Boensch v City of Parramatta Council

Rehearing

1. Conviction appeals are by way of rehearing based on the transcript of evidence before the learned Magistrate. They proceed by way of rehearing on the basis of the evidence before the Local Court (s. 18 of the Crimes (Appeal and Review) Act 2001). There is an exception to this requirement should the parties wish to adduce fresh evidence. No application was made along these lines and I was asked to proceed on the basis of the material before the Local Court and tendered before me.
2. A conviction appeal is not a hearing de novo, that is, a new trial. It is a rehearing. In accordance with the decision of Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 which adopts Gianoutsos v Glykis (2006) 65 NSWLR 539 I am to form my own judgment on the facts as far as I am able to do so based on the certified transcript and exhibits and recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses in the Local Court. This is particularly so where there are any credibility issues touching upon any factual dispute. Furthermore, whilst the Magistrate's reasons are not ordinarily a part of the certified transcript of evidence, these authorities commend I consider those reasons. I have done so.
3. I am also bound by the NSW Court of Appeal's judgment in AG v DPP (NSW) [2015] NSWCA 218. In that decision, Basten JA and Simpson JA expressed differing views. The former indicating that an Appellant under s. 18 of the Crimes (Appeal and Review) Act 2001 was required to demonstrate some legal, factual or discretionary error on the part of the learned Magistrate for an appeal to succeed.
4. Simpson JA held that s. 18 does not require any finding of error by the Magistrate. Rather, the District Court Judge should make his or her own finding. Her Honour particularly noted the importance of findings as to credibility by the Local Court in such appeals. Sackville JA, whilst stating it was surprising that there were still issues of construction attaching to such appeals, preferred to not express an opinion as to whether it was necessary to identify error.
5. I am also mindful of the limitations that exist when proceeding wholly on the record of the proceedings in the Local Court and the advantages held by the learned Magistrate in considering the evidence, particularly in respect of issues of credibility. I have had close regard to the learned Magistrate's analysis of the evidence together with his reasons for decision. Relevantly he does not appear to have had any partial advantage over my consideration of these matters in so far as credibility is concerned because no witnesses were called or gave evidence. The matters ran on the material tendered, which included an unchallenged Statement of Facts and Affidavit from the Appellant. The Appellant later appeared unrepresented and Mr Gough appeared for the Prosecutor. The hearing proceeded by way of discussion, argument and finally a swift ex-tempore decision. I will turn to this a little later.

