If you have been charged with an offence of failing to stop, under the Police Powers and Responsibilities Act section 754 (2) Fail to Stop Motor Vehicle, or given a notice under s 755 of the PPRA to identify the driver, you may have a good defence if you can establish on the balance of probabilities that you were not the driver.
We recently resolved a case where the Police in Maroochydore charged someone regardless of the fact that the person had provided strong evidence that she was not the driver, and was not in control of the car at the time – in fact she had an alibi. In that case, she did not have control of all of the keys for the vehicle, and was not aware who was driving the vehicle, it being kept at a different address. She told the police this at the earliest opportunity, and was nevertheless given a s 755 PPRA notice. No doubt this was designed to place pressure on her, but when she in fact could not say who was driving, and the police strongly suspected another to be the driver, this tactic was wrong in law.
Although she was given a notice under s 755 of the PPRA, this should only be done in circumstances where it “appears to the police officer” that giving the owner of the motor vehicle a notice under that section may help the investigation. Notwithstanding that our client could not identify the driver of the vehicle, she has provided sufficient information for the Police to identify that person. She had confirmed the police suspicion that, care and control of the vehicle was with another. However, not even being present at the time, it was wrong to expect her to be able to know for sure that that person was driving, as she had no physical sight of the vehicle.
The arresting officer could have had no reasonable suspicion that she was driving, and it was clear from the conduct of the matter to date that the police suspect that another person was driving.
What Further Declaration is Required?
It is difficult to see what further information the police officer expected our client to declare, in order to have escape being charged. Of course, putting any person before the Courts is a very serious thing, which we often see happen far too readily, forcing the lawyers to make submissions, and the Prosecutors to exercise their judgement to discontinue. In this case, any further declaration beyond what she had told the police already would have been tantamount to stating information outside of her knowledge, and would have been mere speculation.