Mathie v City of Playford
[2023] SASC 145
•17 October 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MATHIE v CITY OF PLAYFORD
[2023] SASC 145
Judgment of the Honourable Justice McIntyre
17 October 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT
TRAFFIC LAW - OFFENCES – PROCEDURE – INFORMATION AND COMPLAINT
TRAFFIC LAW - OFFENCES – WHO IS LIABLE – OWNER OF VEHICLE
Following a trial in the Magistrates’ Court the appellant was convicted of an offence under Rule 189(1) of the Australian Road Rules, and s 174A(2) of the Road Traffic Act 1961.
The appellant appeals the conviction. The first ground of appeal is a legal argument related to the Court’s jurisdiction that was not raised before the Magistrate. The appellant contends that she was not given an expiation notice because the only notices given to her by the respondent allege she was the driver whereas the Information alleges that she was the owner. She contends that the effect of this is that s 52(1)(a)ii of the Criminal Procedure Act1921 (SA) applies and the prosecution was not commenced within six months of the date of the offence.
The respondent contends that the appellant was given a proper notice under the Expiation of Offences Act 1996 (SA) and that the proceedings were commenced within six months of the expiry of the expiation period specified in the notice.
Held:
1. Extension of time within which to appeal granted.
2. Appeal upheld:
-The appellant was not given an expiation notice in relation to the offence with which she was charged. The prosecution was commenced out of time and ought to have been dismissed.
-Remaining grounds of appeal dismissed.
Australian Road Rules (SA) rr 165, 189(1); Road Traffic Act 1961 (SA) ss 35, 174A, 175(1)(b); Fines Enforcement and Debt Recovery Act 2017 (SA) s 22; Expiation of Offences Act 1996 (SA) ss 6, 8; Criminal Procedure Act 1921 (SA) s 52; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 9, referred to.
Pol v City of Port Adelaide Enfield [2017] SASC 116; Police v Schwerdt [2022] SASC 73; Bhagwanani v Martin (1999) 204 LSJS 449; Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 147 ACSR 227, considered.
MATHIE v CITY OF PLAYFORD
[2023] SASC 145McIntyre J:
Introduction
By Information dated 19 July 2022 the appellant was charged with an offence under Rule 189(1) of the Australian Road Rules (“ARR”) and s 174A(2) of the Road Traffic Act 1961 (“RTA”). The appellant was convicted of the offence on 27 January 2023 following a trial in the Magistrates’ Court. This is an appeal against conviction.
For the reasons that follow I allow the appeal.
Background
On 3 December 2021 the appellant was issued an expiation notice alleging that the appellant committed an offence contrary to r 189(1) of the ARR[1] (“the first notice”). The expiation period in the first notice was 31 December 2021, with an expiation fee of $104.
[1] Affidavit of Michael Stephen Woon sworn on 7 August 2023 (“first Woon Affidavit”) exhibit MSW1.
By letter dated 22 December 2022[2] the appellant responded to the first notice saying inter alia that:
As the owner of the vehicle on the 24th November 2021, I am writing to deny any wrong doing on my behalf and would like this letter to be considered as my written objection to the above alleged infringement.
[2] Affidavit of Christopher Conroy sworn on 5 September 2023 (“Conroy Affidavit”) at [5] [6] and exhibit CZC1.
The balance of the letter is largely unintelligible pseudo law, but the gist of the letter is that the appellant was denying committing any offence.
The respondent determined to treat this letter as a request for withdrawal of the first notice. It declined to withdraw the first notice and, on 6 January 2022, wrote to the appellant advising her of this indicating that payment of the expiation fee should be made by 3 February 2022.[3]
[3] Conroy Affidavit exhibit CZC2.
On 11 January 2022 the respondent issued an expiation reminder notice to the appellant (“the first reminder notice”).[4] The expiation period in the first reminder notice was 1 February 2023, with a total amount payable of $181, comprised of $104 for the expiation fee, and a $77 late fee.
