Palfrey v South Penrith Sand & Soil Pty Ltd
[2012] NSWSC 1357
•09 November 2012
Supreme Court
New South Wales
Medium Neutral Citation: Palfrey v South Penrith Sand & Soil Pty Ltd and Others [2012] NSWSC 1357 Hearing dates: 29 October 2012 & 30 October 2012 Decision date: 09 November 2012 Jurisdiction: Common Law Before: Barr AJ Decision: 1. Order that proceedings on all summonses be stayed until further order.
2. Direct the Prosecutor to file and serve by 4:00pm on 15 November 2012 a notice stating which charges it intends to proceed with.
3. Adjourn the motions for hearing before me on a date to be fixed.
Catchwords: CRIMINAL LAW - Multiple charges arising out of single set of facts - whether permissible - whether an abuse of process Legislation Cited: Road Transport (General) Act 2005 (NSW)
Road Transport (General) Regulation 2005 (NSW)Cases Cited: Australian Oil Refinery Pty Ltd v Cooper (1987) 11 NSWLR 277
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
Maher v The Queen [2011] VSCA 136Category: Principal judgment Parties: David Palfrey (Plaintiff)
South Penrith Sand & Soil Pty Limited (Defendant)
Peter John Spiteri (Defendant)
Jason Roberts (Defendant)Representation: G.J. Hatcher SC/S. Coleman (Plaintiff)
W.G Roser SC/M. Higgins (Defendants)
Hicksons Lawyers
Farry & Co Solicitors
File Number(s): 2011/00407510, 2011/00407520, 2011/00407525, 2011/00407531, 2011/00407560
File number cont.: 2011/00407563, 2011/00407567, 2011/00407572, 2011/00407599, 2011/00407623
Judgment on defendants' motions to quash charges or stay proceedings
The plaintiff, David Palfrey, is an authorised officer for the purposes of Schedule 2 to the Road Transport (General) Regulation 2005 (NSW) ("the Regulation"). The regulation is promulgated under the Road Transport (General) Act 2005 (NSW) ("the Act"). In that capacity, Mr Palfrey has commenced proceedings in this Court in its summary criminal jurisdiction preferring charges against the defendants. The defendants are South Penrith Sand & Soil Pty Ltd ("the company"), Peter John Spiteri, a director and scheduler of the company and Jason Roberts, a scheduler of the company.
The company supplies and delivers soil and sand. In the course of its business it uses trucks of different sizes. Some have a Gross Vehicle Mass (GVM) of 12 tonnes or more and are classified as heavy trucks. So classified, they are regulated heavy vehicles within the meaning of that term in the Act. The company has 14 drivers. The Regulation imposes on drivers a duty not to drive regulated heavy vehicles on road or road-related areas while impaired by fatigue. Duties are also imposed on others, including employers and schedulers of such drivers.
Representatives of the Department administering the Act and the Regulation attended the company's premises and inspected its records. The proceedings were commenced relying on the information so obtained.
The Legislation
Section 3 of the Act contains these definitions -
"applicable road law means:
Chapter 3 and Part 4.2, or
(a) regulations made under Chapter 3 or Part 4.2, or
(b) the Road Transport (Mass, Loading and Access) Regulation 2005, or
(c) regulations made under section 11B or 11C (except in Chapter 3, unless otherwise provided by the regulations), or any other provision of the road transport legislation prescribed by the regulations for the purposes of this definition.
applicable road law offence means an offence against an applicable road law.
...
GVM (gross vehicle mass) of a vehicle means the maximum loaded mass of the vehicle:
(a) as specified by the vehicle's manufacturer on an identification plate on the vehicle, or
(b) as specified by the Authority if:
(i) a mass is not specified by the vehicle's manufacturer on an identification plate on the vehicle, or
(ii) a mass so specified on an identification plate is no longer appropriate because the vehicle has been modified.
...
reasonable steps defence-see sections 87, 88 and 89."
Sections 87, 88 and 89 are as follows -
"87 Reasonable steps defence for mass requirements: drivers, operators and owners
(1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant:
(a) did not know, and could not reasonably be expected to have known, of the contravention, and
(b) had taken all reasonable steps to prevent the contravention.
(2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.
(3) The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:
(a) the load had been weighed, or
(b) the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.
(4) Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned.
(5) If the defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that:
(a) no director of the corporation, and
(b) no person having management functions in the corporation in relation to activities in connection with which the contravention occurred,
knew of the contravention or could reasonably be expected to have known of it.
88 Reasonable steps defence for other mass, dimension and load restraint requirements
(1) ApplicationThis section does not apply to an offence relating to a mass requirement if the defendant is the driver, operator or owner of the vehicle concerned.
(2) DefenceIf a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a prosecution for an offence to which this section applies if the defendant establishes that:
(a) the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and
(b) either:
(i) the defendant had taken all reasonable steps to prevent the contravention, or
(ii) there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention.
(3) Matters that court may have regard toWithout limiting the above, in determining whether things done or omitted to be done by the defendant constitute reasonable steps, a court may have regard to:
(a) the circumstances of the alleged offence, including (where relevant) the risk category to which the breach concerned belongs, and
(b) without limiting paragraph (a), the measures available and measures taken for any or all of the following:
(i) to accurately and safely weigh or measure the vehicle or combination or its load or to safely restrain the load in or on the vehicle or combination,
(ii) to provide and obtain sufficient and reliable evidence from which the weight or measurement of the vehicle or combination or its load might be calculated,
(iii) to manage, reduce or eliminate a potential breach arising from the location of the vehicle or combination, or from the location of the load in or on the vehicle or combination, or from the location of goods in the load,
(iv) to manage, reduce or eliminate a potential breach arising from weather and climatic conditions, or from potential weather and climatic conditions, affecting or potentially affecting the weight or measurement of the load,
(v) to exercise supervision or control over others involved in activities leading to the breach, and
(c) the measures available and measures taken for any or all of the following:
(i) to include compliance assurance conditions in relevant commercial arrangements with other responsible persons,
(ii) to provide information, instruction, training and supervision to employees to enable compliance with relevant laws,
(iii) to maintain equipment and work systems to enable compliance with relevant laws,
(iv) to address and remedy similar compliance problems that may have occurred in the past, and
(d) whether the defendant had, either personally or through an agent or employee, custody or control of the vehicle or combination, or of its load, or of any of the goods included or to be included in the load, and
(e) the personal expertise and experience that the defendant had or ought to have had or that an agent or employee of the defendant had or ought to have had
89 Reasonable steps defence-reliance on container weight declaration
(1) This section applies where the owner, operator or driver of a vehicle or combination is prosecuted for an offence involving a breach of a mass requirement and is seeking to establish the reasonable steps defence in relation to the offence.
