KUKURS v Hodgson
[2012] WASC 181
•30 MAY 2012
KUKURS -v- HODGSON [2012] WASC 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 181 | |
| 30/05/2012 | |||
| Case No: | SJA:1017/2012 | 17 MAY 2012 | |
| Coram: | HALL J | 17/05/12 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN LAIMONS KUKURS PAUL RICHARD HODGSON |
Catchwords: | Criminal law Traffic offence Failing to comply with traffic signal Whether failure was authorised Whether a direction by a pilot of a convoy was made by an authorised person Onus on defendant to prove exception Whether exception proved |
Legislation: | Criminal Code (WA), s 24 Criminal Procedure Act 2004 (WA), s 78(3) Road Traffic Code 2000 (WA), r 40, r 271, r 272, R 286, r 289 |
Case References: | Mowday v The State of Western Australia [2007] WASCA 165 Mulhall v Barker [2010] WASC 359 Selby v Pennings (1998) 19 WAR 520 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : MI 11649 of 2011
Catchwords:
Criminal law - Traffic offence - Failing to comply with traffic signal - Whether failure was authorised - Whether a direction by a pilot of a convoy was made by an authorised person - Onus on defendant to prove exception - Whether exception proved
(Page 2)
Legislation:
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 78(3)
Road Traffic Code 2000 (WA), r 40, r 271, r 272, R 286, r 289
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr E Leech
Respondent : Ms M J Paterson
Solicitors:
Appellant : Mr E Leech
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Mowday v The State of Western Australia [2007] WASCA 165
Mulhall v Barker [2010] WASC 359
Selby v Pennings (1998) 19 WAR 520
(Page 3)
- HALL J:
Introduction
1 On 12 January 2012 the appellant was found guilty following a trial in the Magistrates Court of an offence of failing to comply with a traffic control signal contrary to reg 40(1) of the Road Traffic Code 2000 (WA). He now seeks leave to appeal against that conviction. At the hearing of the appeal I gave brief reasons and indicated that more detailed reasons would be published.
The facts
2 The objective facts were not in dispute. They are that on 13 August 2011 the appellant was performing duties as the driver of a pilot vehicle in a convoy travelling on Roe Highway. Due to the size of the heavy load being carried by the two trucks in the convoy, two pilot vehicles were required, one in front of the trucks and one to the rear. The appellant's vehicle was the rear pilot vehicle.
3 As the convoy approached the intersection with Kalamunda Road, the appellant saw that the flashing lights that warned that traffic lights ahead are about to change came on. He communicated by radio with the lead pilot saying words to the effect, 'Lights are on the change'. The lead pilot radioed back saying, 'Keep coming'. The appellant took this as an instruction to continue ahead even though the traffic lights had now turned red.
The defence case
4 At the trial the facts were admitted. However, the appellant contested that his conduct was excused because he was acting in compliance with the direction of an authorised person, being the lead pilot. This excuse was said to be based upon reg 272(2) of the Road Traffic Code. It was accepted at the trial by counsel for the appellant, who was also counsel on appeal, that the nature of this defence was that it was an exception and that the onus was on the appellant to prove that he fell within it and that the standard to be met was the balance of probabilities.
5 The appellant gave evidence in his defence. He said that the reason he disobeyed the traffic light was that the lead pilot had, in effect, directed him to. He said that he had no reason not to believe that the lead pilot had authority to direct him to do things that would otherwise be against the Road Traffic Code. The appellant could not give the full name of the lead
(Page 4)
- pilot and did not produce any evidence that the lead pilot was, in fact, an authorised person. The lead pilot was not called as a witness.
6 It was submitted to the magistrate, and on the hearing of this appeal, that there are good reasons why, in circumstances such as this, a rear pilot vehicle should be able to pass through a red light. One of those reasons was that it is undesirable that a rear pilot vehicle would become separated from the convoy. If that occurred the rest of the convoy might continue without the safety precaution of a rear pilot. Alternatively, the convoy would have to stop to await the rear pilot. Neither of these events, it was suggested, would be conducive to the safety of other road users.
