RTA v Graincorp Operations Ltd - [2010] NSWCA 317

NEW SOUTH WALES COURT OF APPEAL

CITATION:
RTA v Graincorp Operations Ltd [2010] NSWCA 317

FILE NUMBER(S):
08/286120

HEARING DATE(S):
22/09/2010

JUDGMENT DATE:
6 December 2010

PARTIES:
The Roads & Traffic Authority of New South Wales - Appellant
Graincorp Operations Limited - Respodent

JUDGMENT OF:
Giles JA McColl JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 13755 of 2008

LOWER COURT JUDICIAL OFFICER:
Hall J

LOWER COURT DATE OF DECISION:
12/11/2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWSC 1204

COUNSEL:
A: Dr ARC Birch SC and T Lynch
R: JWS Stevenson SC and DA McLure

SOLICITORS:
A: Hunt & Hunt
R: Macpherson + Kelley Lawyers

CATCHWORDS:
APPEAL – question of law – dismissal of prosecution case – no misdirection – no error of law.
CRIMINAL LAW – criminal negligence – based on conduct of accused not state of mind.
CRIMINAL PROCEDURE – evidence emerging in defence case – particulars not amended – prosecution not entitled to rely on new case outside particulars.
CRIMINAL PROCEDURE – prosecution bound by conduct of trial – new case not open on appeal by leave.

LEGISLATION CITED:
Crimes (Appeal and Review) Act 2001, s 56(1)(c)
Environmental Offences & Penalties Act 1989, s.6(1)
Interpretation Act 1987, s.8(b)
Road Transport (General) Act 2005, s.58(3)

CATEGORY:
Principal judgment

CASES CITED:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe [1986] HCA 33, 162 CLR 1
EPA v Sydney Water Corporation Ltd (1997) 98 LGERA 361
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
NSW Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6

TEXTS CITED:

DECISION:
1. Leave to appeal granted limited to paras 1 to 4 and the grounds of appeal in the draft notice of appeal.
2. Leave to appeal otherwise refused.
3. The draft notice of appeal, as amended, to be filed within 10 days.
4. Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

08/286120

GILES JA
McCOLL JA
HANDLEY AJA

Monday 6 December 2010

THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v GRAINCORP OPERATIONS LIMITED

CATCHWORDS

APPEAL – question of law – dismissal of prosecution case – no misdirection – no error of law.
CRIMINAL LAW – criminal negligence – based on conduct of accused not state of mind.
CRIMINAL PROCEDURE – evidence emerging in defence case – particulars not amended – prosecution not entitled to rely on new case outside particulars.
CRIMINAL PROCEDURE – prosecution bound by conduct of trial – new case not open on appeal by leave.

HEADNOTE

The Roads and Traffic Authority (RTA) charged Graincorp Ltd (GC) with 332 breaches of s 58(3) of the Road Transport (General) Act 2005 which commenced on 1 October that year. GC had 141 depots in the State for the receipt and storage of grain. Section 58(3) imposed criminal liability for the first time on consignees of goods consigned by road transport in overloaded vehicles. A consignee committed the offence if:

“(a)the person engages in conduct, and
(b)that results or is likely to result in inducing … a breach of the relevant mass … requirement, and
(c)the person is negligent as to the matter mentioned in paragraph (b).”

During the period covered by the Court Attendance Notices (CANs) GC acted in accordance with its so-called September Policy which it developed for dealing with overloads tendered at its depots. This policy was widely publicised in the industry to the knowledge of the RTA which raised no objection at the time. Its weighbridge operators who received overloaded vehicles recorded the information which established that the consignor and truck driver had committed offences under the Act. The driver was advised that he had committed such an offence and that the information would be available to the RTA on request.
The Magistrate dismissed all charges holding that the policy was not likely to result in inducing a breach of the overloading regulations and that GC had not been negligent. The RTA appealed to the Supreme Court under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 which limited the appeal to “a question of law alone”. Hall J dismissed the appeal [2009] NSWSC 1204. The RTA’s application for leave to appeal, heard as an appeal, was only pressed in relation to the 29 CANs for vehicle PPH 955 and the 10 for vehicle ZGH 431. HELD: (1) The primary case for the RTA before the Local Court applied to all 332 CANs; (2) The Magistrate had not erred in law in dismissing the RTA’s alternative case Court based on evidence which emerged during the cross-examination of the last defence witness because it was outside its particulars: EPA v Sydney Water Corporation (1997) 98 LGERA 361 applied; (3) The Magistrate had not misdirected himself on the test for criminal negligence under s 58(3): NSW Sugar Milling Co-Operative Ltd v EPA (1992) 59 ACrim R 6 applied; (4) The Magistrate had not otherwise erred in law in rejecting the RTA’s primary case: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 applied; (5) The RTA was bound by the conduct of its case at the trial and the Court would not grant leave to appeal to enable the prosecution to run a new case for the first time on a second appeal: Coulton v Holcombe [1986] HCA 32, 162 CLR 1, 8 applied; (6) Leave should otherwise be granted but the appeal should be dismissed.

