Stern v City of Adelaide - [2020] SASC 220

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
STERN v CITY OF ADELAIDE
[2020] SASC 220
Judgment of The Honourable Justice Bampton
13 November 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - BREACH OF STOPPING AND PARKING RESTRICTIONS - OTHER CASES
TRAFFIC LAW - DEFINITIONS
The appellant appeals the decision of a Magistrate that she stopped her vehicle within 1 metre of a fire hydrant contrary to r 194 of the Australian Road Rules (“the Rules”) – whether the Magistrate erred by finding that the “fire hydrant” was a fire hydrant pursuant to the Rules – whether the respondent failed to prove beyond reasonable doubt that the vehicle was stopped within one metre of a fire hydrant – whether the defence of act of a stranger was excluded beyond reasonable doubt – whether order for costs made by the Magistrate was manifestly excessive.
HELD: Appeal dismissed – the fire hydrant was a fire hydrant for the purpose of r 194(1) of the Rules – it was open to the Magistrate to accept the evidence of the parking officer and to draw inferences from the photographic evidence to find that the Mini was stopped within one metre of the fire hydrant – there is no evidence worthy of consideration that suggests the offending is attributable to the act of a stranger – there are no grounds for interfering with the Magistrate’s discretion regarding costs.
Australian Road Rules 2014 (SA) r 3, r 194, r 204, r 270, r 318, r 319; Road Traffic Act 1961 (SA) s 174, referred to.
Kelly v The Queen (2004) 218 CLR 216; Boucher v G J Coles & Co Ltd (1974) 9 SASR 495, applied.
Howie v Sutcliffe (1988) 49 SASR 225, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"fire hydrant"

STERN v CITY OF ADELAIDE
[2020] SASC 220
Magistrates Appeal: Criminal

BAMPTON J: At 6.18 pm on 13 June 2019, a parking and information officer observed a white Mini Cooper (“the Mini”) parked “smack bang” in the middle of a no parking zone in front of a fire hydrant on a residential street in the southeast of the City of Adelaide. The officer issued an infringement notice to Ms Stern being the owner of the Mini that was stopped within one metre of the fire hydrant and took the following photographs:
(“Photo 1”)
(“Photo 2”)
Ms Stern elected to be prosecuted and was subsequently charged on a Magistrates Court Information and Summons dated 9 September 2019, 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[1] and s 174(2) of the Road Traffic Act 1961 (SA).[2]
[1] The Information and Summons refers to rule 194(1) of the Australian Road Rules 1999. The Australian Road Rules 1999 were revoked and replaced by the Australian Road Rules (No 205 of 2014) as of 1 September 2014. Rule 194(1) of the Australian Road Rules 2014 is identical to r 194(1) of the Australian Road Rules 1999.
[2] The particulars of the Information alleged: “The length of the road on which the fire hydrant was located was on [redacted] Street, Adelaide between [redacted] Street and [redacted] Street. NOTE: The informant alleges all the matters herein, and that the fire hydrant was clearly visible”.
The trial before the Magistrate
The matter proceeded to trial in the Magistrates Court. The prosecution called the parking officer who issued the expiation notice who was also cross‑examined by Ms Stern. Ms Stern gave evidence and did not call any witnesses.
The location of the fire hydrant
The best way to describe the fire hydrant and the location of the Mini as observed by the parking officer is by reference to photo 1 and photo 2 above, taken by the officer at the time he issued the infringement notice,[3] and the following two photographs taken by Ms Stern depicting the “tatty” condition of the fire hydrant:
(“Photo 3”) (“Photo 4”)
[3] Exhibit P2.
Photo 1 was taken from the footpath looking north at the Mini and photo 2 was taken from the road looking south at the Mini.
