City of Playford v Mathie

[2025] SASCA 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CITY OF PLAYFORD v MATHIE

[2025] SASCA 45

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)

8 May 2025

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - BREACH OF STOPPING AND PARKING RESTRICTIONS

Following a trial in the Magistrates Court, the respondent was convicted of an offence contrary to r 189 of the Australian Road Rules (SA) (‘the ARR’) and s 174A(2) of the Road Traffic Act 1961 (SA) (‘the RTA’). The respondent appealed the decision to a single Judge of the Supreme Court (‘the Judge’) who allowed the appeal, set aside the conviction and entered an acquittal.

The appellant seeks permission to appeal against the Judge’s decision. The appellant contends that the Judge erred by not finding that s 52(1)(a)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) applied to allow the commencement of proceedings within six months of the expiry of the expiation period (Ground 1). Further, the appellant contends the Judge erred in not finding the expiation notice given to the respondent described the general nature of the offence with which she was charged, as required under the Expiation of Offences Act 1996 (SA) (Ground 2).

The Attorney-General intervened in the appeal before this Court, and advanced submissions that were confined to Ground 2 and were consistent with the appellant’s submissions.

The respondent filed a notice of alternative contention that the relevant time limit was not provided by s 52(1)(a)(i) of the CPA. This only arises for consideration if Ground 2 (of the appellant's appeal) is rejected.

The respondent also filed a cross-appeal alleging she had a ‘defence’ under r 165 of the ARR, and that the Magistrate erred in finding beyond reasonable doubt it was safe for the respondent’s vehicle to overtake vehicles ahead, and she was therefore entitled to be acquitted of the charged offence.

As to the appellant’s appeal, held, per the Court, granting permission to appeal on both Grounds 1 and 2, dismissing Ground 1 and allowing the appeal on Ground 2:

1.The expiation notice adequately described the general nature of the alleged offence for the purpose of expiating an offence contrary to s 174A(2) of the RTA.

2.The longer time period of six months from the relevant expiation date applied to the offence, pursuant to s 52(1)(a)(i) of the CPA. The proceedings were only required to be commenced within six months of the expiry of the relevant expiation period and the Information was laid within time and was not statute barred.

3.If the expiation notice did not allege an offence against s 174A(2) of the RTA (contrary to the Court’s conclusion on Ground 2), the shorter period under s 52(1)(a)(ii) would be applicable. Therefore, the prosecution would be required to be commenced within six months from the date of the commission of the offence, and, accordingly, the Information would have been laid out of time and statute barred.

As to the notice of alternative contention, per the Court:

4. Had the appellant not been successful on Ground 2, and it been necessary to decide, the Court would have granted the respondent an extension of time to file the notice of alternative contention and upheld the respondent’s alternative contention.

As to the cross-appeal, held, per the Court, granting permission to appeal on the cross-appeal, dismissing Ground 1 and allowing the cross-appeal in part on Ground 2:

5.Rule 165 of the ARR addresses a situation where there is a conflict of obligations under the ARR and provides a defence when such conflict arises. Determination of the applicability of r 165 of the ARR, and whether compliance with r 132 was required, includes a consideration of the exceptions to that rule, and in this case, whether it was open to the driver of the respondent’s vehicle to overtake the vehicles ahead in the line of traffic.

6.Section 56 of the CPA governs the operation of r 165 of the ARR, and the respondent carried the persuasive onus of proving on the balance of probabilities that the vehicle stopped to comply with r 132.

7.At trial, no explanation was provided to the respondent as to the operation of rr 165 and 132 of the ARR, nor as to the applicable persuasive burden, and what she was required to establish to bring her circumstances within the exception founded in r 165. As such, a miscarriage of justice occurred.

8.      The matter is remitted for re-trial in the Magistrates Court.

Australian Road Rules (SA) rr 132, 132(1), 133, 133(2), 139, 139(1), 140, 165, 165(e), 189, 189(1), pt 12; Criminal Procedure Act 1921 (SA) ss 52, 52(1), 52(1)(a), 52(1)(a)(i), 52(1)(a)(ii), 52(2), 56; Expiation of Offences Act 1996 (SA) ss 5(1), 6, 6(1), 6(1)(a), 6(1)(b), 6(1)(f), 6(1)(i), 6(1)j(iii), 6(5), 6(6), 8, 8(1), 8(2)(a), 8(2)(b), 8(2a), 8(3), 15, 15(1), 15(2), 15(3), 15(4), 16; Expiation of Offences Regulations 2011 (SA) sch 1, cls 1(c)(i)(A), 1(c)(ii); Fines Enforcement and Debt Recovery Act 2017 (SA) ss 8, 19(3), 22, 22(4), 22(10), 22(10)(b), 22(10)(d), 22(10)(e), 22(10)(f), 22(12), 22(13), 22(15), 22(15)(a), 22(15)(b), 22(15)(c), 22(15)(d), 27; Magistrates Court Act 1991 (SA) s 42(1); Road Traffic Act 1961 (SA) ss 35, 80, 164A, 174A, 174A(2), 174A(3), 174A(4), 174A(5), 175(1)(b), 176; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 9; Summary Procedure (Time for Making Complaint) Amendment Act 1996 (SA), referred to.
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Dietman v Karpany (2023) 143 SASR 91; John Holland Pty Ltd v Hanel [2016] SASC 192; Johnson v Miller (1937) 59 CLR 467; Mathie v City of Playford [2023] SASC 145 ; Moriaty v Nye (2024) 114 NSWLR 560; Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428; Riessen v State of South Australia (2001) 79 SASR 82; Rossiter v Adelaide City Council [2020] SASC 61; The Corporation of the City of Unley v Crichton [2021] SASC 17; Walker v Police [2014] SASC 32, considered.

CITY OF PLAYFORD v MATHIE
[2025] SASCA 45

Court of Appeal – Criminal: Kourakis CJ, Doyle and David JJA

1. THE COURT: Following a trial in the Magistrates Court, Ms Mathie (‘the respondent’) was convicted of an offence contrary to r 189 of the Australian Road Rules (SA) (‘the ARR’) and s 174A(2) of the Road Traffic Act 1961 (SA) (‘the RTA’). The respondent appealed the decision of the Magistrate to a single Judge of the Supreme Court (‘the Judge’), who allowed the appeal, set aside the conviction and entered an acquittal.

2. In this Court, the appellant (‘the Council’) challenges the Judge’s finding that the Magistrate lacked jurisdiction to determine the charge because the proceedings were not commenced within time and were thus statute barred.

3. The Council advances two grounds of appeal. First, that the Judge erred by not finding that s 52(1)(a)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) applied to allow the commencement of proceedings within six months of the expiry of the expiation period specified in the expiation notice, where the criminal proceedings alleged an expiable offence ‘arising out of the same incident’ as the offence alleged in the expiation notice (Ground 1).

4. Secondly, that the Judge erred in not finding that the expiation notice given to the respondent described the general nature of the offence with which she was later charged under s 174A(2) of the RTA, as required by the Expiation of Offences Act 1996 (SA) (‘the EOA’) (Ground 2).

5. The respondent filed a notice of alternative contention whereby she contends that the relevant time limit was not as provided by s 52(1)(a)(i) of the CPA. Rather, because an enforcement determination had been made and revoked, the operative provision was s 22(15)(d) of the Fines Enforcement and Debt Recovery Act 2017 (SA) (‘the FEDRA’). This meant that the time limit for the ARR r 189 offence alleged in the expiation notice was extended to six months from the deemed expiation date for the offence alleged in the expiation notice. However, the time limit for the RTA s 174A(2) offence (which on the respondent’s case was not alleged in the expiation notice) was not extended by this provision, and remained six months from the alleged commission of the offence. Accordingly, for this additional and alternative reason, the Information was statute barred.

6. The respondent also filed a cross-appeal alleging that she had a ‘defence’ under ARR r 165 because, by stopping in order to remain in the line of traffic on the left side of the road, the driver of her vehicle was complying with ARR r 132. The respondent contends that it was sufficient for the driver to be complying with the norm in r 132, separate and distinct from the exceptions to the rule. The respondent also contends that, properly construed, r 165 is a defence and not an exception (under s 56 of the CPA). Consequently, the prosecution bore the persuasive onus to negate the defence. Further, and in any event, under the cross‑appeal, the respondent complains that the Magistrate erred in finding beyond reasonable doubt that it was safe for the respondent’s vehicle to overtake the vehicle or vehicles ahead. Accordingly, the respondent was entitled to be acquitted of the charged offence.

7. The Attorney-General intervened in the appeal before this Court. The submissions advanced on his behalf were confined to Ground 2 of the appeal, and were consistent with the Council’s submissions to the effect that the Judge erred in finding that the expiation notice was deficient and failed to describe the general nature of the RTA s 174A(2) offence with which the respondent was charged.

8. For the reasons that follow, we grant the appellant permission to appeal on both Grounds 1 and 2, reject Ground 1 and allow Ground 2.  In relation to the respondent’s cross-appeal, we grant permission to appeal, reject Ground 1 and allow Ground 2 in part, and remit the matter to the Magistrates Court for a re-trial. 

9. Had it been necessary to decide, we would have granted the respondent an extension of time to file the notice of alternative contention, and upheld the respondent’s contention.

10. Issues of permission were referred to this Court for hearing as if on appeal.

    Factual and procedural background

11. On 24 November 2021, a vehicle belonging to the respondent was photographed by a Community Inspector on Boucaut Avenue, Blakeview, a street adjacent to Blakes Crossing Christian College.  In a series of photographs, which were tendered and admitted in the trial before the Magistrate,[1] the respondent’s car can be seen on Boucaut Avenue, stopped in a line of cars, but also immediately parallel to a line of cars that appear to be parked. 

    [1]     Exhibit P4.

12. On 3 December 2021, the respondent was issued an expiation notice (‘the expiation notice’) by the Council pursuant to s 6 of the EOA. In the left-hand corner of the front page, the expiation notice stated: ‘For offences under the Australian Road Rules 1999 & Road Traffic Act 1961’. Underneath, it identified the make of the vehicle and its registration number, the date, time and location of where the alleged offence occurred, and the respondent’s postal address. Relevantly, the alleged offence was described as ‘ARR189(1) Double Parking’.

13. The front page of the expiation notice also identified the ‘Expiation Fee’ of $104, and the ‘Pay By Date’ (expiation period) of 31 December 2021.

14. Under the information identifying the expiation fee and the pay by date, the expiation notice read:          

    YOU MUST READ ALL THE INFORMATION ON THE OTHER SIDE OF THIS NOTICE

    If you take no action on this notice, enforcement action may be taken against you.

15. On the back of the expiation notice a number of options were identified as ‘Your Choices’ which appeared to be intended as a list of options that the recipient of an expiation notice may take in relation to the alleged offence. The options included paying the expiation fee, requesting an informal review, electing to be prosecuted and, where the recipient of an expiation notice was not driving at the time of the alleged offending, providing a statutory declaration to the issuing authority stating the identity of the driver.

16. The expiation notice provided the statutory notices required by s 174A(4) of the RTA in the following terms:

    If you were not driving at the time of the alleged parking or traffic offence – post or deliver a Statutory Declaration to City of Playford stating the name and address of the driver.

    Alternatively, if you sold the vehicle and transferred ownership before the alleged offence – post or deliver a Statutory Declaration to City of Playford stating the name and address of the owner.

    A Statutory Declaration must be provided within 21 days of the date of this Notice, in accordance with s 174(A)(5) of the Road Traffic Act 1961; or …

17. At the bottom of the back of the expiation notice there was an ‘ELECTION TO BE PROSECUTED’ slip, which the recipient of the notice could complete and return to the issuing authority in order to permit the Council to commence prosecution for the alleged offence. 

