Police v Zammitt
[2007] SASC 37
•9 February 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ZAMMITT & ANOR
[2007] SASC 37
Judgment of The Honourable Justice David
9 February 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
Respondents provided paramedic service - jointly charged with 20 counts, namely one count of providing an ambulance service without a licence, one count of holding out as providing an ambulance service, five counts of providing a record that is misleading, two counts of attempting to pervert the course of justice, three counts of driving a vehicle fitted with a siren and three counts of driving a vehicle that is fitted with flashing lights – offences arose from respondents offering a paramedic service to client companies – magistrate dismissed all counts upon application that there was no case to answer – whether magistrate correctly dismissed counts on the basis that there was no case to answer – whether there was evidence with respect to every element of the offence charged which could prove element beyond reasonable doubt.
Ambulance Services Act 1992 s 4, s 5, s 18; Criminal Law Consolidation Act 1935 s 256(1); Expiation of Offences Act 1996 s 5, s 8; Motor Vehicles Act 1959 s 25, s 135; Road Traffic Act 1961 s 122(1); Ambulance Service Regulations 1993 reg 4; Motor Vehicle Regulations 1996 Sch 1; Australian Road Rules r 306; Road Traffic (Vehicle Standards) Rules 1999 r 34(2), r 118(3), referred to.
R v Bilick & Starke (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Rogerson, Nowytarger & Paltos (1992) 174 CLR 268, applied.
POLICE v ZAMMITT & ANOR
[2007] SASC 37Magistrates Appeal
DAVID J. At all material times the first respondent, David Zammitt, was the sole director of the second respondent, Workcare South Australia Pty Ltd (“Workcare”), a company incorporated in the State of South Australia.
The respondents were jointly charged on Information with two counts alleging breaches of s 5 and s 18 of the Ambulance Services Act 1992, six counts alleging breaches of s 135 of the Motor Vehicles Act 1959, ten counts alleging breaches of s 112(1) of the Road Traffic Act 1961, and two counts of attempting to pervert the course of justice, contrary to s 256(1) of the Criminal Law Consolidation Act 1935.
This is an appeal against the decision of a magistrate to dismiss the 20 charges. At the end of the prosecution case the magistrate ruled that the prosecution had failed to provide sufficient evidence to prove any of the charges against either of the respondents. As a result, the magistrate dismissed the Information. The appellant, SA Police, now appeals against the magistrate’s decision on all counts except two (counts 9 and 10 on the Information).
In her reasons for dismissing the charges the magistrate did not refer to, or set out, the appropriate test to be applied when a submission of no case to answer is made at the end of the prosecution case. Having considered the matter, the magistrate said in her reasons:[1]
As to all counts I find that the prosecutor has failed to provide sufficient evidence to prove any of the charges against either of the defendants.
I can only assume that what the magistrate meant was that “sufficient evidence” at that stage of a trial was not proof beyond reasonable doubt of the elements of the charges. The test is as stated by King CJ in R v Bilick & Starke:[2]
The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
Also in Questions of Law Reserved on Acquittal (No 2 of 1993),[3] King CJ said:
I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence (emphasis in original).
[1] Police v David Zammitt & Workcare Pty Ltd (Unreported, Magistrates Court of South Australia MC‑PAR‑04‑6528, Hayes SM, 26 July 2006), 5.
[2] (1984) 36 SASR 321, 337.
[3] (1993) 61 SASR 1, 5.
The appellant argues that on a proper application of the law to the facts that were presented in relation to each count on the Information there is clearly a case to answer.
Background Facts
The second respondent, Workcare, contracted with client companies to provide services that included a call-out service, whereby if employees of the client company were injured or became ill at work the client company would telephone Workcare for assistance. Workcare would then dispatch a vehicle to the worksite. The vehicle was driven by one of its employees who was a trained paramedic. The level of service provided by the paramedic was determined by the degree of illness or injury. In cases of serious or life-threatening illness or injury, termed “priority 1”, client companies were instructed to contact the South Australian Ambulance Service (“SAAS”). In priority 1 situations the paramedic provided care and treatment until the SAAS paramedics arrived, at which point there was a handover and if necessary, SAAS would transport the patient to hospital.
In cases of less serious illness or injury, termed “priority 2”, the client companies only contacted Workcare. Workcare’s paramedic would provide care and treatment and then, if necessary, offer to transport the patient to a hospital or other medical facility.
Contracts between Workcare and client companies were on an ongoing, medium to long-term basis. Workcare’s services were not advertised or available to the general public. There was no charge in addition to the contract fee for the call-out service.
The Charges
The respondents were jointly charged with 20 offences arising from the provision of the service and certain representations allegedly made to Transport SA and the Expiation Notice Branch. These charges can be conveniently divided into four categories.