The fire hydrant is located on a footpath on the south side of a street which runs east-west in the southeast corner of the city. It abuts the cement kerb as depicted in photo 4. It is depicted in photo 1 situated on the footpath about half way between two upright poles. Photo 2 depicts the Mini parked in a no parking area straddling a park to the left of the photo and a park to the right of the photo. The fire hydrant is obscured by the Mini and the roof of the Mini is framed by the two upright poles, each topped with a permissive parking sign.[4]
[4] “Permissive parking sign” pursuant to r 204, r 318(1) and (2) of the Australian Road Rules.
The permissive parking sign seen on the left of photo 2 (“the left sign”) reads “1P 8am and 6pm Monday to Friday” with an arrow pointing to the left, permitting one hour parking during the specified hours on the length of road to the left of the left sign. The permissive parking sign on the right (“the right sign”) reads “1P 8am and 6pm Monday to Friday” with an arrow pointing to the right, permitting one hour parking during the specified hours on the length of road to the right of the right sign.
The lengths of road where parking is permitted are each delineated by a continuous painted line perpendicular to the kerb and broken white lines parallel to the kerb. There is no dispute that the perpendicular lines are continuous yellow lines and that the area of the road between them and the left and right signs is a length of road where parking is not permitted. Each of the yellow lines joins a broken white painted line running parallel to the kerb and footpath, thereby physically defining a length of road where parking is permitted pursuant to the permissive parking sign.
The area between the left and right signs where parking is not permitted is best depicted in photo 2 showing the Mini’s rear right wheel just outside the length of road to the left where parking is permitted and the right front wheel of the Mini within the length of road to the right where parking is permitted.
The fire hydrant is located on the footpath adjoining the length of road where parking is not permitted as depicted in photo 1.
The evidence before the Magistrate
The parking officer gave evidence that on 13 June 2019 he was working night shift for the council. He stated that his usual practice was to look for a driver present or nearby a vehicle before issuing an expiation and that prior to issuing the expiation notice in respect of the Mini he waited for longer than he usually would as “it was just an odd, odd occurrence where the car was”. He referred to two visible yellow lines marking the location of the fire hydrant and parking signs either side of the hydrant indicating where cars could park.
In cross‑examination, the officer clarified that it was particularly unusual because “… there was ample parking there and normally cars that are actually obstructing a fire hydrant’s either the front or the back. This was the whole car was smack bang in the middle …”. The officer gave evidence that the Mini was within one metre of the fire hydrant.
In cross-examination by Ms Stern, the officer said that he did not measure the distance between the fire hydrant and the Mini with a tape measure. He said that he knew based on his years of experience as a parking officer that the distance was less than one metre. In response to Ms Stern’s question that he did not actually confirm that the Mini was within one metre of the fire hydrant, the officer said that the fire hydrant “was right up against the actual gutter and your – the actual vehicle was close to the gutter, yeah, it was a lot lot less than a metre, without having to measure it”.
The officer agreed that the fire hydrant looked “tatty” but added that “the majority of fire hydrants in the city are probably a little bit like that”.
The officer also said that he had a memory of reporting the Mini because of “the type of vehicle and also there was two signs that were actually indicating where the car could park” … “I do remember that it was just, it was just odd”.
Ms Stern gave evidence that when she parked the Mini at approximately 4.30 pm on 13 June 2019, she believed that she parked with the one hour parking sign. She said that “at that time when I parked my car, I remember looking back at my back wheel to make sure I was within the yellow bit when I’m parking the car in, in front of my house”. She said that she had been in the habit for 20 years to park inside one of the one hour parking zones outside her home.
Ms Stern said that when she returned to her car later that evening at about 6.45 pm she did not notice the position of the Mini nor the infringement notice attached to the Mini’s window. She drove off and “suddenly I realised I had a ticket”.
Ms Stern also gave evidence that “some years ago [when she owned a Mazda sedan 69] someone did literally move that car down the street and I ended up with police arranging for RAA to do something to my ignition so that it couldn’t happen that they could open my car and drive it down the street”. Ms Stern said that more recently, in July 2018, one of the tyres of her Mini was slashed. She said:
… it sounds outlandish just to be in that space where the, you know, all you had to do, my car was parked in front of my house and I contemplated that someone had moved my car. … It sounds outlandish, even I can’t take it seriously because I haven’t actually followed that argument seriously with the council although I did write about it to the council making that argument in my response to the expiation notice.
