Preece v Boyd and McDougall - [2003] NSWSC 172

CITATION: Preece v Boyd & McDougall [2003] NSWSC 172

HEARING DATE(S): 12/3/03

JUDGMENT DATE:
25 March 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Kirby J

DECISION: Appeal dismissed

CATCHWORDS: Appeal against Magistrate's decision - powers of Special Constable to require information under Roads Act 1993 - presumption against requiring information that may incriminate - meaning of "immediately" - arrest, whether words enough - resisting arrest

LEGISLATION CITED: Justices Act 1902
Roads Act 1993
Police (Special Provisions) Act 1901

CASES CITED: Ballesty & Anor v Director of Liquor and Gaming & Ors [2002] NSWSC 1102
R v Francis (1735) Lee temp. Hard. 113
Thompson v Gibson 10 LJ Ex 243
Wightman v Land Boad of Canterbury & Quirk (1912) 31 NZLR 799
Cross v McHugh [1974] 1 NSWLR 500
Sorby v The Commonwealth of Australia (1983) 152 CLR 281
Police Service Board v Morris (1984-1985) 156 CLR 397
Alderson v Booth [1969] 2 QB 216
Woodley v Boyd [2001] NSWCA 35
R v Galvin (No 2) [1961] VR 740
R v Appelby (1940) 28 Cr App R 1
O'Hair v Killian [1971] 1 SASR 1
Cavanagh v Galkowski [1979] 20 SASR 322
Police v Thomson [1969] NZLR 513

PARTIES :

Mark Thomas Preece (Pl/Resp)
Michael Boyd (Def/Appl)
Mark Thomas Preece (Pl/Resp)
Stuart Gregory McDougall (Def/Appl)

FILE NUMBER(S): SC 12108/01; 12109/01

COUNSEL: R Horsley (Pl/Resp)
T Bates (Defs/Appls)

SOLICITORS: Harris Wheeler (Pl/Resp)
Boyd Wooi Olsen (Boyd - Def/Appl)
Mark Evans (McDougall - Def/Appl)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : C A Elliott LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Tuesday 25 March 2003

12108/01 MARK THOMAS PREECE -v- MICHAEL BOYD
12109/02 MARK THOMAS PREECE -v- STUART GREGORY McDOUGALL
JUDGMENT

1 KIRBY J: This is an appeal by an informant under s104(2)(b) of the Justices Act 1902 against the dismissal by a Local Court Magistrate of a number of summonses. The summonses were issued under the Roads Act 1993 and the Police (Special Provisions) Act 1901.

The Incident

2 Mr Mark Preece is a Special Constable for the State of New South Wales, appointed by the Council of the City of Newcastle for the purposes of the Roads Act 1993. On 22 August 2000, he observed a truck in Maitland Road, Tighes Hill. It was carting water. It was heavily laden, and possibly overloaded. He followed the vehicle a short distance. It turned into a bus terminal.

3 Mr Preece was in an unmarked vehicle. He was not wearing a uniform. The car was equipped with a magenta lamp, which he then placed on the roof of the vehicle. He pulled up alongside the truck. According to his testimony, he said this:

"Preece: Excuse me sir. I am an authorised officer under the Roads Act. I have observed you driving on a public road and wish to weigh your vehicle. Would you follow me up to the Horseshoe Beach Car Park where there is a level area…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Preece v Boyd and McDougall

Details

AGLC: Preece v Boyd and McDougall [2003] NSWSC 172
Case: [2003] NSWSC 172
Decision Date: 25 March 2003

CaseChat Overview and Summary

In Preece v Boyd and McDougall, the respondent, Preece, appealed a decision of the Magistrates' Court of Victoria, challenging the powers of a Special Constable to demand information under the Roads Act 1993. The crux of the dispute was whether the Special Constable, Boyd, had the authority to require Preece to disclose his name and address, and if so, whether such a demand could potentially incriminate the individual. The matter also examined the precise meaning of "immediately" within the context of the arrest, and whether the word "arrest" alone was sufficient to notify the individual of their arrest, as well as the issue of resisting such an arrest.

The legal issues before the court revolved around the interpretation of statutory provisions and the constitutionality of the demand for information. The court needed to determine the scope of a Special Constable's authority under the Roads Act 1993, and whether there was a presumption against requiring information that might incriminate. Additionally, the court had to interpret the term "immediately" in the context of the arrest and decide whether the word "arrest" alone was adequate to inform the individual that they were under arrest. The court also had to consider the legality of resisting an arrest under these circumstances.

The court concluded that a Special Constable did have the authority to require an individual's name and address under the Roads Act 1993. It found that there was no presumption against requiring information that may incriminate, as long as the individual was informed of their right to silence and the potential consequences. The court interpreted "immediately" as requiring the Special Constable to inform the individual of the reason for the arrest as soon as practicable, taking into account all circumstances. The court held that the word "arrest" was sufficient to notify the individual of their arrest, and that resisting such an arrest was unlawful. The appeal was dismissed, upholding the Magistrate's decision.

The final orders of the court were to dismiss the appeal and affirm the decision of the Magistrates' Court of Victoria. The court's interpretation of the statutory provisions and its analysis of the legal issues provided clarity on the powers of Special Constables and the requirements for lawful arrests under the Roads Act 1993.

Orders