Director of Public Prosecutions v Mark Montaz Abouali [2011] NSWSC 110 (4 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Director of Public Prosecutions v Mark Montaz Abouali
Medium Neutral Citation:	[2011] NSWSC 110
Hearing Date(s):	14 February 2011
Decision Date:	04 March 2011
Jurisdiction:
Before:	Schmidt J
Decision:	1. The appeal is upheld. 2. The order made by Hawdon LCM on 5 August 2010 dismissing the proceedings is set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs, as agreed or assessed.
Catchwords:	APPEAL AND NEW TRIAL - appeal against Local Court decision - appeal brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 - Road Rules - infringement of r 56(1) of the Road Rules 2008 - failure to stop at a red traffic light - whether Magistrate erred in law in determining that an essential element of the offence was missing- whether failure to give adequate reasons - construction of r 56 of the Road Rules and interaction with r 59 - appeal upheld - costs
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Road Rules 2008
Cases Cited:	Byrne v Hulbert [2009] ACTSC 124 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 Jordan v Police [2006] SASC 205 Le Poidevin v Police (SA) [2005] SASC 314 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Workers Compensation (Dust Diseases) Board Of NSW v Smith, Munro and Seymour [2010] NSWCA 19
Texts Cited:
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) (Plaintiff) Mark Montaz Abouali (Defendant)
Representation
- Counsel:	Counsel: Mr J Burke, Plaintiff
- Solicitors:	Solicitors: SC Kavanagh, Solicitor for the Public Prosecutions Mr D Miralis, solicitor Nyman Gibson Stewart Solicitors
File number(s):	2010/366669
Publication Restriction:

Judgment

1. By summons filed in November 2010 the plaintiff appealed against an order made on 5 August 2010 by Hawdon LCM, dismissing proceedings brought against the defendant for infringement of r 56(1)(a) of the Road Rules 2008. The appeal was brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001, which allows an appeal to this Court on a question of law alone from her Honour's order.
   
2. The grounds of appeal were:
   

"2A. The Magistrate erred in law in determining that an essential element of an offence pursuant to Rule 56(1)(a) of the Road rules 2008 was not able to be established on the basis of the evidence presented in the prosecution case.

B. The Magistrate erred in law in impliedly holding that an essential element of an offence under Rule 56(1)(a) of the Road Rules 2008 was that the vehicle has come to a stop.

C. The Magistrate erred in law in failing to give adequate reasons for her determination.

D. The Magistrate erred in law in dismissing the proceedings commenced against the Defendant pursuant to Rule 56(1)(a) of the Road Rules 2008."

The decision

3. The defendant was issued with a traffic infringement notice on the evening of 19 September 2009, for 'not stop at stop line at red light (motor vehicle)' pursuant to r 56(1)(a) of the Road Rules. At the hearing before the Local Court at issue between the parties was whether or not the traffic light was red, when the defendant was observed to drive through an intersection at the corner of Wentworth Avenue and Hunt Street, Surry Hills. The evidence given by two police officers was that they were in a police vehicle stopped at the lights, and observed that the traffic light was red, not orange, when the defendant drove through the intersection without stopping.
   
4. At the close of the prosecution case a no prima facie case submission was put, it being argued that the defendant had been issued with an infringement notice for the wrong offence, an essential element of the offence charged being that the driver 'actually stops'. Her Honour accepted the submission, concluding that 'this matter does not fit clearly under road r56(1)'. Her Honour's reasons were given shortly in transcript, in exchange with the parties' legal representatives. It is convenient to set out those relatively short exchanges:
   

"SHENKS: Your Honour, at this stage I have an application to make. I would submit, at this stage, that here is no prima facie case for these reasons: The accused is charged with road r56(1)(a) that a driver approaching or at a traffic light showing a red traffic light must stop. Now one of the implicit or essential elements of this offence is that a driver actually stops, so if there is a stop line at or near the traffic lights or as near as practicable to but not before reaching the stop line, so the offence provisions discloses a situation where a driver actually stops but it is an offence if a driver either stops on the actual stop line or after the stop line. There is a separate offence provision under r 59(1), and I can hand up a copy of that, where a driver proceeds through a red traffic light, through an intersection, which in my respectful submission is a separate offence in itself.