ORDERS

1.            Leave to appeal granted limited to paras 1 to 4 and the grounds of appeal in the draft notice of appeal.
2.            Leave to appeal otherwise refused.
3.            The draft notice of appeal, as amended, to be filed within 10 days.
4.            Appeal dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

08/286120

GILES JA
McCOLL JA
HANDLEY AJA

6 December 2010

THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v GRAINCORP OPERATIONS LIMITED

Judgment

GILES JA: I have had the benefit of reading the reasons of Handley AJA in draft. With the additional comments appearing below, I agree with them. I will use the abbreviations in his Honour’s reasons.
Without detracting from the detail of the RTA’s submissions, they were in essence that the Magistrate had erred in law in that first, he had misapprehended the conduct on which the prosecution relied and so failed to address the true issue in the prosecutions; and secondly, in determining whether GC was negligent, he had required more than that the consequence of likely inducement of a breach of a relevant mass requirement was foreseeable.
(a) Conduct
The RTA’s complaint was that the Magistrate had substituted for the conduct of receiving goods in breach of a gross mass requirement, the conduct of adopting the September Policy. His Honour therefore addressed negligence in relation to adopting the September Policy, not (as he should have done) negligence in relation to receiving the goods.
The complaint misapprehends the course of the proceedings and the Magistrate’s reasons.
As Handley AJA explains, the negligence referred to in para (c) of s 58(3) of the Act is negligence with respect to the conduct in para (a) that has or is likely to have one of the consequences in para (b). Each CAN particularised receipt of goods in breach of a gross mass requirement on a particular date at a particular place. But proof of receipt of the goods as particularised could not of itself make out an offence. The receipt of the goods had to be placed in a context, established by other evidence, from which it could be found that it was likely to result in inducing breach of a relevant mass requirement and that there had been negligence with respect to that receipt. Further particulars were subsequently provided. Handley AJA has set them out in part. For convenience I repeat them, with the addition of GC’s request -
“1. In each case, precisely what does the RTA contend GrainCorp should have done with overloaded vehicles?”
“On the first occasion that any vehicle sought to deliver a load in breach of the mass requirement, the defendant may have accepted that load, but should have clearly communicated to the driver, the vehicle operator and the consignor an unequivocal warning that the defendant would not, under any circumstances, accept any further load delivered in breach of a relevant mass requirement.
If, contrary to this warning, the same driver, operator and/or consignor sought to deliver to the defendant any further load in breach of the relevant mass requirement, the defendant should have refused to accept that load.”
“3. Does the RTA contend that, in each case, the mere act of receipt of the goods was negligent?”
“The defendant was negligent in failing to implement the procedure set out above.”
In written submissions provided as an opening, Mr Odgers SC put that the relevant conduct was receipt of the goods following an earlier receipt of goods where the vehicle was in breach of a gross mass requirement and no unequivocal warning was given that goods in any subsequently overloaded vehicle would not be received. He put that the negligence was that a reasonable consignee in the position of GC would have realised that such conduct was likely to have resulted in inducing a (further) breach of a relevant mass requirement and would have refused to accept subsequent deliveries. However, this stark position was not maintained.
In his opening Mr Stevenson SC adverted to the particulars set out above, and described the RTA’s allegation as one of systemic negligence; he described the prosecution’s case as that GC should have applied the December Policy from the beginning and turned away all overloaded vehicles, and that GC’s negligence lay in having the wrong system in place. There was extensive evidence concerning the September Policy and the circumstances in which it was adopted, and the subsequent adoption of the December Policy. Mr Odgers’ closing written submissions in substance repeated his opening submissions as to conduct. They identified as the negligence question whether a reasonable consignee in the position of GC would have foreseen that the particularised conduct was likely to result in inducing a (further) breach of a mass requirement, while also stating that “it is not an element of the offence that the conduct of the consignee be characterised as ‘negligent’” and all that was required was that the reasonable consignee would have foreseen the likelihood. But the submissions continued -
“13. In the alternative to the primary submission on negligence, on the assumption that is necessary to prove that the ‘conduct’ of the Accused was ‘negligent’ (so that a reasonable consignee in the position of the Accused would not have engaged in that conduct), it is submitted that such a conclusion should be drawn. Specifically, it is submitted that it should be held that a reasonable consignee in the position of the Accused would, at least, have adopted at the beginning of October 2005 the policy that the Accused adopted in December 2005.
14. The fact that the Accused adopted the policy it did in December 2005 is evidence supporting that [sic] conclusion that it was unreasonable in not adopting that policy in the first place (although the fact that it did later adopt the policy would also be relevant in the Accused’s favour to [sic] sentencing).”
The written submissions continued with reasons why it should be concluded that the particularised conduct of GC was negligent, essentially concerned with GC’s following the September Policy (in the submissions, and in the Magistrate’s reasons, called the “October Policy”) rather than adopting the December Policy; there was also the suggestion that failure to monitor the effectiveness of the September Policy was negligent.
Mr Odgers’ oral submissions brought the September Policy into the prosecution’s primary case. They included -
“In my submission, when a reasonable consignee was looking at his or her options, that is the [sic] company in the position of the accused in this case, and considering what the options are, what policy to adopt in response to legislation, in response to the danger of overloading, the possibility of overloading, it would have been manifestly obvious to such a reasonable consignee that there would be a greater risk of repeated overloadings with the October policy than with a policy likely [sic], for example, the December policy.
