Williams v Ede
[2011] QMC 30
•26 August 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Williams v Ede [2011] QMC 30
PARTIES:
STEPHEN WAYNE WILLIAMS
(Complainant)
v
ANDREW JOHN EDE
(Defendant)
FILE NO/S:
MAG-00054469/11(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint - Summary hearing
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
26 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
12 August 2011
MAGISTRATE:
Taylor AR (Acting Magistrate)
ORDER:
I find the defendant not guilty of the charge and dismiss the complaint.
CATCHWORDS:
TRAFFIC LAW –OFFENCES – fail to drive completely within a marked lane – lane splitting – whether motorbike driving between two lines of traffic is an offence
Williams v Tenbrink, unreported, Magistrates Court, Richlands, 18 March 2011 ‑ considered
COUNSEL:
Treloar (sergeant) for complainant
The defendant appeared on his own behalf
SOLICITORS:
Police Prosecution Corps, Queensland Police Service for complainant
The defendant appeared on his own behalf
Proceedings commenced by way of complaint:
That on the 19th day of November 2010 at Mount Ommaney in the Central Division of the Brisbane Magistrates Court District in the State of Queensland the defendant being the driver of a vehicle namely a motor cycle on a multi-lane road namely Dandenong Road, Mount Ommaney failed to drive so that his vehicle was completely within a marked lane on the said road contrary to section 146 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009
S 146 Transport Operations (Road Use Management – Road Rules) Regulation 2009 provides:
146 Driving within a single marked lane or line of traffic
(1) A driver on a multi-lane road must drive so the driver’s vehicle is completely in a marked lane, unless the driver is—
(a)entering a part of the road of 1 kind from a part of the road of another kind (for example, moving to or from a service road or a shoulder of the road); or
(b)entering or leaving the road; or
(c)moving from 1 marked lane to another marked lane; or
(d)avoiding an obstruction; or
(e)obeying a traffic control device applying to the marked lane; or
(f)permitted to drive in more than 1 marked lane under this regulation.
Maximum penalty—20 penalty units.
(2) A driver on a road with 2 or more lines of traffic travelling in the same direction as the driver, but without marked lanes, must drive so the driver’s vehicle is completely in a single line of traffic unless—
(a)it is not practicable to drive completely in a single line of traffic; or
(b)the driver is entering a part of the road of 1 kind from a part of the road of another kind (for example, moving to or from a service road or a shoulder of the road); or
(c) the driver is entering or leaving the road; or
(d)the driver is moving from 1 line of traffic to another line of traffic; or
(e)the driver is avoiding an obstruction.
Maximum penalty—20 penalty units.
A note in the margin to the complaint and summons indicates that the defendant has been charged pursuant to subsection (1) of s 146 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. Evidence led from both prosecution and defence was that there were marked lanes on the relevant portion of Dandenong Road – thus the existence of marked lanes is not controversial.
The prosecution allege that the defendant was riding his motorcycle along Dandenong Road toward an intersection with traffic lights when he rode his motorcycle between two lines of motor vehicles that were stationary at the intersection. The two lines of vehicles were in separate marked lanes facing a red traffic light.
The sole witness for the prosecution, Senior Constable Kelly, was the sole occupant and driver of an unmarked police vehicle which was third in line in the right hand stationary line of traffic. Kelly’s evidence was that, not only did the defendant ride his motorcycle between the two lines of traffic, he also zig zagged [weaved] between the two lanes prior to bringing his motor cycle to a stop at the head of the stationary traffic where he remained for about 15 seconds prior the lights changing from red to green.
Kelly gave evidence that the unmarked police vehicle was in the centre of the right hand lane, that each of the lanes was 3.4 metres wide, the police vehicle was 2.15 metres wide and that the defendant’s motorcycle almost clipped the police vehicle as it passed.
In conversation with Kelly, upon interception soon after the alleged incident, the defendant asserted that he drove within the right hand lane but to the left of the stationary vehicles. The defendant held to that position in giving evidence today but also indicated he may have, at one time, changed from the left lane to the right hand lane. He was not pursued during cross‑examination for the specific details of that lane change.
Findings of fact
There was nothing in the demeanour or in the evidence of either Kelly or the defendant to trigger concern for the veracity of either witness. Both gave evidence in a plain and forthright manner. The prime points of difference are whether the defendant weaved his motorcycle from lane to lane but between the two lines of stationary vehicles, or whether he rode between the lines of vehicle in such a way that his motorcycle was partly in one lane and partly in another in a manner in which it could not be said that his motor cycle was completely within one lane; or, if he changed at a point from the left lane to the right and then kept his motorcycle completely in that right hand lane until he reached the head of the lines of traffic.
