Adams v Police

[2012] NZHC 3516

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-29 [2012] NZHC 3516

MANE HAPETA ADAMS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         M J Phelps for Appellant

N M Graham for Respondent

Judgment:      18 December 2012

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      Mr Adams was convicted following a defended hearing by two Justices of the Peace on a charge of failing to provide information in his possession which might lead to the identification and apprehension of a driver.  The charge was laid pursuant to s 118 of the Land Transport Act 1998.  Mr Adams was fined $500 and court costs.

[2]      This appeal raises the application of the common law right to silence; the privilege against self-incrimination and what the prosecution must prove in a charge

under s 118 of the Land Transport Act 1998.

MANE HAPETA ADAMS V NEW ZEALAND POLICE HC NAP CRI 2012-441-29 [18 December 2012]

[3]      On 6 February 2012 the Police commenced an investigation into an assault that had occurred the previous day.  The Police identified an Isuzu Bighorn vehicle in the area where the assaults occurred and considered that the driver and passenger may be suspects in that assault.  Mr Adams is the registered owner of that vehicle.

[4]      On 2 March 2012 Mr Adams was served by the Police with a request under s 118.  That notice was given under both s 118(1) and s 118(2) of the Land Transport Act 1998.  Mr Adams did not provide the information sought.  The Justices of the Peace  convicted  Mr Adams  deciding  that  he  could  not  remain  silent  and  must comply and his failure to do so was an offence.

Discussion

[5]      I now consider whether the information alleges a crime, what the Crown must prove before there can be a conviction and whether in this case the prosecution have sufficient evidence for a conviction.

[6]      The Information charging Mr Adams with a crime alleged that:

being the owner of a vehicle and on being informed of an offence alleged to have been committed by the driver of the vehicle on 3 Benson Drive who failed to give all information in your possession or obtainable by you which might have led to the identification in apprehension of the driver.

[7]      The penalty section for s 118 is s 52(6) of the Land Transport Act 1998.  It provides:

52       Contravening notices, requirements, etc, given or imposed by enforcement officers

...

(6)       A person commits an offence if the person fails or refuses to provide information or provides false information with respect to any request for information made by an enforcement officer under section 118.

118     Owner or hirer [or licence  holder]  to  give  information  as  to identity of driver or passenger

(1)       If an enforcement officer has reasonable cause to believe that the driver of a vehicle has committed an offence while in charge of the vehicle, the officer may request the owner or hirer of the vehicle to give all information in his or her possession or obtainable by him or her which may lead to the identification and apprehension of the driver of the vehicle.

(2)       If  an  enforcement  officer has reasonable cause  to believe  that  a passenger of a vehicle has committed an offence in or through the use of the vehicle where that use relates to the commission of the offence  or  the  aiding  of  the  commission  of  the  offence  or  the assisting of that passenger  to  avoid arrest in connection  with or conviction for that offence, the officer may request the owner or hirer of the vehicle to give all information which may lead to the identification and apprehension of the passenger.

(3)       A request under subsection (1) or subsection (2) [or subsection (6)] may be made orally or in writing and the owner or hirer [or licence holder] (as the case may be) must comply with the request within 14 days.

(4)       If a vehicle has been used to flee a Police pursuit, an enforcement officer may request the owner of the vehicle to give all information in his or her possession or obtainable by him or her which may lead to the identification and apprehension of the driver, and the owner must give the officer that information immediately.

(5)       Subsection (4) does not apply if the owner has been arrested or detained in relation to the suspected offence.

(6)       If the holder of a transport service licence employs any person to drive a vehicle under that licence, the licence holder, on being informed of any offence alleged to have been committed by that person or by a person driving a vehicle being used under the licence, and on being requested to do so by an enforcement officer, must supply in writing the full name and address of the driver.

[9]      To establish an offence under s 118, the prosecution have to prove:

(a)      that the enforcement officer had reasonable cause to believe that the driver of a vehicle has committed an offence while in charge of the vehicle;

(b)      the defendant was the registered owner of the relevant vehicle;

(c)      the making of a request to the owner to give “all information in his possession or obtainable by him which may lead to the identification and apprehension of the driver of the motor vehicle; and

(d)as  relevant  here,  a  failure  or  refusal  to  provide  such  information within the 14 day time limit.

[10]     The first difficulty in this case is that the Information itself does not appear to follow the wording of s 118(1).  While the information alleges that Mr Adams was “informed  of  an  offence  alleged  to  have  been  committed  by  the  driver  of  the vehicle”, s 118 requires  that the driver of the vehicle must have committed the offence “while in charge of the vehicle”.   No such allegation is made in the Information.  The information, therefore, may not charge an offence under s 118.  I say may because no submissions were made to me regarding this aspect.

[11]     More fundamentally, however, there was no evidence which established that an enforcement officer had reasonable cause to believe that the driver of Mr Adams’ motor vehicle had committed an offence while in charge of the motor vehicle.[1]

[1] At [8](a).

[12]     Mr Adams was spoken to by a Police officer for the first time on 2 March, almost a month after it was alleged that the offending occurred that gave rise to the s 118 notice.  On that day the Police served a notice on Mr Adams.  The notice said that an enforcement officer had cause to believe that the driver of the Isuzu Bighorn motor vehicle owned by Mr Adams had committed an offence of wounding and assault with a weapon on Prebensen Drive, Napier on 5 February 2012 while in charge of the vehicle.