[4] First Woon Affidavit exhibit MSW2.
The appellant replied to the respondent’s letter dated 6 January 2022 by letter dated 19 January 2022.[5] This letter is also couched in pseudo legal terms that are difficult to follow. However, the appellant stated that the respondent had misunderstood her letter and:
You make mention of a ‘request to withdraw’, yet NO such application was made – I simply objected to the Expiation Notice being issued and will continue with such objection until such time as the very basic burden of proof that I have requested the City of Playford council or the Manager of Expiation Branch has been met. As per the Imperial Acts Application Act, a law of the Commonwealth, I have a right to be presumed innocent until proven guilty.
[5] Conroy Affidavit exhibit CZC3.
The appellant sent a document entitled Notice of Default dated 24 January 2022[6] to the respondent. In that document the applicant objects
…to the claim by the Manager, Expiation Branch and City of Playford Council that I had in any way committed any crime or offended/broken any law as they alleged on the 24th November 2021.
[6] Conroy Affidavit exhibit CZC4.
On 16 February 2022, the respondent sent the first notice to the Fines Enforcement Unit (“FEU”) for enforcement in accordance s 22 of the Fines Enforcement and Debt Recovery Act 2017 (“FEDRA”).
On 1 March 2022, the appellant sent a letter and completed form to the respondent[7] electing to be prosecuted in respect of the first notice in accordance with s 8 of the Expiation of Offences Act 1996 (“EOA”).
[7] Conroy Affidavit exhibit CZC5.
On 11 March 2022, the FEU advised the respondent that an enforcement determination in relation to the first notice had been revoked under s 22(10)(f) of the FEDRA.[8]
[8] First Woon Affidavit exhibit MSW3.
A second expiation notice was then apparently issued on 17 March 2022 (“the second notice”). An affidavit sworn by the respondent’s solicitor on 9 August 2023 (“the first Woon affidavit”) annexed a document that purported to be the second notice.[9] An affidavit sworn by an officer of the respondent on 5 September 2023 (“the Conroy affidavit”) however indicates that the second notice was processed under s 22(15) of the FEDRA but that this notice was not generated or sent to the appellant. The reason for this is stated to be the correspondence and election notice sent by the appellant on 1 March 2023.
[9] First Woon Affidavit exhibit MSW4.
On 28 March 2023 the appellant wrote to the respondent thanking it for a letter dated 4 March 2022.[10] The respondent’s letter has not been referred to or annexed to any of the affidavits filed in this matter. The appellant reiterated her objection to the first notice and asserted her “right to be treated as innocent until proven guilty”. She referred to her election to be prosecuted slip and stated:
Please consider this as stated previously, to be my written request to have this matter determined by a court of competent jurisdiction.
[10] Conroy Affidavit exhibit CZC6.
A second expiation reminder notice (“second reminder”) was issued to the appellant on 27 April 2022.[11] The expiation period in this reminder was 18 May 2022, with a total amount payable of $181, comprised of $104 for the expiation fee, and a $77 late fee.
[11] First Woon Affidavit exhibit MSW4.
On 2 May 2022 the respondent wrote to the appellant noting that she had elected to be prosecuted and removing the late fee.[12] The letter further indicated that:
The Expiation notice has been placed on hold while we prepare a brief for our legal team.
[12] Conroy Affidavit exhibit CZC7.
On 16 June 2022 the respondent wrote to the applicant stating as follows:[13]
We note your previous correspondence in which you indicate that you wish to elect to be prosecuted in relation to the offence alleged in the Notice. To date we have not received such an election in the form prescribed by section 8(1) of the Expiation of Offences Act 1996.
Should you wish to elect to be prosecuted in relation to the offence alleged in the Notice you must complete in full and sign the “Election to be Prosecuted” on the enclosed copy of the Notice. Please return this to Council on completion.
