellant turninginto oncoming traffic on a busy motorway during a holiday period, the argument thatMr Pothula failed to exercise care to the standard of a reasonable and prudent driverin the circumstances, has merit. The duty to keep a proper lookout is a "fundamentalobligation on all road users".23[72] In any event, I see no reason why this Court should depart from Downs J'sdecision in Sweeney. Judge Maude entered the conviction because he rejected MrPothula's version and accepted Mr Chrustowski's account. If the conviction were tobe on the basis that Mr Pothula's driving was careless, regardless of the lane he wasdriving in, the Judge was required to express and explain as such. Accordingly, had Iallowed 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, itfollows 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