Pol v City of Port Adelaide Enfield - [2017] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POL v CITY OF PORT ADELAIDE ENFIELD
[2017] SASC 116
Judgment of The Honourable Justice Nicholson
9 August 2017
TRAFFIC LAW - TRAFFIC REGULATION - RESTRICTIONS ON STOPPING AND PARKING
TRAFFIC LAW - OFFENCES - PROCEDURE - COSTS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against a decision of a Magistrate.
The appellant was charged on a complaint by the respondent for an offence against rule 168(1) of the Australian Road Rules, namely stopping on a length of road to which a no parking sign applies. At trial in the Magistrates Court, the appellant was not willing to concede that he was the driver of the vehicle at the relevant time on the basis that he could not recall whether he was driving the vehicle at the time, nor whether he had committed the elements of the offence.
The Magistrate found the charge proved and convicted the appellant. The Magistrate made an order for costs in favour of the respondent for $3,826 in accordance with the applicable scale under the Magistrates Court Rules 1992.
The appellant appeals the conviction and the costs order.
In relation to the appeal against conviction, the appellant relies on a number of grounds of appeal. The appellant contends that (1) the offence was not proved to the required standard, as the Magistrate erred in accepting the evidence of two witnesses at trial, (2) that the complaint should have been dismissed on the ground that it is trifling, (3) that there were various technical issues including concerning the form of the relevant traffic sign and the proper construction of the relevant legislation and (4) that the complaint should have been dismissed on the basis of the appellant's statutory declaration in which he declared that he could not now identify the name and address of the driver. In the course of the appeal hearing, the appellant sought to add an additional ground of appeal to the effect that he had not been accorded a fair trial.
The appellant contends that the costs order in favour of the respondent ought to be proportional to the seriousness of the offence. The appellant made submissions on appeal to the effect that it was not fair that he should have to pay the costs in this matter.
Held per Nicholson J, dismissing the appeal against conviction, allowing the appeal against the costs order in part:
1. No proper grounds to challenge the Magistrate’s acceptance of the evidence of the witnesses have been established.
2. The offence cannot be said to be trifling. This was a normal or typical example of an offence under rule 168(1) of the Australian Road Rules.
3. None of the contentions raised by the appellant concerning his objections to the form of the traffic sign raise a defence to the offence committed nor give rise to a tenable challenge to the correctness of the Magistrate’s decision.
4. There is no merit in the appellant’s contention that he had not been accorded a fair trial.
5. The arguments put by the appellant in opposition to an award of costs in favour of the respondent are not sound. However, the Magistrate’s discretion as to costs miscarried. In view of the evidence before the Magistrate of the appellant’s impecuniosity and given the terms of section 13(1) of the Criminal Law (Sentencing) Act 1988, a proper exercise of the discretion should result in a lesser amount.
6. The Magistrate’s order as to costs is set aside. The appellant is to pay the respondent’s costs of the trial in the amount of $2,000.
Summary Procedure Act 1921 s 49, s 57, s 189, s 189A, s 189D; Australian Road Rules r 168, r 169, r 316, r 318, r 332, Sch 2; Road Traffic Act 1961 s 22, s 174A, s 175; Road Traffic (Miscellaneous) Regulations 2014 reg 63; Magistrates Court Act 1991 s 42; Expiation of Offences Act 1996 s 8; Criminal Law (Sentencing) Act 1988 s 13, s 15, s 16, s 17, Pt 9, Div 3; Magistrates Court Rules 1992 r 51, referred to.
Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Siviour-Ashman v Police [2003] SASC 29, (2003) 85 SASR 23; Hamdorf v Riddle [1971] SASR 398; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Police v Murray [2013] SASCFC 68, (2013) 116 SASR 422; Adelaide City Council v Lepse (No 2) [2016] SASC 69, considered.

