MURRAY v NZ POLICE [2019] NZHC 966

MURRAY v NZ POLICE [2019] NZHC 966 [6 May 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2019-485-16[2019] NZHC 966BETWEEN ROBERT JAMES MURRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 2 May 2019Counsel: Appellant in PersonBritton for RespondentJudgment: 6 May 2019JUDGMENT OF ELLIS J[1] Following a judge-alone trial in the Wellington District Court beforeJudge Hobbs, Mr Murray was convicted on one charge of careless driving, contrary tos 37(1) of the Land Transport Act 1998 (the LTA).1 He was subsequently sentencedto pay a $700 fine and reparation of $400.[2] Mr Murray now appeals his conviction. He advised that he does not seek toundo 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 ona road carelessly or without reasonable consideration for other persons using the road.The evidence[3] Mr Sagele works at Wellington Hospital. In the early afternoon of15 May 2017 he was beginning his drive home. This required him to pull out of thedriveway of the hospital and to cross the southbound lane of Riddiford Street in orderthat 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 atthe cross hatching to let him exit the driveway. He said that he pulled out and movedslowly across the hatching and the southbound lanes. Mr Murray's motorbike thencollided with the front-right of his car.[5] Mr Sagele was not injured. Mr Murray was thrown from his bike across thebonnet of the car and was hospitalised with (inter alia) a broken pelvis.[6] Mr Makiri, who was standing nearby and had witnessed these events, gaveevidence for the prosecution. He generally corroborated Mr Sagele's account anddescribed seeing Mr Murray's motorbike travelling down the median strip, to the rightof the stopped traffic, before colliding with Mr Sagele's car.[7] Mr Murray himself also gave evidence. He admits he was "filtering" (or lanesplitting) which is not illegal. He had little memory of the incident but felt theallegations made against him by police "did not make sense". He said his last memoryon the day in question was driving up between the two lanes of stationary vehicles (noton the median strip) waiting for Mr Sagele to cross over the southbound lanes, but hedid not remember anything after that.[8] Mr Murray was first convicted of careless driving charge by Justices of thePeace (JPs), in August 2017. I do not have a copy of their decision, but it appears theconviction was based on their basis of an assumption that he had been driving on themedian strip. On 18 April 2018 Judge Butler ordered that the matter be reheardbecause the JPs had failed to determine that Mr Murray had, in fact, been driving onthe median strip.2District 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 aquestion of fact. He said that he was required to be satisfied that Mr Murray did notexercise the degree of care and attention that a reasonable and prudent driver wouldhave 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 supportedby the evidence of Mr Makiri. He said that Mr Murray's evidence had been "brief butvery much to the point".5 He said that as he understood it, Mr Murray's keysubmission was that because the photographs of the accident showed the frontright-hand wheel of Mr Sagele's car on top of the front wheel of Mr Murray'smotorbike, the car must have hit him (as opposed to the other way around). But, theJudge said:(a) he had heard (non-expert) evidence from a police officer about how thismight have occurred, which he found plausible;(b) the point was not in any event determinative, because he was satisfiedthat the first-hand evidence of Mr Sagele and Mr Makiri was credibleand reliable.[12] Judge Hobbs concluded that a "reasonable and prudent driver would not passstationary traffic without ensuring as best they could that the road ahead was clear".6He also noted that Mr Murray had "clearly collided with the car at some speed becausea not insignificant amount of damage [was] caused to the right front of Mr Sagele's2 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 thebonnet".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 clearahead".8 The Judge made no finding about whether Mr Murray was driving over themedian 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 tosuch an extent that a miscarriage of justice has occurred. A miscarriage of justiceincludes any error that has created a real risk that the outcome of the trial was affected.9In 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 noevidence given about the speed at which Mr Murray was travelling;(b) Judge Hobbs erred in law in applying the "reasonable and prudentdriver" test as he failed to apply it from the perspective of amotorcyclist as opposed to the driver of a car; and(c) Judge Hobbs erred in rejecting Mr Murray's alternative version ofevents, in which he said Mr Sagele had stopped or hesitated, leadingMr Murray to believe that he was giving way immediately before thecollision.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 becausethere was no evidence about it.