Jesse v Roads and Maritime Services NSW - [2019] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
Hearing dates: 24 July 2019
Decision date: 02 August 2019
Before: Gleeson JA at [1]
Johnson J at [49]
Price J at [50]
Decision:
(1)   The questions submitted to this Court by Lerve DCJ are answered as follows:

“1.   Do the facts as found by me enable me to conclude beyond reasonable doubt that the load could be dislodged by mild lateral force?

Inappropriate to answer.

2. Could these facts support a finding of guilt for an offence contrary to s 111(1)(b) of the Heavy Vehicle National Law (NSW), in particular:

(i)   does “contained” as that word is used in the Load Restraint Guide 2004;

(ii)   mean “tightly packed to prevent horizontal movement”; and

(iii) if the load was contained within the tipper truck, did the Heavy Vehicle National Law (NSW) require that the load also be otherwise restrained?

As to sub-questions (i) and (ii), the term “contained load” in the Load Restraint Guide has the meaning stated in the Glossary in Section J, namely:

A load prevented from dislodging from the vehicle by the vehicle structure, gates, sides, racks, headboards, stanchions etc or other parts of the load.

As to sub-question (iii):

Inappropriate to answer.”

(2) The time for submitting the stated case under s 5B of the Criminal Appeal Act 1912 (NSW) is extended to 28 March 2019.

(3)   Set aside the order made by Judge Lerve in the District Court on 21 June 2018 dismissing an appeal against conviction and sentence brought by the applicant, Kevin Douglas Jesse.

(4)   Quash the order made by Judge Lerve on 21 June 2018 imposing a fine of $1,000 and ordering the applicant to pay $1,000 court costs ordered in the Local Court.

(5)   No order as to costs, to the intent that each party bear his or its own costs in this Court.
(6)   Remit the matter to the District Court for disposal in accordance with law.
Catchwords: CRIMINAL LAW – stated case from District Court on question of law – where appeal dismissed against conviction of driving heavy vehicle not complying with loading requirements – whether extension of time should be granted – limitations of stated case procedure – inappropriate to answer question of mixed fact and law – whether primary judge misdirected himself at law as to the meaning of a defined term
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 11(1)
Criminal Appeal Act 1912 (NSW), s 5B
Heavy Vehicle National Law (NSW), s 111(1)
Heavy Vehicle (Mass, Dimension and Loading) National Regulation, reg 38; Sch 7, s 1
Load Restraint Guide 2004
Cases Cited: The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41; [1978] HCA 40
Clyne v Wrigley [1980] 1 NSWLR 599
Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim…

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.

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Details

Case: [2019] NSWCCA 176
Decision Date: 02 August 2019

CaseChat Overview and Summary

In Jesse v Roads and Maritime Services NSW, the appeal was dismissed by the District Court against a conviction for driving a heavy vehicle that did not comply with the prescribed loading requirements. The appeal was lodged on the basis of a stated case, and the High Court was asked to determine the appropriate approach to granting an extension of time for filing the case. The case presented a legal issue concerning the interpretation of a defined term and whether the primary judge had misdirected himself in relation to this term.

The court examined the nature of the stated case procedure and its limitations. It was noted that this procedure is not designed to address questions that involve a mix of fact and law. The court found that the issue of whether an extension of time should be granted was not suitable for resolution through the stated case process, as it required an analysis of both legal and factual elements. The court further considered whether the primary judge had misdirected himself at law concerning the meaning of a defined term. However, it was determined that the primary judge's interpretation was correct, and no misdirection had occurred.

In conclusion, the High Court dismissed the appeal and found that the primary judge had not misdirected himself at law. The court also emphasised that the stated case procedure is not appropriate for questions that involve mixed issues of fact and law, and that such matters should be addressed through the regular appeal process. No extension of time was granted, and the original conviction remained in place.

Orders