As I am unable to do otherwise than ascribe to each of Kelly and the defendant an equal degree of credit (and thus reject the view of one of them) I will consider the version most favourable to the defendant.
That view is that the defendant at one point when approaching the intersection changed from the left lane to the right one and then rode his motorcycle to the left hand side of the line of traffic which was stationary in the right hand lane, but did so completely within the right hand lane.
Discussion of the law
The tenor of the prosecution, and submissions made by the prosecutor, make it plain that the mischief at which the prosecution is directed is− the defendant riding his motorcycle between two lines of stationary car and possibly truck traffic where each of those other lines of traffic is occupying its own adjacent marked lane on a multi-lane road. What is being asserted is that the defendant was lane splitting or lane sharing with one or both of the lines of other vehicular traffic and to do so is contrary to s 146(1).
If the view of the facts asserted by the prosecution were accepted, the offence would be made out by the motorcycle weaving from side to side in a manner that did not take it entirely into either lane thus be seen to be (at any given time) partly in one lane and partly in another and therefore not completely within a single lane.
For reasons which are set out below the prosecutor asserts that even if I find the defendant’s motorcycle was completely within the boundaries of a marked lane but was ridden side by side with another vehicle (also completely within the same marked lane), the offence is made out because the defendant’s motorcycle did not remain in single file with other vehicles within that lane.
The difficulty faced by the prosecution is that on its face s 146 appears simply to proscribe a driver or a rider effectively reserving to their own use (ie hogging) more than one marked lane (s 146(1)) or more than one line of traffic (s 146(2)). The exceptions set out in each of those subsections make it plain that there are circumstances in which a driver can sensibly and validly control their vehicle so that it may be partly in one lane (or line) and partly in another.
The prosecutor contends that by reason of the relevant definitions of “marked lane” and “overtake”, s 146(1) Transport Operations (Road Use Management – Road Rules) Regulation 2009 should be construed as though the words single line of traffic were substituted for the words marked lane.
Schedule 5 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 defines terms used in the regulations.
marked lane to mean an area of a road marked by continuous or broken lines, or rows of studs or markers, on the road surface that is designed for use by a single line of vehicles.
overtake, for a driver, means the action of—
(a)approaching from behind another driver travelling in the same marked lane or line of traffic; and
(b)moving into an adjacent marked lane or a part of a road where there is room for a line of traffic, whether or not the lane or part of the road is for drivers travelling in the same direction; and
(c)passing the other driver while travelling in the adjacent marked lane or line of traffic
Thus the offence provision should be construed as follows: “A driver on a multi-lane road must drive so the driver’s vehicle is completely in a single line of traffic, unless the driver is…”
The prosecutor contends that support for this view can be found in a decision of His Honour Magistrate Wessling in a matter of Williams v Tenbrink.[1] The copy tendered by the prosecutor seems to be in draft form and contains none of the indicia one would be expect of a formal copy of a decision. That is to say it is plainly not an official transcript of the decision, nor does it carry any certification or other marking that might speak to its provenance. Be that as it may, and as the decision can only be persuasive authority in any event, I see no difficulty in considering the reasoning or concepts contained therein, notwithstanding the purported copy’s want of form.
[1] Unreported, Magistrates Court at Richlands on 18 March 2011. I note that Williams v Tenbrink and the instant matter appear to have the same complainant.
As there is a want of form in the purported authority I will set out at length the passages therefrom upon which the prosecutor appears to rely:
The complainant refers to the definition of marked lane in schedule 5 to the regulations[2]. “Marked lane” means an area of a road marked by continuous or broken lines, or rows of studs or markers, on the road surface that is designed for use by a single line of vehicles. The complainant argues that the defendant must not only drive within the marked lane but must do so in the manner for which it was designed i.e. to drive completely in the single line of traffic occupying the marked lane. It is submitted that such interpretation is supported by subsection (2)[3] that requires the driver of a vehicle on a road with 2 or more lines of traffic travelling in the same direction where there are no marked lanes to drive completely in a single line of traffic. As I understand the submission of the complainant both provisions in section 146 are intended to have the same meaning. No distinction should be taken between the fact that the lines of traffic are travelling in a marked lane or not. It is the intention of Parliament that where a driver finds themselves travelling in 2 or more single lines of traffic, the driver must drive completely in that line of traffic expect [sic][4] for the purposes set out in both subsections.
[2] Which I understand to be a reference to the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
[3] Viz. s 146(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
[4] Which I read as “except”.
