Martin v Department of Transport, Energy and Infrastructure - [2010] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARTIN v THE DEPARTMENT OF TRANSPORT, ENERGY & INFRASTRUCTURE
[2010] SASC 141
Judgment of The Honourable Justice White
13 May 2010
EVIDENCE - GENERAL - JUDICIAL NOTICE - MATTERS NOT REQUIRING PROOF - PROCLAMATIONS, COMMISSIONS, ORDERS, BY-LAWS AND REGULATIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS
Appellant convicted of failing to comply with a condition of his accreditation as a taxi driver, namely failing to display his taxi driver identification – whether a condition contained in a notice published in the Government Gazette was a condition of accreditation – whether judicial notice could be taken of the gazetted notice – whether having regard to the evidence the appellant was properly convicted.
Held: appeal dismissed – gazetted notice contained a condition of accreditation to which the Court was obliged to have regard – appellant properly convicted on the evidence.
Passenger Transport Act 1994 (SA) s 31, s 28, s 26; Evidence Act 1929 (SA) s 35, s 37A; Criminal Law Consolidation Act 1935 (SA) s 353; Magistrates Court Act 1991 (SA) s 42; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Peacock v The King (1911) 13 CLR 619; Barca v The Queen (1975) 133 CLR 82, considered.

MARTIN v THE DEPARTMENT OF TRANSPORT, ENERGY & INFRASTRUCTURE
[2010] SASC 141
Magistrates Appeal

WHITE J: The appellant is a taxi driver. On the night of 23 November 2008, he was in a taxi at a taxi rank. His taxi driver identification card was not on display. A Magistrate found that he had thereby contravened s 31(7) of the Passenger Transport Act 1994 (SA) (PTA) and imposed a fine.
The appellant now appeals against that conviction, contending that the Magistrate should not have been satisfied beyond reasonable doubt that, at the time, he was driving a taxi for the purposes of a passenger transport service.
Factual Circumstances
The prosecution evidence was to the following effect. Shortly after 10.00 pm on Sunday, 23 November 2008, two “authorised officers” (Mr Mahon and Mr Cutufia) appointed under the PTA drove past the taxi rank in Elizabeth Street at Glenelg. Mr Cutufia was the driver and Mr Mahon the front seat passenger.
The appellant’s taxi was one of several standing at the rank, with one taxi in front of it, and one or two behind it. Mr Mahon saw that the driver’s photographic identification card was not on display on the dashboard of the taxi. Mr Cutufia stopped the car and Mr Mahon then approached the appellant’s taxi. By the time he reached it, the appellant had turned on the internal light in his taxi.
Mr Mahon confirmed that the appellant’s photographic identification card was not displayed. He observed that the appellant was “logged on” to the taxi company’s central booking service. In his evidence, Mr Mahon explained that in order for a driver to log on, “he’s got to put in his pin number and allocate his pin number then he gets logged on at the depot”. He said that he could see that the appellant was “logged on” because the unit’s screen in the taxi was illuminated and active. Drivers who are logged on to the booking service can be allocated or offered jobs through that service.
Mr Mahon noted that the appellant was wearing the uniform of Yellow Taxi drivers, that the taxi roof light was illuminated (indicating to him that the taxi was available for hire), and that the tariff display near the driver was “on”.
Mr Mahon said he told the appellant that he was not displaying his photographic identification, that he was “logged on” sitting at a taxi rank, and that as far as he (Mr Mahon) was concerned, he (the appellant) was “plying for hire”. The appellant responded that he was there waiting to pick up some girls, and said that he was not working. Mr Mahon answered by saying:
As far as I am concerned you’re working, you’re logged on, you’re sitting on a taxi rank, you’re in uniform, and you’re plying for hire because you are not supposed to be sitting on a taxi rank.
He then arranged for Mr Cutufia to issue the appellant with an expiation notice and went to his own car in order to get a camera with which to take some photographs of the interior of the appellant’s taxi.
