Wang v Police - [2019] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WANG v POLICE
[2019] SASC 65
Judgment of The Honourable Justice Bampton
26 April 2019
TRAFFIC LAW - TRAFFIC REGULATION - RESTRICTIONS ON STOPPING AND PARKING
TRAFFIC LAW - DEFINITIONS - ROAD
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision of a Magistrate finding appellant guilty of contravening a no parking sign contrary to r 168(1) of the Australian Road Rules – whether the appellant parked in a road-related area to which a no parking sign applied.
Held, allowing the appeal – the appellant was incorrectly charged – the appellant did not park in a road-related area to which a no parking sign applied.
Road Traffic Act 1961 (SA) s 5, s 22; Australian Road Rules r 11, r 13, r 168; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 66, sch 4 pt 4; Local Government Act 1999 (SA) s 3, s 4, s 207, s 238, s 261; Local Government Land By-Law 2016 (Rural City of Murray Bridge) cl 7.24, referred to.
Schubert v Lee (1946) 71 CLR 589; Zerella Holdings v Williams (2012) 113 SASR 573, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"road-related area"

WANG v POLICE
[2019] SASC 65
Magistrates Appeal: Criminal

BAMPTON J: Ms Wang, in the company of her puppy, Tiger, spent the day on 11 February 2018 at Sturt Reserve fishing for carp to celebrate Chinese New Year. She drove her car along Murray Cods Drive at Murray Bridge and parked in an angle park on the foreshore side of the road, facing a boat ramp on the river. By the end of the day, she had a bucket full of fish and an expiation notice alleging she had parked her car in contravention of a “no parking sign”.
Ms Wang sought the withdrawal of the expiation notice on compassionate grounds submitting that she had become unwell whilst fishing and needed to seek medical treatment. She asserted that she moved her car from the angle park onto the grassy foreshore of the reserve closer to the boat ramp making it easier to load her fishing gear, bucket of fish, and Tiger into the car.
As her application for withdrawal was refused, Ms Wang elected to be prosecuted. She was then charged on a Magistrates Court Information with contravening a no parking sign contrary to r 168(1) of the Australian Road Rules.[1] Rule 168 provides that a driver of a vehicle must not stop on a length of road or in an area to which a no parking sign applies.
[1] The Australian Road Rules are made by the Governor pursuant to the Road Traffic Act 1961 (SA) (“the Road Traffic Act”).
The Information merely alleges that Ms Wang:
On the 11^th day of February 2018 at Murray Bridge … contravened a no parking sign. RULE 168(1) of the Australian Road Rules.
Whilst not argued on appeal, the Information is, in my view, deficient as it does not particularise the road or the area on which the alleged contravention of r 168 occurred. In any event, there is no dispute about where Ms Wang’s vehicle was positioned at the time the expiation notice was issued.
The matter proceeded to trial before a Magistrate. The prosecution called the police officer who issued the expiation notice (“the police officer”), who was cross‑examined by Ms Wang. Ms Wang, who was unrepresented, gave evidence in her own defence and did not call any witnesses.
The evidence
The police officer gave evidence that he was driving along Murray Cods Drive at Murray Bridge on 11 February 2018 when he noted a silver sedan parked on the grass of the reserve:
… about half way between the roadway and the river … I drove a little further down, saw there was a sign that said no parking on the reserve. I reversed back, went and had a look at the car …
He had a conversation with the driver about parking on the reserve and subsequently issued an expiation notice. He said the car was “about 15 metres from the riverbank” and that there was a “large blue council sign with a number of restrictions on there and one of those was no parking on the reserve” (“the sign”). The sign was about 15 or 20 metres from the parked vehicle. The police officer said that the car was facing away from the sign and there were “rough marks where the tyre tracks had gone which went past the vehicle”. It was his evidence that the tyre tracks in the grass were not dug up grass, just a pattern in the grass where the car had driven, from the sign to where the car was parked.
The police officer said that Ms Wang explained that she had parked her car there as her buckets were heavy and she could not carry them the full distance from the riverbank to the “roadway”. The following exchange then occurred between the Magistrate and the prosecutor:
HIS HONOUR:       Right, and you are going to prove that this was in fact a no parking area.
PROSECUTOR:      Yes the third element down on the sign, I apologise it is not terribly brilliant picture, quite clearly says no parking on the reserve.
HIS HONOUR:       That doesn’t prove that a vehicle wasn’t permitted to park there.
PROSECUTOR:      In what sense Your Honour.
HIS HONOUR:       Was there a by-law that says there is no parking.
PROSECUTOR:      Not as far as I am aware Your Honour. We are just relying on the fact that there was a sign that says there was no parking on the reserve. Sorry if I am missing the point entirely.