The defendant argues that the words “must drive so as the driver’s vehicle is completely in a marked lane” should be read strictly and receives their ordinary meaning. The requirement goes no further than ensuring that he rides his motorbike within the marked laneway. The defendant relies upon a previous decision of this Court delivered on 19 January 2011 in a similar matter to which he was the defendant in the proceedings. I have had the benefit of listening to a recording of that decision. Her Honour declined to accept a similar submission made by the complainant in those proceedings. The defendant was found to have travelled within the marked laneway and had complied with the subsection in overtaking vehicles in a line of traffic within that marked laneway. With respect to Her Honour, I am not able to come to the same conclusion.
Section 14A of the Acts Interpretation Act 1954 states in subsection (1): “In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”
Section 171 of the Transport Operations (Road Use Management) Act 1995 provides the regulatory power for the making of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. The object of the Act and Regulations is stated in section 3 of the Act. The objectives include the improvement of road safety and management of traffic to enhance safety.
Any interpretation of section 146 of the Regulations is to be considered on the basis that the objective to be achieved is the enhancement of road safety. As Her Honour observed when delivering the decision of this Court on 19 January 2011, it is not safe practice for the rider of a motorbike to be travelling between two lines of vehicles. The prospect of a car moving within its marked laneway and coming into collision with the motorbike is a likely consequence.
It seems to me that the provisions of section 146 of the Transport Operations (Road Use Management – Road Rules) Regulation intend that a driver of a vehicle on a road with 2 or more lines of traffic travelling in the same direction as the driver is to drive completely in a single line of traffic. It applies both where there are no marked lanes on the roadway under subsection (2) and where there are marked lanes under subsection (1).
The intention that a motorbike rider must drive in a single line of traffic in a marked lane and is not permitted to ride alongside another vehicle e.g. a car is further made clear having regard to the following regulations:
Section 151. Subsection (2) permits the rider of two motorbikes to ride alongside each other in the same marked lane. It does not permit a motorbike to ride alongside another vehicle that is not a motorbike.
Section 141. Subsection (1) does not permit the drive of a vehicle (e.g. a motorbike) driving on a multi-lane road to overtake another vehicle travelling in the same direction unless the driver does so by safely overtaking that vehicle by using a marked lane to the left of that vehicle. It does not permit a motorbike rider to pass that vehicle to the left within the same marked lane. The defendant appears to have breached this regulation in overtaking the line of traffic on this occasion.
As I previously stated, “marked lane” is defined in Schedule 5 as meaning an area of a road marked by continuous or broken lines, or rows of studs or markers, on the road surface that is designed for use by a single line of vehicles. It can be seen that the definition does not only state the manner in which the lane is to be marked on the road surface but also prescribes the manner in which it is to be used. It extends not only to driver remaining [sic] within the markings on the road surface but it also prescribes that the driver must drive for its intended purpose i.e. to drive in the single line of traffic.
I am satisfied that the provision of section 146(1) when read with the meaning of “marked lane” as defined in Schedule 5 require that a driver of a vehicle on a multi-lane road must drive so the driver’s vehicle not only remains completely with [sic] the marked lane on the road surface but also that the vehicle is driven in a single line of traffic. It does not permit the defendant to overtake a line of vehicles within the same marked lane as he did on the day of this incident.
There seems to me to be much merit in the line of reasoning set out above. However, with much respect to His Honour, if indeed the words be His Honour’s words, I have some difficulty with the propositions advanced by His Honour, but more importantly relied upon by the prosecution in this matter.
First, as a matter of logic if marked lane where it appears in s 146(1) is to be read as though it is a reference to a single line of traffic, multi-lane road must also be read in a similar manner as the lane referred to in the expression is in reality a multi-marked lane road. That then means multi or multiple single lines of traffic. The end result when the provision is construed in such a manner is that apart from the exceptions which are different the proscription (opening paragraph of the subsection) is indistinguishable from s 146(2). I do not regard such matter as my strongest point.
Second, I can find no provision in either the Transport Operations (Road Use Management – Road Rules) Regulation 2009 or the Transport Operations (Road Use Management) Act 1995 which directly proscribes the sharing of a marked lane. That is not to say, of course, that such proscription may not be inferred by a combination of provisions.
Third, there are a number of provisions in the Transport Operations (Road Use Management – Road Rules) Regulation 2009 where legitimate sharing of lanes or parts of the road are envisaged. In general terms those provisions do not prescribe for the presence in those areas of two vehicles that are side by side, but rather seek to manage the manoeuvrings of the vehicles in such circumstances either by prescription or proscription. See for example‑
148 Giving way when moving from 1 marked lane or line of traffic to another marked lane or line of traffic
(1) A driver who is moving from 1 marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.
Maximum penalty—20 penalty units.
