Preece v Boyd & McDougall

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT C A Elliott LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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 please. Driver: (very aggressively) How fucken long's that going to take? Five minutes, ten minutes? I'm in a fucken hurry. It's getting dark and this area has to be hosed." 4 The truck driver was Mr Boyd. Mr Preece informed Mr Boyd that if he failed to comply with his directions, he may be arrested and the vehicle impounded. Mr Boyd responded: "Who the fuck do you think you are?" 5 Mr Boyd then unhooked a hose attached to the vehicle. Again Mr Preece warned Mr Boyd that he was liable to arrest should he disobey his directions. Mr Boyd responded: "So fucken arrest me." 6 Mr Boyd continued to assemble the equipment to hose the area. Mr Preece went to the other side of the vehicle. He spoke to Mr Boyd's companion, Mr McDougall. The conversation, according to Mr Preece, was as follows: "Preece: Do you know this person? McDougall: Yes. I hired him. Preece: Are you the site foreman? McDougall: Yes. Preece: Listen, have a talk with him. He's going to get himself in big trouble. The vehicle must be weighed. There are very big penalties for persons who fail to comply. McDougall: Aren't you making a mountain out of a molehill mate? We're just two blokes trying to earn an honest dollar. I have to hand this site over to the Department tomorrow morning. It has to be washed down. Just let us get on with it." 7 Mr McDougall then began hosing the area, using water from the truck. Mr Preece repeated his direction to stop. He alleges that the following conversation then took place with the driver, Mr Boyd: "Preece: I am a Special Constable of New South Wales. You are under arrest for refusing to comply with a direction and for obstructing me. Get out of the vehicle. Boyd: Get fucked. You can't arrest anyone. You're not the police. Get the fucken police and we'll see what they say. Preece: (to McDougall) Turn that hose off immediately. You are committing an offence by preventing me from weighing this vehicle. Boyd: Wake up to your fucken self. Go and arrest some fucken drug pusher or other scum on society. Don't get in our way - we're just trying to do our job." 8 The conversation continued as follows: "Preece: You are under arrest. Turn the motor off and move away from the vehicle. Boyd: I'm not under arrest. Call the police. Preece: What is your name and address? Boyd: I don't have to tell you that. Preece: I will caution you that to fail to supply your name and address is an offence. The penalty is $3,300. Boyd: Mate I don't have to tell you fucken nothin'. Preece: What is your name and address? Boyd: Fuck off. Preece: Produce your driver's licence. Boyd: Haven't got one. Preece: It is an offence not to produce it. Produce your licence. Boyd: I fucken told you ... I haven't fucken got one." 9 Mr Preece then turned to the Site Foreman, Mr McDougall. The conversation was in these terms: "Preece: Sir, you have assisted this person to break the law. I intend to prosecute you. If you do not state your name and address I will arrest you. McDougall: (screaming at the top of his voice) Arrest me. Arrest me. Who the fuck do you think you are. You're not the fucken police. I will only give my name to a police officer. What's you're fucken name anyway?" 10 Messrs Boyd and McDougall continued to wash the area, using water from the truck. Mr Preece then summoned assistance. He asked Special Constable Adam Gilligan to come to the bus depot. Mr Gilligan arrived within a couple of minutes. According to Mr Gilligan, he asked the driver, Mr Boyd, for identification. Mr Boyd immediately produced his licence. Mr Gilligan made a note of his name and address and other details, and recorded particulars of the vehicle, including its registration number and the name of the owner. 11 Mr Preece then approached Mr McDougall once more. He said this: "Preece: I have already told you that you are under arrest. What is your name and address? McDougall: I don't have to tell you that. Preece: I will again warn you that a failure to supply those details is an offence. McDougall: No it's not. I haven't broken any law. This is my job site, and I'll do what I want. You've been asked to move your fucken car about four times now so that we can clean the area. I'll be sending you a bill for lost time." 12 Mr Gillian produced a copy of the Roads Act, which was handed to Mr McDougall. Mr Preece again asked Mr McDougall for his name and address, and again Mr McDougall refused to provide that information.

