Jesse v Roads and Maritime Services NSW

Court of Criminal Appeal (NSW)|2019-07-24|Before: Gleeson JA, Johnson J, Price J, Section J

85 A Crim R 367 R v Rigby (1956) 100 CLR 146; [1956] HCA 38 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Thomas v The King (1937) 59 CLR 279; [1937] HCA 83 Tritton v Clarke [2018] NSWCCA 31 Category: Principal judgment Parties: Kevin Douglas Jesse (Applicant) Roads and Maritime Services NSW (Respondent) Representation: Counsel: Mr K Ginges (Applicant) Mr M Higgins (Respondent)

Solicitors: David King Solicitor (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2019/97178 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 18 February 2019 Before: Lerve DCJ File Number(s): 2017/277912

Judgment

GLEESON JA: The applicant, Mr Kevin Jesse, was convicted in February 2018 in the Local Court at Gundagai of one offence of driving a heavy vehicle not complying with loading requirements (substantial risk), contrary to s 111 of the Heavy Vehicle National Law (NSW) (National Law) and was fined $2,500. The applicant appealed against that conviction and sentence to the District Court sitting at Wagga Wagga in its criminal and special jurisdiction pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 11(1). On 21 June 2018, his Honour Judge Lerve dismissed his appeal against conviction, but allowed his appeal against sentence. On re-sentence his Honour imposed a fine of $1,000 and ordered the applicant to pay the $1,000 court costs which had been ordered in the Local Court.
At the applicant's request, Judge Lerve stated a case to this Court under the Criminal Appeal Act 1912 (NSW), s 5B. It was signed by his Honour on 18 February 2019 and filed in this Court on 28 March 2019, well after the time limited by subs (2) of s 5B.
The stated case included the following: Facts In determining the appeal against conviction and sentence of Kevin Douglas Jesse, I was satisfied of the following beyond reasonable doubt: 1 Kevin Douglas Jesse was detected on Monday, 7 August 2017 at approximately 8:52 am driving a White Isuzu tipper truck heavy vehicle bearing registration plates ZKM980 (VIC) and towing a trailer bearing registration plates W08301 (VIC) on the Hume Highway and was directed by RMS NSW officers to stop at the Coolac Heavy Vehicle checking station. 2 He was subsequently issued a court attendance notice to attend the Local Court of NSW sitting at Gundagai on 15 February 2018. 3 The matter was determined at the Local Court of New South Wales sitting at Gundagai on 15 February 2018. Mr Jesse was convicted of the offence drive heavy vehicle not comply loading requirements - substantial risk - and was fined $2,500.00. 4 The offence required the prosecution to prove: (i) the accused; (ii) was driving a heavy vehicle; (iii) on a road or road related area; (iv) with a load that did not comply with the load requirements of the legislation (Load Restraint Guide 2004). 5 The Offence was described in the Penalty Notice as: "During the compliance check the combination's [sic] it was noticed that there were a number of excavator buckets not secured and the main load, comprising of a 3580 kg excavator restrained by 1 x 80 mm webbing strap at a 90 degree angle to the load. The load friction surface was rubber track on smooth steel and the excavator was unbraked and unblocked. Using the load restraint guide, it was found to require either a 1.8 mm chain or a further 50 mm webbing strap to be used." 6 The prosecution brief contained photographs of the White Isuzu tipper truck heavy vehicle, but the statements of the Inspectors made no reference to any items other than the excavator and the buckets. 7 The White Isuzu tipper truck heavy vehicle contained an excavator with a bucket attached, excavator buckets sitting in the tipper tray, a ripper attachment sitting in an excavator bucket, a jerry can, loading ramps and conduit. 8 There was no dispute between the parties that the load was contained within the tipper truck. 9 There is no definition in the legislation or within the Load Restraint Guide 2004 of what constituted a contained load. 10 I determined that, apart from the excavator - which was not pressed as part of the charged conduct and was not found proved by the Local Court - the load was unrestrained. 11 I determined that a contained load was a tightly packed load so as to prevent horizontal movement. 12 I found that a good portion of the load was packed. I found 2 buckets, 2 ramps, the conduit, the jerry can and the ripper were not tightly packed. 13 There was no dislodgment or loss of the load and no injuries to persons or damage to infrastructure sustained. 14 I found that the load could be dislodged by moderate lateral force. 15 The load was not properly restrained. 16 The accused gave evidence in the Local Court. 17 The RMS Inspectors who investigated the load and issued the charge gave evidence in the Local Court. 18 I concluded there was an appreciable safety risk which was a substantial risk.
Two questions, both of which are said to be questions of law, were submitted for determination by this Court: 1. Do the facts as found by me enable me to conclude beyond reasonable doubt that the load could be dislodged by mild lateral force? 2. Could these facts support a finding of guilt for an offence contrary to s 111(1)(b) if the Heavy Vehicle National Law (NSW), in particular: (i) does "contained" as that word is used in the Load Restraint Guide 2004; (ii) mean "tightly packed to prevent horizontal movement"; and (iii) if the load was contained within the tipper truck, did the Heavy Vehicle National Law (NSW) require that the load also be otherwise restrained?
The reasons for judgment were not appended to the stated case.
Section 5B of the Criminal Appeal Act provides: 5B Case stated from District Court (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
The applicant, Mr Jesse, was the driver of the tipper truck heavy vehicle on the Hume Highway that was inspected by officers of the respondent, at the Colac Heavy Vehicle checking station on 7 August 2017. The respondent, Roads and Maritime Services (NSW), was the prosecutor in the Local Court.
The principal issues raised on the present application are whether the time for submission of the questions in the stated case should be extended and whether it is appropriate to answer those questions. The latter question raises the frequently encountered difficulties with the technicalities and limitations inherent in the s 5B procedure, which is not an appeal against the decision in the District Court.

