Manning v Qld Transport
[2010] QDC 15
•9 February 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Manning v Qld Transport [2010] QDC 015
PARTIES:
JOHN FREDERICK MANNING
Appellant
V
QUEENSLAND TRANSPORT
Respondent
FILE NO/S:
DC 66 of 2009
DIVISION:
Appellant
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Bundaberg
DELIVERED ON:
9 February 2010
DELIVERED AT:
Bundaberg
HEARING DATE:
5 February 2010
JUDGE:
Clare SC DCJ
ORDER:
1. Appeal against conviction is dismissed.
2. Appeal against sentence is dismissed.
3. Appeal against the order for costs is dismissed.
4. Mr Manning’s traffic record is to be corrected to reflect his conviction under section 41 (1) (a) Transport (Road Use Management – Mass, Dimensions and Loading) Regulation 2005 and any reference to “heavy” vehicle is to be removed.CATCHWORDS:
VEHICLES AND TRAFFIC-PROCEDURE-APPEAL-Failure to properly secure a load on a trailer; effect of evidentiary provisions in the Transport (Road Use Management – Mass , Dimensions and Loading) Regulation 2005
Stevenson v Yasso ( 2006) QCA 40
Load restraint guide C4.9.1
Transport (Road Use Management) Act 1995 sch 4.
Transport (Road Use Management – Mass, Dimensions and Loading) Regulation 2005 ss 41(1), 43 (1) and schedule 7.
SOLICITORS:
The appellant was self-represented
Mr C Cater for the Crown Solicitor
[1] After a hearing on 12 October 2009, a Magistrate convicted Mr Manning of failing to properly secure a load on a trailer, contrary to section 4(1)(a) of the Transport Operations (Road Use Management- Mass, Dimensions and Loading) Regulation 2005 (the Regulation). Mr Manning was fined $150 and ordered to pay costs. He appealed against his conviction and sentence and the order for costs.
The legislation
[2] Section 41 (1) is as follows:-
Compliance with requirements – trailers
(1) The person in control of a vehicle towing a trailer must ensure the trailer complies with a section 7 loading requirement applying to it.
[3] A “schedule 7 loading requirement” for a vehicle is defined by section 39 to mean: “a provision of schedule 7 applying to it.”
[4] It is obviously necessary to refer to Schedule 7:-
1 Loading
(1) A load on a vehicle must not be placed in a way that makes the vehicle unstable or unsafe.
(2) A load on a vehicle must be secured so it is unlikely to fall or be dislodged from the vehicle.
(3) An appropriate method must be used to restrain the load on a vehicle.22 Trailers
(1) A trailer in a combination must be securely coupled to the vehicle in front of it.
(2) The components of a coupling used between vehicles must be compatible and properly connected to each other.
[5] Other sections of the regulation require compliance with the load requirements in schedule 7 in similar terms to section 41 (1). They are sections 40 and 42. While section 41 refers specifically to “trailers”, section 40 is directed at a person in control of “a vehicle” and section 42 speaks of a person in control of “a combination”.
[6] Schedule 7 has two parts. The first part headed “Loading” is the only part to deal with the restraint of a load. It is directed to “a load on a vehicle”. A trailer is a specific type of vehicle[1]. The second part of the schedule headed “Trailers” only purports to regulate the way a “trailer in a combination” is to be connected and does not prescribe how a load on a trailer should be restrained. It follows that the specific “Loading” provision for a “vehicle” in Schedule 7 is applicable to the loading of a trailer.
[1] See also the Act’s dictionary which provides that a trailer “does not include a vehicle that is not a load carrying vehicle”. By necessary implication, a load carrying vehicle may be a trailer.
[7] Section 43 is an evidentiary provision designed to assist proof of the offence: -
43 Proof of schedule 7 loading offences
In a proceeding for an offence against a schedule 7 loading requirement—
(a) evidence that a load on a vehicle was not placed, secured or restrained in a way that met a performance standard under the ‘Load restraint guide’ is evidence of a contravention of a schedule 7 loading requirement; and
(b) evidence that a load, or part of a load, has fallen off a vehicle is evidence that the load was not properly secured.
The undisputed evidence
[8] The undisputed evidence was that Mr Manning was driving a car with a trailer in tow. The trailer was full of empty boxes and household rubbish bound for the tip. It had no rear tail gate. The load was only restrained by a blue plastic tarpaulin with 3 or 4 straps across it. As it travelled parts of the tarp lifted and blew about. An empty box came out from the front of the trailer and flew onto the opposite side of the road. Mr Manning pulled off the road to collect the box. He was then approached by transport inspectors.