18. The respondent, after receiving the expiation notice, sent correspondence to the Council dated 22 December 2021 (which was received on 4 January 2022) objecting to the expiation notice.

19. The Council reviewed the correspondence, treated it as a request to withdraw the notice, and decided not to withdraw it.  The Council then sent correspondence to the respondent, dated 6 January 2022, informing her of this decision and noting that payment of the expiation fee was now due on 3 February 2022.

20. On 11 January 2022, the Council sent an ‘Expiation Reminder Notice’ to the respondent. The ‘Pay By Date’ (expiation reminder period) in this notice was 1 February 2022, meaning the respondent had until that date to determine whether to expiate the alleged offence or take some other action as described on the notice.  The details on the reminder were the same as on the expiation notice, as set out above.

21. The respondent sent correspondence to the Council dated 19 January 2022, stating that she objected to the issue of the expiation notice and would continue to do so until ‘the very basic burden of proof that [the respondent had] requested … has been met’.

22. On 22 January 2022, the respondent sent a document to the Council titled ‘Notice of Default’, which essentially objected to the expiation notice in the same terms as her previous correspondence.

23. On 16 February 2022, the Council having neither received a statutory declaration in relation to the alleged offence nor payment of the expiation fee, sent the expiation notice and the expiation reminder notice to the Chief Recovery Officer for an enforcement determination, pursuant to s 22 of the FEDRA.

24. On 1 March 2022, the respondent wrote to the Council indicating that her correspondence was to be considered as her ‘written request to have this matter determined by a court of competent jurisdiction’.  She included the expiation notice with her name and the date completed on the ‘ELECTION TO BE PROSECUTED’ slip on the back of the notice.  The slip also required the address and the signature of the person filling in the slip to be included, but these were left blank on the slip she sent to the Council.

25. Following the Council’s actions of 16 February 2022, an enforcement determination was made under the FEDRA. However, on 11 March 2022, the determination was revoked pursuant to s 22(10)(f) of the FEDRA on the basis that the respondent had elected to be prosecuted for the offence alleged in the expiation notice prior to the enforcement determination, thereby permitting the determination to be revoked.

26. The respondent wrote to the Council on 28 March 2022, informing it that her position in earlier correspondence should be taken as an election to be prosecuted.

    Proceedings in the Magistrates Court

27. On 20 July 2022, the Council laid an Information in the Elizabeth Magistrates Court charging the respondent, as the owner of a vehicle, with an offence contrary to s 174A(2) of the RTA and r 189(1) of the ARR. The charged offence was alleged in the following terms:

    Offence Details:

    On 24 November 2021 at or around 3.15 pm, at Blakeview in the State of South Australia, the Defendant was the owner of a vehicle that was stopped on a road between other vehicles that were parked on the road and the centre of the road CONTRARY to Rule 189(1) of the Australian Road Rules and Section 174A(2) of the Road Traffic Act 1961.

    PARTICULARS

    1.1 The Defendant was the owner of a silver Hyundai sedan type vehicle displaying South Australian registration number (omitted) (the Vehicle) that was stopped on a road namely Boucaut Avenue, Blakeview, between other vehicles that were parked on the road and the centre of the road.

    1.2 At the time of the offence, the Vehicle was not parked on the side of a road or in a median strip parking area.

    1.3 This is a summary offence.

28. The respondent pleaded not guilty and the matter proceeded to trial on 27 January 2023. The respondent appeared in person and without legal representation. The Council, as the prosecuting authority, was represented by counsel.

29. As part of its case, the Council called evidence from one witness, a community inspector, Ms Doudle, who was on patrol with a colleague in the relevant area on 24 November 2021.  She said on that day at 3.12pm, she observed the respondent’s vehicle ‘stopped’ on Boucaut Avenue in a position between other vehicles which were parked on the left-hand side of the road, and the centre of the road. She (or her colleague) took a photograph of the vehicle, and then drove in a northerly direction and after completing a ‘loop around the block’ returned to the same location.  On her return, Ms Doudle observed that the respondent’s vehicle had moved forward but was again stationary adjacent to a white Subaru properly parked to its left.  She took another photograph at 3.15pm. Ms Doudle said that she again travelled north and did a final ‘loop around the block’ whereupon she took a third photograph of the respondent’s vehicle at 3.17pm.  She said the respondent’s vehicle was in the same position adjacent to the same white Subaru.

30. In all the photographs,[2] a silver SUV can be seen on the road directly in front of the respondent’s vehicle.

    [2] Exhibit P4.

31. The respondent did not give evidence at trial or call any evidence.

32. In his ex tempore reasons, the Magistrate noted that the respondent was charged with an offence against RTA s 174A(2) and ARR r 189(1), which is commonly referred to as ‘double parking’. The Magistrate identified the issues in dispute as follows:

    The prosecution relies on the aid to proof in s 174A of the Road Traffic Act which makes the owner of the vehicle guilty of an offence if the motor vehicle, of which they are the owner, is involved in the commission of a prescribed offence. Rule 189 of the Road Rules is such a prescribed provision, as provided for in s 35 of the Road Traffic Act. Accordingly, if the prosecution can show (a) that the defendant was the registered owner of the vehicle and (b) that it was involved in the commission of the prescribed offence, the charge is made out.

    …

    … The issue is whether the vehicle was involved in the commission of a prescribed offence.

33. The Magistrate noted that the respondent’s ‘defence’ was that ‘she had not stopped her vehicle for the purposes of r 189(1) but rather, was stuck in a stationary line of traffic. It is therefore for the prosecution to disprove that beyond reasonable doubt as a reasonable possibility’.

1. The Magistrate found that the prosecution had proved that the respondent was the owner of the vehicle in question by using the aid to proof in s 175(1)(b) of the RTA, as well as through the provision of an extract from the Register of Motor Vehicles, noting that the respondent did not dispute that she owned the vehicle.

2. The Magistrate also found that the respondent’s vehicle was ‘stopped and double parked for the purposes of ARR r 189 and not stuck in a line of traffic’. The Magistrate rejected the respondent’s ‘defence’ as a reasonable possibility for the following reasons:

   -    the vehicle was photographed at 3.17pm in the same position as it was at 3.15pm, and he accepted the evidence of Ms Doudle that there was sufficient room, on both occasions, for the respondent’s vehicle to travel around the traffic in front of it; 

   -    there was a ‘long distance’ to the next T-Junction (with Bentley Road) (which would have slowed the flow of traffic);

   -    two minutes ‘is an exceedingly long time for a car to be stuck in traffic with no explanation and not move an inch’; and

   -    the photographs revealed that two, possibly three vehicles had been able to move past the respondent’s vehicle and does not accept that they ‘all went through the carpark’. 

3. Accordingly, the Magistrate found that the respondent’s vehicle was involved in the commission of a prescribed offence, namely an offence of ‘double parking’ contrary to s 174A of the RTA and ARR r 189(1). The Magistrate found the offence proven, entered a conviction, fined the respondent $400 and ordered she pay the Council’s costs in the amount of $6,135.

   The appeal before the Judge

4. Following the trial in the Magistrates Court, the respondent appealed her conviction to a single Judge of the Supreme Court pursuant to s 42(1) of the Magistrates Court Act 1991 (SA). She was legally represented for the appeal proceedings.

5. The respondent appealed on several grounds.  Under appeal Ground 1, the respondent contended that the Information was statute barred, and as such the Magistrate Court did not have jurisdiction to hear and determine the charged offence.  The respondent submitted that the expiation notice alleged an offence against her as the driver of the vehicle under ARR r 189(1), whereas the Information alleged an offence against the respondent as the owner of the vehicle under s 174A(2) of the RTA. Consequently, they were not one and the same offence and, as a result, the respondent had not received an expiation notice for the offence charged. Therefore, the applicable time to commence proceedings was pursuant s 52(1)(a)(ii) of the CPA, rather than s 52(1)(a)(i), and that had expired before the Information was laid. It was submitted that the proceedings were therefore out of time and the Information statute barred. This contention was not ventilated before the Magistrate. It was the only appeal ground substantively addressed and determined by the Judge.

6. In relation to this ground of appeal, before the Judge, the Council contended that the offence under ARR r 189 and the offence contrary to s 174A(2) of the RTA were one and the same offence. The Council submitted that s 174A(2) of the RTA was a ‘legislative pathway’ linking a vehicle to a prescribed offence, rather than an offence provision itself. This contention was not advanced before this Court; indeed, it was conceded that an offence contrary to s 174A of the RTA, directed to the owner of a vehicle, was a different and distinct offence from an offence contrary to ARR r 189(1) alleged against the driver of a vehicle. All parties to this appeal accepted and proceeded on the basis that r 189(1) and s 174A(2) were two distinct offences.

7. As to the issue raised by Ground 1, the Judge found that the expiation notice did not contain an allegation that the respondent committed the offence under s 174A(2) as the owner of the vehicle. Rather, the expiation notice alleged that she committed an offence contrary to ARR r 189(1) as a driver of the vehicle. In so finding, the Judge considered the notice on the back of the expiation notice form, provided in compliance with s 174A(4), but found that this notice did not ‘overcome the need for the prosecuting authority to state the basis upon which it asserts that the recipient of an expiation notice is liable’.

8. Her Honour then reasoned:[3]

   This is a criminal offence. It is incumbent upon a prosecuting authority to provide clear and precise particulars of the alleged offence. The usual rule is that the onus of proof rests with the prosecution. Accused persons are entitled to put the prosecution to proof. However, s 174A(2) of the RTA removes the need for the prosecuting authority to prove an essential element of ARR r 189(1). The first and subsequent notices sent to the appellant did not alert her to this significant matter. A reasonable person would, in my view, understand what was stated in the notice to mean that the appellant was alleged to be the driver notwithstanding the note on the rear of the form. It is plain from the correspondence that the appellant sent to the respondent that this was in fact her understanding. The appellant accepted that she was the owner of the vehicle but indicated an intention to put the prosecution to proof as to the identity of the driver. At no stage did the respondent reply to the appellant’s correspondence advising her that it was not necessary to prove that she was driving at the relevant time because of the provisions of s 174A(2) of the RTA.

   It has been long established that a complaint or Information must tell a defendant what they are alleged to have broken and how it is alleged that they broke that law. The Information in this matter complied with those requirements.

   Whilst the expiation notice does not have to correspond in every respect with the subsequent Information, it should meet the minimum requirement of advising the recipient what offence is alleged and when, where and how it is alleged it was committed. The first (and subsequent) notices issued by the respondent signally failed to do this. The expiation notice should have contained a statement of offence similar to that set out in the subsequent Information. That is, the notice should have specified that the vehicle owned by the appellant was involved in the commission of an offence contrary to ARR r 189(1) and that she was liable as the owner under s 174A(2) of the RTA. This would then have given significance to the information set out on the second page of the notice concerning the manner in which it was possible to contest the allegation under s 174A(4) of the RTA.

   I also consider that the description of the offence using the term “double parking”, presumably from the heading in ARR r 189(1), rather than the words of the relevant rule is inappropriate. It is further inappropriate to use abbreviations such as “ARR” in the statement of offence on an expiation notice. A full statement of the relevant legislative provision is preferable to inform the recipient of the offence alleged.

   (Citations omitted.)

   [3]     Mathie v City of Playford [2023] SASC 145 at [50]-[54].

9. The Judge held that the expiation notice issued to the respondent was not an expiation notice for the charged offence. Accordingly, the appellant was not given an expiation notice for the purposes of s 52(1)(a)(i) of the CPA, and the prosecution was out of time under s 52(1)(a)(ii) of that Act. As a result, her Honour allowed the appeal and substituted an acquittal.