The Magistrate accepted Mr Mahon’s evidence generally, but concluded that he was wrong in saying that the appellant was still logged on to the central booking system at the time that he took the photographs of the interior of the car.
Mr Cutufia did not make any observations of the interior of the taxi and was unable to say one way or other whether the roof light was illuminated, the central booking system logged on, or that the tariff meter was in the “on” position.
The appellant did not give evidence at the trial.
Statutory Provisions
The regulation of taxi drivers is contained in the PTA and the Regulations made under it. Section 28(1) of the PTA provides for the accreditation of taxi drivers:
(1)A person must not drive a public passenger vehicle for the purposes of a passenger transport service unless the person holds an appropriate accreditation under this Division.
A “public passenger vehicle” includes a taxi.[1]
[1] Passenger Transport Act 1994 (SA) s 4.
Section 31(1) provides for the accreditation of a driver to be subject to a number of conditions:
(1)     An accreditation will be subject to—
(a)     the condition that the accredited person will observe the relevant code of practice under this Act; and
(b)     other conditions (if any)—
(i)    imposed by the Minister in relation to the accreditation; or
(ii)     prescribed by the regulations or otherwise imposed under this Act.
The prosecution relied upon a notice published in the South Australian Government Gazette of 1 November 2007 making the display by taxi drivers of their Taxi Driver Identification Cards in a position giving passengers a clear unobstructed view of the information on the card a condition of accreditation. The notice published by Heather Webster, who described herself as Executive Director, Public Transport Division, Department for Transport, Energy and Infrastructure, provides (relevantly):
Pursuant to section 31(1)(b)(i) of the Passenger Transport Act 1994, it is a condition of accreditation that a person while driving a taxi for the purposes of a passenger transport service, must at all times, display their Taxi Driver Display Identification Card in a position that provides passenger with a clear, unobstructed view of all information printed on the photograph side of the card. The card must be displayed in a location at the centre top of the taxi dashboard in an approved card holder which must be fixed in a secure manner so that it will not move or be easily removed while the taxi is in service.
On the appeal the appellant contended that the prosecution had not established that this gazetted notice was a condition of accreditation which had been imposed under s 31(1)(b) of the PTA.
Section 31(7) of the PTA makes it an offence for a person to contravene or fail to comply with a condition of an accreditation. This was the offence with which the appellant was charged.
Magistrate’s Decision
At the trial, a number of matters were not in contention. The Magistrate listed these as follows:
·The defendant was the holder of an accreditation to drive a public passenger vehicle, namely a taxi, which was issued under Division 2 of Part 4 of the Passenger Transport Act 1994.
·It was a condition of that accreditation that the defendant while driving a taxi for the purposes of a passenger transport service, must, at all times, display his ID Card in a location at the centre top of the taxi dashboard.
·At the relevant time the defendant was seated in the driver’s seat of a taxi.
·The taxi was parked in a taxi rank on Elizabeth Street Glenelg.
·The defendant was wearing a taxi driver’s uniform.
·His ID [C]ard was not displayed in a location at the centre top of his taxi’s dashboard.
The issue at trial was whether the appellant was driving a taxi for the purposes of a passenger transport service at the relevant time. The appellant accepted both at trial and on appeal that he was driving the taxi at the relevant time. Accordingly the trial involved a consideration of the appellant’s subjective purpose. The Magistrate resolved that issue in favour of the prosecution. He referred to the fact that the appellant was parked at a taxi rank, was in uniform, had illuminated the taxi roof light, was logged on to the central booking system, and that he had the tariff meter “on”.
As already noted, the Magistrate accepted the substance of Mr Mahon’s evidence. He said that he attached little weight to the appellant’s statement to Mr Mahon that he was not working but instead waiting for some girls. He regarded it as a self-serving statement untested by cross-examination and considered that it had, in any event, been displaced by the strong inference arising from the circumstances described by Mr Mahon.
