Murray v Police - [2019] NZHC 966

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI 2019-485-16

[2019] NZHC 966

BETWEEN
ROBERT JAMES MURRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 May 2019

Counsel:

Appellant in Person Britton for Respondent

Judgment:

6 May 2019

JUDGMENT OF ELLIS J

[1] Following a judge-alone trial in the Wellington District Court before Judge Hobbs, Mr Murray was convicted on one charge of careless driving, contrary to s 37(1) of the Land Transport Act 1998 (the LTA).1 He was subsequently sentenced to pay a $700 fine and reparation of $400.

[2] Mr Murray now appeals his conviction. He advised that he does not seek to undo the payments he has already made pursuant to his sentence.

1 Police v Murray [2019] NZDC 3317. Section 37(1) creates an offence of operating a vehicle on a road carelessly or without reasonable consideration for other persons using the road.

MURRAY v NZ POLICE [2019] NZHC 966 [6 May 2019]

The evidence

[3] Mr Sagele works at Wellington Hospital. In the early afternoon of 15 May 2017 he was beginning his drive home. This required him to pull out of the driveway of the hospital and to cross the southbound lane of Riddiford Street in order that he could then travel north.

[4] There is yellow cross-hatching on the road by the driveway of the hospital. Mr Sagele’s evidence was that the two lanes of cars travelling south had stopped at the cross hatching to let him exit the driveway. He said that he pulled out and moved slowly across the hatching and the southbound lanes. Mr Murray’s motorbike then collided with the front-right of his car.

[5] Mr Sagele was not injured. Mr Murray was thrown from his bike across the bonnet of the car and was hospitalised with (inter alia) a broken pelvis.

[6] Mr Makiri, who was standing nearby and had witnessed these events, gave evidence for the prosecution. He generally corroborated Mr Sagele’s account and described seeing Mr Murray’s motorbike travelling down the median strip, to the right of the stopped traffic, before colliding with Mr Sagele’s car.

[7] Mr Murray himself also gave evidence. He admits he was “filtering” (or lane splitting) which is not illegal. He had little memory of the incident but felt the allegations made against him by police “did not make sense”. He said his last memory on the day in question was driving up between the two lanes of stationary vehicles (not on the median strip) waiting for Mr Sagele to cross over the southbound lanes, but he did not remember anything after that.

[8] Mr Murray was first convicted of careless driving charge by Justices of the Peace (JPs), in August 2017. I do not have a copy of their decision, but it appears the conviction was based on their basis of an assumption that he had been driving on the median strip. On 18 April 2018 Judge Butler ordered that the matter…

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.

Continue reading Murray v Police

Details

AGLC: Murray v Police [2019] NZHC 966
Case: [2019] NZHC 966
Decision Date: 6 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Robert James Murray, challenged his conviction for careless driving, a charge stemming from a collision between his motorbike and another vehicle. The District Court had found Murray guilty, and he appealed that decision. The court was tasked with determining whether the District Court erred in its assessment of the evidence or in its application of the law, which could have led to a miscarriage of justice.

Murray raised three grounds for his appeal. Firstly, he argued that the District Court's reference to his speed at the time of the collision was invalid as there was no evidence presented regarding his speed. Secondly, Murray contended that the "reasonable and prudent driver" test should have been applied from the perspective of a motorcyclist, not a car driver. Lastly, he submitted that the District Court erred in rejecting his alternative version of events, which involved the other driver stopping or hesitating, leading to the collision.

The court found that the District Court was entitled to infer Murray's speed based on the evidence of the collision's impact and the injuries sustained. It was noted that the critical aspect of the District Court's decision was Murray's failure to ensure the road ahead was clear, not the speed itself. Regarding the application of the "reasonable and prudent driver" test, the court held that the practice of filtering between lanes was not inherently unacceptable but depended on the circumstances. The court found that Murray's failure to ensure his path was clear constituted carelessness. Lastly, the court dismissed Murray's speculative suggestion that the other driver had stopped or hesitated, as there was no evidence to support it.

The court concluded that there was no error in the District Court's assessment of the evidence or its application of the law. Therefore, the appeal was dismissed. The court commended Murray on the conduct of his appeal, which was deemed exemplary.

Orders