1.Counts one and two alleged that the respondents were providing an ambulance service, contrary to s 5 of the Ambulance Services Act, and holding themselves out as carrying on the business of providing an ambulance service in circumstances where they did not hold an appropriate licence, nor were they permitted by regulation to do so, contrary to s 18 of the Ambulance Services Act.
2.Counts 3‑8 alleged that the respondents had compiled records that were false or misleading in a material particular, contrary to s 135 of the Motor Vehicles Act. These charges related to alleged applications by the respondents to register vehicles owned by Workcare with Transport SA. The respondents allegedly sought conditional registration, a classification of registration with reduced registration fees which is available to certain classes of vehicles, including ambulances and emergency rescue vehicles.
3.Counts 11 and 14 alleged that the respondents attempted to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the Criminal Law Consolidation Act. These charges related to incidents where vehicles owned by Workcare were detected driving over the speed limit. The appellant alleged that the first respondent, David Zammitt, wrote to the Expiation Notice Branch seeking the withdrawal of expiation notices relating to the speeding on the basis that the vehicles were ambulances and the speeding offences were received while responding to emergencies. The appellant alleged that these claims were false and amounted to the offences charged. Unlike the other offences, which are summary offences, these counts are minor indictable offences and are clearly the most serious of those with which the respondents were charged.
4.Counts 9, 10, 12, 13 and 15‑20 each related to motor vehicles allegedly owned by Workcare which were driven on roads and fitted with sirens, contrary to r 34(2) of the Road Traffic (Vehicle Standards) Rules 1999 (“the Rules”), or blue or red flashing lights, contrary to r 118(3) of the Rules, each being an offence pursuant to s 112(1) of the Road Traffic Act.
Amendment of Information
On appeal, counsel for the appellant raised the fact that the date ranges particularised in counts 1 and 2 on the Information were partly out of time. There is a two year time limit between the alleged committing of an offence and the laying of an Information for a summary offence. Counts 1 and 2 were particularised as commencing on 1 July 2001 through to 5 May 2004. The earliest date within the time limit is 5 August 2002. It appears that this obstacle was not noticed by either party until the morning of the appeal hearing, and was not raised before the magistrate. Counsel for the appellant applied to amend the Information to substitute the date 5 August 2002 for the previous commencement date of 1 July 2001. Counsel for the respondents opposed this application. I have however ruled to allow the amendment. The conduct that was the subject of the counts allegedly extended across the whole period particularised. The fact that the date period was partly out of time was not raised by either party during the trial, and had it been raised, an amendment to narrow the alleged time‑frame would no doubt have been allowed. Such an amendment would not, in my opinion, have substantially altered the positions of the parties or the presentation of their cases. In this case there can be no prejudice caused to the respondents in amending the Information in the manner requested by the appellant.
Evidence at Trial – Overview
At trial, the prosecution called a number of witnesses and tendered many documents. The documents tendered were presented in a form which could only be described as unsatisfactory. Those documents basically went to matters of proof in relation to applications which were the subject of charges 3‑8, and also provided evidence in relation to charges 12, 13 and 15‑20. A number of photographs were also tendered which sought to prove that lights and sirens were fitted to the appropriate vehicles on the dates as alleged in the Information. Unfortunately these documents were tendered by consent in bundles, without reference to any aid pursuant to the Evidence Act 1929, and were not dealt with specifically and individually by the magistrate by relating a particular document to particular charges. Although a Mr Sutton from the Department of Transport was called to explain the documents, he did not relate all of the documents to specific charges.
A number of witnesses were called:
·Mr Birch from the Department of Health gave evidence in relation to negotiations with the respondents leading up to the formation of Workcare;
·Mr Sutton, an official from the Department of Transport, gave evidence as to the process of conditional registration which is the subject of counts 3‑8;
·two former employees of Workcare, Mr Pegoli and Mr Turner, gave evidence about the typical use of the vehicles;
·three former clients of Workcare gave evidence about the service provided by the respondents;
·Mr Marsh, who was a police officer from the Expiation Notice Branch, was called in relation to counts 11 and 14; and
·Mr Thompson, the investigating police officer, also gave evidence.
There were also a number of affidavits tendered by consent.
Appeal
The grounds of appeal that applied to all counts are that the magistrate:
1.Erred in dismissing each of the charges on the basis that the prosecution failed to provide sufficient evidence to prove any of the charges against either of the defendants.
2.Erred in addressing the question to be answered on a no case to answer submission.
3.Erred in failing to provide sufficient or adequate reasons on findings of fact and law to explain the dismissal of the charges.