[13] Conroy Affidavit exhibit CZC8.
The letter enclosed an Expiation Notice dated 15 June 2022 (‘the third reminder notice’) with an expiation fee of $104 to be paid by 13 July 2022.
On 8 July 2022 the appellant wrote to the respondent[14] stating that she had previously completed the relevant election to be prosecuted and had forwarded this to the respondent. She attached further copies of the documents sent on 1 March 2022. On that basis she objected to the issue of the third expiation notice.
[14] Conroy Affidavit exhibit CZC9.
On 20 July 2022 the respondent wrote to the applicant[15] confirming receipt of the appellant’s election to be prosecuted and stating that the third expiation notice had been withdrawn under s 8(3) of the EOA. The letter further indicated that the matter had been passed to the respondent’s legal advisers to institute the prosecution.
[15] Conroy Affidavit exhibit CZC10.
The expiation notices and the reminder notices bear the same reference number, B6009872. All set out the alleged offence in the same terms; an offence contrary to ARR r 189(1).
Magistrates’ Court Proceedings
An Information was laid in the Elizabeth Magistrates Court on 20 July 2022, particularising the charge as follows:
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.
The trial took place on 27 January 2023. The appellant appeared in person and without legal representation. In his ex tempore reasons for decision the Magistrate identified the issues 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.[16]
[16] Ex tempore reasons for decision of Magistrate Stratton-Smith dated 27 January 2023 at [1].
The Magistrate found that the prosecution had proved that the appellant 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. The appellant did not dispute that she owned the vehicle.
The prosecution called one witness, a Community Inspector, who gave evidence that at or around 3:12pm she and another Community Inspector were patrolling around Blakes Crossing Christian College when they observed the vehicle stopped on Boucaut Avenue such that it was stopped between other vehicles which were parked on the road and the centre of the road. One of the Community Inspectors took a photograph of the vehicle. They then proceeded to “loop around the block”. The community Inspector said that the vehicle had moved forward from where it was previously but was again stationary. They took another photo at approximately 3:15pm. They then did one final “loop around the block” and the vehicle remained in the same spot. The community Inspector took a final photo at approximately 3:17pm. The three photographs were tendered in evidence.
The appellant did not call any evidence. The Magistrate accepted the evidence of the community Inspector. He found that the appellant’s vehicle was involved in the commission of an offence under ARR r 189(1). He rejected as a reasonable possibility that the vehicle was stuck in a line of traffic as was put to the community Inspector. A conviction was recorded, the appellant was fined $400 and ordered to pay the respondent’s costs in the amount of $6,135.
Appeal
The time for lodging an appeal in this matter expired on 16 February 2023. The Notice of Appeal was filed on 7 March 2023 some three weeks out of time. The respondent opposed the application for an extension of time. There is no prejudice asserted by the respondent – the basis of the objection was that the appeal lacks merit and that there was no reasonable explanation for the delay. I grant an extension of time within which to appeal. The appeal has legal merit for the reasons that follow. There is an acceptable explanation for the delay. The appellant was unrepresented. She sent an email to the Court on 16 February 2023 seeking an extension of time but was informed that this was not the appropriate way to seek an extension. She then attempted to gain legal representation. She sent a notice of appeal to the Court on 3 March 2023 which was not accepted until the filing fee was paid on 7 March 2023. She then obtained legal representation. An amended notice of appeal was filed on 4 August 2023.
The appellant appealed on several grounds. The first ground is a legal argument related to the Court’s jurisdiction to hear the matter which was not ventilated before the Magistrate. Specifically, the appellant contends that the charge is statute barred and, as such, the Court did not have jurisdiction to hear and determine the charge. The remaining grounds relate to the appellant’s contention that the Magistrate fell into error by:
·finding that the vehicle to the left of the appellant’s vehicle was “parked”;
·finding that the appellant’s vehicle had stopped;
·importing, and then rejecting a defence that was not available to the appellant as the owner of a vehicle; or in the alternative, if ARR r 165 did apply to the appellant it is contended that the Magistrate erred in failing to consider and apply the defence under that provision; and
·finding that the prosecution had proved where the centre of the road was.