7 Some allowances for the drivers of oversize vehicles and the drivers of escorting or pilot vehicles are provided for by reg 286 of the Road Traffic Code. That regulation states that certain provisions of the Code do not apply to such drivers in circumstances where it is not practicable to comply with the provision, the driver is taking reasonable care, and the driver is complying with all other laws relating to oversize vehicles.
8 The list of provisions to which this exemption relates does not include reg 40. It does include a number of other provisions relating to requirements to stop or give way. No reliance was placed upon reg 286 in this case. That was obviously because it provides no exemption from the requirement to comply with reg 40. However, the existence of reg 286 shows that the drafter of the regulations did give consideration to the special circumstances of oversize vehicles and accompanying pilot vehicles.
9 In the end, whatever arguments might be raised regarding the desirability of pilot vehicles being permitted to act as the appellant did here, the critical question is, 'What is the law?'
10 If the provisions of the Act and the regulations are clear, there is no room for a court to construe them in a way that is contrary to their plain meaning to meet what is suggested to be a desirable objective. If the law needs to be amended, and I make no comment in that regard, that is a matter for those responsible for the content of the Road Traffic Code.
11 After hearing submissions the magistrate gave his reasons. His Honour noted that reg 286 provided no excuse for a breach of reg 40. His Honour then considered whether the excuse in reg 272 was established. He noted that there was no evidence that the lead pilot driver was an authorised person (as defined in the Road Traffic Code). He said that the appellant had failed to meet an 'evidentiary onus' of establishing
(Page 5)
- that the lead pilot was an authorised person. He noted that defence counsel had been briefed late and that the lead pilot had not been called as a witness. His Honour, therefore, found the charge proved and imposed a fine of $175.
Grounds of appeal
12 The grounds of appeal are as follows:
1. The learned magistrate erred in considering the pilot vehicle to be a separate vehicle from the trucks in the convoy when on its proper construction the convoy operating under one or more oversize vehicle permits constituted one vehicle for the purposes of Regulation 40 of the Road Traffic Code.
2. The learned magistrate erred in ruling that the defence had to adduce proof on the balance of probabilities of all the elements of Regulation 272(2) of the Road Traffic Code when as a matter of law, all the defence were obliged to do was raise the defence which then had to be negated by the prosecution beyond reasonable doubt.
3. If ground 2 fails, the learned magistrate erred in finding that the evidence adduced by the defence did not amount to proof on the balance of probabilities that the lead pilot was an authorised person within the meaning of Regulation 271.
4. If ground 2 and 3 fails, the learned magistrate erred by not finding the honest belief by the defendant that the lead pilot was an authorised person was an honest and reasonable but mistaken belief in the state of things to wit the lead pilot was an authorised person within the meaning of Regulation 271 of the Road Traffic Code.
Ground 1 - Is a convoy one vehicle?
13 Regulation 40 Road Traffic Code provides (so far as is relevant) as follows:
Stopping for circular red signal or red arrow
(1) If a traffic-control signal facing a driver displays a circular red signal -
(a) subject to regulations 42 and 43, if there is a stop line at or near the signal, the driver shall stop as near as practicable to, but before reaching, the stop line and shall not proceed beyond the stop line; or
(b) if there is a “stop here on red signal” sign at or near the signal, but no stop line, the driver shall stop as near as
- practicable to, but before reaching, the sign and shall not proceed beyond the sign; or
- (c) in the absence of a stop line, the driver -
(i) shall stop as near as practicable to but before reaching the nearest appropriate traffic-control signal and shall not proceed beyond the signal; and
(ii) shall not enter a marked foot crossing.
Points: 3 Modified penalty: 3 PU
14 In my view there is no basis for suggesting that where vehicles are travelling in convoy they should be treated as one vehicle for the purposes of reg 40. Indeed, it is quite clear from the Road Traffic Code that a driver is treated as a separate responsible entity, as would be expected.
15 Regulation 40 does not refer to vehicles but to drivers. It provides that a driver faced with a red light must stop. There is nothing in this regulation that suggests that a driver of a pilot vehicle is to be considered to be the same as the driver of the oversized vehicle, or in any other way loses his responsibility as the driver of a separate vehicle.