The Appeal

1. As I say the offences the subject of these appeals are against the provisions of S167 of the Road Rules 2014. The short description of the offences is "Disobey "no stopping" sign". There are 23 separate counts. I have been helpfully provided with a schedule listing each of the alleged offences together with relevant particulars. Each is numbered consecutively 1 to 23. There are 11 counts with respect to motor vehicle registered number xxx55H, a red Mercedes 560 SEC coupe. These are numbered counts 1 (14/3/18), three (25/3/18), five (31/3/18), seven (3/4/18), 10 (6/4/18), 12 (14/4/18), 14 (9/5/18), 16 (21/5/18), 18 (23/5/18), 20 (30/5/18), and 22 (6/6/18). There are another 11 counts with respect to a metallic Mercedes sedan 280SE registered number xxx87H. These are numbered counts two (14/3/18, four (25/3/18), six (31/3/18), eight (3/4/18), 11 (6/4/18), 13 (14//18), 15 (9/5/18), 17 (21/5/18), 19 (23/5/18), 21 (30/5/18) and 23 (6/6/18). Each of these counts are alleged to have occurred on a section of Victoria Road, Rydalmere. There is one remaining count with respect to a red Mercedes coupe registered number xxx68H. This is Count nine (5/4/18) and is alleged to have occurred on an unnamed lane referred to as "no name lane" Rydalmere.
2. The hearing before the learned Magistrate and indeed before me proceeded on an Agreed Statement of Facts (see Tab 5 - Ex A). These included photographs of the subject vehicles in situ on the dates of the alleged offences. Notably the Statement of Facts was admitted by consent. They were conceded by the Appellant before both the Magistrate in the Local Court and before me in these appeals.
3. It is appropriate to now recite some of the relevant legislation. No dispute was raised with its applicability and indeed the statutory framework around and constituting the alleged offences.
4. S 184 of the Road Transport Act 2013 ("the Act") provides that a "responsible person for a vehicle is taken to have committed a designated offence". Subsection (1) provides that: "(1) liability of responsible person for the offence generally if a designated offence occurs in relation to any registrable vehicle, the person who at the time of the occurrence of the offence is the responsible person for the vehicle is taken to be guilty of an offence against the provision concerned in all respects as if the responsible person were the actual offender guilty of the designated offence unless…"
5. The section then outlines some potential defences, none of which were or are relied upon in the present appeals. Furthermore s 185 of the Act identified some additional exclusions to liability and again none are raised as relevant to the present appeals.
6. There was no dispute that the Appellant was the "responsible person" for each of the subject vehicles. Section 10 of the Act provides that a "responsible person" for a vehicle includes "an Australian registered operator" of the vehicle. Section 8 of the Act proscribes that a registered operator in relation to a vehicle means a person recorded in the NSW Registry Vehicles Register as the person responsible for the vehicle. The agreed facts recite and it is agreed that the Appellant was the responsible person with respect to each of the nominated vehicles.
7. Each of the remaining counts alleges each vehicle was stopped at the time and date pleaded on a length of roadway to which a "no stopping" sign applied.
8. Rule 167 of the Road Rules provides: "a driver must not stop on a length of road or in an area to which a no stopping sign applies".
9. S 10-1 of the Road Rules provides reference to liability, that is a rule as to determination of criminal responsibility and in particular; "(2) offences are strict liability offences an offence against these Rules is a strict liability offence for the purposes of Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), except where these Rules expressly provide otherwise."
10. It is agreed this applies to the present offences and they are thus offences of strict liability.
11. The Respondent has helpfully provided in its Submissions in Reply an appropriate and helpful analysis of the elements of offence, relevant legislative provisions and relevant facts and circumstances extracted from the transcript and evidence before the learned Magistrate as to each of the alleged offences (see Exhibit B).
12. The parties agree that the elements of the alleged offences are: 1 - A vehicle stopped 2 - No stopping signs applied and 3 - Appellant is the responsible person for the subject vehicles (?)
13. At para 9 of the Respondent's Submissions in Reply I am reminded of the following Agreed Facts. 1. First that the vehicles observed on Victoria Road Rydalmere (referable to Counts 1- 8 and 10-23 inclusive) were moved to that location on or about June/July 2017. 2. Second, that at the time the vehicles were so moved the relevant section of Victoria Road was subject to clear way traffic parking restrictions and 3. Third, in August 2017 the relevant "no stopping sign" were erected in the area of Victoria Road within which the vehicles were located and subsequently photographed and breached for each of the alleged offences.
14. It is relevant at this stage to briefly refer to the facts and circumstances as to Count 9, that is with respect to the red Mercedes registered number xxx68H alleged to have been stopped within a no stopping zone in the unnamed lane Rydalmere on 5 April 2018. In so far as that alleged offence is concerned it was greed that the relevant "no stopping signs" were erected in the unnamed lane in 2012. It was also agreed that the alleged offence occurred on 5 April 2018. This was confirmed during argument and it was conceded that the vehicle had been parked in that unnamed laneway sometime after placement of the relevant signs. Mr Waldersee on behalf of the Appellant acknowledged that this was both a different and contrary situation to the challenge mounted with respect to the remaining Counts and that those submissions and argument as to the conviction appeal did not apply. Furthermore it was then conceded during argument that there were no other sustainable bases to maintain this appeal. Accordingly and by consent that conviction appeal was withdrawn and dismissed. I indicated I would make final confirmatory orders as to this matter when delivering judgement on the remaining matters.