(2) To the extent that the weight of a freight container together with its contents is relevant to the offence, the defendant may rely on the weight stated in the relevant container weight declaration, unless it is established that the defendant knew or ought reasonably to have known that:
(a) the stated weight was lower than the actual weight, or
(b) the distributed weight of the container and its contents, together with:
(i) the mass or location of any other load, or
(ii) the mass of the vehicle or combination or any part of it,
would cause one or more breaches of mass requirements."
The expression "Road Transport Legislation" is defined in section 5 -
"5 Meaning of 'road transport legislation'
(1) In this Act, the road transport legislation means the following:
(a) this Act,
...
(h) statutory rule made under any Act referred to in paragraphs (a)-(f) (or any provision of such an Act)."
The term "statutory rule" includes a regulation - see Interpretation Act 1987 (NSW), s 21. Section 10 of the Act confers the general power to make regulations. Section 11B of the Act deals with regulations concerning fatigue management. It is as follows -
"11B Regulations relating to fatigue management
(1) Regulations may be made for or with respect to the management and prevention of driver fatigue in connection with the driving of heavy vehicles and heavy combinations.
(2) Without limiting the generality of subsection (1), regulations may be made for or with respect to the following:
(a) the duties of drivers of heavy vehicles and heavy combinations,
(b) the duties of employers of drivers of heavy vehicles and heavy combinations, prime contractors, operators, schedulers, consignors, consignees, loading managers, loaders and unloaders,
(c) the duties of other persons who make use of or engage in activities involving the use or operation of heavy vehicles or heavy combinations or who may do so,
(d) the periods that drivers of heavy vehicles and heavy combinations spend working and resting,
(e) the making, keeping, possession and inspection of records in respect of heavy vehicles or heavy combinations and their drivers,
(f) the medical examination of drivers of heavy vehicles and heavy combinations,
(g) risk management processes, principles and factors to be applied,
(h) reasonable steps defences or other defences for offences under regulations made under this section,
(i) the recognition of decisions in other jurisdictions in relation to the management of fatigue in drivers of heavy vehicles or heavy combinations,
(j) the accreditation of operator fatigue management systems and auditing of such systems.
(3) A regulation made under this section may create an offence punishable by a penalty not exceeding 250 penalty units.
(4) This section is in addition to, and does not limit, any other regulation-making power contained in this Act or any other applicable road law."
Part 5.1 of Chapter 5 of the Act deals with liability for offences. Sections 176, 177 and 178 are as follows -
"176 Multiple offenders
(1) This section applies where a provision of the road transport legislation provides (expressly or impliedly) that each of 2 or more persons is liable for an applicable road law offence.
(2) Proceedings may be taken against all or any of the persons.
(3) Proceedings may be taken against any of the persons:
(a) regardless of whether or not proceedings have been commenced against any of the other persons, and
(b) if proceedings have been commenced against any of the other persons-regardless of whether or not the proceedings have been concluded, and
(c) if proceedings have been concluded against any of the other persons-regardless of the outcome of the proceedings.
(4) This section has effect subject to section 177 and to any express provisions of the road transport legislation.
177 Double jeopardy
(1) A person may be punished only once in relation to the same failure to comply with a particular provision of the road transport legislation, even if the person is liable in more than one capacity.
(2) Despite subsection (1), a person may be punished for more than one breach of a requirement where the breaches relate to different parts of the same vehicle or combination.
178 Liability of directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees
(1) If a body corporate commits an offence under the road transport legislation, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly.
(2) If a person who is a partner in a partnership commits an offence under an applicable road law in the course of the activities of the partnership, each other person who is a partner in the partnership, and each other person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly.
(3) If a person who is concerned in the management of an unincorporated association commits an applicable road law offence in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly.
(4) If an employee commits an applicable road law offence, the employer is taken to have committed the offence and is punishable accordingly.
(4A) Subsections (1), (2), (3) and (4) do not apply in respect of an offence under a provision of a regulation made under the road transport legislation that is declared by such a regulation to be an excluded provision for the purposes of this section.
(5) This section does not affect the liability of the person who actually committed the offence.
(6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence.
(7) It is a defence to a prosecution for an offence arising under subsection (1) if the defendant establishes that:
(a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence, or
(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.
(8) It is a defence to a prosecution for an offence arising under subsection (2) or (3) if the defendant establishes that:
(a) the defendant was not in a position to influence the conduct of the person who actually committed the offence, or
(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.
(9) It is a defence to a prosecution for an offence arising under subsection (4) if the defendant establishes that:
(a) the defendant had no knowledge of the actual offence, and
(b) the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence."
Part 6 of the Regulation deals with Heavy Driver Fatigue. Clause 39 incorporates these definitions -
"heavy truck means:
(a) a motor vehicle (except a bus or tram) with a GVM over 12 tonnes, or
(b) a motor vehicle (except a bus or tram) that is part of a combination, if the total of the GVMs of the vehicles in the combination is over 12 tonnes.
...
operator, in relation to a regulated heavy vehicle, means a person who is responsible for controlling or directing the operations of:
(a) in the case of a vehicle (including a vehicle in a combination)-the vehicle, or
(b) in the case of a combination-the towing vehicle in the combination,
but does not include a person merely because the person:
(c) owns the vehicle or combination, or
(d) drives the vehicle or combination, or
(e) maintains, or arranges for the maintenance of, the vehicle or combination, or
(f) arranges for the registration of the vehicle.
...
party in the chain of responsibility, in relation to a regulated heavy vehicle, means any of the following persons:
(a) the employer of the driver of the vehicle,
(b) the prime contractor of the driver,
(c) the operator of the vehicle,
(d) the scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver,
(e) the consignor of goods for transport by the vehicle,
(f) the consignee of goods for transport by the vehicle,
(g) the loading manager of goods for transport by the vehicle,
(h) the loader of goods on to the vehicle,
(i) the unloader of goods from the vehicle.
Note. A person may be a party in the chain of responsibility in more than 1 capacity. Example-a person may be an employer, operator and consignor at the same time in relation to a driver and be subject to duties in each of the capacities.
