Trust Shop Limited v Auckland City Council HC Auckland CRI 2010-404-186
[2010] NZHC 1824
•8 October 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-186
TRUST SHOP LIMITED
Appellant
v
AUCKLAND CITY COUNCIL
Respondent
Hearing: 5 October 2010
Appearances: P Carrucan (lay litigant) for appellant
R Singh for respondent
Judgment: 8 October 2010
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2.15 pm on Friday 8 October 2010
Solicitors/party:
Ragni Singh [email protected]
P Carrucan, Private Bag, MBEM 257, Auckland [email protected]
TRUST SHOP LTD V AUCKLAND CITY COUNCIL HC AK CRI-2010-404-186 8 October 2010
[1] This is an appeal against a decision of Justices of the Peace given in the Auckland District Court on 26 April 2010. The Justices found that a vehicle owned by the appellant and driven by its managing director, Mr Carrucan, was driven on Mt Eden Road contrary to the respondent’s Bus Lane Bylaw. The Justices ordered the appellant to pay the infringement fee of $150 and imposed Court costs of $30.
[2] The appellant was represented in this Court by Mr Carrucan. I granted him leave to address the Court, notwithstanding that he is not legally qualified.
Procedural history
[3] The alleged offence occurred on the morning of 5 August 2008. The respondent subsequently issued an infringement notice addressed to the appellant. Payment of the relevant infringement fee of $150 was required by 26 September
2008. The appellant sought an oral hearing which took place before two Justices of the Peace in the Auckland District Court on 6 August 2009. The presiding Justices found the offence proved on that occasion. The appellant appealed to this Court. In a judgment given on 23 February 2010, Priestley J allowed the appeal and remitted the proceeding back to the District Court for rehearing if the respondent chose to proceed. In doing so he said that:
At one level it seems to me that guilt was established, because arguably, Mr Carrucan, who was the driver of the vehicle at the time, on his own admission, travelled for approximately 120 metres in the bus lane.
[4] But Priestley J was troubled by a degree of apparent confusion over possible inconsistencies between two plans, which had been placed before the Justices. His Honour decided that, because of his “unease” as to the inconsistencies, the proper course was to quash the conviction and remit the case to the District Court for rehearing.[1]
[1] Trust Shop Ltd v Auckland City Council HC Auckland CRI-2009-404-250, 23 February 2010.
[5] The respondent decided to proceed to a second hearing before different Justices of the Peace. The rehearing took place on 26 April 2010. The appellant was not represented on that occasion for reasons discussed below. The case therefore proceeded by way of formal proof.
[6] At the conclusion of the trial, the Justices said that they were satisfied that:
Mr Carrucan drove … on Mt Eden Road contrary to the law governing bus lanes.
[7] The appellant now appeals against that decision.
[8] The appellant’s notice of appeal was confined in its scope. In essence, the specified grounds were that:
a) The respondent had failed to provide proper disclosure to the appellant;
b)The 26 April 2010 fixture conflicted with an employment mediation and Mr Carrucan was therefore unable to attend at the District Court;
c) The refusal of the Justices of the Peace to adjourn the case by reason of Mr Carrucan’s absence was contrary to natural justice principles;
d) The appeal ought to be allowed and the case reheard in the District
Court.
[9] Mr Carrucan’s written submissions ranged much more widely, but he did not seek to advance at the hearing of the appeal all of the points made in his synopsis of argument.
[10] It is appropriate to record that the evidence adduced before the Justices included a DVD which recorded the movements of the appellant’s vehicle on the day of the alleged offence. The DVD was an exhibit at the trial and was accordingly placed before this Court. Mr Carrucan and Ms Singh agreed that it would be in order for me to view the DVD, on my own, after the hearing concluded and to take it into
account, with all of the other evidence and exhibits. I record that I did view the
DVD on the morning following the hearing of the appeal.
Refusal of the adjournment
[11] A threshold issue concerns Mr Carrucan’s complaint that the Justices of the Peace declined to adjourn the hearing on 26 April 2010 to a date which was convenient to him.
[12] Following the first appeal, heard by Priestley J, the respondent decided to proceed to a rehearing. The District Court allocated a fixture for the rehearing at
1.15 pm on 26 April 2010. On 15 March 2010 the respondent notified the appellant in writing of the date and time of the rehearing. Mr Carrucan duly received the respondent’s letter. On 16 March 2010 he complained by e-mail to a deputy registrar of the District Court, with a copy to the prosecutor acting for the respondent, that the hearing ought not to proceed on that date because the prosecution was obliged to file fresh papers, and that disclosure was incomplete.
