CITY OF PLAYFORD v MATHIE - a timely reminder of the need for accuracy in expiation notices
This recent decision of the Court of Appeal is a ‘must read’ for authorised council officers. It canvasses requirements for expiation notices, prosecution time limits and defences under the Australian Road Rules (ARR). At the centre of the appeal was a dispute concerning the adequacy of an expiation notice issued by the Council for “double parking.”
The expiation notice contained most relevant, information. It referred to the ‘double parking’ offence under rule 189 of the ARR for which a driver is liable, but did not mention section 174A(2) of the Road Traffic Act 1961 (the RTA).
After a number of interactions between Mathie and the Council following the issue of the expiation notice, Mathie elected to be prosecuted. The Council charged Mathie under section 174A(2) of the RTA and rule 189(1) of the ARR. This was on the basis that Mathie was the owner of a vehicle that was double parked.
Mathie was convicted in the Magistrates Court of an offence of ‘double parking’ contrary to section 174A(2) of the RTA and ARR 189(1).
Mathie appealed to the Supreme Court on the basis that the expiation notice did not contain an allegation that Mathie had committed an offence under section 174A(2) of the RTA as the owner of the vehicle, making the Council out of time to prosecute this offence. The expiation notice had only alleged that she was guilty of an offence under ARR 189(1) as the driver of the vehicle.
The Supreme Court found in Mathie’s favour. It held that the expiation notice was not an expiation for the charged offence, meaning that, given the timeframes, the Council was outside the statutory limitation period to prosecute Mathie. The conviction was overturned.
The Council appealed.
The Court of Appeal examined the expiation notice as issued by the Council and determined:
- whilst the expiation notice described the offence with reference to the driver offence under rule 189 of the ARR and did not reference s174A of the RTA, it had provided enough information to indicate the offence with which Mathie was charged as the owner of the vehicle; and
- consequently, the Council was within time to prosecute the offence.
However, the Court cautioned issuing authorities by expressing a view that the notice “lacked clarity,” and ought to have included reference to the applicable provisions of the RTA.
The Court also rejected the Council’s argument that an expiation notice for one offence automatically grants a longer prosecution timeframe for any other related offence arising from the same incident, even if that offence was not expiated. It clarified that the longer time limit permitted under section 52 of the Criminal Procedure Act 1921 only applies to the specific offence(s) described in the expiation notice.
In her cross-appeal, Mathie argued that even if her vehicle was found to be double parked (breaching ARR 189), she had a defence under ARR 165. Mathie contended that ARR 165 applied because her vehicle had stopped (in a queue) to comply with another road rule (ARR 132 – keeping to the left).
The Court of Appeal made two key findings:
- Mathie has the onus of proving, on the balance of probabilities, that her actions satisfied ARR 165; and
- since, in the Magistrates Court where Mathie was self-represented, the operation of ARR 165 and ARR 132 were not explained to Mathie, this resulted in a “miscarriage of justice”.
The Court of Appeal ordered that the prosecution be re-tried in the Magistrates Court.
Why is this case important?
This decision is a critical reminder of the importance of accurately and precisely particularising an offence in an expiation notice. The manner in which an offence is described will directly impact prosecution timeframes.
When an expiation notice is issued to a person in their capacity as the owner of a vehicle, this should be clear, together with the authority to pursue the owner.
Ensuring expiation notices accurately describe an offence is the best way to preserve a council’s rights to prosecute that offence within time, for example, following an election to be prosecuted.
The case also assists in understanding how the defences under rule 165 of the ARR apply, noting that they might apply to absolve a person from liability for an offence arising due to stopping in a queue of vehicles.
For further questions, including regarding the defences applicable to stopping and parking offences and, in relation to expiation notices please contact Cimon Burke on 8113 7105 or cburke@kelledyjones.com.au