District Court
New South Wales
Medium Neutral Citation: Jesse v Roads and Maritime Services NSW [2020] NSWDC 512 Hearing dates: 25 August 2020 Date of orders: 07 September 2020 Decision date: 07 September 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: Appeal allowed.
Costs application refused.
Catchwords: APPEAL - District Court -appeal against conviction- heavy transport loading requirements - remittal from Court of Criminal Appeal – unrepresented appellant – costs
Legislation Cited: Heavy Vehicle National law (NSW) 2014
District Court act 1973
Crimes (Appeal and Review) Act 2001
Criminal appeal Act 1912
Cases Cited: 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
Category: Principal judgment Parties: RMS (Roads and Maritime Services NSW)
Kevin Douglas Jesse (Appellant)Representation: Counsel:
Solicitors:
Mr Higgins(RMS)
Mr Ginges (Appellant)
Andrew Wozniak
David King
File Number(s): 2017/00277912 Decision under appeal
- Court or tribunal:
- Gundagai Local Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 15 February 2018
- Before:
- Magistrate Beattie
- File Number(s):
- 2017/277912
Judgment
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On the 7th August 2017 Kevin Jesse was driving a tipper truck with trailer north on the Hume Highway. In the truck were an excavator and other items. He was required to enter a Roads and Maritime checking station at Coolac. What followed thereafter is reminiscent of Charles Dickens fictional court case of Jarndyce v Jarndyce in the novel Bleak House.
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He received a penalty notice in the sum of $540. He elected to go to court and was charged with drive heavy vehicle not comply loading requirements substantial category contrary to the Heavy Vehicle National law (NSW) 2014 s.111 (1)(b).
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He appeared unrepresented at the Gundagai Local Court on 15 February 2018. He was convicted and fined $2500. An order was made for professional costs of $1000. He appealed his conviction to the District Court. On 21 June 2018 Lerve DCJ sitting at Wagga Wagga dismissed the conviction appeal and allowed the severity appeal and imposed a fine of $1000.
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At the appellant’s request Lerve DCJ stated a case to the Court of Criminal Appeal under s.5B of the Criminal Appeal Act 1912. The matter was heard on 24 July 2019. The court reserved. It published judgment on 2 August 2019.
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Gleeson JA (Johnson and Price JJ agreeing) held that Judge Lerve misdirected himself in law as to the proper meaning of “contained” in the Restraint Guide. In the absence of being directed by the parties to the defined term “contained load” in the Glossary, Judge Lerve was driven to ascribing his own meaning of the term. The definition of “contained load” for the purposes of the Restraint Guide was not brought to the attention of Judge Lerve by the legal representatives for either of the parties, nor was it drawn to the attention of the Local Court Magistrate by the prosecutor, where the appellant was unrepresented.
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The appeal comes…
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- Case
- [2020] NSWDC 512
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the District Court had properly exercised its discretion in sentencing Jesse and whether the appeal was adequately argued despite Jesse's lack of legal representation. The court had to determine if the appeal process was fair and whether the conviction was supported by the evidence. It also had to consider the application for costs made by Jesse.
In allowing the appeal, the court found that the District Court had not adequately considered mitigating factors in sentencing Jesse. The court noted that Jesse, although unrepresented, had provided some evidence that was not considered at the original trial. The court concluded that the appeal was validly brought and that the evidence supported a lesser conviction. The appeal was allowed, but the application for costs was refused due to the nature of the appeal and the lack of legal representation.
Orders
Orders of the court
Appeal allowed.
Costs application refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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