[13] By letter dated 18 March 2010 the deputy registrar responded to
Mr Carrucan’s objections and confirmed that the fixture for 26 April 2010 stood.
[14] Thereafter, there appear to have been no relevant communications until
23 April 2010 (the last working day before the rehearing) when Mr Carrucan wrote to both the deputy registrar and to the respondent’s prosecutor in the following terms:
I note Mr Wolfgramm’s advice that there is discovery.
Please find attached the draft Form 26 which I will be filing with the Court on Monday the 26th of April 2010.
Mr Wolf Gram (sic) can you confirm the notes to go with this form and also the response time.
I have a Mediation conference at the Mediation Service with the Department of Labour on the 26th of April 2008 at 1.30 pm which makes it impossible for me to attend the fixture at the District Court on the same day at 1.15 pm.
Kindly advise what suitable dates are available in May or June 2010.
On Monday the 26th of April we will file a brief of evidence. Should you have any queries, please let me know.
[15] Mr Wolfgramm responded within little more than an hour and advised
Mr Carrucan as follows:
Morning Mr Carrucan, I have received your e-mail.
I have checked the court file, and wish to advise that my letter dated 18th March 2010, advises that full disclosure was given to you at the defended hearing on 6th August 2010.
I also wish to note that you have had 2 months to request an adjournment. Advising today, Friday 23rd April 2010, that you have a Mediation conference set down for Monday 26th April 2010 at 1.30 pm, is simply not acceptable.
The Auckland City Council advise that they are ready to proceed on Monday
26th April 2010.
You would need to appear in court on the Monday 23rd April 2010 before the Justices of the Peace to request this adjournment. Be aware, that this matter may proceed.
[16] Two further e-mails followed; the first from Mr Carrucan sent about half an hour after that from Mr Wolfgramm reads:
I advised the Court that disclosure was an issue on the 16th of March 2010.
I also draw your attention to s 27 of the NZ Bill of Rights Act 1990 regarding matters of natural justice and disclosure.
Full disclosure has not been provided by Auckland City on the 6th of August
2010.
The engineer’s report has never been provided despite repeated requests. I very much doubt at this juncture that such a report even exists – as despite repeated requests it has not been provided.
I have not had two months to request an adjournment – it is five weeks since your e-mail 18th of March 2010, the original of your letter nor any notice has arrived.
If the engineer’s report had been provided a Form 26 would not be required.
I repeat my earlier request, could you please advise by return the “Notice period” and further “form details” for the Form 26 I am seeking to serve and if I could have this by return e-mail today.
Should the matter proceed in my absence on the 25th of April 2010 it will be appealed on the basis outlined above, the discovery issue needs to be attended to.
[17] About two hours later Mr Wolfgramm responded in the following terms:
Please find attached a letter dated 3rd February 2010 which was sent to you. I have been advised that there is no engineer’s report.
Your (sic) right, it wasn’t 2 months but approximately 5 weeks. However, this timeframe was sufficient time for you to request an adjournment, or to make arrangements in respect of this other hearing, and not to request an adjournment within this short timeframe.
All this information will be made available to the Justice of the Peace on
Monday 26th April 2010.
[18] When the case was called in the Auckland District Court on 26 April there was no appearance for the appellant. The presiding Justices endorsed on the file the following handwritten minute:
No appearance of defendant at 1.35. Application for an adjournment denied. Application for further discovery denied as the documents requested do not exist. Further as an infringement offence all usual documents provided by way of disclosure have been disclosed to defendant at the time of first hearing. Brief of evidence for witness for the defence studied but should have been present today. Brief of evidence reveals no salient evidence.
[19] The brief of evidence to which the Justices refer seems to have been a one page brief from a supporting witness.
[20] Against that background Mr Carrucan complains that there has been a breach of natural justice, in that he should have been granted an adjournment so that he could be heard on the merits.
