IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI-2010-404-454

BETWEEN

NIGEL GARLAND COOKE Appellant AUCKLAND TRANSPORT (FORMERLY AUCKLAND CITY COUNCIL) Respondent

AND

Hearing: Counsel:

14 June 2011 M J Porner for Appellant H Hargraves for Respondent 20 June 2011 JUDGMENT OF BREWER J

Judgment:

This judgment was delivered by me on 20 June 2011 at 12:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

_________________________________________________________________________________ SOLICITORS NG Cooke (Auckland) for Applicant Auckland Council Legal Services (Auckland) for Respondent COUNSEL MJ Porner
COOKE V AUCKLAND TRANSPORT (FORMERLY AUCKLAND CITY COUNCIL) HC AK CRI-2010-404454 [20 June 2011]

Introduction

[1]

Mr Cooke appeals against a judgment of Justices of the Peace delivered on

8 November 2010. The Justices of the Peace found proved against Mr Cooke the infringement offence of driving in a bus lane (being the bus lane on lower Symonds Street, Auckland).1 Mr Cooke was ordered to pay a fine of $150 and court costs of $132.89. [2] Mr Cooke, a practising lawyer who represented himself before the Justices of

the Peace, filed a notice of appeal on 19 November 2010. The grounds of appeal were specified as:
That the order so made is wrong, in fact and law.

[3]

The appeal was originally scheduled for hearing in this Court on 5 April

2011. On 31 March 2011 the respondent filed its submissions. However, the appeal did not proceed on the scheduled day. By memorandum dated 1 April 2011 the appellant, now represented by counsel, requested an adjournment due to the complexity of the issues involved in the appeal and the absence overseas of the appellant. The application was not contested and was granted by Peters J later that day. [4] In the event, submissions on behalf of the appellant (who on the face of the

record is his own instructing solicitor) were not filed and served until 9 June 2011. I mention this because part of the way through the hearing it became evident that Ms Hargraves for the respondent had never seen the appellants submissions. I had to adjourn to give her an opportunity to look at them and it is to her credit that she nevertheless opted to proceed with the hearing. Grounds

[5]

The appellant in his submissions filed on 9 June 2011 now advances his

appeal as follows:
1

Land Transport (Road User) Rules 2004, r 2.3(1)(f) (Road User Rules); Land Transport Act 1998, s 40.

2.

The appeal is made on the bases that: i. No bus lane existed because Auckland City Council Resolution 12181 (the Resolution) that established the parameters of the intended bus lane had not come into effect at the time of the alleged infringement; In the alternative, even if the bus lane existed, which is not admitted, Mr Cooke lacked the mens rea required to be guilty of any infringement; Also in the alternative, even if the bus lane existed and the offence of driving in it attracts strict liability, which matters are not admitted, Mr Cooke action was entirely without fault.

ii.

iii.

[6]

On 10 June 2011 the appellant filed notice of his intention to apply for a

special direction under s 144 of the Land Transport Act 1998. This application seeks to have the Court admit into evidence for the purpose of the appeal an affidavit by Mr Cooke sworn on 10 June 2011. By notice of opposition filed on 13 June 2011 the respondent opposes the application. [7] At the hearing of the infringement offence on 8 November 2010, Mr Cooke

cross-examined the respondents witness on the wording in the signs and markings at the commencement of the bus lane. He also asked questions on what buses were permitted to use the bus lane and the traffic control devices relied upon by the respondents officer for issuing the infringement offence notice. Mr Cooke was concerned to make the point that the signage and markings did not say buses only and so did not prohibit specifically cars from travelling in the bus lane. [8] Mr Cooke also gave evidence on his own behalf. That was in very short

compass and occupies just over a page of the transcript. He said that while he was driving along the road he did not understand that the sign bus lane meant that cars were not to drive on it. He said that when he had a look at the signs they were meaningless to him and did not indicate that he was not to drive down the particular lane. He also said that he did not see written on the road the words bus lane. [9] In the affidavit he says that at no time did he see any sign or marking relating

to the bus lane. Any knowledge that he has of the signs and markings he obtained having returned to the scene to investigate it.

