Singh v City of Holdfast Bay - [2013] SASC 10

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SINGH v CITY OF HOLDFAST BAY
[2013] SASC 10
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
17 January 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - EVIDENCE - OTHER MATTERS
Appeal against conviction for the offence of stopping on the side of a road marked with a continuous yellow edge line - appellant contends that it was the practice of the officers supervising the taxi rank to allow taxis to briefly stand on the yellow line if a taxi was moving off from the front of the rank - whether it was an abuse of process to bring the prosecution given the practice of the officers supervising the rank - whether the evidence of the appellant's offence should have been excluded because it was unlawfully obtained - whether the magistrate erred in recording a conviction - whether the costs awarded against the appellant should be reduced.
Held: No evidence that the council authorised the officers at the rank to extend any leniency to the drivers - there was insufficient reason to exclude the evidence and it was properly received - there was no reason to not record a conviction - there is no ground upon which the costs could properly be reduced - appeal dismissed.
Australian Road Rules, Road Traffic Act 1961 (SA) r 169 and r 307, referred to.

SINGH v CITY OF HOLDFAST BAY
[2013] SASC 10
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction recorded in the Magistrates Court for the offence of stopping on the side of a road marked with a continuous yellow edge line contrary to r 169 of the Australian Road Rules.[1]
[1] Under the Road Traffic Act 1961 (SA).
The appellant, Mr Rai, does not challenge the findings of fact to the effect that he was the driver of a motor vehicle which was stopped on a continuous yellow edge line just after midnight on 31 October 2011 on Colley Terrace, Glenelg. Mr Rai does not challenge the findings of fact made by the magistrate at [20] of his reasons, which were as follows:
[20]I am satisfied of the following facts beyond reasonable doubt:
1. That on 31 October 2011 the defendant was the driver of a Ford sedan, SA T2545. This fact is alleged in the complaint. There is no evidence to the contrary and, in fact, the defendant’s evidence is to the same effect. I rely upon that evidence. I rely upon the observations of Mr Deckers. I further rely upon the provisions of s 175(1)(i) of the Road Traffic Act.
2. That at about 00:34 the defendant stopped his vehicle on the side of a road, namely Colley Terrace, Glenelg. Here I rely upon the evidence of Mr Deckers and the defendant himself. It is alleged in the complaint that Colley Terrace was a road for the purposes of the Road Traffic Act. This is not an issue and there is no evidence to the contrary. I rely upon s 175(1)(a) of the Road Traffic Act and I note the stopping appears to have been brief in the region of about a minute.
3. The defendant stopped his vehicle and the stopping was a deliberate as opposed to an accidental act. Here I rely upon the observation of Mr Deckers and the defendant’s own evidence. I note that it is also alleged in the charge the defendant stopped his motor vehicle and that stop includes park for the purposes of the Act. I also rely upon s 175(1)(b) of the Road Traffic Act in proof of this fact.
4. That the stopping occurred at the side of a road marked with a continuous yellow edge line, being a line marked along the road at, or near, the far right side of the road. Here I rely upon the evidence of Mr Deckers and exhibits P2 and P3. I note this fact is not in issue.
Mr Rai’s complaint is that it was the practice, of which he was aware, of certain officers who supervised the taxi rank on Colley Terrace, to allow taxis to stand briefly against the yellow line if a space on the taxi rank was about to become free because of one or more taxis on the rank moving off.
There was evidence that the taxi rank was supervised by two officers but there was contradictory evidence about the employment of those officers. One witness testified that one of the officers was an employee of the security firm Wilson’s and that the other officer was an employee, or at least engaged by, the Metropolitan Taxi Board. Another witness who was a senior officer of the Holdfast Council testified that both officers were engaged by the council.
Mr Rai testified of the practice I described. I am satisfied that on the face of his evidence he was referring to a practice which was in place before 31 October 2011 and of which he had personal experience. I am satisfied that the practice he described was one of the officers not telling taxis to move on from the No Standing Zone if a space on the taxi rank was about to become free.
However, the magistrate did not accept Mr Rai’s evidence. The magistrate did not believe Mr Rai that he was operating under any confusion about whether he could stop alongside the yellow line. His Honour disbelieved Mr Rau’s evidence to that effect and rejected it as a reasonable possibility. The magistrate found that Mr Rai knew that it was impermissible to queue for a position on the rank by stopping on the yellow edge line.