10. The remaining grounds of appeal before the Judge complained that the Magistrate fell into error by making various factual findings.  Relevantly to this appeal, the respondent also contended that the Magistrate erred by raising and then rejecting a ‘defence’ that the respondent was ‘stuck in a line of traffic’.  Her Honour indicated that whilst it was not ‘strictly necessary’ to decide those grounds of appeal, she would have nonetheless dismissed the remaining grounds of appeal.[4]

    [4]     Mathie v City of Playford [2023] SASC 145 at [28], [55].

    Appeal grounds

11. As mentioned earlier, the Council seeks permission to appeal against the Judge’s decision on the basis that the Judge erred in:

    1. not finding that s 52(1)(a)(i) of the CPA applied so as to allow the commencement of proceedings within six months of the expiry of the expiration period specified in the expiation notice, where the criminal proceedings alleged an expiable offence ‘arising out of the same incident’ as the offence alleged in the expiation notice; and/or

    2. not finding that the expiation notice given to the defendant described the general nature of the offence with which she was later charged, as required by the EOA (and correspondingly erred in applying principles governing the requirements either for a valid Information in the summary criminal jurisdiction, or for sufficient particulars).

    Legislative overview

12. Before turning to the Council’s grounds of appeal, it is helpful to set out some of the relevant legislative provisions.

    The offence provisions: Australian Road Rules (SA) r 189(1) and s 174A(2) of the Road Traffic Act 1961 (SA)

13. The power to make the ARR is provided by s 80 of the RTA. In addition, s 176 of the RTA provides that the Governor may make such rules as are contemplated by the Act. The ARR identifies various provisions the contravention of which constitute an offence.

14. Section 164A of the RTA provides that a person who contravenes or fails to comply with a ‘provision of this Act’ is guilty of an offence.

15. Relevantly for the purposes of this appeal, ARR r 189(1) provides:

    (1)   A driver must not stop on a road if to do so would put any part of the vehicle that he or she is driving between a vehicle that is parked on the road and the centre of the road.

    (Emphasis added.)

16. Section 174A(2) of the RTA provides:

    (2)   Without derogating from the liability of any other person, but subject to this section, if a vehicle is involved in a prescribed offence, the owner of the vehicle is guilty of an offence and liable to the same penalty as is prescribed for the principal offence and the expiation fee that is fixed for the principal offence applies in relation to an offence against this section.

    (Emphasis added.)

17. ARR r 189(1) is a prescribed offence.[5]

    [5]     Road Traffic Act 1961 (SA) s 35; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 9.

18. It was common ground on this appeal (but as mentioned earlier, not before the appeal Judge) that r 189(1) and s 174A(2) create two separate and distinct offences.

19. The norm of conduct stated in ARR r 189(1) relates to and is imposed upon ‘a driver’. A person who is not a driver cannot commit an offence against ARR r 189(1). However, the offence created by s 174A(2) is an offence that is committed only by ‘the owner of the vehicle’ that is ‘involved’ in the prescribed offence. So much is evident from the text of the two provisions.

20. Section 174A(2) of the RTA thus exposes vehicle owners to liability for prescribed offences under the RTA.[6] However, s 174A(3) specifically provides that ‘[t]he owner and driver of a vehicle are not both liable through the operation of this section to be convicted of an offence arising out of the same circumstances, and consequently conviction of the owner exonerates the driver and conversely conviction of the driver exonerates the owner’.

    [6]     Road Traffic Act 1961 (SA) s 174A(2).

    The expiation notice scheme under the Expiation of Offences Act 1996 (SA)

21. The EOA regulates the expiation of some summary offences committed in South Australia. It provides a legislative scheme through which minor offences may be dealt with by expiation. The scheme operates by allowing a person alleged to have committed a minor offence to accept liability for the alleged offence but avoid prosecution by paying a fee to expiate the offence.

22. Despite the implication of criminal liability, the expiation scheme is fundamentally administrative in nature by way of its operation.  In Walker v Police,[7] Blue J described the object of the EOA as follows:

    The object of the Act is to provide a simple and expedient alternative to the institution of prosecution proceedings for relevant summary offences. This provides advantages to the issuing authority in avoiding the time and expense of instituting criminal proceedings. It provides advantages to alleged offenders of avoiding the time, expense, distraction and emotional cost of being involved in criminal proceedings and it also avoids any finding of guilt being made or conviction being recorded against the alleged offender. It provides advantages to the Government in that it reduces the resources otherwise committed to and expenses otherwise incurred in larger court systems to deal with prosecutions for all summary offences.

    [7]     Walker v Police [2014] SASC 32 at [26].

23. The countervailing advantages and disadvantages associated with the expiation of an offence have been described as involving a ‘statutory bargain’ between the issuing authority and the person to whom an expiation notice has been issued.[8]

    [8]     Riessen v State of South Australia (2001) 79 SASR 82 at [27] and [31].

24. More recently, in Rossiter v Adelaide City Council,[9] Livesey J (as his Honour then was) observed with respect to the procedural status of an expiation notice:

    … The giving of an expiation notice, together with the opportunity to elect to be prosecuted, is a procedure created by the Expiation of Offences Act 1996 (SA). As the word “expiation” suggests, it is a procedure for summarily expiating what is otherwise, and in any event, an offence. The right to prosecute does not ultimately depend upon whether the defendant has been given an effective expiation notice.

    (Footnote omitted; citation omitted.)

    [9]     Rossiter v Adelaide City Council [2020] SASC 61 at [40].

25. Under s 5(1) of the EOA, certain offences may be expiated where an expiation fee is fixed by or under a statute, regulation or by-law in respect of an offence and an expiation notice is given to a person alleged to have committed the offence.

26. Section 6 of the EOA prescribes various requirements for a valid expiation notice including as to its form, contents and service. It relevantly provides:

    6—Expiation notices

    (1) An expiation notice—

    (a)   may relate to up to 3 alleged offences arising out of the same incident (ie if they are committed contemporaneously, or in succession, one following immediately upon another); and

    (b)   must be in the prescribed form; and

    (c) must specify that the expiation fee is to be paid within 28 days from (and including) the date of the notice unless an arrangement is entered into under section 20 of the Fines Enforcement and Debt Recovery Act 2017; and

    (d)   must specify to whom the expiation fee is payable; and

    (e)   cannot be given after the expiry of the period of 6 months from the date on which the offence was, or offences were, alleged to have been committed; and

    (f)   cannot be given to a person if a prosecution has been commenced against the person for the alleged offence or offences; and

    …

    (ha) should not be issued in respect of a trifling offence; and

    (i)    if a vehicle is involved in the commission of the alleged offence or offences and is found unattended – may be addressed to the owner or driver of the vehicle without naming or otherwise identifying him or her;

    (j)    may be given—

    (i) personally or by service on an employee or agent of the alleged offender; or

    (ii) by post addressed to the alleged offender’s last known place of business or residence; or

    (iii) if a vehicle is involved in the commission of the alleged offence or offences and if found unattended—by affixing or placing the notice on that vehicle

    (k)   must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences which the expiation notice relates.

    Note—

    Certain other Acts (eg the Local Government Act 1934 section 789D and the Road Traffic Act 1961 section 174A) require that an expiation notice given to the registered owner of a motor vehicle must be accompanied by a notice relating to the question of whether the owner was the driver at the time of the alleged offence.

27. In relation to s 6(1)(b) of the EOA, the prescribed form of such a notice is contained in sch 1 to the Expiation of Offences Regulations 2011 (SA) (‘the EOR’).  This provides that the form must specify: the expiation notice number; the date of issue of the expiation notice; the name of the issuing officer, or a code enabling them to be identified; if the notice is to be issued to the owner or driver of a vehicle – the registration number of the vehicle; in any other case, the name and address of the person; the general nature of the alleged offence(s); the time and date of the alleged offence(s); the place(s) at which the offence is alleged to have occurred; that the offence(s) may be expiated; and a statement about the choices available to the alleged offender, including to pay the expiation fee, elect to be prosecuted or enter a payment arrangement with the Chief Recovery Officer, and (if relevant) provide a statutory declaration to the effect that they are not the person to whom the offence relates. 

28. Pursuant to s 6(1)(a) of the EOA, an expiation notice may relate to up to three offences arising from the one incident. Section 6(5) of the EOA then provides that, subject to certain exceptions,[10] if an expiation notice is given to an alleged offender, no further expiation notice can be given to that person in respect of any other alleged expiable offence ‘arising out of the same incident’.  The combination of these provisions places a limitation on the expiation scheme by precluding more than one expiation notice being issued in relation to an incident, and limiting the number of offences that can be alleged on that expiation notice in relation to that incident. 

    [10]   Expiation of Offences Act 1996 (SA) s 6(6).

29. Whilst the purpose of the scheme created by the EOA is to allow a person to avoid prosecution for minor offences, a person alleged to have committed an offence may, nonetheless, elect to be prosecuted under s 8 of the EOA. This puts the issuing authority, as the prosecution, to proof of the alleged offence.

30. Under s 8(1), an alleged offender may elect to be prosecuted for the offence or any of the offences to which the expiation notice relates. An election cannot be made after an alleged offender enters an arrangement under s 20 of the FEDRA,[11] or an enforcement determination is made under s 22 of the FEDRA.[12]  However, if an enforcement determination is made, it may be revoked on the ground that the alleged offender did not have a reasonable opportunity to elect. In such a case, an election must be made within 14 days of the offender being given notice of the revocation.[13]

    [11]   Expiation of Offences Act 1996 (SA) s 8(2)(a).

    [12]   Expiation of Offences Act 1996 (SA) s 8(2)(b).

    [13]   Expiation of Offences Act 1996 (SA) s 8(2a).

31. If an election is made, the expiation notice will be taken to have been withdrawn.[14]

    [14]   Expiation of Offences Act 1996 (SA) s 8(3).

32. An offence is taken to be expiated where the fee identified on the expiation notice is paid.[15] Pursuant to s 15(1) of the EOA, if the offence is expiated, the alleged offender is not liable to prosecution for that offence, or any other expiable offence arising out of the same incident, not limited to the offence alleged in the notice itself. Further, s 15(2) provides that in respect of motor vehicles, no person may be prosecuted for an expiated offence arising out of the same incident, except for a separate offence that is the subject of another expiation notice,[16] thus broadening the application of the s 15 bar to prosecution of persons other than the alleged offender.

    [15]   Expiation of Offences Act 1996 (SA) s 15(1).

    [16]   Expiation of Offences Act 1996 (SA) s 15(2).

33. An alleged offender remains liable to prosecution for any offence that is not expiated where an expiation notice identifies more than one offence.[17]

    [17]   Expiation of Offences Act 1996 (SA) s 15(3).

1. The expiation of an offence does not constitute an admission of guilt or of any civil liability.[18]

   [18]   Expiation of Offences Act 1996 (SA) s 15(4).

2. Section 16 of the EOA permits an issuing authority to withdraw an expiation notice with respect to all or any of the alleged offences to which a notice relates in certain circumstances. Relevantly, these circumstances include where the authority receives a statutory declaration or other document provided in accordance with a notice accompanying the expiation notice (for example, pursuant to ss 174A(4) and (5) nominating the driver of the relevant vehicle) or where the authority decides the alleged offender should be prosecuted for the offence or offences.

   Notices pursuant to s 174A and the Expiation of Offences Act 1996 (SA)

3. Where an expiation notice is given for an alleged offence contrary to s 174A of the RTA, it must be accompanied by a notice under s 174A(4) of the RTA inviting the owner of a vehicle alleged to have committed an expiable offence to provide to the issuing authority a statutory declaration identifying the driver of the vehicle, if the owner was not also the driver of the vehicle at the time that the offence was alleged.