HIS HONOUR:       Well unless it is against the law to park there no-one breaks the law by parking there despite a Notice so what is the law —
PROSECUTOR:      Under what regulation your Honour? In relation to the actual charge is that what you’re asking.
HIS HONOUR:       It says here, “No camping, no open fires, no littering”. What authority is there for that sign to say that.
PROSECUTOR:      In all honestly [sic] I couldn’t give you an answer for that question.
HIS HONOUR:       Well you will need to because for the defendant to break the law you have show me what law she has broken.
The police officer was then asked whether he knew what offence code it would come under. He answered, “I am not aware of the offence code but I believe it was under the Council Regulations”. The Magistrate explained that, “It will be a council regulation … [that declares] the area where no parking is permitted” and said to the police officer, “And in your Expiation Notice you say ‘Code A373 Contravene no parking sign’”.[2]
[2]    Code A373 is the offence code pertaining to a contravention of Australian Road Rules r 168(1).
In cross-examination, Ms Wang asked the police officer under “what law and what standard [he] fined [her] … for no parking”. The police officer explained, “We have a list of Expiation Notice offences and the coding for that is in the Expiation Notice offences. The code was what was given for the parking offences”. He said that “As an authorised officer under the Council Act [he] can issue an Expiation Notice”. Ms Wang asked the police officer whether there was a no parking sign where he saw her car parked. Ms Wang showed the police officer a copy of what she referred to as a “Road Traffic Act no parking sign”.The police officer said there was a sign that said “no parking” but it did not look like the pictures he was shown. The Magistrate clarified that Ms Wang was pointing to signs that are commonly in built up areas and issued under the Road Traffic Act. Ms Wang asked the police officer how he knew that she had passed the sign. The police officer said: “The direction the vehicle was facing and the tyre marks that were on the grass indicated that the car had driven past the sign”.
Just prior to re-examination, the police prosecutor informed the Magistrate that the police officer had “power under s 261 of the Local Government Act to act on behalf of the Council” and that she was “madly trying to find the section relating to the sign itself”. The Magistrate suggested that the prosecutor “speak to the Council over the luncheon break as to the promulgation of this reserve as a reserve and that they are entitled to make laws in relation to parking and at some stage you will find in their voluminous materials something where they have passed a no parking [ordinance]”.
After the luncheon break, the prosecutor said that she had “obtained a Certificate of Title in relation to the area controlled by the council to prove that they have control of it”. The Certificate of Title was tendered as evidence. The Certificate of Title describes the land as the allotment “comprising pieces 1 and 2 Deposited Plan 75353”. Deposited Plan 75353 was also tendered as evidence. The plan shows piece 1 as being predominantly bordered on the one side by Murray Cods Drive and on the other side by the River Murray. It is on piece 1 that the police officer saw Ms Wang parked. It is convenient to refer to this area as the “foreshore” of Sturt Reserve.
The prosecutor said that she relied on s 22 of the Road Traffic Act as proving the no parking sign, submitting “in relation to the installation of traffic control devices to say that there is power invested under s 238 of the Local Government Act allows the council to control access and the use of land and obviously under s 261 the [authority is] designated to the officer”.[3]
[3] Section 238 of the Local Government Act 1999 (SA) gives councils the power to make by-laws controlling access and use of local government land. The issue with this submission is that Ms Wang was not charged with a contravention of a by-law.
The Magistrate’s reasons
The Magistrate found that the police officer was an authorised officer under the Local Government Act 1999 (SA) (“the LGA”) and the Road Traffic Act and was authorised to issue the expiation notice. He accepted there was a large council sign that included the words “no parking on reserve”, clearly visible and sensibly located, nearby to Ms Wang’s vehicle. He found that she travelled past the sign, as evidenced by the car tracks, and that she would have or should have seen the sign. He accepted that the no parking sign was a sign within the contemplation of s 22 of the Road Traffic Act. The Magistrate found Ms Wang guilty of the offence, did not record a conviction, and ordered Ms Wang pay the fine of $77, prosecution costs of $100, and a victims of crime levy of $160.
The appeal
Ms Wang makes several complaints on appeal. She asserts that there was insufficient evidence to prove the charge, that the Magistrate failed to consider relevant matters, that the Magistrate was biased against her, that the police officer was not authorised to issue the expiation notice, that the sign was not a sign for the purpose of the Australian Road Rules, and that she had a defence to the charge.
Despite English not being Ms Wang’s first language, her effort to convey her arguments was commendable. Her assertion that the sign was not a sign for the purpose of the Australian Road Rules requires close attention.
The Australian Road Rules apply to vehicles and road users on roads and road-related areas.[4] The Magistrate’s reasons do not explicitly include a finding that the foreshore of Sturt Reserve where Ms Wang was alleged to have parked was an “area” to which the Australian Road Rules apply. The prosecutor did not make any submission that the foreshore of Sturt Reserve was a “road” or a “road‑related area” as defined in r 13 of the Australian Road Rules. Rule 13(1) of the Australian Road Rules provides that a “road‑related area” is any of the following:
[4]    Australian Road Rules r 11(1).
