Police v Cooke - [2010] SASC 357

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v COOKE
[2010] SASC 357
Judgment of The Honourable Justice Gray
24 December 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS - OTHER MATTERS
Police appeal against dismissal of a complaint - defendant and respondent charged on complaint that whilst driving a motor vehicle, he failed to comply with instructions applicable to his vehicle, namely those indicated by the traffic lights applicable to his direction of traffic - Magistrate excluded photographic evidence of the alleged offence on basis that regulation 17(2) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) required all traffic lights towards which a vehicle is facing when proceeding towards an intersection to be shown in a photograph taken by camera, and not all traffic lights were so displayed in that photographic evidence - as a consequence, Magistrate dismissed the complaint on the basis that there was no evidence of commission of the offence charged - whether Magistrate erred in construction of regulation - admissibility of evidence discussed.
Held: appeal allowed - Magistrate erred in construction of Regulation 17(2) - nothing in the terms of the regulation that requires the words “traffic lights” to refer to all traffic lights towards which a vehicle is facing when proceeding towards an intersection - in addition, photographic evidence would be admissible in any event under general common law principles of evidence.
Road Traffic (Miscellaneous) Regulations 1999 (SA) r 15 and r 17; Road Traffic Act 1961 (SA) s 79B, referred to.
Le Poidevin v Police [2005] SASC 314, considered.

POLICE v COOKE
[2010] SASC 357
Magistrates Appeal
GRAY J.
Introduction

This is a Police appeal against the dismissal of a complaint.
Peter Cooke, the defendant and respondent, was charged on complaint that whilst driving a motor vehicle, he failed to comply with instructions applicable to his vehicle.[1] Those instructions were indicated by traffic lights applicable to his direction of traffic.
[1] Contrary to Rule 59 of the Australian Road Rules. On the 10TH day of July, 2009 at FULHAM in the said State being the registered owner of a vehicle were it appears from evidence obtained through the operation of a photographic detection device that the vehicle has been involved in the commission of a prescribed offence, that is being on a road namely HENLEY BEACH ROAD and failed to comply with instructions applicable to that vehicle which were indicated by traffic lights.
Rule 59(1) of the Australian Road Rules and Section 79B of the Road Traffic Act 1961.
And the complainant alleges that the said traffic lights and photographic detection device complied with the requirements of this Act.
This is a summary offence.
The complaint was dismissed following a trial before a Magistrate on the basis that there was no evidence of the commission of the offence charged. This conclusion of the Magistrate was a consequence of his exclusion of photographic evidence of the alleged offence. The basis for this exclusion rested on the Magistrate’s interpretation of regulation 17(2) of the Road Traffic (Miscellaneous) Regulations 1999 (SA).
The respondent appeared in person both at trial and on the appeal.
The Trial
At trial it was the prosecution case that photographic evidence taken by a red light camera was relevant, probative and admissible evidence and that the Magistrate was wrong to order its exclusion.
The prosecution tendered a number of documents said to establish the offending conduct. Those documents may be described as follows:
·Certificate of Operation and Testing to Approved Photographic Detection Device purporting to be pursuant to section 79B(10)(b) and (c) of the Road Traffic Act 1961 (SA).
·Two photographs depicting the defendant’s vehicle in the intersection (exhibit P7).
·Document comprised of two pages containing a copy of photographic evidence forwarded to the defendant, including an enlargement of the registration number of the vehicle shown in that photographic evidence.
Oral evidence was led from Senior Sergeant Kierns, whose day to day duties included the supervision and adjudication of photographic evidence and the action to be taken on that evidence. He explained the operation of the relevant apparatus and in particular, its use in the events the subject of the complaint. Sergeant Kierns was cross-examined following which the prosecution’s case was closed.
The defendant gave evidence and was cross-examined. He then called a speed camera operator, Gary John Aldridge, whose qualifications included expertise in the setting up and programming of traffic light cameras. At the conclusion of his evidence, the defendant was given leave to give further evidence himself, before closing the defence case. Leaving aside arguments relating to the construction of regulation 17(2), and arguments concerning the probative value of photographs taken, it was the defence case that the defendant did not enter the intersection on a red light and in fact cleared the intersection entirely, before the traffic lights turned red.