Submissions on the Appeal
The appellant argued that the Magistrate’s verdict was unsafe and unsatisfactory. In the alternative he argued that the Magistrate had failed to consider whether, on the evidence which he accepted, there was a hypothesis open which was consistent with his innocence. During the hearing of the appeal, the appellant sought, and was granted, permission to argue an additional ground of appeal, namely, that the prosecution had not proved that the gazetted notice was a condition imposed by the Minister for the purposes of s 31(1)(b) of the PTA, and therefore that an element of the offence had not been established. It is convenient to consider this added ground first.
Was the Condition Imposed by the Minister?
The appellant contended that it had not been proved at trial that the requirement for display of his Taxi Driver Identification Card was a condition “imposed by the Minister” as contemplated by s 31(1)(b)(i), or “otherwise imposed under this Act” as contemplated by s 31(1)(b)(ii) of the PTA. This was because the notice in the Government Gazette on 1 November 2007 upon which the prosecution relied was published by Heather Webster, who was described in the notice as “Executive Director, Public Transport Division, Department for Transport, Energy and Infrastructure”. The prosecution had not tendered any evidence that the Minister had delegated his powers under the PTA to Ms Webster, or that she had been authorised in any other way to publish the notice in the Government Gazette on 1 November 2007.
The appellant did not raise this point before the Magistrate, but agitated it on the appeal following a question from the Court.
For the reasons which follow, I am satisfied that the requirement to display the Taxi Driver Identification Card was a condition of the appellant’s accreditation as a taxi driver which had been imposed by the Minister under s 31(1)(b)(i).
Section 31 vests in the Minister wide powers in relation to accreditation. Subsection (2) provides examples of a range of conditions upon which the Minister may grant accreditation, and the Minister has wide powers with respect to the variation, addition or substitution of conditions (subsections (3), (4) and (5)).
Section 26 of the PTA enables the Minister to delegate his powers:
(1)The Minister may delegate to a body or a person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this or any other Act.
(2)     A delegation under this section—
(a)     must be by instrument in writing; and
(b)     may be absolute or conditional; and
(c)     does not derogate from the power of the Minister to act in any matter; and
(d)     is revocable at will.
(3)A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.
By a delegation published in the Government Gazette on 18 December 2003, the Minister of Transport delegated his functions and powers under (amongst other provisions) s 31 of the PTA to the person for the time being holding or acting in the position of “Executive Director, Office of Public Transport, in the Department of Transport and Urban Planning”.
Prior to 18 December 2003, Ms Heather Webster had apparently been Chief Executive Officer of the Public Transport Board. However, on 18 December 2003, by a proclamation published in the Government Gazette that same day, the Governor directed that the “person holding the office of Chief Executive Officer of the Passenger Transport Board (Heather Webster) is incorporated into the Department of Transport and Urban Planning”.
By a proclamation published in the Government Gazette on 18 April 2005, the title of the Department of Transport and Urban Planning was altered to the Department for Transport, Energy and Infrastructure.
Although the Magistrate’s attention was not drawn to these gazettals, and they were not put in evidence at the trial, I consider that s 35(1) of the Evidence Act 1929 (SA) obliges this Court to take judicial notice of them. Section 35(1) provides that “a court must take judicial notice of a legislative instrument”. In subsection (2), the expression “legislative instrument” is defined to include a regulation, rule or by-law (subparagraph (c)) and a proclamation, order or notice published in the Gazette (subparagraph (d)).
The publication of the Minister’s delegations on 18 December 2003 is, in my opinion, the publication of a notice to which s 35(2)(d) of the Evidence Act refers. The proclamations published on 18 December 2003 and 18 April 2005 respectively, are plainly proclamations to which s 35(2)(d) also refers.
