Le Poidevin v Police

[2005] SASC 314

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LE POIDEVIN v POLICE

Judgment of The Honourable Justice White

22 August 2005

TRAFFIC LAW - REGULATION OF TRAFFIC - TRAFFIC SIGNS AND NOTICES

TRAFFIC LAW - OFFENCES - GENERALLY

Appeal against conviction and sentence imposed by Magistrate - appellant convicted and fined $60 for entering an intersection at a time when a red traffic light was applicable to his vehicle - contravention of r 59 of the Australian Road Rules - whether Magistrate erred in finding entry against a red traffic light constitutes an absolute offence - held that r 59 of Australian Road Rules creates an absolute obligation - held that even if obligation was not absolute appellant had no reasonable excuse for entering intersection contrary to the red light - whether any irregularity in affidavit tendered by prosecution - no irregularity existed - whether fine imposed by Magistrate together with court fees and costs was manifestly excessive - held that fine imposed was not manifestly excessive and no error in fixing court fees and costs - appeal against conviction and sentence dismissed.

Australian Road Rules Part 6,  r 56, r 57, r 58, r 59; Supreme Court Rules (SA)  r 3.04, r 97.04; Road Traffic Act 1961 s 75, s 80; Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999  (SA), reg 50.1; Road Traffic Regulations 1996 (SA) reg 3.01, referred to.
Strawinski v Hoffrichter (1983) 32 SASR 252; Allen v United Carpet Mills Pty Ltd [1989] VR 323; Franklin v Stacey (1981) 27 SASR 490; August v Fingleton (1964) SASR 22; SA Police v Oakes [1996] SASC 5464, (1996) 85 A Crim R 209; Vandenbergh v Police [2005] SASC 197, applied.
Schmalkuche v Williams (1987) 47 SASR 355; Thomas v Jakacic (1983) 34 SASR 425; R v Kurtzman (1991) 66 CCC (3d) 161, considered.

LE POIDEVIN v POLICE
[2005] SASC 314

Magistrates Appeal

1. WHITE J: On 12 May 2005 the appellant was found guilty by a Magistrate of the offence of entering an intersection at which a red traffic light applicable to his vehicle was showing, contrary to r 59(1) of the Australian Road Rules (“ARR”). A contravention of the ARR is a summary offence.[1]

   [1]Road Traffic Act 1961, s 80; Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 (SA), reg 50.1.

2. Following his conviction, the Magistrate imposed a fine of $60 and, in addition, ordered the appellant to pay costs and fees totalling $264. 

3. This appeal against conviction and sentence was instituted on 4 July 2005.  This was eight days outside the 14 days fixed by SCR 97.04 within which an appeal of this kind must be instituted.  The Court may grant an extension of time for the institution of the appeal.[2]  The respondent did not oppose the grant of an extension of time to the appellant.  In the circumstances of this case, I am satisfied that it is appropriate for the extension to be granted. 

   [2]        SCR 3.04

4. Rule 59 of the ARR provides:

   (1)If traffic lights at an intersection are showing a red traffic light the driver must not enter the intersection.

   (2)However, if the traffic lights at are an intersection with a left turn on red after stopping sign and the driver is turning left at the intersection, the driver may turn left after stopping.

   (3)Also, sub-rule (1) does not apply to a driver if rule 58(1) applies to the driver.

5. The prosecution relied upon two photographs taken by a red light camera.  The camera was located at the intersection of Regency Road and Main North Road, Enfield.  It was positioned so as to take photographs of vehicles travelling in a southerly direction on Main North Road and programmed so as to photograph vehicles which entered the intersection one half second or more after the applicable traffic light changed to a steady red signal.  Each of the two photographs also contained annotations reproducing data relative to the movement of the vehicle which the camera had been programmed to record.  In addition a police officer gave evidence concerning the manner of operation of the red light camera and the data it recorded.