16 It is also relevant to note that the Road Traffic Code clearly distinguishes between the drivers of oversize vehicles and piloting vehicles when travelling in convoy. This is seen in reg 286 which refers both to the driver of a pilot vehicle and the driver of an oversize vehicle. Similar distinctions are made in reg 289. This was noted by the magistrate at the hearing. For those reasons ground 1 cannot succeed.
Ground 2 - Who had the onus of proving that the breach was authorised?
17 Regulation 272 provides as follows:
Obedience to police or authorised persons
(1) Every pedestrian and driver shall obey the signal by hand or the reasonable oral direction given by a member of the Police Force or -
(a) an authorised person, if the signal or direction given by him or her is given for the purpose of ensuring the safety, or facilitating the movement, of traffic or persons at or near the scene of an incident resulting in a dangerous situation; or
- (b) an authorised person, if the signal or direction given by him or her is given for the purpose of facilitating the movement of a fire engine or other emergency vehicle; or
(c) an authorised person, if the signal given by him or her is given for the purpose of facilitating the movement of an ambulance that is an emergency vehicle; or
(d) an authorised person, if the signal or direction given by that person is given -
(i) for the purpose of facilitating the movement of an oversize vehicle being escorted by an accredited pilot; and
(ii) while the authorised person is wearing reflective apparel of a type approved by the Commissioner of Police by notice published in the Gazette,
notwithstanding that the signal or oral direction given by any of them appears to require the pedestrian or driver to act in contravention of these regulations.
Points: 3 (driver)
Modified penalty: 2 PU (driver or pedestrian)
(2) It is a defence to any prosecution notice of a breach of these regulations that the accused was, at the time of the alleged offence, acting in conformity with a signal or direction given under subregulation (1).
18 Ground 2 suggests that reg 272(2) was not an exception which fell to the appellant to prove on the balance of probabilities. Rather, it is contended that the appellant only bore an evidentiary onus and that once the issue of authority was fairly raised by the evidence it fell to the prosecution to negate authority beyond reasonable doubt. This was not the agreed position at trial. At trial, counsel accepted the need for the appellant to prove authority. In my view, he was correct to do so.
19 This defence is of the nature that requires proof by the accused. It is an exception to the general liability for failure to comply with a traffic light created by reg 40. I refer to my decision in this regard in Mulhall v Barker [2010] WASC 359.
20 In any event, s 78(3) of the Criminal Procedure Act 2004 (WA) provides that if a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to
(Page 8)
- apply unless the accused proves, on the balance of probabilities, that it does. This offence was clearly a simple offence and s 78(3) applies to it. This was accepted on the hearing of the appeal and for those reasons ground 2 cannot succeed.
21 I note that the magistrate referred to an 'evidentiary onus', which was not consistent with the concession at the trial that this was an exception which the appellant must prove on the balance of probabilities. The phrase 'evidentiary onus' is usually used to denote the need for there to be some evidence to raise issues which then fall to the prosecution to negate. It was not an appropriate phrase to use in this context. It is possible it was merely a slip and the magistrate was referring to necessity for the appellant to adduce evidence to satisfy the onus on him to prove the exception. However, even if the magistrate was in error and thought that the appellant bore only an evidentiary onus it was an error that favoured the appellant.
Ground 3 - Was authority proved?
22 As to ground 3, the difficulty faced by the appellant was that he adduced no evidence that the lead pilot was, in fact, an authorised person.
23 Regulation 271 provides for the designation of authorised persons. That regulation states:
Authorised person to be declared
(1) For the purposes of this Division, the Commissioner of Police may declare a person or class of persons to be an authorised person.
(2) Notice of a declaration under subregulation (1) is to be published in the Gazette.
24 Two obvious difficulties for the appellant are exposed. First, there was no evidence that the lead pilot was a person or was in a class of persons who had been declared by the Commissioner of Police to be authorised. The obvious way this could have been done was by calling the lead pilot and producing the relevant Government Gazette. Neither of those things was done. This was despite the hearing having been set down at least two months earlier. This deficiency was candidly conceded by defence counsel before the magistrate. A very belated adjournment application was made but it was not strongly pressed and the refusal is not the subject of any challenge on appeal.