The evidence of both officers had been that this driver travelled directly through the intersection itself and not that he, for example, failed to stop at the relevant place but did stop, so my submission is that an essential element of 56(1)(a) is that a driver must stop but does not stop at the right place and it is 59(1) that discloses the correct offence of proceeding through a red light and proceeding through the entire intersection. The way I interpret the statute is by looking at subs (a), (b) and (c), all of which disclose an offence where a driver can be charged if they haven't stopped either before or on a relevant place for example at the set of traffic lights at a stop here sign or at the stop line. It does not disclose an offence where a driver has travelled directly through a set of traffic lights and directly through an intersection.

They are my submissions, that actus reus for both offences is essentially different and the actus reus that has been - that evidence has been given about is one of proceeding straight through the intersection which discloses an offence under r 59 and not under r 56(1) where the driver must stop but they do not stop at the relevant place as shown by - I don't know if your Honour has a copy of the diagram under or that is attached to the rule?

HER HONOUR: Yes, I think I do. That?

SHENKS: Yes, so it shows where the driver is to stop but they are not permitted to stop beyond that point hence the heading, "Stopping for a red light or arrow."

HER HONOUR: And you say it should have been under - what about - okay, what do you have to say about that?

PROSECUTOR: Your Honour, s 59 may be the more appropriate offence however, it is my respectful submission, that the proofs have still been made out for s 56 in that a driver approaching or at traffic lights showing a red traffic light must stop; subs (a) if there is a stop line at or near the traffic lights as near as practicable to but before reaching the stop line; and, it is my respectful submission, the evidence before the court is that he has not stopped, your Honour, and then, "and must not proceed past the stop line, stop here on a red signal sign or nearest or any traffic lights," and again, your Honour, the evidence before the Court is that he has proceeded through past the stop line. So my respectful submission that each of the proofs of s 56 can be made out with the evidence that is before the Court. Those are my submissions, your Honour.

HER HONOUR: Yes.

SHENKS: Just to add to that, your Honour, to respond to my friend. It is my submission that it is only one offence provision that can make out an offence and the factual scenario of this offence is clearly that he has proceeded right through the intersection against a red traffic light, not that he has not stopped before the line - the relevant stop line.

HER HONOUR: Yes. These road rules - new road rules that were enacted in 2008 seem to be extremely voluminous and perhaps complex and they are setting out specific offences for each and every act. There is a separate section. It does not appear to be covered by s 57, it is not s 57, s 56 that is so specific. Unless there is some other law or case law you can provide me, with sergeant, that says, bearing in mind I have heard all he evidence and the evidence is clear that he went right though the intersection, it would appear that he should have been charged under the other road rule. Have you got anything that can assist on that?

PROSECUTOR: No, your Honour.

HER HONOUR: I mean it is partly the way the legislation is deliberately drafted because they aim to cover everything but it then no doubt makes the person deciding which section to give the ticket under life very difficult. Look the evidence is clear from both Constable Quirk and Constable Carrington that they were stopped in Wentworth Avenue and their light went green. Constable Quirk looked to his left and noticed that the light was red in Hunt Street and the he sees the accused's vehicle proceeding through the intersection and s 56 says:

"The driver approaching or at traffic lights showing a red traffic must stop;

(a) if there is a stop line at or near or as near as practical to but before reaching the stop line; or,

(b) if there is a stop here on red signal at or near the traffic lights but if no stop line as near as practicable to but before reaching the sign; or,

(b) if there is no stop line or stop here on red signal at or near the traffic lights as near as practicable to but before reaching, the nearest or only traffic lights and must not proceed past the stop line until the traffic lights show a green or flashing yellow traffic light or no traffic light."

If s 59 or r 59, I'm sorry I should say, did not exist which says, "If traffic lights at an intersection or marked foot crossing are showing a red traffic light, a driver must not enter the intersection or market(sic) foot crossing". The penalty units are identical in both offences under both rules.

PROSECUTOR: Your Honour, I have just been made aware of a case that may assist.

HER HONOUR: Yes.

