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[2026] NSWSC 659
Supreme Court of NSW
2026-06-10
McGuire J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pincott Holdings Pty Ltd v National Heavy Vehicle Regulator [2026] NSWSC 659
Hearing dates: 19 March 2026
Date of orders: 10 June 2026
Decision date: 10 June 2026
Jurisdiction: Common Law
Before: McGuire J
Decision: (1) Leave to appeal on the basis of ground 2 is refused.
(2) The Further Amended Summons dated 7 November 2025 is dismissed.
Catchwords: ADMINISTRATIVE LAW — judicial review —Supreme Court Act 1970 (NSW), s 69 — order sought to set aside conviction and sentencing orders of the Local Court — director of plaintiff company alleges the Officer in Charge intimidated and threatened him such that he was unable to give evidence — where conversation occurred outside court and without the Magistrate’s knowledge — where evidence of conversation, if it had been before the Magistrate, would not have had any material impact on the conviction and sentencing outcomes CRIME — appeal and review — Crimes (Appeal and Review) Act 2001 (NSW), s 52 — conviction and sentence appeal from Local Court — director of plaintiff company alleges the Officer in Charge intimidated and threatened him such that he was unable to give evidence at trial — where grounds of appeal do not raise a question of law — where plaintiff failed to seek leave to appeal under s 53 of that Act — where plaintiff failed to seek extension of time to bring appeal — leave to appeal refused
Original judgment source is linked above.
Legislation Cited: Heavy Vehicle National Law (NSW), ss 26C, 26G
Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 54, 55
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Supreme Court Act 1970 (NSW), ss 69, 75
Evidence Act 1995 (NSW), s 128
Cases Cited: AAI Limited trading as GIO v AMOS [2024] NSWCA 65
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
Fraser v The Queen [1984] 3 NSWLR 212
Frost v Kourouche [2014] NSWCA 39
Kioa v West [1985] HCA; (1985) 159 CLR 550
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682
Category: Principal judgment
Parties: Pincott Holdings Pty Ltd (Plaintiff)
National Heavy Vehicle Regulator (Defendant)
Representation: Counsel:
H Weller (Solicitor) (Plaintiff)
G Lewer with S Ramsden (Defendant)
Solicitors:
Herbert Weller (Plaintiff)
National Heavy Vehicle Regulator (Defendant)
File Number(s): 2025/00320950
Publication restriction: Nil
This case arises from a fatal motor vehicle collision which occurred on the Bells Line of Road at Mount Tomah, in the Blue Mountains, on 1 November 2021.
On 5 June 2025, the plaintiff, Pincott Holdings Pty Ltd, was found guilty in the Local Court at Parramatta of committing an offence contrary to s 26G of the Heavy Vehicle National Law (NSW) (“the Act”). That provision makes it an offence for a person who has a duty under s 26C to contravene that duty and thereby expose an individual or a class of individuals to a risk of death or serious injury or illness. Section 26C creates a duty for each party in the chain of responsibility for a heavy vehicle to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle and includes a duty, so far as is reasonably practicable, to eliminate or minimise public risks.
On 22 July 2025, the plaintiff was convicted and sentenced to pay a fine of $1,200,000. Other orders consequential upon the conviction were also made on that date.
By Further Amended Summons dated 7 November 2025, the plaintiff seeks orders setting aside the Local Court decisions of 5 June 2025 and 22 July 2025. The plaintiff seeks to appeal the whole of the decision of the Court below, seeks orders that the orders made in the Local Court be quashed and seeks orders for costs. The following grounds of appeal are set out in the Further Amended Summons:
“1. Pursuant to s 69 Supreme Court Act the [plaintiff] seeks a review of the decisions of the Magistrate made on the 5th June 2025 and 22nd July 2025 on the basis that the Officer in Charge Senior Constable Inkratas, so intimidated and threatened Andrew Pincott (the director of the [plaintiff] company) in that he was so incapacitated that he was unable to give evidence at the hearing before the Magistrate, which resulted in a contempt in the face of the Court and a perversion of the course of justice.
2. In the alternative, the [plaintiff], pursuant to s 52 of the Crimes (Appeal**s [sic] and Review) Act, appeals the decisions of the Magistrate made on the 5th June 2025 and 22nd July 2025, in that during the case for the [plaintiff] and while Andrew Pincott (the director of the [plaintiff] company) was waiting to give his evidence, the Officer in Charge of the prosecution, Senior Constable Inkratas, approached Andrew Pincott outside the door to the Court Room in which Andrew Pincott’s wife was giving evidence and so intimidated and threatened the said Andrew Pincott that he became incapacitated to such an extent that he was unable to give his evidence for the [plaintiff].
