Arnold v Gunton

[1988] TASSC 67

Serial No 66/1988
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Arnold v Gunton [1988] TASSC 67; A66/1988

PARTIES:  ARNOLD, Scott Douglas
  v
  GUNTON, Kenneth Lyell

FILE NO/S:  LCA 24/1988
DELIVERED ON:  13 December 1988
JUDGMENT OF:  Wright J

Judgment Number:  A66/1988
Number of paragraphs:  12

Serial No 66/1988

List "A"

File No: LCA 24/1988

SCOTT DOUGLAS ARNOLD v KENNETH LYELL GUNTON

REASONS FOR JUDGMENT  WRIGHT J

13 December 1988

1. This is a notice to review the applicant's conviction upon a complaint, dated 13 May 1988, alleging that on 2 April 1988, he being the driver of a motor vehicle and trailer on Marlborough Street, a public street at Miena, in Tasmania "did fail to place the vehicles, with the load thereon on portable weighing devices when requested to do so by Cecil Youl, an authorized officer" contrary to Regulation 9(9)(c) of the Traffic (Vehicle Loads and Dimensions) Regulation 1975. The grounds of the notice to review are as follows:

"1.       That the learned magistrate erred in law in finding that a lawful request had been made of the applicant to assist the transport officer to determine the wheel load, axle load or tandem load or aggregate axle load by placing the applicant's vehicle on a portable weighing machine.

2.        That the learned magistrate erred in law and in fact in finding that the applicant had refused the request made to him by the transport officer to assist the said officer to determine the wheel load, axle load or tandem load or aggregate load by placing his vehicle on a portable weighing machine.

3.        That the learned magistrate erred in law and in fact in finding the applicant guilty beyond reasonable doubt of the offence charged."

1. Omitting unnecessary words, the Regulation pursuant to which the prosecution was brought, provides as follows:

"9(9)The driver or person in charge of a vehicle in a public street shall, on being requested so to do by a police officer, authorized officer, or works officer–

(a)…

(b)Take the vehicle with the load thereon to the nearest weighbridge on the route towards the place to which the vehicle is proceeding, or to a weighbridge within 10 kilometres in any direction from the place at which the request is made; and

(c)Assist the officer to determine the wheel load, axle load, tandem load or aggregate axle load by placing the vehicle on a weighbridge, weighing machine, or portable weighing device as required by the officer for the purposes of this Division.

10– A person who fails to comply with the provisions of sub–regulation (9) is guilty of a breach of these regulations.

Penalty:$500 for a first of fence, and $1,000 for a second or subsequent offence."

1. No point was taken either before the learned magistrate or upon this notice to review that the form of the complaint did not precisely follow the words of the Regulation nor were specific arguments addressed to me as to each individual ground of appeal. Before reviewing the arguments I shall briefly state those facts relevant to the determination of this matter which were given in evidence before the learned magistrate.

1. Mr Cecil George Youl gave evidence that he was an authorized officer under the Traffic Act and that at approximately 2.50 pm on Easter Saturday 1988 whilst on duty with Transport Inspector McKinnell on the Marlborough Highway at Miena, a pubic street in the Municipality of Bothwell, he observed four articulated vehicles travelling on the Marlborough Highway in convoy all loaded with mill logs. The vehicles were intercepted and stopped in line and the four drivers gathered on the side of the road. All of the drivers were known to the witness and he identified the applicant as being one of them. He said to the drivers "Where are the logs being carted to? And they said "To Westbury Mill". Mr Youl said that he then directed each driver "to take the vehicle to a suitable weigh–in place approximately 300 metres on route onto the Lake Highway where they would be weighed on portable weighing devices". The drivers agreed and the transport officers went to the weighing site. Some minutes elapsed, no truck appeared so the transport officers went to the Complete Anglers Arms Hotel carpark – the exact location of which was not explained – and there it was observed that the four log trucks were entering that carpark. Mr Youl approached the drivers and said, "You have been directed to place the vehicles or to take the vehicles to the weigh–in site" and they said, "We are hungry, we are thirsty, we have not eaten or had drinks since 5 a.m. this morning". A discussion then took place between Mr Youl and the drivers and it was agreed that they could have a meal and would return in approximately 30 minutes and then take their trucks to the site. The transport officers waited approximately 35 minutes and the drivers returned to their vehicles and the applicant Arnold approached Mr Youl saying, "I'm not bringing my truck down". Mr Youl then recorded the registration number of that vehicle and trailer attached to it and as the first truck started up and left, Mr Youl and his companion proceeded to the site and weighed that vehicle. At[i] approximately 3.40 pm whilst weighing the vehicle, a second vehicle pulled up behind and Mr Youl noticed in that vehicle the applicant and a Mr Hammersley. After weighing the first vehicle, Mr Youl approached the applicant and said, "You have been directed to bring your vehicle down. Are you going to do it?" And the applicant replied, "No. I am not bringing my vehicle down, I've had five beers and you will book me". The applicant was again asked and was then warned. Mr Youl said that he was unable to use the portable weighing devices which he had with him that day for the purpose of weighing vehicles in the carpark at the hotel because as he said, "That is large stone and very gravelly and unsuitable and would also damage the portable devices." He said that he had directed the applicant "to be weighed" prior to him reaching the Complete Anglers Arms Hotel "twice".

