Jesse v Roads and Maritime Services NSW

DEMONSTRATION OF ERROR

1. Mr Ginges who appeared on behalf of the appellant submitted that although there are opposing views it was not necessary for the appellant to demonstrate error in the Local Court as a precondition of the appeal. I disagree with that submission. It is incumbent on the appellant to demonstrate that the order, the subject of the appeal , is the result of legal, factual or discretionary error, in which event the appellant court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]; Director of Public Prosecutions v AG [2015] NSWCA 218; Englebrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290.
2. In the alternative Mr Ginges submitted that the Magistrate did fall into error. He submits she did so for a number of reasons but primarily she did not apply the definition of "contained load" in the Load Restraint Guide. The Magistrate held "contained really means that none of it is protruding from the back of the truck. That is something separate to them being restrained within the truck": T33 lines 39-40. Mr Higgins who appeared on behalf of the respondent in oral argument conceded that there was error on the part of the Magistrate.
3. The parties agree that the issue is not whether the Local Court's finding was "open" to it, but whether that finding is the correct one for the District Court now to make. It is for this court to determine on the evidence before the Local Court, whether it is satisfied beyond reasonable doubt that Mr Jesse is guilty of the offence.

THE CHARGE

1. The appellant was served with a penalty notice. The short title of the offence was "Drive heavy vehicle not comply loading requirements" the notice went on to provide the following particulars; "During the compliance check the combination's it was noticed that there were a number of excavator buckets not secured and the main load, comprising of a 3580kg excavator restrained by 1 x 80mm 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 1 x 8mm chain or a further 50mm webbing strap to be used. The offence was categorised as SUBSTANTIAL load restraint."
2. The penalty notice was $540. The appellant exercised his right to have the matter proceed as a hearing before the Local Court. A court attendance notice was filed electronically on 13 September 2017. Under the heading of details of offence it read; "Drive heavy vehicle not comply loading requirements-subst 7 August 2017 08:52:00AM Hume Highway, Coolac, NSW, 2727 Defendant role: KEVIN DOUGLAS JESSE Driver of VIC registered vehicle ZKM984, Requirement not met: To use an appropriate method to restrain the load on the vehicle to the standard specified in the regulations, The standard requires: Restrain of movement of the load mass 50% to side/rear 80% forward 20% upward. Heavy Vehicle National Law (NSW), Section 111(1)(b)."
3. The penalty notice or the court attendance notice did not refer to a jerry can, loading ramps and conduit which were in the tray of the tipper truck. From a reading of the penalty notice and the court attendance notice the prosecution had particularised its case as one of failure to contain/restrain the excavator and the buckets.
4. The appellant was entitled to particulars that identify the "act, matter or thing" that is said to provide the foundation of the charge. This includes details of the time, place and manner of the alleged offence: Johnson v Miller (1937) 59 CLR 467. This was done by the prosecution. The prosecution particularised the excavator and buckets, nothing else.
5. Particulars are necessary in order to inform the appellant of the case that he will face and allow the court to link the evidence that is given with the allegations in the charge sheet or indictment. Adequate particulars are essential to a fair hearing.