...
scheduler means a person who:
(a) schedules a driver's work or rest time, or
(b) schedules the transport of passengers or goods by road.
Note. Example of a person who makes a demand that affects a time in a schedule-The distribution manager for a retail chain or a loading agent or freight forwarder who sets a deadline for a delivery.
Note. Example of a person who does not make a demand that affects a time in a schedule-A person who has arranged for goods to be couriered by a transport company as a "part load" who has no control over the deadline for the delivery of the goods."
Clause 41 is as follows -
"41 What is the 'reasonable steps defence'
If a provision of this Part states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to the offence for the person to prove that:
(a) the person did not know, and could not reasonably be expected to have known, of the contravention concerned, and
(b) either:
(i) the person had taken all reasonable steps to prevent the contravention concerned, or
(ii) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned."
Clause 42 is as follows -
"42 Exclusion of mistake of fact defence
(1) This clause applies if a provision of this Part states that a person does not have the benefit of the mistake of fact defence for an offence.
(2) It is not a defence to the offence for the person to prove that, at or before the time of the act or omission constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant that the act or omission would not have constituted an offence."
Division 2 deals with duties relating to fatigue. It includes these clauses -
"43 What is 'fatigue'
(1) Fatigue includes (but is not limited to):
(a) feeling sleepy, and
(b) feeling physically or mentally tired, weary or drowsy, and
(c) feeling exhausted or lacking energy, and
(d) behaving in a way that is consistent with paragraph (a), (b) or (c).
(2) When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including (but not limited to) the following:
(a) what is commonly understood as being fatigued,
(b) the causes of fatigue,
(c) the signs of fatigue,
(d) the body of fatigue knowledge.
(3) A cause of fatigue is any factor that causes or contributes to a person's fatigue while driving a regulated heavy vehicle on a road (whether or not the cause arises while the person is at work).
Note. Examples of causes of fatigue:
· physical or mental exertion
· long periods of time awake
· not enough sleep or not enough restorative sleep
· not enough rest breaks
· a person's circadian rhythm (ie the "body clock")
· environmental stress (eg heat, noise, vibrations)
· personal health
(4) A sign of fatigue is a sign that a person was, is, or will be fatigued while driving a regulated heavy vehicle on a road (whether the sign manifests itself before, during or after work).
Note. Examples of signs of fatigue:
· a lack of alertness
· an inability to concentrate
· a reduced ability to recognise or respond to external stimuli
· poor judgement or memory
· making more mistakes than usual
· drowsiness, or falling asleep, at work (including micro sleeps)
· finding it difficult to keep the eyes open
· needing more frequent naps than usual
· not feeling refreshed after sleep
· excessive head nodding or yawning
· blurred vision
· mood changes, increased irritability or other changes to the person's mental health
· changes to the person's health or fitness
(5) The body of fatigue knowledge includes any accreditation scheme, scientific knowledge or expert opinion, guidelines, standards or other knowledge that is relevant to preventing or managing the exposure to risk of fatigue, either at a workplace or on a road.
44 What is 'impaired by fatigue'
(1) A driver is impaired by fatigue if the driver's ability to drive a vehicle safely is affected by fatigue.
(2) When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including (but not limited to) the following:
(a) any relevant cause of fatigue or sign of fatigue that was evident, and the degree to which it may indicate that the driver was impaired by fatigue,
(b) any behaviour of the driver that may have resulted from being impaired by fatigue,
Note. Examples:
● the circumstances of any incident, crash or near miss
● poor driving judgement
● inattentive driving (eg drifting into other lanes or not changing gears smoothly)
(c) the nature and extent of any physical or mental exertion by the driver,
(d) whether the driver was in breach of his or her work and rest hours.
(3) A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Part (for example, the standard hours) or under any other legislation.
45 Driver's duty to avoid driver fatigue
(1) A person must not drive a regulated heavy vehicle on a road or road related area while he or she is impaired by fatigue.
Maximum penalty: 20 penalty units.
(2) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.
46 Duty of parties in the chain of responsibility to prevent driver fatigue
(1) A party in the chain of responsibility in relation to a regulated heavy vehicle must take all reasonable steps to ensure that a person does not drive the vehicle on a road or road related area while the person is impaired by fatigue.
Maximum penalty:
(a) in the case of an individual-25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).
(2) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.
47 Intention irrelevant in determining causation
For the purposes of this Subdivision, a person can cause something to happen even though the person had no intention of causing that thing to happen.
48 Cause includes "contribute to causing" and "encourage"
For the purposes of this Subdivision, a reference to causing a thing includes a reference to contributing to causing the thing, and to encouraging the thing.
49 Duties on employers, prime contractors and operators
(1) This clause applies to:
(a) the employer of an employed driver of a regulated heavy vehicle, and
(b) the prime contractor of a self-employed driver of a regulated heavy vehicle, and
(c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.
(2) The employer, prime contractor and operator each must take all reasonable steps to ensure that the employer's, prime contractor's or operator's business practices will not cause, by act or omission, the driver:
(a) to drive on a road or road related area while impaired by fatigue, or
(b) to drive while in breach of his or her work and rest hours option, or
(c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
Note. Examples of business practices that may cause a driver to drive while impaired by fatigue by omission:
● failing to provide for remuneration for time spent queuing,
● failing to provide rest breaks in a driver's schedule,
● failing to provide for contingency plans for unexpected traffic delays,
● failing to provide for loading or unloading in schedule times.
(3) The employer must not cause the driver to drive the vehicle unless:
(a) the employer has complied with subclause (2), and
(b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with clause 50.
Maximum penalty:
(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
(4) The prime contractor and operator each must not cause the driver to drive the vehicle, or enter into a contract or agreement with the driver to that effect, unless:
(a) the prime contractor or operator has complied with subclause (2), and
(b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with 50.
Maximum penalty:
(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
(5) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.
(6) In this clause, business practices of an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the business, and includes:
(a) the operating policies and procedures of the business, and
(b) the human resource and contract management arrangements of the business (including the method by which driver remuneration is calculated), and
(c) arrangements for managing safety.
50 Duties of schedulers
(1) This clause applies to the scheduler of:
(a) a regulated heavy vehicle, or
(b) a driver of a regulated heavy vehicle.
