Jesse v Roads and Maritime Services NSW

1. [1]

   GLEESON JA: The applicant, Mr Kevin Jesse, was convicted in February 2018 in the Local Court at Gundagai of one offence of driving a heavy vehicle not complying with loading requirements (substantial risk), contrary to s 111 of the Heavy Vehicle National Law (NSW) (National Law) and was fined $2,500. The applicant appealed against that conviction and sentence to the District Court sitting at Wagga Wagga in its criminal and special jurisdiction pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 11(1). On 21 June 2018, his Honour Judge Lerve dismissed his appeal against conviction, but allowed his appeal against sentence. On re-sentence his Honour imposed a fine of $1,000 and ordered the applicant to pay the $1,000 court costs which had been ordered in the Local Court.

2. [2]

   At the applicant’s request, Judge Lerve stated a case to this Court under the Criminal Appeal Act 1912 (NSW), s 5B. It was signed by his Honour on 18 February 2019 and filed in this Court on 28 March 2019, well after the time limited by subs (2) of s 5B.

3. [3]

   The stated case included the following:

4. [4]

   Two questions, both of which are said to be questions of law, were submitted for determination by this Court:

5. [5]

   The reasons for judgment were not appended to the stated case.

6. [6]

   Section 5B of the Criminal Appeal Act provides:

7. [7]

   The applicant, Mr Jesse, was the driver of the tipper truck heavy vehicle on the Hume Highway that was inspected by officers of the respondent, at the Colac Heavy Vehicle checking station on 7 August 2017. The respondent, Roads and Maritime Services (NSW), was the prosecutor in the Local Court.

8. [8]

   The principal issues raised on the present application are whether the time for submission of the questions in the stated case should be extended and whether it is appropriate to answer those questions. The latter question raises the frequently encountered difficulties with the technicalities and limitations inherent in the s 5B procedure, which is not an appeal against the decision in the District Court.

(1) Extension of time

1. [9]

   The applicant requires an extension of time, being a period of a little over nine months. As explained in Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [21], “the time period allowed under s 5B requires prompt action, not only by the applicant, but by the other party (if it is to play some role) and by the Court itself”.

2. [10]

   Here, the applicant was at fault in failing to file the draft stated case within a few days of the judgment. However, he was unrepresented in the Local Court, but was legally represented in the District Court. His solicitor provided a draft stated case to his Honour on 5 August 2018. The District Court itself was not in a position to deal with the request in a timely fashion and the applicant’s solicitor was at fault in failing to promptly file the stated case after it was ultimately signed by his Honour. Nevertheless, the respondent did not oppose time being extended and an order to that effect should be made.

(2) A question of law

1. [11]

   A case stated under s 5B must be limited to a question of law and that question must be one that arises or arose on an appeal to the District Court from the Local Court.

2. [12]

   The distinction between a question of law and a question of fact (or a mixed question of law and fact) is explained by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138. Relevantly for present purposes and omitting supporting citations, the summary of principles by Jordan CJ included:

3. [13]

   It is well established that the limitations of the s 5B procedure include that the Court cannot refer to any material not included in the stated case: Tritton v Clarke [2018] NSWCCA 31 at [9] citing Thomas v The King (1937) 59 CLR 279 at 286, 299, 313; R v Rigby (1956) 100 CLR 146 at 150-1; [1956] HCA 38, 153; Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58; R v Chan (1992) 28 NSWLR 421 at 431; R v Madden (1995) 85 A Crim R 367 at 370-371; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [10]-[11]; Lavorato v The Queen at [8]; Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93 at [11]. Nor can the Court draw inferences as to matters of additional fact that are not expressly stated, as distinct from making a necessary implication as to what the judge stating the case must be understood to have said: R v Rigby at 51.

4. [14]

   Insofar as both parties invited the Court to have regard to evidence in the Local Court and the District Court and to documents not annexed to the stated case, the deficiency in the facts in the stated case cannot be cured in this Court: Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33 at [5]. Whilst an appeal to the High Court was successful, this aspect of the Court’s reasoning concerning the stated case procedure was unaffected: Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8; (2019) 93 ALJR 405.

Relevant legislative provisions

1. [15]

   An understanding of the difficulties with the formulation of the questions submitted for consideration is assisted by a reference to the relevant legislative provisions underpinning the conviction of the applicant.

2. [16]

   At the time the applicant was charged, s 111 of the National Law relevantly provided:

3. [17]

   Section 110 provided that the national regulations may prescribe loading requirements, including about securing a load on a heavy vehicle and the restraint and positioning of loads on a motor vehicle.