The Charges 13 This simple incident gave rise to multiple charges against Mr Boyd and Mr McDougall. Mr Preece, to use a colloquialism, "threw the book" at Mr Boyd and Mr McDougall. Mr Boyd was charged with five offences under the Roads Act 1993 and one offence under the Police (Special Provisions) Act 1901 (formerly the Police Offences Act 1901). The charges against Mr McDougall were broadly similar, except that he was alleged to have incited Mr Boyd to breach certain provisions of the Roads Act. 14 The matters proceeded over several days before Mr C A Elliott, Local Court Magistrate, in the Newcastle Local Court. There was an issue as to what Mr Preece had done immediately after giving the direction to "follow me". He asserted a failure to follow him, as Mr Boyd and Mr McDougall ignored his direction and continued to hose the depot. The defendants gave a different account. They asserted an attempt to follow him, but a failure by Mr Preece to lead. The learned Magistrate was not satisfied that there had been a breach or an incitement, and dismissed a number of the summonses upon that basis. He did find, however, that both Mr Boyd and Mr McDougall had failed to cease discharging water from the truck when directed to do so by Mr Preece (s239 Roads Act). The remaining summonses were, for various reasons, all dismissed.

The Appeal 15 The informant, Mr Preece, appeals to this court against the dismissal of three summonses against Mr Boyd, namely: · First, a summons under s229(1)(a) of the Roads Act 1993, that he failed to produce immediately to the Special Constable his name and residential address. · Secondly, a summons under s229(1) of the Road Act 1993, that he failed to produce to that officer his driver's licence. · Thirdly, a summons under s108 of the Police (Special Provisions) Act 1901, that he resisted a Special Constable in the execution of his office. 16 The informant also appeals against the dismissal of two summonses against Mr McDougall, namely: · First, a summons under s229(3) of the Roads Act 1993, that, without reasonable excuse, he failed to supply his name and residential address. · Secondly, a summons under s108 of the Police (Special Provisions) Act 1901, that he resisted a Special Constable in the execution of his office. 17 Under s104(2) of the Justices Act 1902, an informant may appeal to the Supreme Court on a ground that involves a question of law. The informant must, therefore, show an error of law (Ballesty & Anor v Director of Liquor and Gaming & Ors [2002] NSWSC 1102, paras 17 to 20).

The Roads Act 1993 18 Three of the summonses (two against Mr Boyd, and one against Mr McDougall), turn upon the proper construction of s229 of the Roads Act 1993. That section is in these terms: " s229 Authorised officer may require production of information (1) If an authorised officer suspects on reasonable grounds that the driver of a vehicle has committed an offence against this Act or the regulations, the officer may require the owner of the vehicle or the person in charge of the vehicle to produce immediately to the officer: (a) the name and residential address of the driver of the vehicle, the weight and description of the vehicle's load and the unladen weight of the vehicle, as at the time of commission of the suspected offence, and (b) such documents as are in the person's possession or control and as relate to the vehicle or its load, and (c) such other information relevant to the suspected offence as it is in the power of the person to give, and may also require the driver of the vehicle to produce to the officer the person's driver licence. (2) The officer may require the information to be given either orally or by a signed statement. (3) The officer may also require any other person to give immediately, either orally or by a signed statement, such information relevant to a suspected offence against this Act or the regulations as it is in the power of the other person to give. (4) A requirement under this section may be made orally or by notice in writing served on the person concerned. (5) A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer made under this section. Maximum penalty: 30 penalty units. (6) A person is not guilty of an offence under subsection (5) unless, before failing to comply with the requirement concerned, the person is warned that failure to comply with the requirement is an offence." 