(2) The scheduler must take all reasonable steps to ensure that a driver's schedule for driving the vehicle will not cause, by act or omission, the driver:
(a) to drive on a road or road related area while impaired by fatigue, or
(b) to drive while in breach of his or her work and rest hours option, or
(c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(3) The scheduler must not cause the driver to drive the vehicle unless:
(a) the scheduler has complied with subclause (2), and
(b) the driver's schedule for driving the vehicle allows for:
(i) the driver to take rest breaks in accordance with his or her work and rest hours option, and
(ii) traffic conditions and other delays that could reasonably be expected.
Maximum penalty:
(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
(4) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.
...
53 Duty to assess and manage fatigue of drivers
(1) This clause applies to:
(a) the employer of an employed driver of a regulated heavy vehicle, and
(b) the prime contractor of a self-employed driver of a regulated heavy vehicle, and
(c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator, and
(d) the scheduler of:
(i) a regulated heavy vehicle, or
(ii) a driver of a regulated heavy vehicle, and
(e) the consignor of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and
(f) the consignee of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and
(g) the loading manager of goods for transport by a regulated heavy vehicle, and
(h) the loader of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and
(i) the unloader for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business.
(2) A person to whom this clause applies must:
(a) identify and assess the aspects of the activities of the person, and the driver, that may lead to a contravention of a fatigue management requirement by the driver, and
(b) for each aspect identified and assessed under paragraph (a), identify and assess:
(i) the risk of the aspect leading to a contravention of a fatigue management requirement by the driver, and
(ii) if there is a risk of the aspect leading to a contravention of a fatigue management requirement by the driver-the measures the person may take to eliminate the risk or, if it is not reasonably practicable to eliminate the risk, to control the risk, and
(c) carry out the identification and assessment referred to in paragraphs (a) and (b):
(i) at least annually, and
(ii) after each event that indicated the way the activities of the person or driver have led, or may lead, to a contravention of a fatigue management requirement by the driver, and
(d) take the measures identified and assessed under paragraph (b) (ii), and
(e) document the actions taken under paragraphs (a)-(d) and retain that documentation for at least 3 years.
Maximum penalty:
(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(3) It is a defence to any proceedings against a person for an offence against subclause (2) if the person proves that:
(a) it was not reasonably practicable for the person to comply with that subclause, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision."
Clauses 56 - 62 deal with duties relating to work and rest times. Work time and rest time are defined. Maximum work hours are prescribed. Minimum relevant rest times are prescribed. A total of standard hours for solo drivers is set forth in clause 64.
The Summonses
There are five summonses in which the company is the defendant. Number 2011/407510 charges breaches of cl 49(2)(a) and alternatively, cl 46. It is asserted that on each of six occasions, of which particulars are given, drivers drove while impaired by fatigued. The company is charged that, on each occasion, as employer of the driver, it did not take all reasonable steps to ensure that its business practices did not cause the driver to drive while impaired by fatigue and, alternatively, that on each occasion, as a party in the chain of responsibility, it did not take all reasonable steps to ensure that the driver did not drive while impaired by fatigue.
Summons 2011/407525 charges breaches of cl 49(2)(b) in that on each of eleven occasions, of which particulars are given, drivers drove in excess of the standard work hours for a solo driver of a regulated heavy vehicle and that on each occasion the company, as employer, did not take all reasonable steps to ensure that its business practices did not cause the driver to drive while in breach of his standard work hours.
Summons 2011/407531 charges breaches of cl 50(2)(a) in that on each of six occasions, of which particulars are given, drivers drove while impaired by fatigue. On each occasion the scheduler, Mr Roberts, did not take all reasonable steps to ensure that the drivers schedule did not cause him to drive impaired. On each occasion, the company was liable as employer of the scheduler as provided by s 178(4).
Summons 2011/407560 charges breaches of cl 50(2)(b) in that on each of six occasions, of which particulars are given, a driver drove in excess of his standard work hours and the scheduler, Mr Roberts, did not take all reasonable steps to ensure that the driver's schedule did not cause him to drive while in breach of his standard work hours. On each occasion, the company was liable as employer of the scheduler as provided by s 178(4).
Summons 2011/407567 charges breaches of cl 64 in that on each of eleven occasions, of which particulars are given, a driver drove in excess of the standard work hours of a solo driver of a regulated heavy vehicle. The company was liable as employer of each driver as provided by s 178(4).
There are four summonses in which Mr Spiteri is the defendant. Number 2011/407520 charges breaches of cl 49(2)(b) in that on each of eleven occasions a driver drove in excess of standard work hours, the company as employer did not take all reasonable steps to ensure that its business practices did not cause the driver to do so and that Mr Spiteri, as a director, is liable as provided by s 178(1).
Summons 2011/407563 charges a breach of cl 50(2)(a) in that a driver on an occasion particularised drove while impaired by fatigue. Mr Spiteri was the scheduler and did not take all reasonable steps to ensure that the driver's schedule did not cause him so to drive.
Summons 2011/407572 charges Mr Spiteri, as a director of the company, as liable as provided by s 178(1) for breaches of cl 49(2)(a), or alternatively, cl 46, on six occasions of which particulars are given.
Summons 2011/407599 charges a breach of clause 50(2)(b) in that a driver, on an occasion of which particulars are given, drove in breach of the standard work hours for a solo driver of a heavy vehicle and Mr Spiteri, as scheduler, did not take all reasonable steps to ensure that the driver's schedule did not cause him so to drive.
There are two summonses in which Mr Roberts is the defendant. Number 2011/407623 charges breaches of cl 50(2)(a) in that on six occasions drivers drove while impaired by fatigue, particulars of which are supplied, and that Mr Roberts, as scheduler, did not take reasonable steps to ensure that the drivers' schedules did not cause them so to drive.
Summons 2011/407636 charges a breach of cl 50(2)(b) in that on six occasions, particulars of which are supplied, drivers drove in breach of the standard hours and that Mr Roberts, as scheduler, failed to take all reasonable steps to ensure that the schedules did not cause the drivers to drive in breach of their standard work hours.
Some or all of the particularised occasions of driving have resulted in more than one charge. The eleven occasions particularised in summonses 2011/407520, 2011/407525 and 2011/407567 are the same. The six occasions in summonses 2011/407510 and 2011/407572 are the same. Those in summonses 2011/407560 and 2011/407636 are the same. Those in summonses 2011/407531 and 2011/407623 are the same.
