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 be reheard

because the JPs had failed to determine that Mr Murray had, in fact, been driving on the median strip.2

District Court Decision

[9]Mr Murray’s rehearing occurred before Judge Hobbs on 21 February 2019.3

[10]   In his decision the Judge noted that whether a person drives carelessly is a question of fact. He said that he was required to be satisfied that Mr Murray did not exercise the degree of care and attention that a reasonable and prudent driver would have in the circumstances as he would find them to be.4

[11]   The Judge then noted Mr Sagele’s account of events, and that it was supported by the evidence of Mr Makiri. He said that Mr Murray’s evidence had been “brief but very much to the point”.5 He said that as he understood it, Mr Murray’s key submission was that because the photographs of the accident showed the front right-hand wheel of Mr Sagele’s car on top of the front wheel of Mr Murray’s motorbike, the car must have hit him (as opposed to the other way around). But, the Judge said:

(a)he had heard (non-expert) evidence from a police officer about how this might have occurred, which he found plausible;

(b)the point was not in any event determinative, because he was satisfied that the first-hand evidence of Mr Sagele and Mr Makiri was credible and reliable.

[12]   Judge Hobbs concluded that a “reasonable and prudent driver would not pass stationary traffic without ensuring as best they could that the road ahead was clear”.6 He also noted that Mr Murray had “clearly collided with the car at some speed because a not insignificant amount of damage [was] caused to the right front of Mr Sagele’s

2      Murray v Police [2018] NZDC 11576.

3      Police v Murray, above n 1.

4      At [2]–[3].

5 At [5].

6 At [8].

car, and no doubt to [his] motorbike, and resulted in [him] being propelled across the bonnet”.7 The Judge was satisfied it was “careless of [him] to continue at that speed, whatever it might have been, past stationary traffic without ensuring the road was clear ahead”.8 The Judge made no finding about whether Mr Murray was driving over the median line or in between the two lines of southbound cars.

Approach on appeal

[13]   This appeal is governed by s 232(2)(b) of the Criminal Procedure Act 2011. The appeal must be allowed if the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice includes any error that has created a real risk that the outcome of the trial was affected.9 In the absence of any such error, the appeal must be dismissed.

Grounds of appeal

[14]Mr Murray raises three matters in support of his appeal:

(a)Judge Hobbs’ reference to speed was “invalid” because there was no evidence given about the speed at which Mr Murray was travelling;

(b)Judge Hobbs erred in law in applying the “reasonable and prudent driver” test as he failed to apply it from the perspective of a motorcyclist as opposed to the driver of a car; and

(c)Judge Hobbs erred in rejecting Mr Murray’s alternative version of events, in which he said Mr Sagele had stopped or hesitated, leading Mr Murray to believe that he was giving way immediately before the collision.

7 At [8].

8 At [8].

9      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

Discussion

[15]I discuss each of the matters raised by Mr Murray, in turn.

Judge Hobbs’ conclusion that Mr Murray was travelling “at some speed”

[16]   Mr Murray submitted that the Judge should not have referred to speed because there was no evidence about it.

[17]   I am unable to agree with that submission. Judge Hobbs heard evidence from both Mr Sagele and Mr Makiri, who saw Mr Murray being thrown from his motorcycle and onto the bonnet of Mr Sagele’s car.10 Judge Hobbs also saw photographs of the “not insignificant amount of damage” caused to the car and to Mr Murray’s motorcycle.11 From that evidence he was entitled to draw inferences that Mr Murray was travelling at speed.

[18]   Even if I am wrong in that, as Mr Britton for the Police said, the question of speed was not the sole (nor indeed the critical) plank of the Judge’s conclusion that Mr Murray’s driving was careless. That is clear from his concluding statement that the careless act was Mr Murray’s travelling at speed “whatever it might have been, past stationary traffic without ensuring that the road was clear ahead”.12 It was the failure to check that his path was clear that (in the Judge’s view) established the charge.

Should the ordinary practice of most motorcyclists be part of the test?

[19]   Mr Murray submitted that the “reasonable and prudent driver” test applied by the Judge ought to reflect the practice of most motorcyclists. He also submitted his Honour was obliged to import an additional element to the offence created by s 37(1) to reflect that.

10     As noted earlier, Judge Hobbs found their accounts to be both credible and reliable. There was, in any event, no conflicting account.

