Choong v Police - [2011] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHOONG v POLICE
[2011] SASC 168
Judgment of The Honourable Justice White
7 October 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT GIVING WAY - NOT GIVING WAY AT STOP SIGN, GIVE WAY SIGN ETC
The appellant was convicted by a Magistrate of failing to stop at a stop sign and stop line in contravention of Australian Road Rule 67(2) - the complaint on which the accused was charged incorrecly described the offence by reference to Rule 67 in its previous form - the Magistrate determined the charge by reference to the previous version of the rule.
Whether the complaint on which the appellant was tried failed to allege conduct amounting to an offence; whether the Magistrate had mistaken the law which was to be applied; whether the complaint could be amended under s 181 of the Summary Procedure Act 1921 (SA).
Held: Application to amend complaint granted - whilst the complaint did not allege conduct amounting to an offence, and the Magistrate was mistaken as to the law, the complaint could be amended under s 181 of the Summary Procedure Act - such an amendment does not cause significant detriment to the appellant - on the correct charge the appellant is guilty of the offence - appeal dismissed.
Summary Procedure Act 1921 (SA) s 52, s 181; Motor Vehicles Act 1959 (SA) s 98B; Australian Road Rules r 67, r 352, referred to.
Choong v Police [2010] SASC 312; Schultz v Pettitt (1980) 25 SASR 427; Maguire v Modra [2010] SASC 74; Surman v SA Police (1996) 65 SASR 421; Sluiter v Keimeier [1969] SASR 506; Williams v Stewart [1994] SASR 254; Robey v Police (1993) 18 MVR 121, considered.

CHOONG v POLICE
[2011] SASC 168
Magistrates Appeal

WHITE J. On 25 May 2010 the appellant performed a left-hand turn from Poole Avenue at Hampstead Gardens on to Muller Road. Both a stop sign and a stop line applied to vehicles effecting such a turn.
A police officer (Snr Constable Pedler) considered that the appellant had not stopped as required by the Australian Road Rules (the ARR) in compliance with the stop sign and stop line. He issued the appellant with an expiation notice which recorded the offence as “disobey stop sign”.
This seemingly simple state of affairs has given rise to protracted litigation. Until the hearing of the present appeal, the appellant has represented himself throughout. His ability to do so has on occasion been compromised because English is not his first language.
The appellant did not expiate the offence and instead elected to be prosecuted. He was then charged with a contravention of r 67 of the ARR. The complaint alleged that he had not stopped “at the stop line”.
Despite his initial election to be prosecuted, following the pre-trial conference in the Magistrates Court the appellant entered a plea of guilty and applied for a reduction of demerit points.[1] A Magistrate took evidence from the appellant in relation to that application. During the course of that evidence the appellant asserted that he had in fact stopped twice: once immediately behind the vehicle in front of him which had stopped at the stop line; and once when he was about two metres from the stop line.
[1] Under s 98B(4) of the Motor Vehicles Act 1959 (SA).
The Magistrate then immediately queried the appropriateness of the plea of guilty but, after viewing DVD footage of the incident taken from Snr Constable Pedler’s motorcycle, proceeded to deal with the application. Her Honour refused to reduce the demerit points.
The appellant then appealed to this Court against his conviction. Although such an appeal following a plea of guilty is unusual, a Judge of this Court allowed the appeal on the respondent’s concession that there may have been some misunderstanding before the Magistrate as to the effect of the appellant’s evidence.[2] The Judge then remitted the matter to the Magistrates Court for rehearing.
[2] Choong v Police [2010] SASC 312.
The rehearing took place before a different Magistrate. The appellant pleaded not guilty. As will be seen, an unfortunate error occurred during the course of that hearing. The wording of r 67(2) of the ARR was amended in January 2009. The Magistrate considered that it was the rule in its repealed form which was applicable to the charge, and he determined the charge against the appellant on that basis. The Magistrate’s mistake in this respect is understandable. The charge itself was laid using the terms of the former r 67(2) and the copy of r 67(2) which the prosecutor provided for the assistance of the Court and of the appellant was also of the repealed rule.