POL v CITY OF PORT ADELAIDE ENFIELD
[2017] SASC 116
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction and background

The appellant was charged by the City of Port Adelaide Enfield on a complaint and summons in accordance with sections 49 and 57 of the Summary Procedure Act 1921 (SA) alleging an offence against rule 168(1) of the Australian Road Rules. The appellant was convicted of the offence following a trial in the Magistrates Court. A conviction was recorded, a fine of $74 in addition to the mandatory Victims of Crime levy of $120 was imposed and an order made that the appellant pay the respondent’s costs of and incidental to the trial in the amount of $3,826.
The appellant has appealed against the conviction and the costs order. Initially, the appellant also appealed against the fine but during the hearing this aspect of the appeal was abandoned.
The “offence details” as alleged in the complaint and summons are in the following terms.
1.On 4 February 2016, in Klemzig in the State of South Australia, the Defendant was the registered owner of a white, Toyota sedan with licence plate number WKW 335, which was stopped on a length of road to which a “no parking” sign applied CONTRARY to Rule 168(1) of the Australian Road Rules.
Particulars
1.1     On 4 February 2016, the Defendant was the registered owner of a white, Toyota sedan with licence plate number WKW 335 (the vehicle).
1.2     On this date at approximately 8:50am, the Vehicle was parked on a length of road known as “Hay Street” at a time when a “no parking” sign applied to the length of road. The Vehicle was unattended at the time.
1.3     On 15 December 2016,[1] the Council issued an expiation notice to the Defendant for an alleged offence under Rule 197(1) of the Australian Road Rules. By notice dated 15 March 2016, the Defendant elected to be prosecuted for this offence.
Rule 168(1) of the Australian Road Rules is in these terms.
The driver of a vehicle must not stop on a length of road ... to which a no parking sign applies, unless the driver—
(a)is dropping off, or picking up, passengers or goods; and
(b)does not leave the vehicle unattended; and
(c)completes the dropping off, or picking up, of the passengers or goods, and drives on, as soon as possible and, in any case, within the required time after stopping.
[1]    This must be a typographical error in the original with the correct date being 15 February 2016.
A vehicle is left “unattended” for the purposes of paragraph (b) of rule 168(1) if the driver leaves the vehicle so that the driver is more than three metres from the closest point of the vehicle.[2] The “required time” for the purposes of paragraph (c) of rule 168(1) is two minutes.[3]
[2] Rule 168(2).
[3] Rule 168(3)(b).
It can be seen that rule 168(1) imposes an absolute obligation not to stop on a length of road to which a no parking sign applies unless the cumulative requirements of paragraphs (a), (b) and (c) are satisfied. In other words, the cumulative requirements set out in paragraphs (a), (b) and (c) provide for a limited exception to what otherwise would be the commission of an offence. It is not necessary in the circumstances of this case to consider whether the exception qualifies the ambit of the offence itself such that the burden of proof would lie on the prosecution to exclude the qualification on the facts or whether the limited exception operates as a defence, the burden of establishing which would fall on an accused.
At all material times, the appellant has acknowledged being the registered owner of the vehicle in question. There has been no serious challenge to the prosecution claims that it was parked in the area controlled by the sign in question and during the periods of time recorded on the sign during which parking was restricted. However, at no time, has the appellant been willing to concede that he was the driver at the relevant time. It was the appellant’s case that he cannot remember whether he was the driver on this particular occasion or that, if he had been the driver, he does not now recall whether he left the vehicle unattended within paragraph (b) or, whether he did or did not drive off within the required time in accordance with paragraph (c) of rule 169(1).
Whilst rule 168(1) in its literal terms targets the “driver” of a vehicle, section 174A of the Road Traffic Act 1961 extends liability for prescribed offences to the owner of a vehicle.[4] Rule 168(1) gives rise to a prescribed offence for the purposes of section 174A of the Road Traffic Act.[5]
[4] “Owner” as defined in section 5 of the Road Traffic Act 1961 includes the registered owner of a vehicle.
[5] Rule 168(1) is within Part 12 of the Australian Road Rules and the offence provisions under Part 12 have been prescribed for this purpose by regulation 63(1) of the Road Traffic (Miscellaneous) Regulations 2014.