[10]

There is more to the affidavit, but it does not significantly add to the above

and much of it is in the nature of submissions. [11] Section 144 of the Land Transport Act 1998 empowers the Court to receive as

evidence on an appeal an affidavit filed by or on behalf of the defendant where it appears that the deponents usual place of residence is more than 80 kilometres by road from the place of hearing. Notwithstanding this restriction, the Court may by special direction receive such an affidavit. [12] In this case no reference is made to Mr Cookes usual place of residence, but

the application is for a special direction. [13] The respondent contends that the application is misconceived. This is an

application essentially to admit fresh evidence, so the relevant provision is s 119 of the Summary Proceedings Act 1957. The appellant does not accept the respondents submission. [14] In my view, it seems clear that s 144 of the Land Transport Act 1998 is

intended to allow the Court to deal practically with evidential matters where the driving of motor vehicles is in contention. The restriction on the admission of a defendants affidavit contained in s 144(2) of the Land Transport Act 1998 seems to be aimed at allowing evidence to be given by affidavit in order to prevent a defendant from having to travel an unreasonable distance to the Court. [15] I accept the respondents contention that this application by the appellant is

really a request for fresh evidence to be admitted. The evidence is clearly not fresh and I would not admit it or consider it unless the interests of justice required it. 2 I approached the appeal by determining each of the grounds of appeal (as discussed below) in turn. For each, I considered whether the contents of the affidavit were of sufficient relevance to be admitted in the interests of justice. Accordingly, I decline the application. They were not.

McCabe v Police HC Hamilton AP26/95, 26 June 1995, Penlington J; R v Bain [2004] 1 NZLR 638 (CA).

[16]

I will address the grounds of appeal in a different order to that contained in

the appellants submissions. (1) Strict liability offence

[17]

The appellant contends that the offence is one that requires mens rea. That is

to say, the submission is that unless Mr Cooke knew that he was trespassing on a bus lane and intended to so trespass, he cannot be guilty of the offence. Since there was no evidence, on his submission, to establish that he did know of the existence of the bus lane or understood that it restricted the use of the lane by vehicles other than buses, he should not have been convicted of the offence. [18] In support the appellant submits that there is generally a presumption of mens

rea in provisions that create offences. The purpose of legislation regulating special vehicle lanes is to ensure motorists are aware of and understand the meaning of road markings. Before a driver can deviate from what Ms Porner terms the golden rule the general obligation to keep left3 the driver must have knowledge of the circumstances that allow them to deviate from the rule. Therefore the offence cannot be construed as one of strict liability. [19] The respondents argument is based on a construction of the relevant rules

and some case law. Ms Hargarves relies on Wellington City Council v McCrone,4 where Ronald Young J held that the defendants intention was irrelevant and not an element of the offence of parking a Vespa on a footpath in violation of r 6.14 of the Road User Rules. [20] Rule 2.3(1)(f) is silent as to mens rea. Therefore, I must consider whether

there is anything weighty enough to displace the ordinary rule that criminal liability requires a guilty mind.5 I find that there is. The offence of driving in a bus lane is not a criminal offence; it is a public welfare infringement offence.6 It supports the policy decision of central and local governments to increase efficiency in the public
3 4

5 6

Road User Rules, r 2.1. Wellington City Council v McCrone HC Wellington CRI-2010-485-78, 7 December 2010, Ronald Young J. Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 668. Land Transport (Offences and Penalties) Regulations 1999, s 4(1) and sch 1.

transport sector and promote the use of public transport. Special vehicle lanes are a key way of managing the flow of public buses. For the lanes to serve their purpose the general public must be restricted from driving in them. [21] The penalty and moral stigma that attach to an offence under r 2.3(1)(f) are

low. The infringement fee is $150 and the maximum penalty on summary conviction is a fine not exceeding $1000. There is no possibility of imprisonment, no Very little stigma is conviction is entered and no criminal record is created.7

associated with the offence of driving in a bus lane (relative to other offences under the Land Transport Act). I am satisfied that there is no need or requirement to read a mens rea element into the offence. It is an offence of strict liability. To require the prosecution to prove knowledge or intention on such a minor matter would be against all common sense. I note that Potter J arrived at the same conclusion in respect of the similar situation of parking in a bus lane.8 [22] The appellants attempt to draw an analogy with Millar v Ministry of

Transport is misconceived. Millar concerned charges of driving whilst disqualified. That carries for a first or second offence a penalty of imprisonment for a term not exceeding three months as well as a period of disqualification.9 It is clearly a penal offence and is quite different to the infringement offence at issue in this case. [23] (2) This ground of appeal does not succeed. Complete absence of fault

[24]

The appellant next relies on the defence of complete absence of fault,

submitting:
Mr Cookes ignorance of the bus lane was entirely reasonable in the circumstances. The evidence available indicates that he could not reasonably have prevented himself from coming to the conclusion that the bus lane was

7 8

Summary Proceedings Act 1957, s 78A. Parlane v Hamilton City Council HC Hamilton CRI-2010-419-74, 8 December 2010 at [12] and [32]; see also OByrne v Police HC Christchurch CRI-2010-409-164, 27 May 2011, Chisholm J at [18][25]; Trust Shop Ltd v Auckland City Council HC Auckland CRI-2010-404-186, 8 October 2010, Allan J. Transport Act 1962, s 35(2)(a); replaced by Land Transport Act 1998, s 32(3).

just an ordinary lane. It was through no fault of his own that he was unable to see the signs marking the very start of the bus lane.