Ground 1
Section 52(1)(a) of the Criminal Procedure Act 1921 (SA) (“CPA”) establishes time limitations on issuing proceedings in relation to expiable offences:
(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;
The first notice given to the appellant states as follows:
It is alleged that you committed the following offence:
Offence: ARR189(1) Double Parking
Details of the date, time and location of the alleged offence are set out in the first notice together with details of the vehicle. This information is repeated in the same terms in all subsequent notices issued by the respondent.
Appellant’s submissions
The appellant says that the first and subsequent notices allege an offence against her as the driver of the vehicle whereas she was charged in her capacity as the owner of the vehicle, under s 174A(2) of the RTA. The appellant contends that the effect of this is that s 52(1)(a)(ii) of the CPA applies and proceedings must be commenced within six months of the date on which the offence is alleged to have been committed. The Information was filed on 20 July 2022 in the Magistrates Court some eight months after the date of the offence. Accordingly, the appellant says that the prosecution is statue barred and that the Magistrate did not have jurisdiction to hear the matter.
Respondent’s submissions
The respondent contends that the distinction between the “driver” of the vehicle as required under ARR r 189(1) and the “owner” for the purposes of s 174A of the RTA is “a fine (but false) distinction” that should be rejected for three reasons set out in the respondent’s written submissions as follows:[17]
29.1. First, the proceeding was brought against the “driver”. The originating process set out the Applicant’s name as the offender “CONTRARY to Rule 189(1) of the [Rules] and [s 174A of the RTA]”. At once it can be seen that the terms of s 189(1) of the Rules are directed at the driver, and, in any event, s 174A of the RTA does not create an offence.
29.2. Secondly, s 174A(2) of the RTA is self-evidently expansive in its operation. Subject to exceptions not presently relevant, it extends the liability and guilt of the owner of the “vehicle involved in the prescribed offence”. In that sense, the provision is facultative, and establishes a statutory fiction. It picks up the involvement of the vehicle in the prescribed offence and applies liability and guilt to the owner. That can only mean one thing: that for the purposes of r 189 of the Rules, read with s 174A(2) of the RTA, “driver” and “owner” are synonymous.
29.3. Thirdly, the argument constructed by the Applicant is six years late: it has been considered, and rejected, in a materially similar case, by Nicholson J in Pol v City of Port Adelaide Enfield [2017] SASC 116: [7]-[8], [27]. His Honour’s analysis is not plainly wrong, and should be followed as a matter of comity.
[17] FDN 11 at [28] – [29].
The respondent contends that the first notice is a proper notice for the purposes of the EOA. It identifies the date, location, the registration and the make of the vehicle. It identifies the offence as an offence under ARR r 189(1). It was sent to the applicant as the registered owner and, by reason of s 174A(2), the notice applies to pick up any reference to the driver of the vehicle and apply that to the owner.[18] The respondent contended that s 174A(2) of the RTA operates as a matter of law to permit the respondent to issue an expiation notice to the owner of a vehicle without the need to specify that the owner was the driver.
[18] TX at [22].
Relevant provisions
Australian Road Rules r 189(1) provides as follows:
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.
Section 174A(2) of the RTA provides as follows:
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.
ARR r 189(1) is a prescribed defence.[19]
[19] RTA s 35; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 9.
It is also relevant to consider the EOA which sets out the requirements of expiation notices. Section 6(1)(i) of the EOA provides as follows:
If a vehicle is involved in the commission of the alleged offence or offences and is found unattended – (the Notice) may be addressed to the owner or driver of a vehicle without naming or otherwise identifying him or her.
