Musolino v Police - [2025] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MUSOLINO v POLICE
[2025] SASC 111
Judgment of the Honourable Justice Stein
10 July 2025
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - KEEPING LEFT, OVERTAKING, AND OTHER DRIVING RULES
STATUTES - SUBORDINATE LEGISLATION - CONSTRUCTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE CONFLICT OF EVIDENCE
Appeal against conviction of breaching r 127 of the Australian Road Rules (SA) (“ARR”) (keeping a minimum distance between long vehicles).
A driver of a long vehicle within the meaning of the ARR was convicted on police Information of failing to keep a minimum distance between his vehicle and another long vehicle. The driver appealed this conviction on the grounds that the Magistrate had erred by:
1.applying s 56 of the Criminal Procedure Act 1921 (SA) (“Act”) to place the onus of proving that he was overtaking on the driver himself;
2.finding that he was not in the process of overtaking;
3.accepting the evidence of the police witness as honest and reliable;
4.finding him guilty despite finding the driver to be a witness of truth.

Held (dismissing the appeal):
1.properly construed, rr 127(1)(a) and (b) are exceptions to a general rule stated in r 127(1) and therefore the Magistrate did not err in applying s 56 of the Act such that the onus of proof was on the driver;
2.the driver was not overtaking, having terminated the manoeuvre and returned to his lane, and therefore the Magistrate did not err by finding otherwise;
3.the driver’s own evidence demonstrated he was not overtaking at the time he was observed as failing to keep the minimum distance between long vehicles. Therefore, finding the driver to be a witness of truth did not make it incumbent upon the Magistrate to find him not guilty.

Australian Road Rules (SA) rr 125, 127, 128A, 129, 130(2), 131, 140; Criminal Procedure Act 1921 (SA) s 56(2); Magistrates Court Act 1991 (SA) s 42, referred to.
DeVries v Australian National Railways Commission (1993) 177 CLR 472; O’Halloran v Roth [2008] NSWCA 65; Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428; Frunks v Police (SA) [2016] SASC 120; The Corporation of the City of Unley v Crichton [2021] SASC 17; Dietman v Karpany (2023) 143 SASR 91; City of Playford v Mathie [2025] SASCA 45, discussed.
Woolmington v Director of Public Prosecutions [1935] AC 462; Rowbottom v Nicolitsi (1986) 41 SASR 576; Lloyd-Groocock v Police (2008) 102 SASR 465, considered.

MUSOLINO v POLICE
[2025] SASC 111
Magistrates Appeal: Criminal

STEIN J: On 12 May 2023, Mr Musolino, a heavy vehicle driver, was driving a B‑double prime mover on the Sturt Highway in an easterly direction. Senior Constable Andrew Cusack was driving on the Sturt Highway at the same location, travelling in a westerly direction. He saw two heavy vehicles travel pass him followed by the B-double driven by Mr Musolino. Senior Constable Cusack performed a U-turn, stopped Mr Musolino and charged him with the offence of failing to keep the required minimum distance behind the vehicle ahead.
The Magistrate found Mr Musolino guilty of breaching r 127 of the Australian Road Rules (“ARR”).
Mr Musolino appeals his conviction.
For the reasons below, I dismiss the appeal.
Case at trial
The prosecution case depended on the evidence of Senior Constable Cusack. Senior Constable Cusack gave evidence that when driving west on Sturt Highway at Annadale on 12 May 2023 he observed three heavy vehicles approaching him, the first one travelling at a speed of 98 kilometres per hour. Senior Constable Cusack saw the third vehicle so close to the rear of the middle vehicle that he decided to conduct a U-turn, caught up to the third vehicle (Mr Musolino’s vehicle) and required him to pull over. The Senior Constable gave evidence that he did not see any indication that Mr Musolino was trying to overtake and did not see Mr Musolino’s vehicle in the oncoming lane. He did not hear any radio communications between the trucks.
