Rathmann v Charmban Pty Ltd No. Scciv-02-1531

RATHMANN v CHARMBAN PTY LTD
[2002] SASC 415
Magistrates Appeal (Criminal)

BLEBY J (Ex tempore): This is an appeal against an order of dismissal of a complaint by a Magistrate. The respondent was the owner of a vehicle comprising a prime mover, a low loader dolly and a semi-trailer. The respondent was charged with the following offences:
1.Being the owner of an overloaded vehicle contrary to sub-regulation 4(1) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999 and s 114 of the Road Traffic Act 1961. It was alleged that the vehicle exceeded the permitted mass of 42.5 tonnes by 12.5 tonnes whilst being driven on the Port Augusta to Port Wakefield Road at Stirling North.
2.That the vehicle was driven whilst exceeding its permitted length contrary to sub-regulation 5(1) of Schedule 1 of the Road Traffic (Mass and Loading Requirements) Regulations 1999 and rule 69(1)(d) of the Road Traffic (Vehicle Standards) Rules 1999 and s 114 of the Road Traffic Act 1961. It was alleged that the permitted length of 19 metres was exceeded by 5.650 metres.
3.That the vehicle was driven whilst exceeding its permitted height contrary to rule 72(1) of the Road Traffic (Vehicle Standards) Rules 1999 and s 112 and s 164A of the Road Traffic Act 1961. It was alleged that the permitted height of 4.3 metres was exceeded by 0.23 metres.
The Magistrate ordered an acquittal on all charges on the basis of an honest and reasonable mistake of fact. The appellant appeals on the ground that the Magistrate erred in finding that the defence of honest and reasonable mistake of fact was made out. The appellant submits that the facts before the Magistrate were incapable of supporting such an honest and reasonable belief, and that in any event the belief which the Magistrate held the respondent to have had would not have rendered the conduct of the respondent otherwise innocent.
The facts were that on Sunday, 12 August 2001 at about 7.45 am a road transport inspector stopped the relevant vehicle on the Port Augusta to Port Wakefield Road and found the vehicle to be overweight, overheight and overlength. The owner of the vehicle and his business were based in Alice Springs. The company had a contract to move some heavy drilling equipment to Broken Hill. This necessitated travel on roads through South Australia. The driver of the vehicle in evidence before the Magistrate understood that a South Australian permit for the relevant load was required and that a permit could be obtained by making a faxed application. His evidence was that prior to setting off from Alice Springs on 10 August 2001, a Friday, he had attended at the appropriate road transport authority in Alice Springs and was told to contact Transport SA in Regency Park, a suburb of Adelaide. The driver testified that he telephoned Transport SA and spoke to a man named Ron. Ron then faxed him the relevant application form. Upon reading the application forms the driver did not understand some things and rang Ron again for clarification. According to the driver, Ron then asked him a number of questions about the dimensions and mass of the vehicle. In the course of that discussion, in answer to questions by Ron, the driver said in evidence that he told Ron that the vehicle was not overdimensional. He was also told by Ron that there was usually a 24 hour wait for the issue of the permit. The driver said in evidence that Ron told him that he “shouldn’t have a problem” with obtaining the permit. The driver then sent the fax off and, to use his words, “hoped for the best”. He did not wait for a copy of the permit to be faxed back. He expected to be able to collect it from the BP service station at Port Augusta.
In cross-examination the driver was asked what he understood by Ron’s reply, “It should be all right”. The driver said:
“A.Well, as the man just said, ‘Should be all right’ and ‘Is all right’ is two different things I suppose. I presume it would have been all right, yes.
HIS HONOUR
Q.     You thought he’d look into it, did you.
A Yes.
XXN
Q.     You’ve told us that Ron told you that everything would be all right.
A.     It should be all right.
Q.     It should be all right.
A.     Not that it would be all right.”
The Magistrate accepted without qualification the evidence of the driver, who in all material respects was the agent of the respondent for the purpose of obtaining the permit. Accepting the driver’s assertion that following discussions with Ron he believed he was authorised to proceed, the Magistrate found that this belief was honestly held and reasonably arrived at. He therefore found the defence of honest and reasonable mistake of fact established: Proudman v Dayman (1941) 67 CLR 536. He acquitted the defendant of the charges and ordered that the complainant pay the costs of the respondent fixed at $3,000.