THE HEARING BEFORE THE MAGISTRATE

1. The appellant was unrepresented. He went to court expecting to meet a case of failure to contain/restrain the buckets and excavator as particularised by the prosecution.
2. Guideline 23 of the Director of Public Prosecutions guidelines deals with unrepresented litigants. In part it states; "the basic requirement, while complying in all other respects with these guidelines, is to ensure that he accused person is properly informed of the prosecution case as to be equipped to respond to it, while the prosecutor maintains an appropriate detachment from the accused person's interests…the prosecutor also has a duty to ensure that the trial judge gives appropriate assistance to the unrepresented accused person."
3. The prosecutor called two witnesses. The witnesses were officers of the RMS. Mr David BAXTER gave evidence. His statement was tendered and became Exhibit 2. The relevant parts of the statement read as follows, "[6] On Monday 7/8/2017 I was conducting static road patrol duties at Coolac Heavy Vehicle checking station, situated north bound on the Hume Highway at Coolac. At this time I was in company with Inspector Giddings (N 1205). Approximately 0852 hours a White Isuzu bearing plates said ZKM984 VIC, towing trailer W080301 VIC was directed to enter and stop at the checking station. An RMS compliance check on both the driver & vehicle was performed. Driver produced a NSW photo license, license number 084420334, which belonged to Kevin Douglas Jesse, address 25 WARRAWONG LANE GLENROWAN VIC 3675. The photo license resembled the person that produced the license. [7] During the compliance check of the combination I saw that there were a number of excavator buckets not secured in the main load comprising of an excavator weighing 3580 kg as per the manufacturer's compliance plate, was restrained by 1×80 mm webbing strap at a 15-30° angle to the load. The load friction surface was rubber track on smooth steel and the excavator was unbraked and unblocked. (The unbraked term related to the hydraulic lockout to the drive sprocket which this piece of equipment was not equipped with. Blocked/unblocked relates to the position of the excavator to the headboard of the truck which there was approximately 900mm distance from the main bucket to the headboard. As a result, I deemed the excavator to be unblocked for the purposes of determining suitable load restraint. [8] Using the calculations on page 193 of the load restraint guide. I found that the 80mm webbing strap currently being used was only capable of restraining 450kg. After further calculations I found that the excavator was required to be blocked against the headboard of the truck and 2×8mm chains or a further 5×50mm webbing strap to be used in conjunction with the current 80mm strap. I also determined that the loose excavator buckets were required to be restrained by another 50mm webbing strap to secure them appropriately. When taking all factors into consideration I categorised the load restraint offence as Substantial risk. I refer to annexure A which is pages 192-194 of the NTC Load restraint Guide."
4. The statement had been served on the appellant as part of the brief of evidence. There was no mention in the statement of a small jerry can, a pair of loading ramps to load the excavator and some conduit. Mr Baxter gave evidence of these items at T6 lines 22-27. It was the witnesses' evidence when referring to the excavator that "I didn't believe that he had a braking mechanism built into the hydraulics. So I was looking for a physical pin that locks the driver's compartment; so prevents the top half of the excavator from slewing left to right. When I did the inspection albeit it was very minimal time, I didn't happen to notice anything, hence in my statement I made note that it was an unbraked piece of equipment. So therefore it would allow the unit to move forward and rearward; it didn't have a handbrake in place": T7 lines 5-11. He based his opinion on his experience of plant equipment.
5. His opinion was wrong and demonstrably so.
6. The prosecutor then took the witness through a number of photographs (Exhibit 3 on the hearing). The prosecutor highlighted the loading ramp, the jerry can and a piece of conduit. The prosecutor had not particularised these items as forming the basis of the charge. The prosecutor explained through the witness that the fuel drum, the two loading ramps and the conduit were loose: T10 lines 6-8. This was a major departure from the case as particularised by the prosecution before the commencement of the hearing.
7. The unfairness of such a departure will become more obvious later in the judgment. The prosecutor told the magistrate "the issue today, your Honour, based on the evidence, is that the buckets were not contained and the potentiality, and the other items in the truck as well": T lines 6-8. The prosecutor went on to tell the magistrate, "the matter before the court is the load was not properly restrained because, indeed, we take it from the bucket, there is also the jerry can, there is the ramps, there is the conduit, all capable of being dislodged from the vehicle. That's the authority's position on that": T 13 lines 17-21.
8. This was said while the appellant who was unrepresented was cross-examining Mr Baxter. The prosecutor had now identified to the court matters that he now relied upon which had not previously been particularised. It was a dramatic shift in the prosecution case that occasioned significant unfairness to the appellant.
9. In my view it was incumbent upon the prosecutor to alert the magistrate to the dramatic shift in the prosecution case. The case Mr Jesse came to meet had changed. If the magistrate had been informed she may have offered an adjournment to the appellant so he could consider his position and the dramatic change in the prosecution case which had not been previously particularised.
10. Mr Higgins who appeared for the respondent in the oral argument said that if he was representing the appellant he would firstly have objected to what the prosecutor was doing and subject to that ruling would have sought an adjournment. This was not offered to the appellant.
11. The learned Magistrate in convicting the appellant relied upon amongst other things the conduit, the jerry can and the two ramps as they were not sufficiently restrained: T 33 lines 8-11, 29-33.
12. The appellant had come prepared to deal with the buckets and excavator as particularised by the prosecution. He had a document from the manufacture of the excavator. He put the following to Mr Baxter, "Q. Getting onto the braking system of the excavator, I have here a written copy from new Holland, the manufacture of the excavator, starting what sort of braking system. It's got automatic lockout, as soon as you turn the key off, the hydraulics lock? A. That might be why I couldn't find the pin. Q. Yes, that would be it. A. Yes, I agree with that": T16 lines 36-43.
13. The document referred to became Exhibit 6 on the hearing.
14. A major plank in the prosecution case (that the excavator was unbraked and unblocked) had been defeated. The opinion expressed by Mr Baxter was demonstrably wrong.
15. In my view to prevent unfairness to the appellant, the respondent cannot rely upon the ramps, conduit and jerry can in proof of its case because it had never particularised its case that way. I do not accept Mr Higgins's contention that the appellant's submission about the demonstrable shift in the prosecution "goes nowhere". It goes to the very root of a fair hearing. The hearing was unfair due to the prosecutor failing to alert the magistrate to the change in the prosecution case. The appeal is now focused on the buckets.

