Director of Public Prosecutions (NSW) v Hammoud [2006] NSWSC 562

New South Wales Supreme Court

CITATION : Director of Public Prosecutions (NSW) v Hammoud [2006] NSWSC 562

HEARING DATE(S) : 8 May 2006

JUDGMENT DATE : 8 May 2006

JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

DECISION : 1. Set aside order made in the Local Court dismissing the proceedings; 2. Remit proceedings back to the Local Court to be dealt with according to law; 3. Make no order as to costs

CATCHWORDS : APPEAL AGAINST ORDER OF THE LOCAL COURT - driving in a manner dangerous - failure to give name and address of driver - responsibility of prosecutor to assist magistrate to an understanding of the appropriate law - an error of law

Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Road Transport (Safety and Traffic Management) Act 1999 Road Transport (Genral) Act 1999

Jacob v Gardland [1974] RTR 40 CASES CITED : Pulton v Leader [1949] 2 All ER 747 R v Davis [1976] 1 NSWLR 84

PARTIES : Director of Public Prosecutions (Pltf) Hassan Hammoud (Def)

FILE NUMBER(S) : SC 11094/06

COUNSEL : Dr P Power SC (Pltf) no appearance for def)

SOLICITORS : Director of Public Prosecutions (NSW) (Pltf) no appearance for def

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Still

LOWER COURT DATE OF DECISION : 10 November 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