An owner of a vehicle who was not the driver at the relevant time can avoid liability which otherwise would attach by virtue of section 174A if he or she provides a statutory declaration, inter alia, setting out the name and address of the person who was the driver at the relevant time. The appellant provided a statutory declaration to the respondent, declared on 23 February 2016, in the following, material, terms.
I believe that it is more than likely the case that I was not driving the car described in expiation notice 3504573 at the time of the offence. I believe that the driver at the time was more than likely an acquaintance of mine whose name is Adam of unknown family name who I believe currently resides in Perth of an address unknown to me.
I have made reasonable enquiries to find out these unknowns but have been unsuccessful.
I am certain that I lent the car to him at approximately 8:30 AM but although I believe it was, I cannot be certain it was on the day of the alleged offence.
I believe it should now be the responsibility of City of Port Adelaide Enfield to provide this proof and I have requested this in my notice of objection addressed to the Compliance Administration Officer and The City of Port Adelaide Enfield.
The terms of the declaration do not satisfy the very strict requirements of the exception provided for in section 174A. Accordingly, and provided the essential elements of the offence under rule 168(1) were to be proved, the appellant would be liable in his capacity as “owner” of the vehicle.
The evidence at trial
The evidence adduced by the prosecution at trial, and accepted by the Magistrate as sufficient to prove the offence beyond reasonable doubt, included the following.
(i)Photographs taken by a Council compliance officer on the date of the alleged offence were tendered. The photographs show a “no parking” sign as applying to a section of the road and a white Toyota sedan with registration WKW 335 parked at approximately 8.50am on a school day apparently in contravention of the sign.
(ii)The no parking sign in question as shown in the photograph tendered, comprised: a diagram which constituted a reasonable likeness of the diagram of a “no parking” sign provided for in Schedule 2 of the Australian Road Rules such that the sign is, in this respect, taken to have complied with the Australian Road Rules;[6] written information indicating that the restriction applied between 8.00am and 9.00am and 2.30pm and 3.30pm on school days;[7] and an arrow indicating the portion of road to which the sign applied.[8]
(iii)Registration records for the vehicle with registration WKW 335 which nominate the appellant as the registered owner as at 4 February 2016 were tendered.[9]
(iv)Two Council officers, Mr Ronald Versteegh and Mr Michael Woon, gave evidence before the Magistrate of their observations of the vehicle in question whilst they were on patrol in the relevant street at the relevant time. Both officers gave evidence to the effect that they observed that the vehicle in question was unattended and that no person in connection with the vehicle was in its immediate vicinity.
(v)Mr Woon gave evidence to the effect that the vehicle was parked in the “no parking” area for longer than the maximum two minutes.
[6]    Rule 316.
[7] Therefore having effect at these times and days in accordance with rule 318 of the Australian Road Rules.
[8]    Rule 332(1).
[9]    That the appellant was the registered owner of the vehicle in question was not disputed.
It was not disputed by the appellant that, in the circumstances of this case, the prosecution was entitled to rely upon statutory presumptions to the effect that the sign in question had been lawfully installed and displayed in accordance with the requirements of the Road Traffic Act[10] and that, at all material times, the street in question was a “road” within the meaning of the Road Traffic Act, the “no parking” sign was taken to be in the location as alleged and the appellant was taken to be the owner of the vehicle.[11]
[10] Section 22 of the Road Traffic Act 1961.
[11] See section 175 of the Road Traffic Act 1961.
The course of the trial
Before proceeding further, it is helpful to set out the course of the trial. The Magistrate opened proceedings by identifying for the appellant the charge he was facing whereupon his Honour asked the appellant how he proposed to plead. The appellant pleaded “not guilty”. Counsel for the prosecution then opened the prosecution case at some length, during which a substantial amount of the prosecution’s documentary evidence was provided to the Magistrate and marked for identification. At the end of the opening, the following exchange occurred between the Magistrate and the appellant.
HIS HONOUR: Mr Pol I am just having a quick skim through your letters to the council, I think what you are saying is that this is not fair because you cannot nominate the driver of the car at the time, is that right?
