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…

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.

Continue reading Wang v Police

Details

AGLC: Wang v Police [2019] SASC 65
Case: [2019] SASC 65
Decision Date: 26 April 2019

CaseChat Overview and Summary

Wang v Police involved the appellant, Wang, appealing against a decision of a Magistrate finding her guilty of contravening a no parking sign contrary to r 168(1) of the Australian Road Rules. The issue before the court was whether Wang had parked in a road-related area to which a no parking sign applied. The court held that Wang was incorrectly charged and allowed the appeal. Wang did not park in a road-related area to which a no parking sign applied. The court found that there was no evidence of a by-law or regulation that prohibited parking in the area where Wang parked, and the sign was not sufficient to establish that parking was prohibited. The court held that the police officer did not have the power to issue an expiation notice for a contravention of the Australian Road Rules and that Wang was incorrectly charged with the offence. The appeal was allowed, and the Magistrate’s finding of guilt and penalty was set aside. The Magistrates Court Information was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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