Richtsteiger v Police - [2020] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RICHTSTEIGER v POLICE
[2020] SASC 73
Judgment of The Honourable Auxiliary Justice David
7 May 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT OBEYING TRAFFIC LIGHTS AND TRAFFIC ARROWS - GENERALLY
TRAFFIC LAW - DEFINITIONS - OTHER DEFINITIONS
Appeal against a conviction imposed by a Magistrate.
The appellant was convicted by a Magistrate of the offence of entering into an intersection whilst turning right against a red traffic arrow, contrary to r 60 of the Australian Road Rules (SA) and s 79B of the Road Traffic Act 1961 (SA). Evidence as to the appellant’s vehicle turning right against a red traffic arrow was obtained from the operation of a photographic detection device. The appellant gave evidence that the arrow was not red.
It was argued at trial that the intersection began at the stop line.
The Magistrate found that the intersection begins at some point after the stop line, not at the stop line and that there was a red traffic arrow when the vehicle entered the intersection.
The appellant appeals against the Magistrate’s decision and contends that the intersection begins at the stop line.
Held per David AJ, dismissing the appeal:
1. That the Magistrate was correct in concluding that the intersection started at some point after the stop line.
2. Consequently, the admitted photographs tendered in evidence clearly showed that the appellant had entered the intersection against a red traffic arrow.
Road Traffic Act 1961 (SA) s 79B; Australian Road Rules (SA) rr 56, 60, dictionary; Road Traffic (Miscellaneous) Regulations 2014 r 30, referred to.
Jordan v Police [2006] SASC 205, discussed.

RICHTSTEIGER v POLICE
[2020] SASC 73
Magistrates Appeal: Civil

DAVID AJ: This is an appeal by the appellant, Mr Richtsteiger, against his conviction by a Magistrate for a breach of s 79B(2) of the Road Traffic Act 1961 (SA) (the RTA).
The offence details were that on Saturday 17 March 2018 at Modbury, the appellant was the owner of a vehicle, which, from evidence obtained from the operation of a photographic detection device, it appears was involved in a prescribed offence. Namely, that on North East Road the appellant failed to comply with instructions applicable to that vehicle, which were indicated by traffic arrows. This is contrary to r 60 of the Australian Road Rules (SA) (the ARR) and s 79B of the RTA.
The prosecution case at trial was that the appellant’s vehicle entered the intersection of North East Road and Reservoir Road at Modbury and was turning right against a red traffic arrow. At trial, as on appeal, the appellant ably represented himself without the assistance of counsel.
The trial
The offence for which the appellant was found guilty contrary to s 79B(2) of the RTA requires proof by the prosecution that:
1.a vehicle;
2.from evidence obtained through the operation of a photographic detection device;
3.appears to have been involved in the commission of a prescribed offence (in this case being a breach of r 60 of the ARR which is prescribed pursuant to reg 30(2)(g) of the Road Traffic (Miscellaneous) Regulations 2014 (SA) (the Regulations); and
4.that the defendant is the owner of the vehicle.
The prescribed offence which was alleged was that traffic arrows at an intersection or marked foot crossing were showing a red traffic light and the vehicle entered the intersection or marked foot crossing.
Under the RTA legislation, there are a series of exceptions, even if the above is proved. There is no onus on the prosecution to disprove those exceptions. However, as the case was argued both at trial and on appeal, they are not relevant.
The prosecution case was presented by the tendering of photographic evidence produced by a photographic detection device that was automatically activated when a vehicle passed over a particular section of the road against a red light. The prosecution also presented one witness, namely a police officer, Sergeant Craig Ferguson, who was stationed at the expiation notice branch. Sergeant Ferguson gave evidence as to the various mechanisms controlling the taking of the photo of the appellant’s vehicle and matters in relation to the intersection in question. He was not technically called as an expert witness, but only to assist in the material that was presented before the court.
There is no dispute that the intersection in question, namely North East Road and Reservoir Road at Modbury, runs in a basically north-south, east-west direction. There is no dispute that the appellant’s vehicle was travelling along North East Road towards the intersection of North East Road and Reservoir Road, Modbury at about 9.00am on the morning of Saturday 17 March 2018. There is also no dispute that he entered the intersection and proceeded by doing a right-hand turn onto Reservoir Road. Leading up to the intersection, there are four lanes on North East Road in the direction that the appellant was travelling. Three of the lanes go straight ahead to cross Reservoir Road and lane number four is a right-turn lane to travel right along Reservoir Road. The intersection is governed by traffic lights. For cars travelling in the direction of the appellant’s vehicle, there are red, amber and green lights for vehicles driving straight over the intersection. There are red, amber and green arrows for vehicles wishing to turn right.
