Robert Ward v Corporation of the City of Adelaide No. SCGRG93/1850 Judgment No. 4316 Number of Pages 3 Local Government Offences and Penalties

[1993] SASC 4316

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Local government - offences and penalties - appeal against conviction for parking offence - ticket had been displayed incorrectly so that details could not be read - defence of act of a stranger - evidence of appellant that he had initially placed ticket in correct position accepted by justices - appeal allowed - conviction and orders as to costs be set aside and complaint dismissed. Local Government Acts.24. Howie v Sutcliffe (1988) 6 MVR 331 and Mayer v Marchant (1973) 5 SASR 567, applied.

HRNG ADELAIDE, 8 November 1993 #DATE 7:12:1993
Counsel for appellant:     Mr D Craig
Solicitors for appellant:    Mellor Olsson
Counsel for respondent:     Mr M Podobnik

ORDER
Appeal allowed.

JUDGE1 NYLAND J This is an appeal against a conviction for a parking offence. The appellant was charged that on the 9th day of October 1992 at a place within the area of the Corporation of the City of Adelaide he was the owner of vehicle, Registered No. VHP-741, which vehicle was parked in a parking zone in Angas Street without displaying a valid ticket issued by ticket dispensing device relating to the parking space in that parking zone. Evidence was led by the complainant that at 2.42 p.m. on the day charged the appellant's motor vehicle was observed in a 2 hour ticket parking area, numbered 9110438, on the northern side of Angas Street. Mr Burns, a parking inspector employed by the Adelaide City Council, observed a ticket in the appellant's motor vehicle which was reverse side up. He noted in his book "Ticket was turned over, could not read details at all". The appellant did not dispute this evidence. 2. The appellant gave evidence that at about 2.28 p.m. he parked his car in Angas Street prior to visiting the Adelaide City Council Townscape Exhibition at the Town Hall. Whilst obtaining a ticket from the ticket dispensing machine he saw the parking inspector looking at his vehicle and he waved in his direction to indicate that he was purchasing a ticket. He said that he then obtained a ticket which was valid until 3.16 p.m. on that day. He said he placed it in the correct position on the passenger's side of the vehicle face up, showing the date and time. He then locked his car. He said he returned to the vehicle some time prior to 3.16 p.m. and noticed the ticket had moved to the centre of the dashboard but was still face up. He was unable to offer any explanation for the change in position other than to conjecture that, as it was a windy day and he had left the air vents open in the car, the wind or some other force had caused the ticket to be blown to the centre of the car. The Justices, in their decision, appear to have accepted the evidence of both the complainant and the appellant. They delivered short ex tempore reasons for the decision to convict. I set them out in full:
    "Mr Ward, you are charged today with an invalid parking
    ticket displayed on your vehicle, covered under Section 24 of
    the Local Government Act and also Regulation 475(e)(3) of the
    regulations. The facts that are not in dispute were the time,
    date and place of the offence. The matter in dispute is whether
    a ticket was displayed correctly or incorrectly. Regulation 24
    of the Local Government Act states in part that a permit is
    valid only if the permit is displayed on the side opposite of
    the driver's position, so the side of the ticket indicating the
    relevant times that the vehicle is permitted to remain are
    visible.
     The parking inspector gave evidence that at 2.42 p.m. a
    ticket was incorrectly displayed, as the details could not be
    read. This is approximately 14 minutes after the vehicle was
    parked in that position. He accordingly issued an infringement
    notice for the vehicle for that offence. The defendant in
    evidence stated that he purchased a ticket, and in this regard
    the appropriate ticket was tabled as Exhibit D1. There is no
    dispute as to whether a ticket was purchased. His evidence
    stated that he placed the ticket correctly on the passenger side
    and locked the vehicle. On returning he noticed that the ticket
    had moved, was now in the centre of the vehicle, and further
    stated that the ticket was still face-up. He attributed this to
    possible wind gusts on the day.
     It is therefore possible that the ticket had moved more than
    once in the period, and at the time of the parking inspector
    arriving the ticket could well have been in the incorrect
    position. We therefore find that the case is proven and we
    enter a conviction for the offence. There will be a fine of
    $11, court costs of $64 and the court levy of $25, plus council
    costs of $82.40 made up of: service fee on summons $10, witness
    fee $20, Motor Vehicles Department search fee $2.40 and a
    council fee for preparation and presentation of the case $50.
In default, four days imprisonment. Two months to pay." 3. The appellant argued that whilst the parking regulation may be one of strict liability it was not an offence of absolute liability. He submitted that on that basis by reference to Howie v Sutcliffe (1988) 6 MVR 331 the "defence" of act of a stranger applied. In that case von Doussa J said at p.337:
    "It imposes a strict liability in the sense that whilst
    there is no necessity for the complainant to prove the existence
    of mens rea, it is open to the defendant to rely on the so
    called 'defences' of honest and reasonable mistake of fact (the
Proudman v Dayman (1941) 67 CLR 536 defence) and of act of a
    stranger. It is now established that these are not 'defences'
    in the sense that the defendant carries an onus of establishing
    them on the balance of probability. Once there is before the
    tribunal evidence worthy of consideration which suggests the
    breach complained of is attributable to an act of a stranger the
    complainant to succeed must exclude that suggestion beyond
    reasonable doubt: Boucher v G J Coles and Co Ltd (1974) 9 SASR
    495." 4. He further said at p.338:
"In Mayer v Marchant (1973) 5 SASR 567, Bray CJ after
    discussing the earlier decision said (at 573): 'I would prefer
    to formulate the proposition in this way: that normally speaking
    it is a defence to a criminal charge, whether under the
    provisions of the common law or of any statute, to show that the
    forbidden act occurred as the result of an act of a stranger, or
    as the result of non-human activity, over which the defendant
    had no control and against which he could not reasonably have
    been expected to guard.'" 5. In this case the Justices appear to have accepted the appellant's evidence that he placed the ticket correctly in the motor vehicle prior to leaving it, as they allow for the possibility that it had moved more than once during his absence. They, therefore, allow for the possibility that the "forbidden act occurred as the result of... non-human activity, over which the defendant had no control and against which he could not reasonably have been expected to guard" as mentioned by Bray CJ in Mayer v Marchant (supra). 6. Accordingly there was evidence before the Justices upon which the appellant could have been exculpated. In any event, having accepted that the appellant placed the ticket in the correct position initially, it was open to the Court to categorise the offence to be of a trifling nature and to have dismissed it without recording a conviction. 7. In all the circumstances I propose to allow the appeal and direct that the conviction and orders as to costs against the appellant in the Court of Summary Jurisdiction be set aside and that the complaint be dismissed.