Flounders v Auckland Transport - [2023] NZHC 3252

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3252
Decision Date: 16 November 2023

CaseChat Overview and Summary

Norman Flounders appeals against the decision of Judge Fraser in the Auckland District Court who dismissed his appeal against the conviction for two instances of driving through a bus lane in Khyber Pass Road, Newmarket, Auckland. The court was required to decide whether Mr Flounders' proposed second appeal involved a matter of general or public importance and whether a miscarriage of justice had occurred or may occur unless the appeal was heard. The court considered Mr Flounders' arguments that the bus lane could be considered as two separate lanes due to a pedestrian traffic signal bisecting it and that he used the bus lane for the minimum length necessary to complete his left turn. However, the court found that the bus lane was one continuous lane and that Mr Flounders had used the bus lane for more than the minimum length necessary to complete his turn. The court concluded that the appeal did not involve a matter of general or public importance and that no miscarriage of justice had occurred or may occur unless the appeal was heard. Therefore, leave to bring a second appeal was declined and the appeal was dismissed.

The High Court found that Norman Flounders' proposed second appeal did not involve a matter of general or public importance nor would a miscarriage of justice occur unless the appeal was heard. The court held that the bus lane in question was one continuous lane and that Mr Flounders had used the bus lane for more than the minimum length necessary to complete his left turn. The court rejected Mr Flounders' arguments that the bus lane was divided into two separate lanes by a pedestrian traffic signal and that he had used the bus lane for the minimum length necessary to complete his turn. The court held that Mr Flounders had ample opportunity to safely enter the bus lane at a point closer to his intended turn and that his explanation for entering the bus lane at the commencement was inconsistent with the CCTV evidence. The court found that Mr Flounders had infringed the Rules relating to the use of the relevant bus lane on the two occasions and dismissed the appeal accordingly.

Orders