6. The first photograph showed that on Sunday, 10 August 2003 at 5.18 pm, the lights applicable to traffic travelling south on Main North Road were red.  It also showed that the appellant’s vehicle had entered the intersection, its rear wheels having just crossed the continuous white line marking the boundary on the northern side of the intersection on Main North Road.  Annotations on the first photograph showed that the yellow light applicable to northbound traffic at the intersection had operated for 4.21 seconds before the continuous red light was activated.  It also showed that at the time the photograph was taken, a continuous red light had been in operation for 1.9 seconds.  The photograph showed northbound traffic in a stationary position behind the white line applicable to it and two vehicles performing a right-hand turn.  One was performing a right-hand turn so as to travel west on Regency Road and one, across the path of the appellant’s vehicle, so as to travel east on Regency Road. 

7. The second photograph was taken exactly one second after the first photograph.  Thus, at the time it was taken, the red light applicable to northbound traffic had been in operation for 2.9 seconds.  It showed the two vehicles turning right which were depicted in the first photograph to be clearing the intersection.  It also showed that the appellant’s vehicle had progressed further into the intersection.  The second photograph, unlike the first, also contained a record of the speed of the appellant’s vehicle as at the time the photograph was taken.  That speed was 26 kph.

8. The appellant gave evidence at the trial.  His evidence was that his vehicle was travelling at about 65 kph, maintaining a place in a stream of traffic.  He saw the lights change to yellow.  Although he did not know the exact distance his vehicle was before the white line when that occurred, he estimated that it could have been “50, 60, 70 feet”.  As will be seen below, that was a substantial under estimate.  The appellant said that he decided to continue through the yellow light rather than to brake and stop.  However, a vehicle travelling north on Main North Road, in the right-hand turn lane, suddenly moved forward to complete a right-hand turn without waiting to see whether or not the appellant was stopping.  This was the vehicle shown in the two photographs.  The appellant said that he had to brake severely to avoid a collision and thereby brought his vehicle to a halt within the intersection.  He waited one or two seconds, and then decided to continue through the intersection after the vehicle making the right-hand turn had cleared the intersection.  The appellant claimed that at the time the two photographs were taken, he was bringing his vehicle to a halt and hence the second photograph showed his speed as 26 kph.  Alternatively, he submitted that the first photograph showed his vehicle in a stationary position, it having been brought to a halt, and that the second photograph records his vehicle as it was moving off from the stationary position so as to clear the intersection.  The appellant accepted that the lights “could well have been red” when he entered the intersection by crossing the white line.  The appellant contended that the reason for his vehicle entering the intersection after the traffic lights had turned red (if it had occurred) was the fact that he had had no choice but to brake sharply to avoid collision with the vehicle turning across his path.  Had it not been for that evasive action, the lights would, he said, still have been on yellow at the time he entered the intersection.

9. The Magistrate considered that the obligation imposed by r 59(1) was absolute. It requires that a driver must not enter an intersection if the traffic lights are showing red.  The Magistrate considered that the effect of the appellant’s evidence was that he had conceded that his vehicle had crossed the white stop line at a time when the lights were red.  He considered that acknowledgement to be sufficient by itself to prove the offence.

10. On appeal, the appellant submitted that the Magistrate was in error in concluding that he had conceded that his vehicle had crossed the white stop line when the light was red.

11. In my opinion, there is some substance in this complaint of the vehicle.  In his evidence-in-chief the appellant had said:

    When I drove through the intersection the light was of course red.  After I stopped, actually [k1]the lights turned to red and the best thing I thought was to clear the intersection by continuing through it.  And I don’t doubt that because I had to avoid a road accident that in that sudden reduction of speed that the light actually did turn red, whereas had the circumstances been different, I believe that the lights would have remained yellow until I entered or cleared the intersection.  I don’t doubt that there was red light involved even though I wasn’t particularly looking at the red light at the time.

12. In my opinion, the evidence of the appellant in the passage just quoted is a little ambiguous.  But it does include a claim that the lights turned to red after the appellant brought his vehicle to a halt within the intersection.  In the cross-examination, it was put directly to the appellant that the lights were red when his vehicle entered the intersection.  His response was:  “It could well have been, given that I was avoiding a road accident”.

13. In my opinion, read as a whole, the appellant’s evidence is to be construed as not denying that the lights were red at the relevant time but not as an actual acknowledgment that they were red.  For this reason, I consider that the Magistrate, in his ex tempore reasons, overstated the effect of the appellant’s evidence.

