Baker v Smith

[2025] TASSC 43

[2025] TASSC 43

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Baker v Smith [2025] TASSC 43
PARTIES:	BAKER, Jordie Carl
v
SMITH, Andrew (Sergeant)
FILE NO:	2688/2024
DELIVERED ON:	18 September 2025
DELIVERED AT:	Hobart
HEARING DATE:	24 July 2025
JUDGMENT OF:	Cuthbertson J
CATCHWORDS:

Traffic law – Offences – Particular offences – Failure to supply other information or giving false information – Duty of owner to give information – Information to identify driver – Ambit of duty – Obligations of police – Form of demand – Allegation offence committed as the driver or occupant of a motor vehicle – Privilege against self-incrimination – Right to silence.

Police Offences Act 1935, ss 37G and 37GA.
Aust Dig Traffic Law [1207]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Police Offences Act 1935 (Tas), s 37G - Applicant found guilty of failing to comply with a driver demand notice - Where the magistrate found that the notice of demand was issued validly by the officer and was not complied with - Findings of the magistrate reasonably open - A magistrate acting reasonably could have found the complaint proved - Appeal dismissed.

Aust Dig Magistrates [1349]

Legislation:
Acts Interpretation Act 1931 (Tas)
Justices Act 1959 (Tas)
Police Offences Act 1935 (Tas)
Road Safety (Alcohol and Drugs) Act 1970 (Tas)
Traffic Act 1925 (Tas)

Vehicle and Traffic Act 1999 (Tas)

Cases:
Arachchi v Orlowski [2003] VSC 161
Arnesto v Hickman [2016] TASSC 26
Aviation Consolidated Holdings Pty Ltd v McMullen [2025] TASFC 6
Bob Brown Foundation v Barnett (No 2) [2023] TASSC 6
Bonde v De Bomford [2019] TASSC 12
Coco v The Queen [1994] HCA 15; 179 CLR 427
Commissioner of Taxation v Citibank Ltd (1988) 20 FCR 403
DPP (NSW) v Hammoud [2006] NSWSC 562
E v Jordan [2009] TASSC 61
Petty v The Queen [1991] HCA 34; 173 CLR 95
Phillips v Arnold [2009] TASSC 43; 19 Tas R 21
R v Davis [1976] 1 NSWLR 84
Woon v The Queen [1964] HCA 23; 109 CLR 529

REPRESENTATION:

Counsel:

Applicant:	S Wright
Respondent:	J Thompson

Solicitors:

Applicant:	SGW Law
Respondent:	Office of Director of Public Prosecutions

Judgment Number:	[2025] TASSC 43
Number of paragraphs:	88

Serial No 43/2025 File No 2688/2024

JORDIE CARL BAKER v SERGEANT ANDREW SMITH

REASONS FOR JUDGMENT	CUTHBERTSON J 18 September 2025
Introduction

1 On 23 August 2024, Magistrate Edwards found the applicant guilty of failing to comply with a driver demand notice contrary to s 37G(1) of the Police Offences Act 1993. The charge concerned a notice served by a police officer, Constable Joel Young, on the applicant as the owner or registered operator of a vehicle which had been involved in a single vehicle crash at Wynyard on 18 March 2023. Police had attended the site of the crash on that date, but the driver had left the scene. The notice, which was served on the applicant on 22 July 2023, required him to provide information as to the identity of the driver or occupant of the vehicle at the time of the crash within seven days. It is common ground that the applicant did not comply with the notice.

2 The applicant appeals the finding of guilt on a number of grounds. Those grounds, in summary, concern whether the evidence was sufficient to prove the offence and the validity of the notice that was issued to the applicant. The notice to review was filed on 17 September 2024, four days outside of the time provided by s 107(3) of the Justices Act 1959. The applicant has filed an application for extension of time supported by an affidavit of his solicitor, Mr Wright. Mr Wright explains that he was responsible for the delay "due to my own commitments with other matters". The respondent makes no submissions as to that application. I have decided it is appropriate to grant the extension of time. No-one is prejudiced by the delay which amounted to two business days. The notice to review raises matters relating to the proper interpretation of s 37G of the Police Offences Act. It was appropriate that those matters be fully ventilated and determined.

3   The notice to review raises issues as to:

• the proper construction of s 37G of the Police Offences Act; and

• whether it was open to the magistrate to find that the notice provided to the applicant was validly issued.

It is convenient to deal at the onset with the construction issue as it informs the resolution of a number of the applicant's grounds of review.

Construction of s 37G of the Police Offences Act

4

Section 37G of the Police Offences Act provides as follows: "37G Requirement of owner or registered operator to provide details

(1) Where a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle, the owner or registered operator of the motor vehicle, on demand by a police officer, must give to the officer all such information as the officer requires as to the identity and whereabouts of the driver or any occupant of the vehicle at any time relevant to the charge.

Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 12 months, or both.