1. Statutory interpretation
2. As to the remaining counts, the Appellants' case is twofold. First that the definition of "stop" and/or "park" does not include allowing the vehicle to stay in circumstances where it had earlier been stopped or parked in that position prior to the erection of the relevant "no stopping sign". The Appellant concedes that the vehicles were in situ, contrary to the relevant signs however it is submitted that the definitions constituting or relied upon to make out the offences, that is "stop" and/or "park" did not include "allowing the vehicle to stay" subsequent to the erection of the signs. This is a challenge to element 1, that is "a vehicle stopped".

2. Honest and reasonable mistake of fact
3. The Appellants' fall back or secondary argument is one of honest and reasonable mistake of fact. It is submitted that the Appellant appropriately relied on previous decisions of another learned Magistrate (a judgment of 27 November 2013) for a similar offence and an unrelated appeal before Acting Judge Freeman on 27 August 2013 where he too allowed an appeal against a conviction for a like offence. Both related to alleged offences of disobey no stopping sign in circumstances where the vehicle was already in situ and the signs founding the allegations had been erected on a subsequent date. Without conceding the correctness or otherwise of these decisions, the Respondent submits that if these two preceding decisions founded the Appellant's honest and reasonable belief then it was not a matter of fact but a matter of law and thus did not fall within such a defence.
4. Essentially it was submitted an honest and reasonable mistake or belief as to fact and not law is the only platform for such defence and in the present circumstances the Appellant was relying on an analysis of the law by two judicial officers which, both generally and for the purposes of these appeals, are not conceded as the correct law. Whether this be so or not, the simple submission is that the mistake made by the Appellant was one of law and not fact and does not therefore give rise to a defence. This is not conceded by the Appellant although it is acknowledged that the defence can only succeed if it is considered an honest and reasonable mistake of fact (emphasis added).