At the conclusion of the evidence, the Magistrate reviewed his receipt of two exhibits, being the certificate of operation and testing of the relevant photographic equipment, and the photographs taken of the defendant within the intersection. The Magistrate re-visited the admission of the photographs, and having heard submissions, determined to exclude those photographs from evidence. As a consequence, the complaint was dismissed as there was no evidence that the defendant had entered the intersection against red traffic lights.
To understand the Magistrate’s reasons, it is important to set out the relevant terms of regulation 17 of the Road Traffic (Miscellaneous) Regulations:
Operation and testing of photographic detection devices referred to in regulation 14(1)(a) for offences committed at intersections, marked foot crossings or level crossings
(1)     In this regulation—
(b) red traffic light means a red traffic light or red traffic arrow as defined in the Australian Road Rules;
(c)     relevant offences means—
(i)red light offences committed at an intersection or marked foot crossing; or
(ii)speeding offences committed at an intersection, marked foot crossing or level crossing; or
(iii)red light offences and speeding offences arising out of the same incidents committed at an intersection or marked foot crossing; or
(iv)    level crossing offences.
(2)Where a photographic detection device referred to in regulation 14(1)(a) is used to provide evidence of relevant offences, the following provisions must be complied with:
(a)     the camera or cameras forming part of the device must be positioned and aimed so that when vehicles are proceeding into the intersection, or over the marked foot crossing or level crossing, as the case may be, a photograph or series of photographs may be taken of the vehicles from the rear, at least 1 of which will depict the traffic lights or warning lights towards which the vehicles are facing when proceeding towards the intersection or crossing;
(b)     the induction loop vehicle detector (induction loop) must be installed—
(i)in the case of an intersection or marked foot crossing—under the road surface on the intersection or crossing side of the stop line before which vehicles must stop if the traffic lights referred to in paragraph (a) are showing a red traffic light; or
(ii)in the case of a level crossing—under the road surface on the crossing side of the entrance to the crossing;
[Emphasis added]
It is to be observed that regulation 17(2) outlines provisions that must be complied with. Regulation 17(2)(a) specifically relates to the positioning and aiming of a camera that forms part of a device and requires that the camera be so positioned and aimed so as to permit photographs to be taken of vehicles from the rear, at least one of which will depict the “traffic lights” towards which the vehicles are facing when proceeding towards the intersection.
The Magistrate construed the legislation to require all traffic lights being faced by an approaching vehicle to be shown in a photograph taken by the camera. He drew this conclusion having regard to the definition of “traffic lights” in the Australian Road Rules. He reached the conclusion that the plain language of regulation 17(2)(a) does and is intended to refer to all traffic lights governing the relevant path of the vehicle when proceeding towards the intersection; that is, all traffic lights which that vehicle is facing. He then drew the conclusion that this had not occurred in the present proceeding and so regulation 17(2)(a), as he construed it, had not been complied with.
The Magistrate provided ex tempore reasons for his decision to exclude the evidence and to dismiss the complaint, observing inter alia:
As I said earlier, during the prosecution case I admitted Exhibit P7, the photographs, on the basis that he pre-conditions of s. 79B(10)(a) had been satisfied. They had been satisfied by the provision of a certificate pursuant to s. 79B(10)(b). That certificate had the effect of certifying, in part, the matters required under s. 79B(10)(b)(ii) namely that the requirements of the Road Traffic Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period. That assertion is to be accepted as proof in the absence of proof to the contrary of the facts so certified. During the defence case, it was agreed that there is a vertical pole – this was the effect of the agreement – that in the south western corner of the intersection there is a vertical pole with traffic lights vertically assembled or arranged on it which is not shown in Exhibit P7 or either of the photographs in Exhibit P7 which are the photographs which were taken, according to the evidence, of the defendant’s vehicle. The defendant now submits that regulation 17(2)(a) has not been complied with. Indeed, he made that submission as part of the submission of no case to answer. I rejected that submission at that time because I was bound to accept the assertions in Exhibit P3 which were implicit in that document to the effect that the matters in s.79B(10)(b)(ii) were satisfied. Now that there is evidence before me that makes clear that there was an extra vertical pole with vertically arranged traffic lights on it which satisfies the definition of traffic lights used in the Australian Road Rules, I am satisfied that the requirements of regulation 17(2)(a), to which I have already referred, have not been satisfied.
In my view, what is required by that provision where it says ‘a series of photographs may be taken of the vehicles from the rear at least one of which will depict the traffic lights towards which the vehicles are facing when proceeding towards the intersection or crossing’ is that all of the traffic lights being faced by such vehicle as proceeding towards the intersection must be shown in the photograph.