PROSECUTOR: Just where there are competing sections, your Honour, when the prosecution choose to go with one when there is a similar type of offence. Chung v R - perhaps if the verdict can stand for five we can get a copy of that?

HER HONOUR: All right, thank you. I'll let it stand.

SHENKS: I understand that case is a situation where the prosecution can prefer another charge over an accused person but this is a different situation. This is a situation where there are two separate rules for this offence and it is my submission that your Honour has already made a determination and that the prosecution are too late in --

HER HONOUR: I haven't actually. I am going through the evidence and I am, sort of - I have not actually made the determination at this point. I would be assisted by having a look at Chung and, in any event, it would be a prima facie and then you would still have your opportunity to go into evidence, so I will just adjourn briefly.

SHORT ADJOURNMENT

PROSECUTOR: Your Honour, I have a copy of that case. I'll hand up a summary.

HER HONOUR: Thanks, and it deals with road rules does it?

PROSECUTOR: No, your Honour, it deals specifically with --

SHENKS: Conspiracy to defraud.

PROSECUTOR: Conspiracy to defraud.

HER HONOUR: Right, okay. I did actually mean I thought there would be something specific on the road rules. I find that quite different, a charge of conspiracy to cheat and defraud to be quite different to a specific rule under the road rules, and I go back then to that I was saying before; the legislature has in its wisdom decided to outline each and every possible offence that can be determined. It has given it a separate road rule and regrettably this matter does not fit clearly under road r 56(1) therefore one of the essential elements is missing.

I WILL DISMISS IT ON THE PRIMA FACIE LEVEL AND THIS TIME I HAVE FINISHED.

ADJOURNED"

failure to give adequate REASONS

5. On appeal, two grounds were pressed. It is convenient to commence with the complaint advanced as to her Honour's reasons. The giving of adequate reasons for a decision has been the subject of repeated discussion in the authorities. In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, the Court of Appeal explained the importance of reasons, in the context of a judicial decision maker by reference to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 per Kirby P, 268-269 per Mahoney JA and 278-279 per McHugh JA. The matter was recently discussed again by Basten JA in Workers Compensation (Dust Diseases) Board Of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [136] - [138]; where it was observed:
   

"136 There is an abundance of authority in support of the proposition that a failure of a court to give adequate reasons for its findings constitutes an error of law: see, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. However, whether such a failure involves a decision of the court below in point of law is less clear. There may be circumstances in which it does, but those may be restricted to the case where the court or tribunal has expressly or implicitly decided that certain matters should not be dealt with in the reasons: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 383-4, referred to in Pearce at [119].

137 Further, there is something incongruous in the proposition that to reason illogically, even perversely, does not constitute error of law, but to fail to provide adequate reasons does. Decisions in point of law refer to the substance of the decision-making process and not merely its presentation.

138 The legal obligation on the part of a judge to give reasons for his or her decision derives from the nature of judicial power and the proper means of its exercise: Soulemezis at 278-279 (McHugh JA). Its role in modern jurisprudence has been to provide a mechanism of control where appeals are limited to questions or points of law or on grounds available for supervision by way of judicial review in the nature of prerogative relief. In relation to statutory appeals, limited attention has been given to the statutory context in which the matter has come before the Court. In relation to the supervisory jurisdiction, it is necessary to identify where the failure to comply with a legal obligation to give reasons fits within a scheme which does not permit review for illogicality in the reasoning process. Thus, a missed step in an argument, or the illogical drawing of an inference would not, on the latter approach, demonstrate reviewable error."

6. The difficulties to which Basten JA alluded, do not arise here, for reasons which will become apparent. In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; [2006] NSWSC 343; (2006) 67 NSWLR 402 at [15], Johnson J observed in relation to an approach such as that adopted here to the giving of reasons:
   

"15 Before turning to his Honour's reasons for dismissing the subject charges, it is appropriate to bear in mind that his Honour's reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Neighbourhood Association DP295386 v Forgeron (2005) NSWCA 150 at paragraph 15; Colosimo v Director of Public Prosecutions [2005] NSWSC 854; (2005) 155 A Crim R 573 at 583 (paragraph 36). That said, there are some features of this case which call for further comment.

