Supreme Court New South Wales

• Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Booth Produce Pty Ltd & Roads and Traffic Authority of New South Wales v Christopher James Edwards [2011] NSWSC 1018
• Hearing dates: 26 November 2010
• Decision date: 02 September 2011
• Jurisdiction: Common Law
• Before: Hidden J

Decision

In each case appeal allowed, matter remitted to Local Court.

• Catchwords: ROAD TRANSPORT - summary prosecutions - issue of double jeopardy - breaches of height and width requirements of vehicles - whether breach of each requirement a separate offence
• Legislation Cited: Road Transport (General) Act 2005; Road Transport (Vehicle Registration) Regulation 2007; Crimes (Appeal and Review) Act 2001
• Cases Cited: Pearce v The Queen [1998] HCA 57, 194 CLR 610; Blockburger v United States (1932) 284 US 299
• Category: Principal judgment
• Parties: Roads and Traffic Authority of New South Wales (plaintiff); Booth Produce Pty Ltd (defendant); Christopher James Edwards (defendant)
• Representation: Barristers; Ms G Bashir (plaintiff); P Macken (defendant - Edwards); Solicitors; Brett Hearnden, Hunt and Hunt (plaintiff); Paul Macken, Leigh Virtue & Associates (defendant - Edwards)
• File Number(s): 2010/268022 & 2010/268017

Judgment

1 These two matters were heard together. In each of them the plaintiff is the Roads and Traffic Authority of New South Wales ("RTA"). In one of them the defendant is Booth Produce Pty Ltd ("Booth"). In the other the defendant is Christopher James Edwards. The matters are unrelated, but their facts are similar and they raise the same issue of law.

2 The RTA prosecuted Booth and Mr Edwards in the Local Court for breach of certain dimension requirements relating to vehicles imposed by the Road Transport (General) Act 2005. Booth was the operator of a vehicle, and was prosecuted under s 56(1) of the Act. Relevantly for present purposes, that provision makes it an offence for the operator of a vehicle to be in breach of a "dimension ... requirement." Mr Edwards was the driver of a vehicle, and was prosecuted under s 57(1). That provision makes it an offence for a driver to be in breach of a dimension requirement.

3 The expression "dimension requirement" is defined in s 20 of the Act. There is no need to set out the whole of the definition, but the opening words define the expression as "a requirement of an Australian applicable road law that relates to the dimensions of a vehicle ...". The relevant requirements are to be found in Sch 2 of the Road Transport (Vehicle Registration) Regulation 2007. The maximum width of a vehicle is prescribed by cl 71, and the maximum height by cl 77. As I understand it, these provisions are concerned with laden vehicles and the dimensions embrace the load being carried.

4 In the case of both Booth and Mr Edwards there were two charges, one alleging that the relevant vehicle exceeded the limitation upon its height and the other the limitation upon its width. In both cases the two charges were particularised as having occurred at the same place at the same time on the same day.

5 The prosecution of Booth was heard in the Local Court at Goulburn. The magistrate held that a breach of the width and height requirements constituted one offence, not two, and that to prosecute Booth for both charges placed it in double jeopardy. Her Honour dealt with the charge alleging breach of the height requirement, recording a conviction and imposing a fine, but permanently stayed the prosecution of the other charge.

6 The prosecution of Mr Edwards came before the same magistrate at the same court on a subsequent occasion. The same prosecutor appeared on behalf of the RTA. Mr Edwards did not appear, but he had entered written pleas of guilty to the two charges. The transcript of that proceeding is very brief, but it is clear enough that her Honour applied the same reasoning to the disposition of the charges against him. Her Honour dealt only with the charge relating to the height requirement, and it is common ground that the other charge was permanently stayed. Her Honour made a handwritten note to that effect on a bench sheet and, as will be seen, there was brief reference to a stay in an exchange between her Honour and the prosecutor.