Ms Stern told the Magistrate that she had parked her car to the left of the fire hydrant in front of her house, but that she did not have conclusive evidence of having done so.
In cross-examination, Ms Stern conceded that the Mini was not damaged when she drove off at about 6.45 pm.
In addition to the photographs above depicting the fire hydrant with a broken cap, Ms Stern also tendered photographs of the same fire hydrant with a new or repaired cap. Ms Stern’s evidence was that the photographs of the hydrant with the broken cap reflected its appearance as at 13 June 2019. She gave evidence that she complained to SA Water in July 2019 that the fire hydrant was damaged and its cap was subsequently repaired. She argued that as the fire hydrant was damaged in June 2019 it did not meet the statutory definition of a fire hydrant and therefore was not a fire hydrant for the purpose of r 194(1) of the Australian Road Rules. She further postulated that the fire hydrant was so damaged that it may not be operational, particularly during periods of cooler weather, although conceded that such an argument was merely theoretical. She also argued that, by reference to the photographs she tendered and the photographs taken by the parking officer, there was insufficient evidence to establish that the Mini was parked with a metre of the fire hydrant.
The Magistrate’s reasons
The Magistrate noted that r 194(1) of the Australian Road Rules creates the offence of stopping near a fire hydrant and defines “fire hydrant” and that s 174A(2) of the Road Traffic Act provides that the owner of a vehicle is involved in an offence against the Road Traffic Act is guilty of an offence and liable to the penalty prescribed and expiation fee fixed. The Magistrate found that there was no evidence to suggest that the fire hydrant was inoperative and that, even if it was, it would still be a fire hydrant for the purposes of the definition of the Australian Road Rules. The Magistrate concluded that the prosecution had proved beyond reasonable doubt that Ms Stern was the driver and owner of the Mini, that she stopped within one metre of the fire hydrant, and that the fire hydrant was a fire hydrant within the definition of the Australian Road Rules. A conviction was not recorded and Ms Stern was ordered to pay prosecution costs of $2,100.
The appeal
Ms Stern appeals on three grounds, that the fire hydrant was not a fire hydrant within the definition of the Australian Road Rules, that the distance between the Mini and the fire hydrant was not proved, and that the prosecution had not disproved the act of a stranger. Finally, Ms Stern complained that the order for costs made by the Magistrate was manifestly excessive.
Ground 1: definition of a “fire hydrant”
Ms Stern argued that the Magistrate erred by finding that the “fire hydrant” was a fire hydrant within the definition of r 194(3) of the Australian Road Rules. Ms Stern asserted that if the fire hydrant was not capable of drawing water or otherwise in working order, it cannot be said to meet the definition of a fire hydrant pursuant to r 194(3) which provides that:
fire hydrant means 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
Ms Stern submitted that a fire hydrant has one single purpose, which is to act as the connection point between the fire brigade and water main in case of fire emergency, and without that essential ability there exists merely a pipe that serves no other discernible purpose.
It was submitted that the fact that the fire hydrant was repaired months after the expiation notice was issued supports the proposition that it was not in working order at that time. Ms Stern submitted that there was an onus on the City of Adelaide to prove that the fire hydrant was operative at the time of the expiation notice and failed to do so.
Rule 194 of the Australian Road Rules creates a strict liability offence as follows:
194—Stopping near a fire hydrant etc
(1)A driver must not stop within 1 metre of a fire hydrant, fire hydrant indicator, or fire plug indicator, unless—
(a)     the driver is driving a public bus, and the driver stops at a bus stop or in a bus zone and does not leave the bus unattended; or
(b)     the driver is driving a taxi, and the driver stops in a taxi zone and does not leave the taxi unattended; or
(c)     the driver is driving a public minibus, and the driver stops in a minibus zone and does not leave the minibus unattended.
