To Queue or Not to Queue, That Was the Question

Norman Waterhouse recently acted in a successful Magistrates Court prosecution bought on behalf of the City of Playford (Council), in respect of an offence of double parking in breach of Rule 189 of the Australian Road Rules.

Facts

In November 2021 authorised persons of the Council conducted a routine parking patrol of a school in response to complaints from members of the public about unsafe parking. In the course of those patrols, the authorised persons identified a silver Hyundai sedan (the Vehicle) stopped on a length of road between vehicles parked on the road and the centre of the road. Relevantly, the particular length of road did not have a centre dividing line. The authorised person took three photographs of the Vehicle showing the manner in which it was parked. An expiation notice was issued to the Defendant as the owner of the Vehicle. The Defendant subsequently elected to be prosecuted.

Trial

The matter proceeded to trial in the Elizabeth Magistrates Court in January 2023. The Defendant was self-represented. The Council called the authorised person who issued the expiation notice and took the photographs as a witness. The three photographs tendered at trial were taken at 3.12pm, 3.17pm and 3.19pm respectively and not only showed the Vehicle stationary but also depicted other vehicles parked parallel to the side of the road and stopped both behind and in front of the Vehicle. The authorised person gave evidence of their observations regarding the traffic conditions at the time and the fact of the presence of school children attempting to cross the road in busy traffic.

The Defendant raised two matters in her defence. The first ‘defence’ which many council officers will be familiar with, centred on the apparent invalidity of local government in Australia and inability of Parliament to make law. The Magistrate quickly dismissed this defence on the basis that it was entirely without merit.

The second defence advanced by the Defendant was that she was not double parked within the meaning of Rule 189 of the Rules, but rather was in a queue of traffic. The Defendant explained that, while she could not recall whether she was the driver of the Vehicle on the date of the alleged offence, the Vehicle was not double parked but in a queue of traffic which was either waiting to turn into a nearby school carpark, or waiting for children to cross the road at an ad-hoc ‘school crossing’ at which teachers ‘stopped traffic’, or because traffic was queued in a line due to a give way sign at an intersection approximately 90 metres from where the Vehicle was stopped. In response to clarifying questions from the trial Magistrate, the Defendant said that no official pedestrian crossing was installed on the relevant length of road at the time of the offence and that, if she was the driver of the Vehicle at the time, due to the amount of traffic present, she would not have deemed it safe to pass other vehicles that may have been stopped on the road.

Outcome

In finding the Defendant guilty of the offence, the Magistrate made a number of relevant observations in relation to the prosecution evidence. Firstly, he considered that the second and third photographs taken by the authorised person clearly demonstrated that the Vehicle was stopped for a period of at least two minutes. He found this to be a very long time for a vehicle to be in a queue in traffic without moving at least some distance. The Magistrate also observed that the photographs, together with the evidence of the authorised person, demonstrated that other vehicles, both ahead of and behind the Defendant’s vehicle on the road, were able to move on out of the queue. Lastly, the Magistrate considered there was no evidence to support the Defendant’s claim that the Vehicle was in a queue for an intersection some 90 metres ahead.

The Magistrate convicted the Defendant of the offence, imposed a fine of $400 and awarded the Council $6,135 by way of costs. The Defendant was also liable to pay a victims of crime levy of $250.

Take away messages

This case reinforces the importance of observations made by authorised persons and the obtaining of evidence, such as photographs, which demonstrate other conditions (such as signage, road markings, other pedestrian and vehicle traffic) which exist at the time of the offence. Where practical, it will always be useful for authorised persons to make notes (whether or not photographs are taken) detailing such observations, as it will be the officer’s observations which form the primary basis of the evidence should the matter proceed to trial.

For more specific information on any of the material contained in this article or in relation to the prosecution of offences generally, please contact Paul Kelly on 8210 1248 or email pkelly@normans.com.au or Dale Mazzachi on 8210 1221 or email dmazzachi@normans.com.au.