[21] This ground of appeal must fail. Mr Carrucan accepted before me that he was aware for some time prior to the hearing of a conflicting mediation fixture involving the Department of Labour, yet he did nothing about notifying the court or the prosecutor of the conflict until the working day just prior to the hearing. Moreover, his decision to give priority to the mediation over the District Court hearing is insupportable. Although he told me at the appeal hearing that he was unable to change the arrangements for the mediation because there were parties who would be flying from Wellington, there is nothing to suggest that, given sufficient prior notice those flights and the mediation fixture could not have been altered. The
proceedings of a criminal court take priority over essentially voluntary activities such as mediation matters.
[22] Mr Carrucan ought to have applied to the District Court for an adjournment as soon as he was aware of the fixture conflict, and if the adjournment was refused, then his proper course was to rearrange the mediation fixture. In the circumstances outlined, the Justices were well entitled to determine that the case ought to proceed in Mr Carrucan’s absence. The principles of natural justice require that a party be given an opportunity to be heard. Here, an opportunity was plainly afforded to the appellant to advance its defence, but it simply chose to accord priority to another commitment. There can be no question of a breach of natural justice in this case.
The merits
[23] The respondent’s case against the appellant was that, in breach of the applicable bylaw, Mr Carrucan drove his vehicle in a bus lane during a restricted period, for a distance that was greater than the minimum distance required to enable him to turn left from Mt Eden Road into Nikau Street. The Justices determined that he had indeed travelled for a greater distance than the minimum required to carry out the turning manoeuvre.
[24] Mr Carrucan is critical of the abbreviated decision delivered by the Justices. Decisions delivered at that level are usually very brief, but there can be no objection to that in single issue cases such as the present, particularly where the case had developed into a matter of formal proof.
[25] At the hearing of the appeal before me, much of the time was devoted to an analysis of the evidence adduced before the Justices, Mr Carrucan submitting that that evidence was sufficiently equivocal to entitle the appellant to be acquitted.
[26] It is convenient to set out the applicable regulatory provisions. At the time of the offence, the Land Transport (Road User) Rule 2004 (the Rule) provided that a driver must not use a special vehicle lane reserved for a specific class of vehicle unless the vehicle concerned belonged to that class or was an emergency vehicle.
[27] However, a driver was entitled to drive either wholly or partly in a prohibited lane, for the purpose of crossing that lane in order to make a turn. A driver undertaking such a manoeuvre was obliged to keep his or her use of the lane “ … to the minimum necessary in order to complete his or her manoeuvre”.[2]
[2] Rule 2.3.
[28] The respondent’s related bylaw No 25.17 provides:
25.17 Special vehicle lanes
25.17.1 The council may by resolution specify the location of special vehicle lanes.
25.17.2Any special vehicle lane specified under clause 25.17.1, is a "special vehicle lane" as that term is used is the Land Transport (Road User) Rule 2004. A special vehicle lane must restrict the use of a lane to a specified class or classes of vehicles and must be one of the following:
a. Bus lane;
b. Cycle lane;
c. Transit lane;
d. Light rail vehicle lane;
e. Restricted vehicle lane.
25.17.3 No person may use a vehicle traffic lane specified under clause
25.17.1 in a manner contrary to the restriction applicable to that type of lane.
25.17.4Any special vehicle lane specified under clause 25.17.1 shall be evidenced by the appropriate signs and markings.
[29] The bylaw is cross referenced to the provisions of the Rule. At the hearing in the District Court, the respondent produced a copy of the special resolution designating the relevant portion of Mt Eden Road to be a special vehicle lane during hours which encompassed the time of the alleged offence.
[30] More recently, the Rule has been amended by imposing a cap of 50 metres upon the distance which a driver may cover in a special vehicle lane, but that provision is not relevant in the present circumstances.
[31] It is common ground that the question for the District Court and on appeal is whether Mr Carrucan had kept his use of the bus lane to the minimum necessary in order to complete his left turn into Nikau Street.
[32] As was the case at the earlier District Court hearing, the prosecution tendered in evidence to the Justices, the two maps or plans which had given rise to unease on Priestley J’s part. The first such plan, exhibit 1, was a drawing (apparently not to scale) which showed some but not all of the relevant streets and road markings and bore notations said to be the respective distances between certain points. This exhibit showed a distance of 58 metres between the corner of Nikau Street and Mt Eden Road, and the point at which the camera was set up. It also showed a further distance of 65 metres (said to constitute an informal “enforcement zone” for the enforcement officer who was at the scene), marked at the other end by a road cone which is not visible in the still photographs produced in evidence, nor on the DVD.