Offence provision.
Note—
Bus zone is defined in rule 183, public bus, public minibus and taxi are defined in the dictionary, minibus zone is defined in rule 184, and taxi zone is defined in rule 182.
(2)For this rule, a driver leaves a vehicle unattended if the driver leaves the vehicle so the driver is over 3 metres from the closest point of the vehicle.
(3)In this rule—
fire hydrant means 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.
Examples—
Construction of “fire hydrant”
In constructing the operation of r 194(1) of the Australian Road Rules in the present circumstances, regard must first be had to the meaning of the words “fire hydrant”. The first recourse for meaning is the definition of fire hydrant in r 194(3).
Implicit in Ms Stern’s submission is that the words in r 194(3), “for drawing water from a main or service pipe in case of fire or other emergency”, should be taken to create a requirement that a fire hydrant be in working order and capable of drawing water to be so defined. In my view, the words “for drawing water from a main or service pipe in case of fire or other emergency” simply connote the object or purpose for which a fire hydrant exists. Those words do not impose or create a requirement that a fire hydrant must be capable of that object or purpose at a given time to meet the definition of a fire hydrant. Had the legislature intended that the r 194(3) definition contain a requirement that a fire hydrant must be capable of drawing water from a main or service pipe, or otherwise be in working order, it stands to reason that those specific words would have been used to that effect. For example, r 270(3) of the Australian Road Rules provides:
(3)In this rule—
approved motor bike helmet means a helmet—
(a)     made in compliance with—
(i)AS 1698; or
(ii)AS/NZ 1698; or
(iii)the United Nations Economic Commission for Europe standard 22.05 (the UN standard); and
(b)     that has an identifying mark certifying compliance with a standard mentioned in paragraph (a); and
(c)     that is in good repair and proper working order and condition.
SA NOTE—
For South Australia, see regulation 38 of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014.
Examples of a helmet that is in good repair and proper working order and condition—
1A helmet that is scratched or marked but the scratch or mark has not—
(a)penetrated the helmet’s outer shell; or
(b)damaged the helmet’s retention system; or
(c)damaged the helmet’s inner lining.
2A helmet that is damaged to a degree that might reasonably be expected from the normal use of the helmet.
As can be seen, the above definition of “approved motor bike helmet” specifies as a component or “requirement” of that definition that a helmet be in good repair and proper working order and condition, and provides examples of such a helmet. On the contrary, the only “requirement” imposed by r 194(3) in order that a structure be considered a fire hydrant is that it is “an upright pipe with a spout, nozzle or other outlet”. Ms Stern does not dispute that the subject structure was “an upright pipe with a spout, nozzle or other outlet” and indeed the photos of the fire hydrant she tendered into evidence clearly depict a structure that satisfies that criteria.
However, consideration of the definition of “fire hydrant” in r 194(3) is not the only means by which the meaning of fire hydrant in r 194(1) is constructed. It is also necessary to consider the object and purpose of r 194(1) and, more broadly, the Australian Road Rules. As McHugh J stated in Kelly v The Queen:[5]
… a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated:
“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way.” (emphasis added)
In addition, as Dixon CJ once pointed out, “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” At issue here is not the meaning of the phrase “in the course of official questioning” when read in isolation. The issue is the meaning of s 8(2) when read with the aid provided by the definitions of “confession or admission” and “official questioning” in s 8(1), by the evident policy of s 8 and by the mischief that it sought to overcome…
His Honour further stated:[6]
… the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome.
[5] (2004) 218 CLR 216 at 245.
[6] Kelly v The Queen (2004) 218 CLR 216 at 253.

As such it is necessary, for completeness, to consider the context in which r 194(1) of the Australian Road Rules operates and the mischief it is designed to overcome. The objects of the Australian Road Rules are contained in r 3:
Objects of the Australian Road Rules
The objects of the Australian Road Rules are to—
(a)provide uniform rules across Australia for all road users; and
(b)specify behaviour for all road users that supports the safe and efficient use of roads in Australia.
