Ahmed Ali v SA Police No. SCGRG 94/450 Judgment No. 4593 Number of Pages 6 Vehicles and Traffic Offences

[1994] SASC 4593

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Vehicles and traffic - offences - appeal against conviction for speed camera offence - appellant registered owner of the photographed vehicle but said not to be the driver of the vehicle - appellant convicted as trial court not satisfied that pursuant to s 79b(2) Road Traffic Act he could not, by the exercise of "reasonable diligence", have ascertained the identity of actual driver - onus on appellant to establish that on balance of probabilities - question of fact and degree - requires making by a defendant of enquiries which appear reasonably likely to throw light on the question of who was actual driver and which are appropriate in the circumstances - futile, ritual and unreasonably expensive steps not required - appellant had made enquiries of all persons having access to the vehicle, but none prepared to admit to being the driver - no other obvious line of enquiry - trial court not identifying any failure on the part of appellant to exercise reasonable diligence - that appellant did exercise reasonable diligence only inference fairly arising on evidence - Road Traffic Act, 1961s79b(2). Police v Cumming
(1993) 168 LSJS 418; Young v Paddle Bros Pty Ltd (1956) VR 38; Plesa v Griffiths (1977) 15 SASR 434 and Semple v Williams (1989) 156 LSJS 40, applied.

HRNG ADELAIDE, 18 May 1994 #DATE 10:6:1994

Counsel for appellant:     Mr M Agar

Solicitors for appellant:    Michael Agar

Counsel for respondent:     Mr S Gupta

Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against a conviction recorded by justices against the appellant of an offence under section 79b of the Road Traffic Act, 1961 ("the Act"). The charge proffered against him had been that, on 19 July 1993, he was the registered owner of a vehicle bearing the registration number ALI-786, which vehicle was detected by means of a photographic detection device having committed a prescribed offence. Particulars of the charge asserted that, at about 9.35 am on the day in question, his vehicle was detected travelling along Port Wakefield Road, Dry Creek at about 72 kph in a 60 kph zone.

2. The appellant defended the charge and gave oral evidence before the justices. He conceded that the vehicle photographed by the detection device was clearly his vehicle. However, he said that he was not driving it at the time - it must have been driven by one or other of two of his brothers or (possibly) either of two of his sisters, but that none of them admitted to having any present recollection of doing so at the time.

3. He conceded that he may have been driving a vehicle at the time at which the photograph was taken - even in the general area in which the detection device was located. He had taken his children to kindergarten or school that morning and, for that purpose, usually travelled via either the Main North Road or the Port Wakefield Road. However, he was insistent that he had utilised his sister's vehicle to do so. At the time he was living with one of his sisters and her vehicle had been parked behind his in the driveway on the morning in question. He told the justices that his brothers - neither of whom lived at the same premises - not infrequently borrowed his vehicle. His sister, with whom he lived, in particular, also drove it. The keys were kept in a drawer in the dresser in his room.

4. The appellant deposed that he had no present memory of either his sister or his brothers asking to borrow his vehicle on the morning in question, but they could have done so.

5. It was the case of the appellant that he received the relevant infringement notice about a month after the alleged offence. He professed to a specific memory, at that time, of not having used his own vehicle on the morning of the offence. He testified that, on receiving the infringement notice, he questioned both his two brothers and two sisters as to whether they had driven the vehicle. None of them would "own up" to having been the driver. He notified the situation to the police in a timely manner.

6. No attempt was made by the appellant to call any of his brothers or sisters to verify his story. In cross examination the appellant conceded that his brothers each owned a car.

7. Section 79b of the Act (so far as is applicable) is expressed in these terms:-
    "(2) Where a vehicle appears from evidence obtained
    through the operation of a photographic detection device
    to have been involved in the commission of a prescribed
    offence, the registered owner of the vehicle is guilty
    of an offence against this section unless it is proved -
    (a) that although the vehicle appears to have been
    involved in the commission of a prescribed offence, no
    such offence was in fact committed;
    (b) that the registered owner, or, if the registered
    owner is a body corporate, an officer of the body
    corporate acting with the authority of the body
    corporate, has furnished to the Commissioner of Police a
    statutory declaration stating the name and address of
    some person other than the registered owner who was
    driving the vehicle at the time;
    or
    (c) that -
     (i) if the registered owner is a body corporate - the
     vehicle was not being driven at the time by any
     officer or employee of the body corporate acting in
     the ordinary course of his or her duties as such;
     (ii) the registered owner does not know and could not
     by the exercise of reasonable diligence have
     ascertained the identity of the person who was driving
     the vehicle at the time;
     and
     (iii) the registered owner, or, if the registered
     owner is a body corporate, an officer of the body
     corporate acting with the authority of the body
     corporate, has furnished to the Commissioner of Police
     a statutory declaration stating the reasons why the
     identity of the driver is not known to the registered
     owner and the inquiries (if any) made by the
     registered owner to identify the driver."

