Kemp v Walker [2013] NSWSC 962 (18 July 2013)

Last Updated: 25 July 2013

Supreme Court New South Wales

Case Title:	Kemp v Walker
Medium Neutral Citation:	[2013] NSWSC 962
Hearing Date(s):	12 July 2013
Decision Date:	18 July 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	The prosecutor established a prima facie case that Robert John Walker had committed the offence alleged and accordingly the orders sought under s 246 of the Criminal Procedure Act were made.
Catchwords:	CRIMINAL LAW - procedure --prosecution - offence alleged under s 56(1) of the Road Transport (General) Act 2005 - s 178 of the Road Transport (General) Act 2005 - s 246 of the Criminal Procedure Act 1986 - prima facie case established - orders made
Legislation Cited:	Criminal Procedure Act 1986 Road Transport (General) Act 2005 Road Transport (Mass, Loading and Access) Regulation 2005
Category:	Procedural and other rulings
Parties:	Peter Stewart Kemp (Prosecutor) Robert John Walker (Defendant)
Representation
- Solicitors:	Solicitors: Ms A Bonnar I.V. Knight, Crown Solicitor (Prosecutor) No appearance for the Defendant
File Number(s):	2013/212107
Publication Restriction:	None

JUDGMENT

1. These proceedings were commenced by summons filed by the prosecutor, Peter Stewart Kemp, on 12 July 2013. Thereby an order under s 246 of the Criminal Procedure Act 1986 that the defendant, Robert John Walker, be brought before a judge of this Court to answer a charge under s 56(1) of the Road Transport (General) Act 2005 was sought.

2. The prosecutor, a senior investigator in the Investigation and Enforcement Unit of the Roads and Maritime Services (RMS), relied on an affidavit he had sworn on 11 July 2013, to which was annexed various documents, to support the application.

3. When the proceedings came before me, sitting as duty judge, on 12 July 2013, I made orders in terms sought in the summons. My reasons for making those orders follow.

The factual background

4. The prosecutor relied on briefs of evidence prepared by RMS and by NSW Police, as part of their investigations into an accident that had occurred on 14 July 2011 at Bathurst. They revealed that a heavy vehicle combination was delivering a load of steel beams from Newcastle to Orange that day. Part of the load swung out from the combination while it was travelling along the Mitchell Highway, colliding with a vehicle being driven in the opposite direction by Ms Leonie Darling, causing her death. Part of the load then fell from the combination, striking five other vehicles.

5. The driver of the combination, Mr Basil White, was later charged with manslaughter.

Section 246 of the Criminal Procedure Act

6. Section 246 of the Criminal Procedure Act empowers the Court to order a person to be brought before the Court for the purpose of answering a charge brought under the Court's summary jurisdiction.

7. The prosecutor's case was that an order under s 246 of the 1986 Act would be made if a prima facie case under s 56(1) of the 2005 Act was established on the material relied on, Mr Walker being a director of the company which had committed the offence alleged.

Section 56(1) and s 178 of the 2005 Act

8. Section 56(1) of the 2005 Act provided:

"56 Liability of operator

...

(1) A person is guilty of an offence if:

(a) a breach of a mass, dimension or load restraint requirement occurs, and

(b) the person is the operator of the vehicle or combination concerned."

9. In this case the prosecutor also relied on s 178 of the 2005 Act, which provided:

"178 Liability of directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees

...

(1) If a body corporate commits an offence under the road transport legislation, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly... "

A prima facie case under s 56(1)(a) established

10. The prosecutor's case was that relevant to the breach of load restraint alleged were the provisions of clause 61 of the Road Transport (Mass, Loading and Access) Regulation 2005, which provided:

"61 Load requirements

(1) A load on a vehicle or a trailer must not be placed in a way that makes the vehicle unstable or unsafe.

(2) A load on a vehicle or a trailer must be secured so that it is unlikely to fall or be dislodged from the vehicle.

(3) An appropriate method must be used to restrain the load on a vehicle.

(4) In proceedings for a contravention of a requirement under this clause, it is sufficient for the prosecution to prove that the load on the vehicle was not placed, secured or restrained (as the case requires) in a way that met the performance standards recommended in the Load Restraint Guide: Guidelines and performance standards for the safe carriage of loads on road vehicles, Second Edition, as published by the National Transport Commission in April 2004."

11. Annexed to the prosecutor's affidavit, amongst other things, was a report of Mr Di Cristoforo, a road safety engineer who had been instructed by NSW Police to provide an expert report as to the manner of loading the load on the combination.

12. There Mr Di Cristoforo referred to a 'Load Restraint Guide' published in 2004 by the National Transport Commission, which refers to various requirements, including dunnage to be placed on a trailer deck. By reference to these requirements, he explained the basis for his opinion that the type of wood used in the dunnage of the combination involved in the 14 July 2011 accident was inadequate for the load being carried; and that for reasons which he explained, that this deficiency permitted the catastrophic movement of the load which caused the accident.

13. I was satisfied that the material relied on established a prima facie case, that the breach of the load restraint requirements of s 56(1)(a) alleged, had occurred.

A prima facie case under s 51(b) established

14. The prosecutor relied on two documents annexed to his affidavit, to prove the second element of the alleged offence. Firstly, a witness statement signed by Robert John Walker on 28 September 2011 where Mr Walker acknowledged that he was the owner, and a director, of the company that operated the combination involved in the 14 July 2011 accident, Robbie Walker Transport Operations Pty Ltd. Secondly, the printed results of an ASIC company extract search also evidenced that Mr Walker was a director of Robbie Walker Transport Operations Pty Ltd.

15. I was satisfied that the material relied upon established a prima facie case that Robbie Walker Transport Operations Pty Ltd was the operator of the combination involved in the 14 July 2011 accident and that Robert John Walker was a director of that company.

The effect of s 178(1) of the 2005 Act

16. It followed that as a consequence of the operation of s 178(1) of the 2005 Act, Mr Walker, as a director of Robbie Walker Transport Operations Pty Ltd, was deemed to have committed any offence committed by that company in breach of the 2005 Act.

Result and orders

17. In the result, I was satisfied that the prosecutor had established a prima facie case that Robert John Walker had committed the offence alleged and accordingly made the orders sought under s 246 of the Criminal Procedure Act.

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