Case Law Update: South Australia’s New Court of Appeal Upholds Successful Council Parking Prosecution

We previously provided a case law update regarding the matter of Stern v Corporation of the City of Adelaide [2020] SASC 220 which may be accessed here.

Since our last article, Ms Esther Stern has applied to South Australia’s new Court of Appeal (the Court) for permission to appeal against the decision of a single judge of the Supreme Court, Justice Bampton, who upheld Ms Stern’s conviction.

This application is noteworthy as it was heard by South Australia’s newly established dedicated Court of Appeal, which began operations on 1 January 2021. The Court was created as a result of amendments made to the Supreme Court Act 1935 in late 2019, and will provide the opportunity for Judges to develop specific expertise in appeals. Five Judges have been appointed to the Court, including Justice Kelly, as the President, and Justices Lovell, Doyle, Livesy and Bleby.

Ms Stern’s application to the Court confirms Justice Bampton’s finding that a contravention of the law, specifically for a parking offence, may be made out by councils where they are relying on the knowledge and judgment of their officers relating to measurements as evidence.

The Application for Permission to Appeal

In her application, Ms Stern contended that the Magistrate and single Judge both erred in finding:

1. the object next to which her vehicle was parked was a ‘fire hydrant‘ within the meaning of Rule 194 of the Australian Road Rules (the ARR);

2. her vehicle was within one metre of the fire hydrant; and

3. there was no evidence worthy of consideration in support of the her reliance upon an act of a stranger in moving her vehicle.

Decision

In Stern v Corporation of the City of Adelaide [2021] SASCA 3, the Court rejected Ms Stern’s submissions regarding the definition of a fire hydrant for the same reasons given by Justice Bampton. The words ‘drawing water’ in the definition contained within the ARR are a mere reference to the purpose for which a fire hydrant exists. The ARR does not require the fire hydrant to be in working order, and hence capable of fulfilling that purpose, at the moment of the infringement.

Further, the Court rejected Ms Stern’s argument that the ‘tatty’ state of the fire hydrant deprives it of its character as a fire hydrant for the purposes of Rule 194 of the ARR.

Secondly, the Court agreed with Justice Bampton that the Magistrate was entitled to rely on the Council Officer’s oral evidence and photographs of the scene, to make a finding beyond reasonable doubt that Ms Stern’s vehicle was stopped within one metre of the fire hydrant. The Council officer’s oral evidence was that the distance between the vehicle and the fire hydrant was ‘a lot less than a metre’. The Court held that the Magistrate was entitled to make this finding even though the officer did not take any measurements of the precise distance.

Finally, the Court held that Ms Stern’s suggestion that a stranger may have moved her vehicle was ‘speculative in the extreme’ and, in the absence of further evidence to support this argument, the Magistrate was entitled to reject it. Similarly, Justice Bampton was entitled to uphold that conclusion.

Consequently, the application for permission to appeal was dismissed, as no error on the part of the single Judge or the Magistrate was identified.

Take Home Message

This decision suggests council officers may, in some circumstances, make judgement calls in reliance of their experience and expertise in the field when taking road safety enforcement action. Consequently, an offender may be found guilty and a conviction recorded in cases where officers make factual findings based on such judgement calls.

However, we confirm this matter involved the positioning of a vehicle that was clearly within one metre of a fire hydrant and we remind officers that it remains best practice to record measurements in matters of this nature. Further, we emphasise the importance of good evidence gathering and record keeping, with the Court’s reliance on the photographs in this matter clearly supporting the officer’s oral evidence and presumption the vehicle was stopped within one metre of the fire hydrant.

The findings from the Court also continue to provide helpful clarification on the definition of a fire hydrant and what constitutes a fire hydrant for the purposes of the ARR.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au; or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au; or Viviana Paradiso on +61 8 8210 1292 or vparadiso@normans.com.au.