Counsel for the appellant contended that, despite the terms of s 35, it was necessary for the prosecution to prove (or at least produce to the Court under s 37A of the Evidence Act) the notice of delegation published in the Gazette on 18 December 2003. Counsel referred to R v Harm[2] in which it was held that the tender of the gazettal of certain regulations or proclamations may be necessary before a court can take notice of them. However, R v Harm was decided well before s 35 in its present form was enacted. As Bleby J noted in Police v Prinse, the dilemma which faced the Full Court in R v Harm has now been resolved by the mandatory effect of s 35, and the authorities prior to the enactment of the present s 35 in which it had been held that judicial notice could not be taken of notices, proclamations, and regulations in the Gazette would now have to be decided differently.[3] Accordingly, R v Harm, and the authorities cited in it to which counsel on the present appeal referred, do not assist the appellant.
[2] (1975) 13 SASR 84.
[3] (1998) 196 LSJS 267 at 279.
Counsel submitted that s 37A of the Evidence Act required, at the least, that the gazetted notices should be produced to the Court (in this case the Magistrates Court) before the Court could take judicial notice of them. Section 37A provides:
The mere production of a paper purporting to be the Gazette shall in all courts be evidence that the paper is the Gazette and was published on the day on which it bears date.
In my respectful opinion, this submission should not be accepted. On its proper construction, s 37A is facilitative. It does not require the production of a copy of the Gazette before a court can act on it: instead it enables the court to act on the mere production of a copy of a relevant gazettal, without requiring any more formal proof. Of course, when a party does wish to rely upon the content of a gazetted notice, proclamation or regulation, the requirements for procedural fairness must be observed. The opposing party must be put on notice of the intended reliance so that he or she can make submissions about the proposed use of the document. Section 35 of the Evidence Act is not intended to abrogate the requirements of procedural fairness but it does require courts, both at first instance and on appeal, to take judicial notice of gazetted regulations, proclamations and notices.
Counsel for the appellant contended that even if the Court did take judicial notice of the gazettals noted above, they did not establish that Ms Webster had been authorised by the Minister to impose the condition of accreditation. In this respect, counsel relied upon the difference in the description of the position in the Government Gazette of 18 December 2003 (“Executive Director, Office of Public Transport, in the Department of Transport and Urban Planning”) and in the gazetted notice of 1 November 2007 (“Executive Director, Public Transport Division, Department for Transport, Energy and Infrastructure”). Counsel relied in particular upon the disconformity between “Office of Public Transport” in the former notice, and “Public Transport Division” in the latter.
In my opinion, there is no substance in this submission. The difference in the titles is so minor that it should be ignored. It is clear enough that the Minister delegated his powers under s 31 to the Executive Director of that office or division in the Department of Transport and Urban Planning (now Department for Transport, Energy and Infrastructure) which is concerned with public transport. There is no reason to suppose that the minor difference in the description of the two offices suggests that there are different offices, or that Ms Webster occupies an office other than that to which the Minister delegated his functions.
The appellant did not rely on an absence of evidence to the effect that Ms Webster did in fact occupy the position of Executive Director, Public Transport Division, Department for Transport, Energy and Infrastructure as at 1 November 2007.
Because I consider that the Court is required to take judicial notice of the gazetted notices, it is not necessary, in my opinion, for the respondent to tender, as fresh evidence, the gazetted notices on the hearing of the appeal. I indicate, however, that had it been necessary to do so, I would have permitted the tender of the gazetted notices. If the point now taken by the appellant had been taken at trial, it is almost inevitable that the Magistrate would have permitted the respondent to re-open the prosecution so as to tender those documents. The respondent should not be put in any inferior position because the point was taken by the appellant for the first time on the appeal. I note that the appellant did not contend that he would be prejudiced, in any relevant way, by the tender of the gazetted documents.
