Police v Barnes - [2017] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BARNES
[2017] SASC 196
Judgment of The Honourable Justice Doyle
22 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
The respondent truck driver was charged with contravening s 250(1) of the Heavy Vehicle National Law (the National Law) in that he had worked more than 12 hours in the 24 hour period commencing at 12.30 pm on 29 November 2014.
A Magistrate found the respondent not guilty of this offence on the basis that, while he had worked for 14 hours during the 24 hour period commencing at 12.30 pm on 29 November 2014, the relevant 24 hour period commenced 7.45 am on 30 November 2014, and the respondent had not worked more than 12 hours in that period.
On appeal, the appellant contends that the Magistrate erred in construing the National Law as requiring that the relevant 24 hour period commence at 7.45 am on 30 November 2014.
Held per Doyle J, allowing the appeal:
1. The Magistrate erred in holding that the relevant 24 hour period commenced at 7.45 am on 30 November 2014, rather than the earlier time of 12.30 pm on 29 November 2014.
Heavy Vehicle National Law (South Australia) Act 2013 (SA) s 3, s 10, s 247, s 221, s 250, s 291, s 292, s 293, s 730, Schedule 1; Heavy Vehicle National Regulations (South Australia) s 4, referred to.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; Police v Stevenson [2008] SASC 143; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Shire of York v Rosmill Pty Ltd [2010] WASC 189, applied.
Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137, considered.

POLICE v BARNES
[2017] SASC 196
Magistrates Appeal: Criminal

DOYLE J: The respondent truck driver was charged with contravening s 250(1) of the Heavy Vehicle National Law (the National Law)[1] in that he had worked more than 12 hours in the 24 hour period commencing at 12.30 pm on 29 November 2014.
[1] As enacted in the Heavy Vehicle National Law (South Australia) Act 2013 (SA).
A Magistrate found the respondent not guilty of this offence on the basis that, while he had worked for 14 hours during the 24 hour period commencing at 12.30 pm on 29 November 2014, the relevant 24 hour period commenced 7.45 am on 30 November 2014, and the respondent had not worked more than 12 hours in that period.
On appeal, the appellant contends that the Magistrate erred in construing the National Law as requiring that the relevant 24 hour period commence at 7.45…

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.

Continue reading Police v Barnes

Details

AGLC: Police v Barnes [2017] SASC 196
Case: [2017] SASC 196
Decision Date: 22 December 2017

CaseChat Overview and Summary

The Supreme Court of South Australia heard an appeal brought by the police against the decision of a Magistrate that the respondent, a self-employed driver of a heavy vehicle, had not contravened the National Law in relation to the maximum work time. The respondent argued that the 24 hour period for the purposes of determining whether there had been a contravention of the maximum work time should commence at 7.45 am on 30 November 2014. The police maintained that the relevant 24 hour period should commence at 12.30 pm on 29 November 2014, and that the respondent had worked 14 hours in that period, which was in breach of the maximum work time of 12 hours. The court was required to determine the proper method of determining whether there had been a breach of the maximum work time under s 250(1) of the National Law, and in particular the time from which the hours worked were to be counted. The court had to consider whether the time leading up to 12.30 pm on 29 November 2014 was rest time or personal time, and whether there was another category of time, such as time off. The court also had to consider the definitions of work, work time, rest and rest time in the National Law, and the relevant provisions of the Heavy Vehicle National Regulation. The court found that the Magistrate was correct in her decision that the relevant 24 hour period should commence at 7.45 am on 30 November 2014, and that the respondent had not worked more than 12 hours in that period. The court accepted that the time leading up to 12.30 pm on 29 November 2014 was not rest time, but rather personal time. The court found that the respondent had erroneously recorded the hours on 29 November 2014 leading up to 12.30 pm in his work diary as “my rest time”. The court found that if the respondent had omitted any reference or entry on the ‘My Rest’ section of the diary page dated 29 November 2014, it would have been plain that he started work at 12.30 pm on 29 November 2014, and that his first ‘major rest break’ for the purpose of counting time was between midnight and 7.45 am on 30 November 2014. The court found that the only relevant 24 hour period would then have commenced at 7.45 am on 30 November 2014, and that at the time the respondent was stopped on 30 November 2014 (at 4.15 pm), no offence had been committed. The court dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

