Police v Gramazio No. Scgrg-99-425 Judgment No. S207

POLICE v GRAMAZIO
[1999] SASC 207

Magistrates Appeal: Criminal

PERRY J. (ex tempore) This case is all about driving in bus lanes.
The police bring the appeal because they are concerned at what they regard to be an unduly lenient approach by magistrates to the construction of the regulations which govern the passage of vehicles in bus lanes.
The respondent was charged with having on 9 October 1998 at Colonel Light Gardens driven a vehicle, namely, a car, upon a bus lane, contrary to regulation 4.09 of the Road Traffic Regulations (1996).
The regulation in question is designed to ensure the exclusive use of bus lanes by buses, except in limited circumstances when it is thought to be reasonable for other traffic to be on a bus lane.
The respondent was driving south on Goodwood Road at about 4.30 pm. He was intending to turn left into Springbank Road at the intersection of that road and Goodwood Road. The intersection of Springbank Road and Goodwood Road is controlled by traffic lights. The bus lane in question runs in Goodwood Road, according to the schedule in the regulations, along the northern approach to its intersection with Springbank Road, from Grange Road to that intersection, and effectively is the far left-hand lane in Goodwood Road for South bound traffic.
The schedule to the regulations is not quite consistent with observations made by a police officer on the afternoon in question, who gave evidence that in fact there was a lane which he described as a turn-left lane - which I assume means turn left for any traffic - extending back from the intersection on the eastern side of the roadway, extending north of Springbank Road intersection by about 10 metres. In other words, the evidence before the learned special magistrate, as opposed to the schedule in the regulations, suggested that the bus lane, as one travelled towards the intersection, extended only to a point about 10 metres north of the intersection, when it became a turn-left lane for traffic generally.
Be that as it may, given the exigencies of traffic at that time of day, which is approaching the peak period for traffic on that road, there was, as the respondent approached, a build-up of traffic at the lights. He was travelling in the centre of three lanes, there being another lane on his right and the lane on his left, which of course was, or became, the bus lane. The build-up of traffic was described by the respondent as of the order of ten to fifteen cars back from the intersection in the centre lane.
Although the police officer's observations did not entirely support that description, the learned special magistrate seems to have accepted the respondent's testimony to that effect. Allowing for some gap between the cars, this meant that the lane in which he was travelling was obstructed by stationary vehicles waiting for a favourable cycle of the lights, to the extent of 150 metres or so back from the intersection.
Whether he knew it or not, there was a police officer near the intersection who looked back and saw him enter the bus lane. Not only that, but the police officer was equipped with a laser gun. Contrary to my understanding of their usual function, this police officer was able, by using that gun, to establish - apparently conclusively - that the respondent entered or at least was travelling in the bus lane at a distance back from the intersection which the laser gun measured as about 579 metres.
When the respondent approached the police officer, his progress was arrested and he was questioned. He was told that he should not have been travelling in the bus lane. Not surprisingly, he attempted to reason the matter through with the police officer, to no avail. Hence the summons, hence the charge, hence the hearing, hence the appeal.
Mr Hinton, for the appellant, draws attention to the wording of the Road Traffic Regulations (1996) and in particular the regulations that deal specifically with bus lanes.
Regulation 4.09(1) defines a bus lane for the purposes of that regulation as:
“... a lane on a carriageway adjacent to, above or on which a traffic control device is erected, displayed or marked to indicate that the lane is reserved for use by persons driving buses.”
There is no argument in this case that the lane which the respondent was unfortunate enough to enter 579 metres before the intersection was a bus lane within the meaning of the regulation.
The substantive offence is created by regulation 4.09(2). This provides:
“Except as provided in sub-regulation (4), no person shall -
(a).... drive a vehicle over or upon a bus lane; or
(b)......”
That is surprisingly wide, as, construed literally, it would mean that a bus could not travel down a bus lane either. But I assume that the regulation should be construed to enable buses to travel on the bus lane. It is in the exception provided in sub-regulation (4) to which we must proceed. Relevantly, that provides:
“The provisions of sub-regulation (2) shall not apply to the following classes of vehicles and circumstances:
..........
(e).... any vehicle which is driven over or on a bus lane for so long only as is reasonably necessary for the purpose of -
(i).... .....
(ii) making a left-hand turn into another road; or ....”
So that the question becomes whether the respondent proved, on the balance of probabilities, that he had driven in the bus lane for so long as was reasonably necessary to make his left-hand turn into Springbank Road from Goodwood Road.
That the onus was on him to prove that was not questioned by Mr Kernahan for the respondent, and indeed, would appear to follow from s56 of the Summary Procedure Act 1921, in particular s56(2).
The learned magistrate in her ex tempore reasons for judgment said:
“Due to the cycling of the lights, if he had remained in the centre lane some delay would have occurred before he could move into the left lane to turn left. There was nothing in the bus lane at all. There was little or no traffic behind him. The main traffic, as I said, was stopped at the main junction ahead of him. He chose to move into the left-hand lane, which was the bus lane, at this time in order to facilitate his left-hand turn.”