Examples—
(2) A driver on a road with 2 or more lines of traffic travelling in the same direction as the driver, and who is moving from 1 line of traffic to another line of traffic, must give way to any vehicle travelling in the same direction as the driver in the line of traffic to which the driver is moving.
Maximum penalty—20 penalty units.
(3) Subsection (2) does not apply to a driver if the line of traffic in which the driver is driving is merging with the line of traffic to which the driver is moving.
148A Giving way when moving within a single marked lane
If a driver diverges to the left or right within a marked lane, the driver must give way to any vehicle that is in the lane.
Maximum penalty—20 penalty units.
149 Giving way when lines of traffic merge into a single line of traffic
A driver in a line of traffic that is merging with 1 or more lines of traffic travelling in the same direction as the driver must give way to a vehicle in another line of traffic if any part of the vehicle is ahead of the driver’s vehicle.
Maximum penalty—20 penalty units.
151 Riding a motorbike or bicycle alongside more than 1 other rider
(1) The rider of a motorbike or bicycle must not ride on a road that is not a multi-lane road alongside more than 1 other rider, unless subsection (3) applies to the rider.
Maximum penalty—20 penalty units.
(2) The rider of a motorbike or bicycle must not ride in a marked lane alongside more than 1 other rider in the marked lane, unless subsection (3) applies to the rider.
Maximum penalty—20 penalty units.
(3) The rider of a motorbike or bicycle may ride alongside more than 1 other rider if the rider is overtaking the other riders.
(4) If the rider of a motorbike or bicycle is riding on a road that is not a multi-lane road alongside another rider, or in a marked lane alongside another rider in the marked lane, the rider must ride not over 1.5m from the other rider.
Maximum penalty—20 penalty units.
Plainly s 148A applies to situations where there are at least two vehicles travelling within the same marked lane. I note here that s 148 has been set out above primarily to provide context for s 148A.
Fourth, for those provisions where the sharing of lanes or part of a road are envisaged, the provisions are not therein expressed as exceptions to a rule that lanes or parts of a road not be shared nor are they expressed as exceptions to an overarching rule against such sharing.
Fifth, although as previously set out, in the passages attributed to His Honour Magistrate Wessling, enhancing road safety is an object of s 3 of the Transport Operations (Road Use Management) Act 1995, the Act specifically acknowledges that safety is balanced against other considerations. S 4 of the Act provides ‑
4 Achieving an appropriate balance between safety and cost
(1) Although it may be possible to regulate to achieve the highest level of safety, doing so would ignore the impact of the regulation on the effectiveness and efficiency of road use.
(2) Therefore, this Act acknowledges the need to achieve an appropriate balance between safety, and the costs that regulation imposes on road users and the community.
Arguably a system of road rules that tolerates shared use of lane or parts of a road takes into account the effectiveness and efficiency of road use. Relevantly to the instant matter s 146(2) envisages that three or more lines of traffic may form on a part of a road.
Sixth, there are anomalies that appear to exist within the framework of road rules. For example, although s 146(2) leaves open the possibility of more than three lines of traffic forming in a legitimate manner on a part of a road not being a marked lane, it may not be legitimate if the vehicles that are alongside each other are motorcycles or bicycles when there may be only two, unless a third is overtaking the other two.[5]
[5] See s 151(1) and s 151(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
Seventh, s 151 prescribes for lane sharing by motorcycles or bicycles in certain circumstances. The positions contended for by the prosecutor is that because the provision does not prescribed the sharing of a lane or part of a road by a motorcycle on the one hand and another type of vehicle on the other, that to do so is proscribed. It is trite to say that is not the criminal law. That the adverse of prescribed conduct is punishable is only the case where there is express provision or the language of the statute admits of no other inference.
That is to say, can this provision that permits lane sharing be read as excluding other forms of lane sharing or splitting?
Conclusion
For the reasons which I have developed construing s 146(1) in the manner pressed by the prosecution cannot be achieved without much attendant uncertainty and I decline to do so.
Arguably the defendant may have committed some other offence but I have not been urged by the prosecutor to amend the complaint in the event that I find against the prosecution on the point just dealt with.
Although a magistrates court may amend the complaint at any time up until the giving of judgment it is settled law that such may only be the case after conclusion of the evidence where the complaint is amended to a cognate offence.
It seems to me that the only other available cognate offence is the offence established by subsection (2) of section 146 and that does not arise on the factual circumstances.
Accordingly there being no alternative cognate offence supported by the evidence I find it unnecessary to consider further whether I would amend the complaint.
For the reasons set out I find the defendant not guilty of the charge and dismiss the complaint.
0
0
0