14. However, in my opinion, the decision of the Magistrate was correct.  On the basis of the two photographs, the annotations and the evidence of the police officer, it should be concluded, beyond all reasonable doubt, that when the appellant’s vehicle first entered the intersection, a red light applicable to its direction of travel was operating.

15. The claim on appeal by the appellant that his vehicle may well have been stationary at the time first photograph was taken does not withstand scrutiny.  It is contradicted by the fact that only one second after that photograph was taken, the appellant’s vehicle was photographed further into the intersection and travelling at a speed of 26 kph.  There was insufficient time for the appellant’s vehicle to have moved from the stationary position, as shown in the first photograph, to the position depicted in the second photograph and to have achieved a speed of 26 kph.  Further, it had been raining shortly before the photographs were taken.  The surface of the roadway was wet.  A spray of water, of the kind thrown up by a moving vehicle, is clearly visible from the rear wheels of the appellant’s vehicle in both photographs.  In all these circumstances, the Magistrate was correct in concluding that at the time that the appellant’s vehicle entered the intersection, the traffic lights applicable to it were red.

16. The Magistrate was also correct in concluding that r 59(1) of the ARR imposes an obligation which is absolute. Proof by the prosecution of an intention on the part of the driver at the relevant time is not an element of the offence. The obligation not to enter an intersection at which a red light is showing is not made subject to any qualification such as “without reasonable cause”. Consideration of the purpose and context of r 59, and of authority, support the conclusion that the obligation is absolute. Part 6 of the ARR, of which r 59 forms part, should be regarded as establishing a scheme as to the obligations of a driver when confronted with traffic lights showing yellow or red.[3] Rule 56 of the ARR specifies the place at or before which a driver of a vehicle approaching traffic lights showing a red traffic light must stop and provides that the driver must not proceed past that point until the traffic lights indicate that it is permissible to do so. Rule 57 governs the obligations of the driver approaching traffic lights showing a yellow traffic light. It provides (relevantly):

    [3]        Strawinski v Hoffrichter (1983) 32 SASR 252; Allen v United Carpet MillsPty Ltd [1989] VR 323.

    57      Stopping for a yellow traffic light or arrow

    (1)     A driver approaching or at traffic lights showing a yellow traffic light must stop:

    (a)if there is a stop line at or near the traffic lights, and the driver can stop safely before reaching the stop line — as near as practicable to, but before reaching, the stop line; or

    (b)if there is no stop line at or near the traffic lights or arrows and the driver can stop safely before reaching the traffic lights — as near as practicable to, but before reaching, the nearest or only traffic lights; or

    (c)if the traffic lights are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection — before entering the intersection;

    and must not proceed past the stop line or nearest or only traffic lights, or into the intersection (as the case may be), until the traffic lights shown a green or flashing yellow traffic light or no traffic light.

    Offence provision.

    (2)     …

    (3)If the traffic lights or traffic arrows (as the case may be) are at an intersection and the driver is not able to stop safely under subrule (1) or (2) (as the case may be) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely.

17. The obligations imposed by r 57 are subject to the qualification in r 57(3), that if the driver is not able to stop safely in accordance with the obligations contained in sub-rules (1) and (2) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely. Rule 58 provides for a circumstance in which a driver does not have to stop at a red light, namely, where there is, at the same time, a green turn arrow. It is to be observed that the obligations contained in r 59 are not subject to any qualification of the kind contained in r 57(3).

18. It should be accepted that the purpose of r 59, and indeed the ARR generally, is to promote public safety. The risk of collision and consequent injury or damage as a result of vehicles entering intersections against a red light is obvious. The purpose of r 59 is to reduce, if not to eliminate, that risk. Statutes whose purpose is the safeguarding of the public by prohibiting certain acts are commonly construed as imposing obligations which are absolute.[4] 

    [4]        Franklin v Stacey (1981) 27 SASR 490.

19. It is not uncommon for an obligation such as that imposed by r 59 of the ARR to be construed as absolute. The decisions in August v Fingleton[5], Franklin v Stacey[6], SA Police v Oakes[7], and Vandenbergh v Police[8] provide examples.

    [5] (1964) SASR 22.