The appellant submitted that these errors apply to the magistrate’s dismissal of all charges, with two notable exceptions. First, the magistrate dismissed counts 9 and 10 on the grounds that they were brought out of time, and the appellant does not appeal these dismissals. Second, the magistrate dismissed counts 12, 13 and 15‑20 against both respondents. The appellant appeals these dismissals against Mr Zammitt, but not against Workcare.
I deal in turn with each of the counts alleged against the respondents.
Count 1
Count 1 alleged that during the dates stated the respondents provided an ambulance service whilst they were not the holders of an appropriate licence pursuant to the Ambulance Services Act, nor were they listed as persons or circumstances prescribed by reg 4 of the Ambulance Service Regulations 1993.
The offence is set out in s 5 of the Ambulance Services Act:
5 Offence
A person who provides an ambulance service is guilty of an offence unless -
(aa) the service is provided by SAAS; or
(a)he or she is licensed under the Act to provide that service; or
(b)the service is provided by a person or a person of a class, or in circumstances, prescribed by regulation.
Maximum penalty: $20,000
None of the exceptions in s 5 apply. The respondents are not the SAAS, and may not avail themselves of s 5(aa). It is clear that the respondents did not hold a licence under the Ambulance Services Act as provided in s 5(a). An affidavit to this effect from Mr Terrance Evans, Acting Chief Executive Officer of the Attorney-General’s Department, was tendered by consent. Nor are the respondents persons, or in a class of persons, or in circumstances prescribed by regulation as provided in s 5(b). Regulation 4 of the Ambulance Services Regulations lists prescribed persons and circumstances for the purposes of s 5(b) of the Ambulance Services Act, and none are relevant to the present proceedings.
In her reasons for dismissal the magistrate stated:[4]
I note that while the prosecutor in her opening mentioned prescribed persons there was no evidence before the Court that the defendants were not persons prescribed by regulation.
It is unclear what weight this consideration was given by the magistrate, as she had already concluded that the respondents were not providing an ambulance service. With respect, if it received any weight it was mistaken, because of course, this was not something that needed to be proved. As counsel for the appellant rightly submitted, a court must take judicial notice of legislative instruments such as regulations.[5]
[4] Police v David Zammitt & Workcare Pty Ltd (Unreported, Magistrates Court of South Australia MC‑PAR‑04‑6528, Hayes SM, 26 July 2006), 4.
[5] Evidence Act 1929, s 35.
As none of the exceptions in s 5 apply, it is necessary to turn to the question of whether the respondents were providing an “ambulance service” for the purposes of s 5.
Section 4 provides the following definitions relevant to the offence in s 5:
In this Act, unless the contrary intention appears –
ambulance means a vehicle that has been modified and equipped and is staffed to provide medical treatment to patients being transported in the vehicle;
…
ambulance service means the transporting of a patient by ambulance to a hospital, surgery or other place to receive medical treatment or the transporting of a patient by ambulance from a hospital, surgery or other place at which the patient has received medical treatment;
medical treatment includes all medical or surgical advice, attendances, services, procedures and operations and also includes the observation of patients;
…
(emphasis in original)
The three definitions must be read in conjunction. In particular the definition of “ambulance service” must be read in light of the definition of “ambulance”. An ambulance service means the transporting of a patient by ambulance. An “ambulance” is “modified and equipped and … staffed to provide medical treatment to patients being transported”. I note that modified, equipped and staffed are conjunctive requirements. In my opinion, all three requirements are modified by the phrase “to provide medical treatment to patients being transported”. This means that to be classed as an ambulance for the purposes of s 5, a vehicle must be modified, equipped and staffed in ways that assist the provision of medical treatment to patients being transported.
In her reasons the magistrate did not make any findings of fact as to the service operated by the respondents. On an examination of the evidence that was before the magistrate, I find that the vehicles used by the respondents were equipped and staffed to provide medical treatment to patients being transported, but they were not modified for such a purpose.
The vehicles were clearly equipped to provide medical treatment to patients being transported. Two former employees of the respondents who worked as trained paramedics, Mr Paul Pegoli and Mr Mark Turner, described the equipment carried in Workcare’s vehicles.
Mr Pegoli stated that all vehicles carried medical equipment, though the items carried varied, “depending on the clinical level” of the paramedic employed by Workcare. As Mr Pegoli held the highest level of clinical qualification, he said:[6]
I carried a life pack 5 which is a manual defibrillator so that can be used in a cardiac arrest situation. The drugs that I carried was you know ranged from GTN which was used for cardiac patients with chest pain through to, for example, Lignocaine which is a drug used for cardiac arrest. There were probably five to six invasive drugs that I carried and I carried airway equipment as well to be able to ventilate a patient, incubation equipment and also we carried a trauma kit which was basically dressings and roll bandages, antiseptics. … [this equipment] was in the back of the boot and there was oxygen as well.
He also carried “cervical collars and a trauma kit as well.”