3. The conduct and statements made by Senior Constable Inkratas to An drew Pincott so intimidated and threatened the said Andrew Pincott that it amounted to a contempt in the face of the Court and was so serious that it directly interfered with the administration of justice.
4. In intimidating and threatening Andrew Pincott, Senior Constable Inkratas intentionally obstructed and interfered with the administration of justice so that the course of the law and justice was perverted.
5. The Magistrate erroneously convicted and sentenced the [plaintiff] with the knowledge that Senior Constable Inkratas had intimidated and threatened Andrew Pincott.”
The facts relevant to the appeal are contained in affidavits read by the parties and in a Court Book tendered by the defendant. The plaintiff relied on an affidavit of Andrew Pincott, a director of the plaintiff, sworn on 21 July 2025 and an affidavit of Belinda Pincott, an employee of the plaintiff and Mr Pincott’s wife, affirmed on 21 July 2025. Mrs Pincott’s affidavit was provisionally tendered because the defendant objected to parts of it on the basis of hearsay and relevance. My findings in relation to those objections will be dealt with later in this judgment. The defendant relied on two affidavits of Charlotte Davidson, a principal prosecutor employed by the defendant, affirmed on 28 November 2025 and 13 February 2026 and a 3-volume Court Book, all of which were tendered without objection.
The fatal motor vehicle collision which occurred on 1 November 2021 involved a Mack tipper truck travelling onto the incorrect side of the road and colliding into an oncoming Subaru Outback motor vehicle. The driver of the truck, Mr Geoffrey Dent, had been engaged by the plaintiff to drive heavy vehicles. The driver of the Subaru, a 74-year-old man, was declared dead at the scene. The passenger of the Subaru, a 75-year-old woman, suffered significant injuries and was airlifted to hospital in a serious condition. The accident was caused by Mr Dent suffering from an episode caused by serious medical conditions including end-stage Chronic Obstructive Pulmonary Disease. As a result of the medical episode, Mr Dent lost control of the truck and caused the fatal collision.
The plaintiff pleaded not guilty to a charge of breaching a duty under s 26C of the Act by exposing a class of individuals, namely other road users and members of the public, to a risk of death or serious injury or illness. In that prosecution, the defendant alleged that the plaintiff had engaged Mr Dent to drive heavy vehicles without assessing his fitness to do so at any point, including when he caused the fatal accident on 1 November 2021.
In the verdict judgment of 5 June 2025, her Honour found that the plaintiff carried out transport activities in relation to heavy vehicles as defined in the Act and found that the driver of the truck, Mr Dent, was employed by the plaintiff. Her Honour found that a policy document entitled Chain of Responsibility – Worker/Drivers Manual (“Chain of Responsibility document”), which the plaintiff relied upon at first instance, was not in existence at the time of the collision and had instead been backdated by Mrs Pincott and then provided by her “perhaps in a deliberate attempt to hold out that the company had policies and procedures at the time of the incident that they did not in fact have”.
The Court below found that the offence was made out upon the plaintiff’s failure to assess Mr Dent’s fitness to drive. Her Honour found that Mr Dent had been employed since 2018, was chronically unwell and that no assessment of his fitness to drive had ever been carried out by the plaintiff. Her Honour accepted evidence which established that Mr Dent was observably unwell, had obvious difficulty breathing and was unable to walk unaided more than five metres. Her Honour also accepted that Mr Pincott had admitted that he was aware that Mr Dent required regular medical consultations and was “on oxygen a fair bit”. Her Honour found that the plaintiff company put its head in the sand because, despite being aware of Mr Dent’s compromised medical position, it continued to employ him to drive trucks. Her Honour also determined that the plaintiff had turned a blind eye to the duty that it had by failing to take reasonable practical measures, namely having Mr Dent medically assessed. Her Honour also accepted evidence of text messages passing between Mr Dent and Mr Pincott including in August, September and October 2021, in which Mr Dent indicated that he was unwell and unable to work, and found that those messages further established that the plaintiff had direct knowledge of Mr Dent’s unfitness to carry out his duties. The evidence below also established that the plaintiff was aware that Mr Dent’s daughter accompanied him in the cabin of his truck to assist him because of his ill health.
