Flounders v Auckland Transport
[2023] NZHC 3252
•16 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-394
[2023] NZHC 3252
BETWEEN NORMAN FLOUNDERS
Appellant
AND
AUCKLAND TRANSPORT
Respondent
Hearing: 13 November 2023 Appearances:
Appellant in person
K England for Respondent
Judgment:
16 November 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 16 November 2023 at 3:45 pm.
Registrar/Deputy Registrar
Counsel: K England, Legal Counsel, Auckland Transport, Auckland Copy to: Mr Flounders
FLOUNDERS v AUCKLAND TRANSPORT [2023] NZHC 3252 [16 November 2023]
[1] On 16 and 22 July 2020, Norman Flounders knowingly drove through a bus lane in Khyber Pass Road, Newmarket, Auckland. He entered the bus lane at the start of the bus lane and turned left into an alleyway just after the end of the bus lane. He knew the area reasonably well. After parking his vehicle, he visited a coffee shop in the vicinity.
[2] Mr Flounders was issued with two infringement notices alleging that he drove a vehicle on a road and used a special vehicle lane reserved for a specific class or classes of vehicle other than the one being driven,1 being an offence against s 40 of the Land Transport Act 1998 and reg 4 of the Offences and Penalties Regulations 1999 and cl 2.3(1)(f) of the Land Transport (Road User) Rule 2004.
[3] Mr Flounders did not admit liability and requested a hearing. The matter was heard before Justices of Peace, G Nicholls and F Freeman, on 24 March 2021, following which the JPs found the two offences proven. Being an infringement offence, the JPs did not enter a conviction, but fined Mr Flounders $150 plus Court costs of $30 on each charge.
[4] Mr Flounders then appealed to the District Court. The appeal was heard on 4 April 2023. In a reserved decision dated 22 June 2023, Judge G A Fraser dismissed the appeal.2
[5] Mr Flounders now seeks to appeal the decision of Judge Fraser. He filed the appeal documentation six days late. He therefore requires an extension of time. Being a proposed second appeal, Mr Flounders also requires leave to appeal.
[6] Mr Flounders has provided an explanation for the lateness of filing the appeal documentation. The respondent takes no issue with its lateness. An extension of time is accordingly granted.
1 The first notice was dated 16 July 2020. A follow-up notice was sent on 24 August 2020.
2 Flounders v Auckland Transport [2023] NZDC 12482.
Leave to appeal
[7] Section 237 of the Criminal Procedure Act 2011 provides a right of appeal against the determination of a first appeal court. It provides:
237 Right of appeal against determination of first appeal court
(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[8] Mr Flounders has filed extensive documentation. In summary, however, it appears he challenges:
(a)what parts of the road can be considered part of the bus lane; and
(b)the ultimate finding of the first appeal court that he used the bus lane for more than a minimum length necessary to enable him to complete his left turn.
[9] The respondent submits that only the first involves a matter of application beyond the circumstances of this particular case but submits that it may not rise to the level of an “important question of law having broad application beyond the circumstances of [this] particular case”.3 The respondent does, however, acknowledge an interest in having the first issue clarified by this Court given it also disagrees with the first appeal court’s decision on this issue, albeit for different reasons than Mr Flounders.
[10]As to a possible miscarriage of justice, the Court of Appeal noted in R v Police:4
[26] The threshold for leave to bring a second appeal is high. In particular, not every error at trial will amount to a miscarriage. This Court is slow to grant leave where success for an appellant would require this Court to reverse
3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
4 R v Police [2016] NZCA 403.
concurrent findings of fact below. That is particularly so where, as here, the trial was before a judge alone, giving the applicant the benefit of two judgments giving reasons for those factual findings.
[27] We are not persuaded that R’s application meets the Criminal Procedure Act 2011, s 237 threshold. It substantially reiterates the grounds advanced on the first appeal, which were fully and properly addressed by Asher J. Nothing new is raised. It is not submitted that any point was overlooked by Asher J. Rather, this Court is essentially invited to go into the whole matter, particularly the 24 August incident, again, in the hope it might conclude that R’s convictions are the result of an error or irregularity affecting the fairness of his trial. That would be the third time the evidence has been assessed by a court. We do not consider there is a risk of justice miscarrying if this Court declines to do that.
[11] The respondent submits that no miscarriage of justice has occurred or will occur if the second appeal is not heard. Judge Fraser considered all of Mr Flounders’ arguments and nothing new is raised in the appeal to satisfy the Court of any real risk the outcome of his original trial was affected by some error, irregularity, or occurrence. While Mr Flounders may not agree with the Judge Fraser’s conclusions, that does not provide grounds for an appeal.
Discussion
[12] I am satisfied that the proposed second appeal does not involve a matter of general or public importance. Nor has a miscarriage of justice occurred or may occur unless the appeal is heard. I, therefore, decline leave for the proposed second appeal.
[13] Of crucial importance in assessing the matter is cl 2.3(4) of the Road User Rule, which sets out what is commonly referred to as the 50-metre rule. It provides an exception to the general rule (that you cannot drive in a special vehicle lane) if the driver drives in the lane to cross it to make a turn or leave the roadway et cetera, provided the driver uses the lane for the minimum length necessary to make the manoeuvre, for no more than a maximum of 50 metres, and gives way to vehicles entitled to use the lane.