The Magistrate convicted the appellant. He regarded the evidence of Snr Constable Pedler as reliable and, in any event, considered that the DVD footage taken from the camera mounted on his motorcycle showed clearly the appellant’s contravention. The Magistrate then imposed a fine of $200.
The appellant now appeals to this Court against that conviction. His original notice of appeal, prepared without legal assistance, contained some 20 grounds. However, Mr Kirsten, who appeared for the appellant, sensibly sought and obtained permission to amend the grounds with the effect that there are now two grounds only.
The first is that the complaint on which the appellant was tried did not allege conduct amounting to an offence. The second is that the Magistrate had determined the charge by reference to the repealed r 67(2) and had therefore mistaken the law which was to be applied.
As will be seen, I consider that both these contentions are sound and should be accepted. However, for the reasons which I will give shortly, that does not mean that the appeal should be allowed.
The Form of the Complaint
Before 25 January 2009, r 67 of the ARR provided (relevantly):
(1)A driver at an intersection with a stop sign or stop line, but without traffic lights, must stop and give way in accordance with this rule.
…
(2)The driver must stop at the stop line or, if there is no stop line, the driver must stop as near as practicable to, but before entering, the intersection.
However, r 67 was amended with effect from 25 January 2009. Subrule (1) remains intact but subrule (2) was amended to provide (relevantly):
(2)The driver must stop as near as practicable to, but before reaching:
(a)the stop line; or
(b)if there is no stop line – the intersection.
…
It can be seen that in those circumstances where there is a stop line, the former r 67(2) required a driver to stop “at” the line whereas r 67(2) in its current form requires the driver to stop “as near as practicable to, but before reaching” the line.
The complaint against the appellant particularised the offence alleged against him as follows:
On the 25^th day of MAY, 2010 at HAMPSTEAD GARDENS in the said State being the DRIVER of a vehicle namely A MOTOR VEHICLE, REGISTRATION NUMBER AA471V on a road namely POOLE AVENUE, at the intersection of POOLE AVENUE and MULLER ROAD, which did not have traffic lights, but did have a stop sign and a stop line, and being required to stop in accordance with Rule 67 of the Australian Road Rules, you did not stop at the stop line.
Rule 67(2) of the Australian Road Rules.
It is further alleged that the said stop sign and stop line applied to you as the DRIVER on the said road.
This is a summary offence.
(Emphasis added)
It can be seen that the complaint particularised the conduct alleged against the appellant in terms of the former r 67(2). It did not allege, in terms of r 67(2) as in force on 25 May 2010, that the appellant had failed to stop his car “as near as practicable to, but before reaching the stop line”. Rule 67(2) as in force on 25 May 2010 did not oblige the appellant to stop his car “at” the stop line. Thus, on its face, the complaint did not allege conduct which could amount to a contravention of r 67(2) as in force at the relevant time.
For this reason, I consider that the appellant has made out the first of the amended grounds.
The Magistrate Considered the Former Rule 67(2)
It is plain that the Magistrate determined the matter by reference to the former r 67(2). In his reasons, the Magistrate paraphrased the charge against the appellant as one of failing to stop “at a stop line” and he referred repeatedly to the evidence showing that the appellant had not stopped “at the stop line”. The Magistrate’s misapprehension as to the applicable legislative provision appears most clearly in the following passage:
There is no contest with respect to any elements of the offence, other than whether the defendant stopped or he didn’t. He very clearly did not stop at the line.I bear in mind that in his materials he refers to an extract from r 67. Unfortunately that is sub-para (1) of the rule and not sub-para (2) which requires where there is a stop line that he must stop at it. He didn’t.
(Emphasis added)
It is appropriate that I add, in fairness to the appellant, that his submissions at trial were directed to r 67(2) in its applicable form. However, it is very evident that the Magistrate did not appreciate this and that, to a certain extent the Magistrate and the appellant were at cross purposes during the course of his submissions.
The end result is that the Magistrate considered only whether the prosecution had established that the appellant had not stopped “at the stop line” and did not consider, as he should have, whether the prosecution had proved that the appellant had not stopped “as near as practicable to, but before reaching, the stop line”.