1. Similar evidence was given by Mr McKinnell. After defence counsel submitted no case to answer and was overruled he elected to call no evidence and the applicant was convicted. He was fined the sum of $350 and costs. Counsel for the applicant on the notice to review submitted that Regulation 9(b) covered the only situations in which a person could lawfully be required by an officer to take a vehicle to some point beyond the point at which it was apprehended and that the same obligation could not be cast upon a driver with penal consequences upon his failure to comply by Regulation 9(c). Reference was made in the course of argument to the decision of Underwood J in Gunton v Nelson, 1/1985, but although the same Regulations were then before the Court, the point at issue was different and that decision is of little assistance in resolving the scope of Regulation 9(9)(c) in the present circumstances. Counsel for the applicant argued that the power to require a driver to assist an officer by placing the vehicle on a portable weighing device did not entitle the officer to, in effect, also require the driver to undertake a journey of some kind before doing so. It was submitted that this conclusion was fortified by considering that in 1985, Regulation 9(9)(b) was amended by omitting the words "or weighing site" from that Regulation. It was submitted that from this it could be seen that an officer's power to give directions to take a vehicle to a particular place had been deliberately diminished at that time. Had some substantive amendment also been made to Regulation 9(9)(c), I think that some weight may be accorded to such an argument. But as Gunton v Nelson (supra) clearly established the obligations created by Regulation 9(9)(a),(b) and (c) are not interdependent, and as the decision in Murphy v The Queen, 71 1987, demonstrates all or any of the constituent elements of an offence may overlap all or any of the constituent elements of another offence.

1. I was referred to Bell v Drake, [1937] VR 21 in which Mann CJ was required to consider Section 27 of the Motor Car Act 1930 Victoria, which provided that an inspector "may request the driver of any motor car … to allow such motor car … to be weighed on a portable mechanical device … " His Honour said at 24:

"I come now to the real point, and the only point of importance, and that is whether the requirement of the Act that the driver of a motor car or traction engine shall, when requested by an inspector, allow it to be weighed, includes a duty of taking such reasonable and necessary steps on his part as are required to enable the weighing to be carried out. I must say I feel some doubt about the matter. No doubt, as a rule, a direction to "allow" something to be done would not include the obligation to take any active part, but I have to construe the word with reference to the subject matter, the nature of the driver's control and the rest of Section 27 of the Motor Car Act 1930, and on the whole, I think that where the weighing of the car calls for the driving of the car onto the weighing machine, it may rightly be said that the driver does not allow the weighing unless he takes any necessary steps."

1. I was not referred to any subsequent decision in which Bell v Drake (supra) has been either approved or disapproved. It was referred to in Wilson v Ratcliffe [1979] VR 268 but without relevant comment.