[6] Trial transcript, 70.
Mr Turner provided similar evidence. He gave evidence that his car carried items including defibrillators, slings, bandages, collars and first aid drugs.[7]
[7] Trial transcript, 102.
The vehicles were staffed to provide medical treatment to patients being transported. The magistrate heard evidence from Mr Pegoli and Mr Turner in which they described providing medical treatment to client companies’ employees and transporting those less serious, “priority 2” cases, to hospital or other medical facility if this was needed. Mr Pegoli described the treatment provided at worksites as “invasive”. It included “putting tubes down people, airway management, intravenous access.”[8]
[8] Trial transcript, 64.
Mr Pegoli’s evidence was that the paramedics worked alone and could not drive as well as give medical treatment. Counsel for the respondents submitted that the phrase “provide medical treatment to patients being transported” should be read “provide medical treatment to patients whilst being transported”. Counsel for the respondents submitted that the vehicles were not ambulances because there was no capacity to provide medical treatment while the vehicles were in motion.
The Ambulance Services Act defines “medical treatment” as including “all medical or surgical advice, attendances, services, procedures and operations and also includes the observation of patients” (emphasis added). I am of the view that mere observation is not sufficient to satisfy this definition, however, in this case I find that on the facts presented there was more than mere observation. The evidence of Mr Jozef Willemsen is particularly relevant in this regard. He injured his back at his workplace on 24 February 2004 and received care from Workcare. Mr Zammitt drove him to hospital. During the journey the pain got worse. Mr Zammitt offered to stop and arrange an ambulance, but Mr Willemsen declined and they proceeded to the Wakefield hospital where he received further treatment. This evidence suggested that Mr Zammitt observed and monitored Mr Willemsen’s condition during the trip. The evidence supported a finding that Workcare’s vehicles were staffed to provide medical treatment to patients being transported.
The evidence did not suggest that the vehicles were modified to provide medical care to patients being transported. Mr Turner and Mr Willemsen described the vehicles as white Ford Falcon sedans. Photographs of the vehicles which were tendered by consent were consistent with that description. It was clear from the evidence of Mr Pegoli, Mr Turner, and the photographs that the vehicles were marked on the sides with bright stripes and had the word “ambulance” printed on the front and back. The vehicles were also fitted with blue and red flashing lights on the roof and a siren. The exception to this was the vehicle with plate number EMR 006 that had “covert lights” located on the vehicle dashboard.[9]
[9] Trial transcript, 91.
These modifications to the vehicles were designed to make the journey faster, they did not assist in the medical treatment, as defined, of the patients. It follows that the vehicles do not fit the definition of an ambulance, meaning that the service provided did not constitute an ambulance service. Accordingly the offence pursuant to s 5 has not been made out and the magistrate was correct to dismiss this count.
Count 2
Count 2 alleged that the respondents intentionally held themselves out as a person or other body who carried on the business of providing an ambulance service whilst failing to hold a licence under the Ambulance Services Act, or being lawfully permitted by regulation to do so, contrary to s 18(1) of the Ambulance Services Act. Section 18(1) states:
(1)A person must not hold himself or herself out as a person who carries on the business of providing ambulance services unless he or she carries on that business and is either licensed under this Act or is a person who is not required to be licensed under this Act in relation to services provided in the course of carrying on that business.
Maximum penalty: $2 500.
The magistrate dealt with count two as follows:[10]
I find that there is insufficient evidence to prove that the defendants were operating an “ambulance service” within the meaning of the Act. I find no case to answer on Count 1. In light of that finding, count 2 must also fail.
With respect, this treatment was inadequate. The elements of count 2 were not the same as those for count 1. In my opinion the evidence clearly demonstrated that while the respondents did not in fact operate an “ambulance service” as defined by s 5, they did hold themselves out to do so.
[10] Police v David Zammitt & Workcare Pty Ltd (Unreported, Magistrates Court of South Australia MC‑PAR‑04‑6528, Hayes SM, 26 July 2006), 4.
In reaching this conclusion I noted from the evidence that Workcare employed trained paramedics, dressed in uniform, who treated patients for illness and injury. They transported patients to hospital in a vehicle marked “ambulance”, fitted with flashing lights and a siren. This must have created the impression in the minds of employees of client companies who were being treated that the respondents were operating an ambulance service. Mr Pegoli gave evidence that when responding to priority 1 calls Mr Zammitt instructed him and the other paramedics to use lights and sirens to get their destination as soon as possible. They were to go through red lights and speed if needed. The motorists who scattered to clear a path must have assumed that the oncoming vehicle was an “ambulance”. These people had no means of knowing what modifications had been made to the vehicles or that they were not technically ambulances for the purposes of s 5.