4. Relevantly, s174A(4) of the RTA provides:

   174A—Liability of vehicle owners and expiation of certain offences

   …

   (4)An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996 to the owner of a vehicle for an alleged offence against this section involving the vehicle must be accompanied by a notice inviting the owner, if the owner was not the driver at the time of the alleged prescribed offence, to provide the council or officer specified in the notice, within the period specified in the notice, with a nomination—

   (a)   setting out the name and address of the driver; or

   (b)if the owner had transferred ownership of the vehicle to another prior to the time of the alleged offence and has complied with the Motor Vehicles Act 1959 in respect of the transfer—setting out details of the transfer (including the name and address of the transferee).

   …

   (5)Before proceedings are commenced against the owner of a vehicle for an offence against this section involving the vehicle, the informant must send the owner a notice—

   (a)setting out particulars of the alleged prescribed offence; and

   (b)inviting the owner, if the owner was not the driver at the time of the alleged prescribed offence, to provide the informant, within 21 days of the date of the notice, with a nomination setting out the matters referred to in subsection (4).

5. The notice as it appears on the back of the expiation notice in the present case was provided in the following form:

   If you were not driving at the time of the alleged parking or traffic offence – post or deliver a Statutory Declaration to City of Playford stating the name and address of the driver. Alternatively, if you sold the vehicle and transferred ownership before the alleged offence – post or deliver a Statutory Declaration to City of Playford stating the name and address of the owner. A Statutory Declaration must be provided within 21 days of the date of this Notice, in accordance with s 174A(5) of the Road Traffic Act 1961; or …

6. This provision recognises that despite there being a single owner of a vehicle, to whom the vehicle is registered, there may be any number of drivers of that same vehicle.  Further, where an offence is committed, it is the right of the owner where they were not also the driver of the vehicle to identify the driver, and have an expiation notice for the alleged offence instead issued in the driver’s name.

   The time limits under the Criminal Procedure Act 1921 (SA)

7. In relation to time limitations within which proceedings may be commenced, s 52 of the CPA provides:

   52—Limitation on time in which proceedings may be commenced

   (1)Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:

   (a)in the case of an expiable offence—

   (i)if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;

   (ii)if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed;

   (b)in the case of an offence that is not expiable—the proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed.

   (2)For the purposes of subsection (1), an expiation notice is to be taken into account despite its subsequent withdrawal except if the notice of withdrawal specifies that it is withdrawn because—

   (a)the issuing authority has received a nomination, statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or

   (b)it has become apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the authority or failure of the postal system or failure in the transmission of an email,

   (in which case the withdrawn expiation notice is to be disregarded).

8. It can be seen that s 52(1) prescribes statutory limitations on the time in which proceedings in relation to summary offences may be commenced which defer to any provision of an Act to the contrary. In that sense, the section denotes a general rule while other statutes may provide for specific rules in relation to certain offences.

9. The statutory limitations in s 52(1)(a) address two circumstances. First, where an expiation notice has been given to the person alleged to have committed an expiable offence and provides that proceedings must be commenced within six months of the expiry of the expiation period (s 52(1)(a)(i)). Alternatively, if an expiation notice has not been given to the person alleged to have committed an expiable offence, proceedings must be commenced within six months of the date on which the offence is alleged to have been committed (s 52(1)(a)(ii)).

10. The practical effect of s 52(1)(a)(i) is to allow a longer opportunity for a prosecution to be commenced against a person to whom an expiation notice has been given. The issues in these proceedings (addressed below) include whether s 52(1)(a)(i) applied despite the enforcement determination and its revocation and, if it did apply, whether it applied only to offences alleged in the expiation notice or whether (consistently with the reach of the bar to prosecutions in s 15(1) of the EOA) it applied to all offences arising out of the same incident.

    Enforcement determinations

11. If the recipient of an expiation notice does not pay the expiation fee or take up any of the other options available by the expiry of the expiation period, the issuing authority may issue an expiation reminder notice. If there is still no response, the issuing authority may then refer the matter to the Chief Recovery Officer under the FEDRA.

12. Section 22 of the FEDRA empowers the Chief Recovery Officer to issue an enforcement determination in relation to an expiation notice. Section 22(4) provides that, where an enforcement determination is made, the offender will be taken to have expiated the offence or offences to which the enforcement determination relates.

13. An enforcement determination, if not revoked, renders an amount due under an expiation notice a debt to the Crown[19] which may then be recovered by the Chief Recovery Officer in the exercise of the various powers conferred upon him or her by the FEDRA.[20]

    [19]   Fines Enforcement and Debt Recovery Act 2017 (SA) s 8.

    [20]   See eg Fines Enforcement and Debt Recovery Act 2017 (SA) ss 19(3) and 27.

14. An enforcement determination may be revoked on application to the Chief Recovery Officer or on his or her own initiative. An application to revoke can only be made on one of the bases set out in s 22(10), namely:

    (10) …

    (a)the expiation notice to which the determination relates should not have been given to the applicant in the first instance (other than because the alleged offender did not commit, or has a defence against, the alleged offence); or

    (b)the alleged offender did not have a reasonable opportunity to elect under section 8 of the Expiation of Offences Act 1996 to be prosecuted for any offence to which the expiation notice relates (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or

    (c)the alleged offender did not have a reasonable opportunity to apply for review of the expiation notice to which the determination relates under section 8A of the Expiation of Offences Act 1996 (other than because the alleged offender did not receive an expiation notice or an expiation reminder notice as required under that Act); or

    (d)the procedural requirements of this Act or any other Act were not complied with; or

    (e)the applicant failed to receive an expiation notice and an expiation reminder notice as required by the Expiation of Offences Act 1996; or

    (f)the issuing authority failed to receive—

    (i)a notice sent to the authority by the applicant electing to be prosecuted for the offence; or

    (ii)a nomination, statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or

    (g)the applicant has expiated the offence, or offences, under the notice.

15. Under s 22(12), if the Chief Recovery Officer revokes an enforcement determination, the determination will be taken to be void and of no effect, and any enforcement action taken in relation to the determination will be revoked and any prescribed fee paid may be refunded.[21]

    [21]   Fines Enforcement and Debt Recovery Act 2017 (SA) s 22(12).

16. Under s 22(13), if the Chief Recovery Officer revokes an enforcement determination on the ground referred to in s 22(10)(b), a prosecution may be commenced for the alleged offence or offences within six months of the day on which the determination was revoked, despite the fact that the time for the commencement of the prosecution may have already expired.

17. It will be recalled that the enforcement determination made in the present case was revoked under s 22(10)(f), rather than s 22(10)(b). However, s 22(15) contains a similar regime for extending the time for prosecutions in the case of revocations under ss 22(10)(d), (e) or (f). It does so by providing for a deemed expiation notice to have been issued on the date of revocation and for a deemed expiation period of 28 days from that date, with s 22(15)(d) then stating that ‘a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of that expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired)’.

18. The combined effect of the above provisions as to the consequences of revocation of an enforcement determination is to return the legal rights of the issuing authority and the recipient of the expiation notice to their state prior to that determination, and to make provision for the timing of the operation of those rights in relation to the expiation notice and expiation period.

19. The Council’s appeal raises various questions of statutory construction in relation to these legislative provisions.  It is convenient to commence with Ground 2, before turning to decide Ground 1 and the respondent’s notice of alternative contention and cross-appeal.

    Ground 2 – The expiation notice sufficiently identified the offence charged on the Information

20. Under this ground, the Council challenges the Judge’s finding that the expiation notice did not allege an offence contrary to s 174A(2) of the RTA, and therefore an expiation notice had not been given in relation to the charged offence. As a relevant notice had not been given, the longer time period under s 52(1)(a)(i) of the CPA (being six months from the expiation date) was not engaged and consequently, the Information was statute barred because the prosecution had not been commenced with the applicable shorter period (six months from commission of the alleged offence) under s 52(1)(a)(ii) of the CPA.

21. The Council and the Attorney-General, as intervenor, contend that in reaching this conclusion, the Judge erred in applying the principles governing the charging of criminal offences to the question of whether the expiation notice specified the ‘general nature’ of the alleged offence (later charged) as required by s 6(1) of the EOA and cl 1(c)(i)(A) of sch 1 of the EOR. They contend that the Judge’s reliance on the general principles governing particulars in criminal matters was erroneous. Rather, the question of whether the ‘general nature’ of the alleged offence is sufficiently described in the expiation notice was informed by the purpose for which it must be stated in the notice; namely, allowing the person to determine whether or not they wish to pay the expiation fee and enliven the bar to prosecution. The Council and the Attorney-General contend that the expiation notice in the present case adequately provided a ‘general description’ of an offence contrary to ARR r 189(1) and RTA s 174A(2) alleged against the owner of the vehicle.

22. On the other hand, the respondent contends that the only offence alleged in the expiation notice was ‘ARR189(1) Double Parking’ which was not a description (general or otherwise) of an offence against s 174A(2) of the RTA. It is the respondent’s submission that the brief shorthand description of the offence is entirely consistent with (and only consistent with) an allegation of a breach of the norm stated in ARR r 189(1) itself, and the Judge was therefore correct to hold that the Information charged an offence to which the expiation notice did not relate and was not given.

23. The Judge, in the passages of her reasons set out earlier, referred to the authorities of Johnson v Miller[22] and John Holland Pty Ltd v Hanel,[23] and remarked that ‘[i]t has long been established that a complaint or Information must tell a defendant what [law] they are alleged to have broken and how it is alleged that they have broken that law’.[24]  Although her Honour acknowledged that an expiation notice ‘does not have to correspond in every respect with the subsequent information’, she nonetheless considered that it should meet the ‘minimum requirement’ of advising the recipient what offence is alleged and when, where and how it is alleged it was committed.[25]  That ‘minimum requirement’ was described in substantially the same terms as her Honour’s description of the requirements for an Information laid in criminal proceedings.

    [22]   Johnson v Miller (1937) 59 CLR 467.

    [23]   John Holland Pty Ltd v Hanel [2016] SASC 192.

    [24]  Mathie v City of Playford [2023] SASC 145 at [51].

    [25]   Mathie v City of Playford [2023] SASC 145 at [52].

24. The Judge’s observations do not reflect the relevant requirements of the EOA and sch 1 of the EOR, as informed by the object and purpose of the scheme for the expiation of offences.[26] Parliament established a scheme for efficiently determining certain summary offences which sits outside of traditional criminal prosecutions and does not invoke the criminal jurisdiction of the Court. Properly understood, that scheme is not concerned with the charging requirements for criminal proceedings, and it was erroneous to draw any analogy between what must be included in an Information to properly advise a defendant of the case he or she must, and the less onerous provisions of the EOA and EOR relating to an expiation notice. The difference lies primarily in the purpose of the contents of an expiation notice. An expiation notice is merely concerned with providing sufficient information for the recipient to determine whether he or she wishes to expiate the offence, while the purpose of particulars in criminal proceedings is to ensure that a defendant to a criminal prosecution, and indeed the relevant court, have sufficient details of the prosecution case to understand the case the defendant must meet. The latter imposes a more onerous or rigorous requirement.

    [26]   Walker v Police [2014] SASC 32 at [27].

25. Therefore, in considering this ground of appeal, it is necessary to focus upon the terms of the statutory scheme for expiation notices established under the EOA, rather than any assumptions or preconceptions that have their genesis in criminal trial practice. The statutory requirements for the content of expiation notices are provided by s 6 of the EOA and sch 1 of the EOR.

