Jesse v Roads and Maritime Services NSW

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

Johnson v Miller (1937) 59 CLR 467

Category:

Principal judgment

Parties:

RMS (Roads and Maritime Services NSW)

Kevin Douglas Jesse (Appellant)

Representation:

Counsel:
Mr Higgins(RMS)
Mr Ginges (Appellant)

Solicitors:
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

1. On the 7^th 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.

2. 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).

3. 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.

4. 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.

5. 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.

6. The appeal comes…