A passenger in a car that passed what moments later became the scene of a fatal accident on the Awanui Straight in the early hours of November 24, 2017, gave crucial evidence in the trial of 31-year-old Awanui man Tae Murray on charges of aggravated careless driving causing death and injury.
In his reserved decision, released last week, Judge Swaran Singh noted Alia Robson's statement, "What the ... hell was that on the road?" She went on to state that Pat Peita, who died instantly when he was struck by the vehicle driven by Murray, had been walking in the middle of the road.
She had considered offering him a lift, but given the manner in which he was walking thought he was drunk.
Murray, who denied both charges, was acquitted after a judge-alone trial that began in the Kaitaia District Court and was concluded in Kaikohe.
Judge Singh found that Murray's driving had not been careless, and that he had not breached the "relevant regulations." The aggravated element of the charges originally alleged that Murray had exceeded the speed limit, but was later amended to driving on the wrong side of the road.
Judge Singh said the car in which Mr Peita, his partner and John Mark (who was injured) were travelling north had run out of fuel 280m south of the Quarry Rd intersection. Mr Mark parked it on the shoulder of the northbound lane and all three began walking towards Awanui.
Mr Mark had been unable to say where on the road they were walking, but expert witness Senior Constable Jeff Cramp believed they had been about half a metre inside the southbound lane fog line, albeit conceding that the scene had been contaminated by other traffic before he arrived.
The defence claimed that the point of impact was on or near the centre line or no passing line.
The defendant's sister, Mabel Murray, who was his passenger, said Murray had pulled out to pass a car that was weaving in front of them at a speed she estimated at 60-70km/h. Her brother had given the car a wide berth, but was still within his lane as he passed it.
Tracey Collins, driver of the 'weaving' car, said she had slowed when she saw Mr Mark's car on the side of the road in case someone was walking along the highway. She then saw a group of people "quite into the right of the lane."
She claimed that Murray had not had his lights on, although later she said she did not see the people on the road until his headlights shone on them.
Murray told the court that Ms Collins' car was weaving between the fog line and the centre line in the northbound lane. He assumed the driver was drunk. He indicated, observing that the other car had "literally pulled itself off the road," checked there was no oncoming traffic and began overtaking, his driver's side wheels just crossing the centre line.
"All in a split second was a dark figure right there in the middle of the road," he said.
Judge Singh found that Mr Peita had been walking close to the centre line, and that Murray would have had enough room to pass Ms Collins' car without entering the southbound lane or the Quarry Rd right-turning lane.
"[The] prosecution submits that the defendant should have taken greater care after seeing a car parked on the road, and should have anticipated that people may (be) walking on the road," he added.
"I find that it would be unreasonable to expect the defendant to take added precaution to deal with pedestrians walking in the middle of the road on a dark night and in dark cloths ... "
He found the evidence of the defendant and Ms Murray credible and reliable, and that of Ms Collins neither credible nor reliable.