16 His Honour had before him some 43 charges which fell for determination. It appears that, following the evidence, his Honour moved to determine the charges in groups. His Honour did not deliver a discrete judgment containing reasons for dismissing the five charges which are the subject of the present appeal. There is no ground of appeal alleging error of law on the part of the learned Magistrate in failing to give reasons as required by law for dismissing the charges. Nevertheless, the manner in which his Honour determined these charges and explained his reasoning for that course, has given rise to an additional debate in this Court as to the precise reasons for dismissing the charges.

17 In Adecco v Gemvale Constructions Pty Limited [2004] NSWCA 449, Santow JA (Mason P and Sheller JA agreeing) said at paragraph 41:

"It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings."

18 One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court.

19 It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson [2005] NSWCCA 340; (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986 ."

7. The difficulty with the reasons given in this case is apparent. What arose for determination was the proper construction of certain Road Rules. Why the view was taken, that 'this matter does not fit clearly under road rule 56(1)' was not explained. Nor was it explained why it was concluded that one of the essential elements of the offence was missing. What element her Honour had in contemplation in making that observation was not identified, nor was the conclusion reached explained. Had that occurred, the error in her Honour's reasoning may well have been appreciated.
   
8. What fell to be determined was the proper construction of r 56 of the Road Rules and its interaction, if any, with r 59. Insufficient attention was given to those matters in resolving the defendant's no case submission. Nor were reasons given for the conclusions which were reached. The appeal in this respect must be upheld.
   

The Road Rules

9. Rule 56 appears in Division 1 of the Road Rules, Obeying traffic lights and traffic arrows. Various relevant terms are defined in the Dictionary to the Rules. It is necessary to consider r 56 in its statutory context. Rules 56 to 59 provide:
   

"56 Stopping for a red traffic light or arrow

(1) A driver approaching or at traffic lights showing a red traffic light must stop:

(a) if there is a stop line at or near the traffic lights-as near as practicable to, but before reaching, the stop line, or

(b) if there is a stop here on red signal sign at or near the traffic lights, but no stop line-as near as practicable to, but before reaching, the sign, or

(c) if there is no stop line or stop here on red signal sign at or near the traffic lights-as near as practicable to, but before reaching, the nearest or only traffic lights,

and must not proceed past the stop line, stop here on red signal sign or nearest or only traffic lights (as the case may be) until the traffic lights show a green or flashing yellow traffic light or no traffic light.

Maximum penalty: 20 penalty units.

Note . Red traffic light and stop line are defined in the Dictionary.

57 Stopping for a yellow traffic light or arrow

(1) A driver approaching or at traffic lights showing a yellow traffic light must stop:

(a) if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line-as near as practicable to, but before reaching, the stop line, or

(b) if there is no stop line at or near the traffic lights and the driver can stop safely before reaching the traffic lights-as near as practicable to, but before reaching, the nearest or only traffic lights, or

(c) if the traffic lights are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection-before entering the intersection,

and must not proceed past the stop line or nearest or only traffic lights, or into the intersection (as the case may be), until the traffic lights show a green or flashing yellow traffic light or no traffic light.

Maximum penalty: 20 penalty units.

Note . Enter, intersection, stop line and yellow traffic light are defined in the Dictionary.

(2) A driver approaching or at traffic arrows showing a yellow traffic arrow who is turning in the direction indicated by the arrow must stop:

(a) if there is a stop line at or near the traffic arrows and the driver can stop safely before reaching the stop line-as near as practicable to, but before reaching, the stop line, or

(b) if there is no stop line at or near the traffic arrows and the driver can stop safely before reaching the traffic arrows-as near as practicable to, but before reaching, the nearest or only traffic arrows, or

(c) if the traffic arrows are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection-before entering the intersection,

and must not proceed past the stop line or nearest or only traffic arrows, or into the intersection (as the case may be), until the traffic arrows show a green or flashing yellow traffic arrow or no traffic arrow.

Maximum penalty: 20 penalty units.

Note . Enter, intersection, stop line and yellow traffic arrow are defined in the Dictionary.

(3) If the traffic lights or traffic arrows (as the case may be) are at an intersection and the driver is not able to stop safely under subrule (1) or (2) (as the case may be) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely.