26. As outlined earlier, s 6 of the EOA prescribes various requirements for a valid expiation notice including that it must be in the prescribed form.[27]  The relevant clause of sch 1 to the EOR provides:

    [27]   Expiation of Offences Regulations 2011 (SA) sch 1.

    Schedule 1—Forms

    1—Expiation notice

    (1)The prescribed form for an expiation notice is a form that complies with the following requirements:

    …

    (c)the form must contain an allegation that a person committed an offence or offences and specify—

    (i)—       

    (A) if the notice is to be addressed to the person as the owner or driver of a vehicle without naming or otherwise identifying the person—the vehicle registration number;

    (B)     in any other case—the name and address of the person; and

    (ii)     the general nature of the alleged offence or offences;

    (iii) the time or times and date or dates of the alleged offence or offences (but if the times or date is the same as that of the notice, the time and date need not be separately identified); and

    (iv) the place or places at which the alleged offence or offences were committed.

    …

27. It is immediately evident that there is no express requirement that the prescribed form specify the section or regulation number of the alleged offence. Rather, the form must ‘contain an allegation that a person committed an offence’ and specify the ‘general nature of the alleged offence’.

28. As outlined above, the meaning of the ‘general nature of the alleged offence or offences’ under cl 1(c)(ii) of sch 1 of the EOR is informed by the purpose of the requirement for its specification, which is to enable the recipient of an expiation notice to determine whether or not they wish to expiate the offence or offences in relation to the identified incident and engage the bar to prosecution under s 15(2) of the EOA. What is necessary to identify the ‘general nature’ will also be informed by the offence itself.

29. At issue in the present case is the extent to which it was necessary for the expiation notice to specify the particular ‘status’ which gave rise to the expiable offence; that is, whether the alleged offender was the owner of the vehicle, the owner who was also the driver of the vehicle, or another driver at the time of the alleged incident. For some expiable offences, the specification of the ‘status’ is not required by the EOA and EOR. For example, where a vehicle is found unattended in circumstances in which an offence has been committed, it may not be possible to identify any person responsible for the vehicle, much less their status as an owner or driver of the vehicle. Consistently with this, under s 6(1)(i) of the EOA, an expiation notice is permitted to be addressed to the ‘owner or driver’ without naming or otherwise identifying him or her and, under s 6(1)(j)(iii), may be affixed on the vehicle.

30. Similarly, in other cases where a vehicle is attended, an authority issuing an expiation notice, when identifying the ‘general nature of the offence’, may simply allege an offence against the owner of the vehicle and not otherwise specify the identity of the driver at the time that the alleged offence or offences occurred.  If it were otherwise, an issuing authority would be required to identify the driver and determine whether they were the owner of the vehicle at the time that the alleged offence was committed.  This would defeat the intention and efficacy of the expiation scheme where the driver could not be immediately identified.  Instead, the expiation notice places the onus on the owner of a vehicle to ‘fill in the gaps’ of an expiation notice to determine who may be properly liable for the alleged offence.

1. In a case where the owner was not also the driver, the responsibility falls to the owner to identify another person as the driver by completing a nomination under s 174A(4) of the RTA informing the issuing authority of as much. This cooperative element is a critical aspect of the expiation scheme. Failure by an owner to nominate a driver at the time of the offence may result in action being taken against the owner by the issuing authority, as stated on the expiation notice.

2. In the present case, it is to be accepted, as the respondent submits, that the single description of an offence should be considered on the basis that it was meant to refer to one offence. The respondent also contends that the expiation notice issued in this case was of a standard form designed to be used for offences against the ARR or the RTA generally, and in those circumstances the fact that the standard form happens to contain the s 174A(4) notice can be given little weight in interpreting the notice. That is, it cannot be the case that every notice using that standard form was to be understood as alleging an offence against s 174A(2).

3. Whether or not this is a standard form used to expiate offences contrary to ARR r 189, as well as offences against ARR r 189 and RTA s 174A(2), is not clear on the materials before this Court, and is ultimately not to the point. The issue for this Court is whether the expiation notice issued adequately alleged that the respondent committed an offence against s 174A(2) of the RTA.

4. For the following reasons, we are satisfied that the expiation notice did sufficiently identify the general nature of the alleged offence for the purpose of expiating an offence contrary to s 174A of the RTA.

5. First, the heading of the notice included reference to both the RTA and ARR. As the Council submits, it is to be expected that an expiation notice alleging an offence against s 174A(2) of the RTA would also refer to the ARR as the rules contain the principal offence to which s 174A(2) relates. In addition, the specification of the offence in the expiation notice includes reference to ‘double parking’[28] which encapsulates the general nature of the offence contrary to s 174A(2), and is not only a regulatory concept (and the heading to the proscription in the ARR) but also an ordinary concept widely known within the community by owners and drivers of vehicles.

   [28] Albeit alongside reference to ARR r 189(1), being the rule in which the relevant norm is located.

6. Secondly, the expiation notice was issued to the respondent by reference to a name and address (a post office box) which are those of the registered owner.

7. Thirdly, it contained the notice required under s 174A(4) of the RTA. It is only where an offence is alleged under s 174A(2) of the RTA that such notices are required to be provided pursuant to s 174A(4). While it is to be accepted that the notice required by s 174A(4) was on the rear of the expiation notice, the front of the expiation notice contained a prominent direction to the reader that ‘YOU MUST READ ALL THE INFORMATION ON THE OTHER SIDE OF THIS NOTICE’. In the circumstances, the reference to the notice required by s 174A(4) formed part of the expiation notice, and the Judge was incorrect to reject the relevance of that information by reason of the fact it was found on the rear of the expiation notice.

8. For those reasons, we are satisfied the expiation notice sufficiently identified the ‘general nature’ of the alleged offence, namely that the respondent’s vehicle was ‘double parked’ and she was liable as the owner of the vehicle. The expiation notice adequately described the general nature of an offence committed contrary to s 174A(2) of the RTA.

9. All of that said, it must be acknowledged that the expiation notice issued in this case lacked clarity. It would have been preferable had the notice clearly identified s 174A(2) of the RTA as the relevant offence provision on the front of the notice next to the word ‘Offence’, rather than the description in that location being confined to a reference to ARR r 189(1).

10. It follows from our conclusion as to the adequacy of the expiation notice in alleging the charged offence that the longer time period of six months from the relevant expiation date applied to that offence, either through the operation of s 52(1)(a)(i) of the CPA or, as explained below, by reason of the operation of s 22(15)(d) of the FEDRA (given the revocation of the enforcement determination). Either way, the proceedings were only required to be commenced within six months of the expiry of the relevant expiation period and the Information laid on 20 July 2022 was within time and was not statute barred.

11. For the reasons given we uphold this ground of appeal.

12. Having upheld appeal Ground 2, it is not strictly necessary to decide Ground 1 or the notice of alternative contention before proceeding to consider the respondent’s cross-appeal. However, having heard argument on the relevant contentions, and given they involve matters of some general importance, it is appropriate to consider appeal Ground 1 and the notice of alternative contention on the premise (contrary to our reasoning) that the expiation notice only alleged an offence against ARR r 189(1) and not the RTA s 174A(2) offence.

    Ground 1 – Even if the charged offence was not alleged in the expiation notice, the longer time limit in s 52(1)(a)(i) of the Criminal Procedure Act 1921 (SA) nevertheless applied because the charged offence arose out of the same incident as the offence in the expiation notice

13. This ground of appeal assumes that only the ARR r 189(1) offence, and not the charged RTA s 174A(2) offence, was alleged in the expiation notice. On that premise, the Council challenges the Judge’s implicit finding that s 52(1)(a)(i) of the CPA requires an identity between the charge laid on the Information and the offence alleged in the expiation notice. The Judge said:[29]

    … In this case the expiation notice falls short of what was required and was not an expiation notice for the charged offence. Accordingly, the [respondent] was not given an expiation notice and the prosecution was out of time under s 52(1) of the CPA. …

    [29]  Mathie v City of Playford [2023] SASC 145 at [54].

14. The Council contends that s 52(1)(a)(i) of the CPA extends the time to institute proceedings for not only the offence(s) alleged in an expiation notice, but also any offence ‘arising out of the same incident’ (but for which an expiation notice was not given), to within six months of the expiry of the expiation period. It is the Council’s submission that s 52(1)(a)(i) of the CPA is tethered by its language to the EOA and FEDRA and is concerned, as a matter of context and purpose, with the scheme and ‘statutory bargain’ reflected in the provisions of these Acts canvassed earlier. Consistently with those provisions, and in particular the operation of the bar on prosecutions in s 15(1) of the EOA, s 52(1)(a)(i) of the CPA should thus be construed as extending the time for prosecution for all expiable offences arising out of the relevant incident. This is so, on the Council’s argument, because the EOA, particularly in s 15(1), treats alike expiated offences described on an expiation notice and expiable offences arising out of the same incident. Therefore, it would be incongruous to construe s 52(1)(a)(i) of the CPA as limited to the offence(s) alleged in the expiation notice when this represents but part of the ‘statutory bargain’ offered to the person to whom the notice was issued.

15. Accordingly, if the Council’s contention is accepted, the relevant Information charging the respondent with an offence contrary to s 174A(2) of the RTA would have been laid within time even if (contrary to our reasoning in relation to Ground 2) the expiation offence had not alleged an offence under that section. The Information was laid on 20 July 2022, and hence within six months of the expiry of the expiation period.

16. This ground of appeal was not advanced before the Judge, but the Council submits that a determination of this issue requires no additional facts for decision. In addition, no prejudice arises to the respondent in the matter being raised for the first time before this Court, and it is an issue of some general importance which has not been previously decided by this Court.  For those reasons, the Council submits, and it is accepted, it is appropriate for this Court to consider this ground of appeal.

17. By way of elaboration, the Council’s submissions on this ground commenced with the observation that s 52(1)(a)(i) of the CPA does not contain an express requirement that there be an identity between an offence alleged in the expiation notice and the offence charged on an Information. Nor does it expressly describe the extent of the necessary relationship between the offence alleged in the expiation notice and the charged offence. It merely requires that the person charged was given an expiation notice.

18. The Council contends that the meaning and purpose of the provision for a longer time limitation for prosecution of an expiable offence under s 52(1)(a)(i) of the CPA needs to be considered in the broader context of the terms of the EOA, and those provisions which are concerned with the issue and effect of an expiation notice. This is so because the relevant terms ‘expiation notice’, ‘given to the person’ and ‘expiry of the expiation period’ used in s 52(1)(a), and the terms ‘withdrawal’, ‘notice of withdrawal’, and the ‘notice required by law to accompany the expiation notice’ in s 52(2), are defined expressions in the EOA.

19. Further, the legislative history of the relevant provisions in the CPA and EOA support this construction. The amendments to s 52 of the CPA by the Summary Procedure (Time for Making Complaint) Amendment Act 1996 (SA) were made contemporaneously with the enactment of the current expiation scheme introduced by the EOA in 1996.

20. That being so, the Council contends that s 52, properly construed, creates a statutory bar to prosecution for any offence arising out of the relevant incident, whether alleged in an expiation notice or not, when a person to whom an expiation notice is given chooses to expiate an offence. The Council contends that there is ‘like treatment’ by s 15 of the EOA of expiable offences alleged in an expiation notice, on the one hand, and those other offences arising from the same incident which are not alleged in the expiation notice, on the other. The Council submits that, conscious of the potential for a bar to prosecution to arise under ss 15(1) or (2) of the EOA in respect of any expiable offence arising out of the relevant incident, an issuing authority would not proceed to prosecute any other expiable offence arising out of the same incident until the outcome of that expiation process was known. Therefore, it follows as a result of such like treatment, that s 52 of the CPA should be construed as adopting a congruous approach.