Mr Musolino’s case at trial included that he was in the process of performing an overtaking manoeuvre and therefore was not in breach of the ARR. Mr Musolino also contended that the Senior Constable had no proper basis for pulling him over. Mr Musolino said he was frustrated the truck in front was going too slow and that it had been speeding up and slowing down for some time. He wanted to overtake, but could not do so until they had moved through a series of S-bends where the single lane highway is marked with a solid white line. After those S‑bends, overtaking is permitted. Mr Musolino gave evidence that he put his nose out, had a quick look, and decided to pass. When he got three-quarters of the way past the vehicle, he saw an oncoming car in the distance, realised the truck was not slowing for him to pass and did the safe thing, making a decision not to overtake, slowing down and pulling back in behind the truck. He had not yet reached a safe distance when Senior Constable Cusack’s vehicle passed him seconds later.
Senior Constable Cusack asked him questions including about the minimum distance required between long vehicles. Mr Musolino said he answered Senior Constable Cusack’s questions sarcastically out of frustration and stupidity and it was in that context that he referred to the distance between vehicles incorrectly as being five metres.
Appeal grounds
The appeal grounds are as follows.
1.The Magistrate erred by placing on Mr Musolino an onus of proof; and that ARR r 127(1)(b) places the onus of proof on the prosecution to prove beyond reasonable doubt the driver was not overtaking and s 56(2) of the Criminal Procedure Act 1921 (SA) has no relevance.
2.The Magistrate was factually incorrect in finding that Mr Musolino was not in the process of overtaking.
3.The Magistrate should not have accepted Senior Constable Cusack’s evidence as honest and reliable.
4.As a consequence of finding Mr Musolino was a witness of truth and his evidence was clear, the Magistrate had to find Mr Musolino not guilty of the charge.
The Magistrate’s reasons
After setting out ARR r 127 and the definition of “overtake”, the Magistrate gave herself a number of directions. Those directions included that the accused is presumed innocent and the prosecution must prove every element of the offence beyond a reasonable doubt. The Magistrate stated that the prosecution bore the onus of proving beyond a reasonable doubt that the distance between the vehicles was less than 60 m, but Mr Musolino bore the onus of proving the exception, that he was overtaking, on the balance of probabilities. The Magistrate relied on s 56(2) of the Criminal Procedure Act 1921 (SA) (“the Act”) for the latter proposition.
The Magistrate watched the footage from the officer’s body-worn camera and in the reasons described a relatively lengthy interaction between the police officer and Mr Musolino. After Senior Constable Cusack questioned Mr Musolino about a number of matters, the Magistrate described the conversation as becoming argumentative. Mr Musolino said he did not know what he did wrong. The Senior Constable responded by asking him the required distance between long vehicles. Mr Musolino said “he kept slowing”. When asked again what minimum distance was required between long vehicles, Mr Musolino responded, “five metres”. The Magistrate stated that Senior Constable Cusack put to Mr Musolino that he was travelling five metres behind the next long vehicle and Mr Musolino responded, “well where am I supposed to go when they’re not even doing a hundred”. Mr Musolino raised the issue of overtaking, telling Senior Constable Cusack he wanted to go around the leading vehicle when he identified a clear gap in the oncoming traffic.
The Magistrate accepted Senior Constable Cusack’s evidence as honest and reliable and rejected the suggestion that Senior Constable Cusack had some sort of personal vendetta against Mr Musolino.
The Magistrate also accepted Mr Musolino as a witness of truth and accepted his account was factually reliable.
The Magistrate summarised Mr Musolino’s evidence and continued to say that there was no dispute that the section of road where they stopped was marked with broken lines. The Magistrate accepted Mr Musolino’s evidence he had travelled through the S-bends before he passed Senior Constable Cusack’s vehicle.
The Magistrate had no doubt that Mr Musolino’s vehicle was far less than 60 metres behind the vehicle in front.
The Magistrate accepted Senior Constable Cusack’s evidence that he did not observe Mr Musolino’s truck attempting to overtake.
The Magistrate concluded that Mr Musolino had not proven on the balance of probabilities that he was overtaking. On his evidence, he had unsuccessfully attempted to overtake, abandoned that course and pulled in behind the heavy vehicle in front. He was not, as a matter of fact, overtaking and, therefore, was not exempt from the requirement to keep the minimum distance behind the vehicle in front. The Magistrate accordingly found Mr Musolino guilty of the offence.