It is submitted to me that having regard to the definition of traffic lights in the Australian Road Rules, which is to the effect that the words traffic lights are defined in a way which refer to a singular vertical pole with vertically arranged traffic lights on it mean that when the regulation says ‘that the photograph will depict the traffic lights towards which the vehicles are facing’ that means one of or at least one of such vertical poles. I reject that submission. My view is that the plain language of regulation 17(2)(a) does and is intended to refer to all of the traffic lights governing the path of the relevant vehicle when proceeding towards the intersection or crossing, that is, all of the traffic lights which it is facing. Being of that view, it is now clear to me that regulation 17(2)(a) has not been complied with. Section 79B(10)(a) makes it a requirement in proceedings for an offence against s.79B of this type that the requirements of the Act and Regulations as to the operation and testing of photographic testing devices were complied with in connection with use of the device before the photographs can be admitted in evidence. That is echoed in the terms of regulation 17(2) which states before introducing the provisions of (2)(a) that I have referred to ‘where a photographic detection device referred to in regulation 14(1)(a) is used to provide evidence of relevant offences, the following provisions must be complied with’. So the provisions of s.79B and the provisions of regulation 17 are at one in providing that compliance with the regulations is mandatory before photographs taken by the photographic detection device can be relied upon. In my view, the interpretation that I have drawn of the provision in regulation 17(2)(a) is one intended to guard against the situation in which for any reason the view of a driver approaching a traffic light or set of traffic lights at an intersection is obscured as to one or more of those traffic lights or that that driver’s attention is not drawn to one or more of those traffic lights. In my view, the regulation is such as to make it a mandatory requirement that a driver said to have breached the provisions of s.79B is entitled to see photographic evidence of the operation of all of the traffic lights towards which such driver’s vehicle is facing when proceeding towards the intersection or crossing. For those reasons, I now exclude the photographs Exhibit P7 from evidence in this matter.
…
…I take the view that the evidence which is capable of proving the offence is the photographs together with the evidence of operation. Without the photographs, the evidence of Sergeant Kierns is simply hearsay evidence of that which has been excluded and without the photographs I take the view that there is no evidence capable of sustaining the charge.
…
There being no submission that there remains evidence capable of proving the prosecution case, I find the defendant not guilty of the offence charged.
[Emphasis added]
The Appeal
On appeal, counsel for the Police contended that the Magistrate had erred in law in dismissing the complaint as that dismissal was the result of an erroneous interpretation of regulation 17(2)(a).
Counsel for the Police submitted that the purpose of regulation 17(2)(a) was clear. The regulation deals with the detection of offences by a robot camera. The purpose is to ensure that only accurate and reliable evidence obtained by the camera will be admitted to assist a fact finder to decide that an offence has been proved to the criminal standard. It was said that this purpose would be achieved if the camera taking the photograph were to depict a single red traffic light being faced by approaching traffic at the relevant time. Such a photograph, together with other evidence, would assist the finder of fact to address and determine the merits of the case. That other information could include information from eyewitnesses, from the defendant, as well as technical evidence that may assist to determine the weight to be given to the photographic evidence.
It was contended by counsel for the Police that the purpose of the regulation could be achieved if one set of traffic lights which a motorist is required to obey, is depicted in the photograph. It was stressed that it was an absolute offence to disobey a red light. Attention was drawn to the observations of White J in Le Poidevin:[2]
The Magistrate was also correct in concluding that r 59(1) of the ARR imposes an obligation which is absolute. Proof by the prosecution of an intention on the part of the driver at the relevant time is not an element of the offence. The obligation not to enter an intersection at which a red light is showing is not made subject to any qualification such as “without reasonable cause”. Consideration of the purpose and context of r 59, and of authority, support the conclusion that the obligation is absolute. Part 6 of the ARR, of which r 59 forms part, should be regarded as establishing a scheme as to the obligations of a driver when confronted with traffic lights showing yellow or red. Rule 56 of the ARR specifies the place at or before which a driver of a vehicle approaching traffic lights showing a red traffic light must stop and provides that the driver must not proceed past that point until the traffic lights indicate that it is permissible to do so. …
[2] Le Poidevin v Police [2005] SASC 314 at [16].
