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Local Court 4 October 2017

Roads & Maritime Services v Dranmore Pty Ltd & Ors

[2017] NSWLC 22

Traffic & driving
CRIMINAL SPECIFIC OFFENCES HEAVY VEHICLE RELATED LEGISLATION SPEED LIMITER DEVICES COMPLIANCE REASONABLE STEPS DEFENCE

Citation: Roads & Maritime Services v Dranmore Pty Ltd & Ors [2017] NSWLC 22
Court: Local Court of New South Wales
Date: 4 October 2017
Judge(s): Magistrate T Tsavdaridis

Background

The defendants were five related trucking companies and three directors operating under the Fred's Interstate Transport Group, based in Shepparton, Victoria. Roads and Maritime Services (RMS) prosecuted them for 217 offences under now-repealed New South Wales heavy vehicle legislation, arising from alleged speed limit violations occurring in 2011 and into early 2012. Court Attendance Notices were filed in 2012, but interlocutory proceedings in the Supreme Court and a lengthy hearing in the Local Court delayed a final determination until 2017.

The charges fell into three categories: strict liability speeding offences against the corporate operators, chain-of-responsibility offences requiring operators to ensure drivers did not speed, and derivative liability offences against individual directors flowing from the corporate entities' primary liability. Each category carried a corresponding statutory defence, the onus of which rested on the defendants.

Before the hearing, the prosecution withdrew 20 charges. Midway through the hearing, one company pleaded guilty to four charges concerning speed limiter compliance. The remaining contested charges were resolved after 12 hearing days, voluminous exhibits, and extensive written submissions.

Legal Issues

  • Whether the RMS's detection technology (TIRTL devices, Point-to-Point cameras, and Safe-T-Cam cameras) was sufficiently accurate and reliable to prove, beyond reasonable doubt, that the defendants' vehicles committed the alleged speeding offences at the stated times, dates, and locations.
  • Whether there was sufficient evidence to establish each element of the operator and director charges, including the element of operator control and direction over specific vehicles on specific dates.
  • Whether the defendants proved, on the balance of probabilities, the statutory defence of having taken all reasonable steps (and exercised due diligence) to prevent the commission of the speeding offences, such that the prosecution could not then disprove those facts beyond reasonable doubt.
  • How "reasonable steps" is to be assessed in the chain-of-responsibility context, including whether measures may be considered collectively rather than individually.

Decision

Issue 1: Reliability of speed detection technology

The Magistrate accepted the prosecution's evidence about the RMS's detection systems as comprehensive, persuasive, and largely incontrovertible (at [84]). TIRTL devices triggered P2P and STC cameras to capture time-stamped images of heavy vehicles, with data cross-checked across multiple sightings to produce an extremely low probability of incorrect identification (at [66]-[68]). Speed measurements carried an uncertainty of less than plus or minus 0.3 per cent, within approved tolerances (at [70]). The absence of one data-handling engineer (Mr Penno) from the witness list did not undermine the prosecution's case, particularly given the defence's own concession during the hearing that provenance of the data was no longer in issue (at [79]-[81]). The defence expert's criticism of the TIRTL methodology was rejected as resting on a fundamental misunderstanding of how the technology measures vehicle dimensions (at [82]-[83]). The Magistrate was satisfied beyond reasonable doubt that each identified vehicle committed a speeding offence at the time, date, and location alleged (at [85]).

Issue 2: Insufficiency of evidence on four specific charges

Four charges against two of the corporate defendants (Laudrup and Hommes) were dismissed because the agreed facts did not establish that the relevant company controlled or directed the specific vehicle on the specific offence date charged. The charges were date-specific strict liability offences requiring proof of each element, and no inference sufficient to satisfy the criminal standard could be drawn from surrounding admissions or typographical inconsistencies in the records (at [45]-[46]).

Issue 3: The reasonable steps statutory defence

Although the prosecution proved the underlying speeding offences beyond reasonable doubt, the Magistrate was satisfied that the defendants established their statutory defences on the balance of probabilities, and that the prosecution failed to negative those defences beyond reasonable doubt (at [122]-[123]). The defendants' measures included training programs, driver induction, manuals, newsletters, trip plans, work diaries, job safety analyses, ECM and speed limiter checks, verbal and written warnings, dismissals for non-compliance, reactive and proactive maintenance, and engagement of an accredited external heavy vehicle auditor and consultant (at [110]). The Magistrate found the evidence of both the consultant auditor and the managing director to be credible, compelling, and corroborative of each other (at [106]-[107]).

Issue 4: Collective assessment of reasonable steps

The Magistrate held that individual measures, each potentially insufficient in isolation, may together demonstrate the requisite reasonableness when considered collectively (at [115]). Reasonable steps do not need to eliminate the offending conduct entirely; they must be genuinely targeted at preventing it (at [114]). The wide and non-exhaustive factors the court may consider under clause 165 of the Road Transport (General) Regulation 2005 (NSW) supported a flexible, holistic evaluation rather than a prescriptive checklist approach (at [117]). The court observed that nothing in the evidence suggested a culture of unsafe or dangerous heavy vehicle practices within the defendants' organisations (at [118]).

Orders Made

  • All charges brought under cl.156(3) Road Transport (General) Regulation 2005 (NSW) and s.178(1) Road Transport (General) Act 2005 (NSW): verdicts of not guilty entered and all charges dismissed.
  • Four specified charges dismissed for insufficient evidence of operator control and direction beyond reasonable doubt (Seq 18 in 2012/168266; Seq 8 in 2012/174767; Seq 45 in 2012/173364; Seq 6 in 2012/177268).
  • Four charges under s.69C(1) Road Transport (Safety and Traffic Management) Act 1999 (NSW): pleas of guilty by the fifth defendant (Roadmaster) accepted; sentence date to be fixed.
  • Twenty charges withdrawn by the prosecution: dismissed accordingly.

Key Takeaways

  • In chain-of-responsibility speeding proceedings under the now-repealed NSW heavy vehicle legislation, the prosecution bore the onus of proving all elements of each offence beyond reasonable doubt, while defendants bore the onus of proving statutory defences on the balance of probabilities; once defendants raised those defences, the prosecution then had to negative them to the criminal standard (at [34]-[37]).

  • Reasonable steps in the chain-of-responsibility context need not be entirely successful in eliminating speeding conduct; what is required, assessed objectively, are steps genuinely targeted at preventing the conduct (at [114]). Measures that might be individually insufficient can satisfy the defence when assessed collectively (at [115]).

  • Strict liability speeding charges are date-specific and require proof of each element, including operator control and direction of the relevant vehicle on the precise date alleged; where agreed facts do not cover the actual offence date and no inference to the criminal standard can be drawn, the charge must be dismissed (at [45]-[46]).

  • The Local Court accepted that TIRTL-based speed detection technology, combined with P2P and STC camera systems, produced identification and speed measurements of sufficient statistical reliability to prove offences beyond reasonable doubt, with exponentially reduced error probability where multiple confirmed sightings existed (at [66]-[72]).

  • Where a defence concedes during hearing that data provenance is no longer in issue, the absence of a particular witness in the prosecution's chain of evidence cannot later be cast as a failure in the prosecution's case (at [79]-[81]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW) s175(3)
- Evidence Act 1995 (NSW) ss141 and 191
- Road Transport (General) Act 2005 (NSW) (Repealed) ss 6, 21, 178
- Road Transport (General) Regulation 2005 (NSW) (Repealed) cll 152, 156, 165
- Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) s 69C
- Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) s150

Cases
- Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
- Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1
- Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132
- Woolmington v DPP [1935] AC 462