(1) Extension of time

The applicant requires an extension of time, being a period of a little over nine months. As explained in Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [21], "the time period allowed under s 5B requires prompt action, not only by the applicant, but by the other party (if it is to play some role) and by the Court itself".
Here, the applicant was at fault in failing to file the draft stated case within a few days of the judgment. However, he was unrepresented in the Local Court, but was legally represented in the District Court. His solicitor provided a draft stated case to his Honour on 5 August 2018. The District Court itself was not in a position to deal with the request in a timely fashion and the applicant's solicitor was at fault in failing to promptly file the stated case after it was ultimately signed by his Honour. Nevertheless, the respondent did not oppose time being extended and an order to that effect should be made.

(2) A question of law

A case stated under s 5B must be limited to a question of law and that question must be one that arises or arose on an appeal to the District Court from the Local Court.
The distinction between a question of law and a question of fact (or a mixed question of law and fact) is explained by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138. Relevantly for present purposes and omitting supporting citations, the summary of principles by Jordan CJ included: … (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.
It is well established that the limitations of the s 5B procedure include that the Court cannot refer to any material not included in the stated case: Tritton v Clarke [2018] NSWCCA 31 at [9] citing Thomas v The King (1937) 59 CLR 279 at 286, 299, 313; R v Rigby (1956) 100 CLR 146 at 150-1; [1956] HCA 38, 153; Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58; R v Chan (1992) 28 NSWLR 421 at 431; R v Madden (1995) 85 A Crim R 367 at 370-371; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [10]-[11]; Lavorato v The Queen at [8]; Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93 at [11]. Nor can the Court draw inferences as to matters of additional fact that are not expressly stated, as distinct from making a necessary implication as to what the judge stating the case must be understood to have said: R v Rigby at 51.
Insofar as both parties invited the Court to have regard to evidence in the Local Court and the District Court and to documents not annexed to the stated case, the deficiency in the facts in the stated case cannot be cured in this Court: Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33 at [5]. Whilst an appeal to the High Court was successful, this aspect of the Court's reasoning concerning the stated case procedure was unaffected: Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8; (2019) 93 ALJR 405.