Counsel for the Police submitted that the effect of the regulations and the Australian Road Rules is clear; if “traffic lights” at an intersection display a red traffic light to approaching traffic, it is an offence to enter the intersection against that light. The existence of one red traffic light being faced by approaching traffic is sufficient to impose the obligation.
During the course of the appeal hearing, counsel for the Police requested that the Court take a view of traffic lights in Victoria Square, Adelaide. That request was not objected to by the defendant and the view was taken. The Court took up a position in Victoria Square in the median strip of a pedestrian crossing in the middle of Victoria Square and took a view west towards lights of Victoria Square and Grote Street. The purpose of the view was to display the different position of traffic lights at that intersection. The Court viewed the sequence of the traffic lights and in particular, the number of traffic lights showing red at any one time. The defendant on the view pointed out that there were traffic lights that appeared to be relevant to particular paths that vehicles were following and other traffic lights being faced by west-bound traffic that had apparent relevance for vehicles travelling in a direction other than west. The observations on the view are not evidence. Those observations are only to assist my understanding of the evidence.
It was the defendant’s submission that the use of the words “traffic lights” in regulation 17(2)(a) meant that the relevant photographic evidence was required to depict all traffic lights towards which a vehicle is facing when proceeding towards an intersection. It was said that if Parliament had intended this not to be the case, the regulation would have been drafted to refer to traffic light rather than lights. According to the defendant, as the relevant photographic evidence ruled to be inadmissible by the Magistrate did not depict all traffic lights towards which his vehicle was facing as he proceeded towards and through the intersection, there was non-compliance with regulation 17(2) and the Magistrate was correct in his decision to exclude the photographic evidence.
It was the defendant’s case that as he approached the intersection, there were five sets of traffic lights generally applicable to his direction of travel. He complained that the photographs only depicted four of the five sets of traffic lights. He emphasised that the photographs did not depict the fifth set. Although the four sets depicted in the photographs all disclosed that he faced a red light, indicating that he should not enter the intersection and that he should stop, the defendant contended that the missing traffic light may have displayed a different coloured light for his direction of travel, due to some malfunction of either the lights or the photographic process. He gave evidence that as he proceeded through the intersection, he was aware of a flash of a camera. He recalled that this prompted him to check his rear vision mirrors and as he did so, he saw a traffic lights change to red. The defendant’s case was that the necessary inference available from his evidence was that the photographic evidence was flawed and the Magistrate was correct to exclude the evidence.

A difficulty confronting the acceptance of the defendant’s account is that when he looked in his rear vision mirror and viewed the traffic lights, those lights were not those governing his direction of travel. It does not follow that a change in the lights that he observed in his rear vision mirror necessarily corresponded with the relevant change of the traffic lights which governed his direction of travel.
Construction of the Provision
Section 79B of the Road Traffic Act provides:
Provisions applying where certain offences are detected by photographic detection devices
…
prescribed offence means—
(a)     an offence against section 45A; or
(b)     an offence against a prescribed provision of this Act; or
(c)     a registration offence; or
(d) an offence against a prescribed provision of the Motor Vehicles Act 1959;
…
Pursuant to regulation 15 of the Road Traffic (Miscellaneous) Regulations, an offence against rule 59 of the Australian Road Rules constitutes a “prescribed offence”.
Section 79B(10) of the Road Traffic Act outlines the manner in which photographic evidence “will be admitted in evidence” for a proceeding for a prescribed offence:
(10)In proceedings for an offence against this section or proceedings for a prescribed offence—
(a)     a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b)     a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify—
(i)that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c)     where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
[Emphasis added]
As earlier noted, regulation 17(2) specifies that where a photographic detection device is used to provide evidence of relevant offences, in accordance with the terms of section 79B(10) as extracted, a number of provisions must be complied with, including:
(a) the camera or cameras forming part of the device must be positioned and aimed so that when vehicles are proceeding into the intersection, or over the marked foot crossing or level crossing, as the case may be, a photograph or series of photographs may be taken of the vehicles from the rear, at least 1 of which will depict the traffic lights or warning lights towards which the vehicles are facing when proceeding towards the intersection or crossing;
[Emphasis added]
It is apparent from the extracted legislative provisions that the admission into evidence of the relevant photographic evidence as outlined in section 79B(10) of the Road Traffic Act will not necessarily occur if the requirements of the Act and the regulations as to the operation and testing of the photographic detection devices have not been complied with. It is in this circumstance that the construction of regulation 17(2)(a) is of importance.
