Allied Interstate (Q) Pty Ltd v Barnes

Allied Interstate (Q) Pty Ltd v Barnes - [1968] HCA 76 - HCA 1968 case summary — Zoe

[6]

The magistrate properly had in evidence before him the goods and vehicle checking slip completed and signed by an authorized officer. However, he did not use it as material available to him in deciding whether the carriage on which the appellant was engaged at the time of the interception of the vehicle on the Lockyer-Darling Downs Highway was an inter-State carriage. In my opinion, in this he was in error. The document being in evidence could be used as evidence of the nature of the material being carried by the defendant's vehicle and as to the destination to which the driver was taking it. But its weight in relation to these matters was a matter for close consideration. The possible sources of the information it contains would need to be considered in this connexion. However, I cannot subscribe to the view that, of necessity, the information set out in the checking slip as to the goods on the vehicle and their destination was wholly derived from the driver. The officer said at one stage he had no independent recollection of the matters recorded on the checking slip: but later said that he had observed the nature of the load. He claimed to have been told the destination of the load by the driver. Further, the officer had a right to interrogate the driver of the vehicle who was liable to criminal penalties for false answers: see ss. 70 (1) (f); 70 (3) and 72 (1) (d) of the Act. The fact that a statement by the driver of the vehicle that the destination of his load was Sydney might be regarded as self-serving would not make the information in the checking slip, otherwise properly in evidence, irrelevant in the resolution of the nature of the carriage, although the tender of a self-serving statement not otherwise in evidence, and having no other basis of admissibility, would be rejected. No doubt the weight of self-serving statements which are for some other reason in evidence may not always be great; yet where, as here, the statement is made under liability to immediate check and under penalty for falsity, it is, in my opinion, impossible not to give it any weight. Indeed, having regard to the whole purpose of the maintenance of the checking station and the officer's duty in relation to vehicles passing through it and to their loading, the weight of the evidence provided by the slip, in my opinion, was considerable.

[11]

I decide therefore the loading is proved but only as to the existence of this loading and not that it was gyprock. The driver or no other person gave evidence as to what the load was. The witness was cross-examined to elicit that, as appeared on the form, the driver said in answer to two questions in the form that the vehicle was travelling from Brisbane to Sydney and would cross the border at Wallangarra, "a.m.", that day which was 19th May 1965. The document was tendered on behalf of the defendant and admitted by the magistrate. It has been stated that the defendant called no one as a witness, not even the driver of the vehicle. The magistrate said in regard to this document that the driver's answers, the part of the document on which the defence relied, were hearsay evidence and the defendant's case was not advanced by putting in the document. All the learned judges of the Supreme Court were of the opinion that the answers of the driver, reported in the document, were self-serving statements, and that the magistrate could decide their weight as evidence. With respect I agree with this opinion. The second and third documents were produced by the complainant and tendered by the defence. The magistrate admitted each of them. They were returns prepared by the defendant in compliance with legislation enacted by the States of Queensland and New South Wales providing for contribution to the maintenance of roads by carriers whose vehicles use the roads for carriage of goods. One return includes a statement of journeys attributed to the vehicle in question on roads in Queensland during May 1965: the other contains a statement of this kind in respect of journeys on the roads of New South Wales. The Queensland return includes a journey starting on 19th May 1965 at 5 a.m. from Brisbane via Gailes finishing at Jennings on the same day at 9.30 p.m. Jennings is in New South Wales, two miles from Wallangarra which is in Queensland next to the border. The statement contains a column headed "Road miles travelled in Queensland". The number of miles appearing in that column stated to have been travelled by the vehicle in question is one hundred and fifty-four miles. According to this return the time taken by the vehicle in question to travel this distance was sixteen hours and thirty minutes. The inference from these particulars of the journey on 19th May is that the vehicle in question - a prime mover and trailer - travelled at the average speed about nine miles per hour. According to the statement of journeys in the New South Wales return the vehicle left Jennings at 9.30 p.m. on 19th May 1965 and travelled via Singleton to Sydney and arrived in Sydney at 10.30 p.m. on 20th May 1965. The road miles travelled on the journey from Jennings to Sydney is stated to have been four hundred and eighty-one. It appears that the time taken to travel this number of miles was thirteen hours. The inference is that between Jennings and Sydney the vehicle in question travelled at an average speed of thirty-seven miles per hour. What the magistrate said in his summing-up about these returns was as follows: I treat (them) as complete proof of the use by the defendant company at the time claimed by the complainant of the vehicle in question. The defendant made no admission in court in regard to the use of the vehicle in question at Gailes on 19th May at the time it was intercepted on the highway. The magistrate continued: They (the returns) are of necessity lodged as exhibits by the defendant. They were lodged without objection by the complainant who nevertheless does not admit the statement contained in them.

