PROSECUTION FOR PARKING

Press, Volume LXXXIX, Issue 27096, 20 July 1953, Page 10

PROSECUTION FOR PARKING

VALIDITY OF ACT QUESTIONED “The Press’* Special Service AUCKLAND, July 18. A test case which, according to pro-' securing counsel, might have the? most startling consequences on parking prosecutions if it succeeded, was heard before Mr F. McCarthy, in the Auckland Magistrate’s Court yesterday. The defendant, Peter G. Hillyer, solicitor, was charged that, having been', informed of an alleged offence concerning his car, he failed to give all| the information in his possession at the request of a traffic officer. Hillyer conducted his own defence. Mr G. P. Hanna prosecuted for the City Council. . 2 Mr McCarthy reserved his decision, saying that the matter was of great importance and a neat point was involved. Mr Hanna said defendant’s car had been left in Shortland street for an hour on a week day. The car received a sticker and defendant later received the council’s standard letter requesting the name of the driver $ the time of the offence. Defendant declined to give the name of the driver and invited the counc|L to prosecute him to test the validity of Section 49 of the Transport Act. This section of the act stated that' the owner of any vehicle, on being informed of an offence alleged to have been committed by the driver of the vehicle while in charge of it, shall, at the request of a traffic officer or constable, give all the information in his possession or obtainable by him which might lead to the identification or apprehension of the driver. Common Law Right Hillyer said Section 49 of the act was a penal section and therefore had. to be construed strictly, and any doubt or ambiguity in the wording had to bei resolved in favour of the defendant! It was a common law right “to keep' one’s mouth shut,” and any statute' which deprived a man of a common: law right had to do so in clear and unambiguous terms. Section 49 had to be construed with these principles in! mind. Section 49 referred to the “driver of the vehicle, but when a vehicle was parked it was not being driven and therefore there was no driver. The essential of driving was movement, and a driver was one who urged a vehicle to move. When the vehicle stopped the man in charge ceased to be. the driver of it. The offence under the by-law did not occur until 30 minutes after the vehicle stopped. At that time there was no “driver” and the section could not apply. Mr Hanna said the section referred to an “alleged” offence and placed responsibility on the owner of a car to divulge the name of the driver of it at any time an offence, rightly or wrongly, was alleged to have occurred. The council probably had had no legal obligation to tell the defendant the nature of the offence, but merely that an offence was alleged to have occurred. |