Citation: Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
Court: Court of Criminal Appeal
Date: 2 August 2019
Judges: Gleeson JA, Johnson J, Price J
Background
The appellant was a heavy vehicle driver convicted in the Local Court at Gundagai of driving a heavy vehicle not complying with loading requirements under s 111 of the Heavy Vehicle National Law (NSW). The vehicle was a tipper truck towing a trailer, stopped at a highway checking station in August 2017. The load included an excavator, excavator buckets, a ripper attachment, loading ramps, a jerry can, and conduit, all contained within the tipper tray.
The appellant appealed to the District Court, which dismissed the conviction appeal but reduced the fine from $2,500 to $1,000 on sentence. A central issue at the District Court was the meaning of a "contained load" under the Load Restraint Guide 2004, a document incorporated by reference into the relevant legislation. The District Court judge concluded that a "contained load" meant a load tightly packed so as to prevent horizontal movement, and found on that basis that part of the load was not properly restrained.
At the appellant's request, the District Court judge stated a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), submitting two questions said to be questions of law arising from the appeal.
Legal Issues
- Whether an extension of time should be granted for the stated case to be filed, given it was lodged well outside the 28-day statutory period.
- Whether the questions in the stated case were properly framed as questions of law, rather than questions of mixed fact and law, and whether the Court of Criminal Appeal could appropriately answer them.
- Whether the District Court judge misdirected himself in law by applying an incorrect definition of "contained load" under the Load Restraint Guide 2004.
- If the load was "contained" within the tipper truck, whether the Heavy Vehicle National Law still required the load to be otherwise restrained.
Decision
Extension of time: The Court granted the extension of time, despite a delay of approximately nine months. Both the appellant's solicitor and the District Court's own processes contributed to the delay. The respondent did not oppose the extension, which weighed in favour of granting it.
Questions of law versus mixed fact and law: The Court examined the two questions stated. The first question, asking whether the facts found could support a conclusion that the load could be dislodged by mild lateral force, was characterised as a question of mixed fact and law. It was therefore inappropriate to answer. The Court confirmed, applying established authority, that a stated case under s 5B is confined to pure questions of law and cannot be used to review factual inferences.
Meaning of "contained load": The Court found that the District Court judge had misdirected himself in law. The Load Restraint Guide 2004 contains a Glossary in section J that defines "contained load" as a load prevented from dislodging from the vehicle by the vehicle structure, gates, sides, racks, headboards, stanchions, or other parts of the load. The judge's definition, "tightly packed so as to prevent horizontal movement," was not drawn from that Glossary and was incorrect. Neither party's legal representatives had brought the Glossary definition to the District Court's attention.
The third sub-question (whether a contained load must also be otherwise restrained) was also declined as inappropriate to answer, given it remained entangled with factual matters not fully resolved on the stated facts.
Orders Made
- Time for submitting the stated case under s 5B extended to 28 March 2019.
- The District Court's order dismissing the appeal against conviction and sentence was set aside.
- The orders imposing a fine of $1,000 and requiring the appellant to pay $1,000 in Local Court costs were quashed.
- No order as to costs, with each party to bear its own costs in the Court of Criminal Appeal.
- The matter remitted to the District Court for disposal in accordance with law.
Key Takeaways
- The Court of Criminal Appeal confirmed that the stated case procedure under s 5B of the Criminal Appeal Act 1912 (NSW) is confined to pure questions of law; questions of mixed fact and law, including whether particular facts support particular inferences, are inappropriate to answer.
- A misdirection on the legal meaning of a defined term constitutes an error of law, capable of being corrected via a stated case even after the District Court appeal has been disposed of.
- The correct meaning of "contained load" under the Load Restraint Guide 2004 is the definition in the Glossary at section J: a load prevented from dislodging by the vehicle structure or other parts of the load. The District Court's substituted definition was legally incorrect.
- Where both parties' legal representatives failed to bring a relevant statutory definition or glossary term to the trial court's attention, costs may be ordered to lie where they fall, regardless of which party ultimately succeeds on the stated case.
- Delays in filing a stated case will not automatically defeat an application for an extension of time, particularly where fault is shared between the applicant and the court's own administrative processes, and the respondent does not oppose the extension.
Legislation and Cases Referenced
Legislation:
- Heavy Vehicle National Law (NSW), s 111(1)
- Heavy Vehicle (Mass, Dimension and Loading) National Regulation, reg 38; Sch 7, s 1
- Load Restraint Guide 2004
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Appeal and Review) Act 2001 (NSW), s 11(1)
Cases:
- The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
- Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41
- Clyne v Wrigley [1980] 1 NSWLR 599
- Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; [2019] HCA 8
- Hammond v The Queen [2013] NSWCCA 93
- Lavorato v The Queen [2012] NSWCCA 61
- R v Chan (1992) 28 NSWLR 421
- R v Madden (1995) 85 A Crim R 367
- R v Rigby (1956) 100 CLR 146
- Sasterawan v Morris [2007] NSWCCA 185
- Thomas v The King (1937) 59 CLR 279
- Tritton v Clarke [2018] NSWCCA 31