National Heavy Vehicle Regulator v Birrell - [2023] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
NATIONAL HEAVY VEHICLE REGULATOR v BIRRELL
[2023] SASC 49
Judgment of the Honourable Justice Blue
4 April 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
The appellant appeals against the dismissal by a Magistrate of a charge against the respondent of engaging without reasonable excuse in conduct that exposed Glenn Blacker to a risk of death or serious injury being reckless as to that risk in contravention of section 26F of the Heavy Vehicle National Law.
The respondent effectively conceded the other elements of the offence except recklessness. The Magistrate found that the recklessness element was not proved beyond reasonable doubt.
The appellant appeals against the dismissal on two alternative grounds:
1the Magistrate erred in finding that recklessness for the purpose of section 26F(1)(c) of the Law required proof that the respondent foresaw the probability of the risk to which section 26F(1)(b) refers;
2in the alternative, the Magistrate erred in finding that the appellant had failed to prove beyond reasonable doubt that the respondent was reckless as to whether his conduct exposed Mr Blacker to a risk of death or serious injury.
Held (allowing the appeal):
1Recklessness for the purpose of section 26F(1)(c) of the Law requires proof that the respondent foresaw the possibility, not the probability, of the risk to which section 26F(1)(b) refers (at [76]).
2It is unnecessary and inappropriate to address ground 2 (at [78]).
3Appeal allowed. Matter remitted to the Magistrates Court for retrial (at [79]).

Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 5, s 26C, s 26F, s 26G, s 26H , referred to.
Aubrey v The Queen [2017] HCA 18, (2017) 260 CLR 305; DPP Reference No 1 of 2019 [2021] HCA 26, (2021) 95 ALJ R 741; Mutemeri v Cheeseman [1998] 4 VR 484; Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82, (2012) 35 VR 399; R v Abdul-Rasool [2008] VSCA 13, (2008) 18 VR 586; R v Campbell [1997] 2 VR 585; R v Coleman (1990) 19 NSWLR 467; R v Crabbe (1985) 156 CLR 464; R v Lam [2006] VSCA 162, (2006) 46 MVR 207; R v Nuri [1990] VR 641; R v Toms [2006] VSCA 101 , considered.

NATIONAL HEAVY VEHICLE REGULATOR v BIRRELL
[2023] SASC 49
Magistrates Appeal: Criminal

BLUE J: The National Heavy Vehicle Regulator (the Regulator) appeals against the dismissal by a Magistrate of a charge against the respondent, Gregg Birrell, of engaging without reasonable excuse in conduct that exposed Glenn Blacker to a risk of death or serious injury being reckless as to that risk in contravention of section 26F of the Heavy Vehicle National Law (the Law).
Mr Birrell effectively conceded the other elements of the offence except recklessness. The Magistrate found that the recklessness element was not proved beyond reasonable doubt.
The Regulator appeals against the dismissal on two alternative grounds:
1the Magistrate erred in…

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.

Keep reading for free

Create a free CaseChat account to read National Heavy Vehicle Regulator v Birrell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] SASC 49
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the National Heavy Vehicle Regulator, who sought to overturn a decision made by a Magistrate regarding the liability of Mr Birrell, a heavy vehicle operator. The incident in question occurred on 6 February 2019, when Mr Blacker's Mitsubishi truck was being towed by Mr Birrell's tow truck. The truck subsequently rolled off the tilt tray, crushing Mr Blacker and resulting in his death. Mr Birrell was charged under section 26F(1)(c) of the Heavy Vehicle National Law for recklessly exposing Mr Blacker to a risk of death or serious injury. However, the Magistrate acquitted Mr Birrell on this count, finding instead that he was guilty of a lesser offence under section 26G. The Regulator appealed this decision on the grounds that the Magistrate had misconstrued the legal requirements for recklessness under section 26F(1)(c), as well as the burden of proof for recklessness.

The court was required to determine whether the Magistrate's interpretation of recklessness was legally sound and whether the Regulator had successfully discharged the burden of proving that Mr Birrell was reckless. The court noted that recklessness, as defined by section 26F(1)(c), did not necessarily require Mr Birrell to have foreseen the probability of the risk to which section 26F(1)(b) referred. Furthermore, the court held that the Regulator had not proven beyond reasonable doubt that Mr Birrell was reckless, as there was no evidence that he was aware of the risk he was creating or that he disregarded that risk.

