Allied Interstate (Qld) Pty Ltd v Barnes

[1968] HCA 76

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

ALLIED INTERSTATE (QLD.) PTY. LTD. v. BARNES

(1968) 118 CLR 581

29 November 1968

Evidence

Evidence—Inference of inter-State character of journey of loaded vehicle drawn from evidence—Evidence in a document admitted at trial included a hearsay self-serving statement of driver's intention of travelling inter-State—Other evidence of vehicle whilst loaded and empty having been observed in other State—Sufficiency of facts in evidence to support inference.

Decisions

November 29.
The following written judgments were delivered:-
BARWICK C.J. The appellant was charged before a stipendiary magistrate with having used an articulated motor vehicle to carry goods on a public road in Queensland without a permit as required by The State Transport Act of 1960 (Q.) (the Act). His defence was that the Act did not apply to the carriage on which he was then engaged because he was taking his load from Brisbane to Sydney. Deciding the matter on a balance of probabilities, the magistrate decided that the appellant was so engaged and accordingly dismissed the information laid against him by the respondent. Upon review, the Full Court of the Supreme Court of Queensland by majority set aside this dismissal and returned the matter to the magistrate with a direction to convict the appellant. The appellant now appeals to this Court by its special leave against the order of the Supreme Court. (at p584)

2. The terms of the Act and the detail of the facts and circumstances evidenced before the magistrate are fully set out in the reasons for judgment of my brother Owen which I have had the advantage of reading. I have also had the advantage of reading the reasons for judgment prepared by my brother Menzies. I agree with the conclusion which each of their Honours has reached but would wish to add some observations of my own. (at p584)

3. Counsel were prepared to discuss the question as to where the onus of proof lay in a case such as the present when a defendant claims that the carriage in respect of which he is charged was an inter-State carriage. However, as it did not appear that that question would necessarily arise the Court did not hear argument on the matter, reserving the parties' rights if a decision on the point should become necessary. As will appear, however, my brothers Menzies and Owen and I are able for our part to dispose of the appeal without expressing any view on that question. (at p584)

4. The magistrate properly had in evidence before him the goods and vehicle checking slip completed and signed by an authorized officer. However, he did not use it as material available to him in deciding whether the carriage on which the appellant was engaged at the time of the interception of the vehicle on the Lockyer Darling Downs Highway was an inter-State carriage. In my opinion, in this he was in error. The document being in evidence could be used as evidence of the nature of the material being carried by the defendant's vehicle and as to the destination to which the driver was taking it. But its weight in relation to these matters was a matter for close consideration. The possible sources of the information it contains would need to be considered in this connexion. However, I cannot subscribe to the view that, of necessity, the information set out in the checking slip as to the goods on the vehicle and their destination was wholly derived from the driver. The officer said at one stage he had no independent recollection of the matters recorded on the checking slip: but later said that he had observed the nature of the load. He claimed to have been told the destination of the load by the driver. Further, the officer had a right to interrogate the driver of the vehicle who was liable to criminal penalties for false answers: see ss. 70 (1) (f); 70 (3) and 72 (1) (d) of the Act. The fact that a statement by the driver of the vehicle that the destination of his load was Sydney might be regarded as self-serving would not make the information in the checking slip, otherwise properly in evidence, irrelevant in the resolution of the nature of the carriage, although the tender of a self-serving statement not otherwise in evidence, and having no other basis of admissibility, would be rejected. No doubt the weight of self-serving statements which are for some other reason in evidence may not always be great; yet where, as here, the statement is made under liability to immediate check and under penalty for falsity, it is, in my opinion, impossible not to give it any weight. Indeed, having regard to the whole purpose of the maintenance of the checking station and the officer's duty in relation to vehicles passing through it and to their loading, the weight of the evidence provided by the slip, in my opinion, was considerable. (at p585)

5. However, although the magistrate did not resort to the checking slip in this connexion, he did conclude that the carriage was interState because on the probabilities the journey in New South Wales observed on 20th May was a continuation of the same journey as was observed at Gailes on 19th May, by which he meant that it was the same journey carrying the same load. It is said that because what is thought to be an inordinate time elapsed between the time the vehicle cleared the checking station and the time it passed through Jennings, it can be inferred that the load was changed by delivery of the gyprock within Queensland and by the loading of other goods before the border was crossed. In my opinion, this is nothing more than a speculation: I much prefer the reasoning of the magistrate. If the facts on the checking slip are added to the material the magistrate used for his conclusion, I would see no ground whatever for disturbing his finding. (at p585)