On 3 April 2012, each of the three defendants filed a notice of motion. Each identified the summonses pertaining to the moving party and sought these orders -
"The Court orders:
1) That so many of the charges set out in the schedule hereto be quashed:
a. as are found impermissibly to arise from the same facts or transaction.
b. for such other reason as the Court may find.
2) In the alternative that the proceedings in respect of the Order and Charge set forth hereunder be stayed until further order of the Court..."
Each notice of motion was endorsed with these words -
"The Court notes:
That the defendant will plead guilty to all charges which the Court finds are properly available."
In written submissions attention was drawn to the form of the orders sought in the notices of motion, but it is convenient to consider the vice which Mr Hatcher SC submitted lay in the charges concurrently laid. Mr Hatcher submitted that the plaintiff was not entitled at law to maintain certain charges concurrently, or at least to have certain convictions, entered up concurrently.
The summonses were filed on 19 December 2011 and correspondence ensued between the solicitors for the parties. Progress was made but differences emerged between the parties' respective understanding of the way the prosecutor proposed to put his case in certain respects. A letter dated 16 March 2012, written by Farry & Co Solicitors, solicitors for the defendants, to Hicksons Lawyers, solicitors for the prosecutor, contained these paragraphs -
"...4. Our clients have instructed us to enter a pleas of guilty to any charge to which they may be lawfully exposed at the earliest opportunity.
5. We see a number of difficulties in the charges as framed, which we sought to highlight in the earlier correspondence.
...
7. Despite the early discussions between our counsel and your counsel, in which there was an offer of some limited disclosure of the prosecution evidence on request, we have not been provided with the proposed statement of facts, which was the only material sought until our client enters a plea to the charges as framed. This approach appears unhelpful. Our clients and the Court are each entitled to an accurate recitation of the facts.
...
9. In our correspondence we attempted to highlight the dilemma arising from the state of the law in relation to double jeopardy as discussed in cases such as EPA v Australian Iron and Steel P/L (1992) 28 NSWLR 50 (most particularly per Gleeson CJ at 506E et seq), Pearce v The Queen (1998) 194 CLR 610 (see generally, though the issue is highlighted by Kirby J at p. 650 [120]) and, more recently, by Lloyd J in D-G Dept of Land and Water Conservation v Greentree [2002] NSWLEC 102, most particularly at [76] - [79]. Regardless of our clients' approach, these are matters upon which the Court will be entitled to some assistance from the parties.
10. In a case where our clients are keen to plead to such offences as are properly available on the facts alleged to be brought against them, and where the state of the authorities appear, at least to us as presently advised, to raise the question of whether the multiple pleading is an abuse of process or whether the charges, whilst properly available should result in the imposition of only one penalty, it seems curious that the Court should be troubled with the issue. Surely a sensible pragmatic discussion between the parties could reduce the matters which need to be ventilated before the Court to a minimum."
In a reply of the same date, Hicksons Lawyers stated -
"4. No comment.
5. No comment
...
7. The writer understands our respective counsels might have discussed (but not agreed) our client make a statement of facts available at the initial return date only. We confirm that there has been no formal request by you or your clients for a statement of agreed facts. In any event, it is contrary to Division 2 of Chapter 4 of Criminal Procedure Act 1986 and it is not usual practice for a statement of agreed facts to be drafted before a guilty plea is entered by a defendant.
...
9. The principle behind the concept of double jeopardy, namely that a person cannot be punished twice for the same offence and that a person cannot be convicted of two offences where one offence is an element of a more serious offence is well established. Although a person may not be put in jeopardy twice for the same offence, a person may be put in jeopardy twice for the same conduct arising from the same set of primary facts. In EPA v Australian Iron and Steel P/L (1992) 28 NSWLR 502, Chief Justice Gleeson said [at 508E]:
Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another.
We completely understand that you and your clients might have difficulty in defining the relevant set of facts to determine whether or not offences are the same. It is difficult and complex legislation. The summons regarding clauses 49(2)(a) & (b) and 50(2)(a) & (b) of the Road Transport (General) Regulation 2005 ('Regulation') do not focus on the same aspect of the primary facts.
An analysis of the case law relevant to considering whether a summons is bad for duplicity permits two conclusions: firstly, the issue of duplicity in relation to multiple acts of criminality is to be considered. A count is not duplicitous if it relates to one activity but involves more than one act. Secondly, in every case it is a question of fact and degree. It depends upon the particular circumstances of the case, the proper construction of the offence provision, and how the prosecution presents its case.
For example, in the case of charges laid against SPSS and Mr Spiteri under clause 49(2)(a) and (b) of the Regulation, a proper construction of the offence provision in cl 49(2)(b) is that is proscribes business practices which cause a driver to drive in excess of standard work hours as prescribed by cl 64; whereas the proper construction of the offence provision in cl 49(2)(a) is that it proscribes business practices that cause drivers to drive whilst fatigued. The primary facts leading to each separate offence are not the same. The primary facts under clause 49(2)(a) related to business practices in relation to fatigue and under clause 49(2)(b) relate to business practices in relation to work and rest hours options. The conduct of each defendant is not the same, the elements of each offence are not the same an the primary facts of each offence are not the same.
Further, Mr Spiteri is alleged to be liable for offences committed by SPSS by operation of section 178(1) of the Road Transport (General) Act 2005 ('the Act'). Our client does not agree with your interpretation of section 177 of the Act. In our view, section 178 of the Act does not prohibit charges being laid against multiple persons for the same offence. This would be inconsistent with the 'chain of responsibility' legislation, amongst other things:
(i) to improve road safety for drivers of transport vehicles and members of the general public;
(ii) to limit the number and severity of heavy vehicle accidents and in doing so reduce fatalities; and
(iii) to hold responsible multiple persons in the chain of responsibility for an offence under the road laws legislation.
By way of comparison, you can see in our summons laying charges against SPSS and Peter Spiteri under clauses 46 and 49(2)(a) of the Regulation that we have pleaded these charges in the alternative as, we allege, they arise from the same conduct, set of primary facts and each have the same elements. In our view the offences your clients have been charged with are properly available to the prosecutor under the Regulation and are not an abuse of process.
10. We repeat our comments in response to paragraph 9 of your letter."
On 28 March 2012, Farry & Co Solicitors wrote as follows -
"...We note that you have informed us that you will not provide our clients with any further information to assist them in determining whether to enter a plea to the charges.
