Stern v City of Adelaide - [2021] SASCA 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STERN v CITY OF ADELAIDE
[2021] SASCA 3
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Livesey)
19 February 2021

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - BREACH OF STOPPING AND PARKING RESTRICTIONS - OTHER CASES
TRAFFIC LAW - DEFINITIONS - OTHER DEFINITIONS
Application for permission to appeal against the decision of a single Judge.
The applicant (Ms Stern) was found by a Magistrate to have contravened r 194(1) of the Australian Road Rules in that she stopped her vehicle within one metre of a fire hydrant. The applicant’s appeal to a single Judge of this Court was dismissed. The applicant now seeks permission to appeal to the Court of Appeal.
Held, dismissing the application for permission to appeal (per the Court):
1. The definition in r 194(3) of the Australian Road Rules does not require that a fire hydrant be in working order at the time of infringement to be a fire hydrant for the purpose of r 194(1). Nor is it reasonably arguable that the tattered condition of the object deprived it of its character as a fire hydrant under that provision in this case.
2. On the evidence at trial, the Magistrate was entitled to find that the vehicle was parked within one metre of the fire hydrant despite the parking officer not having used any tape measure or other device to measure the precise distance.
3. The applicant’s suggestion that a stranger might have intervened to move her vehicle was, on the evidence, speculative in the extreme. Even if there was a basis to find that the applicant had discharged her evidentiary onus to raise the defence of act of a stranger, it was not reasonably arguable that the prosecution did not exclude this defence beyond reasonable doubt.
Australian Road Rules rr 194, 194(1), 194(3); Uniform Civil Rules 2020 (SA) r 213; Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Road Traffic Act 1961 (SA) ss 174A(2), referred to.
Stern v City of Adelaide [2020] SASC 220; Rana v Gregurev [2011] SASCFC 157 , considered.