She went on:

“Having considered the matter and taking into account all the evidence it certainly seems a fairly long distance, however in my view, it is not unreasonable in those circumstances, at that time of afternoon and approaching that intersection, to travel in the manner in which Mr Gramazio did.”

Mr Hinton criticises the conclusion which the learned magistrate reached, and more particularly the terms in which she appears to have expressed the test in the concluding part of the passage which I have just cited. He argued that the test was not whether it was unreasonable or not to pursue the particular course of travel, but the question was whether the respondent drove for so long only as was reasonably necessary to execute his left-hand turn.
In my opinion, Mr Hinton is right. The exception is expressed in narrow terms. The intrusion into the bus lane must be only for so long as is reasonably necessary for the stated purpose. Whether the word “long” has a temporal or geographic connotation is nothing to the point. The intrusion must be only for so long as is there described.
Here, while many people would think it was quite reasonable for the respondent to take the course which he did, and obviously the learned special magistrate thought so, in my opinion, it was clearly not a situation in which the respondent could successfully plead the exception in regulation 4.09(4)(e)(ii). That was the only defence which he raised. It might have been less convenient for the respondent to do so, but it is obvious that, on a proper application of the regulations, he should have continued on towards the intersection in the centre lane.
If his ultimate progress was impeded by stationary cars in that lane, it might have been reasonable for him then, having reached that point to stop behind the other cars. Then, if there was only a short distance in the bus lane over which he might have proceeded in order to enter the turn-left lane, he might have done so. Whether or not in such circumstances he would have made out the exception is not a question which arises here. A counsel of perfection in those circumstances might suggest that he should have waited until his progress in the centre lane brought him to a point where he was clear of the bus lane altogether before commencing his left turn, given that there was a left-hand turn lane into which he might then have moved.
However, here, given that the respondent entered the bus lane 579 metres before the intersection, having regard to the considerations to which I have referred, it could not be said that he drove over the bus lane only for so long as was reasonably necessary for the purpose of making his left turn.
With great respect to the learned trial magistrate, clearly the appellant did not satisfy the onus upon him of proving that the exception applied. It follows then that the appeal should be allowed.
I do not think that this matter warrants an order that the matter be referred back to the learned special magistrate.
The respondent has had the expense of briefing counsel to assist the Court. I proceed by imposing what seems to be an appropriate penalty.

[AFTER HEARING COUNSEL AS TO PENALTY]

HIS HONOUR: In all the circumstances, I think the justice of the case would be met by exercising my power, which of course equates with the power of the court from which the appeal is brought, to dispose of the matter by refraining from entering a conviction, and dismissing the charge, after indicating, as I do, that clearly the finding must be that there was an infringement.
I make no order as to costs.

[1999] SASC 207

14 May 1999