THE BUCKETS

1. The photographs taken by Mr Baxter clearly show the position of the buckets and a ripper. The excavator was facing towards the headboard of the truck. Next to the excavator that was braked there is a bucket hard up against the headboard. The excavator arm had a bucket attached to it. It was pressed up against the bucket that was hard up against the headboard. The excavator arm was locked preventing sideways or forward movement. Inside the bucket attached to the excavator were two smaller buckets and the ripper. If the truck had been hit from the rear the buckets and ripper contained in the larger bucket would not have been able to move forward.

THE LEGISLATION

1. s.111(1) of the Heavy Vehicle National Law (NSW) provides: "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."
2. s.110 provides that the national regulations may prescribe loading requirements including the restraint and positioning of loads.
3. s.115 provides that in a proceeding for an offence against s111: "(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 …"
4. S 115(b) has no application to the facts of this case.
5. At the core of the appeal is the proper construction and application of s111(1) National Law so far as it relates to a load transported by the "tipper" truck driven by the appellant. In particular the application of "contained load", and whether this contained load required additional physical restraint, having regard to the Load Restraint Guide 2004. The Guide is a 268 paged book.
6. The issue for determination is whether there is evidence that a load "was not placed, secured or restrained" in a way that met a performance standard as identified in s115(a).
7. Regulation 38 of the Heavy Vehicle (Mass, Dimension and Loading) National Regulation state the loading requirements apply to a heavy vehicle are those stated in s1 of Schedule 7. The provision at the time 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 s115 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 stated in the guide."
8. The performance Standards (as referred to in Note to s1 of Schedule 7) refer to a "load restraint system". Section C, also within Part 1, is headed 'Restraining Loads on Vehicles'. Under the heading 'How much Load Restraint?' page 58 reads as follows: "All loads must be restrained to meet the performance standards outlined in section F Performance Standards. A performance standard is a way of defining what is required, but not how to do it. For example, braking performance is defined as stopping distance, not by the size of the brakes. Performance standards allow you to choose the way to do it. Many different types of load restraint systems can be used to meet the Load restraint performance standards. For example, webbing straps with rubber load mat that can be used instead of chains for restraining smooth steel. During all expected operating conditions, which can include minor collisions, the Load system must ensure that: (1) The load does not dislodged for the vehicle; and (2) Unacceptable like movement does not occur. Limited load movement is acceptable under conditions where the vehicles stability and weight distribution are not adversely affected and the load cannot become dislodged from the vehicle. The following are examples of acceptable load movement under these conditions: (1) Limited vertical movement of loads that are restrained from moving horizontally (by the vehicle sides or gates for example); (2) Limited movement of very lightweight objects, loose bulk loads and bulk liquids that are contained within the sides of enclosure of a vehicle body; and (3)Limited forward (or rearward) movement of loads that are tied down, where the maximum tension that develops in each tie-down does not exceed its Lashing Capacity. For loads that do not move on the vehicle, performance standards outlined in section F will be met if the load restraint system is capable of providing each of the following: (i) Restraining forces equal to 80% of the weight of the load to prevent the load shifting forwards (e.g. braking in the forward direction); (ii) Restraining forces equal to 50% of the weight of the load to prevent the load shifting rearward (e.g. breaking in reverse); and (iii) Restraining forces equal to 50% of weight of the load to prevent the load shifting sideways (e.g. during cornering). combined with restraining forces equal to 20% of the weight of the load (additional to the load's own weight) to prevent the load moving vertically relative to the vehicle. Where limited vertical movement is permissible for loads that are restrained from moving horizontally, only the above forward, rearward and sideways restraining forces must be provided by the load restraint system. Where limited forward or rearward load movement of loads that are tied down is permissible, the required restraining forces will be greater than the above and must be determined by testing or calculation."
9. On page 186 with the heading 'Performance Standards' is the following passage; "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 possible); (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.
10. The 2004 edition of the Restraint Guide applied.

