Sao v Police - [2013] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SAO v POLICE
[2013] SASC 103
Judgment of The Honourable Justice Gray
2 July 2013
MAGISTRATES - APPEAL AND REVIEW
TRAFFIC LAW - TRAFFIC REGULATION - KEEPING LEFT, OVERTAKING, AND OTHER DRIVING RULES
Appeal against conviction - defendant found guilty following a trial by Magistrate of breaching rule 132(2) of the Australian Road Rules - defendant was observed by police officer failing to keep his motor vehicle to the left of a dividing line - whether Magistrate erred in accepting the evidence of the police officer - whether an offence against rule 132(2) requires that the entire motor vehicle crosses to the right side of the dividing line - whether an offence against rule 132(2) requires an express intention to drive the vehicle on the right side of the dividing line.
Held: Appeal dismissed - the Magistrate's finding regarding the credibility of the police witness was open on the evidence - rule 132(2) does not require that the entirety of the vehicle crosses to the right side of the dividing line - rule 132(2) does not require that the driver has an express intention to drive the vehicle on the right side of the dividing line.
Australian Road Rules r 132(2) and r 351(3), referred to.

SAO v POLICE
[2013] SASC 103
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
On 20 February 2013, the defendant and appellant, Bruce Sao, was convicted following a trial by a Magistrate of breaching rule 132(2) of the Australian Road Rules. A conviction was recorded. The defendant was fined $150.00 and ordered to pay costs and levies.
The defendant was charged on complaint that:
On the 6TH day of MAY, 2012 at TANUNDA in the said State being the DRIVER of a vehicle namely a MOTOR VEHICLE SA REG NO VJY-970 on a two-way road namely BAROSSA VALLEY WAY with a dividing line, you did not, except as permitted under rule 134 or 139(2) of the Australian Road Rules, drive to the left of the dividing line.
Rule 132(2) of the Australian Road Rules.
It is further alleged that the said dividing line which took the form of 2 PARALLEL CONTINUOUS LINES, applied to you as the driver and was a traffic control device on the said road.
This is a summary offence.
The defendant appeared in person without legal representation at both the trial and on the appeal. English is not the defendant’s first language. A review of the trial transcript demonstrates that the defendant had a sufficient grasp of the English language to enable the trial to proceed. On the appeal, I paid close attention to the defendant’s ability to understand the process and satisfied myself that his command of English was sufficient for that purpose.
At trial, the prosecution called one witness, Senior Constable Bruce Underwood, to say that he saw the defendant travel on the incorrect side of the road. This witness was cross-examined by the defendant. The prosecutor tendered three documents, being a Google map of the area, three photographs of the area and a certificate of motor vehicle registration details. The defendant gave oral evidence and tendered two documents, being a photograph of the defendant’s GPS navigation unit and 13 photographs tendered as a bundle showing the area.
Before coming to discuss the issues arising on the appeal, it is convenient to set out the text of rule 132(2) of the Australian Road Rules:
A driver on a road with a dividing line must drive to the left of the dividing line, except as permitted under rule 134 or 139 (2).
Offence provision.
This rule is to be read together with rule 351(3), which provides:
A driver drives to the left, or right, of a line, sign or anything else only if the driver's vehicle is completely to the left, or right, of the line, sign or other thing.
The substance of the evidence led from Senior Constable Underwood may be summarised as follows. Senior Constable Underwood and fellow police officer Senior Constable Ellbourne were travelling in a marked police vehicle along Barossa Valley Highway towards Tanunda. They were approaching the junction with Vine Vale Road. They were following a Mitsubishi Utility with South Australian registration VJY970. At that time, Senior Constable Underwood saw that this vehicle was travelling on the incorrect side of the double dividing lines marked on the road. Senior Constable Underwood stopped the vehicle, which had only one occupant, who identified himself as Bruce Sao. At trial, Senior Constable Underwood identified this person as the defendant. The section of Barossa Valley Highway where Senior Constable Underwood sighted the defendant’s vehicle, and which he identified by reference to photographs exhibited at the trial, had a set of two continuous dividing lines. Senior Constable Underwood sighted the defendant’s vehicle with its two right-hand wheels across the dividing lines in the straight section of the road. As the defendant travelled further down the road to a bend in the road, his distance across the dividing lines became much greater, to the point where half of his vehicle was on the incorrect side of the dividing lines.
Senior Constable Underwood marked a photograph tendered as an exhibit with a dotted line indicating the path that the defendant had travelled and where his vehicle had crossed the two dividing lines. Senior Constable Underwood’s evidence was that the defendant failed to keep left of the dividing line as part of his vehicle had crossed the dividing line.
At the close of the prosecution case, the Magistrate found that there was a case to answer and then advised the defendant as to his rights and as to the options available to him. The defendant then gave evidence in his defence. In the course of that evidence, the defendant at first asserted that he did not cross the double dividing lines between the carriageways. However, later in the evidence, the defendant indicated that he was not sure whether or not he had crossed the dividing lines.
The Magistrate, in her ex tempore reasons, indicated that she accepted Senior Constable Underwood’s evidence. In particular, her Honour observed:
Police Officer Underwood in my view is an impressive witness. He was thorough in his answers, he was careful and considered in his answering questions. I find that he was an honest and credible witness and I am satisfied I can rely on his evidence.