7 In this court, in both matters, the RTA has appealed against the stays ordered by her Honour on a question of law, pursuant to s 56(1)(b) of the Crimes (Appeal and Review) Act 2001. Booth did not appear and had not filed an appearance, but I was satisfied that it had been served with the initiating process and I proceeded in its absence. Mr Edwards was represented by Mr Paul Macken, solicitor.

8 As I have said, her Honour's reasoning for ordering the stay in each case emerges from the proceedings against Booth. The company was not represented in the Local Court. The principal of the company, Mr John Booth, appeared but, not being legally qualified, he made no contribution to the argument. It was her Honour who raised the issue of double jeopardy, noting that the two offences were charged as having occurred at exactly the same time and place and inquiring of the prosecutor whether the relevant legislative provision provided for "separate courses of conduct" or for one offence "created from whatever conduct."

9 The prosecutor drew her Honour's attention to the height and width requirements in Sch 2 of the regulation. However, he wrongly referred to reg 52 as the provision under which the charges had been laid. That regulation makes it an offence to use a registrable vehicle which does not comply with vehicle standards specified in Sch 2. Although the width and height limitations are included in that Schedule, reg 52 was not the source of the charges against Booth. As I have said, they were laid under s 56 of the Act. Her Honour proceeded on the basis that reg 52 was the applicable provision, and this was itself an error of law.

10 However, if that were the only error it might be open to this court to amend the conviction, or to remit the matter to the Local Court for that purpose, under s 65(2) of the Crimes (Appeal and Review) Act . It remains necessary to consider whether the principle of double jeopardy applied to the charges as laid. This necessitates further examination of the course of the Booth proceedings.

11 Mr Booth explained that it was a piece of agricultural machinery being carried by the vehicle which exceeded both the height and width requirements. Her Honour noted, then, that the prosecution was based upon "separate breaches of the applicable vehicle standards caused by the one item loaded on the truck." She saw the two charges as infringing the rule against double jeopardy because that item "breached the applicable vehicle standard in the one go."

12 She then asked the prosecutor on which of the two charges did he wish the penalty to be imposed. The prosecutor replied that, if her Honour were to maintain her ruling, his only course would be to ask her "to permanently stay one of the matters." However, he added, "I'd rather find both offences proven and factor in your Honour's view in relation to the criminality of the offences ... ." I take those last words to mean that he acknowledged that the fact that the two requirements were breached by the one item might be relevant to penalty.

13 Her Honour gave a short judgment before imposing a penalty on the charge relating to the height requirement. She expressed the view that there was one breach of reg 52, saying that "a breach can occur in relation to more than one standard and ... in a situation such as this where we have the one item, it would comprise one offence." She ordered that the court attendance notice in relation to the breach of the width requirement be permanently stayed.

14 In the proceedings relating to Mr Edwards, her Honour had the prosecutor confirm that he maintained the submissions he had made in the Booth matter and that he did not wish to say anything further. From the brief transcript it appears that the offending item was a boat on a trailer. Her Honour confirmed her view that breaches of more than one dimension were "the one act ... rather than two separate matters." No reference was made to reg 52, but it is reasonable to assume that both the prosecutor and her Honour proceeded on the basis that it was the applicable provision. Her Honour decided to deal with the charge relating to the height requirement. The prosecutor said, "Stay the other one, your Honour?" She replied, "Yes, thank you." From what she then said, however, it appears that on penalty she took into account the breach of both the height and width requirements.

15 Counsel for the RTA in this court, Ms Bashir, argued that breaches of the height and width requirements are separate offences and the principle of double jeopardy has no application. Dealing with the notion of double jeopardy generally, she referred to the following passage from the joint judgment in Pearce v The Queen [1998] HCA 57, 194 CLR 610, at [9] - [13] (pp 614-5):

"[9] The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter". Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

[10] If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States :

'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'

That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. It also finds reflection in constitutional guarantees such as the Fifth Amendment to the United States Constitution, which states in part:

'[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.'

It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified.

[11] First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.

[12] Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged.

[13] Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct."