6. In my opinion, the appeal should be allowed. (at p585)

McTIERNAN J. The appeal has been brought pursuant to special leave given by this Court from the Supreme Court of Queensland. It arises from a complaint under The Justices Act, filed by the present respondent, against the appellant for contravening s. 49 of The State Transport Act. I will refer to the appellant as the defendant and to the respondent as the complainant. The defendant disputed the charge at all points. But it also made an affirmative defence under s. 92 of the Constitution that at the time of the alleged contravention the vehicle in question was engaged on an inter-State journey between Brisbane and Sydney. The magistrate found that the defendant used the vehicle in question for the carriage of goods on 19th May 1965 at Gailes in Queensland which is on the Lockyer-Darling Downs Highway. But the magistrate found in favour of the defendant on its defence under s. 92. Accordingly he dismissed the complaint. The complainant who was acting in the matter on the authority of the Commissioner of Transport sought and obtained from the Supreme Court an order to review the decision and order of the magistrate, under s. 209 of The Justices Act. On the return of the order to review, pursuant to s. 213, the majority of the Supreme Court decided, on a consideration of the evidence and materials adduced and brought before the magistrate, the defendant failed to discharge the onus of proof which rested on it to prove that on 19th May the defendant used the vehicle for the carriage of the goods then upon it in the course of or for the purpose of inter-State trade. The rule as to the onus of proof was restated by Gibbs J. in Horne v. Tweed River Transport Pty. Ltd.; Ex parte Horne (1967) 61 QJPR 114, at p 117 . The passage reads thus:

"If the respondent's use of the vehicle for the carriage of the goods was in the course of or for the purpose of inter-State trade, the respondent would have committed no offence for, because of s. 2 of The State Transport Act and s. 92 of the Constitution, s. 49 would not apply. The respondent bore the onus of proving the facts necessary to attract the protection of s. 92, either directly or by way of s. 2 of The State Transport Act (Madsen v. Western Interstate Pty. Ltd. (1963) Qd R 434 ; Horne v. Perry (1968) Qd R 29 ; Madsen v. Tweed River Transport Pty. Ltd.; Ex parte Madsen (1967) Qd R 534 and see also Colbert v. Tocumwal Trading Co. Pty. Ltd. (1964) VR 820 ; Day v. Hunter (1964) VR 845 and Ridland v. Dyson (1959) SASR 72, at p 74 ). The onus of course was to be discharged on the balance of probabilities."

The Court ordered pursuant to powers conferred by s. 213 of The Justices Act that the decision and order of the magistrate be set aside, that the matter be remitted to him and that he convict the defendant. The application for special leave to appeal was made to this Court principally on the ground that the rule applied as to the onus of proof is not correct. Argument on this contention was postponed to consideration of the question whether if the rule be accepted as right the onus of proof was sustained by the evidence and materials adduced and brought by the appellant before the magistrate. (at p587)

2. There was proof in support of the complaint that the defendant on 19th May 1965 at 5 a.m. used one of its commercial goods vehicles, a prime mover and trailer, on the Lockyer-Darling Downs Highway at Gailes in Queensland for the carriage of goods. The evidence was given by the officer on duty attending the weighbridge at Gailes. He was the only witness called by the complainant, respondent in this Court. The defendant did not call anyone to give evidence. Three documents produced by the complainant were tendered by the appellant. The magistrate admitted these documents into evidence. The first document is a departmental form which the officer called by the complainant filled in when he checked the vehicle in question at Gailes. He used this document to refresh his recollection of the facts of which he gave evidence. These facts were that the vehicle arrived from the direction of Brisbane and was travelling in the direction of Ipswich ; the registered numbers of the prime mover and trailer ; the owner's name on the vehicle ; and the class of goods on the vehicle. The witness said the goods were gyprock. However, the magistrate said :

"I decide therefore the loading is proved but only as to the existence of this loading and not that it was gyprock."

