Murray v Police

[2013] NZHC 1811

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-454-000024 [2013] NZHC 1811

BETWEEN	ROBERT MURRAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 July 2013
Counsel:	Appellant in person D J Flinn for Respondent
Judgment:	18 July 2013
Reasons:	18 July 2013

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1]      Mr Murray appeals a finding by Justices of the Peace in the Dannevirke

District Court that Mr Murray had driven his car in excess of a 70 kmph speed limit.

Background

[2]      On 3 November 2012 Mr Murray was driving north on State Highway 2, near Dannevirke.     He  was   travelling  at  95   kmph  when   he   was   “clocked”  by Constable Black because Mr Murray was driving in a 70 kmph speed zone.

[3]      It transpires that Mr Murray had driven past one set of 70 kmph speed signs at the time he was “clocked”, and had driven past a second set of 70 kmph speed signs and was close to a set of 50 kmph speed signs when he stopped and was issued

with an infringement notice.

MURRAY v NEW ZEALAND POLICE [2013] NZHC 1811 [18 July 2013]

[4]      Mr Murray defended the charge.  His defence was that he could not see the first set of 70 kmph speed signs because his vision was blocked.  He explained a large stock truck that had parked on the left side of the road had blocked his view of the first 70 kmph speed sign on the left side of the road, and that a large white bus, travelling south, had blocked his view of the first 70 kmph speed sign on the right side of the road.

[5]      There  is  a  factual  dispute  about  exactly  where  Mr  Murray  stopped  his vehicle.  I do not think that issue is relevant because Mr Murray was “clocked” between the first and second set of 70 kmph speed signs on State Highway 2 leading into Dannevirke.

[6]      When convicting Mr Murray the Justices of the Peace said:1

Mr Murray, your evidence centred to some degree around the fact that the first 70 kilometre an hour sign was obscured.  You produced no evidence at all to back that up.  You admitted that approximately 10 minutes after being stopped and having a discussion with the constable, he took you for a drive down to those signs and pointed them out, and that you were aware that there were two signs, one opposite the yard and one, the second sign, coming back towards Dannevirke.

We also have noted that you did not wish to view the radar and that you did not deny exceeding the speed limit.  I think in your own words you said you were travelling around about 90, 95 or 100.

The evidence that the police prosecutor produced shows quite clearly where the signage is and the signage is on both sides of the road.  The radar was properly fitted, ready for action on that day, so to speak, and the records of the procedure that takes place before the constable takes it out has been satisfied by this Court.

Appeal

[7]      Mr Murray was convicted of breaching r 5.1(1) of the Land Transport (Road User) Rule 2004 (Road User rule) which provides that a driver “must not drive a vehicle at a speed exceeding the applicable speed limit”.

[8]      A driver who drives in excess of the applicable speed limit does not breach r 5.1(1) of the Road User rule if:

1      Police v Murray DC Dannevirke CRI-2013-010-20, 8 May 2013 at [3]-[5].

(1)       they are an enforcement officer engaged on urgent duty; (2)   the vehicle was an emergency vehicle; or

(3)       the vehicle was being used to convey a member of the Executive

Council on urgent public business.

[9]      There are also general exemptions under the Road User  rule.     Rule 1.8 provides:

1.8      General exceptions

(1)      A person is not in breach of this rule if that person proves that—

(a)       the act or omission complained of took place in response to a situation on a road;  and

(b)      the situation was not of the person's own making;  and

(c)      the act or omission was taken—

(i)       to avoid the death or injury of a person;  or

(ii)      if the act or omission did not create a risk of death or injury or greater damage to any property, to avoid damage to any property.

(2)       Subclause (1) does not apply if a court is considering, in proceedings for an offence specified in the Act, whether or not a person had complied with this rule.

(3)       A person is not in breach of this rule if that person proves that the act or omission complained of—

(a)       took   place   in   compliance   with   the   directions   of   an enforcement officer, a parking warden, a traffic signal, or a traffic sign;  or

(b)       in the case of an act or omission done by an enforcement officer or a parking warden, was necessary in the execution of the person’s duty.

...

[10]     None of the exceptions apply to the circumstances Mr Murray found himself in.

[11]     Mr Murray has committed a strict liability offence, that is to say, he can be guilty if he commits the physical act of driving in excess of an applicable speed limit without the need for the police to prove he intentionally or knowingly did so.  An offence may be a strict liability offence if the law maker intended through the words of the offence that the offence is capable of being committed without the offender

intending or knowingly doing so.2   Strict liability offences are often found where the

offence involves “public welfare” or the regulation of conduct that is not normally

considered criminal.

[12]     The wording of r 5.1(1) of the Road User rules, combined with a limited scope of the defences prescribed in the Road User rules clearly conveys that the law makers intended driving in excess of an applicable speed limit is a strict liability offence.

[13]     Even though Mr Murray has been charged with a strict liability offence he could escape liability if he proved on the balance of probabilities “total absence of fault” on his part.3   The absence of fault is a defence, and is not a matter which the police are required to negate when proving the offence.

[14]     In this case Mr Murray made no mention to Constable Black that his view of the 70 kmph speed signs might have been obscured by two separate vehicles. However, Mr Murray swore on oath that he did not see the signs because his view of the signs was obscured by two other vehicles.  My reading of the notes of evidence establishes that Mr Murray’s explanation was not directly challenged by the prosecuting police officer.  All that was established was that when Constable Black went back to check the first set of 70 kmph speed signs he could clearly see them. Furthermore, it is difficult to see how Mr Murray could have provided independent evidence to prove that his view of the first set of 70 kmph speed signs was obscured.

[15]    Although he carried the onus of proof, Mr Murray should not have been convicted simply because he was unable to independently prove a fact that was

incapable of being proven beyond his word.

2      Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).

3      Millar v Ministry of Transport, above n 2.

[16]     The onus was on Mr Murray to prove on the balance of probabilities that he was not at fault because his view of the first set of 70 kmph speed signs was blocked. He swore on oath what happened. His credibility was not impeached.

[17]    Accordingly, I am satisfied that Mr Murray established on the balance of probabilities that he was not at fault when he failed to observe the first set of

70 kmph  speed  signs.    In  these  circumstances,  I  am  satisfied  Mr  Murray  has discharged the onus that was established on him and the findings of the Justices of

the Peace must be set aside.

D B Collins J

Solicitors:

Crown Solicitor, Palmerston North for Respondent