The magistrate did not expressly disbelieve Mr Rai’s evidence about the practice of the officers, although it is probably implicit in his findings that Mr Rai was not confused that he did not accept that the officers had conducted themselves in that way. It does not surprise me that the officers supervising the rank might extend taxi drivers some leniency in that way but that is not what the magistrate found. Be that as it may, there is no evidence that the council authorised the officers to extend that leniency. Mr Rai, being unrepresented, did not articulate either before the magistrate or before me, as the basis of his complaint about the practice that it was an abuse of process to bring this prosecution because of the actions of the officers who supervised the rank. However, I am prepared to deal with his complaints on that basis.
If there were evidence that the council had authorised the officers to extend the leniency described by Mr Rai, there may have been a basis for challenging the prosecution on the grounds that it was an abuse of process. However, as I observed a moment ago, there was no such evidence and indeed Mr Rai did not put the existence of any such council direction or policy to the senior officer of the council, Mr O’Neill, who was called as a prosecution witness. In those circumstances, Mr Rai’s complaint that the prosecution was an abuse of process cannot succeed.
I mention here that although the magistrate dealt with the complaint on the basis that it might have constituted a defence of reasonable mistake of fact, in my view such a defence was not available. The mistake which Mr Rai claimed to labour under was one as to either the substantive law, or probably more accurately, a mistake as to the enforcement policy of the council. Neither of those mistakes could found a Proudman v Dayman defence. In any event, insofar as that defence relies on a reasonable and genuine state of mind, the magistrate made adverse findings against Mr Rai. There is no ground upon which I could interfere with those findings on this appeal.
Mr Rai also complains that the photographic evidence of his offending on what the prosecution was based was taken by a council contractor, Mr Deckers, whilst sitting in a car which itself was itself parked in a No Standing Zone. There is a qualified defence available to authorised enforcement officers for the Australian Road Rules. That exemption is to be found in r 307 of the Australian Road Rules.
The exemption is subject to two conditions; the first that the officer take reasonable care, and the second that it is reasonable to exempt the officer in all of the circumstances.
In this case, Mr Deckers testified that he stopped in the No Standing Zone to carry out some functions connected with what he described as an “auto sight”; I am not sure what he meant by that. Be that as it may, the evidence as to the reasonableness of stopping in the No Standing Zone given by Mr Deckers was that, by remaining stationary at that position, his presence encouraged compliance with the road rules by taxis at, or approaching, the taxi rank.
If that was his belief at the time, I suspect that he might modify his belief give the failure of his presence to deter Mr Rai. In any event, on the face of it, I find that evidence somewhat improbable. It seems more likely that he was there to surreptitiously take photos of offenders rather than deter them. Be that as it may, I did not hear his evidence and I am not in a position to make positive findings one way or another about that. Suffice to say that it is not obvious to me why it was necessary for Mr Deckers to stop in the No Standing Zone at all, either to attend to whatever he was doing with the “auto sight” or to encourage compliance with the road rules. He could have parked legally and made his presence obvious by moving out of the car, if that were what he intended.
However, none of that much avails Mr Rai. I am prepared to consider Mr Rai’s complaint as a contention that the evidence should have been excluded because it was unlawfully obtained, even though he did not articulate it in that way.
Considering his complaint on that basis, even though it is my view that Mr Rai’s breach of the road rule is a relatively minor, that the overall interests of the community are in the prosecution of offences of the kind committed by the appellant. The corner of Colley Terrace and Jetty Road is a busy one. The space for traffic moving from Jetty Road and the Colley square into Colley Terrace is confined. It is important to keep that space clear.
For that reason, there was insufficient reason to exclude the evidence and it was properly received.
The lot of a taxi driver is not a happy one. Taxi drivers have to work long hours to earn a modest income. They must take passengers no matter how objectionable they might be. Their work necessarily brings them up against the operation of the many road rules with which motorists must comply. However, those rules are there for the safety of the community as a whole and as regular and frequent road users, it is as important, if not more important, that taxi drivers comply with them as it is that other members of the community do so.
Despite the sympathy I have for Mr Rai’s plight, there is no basis upon which the appeal against the finding of guilt can be allowed.
Equally, there was no reason in the circumstances of this case not to record a conviction. Offenders who expiate an offence do not have a conviction recorded, but that is part of the statutory regime to encourage expiation. I therefore also dismiss that part of the appeal that complains about the recording of the conviction. I can find no ground upon which I can properly reduce the costs ordered by the magistrate in the exercise of his discretion and dismiss Mr Rai’s appeal against that order as well.
The appeal is dismissed.