Nature of appeal
The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA). Justice Doyle set out the approach to be taken to an appeal brought pursuant to s 42 in Frunks v Police (SA) as follows:[1]
As this is an appeal by way of re-hearing, I am required to undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. It is not necessarily enough to justify dismissing the appeal that there was evidence which meant it was open to the Magistrate to reach the decision he did. If, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, I reach a different view on the evidence I must give effect to that by substituting my view for that reached by the Magistrate, or if it is appropriate by remitting the matter for a re-trial.
That said, the appeal is not a hearing de novo and so I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error. Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate, and any advantage that he may have had in making these findings.
Section 56(2) of the Criminal Procedure Act 1921 (SA)
[1] Frunks v Police (SA) [2016] SASC 120 at [11]-[12].
Section 56(2) of the Act provides as follows:
56 Exceptions or exemptions need not be specified or disproved by informant
(1) No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the information.
(2) Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the information, no proof in relation to it shall be required on the part of the informant.
Relevant authorities on the question of what constitutes an exception, exemption, proviso, excuse or qualification
In Dietman v Karpany,[2] the Court of Appeal referred to the general rule in criminal proceedings as stated by the House of Lords in Woolmington v Director of Public Prosecutions,[3] that is, that the persuasive onus lies on the prosecution beyond reasonable doubt to prove all elements of an offence and to disprove all defences properly raised on the evidence. That, however, is subject to statutory exceptions. In relation to defences, the defendant must point to sufficient evidence to raise credible evidence capable of establishing the defence as a reasonable possibility. Once the evidentiary burden has been discharged, the prosecution carries the persuasive onus to exclude or negative the defence beyond reasonable doubt.[4]
[2] (2023) 143 SASR 91.
[3] [1935] AC 462.
[4] Dietman v Karpany (2023) 143 SASR 91 at [39]-[42] (Livesey P, Doyle and Bleby JJA) referring to Dudley v Department of Primary Industries and Regions South Australia (2018) 231 LGERA 13.
Whether the relevant matter is an element of the offence or a matter of exception addressed by s 56 is determined in accordance with principles of statutory construction.[5]
[5] Dietman v Karpany (2023) 143 SASR 91 at [48]-[49] (Livesey P, Doyle and Bleby JJA).
In Overland Corner Station Pty Ltd v Gould,[6] White J addressed an offence of clearing native vegetation. The relevant statutory provision provided that a person must not clear native vegetation unless the clearance was in accordance with particular requirements. Justice White had to consider whether the words “unless the clearance is in accordance with” constituted an exception, exemption, proviso, excuse, or qualification to which s 56(2) refers such that it was not a matter the prosecution had to prove.
[6] (2010) 106 SASR 428.
Justice White referred to the relevant principles set out by Doyle CJ in Lloyd-Groocock v Police[7] as follows:[8]
1.The question whether a provision is in the nature of an exemption or proviso for the purposes of s 56(2) is to be resolved as a question of statutory interpretation. If a matter is said to be an exception to an offence, the question is whether there is a legislative intention to impose on the accused the ultimate burden of bringing himself within it.
2.The focus of statutory construction should be on the substance rather than the form of the provision. However, the form is not irrelevant as the way the section is set out may be a useful guide to Parliament’s intention in relation to any postulated exception or proviso.
3.A qualification or exception which assumes the existence of facts upon which the general rule is based and which depends on additional facts of a special kind is more likely to be a qualification or exception to which s 56(2) applies. An indication a matter may be a matter of exception rather than part of the statement of a general rule is if it sets up a new or different matter from the subject matter of the rule.
4.If a matter accompanies the description of an offence, it will ordinarily be construed as an element of the offence unless there is something in the form of the language used or the nature of the subject matter to suggest it is an exception upon which the defendant bears the onus of proof.
5.There are many authorities indicating the fact that defendants are likely to have particular knowledge bearing on the application of the proviso or exemption or enabling them to prove the positive of any negative averment is immaterial in the construction process. However, if a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish, it might dispose the legislature to make proof of that fact an exception within s 56. Thus, if the new matter is peculiarly within the knowledge of the defendant, that may provide a strong indication it is a matter of exception in respect of which the defendant bears the onus of proof.
6.Ultimately, the application of s 56 depends on a postulated legislative intention to be determined by reference to all of the relevant circumstances which makes it difficult to state any general rule and can limit the utility of comparisons between cases.[9]
[7] (2008) 102 SASR 465.
