Supreme Court New South Wales Medium Neutral Citation: Kemp v KGB Protective Coating Pty Ltd [2013] NSWSC 965 Hearing dates: 12 July 2013 Decision date: 18 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: The prosecutor established a prima facie case that KGB Protective Coating Pty Ltd 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 - s 246 of the Criminal Procedure Act 1986 - offence alleged under s 55(1) of the Road Transport (General) Act 2005 - prima facie case established - loader of goods - 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) KGB Protective Coating Pty Ltd (Defendant) Representation: Solicitors: Ms A Bonnar I.V. Knight, Crown Solicitor (Prosecutor) No appearance for the Defendant File Number(s): 2013/212114 Publication restriction: None Judgment 1These proceedings were commenced by summons filed on 12 July 2013 by the prosecutor, Peter Stewart Kemp, seeking an order under s 246 of the Criminal Procedure Act 1986 that the defendant, KGB Protective Coating Pty Ltd, be brought before a judge of this Court to answer a charge under s 55(1) of the Road Transport (General) Act 2005. 2The 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 support the application. 3When 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 4The 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. 5The driver of the combination, Mr Basil White, was later charged with manslaughter. The charge under s 55(1) of the 2005 Act 6Section 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. The prosecutor's case was that such an order would be made if a prima facie case under s 55(1) of the 2005 Act was established on the material relied on. 7Section 55(1) of the 2005 Act provided: "55 Liability of loader ... (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 loader of any goods that are in or on the vehicle or combination concerned." A prima facie case of breach of the load restraint requirements of s 55(1)(a) was established 8The prosecutor's case was that relevant to the breach of the load restraint requirement alleged was 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." 9Annexed 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. There Mr Di Cristoforo referred to the '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. 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, permitting the catastrophic movement of the load which caused the accident. 10I was satisfied that the material relied on established a prima facie case that the breach of the load restraint requirements of s 55(1)(a) alleged, had occurred. A prima facie case that KGB Protective Coating Pty Ltd was the loader of the goods carried by the combination involved in the 14 July 2011 accident was established 11The prosecutor also alleged that KGB Protective Coating Pty Ltd was the loader of the goods being carried by the combination involved in the 14 July 2011 accident. 12The prosecutor relied on a transcript of an Electronically Recorded Interview of a Suspected Person (ERISP) annexed to his affidavit. The ERISP recorded a police interview with Mr Basil White on 14 July 2011. Mr White was the driver of the combination involved in the 14 July 2011 accident. During the interview, Mr White said that he witnessed the loading of the combination by KGB Protective Coating Pty Ltd in Newcastle prior to the accident. 13I was satisfied that the material relied on established a prima facie case that it was KGB Protective Coating Pty Ltd who was the loader of the goods being carried by the combination involved in the 14 July 2011 accident. Result and orders 14In the result, I was satisfied that the prosecutor had established a prima facie case that KGB Protective Coating Pty Ltd had committed the offence alleged and accordingly made the orders sought under s 246 of the Criminal Procedure Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2013