[14] The exception is subject to the requirement that the driver uses the lane for a “minimum length necessary” to cross the lane to complete one of the authorised manoeuvres.5
[15] In the hearing before the JPs, the respondent produced a sketch map (not to scale) which showed the distance between the sign showing the start of the bus lane (“Begins”) and the finish of the bus lane (“Ends”) as 77 metres.
[16] This is challenged by Mr Flounders. He says that the bus lane should be seen as broken into two different bus lanes because of a pedestrian traffic signal and associated markings that bisect the bus lane. By his calculation, the pedestrian traffic signal precinct measured 17.5-metres in width. He says there are two different bus lanes on either side of the precinct.
[17] Mr Flounders’ calculations as to the length of each bus lane are unclear, but Judge Fraser records Mr Flounders’ submission that there are two distinct bus lanes, the first being on the western side of the pedestrian precinct measuring some nine metres and the second bus lane on the eastern side of the pedestrian precinct measuring 40-metres.
[18] Judge Fraser then records Mr Flounders’ submission that even if it was one continuous bus lane, then the total distance was some 49 metres, constituting both sides of the bus lane, excluding the width of the pedestrian precinct. That being the case and because he was turning left before the conclusion of the bus lane on the eastern side of the pedestrian precinct, he was allowed to travel in the bus lane for the distance he did relying on cl 2.3(4) of the Land Transport (Road User) Rule 2004.
[19] Judge Fraser then records Mr Flounders’ submission that he drove for less than the maximum length of 50 metres in the bus lane and that he used the lane safely and for as short a time as possible, recognising that he was required to give way and not impede vehicles that were entitled to use that lane. His submission was that he used the lane for the full distance because it was dangerous to turn on to the bus lane at any point beyond its commencement, particularly if a bus was in the lane.
5 Land Transport (Road User) Rule 2004, cl 2.3(4)(b).
[20] In essence, Mr Flounders’ submission was that safety required that he proceed into the bus lane at the commencement of the bus lane. He determined it was dangerous to turn across into the bus lane at any time beyond its commencement.
[21] In his decision, Judge Fraser concluded there was only one bus lane, not two. I agree and cannot see any reasonable argument to the contrary. Nothing in the Land Transport Act 1998 or the Land Transport Rule: Traffic Control Devices Rule 2004 requires special vehicle lanes to cease at or near pedestrian traffic signals. To the contrary, the Traffic Control Devices Rule expressly contemplates special vehicle lanes traversing traffic signals (which includes pedestrian traffic signals as well as traffic light-controlled intersections).6
[22] Judge Fraser then seems to have determined that the bus lane was 68 metres in length, not 77 metres.7 It is not clear to me how the Judge arrived at this conclusion, but it matters not because the Judge went on to find the offences proven whether the bus lane was 68 metres or 49 metres in length.8 He stated:9
[61] In this case, recognising that, the distance of the bus lane is 68 metres Mr Flounders entrance at the commencement of the bus lane is well outside the 50 metres being the minimum length necessary to complete the manoeuvre.
[62]Should I be wrong in terms of the determination that the bus lane is
68 metres, then regardless, Mr Flounders entered the bus lane on both occasions at the beginning of the bus lane on the western side of the pedestrian precinct.
[63] Should the length of the bus lane in fact be approximately some 49 metres, accepting Mr Flounders’ argument, the fact that he entered the bus lane at the commencement did not comply with the minimum length necessary to complete the manoeuvre.
[64] His explanation for entering at the commencement of the bus lan[e] for safety reasons is not borne out by CCTV evidence.
[65] Mr Flounders entered the bus lane at the commencement of the bus lane on the western side of the pedestrian precinct. This entry was at a distance significantly greater than was necessary for him to safely make his turn.
6 Land Transport Rule: Traffic Control Devices 2004, r 6.4(10)-(12).
7 It is this aspect of Judge Fraser’s judgment with which the respondent disagrees.
8 Although he makes no express finding, the Judge would obviously have found the charge proven if he determined the bus lane was 77 metres in length.
9 Flounders v Auckland Transport, above n 2.
[66] It is apparent from the CCTV that on both occasions he could have safely entered the bus lane on the resumed eastern side of the bus lane. That would have been the safe manoeuvre, based on the profile of the traffic at the time. There was no issue of safety requiring him to enter at the commencement of the bus lane.
[67] Mr Flounders’ explanation on both days is inconsistent with the scene as depicted in the visual record. He should have continued in the general traffic lane where there was limited traffic on one day and more dense traffic on the other. There were no issues in terms of safety for him to signal from the lane on the east side of the pedestrian precinct and cross into the bus lane for a short distance, and then effect his left turn.
[68] Accordingly, I find that on both occasions Mr Flounders travelled in the bus lane for more than the minimum distance necessary in order to enable him to complete his left turn.
[69] That being the case, regardless of the bus lane measurement, whether it be 68 metres or 49 metres, Mr Flounders infringed the Rules relating to the use of the relevant bus lane on the two occasions.
[70]That being the case, the appeal is accordingly dismissed.
Result
[23] Mr Flounders does not engage with Judge Fraser’s reasoning for finding the offences proven. Rather, he is intent on establishing the falsity of the sketch map produced before the JPs. He calls it a “fabrication” or “a pack of lies with no legal standing”. He is also adamant that the bus lane itself is in some way “illegal”.
[24] Leave to bring a second appeal is declined. The appeal does not involve a matter of general or public importance. Nor will a miscarriage of justice occur unless the appeal is heard.
Woolford J
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