Local Court New South Wales Medium Neutral Citation: Roads & Maritime Services v Dranmore Pty Ltd & Ors [2017] NSWLC 22 Hearing dates: 9-12 and 17-20 November 2015; 29 February 2016; 1-3 March 2016. Written submissions: 1 April 2016 (Prosecution); 15 April 2016 (Defence). Further written submissions: 6 May 2016 (Prosecution); 26 May 2016 (Defence) Decision date: 04 October 2017 Jurisdiction: Criminal Before: Magistrate T Tsavdaridis Decision: See paragraph 124 Catchwords: CRIMINAL - specific offences - heavy vehicle related legislation - chain of responsibility speeding offences - speed limiter devices - compliance - reasonable steps defence Legislation Cited: Criminal Procedure Act 1986 (NSW) s175(3) Evidence Act 1995 (NSW) ss141 and 191 Road Transport (General) Act 2005 (NSW) (Repealed) ss 6, 21, 178 Road Transport (General) Regulation 2005 (NSW) (Repealed) cll 152, 156, 165 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) s 69C Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) s150 Cases Cited: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7 Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132 Woolmington v DPP [1935] AC 462 Category: Principal judgment Parties: Road and Maritime Services (Prosecuting Authority) Dranmore Pty Limited (First Defendant) Eezee Nominees Pty Limited (Second Defendant) Laudrup Pty Limited (Third Defendant) GE & CD Hommes Pty Limited (Fourth Defendant) Roadmaster Driving Tutorial Pty Limited (Fifth Defendant) Frederick Borg (Sixth Defendant) Danny Frederick Borg (Seventh Defendant) Grant Raymond Borg (Eighth Defendant) Representation: Counsel: Mr M Higgins (Prosecuting Authority) Dr A M Martin (Defendants) Solicitors: Henry Davis York (Prosecuting Authority) Nicholas W J Rolfe Solicitors (Defendants) File Number(s): 2012/00174445; 2012/00175997; 2012/00168266; 2012/00168769; 2012/00174416; 2012/00169690; 2012/00174767; 2012/00174518; 2012/00168950; 2012/00177268; 2012/00176707; 2012/00169642; 2012/00173058; 2012/00173364; 2012/00176093. Publication restriction: Nil Judgment Overview 1. The Defendants are related trucking companies, within the Fred's Interstate Transport Group, based in Shepparton, Victoria, three of whom are directors, and are collectively charged with some 217 offences, contrary to now repealed legislation relating to heavy vehicle speed violations, namely: (a) Section 178(1) Road Transport (General) Act 2005 (NSW) (Repealed) ("RT(G)Act"); (b) Clause 156(3) Road Transport (General) Regulation 2005 (NSW) (Repealed) ("RT(G)Reg"); and (c) Section 69C Road Transport (Safety and Traffic Management) Act 1999 (NSW) (Repealed) ("RT(S&TM)Act"). 1. The offences can generally be categorised as strict liability offences. Some, though, are in the nature of 'chain of responsibility' offences, in which obligations are imposed on corporate bodies, directors, partners and managers who are accountable for the actions of others, particularly drivers, under their control. Other offences are enlivened by derivative or vicarious liability, which emanates from deeming provisions imputing liability on a person for violations of the road transport legislation committed by a corporate entity. All three offence categories provide statutory defences, the onus of which rests with the corporate entity or individual director as the case may be. For ease of reference, I will refer to the corporate and individual defendants as the Defendants or the Defence, unless a contrary intention is expressed. 2. These proceedings have a lengthy history, the subject matter of which relates to offences said to have taken place in or about 2011, the prosecution of which was undertaken by Roads and Maritime Services ("RMS"). 3. The Court Attendance Notices ("CANs"), by which the prosecutions were commenced, were filed in 2012, the delay in the matters coming to hearing being attributable, in part, to an interlocutory issue being considered in the Supreme Court of NSW by Campbell J in Dranmore Pty Ltd & Ors v Paul Bimson [2014] NSWSC 1230 ("Dranmore v Bimson"). In those proceedings, the Defendants sought to "quash as insufficient in law and invalid as non-compliant with s 175(3)(a) and (b) Criminal Procedure Act 1986 (NSW)" the CANs for a failure on the part of the prosecuting authority to particularise the reasonable steps and / or available reasonable precautions the Defendants failed to take to prevent the primary offences occurring. 4. In the alternative, the Defendants sought leave to appeal from an interlocutory decision of this Court, differently constituted, in which it was held that the reasoning in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 ("Kirk") did not apply. 5. In Kirk it was held, inter alia, that the legal obligation to provide particulars cast upon a prosecutor in criminal proceedings may extend to providing particulars necessary to enable the person charged to decide whether a recognised defence to the charge may be available: Kirk at [27]; Dranmore v Bimson at [7], [22] and [23]. But as observed by McColl JA (at [18]) in Western Freight Management Pty Ltd v Roads & Maritime Services New South Wales [2014] NSWCA 132 ("Western Freight"): "The vice of the charge in [Kirk] was the failure to particularise the actus reus of the offence, which failure prevented the defendant from relying upon a statutory defence which depended upon it establishing it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence". 1. Despite acknowledging that the particulars provided by the RMS on 13 April 2013 were of the kind that were required to enable the person charged to decide whether a recognised defence of the charge may be available (Dranmore v Bimson at [7]), Campbell J, following the reasoning in Western Freight, concluded that the information contained within the CANs contained the actus reus of the offending conduct covered by the legislative offence provisions (Dranmore v Bimson at [48]) and ultimately dismissed the Defendants' application. I understood this to also mean that to the extent that particulars were provided by the prosecuting authority, such particulars were sufficient. No further agitation of this issue arose in the proceedings before this Court, but it is a relevant fact to record, given that the Defendants, on day two of the hearing, unsuccessfully sought to vacate the remaining 13 hearing days and adjourn the proceedings to another date. The basis of such application was so as to enable a nolle prosequi submission to be made to the RMS, reliant upon two boxes of documents provided by the Defendants to their legal representatives two weeks before the hearing commenced and which were said to be relevant to the statutory defences available to them. 2. The hearing ultimately spanned some 12 hearing days with written submissions and submissions in reply over the course of broken periods of hearing availability in a busy Local Court complex between 2015 and 2016. This accounts for part of the delay in bringing the proceedings to a conclusion. The other reason was the need to reserve and prepare these written reasons in a case which involved some 62 exhibits, 51 MFIs, 12 volumes of reports, policies, records and manuals, 731 pages of transcript and 117 pages of written submissions, in a jurisdiction with little, if any, judicial support or typing services. The Legislation 1. The relevant provisions pursuant to which the speed limiter related charges were brought provide as follows (the offence provision and statutory defence underlined respectively): Road Transport (Safety and Traffic Management) Act 1999 (NSW) 69C Vehicles to be speed limited (1) The responsible person for a vehicle to which this Division applies is guilty of an offence unless the vehicle is speed limiter compliant when the vehicle is being driven on a road or road related area. Maximum penalty: 30 penalty units (in the case of an individual) or 150 penalty units (in the case of a corporation). (2) In proceedings for an offence under this section, proof that the vehicle concerned was driven on a road or road related area at a speed of more than 115 km/h is admissible and is prima facie evidence that the vehicle was not speed limiter compliant at the time that it was travelling at that speed. (3) It is a defence to a prosecution for an offence under this section if the defendant proves: (a) that the vehicle was, at the time of the alleged offence, a stolen vehicle or a vehicle illegally taken or used, or (b) that the vehicle is speed limiter compliant and that, at the time it was travelling at a speed of more than 115 km/h, the gradient of the length of road or road related area along which the vehicle was being driven at or immediately before that time, combined with the speed at which the vehicle was travelling on that length of road or road related area, caused it to be driven at more than 100 km/h despite the vehicle being speed limiter compliant. (4) In proceedings for an offence under this section, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence. Road Transport (Safety and Traffic Management) Act 1999 (NSW) Dictionary 1 Definitions (1) In this Act: responsible person for a vehicle—see section 6 of the Road Transport (General) Act 2005. Road Transport (General) Act 2005 (NSW) 6 Responsible person for a vehicle (1) In the road transport legislation, the responsible person for a vehicle is: (a) in relation to a registered vehicle—each of the following persons: (i) a registered operator of the vehicle, except where the vehicle has been disposed of by the operator, (ii) if the vehicle has been disposed of by a previous registered operator—a person who has acquired the vehicle from the operator, (iii) a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and (b) … (c) … (d) any other person (or class of persons) prescribed by the regulations for the purposes of this definition. (2) For the purposes of subsection (1)(d), the regulations may prescribe different persons for different provisions of the road transport legislation. Note. A wider definition of responsible person applies for the purposes of Chapter 3. 21 Operators (1) For the purposes of this Chapter and Part 4.2, a person is an operator of a vehicle or combination if: (a) in the case of a vehicle (including a vehicle in a combination)—the person is responsible for controlling or directing the operations of the vehicle, or (b) in the case of a combination—the person is responsible for controlling or directing the operations of the towing vehicle in the combination. (2) A person is not an operator merely because the person does any or all of the following: (a) owns a vehicle or combination, (b) drives a vehicle or combination, (c) maintains or arranges for the maintenance of a vehicle or combination, (d) arranges for the registration of a vehicle. Note. Section 80 (Liability of registered operators and owners) contains provisions relating to the liability of registered operators and owners in connection with offences committed by persons who are operators of vehicles or combinations. 1. The relevant provisions pursuant to which the directorial liability related charges were brought provide as follows (the offence provision and statutory defence underlined respectively): Road Transport (General) Act 2005 (NSW) 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. (2) If a person who is a partner in a partnership commits an offence under an applicable road law in the course of the activities of the partnership, each other person who is a partner in the partnership, and each other person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly. (3) If a person who is concerned in the management of an unincorporated association commits an applicable road law offence in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly. (4) If an employee commits an applicable road law offence, the employer is taken to have committed the offence and is punishable accordingly. (4A) Subsections (1), (2), (3) and (4) do not apply in respect of an offence under a provision of a regulation made under the road transport legislation that is declared by such a regulation to be an excluded provision for the purposes of this section. (5) This section does not affect the liability of the person who actually committed the offence. (6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence. (7) It is a defence to a prosecution for an offence arising under subsection (1) if the defendant establishes that: (a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence, or (b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. (8) It is a defence to a prosecution for an offence arising under subsection (2) or (3) if the defendant establishes that: (a) the defendant was not in a position to influence the conduct of the person who actually committed the offence, or (b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. (9) It is a defence to a prosecution for an offence arising under subsection (4) if the defendant establishes that: (a) the defendant had no knowledge of the actual offence, and (b) the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. 1. The relevant provisions pursuant to which the employer and operator related charges were brought provide as follows (the offence provision and statutory defence underlined respectively): Road Transport (General) Regulation 2005 (NSW) 156 Duty to ensure offences are not committed (1) In this clause: speeding offence means an occurrence in which the driver of a vehicle drives the vehicle in excess of any speed limit that applies to the vehicle. (2) This clause applies to: (a) the employer of an employed driver of a vehicle, and (b) the prime contractor of a self-employed driver of a vehicle, and (c) the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator. (3) A person to whom this clause applies commits an offence if, at any time that a driver of a vehicle, or a vehicle, is subject to the person's control, the driver commits a speeding offence while driving the vehicle. Maximum penalty: (a) in relation to a level 1 offence: (i) in the case of an individual—10 penalty units, or (ii) in the case of a corporation—50 penalty units, or (b) in relation to a level 2 offence: (i) in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or (ii) in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence), or (c) in relation to a level 3 offence: (i) in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or (ii) in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence). (4) Despite subclause (3), a person is not liable under that subclause if the vehicle was a combination, and neither the driver nor the towing vehicle was subject to the person's control. (5) The levels of offence referred to in subclause (3) are to be determined using the following table: Speed limit at the place where the speeding offence occurred Type of heavy vehicle Penalty level Recorded speed of <15 km/h above speed limit Recorded speed of ≥ 15 km/h above speed limit 50–60 km/h All Level 1 Level 1 70–80 km/h All Level 1 Level 2 90 km/h Road trains (where speed limited to 90 km/h) Level 2 Level 3 90 km/h Non-road trains Level 1 Level 2 100 km/h Non-road train heavy combinations Level 2 Level 3 >100 km/h Non-combination heavy vehicles Level 2 Level 3 (6) It is a defence to an offence under this clause if the accused person establishes that: (a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence, and (b) either: (i) the person took all reasonable steps to prevent that conduct from occurring, or (ii) there were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring. (7) For the purposes of this clause: (a) it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence, and (b) evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction, and (c) evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice. Road Transport (General) Regulation 2005 (NSW) 152 Definitions (1) In this clause: operator, in relation to a regulated heavy vehicle, means a person who is responsible for controlling or directing the operations of: (a) in the case of a vehicle (including a vehicle in a combination)—the vehicle, or (b) in the case of a combination—the towing vehicle in the combination, but does not include a person merely because the person: (c) owns the vehicle or combination, or (d) drives the vehicle or combination, or (e) maintains, or arranges for the maintenance of, the vehicle or combination, or (f) arranges for the registration of the vehicle. In considering cl.156(6)(b)(i) of the statutory defence, the court may consider the following non-exhaustive matters: - Road Transport (General) Regulation 2005 (NSW) 165 Matters court may consider for deciding whether person took all reasonable steps A court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including: (a) the nature of the aspect or risk that the person was attempting to, or should have been attempting to, address, and (b) the likelihood of a risk eventuating, and (c) the degree of harm that would result if a risk did eventuate, and (d) if a driver has been speeding—the circumstances of the offence (for example, the risk category that the offence belongs to), and (e) the abilities, experience, expertise, knowledge, qualifications and training that the person, or the person's agent or employee, had or ought reasonably to have had, and (f) the availability and suitability of ways to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating, and (g) the cost of eliminating a risk or minimising the likelihood of a risk eventuating. CANs withdrawn and dismissed 1. Prior to the commencement of the hearing, the Prosecution withdrew 20 CANs as against a number of Defendants. No objection was taken by the Defence and, accordingly, they were dismissed. A spread sheet listing all of the CANs (including those withdrawn and dismissed) is attached to these Reasons as Annexure "A". Statement of Agreed Facts 1. Pursuant to s.191 Evidence Act 1995 (NSW), there was a written agreement reached between the parties, and tendered into evidence as Exhibit 1, in relation to a number of agreed facts, of which the RMS was not required to prove the existence. The Defendants did not take issue, during the relevant period the subject of these proceedings, with: 1. the corporate status of the Defendant companies, as being registered in Victoria; 2. corporations' registered office addresses; 3. the corporate officer status of the Defendant companies, to the effect that the three natural person Defendants (Mr Danny Borg, Mr Frederick Borg and Mr Grant Borg) were directors, and concerned in the management, of the corporate Defendants (Dranmore Pty Limited ("Dranmore"), Eezee Nominees Pty Limited ("Eezee"), GE and CD Hommes Pty Limited ("Hommes"), Laudrup Pty Limited ("Laudrup") and Roadmaster Driving Tutorial Pty Limited ("Roadmaster")); 4. the location, date and time of the offences; 5. the name of the driver for many, but not all, of the offences; 6. the operator (Defendant corporation) responsible for controlling or directing the operations of each of the vehicles on specific dates; 7. the classification of all of the vehicles as regulated heavy vehicles with a gross vehicle mass (GVM) greater than 4.5 tonnes; 8. the speed limit applicable to all of the vehicles being 100 km/h; 9. the Transportable Infra-Red Traffic Logger ("TIRTL") speed detection device being an approved speed measuring device; and 10. for the offences pursuant to s.69C RT(S&TM)Act, the vehicle VV47HK had a date of manufacture on or after 1 January 1991 and a GVM exceeding 12 tonnes and that the manner by which such vehicle was to be speed limited was in accordance with the 3rd edition of the Australian Design Rules ("ADR"). The Multiple Defendants Dranmore Pty Limited and Mr Frederick Borg 1. Dranmore was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Dranmore. 2. Between 22 August 2011 and 3 January 2012 inclusive, vehicles operated by Dranmore were alleged to have committed four speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg. 3. As a director of Dranmore, Mr Frederick Borg was alleged to have committed the same four offences under cl.156(3) RT(G)Reg, by virtue of derivative liability under s.178(1) RT(G)Act. 4. Eezee Nominees Pty Limited and Mr Frederick Borg 5. Eezee was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Eezee. 6. Between 25 February 2011 and 20 January 2012 inclusive, vehicles operated by Eezee were alleged to have committed seven speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg. 7. As a director of Eezee, Mr Frederick Borg was alleged to have committed the same seven offences under cl.156(3) RT(G)Reg, by virtue of derivative liability under s.178(1) RT(G)Act. GE & CD Hommes Pty Limited and Mr Danny Borg 1. Hommes was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Danny Borg was the sole director of Hommes. 2. Between 8 January 2011 and 6 February 2012 inclusive, vehicles operated by Hommes were alleged to have committed 47 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg. 3. As a director of Hommes, Mr Danny Borg was alleged to have committed 13 offences under cl.156(3) RT(G)Reg, between 8 January 2011 and 17 January 2012, by virtue of derivative liability under s.178(1) RT(G)Act. Laudrup Pty Limited, Mr Grant Borg and Mr Danny Borg 1. Laudrup was an operator, within the meaning ascribed in cl.152 RT(G)Reg, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Grant Borg and Mr Danny Borg were directors of Laudrup. 2. Between 16 January 2011 and 15 March 2012 inclusive, vehicles operated by Laudrup were alleged to have committed 32 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg. 3. As a director of Laudrup, Mr Grant Borg was alleged to have committed nine offences under cl.156(3) RT(G)Reg, between 16 January 2011 and 5 December 2011, by virtue of derivative liability under s.178(1) RT(G)Act. 4. As a director of Laudrup, Mr Danny Borg was alleged to have committed eight offences under cl.156(3) RT(G)Reg, between 25 May 2011 and 15 March 2012, by virtue of derivative liability under s.178(1) RT(G)Act. Roadmaster Driving Tutorial Pty Limited and Mr Frederick Borg 1. Roadmaster was an operator, within the meaning ascribed in cl.152 RT(G)Reg and s.21 RT(G)Act, of a fleet of heavy vehicles which primarily transported goods across several states within Australia, including New South Wales. Mr Frederick Borg was a director of Roadmaster. 2. Between 5 January 2011 and 10 April 2012 inclusive, vehicles operated by Roadmaster were alleged to have committed 63 speeding offences within New South Wales, contrary to cl.156(3) RT(G)Reg. 3. Between 11 November 2011 and 29 February 2012, vehicles operated by Roadmaster committed four offences under s.69C RT(S&TM)Act, to which pleas of guilty were entered midway through the hearing. 4. As a director of Roadmaster, Mr Frederick Borg was alleged to have committed 15 offences under cl.156(3) RT(G)Reg, between 5 January 2011 and 29 January 2012, and four offences under s.69C between 11 November 2011 and 29 February 2012, by virtue of derivative liability under s.178(1) RT(G)Act. Cautionary Criminal Trial Directions and Onus and Standard of Proof 1. The charges and statutory defences, respectively, fall into three categories: - Statute Offence provision Statutory Defence RT(G)Reg cl.156(3) cl.156(6) RT(S&TM)Act s.69C(1) s.69C(3) RT(G)Act s.178(1) s.178(7) 1. Sitting as both the tribunal of fact and law, to the extent that questions of law such as onus and standard of proof arise, it is apposite that I direct myself as though I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment. Cautionary criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself on the issues of onus and standard of proof. 2. It is imperative, at the outset, to observe that these are criminal proceedings and, as such, the Prosecution bears the onus of proving all the elements of each offence, beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7; Woolmington v DPP [1935] AC 462. Section 141 Evidence Act 1995 (NSW) preserves the common law position. That onus rests with the Prosecution from start to end and does not shift to the Defence. The Defence, however, bears the onus of proving any statutory defences. At the close of the prosecution case, the Defence entered pleas of guilty to the only four charges brought contrary to s.69C(1) RT(S&TM)Act. As to the remaining charges, the Defence sought to invoke the statutory defences provided for in cl.156(6) RT(G)Reg and s.178(7) RT(G)Act and, after appropriately conceding that a prima facie case had been established, led evidence of its own. 3. Although not flagged as an issue in the closing written submissions submitted by counsel for each party, a little more need be said about the statutory defences and their interaction with the principles governing onus and standard of proof. 4. To the extent that an onus is cast upon an accused, the Court is to find the Defence case proved if it is satisfied that the case has been proved on the balance of probabilities: s.141(2) Evidence Act 1995 (NSW). 5. Counsel for both parties agreed that this was a matter in which the Defence bore the onus, on the balance of probabilities, of proving facts that would bring its case within the scope of the qualifications outlined in the statutory defences, and that it was then for the Prosecution to negative or disprove the existence of such facts to the requisite criminal standard, beyond reasonable doubt (T1.3.2016, 8.14 - 8.22). This is consistent with the reasoning in Council of the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [41]. 6. Two further matters should be borne in mind when arriving at a concluded view as to whether the Defendants are guilty or not guilty of the offences with which they have been charged. 7. First, putting aside statutory defences in respect of which the Defence bears an onus on balance, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7. 8. Secondly, if, upon a review of all the evidence, the tribunal of fact is left with reasonable doubt about whether the Prosecution case has been made out, or is satisfied that the Defence case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462. Certain offences 1. There are 217 charges comprising 157 alleged speeding charges brought against corporate entities and 60 derivative liability offences brought against directors. 2. The following four alleged offences should be quarantined from the outset: Seq No Case No Offence type Defendant Date of offence Rego No 18 2012/168266 cl.156(3) Laudrup Pty Ltd 15.3.2012 VV97HW 8 2012/174767 s.178 Danny Borg 15.3.2012 VV97HW (cl.156(3)) (Re: Laudrup Pty Ltd) 45 2012/173364 cl.156(3) Hommes Pty Ltd 21.12.2011 VV53HQ 6 2012/177268 s.178 (cl.156(3)) Danny Borg 21.12.2011 VV53HQ (Re: Hommes Pty Ltd) 1. Whilst admissions were made in the s.191 Statement of Agreed Facts (Ex.1) as to the vehicle VV97HW being driven, having a GVM greater than 4.5 tonnes; and being a regulated heavy vehicle, no admission was made that Laudrup was responsible for controlling or directing the operations of such vehicle on the relevant alleged offence date being 15 March 2012. There was an admission as to control and direction regarding the said vehicle (Ex.1, [4.43]), but this related to the date of 13 March 2012, which did not correspond with the date of any charge before the Court. 