[13]     At  the  defended  hearing  of  these  charges,  Detective Signal  said  that  the Police had obtained security camera footage in the area of the assault which showed a number of vehicles including the appellant’s Isuzu Bighorn.   It seems that the assault was alleged to have occurred around 2.20 p.m.  Sergeant Flood said that the

Isuzu vehicle was seen approximately half an hour before the assault parked in the

area of the assault.  This was the only evidence called by the prosecution to establish prerequisites of a s 118 notice.

[14]     This evidence did not establish that any enforcement officer had reasonable cause to believe that the driver of the Isuzu motor vehicle had committed an offence while in charge of the vehicle. The only prosecution evidence was that the Isuzu was seen about half an hour prior to a series of assaults in the same area of the assaults.

[15]     There was no evidence of anyone driving the vehicle before or after the assault, nor any evidence which connected the vehicle in any way to the offending in any direct sense.  Certainly there was no evidence that the driver of the motor vehicle had committed an offence while in charge of the vehicle.  Thus, the Police did not have the evidence upon which they were entitled to give the s 118(1) notice to the appellant.

[16]     For the reasons given, therefore, the Police did not establish this element of the proof of the charge.   This failure is fatal to the prosecution.   The appeal is, therefore, allowed and the conviction and penalty quashed.

Right to silence

[17]     Given my conclusions, I do not need to consider the other grounds of appeal.

However, I briefly note my reasons given counsel’s submissions.

[18]     Counsel submits Mr Adams cannot be required to comply with the s 118 request because to do so would infringe his common law right to silence, here as relevant, the right not to incriminate himself.

[19]     Self  evidently  the  purpose  of  s 118  is  to  enable  the  identification  and apprehension of the driver and/or passenger of a motor vehicle in the circumstances identified in the section.

[20]     The appellant accepted that the Justices’ decision that the right to silence as described in s 23(4) of the New Zealand Bill of Rights Act 1990 was not engaged in this case was correct.   However, the Justices failed to take into consideration the common law right to silence identified in Malcolm v NZ Police, the appellant submitted.[2]

[2] Malcolm v New Zealand Police HC Auckland A 133/00, 8 December 2000.

[21]     It is clear that s 23(4) of the New Zealand Bill of Rights Act 1990 cannot apply to the circumstances of this case.  Section 23(4) provides:

23       Rights of persons arrested or detained

...

(4)      Everyone who is—

(a)      Arrested; or

(b)      Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

[22]     There is no suggestion that the appellant was detained or arrested.

[23]     In Malcolm Duffy J concluded that there was a right to silence from the time the Police had sufficient information to charge the person, asserting the right to silence, and, therefore, to detain him.

[24]     However, such a right is also subject to the rules in the Evidence Act 2006 relating to the privilege against self incrimination.

[25]     The privilege against self incrimination, is dealt with in s 60 of the Evidence

Act 2006:

60       Privilege against self-incrimination

(1)      This section applies if—

(a)      a  person  is  (apart  from this  section)  required  to  provide specific information—

(i)       in the course of a proceeding; or

(ii)      by a person exercising a statutory power or duty; or

(iii)      by a police officer or other person holding a public office  in  the  course  of  an  investigation  into  a criminal offence or possible criminal offence; and

(b)       the   information   would,   if   so   provided,   be   likely   to incriminate  the  person  under  New  Zealand  law  for  an offence punishable by a fine or imprisonment.

(2)      The person—

(a)       has a privilege in respect of the information and cannot be required to provide it; and

(b)       cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.

(3)      Subsection (2) has effect—

(a)      unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and

(b)       to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.

(4)      Subsection (2) does not enable a claim of privilege to be made—

(a)      on behalf of a body corporate; or

(b)       on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or

(c)       by  a  defendant  in  a  criminal  proceeding  when  giving evidence about the matter for which the defendant is being tried.

(5)      This section is subject to section 63.

[26]     I am satisfied that Parliament at least implicitly intended to remove the right to silence and self incrimination in s 60(3) in the circumstances applying to s 118. The wording used in s 118 and the fact that a sanction applies for a failure to comply with a request under s 118(1) convinces me.  This case is analogous with R v Sew

Hoy.[3]    In Sew Hoy there was a statutory power to require answers coupled with a sanction for refusal to do so.  The purpose of s 118 would be wholly frustrated if the privilege against self incrimination was to apply.  Self evidently it will often be the case that the driver of the motor vehicle is the registered owner of the motor vehicle. If the self incrimination principle applied then the thrust of s 118 would be seriously undermined.    I  am  satisfied  s 118(1)  does,  therefore,  by  necessary  implication remove the privilege against self incrimination.

[3] R v Sew Hoy (1991) HRNZ 424.

[27]     As to the common law right to silence, which arises when a Police officer has obtained sufficient information to charge a person with an offence with whom he is speaking, without expressing a view as to whether such a right exists, it does not seem to me that it has any application in this case.  There is no suggestion that the Police had sufficient information to charge Mr Adams with any crime at the time they provided the s 118 notice to him.

[28]     I am, therefore, satisfied s 23(4) did not apply to these circumstances nor does the common law right to silence.  I reject these grounds of appeal.

Ronald Young J

Solicitors:

M J Phelps, Barrister, Hastings, email:  [email protected]

N M Graham, Elvidge & Partners, Napier, email:  [email protected]