DEFENDANT:   Well I am not one hundred percent sure anyway, it’s like a fifty fifty.
HIS HONOUR: But you’re talking about, you don’t know who actually parked the car there -
DEFENDANT:   - I know I leant him the car at that time and he took my boy to school on his way to Gawler, it was either on the Wednesday or the Thursday, I don’t know which one.
HIS HONOUR: I think my question is pretty clear, you say that you can’t nominate who parked the car there on the day in question –
DEFENDANT:   - No I don’t know his full name.
HIS HONOUR: You can’t nominate who parked the car on the day in question at that place and you say that you’ve got no way of knowing that and you think that you should have a defence.
DEFENDANT:   No, that’s one possible defence.
HIS HONOUR: What is the other one, you don’t have to tell me, I can listen to the trial and try and work it out, that might help me to ask appropriate questions -
DEFENDANT:   - might as well do that.
HIS HONOUR: Do you know what it is, what is the rest of your defence.
DEFENDANT:   Well I believe that the provision in the Act isn’t constructed properly, it doesn’t serve the purpose of the Act.
HIS HONOUR: What do you mean by that do you think that the legislation is faulty?
DEFENDANT:   Well it doesn’t achieve the goal of the Act, which is for a fair and safe usage of our roads or something like that.
HIS HONOUR: Have you had any legal advice at all?
DEFENDANT:   No.
HIS HONOUR: Okay I will adjourn for about ten minutes and I’d ask you to have a quick chat to the duty solicitor and then I will resume thereafter.
DEFENDANT:   I am happy to just keep going.
HIS HONOUR: I would like you to have a chat to the duty solicitor to be satisfied myself that you have had some independent advice.
The Magistrate then adjourned the matter to enable the appellant to obtain the assistance of the duty solicitor. On the resumption, the following further exchange occurred between the Magistrate and the appellant.
HIS HONOUR: Are we ready to proceed?
DEFENDANT:   Yes.
HIS HONOUR: Okay, go ahead.
DEFENDANT:   Do I get to make my statement before that.
HIS HONOUR: What happens, I will explain the system, she calls her witnesses one by one, she asks them questions and when she has finished you can ask them questions. I sometimes help you or sometimes ask questions of my own. She will do that with each witness and then she will say that is the end of her case, then you can make your statement to the court about what your defence is and what witnesses you are going to call, if any, and if you want to give evidence on oath, you can give evidence on oath. If you don’t want to that is up to you and then we conclude the trial.
DEFENDANT:   Okay.
Thereafter, the prosecutor adduced evidence from three witnesses: Mr Brenton Thomas, a Council officer responsible for community safety and enforcement issues; Mr Ronald Versteegh, a Council community safety officer; and Mr Michael Woon, a Council compliance officer. The prosecutor tendered the prosecution’s documentary evidence through these witnesses. The appellant cross-examined Mr Thomas at some length, cross-examined Mr Versteegh at some length but asked no questions of Mr Woon. The appellant did not give evidence. Following the conclusion of Mr Woon’s evidence, the following exchange between the Magistrate and the appellant occurred.
HIS HONOUR: Mr Pol, at this stage it’s usual for the defendant to give sworn evidence if he wants to, you don’t have to, it’s up to you.
DEFENDANT:   No, I think I won’t worry anymore.
HIS HONOUR: Sorry?
DEFENDANT:   I don’t think I will.
HIS HONOUR: You don’t want to give evidence. Do you want to make any submissions at all?
DEFENDANT:   No, not at this point.
HIS HONOUR: Mr Pol, do I understand your reason for wanting this matter to proceed to court to show that the issue of the expiation notice was unfair?
DEFENDANT:   Possibly.
HIS HONOUR: Can you direct me to what your defence is.
DEFENDANT:   I just don’t think it was necessary given the circumstances.
HIS HONOUR: Is there anything else you want to say?
DEFENDANT:   No.
HIS HONOUR: Do you want to say anything else?