2. Similarly, whilst admissions were made in Exhibit 1 as to the vehicle VV53HQ being driven on a number of other dates, having a GVM greater than 4.5 tonnes on a number of other dates, being a regulated heavy vehicle on a number of other dates, and Hommes being responsible for controlling or directing the operations of such vehicle on a number of other dates, no admission was made that Laudrup was responsible for controlling or directing the operations of such vehicle on the relevant alleged offence date being 21 December 2011. 3. The Prosecution contended, by its written submissions in reply, that, amongst other things, due to a typographical error in these dates, and based on the Defendants' concession throughout their cross-examination of Mr David Palfrey (RMS Investigator), the various corporate entities were operators of the various heavy vehicles. It was said that they were identified by registration number in an attachment (being a table listing such information) to an email from Mr John Willoughby (RMS Senior Projects Development Officer, Compliance Operations Branch) to Mr Palfrey dated 2 May 2012 (Statement of Mr David Palfrey (RMS Investigator))(Ex.2, [21]; Ex.4, Tab 9.2) and that it could be inferred that Laudrup and Hommes were the operators on the correct offence dates. While such inference might be sufficiently drawn to surmount the prima facie hurdle, such inference cannot, in my view, be drawn to the requisite criminal standard, beyond reasonable doubt, on the ultimate finding. The allegations on which the charges are based are date-specific and, being strict liability offences requiring strict proof of each element thereunder, there is insufficient evidence to establish the element of operator control and direction, beyond reasonable doubt, in relation to the principal offences brought against the relevant corporations on the specific dates to which the CANs refer. With the corresponding derivative directorial liability offences dependent on proof of guilt of the corporate operator under the principal offences, it follows that those too must fail. 4. In the circumstances, sequence 18 of 2012/168266; sequence 8 of 2012/174767; sequence 45 of 2012/173364; and sequence 6 of 2012/177268 should be dismissed. Issues for determination 1. There were two fundamental issues to be determined in these proceedings. 2. The first was the accuracy of the devices utilised by the RMS to detect the time, date, direction, speed, lane number, location and identity of the Defendants' heavy vehicles when each was said to be the subject of a speeding offence underpinning the CANs pursuant to which the charges were brought. 3. The second issue, in general terms, involved the reasonableness or otherwise, of the precautions or steps taken by the Defendants to prevent the commission of heavy vehicle speeding offences. 4. Throughout these reasons, I have used the phrases "reasonable precautions" and "reasonable steps" interchangeably for ease of reference. I am, though, cognisant of the fact that s.178(7) RT(G)Act refers to "reasonable precautions", whilst cl.156(6) RT(G)Reg refers to "reasonable steps". Neither party took issue with the differing phraseology in these provisions. Accuracy of device technology 1. A great deal of time was spent on the first issue in the examination and cross-examination of the Prosecution's witnesses (Mr David Palfrey (RMS Investigator), Mr John Willoughby (RMS Senior Projects Development Officer, Compliance Operations Branch), Mr Paul Hayes (RMS Manager, Compliance Systems, and Camera Specialist), Mr David Driscoll (Camera Specialist), Mr Gary Williams (Camera Specialist), Mr Jitesh Parekh (Camera Specialist) and, particularly, the expert evidence of Dr Jonathon Spring (Director of CEOS Pty Limited and developer of the TIRTL traffic detection technology)). 2. One of the elements of the offences brought contrary to cl.156(3) RT(G)Reg was that a driver committed a speeding offence, that is, an occurrence in which the Defendants' vehicle was driven in excess of the prevailing speed limit. 3. The Court was assisted greatly by the written submissions of Mr Higgins for the Prosecution, which helpfully summarised the complicated evidence in relation to the technological workings of the RMS's systems, outlined below. 4. The Prosecution adduced evidence in relation to the Point-to-Point ("P2P") cameras and Safe-T-Cam ("STC") cameras operated by the RMS within New South Wales: see Statement of Paul Hayes dated 23 February 2015 (Ex.13, p.2). Located together with these cameras were TIRTLs which play a role in classifying approaching vehicles into heavy and light categories. TIRTLs class vehicles by evaluating their axle count, wheel base and chord width so as to segregate and concentrate on recording only the data referable to heavy vehicles with a GVM of more than 4.5 tonnes, rather than light vehicles. 5. As a trigger mechanism, TIRTLs operate to activate the cameras to capture images. The evidence was that they are positioned approximately 35 metres in advance of an overhead camera gantry on a stretch of road and the systems are calibrated to ensure that an image is captured as the relevant heavy vehicle passes the image acquisition point. 6. The evidence elicited was that the TIRTLs possess a variable timing mechanism which adjusts for the speed of a detected vehicle to ensure that an image is captured as it should be (T12.11.2015, 9.45 - 10.05, Mr Hayes XXN). For every image captured, there is a corresponding vehicle sighting record associated with it and a corresponding time-stamped TIRTL record referable to the vehicle photographed (Ex.13, p.4). TIRTL data is retrieved via a device specific wireless virtual private network over a secure data retrieval network known as "TIRTLnet" every hour (Expert Report of Dr Jonathan Spring dated 27 February 2015, Ex.14, Annexure B, p.3; T12.11.2015, 24.45 - 25.05, Dr Spring XN). The data is stored in a data warehouse at the premises of CEOS Pty Limited ("CEOS"), the entity with which the RMS contracted for the requisite services (Ex.13, p.5; T12.11.2015, 24.30 - 24.45, Dr Spring XN). Dr Spring's evidence was that "the purpose of the TIRTL data is to provide certainty or a high degree of certainty of the sighting" (T12.11.2015, 60.3 - 60.4, Dr Spring XXN). 7. STC cameras capture a digital image once the TIRTL detects that a vehicle is a heavy vehicle, the image of which is appended with information regarding the time, date, location and lane number of the vehicle in question (Ex.13, p.3). Using Automatic Number Plate Recognition ("ANPR") software, a text based number corresponding to the registration number of the vehicle is derived. The image is stored temporarily by the device, but the underlying data is uploaded to an RMS server regularly and periodically. The network via which this data is retrieved is secure and subject to encryption (Ex.13, p.4). 8. P2P cameras are lane specific. When a heavy vehicle passes underneath a P2P gantry, an image is captured of the vehicle and graphically time-stamped. It is then stored along with data associated with the "sighting" (the time and date, together with ANPR software derived vehicle registration details) and new data is uploaded every 15 minutes to a central RMS server (Ex.13, p.3). The network via which this data is retrieved is secure and subject to encryption (Ex.13, p.4). When a heavy vehicle passes between two gantries (the relevant detection points for P2P offences), the number plate is recognised at each point and the vehicle's average speed is calculated by the time taken between the locations and an accurately surveyed distance between those locations (Ex.13, p.3). 9. The evidence of Mr Driscoll, Mr Williams and Mr Parekh (RMS camera specialists and certification officers), attended upon the issue of maintenance, calibration and the proper workings of such cameras at selected times. There was no dispute, to the extent that P2P cameras required certification every 30 days and that the cameras in question were operating correctly (T11.11.2015, 65ff). 10. One ought not overlook the importance of the time-stamping effected by these devices, which is fundamental to the accuracy of the identification and verification thereof and which underpins their reliability. The evidence was that the timing synchronisation of the devices is checked every 30 minutes and any necessary adjustments are made automatically at this time (Ex.13, p.4). Notwithstanding that any time drift between synchronisation events are generally in the range of microseconds to milliseconds, any failure to confirm synchronisation results in the data being automatically discarded (Ex.13, p.4; T12.11.2015, 10.05 - 10.35, Mr Hayes XXN). 11. It is then that a clear picture of events is created, so much so that the time-stamped photograph, the ANPR derived registration number and the time-stamped TIRTL record, are combined to ensure that an identification of a vehicle is accompanied by a high level of statistical confidence (Ex.14, Annexure B, p.3; T12.11.2015, 17.15 - 18.25, Mr Hayes XXN). The information with respect to time is used to draw on the relevant data from the RMS's P2P and STC databases, as well as from the TIRTLnet servers, and a matching exercise is undertaken in arriving at an identification of a particular vehicle and incident (Ex.13, p.6 - 7; T12.11.2015, 12.40 - 14.20, Mr Hayes XXN; T12.11.2015: 26.15 - 26.25, Dr Spring XN). 12. In undertaking the matching exercise, a distinction is drawn between "sightings" and "confirmed sightings". A confirmed sighting is one in which there is either an associated image or a vehicle has been manually checked at a heavy vehicle safety station, which provides an additional layer of reassurance when confirming that a vehicle has been correctly identified (T12.11.2015, 28.45 - 31.10, Dr Spring XN). 13. When there is a confirmed sighting, there is no need to engage in an uncertainty analysis which is otherwise required in those sightings which have not been confirmed (T12.11.2015, 54.35 - 54.50, Dr Spring XXN). 14. It was Dr Spring's evidence that (T12.11.2015, 30.10 - 30.20, Dr Spring XXN): "The confirmed sightings have either a manual measurement of the SP1, and a manual sighting of the numberplate. Therefore the correlation thereof, or an image taken and stored and available showing that numberplate and the associated TIRTL data and therefore the SP1. The SP1, the spacing between the first axle of a heavy vehicle and the second axle of a heavy vehicle, that first spacing is then associated with an image and data and a numberplate. That's the purpose of confirmed sightings. It's that that is the start of the chain whereby the first axle spacing information detected for the vehicles of interest for each of these CAN doc ID's can be confirmed within the statistical uncertainty, measured uncertainty, of the TIRTL. The plus [or] minus 1% of that first axle spacing." 1. The Prosecution impelled the Court to carefully consider the notion of uncertainty. t was contended that the variation in SP1 (the spacing between the first axle of a particular heavy vehicle and the second axle of that vehicle) for a given number plate is determined by taking the difference between the largest and smallest SP1 measurements captured by TIRTL, then dividing that difference by 2 and expressing it as a percentage of the mean SP1, determined by averaging the SP1 measurement for all sightings of that vehicle. This was referred to as the "+/-spread". This spread for heavy vehicles with the same number plate is less than 1%. An analysis is undertaken of the traffic which passes through the TIRTL in the 3.5 days before and after a sighting. The total number of vehicles which pass represents the "# veh" in that time, while the "# pos" represents the number of other vehicles whose SP1 value is within 1% of the SP1 sighting in the same period. When # pos is divided by # veh, the resulting figure, "% pos", represents the percentage of vehicles detected in the relevant 7 day period which potentially match the heavy vehicle of interest (Ex.14, Annexure B, pp.4 - 5). 2. The evidence of Dr Spring was that the TIRTL analysis involves cross-checking information across other sightings elsewhere in New South Wales to increase the level of certainty associated with an identification (T12.11.2015, 31 - 32, Dr Spring XN). 3. This mathematical process meant that while an individual sighting may have had, for example, a 2.5% chance of being incorrect, if there were other sightings with, for example, a % pos of 1% and 2%, then the overall probability that the TIRTL sighting was incorrect would be 2.5/100 x 1/100 x 2/100, or 0.0005%. 4. The upshot of this methodology was that the more sightings a TIRTL identifies, the less chance there was that it had incorrectly identified a vehicle through its measuring of SP1. 5. The science behind these concepts was borne out in detail by Dr Spring in his oral testimony (T12.11.2015, 33 - 38.20, Dr Spring XN) as was any potential uncertainty attributable to the ANPR software making an error in the identification of a vehicle's number plate (T12.11.2015, 58.15 - 60.30, Dr Spring XXN), and in respect of which any uncertainty was also to be multiplied into the probabilities relating to the uncertainty of a sighting to calculate the chance that there was an incorrect identification. 6. The evidence, in relation to the measuring of speed aided by TIRTLs, was that the measurements revealed an uncertainty of less than +/- 0.3%, a tolerance for which allowance was made as part of the approval of the TIRTL device by the National Measurement Institute ("NMI") and based, in part, on testing carried out by the National Association of Testing Authorities ("NATA") (Ex.14, Annexure B, p.1; T12.11.2015, 41.05 - 41.25, Dr Spring XN). 7. From a classification perspective, speed aside, Dr Spring also gave evidence that TIRTL was not in any way likely to inaccurately classify a heavy vehicle (T12.11.2015, 43.05 - 44.30, Dr Spring XN). 8. The culmination of this evidence was that, in respect of each of the speeding incidents the subject of the CANs, the likelihood of error was extremely low and of little consequence, given the checks and balances to which the Court was referred. The possibility of error in identification of the heavy vehicles the subject of these proceedings was a central theme in the Defence's theory on the case. Dr Spring, in explaining the methodology behind the use of the data for the purposes of identification, described it thus (T12.11.2015, 37.5 - 37.43, 38.8 - 38.16, Dr Spring XN): "DR SPRING: This is talking to your question. For the ANPR to be wrong and, hence the multiplication, the TIRTL sight information to have identified the wrong vehicle, one in 30, it's one in ten and or multiplied by one in 30, for both to have been in error and therefore that would have been an error or an uncertainty of one in 300. One chance in 300 that both the ANPR software was wrong and the TIRTL incorrectly identified using SP1. HIGGINS: Then what about the fact that on your spread sheet would there be - how many times is that - a vehicle with that configuration have gone through that site? DR SPRING: On my spreadsheet there are six sightings all of which have their associated percentage POS. HIS HONOUR: Sorry, where does it say six sightings? DR SPRING: There are six. There's court stamped scheduled 2, 3, 5, 6, 7 and 8. You have four on there. I don't have that on this it's been removed. Those six sightings and again the probability that I just spoke to of one in 300 is directly proportional to the percentage of possible matches. If there were fewer vehicles through a site that could potentially have been a match based on the SP1, that probability becomes more remote, smaller. In this case, the 3.6 is the largest percentage. For example, if you look at the third sighting being court stamped schedule 5, the percentage of possible match is 2.14% and in that case, which is approximately one in 50, multiplied by one in ten is one in 500 chance that both the ANPR operation and the TIRTL were in error or the uncertainty. You would multiply those six numbers together, ranging from one in 300 to one in 500, to get the overall probability that that vehicle sighting numberplate and associated TIRTL SP1 data were in error in each case because you must multiply, these are independent events. If it was, rather than one in 500, if it was just one in 100 just to make it easier again for us, one in ten to the power of six is one in ten to the 12. That's one in a trillion. One chance in a trillion that all six sightings, none of those sightings were correct with the numberplate and supporting SP1 data, which is a - it's a small number, one in a trillion. …. DR SPRING: Over six. They will each have their associated error rate and we could be more disciplined and it wouldn't take very long and you would then arrive at an error, a probability that each and every one of those six sightings being incorrect both for the ANPR and the TIRTL SP1. 've made it a little easier for the Court and I've simply and this is in favour of the defence as far as the probabilities are concerned, that if we say not one in 500 but one in 100 for all of them, that's one in ten to the two times one in ten to the two six times, therefore to the power of six, that's one in ten to the 12 and therefore one in a trillion. It's actually probably more like one in a hundred." [Emphasis added] 1. Whilst Dr Spring was unable to ascribe a mathematical value to the probability of error, when all the variables were considered in the relevant calculation, one was quickly able to glean, with much insight, the tenor of his evidence through this exchange (T12.11.2015, 32.35 - 32.44, Dr Spring XN): "DR SPRING: … These are quite large numbers so just to help understand what that means as far as seconds, there have been about ten to the 18 seconds since the creation of the universe. That's 13.7 billion years. HIGGINS: The probability that both the ANPR are wrong and the SP1 are wrong, where there are 20 sightings of that heavy vehicle at that site, would be more than there are seconds since the big bang? DR SPRING: Correct." 1. This lent credence to the conclusion contended for by the Prosecution that each of the specific heavy vehicles the subject of the CANs, having the relevant vehicle registration numbers, were, at the time and date of the sightings, at the relevant locations (T12.11.2015, 38.20 - 38.35, Dr Spring XN). 2. On the issue of provenance relevant to the evidence adduced in support of the instant charges, in April 2012, sighting data was downloaded from the RMS's P2P camera and STC databases by Mr Willoughby, the parameters for which were limited by heavy vehicle registration numbers and by a given date range (T11.11.2015, 2 - 3, Mr Willoughby XN). This data, upon being downloaded, took the form of separate CSV files (which I understood to be table structured spread sheets) (T11.11.2015, 3.10 - 3.15, Mr Willoughby XN). 3. The relevant files were, in turn, forwarded to CEOS on 27 April 2012, at which time CEOS appended further data in relation to that downloaded from the P2P and STC databases (T11.11.2015, 4.45 - 5.20, Mr Willoughby XN). On 27 April 2012, Dr Spring of CEOS received email correspondence from Mr Willoughby and tasked a Mr Kristian Penno (CEOS Senior Engineer) with correlating the sighting data from Mr Willoughby's emails with associated TIRTL sighting data (T12.11.2015, 25.20 - 26.05, Dr Spring XN). This had the effect of marrying the information from the camera sightings with the information in the TIRTLnet data warehouse, which information had been uploaded to that location from the physical TIRTL units and involved a process by which the data was located in the TIRTLnet data warehouse by a database query which matched the relevant camera site for the date in question and limiting it to a set range of times before and after the P2P or STC camera sighting (T12.11.2015, 26.15 - 26.25, Dr Spring XN). There was then a matching of information from the RMS with the TIRTL information and appending the TIRTL information into a spreadsheet from the RMS (T12.11.2015, 57.15 - 57.20, Dr Spring XXN), which generated an updated file and which, in turn, was emailed to the RMS. 4. Upon receipt by Mr Willoughby of the emails attaching CSV files (T11.11.2015, 10.30 - 10.35, Mr Willoughby XN) containing data from TIRTL, recording the speed of the relevant vehicles, Mr Willoughby edited the files to remove non-essential fields and copied the same into various additional forms, sorted by fields which Mr Willoughby considered relevant, particularly by reference to vehicle registration (Ex.3 - 10; T11.11.2015, 6 - 16.45, 17 - 23.45, Mr Willoughby XN). 5. These files were then forwarded by Mr Willoughby to Mr Steve Shepard (RMS investigative branch) on 2 May 2012 (T11.11.2015, 17, Mr Willoughby XN), which Mr Shepard onforwarded to Mr Palfrey, forming the basis for the decision to prosecute the matters the subject of these proceedings. 6. The Defence contended, in part, that the Prosecution evidence was flawed from a provenance perspective. It was submitted that in the absence of any evidence from one of the links in the documentary chain (Mr Penno (CEOS Senior Engineer)), the evidence given by Dr Spring as to the processes Mr Penno "would have engaged in" as part of the "human process" involved in correlating the sighting data, should not be accepted and that the charges referable to the P2P offences should be dismissed. The fact that there are human processes involved in cross-checking all of the information received from the various devices to ensure that data used is validated in multiple ways (T12.11.2015, 13.26 - 13.28, Mr Hayes XXN), reinforces, in my view, rather than infects, the veracity of the evidence adduced to found the Prosecution's conclusion that there is no doubt that the speeding offences occurred at the times and dates alleged. The use of only "confirmed sightings" data in the prosecution of offences as against the multiple Defendants instils even greater confidence on the question of identification of the particular vehicles the subject of the prosecutions. 7. This submission does not carry weight when assessed against the backdrop of the concessions made by the Defence throughout the hearing. First, Dr Martin for the Defendants conceded that a prima facie case was established in respect of all of the charges (T12.11.2015, 22.45 - 23.05). Secondly, it was conceded that the provenance of the data was no longer in issue during the hearing (T12.11.15, 26.45 - 27.15). The approach adopted at the hearing by the Defence is elucidated by the following exchange (T12.11.2015, 28 - 29): "HIS HONOUR: Just on that point, Mr Martin. This is the point in respect of which you concede you take no issue. You're not calling for Kristian Penno to be available to for cross-examination, are you? MARTIN: That last piece of information was the final step— HIGGINS: This is the basis for annexure D. HIS HONOUR: You don't take issue with any of that, do you? MARTIN: No I don't take issue with any of that. I don't require that Kristian Penno be called. HIS HONOUR: I just want to hone in on that. The defence takes no issue with [provenance] any longer if it did earlier in these proceedings? MARTIN: In relation to the COS started? HIS HONOUR: Yes. MARTIN: There's no issue of [provenance] of the data. That has finally explained it. HIS HONOUR: That should curtail your questioning then? MARTIN: It will. It doesn't mean I have no questions. HIS HONOUR: No, I mean that will curtail Mr Higgins' questions in relation to what he needs to prove as part of the prosecuting authority's case. MARTIN: Yes I hope so." [Emphasis added] 1. The non-attendance of Mr Penno cannot, therefore, be visited upon the Prosecution as a failure in its case. 2. It was also noted that the Defendants' written submissions made no reference, on the issues of identification of vehicles and speed, to the report prepared by their expert, Mr Philip Dunn (Automotive and Mechanical Engineer, Expert Report dated 9 November 2015, Ex.15). The report concluded that "the fact that this device has produced results for SP1 that span 77mm (for allegedly the same vehicle) for SP1 show that the methodology used is not sound" (Ex.15, p.9). The diagram on page 10 incorrectly characterises the distance between the centre of the front axle and the centre of the gap between the next two axles as the "wheel base" of the heavy vehicle, when in actual fact the wheel base is the distance between centre of the front axle and the centre of the next axle, or the centre of one axle and the centre of the next axle in series, in multi-axle vehicles (SP1, SP2, SP3 and so forth). The conclusion, therefore, that "the [TIRTL] measuring device or the methodology does not have sufficient accuracy to measure these dimensions in this situation" (Ex.15, p.11) is one which I reject. In any event, such a claim was never posited by the Prosecution's expert. As Dr Spring put it in evidence-in-chief (T12.11.15, 47.44 - 48.19): "HIGGINS: You've just read the first three paragraphs of page 11. What flows from that? DR SPRING: There is no attempt and there are no statements as such to use the TIRTL to uniquely identify a vehicle from its axle spacing alone that there is no statement that the TIRTL can measure to within an accuracy that could uniquely identify a vehicle based solely on its first axle spacing. Rather all of the language used in annexure B talks to the percentage probability or possibility that a vehicle could be, it could have been that vehicle. Could have been that vehicle. They're the effective words because its axle spacing is within the measurement uncertainty being plus or minus 1% so the fact that TIRTL is not a micro meter or a device that can measure down to millimetre accuracies is irrelevant. The probabilities are not based on that. Probabilities are solely based on the number of vehicles having gone through a site, hash vehicle, the number of those vehicles that could have been a possible match, hash POS and the percentage of possible matches being simply one divided by the other. The smaller that percentage POS the less likely that the uncertainty and TIRTL and the ANPR operation could have had an error. It's far less likely if the percentage of possible matches is small as is the case in all these where you've got a range of .1 to let's say 3 or 4%. There is no claim anywhere that TIRTL measures to the millimetre accuracy and that's not required for these probabilities. The following two paragraphs that talk to the situation where a device could possibly measure SP1 and SP2 with a high degree of accuracy and that that in itself wouldn't be sufficient. That's correct and it hasn't been claimed. It hasn't been used in that way in this expert statement of mine." [Emphasis added] 1. Whilst Mr Dunn's report usefully attends upon the issue of speed limiters and electronic computer management systems (matters dealt with as part of the reasonable steps defence, considered later in these reasons), the report was predicated on an ill-conceived methodology of the workings of the TIRTL technology. 