Expiation notices must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence to which the expiation notice relates. There is a note to s 6(1) of the EOA which states that s 174A of the RTA requires 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. This is the provision in s 174A(4) of the RTA which provides:
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).
An alleged offender may, by notice in the prescribed form, elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.[20] The effect of expiation in respect of offences to which an expiation notice relates is that no person is liable to prosecution for that offence, or other expiable offences arising out of the same incident.[21]
[20] RTA Section 8(1).
[21] RTA Section 15(1).
It is uncontentious that the first and subsequent notices in this matter contained a notice in the prescribed form for the purpose of electing to be prosecuted and further contained the notice required under s 174A(4) of the RTA.
Discussion
Section 174A(2) of the RTA permits a prosecuting authority to prosecute the owner of a vehicle if that vehicle was involved in the prescribed offence. The Information in this matter indicates that the proceedings were brought against the appellant as the owner of the vehicle. It is uncontroversial that the appellant did own the relevant vehicle at the time it is alleged that it was involved in the prescribed offence under ARR r 189(1). The issue raised by the appellant is however, that the first and subsequent notices were directed to her as the driver of the vehicle. They did not mention the alternative path to conviction against the appellant as an owner rather than as a driver under s 174A(2) of the RTA.
The decision of Nicholson J in Pol v City of Port Adelaide Enfield[22] does not address this topic. In that matter it is not clear what was contained in the expiation notice. The issue in that case was that the vehicle owner could not remember whether he was the driver on the particular occasion alleged or, if he had been the driver, he did not recall whether he committed the offence alleged. Nicholson J concluded that whilst the relevant rule targeted the “driver” of a vehicle, s 174A of the RTA extends liability for prescribed offences to the owner of the vehicle. The appellant does not dispute that this is the case and, with respect, I agree. Nicholson J noted that an owner of a vehicle who was not the driver at the relevant time can avoid liability which would otherwise attach by virtue of s 174A(2) of the RTA if, amongst other things, they provide a statutory declaration setting out the name and address of the person who was the driver at the relevant time. The statutory declaration provided in Pol did not satisfy the strict requirements of the exception provided for in s 174A(4) of the RTA. Accordingly, Nicholson J found that if the essential elements of the prescribed offence were proven, the appellant would be liable in his capacity as the owner of the vehicle. Again, I agree with that conclusion.
[22] Pol v City of Port Adelaide Enfield [2017] SASC 116. (Pol).
In Police v Schwerdt[23] Kimber J considered a situation in which the respondent had received an expiation notice alleging that he was the owner of a vehicle which had exceeded the speed limit. The respondent elected to be prosecuted. An Information was lodged in the Magistrates Court in which the vehicle registration number was different to that set out in the expiation notice. The Magistrate refused an application to amend, concluding that the amendment would have created a new charge or new proceeding and that the amendment was therefore out of time under s 52(1) of the CPA. The issue for determination on appeal was whether the notice received was “an expiation notice” for the purposes of s 52(1)(a)(i) of the CPA.
[23] Police v Schwerdt [2022] SASC 73. (Schwerdt).
Kimber J did not consider that the expiation notice had to “correspond in every respect with what was set out in the Information.”[24] The relevant issue was whether the summary offence in the proceedings and the offence in the expiation notice were the same. Kimber J found that the difference in the registration number did not mean that there were different offences; the registration number was not an element of the offence. His Honour went on to say:
This is not to suggest there did not have to be sufficient correspondence between the notice and the Information such that there was no uncertainty the notice and subsequent proceedings related to the same alleged offence. However, that requirement is distinct from the notice and the Information needing to correspond in every respect.
What matters in this case is, notwithstanding the different registration numbers, the notice and Information set out the same offence. The difference between the registration numbers in the notice and the Information did not mean the respondent had not been given ‘an expiation notice’ for the summary offence to be prosecuted in the proceedings commenced by the filing of the Information.[25]
[24] Schwerdt (no. 21) at [21].
[25] Ibid at [24] and [25].
