Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176 Hearing dates: 24 July 2019 Decision date: 02 August 2019 Before: Gleeson JA at [1] Johnson J at [49] Price J at [50] Decision: (1) The questions submitted to this Court by Lerve DCJ are answered as follows:

"1. Do the facts as found by me enable me to conclude beyond reasonable doubt that the load could be dislodged by mild lateral force?

Inappropriate to answer.

2. Could these facts support a finding of guilt for an offence contrary to s 111(1)(b) of the Heavy Vehicle National Law (NSW), in particular:

(i) does "contained" as that word is used in the Load Restraint Guide 2004;

(ii) mean "tightly packed to prevent horizontal movement"; and

(iii) if the load was contained within the tipper truck, did the Heavy Vehicle National Law (NSW) require that the load also be otherwise restrained?

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

A load prevented from dislodging from the vehicle by the vehicle structure, gates, sides, racks, headboards, stanchions etc or other parts of the load.

As to sub-question (iii):

Inappropriate to answer."

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

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