Tranfa v TransAdelaide No. SCGRG 97/232 Judgment No. 6108 Number of Pages 2 Magistrates

[1997] SASC 6108

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN J

Magistrates - jurisdiction and procedure generally - procedure - the hearing - disciplinary powers of justices - appeal against conviction for failing to pay appropriate fare on public conveyance contrary to Regulations made under the Passenger Transport Act, 1994. Held that the summary trial miscarried by reason of the Justices treating the prosecution opening as evidence. Held further that the Proudman v Dayman defence was not available in relation to the offence charged.

ADELAIDE, ddmyyyy (hearing), 7 April 1997 (decision)

#DATE 7:4:1997

#ADD 27:4:1997

Appellant Adriano Tranfa: in person

Respondent Transadelaide:

Counsel: Ms L Roberts - Solicitors: Crown Solicitor (SA)

Order: Appeal allowed.

DUGGAN J

1. The appellant was convicted on a charge of committing an offence contrary to Regulation 4(1) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994. The regulation provides as follows: "A person must not travel or attempt to travel on a passenger vehicle without paying the appropriate fare or charge."

2. The regulation provides for a division 8 fine.

3. "Passenger vehicle' is defined in the regulations as "a public passenger vehicle used by an operator" and "operator" is defined to include the respondent TransAdelaide.

4. The complaint states that the appellant, "on 18 June 1996, at Greenfields, having been provided with a service by TransAdelaide did not pay the appropriate fare". The charge itself is awkwardly worded in that the gravamen of the offence is not travelling or attempting to travel without paying the appropriate fare. Nevertheless, the substance of the charge was that the appellant paid the fare appropriate to the holder of a concession card when in fact he was not in possession of such a card.

5. I agree with the respondent's written submission that the concession fare is appropriate only in those cases in which the passenger produces a valid travel concession card. The regulations define a concession fare as: "The fare payable by a person who produces a valid travel concession card, secondary student identification card, or tertiary student identification card."

6. The holder of a health card, which might qualify a passenger to receive a travel concession card does not entitle that passenger to receive a concession fare unless he or she applies for the concession card, receives it and produces it on the relevant occasion.

7. The notice of appeal foreshadowed an argument that even if this is the position, the appellant should not have been convicted of the offence because he had an honest and reasonable belief that he was entitled to the concession, even if he had not obtained a concession card. The appellant claimed in evidence before the justices who presided over this matter at first instance that to his mind the production of his health card entitled him to the concession. The justices did not turn their attention to this issue. However, without having heard argument on the issue, I am of the view that the defence of honest and reasonable belief (the Proudman v Dayman defence) is not available for a breach of Regulation 4(1). The question is one of construction (see Davis v Bates 43 SASR p.149). Regulation (5) provides: "In proceedings for an offence against subregulation (3) or (4), it is a defence to prove that the act or omission constituting the offence was attributable to an honest and reasonable mistake on the defendant's part."

8. Nothing is said about the defence being available for a breach of Regulation 4(1) and, applying the ordinary principles of statutory interpretation, it would seem that the legislature did not intend that the defence should apply to subregulation (1). I have used the expression "defence", but it is clear on the authorities that the honest and reasonable belief, in those cases in which it is relevant, must be established by the defendant on the balance of probabilities.

9. However, it is unnecessary to reach a conclusion on the above matters because on reading the transcript of proceedings before the justices it appears that there has been a fundamental flaw in the summary trial. Miss Roberts, for the respondent, has quite properly conceded that such is the case. The appellant pleaded not guilty and the prosecution thereupon opened the prosecution case. No evidence was tendered by the prosecution. It would seem that the facts stated in opening were treated by the court as evidence. It goes without saying that the opening of counsel cannot be treated as evidence. In order to establish the offence, the prosecution had to prove the appropriate fare, the fact that it was not paid by the appellant and the fact that he travelled or attempted to travel on the passenger vehicle. The appellant's own evidence before the justices was directed to his state of mind. Nowhere is there any evidence as to what was the appropriate fare or what fare the appellant paid.

10. In the circumstances, the prosecution failed at the hearing to prove all the elements of the offence charged.

11. The order of the court will be as follows: Appeal allowed. Conviction and sentence set aside.

12. In all the circumstances, and particularly because of the basic flaw in the proceedings before the justices, I think it would be inappropriate to direct that there be a retrial of this matter.