21. The Council also relies on the combined effect of ss 6(1)(a) and (5) of the EOA; namely, that a single expiation notice may be issued expiating multiple (up to three) offences arising out of the same incident, but no further notice may be issued in respect of that incident. Nor is it possible to issue a notice, if a prosecution has commenced for the alleged offence or offences.[30]  During that period, the recipient of the notice may elect to be prosecuted for the offence to which the notice relates[31] which results in the notice being taken to have been withdrawn.[32] 

    [30]   Expiation of Offences Act 1996 (SA) s 6(1)(f).

    [31]   Expiation of Offences Act 1996 (SA) s 8.

    [32]   Expiation of Offences Act 1996 (SA) s 8(3).

22. Significantly, s 15(1) provides that expiating an offence in a notice is a bar to prosecution for ‘any other expiable offence arising out of the same incident’. That is, the statutory bar is not limited to the expiable offence alleged in the notice but any other expiable offence arising out of the same incident. Section 15(2) further provides that expiating an offence arising out of the use of a motor vehicle is a bar not only for offences committed by the recipient of the notice but for offences committed by any person.

23. The Council contends that, in light of the above, the reach of the CPA should be construed to give effect to the need for additional time required for the expiation process to be followed in accordance with provisions of the EOA. It is the Council’s submission that in those circumstances the context and purpose of the provisions support a construction that s 52(1)(a)(i) of the CPA extends to include any expiable offence ‘arising out of the same incident’; and it should be interpreted to have this effect because this provision was intended to complement the scheme (and statutory bargain) provided for under the EOA.

24. Moreover, the Council submits that the contrary construction produces a result of ‘some inconvenience’, and hence is unlikely to have been intended. That is, a situation may arise where an issuing authority would need to prosecute expiable offences not alleged in the expiation notice, but arising out of the same incident, within six months of the alleged offence, in order to comply with the shorter time limit in s 52(1)(a)(ii). This would need to be done on a separate Information while it awaited the outcome of the expiated offences. That would be so despite both the expiated offence and the charged offence being potentially subject to the bar on prosecutions in s 15 of the EOA. The Council submits that this construction does not advance the apparent purpose of affording additional time to a prosecuting authority where a decision is made to give an expiation notice which, in turn, affects whether the authority can prosecute any expiable offence arising out of the same incident.

25. The respondent, on the other hand, contends that on a plain reading of s 52(1)(a)(i) of the CPA, the provision does not apply to permit an extended or longer period within which to commence the proceedings in the circumstances of the present matter. It applies only to the time for prosecution of an offence alleged in the expiation notice, and not any other offence arising out of the same incident. Nor is there any purposive justification for the construction advanced by the Council.

26. In determining this ground of appeal, it is necessary to commence with the text of s 52(1)(a) of the CPA. This in turn requires a consideration of the correct interpretation of the words ‘if an expiation notice was given to the person’ that appear in s 52(1)(a)(i).

27. Relevantly, s 52(1)(a) is introduced by the words ‘in the case of an expiable offence’. In the context of the introductory words of s 52(1), this plainly means ‑ if the summary offence for which the person is to be prosecuted is an expiable offence. Given that s 52(1)(a) is only engaged if the particular offence with which the person is charged is itself an expiable offence, the natural meaning of the words ‘if an expiation notice was given to the person’ connotes an expiation notice in relation to the particular expiable offence for which the person is being prosecuted, as opposed to any expiation notice having been given to the person.

28. While accepting that the opening reference to an expiation notice must be to a notice which relates in some way to the charged offence, the Council contends for a construction of the opening words of s 52(1)(a)(i) to read: ‘if an expiation notice [in relation to any offence arising out of the same incident] was given to the person’. There is, however, no textual warrant in the CPA for reading the reference to an ‘expiation notice’ in this way. The words ‘the same incident’ do not appear anywhere in the CPA, and while it is to be accepted that the concept encapsulated in the phrase ‘arising from the same incident’ is a concept that is engaged in certain provisions within the broader scheme in the EOA, there is no warrant for reading in such a particular concept in the absence of any textual basis in the CPA for doing so.

29. Moreover, there is nothing in s 52(1) of the CPA, or in the EOA, which suggests Parliament’s purpose when enacting s 52(1)(a)(i) was to extend the time for the laying of charges for an offence that could have been the subject of an expiation notice but was not, by reference to whether or not an expiation notice was issued in respect of a different offence. To the contrary, s 52(1)(a)(ii) explicitly provides that an expiable offence can still be prosecuted, where it was not the subject of an expiation notice, but the prosecution must be commenced within six months of the commission of the alleged offence rather than within six months of the end of the expiation period.

30. As the respondent submits, the purpose of allowing the extended limitation period prescribed by s 52(1)(a)(i) is to ensure that where a prosecuting authority invites an alleged offender to expiate a particular offence or offences, and then later commences a prosecution for that same offence, the prosecution is not prejudiced by waiting for the period necessary to see if the person elects to expiate the offence with which he or she is later charged.

31. By contrast, the Council’s construction of s 52(1)(a)(i) would provide the prosecution a longer period within which to decide to charge a different offence, that being an offence the alleged offender never had the opportunity to expiate and with which they were ultimately charged.

32. Considered in that way, a plain reading of the text of s 52(1)(a)(i) does not produce a result that is unreasonable or absurd, or even so inconvenient as to be unlikely to have been intended.

33. Upon a proper construction of s 52(1)(a)(i), if the expiation notice did not allege an offence against s 174A(2) of the RTA (contrary to our conclusion on Ground 2), then the longer time limitation under s 52(1)(a)(i) of the CPA would not have applied. Rather, the shorter period under s 52(1)(a)(ii) would have been applicable. It provides that the prosecution must be commenced within six months from the date of the commission of the offence. Accordingly, the Information would have been laid out of time and statute barred.

34. We dismiss Ground 1. That said, it does not directly arise for consideration because, as explained earlier, we are satisfied that the RTA s 174A(2) offence was alleged in the expiation notice.

    The respondent’s Notice of Alternative Contention

35. The respondent’s notice of alternative contention concerns the effect of s 22(15)(d) of the FEDRA and its relationship with s 52(1)(a) of the CPA. In essence, the respondent contends that because there was an enforcement determination, which was then withdrawn, s 22(15)(d) of the FEDRA applies and s 52(1)(a) of the CPA has no application to the fictional expiation notice deemed to exist by operation of s 22(15) of the FEDRA. The operative provision is s 22(15)(d), and the longer time limitation period of six months from the deemed expiation date applies by force of that provision. Further, regardless of the reach of s 52(1)(a)(i) of the CPA, the operation of the longer time limit under s 22(15)(d) of the FEDRA is confined to the offence alleged in the expiation notice.

36. If, as we have held above in the context of Ground 2, it is to be accepted that the RTA s 174A(2) offence was alleged in the expiation notice, then this alternative contention cannot assist the respondent. The longer period would continue to apply. It would do so either by direct operation of s 22(15)(d) of the FEDRA (as the respondent contends), or because it allows or invokes the operation of s 52(1)(a)(i) of the CPA (as the Council contends). The alternative contention would only assist the respondent on the premise (which we have rejected) that the expiation notice only alleged an offence under ARR r 189(1) and not RTA s 174A(2). It follows that the alternative contention does not, strictly speaking, arise for consideration. However, for the reasons mentioned, we propose to address it.

1. As outlined above, an enforcement determination was made in the present case, and on 11 March 2022, a decision was made to revoke that enforcement determination under s 22(10)(f) of the FEDRA. In those circumstances, ss 22(12) and (15) of the FEDRA are applicable and provide:

   (12)If the Chief Recovery Officer revokes an enforcement determination—

   (a)   the determination will be taken to be void and of no effect (and subsection (4) is taken never to have applied in relation to the determination); and

   (b)   any enforcement action taken under section 25 in relation to the determination will be taken to have been revoked; and

   (c)   the Chief Recovery Officer may, if the Chief Recovery Officer thinks fit, refund the fee (if any) paid in accordance with subsection (6).

   …

   (15)Despite any other provision of this Act, if the Chief Recovery Officer revokes an enforcement determination on a ground referred to in subsection (10)(d), (e) or (f), the following provisions apply:

   (a)   if the period of 1 year from the date of commission of the alleged offence, or offences, has not expired, the applicant will be taken to have been given an expiation notice by the issuing authority in respect of the alleged offence, or offences, for the first time on the day on which the determination was revoked; and

   (b)   the expiation notice will also be taken to have been issued on that day; and

   (c)   the expiation period will be taken to be the period of 28 days from (and including) that day; and

   (d)   a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of that expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired).

2. In relation to s 22(15), each of sub-ss (a), (b) and (c) is a deeming provision. The effect of s 22(15)(a) was to deem the respondent to have been given an expiation notice ‘in respect of the alleged offence’ on 11 March 2022, when the Chief Recovery Officer decided to revoke the enforcement determination. The respondent contends this means that the respondent is deemed to have been given an expiation notice in respect of which the now revoked enforcement decision has been made, namely (on the argument of the respondent) the offence of double parking by a driver contrary to ARR r 189(1).

3. The effect of s 22(15)(b) was to deem the expiation notice ‘given’ to the respondent to have been ‘issued’ on 11 March 2022.

4. The effect of s 22(15)(c) was to deem the ‘expiation period’ in relation to the alleged offence to be the period ending 28 days from 11 March 2022. Importantly, s 22(15)(c) does not provide that the expiation notice itself is taken to have specified that expiation period, but rather directly deems the expiation period through the operation of s 22(15)(c). This distinction is of importance when considering whether the operation of s 22(15)(c) is such as to engage the terms of the time limitation provisions in s 52(1)(a) of the CPA, which assume an expiation period specified in an expiation notice.

5. In contrast, s 22(15)(d) is not expressed as a deeming provision but rather provides that a prosecution ‘can be commenced for the alleged offence or offences’ within six months of the expiation period deemed by s 22(15)(c). The ‘alleged offence or offences’ referred to in s 22(15)(d) means the offence, or offences that were the subject of the expiation notice to which the revocation of the enforcement determination under s 22(10) were made. The respondent contends that the alleged offence in her case was the ARR r 189(1) offence (and not, contrary to our earlier reasoning under appeal Ground 2, the RTA s 174A(2) offence).

6. In response to this, the Council argues that s 22(15)(d) of the FEDRA does not operate so as to itself, or by its own terms, provide for a longer time limitation of six months from the (deemed) expiation date. If it did, it would seem textually to be confined to allowing this longer time for offences alleged in the expiation notice (and not other offences arising out of the same incident). Rather, the Council argues, s 22(15)(d) operates to allow or invoke the operation of s 52(1)(a)(i) of the CPA and hence, as argued in the context of Ground 1, operates to apply the longer time period to all offences arising out of the relevant incident.

7. On the respondent’s argument,[33] the shorter period under s 52(1)(a)(ii) of the CPA applied to the prosecution of the RTA s 174A(2) offence, and hence it was statute barred. On the Council’s argument,[34] the longer period under s 52(1)(a)(i) of the CPA applied to the prosecution of that offence, and hence it was not statute barred.

   [33]   Which must be rejected in any event, by reason that it is premised upon Ground 2 failing.

   [34]   Which must be rejected in any event, by reason that it is premised upon Ground 1 succeeding.

8. In support of its position, the Council relies on the following matters.  First, it contends that the statutory purpose of s 22(15)(d) is confirmed in the text appearing in parentheses in that section (and emphasised below):

   a prosecution can be commenced for the alleged offence, or offences, within 6 months of the expiry of that expiation period (despite the fact that the time for the commencement of the prosecution may have already otherwise expired).