Rule 194 is contained within Part 12 of the Australian Road Rules, which is entitled “Restrictions on stopping and parking”, and specifically Division 6, which is entitled “Other places where stopping is restricted”. Part 12 Division 6 of the Australian Road Rules creates numerous offences for stopping in prohibited locations, including inter alia on a freeway, in a permit zone, and on or near a children’s crossing.
Rule 194(1) not only prohibits a driver from stopping within one metre of a fire hydrant, but also a fire hydrant indicator or fire plug indicator. Fire hydrant indicators and fire plug indicators are traffic-related items, which have legal effect according to r 319 if they are situated on a road, road related area (which relevantly includes a footpath or nature strip adjacent to a road) or on a vehicle on a road, and comply substantially with the Australian Road Rules. In short, for a fire hydrant indicator or fire plug indicator to comply substantially with the Australian Road Rules, it must be of a reasonable likeness to a diagram of that item contained in Schedule 4 of the Australian Road Rules. The diagram of a fire hydrant indicator and fire plug indicator contained in Schedule 4 is the same as the above diagram of those items contained as Examples in r 194 (see para [26] above).
It is clear that fire hydrant indicators and fire plug indicators do not require, in order to have legal effect, that they indicate the presence of a working fire hydrant. In considering the meaning of “fire hydrant” within that context, it is difficult to accept that the legislature would have intended that fire hydrant and fire plug indicators (whether accompanied by a fire hydrant or not) be protected by way of a prohibition on parking within one metre thereof, but that stopping within one metre of actual fire hydrants would only be prohibited if it could be proven that the fire hydrant was working.
Invariably, the mischief that r 194(1) of the Australian Road Rules addresses is the ability or inability for relevant users to access fire hydrants free of obstruction by stopped vehicles. That is, the rule concerns itself with access to fire hydrants and seeks to prohibit road users from obstructing that access. It cannot be said that r 194, or any other provision of the Australian Road Rules, concerns itself with the working quality of fire hydrants. As such, Ms Stern’s narrow construction of the meaning of the word “fire hydrant” in r 194(1) involves the purported insertion of concepts that do not have a foothold anywhere in the Australian Road Rules.
From a practical perspective, one may also observe that Ms Stern’s proposed interpretation of the meaning of “fire hydrant” within r 194(1) may render the rule inoperable as it would require a someone, supposedly a parking officer, to attempt to draw water from a fire hydrant every time a parking infringement were to be issued to ensure the structure is indeed a working fire hydrant per the definition at that precise point in time. On a stricter interpretation, such testing would still be insufficient as the definition would require the fire hydrant be capable of drawing water in case of a fire or emergency, a hypothetical future event. Of course, such a definition and interpretation would render an absurd and unworkable result. There may be numerous reasons that, in the event of an emergency or at any other time, water may not successfully be drawn from a structure that is ostensibly a fire hydrant. Many of those reasons may be entirely independent of the working order of the fire hydrant itself and do not detract from the fact that the subject structure is indeed a fire hydrant.
There is no onus on the City of Adelaide to establish that the fire hydrant was working at the time of the expiation notice.
The fire hydrant was a fire hydrant for the purpose of r 194(1). Ground 1 is not made out.
Ground 2: distance between the Mini and the fire hydrant
Ms Stern submitted that the City of Adelaide failed to prove beyond reasonable doubt that the Mini was stopped within one metre of the fire hydrant. The basis of Ms Stern’s submission is two-fold. First, that the parking officer did not measure the distance between the Mini and the fire hydrant. Secondly, that the photographs taken by the parking officer (Exhibit P2) are taken from angles such that the distance between the Mini and the fire hydrant cannot be accurately discerned.
The parking officer was clear in his evidence that the Mini was stopped within one metre of the fire hydrant. The photographic evidence, particularly photo 1 above, is supportive of the parking officer’s evidence that the Mini was within one metre of the fire hydrant. As can be seen in photo 1, the front of the Mini appears to be positioned close to the kerb. It can also be seen in that photo, but is much clearer in photo 4 tendered by Ms Stern, that the fire hydrant is positioned at the edge of the kerb.