As we have previously noted, our clients are mindful of the fact that they were unaware of their obligations and so had no relevant systems in place to ensure their compliance with the legislation under which they are now charged. They do not wish to put the prosecution to proof of the matters alleged and accept their culpability in relation to any charges which may lawfully be brought against them. As you are aware, we are of the view, and have advised our clients to this effect, that the multiplicity of charges brought against them constitutes an abuse of the Court's process. We are instructed to move the Court to have this issue determined.
In order, however, to deal with the matter as efficiently as possible we are instructed to make the following admissions:
1. On each occasion particularised in the charges in these proceedings (as summarised in Schedule 1 hereto) the relevant driver worked the hours alleged, or hours in excess of the standard hours, and the defendant the subject of the charge was thereby in breach of the provision nominated in the charge.
2. On each occasion when it is alleged a driver was impaired by fatigue (as summarised in Schedule 2 hereto) the relevant driver worked in excess of the standard hours prescribed under the relevant legislation and accordingly, by operation of cl 44 (2)(d) of the Road Transport (General) Regulation was impaired by fatigue. Accordingly, the defendant the subject of each charge was in breach of the provision nominated in the charge.
3. It is admitted that at all material times Peter Spiteri and...were directors of South Penrith Sand and Soil Pty Limited.
4. It is admitted that South Penrith Sand and Soil Pty Limited was the employer of the following employed drivers, at all times material to the charges:
Craig Patrick Fosse;
Christopher Michael Attard;
Stephen John Day;
Benjamin William Day;
Matthew Ian Day;
Brian Charles Formosa
5. It is admitted that at all material times, the said drivers drove regulated heavy vehicles in the course of their employment on a road or road related area.
6. It is admitted that at all material times South Penrith Sand And Soil Pty limited employed Jason Roberts as a scheduler.
7. It is admitted that at the times material to the charges relating to Peter Spiteri as scheduler, that he was a scheduler.
8. It is admitted that the vehicles driven by the drivers were at all material times regulated heavy vehicles.
9. It is admitted that David Palfrey is an authorised officer for the purposes of Schedule 2 to the Road Transport (General) Regulation, 2005
Accordingly, the position of each defendant in relation to the charges in each summons is as follows:
SOUTH PENRITH SAND AND SOIL PTY LIMITED
12011/407510
South Penrith Sand and Soil will plead guilty to the charges which the Court determines are properly available
22011/407525 and 2011/407567
South Penrith Sand and Soil will plead guilty to such charges as the Court determines are properly available.
32011/407531
South Penrith Sand and Soil will plead guilty to such charges as the Court determines are properly available.
42011/407560
South Penrith Sand and Soil will plead guilty to such charges as the Court determines are properly available.
JASON ROBERTS
1. 2011/407623
Jason Roberts will plead guilty to such charges as the Court determines are properly available.
12011/407636
Jason Roberts will plead guilty to such charges as the Court determines are properly available.
PETER SPITERI
12011/407520
A plea of guilty will be entered.
22011/407563
Peter Spiteri will plead guilty to such charges as the Court determines are properly available.
32011/407599
Peter Spiteri will plead guilty to such charges as the Court determines are properly available.
42011/407572
A plea of guilty will be entered..."
Much correspondence followed but the parties were unable to agree on a statement of facts. There was extensive discussion and disagreement about the legal basis of the defendants' notices of motion, whether the defendants were demurring or not, what the consequences of demurrer might be and so on. A lot of effort did little to solve the problems aired. When listed, the hearing before me was estimated to take two days. When the Prosecutor began, counsel for the defendant objected to the tender of documents and proposed that one week would be required to deal with the objections. I sent counsel away and instructed them to try to produce an agreed statement of facts. They were unable to do so.
I received into evidence three documents, each entitled "Prosecutor's Statement of Facts". Exhibit A related to the charges against the company, exhibit B to those against Mr Spiteri and exhibit C to those against Mr Roberts. Each of the statements contains summaries of evidence and I understand that the defendant would object to those summaries. It seems that the questions raised by the notices of motion appear not to require findings of fact, I will assume the existence of the facts stated in the documents I have referred to.
The expression "...will plead guilty to such charges as the Court determines are properly available" is used repeatedly in the letter dated 28 March 2012 and the expression in the notices of motion asking "that so many of the charges...be quashed...as are found impermissibly to arise from the same facts or transaction" refers to the same points of contention. During the hearing, Mr Hatcher identified two questions.
Mr Hatcher observed that as the summonses were framed, single acts or omissions were said to give rise to a number of offences. So questions of a plea in bar or double jeopardy arose. Mr Hatcher submitted that the first question arose where one defendant was charged with more than one offence arising out of a single set of facts. He cited as an example three charges against the company arising out of a single breach by a driver. In count 1 of summons 2011/407525 it is asserted that on 5 March 2010 a driver, Craig Patrick Fosse, drove heavy vehicle PJS007 in breach of standard work hours: cl 64. Particulars of the breach are given. The driver was an employee of the company. The company did not take all reasonable steps to ensure that its business practices did not cause the driver to drive while in breach of standard work hours: cl 49(2)(b).
In count 1 of summons 2011/407560 it is asserted as before that on 5 March 2010, Mr Fosse drove the vehicle in breach of standard work hours: cl 64. Mr Roberts was his scheduler. Mr Roberts did not take all reasonable steps to ensue that the driver's schedule did not cause him to drive in breach of standard work hours: cl 50(2)(b). Mr Roberts was an employee of the company. The company was liable as provided by s 178(4).
In count 1 of summons 2011/407567 it is asserted as before that on 5 March 2010, Mr Fosse drove the vehicle in standard work hours: cl 64. The company was liable as his employer: s 178(4).
In these three summonses the company is said to be liable for its own omission in relation to its business practices, for Mr Fosse's breach as his employer and for Mr Roberts' failure as his employer.
Mr Hatcher drew attention to section 177(1) of the Act and submitted that the prosecutor's intent was to make the company liable in more than one capacity. Section 177(1) therefore applied with the effect that the prosecutor should not be permitted to proceed on all three counts.