The elements
[9] The magistrate could not find Mr Manning guilty of the offence unless he was satisfied that the elements of the offence had been proved. He had to be satisfied of 2 things; namely
1. that Mr Manning was in control of a vehicle towing a trailer; and
2. that Mr Manning had not ensured that the trailer complied with a Schedule 7 loading requirement.
[10] The prosecution particularised the breach of the Schedule as failure to properly secure the load. It submitted that the evidentiary provisions in section 43 (a) and (b) applied to prove the offence.
The effect of the evidentiary provisions
[11] The evidentiary provisions in section 43 have a limited ambit. For any of them to operate at all, there must be evidence of one of the primary facts specified in paragraphs (a) to (c). I interpret section 43 as determining the relevance of that primary evidence, but not the weight to be given to it. It is not deemed to be conclusive evidence; it is simply “evidence” of a breach of schedule 7’s loading requirements, the second element of the offence. If the primary evidence was found to be unreliable, no weight could be given to it and the evidentiary aid in section 43 would not assist. Section 43 does not improve the reliability of the evidence.
[12] Conversely, the relevance imputed by section 43 to evidence of a fallen load or a breach of the guidelines means that evidence of either of those things, may prove the breach of schedule 7 loading requirements. But the onus of proof remains on the prosecution. Whether that primary evidence, alone or in combination with other evidence is sufficient to prove that the load breached schedule 7 must depend upon:
1. the credibility of the evidence about the fallen load or breach of the guidelines; and
2. the weight of any evidence contradicting a breach of schedule 7.
[13] Evidence of a fall from the load was evidence that the load was not properly secured. Nevertheless, its weight could be diminished by evidence that tended to show compliance with schedule 7, that is: evidence that “an appropriate method of restraint “was used[2] or evidence that the load was “secured so that it (was) unlikely to fall or be dislodged from the vehicle”[3]. Such evidence might include evidence of some intervening event that was neither foreseen nor foreseeable, such as freakish weather or a car accident.
[2] Transport Operations (Road Use Management- Mass, Dimensions and Loading) Regulation 2005 (Qld) sch 7, par 1(3).
[3] Transport Operations (Road Use Management- Mass, Dimensions and Loading) Regulation 2005 (Qld) sch 7, par 1(2).
The defence
[14] Mr Manning accepted that he was the driver and person in control of the trailer. He raised 2 explanations for the flying box. He claimed windy conditions after a week of cyclonic weather combined with a near collision in which his car was run off the road. I understand Mr Manning made those allegations in his roadside interview. He also gave evidence of them and he put them to the prosecution witnesses.
[15] The inspectors did not concede any unusual weather. Each testified that he had not seen Mr Manning’s car run off the road. They were not asked to comment on the possibility that it may have happened. Further, the prosecutor did not cross examine Mr Manning as to his evidence that another car ”cut me off, pushed me onto the side of the road causing the trailer to flip.”
His Honour’s reasons
[16] The prosecutor described section 43 as “a proof” of the offence. The magistrate appeared to accept that interpretation of the evidentiary provision. His Honour said: “…only one item was seen to fall from the trailer, but that is sufficient in accordance with section 43 to show clearly that the load was not properly secured.” He treated the undisputed fact of the fallen box as conclusive proof of guilt and a complete answer to the defence raised. In my view that was an error.
The nature of the appeal
[17] This was an appeal under s 222 of the Justices Act. In accordance with s 223, it was an appeal by way of rehearing on the evidence heard below. This means that it was not an appeal in the strict sense. As pointed out by the President in Stevenson v Yasso ( 2006) QCA 40, the appellate judge is required to make her own determination on the evidence, while giving due deference to the magistrate’s view because of the magistrate’s opportunity to see the witnesses.
Review of the evidence
[18] The magistrate had noted that Mr Manning should have been prepared for windy weather, but he made no finding about whether Mr Manning had been run off the road. He made no finding of credit. It is not a matter that can now be fairly assessed from the transcript.
[19] Because Mr Manning’s claim of a near collision was not discounted as a cause of the fallen box, the weight I can now attribute to be the fallen box and its significance as “evidence that the load was not properly secured”[4] is negligible.
[4]Transport Operations (Road Use Management- Mass, Dimensions and Loading) Regulation 2005 (Qld) s 43(1)(b).
[20] The secondary aspect to the prosecution case was an alleged breach of the Load Restraint Guide. Pursuant to section 43(a), evidence of breach of those guidelines is evidence of a breach of schedule 7.