4. [18]

   The Heavy Vehicle (Mass, Dimension and Loading) National Regulation (Regulation) provides in reg 38 that the loading requirements applying to a heavy vehicle are those stated in Sch 7.

5. [19]

   Section 1 of Sch 7 was in the following terms:

6. [20]

   Section 115 of the National Law provided that in a proceeding for an offence against s 111:

7. [21]

   Consistently with par 13 of the stated case, it is common ground that there was no issue of a load, or any part of a load, falling off a heavy vehicle, such as to trigger the prima facie evidence provision referred to in s 115(1)(b). The issue for determination in the Local Court and again on appeal to the District Court was whether there was evidence that a load was not placed, secured or restrained in a way that met a performance standard stated in the Restraint Guide as referred to in s 115(1)(a) of the National Law.

8. [22]

   The Restraint Guide is a lengthy document comprising 268 pages. In the Introduction, under the heading “Explanation of Terms” (p 7), it is stated that “[t]his guide contains some technical terms and details. A Glossary is contained in Section J …”. Part 1 is titled as being for Drivers and Operators. Part 2 is entitled as being for Engineers and Designers.

9. [23]

   Section A of Pt 1 states that loads can be restrained by two basic methods, either indirectly or directly. The direct restraint method is described as when the load is prevented from moving by containing, blocking or attaching it to the vehicle (p 22, par 3). Page 24 states in par 3.2.1 under the heading “Contained load” that “contained loads can be directly restrained without any securing devices”.

10. [24]

    Section C of Pt 1 deals with the topic of load restraint. Page 58 states that all loads must be restrained to meet the Performance Standards outlined in Section F “Performance Standards”. The paragraph continues:

11. [25]

    Section E deals with the topic of loads. Page 140 states in relation to contained loads:

12. [26]

    The “Performance Standards” are stated in Section F of Part 2 of the Restraint Guide (at p 186):

13. [27]

    Methods of load restraint for loads that are contained or secured by a vehicle are set out in the Restraint Guide, and include (at p 187, par (2)(ii)) “containing the load within the body structure”. Page 199 of the Restraint Guide concerns designs for containing a load which is not (or not required to be) “tied down” and states:

14. [28]

    Page 200 of the Restraint Guide states:

15. [29]

    It is common ground that there was no issue in the Local or District Court proceedings that the load would shift such that it would make the vehicle driven by the applicant unstable.

16. [30]

    In the Glossary in Section J of the Restraint Guide (at p 247), the defined terms include:

17. [31]

    The first question stated to this Court is as follows:

18. [32]

    The applicant frankly conceded that the first question was a mixed question of fact and law (AWS #55). That may be accepted. The applicant acknowledged an additional difficulty with the formulation of the first question was that it invited entirely circular reasoning, incapable of resolution. That was because one of the “facts … found beyond reasonable doubt” was that the load could be dislodged by moderate lateral force (par 14 of the stated case), yet the question submitted for determination was whether a finding of guilt was properly available beyond reasonable doubt on the basis that “the load could be dislodged with mild lateral force”.

19. [33]

    Notwithstanding these deficiencies, the applicant submitted that the first question was not so deficient as to render it inappropriate for the Court to consider and determine the question submitted. I do not agree. Whilst the Court can answer “the substance of the issues sought to be raised” (Sasterawan v Morris at [37]), the applicant’s submissions invited the Court to infer that there was no evidence that the load could be “dislodged” [from the vehicle] by “mild lateral force”, nor evidence that could have satisfied Judge Lerve beyond reasonable doubt of such a conclusion, emphasising that there was no expert or technical evidence was presented by the prosecution (AWS # 61).

20. [34]

    As the respondent correctly submitted, the first question asks the Court to engage in a consideration of the extent to which the evidence before Judge Lerve was probative of a factual finding in the case stated. The invitation to the Court to engage in an inquiry under s 5B, which is really in the nature of an appeal, must be rejected.

21. [35]

    The first question should be answered: “Inappropriate to answer”.

22. [36]

    The second question stated to this Court is as follows:

23. [37]

    Again, there are difficulties with the formulation of the second question. As the respondent submitted, the second question is inappropriately formulated insofar as it is dependent on the answer to the first question given the introductory words “Could these facts [referring to the facts in question one] support a finding …”. In addition, the second question as formulated seeks to confine this Court’s jurisdiction to construe the relevant legislation to the interpretation adopted by Judge Lerve which was put in issue by the applicant.

