Ayers v Police HC Christchurch CRI-2011-425-000041

[2011] NZHC 1982

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-425-000041

DANIEL FRANCIS SYDNEY AYERS

Appellant

v

POLICE

Respondent

Hearing:         9 December 2011 (Heard at Ashburton)

Appearances: JHM Eaton for Appellant

C M Butchard for Respondent

Judgment:      12 December 2011

RESERVED DECISION OF HON JUSTICE FRENCH

Introduction

[1]      Mr Ayers was charged with an offence under s 118 of the Land Transport Act

1998, namely that being the owner of a vehicle BZP850 and on being informed of an offence alleged to have been committed by the driver of the vehicle, he failed to give all information in his possession or obtainable by him which might have led to the identification and apprehension of the driver.

[2]      Mr Ayers denied the charge.

AYERS V POLICE HC CHCH CRI-2011-425-000041 12 December 2011

[3]      After  a defended  hearing,  however,  two  Justices  of the Peace  found the charge proved.  They fined Mr Ayers $750 and disqualified him from driving for one month.

[4]      He now appeals both the conviction and sentence.

Factual background

[5]      On 7 January 2011, a police officer, Sergeant Pirovano, received information regarding the driving of a blue Land  Cruiser  BZP850.   Members of the public described the driver making a dangerous overtaking manoeuvre on double yellow lines on a state highway.

[6]      Sergeant Pirovano was unable to locate the vehicle.  Enquiries confirmed that the vehicle was registered to an Auckland-based company, Elementary Solutions Limited.

[7]      Mr  Ayers  is  the  sole  director  and  shareholder  of  Elementary  Solutions

Limited.

[8]      Following unsuccessful attempts to telephone Elementary Solutions Limited, Sergeant Pirovano sent an email to Mr Ayers requesting details of the driver of the Land Cruiser on 7 January.

[9]      She subsequently spoke with Mr Ayers on 14, 17 and 25 January and 4

February.  Mr Ayers variously advised that he was making enquiries but would not or could not give details of the driver, that he might need legal advice, that the driver was a client and information about that person privileged.

[10]     On 22 March 2011, Sergeant Pirovano sent a formal written request pursuant to s 118 of the Land Transport Act addressed to Mr Ayers, care of Elementary Solutions Limited, with an accompanying letter.

[11]     Having failed to receive any reply, she phoned Mr Ayers on 7 April 2011.  He stated he had only received the letter the day before.   In her brief of evidence, Sergeant Pirovano said “As the defendant had only just received the request I waited the prescribed  14  days  and  on  20 April  2011  I laid  an  information”.   At  trial, however, she testified that during the telephone conversation of 7 April she “gave him another 14 days after that so…” (emphasis added).

[12]     I pause here to interpolate that the sergeant’s reference to 14 days was a reference to the provisions of s 118.   Section 118 relevantly provides that 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 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.  A request may be made orally or in writing, and the owner must comply with the request within 14 days, otherwise they commit an offence under s 52.

[13]     The information against Mr Ayers alleged an offence date of 20 April 2011.

[14]     The Land Cruiser had previously been owned by Mr Ayers personally, but prior to the relevant driving incident, had been transferred to Elementary Solutions Limited.

The decision of the Justices

[15]     At the hearing, the defence argued inter alia that because Mr Ayers was not the owner of the vehicle, he could not be guilty of any offence.

[16]     In finding the charge proved, the Justices stated that the evidence showed no real attempt had been made to comply with the statute.   As regards the issue of ownership of the vehicle, the Justices found:

Counsel of the defendant chose to attempt to influence us regarding ownership of the vehicle by presenting legal argument that the company Elementary Solutions Limited and the defendant are separate legal persons. According to today’s documentation our exhibit number 3 under s 234 of the Land Transport Act 1998, the certificate of particulars, the last confirmed ownership of the said vehicle BZP850 as recently recorded on 15 July, the

registration is in the name of Daniel Francis Sydney Ayers.  We find today’s

charge before us therefore is proved.

Grounds of appeal

[17]     On appeal, Mr Eaton advanced the following arguments:

(i)       The  Justices  erred  both  in  fact  and  in  law  in  finding  that

Mr Ayers was the owner of the vehicle.

(ii)During  the  telephone  conversation  on  7  April,  Sergeant Pirovano either extended the 14-day period for a further 14 days or made a fresh oral request.  In either event, an offence could not have been committed as at 20 April.

(iii)Sergeant Pirovano had no statutory authority to orally extend the written request that had been issued on 22 March 2011.

(iv)The 14-day extension given on 7 April 2011 did not amount in law to an oral request pursuant to s 118.

[18]     For  their  part,  the  police  concede  the  Justices  were  wrong  to  find  that Mr Ayers was the registered owner.  However, in their submission, the decision can still stand on the basis that the company was the principal offender and Mr Ayers was a secondary party, he having procured the company’s offending.

Discussion

[19]     The police concession that an error has been made is appropriate.  Mr Ayers was not the owner at the time of the alleged dangerous driving.  Indeed, contrary to the Justices’ decision, the documentary evidence shows he ceased to be the owner on

28 March 2007.

[20]     Ownership is a necessary ingredient of the offence with which Mr Ayers was charged,  and  Mr Ayers  was  not  the owner.    The company was  the  owner,  and

although  Mr Ayers  was  the  sole  director  and  shareholder  of  the  company,  the company was still in law a distinct and separate entity.

[21]     The issue then becomes whether the Justices’ decision must be quashed or whether, as the police argue, it can be confirmed but on a different basis.

[22]     I accept that the fact the company was never charged or convicted of the offence  is  not  in  itself  an  insuperable  barrier  to  finding  Mr Ayers  liable  as  a secondary party.  The company must, however, have committed the offence, and for it to have committed the offence, the request would have had to have been addressed to the company.   It was not.   The request was addressed to Mr Ayers personally. Thus, in order for me to uphold the Justices’ decision I would be required to amend the defective s 118 notice, amend the information so as to provide for secondary liability, and also possibly amend the date of the offence.

[23]     Ms Butchard attempted to overcome this difficulty by pointing out that the company could only act through Mr Ayers, and that it was open to me to read the various communications between Sergeant Pirovano and Mr Ayers collectively as amounting to the request.  Those communications show that the sergeant knew that the company was the registered owner and that Mr Ayers was well aware that this was the basis on which she was proceeding and on which the request was being made of him.

[24]     In support of this submission, Ms Butchard referred me to authority that there is no prescribed form of request, and that the request can be made in any way.

[25]     I accept that is the case.  However, there still needs to be precision as to the identity of the person of whom the request is being made. That is lacking in this case and it is a fundamental flaw that, in my view, cannot properly be salvaged on appeal. The fact remains that the sergeant herself identified the request she was making as being the request in the formal notice, which was defective.

[26]     It follows from the view I have taken that it is not necessary for me to consider Mr Eaton’s further points regarding the calculation of the 14-day period and the date of the offence.

[27]     The appeal is allowed and the conviction quashed.

Solicitors:

JHM Eaton, Christchurch

Crown Solicitor’s Office, Christchurch