The respondent in the present case contends that s 174A of the RTA is a legislative pathway which is available to be used in this case and that it does not alter or change the summary offence, ARR r 189(1), that was stated in both the expiation notices and the Information. The respondent further contends that s 174A(2) of the RTA is not an offence provision per se rather it has to be linked to the involvement of a vehicle in a prescribed offence. It is therefore said that the offence that was contained in the expiation notice is the same offence as that set out in the Information and therefore, according to Schwerdt, there is no new offence. I do not accept this submission.
The first and subsequent notices allege an offence contrary to “ARR189(1)” described as “double parking”. One element of that offence requires a prosecuting authority, absent the operation of s 174A(2) of the RTA, to prove that the charged person was the driver of the vehicle at the relevant time. Charging the appellant pursuant to ARR r 189(1) and s 174A(2) of the RTA, removes the need to prove that element. Section 174A(2) of the RTA provides that if the prosecuting authority can establish that a vehicle is involved in the prescribed offence the owner of the vehicle “is guilty of the offence and liable to the same penalty as is prescribed for the principal offence”. The principal offence in this context is ARR r 189(1). Section 174A(2) of the RTA is, properly understood, an offence provision. The appellant was convicted as the vehicle owner under s 174A(2) of the RTA but liable to the same penalty as that applicable to a driver under ARR r 189(1) “the principal offence”.
The printed form used by the respondent for the first and subsequent notices complies with the EOA. It is the information entered on the forms by the respondent that is inadequate and misleading. None of the notices say that the respondent is proceeding against the appellant in her capacity as the owner of the vehicle. On its face, the first notice is an allegation that she committed the relevant offence as a driver. This allegation is continued in the subsequent notices. The notices make no reference to s 174A(2) of the RTA.
In submissions the respondent contended that it was not necessary to specify that it was relying upon s 174A(2) of the RTA because it was implicit in the notice that it was directed against the owner. It is said that this is made plain by the notice on the back of the expiation notice form which indicates that if the recipient was not driving at the time they have various options available to them. This notice was required to comply with s 174A(4) of the RTA and was appropriately given. It does not however overcome the need for the prosecuting authority to state the basis upon which it asserts that the recipient of an expiation notice is liable.
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 appelant 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.[26] The Information in this matter complied with those requirements.
[26] Johnson v Miller [1937] 59 CLR 467; John Holland Pty Ltd v Hanel [2016] SASC 192.
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.
The respondent criticised the submissions of the appellant on ground one as “unduly technical”. However, this is a technical area. Strict compliance with the legislation is required. The purpose of an expiation notice is to put a person on notice of the commission of an offence and the manner in which it is alleged they are liable. This provides the person with the opportunity to pay the relevant fee and to avoid prosecution. In this case the expiation notice falls short of what was required and was not an expiation notice for the charged offence. Accordingly, the appellant was not given an expiation notice and the prosecution was out of time under s 52(1) of the CPA.For these reasons I allow the appeal.
Remaining grounds of appeal
For completeness, whilst it is not strictly necessary, I indicate that I would have dismissed the remaining grounds of appeal. The Magistrate’s findings were factual findings open on the evidence and were not glaringly improbable. The learned Magistrate accepted the evidence of the community Inspector. It was open for him to do so. In assisting a self-represented person, a Magistrate does not have an obligation to raise and consider every possible defence available to be advanced.[27] The appellant’s cross examination of the community Inspector suggested that the vehicle was “stuck in a line of traffic”. It was appropriate for the Magistrate to deal with that possibility notwithstanding it was not a defence available to the appellant as the owner of a vehicle. Finally, I reject the submission that the prosecution failed to prove where the centre of the road was. There were photographs and evidence from the community Inspector on that topic which the Magistrate was entitled to accept.
[27] Bhagwanani v Martin [1999] SASC 406 at [23] per Bleby J; Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 147 ACSR 227 at [56].
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