The Respondent’s Amendment Application
In the light of these difficulties the respondent sought permission during the appeal to amend the complaint to delete the words “at the stop line” and to substitute “as near as practicable to, but before, the stop line”. It contended that, if the amendment was allowed, this Court then should hear and determine the amended complaint on the basis of the evidence tendered at trial. It submitted that no prejudice would be caused to the appellant by proceeding in this way.
The respondent relied on s 181 of the Summary Procedure Act 1921 (SA), which provides:
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2)     The Court may—
(a)     amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)     dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
By sub-s (1), a complaint is not invalid because of a defect of substance or of form. By sub-s (2)(a) the Court may amend a complaint to cure a defect of either substance or of form provided that the defendant has not been substantially prejudiced by the defect. The amendment power may be exercised by this Court when hearing an appeal from a Magistrate’s decision.[3]
[3]    Robey v Police (1993) 18 MVR 121 at 123-4.
As I understood it, the respondent accepted that the deficiency in the complaint was one of substance. Nevertheless, the respondent contended that the original complaint was not incurably bad. It submitted that the “pith and substance”[4] of the charge remained and the amendment changed only one part of the particulars relating to the charge. I agree with that submission.
[4] Schulz v Pettitt (1980) 25 SASR 427 at 433 (Cox J): Maguire v Modra [2010] SASC 74 at [18]-[20]; (2010) 107 SASR 198 at 202-3; Surman v SA Police (1996) 65 SASR 421 at 424.
The expiry of the six month limitation period fixed by s 52 of the Summary Procedure Act 1921 (SA) in relation to the offence alleged against the appellant does not preclude the amendment. The prosecution is still charging a contravention of r 67(2) in relation to the same incident on 25 May 2010: the only change is to the precise nature of the conduct alleged to constitute the contravention.[5]
[5] Schulz v Pettitt (1980) 25 SASR 427 at 430.
In support of the application to amend, the respondent referred first to the DVD footage which, it submitted, provided independent and reliable evidence of the movements of the appellant’s vehicle. The availability of that evidence indicated, so the respondent contended, that the appellant would not be prejudiced by the delay, as may have been the case if witnesses had been lost, or the quality of the available evidence in some way compromised.
Secondly, the respondent referred to the appellant’s own attempts at the trial to refer to the current form of r 67(2). The appellant had been frustrated in that respect, but it could not be said that he himself had not known the legislative provision which was appropriate, or had in some way been misled, or had altered his position to his detriment. He had known all along the conduct which should be alleged in order to establish the offence.
Thirdly, on the first appeal to this Court, the Judge had referred to r 67(2) in its current form when considering whether there had been a misunderstanding about the effect of the appellant’s evidence at the first hearing in the Magistrates Court. No one had then adverted to the deficiency in the complaint, but as the appellant had been able to secure a rehearing on the basis that he was charged with a contravention of the current r 67(2), it would be incongruous if he was now found to be prejudiced by an order permitting such a hearing taking place.
The appellant submitted that he would be disadvantaged by having now to face a properly framed charge. The detriment alleged was only that he could not rely on the deficiencies in the complaint in defence to the charge. The appellant did not submit that there would be any additional detriment.
In my opinion, the respondent’s submissions on the amendment application should be upheld. I will refer in more detail to the DVD footage later. For present purposes it is sufficient to say that it indicates the movements of the appellant’s car quite plainly. It means that the appellant will not be impaired by the loss or impairment of evidence which would otherwise have been available to him.
Apart from the inconvenience of having now to address a complaint in proper form, the appellant is not otherwise prejudiced. He has been aware for some time of the correct form of r 67(2). Many of his submissions to the Magistrate were framed on the basis of the current form of r 67(2) but, for the reasons I have already given, it was the Magistrate who was under a misapprehension.
Accordingly, I grant permission to the respondent to amend the complaint in the way which it has proposed.
At the hearing, I invited the parties to complete their submissions on the basis that the amendment may be allowed, and they did so.