1. The primary aim of the Traffic (Vehicle Loads and Dimensions) Regulations 1975 is clearly to prevent the use of overloaded vehicles or vehicles of excessive dimensions on Tasmanian roads with consequent risk of damage to the roads themselves or danger to road users. It is therefore understandable that wide powers are given to public officers for the purposes of enforcing those Regulations and that the co–operation and assistance of road users is expected to enable the officers to carry out their public duty. It is also relevant to note that the Regulations quite specifically specify the way in which portable weighing devices may be used to determine the axle loads of vehicles. For example, Regulation 9(7) provides:

"Where the aggregate axle load of 2 axles or a tandem is determined by portable weighing devices, the wheels that are not placed on a device shall, if necessary, be so placed or supported that they are, in the opinion of a police officer, authorized officer, or works officer, as nearly as practicable in the same horizontal plane as the wheels placed on the device … "

1. I mention this to highlight the difficulty that would be experienced in enforcing the Regulations if the restricted meaning and scope contended for by applicant's counsel were given to Regulation 9(9)(c). In any event it was conceded in the course of discussion that the act of assisting to place a vehicle on a portable weighing device must, as a matter of practical necessity, involve moving the vehicle from the point at which it was stopped. It was not suggested that the vehicle should be kept in that position and that its wheels should be jacked up and the weighing devices placed beneath them. It seems to me that once it is apparent that compliance with the Regulation necessitates some fore or aft movement by the vehicle, it becomes a question of degree in all cases, as to whether the alleged offender has been required to act in an unnecessary way for the purpose of discharging his obligation. His obligation is, of course, to "assist the officer … by placing the vehicle on a … portable weighing device as required by the officer for the purposes of this division." This suggests to me that the officer in question is invested with a discretion as to the nature or extent of the assistance which he may require in any given circumstances. Indeed, the judgment of Lush J in Wilson v Ratcliffe (supra) at 271 suggests that there is no overriding requirement that the request of the relevant officer must be reasonable in the circumstances. In my opinion there is no reason for concluding that merely because some intermediate action is necessary before a driver can comply with a request to "place" a vehicle upon a portable device, that requirement can be legitimately ignored.

1. It was submitted that the type of direction given by Mr Youl to the applicant did not amount to a direction to assist by placing the vehicle on a portable weighing device but only amounted to a direction to take the vehicle to a place at which a portable weighing device may be used for that purpose. Whilst it is desirable, I do not think it is by any means obligatory for an officer giving a direction to use the precise words of the Regulations. It is a question of what his words should have been understood to mean. I have a certain amount of difficulty with this. Whilst the applicant was clearly enough directed to go a short distance along the road for the purpose of having his vehicle weighed and whilst he has told that the vehicle would there be weighed on portable weighing devices, there is nothing in the evidence to suggest that upon arrival he was required to place the vehicle on the portable weighing device. As counsel for the applicant submitted, the directions given were directions which would be far more apt under Regulation 9(9)(b) if such directions could legitimately be given in respect of a portable weighing device. After careful consideration I think it must be said that no request complying with Regulation 9(9)(c) was effectively given to the applicant. The closest the evidence came to this was when Mr Youl said "You have been directed to place the vehicles or to take the vehicles to the weigh–in site". Assuming this to be an accurate transcription of what was said in evidence, it appears clear to me that there are two difficulties in regarding this as sufficient to sustain the conviction. Firstly, it cannot be claimed that this in itself was a new direction as it only appears to be Mr Youl's recitation of an historical fact. Secondly, it clearly appears that Mr Youl has corrected what he said in the first part of this sentence and that what he was intending to say was "You have been directed to take the vehicles to the weigh–in site". In other words, the reference to the applicant and others having been "directed to place the vehicles" was incorrect. In any event, of course, there was no mention of placing the vehicles on a portable weighing device.

1. It therefore seems to me that the applicant could not have been lawfully convicted of a breach of that Regulation and that the motion to review should be allowed. As I have already indicated, if more careful attention had been given to the requirement of the Regulation by Mr Youl when he gave his directions to the applicant, the prosecution may well have been successful. It should therefore be understood that the appeal has succeeded because there is no acceptable evidence upon which a finding could be made that the applicant was directed to place his vehicle on the device. Nonetheless, circumstances may exist in future in which the wider point raised by this appeal is again raised and plainly therefore, if the authorities wish relevant officers to be able to direct a person to take his vehicle to a particular place for weighing purposes, they should put that matter beyond any doubt by reconsidering and, if necessary, amending Regulation 9(9)(b).

1. The motion to review is allowed and the applicant's conviction quashed.

tasInLaw edit: The judgment has "An“.

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