The driver or no other person gave evidence as to what the load was. The witness was cross-examined to elicit that, as appeared on the form, the driver said in answer to two questions in the form that the vehicle was travelling from Brisbane to Sydney and would cross the border at Wallangarra, "a.m.", that day which was 19th May 1965. The document was tendered on behalf of the defendant and admitted by the magistrate. It has been stated that the defendant called no one as a witness, not even the driver of the vehicle. The magistrate said in regard to this document that the driver's answers, the part of the document on which the defence relied, were hearsay evidence and the defendant's case was not advanced by putting in the document. All the learned judges of the Supreme Court were of the opinion that the answers of the driver, reported in the document, were self-serving statements, and that the magistrate could decide their weight as evidence. With respect I agree with this opinion. The second and third documents were produced by the complainant and tendered by the defence. The magistrate admitted each of them. They were returns prepared by the defendant in compliance with legislation enacted by the States of Queensland and New South Wales providing for contribution to the maintenance of roads by carriers whose vehicles use the roads for carriage of goods. One return includes a statement of journeys attributed to the vehicle in question on roads in Queensland during May 1965 : the other contains a statement of this kind in respect of journeys on the roads of New South Wales. The Queensland return includes a journey starting on 19th May 1965 at 5 a.m. from Brisbane via Gailes finishing at Jennings on the same day at 9.30 p.m. Jennings is in New South Wales, two miles from Wallangarra which is in Queensland next to the border. The statement contains a column headed "Road miles travelled in Queensland". The number of miles appearing in that column stated to have been travelled by the vehicle in question is one hundred and fifty-four miles. According to this return the time taken by the vehicle in question to travel this distance was sixteen hours and thirty minutes. The inference from these particulars of the journey on 19th May is that the vehicle in question - a prime mover and trailer - travelled at the average speed about nine miles per hour. According to the statement of journeys in the New South Wales return the vehicle left Jennings at 9.30 p.m. on 19th May 1965 and travelled via Singleton to Sydney and arrived in Sydney at 10.30 p.m. on 20th May 1965. The road miles travelled on the journey from Jennings to Sydney is stated to have been four hundred and eighty-one. It appears that the time taken to travel this number of miles was thirteen hours. The inference is that between Jennings and Sydney the vehicle in question travelled at an average speed of thirty-seven miles per hour. What the magistrate said in his summing-up about these returns was as follows :

". . . I treat (them) as complete proof of the use by the defendant company at the time claimed by the complainant of the vehicle in question".

The defendant made no admission in court in regard to the use of the vehicle in question at Gailes on 19th May at the time it was intercepted on the highway. The magistrate continued :

"They (the returns) are of necessity lodged as exhibits by the defendant. They were lodged without objection by the complainant who nevertheless does not admit the statement contained in them." "On the broad view" - the magistrate said - "I regard them as self-serving statements rather than admissions against the interest of the defendant and give no weight to them as proving an inter-State journey. They may be a correct statement, equally they may be an incorrect version of an actual journey and I chose to place no reliance on them."

I think that the magistrate was right in holding that these returns were self-serving statements. The summing up of Hart J., in his judgment, on the form filled in by the officer on duty at the Gailes weighbridge (Ex. 1) and the Queensland road maintenance return (Ex. 6) is as follows:

"Here Ex. 6, which is certainly evidence against the respondent (i.e., the defendant) shows that the time of starting of the vehicle (on 19th May 1965) was at 5 a.m. and that it arrived at Jennings at 9.30 a.m." "Exhibit 1 shows" - Hart J. continued - "that the vehicle was intercepted at Gailes at 4.50 a.m. and that the driver expected to cross the border at Wallangarra before noon on 19th May 1965. Exhibit 6 shows that the distance from Brisbane to Jennings was one hundred and fifty-four miles; that in the month of May the vehicle in question made four journeys from Brisbane to Jennings; that on the first journey it took sixteen hours; on the second, twenty-two hours; on the third, the one in question, sixteen hours; and on the fourth, thirteen hours. On the first occasion it did not return through Jennings but on the second it returned from Jennings to Brisbane in six hours, on the third in seven hours and on the fourth in six and a half hours."

This analysis is correct.