Mr Hatcher referred also to common law principles, citing Australian Oil Refinery Pty Ltd v Cooper (1987) 11 NSWLR 277 and Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502, both decisions of the Court of Criminal Appeal, and Maher v The Queen [2011] VSCA 136, an unreported decision of the Court of Appeal of the Supreme Court of Victoria. As Gleeson CJ observed in Environment Protection Authority v Australian Iron & Steel Pty Ltd, supra, it is necessary to distinguish between two convictions following from the same facts and two convictions for the same offence. Both decisions of the Court of Criminal Appeal show that a single act of a defendant may attract more than one prosecution each arising under its own statute, where each statute has its own way of characterising the defendant's act or fastens on a different aspect of the defendant's act.
In the present case, however, there is only one statute. Part 6 of the Regulation concerns itself with work and rest hours and driver fatigue. Although clauses 49, 50 and 64 work in different ways they do not appear to be concerned with relevantly different objects. They work together towards a common goal of promoting road safety by regulating work and rest hours and guarding against driver fatigue. I do not think, therefore, that multiple prosecutions based in part upon a single act of driving ought to be held good merely because they arise from different statutory provisions.
The Court of Appeal of the Supreme Court of Victoria considered a problem not unlike the present one. In two counts of an indictment the defendant pleaded guilty and was convicted of two offences. The more serious involved possessing and throwing two Molotov cocktails and the consequences. The other count was for mere possession. The argument on appeal was that the appellant could not have thrown the Molotov cocktails without himself possessing them, so there was no criminality for the possession count to comprehend. The reasons of the Court, given by Ashley JA, make clear that it would have accepted that argument and quashed the conviction on the possession count but for the fact that it was capable of applying to possession at an earlier time. Ashley JA dealt at [23] - [34] with a number of Victorian cases dealing with this problem.
It seems clear from these cases that where there is a conviction of an offence which comprehends all the defendant's acts, a second conviction which comprehends only some of them may be held bad.
Returning to the present case, an owner has a duty to take all reasonable steps to ensure that its business practices do not by act or omission cause a driver to drive in a proscribed manner. The owner's business practices are its practices in running its business. They include operating policies and procedures and the management of people, to paraphrase clause 49(6)(b). They include arrangements for managing safety. In my opinion, the definition of business practices is broad enough to include scheduling drivers' hours of work and rest according to the requirements of clause 64 and in a way that does not require a driver to drive while impaired by fatigue. So an owner whose scheduler fails to take the necessary steps and whose driver offends against work or rest hours requirements or drives while impaired by fatigue offends if it fails to take all reasonable steps to ensure that those things do not happen. The criminality of the owner under clause 49(2)(a) or (b) comprehends its responsibility for the proper management of the scheduler and the driver. It follows that if an owner is convicted under clause 49(2)(a) or (b) any further charge asserting its responsibility for the shortcomings of the scheduler or the driver can comprehend no further criminality.
If the prosecutor maintains the charge against the company in count 1 of summons 2011/407525, the corresponding counts in summonses 2011/407560 and 2011/407567 should be struck out.
A number of charges assert the company's liability as a party in the chain of responsibility. The second count in summons 2011/407510 is an example. The charge first cites clause 46 and continues in part -
" ...between 17 March 2010 and 18 March 2010, an employee of the Defendant did drive a regulated heavy vehicle on a road or road related area while impaired by fatigue and that the Defendant, being a party in the chain of responsibility, did not take all reasonable steps to ensure that the driver did not drive on a road or road related area while impaired by fatigue".
The particulars include these paragraphs -
"(b) The Defendant is a party in the chain of responsibility as defined in clause 39 of the Road Transport (General) Regulation 2005
(c) The Defendant did not take all reasonable steps to ensure that the driver did not drive the vehicle on a road or road related area while impaired by fatigue, in that the Defendant encouraged the Driver to drive while impaired by fatigue.
(d) In doing so the Defendant contravened clause 46 of the Road Transport (General) Regulation 2005."
In my view the responsibility of a party in the chain of responsibility under clause 46 is as broad as that of an employer under clause 49(2) concerning its business practices. The remarks I have made about a charge brought under clause 49(2) apply to a charge brought under clause 46.
These counts are examples of a wider problem that occurs throughout the prosecutor's pleadings. I shall require the prosecutor to identify such instances and state clearly what his intention is.
As I observed earlier, Mr Hatcher submitted that s 177 of the Act prevented the entry of conviction for more than offence in the example I have used. I doubt whether that is so. The parties made no reference to authority about the meaning of double jeopardy as used in the Act's introduction to that section. Subs (1) is not easy to understand. It speaks of a person's being "liable" in more than one capacity. The liability must be "in relation to the same failure..." but whether the section refers to a liability to be convicted or merely a liability to be prosecuted in more than one capacity is not clear. At any rate, the section is clear when it states that a person may be punished only once. If the Parliament had intended the person to be convicted only once it would have presumably had said so. Accordingly, I do not think that s 177 is a bar to the bringing of multiple charges in the examples I have used.
However, I am of the opinion, that it is an abuse of process to charge the company in these several ways when there is a single underlying event and only one sentence can result. The prosecutor's practice in the framing of all the outstanding summonses has produced waste and expense.
The second question was said to arise from the concurrency of a charge based on a driver's driving while impaired by fatigue and a charged based on a driver's exceeding his standard work hours. I invited Mr Hatcher to identify two charges giving rise to this problem. He chose two summonses in which Mr Spiteri is the defendant, 2011/407563 and 2011/407599. Unfortunately, the choice was not a good one because summons 2011/407599 contains patent error. It is in the following terms -
"The prosecutor claims:
1.An order pursuant to section 246 of the Criminal Procedure Act 1986, that Peter John Spiteri ('Defendant') appear before this Court to answer the charge under clause 50(2)(b) of the Road Transport (General) Regulations 2005 that on 5 March 2010 a driver did drive a regulated heavy vehicle on a road or road related area while in breach of the standard work hours for a solo driver of a regulated heavy vehicle and that on that date, the Defendant was the scheduler of that driver and the vehicle and the Defendant did not take all reasonable steps to ensure that the driver's schedule for driving the vehicle did not cause the driver to drive while in breach of his standard work hours.
2.Particulars
a)On 15 January 2010, Mr Christopher Michael Attard ('Driver'), worked a total of 15 hours, 30 minutes, within a 24 hour time period.
b)The work time of the Driver was in breach of the standard hours for a solo driver of a regulated heavy vehicle, prescribed in clause 64 of the Road Transport (General) Regulation 2005.
c)While in breach of the standard work hours, the Driver did drive a regulated heavy vehicle, registration PJS-404 ('Vehicle').
d)On 15 January 2010, the Defendant was the scheduler of the Driver and the Vehicle.
e)The Defendant did not take all reasonable steps to ensure that the Driver's schedule for driving the Vehicle did not cause the Driver to drive while in breach of his work and rest hours option, in that the Defendant encouraged the Driver to drive while in breach of his work and rest hours option, namely the standard hours as set by clause 64.
f)In doing so the Defendant contravened clause 50(2)(b) of the Road Transport (General) Regulation 2005.