I add that on the hearing of the appeal, the respondent also tendered a certificate dated 10 February 2010 of the Minister for Transport, Energy and Infrastructure certifying that Ms Webster was at all times between 24 September 2007 and 1 November 2007 an authorised delegate under s 26 of the PTA. Given that the appellant did not dispute that Ms Webster was the Executive Director, Public Transport Division, Department for Transport, Energy and Infrastructure at 1 November 2007, the Minister’s certificate relates to a matter which was not in dispute on the appeal. Accordingly, it is not necessary for me to consider whether the Minister’s certificate is the kind of certificate to which s 61(a) refers.
In summary, in my opinion, this ground of appeal fails. The prosecution had proven that the condition concerning display of the Taxi Driver Identification Card was a condition of the appellant’s accreditation to which s 31(7) of the PTA referred.
“Unsafe and Unsatisfactory” as a Ground of Appeal

As previously noted, the appellant’s first ground of appeal is that the Magistrate’s verdict was unsafe and unsatisfactory. A ground of appeal in these terms is commonly seen in appeals under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is, however, inapplicable to appeals under s 42 of the Magistrates Court Act 1991 (SA).
The present appeal is an appeal by way of rehearing.[4] The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:[5]
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.[6]
[4] Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Civil Rules 2006 (SA) r 286(1).
[5] (1990) 53 SASR 282.
[6] Ibid at 291-2.
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[7]
[7] See generally Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.
Review of the Verdict
The prosecution case that the appellant was driving a taxi for the purposes of a passenger transport service at the time that he was observed by Mr Mahon on 23 November 2008 was strong. He was wearing a taxi driver’s uniform and was seated in the driver’s seat of a taxi parked in a row of taxis on a designated taxi rank. Those matters were not in dispute. On the Magistrate’s findings there were three additional pieces of evidence: the taxi’s exterior light was illuminated; the appellant was logged on to the taxi company’s central booking service; and the tariff display inside the taxi was activated. If the appellant was not working, there was an adjacent carpark in which he could have waited for his passengers. The only matter which may have indicated that the appellant was not working was that he was not displaying his identification card as required.
On the appeal, the appellant’s counsel subjected Mr Mahon’s evidence, and the Magistrate’s acceptance of that evidence, to close scrutiny.
As to the exterior taxi light, counsel emphasised that Mr Mahon had not photographed the illuminated light, even though he had photographed the empty display holder and had not mentioned the illumination of the taxi light in the report of the incident which he submitted shortly after 23 November 2008.
As to whether the appellant had been logged on to the central booking service, Mr Mahon had given conflicting evidence. In his evidence-in-chief he said that he observed that the appellant was logged on to the central booking service both when he first spoke to him and when he returned with his camera. Mr Mahon said that he told the appellant that the fact that he was “logged on” to the central booking service was one of the reasons why he rejected the appellant’s claim that he was not “working” at the time. However, in the notes which he made at the time, Mr Mahon had recorded that the appellant had “logged off” by the time he returned with his camera. In cross-examination by reference to the photographs which he had taken, Mr Mahon said that the central booking service was switched off, but later reversed that evidence, saying that the photograph showed that the screen was activated. Counsel submitted that these changes in his evidence undermined the reliability of Mr Mahon’s evidence generally, suggesting that they indicated that he was prepared to say whatever suited his purposes at a particular time.
In relation to the tariff meter, counsel made the point that Mr Mahon had not noted in his report that the tariff meter was switched on and that the prosecution had not mentioned this evidence of Mr Mahon in its detailed opening. Counsel was critical of Mr Mahon’s failure to take a photograph of the exterior light, and the tariff meter. He submitted that if the purpose of taking a photograph of the empty identification plate was to provide corroborative evidence, then the same principle applied in relation to the exterior light and the tariff meter.
On the appeal, counsel drew attention to aspects of Mr Mahon’s evidence which he submitted indicated that it was reconstruction. On several occasions, Mr Mahon answered questions enquiring about matters of detail by saying that certain things “would have” occurred. In this context, counsel emphasised Mr Mahon’s evidence that he and Mr Cutufia may inspect up to 400 taxis in any one night. Counsel submitted that this made it unlikely that Mr Mahon could remember the detail of any one inspection without reconstruction.