The Magistrate found that the plaintiff ought to have arranged for Mr Dent’s capacity to drive to be assessed and that, in failing to do so, it acted in disregard of its obligations.
The plaintiff’s contravention of its duty was found to have exposed individuals or a class of individuals, namely other road users, to a risk of death or serious injury or illness. Her Honour noted that it was an agreed fact that Mr Dent suffered from a heart attack at the time of or shortly prior to the collision. Her Honour found that Mr Dent’s ill health and his compromised capacity to drive materially caused or contributed to the collision and the death of the driver of the Subaru and that the plaintiff’s failure to assess his fitness to drive caused the events of 1 November 2021. On that basis, the Court was satisfied that the elements of the offence had been proved beyond reasonable doubt and found the plaintiff guilty.
To properly consider the grounds of appeal, it is necessary to refer, in some detail, to the hearing and the sentence proceedings in the Court below.
The hearing proceeded over 4 days, between 2 and 5 June 2025, with the prosecution calling a number of witnesses and the defence calling one witness. During the hearing, issues arose concerning the provenance, authenticity and creation date of the Chain of Responsibility document, which was said to be a relevant policy document which the plaintiff had in place at the time of the collision.
After the prosecution had closed its case and immediately before evidence was called in the defence case, counsel for the prosecutor indicated to the Magistrate that arrangements had been made for Mr Pincott to obtain independent legal advice and that Mrs Pincott had already received such advice. The need for independent legal advice arose because Mr and Mrs Pincott were on notice that they may wish to claim privilege against self-incrimination and seek a certificate pursuant to s 128 of the E**vidence A**ct 1995 (NSW).
Mrs Pincott then gave evidence and was cross-examined. During her cross-examination, it was put to her that the Chain of Responsibility document was not in place at the time of the collision, that it had been created subsequently, falsely back-dated and then provided to the police in an attempt to give the misleading impression that the plaintiff had a relevant policy in place at the time.
Once Mrs Pincott had completed giving evidence, the solicitor for the plaintiff told the Court that he had not yet made a decision as to whether Mr Pincott was to be called to give evidence. After a short adjournment, the plaintiff’s solicitor indicated that he had no other witnesses. The Magistrate was not informed of any reason for the decision not to call Mr Pincott.
At the sentence hearing on 22 July 2025, counsel for the prosecutor tendered evidence relevant to sentence, provided written submissions and made oral submissions. The solicitor for the plaintiff did not tender any evidence, provided no written submissions and made limited oral submissions.
At an early stage of the sentence proceedings, the plaintiff’s solicitor informed the sentencing Magistrate that he had affidavits by Mr Pincott and Mrs Pincott. Counsel for the prosecutor indicated that it intended to object to that material on the bases of relevance and a failure by the plaintiff to serve the affidavits prior to the sentence hearing. The plaintiff’s solicitor then confirmed that he had no material to tender relevant to sentence. The affidavits of Mr and Mrs Pincott were not then tendered or read.
When called upon to make oral submissions in response to the prosecutor, the solicitor for the plaintiff referred to the contents of the affidavits, which were not in evidence, in the following terms:
“Your Honour, doesn’t know about what I’m about to tell you, but your Honour will recall the evidence of Mrs Pincott about the chain of responsibility document which as it turned out was dated 7 November and not October, and your Honour will recall that she was cross-examined for quite some time, and Mr Pincott was outside the court waiting in the wings to give his evidence. What happened then was that the officer in charge, Mr Inkratas, during the course of the cross-examination of Mrs Pincott left the courtroom and approached Mr Pincott and then a conversation ensured [sic] and I have an affidavit by Mr Pincott swearing to what was said, particularly by the officer in charge, and can I hand that up to your Honour?”
The prosecutor again indicated that it objected to that material and the sentencing Magistrate queried how it was relevant to the sentencing exercise. The plaintiff’s solicitor then said that he was making an application for the Magistrate to “apply to the Supreme Court for assistance in determining the real live issues that arose as a result of Mr Inkratas’s [sic] conversation with Mr Pincott”. After again being asked as to how that material was relevant to sentencing, the plaintiff’s solicitor twice conceded that the material was not relevant to sentencing.