Relevant legislative provisions

An understanding of the difficulties with the formulation of the questions submitted for consideration is assisted by a reference to the relevant legislative provisions underpinning the conviction of the applicant.
At the time the applicant was charged, s 111 of the National Law relevantly provided: (1) A person must not drive on a road a heavy vehicle that does not, or whose load does not comply with the loading requirements applying to the vehicle. Maximum penalty - (a) for a minor risk breach - $3000; or (b) for a substantial risk breach - $5000; or (c) for a severe risk breach - $10000. Editorial note. See also section 737 (Increase of penalty amounts). ...
Section 110 provided that the national regulations may prescribe loading requirements, including about securing a load on a heavy vehicle and the restraint and positioning of loads on a motor vehicle.
The Heavy Vehicle (Mass, Dimension and Loading) National Regulation (Regulation) provides in reg 38 that the loading requirements applying to a heavy vehicle are those stated in Sch 7.
Section 1 of Sch 7 was in the following terms: 1 Loading (1) A load on a heavy vehicle must not be placed in a way that makes the vehicle unstable or unsafe. (2) A load on a heavy vehicle must be secured so it is unlikely to fall or be dislodged from the vehicle. (3) An appropriate method must be used to restrain the load on a heavy vehicle. Note - See the Load Restraint Guide mentioned in s 115 of the Law and the evidentiary effect under the section of evidence that a load on a heavy vehicle was not restrained in a way that met a performance standard stated in the guide.
Section 115 of the National Law provided that in a proceeding for an offence against s 111: (1) … (a) evidence that a load on a heavy vehicle was not placed, secured or restrained in a way that met a performance standard stated in the Load Restraint Guide as in force at the time of the offence is evidence the load was not placed, secured or restrained in compliance with a loading requirement applying to the vehicle; and (b) evidence that a load, or part of a load, has fallen off a heavy vehicle is evidence that the load was not properly secured; and (c) a court must presume a document purporting to be the Load Restraint Guide as in force at the time of the offence is the Load Restraint Guide as in force at the time of the offence, until the contrary is proved. (2) In this section - Load Restraint Guide means a document of that name prepared by the National Transport Commission and published in the Commonwealth Gazette, from time to time.
Consistently with par 13 of the stated case, it is common ground that there was no issue of a load, or any part of a load, falling off a heavy vehicle, such as to trigger the prima facie evidence provision referred to in s 115(1)(b). The issue for determination in the Local Court and again on appeal to the District Court was whether there was evidence that a load was not placed, secured or restrained in a way that met a performance standard stated in the Restraint Guide as referred to in s 115(1)(a) of the National Law.
The Restraint Guide is a lengthy document comprising 268 pages. In the Introduction, under the heading "Explanation of Terms" (p 7), it is stated that "[t]his guide contains some technical terms and details. A Glossary is contained in Section J …". Part 1 is titled as being for Drivers and Operators. Part 2 is entitled as being for Engineers and Designers.
Section A of Pt 1 states that loads can be restrained by two basic methods, either indirectly or directly. The direct restraint method is described as when the load is prevented from moving by containing, blocking or attaching it to the vehicle (p 22, par 3). Page 24 states in par 3.2.1 under the heading "Contained load" that "contained loads can be directly restrained without any securing devices".
Section C of Pt 1 deals with the topic of load restraint. Page 58 states that all loads must be restrained to meet the Performance Standards outlined in Section F "Performance Standards". The paragraph continues: … A Performance Standard is a way of defining what is required, but not how to do it. … During all expected operating conditions which include minor collisions, the load restraint system must ensure that: (i) the load does not dislodge from the vehicle; and (ii) unacceptable load movement does not occur. Limited load movement is acceptable under conditions where the vehicle's stability and weight distribution are not adversely affected and the load cannot become dislodged from the vehicle.
Section E deals with the topic of loads. Page 140 states in relation to contained loads: 7. CONTAINED LOADS Contained loads should be packed tightly together within the vehicle's body or sides to prevent any horizontal movement. Where loads cannot be packed tightly together, they must be restrained if their movement could cause the vehicle to become unstable or the load to dislodge. … Where a load is carried in an open body without any vertical tie-down, the base of each item of load should be well below the top of the sides or gates. This should prevent the load from becoming dislodged over bumps and vibration caused by rough road surfaces, especially on corners. … …
The "Performance Standards" are stated in Section F of Part 2 of the Restraint Guide (at p 186): 1 PERFORMANCE STANDARDS Loads must be restrained to prevent unacceptable movement during all expected conditions of operation. The load restraint system must, therefore, satisfy the following requirements: (i) The load should not become dislodged from the vehicle. (ii) Any load movement should be limited, such that in all cases where movement occurs, the vehicle's stability and weight distribution cannot be adversely affected and the load cannot become dislodged from the vehicle. Loads that are permitted to move relative to the vehicle include loads that are effectively contained within the sides or enclosure of the vehicle body such as: (a) Loads which are restrained from moving horizontally (limited vertical movement is permissible); (b) Very lightweight objects or loose bulk loads (limited horizontal and vertical movement is permissible); (c) Bulk liquids (limited liquid movement is permissible). To achieve this, the load restraint system must be capable of withstanding the forces that would result if the laden vehicle were subjected to each of the following separately: 0.8 'g' deceleration in a forward direction, 0.5 'g' deceleration in a rearward direction, 0.5 'g' acceleration in a lateral direction, And to 0.2 'g' acceleration relative to the load in a vertical direction. Note: 'g' (the acceleration due to gravity), is equal to 9.81 metres/sec/sec for the purpose of these standards. (Emphasis in original.]
Methods of load restraint for loads that are contained or secured by a vehicle are set out in the Restraint Guide, and include (at p 187, par (2)(ii)) "containing the load within the body structure". Page 199 of the Restraint Guide concerns designs for containing a load which is not (or not required to be) "tied down" and states: 4 DESIGN FOR CONTAINING OR BLOCKING When designing for containing (see Section J, page 247 for definition of Contained Load and Section E, page 140 for more information) or blocking, if there is no tie-down (ie indirect restraint) to resist the vertical 0.2 "g" nominated in the Performance Standards, the effect of friction between the deck and the load and between layers of load must be neglected in assessing restraint capacity. This is because when the vehicle hits a bump, the resulting jolt can break the friction contact between the items of load. Even a load resting on very high friction rubber load mat can "walk" to the low side of the trailer during a journey, if it is not tied down.
Page 200 of the Restraint Guide states: To satisfy the Performance Standards the side restraint system must not only prevent the load dislodging from the vehicle, it must not allow the load to shift in such a way that makes the vehicle unstable.
It is common ground that there was no issue in the Local or District Court proceedings that the load would shift such that it would make the vehicle driven by the applicant unstable.
In the Glossary in Section J of the Restraint Guide (at p 247), the defined terms include: contained load A load prevented from dislodging from the vehicle by the vehicle structure, gates, sides, racks, headboards, stanchions etc) or other parts of the load.