Now I accept that this [sic] is not appropriate to exercise hindsight. It’s not appropriate to say well, what happened in December you take that into account. Negligence is determined at the time of the implementation of the appropriate policy. What would a reasonable consignee, in the position of accused, at that time, at the end of September, have foreseen would or might happen if they adopted the October policy? But such a consignee would have considered other options, plainly that goes without saying.
Indeed, you know that this accused considered other options, rejected them but considered them. In my submission, the December policy was plainly one a reasonable consignee would have considered as an option at that time and would have understood, would have sufficiently reduced the risk of future overloads.
Plainly there is a difference between a notice which says we may receive future overloads, and one which we contend is the option which should have been pt [sic] adopted and would have been adopted by a reasonable consignee, which is, we will not accept future overloads after the first warning.
…
ODGERS: Concluding my primary submission, the submission is that a reasonable consignee, in the position of the accused, would have foreseen, on the 1st of October 2005, that what I’ll call the October policy created a real chance that overloads would result. Or adopting the other interpretation of the word ‘likely’, a reasonable consignee, in the position of the accused, would have foreseen, on the 1st of October 2005, that the October policy might well result in overloaded trucks coming to sites of the accused.”
Mr Odgers then turned to the possibility that more than foreseeability was required, saying -
“It is our submission that that conclusion [of negligence] can in fact be drawn and should in fact be drawn, even though not necessary. In my submission, specifically it should be held that a reasonable consignee in the position of the accused would at least, I emphasise those words, have adopted at the beginning of October 2005 the policy that the accused adopted in December 2005.
The fact that the accused adopted it in December 2005 is evidence, not conclusive, but it’s evidence supporting a conclusion that it was unreasonable in not adopting that policy in the first place. Although we accept, as I say in the brackets, that if ultimately this prosecution is successful, your Honour finds in our favour, it would be very relevant to sentencing. That the accused did in fact ultimately adopt a policy close to that which we contend they should initially have adopted.”
In his closing submissions Mr Stevenson referred to the particulars and repeated that the complaint of negligence was one of systemic negligence, being negligence “in failing to implement the procedure set out above”. He made submissions in support of a finding that it was not negligent to follow the procedures of the September Policy.
The Magistrate said at [41] that “[b]oth Counsel’s submissions agreed that the issue to be determined ... was whether or not the defendant’s policy adopted on 26 September 2005 was negligent as to its being likely to induce a breach of a relevant mass requirement”. His Honour concluded -
“56. I am not satisfied beyond reasonable doubt that the policy adopted by the defendant in September 2005 was likely to induce a breach of a relevant mass requirement and that the defendant was negligent in adopting such a policy. A reasonable person in possession of all of the facts from the meetings, discussions and documents prepared in 2005 would not have foreseen that;
the issuing of warnings; and
the recording of data when an overloaded vehicle was received;
would be ignored by growers and drivers. They (drivers and growers) would or should have been well aware of the prospects of prosecution themselves once the data was recorded.
57. The decision to accept overloaded trucks and not return them to the road when they arrived was not negligent bearing in mind the longstanding policy in the industry, the similar position taken by AWB, the view of the Minister and the lack of any criticism by the RTA. It was a reasonable position for the defendant to take in the circumstances in which it was made. A major reason for the legislation was to keep overloaded vehicles off the road thereby increasing safety and reducing damages to infrastructure.
58. The change of policy does not in my view prove negligence. … ”.
In the intervening paragraphs the Magistrate referred to GC’s “policy” on a number of occasions. He asked at [44] whether there was a real and not remote chance that GC’s policy would induce a breach of a relevant mass requirement. He referred at [45] and [46] to GC’s conduct as its policy not to turn away overloaded vehicles. He referred at [49] to a defence submission that GC “were not negligent in the adoption of the policy in September”, and in stating findings at [53] referred to adoption of the policy.
A policy, as such, is neither non-negligent nor negligent. Adoption of a policy can mean resolving to follow it or can mean in fact following it. Perhaps the Magistrate’s reasons did not clearly distinguish between these meanings, but in the context of the reasons the references to the policy and to adoption of the policy were to following the policy – as GC submitted, its implementation – in receiving loads but with warnings rather than turning them away. That is clear enough, in particular from the ultimate findings at [56]-[58] the point of which was that the Magistrate was not satisfied that accepting overloaded vehicles rather than turn them away, in accordance with the September Policy, was not negligent.
This conformed with the RTA’s reliance on the conduct of receiving goods in breach of a gross mass requirement, and did not substitute the conduct in adopting the September Policy. It placed the particular conduct of receiving a load on a particular date at a particular place in a context, as was necessary. While the enquiry as to negligence was objective, the reasonable person was in the position of GC, including its adoption (in the first sense) of the September Policy and implementation of that policy until it became evident that the policy was not deterring overloading. Particularly when he did not accept the RTA’s “foreseeability alone” submission, the Magistrate correctly addressed the issue as it had been put before him.
(b) Negligence
For the reasons given by Handley AJA, it was not sufficient that it be foreseeable that receipt of loads after a first receipt of an overloaded vehicle was likely to result in inducing a breach of a relevant mass requirement. Negligence in receiving the loads had to be established. The Magistrate was not satisfied that it had been established.
I agree with the orders proposed by Handley AJA.
McCOLL JA: I have had the benefit of reading Handley AJA’s reasons in draft and Giles JA’s additional comments, with both of which I agree. I also agree with the orders Handley AJA proposes.
HANDLEY AJA: This is an application for leave to appeal from the decision of Hall J [2009] NSWSC 1204 which was heard as an appeal. The Judge dismissed the RTA’s appeal from the decision of Clisdell LCM who had dismissed its 332 Court Attendance Notices (CANs) alleging breaches of s 58(3) of the Road Transport (General) Act 2005.

