District Court New South Wales Medium Neutral Citation: Chow v R [2015] NSWDC 110 Hearing dates: 11 March 2015 Date of orders: 11 March 2015 Decision date: 11 March 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: APPEAL – Appellant turned left from non-left-turn lane – Left lane partially obstructed – Obstruction did not prevent access to left lane – Inconvenience does not remove legal obligation Legislation Cited: Road Rules 2008 (NSW) Category: Principal judgment Parties: Mark Chow (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: In person (Appellant) Solicitor for Director of Public Prosecutions (NSW) (Respondent) File Number(s): 14/110094 Publication restriction: No Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 22 August 2014 Before: Stapleton LCM File Number(s): 14/110094 Judgment 1. HIS HONOUR: This is an appeal from a conviction recorded by Magistrate Stapleton sitting in the Downing Centre Local Court on 22 August 2014. The appellant was charged that on 17 October 2013 at 11.30am he turned left from Quay Street, Haymarket onto Ultimo Street, Haymarket not from the left hand lane of a multi-lane road. That is an offence contrary to s 28(1) of the Road Rules 2008. 2. The Crown case depended upon the evidence of Senior Constable Craig Alistair Jackman who had been a highway patrol officer since the middle of 2008 and at the relevant time was attached to the Central Business District Motorcycle Unit of the NSW Police. 3. Quay Street is a one way street which runs north-north-west from Railway Square and terminates near the Sydney Entertainment Centre. Halfway along the north-north west section of Quay Street is a cross road with Ultimo Road which runs from George Street to Harris Street, Ultimo. The direction of Ultimo Road is roughly south-south-west. Just south-west of the intersection of Quay Street and Ultimo Road there runs off Quay Street a lane known as Thomas Lane which joins Quay Street on its western side. The normal configuration of lanes travelling north-north-west in Quay Street is three lanes one lane turning left onto Ultimo Road, one lane turning right onto Ultimo Road and the central lane proceeding north-north-west further down Quay Street. At the relevant time the left hand north-bound lane of Quay Street was closed because of construction on the western side of the street. Exhibit 1 in the Local Court, which the appellant agreed represented the configuration at the time, indicates that the closed left hand lane north-bound lane of Quay Street was again open shortly before the intersection of Quay Street and Ultimo Road. 4. Senior Constable Jackman gave evidence that on his estimation there was enough room in the left hand turning lane, lane one in Quay Street, for at least four vehicles to queue in the lane to make the left hand turn. The senior constable's evidence was that he had stationed himself on his police motorcycle in Thomas Lane under a tree in front of a noodle shop which enabled him to monitor traffic in Quay Street. He marked on exhibit 1 with a white arrow the front of his police motorcycle. Clearly, to have taken the photograph the constable would have had to leave his police motorcycle there. Clearly, the photograph was taken some time after the offence alleged against the appellant. The senior constable said that at about 11.35am on 17 October 2013, which was a Thursday, he saw a white coloured taxi from the Combined Services fleet, a station wagon, registered number T1318 on Quay Street. There is no dispute that that vehicle was being driven by the appellant who is a taxi driver. He said that at the relevant time he observed, in the left hand turning lane of Quay Street, a silver Forester Subaru motor vehicle which had stopped at traffic control lights and then had edged forward across the stop line to begin a left hand turn onto Ultimo Road. He saw the appellant's taxi cab in the middle of the three north-bound lanes, that is, lane two of the three, lane one being the left hand turning lane. 5. According to the senior constable the appellant drove to the intersection in the middle lane, lane two, and then as he crossed the "stop line" began to make a left hand turn onto Ultimo Road. He gave evidence that the driver of the Subaru had sounded his horn. There had been pedestrians crossing Quay Street that were obstructing the Subaru but had moved on such that the Subaru could edge forward over the "stop line". The pedestrians had also left the path followed by the appellant, that is, by turning from the middle lane onto Ultimo road. The senior constable said that the appellant turned left across the path that would have been taken by the Subaru if it were in motion. The senior constable said that he was some 12 to 16 metres from the intersection when he made his observations of the appellant's vehicle turning left from lane two. After making that observation he engaged the warning devices on his police motorcycle namely, the siren and flashing lights, and followed the appellant's taxi. He gave evidence that the appellant turned onto lane three of Ultimo Road and then turned right onto Darling Drive. The senior constable followed the appellant onto Darling Drive and the appellant pulled over onto lane one and stopped in obedience clearly to the pursuit of him by the senior constable. 