On appeal, the appellant contends that the Magistrate erred in construing the National Law as requiring that the relevant 24 hour period commence at 7.45 am on 30 November 2014.Background The respondent is a self-employed driver of a heavy vehicle. The management of the fatigue of drivers of heavy vehicles is governed by the provisions of Chapter 6 (ss 220 to 399) of the National Law, and the Heavy Vehicle National Regulation (the Regulations) made under s 730 of the National Law. By way of overview of the legislative scheme in its application to the respondent, the respondent was a “solo driver” of a “fatigue-regulated heavy vehicle” for the purposes of the National Law. He drove on “standard hours”. Under s 250(1), the National Law provided that it was an offence to contravene either the maximum work time or minimum rest time stated in the standard hours. In particular, s 250(1) provided:(1)The solo driver of a fatigue-regulated heavy vehicle commits an offence if, in any period stated in the standard hours for the driver, the driver—(a) works for more than the maximum work time stated in the standard hours for the period; or(b) rests for less than the minimum rest time stated in the standard hours for the period. By reason of the combination of r 5 and Table 1 in Schedule 1 of the Regulations, for a solo driver of a fatigue-regulated heavy vehicle on standard hours, there is a maximum work time of 12 hours “in any period of 24 hours”. The Table relevantly provides: Under r 4 of the Regulations, the terms in the Regulations have the same meanings as they have in Chapter 1 or 6 of the National Law; and the counting of time is to be in accordance with the relevant provisions of the National Law (including, for the purposes of a period of hours in column 1 of the Table, s 247 of the National Law). Turning to the relevant definitions in the National Law, “work” is defined in s 221 as driving a fatigue-regulated heavy vehicle or engaging in any of the other associated tasks specified in the definition. “Work time” is defined as “any time the driver spends undertaking work in relation to the vehicle”. “Rest” is defined as “not work in relation to a fatigue-regulated heavy vehicle”, and “rest time” is defined as “any time not work time for the driver”. The counting of time for the purposes of determining whether there has been a contravention of s 250(1) is governed by s 247. That section provides:247—Time to be counted after rest time endsWhen counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from—(a) if 1 or more major rest breaks are relevant to the period—the end of a relevant major rest break; or(b) in any other case—the end of a relevant period of rest time.Example—An authorised officer intercepts the driver of a fatigue-regulated heavy vehicle on a Friday and inspects the driver's work diary. The driver operates under standard hours. The officer examines the work diary entries for the previous Monday. The entries show that the driver completed 7 continuous hours of stationary rest time at 6.30 am on that day, started work at that time, worked until 11 am that day, had 45 minutes of rest time, worked until 5 pm that day, then had stationary rest time until 4.30 am on the following day, Tuesday, and then worked until 6.30 am on that day.In order to determine the total number of hours worked by the driver in a 24 hour period starting on the Monday, then in accordance with section 247(a) the officer must commence counting from the end of the relevant major rest break, which in this case is from 6.30 am on the Monday until 6.30 am on the Tuesday. Adding up the driver's work periods — 6.30 am to 11 am, 11.45 am to 5.00 pm and 4.30 am to 6.30 am — results in a total of 11¾ hours worked in the 24 hour period.…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

At some point during the afternoon of 30 November 2014 the respondent crossed the border back into South Australia. He was stopped by the police at 4.15 pm. When his work diary was examined, it revealed that he had worked 14 hours in the 24 hour period commencing 12.30 pm on 29 November 2014, resulting in the respondent being charged with an offence under s 250(1) of the National Law.The Magistrate’s decision There was no dispute at trial as to the above summary of the respondent’s hours worked. However, there was a dispute as to the proper method of determining whether there had been a breach of the maximum work time under s 250(1), and in particular the time from which the hours worked were to be counted. The prosecution case was that the National Law treated all time as either work time or rest time; that there was no other category of time, such as time off or personal time. Any time spent not driving (or carrying out any of the related tasks within the definition of work) was rest time. It followed, on the prosecution case, that when the respondent commenced work at 12.30 pm on 29 November 2014, this was the end of a relevant major rest break for the purposes of s 247, and hence marked the commencement of a 24 hour period for the purposes of s 250(1). As the respondent worked 14 hours during that 24 hour period, he contravened the prescribed maximum work time. The defence case was that time leading up to 12.30 pm on 29 November 2014 was not rest time; rather, it was time off or personal time. Accordingly, the reference in s 247 to the end of a relevant major rest break could only be a reference to 7.45 am on 30 November 2014. And as the respondent had not worked more than 12 hours in the 24 hour period commencing at 7.45 am on 30 November 2014, he did not contravene the prescribed maximum work time under s 250(1). The Magistrate essentially accepted the defence case. Her Honour accepted that in the period leading up to 12.30 pm on 29 November 2014, the respondent was “not working at all”, with the result that when he started work at 12.30 pm on that day, it was not the end of “a relevant major rest break” for the purposes of s 247(a). This was so, despite the respondent having recorded the hours on 29 November 2014 leading up to 12.30 pm in his work diary as “my rest time”. The Magistrate explained:I find that the defendant erroneously recorded as ‘my rest’ a period of time in Alice Springs when he was not working at all.In my view the defendant could have properly omitted any reference or entry on the ‘My Rest’ section of the diary page dated 29 November 2014. He had done so it would have been plain that he started work at 12.30pm on 29 November 2014 and that had his first ‘major rest break’ for the purpose of counting time, was between midnight and 7.45am on 30 November 2014. The only relevant 24 hour period would then have commenced at 7.45am on 30 November 2014. It would follow that at the time the defendant was stopped on 30 November 2014 (at 4.15pm), no offence had been committed.The maximum work time

Ratio Decidendi

Legal Principle Established

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