[8] (2008) 102 SASR 465 at [35]-[42].
[9] Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428 at [27]-[28].
These principles[10] were adopted and applied by the Court of Appeal in City of Playford v Mathie (“Mathie”).[11] In that case, the Court of Appeal considered ARR r 165 which sets out a number of circumstances which constitute a “defence” to the prosecution of a driver for an offence against a provision of the relevant Part of the ARR. The Court of Appeal concluded that ARR r 165 provided for an exception or excuse within s 56 of the Act because:
·r 165 did not accompany the description of the offence and was an exception to offences within Part 12;
·the language of “defence” had limited weight;
·the rule assumed the existence of facts upon which the relevant general rule was based and depended for its operation on additional facts of a special kind; and
·the additional facts concerned matters generally more likely to be within the peculiar knowledge of the defendant.
[10] In the form stated by Nicholson J in The Corporation of the City of Unley v Crichton [2021] SASC 17 at [72]-[73] adopting the remarks of White J in Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428.
[11] [2025] SASCA 45 at [176]-[181].
In Rowbottom v Nicolitsi,[12] Cox J considered s 54 of the Road Traffic Act 1961-1985 (SA). Section 54(1) provided that a driver of a vehicle on a carriageway marked with two or more lanes for traffic moving in the direction in which the vehicle was moving shall not drive his vehicle in the righthand lane except for the purpose of passing another vehicle proceeding in the same direction or except when it was not reasonably practicable to drive in any other lane. Section 54(2) contained specified qualifications including, in s 54(2)(b), that s 54(1) did not apply when the driver was making, or about to make, a righthand turn in accordance with the Act.
[12] (1986) 41 SASR 576.
In construing the section, Cox J observed that it was not the case that form was irrelevant and the way a section was set out may be a useful guide to Parliament’s intention. The fact that subsection 2(b) was set out in a separate subsection from the general prohibition was important. The circumstance that a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish might well dispose the legislature to make proof of that fact an exception. Prosecution might have inherent difficulty in proving a driver was “about to make” a righthand turn. Justice Cox was satisfied that subsection (2)(b) constituted an exception or qualification and the burden of proof lay upon the defendant seeking to rely on it.
ARR
Rule 127 of the ARR provides as follows:
127—Keeping a minimum distance between long vehicles
(1)The driver of a long vehicle must drive at least the required minimum distance behind another long vehicle travelling in front of the driver, unless the driver is—
(a) driving on a multi lane road or any length of road in a built up area; or
(b) overtaking.
Offence provision.
Note—
Built-up area, length of road, multi-lane road and overtake are defined in the dictionary.
(2)In this rule—
long vehicle means a vehicle that, together with any load or projection, is 7.5 metres long, or longer.
Note—
Vehicle includes a combination—see rule 15(d).
required minimum distance means— …
(b)for a long vehicle other than a road train that is behind a long vehicle—60 metres or, if another law of this jurisdiction specifies a different distance, that distance. …
The ARR Dictionary defines “overtake” as:
for a driver, means the action of—
(a) approaching from behind another driver travelling in the same marked lane or line of traffic; and
(b) moving into an adjacent marked lane or part of the road on which there is room for a line of traffic (whether or not the lane or part of the road is for drivers travelling in the same direction); and
(c) passing the other driver while travelling in the adjacent marked lane or line of traffic.
First appeal ground

In support of the first appeal ground, the appellant submitted that ARR r 127 sets out the actus reus of the offence and paragraphs (a) and (b) cannot be classified as an “exception, exemption, proviso, excuse or qualification” as referred to in s 56 of the Act. On the appellant’s position, ARR rr 127(1)(a) and (b) are not expressed as exceptions or provisos and they are defences which the prosecution must negative beyond reasonable doubt to secure a conviction.
The appellant contended further that the notation “[o]ffence provision” which appears below ARR r 127 demonstrates the legislature’s intention that all the matters referred to in it must be proved by the prosecution. Counsel contrasted the form of ARR r 127 with other rules which articulate a rule and then specify in a separate subrule the cases to which that rule does not apply. On the appellant’s position, the latter mechanism meets the description of an exception or qualification within the Act, whereas the form of r 127 does not.