The right of appeal to the Supreme Court from the dismissal of the CANs, conferred by s 56(1)(c) of the Crimes (Appeal and Review) Act 2001, is available “only on a ground that involves a question of law alone.”
General
The Road Transport (General) Act (the Act) commenced on 30 September 2005 shortly before the grain harvest. Division 4 of Chapter 3 created new offences for overloaded trucks driven on public roads. These were created by s 53 for consignors, by s 54 for packers, by s 55 for loaders, by s 56 for the operators of vehicles, by s 57 for drivers and by s 58 for consignees if overloaded vehicles delivered loads to their depots. Criminal liability was imposed on consignees who had not previously been liable for accepting overloaded vehicles at their depots.
Graincorp (GC) maintained depots in the principal grain growing areas of the State which received grain during the harvest and stored it pending its onward movement to domestic or export markets.
Hall J recorded [14] that GC had 141 depots in New South Wales but Mr Stevenson SC in his final address to the Magistrate (T 217 1 May 2009), referred to evidence that it had 384 depots. This may include depots in other States.
The Act was part of a national regulatory framework created by Commonwealth and State legislation in similar terms. I will therefore adopt the lower figure referred to by Hall J.
The Magistrate found [32] that GC had at least 65% of the market for grain handling and storage in the State. Its nearest rival AWB had between 10% and 15%.
The practical operation of the new Act had been under active consideration by the State Government, the RTA and the various stakeholders, including the major consignees, for some time prior to its commencement on 30 September 2005. The Minister favoured the adoption of protocols acceptable to the RTA and the industry which would give clear guidance to consignees about their obligations under the new Act. The RTA’s position was that the consignees should act on their own legal advice. The Act came into force without any common understanding between the RTA and consignees about its operation.
Section 58(1) imposed criminal liability on a consignee who engaged in conduct which resulted or was likely to result in inducing or rewarding a breach of a relevant mass requirement and who intended that result. Section 58(2) imposed criminal liability on a consignee who was reckless as to the result of its conduct, and s 58(3) imposed criminal liability on a consignee who was negligent as to the result of its conduct.
Section 58(3) provided:
“(3)A person who is a consignee of goods consigned for road transport is guilty of an offence if:
(a) the person engages in conduct, and
(b)that results or is likely to result in inducing or rewarding a breach of the relevant mass … requirement, and
(c)the person is negligent as to the matter mentioned in paragraph (b).”
One of the difficulties facing consignees was s 82(1) which provides:
“(1)A person who causes or permits another person to commit an applicable road law offence is taken to have committed that offence and is punishable accordingly.”
GC believed that ss 58(3) and 82(1) confronted it with a dilemma. If it discharged an overloaded vehicle it faced prosecution under s 58(3). If it sent such a vehicle away it would cause it to travel on public roads, and would face prosecution under s 82(1).
The RTA declined to give GC any guidance as to its duty in this situation. The Magistrate found [53] that GC had a policy dating from 1996, which had been negotiated with the RTA, that it would not return overloaded vehicles to the road. This ensured that there was no further breach of safety requirements and no further damage to the roads. The Magistrate recorded [53], that the RTA waited until 23 November 2007 before advising GC that turning an overloaded truck away would be unlikely to breach s 82(1).
In this awkward situation senior management of GC developed what may be described as the September Policy. GC would discharge overloaded vehicles at its depots, but its commodity receipts (dockets) would record the gross and tare weights, the weight of the load and whether there had been a breach of the mass requirements in the legislation. Its dockets were signed by the weighbridge operator and the driver.
If the vehicle was overloaded the typewritten material inserted on the front of the docket referred the reader to the back where the printed conditions of delivery included:
“(12)GrainCorp does not condone overloading and may refuse to unload a vehicle deemed to be unsafe due to its weight or otherwise.
(13)Mass breach incidence. Where the details indicate as such, for this specific load as represented on the front of this ticket, a breach of the vehicle mass requirements under the Commonwealth and/or State legislation has occurred.
GrainCorp may be required by law to provide this ticket and other information in relation to this specific load to the transport authorities. Heavy fines and other penalties may apply in relation to a breach of this legislation.
Your signature on the front of this ticket acknowledges that you have read and understood that this incident represents a breach of the mass requirement in the legislation referred to above.”
While the September policy was in force GC did not give any other warning to drivers who presented at its depots with overloaded vehicles. It did not warn them that if they presented again with an overloaded vehicle it would be turned away.
The grain harvest in New South Wales begins in the north and moves south. The Magistrate found that the 2005 harvest began at some date in October. He found [34] that “There had been reasonable compliance [with the Act] in northern NSW around Moree but in the central west it was the opposite”. Only a small number of the CANs related to GC’s depots in the north, over 58% related to depots in the central west.
The CANs covered the period from 28 October to 14 December 2005. GC operated under its September Policy until [3] it adopted a new policy (the December Policy) on 2 December. Under this policy GC turned away any significantly overloaded truck presented after an earlier overloading warning. This was implemented between 6 and 8 December and had an immediate effect. Only 9 of the CANs charged offences committed after 8 December [37].
