Police v Howie No. Scgrg-98-1543 Judgment No. S6991
[1998] SASC 6991
•9 December 1998
POLICE v HOWIE
[1998] SASC 6991
Magistrates Appeal
Millhouse J. In 1997 Mr Gordon Leslie Howie was booked for parking his motor car in a bicycle lane on Cross Road at Clarence Park.
He was charged:-
"On the 10TH day of MAY, 1997 at CLARENCE PARK in the said State on a road namely CROSS ROAD LEFT STANDING a vehicle namely a CAR OVER a bicycle lane Regulation 4.10 and 11.01 of the Road Traffic Regulations, 1996."
At first, the matter was dealt with ex parte in the Adelaide Magistrates Court. Mr Howie was convicted and fined. He appealed. My brother Debelle allowed the appeal and remitted the matter for hearing before a magistrate.
Mr Howie appeared in the Magistrates Court this time. He pleaded not guilty taking, as is his wont, a myriad of points. The learned special magistrate decided to deal with them seriatim. She got only as far as the first, finding in Mr Howie's favour and dismissing the complaint. The Police have appealed.
The point is that this bicycle lane has not - indeed no bicycle lane in South Australia has - been lawfully created. Mr Howie contends that he has not committed an offence in parking in what merely purports to be a bicyle lane.
The learned Magistrate was anxious not to reserve and delivered an ex tempore judgment. The crux of her decision was that bicycle lanes are created in the same way as clearways and this particular lane not having been "prescribed" had not been lawfully created at all. She said:-
"The situation now, in respect of bicycle lanes, is almost exactly as it was in respect of clearways when the case of Howie v Marsh was decided. Mr Howie took the same point in that case, but in respect of clearways. At that time, the only enabling power for creation of clearways was 176, 1 (c). Regulation 4.07, relating to clearways did not prescribe roads or parts of roads as clearways when parking or standing was prohibited. At best it provided a means by which roads or parts of roads could be prescribed as clearways."
She then referred to the Full Court decision in Howie v Marsh (1994) 178 LSJS 314 and went on to quote from my Reasons.
At the hearing of the appeal, Mr Howie represented himself and Mr Michael Grant was for the Police. Mr Grant submitted that the method of creating lawfully bicycle lanes is not the same as creating, lawfully, clearways.
The ratio of the decision in Howie v Marsh is that, pursuant to the Road Traffic Act (SA) 19961, a clearway must be "prescribed": just sticking up signs on or at the edge of a carriageway indicating a clearway is not enough: there has to be, in a regulation a precise description of the area which is to be a clearway. That had not been done, so there was no clearway. Mr Howie won that time!
However, Mr Grant argued, a bicycle lane is not created in the same way as a clearway. He took me through the maze of various provisions in the Road Traffic Act and Regulations to support his argument.
"Bicycle lane" is defined in s5(1) of the Road Traffic Act:-
"bicycle lane" means a lane marked on the carriageway of a road adjacent to which or on which a traffic control device is erected, displayed or marked to indicate that the lane is reserved for the use of persons riding pedal cycles (or that it is so reserved for a specified period, in which case 'bicycle lane' means the lane during that period);"
"Traffic control device" is also defined in s5(1):-
" 'traffic control device' means -
(a) any traffic lights, signal, stop sign, give way
sign, sign indicating a speed limit, stop line, give way line, barrier line, line or mark to regulate or guide traffic, pedestrian crossing, safety island, safety bar, safety zone, traffic island, roundabout or dividing strip; and
..............................................
.............................................. (b) any other sign, signal, device, mark or structure
.............................................. the purpose of which is to regulate or guide the
.............................................. movement of traffic or the standing of vehicles;
.............................................. and
.............................................. (c) any other sign, signal, device, mark or structure
.............................................. declared by proclamation to be a traffic control .............................................. device,
but does not include a device by which visible or audible warning is given of the approach of railway rolling stock to a level crossing;"
Section 17 of the Act gives power to install a "traffic control device":-
"(1) An Authority may, with the approval of the Minister, install, maintain, alter or operate, or cause to be installed, maintained, altered or operated, a traffic control device on or near a road in accordance with this Part."
Pursuant to s16(1) "Authority"
"means -
(a) The Commissioner of Highways; or
(b) any council; or
(c) the passenger Transport Board; or
**********
(e) any other authority, body or person
in whom the care, control or management of a road is vested.
(2) For the purposes of this Part, a road is under the care, control and management of the Commissioner of Highways if the Commissioner has, pursuant to the Highways Act 1926 taken over the maintenance and repair of that road."
Section 12:-
" ... any approval of the minister required under this Act -
(a) may, if the minister thinks fit, be of a general nature
extending to matters specified by the Minister; and
(b) may be unconditional or subject to conditions
specified by the Minister."
Section 25 is headed "General Provisions relating to traffic control devices". Subsection (2):-
"Every traffic control device on or near a road will be conclusively presumed to have been placed or marked on or near the road by an Authority empowered by law so to place or mark it, and with the approval required by this Act."
Following these sections in the order I have set them out shews that an authority, say the Commissioner of Highways or a local council, may erect traffic control devices to mark out a bicycle lane. In other words the very method which I disparaged in Howie v Marsh may be used, pursuant to the Road Traffic Act, to establish a bicycle lane, although it may not be used to establish a clearway! There is a distinction between the method of establishing a clearway - by prescribing it, setting outs its boundaries in a regulation - and the method of establishing a bicycle lane - simply by erecting traffic control devices indicating that it is a bicycle lane.
From all that I conclude that the bicycle lane on Cross Road at Clarence Park must be presumed to have been validly created, pursuant to the Road Traffic Act.
This is not the end of the matter. The next question is whether there is power to prevent a person parking his motor car in the bicycle lane. Section 176(1)(caab) gives the power to make a regulation:-
"The Governor may make regulations for, or with respect to, all or any of the following matters: ...
(caab) regulating or prohibiting the use of footpaths,
bicycle lanes, bikeways or shared zones;"
Regulation 4.10 (in relevant part):-
"(2) ... no person shall -
(a) drive a vehicle over or upon a bicycle lane;
...
(3) ... no person shall -(a) stop a vehicle over or upon a bicycle lane; or
(b) cause or permit a vehicle to remain standing over or upon a bicycle lane."
Regulation 11.01:-
"Offence and penalty
(1) A person who contravenes or fails to comply with a provision of these regulations is guilty of an offence.
(2) A person who is guilty of an offence against these regulations for which no penalty is specifically provided is liable to a penalty not exceeding $200."
In those two regulations are set out the power at law to prevent Mr Howie doing what he did and the penalty for it.
This time, it seems to me, the case is stitched up against Mr Howie!
Of course, that's only on the first point he has taken. He may do better on the others.
The learned Magistrate in her Reasons said:
"In my view, the case can be disposed of dealing only with the issues that relate to the first point in time.
If I am wrong about that, no doubt someone will remit the matter back to me to continue the hearing with respect to each and every one of the points in the sequential chronology. Those are multiple."
With respect, I think for the reasons I have set out that the learned Magistrate made a mistake on the first point. No doubt she was working at speed, without the assistance of counsel, and so she made the mistake of thinking that the method of creating a bicycle lane is the same as that for a clearway. I am happy to remit the complaint to her for further hearing of the other points Mr Howie has taken.
The appeal is allowed and the complaint remitted to the learned special Magistrate to be dealt with in accordance with these reasons.
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