[21]

The evidence does not show that the vehicle travelled from Gailes to Singleton without stopping to deliver any of the goods which were being carried on the vehicle at Gailes. Nor does the evidence show that the loading of the vehicle when seen near Singleton consisted of the goods which it was carrying when at Gailes. What is not proved in respect of these matters cannot be presumed. The onus rested on the defendant to adduce proof that the journey from Gailes to Singleton was continuous and the vehicle carried the same load of goods all the way. In the circumstances of the case it is inherently probable that after the vehicle left Gailes at 5 a.m. on 19th May "in the direction of Ipswich" it travelled to a town or place on the Darling Downs or in Western Queensland, or both these districts, and delivered goods. Apparently the vehicle travelled all day on roads in Queensland, as according to the defendant's admission in Ex. 6 it did not finish its journey in Queensland until 9.30 p.m. If what happened was that the load which the vehicle had at Gailes remained intact until after the vehicle crossed the border, surely the defendant could have called a witness to prove the fact. The fact that the defendant did not do so must weigh against it: Blatch v. Archer [1] cited in Morgan v. Babcock & Wilcox Ltd. [2] . The magistrate, in my opinion, ought to have decided that the defendant failed to prove on the balance of probabilities that the carriage of the goods, on the vehicle at Gailes on 19th May, was exclusively a transaction of inter-State transportation. Even if it were partly so there was, on that hypothesis, a concurrent transaction of intra-State transportation, and the defendant was, as regards that transaction, guilty of an offence under s. 49 of The State Transport Act: Pioneer Express Pty. Ltd. v. Hotchkiss [3] ; and Harris v. Wagner [1] . 1. (1774) 1 Cowp. 63, at p. 65 [98 E.R. 969]. 2. (1929) 43 C.L.R. 163, at p. 178. 3. (1958) 101 C.L.R. 536. 4. (1959) 103 C.L.R. 452, at pp. 464, 465.

[49]

The submission made to the learned magistrate on behalf of the appellant was that such evidence as there was in the case showed that on 19th May 1965 the vehicle was being used for the purpose of the carriage of goods inter-State, namely from Queensland to New South Wales, and that s. 49 of The State Transport Act, when read with s. 2, had therefore no application. His Worship upheld the submission and dismissed the complaint. In giving his reasons he said that he regarded the entries in the returns as containing admissions by the appellant that on the relevant date the vehicle was being used by it but, although those admissions were that it was being used on an inter-State journey from Brisbane to Sydney, he said that he placed no reliance upon so much of the documents as stated that to be the fact. He said also that he placed no reliance on the statement on the goods vehicle checking slip that the vehicle was travelling from Brisbane to Sydney with a load of gyprock. As I read his reasons, his Worship was of opinion that, as matter of law, he could only attach probative value to so much of the contents of that document as stated what Arnold had himself observed and not to matters which he had been or might have been told by the driver. Accordingly he disregarded the statement on the checking slip that the vehicle was travelling from Brisbane to Sydney and, while finding that the vehicle was loaded, he was not prepared to find that the load consisted of gyprock since he thought it possible that Arnold might have gained that information by questioning the driver and not from his own observations. His Worship then referred to the oral admissions that the vehicle had been seen near Singleton in New South Wales on 20th May 1965 and that it was then loaded and later on that day had been seen on the outskirts of Sydney, although at that stage it was not carrying a load. From these admissions, coupled with the fact that on 19th May the vehicle had been seen at Gailes carrying a load and travelling in the direction of Ipswich whence a road led to Jennings, his Worship drew the inference that the journey of the vehicle in New South Wales was a continuation of the same journey as that on which it was travelling when seen at Gailes and that the load which it was carrying when seen at Gailes was the same load as that which it was seen to be carrying near Singleton on the following day. It was possible, he said, that the load being carried in New South Wales was a different one to that which the vehicle was carrying at Gailes but this was a matter of speculation and there was nothing to indicate that a change of load had occurred before the vehicle crossed the border.

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Before

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Judgment (51 paragraphs)

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