Counts 3 to 8
Counts 3‑8 related to applications that the respondents allegedly made to Transport SA for conditional registration of their vehicles. The counts alleged that in compiling a record for each of these applications the respondents included a statement that was false or misleading in a material particular, contrary to s 135 of the Motor Vehicles Act. Section 135 states:
135 False statements
(1) A person must not in furnishing information, or compiling a record, pursuant to this Act make, or include in the record, a statement that is false or misleading in a material particular.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2) On a charge of an offence under subsection (1), it is not necessary for the prosecutor to prove the state of mind of the defendant, but the defendant is entitled to be acquitted if the defendant proves that when making the statement he or she believed and had reasonable grounds for believing it was true.
(3) This section applies to written and oral statements, and in respect of written and oral applications and requests.
(4) …
The principal advantage of conditional registration is an entitlement to a reduction in registration fees. Section 25 of the Motor Vehicles Act provides for conditional registration.
Section 6 of Sch 1 of the Motor Vehicles Regulations 1996 prescribes classes of vehicle that may receive conditional registration, including “an emergency response vehicle”. Section 1 of Sch 1 states that “emergency response vehicle” “means an ambulance, fire fighting vehicle or rescue vehicle”. The definition of ambulance in this context is different than under the Ambulance Services Act. Here, ambulance is defined in s 1 as a “motor vehicle that is used principally for responding to emergencies and is fitted with rotating flashing emergency lights, a siren or repeater horn and life supporting equipment”.
To obtain conditional registration Transport SA requires a form (described as MR25C) to be submitted. The charges allege that either the respondents, or someone with the authority of the respondents, completed and submitted forms for each of six vehicles owned by Workcare, and that they were misleading in a material particular, contrary to s 135 of the Motor Vehicles Act.
I will deal with each of the forms in turn, however, generically each of the forms indicated that the vehicle concerned was an ambulance. Applying the definition of “ambulance” in s 1 of Sch 1, this is strictly correct. However, as has already been shown, the vehicles were not ambulances for the purposes of the Ambulance Services Act.
The person who completed each form also ticked boxes to indicate that the vehicle concerned was fitted with emergency lights and a siren. Again these representations are strictly correct. However, r 34(2) and r 118(3) of the Rules forbid the driving of a vehicle fitted with flashing lights and a siren except in certain circumstances that do not apply to the respondents. Counsel for the appellant submitted that the representations were misleading in that although the vehicles were fitted with flashing lights and siren, these items were not lawfully fitted.
I am of the view that for the purposes of a case to answer, there is evidence satisfying the appropriate test that the forms contained misleading statements. There is, at least, a case to suggest that the bald statement that the vehicles were “ambulances”, though they were not licensed as such pursuant to the Ambulance Services Act, was misleading in that it capitalised upon the uncertain relationship between the Ambulance Services Act and the Motor Vehicles Regulations. Similarly, to represent that the vehicles were fitted with flashing lights and sirens, when to drive the vehicles in that state would be unlawful pursuant to the Rules, establishes a prima facie case.
However, the magistrate did not dismiss counts 3‑8 on the basis of an interpretation of the statements made in the forms. She dismissed them because the forms which were presented at trial did not prove that the respondents had made the statements that were alleged to be misleading. As I have indicated, one can sympathise with the magistrate as they were just tendered in a bundle. She said in her reasons:[11]
The evidence relied on by the prosecutor consisted of a bundle of documents marked EMR 001‑009 which were tendered by consent (Exhibit P9). It was conceded by the prosecutor that the some [sic] of those documents were irrelevant to the charges. Mr Sutton, a Senior Policy Officer from Transport SA gave limited evidence in relation to them. There was no proof as to the provenance of these documents, they were simply produced by the prosecutor and tendered by consent. They were not certified copies. The various makers of the documents have not been identified or called to give evidence. The dates on several of the documents refer to entities other than the two named defendants.
I find there is insufficient evidence to establish that either of the defendants was involved in making or authorising the making of false or misleading statements.
[11] Police v David Zammitt & Workcare Pty Ltd (Unreported, Magistrates Court of South Australia MC PAR‑04‑6528, Hayes SM, 26 July 2006), 5.
It was argued on appeal by counsel for the respondents that the signatures on each of the forms do not match each other, and there is no evidence that Mr Zammitt signed the forms or caused them to be signed. It certainly appears that the forms were completed by at least two different individuals. However, it is sufficient if the applications were made with the authority of the respondents. Conditional registration of these vehicles benefited only the respondents. It is an inference open on the evidence that the respondents caused these forms to be lodged.