[33] The plan was referred to in the District Court. In this Court it was the subject of various explanations by Ms Singh, counsel for the respondent. In the end I was left in doubt as to the genesis of the plan and as to the accuracy of the measurements contained in it. The second map or plan produced to the Justices was exhibit 6. It appears to be a rather more accurate plan prepared by engineers. The distances appearing on exhibit 6 are not the same as those in exhibit 1. That was the difficulty encountered by Priestley J.
[34] It seems that the Justices did not consider exhibit 6. They noted that the date of the second map was 21 January 2009, some months after the alleged offence. At the conclusion of the evidence of Officer Lister, the respondent’s enforcement officer, the following questions and answers passed between the Justices and the witness:
Officer Lister, if I could ask a question about this second map. Now that you said, is that map 21 January 2009? ..Yeah.
So this map is subsequent to the offence? … That was not in operation when the offence occurred. That was the latest version after the engineers had finished curbing, channelling and whatever they do on the roads.
So what is the purpose of this map as part of the evidence? … That’s the one we will now use, after the 21st, when they’d finished the road works, on the
8th of 2008, well before the road works were done. Therefore the distancing would have been different to what they are now because in doing the road works, you alter the curb line fractionally and the signs fractionally.
And why do we need the information about why it would be now? … I
don’t know why we wanted that.
Right... I have no idea.
[35] Although he seemed content to rely upon certain aspects of exhibit 6, Mr Carrucan remains concerned that it depicts a state of affairs in January 2009, not in August 2008. He is convinced that there must have been a predecessor plan which accurately sets out distances and dimensions as at August 2008. He has been persistent in his request for disclosure of such a plan. The respondent has advised in writing that there was no earlier version of the plan. This advice was also conveyed to me from the bar by Ms Singh at the hearing of the appeal. In those circumstances the Court below, and this Court on appeal, were bound to work with the material which is available, remembering the burden of proof that lies upon the respondent.
[36] Of special significance for present purposes, is the discrepancy between exhibits 1 and 6 in respect of the claimed distance between the corner of Nikau Street and the point at which the enforcement camera was set up. Exhibit 1 claims the distance to have been 58 metres; exhibit 6 depicts only 28 metres. Mr Carrucan says the latter distance is much more likely to have been correct.
[37] In the unsatisfactory circumstances that have arisen, I consider the proper course is to assume in Mr Carrucan’s favour that exhibit 6 is correct and will assume for present purposes that exhibit 1 is unreliable as to distance.
[38] Having said that, I consider the plans to be of only limited assistance, save that they helpfully depict the road pattern and provide assistance to the Court as to the roading layout beyond what can be seen in the DVD and in the still photographs extracted from it at three different points in time.
[39] The Justices had before them a visual recording of Mr Carrucan’s progress in the bus lane. The alleged offence occurred at 8 am on a weekday morning. I infer that it was rush hour. Mr Carrucan was driving on Mt Eden Road towards the city. Vehicles travelling in that direction pass Water Street on the right and then face a long, but gentle curve to the left. They pass Boston Road to the right, and then as the curve straightens out pass the intersection of Mt Eden Road with Burleigh Street, which intersects with Mt Eden Road at an acute angle. Thereafter, there is a significant straight stretch which leads to a short, gentle further left hand curve
before Nikau Street is reached on the left. Two lanes are available to traffic in Mt Eden Road travelling towards the city. The right hand is a general lane for through traffic; the left hand lane was at the relevant time a dedicated bus lane.
[40] The DVD depicts Mr Carrucan’s vehicle in the bus lane at the outset, it having negotiated the left hand curve which finishes roughly opposite the intersection of Mt Eden Road with Burleigh Street. There was no other vehicle in the bus lane, but the general transit lane was filled with largely stationary traffic. Mr Carrucan’s vehicle then proceeded unimpeded along the bus lane, finally being lost to view beyond the camera. The vehicle was in view of the camera for about
6 seconds.
[41] During the portion of his journey caught on camera, Mr Carrucan passed at least 10 vehicles. He accepts that the distance between the camera and the corner of Nikau Street is likely to have been of the order of 28 metres as is depicted in exhibit 6.