[21] His Honour’s reasons did not rely upon section 43(a) (the evidentiary aid relating to a breach of the Load restraint guide) but His Honour’s concluding observations showed that he applied the guideline to find the restraints used by Mr Manning to be insufficient. His Honour said this: “In addition, whilst the tarpaulin was a secondary restraining device the load was not properly secured with the primary restraining devices. As indicated they are not sufficient…”
[22] His Honour’s reference to the tarpaulin as a “secondary restraining device” seems to be an application of guideline C 4:9:1 of the Load restraint guide. The guideline as read to the court by Inspector Creek permits the use of a tarpaulin as “a secondary restraint system”. Moreover it prohibits the use of a tarpaulin “as a sole restraint system unless specifically designed and tested for the purpose.” The tarpaulin and straps appear to be the only restraint system employed on Mr Manning’s trailer. There was however no specific evidence as to the kind of tarpaulin it was. Inspector Creek claimed that Mr Manning’s use of the tarpaulin contravened the guideline without clarifying what he meant. He was not asked to explain the factual foundation of his opinion. Presumably his opinion of a breach was meant to imply that the tarpaulin was being used as a sole restraint system when it was not the kind designed for that purpose.
[23] It was an unsatisfactory way to lay the factual foundation for an evidentiary provision, especially when the defendant was without legal representation. For the purpose of this appeal, I place no reliance on the alleged breach of the Load restraint guide.
[24] The consequence is that I now limit my review of the sufficiency of the evidence to a review of the photographs and the evidence admitted by Mr Manning. As indicated, I place no weight on the fallen box.
[25] It is common ground that the load comprised bits and pieces of small rubbish and boxes. Mr Manning accepted the load was restrained as shown in the photographs, although he suggested that some of the straps could not be seen. He accepted that his trailer did not have a rear tail guard. He accepted that there was no restraint beyond the blue plastic tarp and the straps. The photographs show one of the straps going across the rear area of the trailer. They indicate that the strapping did not provide a barrier for items on the tray of the trailer below the height of the strap. The void was higher than a bucket and the top of a box visible underneath the strap. The only restraint for those items was the loose end of the tarpaulin.
[26] Mr Manning emphasised the fact that a road worthy certificate had been issued for the trailer. A current road worthy certificate would certify the trailer as capable of being safely used as a trailer. A capacity to be used safely does not establish that the trailer was in fact used safely. A road worthy trailer is still subject to the legal requirements of safe loading.
[27] Mr Manning submitted on appeal that the security of the load was demonstrated by the fact that his rubbish was still inside the cordon of the strap and tarp, and had not escaped to the end. I take that point into account but the force of it is reduced because Mr Manning had not completed his journey when he was intercepted.
[28] The photographs show that it was a flimsy arrangement. As the magistrate observed, wind on the trailer was to be expected. It was likely to be only a matter of time before parts of the load blew away, at least through the gap at the rear of the trailer. I am satisfied beyond reasonable doubt that the load was not secured in a way to make it unlikely to fall from the trailer.
The grounds of appeal
[29] The notice of appeal lists 11 grounds of appeal. My review of them is set out below. There were some deficiencies in the way in which the prosecution case was presented and in the magistrate’s reasons. Notwithstanding those matters I am satisfied that the agreed evidence proved beyond reasonable doubt that Mr Manning had committed an offence against section 41(1)(a).
[30] Grounds 1 and 9 are that the prosecution did not prove its case beyond reasonable doubt. It would be apparent from the preceding reasons that this ground is rejected. The prosecution did not prove everything it claimed to. Nonetheless I am satisfied that the offence was proved even on the facts accepted by Mr Manning.
[31] Ground 2 complains that the prosecution did not prove that Mr Manning loaded the trailer. In fact there was no evidence as to who loaded the trailer. This did not matter. To secure a conviction the prosecution only had to prove the elements of the offence. Loading the trailer was not an element of the offence in section 41. The identity of the person who loaded the trailer did not have to be proved. It was “the person in control of a vehicle towing a trailer” that mattered. The obligation to ensure the load was properly secured was on the person in control of the vehicle, not the person who loaded the trailer. Mr Manning had accepted that he was the person in control of the car towing the trailer.
