FLOUNDERS v AUCKLAND TRANSPORT [2023] NZHC 3252

FLOUNDERS v AUCKLAND TRANSPORT [2023] NZHC 3252 [16 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-394[2023] NZHC 3252BETWEEN NORMAN FLOUNDERSAppellantAND AUCKLAND TRANSPORTRespondentHearing: 13 November 2023Appearances: Appellant in personK England for RespondentJudgment: 16 November 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 16 November 2023 at 3:45 pm.Registrar/Deputy RegistrarCounsel: K England, Legal Counsel, Auckland Transport, AucklandCopy to: Mr Flounders[1] On 16 and 22 July 2020, Norman Flounders knowingly drove through a buslane in Khyber Pass Road, Newmarket, Auckland. He entered the bus lane at the startof the bus lane and turned left into an alleyway just after the end of the bus lane. Heknew the area reasonably well. After parking his vehicle, he visited a coffee shop inthe vicinity.[2] Mr Flounders was issued with two infringement notices alleging that he drovea vehicle on a road and used a special vehicle lane reserved for a specific class orclasses of vehicle other than the one being driven,1 being an offence against s 40 ofthe Land Transport Act 1998 and reg 4 of the Offences and Penalties Regulations 1999and 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 washeard before Justices of Peace, G Nicholls and F Freeman, on 24 March 2021,following which the JPs found the two offences proven. Being an infringementoffence, the JPs did not enter a conviction, but fined Mr Flounders $150 plus Courtcosts of $30 on each charge.[4] Mr Flounders then appealed to the District Court. The appeal was heard on4 April 2023. In a reserved decision dated 22 June 2023, Judge G A Fraser dismissedthe appeal.2[5] Mr Flounders now seeks to appeal the decision of Judge Fraser. He filed theappeal documentation six days late. He therefore requires an extension of time. Beinga proposed second appeal, Mr Flounders also requires leave to appeal.[6] Mr Flounders has provided an explanation for the lateness of filing the appealdocumentation. The respondent takes no issue with its lateness. An extension of timeis 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 appealagainst 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 firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond 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 occurunless the appeal is heard.[8] Mr Flounders has filed extensive documentation. In summary, however, itappears 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 lanefor more than a minimum length necessary to enable him to completehis left turn.[9] The respondent submits that only the first involves a matter of applicationbeyond the circumstances of this particular case but submits that it may not rise to thelevel of an "important question of law having broad application beyond thecircumstances of [this] particular case".3 The respondent does, however, acknowledgean interest in having the first issue clarified by this Court given it also disagrees withthe first appeal court's decision on this issue, albeit for different reasons thanMr 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 togrant leave where success for an appellant would require this Court to reverse3 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, thetrial was before a judge alone, giving the applicant the benefit of twojudgments giving reasons for those factual findings.[27] We are not persuaded that R's application meets the CriminalProcedure Act 2011, s 237 threshold. It substantially reiterates the groundsadvanced on the first appeal, which were fully and properly addressed byAsher J. Nothing new is raised. It is not submitted that any point wasoverlooked by Asher J. Rather, this Court is essentially invited to go into thewhole matter, particularly the 24 August incident, again, in the hope it mightconclude that R's convictions are the result of an error or irregularity affectingthe fairness of his trial. That would be the third time the evidence has beenassessed by a court. We do not consider there is a risk of justice miscarryingif this Court declines to do that.[11] The respondent submits that no miscarriage of justice has occurred or willoccur 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 riskthe 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 notprovide grounds for an appeal.Discussion[12] I am satisfied that the proposed second appeal does not involve a matter ofgeneral or public importance. Nor has a miscarriage of justice occurred or may occurunless 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 UserRule, which sets out what is commonly referred to as the 50-metre rule. It providesan exception to the general rule (that you cannot drive in a special vehicle lane) if thedriver 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 themanoeuvre, for no more than a maximum of 50 metres, and gives way to vehiclesentitled 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 authorisedmanoeuvres.5[15] In the hearing before the JPs, the respondent produced a sketch map (not toscale) 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 seenas broken into two different bus lanes because of a pedestrian traffic signal andassociated markings that bisect the bus lane. By his calculation, the pedestrian trafficsignal precinct measured 17.5-metres in width. He says there are two different buslanes on either side of the precinct.[17] Mr Flounders' calculations as to the length of each bus lane are unclear, butJudge 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 ninemetres and the second bus lane on the eastern side of the pedestrian precinct measuring40-metres.[18] Judge Fraser then records Mr Flounders' submission that even if it was onecontinuous bus lane, then the total distance was some 49 metres, constituting bothsides of the bus lane, excluding the width of the pedestrian precinct. That being thecase and because he was turning left before the conclusion of the bus lane on theeastern side of the pedestrian precinct, he was allowed to travel in the bus lane for thedistance 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 thanthe maximum length of 50 metres in the bus lane and that he used the lane safely andfor as short a time as possible, recognising that he was required to give way and notimpede vehicles that were entitled to use that lane. His submission was that he usedthe lane for the full distance because it was dangerous to turn on to the bus lane at anypoint 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 proceedinto the bus lane at the commencement of the bus lane. He determined it wasdangerous 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 LandTransport Act 1998 or the Land Transport Rule: Traffic Control Devices Rule 2004requires special vehicle lanes to cease at or near pedestrian traffic signals. To thecontrary, the Traffic Control Devices Rule expressly contemplates special vehiclelanes traversing traffic signals (which includes pedestrian traffic signals as well astraffic light-controlled intersections).6[22] Judge Fraser then seems to have determined that the bus lane was 68 metres inlength, 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 thebus 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 metresMr Flounders entrance at the commencement of the bus lane is well outsidethe 50 metres being the minimum length necessary to complete themanoeuvre.[62] Should I be wrong in terms of the determination that the bus lane is68 metres, then regardless, Mr Flounders entered the bus lane on bothoccasions at the beginning of the bus lane on the western side of the pedestrianprecinct.[63] Should the length of the bus lane in fact be approximately some 49metres, accepting Mr Flounders' argument, the fact that he entered the buslane at the commencement did not comply with the minimum length necessaryto 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 buslane on the western side of the pedestrian precinct. This entry was at a distancesignificantly 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 provenif 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 havesafely entered the bus lane on the resumed eastern side of the bus lane. Thatwould have been the safe manoeuvre, based on the profile of the traffic at thetime. There was no issue of safety requiring him to enter at thecommencement of the bus lane.[67] Mr Flounders' explanation on both days is inconsistent with the sceneas depicted in the visual record. He should have continued in the generaltraffic lane where there was limited traffic on one day and more dense trafficon the other. There were no issues in terms of safety for him to signal fromthe lane on the east side of the pedestrian precinct and cross into the bus lanefor a short distance, and then effect his left turn.[68] Accordingly, I find that on both occasions Mr Flounders travelled inthe bus lane for more than the minimum distance necessary in order to enablehim to complete his left turn.[69] That being the case, regardless of the bus lane measurement, whetherit be 68 metres or 49 metres, Mr Flounders infringed the Rules relating to theuse 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 theoffences proven. Rather, he is intent on establishing the falsity of the sketch mapproduced before the JPs. He calls it a "fabrication" or "a pack of lies with no legalstanding". 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 amatter of general or public importance. Nor will a miscarriage of justice occur unlessthe appeal is heard.________________________________Woolford J