While the appellant submitted that s 56 of the Act was not raised by the prosecution or the Magistrate during the trial and the point was never agitated, the appeal grounds did not include any asserted failure to accord procedural fairness.
On the first appeal ground, the respondent submitted that the question is one of statutory interpretation, entailing consideration of text, context and purpose to identify whether the legislature intended to impose upon the accused the burden of bringing themselves within an exception contained in ARR rr 127(1)(a) or (b). The respondent submitted that ARR r 127(1) establishes a requirement which forms part of the statement of a general rule, that is, the driver of a long vehicle must drive at least the minimum required distance behind another long vehicle travelling in front. ARR r 127(1) then uses the phrase “unless the driver is” as a conjunction joining the subject matter of the general rule with the limbs in paras (a) and (b). Paragraphs (a) and (b) contain two distinct and unrelated statements of separate matters, each of which serve to take a person outside the operation of the general rule. On the respondent’s position, the words used by the legislature, together with the choice to repose in each paragraph of sub-r (1) a distinct scenario that takes a driver outside the operation of the general rule, support the necessary implication that the legislature intended to impose on the driver the ultimate burden of bringing themselves within ARR r 127(1)(b).
The respondent contended that the distinction drawn by the appellant between separate rules of the ARR which contained qualifications in a completely separate subrule did not detract from the use of the word “unless” within the same rule as constituting a qualification or exception.
Other Provisions
Part 11 of the ARR entitled “[k]eeping left, overtaking and other driving rules” contains a number of disparate rules, some of which are designated as offence provisions.
Within pt 11, different techniques are used to express circumstances in which a statement of a general rule will not apply. For example, r 125 provides that a driver must not unreasonably obstruct the path of another driver. Rule 125(2) then sets out specific circumstances in which a driver will not unreasonably obstruct the path of another driver, such as when the driver is stopped in traffic. Rule 128A provides that a driver must not enter a children’s crossing or other crossing if the driver cannot drive through because the crossing or the road beyond is blocked. Rule 128A(2) then provides that, despite sub-r (1), a driver may enter such a crossing in circumstances specified in sub-r (2). Rule 129 provides that a driver, except on a multi‑lane road, must drive as near as practicable to the far left side of the road. Rule 129(2) then states that the rule does not apply to the rider of a motorbike or bicycle when approaching, entering or riding in a roundabout.
Other forms of expression include the use of the word “unless”. For example, Rule 130 applies to drivers driving on a multi-lane road where the speed limit is over 80 kilometres per hour for the section of road or there is a keep left unless overtaking sign. Rule 130(2) provides that the driver must not drive in the right lane unless certain conditions are met, such as that the driving is turning right or overtaking. I observe that in O’Halloran v Roth[13] the New South Wales Court of Appeal referred to r 130(2)(b) (the overtaking provision) as an “exception or excuse”.
[13] [2008] NSWCA 65 at [12] (Hodgson JA, Giles JA and Young CJ in Eq agreeing) quoting from the primary judge’s judgment.
Rule 131 provides that a driver must drive to the left of any oncoming vehicle “unless” certain situations are met, such as the driver is turning right at an intersection. Rule 131(2) further provides that the rule does not apply to certain riders (such as a rider of bicycle in certain circumstances). Thus, within the rule, two techniques are used. Rule 140 provides that a driver must not overtake a vehicle unless the driver has a clear view of any approaching traffic and the driver can safely overtake the vehicle.
It is apparent from a review of Part 11 that a number of different forms of wording are used to express a general rule and then the circumstances in which the general rule does not apply. In some cases, the word “unless” is used after the statement of a general rule and the circumstances in which the general rule does not apply are expressed in one compendious statement rather than by way of separate subrules. In some cases, a general rule is followed by a description of a set of circumstances in which a driver is entitled to act contrary to the general statement of the rule (see, for example, rr 128A(1) and (2)). In some cases, the phrase “this rule does not apply to” is employed. That formulation is used where a general rule does not apply to certain kinds of drivers (such as drivers of a bicycle) so as to remove the application of those rules in relation to those categories of drivers. In some cases, multiple stylistic techniques are used within one rule. For example, Rule 131 utilises a general statement “a driver must drive to the left … unless” certain conditions are met. However, r 131 also contains a sub-r (2) which is expressed as a separate subrule setting out the circumstances in which the rule does not apply. The qualification attaches to certain kinds of drivers and certain circumstances (for example, a bicycle rider riding on a footpath). Yet a further technique employed is to attach to the statement of a general rule the phrase “except as permitted under” a different rule.[14] Rule 165 considered in Mathie[15] provides another example of a technique employed within the ARR to set out circumstances in which a general rule does not apply.