The plaintiff’s solicitor then made short oral submissions on sentence which were limited to issues of Mr Dent’s age and driving experience, the impact of the prosecution on the plaintiff, contrition and remorse and the plaintiff’s financial ability to meet any fine. Ultimately, her Honour found that, apart from on the issue of Mr Dent’s age and experience, there was no evidence to support those submissions.
When asked by the sentencing Magistrate if the plaintiff wished to make any submissions about s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) including on issues of denunciation, specific deterrence and general deterrence, the plaintiff’s solicitor said, “[t]hey’re matters that are on the public record. I don’t want to discuss those, your Honour”. Additionally, the plaintiff’s solicitor did not take up her Honour’s invitation to respond to the prosecution submissions about relevant sentencing principles, including objective seriousness, prospects of rehabilitation, discounts for assistance, disclosure or other factors to be taken into account under s 21A.
Her Honour then sentenced the plaintiff by imposing a fine of $1,200,000 and made consequential orders including orders for victims compensation and a supervisory intervention order which, amongst other things, required Mr and Mrs Pincott to attend training courses.
Following the handing down of sentence, the plaintiff’s solicitor returned to the topic of an application for the Magistrate to “seek the assistance of the Supreme Court”. He said that the application was made under Part 5 of the Crimes (Appeal and Review*)* Act 2001 (NSW) and alternatively under ss 69 and 75 of the Supreme Court Act 1970 (NSW). The plaintiff’s solicitor said that the application related to a perversion of the course of justice and a contempt of court alleged to have arisen from the intimidation of Mr Pincott by the Officer in Charge.
Discussion then ensued concerning the s 128 certificate given to Mrs Pincott and the indication that Mr and Mrs Pincott had both been given s 128 advice. Counsel for the prosecutor submitted that the s 128 issue that arose during the hearing related to the “potential investigation of other offences committed by both of them”.
The Magistrate then indicated that she believed that she was functus officio and that the plaintiff’s rights to appeal or seek declaratory relief could be exercised without her Honour’s involvement. The plaintiff’s solicitor then stated “I’ll leave it” and did not press any application.
The Court Book tendered by the defendant contains the entire record of the proceedings in the Court below.
Mr Pincott’s affidavit of 21 July 2025 sets out the circumstances and content of his conversation with SC Inkratas on 5 June 2025. In summary, Mr Pincott swears that SC Inkratas approached him outside Court, asked why he and his wife were fighting a fine only offence, told him they could be in serious trouble and said that they needed good legal advice. When Mr Pincott asked how serious it could be, he states that SC Inkratas said “It could be homicide. It doesn’t get much more serious than that”. He also states that the conversation caused him to feel stunned, shocked and worried that he might go to gaol and lose everything. He says that he then wanted to shut the case down immediately.
Mrs Pincott’s affidavit of 21 July 2025 sets out her observations of her husband on 5 July 2025. She states that when she left the courtroom during an adjournment, she saw that her husband was visibly distressed. He then told her about a conversation he had with SC Inkratas. She also states that her husband told her the trial had to finish and could not proceed any further.
The defendant objects to the first two sentences of paragraph 5 and the last sentence of paragraph 9 of Mrs Pincott’s affidavit on the basis of hearsay. Those parts of the affidavit set out Mrs Pincott’s recollection of a conversation she had with her husband during which he told her about the conversation which he had with the police officer.
Mrs Pincott is able to give evidence of her observations of her husband and her conversations with him. However, the challenged portions of the affidavit are words said to be attributed to SC Inkratas in conversations at which Mrs Pincott was not present. Accordingly, I find that the first two sentences of paragraph 5 and the last sentence of paragraph 9 of Mrs Pincott’s affidavit are inadmissible hearsay.
The affidavit of Charlotte Davidson on 28 November 2025, which forms part of the defendant’s evidence, annexes a statement by SC Inkratas dated 6 June 2025, the day after the conversation with Mr Pincott on 5 June 2025. In that statement. The police officer says that he was approached outside the courtroom by Mr Pincott. He sets out his version of the conversation with Mr Pincott of 5 June 2025 as follows:
“He said – ‘Your [sic] busy’.
I said – ‘Yeah, I have a few things on’.
He said – ‘Can I ask you something, how is my wife going’.
I said – ‘I am not going to lie…she has gotten advice, and there are things that I will now have to investigate. I can not say what they are’.
He said – ‘Are you really going to do that?’