The court was informed that the CANs, issued on 6 September 2007, were in the same form, but the material before this Court is confined to the 29 relating to vehicle PPH 955, and the 10 relating to vehicle ZGH 431. The CANs alleged:
“The defendant, a consignee of goods consigned for road transport, engaged in conduct that was likely to result in inducing a breach of a relevant mass requirement and was negligent in that regard”.
The time date and place of the offence were stated and in the first CAN (WB116) the following particulars were added:
“On 14/11/2005 at Tottenham NSW GrainCorp Operations Limited received goods after completion of their transfer by road by vehicle PPH 955 in breach of a gross mass requirement.”
The CANs did not charge conduct that induced a breach nor conduct that resulted or was likely to result in rewarding a breach.
On 13 December 2007, the solicitors for the RTA provided the following additional particulars at the request of the solicitors for GC (WB 158):
“1.On the first occasion that any vehicle sought to deliver a load in breach of the mass requirement, the defendant may have accepted that load, but should have clearly communicated to the driver, the vehicle operator and the consignor an unequivocal warning that the defendant would not, under any circumstances, accept any further load delivered in breach of a relevant mass requirement.
If, contrary to this warning, the same driver, operator and/or consignor sought to deliver to the defendant any further load in breach of the relevant mass requirement, the defendant should have refused to accept that load.
…
3.The defendant was negligent in failing to implement the procedure set out above.”
There was no dispute that GC, through its weighbridge operators, engaged in conduct within s 58(3)(a) when the loads were accepted. Section 232(2) provided:
“For the purposes of a prosecution for an offence, conduct engaged in on behalf of a body corporate by [an] … employee … of the body corporate within the scope of his ... actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.”
GC could not rely on this defence because its September Policy required weighbridge operators to accept overloads. There was no dispute that the loads accepted were in breach of relevant mass requirements.
The contest before the Magistrate was limited to the issues of causation under s 58(3)(b) and negligence under s 58(3)(c).
RTA’s case in Local Court
The primary case for the RTA before the Magistrate and Hall J, related to all CANs. Mr Odgers SC, who appeared for the RTA before the Magistrate, said this in the written outline of his closing address, and, subject to his alternative case there was no basis for distinguishing between the charges (supp WB 1-2).
His alternative case, summarised in par 16(e) of his outline (supp WB 8-9) was that GC had systems in place which allowed it to determine the extent of overloading on a daily basis. If it had used those systems it would have become obvious by the middle of November at the latest that there were a large number of repeat offenders. The failure of GC to monitor the effectiveness of the September Policy in this way was said to be negligent.
Dr Birch SC, who appeared with Mr Lynch for the RTA before Hall J and this Court, said in opening (T2) that the appeal was only pressed in relation to the 29 CANs for vehicle PPH 955, and the 10 for vehicle ZGH 431. This attempt to reposition the case for the RTA on a second appeal (the new case), which only lies by leave, will be considered later in these reasons.
The Magistrate focused on the primary case presented by the prosecution at [20]:
“… the issue both Counsel have indicated is the crux of these proceedings, namely, was the policy adopted by the Defendant in October 2005 … likely to result in inducing … a breach of the load restraint requirements and that such a policy was negligent."
He referred to this again at [41]:
“Both Counsel’s submissions agreed that the issue to be determined to answer these questions was whether or not the defendant's policy adopted on 26 September 2005 was negligent as to its being likely to induce a breach of a relevant mass requirement."
Mr Odgers’ closing address confirms the Magistrate's understanding of the RTA’s case. At pp 177, 189, and 193 of the transcript he submitted that the effect of the December Policy was "powerful evidence that the earlier policy was conduct … that was likely to lead to further … breaches".
At pp 181 and 182 of the transcript he submitted that any reasonable consignee would have adopted the December Policy at the outset and at pp 189, 190 and 191 he made further references to GC’s September policy.
At p 192 he developed the alternative case and said that "a differentiation might be drawn between offences prior to the middle of November and [later] offences."
Mr Stevenson's closing address at pp 196, 211 and 212 focused on the September Policy.
He submitted (p 196) that Mr Odgers was not entitled to run the alternative case which was not within the RTA’s particulars: above [40].
He submitted that the case particularised was systemic negligence in the adoption of the September Policy and the RTA should not be allowed to rely on the unparticularised alternative case based on evidence that emerged in the cross-examination of Mr Lloyd (p 198), GC’s last witness. Mr Stevenson said GC “may well have produced further evidence to deal with that question had it been particularised".
The Magistrate set out his findings at length, particularly in [53]. GC explained their September Policy at meetings of growers when representatives of the RTA were present. They did not offer any criticism of the policy, which was consistent with GC’s long-standing policy (above [31]), that overloaded vehicles would not be returned to the road.
The Magistrate found that the September Policy "was a matter of … careful consideration and not some arbitrary careless action". GC had a reasonable belief [53] that "the collection of data, the issuing of written warnings and the provision of information to the RTA upon request should have been a discouragement to overloading”. Both GC and the RTA were surprised by the level of overloading breaches [53].