19 Mr Boyd was charged with having failed to produce immediately the name and address of the driver of the vehicle to Mr Preece, an authorised officer who reasonably suspected an offence. He was also charged with having failed to produce his driver's licence. In each case the offence was identified as "non compliance with the provisions of s230" of the Act. Under s230(1)(b) an authorised officer may direct the driver of any vehicle to drive to a location within five kilometres for the purposes of inspection and weighing. Mr Preece, as a Special Constable, was an Authorised Officer for the purposes of the Act. Mr Boyd was the driver. Mr Preece gave a direction to Mr Boyd under s230 to proceed to a particular location which was within five kilometres. On the Crown case, Mr Boyd failed to comply with that direction. Section 230(3) made it an offence, without reasonable excuse, to fail to comply with a direction given under that section. Mr Preece, accordingly, reasonably suspected an offence under the Act. He asked Mr Boyd for his name and address. Indeed, he asked more than once. Mr Boyd refused to provide either. Mr Preece then summoned Special Constable Gilligan. He was three minutes away. Having come to the depot, and spoken to Mr Preece, Mr Gilligan approached Mr Boyd. He asked Mr Boyd to produce his licence. He did so. Ten minutes, perhaps fifteen, had elapsed since Mr Preece had first made his demand for Mr Boyd's name, address and licence. 20 It will be noticed that the offence under s229(1)(a) requires the person in charge of the vehicle, Mr Boyd, to "produce immediately" to the officer "the name and residential address" of the driver. There is no requirement of immediacy in relation to the production of the driver's licence. 21 Here the learned Magistrate dismissed both summonses under s229(1) against Mr Boyd. He provided the following reasons: "As to what is meant by 'immediately' must be looked at in the context of the circumstances surrounding the demand and the urgency or otherwise of that information in relation to other things happening at the time. Whilst I accept that a demand was made and not met in the immediate sense of it being 'instanter', the fact is that within less than half an hour - the defendants not having left the site - the information was forthcoming to Police and to the Informant's assistant. In those circumstances I am not satisfied that a reasonable jury properly instructed would be likely to convict and the Informations are dismissed." 22 The informant makes two complaints. First, the meaning given to the word "immediately" by the learned Magistrate was wrong in law. Secondly, that in any event, the section requires that the "driver's name and residential address" and the driver's licence be produced to the officer who requires that information or that document, not someone else. The fact that Mr Boyd provided that material to Special Constable Gilligan is no answer to the charge. 23 Dealing with each aspect in turn, I see no error in the statement of principle by the learned Magistrate. The matter must be looked at in context. Indeed, part of the context, giving content to the word "immediately", are the matters which an authorised officer may require "immediately", as set out in s229(1)(a), (b) and (c). He or she may require documents not only in a person's possession, but in their control. That may entail a search at a location remote from the location where the direction is given. The information may be required in the form of a signed statement. Plainly, depending upon the operation being undertaken when the direction is given, that may also entail some delay. 24 There are many cases in which the court has attempted a definition of the word "immediately". In R v Francis (1735) Lee temp. Hard. 113, Lord Hardwicke CJ said this: (at 114) "The only material word remaining, is the word immediately ... It was said that that word excludes all intermediate time and actions; but it will appear that it has not necessarily so strict a signification: Stevens in his Thesaurus expounds the word, immediate, by cito et celeriter ; so Cooper's Dictionary renders in English immediately, forthwith, by and by; and Minshew gives it as various meanings, and refers it to the word presently; nor is its signification more confined in legal proceedings, as appears even from 2 Lev. 77 in the case of Pibus and Mitford [ Pybus v Mitford (1672), 2 Lev. 75], which was cited to the contrary, which say thus, though the word immediately, in strictness, excludes all mesne time, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonably requisite for doing the thing." 25 The word "immediately" implies that the act should be done with all convenient speed (per Rolfe B, Thompson v Gibson 10 LJ Ex 243). 26 Ultimately, whether something is, or is not, done immediately is a question of fact and degree (Wightman v Land Board of Canterbury & Quirk (1912) 31 NZLR 799, per Denniston J at 806). Neither in the definition of the word "immediately", nor in its application, do I believe that there has been an error of law (Cross v McHugh [1974] 1 NSWLR 500 at 502-503). 