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(2)	A demand for information may be made orally or by a notice of demand served in accordance with section 37GA.
(3)	If a demand is made orally, a police officer is to serve a notice of demand in accordance with section 37GA as soon as practicable after making the demand.
(4)	It is a defence in proceedings for an offence under subsection (1), if the owner or registered operator establishes that he or she has taken all reasonable steps to ascertain the information required under that subsection but has been unable to ascertain the information."

5 Consideration of the operation of the defence pursuant to s 37G(4) does not arise in the circumstances of this case. The applicant has not relied on the subsection to justify his failure to

comply with the demand.

6 Section 37A of the Police Offences Act relevantly provides that "unless the contrary intention appears", "owner", when used in reference to a motor vehicle, means a person registered in the record of motor vehicles, kept in accordance with s 41 of the Vehicle and Traffic Act 1999, as the owner of the vehicle. It also includes a person who a police officer reasonably believes is the owner of the motor vehicle.

7 Section 37GA of the Police Offences Act deals with notices of demand. A notice given pursuant to that section is one way of making a demand for the purposes of s 37G: see s 37G(2). If a s 37G demand is made orally, a s 37GA notice is to be served as soon as practicable after making the demand: s 37G(3). Section 37GA provides as follows:

"37GA Notice of demand

(1)

A police officer may serve a notice of demand on the owner or registered operator of a motor vehicle if the police officer is satisfied that the driver or an occupant of that motor vehicle has committed an offence.

(2)

A notice of demand is to–

(a)	indicate the offence to which it relates; and
(b)	specify the registration number of the motor vehicle that was involved in the offence; and
(c)	specify that the owner or registered operator is to provide to a police officer, within 7 days after the owner or registered operator is served with the notice, a statutory declaration stating –

(i)  the name, address and, if known, the date of birth and driver licence number of the driver or occupant of the motor vehicle at the time the offence was committed; or

(ii) if the owner or registered operator does not know the details referred to in subparagraph (i) –

(A) any information that may lead to the identification of the driver

or occupant of the motor vehicle; or

(B) the reasonable steps that the owner or registered operator has

taken to obtain such information.

(3) An owner or registered operator must comply with the notice of demand.

Penalty: Fine not exceeding 50 penalty units."

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8 The applicant submitted in his outline of contentions that proof of an offence against s 37G(1) of the Police Offences Act requires that the following matters be established beyond reasonable doubt:

(a)	That the applicant was the registered owner of the vehicle to which the demand relates;
(b)	The police officer is satisfied that the driver or an occupant of the that motor vehicle had committed an offence; and
(c)	The registered proprietor of the vehicle failed to furnish the relevant details, pursuant to the notice.

The applicant also argued that a notice of demand was required to comply with s 37GA of the Police
Offences Act.

9 The respondent submits that the elements of an offence created by s 37G(1) are found in the combined operation of ss 37G and 37GA of the Police Offences Act. The starting point is s 37G(1) which provides the following four elements of the offence:

(a)	a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or the occupant of a motor vehicle;
(b)	a police officer has made a demand of the owner or registered operator of the motor vehicle;
(c)	that demand is for the owner or registered operator to give information as to the identity and whereabouts of the driver or any occupant of the vehicle at any time relevant to the allegation;
(d)	the owner or registered operator does not give to the officer the required information.

10 In addition, the respondent submits that ss 37G(2) and (3) requires that a person be served with a notice of demand pursuant to s 37GA. The words "in accordance with" in both of those subsections import the requirements of s 37GA(2) into the elements of the s 37G(1) offence. Those elements, if satisfied, will necessarily satisfy elements (b) and (c) set out at [9] above. They are:

(a)	The owner or registered operator has been served with a notice of demand;
(b)	The notice indicates the offence to which it relates;
(c)	The notice specifies the registration number of the motor vehicle that was involved in the alleged offence;
(d)	The notice specifies the information outlined in s 37GA(2)(c).

11 The respondent further submits that the precondition for service of a notice of demand pursuant to s 37GA, namely that a police officer is satisfied that that the driver or an occupant of that motor vehicle has committed an offence, is not imported into the offence created by s 37G(1). The only precondition for making a demand is that a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or occupant of a motor vehicle.

Discussion

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12 The preconditions for the making of a demand pursuant to s 37G(1) and the service of a notice pursuant to s 37GA are distinct. That there is an option to make a demand pursuant to s 37G(1) by way of a notice served in accordance with s 37GA, and an obligation (albeit one that is directory rather than mandatory)[1] to serve a notice in accordance with s 37GA following the making of an oral demand, squarely raises the question whether the s 37GA(1) precondition is ever relevant to proof of a s 37G(1) offence. This is particularly so where ss 37G(2) and (3) refer to service of a notice of demand in accordance with s 37GA in circumstances where the only reference to service in the latter provision is in s 37GA(1), which also prescribes the precondition for service undertaken pursuant to that provision.

[1] See s 10A(b) of the Acts Interpretation Act 1931.