[14] See, for example, Australian Road Rules (SA) r 132(2).
[15] [2025] SASCA 45.
Given the variety of techniques used within the ARR, I do not accept the appellant’s contention that the form of r 127 conclusively determines the question of construction. I also do not consider that the notation of “[o]ffence provision” or the specific location of that notation within any rule provides a clear guideline as to the legislative intention in relation to what may be generally described as exceptions to a rule.
The ultimate question is whether ARR r 127(1)(b) is properly construed as part of a statement of a general rule or as a statement of exception. That question is to be determined on the basis of whether a legislative intention to impose on the accused the ultimate burden of bringing himself within ARR r 127(1)(b) can be discerned.[16] The question is to be determined considering the substance, not the form, of the provision. However, the language employed remains relevant in construing a provision.
[16] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257 (Dawson, Toohey and Gaudron JJ).
The first part of ARR r 127(1) commences with the statement of a general rule, that is, a long vehicle must travel a required minimum distance behind another vehicle. The rule is thus expressed as a requirement for certain conduct, that is, driving a specified distance from the vehicle immediately in front. The word “unless” follows the statement of the general rule. It then refers to two separate circumstances which constitute exceptions which link paras (a) and (b) of sub-r (1) to the general rule. Legislative intention may be discerned from express words or by implication. In the case of ARR r 127(1) the word “unless” has been employed. The word “unless” after a statement generally is used as a conjunction between the initial statement and circumstances or matters following thereafter which constitute an exception to that initial statement. The use of the word “unless” constitutes a textual indicator supporting the respondent’s position.
As expressed, I do not consider paras (a) and (b) are requirements forming part of a statement of a general rule. Rather, I consider they constitute statements of circumstances which take a person outside the operation of the general rule. The paragraphs depend for their operation on additional facts of a special kind.
ARR r 127(1)(a) relates to the kind of road or location of road upon which the vehicle is being driven. ARR r 127(1)(b) relates to a specific driving manoeuvre, that is, overtaking, defined as the action of passing another vehicle from behind. Those two exceptions are by their nature new or different matters from the standard rule. I accept the respondent’s submission that this constitutes a textual indicator indicating the legislature intended to cast the persuasive onus on the defendant.
The location of ARR r 127(1)(b) in a separate paragraph to that of the general rule, while not conclusive, constitutes a further indicator that the legislative intention was to confer the persuasive onus on the defendant. As set out above, in Rowbottom v Nicolitsi,[17] the fact the qualification was contained in a separate subsection from the general prohibition was relevant to the conclusion the section contained an exception.
[17] (1986) 41 SASR 576.
The subject matter set out in para (b), that is, relating to a manoeuvre performed by the driver, is a matter most capable of being established by the driver, and may provide a strong indicator that it is an exception upon which the defendant bears the onus of proof. However, the same cannot be said of the subject matter set out in para (a), which relates to the kind of road (whether or not single or multi laned) and location of the road (whether or not in a built up area). Accordingly, while providing some assistance in the context of (b), this factor does not have the same weight as it may have had if the subject matters of both paragraphs were inherently most capable of being proved by the driver of the vehicle through knowledge unique to that driver.
Taking into account the matters to which I have referred, I consider that properly construed, the matters in paras (a) and (b) of sub-r (1) constitute exceptions to ARR r 127 within the meaning of s 56(2) of the Act. It follows that Mr Musolino bore the onus of establishing that he fell within ARR r 127(1)(b), that is, that he was overtaking.
It follows that the first appeal ground fails.
Other appeal grounds
As the other appeal grounds generally related to the evidence and factual findings, I address them together.