I said – ‘Well it’s serious, it’s a death matter, homicide, I’ll have to do what I have to do. I’m sorry I will have to make this phone call’.”
“1. During the Hearing at the Local Court the investigating Police Officer Paul Inkratas had a conversation with Mr Pincott, whilst his wife Belinda was being cross examined.
- Mr Pincott had been in attendance at the Court for at least 3 days waiting to give his evidence which would have taken place at the conclusion of his wife’s evidence.
- In the morning on the 5th of June 2025, being the 3rd day of the Hearing, the investigating Police Officer Paul Inkratas had a conversation with Mr Pincott in which he told Mr Pincott words to the effect ‘You and your wife could be in serious trouble’ when Mr Pincott inquired as to how serious it could be? Mr Inkratas replied ‘It could be homicide, it doesn’t get much more serious than that’.
- As a consequence of this statement made by Mr Inkratas, Mr Pincott, after his wife concluded her evidence, was unable to give the evidence which he had always intended to do.
- Mr Pincott was unable to give his evidence as he felt intimidated and threatened.”
The plaintiff’s oral submissions to this Court, which were brief, largely consisted of repetitions of these factual assertions. In addition, the plaintiff submitted that it could be assumed in the circumstances, notwithstanding the serious nature of the collision and the death of the driver of the Subaru, that the s 128 advice was limited to self-incrimination concerning allegations of fraud and did not extend to allegations of murder or manslaughter.
The plaintiff also submitted that because the particulars of the offence in the proceedings below referred to the Chain of Responsibility document, once that document had been shown to have come into existence after the collision, Mr Pincott could be assumed to have then held a belief that the prosecution case was bound to fail. The plaintiff submitted that, because the conversation with SC Inkratas occurred after Mr Pincott was said to have formed a belief that the prosecution had failed, it could be inferred that the decision for Mr Pincott not to give evidence was motivated entirely by the conversation and was uninfluenced by the s 128 issues. It should be noted that the evidence, including Mr Pincott’s affidavit, is silent on the issues of Mr Pincott forming any belief that the prosecution had failed, the content the s 128 advice and what influence that advice had on the decision for him not to give evidence.
The plaintiff conceded that the Magistrate was not informed of the conversation between the police officer and Mr Pincott at any time prior to the delivery of the guilty verdict. The plaintiff also conceded that, although some reference was made in the sentence proceedings to the content of Mr and Mrs Pincott’s affidavits, the solicitor for the plaintiff did not ask her Honour to not proceed to sentence, did not contend that the issues raised in the affidavits were relevant to sentence and acted in a way which was consistent with wanting the sentencing proceedings to continue including by making some submissions relevant to sentence.
The plaintiff submitted that the police officer’s conduct was a gross interference with the administration of justice. When pressed to identify errors of law made by the Magistrate or questions of law giving grounds for these proceedings, the solicitor for the plaintiff said “[t]he error of law was that Mr Pincott was unable to give evidence after the conversation in the foyer of the court and he was the company’s primary witness”. The plaintiff failed to make any submissions about applicable legal principles and did not refer to any authorities.
The defendant submitted that the plaintiff had failed to identity any questions of law or errors of law to found the proceedings. It submitted that the error which the plaintiff relied on, that Mr Pincott was unable to give evidence, was not an error of law, was not a jurisdictional error and in any event was not known to the Magistrate. It asserted that the application is deficient and that even if Mr Pincott’s version of the conversation with the police officer was accepted, the plaintiff would still not succeed in obtaining the relief sought. The defendant contended that the statutory appeal, as pleaded, is defective and ought to be dismissed and that the application for judicial review does not disclose any error of law leading to a consideration that the decision below should be set aside.
The defendant submitted that none of the grounds identified in the Further Amended Summons raise a question of law alone. It submitted that each of the grounds require consideration of factual matters raised in the Court below and in this Court by way of the affidavits of Mr and Mrs Pincott. The defendant also submitted that the plaintiff had failed to seek leave to appeal in the Further Amended Summons. Further, the defendant submitted that the plaintiff commenced these proceedings by filing a summons on 30 August 2025 which was out of time, being more than 28 days after the date of sentence and the date of the verdict judgment. The defendant submitted that the plaintiff failed in the Further Amended Summons to seek an extension of time and is not entitled to the relief sought under the Appeal and Review Act. Accordingly, the defendant submitted that the appeal under the Appeal and Review Act was deficient and ought to be dismissed.