27 Moving to the second issue, that is the production of the name, residential address and licence to Mr Gilligan rather than Mr Preece, again I see no error. Mr Preece certainly required Mr Boyd to produce the name and residential address of the driver (he being the driver) and produce his licence. Certainly Mr Boyd did not provide that information to Mr Preece. Mr Preece, in these circumstances, wisely sought assistance. Mr Gilligan was able to act as "circuit breaker" and secure co-operation from Mr Boyd, who provided these details and his licence. At that point it was plain that Mr Gilligan and Mr Preece were operating as a team. Production to Mr Gilligan, in my view, was production to Mr Preece. 28 The remaining issue under s229 of the Roads Act concerns the summons against Mr McDougall. The terms of that summons were as follows: "...did fail [sic] without reasonable excuse fail to immediately supply his name and residential address to one Mark Thomas PREECE, an authorised officer under this Act and regulations, such information being relevant to a suspected offence against this Act, 'to wit' non-compliance with the provisions of s230, 239 and 240." 29 It is convenient to repeat the relevant sub-section to appreciate the issues of construction which arise. Section 229(3) is as follows: "s229(3) The officer may also require any other person to give immediately, either orally or by a signed statement, such information relevant to a suspected offence against this Act or the regulations as it is in the power of the other person to give." 30 A number of issues arise. What is meant by the phrase "any other person" in s229(3)? What does "suspected offence" refer to? Section 229(3) is capable of being given a dependent or an independent construction. It can be read as a companion to s229(1), or read independently of that section. Under s229(1) the officer can require information from "the owner of the vehicle", or "the person in charge of the vehicle", about a suspected offence. The same phrase, "a suspected offence", appears in s229(3). The officer may require information from "any other person" where that person "has information relevant to a suspected offence". These words are open to the construction that it is a power to require witnesses (as opposed to a proposed defendant) to provide information. 31 The informant, however, urges a construction independent of s229(1). Mr McDougall, not being the owner or the person in charge of the vehicle, may be characterised as "any other person". The "suspected offence" was not that of Mr Boyd. Rather, it was Mr McDougall's own offence of inciting Mr Boyd to breach s230 and the other sections of the Act. Although these charges were ultimately dismissed, that is not determinative. Mr Preece reasonably suspected that they had been committed when he made the demand. 32 There is some force in the informant's argument. Why would a specific power be given requiring witnesses to provide information? Ordinarily witnesses, not themselves in jeopardy, could be expected to assist an investigation. The only difficulty with the construction suggested by the informant is that it empowers a prosecuting authority, in very broad terms, to require information that may be incriminating of a person. In Sorby v The Commonwealth of Australia (1983) 152 CLR 281, Mason, Wilson and Dawson JJ said this: (at 309) "The privilege against self incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia , 2nd ed. (1981), pars. 113-116; Pyneboard; Crafter v Kelly [1941] SASR 237 at 242." 33 Murphy J in Police Service Board v Morris (1984-1985) 156 CLR 397, expressed the rule in these words: (at 406) "The common law is that no one need answer questions. Parliament can require persons to answer questions, but an Act will not be interpreted as requiring a person to incriminate himself or herself unless it does so by express words or necessary implication, ie, by unmistakable language. Therefore a mere requirement to answer questions is not enough to displace the privilege." 34 However, the power given to the officer under s229(3) in respect of "any other person" is really no different from the power given in s229(1)(c) in respect of "the owner" and "person in charge of the vehicle". 35 Whichever be the correct view, the information demanded by the Special Constable must be relevant to the suspected offence. Here the demand was for Mr McDougall's name and address. I do not believe that is relevant to any offence suspected of Mr Boyd. Nor (though less dogmatically), is it relevant to any suspected offence by Mr McDougall himself. There is, I believe, a distinction between the offence and the identity of the offender. In constructing a criminal statute, I believe such a distinction should be made.