3.The Defendant be dealt with according to law for the commission of the offence in order 1 above.
4.An order that the Defendant pay the Prosecutor's costs."
The comparison was to have been with summons 2011/407563. That summons seems regular on its face and asserts that Mr Attard drove vehicle PJS 404 on 15 January 2010 while impaired by fatigue.
Because summons 2011/407599 asserts first that the driver drove in the manner stated on 5 March 2010 and goes on to particularise acts of driving on 15 January 2010 it is embarrassing. No defendant ought to be required to plead to it. As it stands, it ought to be struck out.
There is a better example. Mr Roberts is the defendant in summonses 2011/407623 and 2011/407636. He is charged as a scheduler. The first summons cites six occasions of driving while impaired by fatigue. The second cites six occasions of driving in breach of standard work hours. The fourth occasion of driving in the first of the summonses and the sixth occasion in the second appear to be the same occasion. I shall extract from the summonses the pleadings as they relate to those two charges.
Paragraph 4 of summons 2011/407623 is as follows -
"4. An order pursuant to section 246 of the Criminal Procedure Act 1986, that Jason Roberts ('Defendant') appear before this Court to answer the charge under clause 50(2)(a) of the Road Transport (General) Regulations 200 that on 31 March 2010 a driver did drive a regulated heavy vehicle on a road or road related area while impaired by fatigue and that on that date the Defendant was the scheduler of the driver and the vehicle and did not take all reasonable steps to ensure that the driver's schedule for driving the vehicle did not cause the driver to drive on a road or road related area while impaired by fatigue.
4.1.Particulars
(a) On 31 March 2010, Mr Brian Charles Formosa ('Driver'), did drive a regulated heavy vehicle ('Vehicle') on a road or road related area.
(b) While impaired by fatigue.
(c) On 31 March 2010, the Defendant was the scheduler of the Driver and Vehicle.
(d) The Defendant did not take all reasonable steps to ensure that the Driver's schedule for driving the Vehicle did not cause the Driver to drive on a road or road related area while impaired by fatigue, in that the Defendant encouraged the Driver to drive while impaired by fatigue.
(e) In doing so the Defendant contravened clause 50(2)(a) of the Road Transport (General) Regulation 2005..."
Paragraph 6 of summons 2011/407623 is as follows -
"6.An order pursuant to section 246 of the Criminal Procedure Act 1986, that Jason Roberts ("Defendant") appear before this Court to answer the charge under clause 50(2)(b) of the Road Transport (General) Regulations 2005 that on 31 March 2010 a driver did drive a regulated heavy vehicle on a road or road related area while in breach of the standard work hours for a solo driver of a regulated heavy vehicle and that on that date, the Defendant was the scheduler of that driver and the vehicle and the Defendant did not take all reasonable steps to ensure that the driver's schedule for driving the vehicle did not cause the driver to drive while in breach of his standard work hours.
6.1. Particulars
a)On 31 March 2010 Mr Brian Charles Formosa ('Driver'), worked a total of 17 hours, 31 minutes within a 24 hour time period.
b)The work time of the Driver was in breach of the standard hours for a solo driver of a regulated heavy vehicle, prescribed in clause 64 of the Road Transport (General) Regulation 2005.
c)While in breach of the standard work hours, the Driver did drive a regulated heavy vehicle ('Vehicle').
d)On 31 March 2010, the Defendant was the scheduler of the Driver and the Vehicle.
e)The Defendant did not take all reasonable steps to ensure that the Driver's schedule for driving the Vehicle did not cause the Driver to drive while in breach of his work and rest hours option, in that the Defendant encouraged the Driver to drive while in breach of his work and rest hours option, namely the standard hours as set by clause 64.
f)In doing so the Defendant contravened clause 50(2)(b) of the Road Transport (General) Regulation 2005..."
Mr Hatcher observed that the driver and the occasion of driving asserted in the two charges were the same. He submitted that it was clear from the terms of clause 50 that a breach of the standard hours provisions may give rise to a breach of the fatigue provision and it was "tolerably clear" that the breach of the standard work hours provision was said to be the basis of the fatigue charge so there was an exposure to double jeopardy.
It seems to me that clause 44(2)(b) enables the Court to take into account breach of work and rest hour provisions when deciding whether a driver was impaired by fatigue, but it does not require the Court to do so. Fatigue may be proved in a number of ways: cl 43 - 44(1). In deciding whether a driver was impaired by fatigue the Court may take into account anything it considers relevant.
There is nothing in the manner in which the prosecutor has pleaded these two charges that requires him to rely in proof of fatigue on any breach by the named driver of his rest and work hours option. There is nothing about the framing of the fatigue charge that suggests that the Prosecutor wishes to do so. I will not go into the detail of it, but it has become apparent during the protracted correspondence between the parties that the Prosecutor wishes to rely, inter alia, on the report of an expert about the fatiguing effect on drivers of continual periods of long hours of work. Mr Roser SC submitted that the point may be reached that a driver who has worked excessive hours over a number of successive days will be impaired by fatigue as soon as he begins work on the next occasion of driving.
I do not need to consider the several cases dealing with convictions and sentences when there are multiple charges arising from the same facts. Exactly how the Prosecutor intends to prove impairment by fatigue on the occasion charged remains to be seen. Insofar as the Prosecutor relies in proof of impairment on an excess of standard work hours, it remains to be seen whether that is an asserted excess on the day of driving particularised or on an earlier day or days.
I am not satisfied that if convictions result from the two charges they will result from the same facts. No question of double jeopardy arises. No question of a plea in bar arises and no occasion arises for the Prosecutor to elect with which charge he is to proceed.
Disposal
I make the following orders -
(1) Order that proceedings on all summonses be stayed until further order.
(2) Direct the Prosecutor to file and serve by 4:00pm on 15 November 2012 a notice stating which charges it intends to proceed with.
(3) Adjourn the motions for hearing before me on a date to be fixed.
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Decision last updated: 09 November 2012
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