2. To a large extent, the Defence's attempted impugnment of the Prosecution's witnesses did not affect the resounding force of their testimony on the critical issue of speed detection and vehicle identity. The evidence of Mr Palfrey, Mr Willoughby, Mr Hayes, Mr Driscoll, Mr Williams and Mr Parekh as to the communications between the various RMS officers, and the management systems in place for the receipt, logging, transmission and storing of data (and the provenance of the evidence adduced in support) collected via the use of ANPR software and devices such as TIRTLs, P2P cameras and STC cameras, was comprehensive and persuasive. When combined with the evidence of Dr Spring, which I found to be resolute, compelling, scientifically and mathematically reliable, and largely incontrovertible, I was not left with any doubt as to the veracity of the documentary evidence identifying the Defendants' vehicles as having been the subject of the relevant speeding offences at the times, dates and locations averred. 3. For these reasons, I am satisfied that the Prosecution has proved, beyond reasonable doubt, the said speeding offences. Joining issue with the legislative phraseology, I am satisfied, subject to the reasonable steps defence dealt with below, that the Prosecution has proved, beyond reasonable doubt, that in relation to the charges preferred pursuant to: 1. cl.156(3) RT(G)Reg (duty of operators to ensure speeding offences are not committed) – the vehicles in question were subject to the Defendants' control as operators; the respective drivers committed speeding offences while driving the said vehicles; and, therefore, the Defendants, as operators, committed the said speeding offences; 2. s.178(1) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees) – the respective Defendant bodies corporate committed offences under the road transport legislation and each director of the Defendant bodies corporate, and those persons concerned in the management of the respective bodies corporate, committed the said offences. 1. In relation to the four charges preferred pursuant to s.69C(1) RT(S&TM)Act (vehicles to be speed limiter compliant), I accept the pleas of guilty entered by Roadmaster, as operator, midway through the hearing. Reasonable Steps Defence 1. In relation to the charges preferred pursuant to cl.156(3) RT(G)Reg (duty of operators to ensure speeding offences are not committed), the Defendants invoked the statutory defence in cl.156(6), that is, that: - (i) the Defendants did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence; and (ii) the Defendants took all reasonable steps to prevent that conduct from occurring, or (iii) there were no steps that the Defendants could reasonably have been expected to have taken to prevent that conduct from occurring. 1. In relation to the charges preferred pursuant to s.178(1) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees), the Defendants invoked the statutory defence in s.178(7), that is, that: - (a) the Defendants were not in a position to influence the conduct of the body corporate in relation to the actual offence, or (b) the Defendants, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. Defence case 1. The Defence advanced its reasonable steps defence via three witnesses (Mr Philip Dunn (Expert, Automotive and Mechanical Engineer), Ms Jenine Turner (Heavy Vehicle Auditor / Consultant) and Mr Danny Borg (Director / Managing Director of Fred's Interstate Transport Group)). Mr Philip Dunn (Expert, Automotive and Mechanical Engineer) 1. Mr Dunn's expert report dated 9 November 2015 was admitted into evidence as Exhibit 15. It addressed two issues, namely, the limitations and difficulties with the information provided to companies and directors about the operation of speed limiters and electronic computer management ("ECM"), and the accuracy of the TIRTL technology. Having dealt with the latter issue earlier in these Reasons, it is only the former on which the reasonable steps defence turns. To that end, Mr Dunn's report dealt with the limitations of speed limiters; managing the integrity of speed limiting systems; their failures; ECM programming; the RMS's "three strikes and you're out" campaign; the fact that management had no direct control over speeding drivers; the fact that management provided driver manuals to all drivers; and the work order history for heavy vehicles VV55HN and VV15JV. 2. The evidence adduced via Mr Dunn's report was that: - 1. Speed limiters were devices used to limit a heavy vehicle's speed to 100 km/h; 2. The system operates by electronic means to reduce or cease fuel supply to the engine when a speed of 100 km/h is reached; 3. There are outside factors such as downhill travel which are unable to be controlled by the ECM, resulting in speeds greater than the set speed; 4. The ECM is programmed by the manufacturer and can only be accessed by approved dealers for the purpose of servicing; 5. Access to the ECM for programming purposes or data download is provided by a programming tool which is likely to be expensive and not readily available; 6. There are products available in the market designed to bypass (by reprograming or resetting) the limited speed, which cost as little as a few dollars or as much as several thousands of dollars, depending on the sophistication desired; 7. The device can be switchable so that the driver who knows about it operates in such a way as to turn it on and off when desired, and can be secreted in locations where it would go unnoticed by servicing personnel; 8. Normal irregularities in the speed limiting systems are easily managed whereby dashboard lights indicating a fault in the system can be rectified by a fault code diagnostic tool; 9. The ECM function also detects faults caused by someone intending to tamper with the speed limiting system; 10. When the ECM system has been tampered with and settings changed, this can only be detected by driving and observing that the vehicle can exceed the speed limit or by downloading the programmed settings using a coding device; 11. Controllers and management rely on drivers to escalate issues with a particular vehicle; 12. The regulator's "3-strikes" campaign involved giving notice to operators and managers that a speeding event had occurred and that further notices would result in a suspension of registration. This was effective in ensuring that management acted in a timely manner. However, the campaign was "short lived and ceased without notice"; 13. If a driver tampered with a speed limiter device, resulting in the receipt of speeding fines, he / she would be unlikely to report such offences to management for fear of penalties or loss of employment, given the company policies expressly emphasised in driver training; 14. Management had no direct control over speeding drivers but could provide training on good driving practices and company policies, insist on drivers completing correct records to comply with legislation and company policies, request that drivers report speeding offences committed by them, request service staff to report incidents of speed limit tampering, request servicing companies and dealerships to download and check ECM speed limiter settings and penalise or suspend speeding drivers; 15. The provision of driver manuals to all drivers was instrumental in alerting drivers to supervisor and manager responsibilities regarding training, vehicle inspections, speed limiters, regulatory requirements, behaviour, pre-trip checks being completed and signed, fault reporting and necessary repairs, driving practices forbidding speeding and downhill coasting, drivers being forbidden from installing any equipment to their vehicle, detailed explanation and training regarding speed limiter regulations and the operation of vehicle equipment, out of gear operation, traffic rules and regulations, work diary records and documentation in general; 16. The work order history and invoices for checks and repairs to the speed limiter for vehicle VV55HN revealed that the speed limiter device was checked or repaired on five occasions between 2010 and 2012. This involved invoice notations to the effect that computer recalibration was required on 23 June 2010, a speed sensor was required on 12 July 2010, the speed limiter was set too high on 23 September 2011, there was no sensor signal on 3 May 2012, and the speed limiter was set too high on 17 October 2012; 17. An example of management's proactivity with regards to speed limiter operation and the detection of any tampering was evidenced by an email from Mr Danny Borg (Managing Director) to Mr Steve McPherson (Heavy Vehicle Dealer / Repairer) dated 27 March 2012 and which provided a direction to the effect that "any vehicle that comes into your workshop for maintenance needs to have its ECM checked to ensure that the right parameters are set and download printed for fuel consumption and fault codes"; and 18. Another example of management's proactivity with regards to speed limiter operation and the detection of any tampering was evidenced by an email from Mr Danny Borg (Managing Director) to Mr Terry Smith (Cummins Heavy Vehicle Dealer / Repairer) dated 27 March 2012 and which sought a clarification to the effect that "are we able to set our ECMs with the anti tamper code and if so are there any issues in doing this i.e. after hours access for maintenance repairs, please advise A.S.A.P." 1. Mr Dunn's oral evidence dealt with a number of issues, including the technical aspects of ECM systems and speed limiter devices, which for present purposes require no further elaboration. The salient features of his oral evidence were that: 1. He had driven heavy vehicles of this kind throughout his career and was still the holder of a heavy vehicle driver's licence; 2. If a heavy vehicle had a speed limiter device set at 100 km/h, it could still exceed such speed in a number of ways, including on a downhill grade, by selecting a neutral gear, by throwing the clutch on a manual transmission or by a tail wind; 3. As the ECM came with an anti-tamper code, it was not possible to set an anti-tamper code because access at certain levels was unavailable for most operators; 4. There were modes of tampering which were undetectable or not easily detectable; 5. There were a number of explanations proffered for how a heavy vehicle with a speed limiter could exceed the set limit. First, that was no basis for a reasonable belief, that is, of a deliberate overriding of a speed limiter device. Secondly, driver behaviour (riding the clutch, putting it into neutral and the like so that the speed limiter is deliberately neutralised). Thirdly, the heavy vehicle is fitted with an override device. Fourthly, it can be disabled either by reason of tampering, such as a disconnection of the speed sensor or tampering with the wiring in an undetectable way. Fifthly, outside factors such as the gradient of the road. Sixthly, a mechanical fault with the speed limiter device not properly operating to reduce speed or to not cut fuel delivery; 6. In his review of all the material provided, he was unable to find any evidence to support the assertion that a commercially produced bypassing device had been fitted to any of heavy vehicles; 7. Driver behaviour (as to speeding) was dependent upon either self-reporting, the issuing of penalty infringements, or notices / warnings from regulators; 8. Although his evidence was in the nature of expert evidence, he proffered, in response to questions asked in cross-examination, an account of the steps he would have taken as vehicle business manager. These included requesting that the repairer calibrate every vehicle's speed limiter devices; identifying drivers; interviewing drivers; retraining drivers; counselling drivers; warning drivers; diarising, logging and reporting irregularities; recording minutes of interviews with drivers to be placed on their files; conducting investigations; attempting to ascertain whether maintenance staff were responsible for installing a bypassing device; issuing "a reprimand or a suitable penalty provided to do something about it" (T17.11.2015, 55.46 - 55.47, Mr Dunn XXN); terminating the employment of drivers; or "whatever needed to be effected to make that disappear" (T17.11.2015, 54.6 - 54.7, Mr Dunn XXN); and 9. He accepted that reasonable steps to prevent conduct from occurring, of the kind to which the legislation was directed, included ensuring that speed limiter devices were operational, serviced, maintained, not bypassed, monitored, audited and checked for functioning; driver behaviour be the subject of induction (that is, drivers be taught what not to do to override speed limiter devices); there be a process of induction and evidence of that process retained; there be training of drivers beyond the induction process specific to how to drive in a way that does not override the speed limiter device and evidence of that training retained; this was one of the ways in which the integrity of one's systems could be scrutinised; there be a process of correction of a driver; there be evidence of such process of correction; counselling; retraining; and more frequent and closer driver training and monitoring. Ms Jenine Turner (Heavy Vehicle Auditor / Consultant) 1. Ms Turner was called to give evidence about the Defendants' practices and procedures, having previously been engaged as a consultant with experience in heavy vehicle auditing, consulting and training. She was the owner and operator of a business known as Just Logistics Pty Limited, with qualifications in engineering, occupational health and safety, fatigue management and with extensive experience in heavy vehicle regulatory compliance regimes. She also held accreditations in the National Heavy Vehicle Accreditation Scheme, mass management, maintenance and fatigue auditing, and had been a registered heavy vehicle auditor since 2000, practising primarily in southern New South Wales and Victoria. 2. The salient features of her evidence-in-chief were as follows: 1. She was engaged by the Defendants as a heavy vehicle auditor and consultant from about 2004 to October 2011, and again from April 2014, whereby she would attend their premises for two days a month and in her absence she would also provide services via email and telephone; 2. Her role included, amongst other things, advising generally on compliance systems and mass programs; documenting and recording the operation of those systems; internal auditing of policies and procedures; reviewing contracts in regard to compliance; and representing the company with consignor audits; 3. She was an independent auditor and did not socialise with the Defendants or their related companies; 4. She was no longer, at the time of the proceedings, engaged by the Defendants but was requested in July 2015 to collate the necessary documents regarding their business practices for use in the hearing, which resulted in the production of some eight volumes of company records; 5. Ms Turner was instrumental in the creation and maintenance of many of the Defendants' company policies, procedures and training programs across a range of areas pertaining to heavy vehicle management, speed related and otherwise. Whilst documents bearing dates after the relevant periods the subject of these proceedings were used to prompt the witness' memory, almost all of the policies and procedures had been in place during the relevant period but merely updated since then to accord with changes in legislation. I came to the view that so comprehensive were the policies established, and therefore indicative of the Defendants' pursuit of regulatory compliance and best business practices, such that they dealt with chain of responsibility correspondence between consignors and consignees; occupational health and safety policies, consultation, inspection and responsibilities; first aid; electrical safety; equal opportunity, harassment and discrimination; falls prevention; training; risk registration; reportable incidents; environment and sustainability; recording, reporting and repairs of faults; heavy vehicle driver fatigue; driver medical assessments; driver fitness to work; bribery, corruption and fraud; accident investigation; employment of a new driver; driver competency assessment; training questionnaires; chain of responsibility and speed training; load resistant training; heavy vehicle mass training; health and safety training; and driver induction training; 6. The then version of the Driver Manual, drafted in 2010 and provided to all drivers in 2011, included portions relevant specifically to speeding (Ex.22) and was acknowledged by signing the declaration at the end (p.63); 7. An example of the implementation of the Defendants' policies and procedures, including with regards to speed, the drivers underwent training partly via the provision of the Driver Manual (Ex.22) and partly via an induction process involving a PowerPoint presentation (Ex.24) specifically tailored to meet the needs of heavy vehicle drivers with literacy problems; 8. There were Excel spreadsheets which summarised and recorded the training provided to all drivers; 9. There were warning and disciplinary systems in place; 10. For years since 2008, and possibly 2006, there were procedures in place to alert and remind drivers of their obligations in a constantly changing national environment via driver newsletters; 11. All of the newsletters contained a reminder to drivers that the "absolute speed limit is 100 km/h" (including one regarding the 40 km/h speed limit "on the South Eastern Freeway into Adelaide, down the steep hills" so as to "keep them abreast of cross border issues") and that one of the most effective ways to "grab their attention" was with information about "what people had and what companies have been fined and how much" by newsletters included with "each pay record for each driver as we post their pay sheet out" (T18.11.2015, 27.33, 28.42, 29.12, 29.7, Ms Turner XN); 12. Route risk assessments, trip plans and safety analyses were regularly carried out before accepting work so as to ensure that jobs "could be completed within legal limits". This included compliance with "speeding and work and rest legislation" (T18.11.2015, 31.6, 32.33, Ms Turner XN); 13. As another example of regulatory compliance, the 2011 Kubota Job Safety Analysis and Route Assessments Plan (Ex.21) outlined a number of elimination, hazard and control measures the Defendants had in place and in which numerous references are made to speed, unsafe driver behaviour and the installation and maintenance of speed limiting devices; 14. Regular checks of speed limiters were not necessarily effective to prevent speeding. She had become aware through training sessions elsewhere that there were some 360 methods of circumventing speed limiter devices; 15. On one occasion, there had been a driver in the Defendants' employ who had been caught speeding, interviewed and issued with a second warning. The employee's heavy vehicle was sent to Hartwigs (a heavy vehicle repairer) where it was discovered that the speed limiting device had been tampered with, requiring the device to be reset. Approximately two and a half hours later, the employee was discovered by VicRoads to be speeding again. The employee refused to cooperate with VicRoads and the Defendants by locking himself and hiding inside the heavy vehicle, prompting police intervention. The Defendants dismissed the employee, only to become Defendants in an action commenced by the employee at Fair Work Australia; 16. In relation to a number of drivers whose current licence and training details were missing, there was a process of reviews conducted of documentation and driver obligations, which included contacting drivers to obtain copies of such documents (as the company was unable to obtain such information from transport departments), scheduling meetings, bringing drivers in for training and employing a young graduate to assist with training; 17. The documentary policies and procedures referable to drivers were "chain of responsibility" based, which covered mass, dimension, load restraint, fatigue and speed. The audits conducted also involved an assessment of best practices which included heavy vehicle maintenance, whether or not there were drug and alcohol policies in place and whether internal audits were conducted; 18. As an example of knowledge of conduct that constituted an offence and subsequent action taken, albeit reactive in nature, one of the Defendants (Laudrup) wrote to the RMS on 18 February 2011 (Ex.28) indicating that it had had the speed limiter checked and set back to manufacturer's standards, engaged in verbal intervention with one driver and the termination of his employment and a formal written warning in relation to another driver; 19. On the issue of maintenance of speed limiters and the Defendants' work order service history, the means by which the Defendants could become aware of speeding by drivers were reports from enforcement personnel; complaints from the public; calculating distance over time (following the introduction of work diaries in late 2008); and, with great difficulty, via the repairer finding signs of tampering. An example of a complaint from a member of the public regarding a driver's speed / dangerous driving took the form of an email to the Defendants dated 21 April 2010 (Ex.29). This was actioned via an email by Mr Borg to Ms Turner less than 40 minutes later directing the issue of an immediate written warning along with an explanation as to the driver's behaviour; 20. On one occasion by email from Ms Turner to the Defendants dated 11 April 2011 (Ex.30), she recommended a complaint against a police officer whereby three heavy vehicles were defected for supposedly being set at 103 km/h but, upon being checked by Hartwigs in Shepparton and the manufacturers in Melbourne, were found to be set at 100 km/h; 21. She was instrumental in drafting Critical Incident Management Guidelines (Ex.32), which, although not directly speed related, were, in my view, indicative of the Defendants' commitment to compliance with safety regimes; 22. She was instrumental in drafting a Job Safety Analysis, specifically relating to speed, and on which the design of the Driver Manual was based. The Job Safety Analysis contained a number of controls, including, consulting with employees and subcontractors, for the development of a "Safe Driving Policy" that defines business-related driver behaviour; ensuring that work schedules discourage speeding and unsafe driver behaviour; issuing reminders in newsletters regarding allowable speeds; providing induction training on speed; and the maintenance of speed limiting devices, all of which were incorporated in driver induction procedures and which were conducted in 2007 and in place (and expanded upon) in 2011; 23. In the Logical Safety Solutions (LSS) Chain of Responsibility Management Assessment (Ex.35) conducted on a self-assessment basis on 27 November 2008 and by an external auditor on 3 March 2009, Ms Turner assessed the Defendants' performance regarding speed management at 80%. The external auditor, LSS, appointed by the consignor, assessed the Defendants' performance regarding speed management at 97.27%; 24. The reason why some audit documents, policies and procedures made little or no specific reference to speed in some cases was because speed was not a component of the chain of responsibility legislation until 2009; 25. She was instrumental in creating a spreadsheet (Ex.36) regarding the form and procedure for record keeping systems in place in 2011 and so as to provide auditable records which were updated and reviewed since that time. Although the component of the spreadsheet dealing with chain of responsibility speed induction was not introduced until 2014, this document served to provide details, amongst other things, as to an employee's name, date of birth, commencement date, driver's licence number, expiry date, class, employment application form, driver declaration, mass training dates, induction completion, load restraint induction completion, toolbox talks and receipt of newsletters; 26. There was a system in place prior to 2011 for recording the activities referred in the preceding sub-paragraph; 27. She did not have cause to look at (in 2011 or at the time of these proceedings) the National Heavy Vehicle Inspection Manual concerning speed tampering as the National Heavy Vehicle Regulator was not in existence in 2011. She did, however, search the internet for information or a checklist to provide to workshop staff in a toolbox format on what to look for in relation to speed limiter tampering. She was unable to identify any information of this kind. Indeed, having downloaded the National Heavy Vehicle Regulator's Inspection Manual, she was unable to find any information which provided guidance on what to look for; 28. Due to her dissatisfaction with the Defendants' record keeping regarding the maintenance and servicing of trailers, an argument ensued and she terminated her contract; and 29. During the time of her engagement throughout 2011, the Defendants had a plethora of systems in place. She stated that there were company policy statements as to their business practices; heavy vehicles were fitted with speed limiter devices; as far as she was aware the workshop checked for tampering of speed limiter devices; all trips of which she was aware, were accompanied by trip plans; there was a company procedure available when delivery time schedules could not be met; the persons responsible for scheduling were operations managers; there was not a procedure for training of operations managers with which she was satisfied; she pressed for changes; operations managers were required to follow trip plans; there were procedures for training of loaders / drivers; there were procedures for informing consignees and consignors of obligations in the chain of responsibility; all drivers had manuals setting out company policies and procedures; there was a means of evidencing implementation of such procedures; there was a means for providing evidence of preventative implementation of policies and procedures; there were toolbox meetings conducted, although she felt they should be somewhat more regular; there were courses for drivers in relation to speed compliance; there was a procedure for evidencing adherence to trip plans; there were instances of drivers reporting infringements received; there was a procedure for evidencing their reporting of infringements; there were internal and external auditing processes in place; the external auditing related to consignors and one consignee, Visy; there were internal audits conducted by her as a compliance and OHS officer; management of the company reviewed audits carried out by her and external auditors; whilst drivers reported faults on occasion, she was unable to say whether in 2011 any speed limiter device faults were reported; where information was received about a vehicle speeding, this resulted in the speed limiter device being checked by Hartwigs or another manufacturer; the Defendants retained documents reporting incidents where they had been informed by police, RMS, the driver or others of a vehicle exceeding a speed limit; the 15 warning letters (Ex.25) sent by the Defendants to various employed drivers in 2011 were indicative of the warnings and investigations into breaches of speed; Driver Manuals were updated over time; meetings were held between consignors and consignees; and, in the one meeting she did attend, minutes were kept; the Defendants engaged subcontractor entities and tow hauliers in 2011 but she was unable to recall whether their drivers were required to undergo an induction procedure; she devised a form of questionnaire for tow hauliers; and the drivers of the smaller tow haulier subcontractors underwent the driver training program, whereas the larger entities did not. 1. In cross-examination, Ms Turner was predominantly questioned in relation to the indicia proffered by the Defence as being "reasonable steps". The Prosecution's attempted impugnment of her evidence (and the Defence case in general) was directed to the following areas: 1. The Defendants' use of a driver training and induction process; 2. The Defendants' use of driver work diaries; 3. The Defendants' use of corrective or disciplinary action; 4. The Defendants' use of the Driver Manual 2010; 5. The Defendants' use of trip plans; 6. The Defendants' use of route assessments; 7. The Defendants' use of a job safety analysis document; 8. External audits and their role in ensuring speed compliance; 9. The Defendants' use of newsletters for drivers; and 10. The Defendants' use of speed limiting devices. 