DEFENDANT:   I didn’t think so, thank you.
The Magistrate found the appellant guilty of the offence and delivered a short ex tempore judgment in the following terms.
The defendant has pleaded not guilty to a charge laid on complaint alleging that on February 4 2016 in Klemzig he was the registered owner of a white Toyota sedan which was stopped on a length of road to which a no parking sign applied contrary to rule 168(1) of the Australian Road Rules. Ms Burke appeared for the complainant, Mr Pol was unrepresented.
Ms Burke opened by referring me to the legislative structure which enabled the legislation and the creation of the offence via the Road Traffic Act and the regulations and the Australian Road Rules. She also referred me to the legislative structure which permitted reliance on the tendering of certain documents to prove certain matters. As to the technicality to proving the defence [sic: offence] I found that prima face of the case [sic] has been proven.
The defendant cross examined three witnesses that were called by the complainant. There was no issue as to credibility or anything like that and I have now elicited from Mr Pol that he maintains that the issue of the infringement notice was unnecessary (unfair). It is not for me to make a finding in relation to that sort of submission, it does not affect the issue of his guilt or not. There was no issue in relation to the credibility of the witnesses. The background and legality for the original expiation notice being given has been proven beyond reasonable doubt and in those circumstances I have to find Mr Pol guilty of the offence.
The required approach on appeal

The appellant’s right of appeal against conviction arises pursuant to section 42 of the Magistrates Court Act 1991 and is an appeal by way of re-hearing. The court hearing the appeal is required to conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions.[12] On issues which involve an assessment of the credibility and reliability of a witness, the court must make due allowance for the advantage of the magistrate in seeing and hearing the evidence being given.[13] In this case, the evidence before the Magistrate was detailed, comprehensive and compelling. The appellant adduced no evidence in opposition but, rather, put the prosecution to proof.
[12] See, for example, Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39].
[13] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29].
The appellant did endeavour during his cross-examination of Mr Versteegh to challenge aspects of his credibility. On my review of the appellant’s cross-examination, the attempt in this respect was misguided. The matters raised by the appellant, and upon which his cross-examination in this respect was based, were not such as to impinge materially upon the reliability or credibility of either Council officer with respect to the issues in this case. It was expressly suggested by the appellant on one occasion, when Mr Versteegh acknowledged he had been mistaken, that Mr Versteegh had lied. However, the Magistrate found that no issue of credibility arose. As I understand the Magistrate’s reasons, read in conjunction with the transcript of evidence, his Honour accepted that, on the critical issues before him, both Mr Versteegh and Mr Woon gave honest and reliable evidence.
At the end of the day, the primary factual issue to be determined was whether or not either or both of the Council officers had observed the car to be parked in the no parking sign area and contrary to the terms of the no parking sign and whether or not there was anyone in attendance (as defined). There was strong support in the evidence of Mr Versteegh and Mr Woon for these findings. The Magistrate had the recognised advantage of both seeing and hearing the witnesses. He was entitled to accept their evidence. On my review of the evidence, I have no misgivings whatsoever about the verdict.
Grounds of and contentions raised on appeal
The appellant filed a lengthy notice of appeal which is, essentially, in narrative form. It is prolix and argumentative. I received the notice of appeal on the basis that it incorporated grounds of appeal together with aspects of the appellant’s arguments. In addition, the appellant provided at the appeal hearing a lengthy document by way of written submission that was marked MFI-A1. I also had before me the materials that were before the Magistrate. Given that I am satisfied that the Magistrate made no error either in his approach to the conduct of the trial or in his finding that the charge had been proved, I can deal with the appellant’s contentions on appeal relatively succinctly.
