TIMMS v Police - [2008] SASC 293

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TIMMS v POLICE
[2008] SASC 293
Judgment of The Honourable Justice David
31 October 2008
TRAFFIC LAW - REGULATION OF TRAFFIC - TRAFFIC SIGNS AND NOTICES
TRAFFIC LAW - OFFENCES - GENERALLY
Appeal against conviction for entering intersection when traffic light showing red – magistrate allowed fresh tender of certificate during trial and refused submission of no case to answer – whether magistrate should have allowed fresh tender of certificate – whether certificate tendered was defective – whether magistrate correctly refused submission of no case to answer – whether any defences were applicable to the appellant’s evidence, if accepted, at trial.
Held: Appeal dismissed – no bar to fresh tender of certificate – certificate tendered was not defective – magistrate correctly refused submission of no case to answer – no defences were applicable to the appellant’s evidence, even if it were accepted by magistrate, at trial.
Road Traffic Act 1961 (SA) s 79B, s 173AB(1)(c); Road Traffic (Miscellaneous) Regulations reg 14, reg 17(2); Australian Road Rules r 59(1), referred to.
Le Poidevin v Police (2005) 44 MVR 322; [2005] SASC 314, applied.

TIMMS v POLICE
[2008] SASC 293
Magistrates Appeal
DAVID J.
Introduction

The appellant was found guilty by a magistrate of entering the intersection of Brighton Road, Sturt Road and Old Beach Road, Brighton on 21 December 2006 when a red traffic light was showing, contrary to r 59(1) of the Australian Road Rules (SA) (the “AAR”) and s 79B of the Road Traffic Act 1961 (SA) (the “RTA”).
The appellant had originally been issued with an expiation notice alleging the offence, but he proceeded, as he was entitled, to elect to be prosecuted. He pleaded not guilty according to s 8 of the Expiation of Offences Act 1996 (SA). He now appeals against the conviction imposed by the magistrate.
Both at trial, and on appeal, the appellant was self-represented.
The Trial
Before setting out the course of the trial, it is important to outline the relevant sections of the RTA and regulations made under it. Section 79B of the RTA states:
79B—Provisions applying where certain offences are detected by photographic detection devices
…
(2)Where a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved—
(a)     that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or
(b)     that the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time; or
(c)     that—
(i)if the owner is a body…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 293
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case of TIMMS v Police involved an appeal against the conviction of the appellant for entering an intersection while the traffic light was showing red. The matter was heard in the South Australian Supreme Court. The appellant had admitted to entering the intersection when the light was red, but claimed that he had been blinded by a lightning bolt, which caused him to lose control of his vehicle. The magistrate found the appellant guilty, rejecting his defence and concluding that the tendered evidence established the offence.

The key legal issues before the court were whether the magistrate should have allowed the fresh tender of the certificate, whether the tendered certificate was defective, whether the magistrate correctly refused the submission of no case to answer, and whether any defences were applicable to the appellant’s evidence if accepted at trial. The court found that the magistrate was correct in allowing the fresh tender of the certificate, that the tendered certificate was not defective, and that the magistrate correctly refused the submission of no case to answer. The court also found that no defences were applicable to the appellant’s evidence, even if accepted by the magistrate, at trial.

The court's reasoning was that there was no bar to the prosecution withdrawing the tender of a document and tendering a further document. The court found that the appellant was not unfairly surprised by the tender of the fresh document, and that an adjournment may have been considered if the appellant was caught by surprise, but there was no bar to the tendering of the fresh document. The court also found that the tendered certificate was not defective, and that the magistrate correctly refused the submission of no case to answer. Finally, the court found that no defences were applicable to the appellant’s evidence, even if accepted by the magistrate, at trial.

The final orders of the court were that the appeal was dismissed, and that the conviction of the appellant stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J (dissent)

In his evidence, the appellant admitted having entered the intersection when a red light was showing on the day in question, but said that he did so because there had been a lot of thunderstorm activity. He said as he approached the intersection he heard a huge crash and was blinded by an enormous lightning bolt. He froze, removed his hands from the steering wheel and then crouched, curled into a foetal position. One or two seconds later, he opened his eyes and then saw the light had turned red and that he was about to enter the intersection. He braked heavily, but could not prevent his vehicle from entering the intersection.The Magistrate’s Decision The magistrate found that the documents tendered, including exhibits P7 and P10, established that the appellant’s vehicle entered the intersection when a red light was showing. In particular, she found no defence had been made out pursuant to s 79B(2)(a) of the RTA, nor had any defence been made out pursuant to s 173AB(1)(c) of the RTA. In relation to the latter defence, the magistrate said:The defendant raised a defence under s 173AB(1)(c), RTA. As indicated above, I am not satisfied on the balance of probabilities that the event as described by the defendant (that a bolt of lightning caused him to lose voluntary control) did in fact occur. In any event, the conduct referred to in s 173AB(1)(c), RTA has nothing to do with the type of response described by the defendant. It is plain from reading the section in full, that the offence relates to positive and active conduct in circumstances of emergency. The defendant’s circumstances were not of that nature. As the argument developed before me, the magistrate was mistaken in concerning herself with the defence pursuant to that section, because that section did not come into operation until 30 April 2007.[1] It was therefore inapplicable as at the date of the offending in this matter on 21 December 2006.[1] The section was inserted by s 39 of the Statutes Amendment (Road Transport Compliance and Enforcement) Act 2006 (SA). Consequently, the magistrate found the appellant guilty of the charge.The Arguments on Appeal The appellant now argues, as he did at trial, that the photographs, exhibit P7, which were tendered pursuant to s 79B(10)(a) of the RTA were inadmissible, because the certificate, exhibit P10, which was tendered pursuant to s 79B(10)(b) of the RTA, had such imperfections as to make it inadmissible. The appellant’s first argument in relation to the tender of exhibit P10 is that it was tendered in such circumstances as amount to unfairness. An original version of the certificate, exhibit P10, was sought to be tendered, but was withdrawn because of inaccuracies. A fresh, corrected certificate, ultimately becoming exhibit P10, was then tendered in its stead. The appellant argues that substituting the corrected version led to unfairness. There is no merit in that argument. There was no bar to the prosecution withdrawing the tender of a document and tendering a further document. If the appellant was somehow caught by surprise at the tender of the fresh document, an adjournment may have been considered, but there was no bar to the tendering of the fresh document.

Ratio Decidendi

Legal Principle Established

Established by:

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