Question 1

The first question stated to this Court is as follows: 1. Do the facts as found by me enable me to conclude beyond reasonable doubt that the load could be dislodged by mild lateral force?
The applicant frankly conceded that the first question was a mixed question of fact and law (AWS #55). That may be accepted. The applicant acknowledged an additional difficulty with the formulation of the first question was that it invited entirely circular reasoning, incapable of resolution. That was because one of the "facts … found beyond reasonable doubt" was that the load could be dislodged by moderate lateral force (par 14 of the stated case), yet the question submitted for determination was whether a finding of guilt was properly available beyond reasonable doubt on the basis that "the load could be dislodged with mild lateral force".
Notwithstanding these deficiencies, the applicant submitted that the first question was not so deficient as to render it inappropriate for the Court to consider and determine the question submitted. I do not agree. Whilst the Court can answer "the substance of the issues sought to be raised" (Sasterawan v Morris at [37]), the applicant's submissions invited the Court to infer that there was no evidence that the load could be "dislodged" [from the vehicle] by "mild lateral force", nor evidence that could have satisfied Judge Lerve beyond reasonable doubt of such a conclusion, emphasising that there was no expert or technical evidence was presented by the prosecution (AWS # 61).
As the respondent correctly submitted, the first question asks the Court to engage in a consideration of the extent to which the evidence before Judge Lerve was probative of a factual finding in the case stated. The invitation to the Court to engage in an inquiry under s 5B, which is really in the nature of an appeal, must be rejected.
The first question should be answered: "Inappropriate to answer".