(Page 9)
25 The second difficulty is that the types of direction that can be given by an authorised person under reg 272(1) are quite specific in their terms. On the evidence of the appellant it is difficult to see how any of them could apply to the authority said to have been given by the lead pilot here. The one that is relied upon is that which appears in reg 272(1)(d). That provision provides that an authorised person can give a signal or direction for the purpose of facilitating the movement of an oversize vehicle and while the person is wearing apparel approved by the Commissioner of Police by notice published in the Gazette.
26 It seems to me to be questionable whether the direction given by the lead pilot was for the purpose of 'facilitating the movement' of an oversize vehicle. The direction did not have any obvious impact on the movement of the two trucks in the convoy. Rather the effect of it was to encourage the appellant to follow the trucks against a red light.
27 Furthermore, not only was there no evidence that the lead pilot in this case was an authorised person, but there was no evidence that there was compliance with the requirement for approved apparel to be worn. I note that the terms of that provision more obviously lend themselves to an authorised person being external to either of the pilot vehicles and directing traffic, but even assuming it applies in some circumstances to the pilot of a lead vehicle there was no evidence before the magistrate that the terms of reg 272(1)(d) had been complied with.
28 It was suggested by counsel for the appellant that in these circumstances the accused could rely upon the presumption of regularity. That is, that the magistrate should have presumed that the lead pilot was an authorised person. However, this was not a situation where an otherwise apparently authorised act was presumed to be lawful. Rather, this is a situation where the appellant is seeking to apply the presumption of regularity to establish each of the required elements that it would be necessary for the appellant to prove in order to establish the exemption. The presumption of regularity alone cannot meet the onus on the appellant to prove the exception. That would render the requirement that the appellant prove the exception nugatory.
29 The application for the presumption of regularity to criminal proceedings has, furthermore, been doubted. Even it is applicable it has been said it should be applied carefully in criminal proceedings: Selby v Pennings (1998) 19 WAR 520, 531 (Ipp J). See also Mowday v The State of Western Australia [2007] WASCA 165. It cannot assist the appellant here. For those reasons ground 3 cannot succeed.
(Page 10)
Ground 4 - Honest and reasonable mistake as to authority?
30 As to ground 4, whilst honest and reasonable mistake as to a state of things is a defence widely applicable to statutory offences (see s 24 Criminal Code), it is difficult to see how it could be applied in the circumstances that existed here. In this case the appellant did give some evidence but it was brief in its terms and insofar as it related to his state of mind at the time that he went through the red light, he gave this evidence:
Do you have any reason to suspect that the lead pilot may not have been approved or accredited?---None whatsoever.
Why did you disobey the traffic light?---Lead pilot is - has the authority, in my understanding, to direct me to do things which are possibly against the Traffic Act, such as take the wrong side of road et cetera, so when he says, 'Come on through,' that's what I do.
31 For an accused person to avail themselves of the defence of honest and reasonable mistake, a belief must be positively held. That means mere inadvertence or ignorance as to a matter does not constitute a state of mind which would fall within that defence provision. In this case there is no evidence that the appellant in fact had a positive belief as to the authorisation of the lead pilot. The evidence is only to the effect that the appellant had no reason to suspect that the lead pilot was not authorised. His statements in response to the questions that I have just quoted are in general terms rather than expressing a positive belief about the lead pilot.
32 In any event, for a mistake of fact to be relevant it must be a reasonable mistake. It needs to be determined whether the mistake was, in objective terms, one that a reasonable man or woman in the appellant's position might make. There was no evidence from which a conclusion as to the reasonableness of any belief by the appellant could be drawn. He did not explain the basis for any belief and in the absence of such evidence the requirement of reasonableness could not be established. In those circumstances, even assuming that s 24 of the Criminal Code applies to this provision, there was no evidence which raised it for consideration in this case. Accordingly, ground 4 must also fail.
Conclusion
33 For those reasons leave to appeal in respect of each of the grounds is refused and the appeal is dismissed.
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