Contract Control Services Pty Ltd v Brown - [2012] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 04673

CONTRACT CONTROL SERVICES PTY LTD (ACN 007 453 965)	Appellant
v
WAYNE BROWN	Respondent

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	3 August 2012
DATE OF JUDGMENT:	29 August 2012
CASE MAY BE CITED AS:	Contract Control Services Pty Ltd v Brown
MEDIUM NEUTRAL CITATION:	[2012] VSC 369
JUDGMENT APPEALED FROM:	Brown v Contract Control Services Pty Ltd (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 9 August 2011)

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CRIMINAL LAW – Summary offence – Essential elements of an offence under s 171(2) of the Road Safety Act 1986 – Being the consignor of goods on a vehicle whose mass exceeded its mass limit – Charge specified erroneous mass limit and erroneous statutory provision – Amendment of charge after expiration of 12 month limitation period.

CRIMINAL LAW – Appeal against findings of guilt by Magistrate – s 272(1) of the Criminal Procedure Act 2009 – Error established – Appeal allowed.

CRIMINAL LAW – Reasonable steps defence under s 179 of the Road Safety Act 1986 – Magistrate rejected defence – Error not established.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr David Neal SC with Mr David Colman	Batten Sacks Harvey Bruce
For the Respondent	Mr David Starvaggi	Prosecutions Department of VicRoads

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Ground of appeal 1: Mass limit was an essential element of the offence............................... 4

Statutory provisions relevant to Ground 1............................................................................... 4

Road Safety Act 1986.............................................................................................................. 4
Magistrates’ Court Act 1989................................................................................................... 5

Principles for establishing an essential element of an offence............................................... 6
Magistrate’s decision: The mass limit was not an essential element of the offence......... 13
Parties’ submissions................................................................................................................... 13
Conclusion on Ground 1............................................................................................................ 14

Ground of appeal 2: Reasonable steps defence under s 179 of the Act................................. 16

Relevant provisions of the Road Safety Act 1986..................................................................... 16
Facts relevant to Ground 2......................................................................................................... 18
Magistrate’s decision on CCS’ defence under s 179 of the Act............................................. 19
Limbs 1 and 2: Particularisation of reasonable steps and procedural fairness................. 20
Limb 3: Absence of evidence about standards or guidelines for ‘reasonable steps’........ 23
Limb 4: Erroneous finding about the reasonableness of CCS’ steps................................... 24

Proposed order.................................................................................................................................. 24

HIS HONOUR:

Introduction and summary

The appellant, Contract Control Services Pty Ltd (‘CCS’) has appealed under s 272(1) of the Criminal Procedure Act 2009 (‘CP Act’) against a magistrate’s findings of guilt in respect of five charges of being a consignor of goods on a vehicle whose mass exceeded its mass limit, contrary to s 171(2) of the Road Safety Act 1986 (‘Act’).[1]
[1]The version of the Act that applies to the present case is version 111, incorporating amendments as at 1 December 2008.

CCS is a building company. It engaged Julius Plant Hire Co (‘Julius’) as a subcontractor to excavate and remove waste from a building site. Julius, in turn, engaged an excavation operator and Norman Thackrah, the owner and operator…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Contract Control Services Pty Ltd v Brown

Details

AGLC: Contract Control Services Pty Ltd v Brown [2012] VSC 369
Case: [2012] VSC 369
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case before the court involved Contract Control Services Pty Ltd, the appellant, against the respondent, Brown, who was charged with a summary offence under the Road Safety Act 1986. Brown was alleged to have been the consignor of goods on a vehicle whose mass exceeded its mass limit. The charge specified an erroneous mass limit and statutory provision, which was later amended after the 12-month limitation period had expired. The case was heard in the Magistrates’ Court of Victoria, and Brown appealed against his findings of guilt to the County Court of Victoria.

The primary legal issue before the court was whether the amendment to the charge, which corrected the specified mass limit and statutory provision, was permissible after the expiration of the 12-month limitation period. Additionally, the court had to determine whether Brown had taken reasonable steps to prevent the offence under s 179 of the Road Safety Act 1986, and if so, whether this defence was available to him. The court had to consider the proper interpretation of the statutory provisions and whether the error in the original charge was material.

The court found that the amendment to the charge, which corrected the specified mass limit and statutory provision, was not permissible after the expiration of the 12-month limitation period. Consequently, the court allowed Brown's appeal against his findings of guilt. The court also considered the reasonable steps defence under s 179 of the Road Safety Act 1986, but ultimately rejected it as Brown had not established an error. The court held that the error in the original charge was not material, as the correct mass limit and statutory provision were ultimately identified and the essential elements of the offence were not in dispute.

The final orders of the court included allowing Brown's appeal against his findings of guilt and quashing the conviction in the Magistrates’ Court of Victoria. The court's decision was based on the unacceptability of the amendment to the charge after the limitation period and the rejection of the reasonable steps defence. This case highlights the importance of accurate and timely charges in criminal proceedings and the consequences of errors in statutory provisions.

Orders