MONDAY 8 MAY 2006

2006/11094 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v HAMMOUD

JUDGMENT – appeal against order made by Local Court 1 HIS HONOUR: This is an appeal brought by the Director of Public Prosecutions pursuant to s 56(1)(b) of the Crimes (Local Courts Appeal and Review) Act of 2001. That section provides for an appeal against an order made by a Local Court dismissing a matter the subject of any summary proceedings but only on a ground that involves a question of law alone. 2 The respondent to the proceedings has been served but does not appear. On 5 August 2005 he was observed by police initially as a passenger in a motor vehicle registration number WBA-711. He is the registered owner of that vehicle. The police observed the vehicle tailgating other vehicles in a manner which caused it to come to their attention and then to proceed through an orange light when the police, in their judgment, believed the vehicle should have been able to stop. The police activated warning devices seeking to have the vehicle stop. The police gave evidence that after they had done this the passenger and driver of the vehicle changed places before the vehicle did a left-hand turn and came to a halt. 3 When the police sought to restrain the driver and passenger they were only able to restrain the driver, who is the respondent in these proceedings, but the passenger, who the police had observed previously driving the vehicle, escaped. He is not known to the police and without evidence as to his identity the police have not been able to bring charges against him. 4 The respondent was charged and convicted of the offence of failing to wear a seatbelt. In those proceedings he was also charged with failing, when required to do so, to give information as to the name and home address of the driver of the vehicle who was alleged to have committed an offence. 5 The offence alleged in the Court Attendance Notice was driving in a manner dangerous under the road transport legislation which is an offence contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999. The offence with which the defendant was charged was a breach of s 21(1)(a) of the Road Transport (General) Act 1999. That section provides: "If the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation: (a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver". 6 In the present case there is no question but that the respondent was the responsible person for the vehicle and had custody of it. He was the registered owner and at the time that the police ultimately intercepted the vehicle he was in the driver's seat. 7 The evidence and resolution of the matter by the Magistrate is not entirely clear. This is no doubt due to the fact that the Magistrate was dealing with more than one offence and the dialogue between the Bench and the Prosecutor makes it difficult to determine with precision the evidence which was given and how that evidence was treated by the Magistrate. 8 However, some of the evidence is clear. The respondent, after failing to answer police questions in relation to the identity of the person who had escaped from the vehicle, was arrested and participated in an ERISP. During the course of that questioning he was asked the following question: "OK. All right. What I need to do, I'm going to ask you a question about this and I'll just get the exact wording for you so I don't muck it up. OK. It is alleged that at about 8.30pm on Friday, the 5th of August 2005 the driver of motor vehicle registered number WBA-711 was guilty of an offence under the Road Transport (Safety and Traffic Management) Act in that when the driver of that motor vehicle was directed to stop by police by, who activated lights and sirens, that driver while the vehicle was still in motion changed seats with the passenger. I now require you to supply to me the name and home address of the driver when police activated the lights and sirens of the police car." 9 The precise offence which the other person is alleged to have committed is not made clear in that question. However, in the Court Attendance Notice the allegation is that the person committed the offence of driving in a manner dangerous under the road transport legislation. 10 The transcript of the hearing reveals the sequence of events including the ERISP. When concluding that matter the learned Magistrate says this: "In relation to the drive manner dangerous, without calling on the defendant to give any evidence, I accept the evidence given by the officers in relation to this preliminary point but it does not seem to me that accepting that evidence that Mr Hammoud has taken over control of the vehicle, that the road transport legislation is quite specific about the definition of driver. The law seems to be quite clear about the definition of driver and it has to be because they are strict liability offences. This man has to have assumed control of the vehicle and at some stage, accepting the police evidence, he did. There is nothing - and I accept what is put which is that that is the swapping of a passenger and substituting another driver while the vehicle is in motion is a dangerous matter but it seems to me that the definitions and the law applicable to driver, as I said before, even pushing a driver is not an offence. Pushing a vehicle with your hand on the steering wheel you then become a driver so at some stage, even on your own account, this man has become a driver but there is nothing after the assumption of that driving, apart from one little blip within the lane which we cannot attribute to either him or the person who he swapped with. I am not satisfied that that offence is made beyond a prima facie case. I am simply not satisfied that the evidence is there to substantiates that." 11 I understand those remarks to be confined to an allegation that the respondent had driven the vehicle in a manner dangerous during the period when he was observed to be in control. The Magistrate then continues and says: "In relation to the form of demand under 21(1)(a) again I do not think there is a specific allegation of the committing of an offence under the road transport legislation. The general allegation is put relaying it to the person swapping but again that, in my view, is not an allegation specific enough to require this man to formally respond and I do not believe, in the circumstances, that that is a proper demand and I do not think that offence can be made out either". 12 His Honour then dismissed that charge. To my mind his Honour's reasons for dismissing the charge reveal legal error. However, I emphasise that the Magistrate should not be criticized for this error. My reading of the transcript does not suggest that he was adequately assisted by the prosecution to an understanding of the relevant principles. This should have occurred. 13 The responsibility falls upon the Prosecutor who presses a charge to ensure that the Magistrate is adequately assisted to an understanding of the appropriate law. 14 That law is revealed in two English decisions and one decision of the Court of Criminal Appeal in this state. The first of the English decisions is Pulton v Leader [1949] 2 All ER 747. The decision relates to the English legislation which has a similar form to the New South Wales Act. In the judgment of Lord Goddard, the Chief Justice, his Lordship makes plain that provided the inquiry in accordance with the section is based upon an allegation that an offence has been committed the responsible person is required to answer. That person has no right to know the nature of the alleged offence, nor particulars in relation to it. It is sufficient to oblige that an answer be made that the person be informed that the enquiring officer is alleging that the third person has committed an offence. His Lordship said: "Before the magistrate the appellant claimed the right before complying with the requirements of the Act to decide for himself whether or not an offence had been committed. That, however, is not provided for by the statute which only requires the police to allege that an offence under the Road Traffic Act has been committed by a driver. Once they allege that, they are entitled to ask anybody who they think can give them information to tell them who the driver was." 15 That decision was followed in Jacob v Garland [1974] RTR 40 and in R v Davis [1976] 1 NSWLR 84 the relevant New South Wales provision was considered by the Court of Criminal Appeal. Street CJ, with whom Begg and Ash JJ agreed, said of the section at 85-6: "It is to be observed at the outset that s. 5(3)(a) imposed upon the owner or custodian of a vehicle an obligation to furnish information "where the driver of a motor vehicle is alleged to be guilty of an offence". It is clear from the facts found in this case that an allegation was made that the driver of a motor vehicle, namely, the driver of the vehicle of which the appellant was custodian, had been guilty of an offence. There is no warrant within the terms of the section itself for investigating whether the appellant's vehicle was in fact that which was being driven at the time of the incident giving rise to the allegation. Indeed, it is the elucidation of this very matter that forms the subject of the section. As the Crown has pointed out in its submissions, if there were an incident giving rise to an allegation of guilt on the part of the driver of a motor vehicle and if there were three eye-witnesses, each of whom formed a different impression as to the registered number of the vehicle, it would clearly be open to the police, armed with each of the allegations from each of the eye witnesses, to seek from the owners of each of the vehicles bearing the three registered numbers information within the contemplation of s. 5(3)(a)." 16 Later in his Honour's reasons the Chief Justice said: "The obligation on the owner or custodian arises merely in consequence of there being an allegation made that a driver of a stated vehicle was guilty of an offence. The truth of the allegation in any of its particular portions does not form a condition precedent to the arising of the statutory obligation under s. 5(3)(a) to furnish information. Specifically, this extends both to the portion of the allegation of guilt of an offence, as well as to the identity of the motor vehicle being driven. This is the single composite allegation which conditions the operation of the section. It would, of course, be an adequate answer for the owner or custodian to demonstrate, if such were the fact, that his vehicle was not being driven at all at that time." 17 In the present matter, as I have indicated, the learned Magistrate concluded that he did not think there was a specific allegation of the committing of an offence under the road transport legislation. He referred to the swapping of persons which he described as not being an allegation specific enough to require the respondent to respond. 18 To my mind, that finding was not open to his Honour. It appears to have been identified as a critical matter from a misunderstanding of the section. The section did not require an investigation of factual matters, and a determination of whether a prima facie case could be made out of an offence by the third party or indeed any assessment of the evidence in relation to that matter at all. All that the section required was that the respondent be informed that the police were alleging that an offence had been committed and sought information as to the driver of the vehicle at the time when that offence was allegedly committed. 19 That position was established by the question on the ERISP to which I have earlier referred. The allegation which was made was that the driver at the relevant time was guilty of an offence. That was all that was required in order to oblige the respondent to provide particulars of the driver of the vehicle at that time. The statute required him to make an answer. 20 In these circumstances, I am satisfied that an error has occurred and it is appropriate for this Court to intervene. The orders I make are: