Tester v Police No. Scgrg-97-1396 Judgment No. S6453

[1997] SASC 6453

TESTER V  POLICE

Bollen AJ  (Ex tempore)

I begin by congratulating each counsel  and thanking each counsel for their splendid arguments.  In ‘arguments’ I include the outlines as well as the oral  submissions. I think it desirable to give judgment now as I have reached a clear conclusion. 
It may be that I will not touch upon every point made or  mentioned by counsel.  That does not mean that I have not  thought about anything that I omit to speak about.  It  means that points omitted from mention have not played a  primary part in the slow business of moving my mind to a  decision. 
The appellant was charged on complaint that on 26 May 1996, at Enfield, on the Main North Road, oddly, situated within the municipality of Port Adelaide, at a greater speed than 60 kilometres per hour, which was the limit. It was said, and it was admitted, that he was travelling at 71 kilometres per hour. This is a breach of the Road Traffic Act. The appellant pleaded not guilty to the charge.
Many facts were agreed.  They appear in the  transcript of hearing before the magistrate.  At pages 1 and 2 the magistrate summarised the significant ones by saying:
"He has agreed as fact most of the allegations made against him by the prosecutor.  In particular it has been agreed between the parties that at about 3.50 pm on the 26th day of May 1996 at Enfield in the State of South Australia, the defendant, Gregory Tester, drove a motor vehicle on Main North Road within the municipality of Port Adelaide, Enfield at a greater speed than 60 kilometres per hour, namely at about 71 kilometres per hour.  It was further agreed that at the time of such driving the defendant was on duty as a member of the police force and engaged in obtaining statements in connection with enquiries concerning an attempted rape of a person.".
It will be noted that it was never suggested that the  appellant was driving on an occasion which required him to speed, or to demand any urgent action from him.  Such was  never suggested.  So there was no evidence of anything of  that nature. 
The answer which the appellant made to the charge was that he was a police officer driving on duty and therefore was driving an exempt vehicle. Section 40 of the Road Traffic Act provides that certain vehicles are exempt vehicles within the meaning of the section. It lists, or enumerates them, but it is to be noticed as really, a central feature of the whole case that the definition and enumeration of the vehicle is not just of a vehicle but includes some activity or some movement or some use of the vehicle. For example, s.40(1)(a) provides:
"Any motor vehicle used by the South Australian Metropolitan Fire Service or by a fire brigade registered under the South Australian Metropolitan Fire Service Act 1936 or by a fire-fighting organization registered under the Country Fires Act 1976, while it is being driven to any place in answer to a call for the services of a fire brigade or is in use at a fire;".
That is to say, a Fire Brigade vehicle needs to be  driven to a place in answer to a call for the services of a Fire Brigade or to be in use at a fire for it to be an exempt vehicle.  Similarly, in subs(b):  
"Any motor  ambulance which is being driven in answer to an urgent call or is conveying an injured or sick person to any place for urgently required treatment;".
It is not the ambulance that is exempt.  It is the  ambulance that is going about movement as stated in  the subsection. 
The relevant subsection for our purposes  is subs(c).   Subs(c) provides:  

1. (1)    The following are exempt vehicles within the meaning of this section:
   (c)     any motor vehicle driven by a member of the police force in the execution of duty;".
   It is not just the police vehicle. It is one that is moving or being used in the execution of duty. That is what Parliament requires for the exemption to obtain/apply. Subsection(2) of s40, provides:

2. (2)     While a vehicle is an exempt vehicle by virtue of  subsection (1)(a), (b), (ba), (c) or (ca) the provisions of this Act relating to the following matter shall not apply in relation to the driving or use of that vehicle:-
            (a)     speed  limits; ...".
   That is to say, the legislation relating to speed  limits does not obtain if a motor vehicle is being driven  by a member of the police force in the execution of his  duty. 
   Miss Powell’s forceful submission is that ‘on duty’ is the same as ‘execution of duty’. That is putting it roughly. There is no doubt at all that the appellant was on duty. He was going about his work. He was moving from place to place to collect statements from prospective witnesses. I emphasize again he was not doing anything that required that he should have the benefit of the exemption from the application of laws relating to speed limits. If one looks at subs40 of the Road Traffic Act then one can see the vehicle, plus reason for movement, or reason for use, are the relevant criteria in deciding whether the relevant vehicle is, at the relevant time, exempt.
   As I said, Miss Powell’s argument is, roughly put, is  ‘execution of duty’ is the same as ‘on duty’.  Miss Powell  made a great many important points in relation to this  submission. She referred to the past history of the  subsection and to the various authorities.  I read them as  useful background.  Miss Powell drew attention to the  removal in the legislation, as it stands, of the pronoun  ‘his’ in relation to execution of duty.  With all respect  to the argument, I cannot think that that is to the point.   I see no significance to be attached to the omission of  ‘his’. 
   Mr Hinton made reference to the first word in subs(2) of s40 ‘while’. That is to say, while a vehicle is being driven in circumstances contemplated, it is exempt from the speed laws. I think that is right but I do not think that the word ‘while’ has the importance that Mr Hinton has attributed to it.
   If, of course, it is correct to say that ‘on duty’ is the same as ‘execution of duty’ then that is the end of  the matter.  That must have resulted in a finding of not  guilty, but, in fact, the magistrate convicted.  He said  "Whereas in this case a member of the police force unnecessarily exceeds ... while the member is exceeding the  speed limit.".
   I agree with that comment.  In my opinion, Parliament  did not intend ‘execution of duty’ to be the same as ‘on duty’.   I repeat myself.   I think one derives that from a reading of that subsection in conjunction with the other subsection.  The phrase ‘execution of duty’ takes it’s colour from the idea of movement that runs throughout the whole of  this subsection. 
   The magistrate found that the onus lay on the shoulders of the appellant to establish on the balance of  probabilities that he was driving an exempt vehicle at the  relevant time.  I think that was correct.  I think the onus  does rest upon the shoulders of the respondent. 
   In his outline Mr Hinton wrote, in paragraph 2:  
   "The respondent submits that there is a legal/ persuasive burden as opposed to an evidential burden. Accordingly, the respondent submits that to take advantage of the protection of section 40 of the RTA the appellant must satisfy the court on the balance of probabilities that he was driving an exempt vehicle.".
   I think that submission is correct.  I think that the  appellant carried the onus of establishing the exemption.   I think that he failed.  In those circumstances I think the  magistrate came to the correct conclusion. 
   I mention the state of the evidence was such that if  the onus lay on the complainant to negate beyond reasonable doubt that the exemption obtained, then the evidence was  sufficient for the magistrate to have held that the negating had been proved. 
   In these circumstances I must dismiss the appeal. 
   Costs awarded in favour of respondent.