Judges underline that one section doesn’t cancel another
A challenge a judge’s refusal to allow a question of law for determination by the Court of Criminal Appeal (CCA) in an unsafe heavy vehicle case sheds light on how courts view the interaction of sections in the Heavy Vehicle National Law (HVNL).
According to a ruling by the CCA sitting in the Supreme Court of NSW, the company involved, Mack Fleet Pty Ltd, was convicted in the Local Court on February 21, 2019, on one count of using or permitting to be used a heavy vehicle that was unsafe, in contravention of HVNL s 89(1).
Mack Fleet appealed in the District Court against its conviction but that was dismissed last August 6.
That judgment is not appealed but, on September 11, outside the 28 day appeals limitation period, the company requested the judge to submit a question of law to the CCA. This was also refused was unconvinced it raised a question of law. From there, a judicial review was granted.
Read about the NTC’s HVNL review impact statement, here
While much of the CCA judgement centres on the law around court procedure, the three judges went on to address the company’s case.
Though the brakes of the truck in question were found to be 20-25 per cent less effective than they legally should be, the company argues there are differences between section 89(1), where the offence is the “use … on a road [of] a heavy vehicle that is unsafe” and section 89(2) which says that a heavy vehicle is unsafe “only if the condition of the vehicle, or any of its components or equipment” makes the use of the vehicle unsafe or endangers public safety.
It points out that there is a separate offence under the HVNL, section 60(1), of using a heavy vehicle that contravenes a heavy vehicle standard applying to the vehicle.
“If breach of a heavy vehicle standard necessarily meant that the use of the vehicle would be unsafe, and therefore also be a breach of s 89, then s 60 would be redundant,” the company argues.
“Ordinary principles of statutory construction require that a different scope be given to the two sections, so as to avoid one section being superfluous.”
But the court is adamant that this path leads to a dead end, which is why leave to raise a question of law is refused.
“There is no principle of statutory construction which would require the interpretation of statutory offences as all independent and self-contained,” the judgement states.
“Everyday experience in relation to criminal offences denies that possibility.
“Even the principle against double punishment constitutes an acknowledgment that a person may be charged and convicted for two offences involving the same conduct.
“In any event, s 60 and s 89 involve different concepts and are therefore in principle discrete provisions which can have differential operation.
“Although the standards appear to an inexpert eye to be comprehensive, there may be aspects of vehicles which could render them unsafe to use without contravening a particular standard.
“The drafter may well have assumed such a possibility and made allowance for it. In any event, there is no principle of statutory construction which requires that unsafeness may not be judged according to compliance or contravention of a standard.”