1. The salient features of her evidence in cross-examination were as follows: 1. As to the driver training and induction process, first, there were policies and procedures in place; secondly, there were procedures for evidencing the implementation of the policies and procedures; and thirdly, she did not believe that the evidence of the implementation of the policies and procedures were to a satisfactory state in reference to the many drivers' employment procedures. One example provided was that only 10 out of 51 driver files contained evidence of licence history printouts. As to the training records evidencing the PowerPoint presentation provided to drivers in induction training, there were numerous references dealing with speed in the terms and conditions of employment section; the tampering with equipment (speed limiter devices) section; the dismissal for driving at excessive speed section; and the last slide regarding the absolute speed limit being 100 km/h. Further, the declaration at the end of the Driver Manual was a procedure to evidence the driver's understanding and without the use of "big words" (T19.11.2015, 55.16, Ms Turner XXN). Whilst the form may not have made provision for the witness declaring that he or she explained certain matters to the driver, as was put to her by the Prosecution, she asserted that "the absolute evidence is here, that the gentleman witness here has signed that he's gone through it with them and that the driver himself has signed both pages of that declaration as having understood it." (T19.11.2015, 52.21 - 52.23, Ms Turner XXN). I took the view that the Prosecution's question "Where is the evidence that he understood?" (T19.11.2015, 53.33 - 53.37, Ms Turner XXN) was an unfair criticism of both the Defendants' procedures in this regard and its attempt to rely on same as a reasonable step. In relation to some of the driver records she conceded that they did not include a declaration that covered the period of the offences, the consequence being that they did not evidence the implementation of that part of the procedure; 2. As to driver work diaries, they served both as a statutory obligation for heavy vehicles (cl.64 RT(G)Reg, dealing with driving times and fatigue management) but also a secondary function, namely, speed compliance, by way of monitoring drivers who arrived at sites too early (T19.11.2015, 73.16 - 73.20, Ms Turner XXN). She conceded that some driver files did not include any training or induction schedule of the kind which appeared in other driver files and, therefore, this was a deficiency in evidencing the implementation of the driver training policies and procedures. Whilst fining a driver might have been a strategy for enforcement but not for management, her response to the question "in 2008 where is the evidence of the implementation of the policy for monitoring [Mr Lincoln's (an employed driver)] speed compliance?" was, tellingly, "The only evidence I would see is that he wasn't fined again that year" (T19.11.2015, 74.24 - 74.27, Ms Turner XXN). The Prosecution contended that in relation to five drivers, the subject of some of the 150 offences before the Court, that there was no evidence that their work diaries were used to identify speeding incidents, nor was there evidence that their work diaries were used to monitor their speed compliance following prior speed incidents. Although she would have expected a non-conformance form or letter to have been generated when there was an incident of speeding, it was not possible to identify from a work diary (alone) that speeding had occurred but there was a "concern there" (T20.11.2015, 16.36, Ms Turner XXN). Despite not producing records for the period January 2011 to April 2012, which suggested that work diaries were used to identify incidents of speeding, she did say that all work diaries were checked for breaches of fatigue legislation and that, additionally, random examinations of work diaries were conducted by her when she attended, and that some of those were in the files produced (T20.11.2015, 16.11 - 16.20, Ms Turner XXN). In response to the question of whether she said to management that she wished to use the work diaries (Ex.26) as a reasonable step to monitor speed compliance, she responded "No, I just do it". Indeed, upon further clarification, she confirmed that for the nine months and six days she was engaged in 2011, and again when she was re-engaged in 2014, the work diaries were being used as a means of evidencing whether there was speeding (T20.11.2015, 4.14, 4.28, 13.46 - 13.49, Ms Turner XXN). She agreed that when a driver's file indicated incidents of speeding, the operator would be more vigilant in checking systems and speed compliance relating to him, including his work diary, although one could not discern from looking at a work diary whether it contained a false recording or was evidence of speed; 3. As to corrective or disciplinary action, she conceded that in relation to some of the drivers, the subject of some of the 150 offences before the Court, there was no evidence documenting the remedial action taken once management became aware of the incident of speed. However, in some cases, there was remedial action in the form of either official warning letters provided or even a dismissal. She conceded that she did not know whether toolbox meetings in relation to speed, which were frequent in 2014, were occurring during the relevant period in 2011 / 2012; 4. As to the Driver Manual 2010, many of the questions asked of Ms Turner under this heading related to Global Positioning System (GPS) technology and the fact that the Driver Manual made reference to the fact that each truck may be fitted with an onboard computer which will be monitored by management on a regular basis. Her evidence was that "onboard computer" did not refer to a GPS device but that it was something that might be introduced in 10, 20 or 30 years. She did not know, nor was it put to her as compulsory, whether the legislation contemplated GPS technology as a reasonable step for monitoring speed. Much of Ms Turner's evidence in cross-examination, regarding the use of the Driver Manual (and the accompanying PowerPoint presentation), was dealt with in the questioning relating to driver training and induction processes above; 5. As to the use of trip plans, notwithstanding the fact there was no evidence in the driver files that trip plans were used to identify a particular speeding incident, her evidence was that their objective took on a number of different purposes, including fatigue management, work, rest, speed and whether there were roadside facilities for drivers; 6. As to route assessments, notwithstanding the fact there was no evidence in the driver files that route assessments were used to identify a particular speeding incident, her evidence was that their objective was multi-faceted, involving informing consignors of planning, pick up and unloading times; driving routes; the time necessary to undertake a journey; and to make allowances for time and other vicissitudes so that drivers did not have to rush, removing the commercial imperative that contributes to speed; 7. As to the use of the job safety analysis document (Ex.33) not providing any evidence as to identify a particular speeding incident, her evidence was that it was not the role of the job safety analysis to do so on its own. The role of the job safety analysis was to try and identify what the risk was and how it could be eliminated or controlled using the hierarchy of control for a job safety analysis. It made it possible to document procedures on the basis that it listed control measures and was not, rather, a control measure on its own. She did not know, though, whether an actual document called a Safe Driving Policy was created. However, she did not agree that there was no evidence of management addressing how control of consulting with drivers failed on any of the 150 offence occasions. A safe driving policy, she said, was everything that was incorporated in the Driver Manual including all of the training provided. There were consultation processes in place and evidence of same, for example, via newsletters; 8. As to external audits and their role in ensuring speed compliance, she gave evidence in relation to audits conducted by Lion Nathan on 10 April 2008, Visy on 14 May 2009 and Linfox on 18 May 2014, in relation to which some of the documents were not prepared by her. She conceded that there were times when non-conformance reports (relating, for example, to overloading and drivers not keeping the correct records) were created and there was no indication of what investigation, result or action was taken to reduce the chance of reoccurrence. She stated that the non-conformance reports to which she was taken did not relate to speed non‑conformances but readily conceded that it was a point of frustration, for a time, that the policies and procedures in relation to non‑conformances had not been routinely actioned and closed out by operations staff (T20.11.2015, 49.44, Ms Turner XXN). She conceded, in relation to everything (including speed), that she felt that operations management was not following the basic employment training systems and she felt that she could not cope anymore (T20.11.2015, 50.30, Ms Turner XXN); 9. As to the use of newsletters for drivers, she stated that she had printed some out from her own database and produced them as examples. Each had the logo at the top in relation to the absolute speed limit for all trucks being 100 km/h. She stated that they would change it every so often so that drivers took more notice, and that there was also information included within them about fines, crash statistics, safety cameras and the like, which related to speed. She said that there was a newsletter to inform the drivers of the chain of responsibility changes in Victoria in November 2009 (South Australia's chain of responsibility amendments, she stated, came into force a little later in time) but that she did not know if there was a corresponding newsletter in relation to amendments to the chain of responsibility legislation in New South Wales in 2011 (T20.11.2015, 58.5 - 58.28, Ms Turner XXN); 10. As to the use of speed limiting devices, she agreed that where there was evidence by way of tax invoices issued by Hartwigs (and others) making reference to repairs in adjusting speed calibration back to 100 km/h (following the Defendants' receipt from the RMS of instances of speeding and written directives to check certain heavy vehicles' speed limiter devices), she would have expected somebody to investigate who the driver was and to take some action in relation to that driver. She suggested that such action could have taken the form of a non-conformance report or a letter to the driver. As she was not responsible, at the time, for investigations of this kind, she stated that such information was better elicited from those responsible for such documentation. Although there were repair invoices which made references to recalibration following the discovery of speed irregularities, many of the questions posed in cross-examination were in a form where she was asked to make assumptions that there was tampering with speed limiter devices, to which responses were sought as to what her expectations would have been in terms of disciplinary or remedial action. She was also asked what she would expect to see as to management system records, to which she agreed that there ought to be corrective, preventative or remedial action taken, including competency and training. Most of these operational issues depended on the size of the corporation as to how it would be evidenced. Importantly, though, on the issue of management systems regarding speed limiter devices, she stated (T29.2.2016, 6.50 - 7.9, Ms Turner XXN): "HIGGINS: But what if that company has documents which demonstrate tampering of speed limiter devices, would you expect the management system to include a responsibilities document allocating the responsibility for the checking of speed limiter devices to someone? MS TURNER: Again not particularly, because I would believe from my experience that it would automatically become a workshop responsibility. So I wouldn't imagine having to have it documented because it is part of the roadworthiness guidelines and workshop are responsible for roadworthiness of vehicles. So no I would not expect it to be documented. I would expect something that says maybe who to telephone if you think there's a problem with your vehicle." 1. She did not agree that all non-conformances were fatal to the preventative systems in place. For example, following an audit of mass management (as opposed to speed), the revelation that induction training for four drivers might not have been undertaken concluded in her assertion that it was more likely that it was not properly evidenced rather than the induction training not having taken place (T29.2.2016, 18.35 - 18.49, Ms Turner XXN). The attempted impugnment of the Defendants' procedures was not always reasonable and, often, required contextual explanation. For example, the recording by an external auditor that "verifications are not always conducted as per company procedures" had nothing to do with monitoring non-compliance with company procedures, as suggested by the Prosecution. Rather, "verification" was verifying the weighing system of the vehicle, that is, that the gauges are calibrated in terms of what they read in tonnes and whether they met legal requirements. This was better understood by reference to a later response in which she stated (T29.2.2016, 20.2 - 20.5, 20.31 - 20.39, Ms Turner XXN): - "Not always. Again verification not being conducted in accordance with company procedures could simply be the fact that our company procedure was that we verify the weighing system on a monthly basis but that becomes very difficult to do due to the lack of weighbridges. It could also be the fact that we require drivers to do a split of their steer and their drive axles and each try separately. If the driver does not split the steer and the drive then we have a CAR against the system in that they have not conducted verification in accordance with the company procedure. It could be that they haven't done them within the monthly basis." 1. In relation to speed limiter devices requiring recalibration following incidents of speeding, her response as to what she would have expected to have been put in place by management, included an investigation, remedial action (depending on the outcome of the investigation), dismissal (although she acknowledged that if they were not absolutely certain that a person was responsible for unlawfulness regarding tampering, they could also end up, as did happen on one occasion, as defendants in Fair Work Australia proceedings), a warning to change driving habits, refresher training and perhaps the completion of the induction training again (T29.12.2016, 23.12 - 24.40, Ms Turner XXN). As an example of the evolving nature of the betterment of policies and procedures over time, she stated that in 2011 it was not a policy to redo the whole of OHS training, which was dealt with elsewhere, such as in newsletters, because she did not see many speed related issues at that time. The same applied to the induction process for drivers detected for speeding offences and she, therefore, did not believe there would be documents evidencing same at about that time. These procedures were apparently adopted later, in 2014. 1. Relevantly, in re-examination she clarified certain matters which had arisen in cross-examination. First, in response to whether warning letters were the only means of dealing with incidents and that incident reports were kept in a separate folder, she stated that there were a number of different systems used, that records would be available, but that she had only brought samples to Court as she was not sure what would be required. Secondly, a non-conformance register (much like the 2014 version - Ex.41) also existed in 2011. Thirdly, in relation to why she responded in the negative as to whether she would have expected 156 letters to be sent in relation to 156 work diary breaches (rather than speed specifically), she stated (T29.2.2016, 42.6 - 42.10, Ms Turner RXN): "Well first of all there was only 86 pages and not only that it would only be to those drivers that actually had breaches so you might send them one each but the computer program LogChecker actually does its own non-conformance forms so each of these would have been printed out individually and the drivers would have been spoken to individually on those forms." 1. She confirmed that such system was in place in 2010 and 2011, albeit via a different computer program. Fourthly, it was through Ms Turner, albeit in re-examination, that a File Note dated 22 April 2010 (Ex.39, p.8), to which much criticism was directed by the Prosecution regarding provenance and weight, was admitted into evidence as a business record, initially on a limited basis but later unconditionally. For completeness, the File Note read as follows: "22 April 2010 Danny has contacted Cummins and Kenworth and asked that on a National Basis, whenever trucks come in for work that they are to check to ensure the speed limit is working. Direction was via telephone." 1. Said in context, I understood the phrase "speed limit is working" to be a reference to "speed limit[er]". The typographical error was later explained by Mr Borg (T2.3.2016, 23.40, Mr Borg XN). Indeed, in later legal argument emanating from this File Note, as to the Prosecution's application for leave to adduce documentary evidence "in rebuttal" (more correctly, in reply), I refused leave, in part, on the basis that (T1.3.2016, 12.23 - 12.42): 1. three of eight documents were directives; 2. the remaining documents related to three-strike warnings; 3. three documents related to motor vehicles not the subject of any charge; 4. five documents related to motor vehicles the subject of charges but not related to the three-strike warnings; 5. three out of nine documents related to motor vehicles not the subject of any charge; 6. six documents related to dates not proximate to the charges; and 7. the File Note, it was conceded, related to regular checks of only Cummins and Kenworth vehicles whereas the documents the subject of the argument related to one Graham Thomson type vehicle, one Cummins type vehicle and numerous Hartwigs inspections. (The first four categories were the MFI "L" documents. The last three categories were the MFI "J" documents). 1. Finally, as an indicator of the Defendants' compliance with its established policies and procedures, some 16 warning letters (as to speeding) were admitted into evidence (Ex.40) as part of its business records, in addition to the 15 warning letters (as to speeding and other breaches) admitted in evidence earlier (Ex.25). The totality of this correspondence spans, relevantly, some 17 months between 4 February 2011 and 2 July 2012. Mr Danny Borg (Managing Director) 1. Mr Borg was the Managing Director of the Defendant corporations with an intimate knowledge of the businesses' operations, practices and procedures. All companies operated under the umbrella of Fred's Interstate Transport, the record keeper being Interstate Transport Pty Limited. The business operated heavy vehicles across a number of Australian states with its principal place of business in Shepparton, Victoria. He was also a Director of some of the Defendant corporations together with his brother, Grant Borg, and his father, Frederick Borg. He had held a heavy vehicle driver's licence for 26 years, since 19 years of age and was well-versed in maintenance, driving and loading, outside of the operational and managerial aspects of the business. 2. The salient features of his evidence-in-chief were as follows: 1. The first and most effective reasonable step to prevent speeding was a random checking of ECMs and speed limiters through the various workshops engaged by the Defendants to carry out servicing; 2. Other reasonable steps included talking to drivers to continue to promote the awareness that the heavy vehicles are speed limited and have been so since 1993; 3. There are stickers on all vehicles stating that they are speed limited to 100 km/h; 4. Other reasonable steps included random checks at workshops, toolbox meetings, discussions and notices on payslips; 5. Relevantly, the training program (driver induction) included a section designed to prevent speeding. The Driver Manual had been in existence in an earlier form since 1993, having emanated from compliance with WorkCover requirements and having been through multiple changes over the years, all of which were directed by him. There was continual evolution of that document so that anybody employed would need to complete a number of induction forms, read, review and understand same; 6. One of the most effective means, at the time, of creating driver awareness of the importance of limiting speed, from a preventative perspective, was a two-page document with "do's and don'ts" regarding speed, fatigue, safety cameras and "core fundamentals" (T1.3.2016, 19.32 - 19.39, Mr Borg XN); 7. The Driver Manual continually evolved in relation to the environment in which they operated including as to core requirements, customer requirements, refuelling points, maintenance procedures and pre-trip procedures, in simplistic English language that drivers could understand, so as to allow the document to be effective and preventative in nature. It included references to, and was intended to deal with, OHS, organisational structure, driver awareness of the chain of command, company policies, interstate transport policies, general safety rules, terms and conditions of employment, driving at excessive speed, tampering with company equipment (including speed limiters and fuel pumps), turning off lights at STC camera locations, deviating from set routes, drivers' responsibility for daily vehicle inspections, general roadworthiness of vehicles, work diaries, post-trip procedures, time taken to complete trip, estimated time of arrival (ETA) procedures, keeping track of delivery times, fault reporting, breakdown procedures, vehicle recovery, driving habits (including tailgating, exceeding state speed limits and coasting downhill, which can see vehicles reach 126 km/h if control is not applied via engine brakes, service brakes and gear selection in heavy vehicles weighing between 42,500 kg (semi-trailers) and 68,000 kg (B-doubles), where speed limiters which operate to cut off fuel supply to engines, have no effect whatsoever, allowing the laws of physics to take over), and speed (T1.3.2016, 20.44 - 30.4, Mr Borg XN). To my mind, it became palpably clear that all of these matters were highly instructive and had a nexus to the statutory conformative end sought to be achieved by the Defendants in terms of speed (and other driving practices), notwithstanding that there might not have been a specific reference to the word speed within the heading or content of each and every relevant section. Some were direct strategies while others were tangential. Either way, they were indicative of the breadth of the processes adopted, evolving as they were; 8. In relation to the stand-alone speed component of the Driver Manual, the starting point was the reference to observing the absolute speed limit of 100 km/h. It referred to the driver governing the vehicle speed with a prudent observation of the traffic, weather and surface conditions. This, he said, alluded to how an operator should control his vehicle in appropriate conditions, calling into play visibility and the nature of the road, for example, if it was undulating country where speed limiters were not effective. It referred to trucks being fitted with onboard computers that are monitored by management on a regular basis, systems fitted to all fleet vehicles as at 2011 and 2012. He stated that the ECMs were supplemented by a road rely system (a digital readout in the cabin for the driver) which measured key operating parameters such as fuel economy, average speeds and percentages of idle time. In relation to the ability to gain access to readings from the onboard computer, he stated that some of the engine manufacturers (Carmens and Caterpillar) had specific maintenance tools which were "read-only" facilities used for checking fault codes, fuel consumption global speed limits, over speed runs and general maintenance requirements. Although it was technically possible to derive information which might indicate whether a driver had been speeding at a particular time, these