Guilty plea on four speed limiter non-compliance items but safety regime holds sway
Six years after facing raids and a “plethora” of charges in New South Wales, Fred’s Interstate Transport Group has seen most of them dismissed or withdrawn.
In all, there were 217 charges comprising 157 alleged speeding charges brought against corporate entities and 60 derivative liability offences brought against three directors, the decision reads.
The Borg-family controlled group’s five companies had been caught up in a series of Roads and Maritime Services (RMS) and police actions in 2012 that saw a series of high-profile and, in some cases, controversial prosecutions ensue involving NSW, South Australian and Victorian companies.
The ruling by Magistrate Theo Tsavdaridis on October 4 is contained in a ruling from the Local Court, from which publication is rare and, a court official tells ATN, often late.
The result is that:
- all charges related to the duty of operators to ensure speeding offences are not committed and of liability of directors and managers for offences by an enterprise and employees were dismissed
- four charges were found to have insufficient evidence to establish the element of operator control and direction, beyond reasonable doubt.
- 20 other specific charges were withdrawn and dismissed.
- four ‘strict liability’ charges related to non-compliant speed limiters, “where the Road Transport (Safety and Traffic Management) Act prescribes a speed of more than 115 km/h as admissible and prima facie evidence”, were pleaded guilty to.
All were for alleged violations of legislation that have since been repealed and they were criminal charges attracting the need for charges to be proven beyond reasonable doubt.
The magistrate notes that, though the prosecution was focused on provisions of the Road Transport Act other than the section dealing with Chain Of Responsibility (COR) matters in relation to speeding drivers, there was an “eerie correlation” to many of the specific duties (and statutory defences) were involved with the provisions the RMS did use in prosecution.
These duties include , “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 speed; the measures [managers] 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 the speeding; 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”.
The magistrate found there were two fundamental issues in the case — the RMS speeding detection devices and the steps Fred’s group management took to reduce the risk of its drivers’ speeding.
But a significant section of the judgement relates to evidence on of speed limiters to the amount of work a truck repairer did to correct speed limiters in trucks run by Fred’s, situations in which limiters are ineffective and the limiters’ vulnerability to tampering.
The speed limiter and electronic computer management (ECM) repair spreadsheet for the two year span of the speeding, 2011-2012, ran to 59 pages.
It was stated that the number of ways speed limiters can be interfered with runs to more than 200.
Meanwhile, the depth of detailed evidence from a heavy vehicle auditor/consultant on the company’s safety regime before and during her employment there and the “resolute” and “forthright” evidence of Fred’s MD Danny Borg made a clear impression on the magistrate, particularly in what management could have known about the amount of speeding given authorities had made limited efforts to inform the company.
The magistrate says: “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;[sic]”.
The sentencing was yet to be concluded at the time of the judgement and its delay was in part due to a failed 2014 effort in the Supreme Court of NSW to have the charges struck out.
The full judgement can be found here.