I have reviewed the whole of Mr Mahon’s evidence with these criticisms in mind. Despite the criticisms made of Mr Mahon’s evidence, counsel did not point to any aspect of his evidence which was inconsistent with other incontrovertible evidence. Nor do I consider that it can be said that the Magistrate’s conclusions were glaringly improbable, or contrary to compelling inferences. The Magistrate was entitled to accept portions of Mr Mahon’s evidence and to reject other portions. Mr Mahon was cross-examined closely at the trial. On my reading of the evidence, Mr Mahon’s inconsistency about whether the central booking screen was activated at the time that he took the photograph is indicative of a simple mistake in the pressure of the courtroom rather than suggesting that Mr Mahon was prepared to say whatever suited his purposes at the time.
I agree with counsel for the appellant that in some respects Mr Mahon’s evidence is indicative of reconstruction. This is not surprising. Mr Mahon gave his evidence some 12 months after the alleged offence had been committed, and after he had left his employment as a Public Transport Inspector. On leaving his employment he had disposed of his notes. Mr Mahon acknowledged that when first approached to give evidence (approximately four weeks before the trial) he had not been able to bring the incident immediately to mind. It is evident that he had refreshed his memory from the report which he had written and that to a certain extent he relied upon his usual practice. However, those matters do not suggest that his evidence should not be regarded as reliable. They were matters to be taken into account. The Magistrate appears to have evaluated Mr Mahon’s evidence appropriately, including by rejecting his evidence on one particular aspect.
I do not consider that it can be concluded that Mr Mahon’s evidence was inherently implausible, or glaringly improbable. I see no reason to conclude that it was inappropriate for the Magistrate to accept Mr Mahon’s evidence. This Court should respect the Magistrate’s acceptance of Mr Mahon’s evidence, especially given the close examination and scrutiny to which it was subjected at trial.
Counsel submitted that even if Mr Mahon’s evidence was accepted, it was not sufficient to prove beyond reasonable doubt his commission of the offence. Counsel referred to the application of the Peacock[8] principle in Barca v The Queen[9] in which Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused” … To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”… However, “an inference to be reasonable must rest upon something more than mere conjecture. The mere possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts and evidence”. …”[10] [Citations omitted]
Counsel contended that the possibility that the appellant had finished his shift for the night, and had commenced packing up but was waiting on the rank to pick up some girls under a pre-existing arrangement could not be excluded as a reasonable possibility. In support of this submission, counsel pointed to the lack of any motive for the commission of the offence. The appellant had his Driver Identification Card with him in his bag, and there was no reason for him to remove the card from the display holder unless he had finished his shift.
[8] Peacock v The King (1911) 13 CLR 619 at 634.
[9] (1975) 133 CLR 82.
[10] Ibid at 104.
I note that the appellant did not claim to Mr Mahon that he had just finished a shift. There was no evidence at all to that effect before the Magistrates Court. The evidence is also consistent with the appellant having just commenced a shift and having simply overlooked placing his photographic identification in the display holder.
The bare possibility that the appellant was not driving the taxi for the purposes of a passenger transport service cannot be excluded. However, in my opinion, the Magistrate did properly exclude it as a reasonable possibility. The circumstantial case against the appellant was very strong, especially when the evidence that the central booking screen was activated, the external light illuminated and the tariff meter activated was accepted. In addition, as already noted, there was an adjacent carpark in which the appellant could have waited if he was not using the taxi rank for its usual purpose.
In my opinion, the prosecution did exclude, as a reasonable hypothesis, the possibility that the appellant was not driving his taxi for the purposes of a passenger transport service at the time that he was detected by Mr Mahon on the taxi rank at Glenelg.
Conclusion
For the reasons given above, I consider that each of the appellant’s grounds of appeal fail. Accordingly, I dismiss the appeal.