Citation: Boensch v City of Parramatta Council [2019] NSWDC 971
Court: District Court of New South Wales
Date: 18 June 2019
Judge: Hoy SC DCJ
Background
The appellant was the registered operator of three Mercedes vehicles. Over roughly three months between March and June 2018, those vehicles were parked on a stretch of Victoria Road, Rydalmere (and, for one count, an adjacent unnamed lane). City of Parramatta Council issued 23 penalty notices alleging the vehicles had disobeyed a "no stopping" sign, contrary to rule 167 of the Road Rules 2014.
After a defended hearing in the Local Court on 10 December 2018, all 23 counts were found proved and the appellant was convicted. The appellant then brought conviction appeals to the District Court across all counts.
The central factual wrinkle was timing. For the majority of counts, the agreed facts showed that the relevant "no stopping" signs were not yet erected at the moment the vehicles came to be positioned there. The signs were placed after the vehicles had already stopped. This gave rise to a question of statutory construction: does the offence require the sign to be in place at the moment a vehicle stops, or does it extend to a vehicle that remains stationary after a sign is erected nearby?
Legal Issues
- Whether a conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 requires the appellant to demonstrate error by the Magistrate, or whether the District Court simply forms its own view on the evidence.
- Whether rule 167 of the Road Rules 2014, which prohibits stopping on a length of road "to which a no stopping sign applies," was satisfied when a vehicle was already stationary before the sign was erected.
- Whether the word "and" in the extended definition of "stop" (which includes "stop and allow the driver's vehicle to stay") should be read conjunctively or disjunctively, and what consequence that has for the elements of the offence.
- Whether, as a penal statute, any ambiguity in rule 167 should be resolved in favour of the accused.
Decision
On the procedural question, Hoy SC DCJ noted the competing views expressed in AG v DPP (NSW) [2015] NSWCA 218. Following the approach endorsed there, the District Court formed its own judgment on the facts from the certified transcript and exhibits, while giving appropriate weight to the Magistrate's advantage in assessing credibility. Because no witnesses gave oral evidence and the matter was decided on agreed facts and an unchallenged affidavit, the Magistrate held no material credibility advantage over the District Court in this instance.
On the main substantive question, the Court examined the definition of "stop" in the Road Rules, which extends to "stop and allow the driver's vehicle to stay." The Council argued that this extended definition should be read disjunctively, meaning the offence was complete when a vehicle was simply allowed to remain in a location after a sign was erected there. The appellant contended the word "and" must be given its ordinary conjunctive meaning, requiring both acts to occur while the sign was in place.
Hoy SC DCJ accepted the conjunctive reading. The legislature had deliberately chosen the word "and," and there was no sufficient foundation to treat it as interchangeable with "or." Where a penal statute is ambiguous, the rule of construction is to read it down in favour of the accused. The Court found there was a lack of precision in the drafting and an intrinsic unfairness in allowing what was, in practical terms, retrospective operation of signage to give rise to criminal liability.
Applying that construction, the agreed facts did not establish that the vehicles had stopped at a time when the relevant signs were erected. The first element of the offence was therefore not made out for 22 of the 23 counts. Count 9, which concerned a vehicle stopped in the unnamed lane, was treated differently on the facts and that conviction was upheld.
Orders Made
- Appeals allowed in respect of Counts 1 to 8 and 10 to 23; the findings, convictions, and penalties imposed by the Magistrate on those counts are quashed.
- Appeal dismissed in respect of Count 9; the finding, conviction, and penalty on that count are confirmed.
- Costs of $600.00 payable to the respondent in respect of the earlier adjournment (agreed between the parties).
Key Takeaways
- A conviction appeal to the District Court under s 18 of the Crimes (Appeal and Review) Act 2001 proceeds by way of rehearing: the District Court forms its own view on the facts, while still giving weight to the Magistrate's assessment of credibility where witnesses gave oral evidence.
- Under rule 167 of the Road Rules 2014, the offence of disobeying a "no stopping" sign requires the sign to be in place at the time the vehicle stops. A vehicle that is already stationary before a sign is erected does not automatically become the subject of the offence merely because it remains there afterwards.
- The word "and" in a statutory definition carries its ordinary conjunctive meaning unless there is strong reason to interpret it otherwise. Treating "and" as equivalent to "or" requires a clear legislative basis that was absent here.
- Where a penal statute is ambiguous, the principle of strict construction applies: the ambiguity is resolved in favour of the accused, even where this may create practical gaps in enforcement.
- The District Court acknowledged that the conjunctive reading could mean a vehicle parked before a sign is installed faces no penalty, but held that this consequence did not justify reading the Rule more broadly than its language permitted.
Legislation and Cases Referenced
Legislation
- Road Rules 2014 (NSW), rule 167
- Road Transport Act 2013 (NSW), ss 8, 10, 183, 184, 185
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
Cases
- AG v DPP (NSW) [2015] NSWCA 218
- Beckworth v R (1976) 135 CLR 569
- Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39
- Collector of Customs v Pozzolanic Enterprises P/Ltd [1993] FCA 322
- Gianoutsos v Glykis (2006) 65 NSWLR 539