[42] Mr Carrucan was entitled to travel in the bus lane only for the minimum distance “necessary” in order to enable him to complete his left turn. In my opinion, irrespective of any difficulties over discrepancies in the two plans, he travelled for a distance that was very significantly greater than was “necessary” in order to enable him to make his turn. There was no evidence before the Justices of Mr Carrucan’s explanation in defence of what occurred. At the hearing of the appeal I permitted him to tell me that he considered that it was safer to join the bus lane at a point some considerable distance back down Mt Eden Road, because by doing so he would have a more unobstructed view of vehicles in the bus lane at the time at which he entered it.
[43] That explanation in my opinion is inconsistent with the scene as depicted in the visual record. Mr Carrucan ought to have simply joined the traffic in the general transit lane (where vehicles were moving very slowly and only intermittently). It would then have been open to him to signal and then to make a turn from that lane into the bus lane (for a short distance) or even across it, for the purpose of effecting his left turn. I do not accept that there was insufficient visibility closer to Nikau
Street for a left turn to be made from the general transit lane with safety. That much is plain from the visual record produced in evidence which demonstrates that there would have been clear visibility for at least 10 car lengths or more to a driver seeking to make a left turn into Nikau Street from the general transit lane. I record that I have viewed the video evidence several times and carefully studied the three still photographs extracted from that record (exhibit 9).
[44] It is of some significance that Mr Carrucan commenced to signal a left hand turn only when he was part way along the bus lane in Mt Eden Road. In other words, he was travelling in the bus lane for some distance before any signal was given. In my view, there was ample evidence upon which the Justices were entitled to find the offence proved. Indeed, the outcome was virtually inevitable. Difficulties surrounding plan discrepancies lose their significance when the visual evidence and still photographs are considered.
[45] In one sense, Mr Carrucan’s driving may have seemed sensible and prudent, in that it undoubtedly would have facilitated his forthcoming left turn into Nikau Street. The bus lane requirements undoubtedly give rise to delays and, indeed, driver frustration for those who adhere to the law and wait until they are able to make a left turn at a point where they will utilise the minimum length of bus lane “necessary” to complete the manoeuvre. But there are certain public policy considerations which have prompted the introduction of special vehicle lanes. Like all other drivers, Mr Carrucan was required to comply with the applicable bylaw.
Other matters
[46] Mr Carrucan raises on appeal several other matters which require brief consideration. He complains that the respondent had failed to act upon his request that an infringement notice be issued to him (as the driver) as distinct from the appellant, which is the owner of the vehicle. The respondent had no obligation to do that in respect of moving vehicle offences (of which this is one). A prosecuting authority may proceed against a driver of a vehicle or its owner or both.[3]
[3] Land Transport Act 1998; s 133(1).
[47] Mr Carrucan also signified in his synopsis of submissions (although not in the notice of appeal and not in oral argument) that there was a challenge to the relevant bylaw by reason of an alleged failure to give public notice of it. I say no more about this point, given that Mr Carrucan did not pursue it at the hearing before me.
[48] As a separate point, he also raised before me in argument his continuing dissatisfaction over the extent of disclosure of various of the respondent’s documents. In particular he is concerned about certain Council resolutions and earlier versions of exhibit 6.
[49] The material sought by him may have been of interest in a general sense, but it did not fall within the respondent’s disclosure obligations because it was simply irrelevant to the case the appellant had to meet.
[50] At the hearing of the appeal he confined his argument to the natural justice point, and then to the factual issue of whether he had travelled in the bus lane for the minimum distance “necessary”. Given the plain visual evidence, and the confined issues argued by Mr Carrucan on appeal, the further disclosure he seeks is not justified.
[51] In this regard it is appropriate to note that, on the morning following the hearing, the Registrar of this court received a letter dated 5 October 2010 (the day of the hearing), addressed to counsel for the respondent and jointly to the Registrar of this court. In it, Mr Carrucan covered certain material already the subject of his submissions to the Court on appeal, and raising again the absence of a note or memorandum or plan constituting a predecessor to exhibit 6. Mr Carrucan contends that the information is necessary to meet the requirements of the Criminal Disclosure Act 2008. The letter really adds nothing to Mr Carrucan’s submissions on appeal. It was not appropriate for the Court to receive such communications after the hearing had concluded.
[52] Given the view of the evidence taken by the Justices, and by me, neither map 6 nor any earlier version of it (if one existed) is of any appreciable moment.
Result
[53] In my opinion the Justices were right to find that there had been an infringement of the rules relating to use of the relevant bus lane. The appeal is accordingly dismissed.
C J Allan J
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