STERN v CITY OF ADELAIDE
[2021] SASCA 3

Court of Appeal: Kelly P, Doyle and Livesey JJA

THE COURT: The applicant (Ms Stern) was found by a Magistrate to have contravened r 194(1) of the Australian Road Rules in that she stopped her vehicle within one metre of a fire hydrant. The Magistrate did not record a conviction, but ordered that the applicant pay prosecution costs of $2,100.
The applicant’s appeal to a single Judge of this Court was dismissed.[1] The applicant now seeks permission to appeal to the Court of Appeal.
[1] Stern v City of Adelaide [2020] SASC 220.
As the proposed appeal is from a judgment given by a single Judge on appeal from a judgment of the Magistrates Court, permission is required under s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA), and in accordance with r 213 of the Uniform Civil Rules 2020 (SA).
The Court will only grant permission to appeal from a decision of a single Judge of this Court, on appeal from a decision of the Magistrates Court exercising its summary jurisdiction, when it is satisfied that the grounds of appeal are reasonably arguable, and that it is in the interests of justice to permit a second appeal.[2]
[2] Rana v Gregurev [2011] SASCFC 157 at [7].
By way of background, on 13 June 2019 a parking and information officer observed the applicant’s vehicle (a white Mini Cooper) parked in the middle of a no parking zone in front of a fire hydrant on a residential street in the City of Adelaide. A more detailed description of the location of the vehicle, and of the condition and location of the fire hydrant, including by reference to some photographs, are set out in the single Judge’s reasons. The parking officer issued an infringement notice to the applicant as the owner of the vehicle.
The applicant elected to be prosecuted and was charged on a Magistrates Court Information and Summons which alleged that she was the owner of a vehicle that was stopped within one metre of a fire hydrant contrary to r 194(1) of the Australian Road Rules and s 174A(2) of the Road Traffic Act 1961 (SA).
The matter proceeded to trial in the Magistrates Court. The prosecution called the parking officer who issued the expiation notice. The applicant gave evidence in her defence. As mentioned, the Magistrate found her guilty of the offence charged, albeit that his Honour ordered that no conviction be recorded.
The applicant seeks permission to appeal on grounds which raise essentially the same issues as were addressed by the single Judge in her reasons. In particular, the applicant contends that the Magistrate and single Judge both erred in holding:
1.that the object next to which the vehicle was parked was a “fire hydrant” within the meaning of r 194 of the Australian Road Rules;
2.that the vehicle was within one metre of the fire hydrant; and
3.that there was no evidence worthy of consideration in support of the applicant’s reliance upon an act of a stranger in moving her vehicle.
As to the first of these issues, r 194(3) defines a fire hydrant to mean “an upright pipe with a spout, nozzle or other outlet for drawing water from a main or service pipe in case of fire or other emergency.” The applicant contends that, by reason of this definition, the prosecution was required to establish beyond reasonable doubt that the object next to which the vehicle was parked was, at the time of the alleged infringement, a fire hydrant that was in working order and hence capable of having water drawn from it. By reference to her evidence as to the “tatty” condition of the fire hydrant in question, and to the effect that it was the subject of some repair work some months after the expiation notice was issued, the applicant contends that the prosecution did not discharge its onus in this respect.
For the reasons given by the single Judge, we reject this argument. As her Honour explained, the words “for drawing water” in the definition merely connote the object or purpose for which a fire hydrant exists. They do not connote a requirement that the fire hydrant be in working order, and hence capable of fulfilling that purpose, at the moment of the infringement. In our view, that is plain from the ordinary meaning of the words used; however, we also agree with her Honour that this meaning is further supported by a purposive construction of the relevant provision.
To the extent that the applicant relies upon the “tatty” state of the fire hydrant more generally, we do not accept that it is reasonably arguable that this deprived the object of its character as a fire hydrant within the meaning of r 194.
As to the second issue raised by the applicant’s application for permission to appeal, we agree with the single Judge that the Magistrate was entitled to rely upon the evidence of the parking officer that the vehicle was less than one metre from the fire hydrant, in conjunction with the photographs reproduced in the single Judge’s reasons, in making a finding beyond reasonable doubt to that effect. The photographs make it plain that the fire hydrant was very close to the edge of the footpath, and that the vehicle was likewise very close to that edge. In circumstances where the parking officer’s evidence, supported by the photographs, was that the distance between the vehicle and the fire hydrant was “a lot lot less than a metre”, the Magistrate was entitled to make the finding he did despite the parking officer not having used any tape measure or other device to measure the precise distance. We reject the applicant’s contention to the contrary as not reasonably arguable.
Turning to the third matter relied upon by the applicant, the single Judge upheld the Magistrate’s conclusion that there was no evidence worthy of consideration in support of the applicant’s purported reliance upon a defence of the act of a stranger. The applicant had relied upon her evidence that vehicles she owned had twice previously been interfered with by strangers to contend that it was a reasonable possibility that some person or persons had, without her knowledge or permission, moved her vehicle to the location where it was found and photographed by the parking officer. While acknowledging in her evidence at trial that this “sounds outlandish”, the applicant contended that it was a reasonably possible explanation for the location of her vehicle given her evidence that she did not park it where it was found. The applicant emphasised, in this context, her evidence that the fire hydrant was in front of her house, and she routinely parked either side of it rather than right in front of it. She said there was simply no reason for her to have parked in the no parking zone in front of the fire hydrant.
In our view, the applicant’s suggestion that a stranger might have intervened to move her vehicle was, on the evidence before the Magistrate, speculative in the extreme. The two previous incidents to which the applicant referred were different in nature, and temporally removed. They did not provide an evidential basis for any inference as to how the vehicle came to be parked where it was on 13 June 2019. While it was relevant to take into account the applicant’s evidence as to where she parked her vehicle on that day, the Magistrate was entitled to reject that evidence.
Even if there was a basis to find that the applicant had discharged her evidentiary onus to raise the defence of act of a stranger, we do not think it was reasonably arguable that the prosecution did not exclude this defence beyond reasonable doubt.
For the reasons set out, we do not consider that any of the grounds sought to be relied upon by the applicant is reasonably arguable. We dismiss the application for permission to appeal.