Counsel for the respondents also submitted that the name listed as the owner of each vehicle was not consistent and did not always match the name of the second respondent. The owner listed on the form for count 3 was “Workcare South Aust”. The owner listed for counts 4 and 5 was “Workcare SA P/L”. The owner listed for counts 6, 7 and 8 was “Workcare S.A.”. These names bear a striking resemblance to the second respondent, Workcare South Australia Pty Ltd. The nature of this evidence is unsatisfactory, nevertheless, putting the prosecution case at its highest, there is an inference capable of being drawn to the requisite degree that those forms refer to the second respondent.
It is also argued, both before the magistrate and on appeal, that the dates on the Information when the false or misleading record is said to have been compiled is not matched by the evidence. For instance, count 3 reads as follows:
On the 29th day of August 2002 at Tranmere in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
On the documents that were tendered by consent, the form was dated on 30 August 2002, not 29 August 2002. It is clear from the records that 29 August was actually the date that the registration of the vehicle commenced. In my view, that cannot be the basis of a no case to answer submission.
Count 4 read:
On the 31st day of December 2002 at Tranmere in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
According to the records presented, the document was dated 30 December 2002, not 31 December 2002. 31 December 2002 was the date the registration of the vehicle commenced. In my view, that cannot be a bar to there being a case to answer.
Count 5 alleged:
On the 7th day of May 2003 at Prospect in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
The documents presented indicate that the statement which was allegedly false was dated 1 May 2003, not 7 May 2003. 7 May 2003 was the date the registration of the vehicle commenced. Once again I find that that cannot be a bar to there being a case to answer.
Count 6 alleged:
On the 16th day of May 2003 at Prospect in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
The documentation in relation to that count indicated that the statement which was alleged to be misleading was dated 15 May 2003. The registration of the vehicle commenced on 27 May 2003. It is very difficult to reconcile that evidence with the count and, in my view, the magistrate was correct in finding no case to answer on count 6.
Count 7 alleges:
On the 16th day of May 2003 at Prospect in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
The evidence provided indicated that the document was dated 15 May 2003. The registration of the vehicle commenced on 16 May 2003. I therefore find that that is not a bar to a case to answer on that count.
Count 8 alleges:
On the 27th day of May 2003 at Prospect in the said State in compiling a record pursuant to the Motor Vehicles Act, 1959 included in that record a statement that was false or misleading in a material particular.
The evidence established that the document was dated 15 May 2003 and the registration of the vehicle commenced on 16 May 2003. In relation to that count, because of the disparity in the dates, I find that there is no case to answer.
As I have indicated, I sympathise with the magistrate in trying to sort out the material because of the way it was presented, but on closer examination and bearing in mind the appropriate test, I find that there is a case to answer for both respondents on counts 3, 4, 5 and 7.
Counts 11 and 14
Counts 11 and 14 alleged that the respondents attempted to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the Criminal Law Consolidation Act. As already stated, these charges related to attempts by the respondents to claim exemption from two speeding expiation notices that were issued to them. Rule 306 of the Australian Road Rules gives an exemption to drivers of emergency vehicles in certain circumstances.
Vehicles owned by Workcare were detected exceeding the speed limit by speed cameras. Senior Sergeant Marsh gave evidence that on two occasions Mr Zammitt wrote letters to the Expiation Notice Branch seeking to have fines withdrawn. The first letter was dated 7 May 2003. It stated:
As you may or may not be aware Workcare South Australia operates a 24/7 Emergency Medical Service which responds to potentially life threatening/non life threatening incidents.
All our vehicles are registered as Emergency Response Vehicles and under emergency situations have the same exemptions as any other Emergency Service Vehicle in South Australia.
On the stated date (10/04/03) EMR 001 with a Critical Care Paramedic on board was required to respond to a Priority 1 case at Serco Transport (Elizabeth Dept). At all time during Transit (EMR001) had its emergency warning devices activated.
The Paramedic responded to a employed Serco bus driver who was a victim of a Motor vehicle accident. On arrival the patient presented in shock and showed symptoms of cervical spine injury, however the patient refused ambulance transport.
I would expect that this expiation be waivered [sic]on the facts supplied.
Mr Marsh wrote back to Mr Zammitt:
I advise sufficient reasons exist to warrant withdrawal of these notices vide Rule 306 Australian Road Rules (exemption for drivers of emergency vehicles) and no further action will be taken.
Mr Zammitt again wrote to the Expiation Notice Branch on 2 April 2004. He again stated that Workcare’s vehicles “have the same exemptions as any other Emergency Service Vehicle in South Australia”, and explained the circumstances of this speeding:
On the stated date (08/03/04) EMR 006 with a Critical Care Paramedic on board was dispatched to a Priority 1 case at Exide Technology, Elizabeth. At all times during Transit (EMR006) had its emergency warning devices activated.