(a)an area that divides a road;
(b)a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals;
(d)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.
(Emphasis added)
The dictionary at the end of the Australian Road Rules provides:
adjacent land, for a road, means land next to the road (whether or not it adjoins the road), but does not include a road or road-related area.
…
area includes—
(a)     a bridge; and
(b)     a network of roads; and
(c)     a slip lane. …
I invited further written submissions on the question of whether the foreshore of Sturt Reserve is a “road” or a “road-related area”. The respondent further submitted that the inclusion of “open to” and “used by” in r 13(1)(d) of the Australian Road Rules contemplates that people will drive, ride, or park vehicles in places not open to them. The respondent contended that the foreshore of Sturt Reserve is not a “road” but that it is a “road-related area” as defined by r 13(1)(d) of the Australian Road Rules because it is in fact used by the public for parking vehicles. In support of this submission the respondent relied on Ms Wang’s statement at the appeal hearing that she drove on the foreshore of Sturt Reserve. That alone is not sufficient to prove that the foreshore of Sturt Reserve is “used by the public for … parking vehicles”.[5] In Schubert v Lee, the High Court held:[6]
The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public — as distinct from use by licence of a particular person or only casual or occasional use.
[5] Australian Road Rules r 13(1)(d).
[6] (1946) 71 CLR 589.
This Court has traced the history of the development of the phrase “open to or used by the public” in relation to “roads” and “road-related areas” in Zerella Holdings v Williams.[7] It is unnecessary to go into the phrase in detail, as it is clear that one person parking a car in an area is insufficient to prove that the area is used by the public. To the contrary, the police officer gave evidence that “There were plenty of parks in the area, [so he] thought it was quite strange the car was parked there” (on the foreshore of Sturt Reserve).[8] Sturt Reserve is not a “road-related area” and the Australian Road Rules do not apply to it.
[7] (2012) 113 SASR 573 at [28]–[35].
[8] Emphasis added.
The Certificate of Title tendered by the prosecutor establishes that the foreshore of Sturt Reserve is local government land owned by the Rural City of Murray Bridge. Section 3 of the LGA defines a reserve as “community land reserved or dedicated as a reserve or designated by the council as a reserve” and community land as “local government land classified as community land under Chapter 11” of the LGA. Section 207 in Chapter 11 of the LGA stipulates that a council must keep a register of all community land in its area. Sturt Reserve is recorded as community land in the register of community land kept by the Rural City of Murray Bridge. It is a place to which the public has access and therefore, in my view, within the broad definition of “public place” in s 4 of the LGA:
public place means a place (including a place on private land) to which the public has access, but does not include any part of a community parcel divided by a plan of community division under the Community Titles Act 1996;
and s 5 of the Road Traffic Act:
public place includes a place—
(a)of public resort open to or used by the public as of right; or
(b)for the time being—
(i) used for a public purpose; or
(ii) open to access by the public,
whether on payment or otherwise; or
(c)open to access by the public by the express or tacit consent or sufferance of the owner of that place, whether the place is or is not always open to the public …
The prohibition on parking[9] on the reserve is found in the Road Traffic (Miscellaneous) Regulations 2014 (SA) (“the Regulations”) reg 66, under the Road Traffic Act, which prohibits parking in certain public places:
[9] Clause 7.24 of the Rural City of Murray Bridge Local Government Land By-law 2016 regulates the driving of vehicles on local government land comprising the foreshore.
66—Prohibition on parking in certain public places
(1)A person must not park a vehicle (other than a bicycle) in a public place owned by or under the care, control or management of a council or parking authority except in an area specifically set aside for parking by the council or parking authority.
Maximum penalty: $1 250.
Part 4 of Schedule 4 to the Regulations prescribes the expiation of offences against the Regulations:
66(1)Parking in certain public places
parking in City of Adelaide Park Lands $104
parking in other public place $66
The sign on Sturt Reserve headed “Welcome To Sturt Reserve” detailing seven restrictions, including “no parking on reserve”, applies to the public’s use of and access to Sturt Reserve. It does not apply to the use of a road or a road‑related area.
The police officer had the power under s 37 of the Road Traffic Act to issue an expiation notice for a contravention of reg 66(1) of the Regulations: parking in other public place, offence code A712.[10] This power exists irrespective of the existence of any sign on Sturt Reserve.
[10] Expiable Offences and Fees — Traffic PD320A effective 1 July 2018, 23.
Conclusion
Ms Wang was incorrectly charged with a contravention of the Australian Road Rules r 168 offence code A373. I allow the appeal, set aside the Magistrate’s finding of guilt and penalty, and dismiss the Magistrates Court Information.