Facts: Two alleged victims report an incident to police. The report made referred to a particular motor vehicle been used in connection with incident and gave rise to charges of assault and predatory/menacing driving.

Our client was the owner/responsible person for the motor vehicle. He was not suspected of being the driver of the vehicle at the time the offences were allegedly committed.

On 30 April 2012 (approximately a month after the allegation is reported to police) the police request / direct our client provide them with particular details as to the identity of the driver/passenger of the vehicle that he either knows to be the case or suspects to be the case. Our client provides certain answers to that request/direction. This is to be referred to as the first “form of demand”

Approximately 5 months later the police make a further request/direction that he provide information under a different legislative power identifying who the driver was. This is the second “form of demand”.

Two weeks after answering questions in the second form of demand he was charged with failing to comply with the first form of demand.

Charge and legislative power:

Our client was charged that on 30 April 2012 he failed as the owner of a vehicle when requested by police in accordance with sections 14 and 201 of the Law Enforcement (Powers and Responsibilities) Act NSW 2002 “the Act” to disclose the identity of a person who he knew or had reason to suspect was the driver or passenger of the said vehicle. This is an offence contrary to section 17(1) of theAct and carries a maximum penalty of a fine of $5500 and/or 12 months imprisonment.

The Act sets out certain powers given to police in order to request or direct a person to provide certain information if the police reasonably suspect that a vehicle was used in or in connection with an indictable offence – commonly referred to as a Form of Demand. The relevant power the police have is governed by section 14 of the Act. In addition to the power given to police in this regard parliament has set out certain safeguards in section 201 of the Act which the police must comply with when exercising certain powers such as the one above. Section 201 of the Act requires the police to provide the person being directed with the following:

-evidence that the police officer is a police officer (unless they are in uniform);

-the name of the police officer and his/her place of duty;

-the reason for the exercise of the power; and

-as soon as is reasonably practicable after making the request or direction provide the person with

  • a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying) – “warning 1”; and
  • if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence – “warning 2”.

The second form of demand was made in accordance with section 173 of the Roads Transport (General) Act, which requires the responsible person for the vehicle to give information as to the name and address of the driver, on the basis that there is a an allegation that the driver of a motor vehicle had committed an offence under the Road Transport legislation. It is a different power given to police when dealing with allegations of offences against the road transport legislation as opposed to allegations which relate to a vehicle being used in or in connection with an indictable offence. An offence against section 173 of the Roads Transport (General) Act carries a maximum penalty of a fine of $2200.

Evidence in the hearing:

In the present case the evidence before the court was that the police officer who made the request/direction used the following words:

[Question 1] “I am Constable [XXX] from [XXX] police. I am going to request that you supply identification information under section 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 as I reasonably suspect that vehicle [XXX] was or may have been used in the commission of an indictable offence, being Common Assault.

I warn you that failure to comply with this request may be an offence under the Law Enforcement (Powers and Responsibilities) Act 2002.

Are you the owner or person responsible for vehicle [XXX]?

[Answer 1] “I am the Director nominated by the company as the responsible officer.”

[Question 2] “What company is the vehicle registered to?”

[Answer 2] “XXX Pty Ltd”

[Question 3] “It is alleged that at about [time] on [DATE] the driver of motor vehicle [XXX] was guilty of an offence under the Crimes Act 1900, being an assault. I now require you to supply me with the name and abode of such driver.”

[Answer 4] “I am not aware who was driving the vehicle at the time. I was not the driver. Multiple persons have access to that particular car. I do not suspect any particular person of being the driver at that time.”

The questioning went on about whether the company kept any records and our client indicated the company did not and ultimately our client was asked to sign a copy of the form of demand which set out the questions and answers. There was no warning given after the request was made and the answer provided was responsive to the request/direction made by police. You should note that the request/direction is in question 3.

Advice and representation:

Our client had previously sought legal advice from a Partner of Nyman Gibson Miralis and Accredited Criminal Law Specialist prior to attending the police station of this occasion to have the first form of demand made by police. He contacted our solicitor during the process and accordingly when asked by police to sign a document reflecting the above questions and answers he declined to sign the document. Note although there is a legal obligation for a person to comply with the request/direction when made in accordance with sections 14 and 201 of LEPRA there is no legal obligation that one must sign anything as part of the request or direction in section 17(1) of LEPRA. This is different to the legal obligation under section 173 of the Road Transport (General) Act to written signed statement when the request under that provision is made by police.

The client very sensibly contacted us again for advice when being asked for a second time to comply with a form of demand. It was essential to distinguish between the two forms of demand. The client had strictly complied with the legislation for the initial demand. For the second demand, police were initially purporting to demand an answer based on an offence that did not fit within the legislative requirements of LEPRA – ie. it related to a driving offence. The client was advised that he was entitled to decline to answer that demand on the basis that he had already answered a form of demand months earlier under section 173 of the Road Transport (General) Act and there was no legal basis to make a further demand. Police then changed the wording of their demand to incorporate an allegation of assault and made the demand pursuant to the LEPRA legislation. The appropriate response, based on the client’s instructions, required legal advice with meticulous precision.

Defended hearing:

We presented a compelling argument that the police officer had contravened section 201 of the Act by not complying with all of the safeguards set out in that section when exercising the power given to police under section 14 of the Act and that the prosecution must therefore fail.

Firstly, the argument was focused on the order of the questions put to our client as part of the request/direction. See above “warning 2” is given BEFORE the direction is made – the legislation requires the police to give that warning after the direction is made and after the officer forms a belief that the failure to comply by the person is an offence. Secondly, on the basis that “warning 1” was never given.

After much debate the magistrate held that the police officers initial question was sufficient for purposes of the need to give “warning 1”, and that unless the officer formed the view that he had not complied there was no need for “warning 2” to be given. The court accordingly found that there was a case to answer and the matter proceeded to further submissions.

We were ready with a fall back position in case the Court found against her in respect of the first issue raised in the prosecution case. We successfully argued that the answer given by the defendant was both responsive to the request made of him and that there was no evidence on the police case that at the time the first form of demand was made that suggested that he knew or reasonably suspected any person to be the driver.

The prosecution asked the court to draw inferences from answers given by the defendant during the course of the second form of demand which was made months after the first one was taken. The prosecution suggested that since the defendant accepted that he knew of a particular person having access to the subject vehicle then he must have suspected that person to have been the driver. We were again ready to rebut such submission by the prosecution. We directed the court to the very specific answers given by the defendant in the second form of demand when asked very general questions by the police about “a suspected person” having access to the car. The police case failed at that point. The charge was dismissed.

You need an expert criminal defence lawyer – not a lawyer who sometimes does criminal matters: It was a great result and a well earnt win for our client. It pays to have a lawyer who is ready for just about anything from the decision maker or opponent in a court room. It was also crucial to the successful defence of this matter that the client was given accurate advice strictly complying with the legislation prior to answering questions by police.