Maximum penalty: 20 penalty units.

Note 1 . Intersection does not include a road related area-see the definition in the Dictionary.

Note 2 . This rule applies to a driver turning left using a slip lane only if the yellow traffic light or yellow traffic arrow (as the case may be) applies to the slip lane-see Part 20, Divisions 2 and 3, especially rules 330 and 345.

Note 3 . Rule 58 deals with when a driver does not have to stop at a yellow traffic light.

(4) If there is a bicycle storage area before any traffic lights referred to in subrule (1) or (2), a reference to the stop line in subrule (1) (a) or (2) (a):

(a) in the case of a driver of a motor vehicle, is a reference to the first stop line that the driver comes, or came, to in approaching the lights, and

(b) in the case of a rider of a bicycle, is a reference to the stop line that is nearest to the intersection.

Note . Bicycle storage area is defined in the Dictionary.

58 Exceptions to stopping for a red or yellow traffic light

(1) A driver approaching or at traffic lights showing a red or yellow traffic light does not have to stop if a green traffic arrow is also showing and the driver is turning in the direction indicated by the arrow.

Note . Green traffic arrow, red traffic light and yellow traffic light are defined in the Dictionary.

(2) A driver turning at an intersection with traffic lights who approaches or is at a red traffic light on the road that the driver is entering does not have to stop for that traffic light if there is no stop line or stop here on red signal sign at or near the traffic light.

Note . Intersection and stop line are defined in the Dictionary.

59 Proceeding through a red traffic light

(1) If traffic lights at an intersection or marked foot crossing are showing a red traffic light, a driver must not enter the intersection or marked foot crossing.

Maximum penalty: 20 penalty units.

Note 1 . Enter, intersection, marked foot crossing and red traffic light are defined in the Dictionary.

Note 2 . Rules 56 and 57 deal with stopping for a red or yellow traffic light, and proceeding while the light remains red or yellow. Rule 60 deals with proceeding through a red traffic arrow.

(2) However, if the traffic lights are at an intersection with a left turn on red after stopping sign and the driver is turning left at the intersection, the driver may turn left after stopping.

Note. Rule 62 deals with the give way rules applying to a driver turning left at an intersection after stopping at a left turn on red after stopping sign .

(3) Also, subrule (1) does not apply to a driver if rule 58 (1) applies to the driver.

Note . Rule 58 deals with when a driver does not have to stop for a red traffic light."

10. 'Intersection', 'red traffic light' and 'stop line' are defined in the Dictionary as:
    

" intersection means the area where 2 or more roads (except any road related area) meet, and includes:

(a) any area of the roads where vehicles travelling on different roads might collide, and

(b) the place where any slip lane between the roads meets the road into which traffic on the slip lane may turn,

but does not include any road related area.

red traffic light means an illuminated red disc.

stop line means a continuous line that:

(a) is marked across all or part of a road, and

(b) is not part of a marked foot crossing, a keep clear marking or a bicycle storage area for hook turns.

Note 1 . Keep clear marking is defined in rule 96, and marked foot crossing is defined in this Dictionary.

Note 2 . There is an example of a stop line in rule 67."

The proper construction of the Road Rulles

11. Her Honour accepted the thrust of the defendant's case, namely, that unless a vehicle stops at a traffic light, a breach of r 56 of the Road Rules cannot occur. In the event that a vehicle drives through the intersection without stopping, when the light is red, it is only a breach of r 59 which could result. That construction of the Road Rules is plainly wrong.
    
12. Offences under the Road Rules are strict liability offences, except where the Rules expressly provide otherwise (see r 10-1(2)). Rule 56 imposes an obligation to stop at a red light. A failure to stop cannot establish the absence of an essential ingredient of the offence. That conclusion is patently illogical on the face of r 56(1) which imposes two obligations on 'a driver approaching or at traffic lights showing a red light'. The first is that the driver 'must stop'. Where the driver 'must stop' is specified in paragraphs (a) to (c). The second obligation is that the driver 'must not proceed past' the specified points, 'until the traffic lights show a green or flashing yellow traffic light or no traffic light'.
    