9. It is the Council’s submission that these words address the concern that in many cases the time limit provided for under s 52(1)(a) of the CPA by reference to the expiation date of the original notice will have expired. It argues that the words will have no apparent work to do if s 22(15)(d) of the FEDRA confers the right to commence a prosecution following the expiation period.

10. Secondly, the Council submits ss 22(12) and (15) of the FEDRA are apparently intended to place both the issuing authority and the recipient of the notice back in the position they were in had there been no enforcement proceedings. That being so, s 52 of the CPA must continue to be the source of power to commence proceedings rather than s 22(15)(d) for the following reasons:

    - Section 52(1) of the CPA is qualified by s 52(2) in a manner that is not replicated in s 22(15)(d) of the FEDRA. This qualification benefits the recipient. The recipients of a deemed notice would stand to be worse off than they would otherwise have been if the erroneous enforcement determination had not been made.

    - Section 22(15)(d) of the FEDRA in referring to the prosecution of ‘the alleged offence, or offences’ is apparently narrower than s 52(1)(a)(i).[35]

    [35]   This, however, assumes the correctness of appeal Ground 1, contrary to the earlier finding in these reasons.

11. In essence, the Council contends that should the alternative contention be accepted, the issuing authority and a prospective defendant would enter criminal proceedings on differing terms depending on whether there had been a revoked enforcement determination. 

12. In considering the respondent’s alternative contention, it is necessary to first consider the interrelationship between s 22(15) of the FEDRA and s 52(1) of the CPA. Beginning with the text of s 52(1)(a), the time limit is identified by reference to the ‘expiation period specified in the notice’, that notice being the expiation notice given at first instance. By contrast, s 22(15) deems a fictional expiation notice on the date when the revocation order is made and deems the expiation period to be as stated in s 22(15)(c) rather than as specified in any notice (even if fictional). By its terms, s 52(1)(a)(i) applies to an ‘expiration period specified in the notice’ which does not exist in relation to the fictional notice deemed to have been given pursuant to s 22(15).

13. The fictional expiation notice deemed by s 22(15) does not create or require any additional fictional ‘specified’ period because s 22(15)(d) creates and enacts a period that acts in place of the specified period in the initial expiation notice. If s 52(1)(a)(i) was engaged by the deemed ‘expiation period’ provided for in s 22(15)(c), then s 22(15)(d) would be subsumed by the operation of s 52(1)(a)(i) and otiose. It is unlikely that Parliament would have intended such a result.

14. Construing s 22(15)(d) in this way would not render its concluding words in parentheses otiose. These words would still operate at least to the extent of confirming the irrelevance of the usual operation of the time limits under s 52(1)(a)(i) of the CPA by reference to the original expiation notice.

15. Moreover, textual indicators in the earlier subsections of s 22 of the FEDRA give context to the operation of s 22(15)(d). In particular, it is significant that s 22(13) of the FEDRA appears more clearly to directly apply a time limit in the case of a revoked enforcement determination, in a manner consistent with the respondent’s submissions as to the operation of s 22(15)(d) of the FEDRA.

16. It is evident that s 22(15)(d) of the FEDRA on its terms is an exhaustive provision in relation to the time limitations for the commencement of prosecutions where there has been revocation of an enforcement determination. The provisions in s 52(1)(a) of the CPA and s 22(15)(d) of the FEDRA each have different spheres of operation. Section 52(1)(a) of the CPA operates according to the terms of the initial expiation notice, and s 22(15)(d) of the FEDRA operates where a revocation determination has been made and a fictional expiation notice deemed in place of the initial expiation notice.

17. In this case, s 22(15)(d) of the FEDRA operated to fix a new time for the prosecution of the offence specified in the original expiation notice. Assuming for the purpose of this argument (and contrary to the conclusion under appeal Ground 2) that the expiation notice was only given for an offence contrary to ARR r 189(1), s 22(15)(d) would only extend the time for a prosecution of the ARR r 189(1) offence. The prosecution of the RTA s 174A(2) offence would have been out of time by application of s 52(1)(a)(ii) of the CPA. Accordingly, the Information would be statute barred.

18. Had it arisen for direct consideration, we would have upheld the respondent’s notice of alternative contention. However, for the reasons explained earlier, namely the Council’s success under Ground 2 in establishing that the expiation notice did allege the RTA s 174A(2) offence, the issue does not directly arise.

    The respondent’s cross-appeal

19. The respondent by way of cross-appeal contends that if either of the Council’s appeal grounds is allowed, and the proceeding was instituted within time, she should have been (and should now) be acquitted.  Given that we uphold the Council’s second ground of appeal, it is necessary to consider the respondent’s cross-appeal. 

20. The respondent advances two bases upon which she submits the prosecution did not prove the commission of an offence contrary to ARR r 189(1) and RTA s 174A(2).

21. First, as a matter of law, the respondent had a defence available under ARR r 165 because the driver of her vehicle, in stopping to remain in the line of traffic on the left side of the road, was complying with another rule of the ARR, namely r 132. The respondent submits that for the defence under r 165 to be made out, it was sufficient that the driver of her vehicle was complying with the norm set out in ARR r 132. There was no requirement to establish that there was no other lawful course available to the driver, or more specifically, that it was not safe for her vehicle to overtake the lane of traffic ahead of it by pulling out into the lane reserved for oncoming traffic.

22. Secondly, and in any event, the respondent contends that the Magistrate, and this Court (on a re-hearing), should not be satisfied beyond reasonable doubt that it was safe for the respondent’s vehicle to have overtaken by travelling on the right‑hand side of the road in a lane ordinarily used by oncoming traffic.

23. The ‘defence’ under ARR r 165 was not raised at the trial before the Magistrate or on the appeal hearing before the Judge.

24. Under Ground 1 of the cross-appeal, the respondent contends that a ‘defence’ pursuant to ARR r 165(e) arose by reason of the need to comply with ARR r 132(1) (without any redress to the exceptions to that rule). Under Ground 2, in the alternative and in any event, it is the respondent’s contention that even if in complying with ARR r 132(1) the respondent was required to address the exceptions to that rule, the prosecution has not established her failure to comply. This ground requires a consideration of whether r 165 is a ‘defence’ which the prosecution must disprove beyond reasonable doubt or, in fact, an exception which engages s 56 of the CPA, and which the respondent is required to establish on the balance of probabilities.

    The ‘defence’ under Australian Road Rules (SA) r 165

25. As mentioned earlier, the respondent was unrepresented during the trial in the Magistrates Court.  The prosecutor in his brief opening address, outlined the elements of the offence but identified no possible defences or exceptions to the alleged offence. During the respondent’s cross-examination of the single prosecution witness, Ms Doudle, it was apparent that the respondent’s case was that her vehicle was in a line of traffic and the driver of her vehicle had no other choice but to stop and remain stationary.

26. During his closing address, the prosecutor submitted that the Magistrate should find, based on Ms Doudle’s evidence, that ‘there was adequate room to safely move the car around to prevent … the commission of the offence’ and that ‘any suggestion by [the respondent] that there was an obstruction is unsubstantiated’.

27. The Magistrate, in his reasons, found that it would have been safe for the respondent to overtake the line of cars ahead of her by manoeuvring the vehicle onto the side of the road ordinarily used by oncoming traffic. It appears that the Magistrate proceeded on the basis that a vehicle stopped in a line of traffic where it is unsafe to overtake is ‘not stopped for the purposes of r 189’ and thus does not contravene ARR r 189 and RTA s 174A(2).

28. The Magistrate proceeded to find the respondent guilty of the offence.

    Australian Road Rules (SA) rr 165 and 132(1)

29. ARR r 165 provides:

    165—Stopping in an emergency etc or to comply with another rule

    It is a defence to the prosecution of a driver for an offence against a provision of this Part if—

    (a)the driver stops at a particular place, or in a particular way, to avoid a collision, and the driver stops for no longer than is necessary to avoid the collision; or

    (b)…

    (c)…

    (d)…

    (e)the driver stops at a particular place, or in a particular way, to comply with another provision of the Australian Road Rules or a provision of another law, and the driver stops for no longer than is necessary to comply with the other provision.

    Example for paragraph (e)—

    If a driver stops at an intersection at a stop line, stop sign, or traffic lights, or to give way to a vehicle, in accordance with the Australian Road Rules, the driver does not contravene rule 170 (stopping in or near an intersection).

    Note 1—

    See rule 125 (in Part 11) for the offence of unreasonably obstructing the path of another vehicle or a pedestrian.

    Note 2—

    Driver's vehicle is defined in the dictionary.

30. ARR r 165 is applicable to all the offences in Part 12 of the ARR.

31. The respondent contends that r 165(e) provided her with a defence at trial, and now, which the prosecution has not disproved. Namely, by stopping at the relevant location, she was complying with r 132(1).

32. ARR 132(1) provides:

    132—Keeping to the left of the centre of a road or the dividing line

    (1)A driver on a two‑way road without a dividing line or median strip must drive to the left of the centre of the road, except as permitted under rule 133 or 139(1).

    Offence provision.

    SA NOTE—

    For South Australia, see regulation 11B of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014.

    Note 1—

    Centre of the road, dividing line, median strip and two‑way road are defined in the dictionary.

    Note 2—

    For the meaning of driving to the left of something, see rule 351(3).

    Note 3—

    Rule 133 deals with driving to the right of the centre of the road to overtake another vehicle, to enter or leave a road, to move from one part of the road to another, or because of the width or condition of the road. Rule 139(1) deals with driving to the right of the centre of the road to avoid an obstruction.

33. Rule 132 operates subject to exceptions. Those exceptions are stated in ARR rr 133 and 139 which provide:

    133—Exceptions to keeping to the left of the centre of a road

    (1)This rule applies to a driver on a two‑way road without a dividing line or median strip.

    Note—

    Dividing line, median strip and two‑way road are defined in the dictionary.

    (2)     The driver may drive to the right of the centre of the road—

    (a)to overtake another driver; or

    (b)to enter or leave the road; or

    (c)to enter a part of the road of one kind from a part of the road of another kind (for example, moving to or from a service road or emergency stopping lane).

    Note—

    Centre of the road, overtake and service road are defined in the dictionary, and emergency stopping lane is defined in rule 95.

    (3)The driver may also drive to the right of the centre of the road if—

    (a)because of the width or condition of the road, it is not practicable to drive to the left of the centre of the road; and

    (b)the driver can do so safely.

    SA NOTE—

    For South Australia, see regulation 11B of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014.

    …

    139—Exceptions for avoiding obstructions on a road

    (1)A driver on a two‑way road without a dividing line or median strip may drive to the right of the centre of the road to avoid an obstruction if—

    (a)the driver has a clear view of any approaching traffic; and

    (b)it is necessary and reasonable, in all the circumstances, for the driver to drive to the right of the centre of the road to avoid the obstruction; and

    (c)the driver can do so safely.

    Note—

    Approaching, centre of the road, dividing line, median strip, obstruction, traffic and two‑way road are defined in the dictionary.

    (2)A driver on a road with a dividing line may drive to the right of the dividing line to avoid an obstruction if—

    (a)the driver has a clear view of any approaching traffic; and

    (b)it is necessary and reasonable, in all the circumstances, for the driver to drive to the right of the dividing line to avoid the obstruction; and

    (c)the driver can do so safely.

    (3)For subrule (2), if the dividing line is a single continuous dividing line to the left of a broken dividing line, a single continuous dividing line only or 2 parallel continuous dividing lines, the hazard in driving to the right of such a dividing line must be taken into account in deciding whether it is reasonable to drive to the right of the dividing line.

