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In hot pursuit: When is the National Heavy Vehicle Regulator likely to pursue charges?

21 April 2021

#Transport, Shipping & Logistics

Published by:

Melanie Long

In hot pursuit: When is the National Heavy Vehicle Regulator likely to pursue charges?

The National Heavy Vehicle Regulator (NHVR) has a number of tools in its tool belt when it comes to enforcing the Heavy Vehicle National Law (HVNL). One of these is the bringing and conducting of proceedings. But that does not mean that the NHVR will pursue proceedings against every individual or company that contravenes or is suspected of contravening the HVNL. So, when will it pursue charges? 

This article answers this question and gives a recent example of a case where the NHVR prosecuted a truck driver and a transport company for breaches of the HVNL. 

When to prosecute?

Whether the NHVR will prosecute is guided by the NHVR’s Prosecution Policy (which you can find here) and the Prosecution Policy of the Commonwealth (available here). Factors the NHVR will take into account when deciding whether to pursue proceedings include, but are not limited to:

  • resources available for worthy cases
  • the impact that the prosecution will have in changing the accused’s conduct, penalising offenders and deterring future offenders
  • whether there are reasonable prospects of conviction based on an assessment of admissible, substantial and reliable evidence that the accused committed the offence
  • whether there is a public interest in prosecution. This arises from that the fact that the NHVR is a public agency
  • the seriousness of the offending behaviour with priority to cases involving fatalities, serious injury or high safety risks
  • whether the offending behaviour is serious enough to elevate it to a Chapter 1A (of the HVNL) offence which covers conduct that breaches a primary duty and carries much higher penalties.

In addition to the seriousness of the offending behaviour, the NHVR will also give priority to cases that involve a failure to comply with an enforcement mechanism under the HVNL, such as an enforceable undertaking, interfering with the duties of or impersonating an authorised officer (such as a policeman), as well as offences where there is discrimination against or victimisation of employees.

Who to prosecute? 

A number of parties in the Chain of Responsibility (from individual drivers to executives and the company themselves) can commit an offence arising out of the same incident. However, the NHVR’s prosecution policy provides that it targets those that are primarily responsible for the alleged offence in its prosecutions.

A recent example of when the NHVR decided to persecute: NHVR v Mounce [2020] SASC 91

In this case, the NHVR pursued legal proceedings against the truck driver, Shane Mounce, and his employer, an Adelaide-based trucking company (Company), after Mr Mounce was involved in a collision with another vehicle. The occupants of the other vehicle were two elderly passengers who suffered injuries and were airlifted to the hospital. Following the collision, the police investigation revealed that a major contributing factor to the accident was fatigue on the part of Mr Mounce. 

Additionally, it was revealed that the trucks operated by the Company were fitted with a GPS and GPS data and so the Company had data at their fingertips that could have alerted it to the breaches of the HVNL fatigue provisions being committed by Mr Mounce. As a result of the collision, the Company was charged with two offences and Mr Mounce with 12 offences against the HVNL. Both the Company and Mr Mounce were convicted and ordered to pay fines.

Breaking this case down, we can see the HVNL’s prosecution policy in action. Here, there were two defendants, Mr Mounce and the Company, both of which can be said to have been primarily responsible for the collision. Additionally, the collision led to the serious injury of the occupants of the other vehicle and so can be described as a “priority case” for the NHVR. 

Mr Mounce also committed 12 offences of the HVNL some of which were “critical risk breaches”, being the most serious category for fatigue offences. Additionally, aggravating features of the case included that the evidence showed that Mr Mounce had driven 20 hours in a 24-hour period during the offending period and that he attempted to lie to avoid detection. 

Finally, in addition to being a primary contributor to the contraventions of the HVNL, the Company’s failure to use the tools available to them to check whether its drivers were complying with the HVNL was clearly a factor that influenced the NHVR decision to prosecute the Company as well as Mr Mounce.

In light of the above, it is not hard to see why the NHVR considered this a worthy case for prosecution and one that could be used as a model case to deter similar conduct in the future.

Takeaways  

  • The NHVR will prosecute following the consideration of a number of factors.
  • Prosecution priority will be given to serious offences, those that interfere with the compliance of NHVR enforcement mechanisms or the exercise of an authorised officers duties, involve the impersonation of an authorised officer, or the discrimination or victimisation of employees.
  • Those that are primarily responsible for an alleged contravention are targeted by the NHVR.
  • NHVR v Mouse [2020] SASC 91 is an example of a case where the NHVR decided to prosecute a truck driver and his employer arising out of a collision because of the numerous and serious offences which arose as a result and the public utility the case had for the deterrence of similar conduct in future.

Author: Melaine Long

  • This article was originally published in CoR Adviser. The article is © 2020 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Melanie Long

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