POLICE v BELL No. SCGRG-99-674 Judgment No. S290

[1999] SASC 290

POLICE V BELL
[1999] SASC 290

Magistrate’s Appeal

1. MARTIN J. (Ex tempore) The respondent was charged with two offences of failing to comply with instructions applicable to her which were indicated by traffic lights, contrary to s 75 of the Road Traffic Act 1961.

2. After a short trial the learned special magistrate found a case to answer, but acceded to what the transcript refers to as a 'Prasad Application' and dismissed both charges.  The Crown appeals against the dismissals. 

3. Constable Walkley gave evidence that he and a police aide, Mr John Baniqued, were walking east along the northern footpath of Hindley Street and stopped at the western kerb of King William Street on the north-western corner of the intersection of King William and Hindley Streets.  They were waiting for the pedestrian light to turn in their favour in order to walk east across King William Street.  Walkley said the lights turned red for the north-south bound traffic on King William Street and a northbound bus stopped in the left lane in accordance with the change of light.  Two sedans travelling north also stopped in the next two lanes.  Hence  there were vehicles stationary in three of the four lanes on King William Street available for northbound vehicles. 

4. Walkley said the pedestrian light changed to green and he and Baniqued, together with other members of the public, started to walk east across King William Street.  He said they reached the second to last northbound carriage way when his attention was drawn to a vehicle travelling at a relatively fast rate of speed considering its proximity to the red light.  He saw what he described as a 'white van with a taxi thing on top' travel through the red light.  It appeared to him that Baniqued had not seen the vehicle as he took another step and he stopped Baniqued from proceeding further.  The vehicle passed in front of them within a couple of metres or thereabouts and continued north in the eastern most lane for northbound traffic, that is, in the lane closest to the traffic island in the middle of King William Street. 

5. Walkley said he looked at the registration number and identified it as 4011.  He pulled out his note book and began to run after the vehicle and wrote the number in his note book as he ran.  Having completed writing the number he asked his police aide whether 4011 was the correct number and showed him the note book.  Baniqued responded, 'yes, 4011, that's it'. 

6. Walkley then described how the vehicle remained in the lane closest to the median strip and stopped behind other vehicles waiting to turn right into North Terrace.  He saw the traffic signals cycle orange to red and three vehicles within the intersection completed their right-hand turn in order to travel east along North Terrace.  There was another vehicle in front of taxi 4011, but Walkley was unsure whether it was behind the white line.  He said that vehicle went through the red light that was now facing northbound traffic and taxi 4011 followed through the same red light.  At that time Walkley was about 10 metres behind the vehicle. 

7. The vehicle continued east along North Terrace.  Walkley and Baniqued walked along the southern footpath of North Terrace where Walkley made some notes of what he had observed which he said were completed within two minutes. 

8. Walkley has been a police officer for almost eight years.  He has held a driver's licence for 12 to 13 years.  He estimated the speed of the offending vehicle when he first saw it as approximately 60 km per hour and formed the view it was not going to be able to stop for the red light.  Baniqued estimated the speed of the vehicle as approximately 40 km per hour. 

9. As to driver of the vehicle Walkley gave the following description:

   'At the time I made no notes of the driver's appearance, but other than that she was - but I did notice like a grey headed relatively tall driver and I thought it was either a tall older woman or a thin man with sort of a bit of a boofey hair cut for a bloke'.

Walkley did not see the driver's face. 

1. Later Walkley attended at Access Cabs in Gilles Street and was given information that the respondent was the driver of the offending vehicle.  He understood some contact had been made with the vehicle by radio. 

2. At approximately 12 midday the following day, the respondent entered the Hindley Street Police Station.  Walkley had understood from information received at the taxi depot that she would be attending at the police station.  Against that background, when he saw the respondent Walkley immediately thought to himself that she was the driver of the offending vehicle.  He said to her, 'I think you are looking for me', or words similar to that.  After a brief conversation he went to another part of the station to obtain his expiation notice book.  He also spoke with Baniqued.  Walkley returned to the front of the station and Baniqued followed a short time later. 

3. Walkley had a conversation with the respondent and made notes of that conversation immediately after she left the station.  The respondent admitted that she was driving taxi 4011 at about 11.18 a.m. on the previous day, but when it was put to her that the vehicle disobeyed a red light at King William and Hindley Streets, she denied that the vehicle could have done so because she was out in the eastern suburbs at that time on a job.  She told Walkley she was delivering some items and was definitely not in the city until about 11.45 a.m.  She questioned whether they had noted the correct registration number and continued to deny that it was her vehicle.  She maintained the officers had obtained the wrong number.  The respondent complained that they shouldn't be able to charge her unless they stopped her at the time and concluded the conversation with an insulting remark directed at Walkley.  He described her demeanour as outwardly pleasant at the outset, but as the allegation was put to her she became very defensive and aggressive. 