    (4)A driver may drive on a dividing strip, or on or over a single continuous line, or 2 parallel continuous lines, along a side of or surrounding a painted island, to avoid an obstruction if—

    (a)the driver has a clear view of any approaching traffic; and

    (b)it is necessary and reasonable to drive on the dividing strip or painted island to avoid the obstruction; and

    (c)the driver can do so safely.

    Note—

    Dividing strip and painted island are defined in the dictionary.

34. It can be seen r 133(2) permits a driver to drive to the right of the centre of a road to, inter alia, overtake another driver. Relevantly, r 139(1) provides that a driver may drive to the right of the centre of the road to avoid an obstruction if certain conditions are met, including that the driver has ‘a clear view of oncoming traffic’ and ‘the driver can do so safely’.

35. Both ARR rr 133 and 139 are qualified to an extent by ARR r 140 which provides that a driver must not overtake a vehicle unless the driver both has ‘a clear view of any approaching traffic’ and ‘can safely overtake the vehicle’.

1. The respondent contends that by reason of ARR r 165(e), the respondent’s vehicle was entitled to stop in the position it did in order to comply with r 132 which required the vehicle to drive on the left-hand side of the road. The respondent submits that r 165(e) should be construed broadly as being available whenever a driver is seeking to ‘comply’ with another rule and stopping is a necessary aspect of that compliance. That is, the availability of the ‘defence’ is not confined to where compliance with another rule such as r 132 is the only lawful course of action available to the driver. Accordingly, the respondent submits that r 132(1) authorises a driver to remain on the left-hand side of the road even in circumstances where an exception to the rule may also permit the driver to take some other course such as overtaking a vehicle. It is the respondent’s submission that the driver of her vehicle was not obliged to take every other lawful action available to comply with the rule. That is, to overtake safely using the right-hand side of an unmarked road is not to comply with r 132 but to invoke an exception to it.

2. On the respondent’s construction of ARR r 165, it follows that the driver of the respondent’s vehicle was entitled to choose to comply with r 132(1), by stopping for so long as was necessary to enable the vehicle to continue on the left‑hand side of the road. Moreover, the driver of the respondent’s vehicle was not obliged to demonstrate that it would have been unsafe for her to overtake the vehicle in front of her vehicle using the right-hand side of the road.

3. We do not accept that contention.

4. As the Council contends, ARR r 165 addresses a situation where there is a conflict of obligations under the ARR, and provides a defence when such conflict arises, for so long as it exists. The defence in r 165(e) assumes that it is necessary to comply with another provision of the ARR. However, if such a conflict arises because r 132 applies, and there is in fact an applicable exception to that obligation (as provided by r 133 or r 139), which can be invoked by the driver of the vehicle, there is no longer any conflict between the rules such as to engage r 165(e).

5. Accordingly, any determination of the applicability of ARR r 165, and whether the driver of the respondent’s vehicle was required to comply with r 132, necessarily includes a consideration of the exceptions to that rule, and in this case whether it was open to the driver of the respondent’s vehicle to overtake the vehicle or vehicles ahead in the line of traffic.

6. We dismiss Ground 1 of the cross-appeal. 

   The onus of proof under Australian Road Rules (SA) r 165

7. Before turning to Ground 2 of the cross-appeal, it is necessary to first determine which party carried the persuasive onus in relation to proof of the ‘defence’ under r 165. That is, whether the general rule that the persuasive onus lies on the prosecution to disprove all defences properly raised on the evidence applied; or, whether r 165 is an ‘exception’ or ‘excuse’ within the meaning of s 56 of the CPA such that the respondent bore the persuasive onus on the balance of probabilities.

8. Section 56 of the CPA provides:

   56—Exceptions or exemptions need not be specified or disproved by informant

   (1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the information.

   (2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the information, no proof in relation to it shall be required on the part of the informant.

9. In The Corporation of the City of Unley v Crichton,[36] Nicholson J (after referring to Overland Corner Station Pty Ltd v Gould[37] and adopting the remarks of White J) outlined the relevant principles as to the application of the predecessor to s 56 in the following terms:

   [36]   The Corporation of the City of Unley v Crichton [2021] SASC 17 at [72]-[73].

   [37]   Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428 at [28].

   …

   The following propositions are discernible in the authorities concerning the application of s 56 and its equivalents.

   (i) The question of whether an enactment contains a provision in the nature of an exemption or proviso for the purposes of s 56(2) is to be resolved by the construction of the statute under which the charge is laid. When some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”.

   (ii)     The focus on the process of statutory construction should be on the substance (“the essence or thrust”), rather than the form, of the statutory provision in question.  However, that does not mean that the form of the statutory provision is irrelevant as the way in which a section is set out may be a useful guide to the intention of Parliament with respect to any postulated exception or proviso.

   (iii) A qualification or exception which assumes the existence of facts upon which the general rule of liability is based and which depends on additional facts of a special kind is, depending on issues of substance, more likely to be a qualification or exception to which s 56(2) applies, or, as it was put by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop,

   One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule.

   (iv)    If a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.

   (v) There are many authorities indicating that the fact that defendants are likely to have peculiar knowledge bearing upon the application of the exemption or proviso, or enabling them to prove the positive of any negative averment is immaterial in the process of construction involved. However, the circumstance that a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish might well dispose the legislature to make the proof of that fact an exception within the meaning of s 56. In this respect Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop said:

   If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

   (vi) Ultimately, the application of s 56 depends upon a postulated legislative intention which is to be determined by reference to all of the relevant circumstances. This makes it difficult to state any general rule on the subject and can limit the utility of comparison of one case with another.

   As the authorities make plain, ultimately, it is a question of the proper construction of the statute under which the charge is laid. …

   (Citations omitted.)

10. More recently, in Dietman v Karpany,[38] the Court of Appeal made the following observations in relation to s 56 of the CPA:

    In criminal proceedings, the general rule is as stated by the House of Lords in Woolmington v Director of Public Prosecutions (Woolmington), namely that the persuasive onus lies on the prosecution beyond reasonable doubt to prove all elements of an offence and to disprove all defences properly raised on the evidence (that is, to disprove all defences in respect of which the defendant has discharged his evidentiary onus).  As their Lordships also explained, the general rule is subject to two exceptions: the defence of insanity and any statutory exceptions.

    …

    It is the second of the two exceptions to the general rule in Woolmington that is relevant in the present case.  One manifestation of that exception is where a statute identifies what may be described as an exception or proviso to a criminal offence rather than a defence to that offence.  The proviso or exception may, through the manner in which it is expressed, or its subject matter, disclose a legislative intention to impose a persuasive onus on the defendant to establish the condition(s) for the operation of that exception or proviso.

    (Citation omitted.)

    [38]   Dietman v Karpany (2003) 143 SASR 91 at [40], [43] (the Court); the criticism of this decision in Moriaty v Nye (2024) 114 NSWLR 560 at [156]-[176] (the Court) is noted, but relates to the application of the general principles (in the particular context of the intersecting provisions of the different legislatures in that case), rather than the statement of those principles.

11. In Chugg v Pacific Dunlop Ltd,[39] which involved criminal proceedings for contravention of a statutory offence, Dawson, Toohey and Gaudron JJ (with whom Brennan and Deane JJ generally agreed) said:

    For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule.  See Vines v Djordjevitch.  The distinction does not depend on the rules of formal logic: Dowling v Bowie.  Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction.  Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”: Director of Public Prosecutions v United Telecasters Sydney Ltd.  The intention may be discerned from express words or by implication.  See Reg v Edwards and Reg v Hunt.

    (Citations omitted.)

    [39]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257.

12. It is the respondent’s submission that for the purposes of s 174A(2) of the RTA, the elements of the offence are that the defendant is the owner of the vehicle; and the owner only commits an offence if the vehicle was involved in a prescribed offence. That is, it is an offence committed against one of the road rules. It follows that an offence is not committed by a person who has a defence to it, and therefore, on a plain reading of s 174A(2), the prosecution has the persuasive onus in proving that such an offence was committed.

13. There is some force in this contention.  However, applying the relevant principles as articulated in The Corporation of the City of Unley v Crichton and by this Court in Dietman v Karpany, we are satisfied that ARR r 165 provides for an ‘exception’ or ‘excuse’ within the meaning of s 56 of the CPA. We have reached that conclusion on the following bases. First, r 165 does not accompany the description of the offence. Rather, it is an exception to a series of offences contained in Part 12 of the ARR, including r 189(1). Secondly, although r 165 uses the language of ‘defence’ rather than ‘exception’, this has limited weight. The use of this label is capable of being understood as a convenient reference to the general or practical effect of its operation, rather than an intentional specification that it operates as a defence as opposed to exception in determining where the onus of proof lies. Thirdly, r 165 assumes the existence of facts upon which the relevant general rule of liability is based and then depends for its operation upon additional facts of a special kind. Namely, r 165 identifies five exceptions to the general rule including avoiding collisions, dealing with medical or other emergencies, and complying with another provision of the ARR. Fourthly, the additional facts are of a special kind, and concern matters generally more likely to be within the peculiar knowledge of the defendant.

14. For the above reasons, we are satisfied that s 56 of the CPA governs the operation of ARR r 165, and the respondent carried the persuasive onus of proving on the balance of probabilities that the vehicle stopped to comply with r 132, and that when doing so kept to the left of the centre of the road for no longer than was necessary.

    Ground 2 - Commission of the offence was not proven.

15. Contrary to our reasoning above, this ground of the cross-appeal was premised on ARR r 165 providing a defence and the prosecution being required to prove beyond reasonable doubt that it was ‘safe’ for the respondent to overtake the stationary vehicle or vehicles ahead of her. Rather, the question is whether the respondent established on the balance of probabilities the ‘defence’ in r 165(e) that she stopped for no longer than was necessary to comply with r 132; that is, on her case as put in cross-examination, that she stayed left of the centre line as it was not safe for the driver of her vehicle to overtake the vehicle ahead in the traffic.

16. The respondent at trial made the following submission as to why her vehicle had not moved:

    If there’s a big line of traffic and a car has just come out of [Finnis Street], I’m not going to overtake on the wrong side of the road, past a street with kids all over the place, pedestrians everywhere, it’s just not safe. …

17. However, as outlined earlier, the respondent did not give evidence, nor call any evidence at her trial.

18. On the prosecution case, there was no evidence from which the Magistrate could infer that the respondent had established the ‘defence’ in r 165(e), namely that the respondent’s vehicle was stopped ‘no longer than [was] necessary’ to comply with r 132 and none of the exceptions applied, in particular that the driver of the vehicle could not safely overtake the vehicle or vehicles ahead.

19. In the circumstances of this matter, however, the difficulty is that the respondent was unrepresented at trial. During the trial, the requirements of r 165 were not raised with her at all, notwithstanding that she indicated during her cross‑examination of Ms Doudle and her closing submissions that in effect she was stopped because she was in a stationary line of vehicles, and it was not safe to overtake. No explanation was provided to the respondent as to the operation of rr 165 and 132, nor as to the applicable persuasive burden of proof and what she needed to establish to bring her circumstances within the exception founded in r 165. Indeed, the trial proceeded on the basis that the respondent had nothing to prove. In those circumstances, we consider there has been a miscarriage of justice and it is appropriate to remit the matter for re-trial to the Magistrates Court.

    Orders

20. We make the following orders:

    1.   As to the appellant’s appeal, we grant permission to appeal on both grounds, dismiss Ground 1 and allow Ground 2.

    2.   As to the cross-appeal, we grant permission to appeal on both grounds and dismiss Ground 1 and allow Ground 2 in part.

    3.   We remit the matter to the Magistrates Court for re-trial.

    4.   We will hear the parties as to costs.