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.