The second fine was not withdrawn. In his affidavit dated 15 March 2006 Mr Marsh stated that he noted in the photographic evidence that this vehicle was not fitted with flashing lights. Accordingly, he formed the opinion that a pre‑condition of r 306 was not satisfied, and he wrote to Mr Zammitt to inform him that the infringement notice would not be withdrawn on this occasion. He stated in his affidavit that he would not have withdrawn the first fine had he known that the vehicle was not an emergency vehicle.
Counsel for the appellant alleged that these requests to withdraw the expiation notices were an attempt to pervert the course of justice or the due administration of the law, as there was in fact no emergency and the respondents did not operate emergency vehicles.
At trial the prosecution led evidence that purported to show that the circumstances of each incidence of speeding was not as claimed by Mr Zammitt. At the very least it can be seen that the two statements that the vehicles “have the same exemptions as any other Emergency Service Vehicle in South Australia” are arguably untrue.
The magistrate said in her reasons:[12]
Again the prosecutor failed to provide sufficient evidence as to the identity of the maker of the subject letters to the Expiation Branch.
More importantly there is insufficient evidence to establish the mental element required to prove either of these offences.
Further, it is my opinion that the laying of these charges was inappropriate. The issue of expiation notices for minor traffic (and other) matters is established by the Expiation of Offences Act. This scheme operates to facilitate the administration of fines payments for minor regulatory matters. Once an expiation notice is received the recipient can deal with the matter in a number of ways. No court proceedings are commenced against the recipient unless he or she specifically requests the matter to proceed to prosecution. The Act also envisages that the recipient and the issuing authority can enter into a mutually acceptable arrangement to resolve the matter. There is no prohibition on a recipient from contacting the relevant authority and requesting that the notice be withdrawn.
I agree that as a matter of law, putting the prosecution case at its highest, the conduct alleged could not amount to an offence of attempting to pervert the course of justice. In R v Rogerson, Nowytarger & Paltos,[13] Brennan and Toohey JJ said:
The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice. Subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed.
When the Crown must rely on inference to prove the intent of alleged conspirators to pervert the course of justice by the doing of an act which tends to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least – (1) an inference that the conspirators believed that the police might invoke the jurisdiction of a court or of some competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and (2) a further inference that the conspirators either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant aspect or intended that the act should have that effect. It is not sufficient for the Crown to prove merely an intention to deceive the police.
[12] Ibid, 8.
[13] (1992) 174 CLR 268, 284.
Section 5 of the Expiation of Offences Act 1996 provides that certain offences may be expiated. Under s 8 an alleged offender may elect to be prosecuted for the offence for which the expiation notice relates, in which case the notice will be taken to have been withdrawn. It can be seen therefore that an expiable offence only results in prosecution if the defendant so elects.
The magistrate correctly noted that the system of expiation notices is essentially an administrative system and not curial proceedings. The conduct alleged of the respondents cannot be said to have avoided or otherwise perverted curial proceedings, as these proceedings could only occur by the election of the respondents. It follows that counts 11 and 14 are not made out.
Counts 12, 13 and 15‑20
The appellant does not challenge the dismissal of these counts against Mr Zammitt. The appeal only relates to Workcare.
Counts 12, 15, 17 and 19 allege that Workcare owned motor vehicles that were driven on various roads with a siren, contrary to r 34(2) of the Rules. Rule 34(2) and r 34(3) state:
…
(2)A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, bell, exhaust whistle, compression whistle or repeater horn.
(3)However, subrule (2) does not apply to:
(a) a police vehicle; or
(b) an emergency vehicle; …
Counts 13, 16, 18 and 20 alleged that Workcare owned motor vehicles that were driven on various roads with flashing blue and red lights, contrary to r 118(3) of the Rules. Rule 118 states:
118Other lights and reflectors
(1) In this rule:
exempt vehicle means:
(a)a police vehicle; or
(b)an emergency vehicle.
special use vehicle means:
(a)a vehicle built, fitted or acquired for a special use that when so used may result in a hazardous situation on a road; or
(b)a vehicle, or combination, that because of its dimensions is permitted to be driven on a road only in accordance with an oversize or overmass vehicle exemption (see section 115 of the Road Traffic Act 1961); or
(c)a vehicle built or fitted to accompany a vehicle, or combination, mentioned in paragraph (b); or
(d)a bus fitted, before July 1999, with a sign telling road users that the bus carries children.
Examples of special use vehicles to which paragraph (a) applies—
1Tow trucks.
2Vehicle breakdown service vehicles.
3Weed spraying vehicles.
4Power driven lawn mowers.
5Animal rescue vehicles.
6Vehicles used by primary producers droving stock between paddocks.
7Buses fitted for use on the track commonly known as the O-Bahn busway.
(2) A vehicle may be fitted with any light or reflector not mentioned in the Vehicle Standards.
(3) However, unless subrule (4) applies, a vehicle must not display:
(a)a light that flashes; or
(b)a light or reflector that:
(i)shows a red light to the front; or
(ii)shows a white light to the rear; or
(iii)is shaped or located in a way that reduces the effectiveness of a light or reflector that is required to be fitted to the vehicle under the Vehicle Standards.
(4) Despite any requirement of a third edition ADR:
(a)an exempt vehicle may be fitted with any light or reflector;
(b)a special use vehicle may be fitted with 1 or more flashing yellow lights;
(c)a State Government enforcement vehicle may be fitted with 1 or more flashing magenta lights.
Vehicles can only be driven with sirens and flashing lights if they are police or emergency vehicles. According to the Dictionary in the Rules:
emergency vehicle means a vehicle driven by any of the following in the course of his or her duty:
…
(c) a person engaged in the provision of ambulance services under the Ambulance Services Act 1992;
(d) a person engaged in the provision of services on behalf of St. John Ambulance Australia, S.A. Incorporated;
…
As previously found, the respondents did not satisfy either of these conditions and, therefore breached s 112 of the Road Traffic Act.
As with the previous charges, these charges were not particularised according to the plate number of each vehicle concerned. Rather, they were particularised according to a date and place on which each car was alleged to be driven.
Counts 12 and 13 related to driving on 24 February 2004 whilst the vehicles were fitted with flashing lights. Evidence was led from Mr Willemsen that Mr Zammitt drove him to hospital on that date and that the vehicle he was travelling in was fitted with flashing lights mounted on the roof. Also photographs were tendered at the trial as a result of a red light camera.[14] These photographs were dated 24 February 2004. They were incapable of showing whether the vehicle was fitted with flashing lights. However, Mr Zammitt received an expiation notice in relation to that date and wrote to the Expiation Notice Branch[15] and said that the vehicle registered number EMR 006 had “its emergency warning device activated”.
[14] Exhibit D12.
[15] That letter was also the subject of count 14.
Further evidence was presented, namely the form (MR25C) which was lodged by the respondents in its application for conditional registration for the vehicle EMR 006. That form stated that the vehicle was “fitted with a siren or repeater horn” and “fitted with flashing emergency lights”.
There was further evidence from Mr Thompson, the investigating police officer, who gave evidence that he visited the premises of Workcare on 23 April 2004 in company with Mr Bruce Wells. Photographs were taken of EMR 006 and were tendered at trial.[16] They clearly showed lights capable of flashing attached to the front of the vehicle, behind the windscreen and mounted on the dashboard, though none mounted on the roof as reported by Mr Willemsen.
[16] Exhibit P4.
In my view, the totality of the above evidence clearly makes out a case to answer on counts 12 and 13.
Counts 15 and 16 related to driving on 13 April 2004. In support of these charges the appellant tendered before the magistrate an affidavit of Mr Michael Smith, a police officer. This affidavit was tendered by consent. In the affidavit Mr Smith states that he saw a white Ford XR8 BA model travel past him. The vehicle was travelling at speed and the headlights appeared to be flashing. The vehicle was fitted with red and blue emergency lights mounted inside the windscreen and a siren, both of which were operating. The vehicle was marked with a red and white checked band along the side of the vehicle, had the words “Workcare SA Emergency” on the rear panel and the word “Ambulance” on the vehicle’s bonnet. His evidence is capable of creating a strong inference that these were vehicles operated by the respondents. Accordingly, I find that there was a case to answer with respect to counts 15 and 16.
Counts 17 and 18 relate to driving on 15 April 2004. Again Mr Smith stated in his affidavit that he viewed a vehicle with plate number EMR 004, stop in front of him at traffic lights. Flashing lights were fitted on the roof of the vehicle. The MR25C form lodged with Transport SA for EMR 004 was evidence that Workcare was the registered owner of the vehicle and that it was fitted with “a siren or repeater horn” and “flashing emergency lights”. I find that there is a case to answer with regard to counts 17 and 18.
Counts 19 and 20 related to driving on 19 April 2004. Mr Thompson testified that he saw a vehicle with plate number EMR 008 drive along Grote Street in Adelaide. A red and blue light bar was fitted on its roof. Again the MR25C form lodged with Transport SA was evidence that Workcare owned the vehicle and that it was fitted with lights and a siren. Counsel for the appellant reports that this vehicle was also present when Mr Thompson and Mr Wells visited Workcare’s premises, however, I can find no evidence to support this submission. Nevertheless, I find that there is sufficient evidence that there is a case to answer on counts 19 and 20.
Conclusion
The appeal is dismissed in relation to counts 1, 6, 8, 11 and 14. In relation to the remainder of the counts the appeal is allowed and those matters will be remitted to the Magistrates Court for hearing.
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