"It" - the vehicle, Hart J. further said - "appeared to be running to a pattern on 19th May despite the fact that the driver told Arnold (the officer on duty at Gailes, the witness called by the complainant) that it would be at Wallangarra before noon which it should have been if it went straight there." "The clear inference" - Hart J. concluded - "is that the driver went somewhere else or did something else on the way."

It is, I think, likely that the carriage of the goods on the vehicle, when it was intercepted at Gailes, to Sydney was not the exclusive business of transportation on which the vehicle was engaged when it left Gailes. In his evidence the witness Arnold said the vehicle travelled from Gailes in the direction of Ipswich. Referring to this fact the magistrate made this important observation:

"The vehicle left in the direction of Ipswich, which is in the direction also of cities on the Darling Downs and Western Queensland and by way of several crossings, New South Wales, also."

In the light of the particulars in Ex. 6 the statement of the driver recorded in Ex. 1 that he expected to cross the border before noon on 19th May cannot be accepted as true. (at p589)

3. In addition to the documents tendered by the defendant, it brought before the magistrate facts which the complainant had agreed to admit. The magistrate's ultimate finding in favour of the defendant was made on those facts. Having held that none of the documents was sufficient to support the defendant's claim for the protection of s. 92 of the Constitution, the magistrate said:

". . . the defendant is not obliged to go any further than to show to the Court by any means at his disposal that the journey was an inter-State one and he is entitled to the protection of s. 92 of the Constitution."

The magistrate then turned to the admitted facts. They were, as stated by him, that the vehicle in question was seen "loaded" at a point near Singleton, New South Wales on 20th May 1965 and later the same day nearer Sydney "unloaded"; on the following day "loaded" at Singleton proceeding generally northwards. His ultimate finding reads:

". . . On the times and places of sightings being coupled with the interception at Gailes on 19th May 1965, I am of the opinion that the defendant has no further obligation to be discharged by him. It is evident the vehicle travelled on to the vicinity of Sydney. I think the probabilities are it was a continuation of the same journey and not a different journey. Naturally there could have been a change of loading but if so where and when is extremely speculative. There is nothing whatever to indicate this to be the case. "Where there is shown to be a journey of the same vehicle in another State under circumstances as to time and distances which are consistent with being one journey and a continuation of its earlier travel in Queensland I think there is onus on the complainant to show either by inference or by direct evidence that it is at least equally likely it was not as it appears. From that you will deduce that I dismiss the complaint."

The evidence does not show that the vehicle travelled from Gailes to Singleton without stopping to deliver any of the goods which were being carried on the vehicle at Gailes. Nor does the evidence show that the loading of the vehicle when seen near Singleton consisted of the goods which it was carrying when at Gailes. What is not proved in respect of these matters cannot be presumed. The onus rested on the defendant to adduce proof that the journey from Gailes to Singleton was continuous and the vehicle carried the same load of goods all the way. In the circumstances of the case it is inherently probable that after the vehicle left Gailes at 5 a.m. on 19th May "in the direction of Ipswich" it travelled to a town or place on the Darling Downs or in Western Queensland, or both these districts, and delivered goods. Apparently the vehicle travelled all day on roads in Queensland, as according to the defendant's admission in Ex. 6 it did not finish its journey in Queensland until 9.30 p.m. If what happened was that the load which the vehicle had at Gailes remained intact until after the vehicle crossed the border, surely the defendant could have called a witness to prove the fact. The fact that the defendant did not do so must weigh against it: Blatch v. Archer (1774) 1 Cowp 63, at p 65 (98 ER 969) cited in Morgan v. Babcock &Wilcox Ltd. (1929) 43 CLR 163, at p 178 . The magistrate, in my opinion, ought to have decided that the defendant failed to prove on the balance of probabilities that the carriage of the goods, on the vehicle at Gailes on 19th May, was exclusively a transaction of inter-State transportation. Even if it were partly so there was, on that hypothesis, a concurrent transaction of intra-State transportation, and the defendant was, as regards that transaction, guilty of an offence under s. 49 of The State Transport Act: Pioneer Express Pty. Ltd. v. Hotchkiss (1958) 101 CLR 536 ; and Harris v. Wagner (1959) 103 CLR 452, at pp 464, 465 . (at p591)