    [6] (1981) 27 SASR 490.

    [7] [1996] SASC 5464 (1996) 85 A Crim R 209.

    [8] [2005] SASC 197.

20. Prior to 1999, the obligation on a driver to stop at a red traffic light was contained in s 75(1) of the Road Traffic Act 1961 (SA) and reg 3.01 of Regulations made pursuant to that Act. In Strawinski v Hoffrichter[9], Mitchell J construed s 75 as creating an absolute obligation. The Magistrate regarded that decision as being equally applicable to r 59 of the ARR. In my opinion, he was correct to do so. I note that Strawinski v Hoffrichter was referred to with approval in the later cases of Schmalkuche v Williams[10] and Thomas v Jakacic[11].

    [9] (1983) 32 SASR 252.

    [10] (1983) 34 SASR 425.

    [11] (1987) 47 SASR 355.

21. Finally, I note that in SA Police v Oakes Perry J referred with approval to the decision of the Ontario Court of Appeal in R v Kurtzman[12] in which it had been held that the offence of failure to comply with traffic lights was an offence of absolute, rather than strict, liability, and that “due diligence” was no defence.[13]  This means that it was not necessary for the prosecution to prove an intention by the appellant to enter the intersection against the red light, nor to negative circumstances of honest and reasonable mistake of fact.

    [12] (1991) 66 CCC (3d) 161.

    [13]       SA Police v Oakes [1996] SASC 5464 at [55].

22. Even if the obligation was not absolute, in the circumstances of this case it was proved that the appellant did not have any reasonable excuse for entering the intersection contrary to the red light.  It is clear enough that it was the appellant’s own conduct which created the circumstance of him having to brake sharply in order to avoid a collision with the turning vehicle ahead of him.

23. The appellant admitted that he saw the traffic lights turn yellow.  At that time he was travelling at a speed of about 65 kph.  At that speed the appellant was travelling at 18 metres per second.  If he had maintained a constant speed of 65 kph, that means that the appellant would have travelled 75 metres from the moment when the lights turned yellow to the moment when the lights turned red.  That distance would have been a little less if the appellant was braking for part of the time.  However, as a matter of ordinary experience, the 4.21 seconds during which the lights were on yellow provided more than sufficient time in which the appellant could have brought his vehicle to a halt.  Furthermore, as already noted, the appellant’s vehicle had only just crossed the white stop line when the first photograph was taken, 1.9 seconds after the lights turned red.  The appellant, therefore, had also had part of the time during which the lights were showing red in which to bring his vehicle to a halt.  In these circumstances, the prosecution evidence, together with the appellant’s own evidence, negatived his claim that he had “no choice” but to enter the intersection after the lights had turned red.

24. The appellant also submitted that the Magistrate erred in admitting into evidence an affidavit from a police officer concerning his retrieval of the film from the red light camera.  The affidavit comprised two pages.  The only content of the second page was the jurat clause together with the deponent’s signature and the signature of the person before whom the affidavit was sworn.  It was submitted that in some way this meant that the document was not an affidavit at all, or in the alternative, if it was, that the affidavit was invalid.  I reject that submission.  The appellant did not refer to any statutory provision or authority in support of his submission.  There is no principle which supports the conclusions for which the appellant contends.  There is nothing to indicate any irregularity in the swearing of the affidavit let alone that there has been a substitution of the first page after the original was sworn.  On the contrary, each of the deponent and the person before whom the affidavit was sworn have signed the first page of the affidavit.

25. For these reasons, the appeal against conviction is dismissed.

    Appeal Against Sentence

26. Finally, the appellant complained that the fine of $60 imposed by the Magistrate together with the court fees and costs was excessive. The maximum penalty for a contravention of r 59(1) of the ARR was a fine of $1,250. In the circumstances of the offending of the appellant, the fine of $60 imposed by the Magistrate was quite modest. It certainly was not manifestly excessive. Further, no error in the fixing of the fees or costs has been shown.

    Conclusion

1. For the reasons which I have given above, an extension of time to 4 July 2005 for the institution of the appeal is granted but the appeal is dismissed.

   
   

[k1]         Should the first line of the quote read “green” instead of “red”?