[17] I am unable to agree with that submission. Judge Hobbs heard evidence fromboth Mr Sagele and Mr Makiri, who saw Mr Murray being thrown from his motorcycleand 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'smotorcycle.11 From that evidence he was entitled to draw inferences that Mr Murraywas travelling at speed.[18] Even if I am wrong in that, as Mr Britton for the Police said, the question ofspeed was not the sole (nor indeed the critical) plank of the Judge's conclusion thatMr Murray's driving was careless. That is clear from his concluding statement thatthe 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 thefailure to check that his path was clear that (in the Judge's view) established thecharge.Should the ordinary practice of most motorcyclists be part of the test?[19] Mr Murray submitted that the "reasonable and prudent driver" test applied bythe Judge ought to reflect the practice of most motorcyclists. He also submitted hisHonour 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 andmotorbikes) are required to be driven differently. Driving a motorbike between laneswhen traffic is heavy is a practice commonly described as "filtering". "Filtering" is"what nearly all motorcyclists do 'in similar circumstances'". So (Mr Murray said) tosuggest that "filtering" is unacceptable for motorcyclists because it is unacceptable forcars is wrong.[21] The difficulty with that submission is that Judge Hobbs does not say thatfiltering is, by and of itself, unacceptable or careless. It may or may not be dependingon what a reasonable and prudent (motorbike) driver would do in the particularcircumstances. 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 hecould that the road ahead was clear.Was Judge Hobbs wrong to conclude on the evidence that Mr Sagele did not stop andappear to give way?[22] Mr Murray said that despite his memory gap he has driven motorcycles for45 years. He argues the only likely explanation for what occurred is that he mistookhesitation in Mr Sagele's movement across the lanes as an indication he was beinggiven the right of way. This was, he says, an error in judgement not an act ofcarelessness.[23] The difficulty with that submission is that it is speculative. Mr Murray isunable to recall what actually happened and Mr Sagele's evidence was contrary to hissupposition. He said that he was driving slowly and continuously from the hospitalentrance and through the clearway where the collision occurred. He denied stoppingor hesitating at any point. Because Mr Murray does not remember what happenedthere 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'sconclusion Mr Murray's filtered past or between stationary traffic "without ensuringthat the road was clear ahead" was open to him on the facts and, if so, whether itconstituted carelessness as a matter of law.13[26] The conclusion that Mr Murray failed to ensure that the road was clear isnecessarily a matter of inference.[27] The starting point is that Mr Sagele's car was moving slowly acrossMr Murray's path and Mr Murray did not see the vehicle.14 Mr Murray was filteringand he should have known (and no doubt did know) that the cross hatching on the roadmarked a point of vehicular ingress and egress from the hospital. He should also haveknown that pedestrians might take advantage of the stationary cars to cross the road.15In those circumstances a reasonable and prudent motorcyclist would have known heneeded to be hypervigilant. There is no suggestion that Mr Sagele's car was somehowobscured or difficult to see. My own view is that this suffices as a basis for inferringcarelessness 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 particularvigilance that I have just mentioned, Mr Murray was not required to stop at the crosshatching if he could safely filter past the stationary vehicles. Indeed, in that sense itwas he who had the right of way. Mr Sagele should have been alive to the possibilityof 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" havehappened 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 moveinto the northbound lane. The meaning of the yellow cross hatching is that vehicles are notpermitted to queue across it. Their purpose in the present context is, no doubt, to permit hospitalvehicles to exit and enter more easily, particularly in an emergency. And in the present case, thecars at the northern end of the cross hatching would have stopped because they knew they wererequired to do so, presumably because traffic was backed right up to the edge of the cross hatchingon the southern end.[29] But even if there may have been more than one cause of the accident or morethan one person at fault, that does not mean that the Judge was wrong to convictMr Murray. As will be evident from the foregoing discussion I do not think that hewas.Result[30] For the reasons I have given I am unable to discern any error in either JudgeHobbs' assessment of the evidence or his application of the law. No possibility ofmiscarriage arises. The appeal is dismissed.[31] Like Judge Hobbs, however, I wish to compliment Mr Murray on the conductof his appeal, which was exemplary._________________________Rebecca Ellis J