The CANs alleged offences between 28 October and 14 December but the Magistrate found [54] that they did not represent all the overloading breaches at GC’s depots during that harvest. He noted that AWB, which adopted the same policy, was not prosecuted. He rejected Mr Stevenson’s submission that the CAN’s represented only .32% of actual receipts but found that "the sample taken by the RTA of [GC’s] sites still only showed a very small percentage of breaches. In my view this counters the argument of negligence and … goes to the foreseeability of breach."
The Magistrate rejected Mr Odgers’ alternative case for reasons which only appear by implication from his references to the submissions of counsel, and his acceptance [55] of Mr Stevenson’s.
The effect of particulars provided by the prosecution was considered in EPA v Sydney Water Corporation Ltd (1997) 98 LGERA 361, 364-5 where Gleeson CJ said:
"It is often appropriate, in order to provide an accused with a fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge …
There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal …".
The Magistrate referred to this case in his summary of Mr Odgers' argument. The EPA particularised five items of plant which the defendant allegedly failed to maintain in an efficient condition in support of the charge. It established a prima facie case in respect of four, and the defendant obtained a ruling that the prosecution could no longer rely on the fifth particular.
The Court of Criminal Appeal held that this was erroneous. Gleeson CJ said at 365:
"According to the particulars, the prosecution relies upon five aspects of the failure to maintain the sewage plant in an efficient condition. In order to succeed, the prosecution only needs to establish one of those aspects. It was consistent with the requirements of fairness, and of the orderly conduct of the litigation, that the prosecution should be required to state, in advance of the hearing, the aspects of the failure to maintain plant in an efficient condition upon which it intended to rely. Fairness to Sydney Water, however, does not require that the prosecution should be precluded from relying upon evidence which may emerge during the course of the defence case. Nor does it require that a distinction be drawn between evidence which strengthens the Crown case in respect of a particular that was made out to a prima facie level in chief, and evidence relating to a particular which the Crown did not succeed in establishing to that level in chief. There is no basis in legal principle for such an artificial distinction."
The evidence here in support of the alternative case which emerged during the defence case was outside the particulars and there was no application to amend.
EPA v Sydney Water Corporation Ltd is therefore distinguishable. Any application to amend would have required the Magistrate to decide whether it would be "unfair or oppressive to [GC] to permit the [RTA] to depart from its particulars". He would have had to consider any prejudice to GC, and the possibility of an adjournment, perhaps on terms, to enable it to meet the new case. It is not at all clear that an amendment to enlarge the prosecution case would have been allowed at such a late stage.
In my judgment the Magistrate did not err in law in rejecting the alternative case on the ground, inferred from his acceptance of Mr Stevenson's submissions, that it was outside the RTA’s particulars.
The construction of s 58(3)
A submission on behalf of the RTA about the construction of "negligent" in s 58(3)(c) that was rejected by the Magistrate and Hall J was renewed before us. The section relevantly provides:
"A person who is a consignee of goods consigned for road transport is guilty of an offence if:
(a) …
(b)That conduct results or is likely to result in inducing … a breach of a relevant mass … requirement, and
(c)The person is negligent as to the matter mentioned in para (b)."
The Magistrate referred to this submission at [46]:
"… there is a clear divergence between the parties on the test to be applied. Mr Odgers primarily submits that it is not an element of the offence that the conduct be characterised as negligent. All that is required is that the foreseeability of the conduct would have been sufficient to alert a reasonable consignee that its conduct would be likely to induce a breach. The test to be applied is an objective test."
Mr Stevenson's submissions were summarised by the Magistrate [49]:
"… foreseeability is only the starting point … it is necessary to prove negligence of the defendant to the criminal standard and not just rely on whether or not the outcome of the conduct was foreseeable. There is a duty imposed by statute and it is essential to establish a breach of that duty. There must first have been a foreseeability in relation to the breach … and that the conduct inducing the breach must have been negligent, to the criminal standard. Here the negligence alleged is systemic negligence … The defence submission is that the RTA has failed to show negligence beyond any reasonable doubt and that to the contrary the evidence establishes [GC] were not negligent in the adoption of the policy in September."
Section 58(3)(c) does not define the negligence referred to and the Court must flesh out the legislative intention from the word "negligent". Negligence is a term of art in the criminal and civil law and its prima facie technical meaning is conduct, by act or omission, which falls short of a duty of care imposed by law on the person concerned. It describes conduct measured against an objective standard and not a state of mind.
Negligence criminalised by statute would ordinarily be conduct in breach of a duty of care recognized by the general law, or created by the statute.
This argument for the RTA fails to give full effect to the structure of s 58(3), and the elements of the offence. There must be conduct by a consignee (para (a)), which has or is likely to have certain consequences (para (b)), and the consignee must be negligent as to those consequences (para (c)).
Although "conduct" does not appear in para (b), the opening words "that results" refer to the conduct in para (a). The negligence referred to in para (c) is therefore negligence with respect to the conduct in para (a) which has the consequences referred to in para (b).
The subsection does not penalise the consignee’s failure to achieve the foresight of a reasonable person, it penalises conduct that is negligent. In doing so it imposes a statutory duty on a consignee to take reasonable care to avoid conduct which it should foresee will have or be likely to have the consequences referred to.

