YOUNG v Police - [2009] SASC 348

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
YOUNG v POLICE
[2009] SASC 348
Judgment of The Honourable Justice Duggan
24 November 2009
TRAFFIC LAW - OFFENCES
Appeal against conviction for driving whilst number plate obscured - whether number plate obscured contrary to reg 22 of the Motor Vehicles Regulations 1996 (SA) - whether reg 12 defines the area within which observations must be made for the purposes of reg 22 - whether Magistrate erred in awarding costs of police witness' expenses pursuant to Summary Procedure (Witness Fees) Regulations 2007 (SA) reg 13.
HELD: conviction upheld - appeal allowed for limited purpose of setting aside order of Magistrate allowing accommodation expenses of police witness.
Motor Vehicles Regulations 1996 (SA) reg 12, reg 22; Motor Vehicles Act 1959 (SA) s 47; Expiation of Offences Act 1996 (SA) s 5; Summary Procedure (Witness Fees) Regulations 2007 (SA) reg 3, referred to.

YOUNG v POLICE
[2009] SASC 348
Magistrates Appeal: Criminal

DUGGAN J: The appellant has appealed against conviction for a breach of reg 22 of the Motor Vehicles Regulations 1996 (SA) (“the regulations”).
The complaint alleged that, on 31 July 2007 at Mount Gambier, the appellant:
Drove a motor vehicle on a road namely Cave Road whilst a device was attached to the vehicle, the effect of which was to obscure a figure on a number plate on the vehicle when the plate was viewed from a particular angle in daylight.
Insofar as it is relevant to the present case reg 22 provides as follows:
(1)A person must not drive a motor vehicle on a road while—
(a) a device is attached to the vehicle or a number plate or trade plate on the vehicle; or
(b) a substance is painted on or otherwise added to or made part of a number plate or trade plate on the vehicle,
the effect of which is to obscure or distort a letter or figure on a number plate or trade plate on the vehicle when the plate is viewed or photographed from any particular angle or from all angles in daylight or at night.
(2)In subregulation (1), a reference to a number plate extends to that portion of a motor vehicle on which the registered number is marked in accordance with regulation 13.
The general requirement to display number plates is set out in s 47 of the Motor Vehicles Act 1959 (SA) (“the Act”). Exceptions aside, it is an offence under s 47 to drive a motor vehicle or cause a motor vehicle to stand on a road which does not have number plates attached to it. The number plates must bear the number allotted to the vehicle and must be attached to the vehicle in accordance with the regulations.
Regulation 12 states that:
For the purposes of section 47(1) of the Act, the following provisions apply to the carriage of number plates:
(a)a motor vehicle must have attached to it—
(i)    in the case of a motor bike or trailer—one number plate at the rear;
(ii)     in the case of a tractor or agricultural machine—one number plate;
(iii)     in any other case—one number plate at the front and one number plate at the rear,
such that—
(iv)    the bottom edge of the plate is not less than 30 centimetres above the level of the ground and in such a position that every figure and letter of the registered number is upright; and
(v)     —
(A)in the case of a plate placed on the front of the vehicle—the whole of the plate is visible from the front; and
(B)in the case of a plate placed on the rear of a vehicle—the whole of the plate is visible from the rear; and
(b)every letter and figure on a number plate must be—
(i)    clearly visible in daylight to a person standing on the same plane as the vehicle at any point not less than 3 metres or more than 18 metres from the plate looking at the plate along an imaginary line approximately at right angles to the plate; and
(ii)     legible from left to right on a plane level with the ground; and
(iii)     clean and legible at all times; and
(c)a number plate must be rectangular.
The circumstances which led to the charge come within a narrow compass. On 31 July 2007 Constable Gray was on duty in Mount Gambier when a vehicle being driven by the appellant attracted his attention. Constable Gray directed the appellant to stop and he inspected the rear number plate on the vehicle. He noticed that the vehicle was fitted with a towbar and ball. The ball was covered by a chrome cover. It was Constable Gray’s opinion that the chrome cover obscured letters and numbers on the number plate of the vehicle, depending upon which angle the plate was viewed from.
The police officer took a photograph of the rear of the vehicle which showed the position of the attachment in front of the number plate. He said in evidence that the photograph was taken while he was squatting behind the vehicle and no more than five metres away from it. There is no reason to doubt the police officer’s evidence that, from his own observations, the chrome cover obscured part of the number plate. The photograph supports his evidence in this respect in that it demonstrates that one of the three numbers is obscured by the chrome cover when the number plate is viewed from the angle at which the photograph was taken and at the level at which the camera was held.
The principal complaint of the appellant, who represented himself before the Magistrate and on appeal, is that the relevant legislation and regulations, when read as a whole, require that any observation to determine whether the number plate is obscured in the relevant sense must be made from within an area which is determined not by reg 22 alone, but by reg 22 read in conjunction with other regulations which modify it. According to the argument the photograph (and presumably the police officer’s observations) were made outside this area and it follows that no offence was proved.