It was open to the Magistrate to accept the evidence of the parking officer and to draw inferences from the photographic evidence to find that the Mini was stopped within one metre of the fire hydrant. No error has been demonstrated. Ground 2 is not made out.
Ground 3: act of a stranger
This ground can be dealt with briefly. Ms Stern, having raised the defence of act of a stranger at trial, contended that the City of Adelaide failed to disprove that defence. Ms Stern’s argument rests on the case of Boucher v G J Coles & Co Ltd (“‘Boucher”), where Wells J stated:[7]
… once there is evidence before the tribunal of facts worthy of consideration that suggest that the breach complained of is attributable to such an act, the prosecution, to succeed, must, in my opinion, exclude that suggestion beyond reasonable doubt.
[7] (1974) 9 SASR 495 at 501.
As established by the above passage, there must be evidence worthy of consideration that suggests that the breach complained of is attributable to an act of a stranger. In Howie v Sutcliffe,[8] which applied Boucher, the relevant evidence was:[9]
As to the first limb of his defence he gave evidence that shortly before 12.55 pm he had been driving east along Young Street when he observed a vehicle pull away from the kerb. He wished to park his vehicle in the space which had been vacated. That space was immediately west of a crossing place which led to the entrance to premises adjacent to Young Street. Vacant parking spaces were apparently hard to find. There was another car already parked in the crossing place although it did not occupy the whole of it. The appellant drove his car forward into the space which comprised in the part the space which had just been vacated, and in part an area to the east of that space leading into the crossing place. He drove in so that at the end of his forward movement the front of his car was about half a metre to the rear of the vehicle parked in the crossing. His car was then parallel with the kerb, and his left wheels were close to it. He intended to reverse into the parking space which has been recently vacated. Had he done so, it is implicit from the evidence that he would have been clear of, and to the west of, the crossing place and the fire plug. As he brought his vehicle to a halt the driver of another car drove in behind him and parked so that his car was about half a metre to the rear of the appellant’s vehicle. This blocked in the appellant’s vehicle. He considered it quite impossible to extricate his vehicle from between the two other vehicles until one of them moved. The driver of the car behind left it immediately and before the appellant had a chance to remonstrate with him. The appellant noted that the northern side of Young Street was designated by a sign as a two hour time limit area. He did not observe, or could not remember observing, the fire plug or a post on the northern footpath warning of its presence. He decided to leave his vehicle where it was confined by other the others for a short period of time. On his return the vehicle ahead had left, but he had received an infringement notice. The traffic inspector, in cross-examination, confirmed there was a car half a metre ahead of the appellant’s vehicle when the infringement notice was placed on it, and that there was another car behind although the inspector could not remember how close it was.
[8] (1988) 49 SASR 225.
[9] Howie v Sutcliffe (1988) 49 SASR 225 at 226-7.
In the present case, Ms Stern is only able to point to an event some years ago involving an old vehicle she owned that was moved and the slashing of one of the tyres of the Mini in 2018. There is no evidence before the Court that suggests that these events were in any way related to the Mini being stopped within one metre of a fire hydrant on 13 June 2019. Accordingly, Ms Stern merely puts forth a hypothesis that a stranger moved the Mini, which even she conceded “sounds outlandish” and is difficult to take seriously. Ultimately, as there is no evidence worthy of consideration that suggests that the Mini was stopped within one metre of a fire hydrant due to the act of a stranger, no onus on the prosecution to exclude such a possibility beyond reasonable doubt arises. Ground 3 is not made out.
Conclusion
I dismiss the appeal.
There are no grounds for interfering with the Magistrate’s discretion regarding costs. The costs order is within the Magistrates Court Criminal Scale of costs and there is no reviewable error identified in exercise of the discretion as to costs. The order for costs stands.