Resolution

1. Returning to the first argument regarding interpretation of the relevant Rule. The Appellants' principal argument is that use of the word "and" in the phrase "includes stop and allow the driver's vehicle to stay" (within the Dictionary definition of "park") is conjunctive and not disjunctive. On behalf of the Respondent it is submitted that any such separation or definition is incorrect.
2. At the outset the parties inform me that other than the two decisions relied upon by the Appellant, there are no relevant decisions from superior Courts referable to this Rule, nor indeed interpretation of the word "stop". It seems to me the positions of the parties as to the construction and interpretation of the word "stop" encompass what might be defined as a "restricted meaning" on behalf of the Appellant as opposed to a "broad meaning" on behalf of the Respondent.
3. First principles require interpretation according to the ordinary meaning of the word or words and the legislative purpose behind the rule. There is perhaps a sub argument albeit not articulated as to the purpose of the legislation, that is whether it be "beneficial" or "penal". I have not heard specific submissions on this separation although, presciently, on behalf of the Respondent it is submitted I should take into account the legislative purpose of the Rule. It is submitted that the Rule via its enacting legislation is focused on road safety and transport efficiency (see S 3 of Road Transport Act 2013). Reference to that section provides a broader definition and includes the object of the Act including "systems for the improvement of Road safety and transport efficiency" and more overarchingly; "a consolidation of statutory provisions concerning road users, road transport and the improvement of Road safety". As the parties are well aware the legislation includes a vast number of prescribed criminal offences together with relevant penalties, including imprisonment, licence disqualification and/or suspension, some being mandatory, and fines.
4. Contravention of Rule 167 attracts a criminal penalty that is up to 20 penalty units which equates to $2200.00.
5. Interpretation of the word "stop" is facilitated by various definitions contained within the Road Rules Dictionary (see extracts Exhibit 2). It provides a definition for "stop" as: "… and for a driver, includes park, but does not include stopped to reverse the driver's vehicle into a parking bay or other parking space".
6. The Road Rules Dictionary also incorporates a definition of the term "park" as: "… and for a driver, includes stop and allow the driver's vehicle to stay (whether or not the driver leaves the vehicle)"
7. The Respondent submits the words "includes stop" within the definition of "park" incorporates the Dictionary definition as to the term "stop" into that definition. It is submitted that the definition of "stop" includes the definition of "park" and that the definition of "park" includes the definition of "stop". Accordingly it is submitted that the definition of "stop" for the purposes of these offences includes that contained in the definition of "park", that is "includes stop and allow the driver's vehicle to stay". The Respondent submits that this definition, so extended, creates therefore an ongoing requirement and where a driver leaves the vehicle in situ, that is allowing it to remain in the relevant location, he or she is deemed to have stopped the vehicle contrary to the Rule and thus the offence is made out.
8. It is submitted that to not include this as a part of the definition and thus interpretation would result in a nonsensical consequence in that it would mean any person could therefore just park a vehicle in a no stopping zone and leave it there without consequence. This argument has some validity, but it seems to me only in circumstances where there is already a relevant no stopping sign and of course the area within which the vehicle is parked is so restricted. That is not the factual situation in the present appeals. There were no signs nor was the area so designated at the time the subject vehicles were so positioned. In argument I'm taken to a sensible and relevant consequence by way of example that where a sign might be conditional that is a no stopping area between certain hours. The submission is made that should the more narrow interpretation be given, a car may park or be stopped, and thus remaining stationary and in situ at a time outside the prohibitive hours but if it is then left there during those hours no offence has occurred because the vehicle had not been "stopped" during the restricted or prohibitive period. A similar example was given with respect to clearway signs, again generally confined to certain hours and days of the week.
9. This interpretation seems to have been embraced by the learned Magistrate. I turn now to the proceedings that were before him and the consequent finding that each offence was made out.
10. Firstly the Appellant was then unrepresented. In discussions with the learned Magistrate the Appellant indicated that he was defending each count on the basis that when the vehicles were stopped or parked within the prohibited zone there was no sign describing such area as a "no stopping" zone. During this exchange the Magistrate enquired of the Appellant whether, within the prosecution material, there were photographs of the subject vehicles parked in the "no stopping zone" at the time those signs were erected. The Appellant agreed (see T3). The learned Magistrate read the affidavit and material produced/tendered by the Appellant and during discussion raised with him that each of the offences were strict liability offences. Upon indicating to the Magistrate that he did not understand that to be the case he indicated that he thought the legislation prescribed that the driver had to stop the vehicle in the "no stopping zone" to commit the offence; rather than if the vehicle is already there prior to the signposting to that effect. The Magistrate also considered the two judgments that were relied upon by the Appellant and which are before me and are said to sustain a defence of honest and reasonable mistake. They were not quite so precisely dealt with in that manner before the Magistrate. He indicated at T 5 that having read those judgments he said "Well I've read those judgments. It appears that both of them just gave up".
11. The Appellant, not to be dissuaded, then submitted that the placement of the signs did not operate retrospectively and referred to the judgment of Acting Judge Freeman to that effect. There was some further argument as to the definition of "stop" and "park" and that the offences were strict liability. The Appellant also raised with the learned Magistrate the previous judgments of Magistrate Knight and Acting Judge Freeman: essentially, although not articulating, his honest and reasonable mistake. This argument was not dealt with as the Magistrate found against the Appellant on his interpretation of the Rule and thus determined the offences were made out.