systems operated on engine operating hours. This meant that one required enough of a timeline established in terms of the number of downloads completed over the course of a three or six-month period, for example, so that the information could be cross-referenced with operational records as to who was driving the particular vehicle. However, this, he said, was a laborious way of obtaining information of this kind. On the issue of GPS devices, there was a staged implementation commencing in 2012 (initially in three vehicles and eventually in the entire fleet) so as to avoid an inundation of data, to obtain feedback regarding the effective management of speed and fatigue and to enable an expansion of the system at an ECM maintenance monitoring level. This advance in technology represented a cultural change within the industry and drivers became more closely monitored by "the eye in the sky", which saw drivers adapting within a relatively short period of time (T1.3.2016, 30.20 - 32.28, Mr Borg XN); 9. The Driver Manual also promoted driver awareness in that repeated instances of exceeding the 100 km/h speed limit would result in the driver being notified and issued with a warning. As to how the company might become aware of such instances, he stated that there were three main sources, namely, ECM downloads (random downloads at REM workshops), workshop management tools (viewing of the ECM readings and onscreen displays) and other motorists reporting incidents to operational management. His evidence was that repeated offences would result in dismissal or remedial action after an appropriate investigation as the company considered this to be gross, wilful misconduct. Procedurally though, when a driver was found to be speeding, the first step was a written warning and a verbal conversation regarding such written warning, emphasising what the company's requirements and expectations were. The verbal conversation would not be recorded but it was one which was initiated by someone at an operational HR level or a maintenance supervisor, from Victoria through to Queensland, including Mr Bennie Karafa, Mr Jason Handley, Mr Joe Zucchelli and Mr David Tuffin. On occasion, Mr Borg himself would be involved in the conversation at a personal level (T1.3.2016, 33.8 - 34.49, Mr Borg XN); 10. The Driver Manual also referred to the payment of speeding and other traffic related fines or penalties being the driver's responsibility. However, that did not necessarily mean that the Defendants would be informed of the fact that fines or penalties had been imposed on a driver. Sometimes, drivers would inform the Defendants. Other times, however, the relevant roads authority would send the fines to the company and the Defendants would then become aware of them (T1.3.2016, 35.1 - 35.8, 35.28, Mr Borg XN). With awareness being a central feature in the relevant legislative provisions, there was no conclusiveness, though, in the evidence as it related to those instances where the Defendants were said to have become aware of the infringements issued to drivers but sent directly to the company and the failure to take reasonable steps; 11. There was also a reference to STC cameras in the Driver Manual. Particularly, under the heading of speed, there was a notation to the effect that in New South Wales and South Australia, STC cameras were set up on highways to track the speed of vehicles for everyone's safety. The significance of this to the operator and to the driver, he said, was that if a vehicle was found to be speeding, a written notice would be received from the RMS requesting that the speed limiter be checked. It was a three-strike system such that if the Defendants received three warnings in relation to that vehicle in a given period, the registration of that vehicle would be suspended. This, he emphasised, was very much a motivating factor, upon receipt of the first notice, to investigate the driver and check the vehicle and speed limiter settings before it was put back into service on the road. Its inclusion was against the backdrop of the environment in which the Defendants operated at that point in time. In other states, however, awareness of speeding was not conveyed via the same means. Victoria, for example, was very proactive in communicating with operators if there were issues of this kind. He stated that the Victoria Police Taskforce (I understood this to mean some kind of heavy vehicle compliance taskforce) would telephone or attend the offices of the Defendants to discuss speeding and other issues, but there were no such communications whatsoever in other states. Finally, whilst that component of the Driver Manual contained the only section which referred to speed by heading, the reason for its brevity and succinctness was not accidental. Rather, it was designed to be effective, to the point and generate a preventative environment, involving an awareness by drivers that disciplinary action would ensue for speeding infractions (T1.3.2016, 35.30 - 39.18, Mr Borg XN); 12. He frankly conceded that to the extent that the Driver Manual referred to drivers keeping (and management checking) work diary records, this was something mandated at the time by legislation and that, by and large, they did not provide any information about whether or not a driver might have been speeding. These records, he said, were designed primarily to address fatigue, but that speed, generally speaking, was an underlying purpose. Whilst they could technically provide some indication of distance travelled over time between two points recorded in the work diary, he did not know whether it was entirely accurate (T1.3.2016, 39.26 - 40.4, Mr Borg XN); 13. Notwithstanding there being no mention of speed, the Driver Manual's reference to designated trip routes and trip plans was to ensure safety and compliance with the gazetted semi-trailer and B-double national roadways. Assessments were conducted by driving instructors which would elucidate road conditions, time, distance, sleep rest facilities and other factors relevant to the operation of heavy vehicles (T1.3.2016, 40.11 - 40.12, Mr Borg XN); 14. He stated that there was a procedure in place for drivers to adopt and accept the terms and conditions of the Driver Manual. Upon being employed, drivers were made aware of the Manual, read through it and were then the subject of an induction process based upon it. The last page contained a declaration which made provision for the driver's signature and a witness, being an officer of the company. On the issue of how one would ascertain whether or not the driver had read and understood the terms and conditions of employment as explained to him or her, he stated that the document was discussed with each driver and the procedure involved a staff member (primarily Mr Bennie Karafa, amongst others) explaining the Manual (and other relevant forms relating to a driver's employment) and asking the driver to read and sign the necessary documents upon completion, as part of the induction process (to which Ms Turner referred in her evidence outlined above). The employment process included participation in the driver induction program, the completion of various application forms, the production of a current driver's licence and driving record and the obtaining of references from former employers. Such references often took the form of written references, whilst others took the form of telephone contact with former employers who provided verbal references. In many instances, drivers who applied for employment were known to him or to other members of staff and this would be an adequate reference and sufficient basis for approval as an employee (T1.3.2016, 40.48 - 43.16, Mr Borg XN); 15. He spoke comprehensively about the driver induction programs in place at the time of the allegations the subject of these proceedings, particularly the procedures surrounding the Driver Induction Training Document (2007) (Ex.23) and the Driver Induction Training Document (2011) (Ex.24). These, he said, were core induction documents dealing with the chain of responsibility and company procedures. They were supplementary documents to the Driver Manual and involved the driver sitting through the induction program, typically at a computer in the office, to run through the company processes, operations and requirements of employment. They were available in a PowerPoint presentation whereby a company representative (such as a compliance officer or employment staff, including Mr Bennie Karafa, or Ms Turner and, as I understood it, a young intern assistant) would sit through the induction process with the driver, over and above the driver simply reading the document. According to his evidence, operationally, it was a changing environment and so this was another step in the Defendants' processes, an evolution of the process as he described it, involving safety, OHS, chain of responsibility and the like. Having another representative present while the driver went through the PowerPoint presentation was grounded in a desire to assist drivers to understand the documentation and policies and procedures, to ensure that the document had been read and so that they would gain a sound understanding of the information. Each driver induction would be tailored to the driver's literacy, in some instances involving the representative even reading out the PowerPoint presentation to the driver. At times, he issued a directive that this practice be followed and on other occasions, he sat in induction programs himself (T1.3.2016, 44.4 - 46.6, Mr Borg XN); 16. In relation to the Driver Induction Training Document (2011) (Ex.24), there was a reference to the absolute speed limit for all trucks being 100 km/h. This was expressed in very simple terms and referred to four points, namely, the absolute speed limit, the driver governing the vehicle's speed in prudent observation of traffic and weather, observing statutory speed limits, and the payment of speeding and other traffic related fines or penalties. The language and brevity was intentional and was designed to be effective. These matters needed to be effectively communicated to driving staff, in a clear and concise manner. The section, he said, highlighted to drivers how serious speed was (T1.3.2016, 47.37 - 48.8, Mr Borg XN); 17. On being requested to comment on the Defendants' driver files (Ex.17, Folder A), which were compiled by Ms Turner in preparation for the hearing, he stated that the breadth of information comprised therein included employment application forms, terms and conditions of employment, signed driver declarations as part of the induction program, licence checks, license printouts, photocopies of driver licences, declarations of general safety rules, speeding, drugs, fatigue, permits, warning letters, sanctions and corrective action imposed on drivers, and basic "dos and don'ts" as part of the Defendants' policies and procedures. He conceded, quite properly, that not all files for individual drivers had the same contents as others. He proffered a number of plausible explanations including the fact that some documents may have been missed on induction or some drivers did not ultimately commence employment and did not, therefore, complete the necessary documents during the induction process. Alternatively, it could have been that enquiries returned unsuitable reference checks. He stated that the entire process of employment and induction was reduced into written form and was not aware of occasions where that did not occur. The driver files were kept separate from other files the Defendants retained as heavy vehicle operators and comprised multiple four-drawer filing cabinets with manila folders filed in alphabetical order referable to each driver. At any given time, there were approximately 50 or 60 driver files. At the relevant time in 2011, he said, there were some 53 or 54 full-time drivers, with one to three casual drivers employed (T1.3.2016, 48.16 - 51.32, Mr Borg XN); 18. As to the bundle of warning letters comprised in the driver files (Ex.25), he stated that they related to speed, fatigue and mass. He was taken by counsel to specific incidents of speeding and mass breaches and explained that the resultant warning letters were generated after penalty notices came to the attention of the company. The relevant warning letters were prepared under his direction, notwithstanding that they might have borne the names of other directors within the Defendants' group of companies (T1.3.2016, 51.45 - 53.49, Mr Borg XN); 19. The driver related records maintained by the Defendants, and the policies in place at the relevant time in 2011, included general company policy documents, risk registers, heavy vehicle driver fatigue policies, driver medical assessments, fitness to work assessments and accident reporting and investigation records. Although there was a driver induction program in place which incorporated driver competency, he did not believe, from his recollection, that drivers were asked in 2011 to demonstrate their competency by actually driving a heavy vehicle (T1.3.2016, 54.7 - 55.41, Mr Borg XN); 20. He was taken through numerous company documents which were advanced as indicative of steps taken to address speed (and other) related safety measures. One of the documents was the 2011 Kubota Job Safety Analysis and Route Assessment (Ex.21). He stated that this was specifically designed for one of their clients, Kubota, to address their requirements and to service their interstate distribution needs. The document outlined the manner by which a journey by a driver of a heavy vehicle could be completed safely, allowing for appropriate speeds, rest breaks and fatigue management. It included a section on tasks, hazards, elimination control measures, and references to speed by way of speed limiting devices being maintained and the presence of a system being in place for requesting repairs and ensuring that work schedules did not encourage speeding or other unsafe driver behaviour. There were measures put in place including schedules and allowances for time to ensure that drivers did not need to speed. Notably, the schedules were prepared at his direction on the basis of route assessments conducted by the Defendants. From a risk assessment perspective, the detail therein comprised all the information required to complete the journey in a safe and effective manner, including information as to the trip route Sydney-Melbourne, Melbourne-Sydney, the highway to be used, distance, driving time, total work time, legislated rest times, driving hours, fuel points and rest points. It included a graph, excerpted from a driver's national work diary, highlighting the hours of work periods and hours of rest periods to complete the journey on that route, albeit relative to fatigue management. It included what could be described as a guide of schedule times, with a minimum time of 13 hours but a preferred time of 20 hours. The trip times, he said, were typically derived from average speeds and from ECM downloads. Indeed, this information was not just client-specific. The Driver Induction Training Document (2011) (Ex.24) made drivers aware, on induction, of the requirement that they follow trip plans (which were based on risk assessments carried out) on every occasion. It informed them of all possible national routes the company would operate on, allowing for average speeds, loading and unloading times, driving times and work-rest times. It was, as he put it, a "stripped down version" of an extensive trip plan / route assessment such as the Kubota document itself (T2.3.2016, 1.35 - 4.47, Mr Borg XN); 21. The Bevchain / Diageo Driver Waiting Time Spreadsheet (Ex.34) was another example advanced as being indicative of steps taken to address speed (and other) related safety measures. He stated that this was an operational spreadsheet used to measure time on site at a specific customer operation and included the arrival, loading time, time on site, billable hours and demurrage. It tied in with, albeit indirectly, trip plans from the point of view of arrival times and loading times. It provided a guide as to the actual hours of operation which overlapped with the respective trip plan to ensure that what was being done was effective (T2.3.2016, 5.1 - 5.22, Mr Borg XN); 22. Much like the evidence given by Ms Turner, Mr Borg too spoke of some of the more superintendent mechanisms in place to address speed (and other) related safety practices. The LSS Chain of Responsibility Management Assessment (Ex.35) was another example of this. This was an independent external audit conducted by one of the Defendants' clients, LSS, in relation to the Defendants' documentation, systems and processes in place. Of particular note, is the reference to speed related measures, which were found to be 100% satisfactory (from a documentary perspective), 94.4% satisfactory (from an "in-field application" perspective), and 97.22% satisfactory overall (T2.3.2016, 5.30 - 6.25, Mr Borg XN); 23. Much of his evidence regarding the spreadsheet document (Ex.36), as to the form and procedure for auditable record keeping systems in place, was corroborative of Ms Turner's evidence. In addition to those matters discussed by her above, he stated that it recorded workshop training, induction procedures and induction attendances. He described the document as a risk register, comprising a list of all drivers, dates of birth, basic details, licensing, induction processes attended, incidents and restraint, predominantly designed around toolbox requirements and which was directed to most facets of their operations insofar as core requirements were concerned. As far as he could recall, the document had been around for quite some time, since about 2003, and continued to evolve over time and adapt to changes as required. Consistent with this, he readily conceded that the document tendered into evidence as Exhibit 36 was the document as it stood in 2015, rather than 2011 (T2.3.2016, 6.27 - 7.47, Mr Borg XN); 24. The Critical Incident Management Guidelines (2011) (Ex.32) were another example of steps taken to address speed and safety related matters. It was safety orientated (and, he said, speed related, if speeding contributed to an incident) and its role was to assist in the management of critical incidents. It was unequivocal in its terms and included matters adverted to in the Driver Manual. It made provision for a clear and direct path of communication to address critical incidents which arose in the operation of heavy vehicles by drivers (and all other staff) in an effective manner (T2.3.2016, 8.45 - 9.11, Mr Borg XN); 25. Evidence was also adduced in relation to the Job Safety Analysis document (Ex.33), whose primary purpose, he said, was to analyse, control and react to potential risks. The document itself was solely speed-orientated and contained a number of controls, including employee and subcontractor consultation, the development of a safe driving policy that defines expectations of driver behaviour while driving company vehicles (although he conceded that he could not recall a specific document being in existence bearing the heading "safe driving policy" - there were, he said, company manuals and induction processes and a number of other documents dealing with speed), ensuring that work schedules did not encourage speeding or other unsafe driver behaviour (a reference to trip plans), reminders within newsletters of allowable speeds (circulated bi-monthly via inclusion in employee payslips), induction training on speed and the maintenance of speed limiting devices (T2.3.2016, 9.15 - 12.12, Mr Borg XN); 26. He provided a detailed explanation as to the procedure for compliance with an RMS Speed Limiter Compliance Letter and Notice dated 3 April 2012 and 28 March 2012, respectively, culminating in a Road Speed Limiter Certificate obtained from Hartwigs Trucks (an Original Equipment Manufacturer (OEM) dealer for Western Star vehicles and Cummins engines) dated 9 May 2012. His evidence was that there was an inspection of the vehicle speed limiting device by the RMS which resulted in a speed limiter compliance notice being issued directing the Defendants to check the speed limiter to ensure that it met its relative requirements. The speed limiter certificate document outlined the process undertaken by the OEM workshop to determine the settings of the speed limiter. It referred to the mathematical gear speed calculation, an ultimate speed formula, gear bound ratios, final drive ratios of the transmission, final drive rear axle ratios, tyre size (which was part of the equation for the ECM settings) and the set speed of the vehicle and limp home maximum engine rev speed. It was a document that set out the parameters of the ECM and confirmed that the speed limiter device had been checked, set at 100 km/h and signed off as being compliant. Despite this being a 2012 RMS request, he stated that during 2011 and 2012, the Defendants received similar requests from the RMS (although he could not recall the number) and similar compliance certificates were provided in return (T2.3.2016, 12.16 - 14.1, Mr Borg XN); 27. Driver work diaries (Ex.26) (the completion of which became compulsory in or about 2008) were also a means by which driving habits as to speed and other factors would be monitored. These were submitted by drivers by no later than 28 days from the end of the month of use. Typically though, the pages would be handed in on a daily basis for the relevant depots at which drivers attended (T2.3.2016, 14.5 - 14.31, Mr Borg XN); 28. He was questioned about the Breach Reports spreadsheet (compiled by the Defendants as operators) for November 2010 (Ex.38) which revealed 156 breaches (categorised as critical, severe, substantial and minor) across some 506 pages of work diary pages submitted by drivers. These were said to be primarily in relation to fatigue management but, according to Mr Borg, could have related to mass, fatigue, accidents, load restraint, speed and, generally, a variety of incidents. Relevantly, one could not discern from the face of the document whether any (and, if so, how many) of the incidents related to speed. More importantly, the company procedures in place for each of the drivers said to have been involved in the various incidents would have resulted in them being spoken to in relation to breaches, usually by Mr Bennie Karafa or by other operations staff. This was because the company software system was designed to effectively generate a non-conformance report. This enabled the Defendants as operators to approach drivers and highlight the areas of concern (T2.3.2016, 14.35 - 16.46, Mr Borg XN); 29. One of the most striking documents was the Fred's Group Work Order Service History (Maintenance of Speed Limiter Devices) spreadsheet (Ex.27). The document tendered was 59 pages in length (some entries of which were highlighted) and covered a two year period across 2010 and 2011. This document recorded the details of all work carried out on speed limiter devices installed in heavy vehicles. The Defendants maintained this register as a record of examination and maintenance of speed limiters in their fleet of heavy vehicles. He stated that the entries referred to the checking or rectification of speed limiter defects, whether it be by way of sensor faults or otherwise. Put another way, he said, these records were for anything that related to the control of the speed of a vehicle, either via ECM settings, directions to have them checked or random checks conducted by operations through the relative workshop suppliers. By these checks, truck numbers, registration numbers and drivers' names on a particular date could be ascertained. He stated that maintenance staff at the workshop were equipped, to a degree, to examine speed limiters but only by virtue of a visual inspection of sensors and wiring looms on the engine harnesses relative to the ECMs and screen view ECMs, that is, read-only data views of the ECM using a simplistic electronic tool plugged into the vehicle to read fault codes and basic parameters, fuel consumption, over speeds, and the like. However, these were cursory in nature. They did not result in print-outs and were not as detailed as the diagnostic inspections capable of being carried out by Hartwigs, for example (T2.3.2016, 16.50 - 20.5, Mr Borg XN). My view was the creation and maintenance of a document such as Exhibit 27 spoke volumes about the Defendants' regulatory veneration and the importance placed by them on fostering a prudential, systematic and disciplined corporate culture. It was aptly geared towards preventing speeding and other offending driving conduct from occurring and towards taking specific precautions and exercising realistic industry and corporate based due diligence to prevent the commission of actual offences of the kind the subject of these proceedings; 30. In relation to the RMS Notice to Show Cause (Failure to Check Speed Limiter) dated 28 May 2010 (Ex.39), he stated that such notice related to vehicle VV53HQ, which, it became apparent, had already been checked by Hartwigs some two months earlier. Following a code being displayed suggesting evidence of speed tampering (as was apparent on the face of the Hartwigs Tax Invoices dated 16 March 2010 and 31 March 2010, also comprised in Ex.39), the Defendants obtained the necessary Road Speed Limiter (compliance) Certificates on 31 March 2010, after Hartwigs adjusted the speed calibration to 100 km/h on the first occasion and replaced the damaged speed sensor on the second occasion. He readily agreed that there appeared to have been a failure of communication between the Defendants and the RMS, between March 2010 and May 2010. His evidence was that the suggestion in the Notice to Show Cause, that the directive to check the speed limiter had not been complied with, was erroneous because, clearly, there had been a check of the speed limiter on two occasions in March 2010 (T2.3.2016, 20.15 - 21.31, Mr Borg XN); 31. As a result of this failure of communication, a File Note dated 22 April 2010 (also part of Ex.39 and referred to earlier in these reasons) was prepared by Ms Marie Strudwick (Office Manager) at Mr Borg's direction to evidence the telephone contact made by him with Cummins and Kenworth dealer network workshops to the effect that, on a national basis, any time a heavy vehicle enters one of their facilities, in Victoria, New South Wales, Queensland or South Australia, a random audit of ECM parameters be conducted. This included Hartwigs, Graham Thomson Motors and Caterpillar workshops. The directive was terse. It stated that "whenever trucks come in for work that they are to check to ensure the speed limit is working." Contrary to the Prosecution's arguments regarding the provenance of this document, it was ultimately admitted into evidence unconditionally, by consent and without objection (T2.3.2016, 27.25 - 27.42, Mr Borg XN). He stated that this directive was strategic by design, to have random checks of ECMs conducted to ensure that speed limiters were operating effectively. The primary purpose was to catch anyone, be they an employee or an external individual, who may have been tampering with speed limiters without their knowledge. It was brought about following communications between the Defendants and workshops that there was the ability of individuals to download software systems from the internet that allowed ECM modules (the engine control management system), to be tampered with in manner that was very difficult to detect, certainly not detectable via a read-only option tool. It emerged, when viewing the spreadsheet of charges attributable to specific drivers (Ex.42) and the spreadsheet of the employment status of drivers (Ex.43), that there was a high turnover of drivers employed, of which 23 of the 33 drivers in Exhibit 43 and many of whom were identified in the charges attributable to specific drivers in Exhibit 42 had ceased employment with the Defendants' companies (T2.3.2016, 21.33 - 27.42, Mr Borg XN); and 32. He stated that there were a number of steps taken by the Defendants to communicate to employees the standard operating procedures and policies of the companies in 2011 and 2012. These included formal documents, verbal communications, the company website, company manuals and induction processes (T2.3.2016, 28.5 - 29.21, Mr Borg XN). 