The appellant referred to the area within which the observations are to be made as “the defined area of operational visibility”. He said that reg 22 created an “initial area of operational visibility” which was “unconstrained”. However, other regulations had the effect of constraining it.
It is apparent that the observations referred to in reg 22 are to be made from a position from which the number plate, complete with letters and figures, can be seen in the absence of some object which might obscure or distort them. The purpose of the regulation is to ensure that relevant details on the number plate are not obscured or distorted so as to prevent identification of the vehicle by reference to them. Obviously it is not contemplated by the regulations that the viewing of the rear plate would take place from a position from which it would not ordinarily be seen. That aside, however, the viewing point is not restricted by the regulations. Reg 22(1) provides that the vehicle may be viewed or photographed “from any particular angle or from all angles in daylight or at night”.
As I have observed, the appellant acknowledged that the area from which the observations are to be made or photographs are to be taken is defined by reference to the Act and regulations. He began by drawing attention to reg 12(b). According to his argument, reg 12(b) defines the area within which observations for the purposes of reg 22 are to be made. In other words, the observations must be made or the photograph taken from a “point not less than three metres or more than 18 metres from the plate looking at the plate along an imaginary line approximately at right angles to the plate”. He pointed out that the police officer did not make his observations or take the photograph from such a position.
The appellant also referred to reg 13 which provides an exception to s 47(1) of the Act if certain conditions are met. He said that this provision was directed at registered numbers allotted before 1 July 1996 when the number could be displayed on the vehicle, but not on a plate as required for other vehicles. The point he made was that one of the requirements of the regulations for the exception to apply was that every letter and figure of the registered number marked on the vehicle must be displayed in such a way as to be visible in the same way as a number plate is to be visible in accordance with reg 12(b). The appellant was not submitting that his vehicle was exempted from displaying a number plate as required by s 47(1) of the Act and reg 12. He was simply drawing attention to the fact that the letters and numbers on an exempt vehicle had to be visible from the same viewing position which reg 12(b) provides for letters and figures on number plates. He said that this reinforced his argument that the relevant position for the making of observations under reg 22 was as described in reg 12.
In my view this argument must be rejected. Section 47(1) of the Act provides that number plates must be attached to vehicles in accordance with the regulations. The relevant regulation is reg 12. The number plate must be visible in accordance with the criteria set out in reg 12(b).
Regulation 22 makes it an offence to obscure or distort a letter or figure on a number plate. The regulation is of particular importance to the detection of road traffic offences and the enforcement of road traffic law. Number plates may be observed for these purposes from a variety of distances and angles. It is obvious that this is the reason for the width of the phrase in reg 22(1)(b) –
…viewed or photographed from any particular angle or angles in daylight or at night.
The plain wording of reg 22 is not be read down by the general requirements of reg 12. The angle for the viewing and photographing which was chosen by Constable Gray was within this broad description and the evidence which he gave clearly establishes that the appellant committed the breach with which he was charged.
The appellant made some criticisms of the fact that Constable Gray decided to issue an expiation notice without discussing the matter with the appellant. Section 5 of the Expiation of Offences Act 1996 (SA) permits expiation notices to be given to a person if an expiation fee is fixed by law for the offence. There is no requirement to discuss the matter with an alleged offender prior to issuing the notice. I disagree with the suggestion that there was an improper exercise of the discretion by reason of the circumstances in which the notice was issued on this occasion.
The appellant made various textual criticisms of the Magistrate’s reasons, but none of them indicate that the Magistrate erred in law or adopted procedures which deprived the appellant of a fair hearing.
However, the appellant’s challenge to one aspect of the Magistrate’s order as to costs raises a valid objection.
Constable Gray was required to travel to Mount Gambier for the hearing. The Magistrate directed the appellant to pay $99 on account of the costs of the police officer’s overnight accommodation.
Regulation 3 of the Summary Procedure (Witness Fees) Regulations 2007 provides that, if a witness is necessarily absent from home overnight, the court may certify as payable the costs of accommodation and meal expenses. However, reg 3(3) provides that no amount is to be certified if the witness is a police officer who is not on leave. There is nothing in the transcript to indicate the officer was on leave and Ms Dellit, for the respondent, did not suggest otherwise.
The appeal will be allowed for the limited purpose of deducting the sum of $99 from the costs payable by the appellant in relation to the appearance before the Magistrate.
The orders of the Magistrate are confirmed in all other respects.