THE APPELLANT'S SUBMISSIONS

1. The appellant submits that the ripper and smaller buckets were sitting within the larger bucket of the excavator (which itself was attached to the excavator) and an additional bucket was pushed up against the headboard to the extent that if there would have been any lateral movement, it would have been limited to minor movement (if any at all) of the two small buckets and ripper moving within the larger bucket. The other bucket was restrained because it was pushed up against the headboard and held into position by the excavator arm and bucket in a braked position.
2. The appellant's case was (and remains) that because the load was wholly contained within the rigid walls of the tipper truck and otherwise satisfied the Restraint Guide (including the performance standards); it did not require further restraint.
3. The appellant contends that there is no doubt that the load was a "contained load" within the meaning of the Restraint Guide, and that it only required additional restraint if the load might dislodge or cause instability ( neither of which applies here) or if it failed to meet a performance standard. In the absence of any expert evidence, the Court could not be satisfied beyond reasonable doubt that the load failed to meet a performance standard.
4. The appellant relied upon the evidence in the Local Court and the position adopted by the prosecutor that the load position did not make the vehicle unstable or unsafe: T 12 lines 1-2.
5. Mr Baxter called by the prosecutor accepted the load was contained but was not restrained: T 12 line 44. The appellant calls in aid 3.2.1 of the restraint guide which expressly states that "contained loads can be directly restraint without any securing devices. These include liquids in tanks, bulk solids in tanks or rigid sided bodies and mixed loads of various items in rigid sided bodies or containers".
6. The appellant submits that the appeal should be upheld and the conviction set aside.

RESPONDENT'S SUBMISSIONS

1. The respondent referred to sched 7 to the Heavy Vehicle (Mass, Dimension and Loading) National Regulation (NSW) containing one provision, namely s1. That provision was made under s110(1) of the National Law. I have set out that piece of legislation in an earlier part of the judgment. The respondent refers particularly to s1(3) which provides: "(3) An appropriate method must be used to restrain the load on a heavy vehicle".
2. The respondent submits that the appellant breached that loading requirement namely the need to use an appropriate method to restrain the load on a heavy vehicle. It submits that one of the necessary features of a load restraint system is that unacceptable load movement does not occur.
3. The respondent referred me to Section E of the Guide titled 'Loads'. Contained load is dealt with in this section between pages 140-144. At the top of page 140 the following the statement of principle is set out; "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 there movement could cause the vehicle to become unstable or the load to dislodge."
4. The respondent submits that the above principle requires contained loads to be packed in this way, unless they cannot be packed in this way and the movement would not cause the vehicle to become unstable or the load to dislodge.
5. The respondent submitted that diagram E.24 on page 143 relied upon by the appellant which shows a tipper truck with a contained load of loose goods (goods not secured by any means other than contained) shows that the loose goods are either tightly packed or unlikely to become dislodged if they were to move about the tipper. The respondent submits that is not the case here.
6. The respondent relies upon the performance standard at p.186 set out previously in the judgment. The respondent says that some contained loads are permitted to move about in the sides of the vehicle body such as a tipper. But, it submits, the examples are confined to loads that are restrained from moving horizontally at all, such as very lightweight objects or loose loads and bulk liquids.
7. The respondent further submits that the goods contained within the truck driven by appellant are not comparable to any of the above examples, and therefore the goods (except for the excavator) were not adequately restrained in the tipper.

CONSIDERATION

1. The concepts of "restraint" and "containment" can be separate and distinct, and that every load requires adequate restraint whether or not contained. However, a load which is contained may also satisfy the restrained requirements simply by being a contained load without any additional measures of restraint.
2. I am satisfied that the bucket against the headboard (photograph H), the two buckets and the ripper within the braked excavator's bucket (photographs F and G) fall within the definition of contained load in the Load Restraint Guide in The Glossary in section J namely; "A load prevented from dislodging from the vehicle by vehicle structure, gates, sides, racks, headboards, stanchions etc or other parts of the load."
3. The questions for determination is can the prosecution prove beyond reasonable doubt that either or all of the items was not restrained. I now consider the items individually.

The bucket against the headboard

1. The excavator was in a braked position with a strap as shown in photographs C, D and E. Attached to the arm of the excavator was a sizable bucket. The bucket was firmly on the floor of the tipper and did not exceed the sidewalls. More importantly as the excavator was in a braked position the arm of the excavator could not move. Between the bucket on the excavator arm and the headboard of the tipper was a bucket of size smaller than the excavator's bucket.
2. The bucket of the excavator is hard up against the bucket which in turn was hard up against the headboard. It could not go forward nor could it go backwards. It could not "bounce" out of its position nor could there be any horizontal/lateral movement.
3. The prosecution has not proved beyond reasonable doubt that it was not restrained.