4. If the evidence of identification given by Walkley of the respondent as the driver had stood alone, considerable doubt would have attended that evidence.  Although he said he recognised the respondent as the driver when she walked into the police station the following day, he had already been told that a woman was the driver and that she would be attending at the police station.  However, his evidence did not stand alone.  It was supported by the admissions made by the respondent.  In those circumstances there was ample proof that the respondent was driving taxi no.4011 at about the relevant time and that she was doing so in and around the city and suburbs.  The critical question was whether the taxi was being driven by her along King William Street at the time that Walkley and Baniqued made their observations. 

5. The police aide Baniqued also gave evidence.  He confirmed the evidence of Walkley as to the circumstances of the offending driving and said he saw the registration number as the vehicle passed by him.  According to Baniqued Walkley wrote the number in his notebook, showed it to Baniqued and asked if it was the correct number.  Baniqued replied in the affirmative.  According to Baniqued he was able to recall the number being taxi 4011.  In cross-examination he would not accept that he might have been mistaken about the number.  He said that he could remember the number and at the time he found the number recorded in the notebook by Walkley to be correct. 

6. If the prosecution evidence had ended at that point it would clearly have been inappropriate for the magistrate to have dismissed the charge without hearing from the respondent.  There was ample opportunity for Walkley and Baniqued to observe the number and nothing arose in the course of cross-examination which would have justified a dismissal at that stage in the proceedings.  However, a further witness was called by the prosecution following investigations that had been conducted by the defence. 

7. When the prosecution was informed of the evidence I am about to mention, it agreed to call the witness.   The prosecution behaved properly in this regard and acted in accordance with its well settled duty to present all relevant material to the court.  This was not a case where the prosecution were not prepared to put the witness forward as a witness of truth and was justified in declining to call the witness. 

8. According to Walkley, the incident commenced at about 11.18 a.m.  The prosecution called the taxi company's fleet supervisor Mr Huckel who produced a computer print-out of jobs given to particular cabs on the day in question.  From the records it is clear that a job was despatched to the respondent's vehicle, 4011, at 11.04.22 a.m.  It was for a pick-up at the Royal Adelaide Hospital in North Terrace and a drop off at the Julia Farr Centre at Fisher Street, Fullarton.  Vehicle 4011 acknowledged the job.  Using what was described as a GPS system Mr Huckel was able to identify the approximate position of the respondent's position at the time the job was acknowledged.  The vehicle was in area 11, which is designated as the Parkside/Fullarton area, and approximately 2.5 km from the Royal Adelaide Hospital on a straight point to point measurement.  In reality that distance is more likely to have been close to double that figure in driving terms. 

9. In accordance with the usual taxi practice, it is likely that the meter would have been turned on when the taxi arrived at the Royal Adelaide Hospital.  The record shows the meter was put on at 11.06.07, thus suggesting that the taxi was at the Royal Adelaide Hospital at that time.  The meter was turned off at 11.11.19.  Bearing in mind the time necessary to load a passenger in a wheelchair, it appears likely that the meter was turned off before the completion of the job.  It is not surprising that the meter was turned off as the fare is a set fare and turning the meter off enables the driver to indicate that the taxi is available to take another job. 

10. The records indicate that the next job was despatched to the respondent's vehicle at 11.42.24 a.m.  for a pick up at St Andrews Hospital, 350 South Terrace, Adelaide.  The meter was turned on at 11.48.34 a.m.  and off at 12.00.40. 

11. His Honour was, therefore, faced with Crown evidence that suggested the respondent's vehicle was at the Royal Adelaide Hospital at shortly after 11.06 a.m.  and was likely to have travelled from there to the Julia Farr Centre.  In those circumstances it was highly unlikely that the vehicle was in King William Street as described by Walkley.  In addition, as to the possibility of a mistake being made by the police officers, it appears that the taxi numbers run consecutively and that Walkley made some enquiries about another vehicle numbered 4001. 

12. In my opinion it was not outside the range of the proper exercise of the magistrate's powers and discretion for him to dismiss these charges in accordance with the decision in R v Prasad, (1979) 23 SASR 161. It was a borderline case and courts should not too readily accede to the proposition that a matter should be dismissed in accordance with Prasad.  His Honour had the advantage of seeing and hearing the prosecution witnesses and there is nothing in the material before me to suggest that he misapplied the principle in Prasad or misconceived any of the relevant facts.  In those circumstances, notwithstanding that this was a borderline case, in my opinion it is not appropriate that I interfere. 

13. I add from a practical point of view that if I had decided to interfere and the matter was remitted to the magistrate for further hearing, the result would inevitably have been an acquittal. 

14. In those circumstances, the appeal is dismissed. 

15. I order that the appellant pay the respondent's costs, fixed at $150.