Blue Haven: Sergeant Matthew James Kelly loses appeal over fatal motorbike pursuit involving Jack Roberts
A cop who fatally ran over a motorcyclist during a pursuit after the rider cut across him “suddenly and without warning” has lost his final appeal.
Central Coast
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A police officer found guilty of negligent driving after fatally running over a trail bike rider during a police pursuit on the Central Coast has had his appeal dismissed.
Former Tuggerah Lakes Sergeant Matthew James Kelly, 52, was sentenced to a 12-month community corrections order last year after being found guilty of negligent driving occasioning death.
The court heard Kelly initiated a 10km-long pursuit, which he didn’t “call in” when he saw an unregistered trail bike without its lights on in the early hours of April 16, 2020.
The bike was being ridden by Jack Roberts, 28, who was killed when he was struck and dragged under the marked Kia police car being driven by Kelly.
Kelly was initially charged with manslaughter and dangerous driving occasioning death but was acquitted by a jury following a NSW District Court trial.
He was then found guilty of the lesser charge of negligent driving occasioning death following a judge-alone trial before Judge Penelope Hock.
Earlier this month Kelly appealed the conviction in the Supreme Court of Criminal Appeal (CCA), which heard the rider and the officer collided at a relatively low speed after both turned right off the Motorway Link Rd into Blue Haven Way.
On Monday, three Justices of the CCA ruled to dismiss Kelly’s appeal and upheld the sentence imposed in the District Court.
The court heard the three Justices will give the NSW Police Commissioner until Wednesday to review the judgment and make sure it doesn’t inadvertently reveal anything confidential about the force’s internal operating procedures before the CCA’s full decision is published later in the week.
Kelly’s appeal hinged on the submission by his barrister James Glissan that there was no way to establish that his client consciously or “by omission” drove too close to the motorcycle.
He told the court Kelly, like any other reasonable and prudent driver, could not have anticipated Roberts would swerve in front of his police car.
“There’s no act of negligence or act of failure to drive carefully within the ordinary meaning of that expression, that can be visited on the driver of the police car while it is in Blue Haven Way,” Mr Glissan said.
“It is travelling slowly, it is travelling in a straight line, it is travelling conscious that there is next to it, and in proximity to it, a motorcycle which is being driven unlawfully, illegally, and improperly … and suddenly and without warning that vehicle turns across in front of him, he has no opportunity at all to avoid it.”
However the Crown prosecutor argued Kelly had noticed the trail bike riding without a headlight at night, which is what made him initiate the pursuit and then saw the bike that was “not fit for road use” being driven “in a manner dangerous”.
She said as a result Kelly should have slowed down and kept a bigger gap because he should have reasonably anticipated Roberts would have done something erratic.
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