Citation: Jesse v Roads and Maritime Services NSW [2020] NSWDC 512
Court: District Court of NSW
Date: 7 September 2020
Judge: Grant DCJ
Background
In August 2017, the appellant, a truck driver, was stopped at a Roads and Maritime Services (RMS) checking station on the Hume Highway at Coolac, NSW. He was driving a tipper truck carrying an excavator and other items. RMS officers inspected the load and issued him a penalty notice of $540 for failing to comply with heavy vehicle loading requirements.
The driver elected to contest the matter in court, triggering a prosecution under s 111(1)(b) of the Heavy Vehicle National Law (NSW) 2014. He appeared unrepresented at Gundagai Local Court, was convicted, and fined $2,500 with a $1,000 professional costs order against him. His conviction appeal to the District Court was dismissed, though the fine was reduced to $1,000 on severity.
The driver then sought a stated case to the Court of Criminal Appeal, which found in 2019 that the District Court judge had misdirected himself on the meaning of "contained" in the Load Restraint Guide, largely because neither party's legal representatives had drawn the defined term "contained load" to his attention. The matter was remitted to the District Court for disposal in accordance with law.
Legal Issues
- Whether the appellant was required to demonstrate error by the Local Court Magistrate as a precondition to the conviction appeal succeeding on remittal
- Whether the Magistrate erred in her interpretation of "contained load" under the Load Restraint Guide
- Whether the prosecution could rely at the appeal on items (a jerry can, loading ramps, and conduit) not particularised in the original charge
- Whether the conviction for failing to comply with heavy vehicle loading requirements was established beyond reasonable doubt on the evidence
- Whether costs should be awarded against the respondent under s 70 of the Crimes (Appeal and Review) Act 2001 on the basis that the prosecution had been conducted improperly
Decision
Grant DCJ confirmed that the appellant was required to demonstrate error in the Local Court before the appeal court could substitute its own decision, applying the principles in Dyason v Butterworth, DPP v AG, and Englebrecht v DPP. However, both parties ultimately conceded that the Magistrate had erred. She had applied her own interpretation of "contained," concluding it meant nothing was protruding from the back of the truck, rather than applying the defined term in the Glossary to the Load Restraint Guide.
The prosecution's particulars in both the penalty notice and the court attendance notice identified the excavator and the excavator buckets as the items forming the foundation of the charge. No mention was made of the jerry can, loading ramps, or conduit also present in the tray. The court ruled that the prosecution could not expand its case to rely on those items at the appeal, as the appellant had come to court prepared only to meet the particularised case.
On the substantive question, the court assessed the evidence about the excavator restraint on the correct legal standard, applying the proper definition of "contained load." The court's findings on the merits of the conviction, and whether the evidence established the offence beyond reasonable doubt, are not reproduced in the available text of the judgment, though the court's treatment of the particulars issue and the costs application indicates those findings were determinative.
On costs, the court rejected the application under s 70(1)(b) of the Crimes (Appeal and Review) Act 2001. Grant DCJ found that although the late shift in the prosecution's case had been unfair to the unrepresented appellant, that unfairness had been remedied by ruling the additional items out of the prosecution case. The other conduct complained of, including the prosecutor speaking over the appellant during cross-examination and objecting to a line of defence, did not amount to improper conduct in the circumstances.
Orders Made
- The conviction appeal was dealt with on the evidence before the Local Court, applying the correct definition of "contained load"
- The prosecution was not permitted to rely on the jerry can, loading ramps, or conduit at the appeal hearing
- The application for costs against the respondent under s 70 of the Crimes (Appeal and Review) Act 2001 was rejected
- The Local Court order for professional costs of $1,000 was quashed
Key Takeaways
- The District Court confirmed that an appellant in a conviction appeal must still demonstrate error by the original court, even where the matter arrives by remittal from a higher court following an error of law finding.
- A defined term in the Glossary of the Load Restraint Guide carries its technical meaning throughout that Guide, and courts are not free to substitute an ordinary-language interpretation where a statutory definition exists.
- Prosecutors are bound by the particulars they provide. Where a penalty notice and court attendance notice identified specific items as the subject of a loading offence, the prosecution could not expand the charge at appeal to encompass additional items from the same vehicle.
- Unrepresented defendants are entitled to face the case as particularised, and procedural unfairness arising from a mid-hearing shift in the prosecution's case can be remedied by excluding the additional particulars rather than by awarding costs.
- Under s 70 of the Crimes (Appeal and Review) Act 2001, a costs order against a prosecuting authority requires a finding of improper conduct; a difficult or unfairly managed hearing does not automatically meet that threshold where any unfairness has been otherwise remedied.
Legislation and Cases Referenced
Legislation
- Heavy Vehicle National Law (NSW) 2014, s 111(1)(b)
- Crimes (Appeal and Review) Act 2001, s 70
- Criminal Appeal Act 1912, s 5B
- District Court Act 1973
Cases
- Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
- Dyason v Butterworth [2015] NSWCA 52
- Director of Public Prosecutions v AG [2015] NSWCA 218
- Englebrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Johnson v Miller (1937) 59 CLR 467