The prosecution case was presented by a number of statutory aids, allowing photos to be taken of the appellant’s vehicle which provided proof of the charge. Those statutory aids were clearly set out in the reasons of the Magistrate and there is no dispute that they were properly adhered to, thus allowing relevant photographs to be presented to the court. In essence, there was no dispute that the appellant was the owner of the vehicle in question and that the photographic detection device which took the relevant photos was an approved apparatus. There was also no dispute that pursuant to s 79B(2) of the RTA, the alleged offence was a prescribed offence, as defined under s 79B(1) of the RTA and therefore the prosecution could call in the statutory aids provided under the RTA. Further, there was no dispute that the appellant was first issued with an expiation notice for the offence and was allowed the opportunity to expiate the offence before the prosecution was brought.
A number of photographs were admitted in evidence. Once admitted under s 79B(10)(a) of the RTA, the onus falls upon the defendant (the appellant in this case) to prove that the photograph was not taken at the time, date and location denoted on the photograph. There was no such contest in this case. There was also no dispute that the photographic device complied with the requirements of the RTA and Regulations as to its operation and testing at the relevant time. Pursuant to s 79B(10)(b) of the RTA, a certificate was produced and signed by Inspector Healy, the effect of which is that it will be accepted that the requirements of testing and operation of the photographic detection device was compliable in the absence of proof to the contrary. The end result of the appropriate certificate being tendered at trial was that the onus shifted to the appellant to prove to the contrary, (on the balance of probabilities), the facts that are asserted in the certificate.
The photographs tendered at trial were exhibits P4, P5, P6, P7 and P8. It is to be noted that P5 was an enhanced version of P4, due to the darkness of the original photograph and P8 was an enhanced version of P7 for the same reason. I will refer in these reasons to the relevant photographs as P4 and P7, even though I am assisted by looking at P5 and P8. Exhibit P6 was a closeup photograph of the rear of the appellant’s vehicle and indicates the registration number which was not in dispute. Therefore, the relevant photographs for the purpose of this matter were P4 and P7. It is also to be noted that at the intersection in question, there is a thick stop line, leading into two lines for pedestrians crossing the road, leading into the intersection. The first photograph, P4, indicates a yellow vehicle stationed in lane four (the right-hand turn lane) at the stop line. It also indicates the appellant’s vehicle turning from lane three across the yellow vehicle. The appellant’s vehicle was placed across the pedestrian part of the road, with its rear wheels over the stop line. Exhibit P4 also indicates the traffic lights facing those two vehicles as being a red disk for vehicles travelling straight ahead and a red arrow for vehicles turning right. In a block at the top of the photograph (the data block) there are certain details set out, namely:
1.Location code: 134 - North East Road and Reservoir Road, Modbury;
2.Date: 17/03/2018;
3.Time 09:02:09;
4.Frame Number: 2 SA;
5.Phase: RED 106.83 seconds;
6.Last Phase: GREEN 43.40 seconds;
7.Lane: 4;
8.Camera Number 121; and
9.Speed Zone: 60 km/h.
The next photograph, P7, has exactly the same detail on the data block as P4 except the time is 09:02:10, the frame number is 2 SB and the phase is Red 107.84 seconds. In that photograph, the lights are the same colour, namely a red disk and a red arrow. The appellant’s vehicle is well into the intersection and the yellow vehicle in the right-hand lane is in the same position.
In his evidence, Sergeant Ferguson said that he was stationed at the expiation notice branch for about one and a half years and was familiar with the photographic detection system used for a red-light traffic detection. He said he was familiar with the operation of the cameras in question. He gave evidence on his belief as to how the camera system operates. He also gave evidence as to how, ahead of the pedestrian crossing in relation to each lane there is a ‘loop’. A loop is activated about a half a second after the relevant traffic light or arrow shows red and is triggered when a car passes over it. Sergeant Ferguson said that the entry in the data block of P4 indicated that the red light had been activated for 106.83 seconds for lane four at the time the photograph was taken. Also, that the entry in the data block of green 43.40 seconds meant that before the red phase, a green phase was shown for that period of time.
As mentioned, the appellant at trial did not dispute that he was the owner of the appropriate vehicle, that he was approaching along North East Road to the intersection of North East Road and Reservoir Road at Modbury at the time and day in question and that he proceeded through the intersection doing a right-hand turn onto Reservoir Road. He also did not contest the tender of the photographs.
He gave evidence that he was in the right-hand lane, or the fourth lane, and was parked behind the yellow vehicle shown in the relevant photos. He wished to turn right onto Reservoir Road and was stationary, presumably because the light was red. He gave evidence that the arrow, governing his turn to the right, turned green, but the yellow Renault did not move, obviously because of some mechanical difficulties. He gave evidence that he tooted his horn, but the driver of the yellow vehicle seemed to indicate that he had stalled and was having trouble getting restarted. The appellant gave evidence that he then intended to go around the yellow vehicle and to do so he backed away, looked at his rear mirror and saw that it was safe to reverse. He did so and then moved into the third lane. He said that when he moved into the third lane, the arrow was yellow, not red. He said he passed the stationary yellow vehicle, continued over the continuous white stop line and did a right-hand turn onto Reservoir Road. He gave evidence that, in his view, the recording in the data block of P4 that the red arrow had been on for 106.83 seconds must have been confused with the time that the traffic lights facing North East Road were on. He suggested that this may have been because when he made the manoeuvre from the third lane, he may have touched two traffic loops and this may have caused the confusion with the readings on the photographs.
