Murdoch v Police - [2019] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI 2018-485-84

[2019] NZHC 1154

BETWEEN
RICHARD MURDOCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 May 2019

Counsel:

R D Mulgan for Appellant K J Draper for Respondent

Judgment:

24 May 2019

JUDGMENT OF MALLON J

Introduction

[1] Richard Murdoch was convicted of driving a motor vehicle with excess breath alcohol following a judge alone trial in the Wellington District Court.1 He sought a discharge without conviction and this was refused.2 He appeals against that decision. He also seeks leave to adduce new evidence in support of his appeal.

Summary of offending

[2] Mr Murdoch was driving down a Johnsonville street at around 6 pm on 9 July 2017 when a near collision occurred with another vehicle. The driver of that vehicle

1 Police v Murdoch [2018] NZDC 14705 (conviction decision). Land Transport Act 1998, s 56(1); maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 (s 56(3)). He was also acquitted of behaving in a disorderly manner in a public place under s 4 of the Summary Offences Act 1981. That was a charge arising from the same road incident as the excess breath alcohol charge.
2 Police v Murdoch [2018] NZDC 21757 (discharge without conviction decision).

MURDOCH v POLICE [2019] NZHC 1154 [24 May 2019]

was parked on the street on the same side of the road as the direction in which Mr Murdoch was travelling. She pulled out onto the street without noticing Mr Murdoch’s vehicle. Mr Murdoch swerved into the other side of the road to avoid hitting this vehicle. The driver of this vehicle gave evidence that she braked to avoid hitting Mr Murdoch or going into the curb. She said it was a “really close” miss and that she had loudly honked her horn at Mr Murdoch.

[3] She came to a stop and saw Mr Murdoch’s vehicle pull up a short distance away. He got out of his vehicle and walked towards the other car in a manner which the other driver described as “angrily and real aggressively”. He punched the side of her car, swore at her and asserted his point that the really close miss was her fault because she had “fucking cut him off”. The other driver knew Mr Murdoch from having worked for the same employer for close to a decade and she recognised him as he had approached her car. She attempted to point this out to Mr Murdoch, to which he responded, “I don’t give a fuck who you are”. He slapped her car windscreen with his palm to indicate that he had been in the right before walking back to his car and departing in the direction he had been going.

[4] Knowing Mr Murdoch to be a “calm, placid” person from her general dealings with him at work, the other driver thought “he was drunk at the very least, but … actually high on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1154
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Richard Murdoch appealed against the decision of the Wellington District Court which had refused his application for a discharge without conviction for driving a motor vehicle with excess breath alcohol. The case involved a near collision between Murdoch’s vehicle and another car on 9 July 2017. Murdoch’s aggressive and intoxicated behaviour after the incident led to a police officer requesting him to undergo a breath screening test. The test result showed a breath alcohol concentration of 996 mcg per litre of breath, more than twice the legal limit of 400 mcg. Murdoch’s defence was that he had only consumed two beers before driving and had become intoxicated after consuming half a litre of whiskey upon returning home. The District Court Judge had rejected Murdoch’s evidence and found him guilty of the charge. Murdoch sought a discharge without conviction on the basis that he had only consumed two beers before driving. The Wellington District Court Judge had refused the application, stating that the direct and indirect consequences of a conviction would not be out of proportion to the gravity of the offending. Murdoch appealed against this decision, seeking leave to adduce new evidence from Dr Sandiford, which provided an estimate of Murdoch’s breath alcohol concentration levels based on his account of what he had consumed before and after the incident. Murdoch’s counsel submitted that the expert evidence supported Murdoch’s claim that he was not affected by alcohol at the time of the incident. However, Mallon J held that Murdoch had not established on the balance of probabilities that his breath alcohol was below the 400 mcg limit. The court found that even with the benefit of Dr Sandiford’s report, it had not been established that Murdoch’s breath alcohol was below the limit. The court also noted that Murdoch did not inform the constable that he had been drinking when she came to his house, which was surprising if he had only consumed alcohol after the incident. The appeal was dismissed, and the application for leave to admit the evidence of Dr Sandiford was refused.

Orders