The ripper and smaller buckets

1. The ripper and the two smaller buckets (photographs F, G and H) were contained within the larger bucket attached to the arm of the braked excavator. They were not higher than the sides of the tipper and sat within the larger bucket. They were "contained" as defined.
2. Mr Baxter in cross-examination at T12 lines 38-40 conceded that the buckets were contained by the side and height of the larger bucket. He conceded at line 44 that they were contained. Mr McGrath who appeared to prosecute on the following page of the transcript (T 13 line 7), after the concession was made submitted that "the buckets were not contained". But, then at lines 16-17 he said, "Mr Baxter concedes that it was contained within the truck. It was not restrained". At lines 30-33 Mr McGrath said, "We're not suggesting that the things weren't contained within the truck. We're saying they're in the truck but they're not properly restrained". At T 22 lines 21-24 he said, "… there is no statement or assertion or allegation by the Authority in these proceedings that any part of the load was inspected on 7 August was not contained within the tray of the truck. The allegation before the court is that certain items within the tray were not restrained." This leads to the question; Can the prosecution prove beyond reasonable doubt that the two buckets and the ripper within the braked excavator's bucket although contained needed to be restrained.
3. No evidence was adduced as to what lateral forces would be required to move the items within the larger bucket. Both of the smaller buckets were sizable and common sense would dictate that they would be heavy.
4. If there was a head on collision they could not go forward as they were contained within the bucket attached to the braked excavator's arm. The bucket was facing towards the excavator and away from the headboard. This would prevent any forward movement.
5. If there was a rear end collision with the tipper it is unlikely that there would be any movement due to their position within the larger bucket.
6. Due to the weight of the buckets and the ripper they could not "bounce" out of the bucket or the tipper.
7. The positioning of the two smaller buckets and ripper within the larger bucket may allow for some lateral movement within the larger bucket but such movement would be minimal and contained within the larger bucket. 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.
8. I am satisfied that the positioning of the buckets, ripper and their weights meant that they would not fall or be dislodged from their positions within the larger bucket.
9. The method used by the appellant was appropriate and sufficient to restrain the smaller buckets and ripper and any resultant limited load movement would not adversely affect the stability and weight distribution of the tipper or load. The items were within the bucket. They were contained and restrained within the bucket.
10. The items were not unstable or unsafe.
11. The appellant had driven from Glenrowan in Victoria. He was heading to Queanbeyan. He had travelled a considerable distance before he was pulled over. The evidence was that none of the items had moved. This indicates that the method used was appropriate to restrain the smaller buckets and ripper. There had been no lateral movement or "bouncing".
12. I am not satisfied beyond reasonable doubt that the appellant breached s111(1)(b) of the Heavy Vehicle National Law.
13. I allow the appeal and I dismiss the charge.

COSTS

1. Mr Ginges who appears on behalf of the appellant seeks costs. The ability to award costs is governed by ss 28 and 70 of the Crimes (Appeal and Review) Act 2001. Section 28 provides; "28 Miscellaneous powers (1) Without limiting its other powers, the District Court may do any one or more of the following - (a) it may specify the proclaimed place (within the meaning of the District Court Act 1973) at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (b) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (c) it may adjourn the hearing of an appeal or application for leave to appeal. (2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. (3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just."
2. Section 70 provides; "70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied - (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter - (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003."
3. Mr Ginges relies upon s70(1)(b). He submits that the proceedings in the Local Court were conducted by the prosecutor in an improper manner. He submits that the appellant was denied procedural fairness by the shift in the prosecution case from what had been particularised. Although this is so I have not allowed the prosecution on this appeal to rely upon the jerry can, the conduit or the loading ramps. Cases from time to time change subject to the evidence. It does not mean that it is improper. What was unfair was the failure to offer the appellant time to consider the shift in the prosecution case. This unfairness has been remedied by my ruling.
4. Mr Ginges further submitted that the prosecutor spoke over the appellant and interfered unnecessarily in his cross-examination of Mr Baxter. The prosecutor was in a difficult position faced with an unrepresented litigant. I am not satisfied that the prosecutor speaking over the appellant and objecting during the course of cross-examination was improper.
5. Mr Ginges submits that the prosecutor objected to the running of a reasonable steps defence. The photographs relied upon for that defence were tendered in the Local Court by the appellant. It is unfortunate that the appellant was not represented so that such a defence could be fully ventilated. But, it was the appellant who chose not to be represented. In light of my judgment it was unnecessary to consider the reasonable steps defence. There was nothing improper on the part of the prosecutor.
6. The final submission of Mr Ginges is that the prosecutor misdirected the Magistrate. The prosecutor's submission to the Magistrate was short. They appear on T31. The point made by the prosecutor was that the load although contained was not restrained. It was a valid submission to make. There was nothing improper on the part of the prosecutor in making such a submission.
7. I reject the application for costs.
8. I quash the order of the Local Court ordering professional costs in the sum of $1000.00.

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: 07 September 2020