Resisting an Officer 36 Mr Boyd and Mr McDougall were both charged with having resisted a Special Constable whilst in the execution of his office, an offence under s108 of the Police (Special Provisions) Act 1901. That section is in these terms: "s108 Assaulting or resisting special constables

Whosoever assaults or resists any special constable whilst in the execution of his office, or promotes, incites, or encourages any other person so to do shall be liable to a penalty not exceeding two hundred dollars or to imprisonment for any term not exceeding six months with or without hard labour." 37 The particulars accompanying each summons were the same, namely: "The defendant resisted the lawful arrest of the Special Constable." 38 The learned Magistrate dismissed both summonses, providing the following reasons: "Firstly, with respect to the allegations of resisting a Special Constable, the particulars in the Informations refer to 'resisting the lawful arrest ...'. The evidence about that comes from Mr Preece who describes the conversations he had with the defendants. I don't need to relate that in any great detail. Suffice to say he says he said 'I am a Special Constable of NSW. You are under arrest for refusing the comply with a direction and for obstructing me. Get out of the vehicle' - to Mr Boyd and - 'You are under arrest for assisting this person to disobey my direction. Put the hose down.' - to Mr McDougall. There is no evidence that there was any attempt then to take either person into custody. Even if I accept the prosecution case at its highest with respect to what then followed, it may - without looking at the evidence for the defence - amount to grounds for the other Informations to be laid. On that evidence, however, it does not amount to a resist arrest. Each of those Informations is dismissed." 39 The informant makes two submissions. It is said that there was, in each case, an arrest, which each defendant resisted. Alternatively, it is said that there was an attempt to arrest each defendant. Neither arrest was effected because of the resistance offered by each defendant. Both refused to co-operate. In the context of the section, that, it is submitted, is enough. Were it otherwise, a person who resisted would be rewarded for having successfully evaded arrest. 40 What, then, constitutes an arrest and may amount to resisting an arrest? The requirements of a valid arrest were considered by Glanville Williams in "Requisites of a Valid Arrest" [1954] Crim L R 6, where he said this: (at 13) "If the person to be arrested plainly does not acquiesce, what must the officer do in order to establish a valid arrest in point of law, thus making the arrestee guilty of the offence of escape if he should break away? The answer is that it is necessary and sufficient for the officer to touch the person to be arrested, at the same time making it plain to him that he is arrested, and where possible stating the act for which the arrest is made." 41 Here, Mr Preece said repeatedly to each defendant that he was under arrest. However, he did not physically touch either individual. Touching is not necessary, provided there is submission by the person arrested. In Alderson v Booth [1969] 2 QB 216, Lord Parker CJ said this on behalf of the Court of Appeal: (at 220-221) "There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying 'I arrest you' without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion." 42 Glanville Williams expressed the principle in these words: (at 14) "The upshot of this discussion is that, for the purpose of putting the suspect into the position of an arrested person, he need not be touched if he submits, or appears to submit, but if he does not make submission he must be formally touched." 43 Neither Mr Boyd nor Mr McDougall submitted to Mr Preece's authority. It was therefore necessary for him to touch both individuals in order to perfect the arrest. He did not do so. Therefore neither individual was arrested (see Woodley v Boyd [2001] NSWCA 35, per Hayden JA (with whom Davies AJA and Foster AJA agreed) at para 38). 44 I should add, lest these comments be misinterpreted, that there was plainly a question in the defendants' minds as to the authority of Mr Preece to make the demands that he made. That will often be the case in respect of persons who are not police officers who are appointed Special Constables for certain purposes. The informant was wise, in these circumstances, not to attempt to physically restrain either defendant. Mr Preece believed, and reasonably, at least in some cases, that the defendants had, in various ways, breached their obligations under the law. The offences which he believed they had committed, or may have committed, would, if proved, have resulted in a fine, where the maximum penalty was some thousands of dollars. However, no person or property was in jeopardy. In such circumstances, a Special Constable should be slow to exercise the power of arrest. Where that power is exercised, caution should be exhibited, giving consideration to enlisting the aid of the police (as Mr Preece ultimately did on this occasion). 