Rule 4 of the Australian Road Rules defines “traffic light” and “traffic lights” as follows:
traffic light means a green traffic light, or a red or yellow traffic light (whether or not flashing).
…
traffic lights means a device designed to show a traffic light, or 2 or more traffic lights in a vertical arrangements and at different times, and includes any traffic arrows installed with or near the device.
The Road Traffic (Miscellaneous) Regulations record that in the regulations, “traffic lights” has the same meaning as in the Australian Road Rules.[3]
[3] Road Traffic (Miscellaneous) Regulations 1999 (SA) regulation 4(2).
It is clear that the above definition of “traffic lights” is a reference to a single pole or device with a traffic light or lights arranged on that pole or device. The Magistrate did not give due weight or effect to this definition. It is critical to bear in mind at all times that “traffic lights” and “traffic light” have different and distinct definitions.
When considering the construction of the regulations with respect to photographic evidence and photographic detection devices, it is further relevant to note that such evidence may relate to a number of different offences, including those designated as “prescribed offences”. These offences include a number of traffic offences in contravention of the provisions of the Australian Road Rules, including those mandating that a driver stop for a red traffic light or arrow, and those setting out offences in relation to proceeding through a red traffic light or arrow. In addition the photographic detection devices operate to record speeding vehicles for the purpose of speeding offences committed at intersections.[4] It is axiomatic that for the evidential purposes with respect to a speeding offence, not all traffic lights would be necessary to be shown in the photographic evidence. This adds weight to the construction of regulation 17(2)(a) contended for by the Police.
[4] See section 17(1)(c) of the Road Traffic (Miscellaneous) Regulations.
In my view, the Magistrate’s construction of regulation 17(2)(a) was flawed. In particular, the Magistrate failed to import into his consideration of the regulation the definition of “traffic lights” and “traffic light”. There is nothing in the terms of the regulation that either expressly or impliedly requires the words “traffic lights” to refer to all traffic lights. Such an interpretation would undermine the purpose of the regulation. The purpose of the Australian Road Rules and related regulations is to ensure safe driving and the safety of road users. That general purpose is supported by the specific purpose of rule 59(1) of the Australian Road Rules, that is, that motorists, if faced with a red traffic light at an intersection, must not enter the intersection. The interpretation advanced by the defendant and applied by the Magistrate would operate to frustrate the purpose of the scheme. It is not to the point whether a motorist faces one red light or more.
These reasons dispose of the primary issue on the appeal. The Magistrate’s construction of regulation 17(2)(a) of the Road Traffic (Miscellaneous) Regulations was in error. The reference to “traffic lights” is not to be read as all traffic lights. In the circumstances there had been compliance with that regulation.
A Final Matter
During the course of the argument on appeal, a question arose as to the common law powers of the Magistrate to receive the relevant photographs into evidence. My earlier reasons preclude any need for reliance on common law principles. On the construction of the regulation as discussed above, the photographs were in compliance with the regulations and “will be admitted”.
Although it is unnecessary to do so in light of my earlier conclusions I wish to express my views on the issue of admissibility of the photographic evidence generally. The photographs, on the prosecution case depicted the defendant’s motor vehicle entering and travelling through the intersection against a red traffic light. At common law, subject to the linking of the photographs to the date and location particularised in the summons, the photographs were plainly relevant and probative of an issue in the trial and according to the ordinary rules of evidence, admissible. What weight might be attached to those photographs was a matter for the Magistrate to determine having regard to all the evidence in the trial.
There is nothing in section 79B(10) of the Road Traffic Act as earlier extracted which seeks to exclude the evidence of the photographs. The section is designed to address the circumstances in which photographic evidence “will be admitted”. The section provides that if a number of conditions are met, the photographic evidence “will be admitted”. However, the section does not limit the admissibility of the evidence in the event that those conditions are not met. It does not address the question of the relevance or probative value of the evidence. The photographs remain admissible if shown to be relevant and probative. Additionally the principle known as the Bunning v Cross[5] principle would appear to have application.
[5] Bunning v Cross (1978) 141 CLR 54.
Conclusion
The appeal is allowed and the orders of the Magistrate set aside. However, no further order is made. In particular, counsel for the Police accepted that in all the circumstances the proceeding should not be remitted for rehearing.