The appellant contends that the offence was not proven to the required standard (at paragraphs 1, 2, 3 and 3 (a second time) under the heading “Grounds of appeal against conviction”). Essentially, the appellant challenges the “false claim” by Mr Versteegh and Mr Woon. The appellant contends that the reason they gave for attending on the day in question to the effect that there had been complaints from the general public was false and that their evidence should be rejected in its entirety for this reason. The reason Mr Versteegh and Mr Woon attended is irrelevant. Their evidence was relevant as to the fact that they did attend and made the observations to which they attested. As an attack on credit, it is not at all clear on the evidence before the Magistrate that the evidence given as to why they did attend was in fact inconsistent with Council records as asserted during cross-examination by the appellant. In any event, the Magistrate, with the advantage of having heard and seen the evidence given, accepted their evidence relevant to the commission of the offence and made no finding adverse to their credibility. Of course, the appellant at no time conceded that he had been at the location at the relevant time and therefore was in no position to challenge directly the eyewitness accounts given by these two men.
No proper grounds to challenge the Magistrate’s acceptance of the evidence of Mr Versteegh and Mr Woon have been established. Once his Honour accepted their evidence, a conviction for the offence was inevitable.
The appellant contended that the complaint should have been dismissed on the ground that it was trifling (paragraphs 5 to 7 under the heading “Grounds of appeal against conviction”). An expiation notice for the offence was issued to the appellant. However, the appellant elected to be prosecuted for the offence and, as such, the expiation notice is taken to have been withdrawn in respect of the offence at the time of the election.[14] Accordingly, the question of whether or not the offence was trifling such that the appellant ought to have been excused from being given an expiation notice and for the purposes of the Expiation of Offences Act 1996 does not arise.
[14] Section 8(3) of the Expiation of Offences Act 1996.
However, the question does arise as to whether or not the offence is trifling for the purpose of one or other of sections 15 to 17 (inclusive) of the Criminal Law (Sentencing) Act 1988. Section 15 provides a discretion in a sentencing court where, inter alia, an offence is found to be trifling, to proceed without recording a conviction and to discharge the defendant without penalty. Section 16 provides a discretion in a sentencing court where, inter alia, an offence is trifling, to impose a penalty, including a fine, but without recording a conviction. Section 17 provides a discretion, in the circumstances set out in that section, and where an offence is found to be trifling, to reduce the penalty that would otherwise apply as a minimum penalty prescribed by a special Act.
It is unnecessary to consider whether all of the requirements under each of sections 15 to 17 apply in this case. Each section requires a finding that the offence in question was trifling. In Siviour-Ashman v Police[15] Doyle CJ (with whose reasons Besanko J agreed) explained the meaning of trifling for these purposes.
[15] [2003] SASC 29; (2003) 85 SASR 23 at [23]-[26].
As Parliament has conferred the relevant power in relation to all three categories of offence under s 47B, one cannot say that simply because the offence is a category 2 offence it cannot be trifling. In Walden v Hensler ... Brennan J said at 577:
“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.”
Dawson J expressed a similar view at 595.
I agree with the Judge that one should begin by bearing in mind the ordinary meaning of “trifling”. That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side ... The offence might be unusual or exceptional in this sense, if it is “a trivial example of the forbidden act” ...
If attention is confined in the present case to the conduct constituting the offence, it is a typical offence of its type. The appellant drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant's driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.
[citations omitted]
On the evidence before the Magistrate, this was a normal or typical example of an offence under rule 168(1) of the Australian Road Rules. It cannot be said to have been a technical, trivial or petty example of a breach of the provision. It was a standard example of non-compliance with a no parking sign; no relevant excuse nor overriding necessity for the vehicle to be left unattended contrary to the no parking sign was disclosed by the evidence. Indeed, given the appellant’s position that he could not remember if he was there or not, it remained particularly difficult on this occasion to demonstrate that this was anything but a typical example of an offence under rule 168(1). The offence was not trifling and sections 15 to 17 cannot apply.
In paragraphs 8 to 15 under the heading “Grounds of appeal against conviction”, the appellant raises a series of purported objections of a technical nature: to the form of the sign; to the purpose underlying the presence of the sign; by way of assertion that no risk of harm was generated by the failure to comply with the sign; as to the fact that other parents at the school and other drivers routinely failed to observe the sign; to the effect that the form of the sign was confusing or unclear; to the effect that the relevant statutory provisions and definitions were confusing, complex and unclear; propounding various alternative constructions of the relevant provisions and definitions; propounding an element of illegality; and as to a failure to observe analogous principles of contract law. The overarching contention by the appellant was that it was all a bit unfair.