Rehearing of the Complaint
Given the history of the matter, I consider it inappropriate for the matter to be remitted to the Magistrates Court for yet a third hearing. It is time that this prosecution was finalised. I consider it appropriate for this Court to engage in that task, using the evidence tendered before the Magistrate. Both parties agreed with that course. Neither party sought to adduce further evidence.
It was common ground that on 25 May 2010, there was a stop sign applicable to traffic entering Muller Road from Poole Avenue. That stop sign applied to the appellant. There was also a stop line, as defined in the Dictionary in the ARR, painted on the roadway which was applicable to vehicles entering Muller Road from Poole Avenue.
In these circumstances, the appellant was obliged to stop his car “as near as practicable to, but before reaching, the stop line”. It was the front of his vehicle which was to be stopped in that position.
The expression “as near as practicable” appears in numerous provisions in the ARR. In each instance it is used to indicate a requirement of physical proximity. However, as Bray CJ pointed out in Sluiter v Keimeier [6] expressions such as “as near as is practical” do not mean physically practical but practical under the circumstances. Thus, what may be as near as practicable in any given context may vary according to the circumstances of the individual case. It is possible, as Mayo J observed in Williams v Stewart,[7] that the expression may connote a subjective criterion (ie, taking account of features of the individual vehicle or driver) or an objective criterion (ie, ignoring any subjective considerations). Given the overall structure, tenor and purpose of the ARR, I am inclined to consider that the latter construction is appropriate but it is unnecessary to express a concluded view about that.
[6] [1969] SASR 506.
[7] [1944] SASR 254.
Rule 352 of the ARR also provides some content for the expression “as near as practicable”. It provides:
A requirement in the Australian Road Rules for a driver to stop as near as practicable to a place is not complied with only because the driver stops behind a vehicle that has stopped at the place.
Example—
If a driver stops behind a vehicle that has stopped at a stop sign or stop line in accordance with rule 67, 68 or 121, the driver must, after the vehicle has proceeded, stop at the stop sign or stop line in accordance with the rule.
Rue 352 makes it plain that a driver will not comply with r 67(2) simply by stopping his or her vehicle behind a vehicle which has already stopped at a stop line.
In the present case, the DVD footage shows that the appellant did not stop as near as practicable to, but before reaching, the stop line. The appellant’s car followed another. The lead car did stop at the stop line before moving off almost immediately to effect a left-hand turn. When it stopped, the appellant’s car came almost to a halt behind it but my impression is that it did not stop entirely. Nevertheless, I will give the appellant the benefit of the doubt about this and regard his car as having stopped completely behind the lead car. At this point, the appellant’s car was more than one car length, perhaps three to four metres, away from the stop line. When the lead car moved off, the appellant’s car followed it but did not stop again before crossing the stop line. Instead it performed immediately a left-hand turn into Muller Road.
In these circumstances it cannot be said that the appellant stopped his car “as near as practicable to, but before reaching, the stop line”. Even giving the appellant the benefit of the doubt as outlined above, the point at which he stopped his car behind the lead car was not “as near as practicable to the stop line”. The front of his car was several metres from the stop line. The appellant could easily have come much closer to the stop line once the lead car had moved away. In any event r 352 makes it plain that the position in which the appellant stopped is not to be regarded as compliance with the obligation imposed by r 67.
The appellant contended that in the position he had stopped behind the lead car, he had served the purpose intended by r 67. He said that in that position he had an unobstructed view to his right and could see that the way was clear for him to proceed. This submission cannot be accepted. It is, for the reasons already given, precluded by r 352. Quite apart from that, the DVD footage shows that even though the appellant may have been able to see clearly to the right, his view to his left was obstructed by the adjacent buildings. He could not see that his intended path was clear. He could not see, for example, that his path was not obstructed by pedestrians crossing Muller Road in close proximity to its junction with Poole Avenue.

Accordingly, I find that the prosecution has proved the charge beyond reasonable doubt.
Conclusion
For the reasons give above, I grant the respondent permission to amend the complaint in the way indicated and I dismiss the appeal.