New Zealand Police v Murray [2019] NZDC 3317 (21 February 2019)

Last Updated: 4 July 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WELLINGTON

I TE KŌTI-Ā-ROHE

KI TE WHANGANUI-A-TARA

CRI-2017-085-001467 [2019] NZDC 3317

NEW ZEALAND POLICE

Prosecutor v

ROBERT JAMES MURRAY

_Defendant

Hearing:	21 February 2019
Appearances:	R Russell for the Prosecutor Defendant appears in Person
Judgment:	21 February 2019

_{ORAL JUDGMENT OF JUDGE P A H HOBBS}

[1] Mr Murray you have been charged with careless driving. You were originally dealt with by Justices of the Peace but your appeal was successful and you were granted a re-hearing, which I am now dealing with today. Before I go any further I wish to thank you for your polite and considered manner in the way you have conducted yourself throughout these proceedings.

[2] There is no doubt that the prosecution who brings this charge bears the burden of proving it and there is no burden on you to prove anything at all. You did give evidence in this case, you are not required to do so, and it does not change who has to prove the case; that remains with the prosecution. I will return to your evidence in due

_{course. Further the prosecution must prove the case beyond reasonable doubt, it is not}

NEW ZEALAND POLICE v ROBERT JAMES MURRAY [2019] NZDC 3317 [21 February 2019]

enough for the prosecution to persuade me that you are probably guilty or even that you are very likely guilty; they must leave me sure of your guilt.

[3] Whether a person drives a car carelessly is a question of fact. The key question for me to decide, based on the evidence, is whether you exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances as I find them to be. In this case [the victim], the driver of the motor vehicle that your motorbike collided with, was leaving the hospital carpark near the Accident & Emergency Department of Wellington Hospital. [The victim] was [employment details deleted]. He was pulling out onto Riddiford Street, with the intention of moving into the northbound lanes to travel in the direction of the city. It was [the victim]’s evidence that cars travelling South (there are two lanes travelling South) had stopped to allow him to move into that southbound lane to travel across that southbound lane so he could move into the northbound lane. Indeed, there are road markings that are designed to encourage motor vehicles travelling South to stop to allow people, exiting from that carpark, to move across those two lanes so they can get into the northbound lanes. It was [the victim]’s evidence that two lines of traffic to his right in the southbound lanes had stopped and come to a complete stop to allow him to do as I have just described. He gave evidence that he was moving slowly and then when he got close to the northbound lanes he looked to the left, and then he gave evidence that your motor cycle collided with the front-right of his car. He fortunately was not injured and indeed it was you that came off worse from this incident because you were on a motorbike and were thrown across the bonnet and ended up in hospital, and you have described to me the injuries you sustained.

[4] There was a second prosecution witness who was an independent witness not involved in the accident, a [name deleted] who was standing in an area that he marked on the photographs that had been produced by the police. He said he had a clear view of what occurred. He described [the victim]’s car moving into the traffic, as I have described and just as [the victim] described. Then he described a motorbike travelling down the median strip, to the right of that traffic, and colliding with [the victim]’s car. You took some issue in cross-examination as to whether or not [the witness] could have seen this incident clearly, but [the witness] was certain that he had seen what unfolded.

[5] As I have noted, you gave evidence from the witness box and your evidence was brief but very much to the point, you gave evidence that you had little memory of the incident after it occurred but that the police had made allegations against you and their investigation raised questions in your mind about what had actually occurred. It was your evidence that some of their allegations simply did not make sense to you, but your last memory of what occurred on that day is coming up between the stationary vehicles that I have described waiting for [the victim] to cross the southbound lanes of Riddiford Street. You have no memory of what happened after that.

[6] You also, as is your right, concentrated on (to an extent) the fact that the photographs show the front right-hand wheel of [the victim]’s motorcar being on top of the front wheel of your motorcycle. As I understand it, your suggestion is that that indicates that the car drove into you rather than you drove into the car on your motorbike. You did ask [Constable 1] about that, I gave you permission to do so, [Constable 1] is no doubt an experienced police officer and I do not understand her to be a serious crash investigator or expert in that area but she gave her theory as to why [the victim]’s right front wheel may have been on top of your front wheel, which seemed to me to be a plausible explanation.

[7] To be frank; that issue is not, in my view, particularly relevant or determinative of this case. What I do have is the evidence of [the victim] and an independent [witness], who clearly saw what unfolded. Understandably you questioned them and made something of whether or not you came down the middle of the road (as you last remembered) or whether you went outside of the stationary line of traffic to the right, across the median strip. Again, with respect, in my view where you came from is irrelevant whether it was down the middle of the road or down the outside of the road. As I understand matters, the carelessness alleged is the passing (in whichever direction that was done) stationary traffic, which resulted in the collision with [the victim]’s car. I am in no doubt that you have gone past stationary traffic and whether it was the middle or the right, makes no difference but you have passed stationary traffic and collided with [the victim]’s car.

[8] So the question for me is whether or not that act is careless. Regrettably,

Mr Murray, I am satisfied that it is careless. A reasonable and prudent driver would

not pass stationary traffic without ensuring as best they could that the road ahead was clear. You have clearly collided with the car at some speed because a not insignificant amount of damage has been caused to the right front of [the victim]’s car, and no doubt your motorbike, and resulted in you being propelled across the bonnet. It was therefore careless of you to continue at that speed, whatever it might have been, past stationary traffic without ensuring that the road was clear ahead.

[9] Therefore, I am satisfied beyond reasonable doubt that you have driven your motorcycle on this occasion carelessly and I find you guilty of the charge.

P A H Hobbs

District Court Judge