The appellant submits that there was no evidence capable of supporting the defence of honest and reasonable mistake of fact. It is argued that the Magistrate erred by finding that the driver genuinely and reasonably believed that he could proceed with the journey on a South Australian road without a permit. The Proudman v Dayman defence is available when a defendant has an honest and reasonable belief in a state of facts which, if they existed, would render the conduct innocent: Proudman v Dayman (supra) at 540.
In my opinion there was no evidence on which the Magistrate could find that such an honest and reasonable belief existed. The driver said that he knew that his vehicle was over dimension. Photographs of the vehicle admitted into evidence show that it was bearing signs at the front of the vehicle which read in large capital letters “OVER SIZE”. Despite that knowledge, he told Ron on the telephone that it was not over dimension. It was, no doubt, on that basis that Ron said, “It should be all right”, or words to that effect.
But even if the driver had given full and accurate information, that response, as the driver effectively admitted in evidence, was no assurance that the permit would be issued, and the driver seems to have acknowledged that in his own evidence. Yet notwithstanding that response the driver proceeded to drive on South Australian roads without a copy of the permit or any reasonable assurance that it had been issued. He embarked on his journey from Alice Springs, as he said, hoping for the best.
There was no evidence, in my opinion, on which the Magistrate could have found that the belief, if it was held, was reasonably held. That is enough to negate the Proudman v Dayman defence. But there was more. The driver was not asked directly at any stage in his evidence whether he honestly believed that a permit had been granted. That seems to me to be an obvious question to ask in establishing a Proudman v Dayman defence. It was not asked.
The nearest the driver came to alleging an honest belief was in the following passage:
“Q.Part of your duties are to get permits for the journeys you undertake.
A.Yes.
Q.Your responsibility extends to making sure they comply.
A.Yes.
Q.You believed you did.
A. I thought so, yes.”
In my opinion that evidence is equivocal. It could equally mean that he believed he did all he could to obtain a permit. If so, it says nothing about his state of belief as to whether a permit had in fact been issued.
There was also in evidence no suggestion that Ron in the telephone conversation said that the driver could travel without having received a copy of the permit. The driver acknowledged that his practice, when driving in other States, was to obtain a faxed copy of the permit before travelling in that State. He also said that he failed to make any telephone inquiries of either Transport SA or of his employer’s depot whilst he was on route to or inside South Australia as to whether the permit had arrived. There is therefore a further reason why his belief was not honest or reasonable.
An exemption to exceed the statutory mass and dimension limits, commonly referred to as a permit, may be issued under s 163AA of the Road Traffic Act 1961. The permit, amongst other things, specifies the route that an overweight and over dimension vehicle may travel and a number of other conditions. It is very relevant to a driver to know what those conditions are before proceeding. As I have said, the driver was aware from earlier experience that it was a requirement in other States that he carry a copy of the permit. In fact, that requirement was also part of the standard form conditions applying in South Australia.
It would be surprising if the driver did not even consider that failure to carry a copy of the permit in South Australia might be an offence. Yet he proceeded hoping that a permit would be issued but having no assurance that it would be and without knowing any of the conditions which might attach to the permit. He took a chance by commencing his journey while not holding a copy of the permit. That, in my opinion, can only reinforce the unreasonableness of his belief, although, in the result, it is not necessary to rely on that fact to negate the Proudman v Dayman defence.
For these reasons, in my opinion, the appeal must be allowed and the verdict of acquittal and the order for costs set aside.

[2002] SASC 415

3 December 2002