(Footnotes omitted)

16 Relevantly for present purposes, at [27] (p 619) their Honours referred to the decision of the Supreme Court of the United States in Blockburger v United States (1932) 284 US 299, in which the court held (at 304):

"... where the same Act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offenses or only one, is whether each provision requires proof of a fact which the other does not."

17 Guided by these principles, Ms Bashir made out a compelling case that breaches of the height and width requirements are separate offences. They are not merely particulars of the same offence (which appears to be the way in which her Honour approached the matter in Mr Edwards' case, even though she said that she was dealing only with the charge alleging a breach of the height requirement).

18 Sections 56 and 57 of the Act both create an offence of a breach of a dimension requirement. Clearly enough, the legislative intention is that each breach constitutes an offence. Moreover, subs (2) of each section provides a defence in certain circumstances, applicable to the breach of a dimension requirement, if that breach is classified as a "minor risk breach." Chapter 3, Pt 3.3, Div 4 of the Act classifies breaches of the relevant requirements as "minor risk", "substantial risk" and "severe risk", each category carrying a different maximum penalty. In any given case where breaches of both height and width requirements are alleged, one might be a minor risk breach while the other is not. In such a case there might be a defence to the former but not the latter and, in any event, they might attract different penalties.

19 Ms Bashir also referred to s 177 of the Act, under the heading "Double jeopardy". By subs (1) of that section, a person may be punished only once in relation to the same failure to comply with a legislative provision, even though that person is liable in more than one capacity, such as a person who was both the operator and driver of a vehicle. However, by subs (2), a person may be punished for more than one breach of a requirement "where the breaches relate to different parts of the same vehicle ... ." This lends further support to Ms Bashir's argument, although, as she acknowledged, the section is directed to punishment rather than the laying of charges.

20 Accordingly, I am satisfied that her Honour fell into error of law in her approach to both of these prosecutions. Mr Macken put no submission to the contrary. Rather, he argued that the RTA should not be granted relief because in each case it was the prosecutor who sought the permanent stay about which it now complains. On the face of it that is true, but what the prosecutor said must be understood in its context. In the Booth matter it was clear that her Honour had decided that only one charge could be proceeded with and, no doubt, the prosecutor saw a permanent stay of the charge as preferable to it being dismissed. He made it clear, however, that he did not abandon his position that both charges should be dealt with by saying, "I'd rather find both charges proven ... ." When Mr Edwards' matter came on for hearing, he simply accepted that her Honour's view was unchanged and that the outcome would be the same.

21 Mr Macken was concerned about the position in which his client might be placed if the appeal were allowed and the matter remitted to the Local Court for the charge of breach of the width requirement to be dealt with. As I have said, although her Honour purported to deal only with the height requirement charge, she appears to have had regard to both breaches when imposing penalty. Before determining the penalty, her Honour said:

"Proceeding on the height matter then. Sorry, proceeding on there being a severe breach of dimension by the one item being too high and wide."

If Mr Edwards were now to be dealt with for the width requirement charge, Mr Macken said, he would be placed in a form of double jeopardy in that he might face double punishment.

22 There is force in that argument. As I have said, the RTA brings these appeals under s 56(1)(b) of the Crimes (Appeal and Review) Act . The court's powers of disposition of such an appeal are to be found in s 59(2), and they include dismissing the appeal. However, this is not the occasion to decide whether the court has a discretion to dismiss such an appeal even though error of law has been made out. At the hearing, and in subsequent written submissions, Ms Bashir informed me that the RTA's concern is to have the matter of law clarified and that, if the appeal is allowed and the matter is remitted to the Local Court, it undertakes to inform that court that it will not further prosecute the width requirement offence. It is in the interests of justice that the RTA be granted the relief it seeks.

23 In each case the appeal is allowed. The decision of the Local Court to permanently stay the court attendance notice alleging breach of the width requirement is set aside, and the proceedings are remitted to the Local Court to be determined according to law. If necessary, I shall hear the parties on costs.

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Decision last updated: 02 September 2011