4. As the ground of appeal, denying the defendant bore the onus of proving he was carrying the goods on the vehicle at Gailes inter-State, has not been argued, I decide the appeal on the basis that the defendant bore an onus of proof as described by Gibbs J. in Horne v. Tweed River Transport Pty. Ltd.; Ex parte Horne (1967) 61 QJPR 114 . (at p591)

5. I would dismiss the appeal. (at p591)

MENZIES J. The appellant was charged with an offence under s. 49 of The State Transport Act of 1960 (Q.), for using a vehicle upon the Lockyer-Darling Downs Highway for the carriage of goods without a permit. The magistrate dismissed the complaint. He did so because he considered that upon the evidence the probabilities were that the vehicle was travelling from Queensland to New South Wales carrying goods for hire when the offence was alleged to have been committed and that the carriage was therefore entitled to the protection of s. 92 of the Constitution. The Full Court of the Supreme Court of Queensland, Sheehy S.P.J. and Hart J. (Wanstall J. dissenting) set aside the order of the magistrate and ordered that the matter be remitted to him to enter a conviction against the appellant. This appeal from the order of the Full Court has been brought by special leave. (at p591)

2. The evidence showed that at Gailes in Queensland, where the vehicle was checked and weighed at about 5.00 a.m. on 19th May 1965, it was travelling towards Ipswich loaded with goods and that the driver, in response to questioning by an authorized officer, stated that the vehicle was upon an inter-State journey from Brisbane to Sydney carrying gyprock and would cross the border at Wallangarra during the morning. There was also evidence that the vehicle was seen at Singleton in New South Wales on 20th May 1965 loaded and travelling south, and later the same day was again seen at Berowa, nearer to Sydney than Singleton, but at this time without any load. On 21st May it was again seen at Singleton, but travelling north. There was also in evidence a return made by the appellant in August 1965 of the journeys made by the vehicle in May 1965 which showed that on 19th May 1965 the vehicle crossed the Queensland/New South Wales border at Jennings at 9.30 p.m. Jennings is a township of New South Wales across the border from Wallangarra in Queensland. (at p592)

3. In reversing the magistrate's decision, Hart J., speaking for himself and Sheehy S.P.J., said:

"In his judgment the magistrate does not seem to have sufficiently distinguished the load from the vehicle. He assumed that the fact that the vehicle was seen loaded at a point near Singleton, New South Wales, on 20th May and later on the same day unloaded nearer Sydney put an onus on the complainant to show that the whole load was not the subject of inter-State commerce. He said, 'Naturally there could have been a change of loading but if so when and where is extremely speculative'. If the matter was in doubt it should have been resolved against the respondent."

It is to be observed, however, that the magistrate's course of reasoning was that the loaded vehicle was seen at Gailes on 19th May and at Singleton on 20th May; that it was probable that at Singleton it was continuing the journey begun at Brisbane; and there was nothing to indicate any change of loading in the meantime. The suggestion that there might have been a change of loading the magistrate regarded as mere speculation. (at p592)

4. It is, of course, well established that had the vehicle when intercepted at Gailes been carrying some goods to a destination in Queensland, the fact that it was also carrying goods to a destination in New South Wales would not have made the intra-State carriage part of inter-State trade so as to protect the carrying as a whole from the operation of The State Transport Act. The magistrate, however, as has already been seen, dismissed the speculation that there was intra-State carriage of the goods upon the journey of the vehicle from Brisbane to Sydney. In this the magistrate was correct and the conclusion which he drew from the evidence was certainly one that was open to him. Indeed, the goods vehicle checking slip, that was in evidence and was compiled by the checking officer at Gailes, included the following information about the loading of the vehicle:

"Loading Gyprock Scale Reading 21 tons 5 cwts. From Bne To Syd Is load carried for hire or reward or for business purposes Hire

If on an interstate journey - Ask - When and where did or will the vehicle cross the border? Wgarra AM 19.5.65".