[32] Grounds 3 and 11 complained that the inspectors did not issue a ticket at the road side. An infringement notice was sent to Mr Manning about 3 weeks later. At trial Mr Manning argued that the delay suggested that the inspectors had doubts about whether any offence had been committed. The evidence however was that no ticket was issued on the spot because under transport guidelines this particular offence was to be dealt with by a summons and court appearance. The only reason that Mr Manning received an infringement notice was because Inspector Creek applied for a relaxation of the guidelines to allow an infringement notice to be sent. The inspector did this to minimise the inconvenience for Mr Manning whose licence address was the Northern Territory.
[33] Ground 4 complained that Queensland Transport had “free” legal representation “while Mr Manning had been refused Legal Aid. One might sympathise with Mr Manning’s sense of inequity, but the circumstances did not give rise to any miscarriage of justice. Both parties had a right to purchase legal representation. The legal costs of Queensland Transport are met from its own budget. Mr Manning wanted Legal Aid but the grant of aid does not extend to traffic matters in Queensland. Mr Manning then elected to represent himself.
[34] Ground 5 was that the costs order amounted to “double dipping” by the prosecution. An order for costs was made for a total amount of $ 931.68, comprising $71.10 for costs of court and $ 840.68 for the prosecutor’s costs of travel and accommodation. Mr Manning made objection to the Magistrate on the basis that he was a tax payer. This ground of appeal claimed that the prosecutor had recovered the same expenses in a case heard just before Mr Manning’s case. No details of that earlier case were provided. I have been advised by the registry that Mr Manning’s case was the only traffic matter heard on 12 October 2009. There is no record of another award of costs being made that day in favour of the transport prosecutor. The complaint about costs cannot be sustained in those circumstances.
[35] Grounds 6 and 7 raise the issue of whether a box “fell” from the trailer or blew away as an “act of God”. As indicated, for the purposes of the appeal I have disregarded the movement of the box. It is not necessary to deal with these grounds to any further extent.
[36] Ground 8 is that the prosecution did not prove that Mr Manning was in control of a “heavy vehicle”. There is something in this point. The offence in section 41 (1) is in respect of a person in control of a vehicle. Section 41 sets out different penalties for a “heavy vehicle” (section 41 (b)) and a “private vehicle” (section 41 (1) (a)). The enforcement order sent by the State Penalties Enforcement Registry after the conviction nominated the more serious offence of being in control of a heavy vehicle. Yet Mr Manning was not convicted of that offence.
[37] Schedule 4 to the Transport (Road Use Management) Act 1995 defines what a “heavy vehicle” is. It is a vehicle or a combination with a “GVM of more than 4.5t”. No evidence was given about the GVM of Mr Manning’s vehicles. By virtue of Schedule 4 to the Act a “private vehicle” is “a vehicle other than a prescribed heavy vehicle.”
[38] While the charge on the bench charge sheet was for a “person in control of heavy vehicle towing a trailer” , Mr Manning was only called upon to plead to the lesser charge of “being in control of a vehicle towing a trailer”. It is not apparent as to whether this was a mistake. There is no notation of an amendment to the charge. In any event, there was no evidence on which to find it was a “heavy vehicle”.
[39] The Magistrate’s reasons for his decision and the express finding of guilt in it refer simply to the general offence in section 41(1) of being in control of a vehicle”. The conviction could only be a conviction under subsection (1) (a).
[40] The records relating to Mr Manning’s conviction should be corrected to accurately reflect what he was convicted of. The reference to “heavy vehicle” should be replaced by the term “private vehicle” and the offence should be identified as an offence against section 41 (1) (a).
[41] Ground 10 claims that the magistrate had a conflict of interest. It alleges that he “showed favouritism to my ex partner in a civil DVO application”. Mr Manning did not take objection to the magistrate at the hearing. The allegation of favouritism was only made after the magistrate convicted and sentenced him. It appeared to rest on the fact that the same Magistrate had previously found against Mr Manning in a domestic violence case. This is of course falls far short of a claim of bias. The ground has no foundation.
[42] The appeal against conviction is dismissed. There is still the issue of the incorrect traffic record. I direct that the record of conviction be amended to reflect the offence for which Mr Manning was convicted, namely an offence under section 41 (1) (a) of the Transport Operations (Road Use Management - Mass, Dimensions and Loading) Regulation 2005.
Sentence
[43] The issue of sentence was not argued on appeal. The maximum penalty was a fine of $1500. His Honour convicted Mr Manning and imposed a fine of $150, the amount of the ticket originally sent to Mr Manning.
[44] At the time of sentence Mr Manning had expressed a preference for a term of imprisonment. His Honour said that was a choice for Mr Manning. A default period of imprisonment was set at 4 days.
[45] It could not be said that the sentence was manifestly excessive.
[46] The appeal against sentence is dismissed.
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