Citation: Police v Amanda Barber [2011] NSWLC 12
Court: NSW Local Court
Date: 8 February 2011
Judge: Magistrate Brown
Background
Police were investigating a road rage incident involving an alleged assault. The registered operator of the vehicle in question was the defendant. An officer attended the defendant's home and demanded that she disclose the name and address of the driver of the vehicle at the relevant time.
The defendant responded that she did not know who was driving, saying she had been "passed out drunk." The officer completed a statutory demand form purportedly under section 173 of the Road Transport (General) Act 2005 (RTGA). The defendant was subsequently charged under section 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) for failing to disclose the driver's identity.
The problem was that section 173 of the RTGA only applies where a driver is alleged to have committed an offence under the road transport legislation. The underlying conduct here was an assault under the Crimes Act, which falls entirely outside the RTGA. The informant accordingly charged the defendant under a different provision, namely LEPRA section 17(1), which is the appropriate power where a vehicle may have been used in connection with an indictable offence.
Legal Issues
- Whether section 173 of the RTGA could support the demand made, given the allegation concerned an assault rather than a road transport offence
- Whether the officer's reliance on the wrong statutory power (section 173 RTGA instead of section 14 LEPRA) invalidated the demand and defeated the charge under section 17(1) of LEPRA
- Whether a prima facie case had been established for the offence of failing to disclose the identity of a driver under section 17(1) of LEPRA
- How precisely a police officer must frame a request under section 14 of LEPRA to enliven a corresponding obligation on the owner
Decision
Magistrate Brown found that section 173 of the RTGA plainly did not apply. Its preconditions were not met because the alleged offence was an assault, not a road transport offence. The officer had, however, identified the correct power in formulating the charge under LEPRA section 17(1).
On the question of whether invoking the wrong head of power invalidated the request, Magistrate Brown drew on the NSW Court of Appeal's analysis in John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338. That decision established that a demand is not automatically invalidated merely because the officer purported to exercise an inappropriate head of power, where another head of power was in fact available and properly exercisable. The relevant question therefore became whether the section 14 LEPRA power was actually available on the facts, not whether the officer correctly identified it at the time.
Magistrate Brown then considered how precisely the request must be framed. Section 14(1)(c) allows an officer to seek disclosure of the identity of the driver or of a passenger. A failure to ask for specific information cannot give rise to an offence for not providing it. The Magistrate interpreted section 17(1)(a), which extends disclosure obligations to persons the owner has reason to suspect was the driver, as expanding the scope of information police may legitimately request, but only if they actually ask for it. The person subject to the demand is entitled to know exactly what is sought before deciding whether to speak.
Returning to the facts, Magistrate Brown found that the information sought by the officer (the name and address of the driver) fell squarely within what could have been demanded under section 14 of LEPRA. The defendant provided no information at all. There was therefore evidence capable of establishing every element of the offence under section 17(1), and the court ruled that a prima facie case had been established.
Orders Made
No orders were made in this decision.
Key Takeaways
- A demand made under the wrong statutory power is not automatically invalid where another head of power was in fact available and its preconditions were satisfied. The NSW Court of Appeal's reasoning in John Holland applies in this context.
- Section 173 of the RTGA is confined to situations where a driver is alleged to have committed a road transport offence. It does not extend to demands made in connection with offences under other legislation, such as assault under the Crimes Act.
- Under section 14(1) of LEPRA, an officer must make a specific, clear request for the information sought. An owner or driver cannot be held criminally liable for failing to volunteer information that was never actually requested.
- Section 17(1)(a) of LEPRA, which covers information about persons the owner suspects were the driver or passenger, expands what police may request rather than imposing a free-standing duty to volunteer suspicions in the absence of a specific request.
- Where a defendant provides no information at all in response to a demand that could validly have been made under LEPRA, the prosecution may still establish a prima facie case for the section 17(1) offence, even if the officer incorrectly identified the source of the power at the time.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14, 17, 201
- Road Transport (General) Act 2005 (NSW), s 173
Cases:
- 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
- VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 (referenced in John Holland)
- Lockwood v The Commonwealth (1954) 90 CLR 177 (referenced in John Holland)
- Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 190 CLR 513 (referenced in John Holland)
- Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651 (referenced in John Holland)