I read this as meaning that a load of gyprock was being carried from Brisbane to Sydney. This would be evidence enough, even in the absence of anything else, to justify the application of s. 92 of the Constitution to the carriage of goods in Queensland. Although the magistrate did not rely upon this evidence to the fullest extent possible in reaching his conclusion, the goods vehicle checking slip supports his conclusion up to the hilt. I agree with the dissenting judgment of Wanstall J. in the Full Court, and his Honour's elaborate discussion of the evidence has made it possible for me to deal with the matter shortly. (at p393)

5. In my opinion the appeal should be allowed. (at p393)

WINDEYER J. I agree that this appeal should be allowed. I make some observations for myself because in the result we are differing from the majority in the Supreme Court of Queensland. (at p393)

2. The prosecution was under s. 49 of The State Transport Act of 1960 (Q.), for an offence of using on a Queensland road a vehicle for the carriage of goods without a permit under the Act. (at p393)

3. Section 47 of the Act is as follows:

"Upon proof of the use of any vehicle upon a road alleged in a complaint for an offence against sections forty-eight or forty-nine of this Act, the adjudicating court shall presume that this Part of this Act applies to such use unless the contrary is proved to its satisfaction."

That provision, it seems to me, must be read with s. 45 of the Act, which sets out a variety of uses of vehicles to which Pt VI (ss. 45-53) "does not apply". The uses exempt by s. 45 - the burden of proving which is, by s. 47, cast upon an accused - do not include a use in the course of trade, commerce and intercourse among the States within s. 92 of the Constitution. Such use is, however, expressly put altogether outside the purview of the Act by s. 2. (at p393)

4. It is arguable that in proceedings for an offence under the Act the prosecution must negative that the accused was engaged in inter-State trade. On the other hand it can be argued that the burden of establishing the protection or immunity which s. 92 of the Constitution gives lies upon a person who invokes it. In a case such as the present it can be said, the facts being within the knowledge of an accused, that the prosecution is not required to prove a negative. For this proposition there is old authority : see R. v. Turner (1816) 5 M &S 206 (105 ER 1026) . It seems to me that the correct view is that, if the facts proved by the prosecution point to an offence against the Act, the accused will only escape liability if he adduces evidence which raises at least a reasonable doubt. In the final result it lies on the prosecution to prove beyond reasonable doubt that an offence against the Act was committed. (at p594)

5. These questions of the burden of proof of the application of s. 92 are no doubt debatable. There are decisions and dicta in the courts of several States which would have to be taken into account if it should become necessary to resolve them. Counsel was prepared to argue the matter in this case. However, we excluded it from the argument, as it seemed that the case might be decided without that. And it has proved to be so : for, if the true position is that a person accused of an offence against this Act who relies upon s. 92 to exonerate him must prove his case, the appellant did so. (at p594)

6. The magistrate was satisfied that, on the occasion in question, the appellant's vehicle was being used to carry its load from Queensland into New South Wales as an act of inter-State commerce. That conclusion was open on the evidence which the magistrate had before him. It may be that the prosecution was hampered in presenting its case by what seems to have been an inordinate delay on its part. The acts alleged as an offence occurred on 19th May 1965 : no complaint was laid until 18th March 1966 : the case did not come on for hearing before the magistrate until 14th November 1966. It had to be decided on the facts then proved. As the magistrate said, he was not to engage in speculation. (at p594)

7. I need not spend much time on the document recording the answers which the driver of the vehicle gave when on 19th May 1965 he was questioned by the weighman employed by the Department of Transport, who was a witness at the trial. The witness was an authorized officer to ask the questions. The driver was required by law to answer them. It is not suggested that his answers were not correctly recorded. The document having been used by the witness to refresh his memory, it got into evidence. I am unable to see why the magistrate could not give such weight as he thought fit to it as a record of what the driver said. In that sense it was as Hart J. said, rightly, in my opinion,

". . . evidence both for the appellant and the respondent of all that is contained in it. The weight of the self-serving statements is a matter for the court".