24. [38]

    Notwithstanding these shortcomings, the respondent accepted that the Court can answer the substance of the issue sought to be raised: Sasterawan v Morris at [37]. The substance of the issue sought to be raised by sub-questions (i) and (ii) is whether the meaning of “contained” as that word is used in the Restraint Guide is “tightly packed to prevent horizontal movement”. These sub-questions read together raised a question of law regarding whether his Honour misdirected himself in law as to the meaning of the term “contained load” in the Restraint Guide.

25. [39]

    As will be apparent from pars 9 and 11 of the stated case and the definition of “contained load” reproduced at [30] above, Judge Lerve misdirected himself in law as to the proper meaning of “contained” in the Restraint Guide. So much was ultimately accepted by the respondent in this Court. In the absence of being directed by the parties to the defined term “contained load” in the Glossary, Judge Lerve was driven to ascribing his own meaning to that term. The basis of the finding recorded in par 11 of the stated case seems to be the first sentence of par 7 in Section E, reproduced at [25] above. Plainly, the finding by his Honour concerning “tightly packed loads so as to prevent horizontal movement” did not take into account the ambit of the defined term “contained load” in the Glossary, relevantly, the prevention from dislodging from the vehicle by any of the stated means, which include by other parts of the load. Nor do the facts in the stated case specifically address the applicable performance standards for the load restraint system for contained loads.

26. [40]

    It is appropriate to answer sub-questions (i) and (ii) of the second question by reference to the meaning of the defined term “contained load” in the Glossary to the Restraint Guide.

27. [41]

    Sub-question (iii) of the second question does not raise a question of law. Even if it did, it cannot be answered, given the misdirection at law by his Honour as to the meaning of “contained load”.

28. [42]

    Notwithstanding this misdirection at law, the respondent invited the Court to answer the question whether, on the basis of the law correctly applied, are the remaining facts in the stated case capable of supporting the conviction?

29. [43]

    The respondent submitted by reference to photographs of various items on the tipper truck and extracts of the transcript in the Local Court, that the inevitable conclusion is that the remaining facts in the stated case are capable of supporting a finding of guilty for an offence against s 111(1)(b) of the National Law because the items in the contained load (the excavator buckets, the loading ramps, the jerrycan and conduit) were not otherwise the subject of any restraint method.

30. [44]

    It is not necessary to refer to the detail of these submissions, nor is it appropriate to comment on the merits of this contention. The essential difficulty is that the substance of the issue sought to be raised by sub-question (iii) cannot be answered by reference to the remaining facts in the stated case. The fact recorded in par 12 of the stated case that certain items in the contained load “were not tightly packed” proceeds upon the misdirection at law as to the meaning of “contained load”. Nor can the Court have regard to evidence in the Local Court and the District Court or draw inferences as to matters of additional fact that are not expressly stated.

Conclusion, Costs and Orders

1. [45]

   For the reasons given above, the questions in the stated case should be answered as follows:

   1. (1)

      Inappropriate to answer.

   2. (2)

      As to sub-questions (i) and (ii), the term “contained load” in the Load Restraint Guide has the meaning stated in the Glossary in section J, namely:

2. [46]

   The Court’s powers in determining the stated case includes the power to award costs in favour of the successful party: Clyne v Wrigley [1980] 1 NSWLR 599. The applicant sought an order for costs. The applicant has only succeeded on a narrow basis that the District Court misdirected itself in law as to the proper definition of a “contained load” for the purposes of the Restraint Guide. This definition was not brought to the attention of Judge Lerve in the District Court by the legal representatives for either of the parties. Nor was it drawn to the attention of the Local Court by the prosecutor, where the applicant was unrepresented. Both parties are at fault and costs should lie where they fall.

3. [47]

   The appropriate order is that there be no order as to costs, to the intent that each party bear his or its own costs in this Court.

4. [48]

   I propose the following consequential orders:

   1. (1)

      The time for submitting the stated case under s 5B of the Criminal Appeal Act 1912 (NSW) is extended to 28 March 2019.

   2. (2)

      Set aside the order made by Judge Lerve in the District Court on 21 June 2018 dismissing an appeal against conviction and sentence brought by the applicant, Kevin Douglas Jesse.

   3. (3)

      Quash the order made by Judge Lerve on 21 June 2018 imposing a fine of $1,000 and ordering the applicant to pay $1,000 court costs ordered in the Local Court.

   4. (4)

      No order as to costs, to the intent that each party bear his or its own costs in this Court.

   5. (5)

      Remit the matter to the District Court for disposal in accordance with law.

5. [49]

   JOHNSON J: I agree with the reasons of Gleeson JA and the orders proposed by his Honour.

6. [50]

   PRICE J: I agree with Gleeson JA’s analysis of the stated case and the orders that his Honour proposes.