The Magistrate was explicit in rejecting the suggestions made by the defendant that Senior Constable Underwood had been engaged in some form of dishonesty or conspiracy and in that respect her Honour observed:
First of all, I comment that I do not find that there was any form of conspiracy on behalf of Police Officer Underwood. I am satisfied he is a police officer who has a long period of service both in the police force generally and in particular in this region of Nuriootpa; a decade and a half. In my view, he is a police officer with no reason to pursue this defendant in particular and I am satisfied also that on 6 May he was not seeking out the defendant in any particular way.
It is the case, and it has been agreed, that a few days before that he did speak to the defendant with respect to his driving. He says that he followed up a complaint that had been made which led him to the defendant. It was the first time he had interaction with him and he says that that happened a few days before and not everyone agrees it is a few days before. Originally, he did not know the date, but he accepted the date that was put to him by the defendant. So I am satisfied that it was a coincidence that this officer who had only seen this defendant a few days before, came across this defendant on 6 May 2012. It is a relatively small area to cover so I do not find it at all surprising that he would come across him again within that period of time.
The Magistrate addressed the defendant’s evidence and in that respect noted:
The defendant had a tendency when giving evidence to focus away from the case and rather on matters as to whether the police were pursuing him or, indeed on one occasion used the words, stalking him. As to the actual night in question, I am of the view that the defendant was relatively vague in his recollections of events and his evidence was that it was not until the officer came up right behind him and put the police lights on that he was even aware that there was another vehicle around and so that, to me, tells me that he was not necessarily taking any particular notice of his driving before that time.
Following a detailed review of the evidence and of the submissions advanced by the defendant, the Magistrate then reached the following conclusions:
I am satisfied that the driving was voluntary, that any crossing over the line would constitute a breach of the rules and I am also satisfied the defendant was driving the vehicle and that there are no issues as to voluntariness. It is not necessary in my view to prove it was an intentional act. In my view an inadvertent move across a line could constitute a breach of the rule. I have considered the evidence before the court; I do not consider that Police Officer Underwood has given contradictory evidence, rather I consider he has expanded on his account of events and given some of his evidence out of sequence which then might have led someone to think it might have been contradictory. I think if his evidence is analysed in toto he has not given contradictory evidence.
I am satisfied Police Officer Underwood could see the defendant’s vehicle before the crossing and at the crossing and I am satisfied I can rely upon his evidence. The defendant’s account was vague and lacking any detail. I reject the defendant’s evidence that he did not cross over the lines. I am not satisfied that he was concentrating sufficiently on the road to know whether he was drifting over the lines or not.
I am satisfied prosecution have proven each and every element of the charge as laid and in particular, I am satisfied that they have proven that the defendant moved over on a straight line before the crossing and then cut across the crossing area as demonstrated by the markings on photograph 2 in P2 which shows, as it were, going virtually in a straight line rather than navigating the road around the bend. The defendant, as it were, cut a corner and went across the road instead of staying on the right side of the road. I rely upon the evidence of Officer Underwood in making that particular finding.
I find that all the elements of the offence are proven, in particular that the defendant was the driver, the vehicle was registered to him, which is VJY970, that he was on the Barossa Valley Highway, the road had two parallel continuous lines, it was a dividing line and he did not drive to the left of the dividing line on those occasions that I have mentioned. I am satisfied that was a traffic control device on the road as alleged and that the rules applied to the defendant as the driver of the vehicle. So I am satisfied the prosecution have proven their case beyond reasonable doubt and I find that charge proven.
The Appeal
The primary ground of appeal advanced was that the Magistrate’s decision was unreasonable. It was further contended that the evidence given by Senior Constable Underwood was deliberately dishonest. In my view, there is no substance to these submissions. No grounds were identified to support the suggestion that Senior Constable Underwood was dishonest or was engaged in some conspiracy. There is nothing on the evidence that would justify such a submission. A review of the Magistrate’s reasons demonstrates that close consideration was paid to each of the elements charged and the evidence said to establish each element beyond reasonable doubt. It was open to the Magistrate to act on the Constable’s evidence. There was nothing unreasonable about the Magistrate’s decision. As noted above, the defendant appeared unrepresented at the trial. The transcript reveals that the Magistrate advised and assisted the defendant in an appropriate manner throughout.
It appears that the defendant may labour under the misunderstanding that rule 132(2) of the Australian Road Rules only applies to a driver whose entire motor vehicle crosses double dividing lines, and that this movement must be undertaken with an express intention of doing so. The position is that rule 132(2) applies when any part of the motor vehicle crosses the double solid dividing lines. It is not necessary for the prosecution to prove express intent on the part of a driver to drive their vehicle in such a manner.
In my view, the Magistrate acted reasonably at all times, complied with her obligations when faced with an unrepresented litigant, reached conclusions of credibility and reliability that were open to her, made findings of fact that were open on the evidence and correctly applied the law. In these circumstances, her Honour’s finding that the charge had been proven should be sustained. My review of the evidence and exhibits confirms that the Magistrate was correct in recording a conviction.
The appeal is dismissed.