Therefore, in agreement with Hall J and Clisdell LCM, I reject the RTA’s submission that it did not have to prove that the conduct criminalised by s 58(3) was negligent. Of course the receipt of goods delivered by road will almost always be deliberate rather than negligent in the sense of accidental or inadvertent.
There was no suggestion that the conduct of the weighbridge operators in accepting loads from overloaded vehicles was other than deliberate but GC has never submitted that this was an answer to the CANs.
Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care, that a reasonable man would have exercised, that it merits criminal punishment: NSW Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6. The case arose under s 6(1) of the Environmental Offences & Penalties Act 1989 which made it an offence for a person wilfully or negligently to cause any substance to escape in a manner that was likely to harm the environment.
Hunt CJ at CL said at 7:
"But the appellant’s principal submission … was that Mr Watts …. was not negligent because the actions which he took and the conclusions which he drew complied with the duty of care which the law placed on him …
In considering whether any defendant has acted negligently, the issue is decided upon an objective basis. What must be considered is whether the risk of such harm was foreseeable to the reasonable person in the position of the defendant, not whether the defendant subjectively foresaw the risk himself … The criminal law has … adopted an objective test …
The evidence discloses that, objectively, a reasonable person in the position of the defendant would have foreseen the likelihood of harm to the environment, and that negligence was established in accordance with the criminal standard discussed in Andrews v DPP [1937] AC 576, 583."
Enderby J said at 11:
"Negligence is not a subjective … but an objective test. ... [It] is the failure to reach the objective standard of the reasonable person. It does not involve an enquiry into the subjective thinking of the person who is said to have been negligent … It is a matter of judgment for the Judge …
Foreseeability is an essential part of the concept of negligence and it too is an objective question."
Allen J said at 12:
"… it is to be borne in mind that the appellant, the body convicted, was not Mr Watts but the co-operative. The question is whether that body fell so short of the standard of care of the objectively reasonable person in the position in which it found itself that it was negligent to the criminal degree."
In my judgment therefore Clisdell LCM did not fall into legal error in directing himself that the RTA had to prove, to the criminal standard, that GC was guilty of criminal negligence nor did Hall J when he dismissed this part of the RTA's appeal.
RTA’s primary case
The Magistrate, in rejecting the RTA's case said [56]-[58]:
"56.       I am not satisfied beyond reasonable doubt that the policy adopted by the defendant in September 2005 was likely to induce a breach of the relevant mass requirement and that the defendant was negligent in adopting such a policy. A reasonable person in possession of all the facts … would not have foreseen that;
- the issuing of warnings; and
- the recording of data when an overloaded vehicle was received;
would be ignored by growers and drivers. They (drivers and growers) would or should have been well aware of the prospects of prosecution themselves once the data was recorded.
57.         The decision to accept overloaded trucks and not return them to the road when they arrived was not negligent bearing in mind the long-standing policy in the industry, the similar position taken by AWB, the view of the Minister and the lack of any criticism by the RTA. It was a reasonable position for the defendant to take in the circumstances in which it was made …
58.         The change of policy does not in my view prove negligence."
In an appeal from such findings limited to questions of law alone the tests for legal error are those identified by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; 156 (Azzopardi).
"A finding of fact … may … reveal an error of law where it appears that the trial Judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to the primary findings … Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made.”
The RTA has failed to identify any misdirection by the magistrate and it could not be argued, and was not, that the primary facts were necessarily within s 58(3).
The dismissal of the RTA's case on causation and negligence was not vitiated by legal error and the decision was well open to the Magistrate on the evidence.
The number of CANs, 332, was so large as to appear, without more, to be evidence of negligence. However the Magistrate was not impressed by the figure and, in context, it did not, as such, support the RTA’s case. GC had at least 141 depots in the State and the CANs represent, on average, less than three breaches per depot. This figure should be treated with some caution as the Court does not know whether all depots received grain during the period between the start of the harvest and 14 December [36].
The Court does not know whether there were breaches at all depots, although there were 29 at Tottenham involving one vehicle and breaches at 3 depots involving another. The 48 day period covered by the CANs, which included Sunday 20 November when Tottenham was operating, gives an average of seven a day, but we do not know how many depots were operating each day.
The Court does not know the total number of deliveries during this 48 day period. The Magistrate rejected [54] Mr Stevenson's submission that the breaches represented only .32% of the actual receipts but he found that the samples taken by the RTA “showed a very small percentage of breaches”. If that “very small percentage” was less than 5% this would establish that the September policy, on average, achieved a 95% or better compliance rate.
The Magistrate found [53] that the RTA and GC were both surprised by the level of overloading breaches. When the harvest began in the North there was reasonable compliance, as the Magistrate found [34], but it was a different story when the harvest reached the Central West.
The primary offenders were the consignors and drivers. The RTA had a cast iron case against them based on the documents generated by GC under its September policy, but they were never prosecuted.
The inference is open that news of the RTA’s failure to prosecute the primary offenders, or take any interest in the documentation being generated by GC, got around as the harvest moved south and encouraged growers and drivers in the Central West to ignore the new legislation.
The RTA’s new case in this Court
There remains for consideration the new case based on the 29 CANs for vehicle PPH 995, and the 10 for vehicle ZGH 431. The RTA did not prosecute GC for receiving the first overload from either vehicle.
Dr Birch's short point was that the relevant weighbridge operators must have become aware that the warning, given when the first overload was accepted, had not deterred the driver, operator or consignor concerned from again overloading the vehicle. In these circumstances the acceptance of the later overloads was a breach of s 58(3).
The new case must be evaluated in the factual context. GC is the defendant, not the weighbridge operator, and the RTA cannot maintain a case based on the knowledge of repeated overloading offences that GC might have obtained from using its data collection system. For present purposes its knowledge, at least in the first instance, must be that of the weighbridge operator or operators.
The Magistrate referred [13], with apparent acceptance, to evidence by Mr Lloyd that GC’s depots are extremely busy during the harvest with sites operating between 17 and 24 hours a day, handling up to 30 trucks an hour. The CANs for PPH 955 include 4 for Sunday 20 November.
The sample weighbridge dockets in the White Book at 113 -- 14 record the docket number, the depot, the registration number of the vehicle, the times it was weighed, laden and empty, the name of the grower, and the signatures of the weighbridge operator and the driver.
