Murray v Police [2016] NZHC 235 (22 February 2016)

Last Updated: 4 April 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-054-1689 [2016] NZHC 235

BETWEEN	ROBERT JAMES MURRAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 February 2016
Counsel:	R J Murray in person M J Blaschke for Crown
Judgment:	22 February 2016

_{JUDGMENT OF WILLIAMS J}

[1] Robert Murray was charged with riding a motorcycle at a speed 34 kph in excess of the posted open road speed limit of 100 kph. He was convicted by two Justices of the Peace and fined $300 plus $30 court costs. Mr Murray appealed both conviction and sentence to the District Court but met with no success. He now seeks leave to bring a second appeal to this Court.

[2] When the matter came before the Justices in the District Court, Mr Murray raised a number of peripheral matters but the essential thrust of his defence was that if he was travelling at excess speed it was because such speed must have been necessary to avoid injury or death. He posited that at some point during his trip through Wairarapa on State Highway 2, he was executing an overtaking manoeuvre in which the car he was overtaking sped up. As there was oncoming traffic, it was necessary for him to accelerate well beyond the 100 kph to safely complete the manoeuvre. He suggested that this must have been the time at which highway patrol officer Sarah McLeod clocked his motorcycle on her speed radar, because he would

_{not otherwise have ridden his bike at such high speed.}

MURRAY v NEW ZEALAND POLICE [2016] NZHC 235 [22 February 2016]

[3] Before me, Mr Murray submitted that the Justices did not consider his argument in this respect, and in fact did not refer to it at all in their decision.

[4] On appeal to the District Court, Judge Large accepted that it appeared that the Justices in the District Court had not obviously considered Mr Murray’s argument. The Judge considered however that their decision did address the essential elements of the offence and that although, it might be said, insufficient respect was paid to Mr Murray’s argument, on reviewing the evidence the Judge found that the substantive result arrived at by the Justices was sound enough. There was therefore no miscarriage of justice.

[5] In relation to Mr Murray’s sentence appeal, he argued that the Justices had failed to take proper account of his particular financial circumstances when deciding to impose a fine. Again, Judge Large accepted that this was a reasonable complaint, but when he came to consider Mr Murray’s financial position, he concluded that the fine could not be faulted. It was at the lower end of what was within the appropriate penalty range and this in itself was an acceptance that Mr Murray’s limited financial means were indeed relevant to the decision.

[6] Mr Murray requires leave to bring a second appeal in terms of s 237 of the Criminal Procedure Act 2011 and in terms of s 253 in relation to the sentence appeal. Section 237 relevantly provides:

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that–

(a) the appeal involves a matter of general or public importance;

or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[7] In my view, there is no matter of general or public importance in either the conviction or sentence appeal. Mr Murray takes issue with Judge Large’s reliance on Stichting Lodestar¹ in the context of criminal appeals, but this argument is both

_{misplaced and unhelpful to him. The principles set out in the case are of general}

¹ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

application, and in any event to the extent the case is relevant, it is of assistance to Mr Murray not prejudicial to him. It gives an appellate Judge in Judge Large’s position the widest ambit to arrive at a result that is just in all the circumstances. In any event, the Judge ultimately applied the test found in s 232 of the Act and so cannot be faulted for doing so.

[8] Nor, in my view, was there a miscarriage of justice or the possibility of one. Mr Murray’s theory of the case before the Justices was that he must have been clocked at 134 kph while overtaking in the circumstances I have described above because in all other circumstances it was not his custom to exceed the speed limit by more than 10 kph. But the evidence was first that Constable McLeod recalled no other vehicle on the road travelling in either direction when she clocked Mr Murray’s motorcycle at 134 kph. And second, Mr Murray admitted in evidence that, although he was a very experienced motorcyclist, the 750cc motorbike he was riding was much bigger than his own Honda 500cc, and the bigger motorbike was tuned to sports performance. Its speed capability was, in his own words, “scary”.

[9] In rather oblique terms, the Justices refer to these two essential facts from which the inference is drawn (in a straight credibility contest between the constable and Mr Murray) that Mr Murray must have been mistaken in thinking that he was clocked during an overtaking manoeuvre. Judge Large felt unable to depart from the conclusion reached by the Justices, and one can see why. They preferred the evidence of Constable McLeod because, when viewed in context, hers was the more credible and believable. I entirely agree with that conclusion.

[10] As far as the sentence appeal is concerned, Judge Large undertook his own assessment and concluded that the sentence took appropriate account of Mr Murray’s limited financial circumstances. Nothing Mr Murray brought before me in argument suggests that he was wrong in that respect and there is certainly nothing to suggest a miscarriage would or could be the result.

[11] Leave to appeal is declined accordingly.

J Williams J

Solicitors:

Crown Solicitor’s Office, Palmerston North

cc R J Murray