1. He then embarked upon a compendious and candid outline of the reasonableness or otherwise of the steps taken by the Defendants (as operators) to prevent speeding offences specifically. Read in conjunction with his response in cross-examination (dealt with later in these reasons) to the effect that none of the factors (individually) prevented speeding "absolutely" (T2.3.2016, 37.2, Mr Borg XN), he stated that: 1. In relation to having a company policy statement signed by the principals of the business, he did not believe that such a strategy on its own assisted in preventing speeding but, rather, that it assisted in creating a framework and expectation that speed was to be managed accordingly within the business and that there needed to be reinforcement in the verbal sense (T2.3.2016, 29.30 - 29.45, Mr Borg XN); 2. In relation to whether fitting vehicles with speed limiters assisted in preventing speeding, this was a measure of controlling speed but that the appropriate checks and balances needed to be in place. Checks of speed limiter devices were required and, again, continued verbal discussions with staff that these types of devices were not to be tampered with. This was to be coupled with day-to-day management through internal and external workshops at a national level and through himself as part of senior management (T2.3.2016, 29.47 - 30.4, Mr Borg XN); 3. In relation to checking speed limiters for tampering, on a regular or random basis, he did not think that this alone assisted to prevent speeding entirely. As checks were being carried out at a specific point in time, it was a tool to warn staff that there was oversight on the part of management. It was designed to capture wrongdoing but involved people management and verbal communications on a regular basis at a national level via operations staff and senior management (T2.3.2016, 30.6 - 30.15, Mr Borg XN); 4. In relation to trip plans, they were not a means on their own of preventing speeding entirely. Rather, they created an environment in which drivers were advised accordingly on how to conduct the task at hand. There needed to be clear communications regarding trip times, rest times, work times, and loading and unloading times (T2.3.2016, 30.17 - 30.21, Mr Borg XN); 5. In relation to whether driver manuals prevented speeding, he stated that they did not. The driver manuals were a tool to assist in completing the driving tasks at hand (T2.3.2016, 30.23, Mr Borg XN); 6. In relation to tool box meetings, these were, categorically, a means by which to prevent speeding. He stated that these were another tool to assist, given the employment environment in which they operated, in ensuring that the necessary steps and processes were in place such that if they did find themselves in a situation where one's employment had to be terminated, for a critical breach such as speed, they had taken all steps reasonably possible to inform staff of what the operator's requirements were and why those requirements were in place (T2.3.2016, 30.31 - 30.35, Mr Borg XN); 7. In relation to trip plans (with drivers reporting in to the operations manager, either with an estimated time of departure or arrival), these were, to a degree, a means of preventing speeding. It was the communication process which was part of a matrix of processes used to manage various components of their operations which was effective (T2.3.2016, 30.37 - 31.8, Mr Borg XN); 8. In relation to the requirement referred to in the Driver Manual, regarding drivers being required to report infringements, it was difficult to confirm whether such requirement prevented speeding because it was an after-the-fact report that speeding had already taken place. Relevantly, he stated that whilst, as operators, they became aware of speeding incidents after the fact in 2011 and 2012, the majority of which were by way of reporting from drivers, other employees and safety cam notices, he was emphatic in his evidence that of the 150 incidents of speeding the subject of the charges in these proceedings, he was not aware of each and every one of them, he did not become aware of even some of them, they were not reported to him by drivers and, as far as he could recall, they were not reported to him by virtue of any notices received from the RMS (T2.3.2016, 31.10 - 32.13, Mr Borg XN). I had no reason to doubt the truthfulness of this categorical response. This was a significant feature of his evidence. It was apparent that the prevention of speeding was not a matter which was, or should have been, quarantined from other facets of the operation of the Defendants' business. To suggest so is to disregard the internal machinations of a large group of companies which, evidently, went to great lengths to effect policies and procedures regarding speeding and other regulatory matters with a view to complying with road transport legislation on a national level, within the various states in which they operated; 9. In relation to the processes of internal and external auditing (predominantly by auditors appointed by consignors or consignees), this too, alone, did not assist in preventing speed (T2.3.2016, 32.15 - 32.23, Mr Borg XN); 10. In relation to reference checks as part of the employment process, he did not think that such a strategy, of itself, prevented speeding. In some instances, though, it gave him a feel for a particular individual's potential risk (T2.3.2016, 32.25 - 32.34, Mr Borg XN); 11. In relation to examining a driver's traffic record, that, of itself, did not prevent speeding (T2.3.2016, 32.36 - 32.38, Mr Borg XN); 12. In relation to the driver induction process, that, of itself, did not prevent speeding (T2.3.2016, 32.40 - 32.41, Mr Borg XN); 13. In relation to the provision of the Driver Manual to drivers, that too did not prevent speeding (T2.3.2016, 32.43 - 32.44, Mr Borg XN); 14. In relation to the driver work diaries, these, he believed, were not accurate enough to evidence speeding and, in any event, they did not operate to prevent speeding (T2.3.2016, 33.22 - 33.26, Mr Borg XN); 15. In relation to the monitoring of speed limiters, this strategy in his experience, on its own, clearly did not operate to prevent speeding (T2.3.2016, 33.32 - 33.37, Mr Borg XN); 16. In relation to corrective or disciplinary action against drivers, this was a reactive rather than a proactive strategy and did not prevent speeding of itself. These types of processes would work with individuals who were professional in the way they conducted themselves. However, there would always be a percentage of individuals who would try and work outside those parameters and, at times, disregard instructions. It was made clear to drivers, though, that corrective action or disciplinary procedures would be applied if they were found to be speeding, including verbal warnings, official written warnings and, ultimately, dismissal from employment. Repeat offenders would receive no more than three official warnings, the third being final and involving a dismissal. Drivers were made aware of the Defendants' own "three-strikes and you're out" company policy (T2.3.2016, 33.39 - 34.50, Mr Borg XN); and 17. Sheeting home the significance of the industrial milieu in which he was involved as operator and senior management for many years, he reaffirmed the fact that in terms of reasonable steps compliance, the best results were achieved when approached from a people management perspective, with hands-on, day-to-day operational control in mind. This could take the form of an instruction from an operational manager advising a driver of the trip he had undertaken, some simple advice regarding expected delivery times, trip planning, taking one's time, being mindful of speed, contacting management in the morning or to expect a call from management. It was, as he put it, a "psychological prick" to the driver that, invariably, 'he' was "not under any pressure to complete the task [and] that the aim [was] to arrive safe and sound in one piece." One of the clear directions, he said, that had been given to drivers since his father founded the company in 1978 was that they "[did] not want accidents to happen or people to be injured in the course of trying to deliver product for any customer at any given point in time." He stressed that it was "all about safety" and that "if you're tired, you stop, you go to bed, you contact us at first possible opportunity to re-advise the changed ETA." These types of management processes were in a verbal sense far more critical (and effective) in his view than a plethora of documents and information (which played a secondary role) that simply cautioned drivers not to speed. It was something which "[had] to be verbalised." It was something which had to be managed "one on one, people v people." In relation to the need to speak to drivers following instances of speeding, there were times when he, rather than operations managers, would attend to that task. This, I understood, involved unpolished and perhaps distasteful language in what he described as "fairly stern conversations … what we would call a man to man conversation in our organisation." Unsurprisingly, file notes or recordings of these types of conversations were not made because it was "not the nature of a man to man conversation to do that." Either way, if it were discovered that a driver had engaged in speeding, the automatic (and immediate) consequence was that an operations manager or Mr Borg himself would speak to the driver (T2.3.2016, 35.1 - 36.17, Mr Borg XN). 1. The salient features of his evidence in cross-examination were as follows: - 1. Overall, the business practices, such as toolbox meetings, trip plans, driver manual induction processes did not prevent speeding but they were tools by which the Defendants, as operators, sought to manage the business in a way that created a culture of safety. His evidence was that none of business practices, separately, prevented speed. He emphasised his point that they were not absolute. One of the reasonable steps to prevent speeding was a culture of communication between management and drivers to ensure a safe working environment. As to the effectiveness of oral communications with drivers, and with some hindsight, in the environment in which they were operating at the time and with the information available regarding speed, he felt it was effective because he was not aware of any issues (T2.3.2016, 36.22 - 37.35, Mr Borg XXN); 2. He agreed that the purpose of having business practices in place to ensure speed compliance was to create an environment where drivers did not speed (T2.3.2016, 38.28 - 38.32, Mr Borg XXN); 3. He disagreed with the suggestion that the Defendants' business model was based on the idea that drivers would self-regulate. He stated that it would be too naïve to believe that individuals would self-regulate. There was an expectation that they were professional heavy vehicle operators and formed part of the chain of responsibility that had very distinctive guidelines on what their responsibilities were and that that they would treat same with a level of respect and professionalism. It was not something, though, relied on solely (T2.3.2016, 38.34 - 38.43, Mr Borg XXN); 4. There would always be a proportion of individuals who could be considered as being unprofessional and, in the event of multiple events of speeding, as being "rogue" drivers. One did not need to look too far to find such examples (T2.3.2016, 38.49 - 39.4, Mr Borg XXN); 5. As to what he meant by this, he stated that it was not isolated to drivers alone. There were individuals within the industry who contributed to these problems and who were not drivers. Further, given the employment environment in which they operated (Fair Work Australia related), it was often difficult to manage some individuals. He referred to an example earlier in the evidence where the Defendants went through a formal written warning process with an individual who had been speeding and overloading a vehicle, whose employment had been terminated on those grounds, only to find themselves facing a dismissal claim with Fair Work Australia, with resultant costs, remedying the exact problem over which his testimony (and business practices) were being criticised (T2.3.2016, 39.10 - 39.30, Mr Borg XXN); 6. He would have expected the percentage of drivers that chose to act outside the relevant processes to have been in the minority. It was put to him that 30 out of 53 drivers (60%) were identified as having been involved in the 157 speeding incidents the subject of the proceedings. He was asked about the effectiveness of their processes in light of this and he stated, candidly, that their processes could have been improved had they been aware of the said events. They could not fix a problem of which they were not aware. They could not design a process to address a problem of which they were not aware. His evidence was to the effect that these matters were easy to deride, in hindsight. He was pressed on this point and it was suggested to him that the point of chain of responsibility offences was to put in place preventative measures rather than reactive measures. His response was that they had many preventative measures in place including, in particular, random checks of speed limiters. He did not think concentrating on the percentage of drivers in the clinical manner described was relevant to the effectiveness of their processes. What was relevant was looking at drivers and individuals with a level of experience who were operating heavy vehicles in many incidents where there were, on occasion, minor over speeds which were not flagging any issues with their processes. His frustration with the criticisms levelled at their processes by the RMS was laid bare in this response (T2.3.2016, 39.47 - 41.1, Mr Borg XXN): - "A. I don't think it's relevant to the effectiveness of the processes. I think what is relevant is that we're looking at drivers and individuals with a level of experience that are operating these vehicles in a lot of incidences where there's sort of minor over speeds where they're not flagging issues. You have to understand that we can do a speed limiter check and that comes back and says that's okay so then how do we rectify a potential speed problem. It goes back to what I said earlier in my testimony that ultimately the control of the vehicle comes down to the individual to maintain and manage the speed. Now if we're doing - if we're doing checks of speed limiters and isolate it to this particular item as a reasonable step I don't know what else there is and you may be able to advise me accordingly on what other potential reasonable step we could have put in place at that given time to identify the issue without relying on or being notified in a manner as which we had been in the past by RMS with safety cam notices … I'm certainly open to suggestions"; 1. He agreed with the propositions put to him that business practices which would amount to reasonable steps included human resource management in a way to ensure that drivers retained came with all reference checks carried out, whether or not they were satisfied that drivers had understood the contents of the Driver Manual, whether they were satisfied that drivers produced their driving records leading up to the commencement of their employment and that drivers engaged meaningfully in the induction process (T2.3.2016, 41.7 - 41.27, Mr Borg XXN); 2. It was put to him that since 2012, they had "embraced that brave new world within your corporation … the idea of having policies and procedures which go beyond what you had in 2011 and 2012". His response was that they had embraced something they had been embracing since 1993, and had created a stream and a flow of documents relative to the environment they were operating in at any given time and relative to customer requirements, chain of responsibility requirements, business practices and management requirements. They continued to develop their systems with a view to improving their operations, including the use of GPS and the simplification of documents, to create an effective environment in which they could provide more of an influence around the issues that required management within their operations (T2.3.2016, 41.49 - 50.7, Mr Borg XXN); 3. The RMS pointed to the Driver Manual (Ex.22), used in the induction program, making reference the organisation "Interstate Transport Pty Limited" (a company related to the Fred's Interstate Transport Group) but not to any of the five corporate defendants in these proceedings, in part due to the words "This manual always remains the property of Interstate Transport Pty Ltd" and "This manual applies to all employees of Interstate Transport Pty Ltd" appearing on pages 5 and 6. This was an unwarranted, shallow criticism and was repudiated in no uncertain terms by Mr Borg and the evidence as a whole. In any event, the words on the front page of the document itself referred to the "Fred's Interstate Transport" group, as did the livery of both combinations of the B-double truck in the photo also on the front page. As Mr Borg put it, this was "not relevant … Everybody's aware of who Interstate Transport is when they work for us as they are aware of who Fred's Interstate Transport is, semantics" and, later, "Anybody who works for this organisation whether it be Interstate Transport or whether it be Fred's or when they step into a vehicle it says "Fred's" on the door they're well aware of who they're working for regardless of the company names that you're referring to. The policies and procedures are umbrella in nature and therefore cover any company or employee that drives a vehicle with a company name on it." In the same vein, and with the RMS using an unrelated matter such as mass management (rather than speed prevention) as a sword for safe driving practices, the questions levelled against him about whether the Defendants' National Heavy Vehicle Accreditation Scheme Mass Management Accreditation applied only to Interstate Transport Pty Limited were similarly unjustifiable. The Defendants' mass and heavy vehicle accreditations, he said, applied to the relevant vehicles within their structure, whether that was the registered name, listed name, gazetted name or Interstate Transport Pty Limited. Without reviewing the documentation, he could not give a definite answer. In any event, no documentary evidence was put to the witness in cross-examination to rebut the truthfulness or accuracy of this response, despite the pointed nature of the aspersion (T2.3.2016, 42.11 - 45.7, Mr Borg XXN); 4. Similarly, in relation to the File Note dated 22 April 2010 (Ex.39, p.8) (admitted unconditionally and, therefore, for all purposes), in respect of which he stated it was a "reasonable step to be taken given the circumstances" and that he wanted to have a record of his directive to the primary workshops to check speed limiters, it was suggested to Mr Borg that he was, furtively as I understood it, "setting up an example of a reasonable step to prevent speed". He disagreed. He stated that whilst he may not have been definitive about it being a reasonable step at the time, his primary concerns were that they did not want their vehicles tampered with, did not want drivers speeding and did not want drivers creating any risk (something I found to be entirely consistent with the tenor of the Defendants' corporate processes) (T2.3.2016, 45.48 - 48.40, Mr Borg XXN); 5. This line of questioning extended into other areas. Questions were asked of Mr Borg which suggested that, first, the Defendants had not been forthcoming in providing to the RMS all their relevant documentation (across five defendant corporations), particularly the omission of the File Note, in response to Directions to Produce Records, Devices or Other things (DPRs) in 2012, pursuant to s.150 Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (Repealed) ("RT(G)Act"). Yet, it was conceded by the Prosecution that, first, neither of the charges before the Court averred a breach of the offence provision contained within sub-section (4) and, secondly, it was contended that the purpose for which the Defendants produced the documentation in response to DPRs evolved, that is, at the time the Defendants responded to the DPRs, they had a limited purpose (not relevant to speed compliance), but since 2014, when a decision about reasonable steps was made, the Defendants sought to attribute a further purpose to them. His responses were justifiably acerbic. As to both suggestions, in a case as document intensive as the present, he stated that they provided all the information they had at hand that was relevant to what they were asked to produce and that he had spoken to Ms Turner at the time and provided her with copies of the DPRs indicating the records that needed to be produced. He was aware that she had produced some eight volumes of documents, the complete details of which he could not recall four years down the track. His recollection, correct I might add, was that they were required to provide the documentation within a fairly stringent timeframe and that his "administrative staff were doing back flips in trying to pull everything together in the timeframe required" and, unequivocally, that "if that created delays in some documentation then I'm happy to concede that but there is no concession whatsoever on my part that myself, any of my staff or my organisation in any sense, has tried to delay or fabricate or anything of any other description to prevent providing documentation." He went on to say that there was a "plethora of information here that was given a great amount of urgency to deal with it at the time, now if we've potentially missed some evidence that would have bolstered our case at that point in time by providing them to you in what you considered to be a timely manner, then I would answer yes we would have provided it. Now if there's a step we've missed there it hasn't been of a deliberate intention of any nature, it has simply been a case that we haven't had - either haven't had time to find it or it has simply slipped our mind, we haven't remembered that it's there. Again, bearing in mind that we're going back through an enormous amount of documentation over a fairly lengthy period that requires some serious attention and a lot of work on behalf of our business operation outside of running our business on a day to day business of which is a fairly dynamic and diverse operation." (T2.3.2016, 48.48 - 54.3, Mr Borg XXN). A closer analysis of the breadth of documents sought by the DPRs and the time within which the Defendants were to comply confirmed the tenor of his evidence. The DPRs sought production of an extraordinary amount of material over a 15 month period across five different corporations, within two days and even as little as a matter of hours (on the same day), under threat of a maximum penalty of $22,000.00 per corporation. The position is summarised below and the attempted impugnment of Mr Borg in respect of these matters was, in my view, entirely unfounded. MFI No. Recipient corporation Breadth of information / documents sought Date of RMS Due date for production of documents Time allowed DPI / DPR letter AS Hommes Name and address (home and business) of the Operator and the Record Keeper for four heavy vehicles between 1.1.2011 and 11.4.2012 (over 15 months) 11.4.2012 13.4.2012 2 days 10.00am Name and business address of the Consignors and Consignees of all goods transported by four heavy vehicles on four specific dates 20.4.2012 AT Hommes and 20.4.2012 5.00pm Same day Name, driver's licence number and home address of the drivers, schedulers, employers and other responsible persons concerned in the management of the company in respect of four heavy vehicles on four specific dates AU Hommes For all vehicles that travelled through New South Wales between 1.1.2011 and 24.4.2012 (nearly 16 months), all records (engine management records and reports) documenting and indicating the use, performance or condition of the vehicles, regular maintenance of all components that relate to complying with speed limits (for instance, speedometer, engine management system and speed limiters). 