None of the contentions raised in these paragraphs raise a defence to the offence committed nor give rise to a tenable challenge on appeal to the correctness of the Magistrate’s decision.
The appellant also contends that the complaint should have been dismissed on the basis of his statutory declaration, the terms of which have been set out earlier (paragraphs 16 and 17 under the heading “Grounds of appeal against conviction”). The statutory declaration does not identify with reference to a name and address the driver of the vehicle at the time of the offence. It did not comply with the requirements of section 174A(4) and (7) of the Road Traffic Act and, accordingly, provided no basis for a defence. The appellant was appropriately prosecuted in his capacity as owner in accordance with the requirements and permissions of section 174A of the Road Traffic Act.
Whilst not included in the notice of appeal, the appellant sought to add an additional ground of appeal to the effect that he had not been accorded a fair trial. On my review of the transcript of the hearing before the Magistrate, there is no merit in this contention. The trial was conducted in a conventional manner for summary proceedings. As the respondent has identified in its written outline of argument:
(i)the appellant was allowed significant latitude in his cross-examination of the witnesses;
(ii)the Magistrate assisted the appellant in formulating appropriate questions for the purpose of cross-examination;
(iii)the Magistrate adjourned the trial to allow the appellant to obtain legal advice from the duty solicitor;
(iv)the Magistrate explained the conduct of the trial to the appellant including when he would be allowed to make a statement;
(v)at the close of the prosecution case, the appellant was given the opportunity to make submissions and to give sworn evidence but he elected not to do so; and
(vi)the Magistrate took appropriate steps in endeavouring to understand the appellant’s case and in order to seek clarification of the defences relied on by the appellant.
Conclusion with respect to the appeal against conviction
I dismiss the appeal against conviction including, insofar as raised, the appeal against the recording of a conviction.
Appeal against the costs order
After finding the appellant guilty, the Magistrate heard submissions from the parties on the issues of the fine to be imposed, the compulsory victims of crime levy and costs. Counsel for the respondent submitted to the Magistrate that her client, as the successful party, had an entitlement to costs in accordance with the applicable scale under the Magistrates Court Rules 1992, in the amount of $3,826. However, counsel made an application for costs on an indemnity basis in the amount of $7,200.
The Magistrate made enquiries of the appellant as to his financial circumstances. The appellant advised the Magistrate that he was unemployed and had been so for about a year. Further, the appellant had recently had his social security benefits stopped. No explanation for this was sought nor provided and there was no evidence before the court as to when, if at all, social security benefits might recommence or when the appellant might obtain gainful employment. The Magistrate asked the appellant whether he supported anyone other than himself and the appellant replied “I have a son but I don’t see him often”. The Magistrate then proceeded to impose penalty and to deal with costs. The Magistrate’s ex tempore reasons, in this respect, were in these terms.
In relation to the issue of penalty I would impose a fine of $74 and a levy of $120. A further issue arises which relates to $3826 [counsel for the respondent] is submitting [the appellant] should have to [sic] by way of legal costs over and above the scale because of the protracted disclosure and efforts to resolve the case leading up to the trial today. I note to that end I wanted to be satisfied that the defendant did seek independent legal advice from the duty solicitor. I do not know what that advice was but he chose to proceed with the matter and it was clear from the early stages of the trial that he did not have a defence to the matter. Nonetheless I also have to take into account his ability to pay fines and also costs and the reality is he has no means. He is currently unemployed and currently not even on benefits. I am going to limit costs to scale of $3826.
The appellant argued, before the Magistrate, that any costs ordered ought to be proportional to the seriousness of the offence of which he had been convicted or, to use the words of the appellant, “the costs awarded should reflect the crime”. The appellant maintained this contention on appeal. The appellant also raised on appeal an argument put in various ways but to the effect that it was not fair that he should have to pay the costs in this matter.