[25]

The burden of proving complete absence of fault rests with the appellant.

The appellant must prove the defence to the balance of probabilities standard.10 [26] At the hearing before the Justices of the Peace the respondent produced

evidence of the Symonds Street bus lane signs and markings and proved that they comply with the requirements in the Traffic Control Devices Rules.11 [27] The appellants counter-evidence before the Justices of the Peace was limited

to his own testimony that he saw but did not understand the signs. In his affidavit to this Court he says that he did not see the signs at all, possibly because they were obscured by other vehicles at the time. Either way, the appellant invites the Court to infer that his mistake was reasonable and he was not at fault. [28] On the evidence I cannot do that. The plaintiffs pleading of complete

absence of fault in this case would have had to have been supported by evidence, probably from an expert witness, that a reasonable and prudent driver when confronted with the Symonds Street bus lane might well have not understood that they were restricted from driving in that lane. There was no evidence to the Justices of the Peace to that effect. The appellants submissions and testimony that he did not understand and/or see the signs and markings do not amount to evidence on what a reasonable and prudent driver would have understood. [29] The appellant has not discharged the burden of proving complete absence of

fault. That the appellant may have held the honest belief that he was entitled to drive in the lane does not change that conclusion; the appellants actual knowledge or belief is not an element of the infringement offence. Accordingly, this ground of appeal is dismissed.

10

11

Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 85; Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 665. Land Transport Rule: Traffic Control Devices 2004, r 4.2(2)(b).

(3)

But was it a bus lane?

[30]

The appellant submits that the Symonds Street bus lane was not a valid bus

lane at all because it was inadequately marked. The appellant relies on the Road User Rules12 and Auckland Council Bylaw No. 25 Traffic (2006):
25.17.4 Any special vehicle lane specified under clause 25.17.1 shall be evidenced by the appropriate signs and markings.

[31]

Traffic control devices must provide for the safe and effective control of

traffic which includes ensuring that road users are able to see and understand the signs and markings. The submission is that the signs and markings positioned at the Symonds Street bus lane were not appropriate to indicate to the reasonable and prudent driver that the lane was restricted to special vehicles only. The City Council Resolution providing for the bus lane was to take effect when the traffic control devices that evidence the restriction described in this resolution are in place. 13 In the appellants submission, the inadequacy of the signs and markings meant that the resolution has not taken effect. [32] As the Justices of the Peace heard, the area concerned is the 181 metre stretch

of road on Symonds Street beginning near the intersection with Alten Road and finishing at Grafton Road. At the start of this stretch of road there is a 68 metre long bus stop marked with signs and yellow lines on the road. The bus lane begins immediately after the bus stop. There is a sign at the start of the bus stop and at the start of the bus lane which reads [bus symbol] lane starts. Painted on the road at the start of the bus lane is a patch of green containing the words bus lane. A solid white line travels the stretch of the lane which acts as the right hand barrier for buses and the far left line for private vehicles. There is a sign marking the end of the bus lane and a patch of green on the road before the Grafton Road intersection containing the words bus lane.

12 13

Road User Rules, rr 1.3, 2.1, 3.1, 3.2, 5.2. Auckland City Council Resolution 12181 Symonds Street, (Waterloo Quadrant/Alten Road to Alfred Street/Grafton Road) Auckland City, Hobson Ward Central Connector: Bus lane and Parking Restrictions, dated 10 December 2009, at [3H].

[33]

In my view the respondent had produced sufficient evidence at the hearing to

establish that the requirements of cl 25.17.4 were met and that the bus lane was validly constituted. The Justices of the Peace noted that the bus lane signs are used nationally and are considered satisfactory to all requirements. The onus was then on the appellant, in relying on a complete absence of fault defence, to establish on the balance of probabilities that the lane was not adequately marked. As I have already mentioned, the appellant did not produce evidence to that effect. His testimony that he personally did not understand the signs is not sufficient. His submission that the bare minimum of signage on the Symonds Street bus lane was inadequate carries little weight without accompanying evidence in support. [34] I therefore find that the appellant has not made out this ground of appeal.

Conclusion

[35]

The appeal is dismissed.

________________________________ Brewer J