Overtake
The definition of overtake in the Dictionary to the ARR states that:
overtake, for a driver, means the action of –
(a)Approaching from behind another driver travelling in the same marked lane or line of traffic; and
(b)moving into an adjacent marked land or part of the road on which there is room for a line of traffic (whether or not the lane or part of the road is for drivers travelling in the same direction); and
(c)passing the other driver while travelling in the adjacent marked land or line of traffic.
Note—
Marked lane is defined in this dictionary.
Pursuant to ARR r 140, a driver must not overtake unless the driver has a clear view of any approaching traffic and can safely overtake the vehicle.
The appellant submitted that the process of returning back to the lane once he saw an oncoming car had to be part and parcel of the process of overtaking and there was no illegality in Mr Musolino driving safely by returning to his lane with the intention of trying to pass the vehicle ahead as soon as it was safe to do so.
I accept the respondent’s submission that the word “overtaking” used in ARR r 127(1)(b) has a temporal connotation. The definition in the ARR Dictionary envisages the completion of a manoeuvre by a driver approaching a vehicle from behind, moving alongside that vehicle and passing that vehicle. The use of the word “means” in the definition, as opposed to use of the word “includes” or similar, is consistent with an exhaustive definition. The definition of overtake does not include an attempt to overtake. The process of returning back to the lane once a driver sees an oncoming vehicle constitutes abandoning or terminating an attempted overtaking manoeuvre rather than performing an overtaking manoeuvre.
Counsel contended it was unrealistic to expect Mr Musolino to wait 60 metres before pulling back into his lane. However, that submission failed to acknowledge another sensible method by which the minimum mandated distance could be achieved, that is, by braking to allow the minimum distance to open up. The consequence of the application of ARR r 127 was that, on returning to his lane, having abandoned an overtaking manoeuvre, Mr Musolino was required to brake to increase the distance between vehicles to comply with the required minimum distance.
In addition to the evidence given by Senior Constable Cusack of not seeing Mr Musolino overtake or hearing any radio communications, the body-worn camera footage records Mr Musolino telling Senior Constable Cusack that he “was hoping” to go around the leading vehicle when he identified a clear gap in the traffic. Further, Mr Musolino gave evidence that he pulled out and, as the road was undulating, he saw a car come up over the rise. That vehicle was not giving him enough space, so he decided to go back in (ie back to his lane) and that is what he did. Mr Musolino described slowing down, getting back into position “to sit and wait for the next overtaking lane which was about 15 k’s away”. He then said he was in the process of slowing down but did not have the opportunity to get to a safe comfortable distance. The evidence makes clear that Mr Musolino was not overtaking, having terminated the manoeuvre and returned to his lane.
That evidence supports the proposition put by Mr Musolino’s counsel that Mr Musolino wished to pass as soon as it was safe to do so. Mr Musolino in that regard referred to an overtaking lane about 15 kilometres away. Nevertheless, until reaching the point at which it was safe to overtake and then overtaking, Mr Musolino was required to comply with ARR r 127. Mr Musolino could commence overtaking when he had a clear view of approaching traffic and could safely overtake in accordance with ARR r 140. ARR r 127 precluded Mr Musolino “tailgating” in anticipation of such an opportunity eventuating.
It follows that I do not accept that the Magistrate erred in concluding that Mr Musolino was not overtaking.
Acceptance of honesty and reliability of witnesses
Mr Musolino submitted that the body-worn camera footage demonstrated that Senior Constable Cusack had no idea what offence had been committed when he stopped him because the police officer raised a number of other offences before “settling” on ARR r 127. He submitted further that the evidence strongly suggested the police officer pulled Mr Musolino over in the hope of finding an infraction of the ARR and he did not see the distance between Mr Musolino’s vehicle and the vehicle ahead. Accordingly, counsel contended the Magistrate should have accepted Mr Musolino’s evidence over Senior Constable Cusack’s evidence and, further, that it was incumbent on the Magistrate to find Mr Musolino not guilty of the charge given the finding that Mr Musolino was a witness of truth and his evidence was clear.
The respondent submitted there was no foundation to undermine the Magistrate’s assessment of Senior Constable Cusack’s evidence as honest and reliable and, further, the Magistrate’s finding that the appellant was a witness of truth and the acceptance of his account as factually reliable did not vitiate acceptance of the police officer’s evidence. The respondent contended it was open to the Magistrate to accept Mr Musolino had attempted an overtaking manoeuvre before he was observed by Senior Constable Cusack.