This is a case when an innocent minor breach of an obscure, nonsensical parking breach, that arguably didn’t occur, and if it did, might not have been me, is being punished harder than crimes of violence or dishonesty and I’ve not even caused or even slightly risk causing any injury to person or property.
As a matter of principle, the respondent, as the successful party following contested litigation, was entitled to a costs award in its favour. Section 189(1) of the Summary Procedure Act confers a wide discretion on the Magistrates Court with respect to the award of costs.[16] Rule 51 of the Magistrates Court Rules provides as follows.
51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02 ...
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
[16] Section 189(1) provides: “subject to sections 189A to 189D (inclusive) the Court may award such costs for or against a party to proceedings as the Court thinks fit”. Sections 189A to 189D have no application to the present case. And see, for example, Hamdorf v Riddle [1971] SASR 398 and Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454.
The arguments put by the appellant in opposition to an award of costs in favour of the respondent are not sound. Further, there is no challenge to the amount ordered by the Magistrate being in accordance with the scale entitlement. To this point it could not be said that the Magistrate had failed to properly exercise the discretion as to costs available. However, there is a further consideration. The Magistrate was obliged, when considering the question of the costs, to have regard to section 13 of the Criminal Law (Sentencing) Act.[17] Section 13 provides as follows.
[17] Police v Murray [2013] SASCFC 68; (2013) 116 SASR 422, Adelaide City Council v Lepse (No 2) [2016] SASC 69.
13—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a)     the defendant would be unable to comply with the order; or
(b)     compliance with the order would unduly prejudice the welfare of dependants of the defendant, (and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)In considering whether the defendant would be able to comply with the order, the court should have regard to—
(a) the fact that the defendant could enter into an arrangement under Part 9 Division 3; and
(b)     any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
Pursuant to section 3 of the Criminal Law (Sentencing) Act, the term “pecuniary sum” includes “costs” and “any ... amount payable pursuant to an order or direction of a court”.
The award of costs by the Magistrate was not out of the ordinary or excessive. Further, as the Magistrate’s reasons indicate, his Honour did have regard to the terms of section 13. His Honour expressly took into account the evidence before him relating to the appellant’s inability to pay and took into account “the reality [that the appellant] has no means” in limiting the costs order to the scale amount of $3,826. The amount of $3,826 would have represented a significant reduction from an indemnity costs order. Nevertheless, it is not clear whether the Magistrate, but for the section 13(1) considerations, would have ordered a greater amount or, indeed, the indemnity sum sought by the respondent of $7,200 or whether the Magistrate was only going to award according to scale in any event. As such, it is unclear what effect, if any, the section 13(1) considerations had on the Magistrate’s decision.
I take the view that, in all of the circumstances, the Magistrate’s discretion as to costs miscarried. Further and, at the least, the reasons given are insufficient for an appeal court to understand the basis upon which the costs award was made. I have no difficulty in being satisfied that in ordinary circumstances the respondent should be entitled to its costs, at least at the scale rate, amounting to $3,826. However, given the evidence before the Magistrate of the appellant’s impecuniosity and given the terms of section 13(1), a proper exercise of the discretion should result in an amount significantly less than $3,826.

In exercising the discretion afresh, the Court is entitled to and, in this case, should take into account the fact that the appellant could enter into an arrangement under Part 9, Division 3 of the Criminal Law (Sentencing) Act.[18] As such, the appellant still should be liable for a substantial costs award, notwithstanding his present impecuniosity. I would allow the appeal with respect to the costs order, set aside the order that the appellant pay the sum of $3,826 and order, in lieu, that the appellant pay the respondent’s costs of the trial in the amount of $2,000.
[18] See section 13(3) as set out above.
Final conclusion
I dismiss the appeal against conviction. I allow the appeal against the order for costs in part and make an order, in lieu of the Magistrate’s order, that the appellant pay the respondent’s costs of the trial in the amount of $2,000. I will hear the parties as to the costs of this appeal.