The White Book contains schedules of the 29 CANs for vehicle PPH 955 at GC’s Tottenham depot, and the 10 CANs for vehicle ZGH 431 at its Burran Junction (two charges), Cryon (four charges), and Milvale depots (four charges). The schedules, largely based on GC's dockets, were not before the Magistrate. They contain, in addition, the names of the operator of the vehicle and references to the CAN and RTA breach report numbers.
The docket numbers on the first schedule indicate that the 2 loads at Tottenham on 14 November arrived six hours apart and were separated by 25 other loads, while each of the four loads on 15 November were approximately 3 hours apart, separated by between 19 and 33 other loads. The times between the vehicle being weighed, laden and then empty, on those days ranged from 26 to 53 minutes.
The Magistrate was not asked to make findings which might have supported the new case. There are no findings that the same weighbridge operator weighed the vehicle in and out. There was no evidence about the length of the operators’ shifts and no finding that information about earlier overloads was available on screen.
There was no finding that the drivers were known personally to the operators. There was no finding about the number of weighbridges in operation at these depots at the relevant times. Above all there was no finding that any of the operators was consciously aware that either of the relevant vehicles were repeatedly arriving with overloads. GC's policy did not require them to do more than record information about overloads on their dockets.
The Magistrate noted evidence that this was "an intensive operation". The times between the weighings and between loads, and the number of intervening loads prevent this Court from drawing any inference, on the criminal standard, that individual weighbridge operators must have become aware that these vehicles were repeatedly arriving in an overloaded condition. Moreover ZGH 431 presented at three depots.
The fundamental point is that an appeal only lies on a ground that involves a question of law alone. This Court cannot draw inferences, however clear, or make other findings on the criminal standard that might be open. Without the necessary findings the new case, insofar as it depends on the actual knowledge of operators when accepting a subsequent overload, is not available to the RTA.
Dr Birch relied on s 232(1) and (2) to overcome the absence of necessary findings. The section provides:
"(1)       If, in proceedings for an offence, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)         that the conduct was engaged in by [an] … employee … of the body corporate within the scope of his … actual or apparent authority, and
(b)that the … employee … had the relevant state of mind.
(2)         For the purposes of a prosecution for an offence, conduct engaged in on behalf of the body corporate by [an] … employee … of the body corporate within the scope of his … actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct."
Subsection (1) applies where it is "necessary" to establish the state of mind of a body corporate. A finding of negligence involves the application of an objective standard, and, as NSW Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6 confirmed, the state of mind of the relevant individual is irrelevant.
The subjective knowledge of an individual weighbridge operator could be relevant in considering the likelihood of causation and negligence, although such knowledge is not an ingredient of the offence under s 58(3).
I will assume in favour of the RTA that the reference in s 232(1) to it being necessary to establish the state of mind of a body corporate can apply where such knowledge is a relevant fact but not an ingredient of the offence.
However subs (1) could only assist the RTA if there was proof that the employee had the relevant state of mind at the time. The RTA did not prove that any of the weighbridge operators accepted any overload when consciously aware that one or more overloads had previously been accepted from that vehicle.
The operator was aware of the details of each particular load when the docket for that load was being completed and signed. Dr Birch submitted that s 232(1) not only enabled the operator’s knowledge of each overload to be attributed to GC, it also allowed such knowledge to be aggregated. In this way, it was said, GC was deemed to be aware of the growing number of overloads from each of these vehicles as and when they were being accepted.
The question is whether s 232(1) permits such aggregation. The text is in the singular throughout, it refers to "an offence", "a director" (not the board), "[an] employee" (not its employees).
Although s 8(b) of the Interpretation Act 1987 provides that unless the contrary intention appears the singular includes the plural, a contrary intention appears in this case. The section is directed at the conduct of an individual and his state of mind at the time. It does not allow his state of mind at one time to be linked with his conduct at another time, and it does not allow the state of mind of one individual to be linked with the conduct of another.
The section does not permit the aggregation of the states of mind of the same employee at different times, or the states of mind of different employees. It imposes vicarious criminal liability on a corporation for the conduct and the accompanying state of mind of a relevant individual.
This would not prevent the prosecution establishing a case of systemic negligence based on the accumulation of actual knowledge in the central management of a corporation. Nor would it prevent the prosecution establishing a case of systemic negligence based on the failure of central management to establish and make proper use of a system or procedure for monitoring what was happening at its depots.
The RTA’s attempt to confine the issues to the 29 CANs for vehicle PPH 955 and the 10 for vehicle ZGH 431 raised other issues. The Magistrate was not bound to make a case for the RTA which it had not attempted to make for itself.
The existence of evidence which might have supported convictions on some or all of these CANs does not establish an error or errors of law.
The matter is covered by Azzopardi (above) at 155 where Glass JA adopted the following statement by Jordan CJ in McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8, 9:
"… the question whether … evidence is to be accepted in whole or in part, or ought to be accepted as sufficient to establish [a] fact, is itself a question of fact and not a question of law … If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision … is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it."
The principle that a party in civil proceedings is bound by the conduct of his case is well established: Coulton v Holcombe [1986] HCA 33, 162 CLR 1, 8 where the plurality adopted this statement by the Court:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
The principle applies with special force in criminal proceedings, particularly to the prosecution. The question, as it affects the prosecution, can hardly arise in trials on indictment because under the general law there is no appeal against an acquittal.
That rule has been displaced in summary criminal proceedings, and the prosecution may challenge an acquittal on questions of law. However there are no relevant findings, and the existence of evidence which might have supported such findings does not establish an error of law or give rise to a question of law. In any event I would not grant leave to allow the prosecution to present a case in this Court that was not raised below.
Conclusion
In these circumstances the appropriate course is to refuse the RTA leave to raise the new case. Because of the importance of the issues leave to appeal should otherwise be given, but the appeal should be dismissed. The following orders should be made:
1.Leave to appeal granted limited to paras 1 to 4 and the grounds of appeal in the draft notice of appeal.
2.Leave to appeal otherwise refused.
3.The draft notice of appeal, as amended, to be filed within 10 days.
4.Appeal dismissed with costs.
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LAST UPDATED:
7 December 2010