In DeVries v Australian National Railways Commission,[18] Brennan, Gaudron and McHugh JJ referred to the incomparable advantage of the trial judge over an appellate court in determining the reliability of sworn evidence before repeating the observation that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because the appellate court thinks the probabilities of the case are even strongly against the finding of fact. In cases in which the trial judge’s finding depends to any substantial degree on the witness’ credibility, the finding must stand unless it is demonstrated that the trial judge failed to use or palpably misused his or her advantage or has acted on evidence which was glaringly improbable or inconsistent with facts incontrovertibly established by the evidence.[19]
[18] (1993) 177 CLR 472.
[19] DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ); See further, Fox v Percy (2003) 214 CLR 118, 127-128 [26]-[29] (Gleeson CJ, Gummow and Kirby JJ), 138-147 [65]-[93] (McHugh J).
During cross-examination, Mr Musolino’s counsel put to Senior Constable Cusack that he had no reason to pull over Mr Musolino; if he had, he would have told him why immediately and he did not do so because he did not know whether Mr Musolino had committed any offence. Senior Constable Cusack denied those propositions and explained his usual procedure in dealing with stopping heavy vehicles. It was also put to Senior Constable Cusack that he did not let Mr Musolino know what offence he committed because, rather than telling Mr Musolino, he asked Mr Musolino a question about the required minimum distance between long vehicles. Senior Constable Cusack said he complied with the requirement to notify Mr Musolino of the offence. Senior Constable Cusack denied that he did not know the distance between Mr Musolino’s truck and the vehicle ahead.
The Magistrate addressed and rejected the contention that the police officer had some sort of personal vendetta against Mr Musolino after hearing the evidence and watching the footage. The Magistrate accepted Senior Constable Cusack’s evidence as honest and reliable.
The Magistrate held an advantage having heard the evidence. Her Honour’s findings were likely to have been affected by impressions concerning the credibility and reliability of the witnesses.
Mr Musolino relied on the body-worn camera footage in support of the appeal ground challenging the Magistrate’s acceptance of the reliability and honesty of Senior Constable Custack’s evidence. I have viewed the body-worn camera footage of the interaction between Senior Constable Cusack and Mr Musolino. The footage does not demonstrate that the Magistrate failed to use or palpably misused her advantage or that her Honour acted on evidence which was glaringly improbable or inconsistent with facts incontrovertibly established by the evidence. The Magistrate’s reasons accurately summarise and characterise the nature of the interactions between the police officer and Mr Musolino which are captured on the footage. The footage is consistent with Senior Constable Cusack’s evidence about his standard procedure for addressing heavy vehicle stops. The topic of the required minimum distance between long vehicles was put by way of a question to Mr Musolino asking him what the required distance was. However, it is plain in the context of the previous statement by Mr Musolino that he did not know what he did wrong and the subsequent statement by the police officer that Mr Musolino was five metres, not 60 metres, and that was why he was being stopped, that the police officer was asserting a failure by Mr Musolino to comply with the minimum required distance between long vehicles. Review of the trial transcript also does not demonstrate that the Magistrate failed to use, nor palpably misused her advantage, nor acted on evidence which was glaringly improbable or inconsistent with facts incontrovertibly established by the evidence.

The Magistrate may have reconciled the evidence on the topic of Senior Constable Cusack not having seen Mr Musolino overtaking on the basis of Mr Musolino’s reference to the undulating terrain or Mr Musolino having commenced the overtaking manoeuvre before he was seen by Senior Constable Cusack. While it would have been preferable for the Magistrate to articulate how she reconciled the evidence on that topic, accepting Mr Musolino as a witness of truth did not make it incumbent upon the Magistrate to find Mr Musolino not guilty. Mr Musolino bore the onus of establishing he was overtaking. As set out above, the Magistrate accepted Senior Constable Cusack’s evidence. Further, Mr Musolino’s own evidence demonstrated he was not overtaking when Senior Constable Cusack passed him and observed the distance between Mr Musolino’s vehicle and the vehicle immediately in front.
It follows that Mr Musolino fails on the balance of his appeal grounds.
Orders
The appeal is dismissed.