12. The learned Magistrate at T 16 concluded each of the vehicles were "undoubtedly stopped". He indicated that it did not matter whether they were stopped before the erection of the signs or whether they continued to be stopped between those signs after the signs were put up. He concluded the two vehicles in question "are undoubtedly stopped". He further concluded that he needed to give "stop" its ordinary meaning. (see T 16: L 15 - 21) The learned Magistrate dismissed the Appellant's argument on the basis that it would mean that should a vehicle be stopped and parked in an illegal area it matters not what signage is erected after that and the vehicle may then remain there forever. The learned Magistrate concluded that this construction was not appropriate and indeed, significantly, that "stop includes park and park includes allowing the driver's vehicle to stay" (see T 16: L 38 - 39) He concluded that by allowing the vehicles to stay in those positions the offences are therefore made out.
13. I can well understand the learned Magistrate coming to these conclusions particularly against the background of what might be described as an apparent anomaly should the vehicles be parked in the contrary position before the erection of signs and thus left remaining there afterwards and consequently escaping liability. That is an attractive argument. However with respect may not, as it is submitted on behalf of the Appellant before me, necessarily fall within and comply with a close analysis and application of principles of statutory interpretation.
14. It is the Appellant's submission that use of the word "and" within the definition "stop and allow the driver's vehicle to stay" is conjunctive rather than disjunctive. This is contrary to the finding of the learned Magistrate who decided; "stop includes park and park includes allowing the driver's vehicle to stay, it seems to me that's exactly what happened here" (T 16 L 38 - 40).
15. As I say the word/phrase should be construed in accordance with its ordinary meaning. Ordinary meaning is a question of fact (see Collector of Customs v Pozzolanic Enterprises P/Ltd [1993] FCA 322 at [23]. Where statutory language albeit utilising ordinary language is ambiguous so that it can be interpreted as having two or more possible constructions, it is necessary to choose between them and as that is a question of law, it is to be determined by application of usual rules of construction.
16. Construction also requires consideration as to whether the statute or words/phrase in question has penal consequences. As stated in the seminal text Geddes and Pearce Statutory Interpretation in Australia (8th ed) (2014) at page 368, quoting from Beckworth v R (1976) 135 CLR 569 at 576: "in determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences….The rule is perhaps one of last resort."
17. Whilst the alleged offences do not carry or threaten the liberty of the subject (to use a somewhat antiquated expression) it does seem to me that they are penal provisions, breach of which results in the imposition of a penalty and non-payment of which does have potential constraining consequences. There is an ancillary threat of penalty. I am thus satisfied the provision is penal.
18. The Macquarie Dictionary, 1st ed (1981) provides the following relevant definitions: "stop": to come to a stand, as in a course or journey; halt; to cease moving, proceeding, speaking, acting, operating, to pause, desist"; and "park": to port or leave (a car, et cetera) for a time in a particular place, as at the side of the road".
19. It seems to me that having regard to these provisions in the requirement to read down any ambiguity resting with the interpretation of a penal provision there is some difficulty in applying what might be described as a sense of retrospectivity to the alleged offences on the basis that the subject vehicles were positioned in the offending location prior to the erection of the relevant signs and that without further, the offence is made out.
20. Under principles of statutory interpretation use of the word "and" is ordinarily interpreted as conjunctive. To achieve a disjunctive interpretation would ordinarily involve the use of the word "or". The words are not ordinarily interchangeable. The legislature has specifically used the word "and" and from my perspective this would appear to be a deliberate and considered exercise of draughtsmanship and unless there be some significant foundation for an interpretation to the contrary, its ordinary use or parlance would be conjunctive. This to me suggests the extended definition as submitted and found by the learned Magistrate, despite compelling and helpful arguments that have been presented before me on behalf of the Respondent, the definition ought be confined.
21. There is to my mind an intrinsic unfairness in a penal statute such as the present, having what appears to be from a practical sense, retrospective effect upon placement of the relevant signage. In so concluding I accept, as was attractive to the learned Magistrate against the background of no doubt a busy court list, that this may have the consequence that a vehicle could remain in such position or location contrary to the placement of the sign without penalty or constraint. Regrettably this may be the case however I am not persuaded that the Rule ought be read as broadly as submitted. Where there is ambiguity it should be read down. With respect there seems to me to be a lack of precision.
22. The section/rule has no work to do in circumstances where a vehicle is positioned contrary to an erected sign. The hurdle in the present case for the Respondent is that there was no erected sign at the time the vehicles were so positioned. Applying the definition "includes stop and allow the driver's vehicle to stay" and interpreting the word "and" conjunctively, requires such actions to have occurred at a time when the relevant signs were erected. The agreed facts do not satisfy this requirement and accordingly the first element is not made out.
23. In all the circumstances therefore I'm not satisfied that each of the alleged offences, Counts 1 - 8 and 10 - 23 are made out. Accordingly I allow each appeal.
24. I quash the findings as to the offences being made out, convictions and orders/penalties imposed by the learned Magistrate.
25. As to Count 9, I dismiss the appeal and confirm the finding as to the offence being made out, the conviction and penalty.

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