45 The alternative submission by the informant requires an examination of the meaning of the word "resist" in the context of s108. In R v Galvin (No 2) [1961] VR 740, in respect of a similar statute in Victoria, O'Bryan, Deane and Hudson JJ made the following comments concerning the word "resist": (at 749) "The word 'resist' carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue. To 'resist' such a course of action, the person said to resist must know what that attempted course of action is. This requires the existence of a specific intent on the part of the alleged resistor. The composite expression 'resists a member of the police force in the due execution of his duty' connotes an intention to oppose or restrain a member of a particular class in the community and while that member is acting in a particular way." 46 Barry J, in the same case, made the following useful observations on the same word: (at 751-752) "Resistance to another person's action may be active or passive, but it necessarily involves an intention to oppose that other person's will. The section recognizes that an obstructing in some situations may be accidental and unintentional, and therefore uses the expression, 'wilfully obstructs', with the consequence that to constitute the offence there must be present an intention to obstruct. The three terms are used to comprehend what are, for practical purposes, the three ways in which an officer of the law may be impeded in the execution of his duty, namely, by threatened or actual violence, by passive or active resistance, or by a deliberate hindrance, and often the facts of a given situation may supply a foundation for charges of the commission of all three offences." 47 In "Criminal Practice and Procedure - New South Wales" by Howie and Johnson, the authors include the following note about the word "resist" in their examination of provisions of the Crimes Act 1900: (Vol 1 [8-s 58.35]) " Resist There is a view that something more than mere obstruction is necessary: R v Appelby (1940) 28 Cr App R 1 at 5. Resistance implies the use of force to oppose 'some course of action which the person resisted is attempting to pursue': R v Galvin (No 2) [1961] VR 740 at 749." 48 R v Appelby was, however, a rather special case. It was concerned with a joint criminal enterprise where the common design was resistance to arrest by violence, resulting in the death of a police officer. 49 "Halsbury's Laws of Australia", under the heading "Obstruction and Resistance", makes the following statement: "It is an offence to assault, resist, obstruct or hinder police in the execution of their duty or to incite such conduct in others. There must be a positive act in order for the offence to be committed and mere inaction will not usually be enough." 50 To resist an officer in the execution of his office requires, I believe, some positive action on the part of the person resisting. The action may be in the nature of active or passive resistance. Where it is passive resistance, there must still be some physical action designed to defeat the officer in his efforts to perform his duty. The action may, for instance, take the form of sitting down, becoming inert and refusing to co-operate, or linking arms with others (cf O'Hair v Killian [1971] 1 SASR 1 at 9, 14 and 23; Cavanagh v Galkowski [1979] 20 SASR 322 at 326). 51 What was done by these defendants which might be characterised as resistance? They refused at first to give their names and addresses. They made it clear by their words that they would not submit to the authority of Mr Preece as he repeatedly said that they were under arrest. Neither can amount to resistance to an arrest, in my view. 52 Nor am I attracted by the informant's alternative submission that an attempted arrest would be enough (cf Police v Thomson [1969] NZLR 513). Where, as here, the informant alleges that the defendants resisted him in the execution of his office in making a lawful arrest, an arrest must be proved, as well as an act of resistance. In this case there was neither an arrest nor an act of resistance. 53 The learned Magistrate was, in my view, right to dismiss each summons.

1. The appeal by the informant in respect of the summonses against Mr Boyd is dismissed.

2. The appeal by the informant in respect of the summonses against Mr McDougall is dismissed.

3. The informant should pay the costs of each respondent. **********

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