11     Police v Murray, above n 1, at [8].

12     At [8] (emphasis added).

[20]   More particularly, Mr Murray said that different vehicles (buses, cars and motorbikes) are required to be driven differently. Driving a motorbike between lanes when traffic is heavy is a practice commonly described as “filtering”. “Filtering” is “what nearly all motorcyclists do ‘in similar circumstances’”. So (Mr Murray said) to suggest that “filtering” is unacceptable for motorcyclists because it is unacceptable for cars is wrong.

[21]   The difficulty with that submission is that Judge Hobbs does not say that filtering is, by and of itself, unacceptable or careless. It may or may not be depending on what a reasonable and prudent (motorbike) driver would do in the particular circumstances. It certainly has attendant risks and requires the driver to be vigilant. The Judge concluded that Mr Murray was not because he did not ensure as best he could that the road ahead was clear.

Was Judge Hobbs wrong to conclude on the evidence that Mr Sagele did not stop and appear to give way?

[22]   Mr Murray said that despite his memory gap he has driven motorcycles for 45 years. He argues the only likely explanation for what occurred is that he mistook hesitation in Mr Sagele’s movement across the lanes as an indication he was being given the right of way. This was, he says, an error in judgement not an act of carelessness.

[23]   The difficulty with that submission is that it is speculative. Mr Murray is unable to recall what actually happened and Mr Sagele’s evidence was contrary to his supposition. He said that he was driving slowly and continuously from the hospital entrance and through the clearway where the collision occurred. He denied stopping or hesitating at any point. Because Mr Murray does not remember what happened there is no evidence to support his suggestion to the contrary.

Further comment

[24]For Mr Murray’s benefit I would add the following.

[25]   It seems to me that the crux of the matter really is whether the Judge’s conclusion Mr Murray’s filtered past or between stationary traffic “without ensuring that the road was clear ahead” was open to him on the facts and, if so, whether it constituted carelessness as a matter of law.13

[26]   The conclusion that Mr Murray failed to ensure that the road was clear is necessarily a matter of inference.

[27]   The starting  point  is  that  Mr  Sagele’s  car  was  moving  slowly  across  Mr Murray’s path and Mr Murray did not see the vehicle.14 Mr Murray was filtering and he should have known (and no doubt did know) that the cross hatching on the road marked a point of vehicular ingress and egress from the hospital. He should also have known that pedestrians might take advantage of the stationary cars to cross the road.15 In those circumstances a reasonable and prudent motorcyclist would have known he needed to be hypervigilant. There is no suggestion that Mr Sagele’s car was somehow obscured or difficult to see. My own view is that this suffices as a basis for inferring carelessness here.

[28]   It is possible that Mr Sagele, too, was not as careful as he should have been. He was, after all, cutting across the traffic. And, subject to the need for particular vigilance that I have just mentioned, Mr Murray was not required to stop at the cross hatching if he could safely filter past the stationary vehicles. Indeed, in that sense it was he who had the right of way. Mr Sagele should have been alive to the possibility of cyclists or motorcyclists acting in that way.

13 At [8].

14 For the reasons I have already given Mr Murray’s reconstruction of what he believes “must” have

happened can play no real part in the analysis.

15 I record that I doubt that Mr Sagele was quite correct to say (as the Judge recorded in his decision) that the southbound traffic had stopped to allow him to travel across the southbound lane and move into the northbound lane. The meaning of the yellow cross hatching is that vehicles are not permitted to queue across it. Their purpose in the present context is, no doubt, to permit hospital vehicles to exit and enter more easily, particularly in an emergency. And in the present case, the cars at the northern end of the cross hatching would have stopped because they knew they were required to do so, presumably because traffic was backed right up to the edge of the cross hatching on the southern end.

[29]   But even if there may have been more than one cause of the accident or more than one person at fault, that does not mean that the Judge was wrong to convict    Mr Murray. As will be evident from the foregoing discussion I do not think that he was.

Result

[30]   For the reasons I have given I am unable to discern any error in either Judge Hobbs’ assessment of the evidence or his application of the law. No possibility of miscarriage arises. The appeal is dismissed.

[31]   Like Judge Hobbs, however, I wish to compliment Mr Murray on the conduct of his appeal, which was exemplary.

Rebecca Ellis J