Police v Amanda BARBER [2011] NSWLC 12

Local Court New South Wales

Medium Neutral Citation: Police v Amanda BARBER [2011] NSWLC 12 Hearing dates: 10/12/2010 Decision date: 08 February 2011 Jurisdiction: Criminal Before: Magistrate Brown Decision: I am satisfied that the prosecution has established that there is evidence that, if accepted, could establish every element of the offence charged, and I rule accordingly. Catchwords: CRIMINAL LAW - failure to disclose identity of driver - whether prima face case exists Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002, ss 14, 17, 201 Road Transport (General) Act 2005, s 173 Cases Cited: John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Category: Procedural and other rulings Parties: Police Amanda BARBER File Number(s): 2010/136717

JUDGMENT 1The facts in respect of which this ruling is requested a very simple. Constables Laws and Condon were investigating an alleged road rage incident which involved an assault. The investigation centered on a motor vehicle registration number BE 82 TH whose registered operator was the defendant to the present charge. On 22 April, 2010 Constable Laws spoke to Ms Barber at her home address as follows: "I am Constable Laws of Blacktown police station, are you Amanda Barber?" She said "Yep" I said "Are you the registered owner of a motor vehicle green Mazda registered number BE 82 TH"? She said "Yep" I said "It is alleged that about 7.45 PM on Thursday, the 15th of April, 2010 the driver of motor vehicle green Mazda registration number BE 82 TH (NSW) was guilty of an offence under the Crimes Act, in that an assault was committed. I now require you to supply to me the name and place of abode of such driver." She said "I don't know, I was passed out drunk" I said "I must warn you that you are required by law to comply with this request". She said "Yeah, but I don't know who it was" I said "I must also warn you that failure to comply with this request may be an offence" She said "Yep". 2Constable Laws then completed a form of demand purporting to be made under the Road Transport (General) Act 2005 (RTGA), section 173, recording the details of the above conversation. As a consequence of her failing to provide the information sought, the defendant was charged with an offence under section 17 (1) of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). [The actual formulation of the charge in the court attendance notice is gibberish: the words "the vehicle must" need to be replaced by a word to the effect of "did fail to".] 3However, section 173 of RTGA is only applicable "If the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation...". Clearly the allegation being put involved an offence of assault, correctly identified by Constable Laws as being an offence under the Crimes Act, which Act is not part of the road transport legislation as defined in the RTGA. Consequently, Constable Laws was not able to exercise that power in the present situation, as the primary statutory precondition for its exercise had not been met. Furthermore, the defendant was not charged with the offence created by section 173 (1) of the RTGA. 4Clearly the informant recognized the error, and proceeded to formulate a different charge relying on a different head of police power. Section 17(1) of LEPRA provides: " 17 Failure of owner to disclose identity (1) An owner of a vehicle who is requested in accordance with sections 14 and 201 by a police officer to disclose the identity of the driver of, or a passenger in or on, the vehicle must (unless the owner has a reasonable excuse for not doing so): (a) disclose the identity of any person the owner knows or has reason to suspect was the driver or a passenger, or (b) if the owner does not know the full and correct identity of the person-disclose such information about the person's identity (such as any alias used by the person or the general location of his or her residential address) as is known to the owner. Maximum penalty: 50 penalty units or 12 months imprisonment, or both. (2) Subsection (1) extends to an owner of a vehicle who was the driver of, or a passenger in or on, the vehicle. (3) Without limitation, for the purposes of this section, an owner has reason to suspect a person was the driver of, or a passenger in or on, a vehicle if the owner has reason to suspect that a person had access to the vehicle." 5The statutory preconditions for the exercise of this power has set out in sections 14 and 201 of LEPRA. Section 14 (1) provides that a police officer may make a "request" for information if he or she "suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with the an indictable offence ...". This power would clearly have been the appropriate one to exercise in these circumstances. 6The defendant submits that the prosecution has failed to establish a prima facie case "because the request made to the defendant to disclose was not in accordance with sections 14 and 201 of LEPRA". 7In John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Spigelman CJ, Beazley JA and Giles JA expressed the view that: "95 In the context of the exercise by an arm of the executive of a statutory power it is now the better view that a decision will not be invalidated if the holder of the power purports to exercise an inappropriate head of power, when another head of power was available. (See the authorities discussed in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, doubting the continued authority of Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, noting particularly Lockwood v The Commonwealth 90 (1954) CLR 177 at 184; Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 190 CLR 513 at 618 and see Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651 at [13]-[17] per Kiefel J.)" 8Consequently, the "request" will be valid, and failure to comply with it amount to an offence under s 17(1), if the prosecution can show that the s 14 power was in fact properly exercised by Constable Laws notwithstanding the Constable's apparent erroneous belief that the power being exercised was under s 173 RTGA. 9Despite the somewhat pejorative use of the word "request" in LEPRA as a euphemism for an enforceable demand, it is a request in one very important sense. The recipient of the request can only be liable to prosecution if he or she fails to comply with the specific request that is made. Section 14(1) provides: (1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may make any one or more of the following requests: ... (c) a request that any owner of the vehicle (who was or was not the driver or a passenger) disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the request was made or a direction was given under this Division to stop the vehicle. 10Each paragraph of s 14(1) contains a number of disjunctions. For example, under section 14 (1) (c) the officer may request that the owner disclose the identity of the driver, or of a passenger. If the officer merely requests that the driver disclose his or her own identity, the driver commits no offence by failing to disclose the identity of a passenger. If the officer fails to request particular information, there is no offence committed by the driver for failing to provide information that could have been, but was not, requested. The driver is surely entitled to operate on the basis that the officer knows, enunciates and requests whatever information he or she requires, and that precise compliance with that request will be a complete satisfaction of the driver's legal obligations. 11The operation of section 17(1)(a) appears to complicate this simple interpretation. One reading of this paragraph would suggest that a request to identify the driver implicitly and necessarily contains a request to identify any person the owner knows or has reason to suspect was the driver. At the extreme this would imply that an owner who, having been specifically asked to identify the driver at a particular time fails to volunteer information as to the identity of a person the owner has reason to suspect was the driver, will be guilty of an offence, punishable by up to 2 years imprisonment. 12Such a conclusion would be entirely unjust and unacceptable. It seems that if someone's identity is requested from the owner, he or she is still entitled to rely on the request made by the police officer as delimiting the information sought, and any such request must be made with precision. In those circumstances it seems that the proper interpretation of s 17(1)(a) is that it expands the scope of the information that the police can legitimately request under s 17 to include information as to the owner's knowledge and suspicions, but nonetheless that information, if desired, must be specifically requested by the police officer. 13If the LEPRA provisions are read this way they successfully balance the police power to demand certain information, with an owner's or driver's right to know precisely what is being sought from him or her before deciding whether to speak or be silent. 14Returning to the facts of the present case, there can be no doubt that the information "demanded" by Constable Laws, namely, "the name and place of abode of the driver" could, with the updating of "place of abode" to "home address", have been properly demanded under s 173 if the demand had been made in respect of an offence against the road transport legislation. 15The information that can be sought under s 14 is the person's "identity", defined in s 3 to be the person's name or residential address, or both. There is therefore no difference between the operations of the two sections in this case as to the information sought. 16Clearly, if a particular section does not grant authority for a police officer to seek, request or demand a particular category of information, then failure to provide that information cannot constitute a breach of that section. However, in the present case, the defendant proffered no information at all, so that, regardless of the source of the request or demand made, it was not complied with. 17I am satisfied that the prosecution has established that there is evidence that, if accepted, could establish every element of the offence charged, and I rule accordingly. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2011