In cross examination, he emphasised that although the data block indicated that the red light had been on for 106.83 seconds when the photo P4 was taken, nevertheless, the right turn arrow was not red.
The Magistrate’s reasons
The Magistrate found that the evidence of the appellant may, as a reasonable possibility, have rebutted the presumption that the red arrow was on for 106.83 seconds when he crossed the stop line. His Honour found that the information contained in that data block at trial was not the subject of admissible evidence and he was unable to make any findings as to what it actually meant. Consequently, he accepted the evidence of the appellant on that topic as a reasonable possibility. However, the Magistrate found that there was no evidence from the appellant which was sufficient to rebut the presumption created by the matters certified in exhibit P3 which was tendered in accordance with s 79B(10)(c) of the RTA. Namely, that the device used to detect the offence was designed and set to operate according to a specified system at the time of the offence and did, in fact, operate. He found that in essence, the two relevant photographs spoke for themselves, one of which showed the appellant’s vehicle in a position over the top of the white dash line when the arrow was red. The Magistrate found that this photograph showed the vehicle when it had not yet entered the intersection. The second photograph showed the vehicle in the intersection and turning right when the arrow was still red.
There was a further matter considered by the Magistrate and argued on appeal, namely, where the intersection starts.
It must be proved that the appellant’s vehicle entered the intersection when the traffic arrow was showing red. The Magistrate found that ‘intersection’, defined in the ARR, begins at some point after the stop line and not at the stop line.
Appeal
The appellant appeals against the Magistrate’s decision, basically on two bases. The first and most fundamental argument is that the intersection starts at the stop line itself, that being the case if one looks at exhibit P4, the rear wheels are almost on the stop line whilst the arrow is red. He argues it could be inferred, or, there is at least a reasonable possibility that prior to that, when he first went over the stop line, the arrow may not have been red. If the intersection starts at a position after the pedestrian crossing and further on from the stop line, with the admission of both photographs, the case is clearly made out. Therefore, the question of where the intersection starts is fundamental to the resolution of this matter.
Under the ARR, ‘intersection’ is defined as follows:
intersection means the area where 2 or more roads (except any road related area) meet, and includes—
(a) any area of the roads where vehicles travelling on different roads might collide; and
(b) the place where any slip lane between the roads meets the road into which traffic on the slip lane may turn,
but does not include any road related area.
…
Also, the ARR defines ‘enter’ as:
enter an intersection or crossing, for the driver of a vehicle or a train, means enter the intersection or crossing with any part of the vehicle or train.
…
I find the Magistrate was correct in concluding that the intersection started at some point after the stop line. The definition provided by the ARR clearly excludes that area from the stop line and where pedestrians cross, as that would not be an area where vehicles travelling on different roads might collide. Also, the ARR draws a clear distinction between the stop line and an intersection or marked foot crossing. Pursuant to r 56(1)(a) of the ARR, it is an offence if a traffic light is showing red not to stop at a stop line at or near the traffic lights, as near as practicable to, but before reaching, the stop line. This is to be contrasted to r 60, which makes it an offence to proceed through a red traffic arrow at an intersection or marked foot crossing. If the definition of ‘intersection’ was meant to include the continuous stop line, it would appear to make r 60 purposeless.
I am further fortified in this view by the decision of Layton J as a single judge in Jordan v Police, where her honour says:[1]
[1] [2006] SASC 205 at [52].
The definition of the intersection
At the hearing of the appeal counsel for the respondent raised another issue in relation to the proper interpretation of the evidence before the Magistrate. This case was argued in the Magistrates Court on the basis that the stop line marked the beginning of the intersection. Mr Jacobi submitted, however, that definition of the “intersection” for the purposes of the relevant offence was defined by the dictionary of the ARR as follows:
intersection means the area where 2 or more roads, (except any road related area), meet, and includes:
(a) any area of the road where vehicles travelling on different roads might collide...
On that definition of ‘intersection’ and by virtue of the proper tender of exhibits P4 and P7, the offence is clearly made out.
The further argument presented by the appellant that the traffic lights themselves may have been confused by virtue of the fact that he came from a position from lane three, therefore effecting the loop at lane three and then crossed over into lane four, therefore affecting that loop so as to give a false reading of the traffic lights is, in my view, a mere conjecture.
Conclusion
I dismiss the appeal.