$PA595 By "self-serving" statements his Honour meant such of the statements that the driver made as tended to shew that he was, for his employer's purposes, driving the loaded vehicle from Queensland into New South Wales. Whatever view be taken of this document, it certainly does not contradict the inference which independently of it the magistrate could draw, and drew, from the evidence. (at p594)

OWEN J. This is an appeal by special leave from an order of the Full Court of the Supreme Court of Queensland made in proceedings to review the decision of a stipendiary magistrate under s. 209 of the Justices Act. The learned magistrate had dismissed a complaint laid against the appellant that it had contravened s. 49 of The State Transport Act of 1960 in that it had, on 19th May 1965, on the Lockyer-Darling Downs Highway used a vehicle, namely a towing unit and trailer for the carriage of goods for the carriage of which no permit had been issued in accordance with the Act. The Full Court by a majority (Hart J. and Sheehy S.P.J., Wanstall J. dissenting) set aside the order of dismissal and remitted the case to the magistrate with a direction that he convict the appellant. (at p594)

2. Section 49 of The State Transport Act provides that:

"A person who at any time uses . . . on any road a vehicle for the carriage of goods shall, unless such goods are being at that time carried upon that vehicle under and in accordance with a permit under this Act issued in respect of such vehicle . . . be guilty of an offence against this Act. . . ."

And, by s. 2, the Act is to be

"read and construed so as not to exceed the legislative power of the State to the intent that where any enactment contained in this Act . . . would but for this section have been construed as being in excess of that power it shall nevertheless be a valid enactment . . . to the extent to which it is or was not in excess of that power".

The complaint, which was laid against the appellant in March 1966, ten months after the offence was alleged to have been committed, came on to be heard before the stipendiary magistrate in November 1966 and by that time the only witness called by the prosecution had little or no independent recollection of the events of 19th May 1965 about which he was called to depose. He was a man named Arnold employed by the Department of Transport as a weighman at a weighbridge station at Gailes near Brisbane. It was one of his duties to fill in a printed form described as a "goods vehicle checking slip" and, in the witness box, this was handed to him so that he might refresh his recollection. With this assistance he was able to say that at 4.50 a.m. on 19th May 1965 the vehicle to which the complaint referred and which was travelling from Brisbane in the direction of Ipswich stopped at the weighbridge. He asked the driver a number of questions and entered his answers on the checking slip. In so doing he was acting under s. 70 (1) (e) and (f) of The State Transport Act which provide that an authorized officer - and he was such an officer - may

"(e) make such investigation and inquiry as may be necessary to ascertain whether the provisions of this Act . . . are being complied with in respect of any goods by any person using . . . any vehicle to carry by roads such goods . . . or any person operating . . . any vehicle in the course of the carriage by roads of such goods; (f) question with respect to matters under this Act or appertaining to goods which, or which he has reason to suspect have been or are intended to be carried by road, any person whom he finds in any place, and require any person to answer the questions and to make and subscribe a statutory declaration of the truth of his answers."

By s. 70 (3),

"A person thereunto required by an authorised officer shall not fail to answer any question put to him by such authorised officer. . . ."

If the person questioned fails to answer a question put to him pursuant to the Act by an authorized officer or if he gives an answer which is, in any respect, false or misleading, he commits an offence against s. 72 of the Act. (at p596)

3. The checking slip, which was tendered by the defence and admitted without objection, is in the following terms:

"GOODS VEHICLE CHECKING SLIP

Qld. Reg. No(s). (Truck NVG 363 (Trailer QYL 519

Time 4.50 A.m. Make Albion Station GAILES Tare 9.10 Travelling Towards IPSWICH Aggregate Weight) of Reg. Capacity) 25.10

Owner's Name ALLIED T'PORT PTY. LTD. Address Ipswich Rd., Rocklea Bne. Ask - Are you the owner of this vehicle; No Driver's Name DOUGLAS TROTHEROE Address 207 Victoria Ave., Margate, Bne. If owned by a partnership of firm - Ask - Are you a partner or member of the firm? No.