13. In this case, there being a stop line at the traffic light in question, that was where a driver was obliged to stop when the traffic light was red when approached (r 56(1)(a)). Failure to stop and not to proceed while the light showed red, as specified, results in a breach of the Rule, for which a maximum penalty of 20 penalty units is imposed, unless the driver comes within the exceptions provided in r 58, or establishes a defence. The defences are those provided in r 10-1(3), namely that the offence was the result of an accident, or could not have been avoided by reasonable efforts.
    
14. The notion that a driver who fails to stop at all when a traffic light shows red and instead, drives through the traffic lights while they continue to show a red light, commits no offence under r 56, is entirely illogical and contrary to the express statutory requirements imposed on drivers by the Rule. The only exceptions to those obligations are those specified by r 58.
    
15. In this case, what had to be established against the defendant in relation to the alleged breach of r 56 was:
    

(a) it was he who was the driver of the motor vehicle;

(b) that when he approached or was at the traffic light, it was showing a red light;

(c) that he failed to stop the vehicle, as near as practicable to, but before, reaching the stop line and

(d) that he proceeded past the stop line before the traffic lights showed a green or flashing yellow light or no traffic light.

16. In the factual circumstances alleged, where the defendant is claimed to have driven through a red light at the intersection, without stopping at all, it is apparent, as the defendant himself contended below, that a breach of r 59 also occurred. The essential elements of that offence would be:
    

(a) while the traffic lights at the intersection were showing a red light,

(b) the defendant was the driver of the motor vehicle; and

(c) he entered the intersection.

17. Contrary to the conclusion which her Honour reached, I am satisfied that unless coming within one of the exceptions specified in r 58, this statutory scheme does not admit of the possibility that a driver who fails to stop at all at a red light, as r 56 requires, commits no breach of the obligation to stop. It is only in r 58 that the circumstances in which a driver who is approaching lights showing a red or yellow traffic light does not have to stop, are prescribed. Unsurprisingly, driving through a red light without stopping at all, does not fall within one of those exceptions. Whether a defence may be available under r 10 in particular circumstances, may also arise for consideration, but does not need to be further dealt with here.
    
18. That a breach of r 59 may also have occurred in a particular case is irrelevant to the question of whether or not r 56 has been breached. Rule 59 is not concerned with whether or not a driver stops at a red light. A breach of r 59 may occur, even if a vehicle has first stopped, as r 56 requires, if the driver then moves and enters the intersection or marked crossing, while the light remains red. Conversely, r 56 is not concerned with entering an intersection. It is concerned with stopping and not proceeding past certain designated points before an intersection or marked crossing, where there are traffic lights, while the light remains red. A breach of r 56 will occur if the driver fails to stop, even if, by the time that the intersection is entered, the traffic light has turned green. In that event there will be a breach of r 56, but not a breach of r 59.
    
19. It is quite consistent with the statutory scheme that a driver who fails to stop at all and drives straight through a red light at an intersection or marked crossing, may breach both r 56 and r 59. Both breaches carry maximum penalties of 20 penalty units. If charged and found to have committed both breaches, in imposing penalty on the driver a court will unquestionably have to apply the principal of totality, in order to properly reflect the criminality involved in both breaches. That the one event may not result in breaches of both Rules, simply does not follow.
    
20. The Road Rules are based on the Australian Road Rules, and are designed to ensure that the Road Rules are substantially uniform with those specified elsewhere in Australia (see r 3 Objects). The conclusions which I have reached are consistent with views reached in other jurisdictions as to the proper construction of Road Rules. In Le Poidevin v Police (SA) [2005] SASC 314 it was observed by White J at [16] - [19]:

"16 The Magistrate was also correct in concluding that r 59(1) of the ARR imposes an obligation which is absolute. Proof by the prosecution of an intention on the part of the driver at the relevant time is not an element of the offence. The obligation not to enter an intersection at which a red light is showing is not made subject to any qualification such as " without reasonable cause ". Consideration of the purpose and context of r 59, and of authority, support the conclusion that the obligation is absolute. Part 6 of the ARR, of which r 59 forms part, should be regarded as establishing a scheme as to the obligations of a driver when confronted with traffic lights showing yellow or red. 3 Rule 56 of the ARR specifies the place at or before which a driver of a vehicle approaching traffic lights showing a red traffic light must stop and provides that the driver must not proceed past that point until the traffic lights indicate that it is permissible to do so. Rule 57 governs the obligations of the driver approaching traffic lights showing a yellow traffic light. It provides (relevantly):

...