Question 2

The second question stated to this Court is as follows: 2. Could these facts support a finding of guilt for an offence contrary to s 111(1)(b) if the Heavy Vehicle National Law (NSW), in particular: (i) does "contained" as that word is used in the Load Restraint Guide 2004; (ii) mean "tightly packed to prevent horizontal movement"; and (iii) if the load was contained within the tipper truck, did the Heavy Vehicle National Law (NSW) require that the load also be otherwise restrained?
Again, there are difficulties with the formulation of the second question. As the respondent submitted, the second question is inappropriately formulated insofar as it is dependent on the answer to the first question given the introductory words "Could these facts [referring to the facts in question one] support a finding …". In addition, the second question as formulated seeks to confine this Court's jurisdiction to construe the relevant legislation to the interpretation adopted by Judge Lerve which was put in issue by the applicant.
Notwithstanding these shortcomings, the respondent accepted that the Court can answer the substance of the issue sought to be raised: Sasterawan v Morris at [37]. The substance of the issue sought to be raised by sub-questions (i) and (ii) is whether the meaning of "contained" as that word is used in the Restraint Guide is "tightly packed to prevent horizontal movement". These sub-questions read together raised a question of law regarding whether his Honour misdirected himself in law as to the meaning of the term "contained load" in the Restraint Guide.
As will be apparent from pars 9 and 11 of the stated case and the definition of "contained load" reproduced at [30] above, Judge Lerve misdirected himself in law as to the proper meaning of "contained" in the Restraint Guide. So much was ultimately accepted by the respondent in this Court. In the absence of being directed by the parties to the defined term "contained load" in the Glossary, Judge Lerve was driven to ascribing his own meaning to that term. The basis of the finding recorded in par 11 of the stated case seems to be the first sentence of par 7 in Section E, reproduced at [25] above. Plainly, the finding by his Honour concerning "tightly packed loads so as to prevent horizontal movement" did not take into account the ambit of the defined term "contained load" in the Glossary, relevantly, the prevention from dislodging from the vehicle by any of the stated means, which include by other parts of the load. Nor do the facts in the stated case specifically address the applicable performance standards for the load restraint system for contained loads.
It is appropriate to answer sub-questions (i) and (ii) of the second question by reference to the meaning of the defined term "contained load" in the Glossary to the Restraint Guide.
Sub-question (iii) of the second question does not raise a question of law. Even if it did, it cannot be answered, given the misdirection at law by his Honour as to the meaning of "contained load".
Notwithstanding this misdirection at law, the respondent invited the Court to answer the question whether, on the basis of the law correctly applied, are the remaining facts in the stated case capable of supporting the conviction?
The respondent submitted by reference to photographs of various items on the tipper truck and extracts of the transcript in the Local Court, that the inevitable conclusion is that the remaining facts in the stated case are capable of supporting a finding of guilty for an offence against s 111(1)(b) of the National Law because the items in the contained load (the excavator buckets, the loading ramps, the jerrycan and conduit) were not otherwise the subject of any restraint method.
It is not necessary to refer to the detail of these submissions, nor is it appropriate to comment on the merits of this contention. The essential difficulty is that the substance of the issue sought to be raised by sub-question (iii) cannot be answered by reference to the remaining facts in the stated case. The fact recorded in par 12 of the stated case that certain items in the contained load "were not tightly packed" proceeds upon the misdirection at law as to the meaning of "contained load". Nor can the Court have regard to evidence in the Local Court and the District Court or draw inferences as to matters of additional fact that are not expressly stated.

Conclusion, Costs and Orders

For the reasons given above, the questions in the stated case should be answered as follows: 1. Inappropriate to answer. 2. As to sub-questions (i) and (ii), the term "contained load" in the Load Restraint Guide has the meaning stated in the Glossary in section J, namely: A load prevented from dislodging from the vehicle by the vehicle structure, gates, sides, racks, headboards, stanchions etc) or other parts of the load. As to sub-question (iii), inappropriate to answer.
The Court's powers in determining the stated case includes the power to award costs in favour of the successful party: Clyne v Wrigley [1980] 1 NSWLR 599. The applicant sought an order for costs. The applicant has only succeeded on a narrow basis that the District Court misdirected itself in law as to the proper definition of a "contained load" for the purposes of the Restraint Guide. This definition was not brought to the attention of Judge Lerve in the District Court by the legal representatives for either of the parties. Nor was it drawn to the attention of the Local Court by the prosecutor, where the applicant was unrepresented. Both parties are at fault and costs should lie where they fall.
The appropriate order is that there be no order as to costs, to the intent that each party bear his or its own costs in this Court.
I propose the following consequential orders: 1. The time for submitting the stated case under s 5B of the Criminal Appeal Act 1912 (NSW) is extended to 28 March 2019. 2. Set aside the order made by Judge Lerve in the District Court on 21 June 2018 dismissing an appeal against conviction and sentence brought by the applicant, Kevin Douglas Jesse. 3. Quash the order made by Judge Lerve on 21 June 2018 imposing a fine of $1,000 and ordering the applicant to pay $1,000 court costs ordered in the Local Court. 4. No order as to costs, to the intent that each party bear his or its own costs in this Court. 5. Remit the matter to the District Court for disposal in accordance with law.
JOHNSON J: I agree with the reasons of Gleeson JA and the orders proposed by his Honour.
PRICE J: I agree with Gleeson JA's analysis of the stated case and the orders that his Honour proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2019

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