Loading Gyprock Scale Reading 21 Tons 5 Cwts. From Bne To Syd Is load carried for hire or reward or for business purposes Hire

If on an interstate journey - Ask - When and where did or will the vehicle cross the border? Wgarra A.m. 19.5.65

Trip Sheet or) - Class . . . . Issuing Office. . . . Permit No.) Log Book Sheet No. - Date of last entry . . . . Authorized)

Officer's Signature) C. M. Arnold DATE 19.5.65

M52454 (at p597)

4. Evidence was also given that the appellant was the owner of the vehicle. Two other documents were tendered by the defence and were admitted in evidence without objection. One of these was a return made by the appellant under the Queensland Roads (Contribution to Maintenance) Act for the month of May 1965 which contained an entry that on 19th May 1965 the vehicle in question had left Brisbane at 5 a.m. and had travelled via Gailes to Jennings (which is in New South Wales just across the Queensland border) arriving there at 9.30 p.m. The other was a return made by the appellant under the New South Wales Road Maintenance (Contribution) Act. It contained an entry that on 19th May 1965 the vehicle had left Jennings at 9.30 p.m. and had travelled thence to Sydney, arriving there at 10.30 p.m. on 20th May 1965. Certain oral admissions were also made by the prosecution. They were that the vehicle, which was then loaded, was seen near Singleton in New South Wales on 20th May 1965 travelling in a southerly direction ; that later on the same day the vehicle was seen on the northern outskirts of Sydney travelling south but without a load ; and that on the following day, 21st May 1965, it was again seen at Singleton, loaded and travelling north in the direction of Brisbane. (at p597)

5. The submission made to the learned magistrate on behalf of the appellant was that such evidence as there was in the case showed that on 19th May 1965 the vehicle was being used for the purpose of the carriage of goods inter-State, namely from Queensland to New South Wales, and that s. 49 of The State Transport Act, when read with s. 2, had therefore no application. His Worship upheld the submission and dismissed the complaint. In giving his reasons he said that he regarded the entries in the returns as containing admissions by the appellant that on the relevant date the vehicle was being used by it but, although those admissions were that it was being used on an inter-State journey from Brisbane to Sydney, he said that he placed no reliance upon so much of the documents as stated that to be the fact. He said also that he placed no reliance on the statement on the goods vehicle checking slip that the vehicle was travelling from Brisbane to Sydney with a load of gyprock. As I read his reasons, his Worship was of opinion that, as matter of law, he could only attach probative value to so much of the contents of that document as stated what Arnold had himself observed and not to matters which he had been or might have been told by the driver. Accordingly he disregarded the statement on the checking slip that the vehicle was travelling from Brisbane to Sydney and, while finding that the vehicle was loaded, he was not prepared to find that the load consisted of gyprock since he thought it possible that Arnold might have gained that information by questioning the driver and not from his own observations. His Worship then referred to the oral admissions that the vehicle had been seen near Singleton in New South Wales on 20th May 1965 and that it was then loaded and later on that day had been seen on the outskirts of Sydney, although at that stage it was not carrying a load. From these admissions, couples with the fact that on 19th May the vehicle had been seen at Gailes carrying a load and travelling in the direction of Ipswich whence a road led to Jennings, his Worship drew the inference that the journey of the vehicle in New South Wales was a continuation of the same journey as that on which it was travelling when seen at Gailes and that the load which it was carrying when seen at Gailes was the same load as that which it was seen to be carrying near Singleton on the following day. It was possible, he said, that the load being carried in New South Wales was a different one to that which the vehicle was carrying at Gailes but this was a matter of speculation and there was nothing to indicate that a change of load had occurred before the vehicle crossed the border. (at p598)

6. In the Full Supreme Court, Hart J., with whom Sheehy S.P.J. agreed, considered that it was not open to the learned magistrate to draw the inference that the load which was on the vehicle at Gailes was the same load as it was carrying in New South Wales, while Wanstall J. was of opinion that the inference was one which could be drawn and that it was the correct inference. (at p598)

7. I have found some difficulty in understanding why the learned magistrate took such a narrow view of the use which he might make of the contents of the checking slip and the returns to which I have referred earlier once they became part of the evidence in the case. I would myself have thought that in the circumstances what was stated in the documents was of considerable probative value but I think it unnecessary to give further consideration to this aspect of the case since I am of opinion that the oral admissions justified his Worship in inferring that the load which the vehicle was carrying when seen near Singleton in New South Wales on 20th May was the same load as it had been carrying on the previous day at Gailes in Queensland and that the vehicle was, at the time when it was being used on a road in Queensland, in the course of carrying its load of goods to a destination in New South Wales. (at p599)

8. I would therefore allow the appeal. (at p599)

Orders

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the order nisi for review before that Court be discharged with costs.