In relation to judicial review, the defendant submitted that none of grounds 1, 3 or 4 identify any jurisdictional error or other error of law on the face of the record and accordingly should be dismissed. The defendant submitted that the evidence of the conversation, on either version of it, was not before the Court prior to the verdict judgment and was not before the Court in any sufficient or material way before the sentence was handed down. Further, the defendant submitted that even if that evidence was before the Court below, it was immaterial to the outcome as it was irrelevant to issues relating to guilt and irrelevant to the sentencing exercise.
An appeal against conviction in the Local Court to the Supreme Court proceeds by way of right pursuant to s 52 of the Appeal and Review Act on a question of law alone. Pursuant to s 53 of that Act, this Court may grant leave to appeal on questions of fact or mixed questions of law and fact. Leave to appeal is to be determined pursuant to s 54 and the Court’s power to determine appeals is set out in s 55.
The grounds of appeal identified in the Further Amended Summons fail to raise questions of law alone. Each of them requires consideration of factual matters, including factual matters that were not raised in the Court below and are contained in the affidavit of Mr and Mrs Pincott. In the event that the relief sought in the Further Amended Summons seeks a form of relief in s 53 of the Appeal and Review Act, the plaintiff has failed to seek leave to appeal and has failed to amend the summons to seek such leave even after the need to do so was brought to its attention.
No extension of time to bring an appeal has been sought by the plaintiff. The need for an extension of time was brought to the plaintiffs’ attention in the response filed by the defendant on 19 December 2025. Notwithstanding that notice, the plaintiff has failed to amend its Further Amended Summons to seek an extension of time and has failed to provide any evidence or explanation of its failure to commence proceedings within time.
The orders sought pursuant to ground 1 of the grounds of appeal are in the nature of certiorari seeking judicial review of the Local Court decision. This Court has a supervisory jurisdiction to conduct such a judicial review in accordance with s 69 of the Supreme Court Act. Such proceedings are not an appeal. Before determining the application and availability of judicial review under s 69, it is necessary for the Court to first determine the availability of a statutory appeal before considering the discretionary relief that may be available under s 69: Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147. In order to engage jurisdiction to grant judicial review relief under s 69, the plaintiff must identity a relevant jurisdictional error or other error of law on the face of the record: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163*.*
Ground 1 asserts that the plaintiff is entitled to judicial review of the decisions made on 5 June 2025 and 22 July 2025 on the basis that SC Inkratas intimidated and threated Mr Pincott to the extent that he was incapacitated and unable to give evidence at the hearing before the Magistrate resulting in alleged contempt in the face of the Court and a perversion of the course of justice.
The difficulty for the plaintiff in establishing this ground is that the events said to be relevant to all of the grounds occurred outside court and without the Magistrate’s knowledge. The presiding Magistrate was not told at any time prior to entering the guilty verdict about any conversation which occurred outside court or any reason why Mr Pincott did not give evidence. Unless informed otherwise, I am satisfied in the circumstances her Honour was likely to have assumed that was a forensic decision taken by the plaintiff based on legal advice possibly related to the s 128 issue upon which Mrs Pincott was cross-examined. In the event that the Magistrate was not informed about those matters, there is nothing on the face of the record of the Court below to identify any relevant error made by the Magistrate.
In addition, I am not satisfied that even if the evidence of the conversation had been before the Magistrate, that would have had any material impact on the outcome of the case. There is no realistic possibility that the decisions made below would have been any different if the Magistrate had been informed of the conversation between Mr Pincott and SC Inkratas. Consequently, I am not satisfied that the plaintiff was denied any procedural fairness, that the Magistrate made an error of law on the face of the record or that there was any jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multic**ultural Affairs [2024] HCA 12; 98 ALJR 610 at [7].
None of the grounds of appeal challenge her Honour’s findings, legal directions or analysis of the elements of the offence in the verdict judgment of 5 June 2025. No challenge is made to any of the sentencing court’s findings on sentence or assert that the Magistrate misapplied the law when sentencing the plaintiff. Given the concessions made during the sentencing hearing by the solicitor for the plaintiff, namely that the affidavits of Mr and Mrs Pincott were irrelevant to the issues to be determined on sentence and given that those issues were not raised during the sentencing hearing in support of any application for the Magistrate to not proceed to sentence, I am not satisfied that the plaintiff has identified any relevant error in the Court below proceeding to sentence the plaintiff.