The appeal was allowed by the court, which set aside the orders made by the Magistrate and remitted the matter to the Magistrates Court for retrial. The court held that the Magistrate had erred in both the interpretation of recklessness and in assessing the evidence presented. The Regulator's appeal was successful in establishing that the Magistrate's decision was legally flawed. Consequently, the court ordered that the matter be retried, with no further orders to be made at that time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Regulator appeals against the dismissal on two alternative grounds:1the Magistrate erred in finding that recklessness for the purpose of section 26F(1)(c) of the Law required proof that Mr Birrell foresaw the probability of the risk to which section 26F(1)(b) refers;2in the alternative, the Magistrate erred in finding that the Regulator had failed to prove beyond reasonable doubt that Mr Birrell was reckless as to whether his conduct exposed Mr Blacker to a risk of death or serious injury.Background On 6 February 2019 Mr Blacker was driving his Mitsubishi truck (the Mitsubishi truck) from Port Broughton to Port Pirie when it began to emit smoke. He pulled over into a parking bay on the side of the road at Clements Gap. Mr Blacker had owned and operated trucks from a young age. Mr Blacker telephoned Mr Birrell and requested him to transport the Mitsubishi truck (presumably to Port Pirie). Mr Birrell carried on business as Birrell Heavy Tilt using a tilt tray tow truck (the tow truck), which is a heavy vehicle as defined by the Law. When Mr Birrell arrived at the location where the Mitsubishi truck was parked, he lowered the tilt tray of the tow truck into the inclined position. He attached a winch to the bull bar of the Mitsubishi truck using a chain and two hooks. He stood near the driver’s side door of the tow truck and operated the winch to pull the Mitsubishi truck up onto the inclined tilt tray. While he was operating the winch, Mr Blacker was standing next to Mr Birrell. When he finished winching the Mitsubishi truck up onto the inclined tilt tray, Mr Birrell did not return the inclined tilt tray to the horizontal position. Instead, he left the Mitsubishi truck suspended by the winch, cable and hooks and walked around the front of the tow truck to obtain chains from the toolbox. He then walked down the left hand side of the tow truck to fit those chains to the wheels of the Mitsubishi truck to secure it on the tray. While Mr Birrell was doing this, Mr Blacker walked down the right hand side of the tow truck and behind the Mitsubishi truck. While he was behind the Mitsubishi truck, the bull bar gave way. The Mitsubishi truck rolled down the incline onto the ground, crushing Mr Blacker and causing his death. On 7 February 2019 Mr Birrell was interviewed by Brevet Sergeant Rebecca Guest at the Port Pirie Police Station. Mr Birrell said that he had previously been engaged by Mr Blacker to tow a truck using his tow truck. He said that this was “probably two or three times”. Mr Birrell said that, when he went around to the other side of the tow truck to secure the chains, he did not know what Mr Blacker was doing. The interview then proceeded as follows:He said:I don’t know why he was even walking around the back it’s, previous times, I didn’t mention it to him this time but previous time I’d, I’d, when I’d recovered his vehicle I’ve said you never walk behind the back of a tilt tray because that’s the kill zone, that’s what everybody calls it.Guest said:So you’ve previously had that discussion with him? He said: Yes. Guest said:On a couple of times?He said: Yeah. Guest said:Yep.He said: Well last time I rescued it from out his farm drove it out onto the road and you know he was standing close to the back of it and I said you know could you move either side, don’t, never stand behind, if something breaks, cable breaks, the winch lets go or yeah. Guest said:And how long ago was that last recovery?He said: A couple of years yeah.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is therefore unnecessary, and inappropriate, to consider ground 2.Conclusion I allow the appeal. I set aside the orders made by the Magistrate acquitting Mr Birrell of count 1 and convicting him of the alternative section 26G charge. I remit the matter to the Magistrates Court for retrial. I will hear submissions on any other orders sought.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.