8. It was not disputed that the requirement of subsection (2)(c)(iii) had been satisfied by the appellant in the instant case.

9. What was essentially in issue was whether the appellant was the driver of the relevant vehicle at the time and, if he was not, whether it was the fact that he did not know who was the driver and could not, by the exercise of reasonable diligence, have ascertained the identity of the actual driver. The onus clearly lay on the appellant of proving those matters on the balance of probabilities (Police v Cumming (1993) 168 LSJS 418).

10. Having considered all of the material before them the justices, inter alia, had this to say:-
"The crux of the defence revolves around Section 79b
    part 2 subsection C2 of The Road Traffic Act:
    'The registered owner does not know and could not by the
    exercise of reasonable diligence ascertain the identity
    of the person who was driving the vehicle at the time.'

Although Mr Ali has produced an affidavit suggesting
    that his brothers Shahid and Naushad regularly used the
    car and one of them could have been the driver on that
    particular occasion, Mr Ali goes on to say that it is
    not possible to ascertain which one did drive but
    maintains that he himself was not the driver on that
    day. Taking all the evidence into account we believe
    that due diligence has not been shown by Mr Ali in
    ascertaining who the driver was on that particular
    occasion and being the registered owner of the car under
    Section 79b and sub section 1a and sub section 2 of the
    Road Traffic Act we find that Mr Ali is guilty of the
    offence as stated. A conviction will be recorded.
    There will be a fine of $90-, Court Fees $66-, Levy
    $25- and Prosecution Costs $75-, total $256-. We will
    allow two months time to pay. In default of payment
    there will be 6 days imprisonment."

11. Having regard to the manner in which the justices expressed themselves I infer that they were content to accept that the appellant was not in fact the driver of the vehicle when the offence was committed. Although they do not say that, their focus on what they referred to as the "due diligence" issue is, logically, consistent only with such a conclusion. Equally it must be inferred from their reasons that they accepted that, as a fact, he did not know who had been the driver. If it were otherwise they would logically have said so.

12. By his appeal, and given that situation, the appellant complains that the finding against him on the diligence issue was not warranted by the evidence and illogical.

13. In addressing this matter one difficulty which I face is that, having found lack of diligence, the justices did not proceed to elaborate on the basis of reasoning which led them to such a finding.

14. In this regard it should be emphasised that the phrase employed in the Act is "reasonable diligence" and not "due diligence" as adverted to by the justices. This is a not unimportant consideration, because it seems to me that Mr Agar, of counsel for the appellant, may well be correct that the latter phrase implies a higher obligation than the former.

15. In the course of his judgment in Young v Paddle Bros Pty Ltd (1956) VR
38, Herring CJ accepted that a fair definition of the phrase 'reasonable diligence' was 'not the doing of everything possible, but the doing of that which, under ordinary circumstances and with regard to expense and difficulty, could be reasonably required'.

16. What is essentially involved is a question of fact and degree, in the context of the particular circumstances. The section clearly contemplates that the owner of the photographed vehicle will embark upon all of the enquiries which, in the particular circumstances, appear reasonably likely to throw light on the question of who was the driver at the relevant time. In so doing - as with the type of enquiry to be made under the differently expressed section 115 of the Motor Vehicles Act and to adapt to the present situation what fell from King J (as he then was) in Plesa v Griffiths (1977) 15 SASR 434 - what must be demonstrated is that what was done was reasonable in, or appropriate to the circumstances, but a defendant is not required to embark upon mere ritual steps likely to be futile, or to go to steps or expense considered to be oppressive and/or unlikely to be productive of a positive end result.

17. When all was said and done in the instant case, four potential drivers were identified. Each was asked about the incident, but none was prepared to concede that he or she had been the driver. If it be accepted - as seems to have been the case - that such was the situation, then one rhetorically enquires "What more could the appellant have done?" He did not possess the inquisitorial powers available to the police and there was no obvious line of enquiry open to him.

18. One of the difficulties in this case is that, given the point which I made in Semple v Williams (1989) 156 LSJS 40 concerning the approach proper to be adopted to a consideration of ex tempore reasons expressed by justices, it is impossible to divine from what was said by the justices in this case what they considered to have been the failure of the appellant to exercise reasonable diligence. I am simply left in the dark on that issue.

19. At the end of the day the state of the evidence was such that, in absence of any such identification of deficiency, the only inference fairly arising on the evidence is that the appellant did exercise reasonable diligence. In my view, in absence of a rejection of the appellant as a witness of truth, the conclusion of the justices was, prima facie, at odds with the state of the evidence.

20. The appeal must be allowed, the conviction quashed and the penalties imposed set aside. An order of dismissal of the complaint must be substituted. There will be orders accordingly.