In all of the circumstances, I am not satisfied that the decision not to call Mr Pincott to give evidence was caused solely by the conversation with SC Inkratas. Rather, in the circumstances, I infer that decision for him not to give evidence and the decision to not call any other witness after Mrs Pincott’s evidence, arose substantially, if not entirely from legitimate concerns about the plaintiff’s witnesses incriminating themselves in relation to the fraudulent creation of the Chain of Responsibility document. In circumstances where there appears to be a legitimate basis for not calling any further evidence, I am unable to conclude that the plaintiff was denied procedural fairness.
The offence with which the plaintiff was convicted is an offence of strict liability. In the proceedings below, the prosecution tendered a large amount of documentary material to establish the elements of the offence. Many of the facts were not disputed and a number of them were the subject of agreement. The plaintiff has failed to point to any potentially exculpatory evidence that Mr Pincott was able to give in the proceedings below that could have had any material impact on the outcome. In those circumstances, I am not satisfied that there is a basis to conclude that any evidence that Mr Pincott may have been capable of giving could have reasonably led to any different outcome in the proceedings.
Procedural fairness depends, in part, on context, including the nature of the function being exercised. In a judicial setting, procedural fairness generally requires a hearing, with the parties being given an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent judicial officer: AAI Limited trading as GIO v AMOS [2024] NSWCA 65 at [53]. Procedural fairness extends to requiring courts generally to give parties an opportunity to address critical issues which are not apparent from the nature of the decision but are relevant to the underlying question to be determined. The purpose of that requirement is that the parties have an opportunity to respond to such critical issues: Kioa v West [1985] HCA; (1985) 159 CLR 550 at 587.
The test is whether the affected party had been afforded "practical justice": Frost v Kourouche [2014] NSWCA 39; R**e Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].
The evidence before this Court does not suggest any practical injustice or the absence of a fair hearing. The plaintiff was given an opportunity to call evidence, to cross-examine witnesses and to make submissions. The events which occurred outside court and without the Magistrate’s knowledge had no impact on the fairness of the proceedings.
The plaintiff also contends that SC Inkratas’ utterances amounted to a contempt committed in the face of the Court. Utterances and conduct in the precincts of a court can amount to contempt. Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 (“Collins”) was a case in which a protester, standing in the precincts of several courts where criminal trials were conducted, in some cases where trials were in progress, handed out pamphlets to jurors and potential jurors, urging awareness of what he asserted to be police malpractice. There, the Court at 699, 707, 708 and 709 took an expansive view of what constituted contempt in the face of the court. A later bench of the court in Fraser v The Queen [1984] 3 NSWLR 212 (“Fraser”) at 228, 231 and 232 drew back from such an expansive approach. Fraser involved protesters standing outside and near the gate to the courthouse and handing pamphlets to jurors and others in which they made assertions of a police practice of verballing suspects.
Those cases do not assist the plaintiff. Contempt in the face of the Court requires proof of some contemptuous behaviour directed at the Court, judicial officer or the judicial process. The conduct in Collins and Fraser was directed at disrupting the judicial process. The facts in the present case are a very long distance from the facts in those cases and fail to support any finding that the conduct which the plaintiff alleges is a contempt in the face of the Court.
Accordingly, ground 1 has not been made out.
For similar reasons, ground 3, which asserts that the words said by SC Inkratas during the conversation amounted to a contempt in the face of the Court and interfered with administration of justice, and ground 4, which asserts that SC Inkratas purposefully obstructed and interfered with the administration of justice to the extent that the course of justice was perverted, must also fail.
In any event, given the conflicting version of the contents of the conversation when comparing SC Inkratas’ statement and the affidavit Mr Pincott, I am satisfied that the Court should prefer SC Inkratas’ version. That is so because his statement was prepared the day after the conversation when the words said and the surrounding conduct were fresh in the police officer’s mind. His version of the events, which I accept, establishes that it was Mr Pincott who approached the police officer, not the other way around. His version of events also establishes that the police officer was merely responding to questions posed by Mr Pincott about how his wife’s evidence was going. Additionally, the police officer’s version of events does not indicate that the police officer said that Mr and Mrs Pincott could be in serious trouble, that they needed to get legal advice or that he may have to investigate charging them with homicide. Rather, the police officer’s version of events was that he indicated, as was the case, that Mrs Pincott had had to receive independent legal advice and that as a result, there were matters that the police had to investigate. The police officer did not say that that further matter to be investigated was murder or manslaughter. Rather, SC Inkratas’ version indicates that, when asked by Mr Pincott to explain whether he was going to investigate further, he said, as was the case, that it was a serious matter that involved a death. That version of the conversation does not indicate that the police told Mr Pincott that he or his wife were going to be charged with a homicide related offence.