17 The obligations imposed by r 57 are subject to the qualification in r 57(3), that if the driver is not able to stop safely in accordance with the obligations contained in sub- rules (1) and (2) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely. Rule 58 provides for a circumstance in which a driver does not have to stop at a red light, namely, where there is, at the same time, a green turn arrow. It is to be observed that the obligations contained in r 59 are not subject to any qualification of the kind contained in r 57(3).

18 It should be accepted that the purpose of r 59, and indeed the ARR generally, is to promote public safety. The risk of collision and consequent injury or damage as a result of vehicles entering intersections against a red light is obvious. The purpose of r 59 is to reduce, if not to eliminate, that risk. Statutes whose purpose is the safeguarding of the public by prohibiting certain acts are commonly construed as imposing obligations which are absolute. 4

19 It is not uncommon for an obligation such as that imposed by r 59 of the ARR to be construed as absolute. The decisions in August v Fingleton 5 , Franklin v Stacey 6 , SA Police v Oakes 7 , and Vandenbergh v Police 8 provide examples."

21. Layton J took the view in Jordan v Police [2006] SASC 205:
    

"52 At the hearing of the appeal counsel for the respondent raised another issue in relation to the proper interpretation of the evidence before the Magistrate. This case was argued in the Magistrates Court on the basis that the stop line marked the beginning of the intersection. Mr Jacobi submitted, however, that definition of the "intersection" for the purposes of the relevant offence was defined by the dictionary of the ARR as follows:

intersection means the area where 2 or more roads, (except any road related area), meet, and includes:

(a) any area of the road where vehicles travelling on different roads might collide ...

53 On this definition there is a small section of road between the stop line and the commencement of the intersection. This distinction was demonstrated by the contrast between the obligations imposed by r 56 and r 59 of the ARR . Rule 59, as already set out, creates an obligation not to enter an intersection when the traffic lights are red. Rule 56, on the other hand, creates an obligation to stop before a stop line. Further support for this distinction was found by the respondent in r 57 of the ARR , which provides that:

... "

22. In Byrne v Hulbert [2009] ACTSC 124, Penfold J observed:
    

20. The photographs show that the rear wheels of the vehicle were behind the stop line, but most of the vehicle, including the front wheels, had passed over that stop line.

21. I accept that the vehicle was stopped for the purposes of the Road Rules. However, having regard to the requirement in r 56(2)(a) to stop as near as practicable to, but before reaching, the stop line, I am satisfied that Mr Byrne had in each case contravened r 56(2) in failing to bring his vehicle to a stop before it reached the stop line.

22. I am inclined to the view that the offence is committed if any part of the vehicle has travelled beyond the stop line; apart from anything else, this would be more consistent with a likely aim of keeping a buffer space between vehicles approaching to stop at the intersection and pedestrians using the marked foot crossing. However, for the purposes of this appeal I do not need to decide whether a vehicle "reaches" the stop line when any part of it reaches that line or only when its front wheels reach the line, and in the absence of argument on that question I refrain from reaching any conclusion.

23. These judgments were not referred to below, but each illuminates the fundamental point of construction which her Honour overlooked, namely that r 56 and r 59 of the Road Rules concern themselves with two entirely different obligations, both of which must be observed by drivers. It is no answer to an allegation of breach of the obligation to stop, which is imposed by r 56, that a breach of r 59 may also have occurred.
    

Orders

24. For the reasons given, I am satisfied that the orders sought by the plaintiff must be made. Accordingly, I order that:
    

1. The appeal is upheld.

2. The order made by Hawdon LCM on 5 August 2010 dismissing the proceedings is set aside.

3. The matter is remitted to the Local Court to be dealt with according to law.

4. The defendant is to pay the plaintiff's costs, as agreed or assessed.

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