24.4.2012 26.4.2012 2 days 5.00pm AV Roadmaster As above for Hommes 24.4.2012 26.4.2012 2 days 5.00pm AW Laudrup As above for Hommes 24.4.2012 26.4.2012 2 days 5.00pm AX Dranmore As above for Hommes 24.4.2012 26.4.2012 2 days 5.00pm AY Eezee As above for Hommes 24.4.2012 26.4.2012 2 days 5.00pm I rejected the assertion that the non-provision of (or delay in providing) any documents was intended as a means of withholding evidence of compliance or reasonable steps, or to enable documents to be fabricated, or because the documents were irrelevant to speed and instead relevant only to other aspects such as the management of mass, loading and fatigue. What emerged from the evidence of Mr Borg was that there was an overarching interaction between the various procedures the Defendants had in place and issues of safety, which, by their inherent nature, encompassed speed, including compliance as a business with industrial relations obligations. These several factors were inextricably linked and could not be divorced from one another in some academically surgical, and purportedly legislatively driven, extraction; 1. As to the contents of the Driver Manual, and the exploration in cross-examination of the idea that it represented a reasonable step in preventing speeding, it was suggested to him that the reason why it included a reference to making drivers aware that turning off the vehicle's lights so as to avoid detection at safety cam sites was fatigue management related rather than speed related. He disagreed. He stated that the reason for its inclusion was partly because it predated the 2011 / 2012 period and because they had had incidents of that kind in the past and believed that the same could happen again (T2.3.2016, 55.19 - 56.13, Mr Borg XXN); 2. As to the contents of the Driver Manual in relation to deviating from one's set route (route assessments and trip plans), it was suggested to him that this did not deal with speed but, rather, road conditions for certain types of heavy vehicles. He disagreed. Consistent with the Defendants' policies and procedures, he stated that it dealt with both road conditions and speed. He gave an example that if a driver deviated on a route that took him into an area of operation of hilly, as opposed to flat, terrain, the potential for greater speed issues became apparent. If a vehicle was working harder to climb that terrain, there was an enhanced risk of it speeding down the other side. That, he said, was its correlation with speed. As he put it, it was "multi-faceted" (T2.3.2016, 56.15 - 57.4, Mr Borg XXN). This, I should add, captured the essence of the enlivenment of the Defendants' reasonable steps defence; 3. As to the contents of the Driver Manual in relation to driving habits (more particularly, the ineffectiveness of speed limiter devices to slow a heavy vehicle's speed on downward slopes), and extent to which that was a reasonable step in preventing speeding, it was suggested to him that the Defence had not called any evidence that, first, any of the 150 incidents of speeding were as a result of a downward slope contributing to the speed of the vehicle or, secondly, that the speed limiter device was ineffective for any of these 150 incidents of speeding. He agreed with the first proposition, adding that this did not, however, exclude the possibility that there were gradients that potentially contributed to these issues. He stated that it would have been a laborious task to attempt to do so, particularly given that most of the drivers from 2012 were no longer employed with the company and that to attempt to round up some 30 heavy vehicle drivers to testify to something of that description was probably whimsical at best (T2.3.2016, 57.44 - 63.29, Mr Borg XXN). More specifically, the frustration in Mr Borg's response to the prosecuting authority's excoriation of the Defendants' practices is laid bare in the following exchange, a matter which he had no difficulty conceding (T2.3.2016, 62.46 - 63.29, Mr Borg XXN): - "Q. In May 2012 you became aware via the court attendance notices of the nature of the case, and you made no attempts to obtain an account from the drivers as to whether slope contributed to an offence? A. I disagree with that because at the time my view on it was, it was something that was first and foremost in our mind that may possibly allow some room to move for us, given that it's probably safe to say that if you're travelling south on the Hume Highway from Goulburn it is downhill and there are cameras there, so there's certainly some obvious ones there where speed limiters are ineffectual, the - after fairly lengthy consideration from my end and considering the enormity of the task of assessing gradients and given locations regardless of the simplistic nature of the information provided in the CANs providing dates, time, vehicle registrations and so on, it was the enormity of trying to put something of that nature together at a time when this whole matter started we were dealing with a smear campaign in the media and inundated with media calls, inundated with customer issues and effectively still trying to manage our business and deal with this matter at the same time, I guess simply put, we just questioned whether we would get any value out of it and how would we put something of that nature together, given that we're talking about multiple locations around the State of New South Wales, I did in actual fact talk to one or two drivers involved and ask them about some specific sites that came up in relation to the CANs, in typical driver fashion they dismissed and said you do have to be a little bit careful in that area, you can get going a little bit quick, so I'm having conversations of that nature and thinking to myself is there any value in bringing 30 drivers to court to testify to something of that description that I think at the end of the day my simple view was that we would spend a lot of time and money and resources for probably not that great of an affect in terms of what evidence would be provided, now you could run the argument and say if you had done that it could create some definitive framework around the speed limiter argument, but the speed limiter argument in isolation again isn't the be all and end all, the vehicle speed being controlled, regardless of where the vehicle is operating at any given point in time on a particular section of road, again we're trying to isolate one particular item that we can hang our hat on. That is my view, that is the view that I took at the time your Honour as to why we didn't go down that path." The second proposition (that the Defence had not called any evidence that the speed limiter device was ineffective for any of the 150 incidents of speeding) was not pursued further in any meaningful way, nor did it elicit a response. It should be remembered, though, that in the report of Mr Philip Dunn (Automotive and Mechanical Engineer, Expert Report dated 9 November 2015, Ex.15), he opined that there were, at times, outside factors such as downhill travel which were unable to be controlled by the ECM, resulting in speeds greater than the set speed. In addition, his oral evidence, in part, was to the effect that if a heavy vehicle had a speed limiter device set at 100 km/h, it could still exceed such speed in a number of ways, including on a downhill grade; by selecting a neutral gear; by throwing the clutch on a manual transmission; or by a tail wind; 1. As to the proposition that there the Defendants had the ability to, but did not, use the ECM read-only option tool, in-house, to provide a read out of operating hours over a three to six month period so as to determine whether a driver was speeding over a period of time, he stated that looking at the read-only option of hours and kilometres on the ECMs was a fairly laborious process and needed to be cross-referenced to relative day / movement sheets from various operations staff. It was something, he said they looked at, when first introduced, to determine whether it was feasible to accurately track an incident at a given point, using such process. It was established at that point in time that it was technically possible but there were questions in relation to how effective it would be. Given the time and effort required, it was felt that such a labour intensive process was ineffectual and probably did not offer any real value. It was, as he put it, unachievable for the most part. He elaborated and explained the technical aspects of this methodology by adding that (T2.3.2016, 63.40 - 65.5, Mr Borg XXN): "… looking at an engine hour time, doesn't necessarily specifically take us to a given point in time, it tells us what hours an engine has done, so if we had a reading on Monday at 13,000 hours and by Wednesday it was 13, 227 and we looked a movement sheets and said this vehicle has done Melbourne, Sydney, Sydney, Melbourne and you know it's come back and done a Melbourne, Brisbane and operated for that period of hours then you could create effectively what we call a time and date stamp, it would allow us to say that vehicle was within a reasonable degree of accuracy at a given location at a given point in time, I think the manner in which I've explained it clearly highlights the level of detail and work involved in trying to look at 50 ECMs that for the most part are operating on highway not in a depot being able to be read or downloaded, that trying to use a system of that nature to the end that you're describing is for the most part unachievable, you would have to have vehicles coming in on a daily basis at a national level, being downloaded and reports printed off, a read-only option would not be enough information just to look at a screen, you would need to be recording very relevant levels of data to use a system of that nature to try and identify the location of a vehicle against a CAN that says a vehicle was doing 103 at 2am on 13 June 2011." [My emphasis underlined] The inference comfortably drawn from this evidence was that such an incomparable degree of daily inquiry was unfeasible and unrealistic and supplanted reasonableness in favour of superlativeness as the appropriate test. At such a high level, the Defendants' business would shift from goods transportation and be devoted almost solely to monitoring its heavy vehicles' ECMs; 1. The suggestion that Mr Borg's earlier evidence (that GPS technology was not introduced into the fleet until late 2012) was irreconcilable with the description in a Hartwigs invoice dated 30 March 2012 (MFI J, Tab 5.8, p.285) which stated "Test drive with GPS" was easily explained. He stated that the device referred to was a portable GPS unit used by the mechanical workshop to test calibration headings after workshop servicing. The vehicle in question was not a vehicle fitted with a GPS system owned by the Defendants (T3.3.2016, 2.19 - 2.46, Mr Borg XXN); 2. He readily conceded that the non-conformance reports shown to him in the witness box had not been used for speed compliance but, rather, mass management. He stated that he could not recall there being similar non-conformance report documents which specifically dealt with speeding. At that time, they were not aware of an enormous amount of speed report issues that needed addressing. Putting aside the documentary processes in place and referred to earlier, the underlying means by which such issues were typically dealt with was via a written report or in a verbal communicative manner as previously described. He did not agree that the non-conformance report template did not represent part of management's system for monitoring and dealing with speed. He emphasised the point that non-conformance reports were part of a system which addressed multiple purposes of non-conformance, not just ones confined to speed, weight, incidents, accidents and the like (T3.3.2016, 2.48 - 7.4, Mr Borg XXN); 3. As to the Defendants' disciplinary processes regarding speeding, he was taken to a number of three-strikes warning notices received from the RMS, some of which were within the offence period, some of which related to charge matters proper, some of which were not related to charges and some of which were accompanied by directives to have the speed limiter checked. Some incidents were due to driver behaviour (exceeding the speed limit applicable on that particular road but not the 100 km/h maximum applicable to all trucks) rather than speed limiter issues. Some may have been due to other explanations, such as the slope of the road. He stated that to the best of his knowledge, there was no specific amendment to the way speed was addressed based upon these documents in the 2013 evolutionary phase of the Driver Manual. He stated that the Manual already contained references to speeding. He was asked, as a result of management's notification of these incidents of speeding, whether the Defendants revisited or amended their induction or employment processes (such as reference checks and driving records). He stated that their documents were revisited on a constant basis, regardless of whether this was driven by a specific notification or otherwise. The documents were in a state of constant and continual evolution in respect of the environment in which they operated. He rejected the idea that every time an incident of speed came to their notice, they would need to rewrite the references to speed in the induction processes or company manuals, unless there was something very specific that was different to what they had seen in the past and which might have required a different methodology to deal with the issue. His scrupulous knowledge of the theoretical processes in place as well as possessing an astute street-level awareness of the industry was not lost on the Court. He stated that they were aware of the fact that drivers had often been intercepted and issued with a fine of some description and, given most drivers' modest financial means, would more often than not borrow money to pay fines. This spoke volumes because an awareness of this kind could never be addressed, in my view, by expressionless amendments in paragraphs within a Driver Manual. What was required, he reiterated, was a combination of written and verbal communications, as I understood it, tailored to be understood by each driver the subject of an incident of this kind (T3.3.2016, 7.40 - 17.6, Mr Borg XXN); 4. One of the most intriguing questions asked of him was "what number is enough?" It was also asked of him in another way: "What's the threshold for management in 2011 and 2012?" Given where they featured in cross-examination, I understood these questions to be inviting the witness to provide a view about how many incidents of speeding would management be notified of before it made changes to its Driver Manual, induction and employment processes and management's overall approach. His response illuminated one of the real problems with the basis on which the Prosecution sought to challenge the reasonableness of the Defendants' processes. The complete response is captured in the following exchange (T3.3.2016, 17.8 - 18.27, Mr Borg XXN): "Q. What number is enough? A. It's not a question of numbers it's a question of the nature of the incident. So is it an incident we're seeing that's different to what we've seen in the past that we haven't been aware of that requires a specific rewording to address something very specific, so for example, if we thought we were looking at something that okay there's a speed here that looks a bit abnormal, why is it? Is it a tampering issue, is it a driver issue, is there something specific about it, is it a particular driver? I think it's, I mean if we've got to rewrite the document every time we see the same process coming through I mean aren't we just repeating the same steps? Aren't we ultimately coming back to the same subject matter of how we manage speed and it's stated fairly clearly already that absolute maximum speed is 100 kilometres an hour, you know follow statutory speed limits, so if we refer to some of the examples you've used where they've been 15 kilometres over an 80 kilometre an hour zone, as you put it maybe a driver input, hasn't that not already been addressed in the documentation that you are to abide by signposted limits and maximum speed is 100 kilometres an hour. What need would there to be to rewrite or readdress the documentation as it stood? Q. What's the threshold for management in 2011 and 2012? A. There is no threshold. … Q. Is it correct that you say it would have to be something unusual to warrant changing the management's way of dealing with speed compliance? A. It would have to be something that we haven't seen previously and haven't dealt with previously to require rewriting a document. You can't imagine a situation, dream up a situation whereby you need to rewrite a document against information you've seen constantly that is consistent with information you've seen constantly that the documents have previously been written around to address the matter at question. Q. I'm not only, when I say revisit, in fairness to you I'm not only saying the rewriting of the document but management's overall approach, in other words, is your system working? A. Of course it is you're addressing, if we're seeing a notice of that nature come in, well we're aware that there's been a speeding issue of some description so if it's got a speed limit in fines first step is address that to deal with the vehicle, part of that first step is dealing with the driver, it's a-- Q. Well first thing is dealing with the vehicle as I understand it? A. Yeah well you've got to-- Q. I'm not suggesting you don't send them off-- A. --well you've got to get the vehicle home to a workshop or into a relevant workshop that's capable of performing the task first and foremost. Q. What about driver behaviour? A. Well again you're talking to the driver it's, as I've said previously, it is either going to be a verbal conversation, "Hey we've got a written warning here for you" which is dealt with by the likes of Benny Karafa(?) and depending on whether it is a situation where it's a driver that's had more than one then I think again as I've previously stated I would be involved to a lesser extent, my brother would be involved if I am not there being Grant Borg and any of - and/or all operation managers relevant state by state depending on where the driver is based, if he is out of Queensland and depending on his location at that given point in time. So in terms of changing the process - not too sure that changing the process is relevant, it is addressing the matter I think is what's relevant and that's what we've done. Q. Right? A. Is what we continue to do." The problem with the questions as posed was that they sought to impose a numerical threshold to the test of reasonableness, something which was entirely incongruent with the statutory regime and an operator's processes, satisfactory or otherwise. To some extent, the second question was broader and might have been an attempt to cure the difficulty with the first. Either way, these questions had the tendency to lead one to hypothesise about whether an operator was required to take steps which were reasonable but which may not have necessarily always achieved the desired result of preventing speeding conduct from occurring altogether or, alternatively, whether all steps taken by an operator were required not only to be reasonable but to also achieve the result of preventing speeding conduct from occurring completely, effectively reducing the individual incidents of excess speed down to zero (or some elusive threshold for that matter). The latter, as opposed to the former, left no scope for judicial moderation. 1. As an example of the line of questioning in which the Prosecution embarked at this point, he was taken to a Hartwigs invoice dated 12 May 2011 (MFI J, Tab 5.8, p.284) which indicated that a particular vehicle's rev parameters were out of the restriction limit. He readily conceded that as a result of this observation by Hartwigs, management had become aware that the operation of the speed limiter device had been affected by human intervention. This, having been considered a fairly severe breach of company policy, resulted in the vehicle being checked for tampering. He said that they had an awareness of the different means by which drivers or individuals outside of the business could alter ECM settings. In the present case, it appeared that someone had altered the chopper wheel setting on the gear box. He responded affirmatively to the question about whether management carried out any further investigations. He added that the driver would have been spoken to (most likely by Mr Bennie Karafa) and most likely received a written warning, but without seeing the specific document referring to it, was unable to confirm this. He rejected the Prosecution's assertion that management's response to this came as a response to a directive rather than as a response to routine maintenance. In fact the Prosecution appropriately conceded later that for two of the heavy vehicles the subject of inquiry, it was apparent that the maintenance records demonstrated detection of evidence of the need for adjustments to the speed limiter devices at a time when it did not relate to any directive or three-strikes warning, the inference being in favour of the Defence (T3.3.2016, 52.31 - 52.35, Mr Borg XXN). Indeed, he was questioned in the same vein about a number of charge and non-charge related events. In all of the instances where documentary evidence may have revealed tampering, he stated that the previously referred to actions (verbal and written warnings) would have been given. Notably, he frankly conceded that in relation to some of the documents shown to him in the witness box, there was no corresponding speed limiter check (or mechanical workshop invoice) for a particular heavy vehicle, on some occasions because the three-strikes notice was not accompanied by a template document for a speed limiter certificate check. He elaborated on why it may have been that a heavy vehicle might not have been sent for a speed limiter check. He stated that the decision may have been made that it was not necessarily required. What was more important, he said, is what was demonstrated previously with other invoices, that operational staff in the workshop at that point in time for that vehicle were conscious of an issue with a particular driver, the details of which he did not have with him in the witness box, and that this was being managed accordingly in line with the company policies regarding speed. It appeared to him from the documents he did have, that a fairly stringent process would have been followed where they would have passed the stage of third and final warnings, and entered the domain of termination of employment, if it was in fact the same driver across the various events and invoices (T3.3.2016, 18.29 - 32.32, Mr Borg XXN); 2. He was questioned about whether information regarding speeding, disclosed by mechanical workshops, would result in dismissal. He stated that, potentially, that would be the result (T3.3.2016, 26.1 - 26.2, Mr Borg XXN). On the issue of whether the integrity of their disciplinary system at that time was such as to expect corresponding warning letters or some sort of disciplinary action on the driver's file, he stated, relevantly, that they did not necessarily always need to terminate one's employment. Matters could be resolved by the "path of least resistance" for the driver in question. The documents shown to him in the witness box, which he stated were almost six years old, suggested to him that his operational staff would have zoomed in on an individual that had been creating an issue and that focus, one way or another, regardless of any file note or written warning, ultimately resulted in that driver no longer being employed with them. He stated that they may have made a note of some description to say that the driver left due to speeding or he may have been given a written warning. He was certain that he would have been spoken to on more than one occasion but without the benefit of the exact driver's details, he was unable to add more. He was aware, from his experience within the organisation (and perhaps unsurprisingly) of "how these individual operate once they're focused on." (T3.3.2016, 33.6 - 33.38, Mr Borg XXN). Much attention was devoted to the circumstances surrounding the termination of one's employment in instances where speeding was in issue. I queried whether an aspect of compliance with the reasonable steps defence was achieved (or, more correctly, best achieved) by the operator's dismissal of an employee. It became clear from Mr Borg's evidence that, documentary records aside, the cessation of one's employment in circumstances where speeding was an issue could have been the result of an employer initiated termination or an employee initiated resignation. In both cases, it was plausible that the cessation of their employment came about due to speeding. If the cessation of one's employment due to so significant a breach of company policy was the ultimate end to be arrived at, it was, in my opinion, inconsequential to focus on the means by which (or by whom) it was brought about; 3. He rejected the proposition that one could have a business practice, but that it may not, of itself, be a reasonable step to prevent speed. He stated that it would be pointless having a business practice that did not offer a reasonable step in the environment in which they operated. The whole point of having documentation, he said, was to create a reasonable step and to deal with issues that arose (T3.3.2016, 36.44 - 36.49, Mr Borg XXN); 4. He stated that one could have a business practice in place which had as its purpose something other than speed compliance, for example, fatigue, mass and loading. His evidence was replete with examples of documents relating to business practices addressing a variety of different factors within the industry (T3.3.2016, 37.4 - 37.8, Mr Borg XXN); and 5. He also rejected the idea that the mere existence of a business practice did not, of itself, mean it could only be for the purpose of speed compliance. He stated that there were specific documents related to speed for that very reason (T3.3.2016, 37.10 - 37.13, Mr Borg XXN). 