In the circumstances, I am not satisfied that anything said to Mr Pincott interfered with the administration of justice. That is so because I am not satisfied, on either version of the conversation, that SC Inkratas influenced or intimidated Mr Pincott not to give evidence or that the administration of justice in the proceedings below was influenced by the absence of Mr Pincott’s evidence. My conclusion in that regard is fortified in circumstances where, even if Mr Pincott himself decided not to give evidence, the plaintiff could have taken steps to compel him to give evidence. There is a complete absence of any evidence before this Court to explain the plaintiff's failure to compel him to give evidence.
For those reasons, I am not satisfied that there was any contempt or interference with the administration or perversion of justice. Accordingly, grounds 3 and 4 have not been made out.
By ground 5, the plaintiff asserts that the Magistrate erroneously convicted and sentenced the plaintiff with the knowledge that SC Inkratas had intimated and threatened Mr Pincott.
The asserted error requires the plaintiff to establish the Magistrate knew that SC Inkratas had “intimated and threatened” Mr Pincott before the conviction and before the plaintiff was sentenced. As stated above, the conduct alleged by Mr Pincott occurred outside court and was not brought to the Magistrate’s attention prior to verdict. The plaintiff’s solicitor did not inform the Magistrate of any alleged intimidation or threat. He informed the Court only that no further witnesses were to be called. After an adjournment in the proceedings to allow time to confer, the solicitor for the plaintiff confirmed that he did not intend to call Mr Pincott. At no stage during the hearing to determine guilt did the plaintiff raise with the Magistrate the issues contained in the Pincotts’ affidavits. In those circumstances, where the Magistrate was uninformed of any allegation of intimidation or threat, the plaintiff has failed to establish that the plaintiff was convicted erroneously.
The plaintiff has also failed to establish that the complaint of intimidation and threatening behaviour were properly brought to the Magistrate’s attention before the plaintiff was sentenced. Although during the sentence proceedings the plaintiff’s solicitor made some reference to affidavits and summarised part of the contents of those affidavits in oral submissions, he readily conceded that the affidavits were irrelevant to the sentencing exercise. He also conceded that the issue of seeking assistance from the Supreme Court was more appropriately raised by way of an appeal which would not involve any further consideration by the Magistrate. In those circumstances, the Magistrate was required to proceed with the sentencing exercise. The plaintiff has failed to establish that her Honour erred in doing so.
Accordingly, ground 5 has also not been made out.
Ground 2, which is pleaded in the alternative to ground 1, appeals the decisions of the Magistrate pursuant to s 52 of the Appeal and Review Act on the basis that during the case for the defence, Mr Pincott was so intimidated and threatened by the conversation with SC Inkratas that he became incapacitated to the extent he was unable to give his evidence for the defence. That ground, as pleaded, does not plead a question of law alone. Rather, it proports to raise an appeal on a question of fact or a question of mixed law and fact. Accordingly, pursuant to s 53 of the Appeal and Review Act, the plaintiff requires leave to appeal for ground 2. Further, because that ground was raised for the first time by summons filed outside the 28-day period, the plaintiff requires an extension of time to appeal: ss 52(2) and 53(4) Appeal and Review Act and rr 5 and 6 of Part 51B of the Supreme Court Rules 1970 (NSW).
In the absence of any application for leave and in the absence of any evidence seeking an extension of time or explaining why the appeal was not brought within time, and in light of my decision concerning each of the other grounds lacking merit, I am satisfied for the same reasons that ground 2 lacks merit. Accordingly, I refuse leave to appeal and I refuse an extension of time to bring the appeal relevant to ground 2.
For the above reasons, I order:
leave to appeal on the basis of ground 2 is refused; and
the Further Amended Summons dated 7 November 2025 is dismissed.
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Pincott Holdings Pty Ltd
National Heavy Vehicle Regulator
[2003] HCA 6
(1995) 184 CLR 163
(1985) 159 CLR 550
(2003) 214 CLR 1