6. According to the senior constable the appellant's station wagon motor vehicle was 4.7 metres long which clearly puts it outside the exception in Road Rule 28(2) which applies only to vehicles 7.5 metres long or longer. According to the senior constable the appellant said to him words to the effect of "He let me in", the "he" clearly being a reference to the driver of the Subaru motor vehicle. 7. Most of what the senior constable said was in dispute. For example, both the appellant and a witness called by him, Mr Tony Markarian, a motor mechanic, said that the senior constable was not in either Thomas Lane or Quay Street but was in Ultimo Road on the northern side of that road and in effect made a U-turn or, according to Mr Markarian, an L-turn, to follow the appellant from the senior constable's position in Ultimo Road onto Darling Drive. The senior constable was cross-examined by the appellant. It was squarely put to the senior constable that he was in Ultimo Road at the time he commenced his pursuit of the appellant, but that was denied by the senior constable. The senior constable maintained that he was on Thomas Lane. This question was then put by the appellant to the senior constable: "Q. All the cars being queuing in lane one. It was the left lane has been totally blocked and also in near [sic] the intersection there is a big construction truck blocking the left lane." The learned magistrate rejected the question as containing too many propositions, that is, the question really was a number of different questions. The question of the obstruction of lane one by the construction truck was not pursued by the appellant. However, the following exchanges occurred, and are recorded on page 10 of the transcript: "HER HONOUR: It is cross-examination. It is not your evidence. If you want to say to him, and it may be the case, I don't know, do you want to put to him that you never turned left from lane two or three?" ACCUSED: I never. HER HONOUR: You never did? ACCUSED: Never did. HER HONOUR: Q. What do you say, Constable? A. He did. HER HONOUR: What do you say you did do? ACCUSED: I turned left in the left lane. HIS HONOUR: You turned left from lane 1? ACCUSED: Lane 1, yeah the beginning of--- HER HONOUR: What do you say [,] he turned left from lane one? ACCUSED: He didn't. There was a vehicle stopped there because it was giving way to pedestrians, being NSW PRA 01M. HER HONOUR: That is your case, sir? ACCUSED: Sorry? HER HONOUR: Have you put your case. You're in lane one--- ACCUSED: Okay, can I-- HER HONOUR: No, no. If that is the end of the cross-examination and you want to tell me your version of the events I will permit you to do so. First of all I get to ask Mr Mitchell. Just sit down. Mr Mitchell, any re-examination?" There was no re-examination of the senior constable. However, it could be seen that her Honour had prematurely truncated the cross-examination of the senior constable by Mr Chow. In those circumstances no inference adverse to the appellant can be drawn from the fact that he did not put to the senior constable that lane one was obstructed by a construction truck when it was clearly the subject of one question which was rejected for what we lawyers call duplicity. 1. According to both the appellant and Mr Markarian lane one was obstructed by this construction truck. However, that was not a complete obstruction. In his evidence-in-chief, adduced in essence by the learned magistrate the appellant admitted that there was a small space in front of the construction truck which he estimated to be "maybe just one car space". Mr Markarian made a similar admission. He gave this evidence in cross-examination: "Q. You say the traffic was bad because there was a truck in lane one on the left, which was the closest to the gutter? A. Yes. Q. Would you agree that there was no truck right up to the edge of the intersection? A. No, sir, it wasn't on the edge of the intersection it was maybe.. Q. How many cars back? A. Don't know how many maybe one and a half cars, maybe seven or eight metres at the most. It was enough for everyone that's in lane one to stay in lane two. Q. There was enough of a gap on your version to get back into lane one to turn left wasn't there because the truck wasn't right on the edge of the intersection was it? A. It wasn't right on the edge but it was one/one and a half cars by memory. I don't know exactly how much, but it shouldn't have been there. The truck had caused the problem for everyone being in lane number two." On the admissions made by the appellant and Mr Markarian there was room for a car to pull in front of the truck and turn left from lane one onto Ultimo Road. 1. Her Honour in her reasons for decision noted that the evidence of the appellant and Mr Markarian was that there was room for at least one car to go in front of the truck so that "painful as it might have been for everybody in Quay Street that day" they were obliged to head down lane two and move onto lane one and make the turn in accordance with Road Rule 28(1). In that regard her Honour's construction of the Rules was correct and cars travelling down lane two could have moved onto lane one before making the left hand turn. It may have been inconvenient to do so, it may have been bothersome, it may have been tiresome and it may have been time-wasting but that was what the law required and that is what could have been done. 2. In my view, the conviction was lawfully and properly recorded. The appellant does not pursue the severity appeal. The appeal is therefore dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2015