1. In re-examination, a number of issues were clarified and brought greater perspective to the subject matter. The salient features of his re-examination were that: 1. Of the 30 drivers referred to in the spreadsheet of charges attributable to specific drivers (Ex.42) and the spreadsheet of the employment status of drivers (Ex.43), quite a number of them were the subject of only one or two charges (T3.3.2016, 38.14 - 38.19, Mr Borg RXN); 2. Some of the outcomes, after having become aware of a speeding driver, included verbal warnings and written warnings and often drivers would never come under notice for speeding again. Once management began to focus on a driver, particularly in cases where there was more than one incident, ultimately, in most cases (as he put it, "9 out of 10"), the driver would just leave his employment in a fairly undisruptive manner. Further, there were circumstances where individuals in the past may have had multiple offences but who were very experienced drivers and had been in the industry for a long time. In such cases, he said, management's view was that their overall driving experience far outweighed the smaller speed issues that had been highlighted, from the point of view that they did not have a history of accidents, were knowledgeable in load restraint, weight and practices of that nature and had very good driving records. These were individuals who had been driving heavy vehicles for 20 or 30 years, some even longer. He emphasised that this kind of knowledge and experience was not easy to replace and that these drivers were mature individuals within their organisation with whom they wanted to continue to work. It was drivers who did not have this level of experience or maturity with whom they were more forceful and decisive, particularly in their verbal communications (T3.3.2016, 38.21 - 39.34, Mr Borg RXN); 3. His testimony's denouement was such that I was left with the distinct impression that the Prosecution's paradigm of the ideal driver, or the exemplary operator, was not as easily achievable as suggested by the pointed criticisms elucidated in cross-examination. He illustrated his stance regarding the different outcomes by referring to one of the drivers (Mr Paul Raymond) in the spreadsheet. Mr Raymond was an individual, he said, who was very difficult to deal with, who did not want to adapt to the changing environment of the industry regarding speed and ultimately, following the termination of his employment, lodged a personal injury, back related complaint and WorkCover claim. These were some of the outcomes when operating a business of this kind (T3.3.2016, 39.34 - 39.43, Mr Borg RXN); 4. Aside from the DPRs (MFIs AS - AY) which called for the production of a significant amount of documents, the Defendants had received further DPRs in April 2012 which required the production of a large amount of additional documents within two to six days thereafter, and to which the Defendants responded to the best of their ability (T3.3.2016, 44.34 - 45.12, Mr Borg RXN); 5. Given the magnitude of the organisation, he had an intimate knowledge of his drivers, so much so that when he was questioned about individual drivers' names, he was able to say that Mr Stewart's employment "finished", relative to speed, based on the documents presented to him in the witness box and that this would have come about "by design." Mr Shandley's name stood out to him. He was one of the drivers who had numerous incidents relating to speeding and in respect of whom both operations and Mr Borg "zoomed in on". The cessation of his employment, he said, was of his own volition due to the focus from management at both an operational level and on his direction as part of senior management. His recollection was that he himself may have even spoken to him directly at that time. Mr Cole, Mr Lincoln and Mr Warren all drove the same vehicle in respect of which there was some evidence of speed limiter tampering. He described these individuals as being "very much in the same vein as … Mr Shandley" and that Mr Lincoln (who, he was able to recall, was from the same town as Mr Shandley), was "another serial pest when it came to speed" and whom he described as being of "poor character" in a number of different respects. He too was "zoomed in on", both at an operational level and at senior management level and that this resulted in him "leaving the employment of the operation" (T3.3.2016, 46.44 - 50.41, Mr Borg RXN); and 6. Over and above the regulatory matters the subject of these proceedings, the commercial tact required to run an operation of the kind described was not lost on the Court. The apogee of his evidence was that his organisation abided by its own "three-strikes and you're out" policy and that drivers would regularly leave the company through a process of attrition, centred, as I understood it, on speed and other non-compliance. He was asked to give some insight about how long such a process ordinarily took. His response was meaningful. In difficult instances, it could be a matter of weeks, and even up to eight weeks, potentially. It required managerial pressure and focus on the individual and the particular issue at hand. It required an establishment of a reasonable amount of documentary evidence, such as Hartwigs invoices and the like. It had to be managed in an appropriate manner to achieve the desired outcome. It often took longer than he would have liked but he found that, to date, this had been the most effective manner they were able to implement to deal with the types of issues raised in the proceedings (T3.3.2016, 51.1 - 51.46, Mr Borg RXN). Consideration 1. The evidence of Ms Turner (and to a lesser degree, Mr Dunn, but only because his evidence was confined to an after-the-fact evaluation of the Defendants' processes) afforded an opportunity for great insight to be obtained in relation to the internal workings of the heavy vehicle industry. Her evidence corroborated the testimony given by Mr Borg, particularly on the issue of the multi-faceted measures in place at the relevant time. She impressed me as a detached and honest witness, whose business relationship as an external consultant with the Defendants neither clouded her judgment nor stigmatised her sense of balance. She was, quite properly, dispassionate in the account she gave and had no hesitation illuminating the areas where she felt the Defendants' systems might have been lacking. Indeed, she did so in such a candid manner, including by revealing her frustrations as to why she felt she could no longer do work for the Defendants. This allowed the Court to focus on the purported deficiencies in the Defendants' practices and to evaluate their adequacy as part of the wider picture. Her account evoked a confidence and reliability, especially when speaking of the ultimate goal sought to be achieved, to remove any commercial imperatives that might contribute to speed, fostering an atmosphere of open communication between drivers and operational management and highlighting the importance of driver and managerial awareness when dealing with speed. True it is that there was, at times, an exiguousness of evidence substantiating the steps taken by the Defendants to address non-conformances. This, however, was offset by the persistent, adaptive endeavours engaged by the Defendants on a number of fronts, incorporating statutory observance and pragmatic outcomes. 2. Much of the Defence case rested on the evidence of Mr Borg. I found his evidence to be most compelling. He was resolute, forthright and possessed of a reliability which joined issue with so much of the documentary evidence placed before him, often dating back some five years. He was rational and responsive in the version he gave. His account was truthful and methodical, and there was an overarching plausibility when considered against the reality (and commerciality) of the industry in which the Defendants operated. He did not hesitate making appropriate concessions against his own interests and the interests of the Defendants as a whole. I did not gain the impression that he overstated his position for any material gain. The evidence he gave highlighted the difficulties in navigating one's way through the regulatory strictures within industry and non-industry frameworks. The evidence stood up to the attempted impugnment in cross-examination. There was nothing temeritous about the business practices he described in dealing with the issues which arose, whether they were related to speed or other heavy vehicle safety measures. I had no hesitation accepting his evidence to the extent that it supported the assertion that the five corporate defendants did not know (and could not reasonably be expected to have known) of the conduct that constituted the offences which underpinned the prosecution brought in this Court and took all reasonable steps to prevent such conduct from occurring. Equally, I was satisfied that his evidence sufficiently buoyed the notion that the three individual defendants, in their capacity as directors concerned in the management of the bodies corporate, took reasonable precautions and exercised due diligence to prevent the commission of the actual offences the subject of these proceedings. I found him to be a persuasive and credible witness, whose evidence attracted substantial weight. 3. Considering the emphasis placed almost solely on speeding, and from a statutory framework perspective, it is noted that none of the charges were brought pursuant to cl.162 RT(G)Reg, (which dealt with the duty of operators and others in the chain of responsibility) to assess and manage, specifically, the risk of speeding, and which contained its own offence and statutory defence provisions in sub-clauses (2) and (3). This in no way serves as a denigration of the prosecutorial discretion to prefer the charges it did pursue, but simply to highlight the tenor of the Prosecution's case and its eerie correlation to many of the specific duties referred to in cl.162, namely, identifying and assessing matters which may cause a driver to exceed a speed limit; identifying and assessing the risks which may cause a driver to exceed a speed limit; the measures one may take to eliminate or control the risk; carrying out such identification and assessment at least annually and after each event that indicated the way the activities were being carried out which may have caused a driver to exceed the speed limit; taking necessary measures to eliminate or control the risk; and documenting (and retaining such documentation for a specified period of time) the actions taken to address these matters. 4. It is common knowledge within the community that there are often heavy vehicle, road related accidents attributable to speed, fatigue and other safety transgressions. It may have been that the genesis of the regulator's investigations was warranted by virtue of road tragedies which temporally preceded the events the subject of the present prosecution and which involved other prominent corporate operators within the heavy vehicle industry. This, however, was not a prosecution which arose from any speed related catastrophe within the Defendants' own organisation, although, it was evident that there was a regulator-driven push to test the legitimacy of the policies, practices and procedures to address the reasonableness or otherwise of the steps in place to ensure offences were not committed. 5. Speeding, mass, loading, fatigue and other elements of safety were all intertwined. The nature of the multiple risks which the Defendants sought to address was something which they had been doing for years before the institution of these proceedings. There was no evidence of any disaster befalling the Defendants which was connected with speed, although this, of itself, was not determinative. Nor was this observation trivialising the seriousness of speed as an important industry issue. The harm which would have eventuated had the Defendants' practices been superficial, haphazard, illusory or non-existent for that matter was real and genuine, particularly in the event of a loss of life. The Defendants' multi-faceted training programs, induction processes, manuals, newsletters, trip plans, work diaries, job safety analyses, ECM and speed limiter checks, verbal communications, written warnings dismissals, reactive and proactive maintenance measures, the actioning of complaints (in one case, as quickly as 40 minutes after it came to light), were all tailored in such a way as to join issue with a driver's educational abilities and industry experience, and kept, in my view, any risk which might have eventuated within tolerable bounds. They were not only appropriate for the corporate environment in which the Defendants operated, but also relevantly attuned to the end sought to be achieved. For a substantial part of the years preceding and following these events, the Defendants had engaged external competence in the form of a heavy vehicle auditor / consultant with appropriate industry experience and accreditation. I was not left with any impression that the Defendants were frugal in their commitment to minimising the likelihood of risks, such as those to which I have referred, from eventuating. These, after all, were matters which the Court was permitted to (and did) consider, pursuant to cl.165 RT(G)Reg, in deciding whether the practices adopted by the Defendants were indicative of reasonableness, a conclusion at which the Court satisfactorily arrived. 6. Having touched upon risk management strategies, it is worthwhile to make some observation of the regulator's position. Much of Mr Palfrey's evidence was directed to the investigative chain of documents with a view to instituting these proceedings. However, he was also cross-examined robustly on the issue of what measures he believed, given his role as RMS Investigator in the area of heavy vehicle regulation, an operator might take so that its risk could be measured, reduced, eliminated, controlled or managed. For the most part, his responses were sound and carried merit, that is, that such strategies were a matter for each individual operator. It was not a matter for the RMS, as an executive statutory instrumentality, to prescribe the precise manner by which compliance with the road transport legislation is to be achieved. However, whatever measures an operator did adopt would be the subject of scrutiny, especially in circumstances where there were, at least from the view of the RMS, a significant number of speeding infractions within a relatively short period of time across a number of vehicles and spread geographically across roads all over the state. A salient feature of his evidence was the plethora of information, guides and standards which were available from a number of sources, on which the Defendants could have relied to discharge their duties under the statutory provisions pursuant to which the charges were preferred. 7. In order to better understand the determination which the Court was called upon to make, one must look not only to the specific offence or statutory defence provisions but, rather, the pertinent legislative framework within which the chain of responsibility principles operate. It is this backdrop against which the Defendants' actions are to be assessed in determining their sufficiency in surmounting the rather elusive hurdle of "reasonableness". There is no bright line test, nor is there a homogeneity in approach which renders the actions of different heavy vehicle operators (and others elsewhere along the chain of responsibility spectrum) reasonable and, therefore, exculpatory at law. What might constitute reasonable steps in the case of one organisation might not be considered reasonable in the case of another. 8. Moreover, whilst the views of the prosecuting authority or an expert engaged by a party might assist to inform discussion on the issues, they are not determinative nor do they supplant the views of the Court, as the tribunal of fact, engaging in a proper evaluation of the entirety of the evidence and practices of the Defendants in the present circumstances. The Court is required to make a value judgment as to "reasonableness" without, I hasten to add, trivialising or conflating the remaining conjunctive or disjunctive, as the case may be, legislative elements in the provisions cited above, of which I am acutely cognisant. 9. The reasonable steps taken and due diligence exercised need not be entirely successful in eliminating the conduct that constituted the offence. Instead, in some respects what is required, from an objective perspective, are reasonable steps which are targeted towards preventing the conduct in order to achieve statutory compliance. The fact that the evaluative exercise in determining reasonableness, for the purposes of establishing the statutory defences, operates in an atmosphere where strict liability governs the individual offence provisions to which the statutory defences are respectively linked, does not raise the bar which the Defendants must surmount in order to succeed. 10. Each of the measures adopted by the Defendants, when considered alone, might have been insufficient to make out the reasonable steps defence but, when viewed collectively in my view, demonstrate on the balance of probabilities a sufficiency and reasonableness in the steps, precautions and due diligence taken and exercised to prevent the commission of actual offences and conduct. It was suggested by the Prosecution that it was not the evidence of any Defence witnesses that they were sufficient collectively. That was not, in my view, an accurate description of the evidence, which is summarised above in detail. Whilst the Defence cast some of its questions (eliciting complementary responses) in a way which was indicative of the individual measures adopted being collectively, as opposed to singularly, effective to make out the reasonable steps defence, not all of its questions were cast this way. Some were cast more generally. This approach, however, was not detrimental to its case, nor was it damaging to the satisfactory discharge of its evidentiary onus. In part, so much is made clear from the following exchange with both counsel (T2.3.2016, 60.38 - 61.10, Mr Borg XXN): - "HIGGINS: Your Honour invited counsel for the defence to explore this issue of whether they were individually prevent speed or collectively. That wasn't taken up. HIS HONOUR: Yes. That doesn't mean that that's not a task I need to juggle at some stage. HIGGINS: It may not - sorry, your Honour is correct obviously, but it then becomes an evidentiary issue about - well your Honour may wish to grapple with whether or not collectively they are, but it's not the evidence of any defence witness that they were. MARTIN: Isn't that a matter for argument rather than..(not transcribable).. HIS HONOUR: I think Dr Martin's right, I can only make the determination ultimately on the evidence I have before me. I can believe, because they're criminal proceedings, I can believe some or all of what a witness has to say - all the usual cautionary criminal trial directions that are given to a jury, a tribunal of fact. I can apportion weight to some things but not to others. I can quarantine some matters, I can perform the balancing exercise collectively. I expect that you're going to make submissions as well Dr Martin on these issues? MARTIN: Yes." 1. I was not taken by either party to any rule or principle which suggested that this approach was anything but appropriate. 2. The fact that the offences are strict liability in nature does not necessarily mean that compliance via the means provided for in the statutory defences is unattainable. In my view, it must have been envisioned by Parliament that, in enacting the sections using the phraseology outlined in both the offence and statutory defence provisions, the flexibility in the steps available to prove compliance was of such wide berth. It is the widely encompassing means by which reasonable steps, collectively even if not singularly, may be proved, coupled with the non-exhaustive and unconstrained factors the Court is permitted to take into account under cl.165 RT(G)Reg as part of the determination process, which amply justify this view. Unlike the multitude of other offences dealing with heavy vehicle speeding compliance within the same legislation and which the legislature saw it fit to include a comprehensive list of examples of reasonable steps that could be taken to discharge one's obligations, no such examples are provided within the offence provisions the subject of these proceedings. 3. Further, the object of the legislation, outlined in cl.151 RT(G)Reg, in the context of the offence provisions (the subject of these proceedings) forming but three of the many provisions within the statutory framework regarding heavy vehicle speeding compliance, ought not be overlooked. The overriding object is to improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of such vehicles. To give effect to the purpose of this object, the legislation operates so as to require those who are mostly directly responsible for the operation of a heavy vehicle, including operators, schedulers, loading managers and consignors, to take reasonable steps to ensure that their activities do not cause drivers to exceed speed limits. I am persuaded to the view, to the extent that a finding of fact, on balance, might be required, that nothing articulated in the evidence adduced in support of the statutory defences suggested a culture of unsafe or dangerous heavy vehicle practices within the Defendants' organisations. I am acutely aware, though, of the need for circumspection to avoid misdirecting myself regarding the onus of proof and any potential conflation of peripheral matters in the statutory framework within which the relevant offence provisions operate. 4. The statutory objects within which the Defendants were required to operate were not part of some best practice or Australian Standard accreditation scheme. Nor were they part of some international certification scheme implemented by a body such as the International Organisation for Standardisation, which creates and maintains ISO quality management standards. One thing that emerged from the evidence was that overseeing speed was not to be considered in a vacuum but, rather, something to be viewed globally. More particularly, the operator's policies and procedures were continually evolving to suit and adapt to the changing legislative and operational landscapes. The Court was not involved in an inquest in which inquisitorial powers and resultant findings and recommendations were to be made on the urging of a government instrumentality assisting. 5. Whilst there were some shortcomings in the Defendants' corporate processes, they were not, in my opinion, fatal to their case. The legislation did not impose such undue strictures as to prevent the policies and procedures indicative of reasonable steps from evolving within the corporate and industry atmosphere in which the Defendants operated. To suggest otherwise would involve so inflexible an approach as to leave the Court, as the objective trier of fact, with little work to do. 6. A reference to the matters outlined above might, at first glance, appear as though the Court has engaged in an impermissible, industry-based, globalised consideration of the issues, leading to the conclusion that there may have been a failure to take into account individual relevant considerations (or may have taken into account individual irrelevant considerations). However, I am firmly of the view that, from an overall perspective, the creation and cultivation of the culture of policies and procedures in place was a synthesis of proactivity in some respects and prevention in others and, joining issue with the Defence's contention, pragmatically focused on the direct causative components of speeding. Indeed, the Prosecution itself conceded that there may be an overlap between business practices and reasonable steps, such that a business practice may be a reasonable step if it would tend to prevent speeding in a real, as opposed to fanciful, way. In my opinion, nothing advanced by the Defendants was suggestive of fancifulness, even if the strategies adopted in meeting their statutory obligations were evolving and not, at all times, completely free of criticism. The Court was left with the distinct impression that the bar which the RMS sought to impose (or more correctly, which the RMS contended the legislature sought to impose), as to the issue of awareness and reasonable steps, was directed to eliminatory ends rather than precautionary ones. Such legally utopic aspirations were neither warranted by the statute, nor envisaged. After all, it was not just the Defendants whose practices were evolving according to the backdrop to which reference has been made. The legislation itself evolved, before and since the incidents the subject of these proceedings. One could only conclude that such evolution must have been based upon industry studies, consultation, inquiries, cross-border strategic engagement and harmonisation, and updated safety and regulatory priorities. It is advancements such as these which provide, after all, the impetus for legislative change, with which operators continually integrate to achieve compliance and the overarching objects intended by the legislature. Conclusion 1. For these reasons, whilst the Prosecution has proved, beyond reasonable doubt, the said speeding offences pursuant to cl.156(3) RT(G)Reg and the commission by the relevant Defendant bodies corporate of offences under the road transport legislation and, therefore, the commission by each director of the Defendant bodies corporate, and those persons concerned in the management of the respective bodies corporate, pursuant to s.178(1) RT(G)Act, I am satisfied that the Defendants have proved, on the balance of probabilities: (1) the statutory defence in cl.156(6) RT(G)Reg (duty of operators to ensure speeding offences are not committed), having established that: - (a) the Defendants did not know, and could not reasonably be expected to have known, of the conduct that constituted the offences; and (b) the Defendants took all reasonable steps to prevent that conduct from occurring. (2) the statutory defence in s.178(7) RT(G)Act (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees), having established that the Defendants, being in a position to influence the conduct of the bodies corporate in relation to the actual offences, took reasonable precautions and exercised due diligence to prevent the commission of the actual offences. 1. Lest there be any doubt, I am not satisfied that the Prosecution has negatived or disproved, to the requisite criminal standard, beyond reasonable doubt, the existence of the facts proffered by the Defence to found the statutory defences on which it successfully relied. Orders 1. I make the following orders: - (1) Enter verdicts of not guilty in relation to, and dismiss, all charges brought pursuant to cl.156(3) Road Transport (General) Regulation 2005 (NSW) (duty of operators to ensure speeding offences are not committed) and s.178(1) Road Transport (General) Act 2005 (NSW) (liability of directors and those concerned in the management of a body corporate for offences by the body corporate and employees). (2) Enter verdicts of not guilty in relation to, and dismiss, the following charges, there being insufficient evidence to establish the element of operator control and direction, beyond reasonable doubt. Seq No. JL Case No. 18 2012/168266 8 2012/174767 45 2012/173364 6 2012/177268 (3) Accept the pleas of guilty entered by the Fifth Defendant, as operator, in relation to the following four charges brought pursuant to s.69C(1) Road Transport (Safety and Traffic Management) Act 1999 (NSW). A sentence date is to be fixed. Seq No. JL Case No. 1 2012/174416 2 2012/174416 3 2012/174416 4 2012/174416 (4) The following 20 charges are withdrawn and dismissed. Seq No. JL Case No. 1 2012/174445 5 2012/174518 9 2012/168266 30 2012/168769 13 2012/168266 24 2012/168769 38 2012/168769 23 2012/168769 5 2012/168266 9 2012/174767 3 2012/174767 5 2012/176707 22 2012/173227 29 2012/173227 35 2012/173227 12 2012/177268 9 2012/177268 4 2012/175997 4 2012/176093 41 2012/169866 ********** RMS v Dranmore Annexure A FINAL Spreadsheet ####### (35.2 KB, xlsx) Amendments 28 February 2018 - Minor amendments to formatting errors throughout decision 01 March 2018 - Further minor amendments to correct formatting errors throughout decision Corrected reference to 'Road Transport (Vehicle and Driver Management) Regulation 2005 (NSW) (Repealed)' and subsequent abbreviated references to 'RT(V&DM)Reg'; replaced with 'Road Transport (General) Regulation 2005 (NSW) (Repealed)' and 'RT(G)Reg'. 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: 01 March 2018