13 In my view, a construction which imports the s 37GA(1) precondition into the s 37G(1) offence is not open for the following reasons:

• The preconditions of each provision are entirely different. A demand pursuant to s 37G(1) may be made where it is "alleged" that a person has committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle. By contrast, the precondition under s 37GA(1) requires satisfaction that a driver or occupant of a motor vehicle has committed an offence. The latter precondition is not limited to offences committed "as the driver or an occupant" of a motor vehicle, although can encompass such an offence.

• Section 37GA, like s 37G(1), is a penal provision. It creates a standalone offence where an owner or registered operator fails to comply with a notice of demand. The penalty available for a breach of s 37GA is different to that for a breach of s 37G(1): s 37GA(3). Section 37GA does not include an express defence analogous to that provided by s 37G(4). Distinct offences are, therefore, created by each provision, each with their own discrete elements.

• A demand made pursuant to s 37G(1) encompasses the possibility of the requirement being made orally in dynamic circumstances. A s 37GA demand does not have that character, hence the different nature of the precondition.

• A demand made pursuant to either section is an investigatory tool. The terms of s 37GA(1) are such that the police officer who serves the notice is personally required to be satisfied that the driver or an occupant of the relevant motor vehicle has committed an offence of any type. Section 37G(1), by contrast, enables a police officer to make a demand of an owner or registered operator in circumstances where there is an allegation a person has committed an offence as the driver or occupant of the relevant vehicle. It does not require the police officer who makes the demand to be the one who made the allegation. This reflects, again, the dynamic circumstances in which such a demand can be made. A police officer may, for example, be tasked with making the demand pursuant to s 37G(1) in circumstances where they are not necessarily personally satisfied that an offence has been committed by a driver or occupant of the relevant vehicle.

• If the precondition for service of a notice pursuant to s 37GA was incorporated as a precondition for the making of a demand pursuant to s 37G(1), this would render the condition of the power provided by s 37G(1) otiose as a notice is ultimately required to be issued in all circumstances: s 37G(1). The words setting out the condition of power in s 37G(1) must have been intended to have work to do.

14 In my view, proof of an offence contrary to s 37G(1) requires that there be an allegation that a person has committed an offence of the kind described in the subsection as a precondition to the making of the demand, whether it be one that is oral or by way of s 37GA notice.

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15 It is unnecessary to decide whether s 37G(1) can be breached on the basis of an oral demand prior to the service of a s 37GA notice as the issue does not arise in this case. What is clear, however, is that when a demand is made in the first instance by notice or is followed by such a notice where the demand is made orally, it is one that is to be in accordance with s 37GA. The phrase "is to" is directory, not mandatory: see s 10A(b) of the Acts Interpretation Act. Accordingly, a police officer is obliged to provide a notice which conforms with the matters set out in s 37GA(2) (which itself is directory in its terms). However, consistent with the directory nature of the obligation, not every failure to comply will result in invalidity: see Bob Brown Foundation v Barnett (No 2) [2023] TASSC 6 per Blow CJ at [14]-[16] and E v Jordan [ per Crawford J at [26]-[34].

16 In my view, an offence contrary to s 37G relating to a demand made by way of s 37GA notice (as is the case in this matter) is made out where it is proved beyond reasonable doubt that:

(a)	a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or the occupant of a motor vehicle;
(b)	a police officer;
(c)	serves a notice of demand on the owner or registered operator of the motor vehicle;
(d)	the notice:

(i)          indicates the offence to which it relates, that is, the offence which is alleged to have been committed by a person as the driver or occupant of a motor vehicle;

(ii)         specifies the registration number of the motor vehicle that was involved in the offence;

(iii) specifies that the owner or registered operator is to provide a statutory declaration stating the information set out in s 37GA(2)(c) within 7 days after the owner or registered operator is served with the notice;

(e) the owner or registered operator does not comply with the notice of demand.

The hearing

17   The particulars of the complaint preferred against the applicant were as follows:

"You are charged with on the 18th March 2023, you were the owner of a motor vehicle, namely silver Ford Ranger with registration plates F76GH and it is alleged that the driver or any occupant of the said vehicle has committed an offence against State or Commonwealth legislation at 8.55pm on the 18th March, 2023 and upon a demand by police officer, namely Joel YOUNG on 22nd July 2023, that you give all such information as the police officer may require as to the identity and whereabouts of the driver at the relevant time, you did fail to provide such details."

18           The hearing commenced before the magistrate on 18 April 2024. The prosecution called one witness, namely Constable Young. He gave evidence that he spoke to the applicant under caution about a crash that occurred on 18 March and then issued him with a driver demand. He was asked about his involvement in the investigation concerning that car. He stated he was the lead investigator at the time into that crash. His evidence was that the crash occurred on 18 March at approximately 9.00pm. When he arrived at the scene, he believed there was some severe damage to the vehicle. At that time, he did not know where the driver was. “They” received information from witnesses about who the driver was or likely to be. Constable Young gave the following evidence about what occurred after he got information from witnesses:

6   No 18/2025

"…and then other units picked up the driver who was the defendant. He was then taken to hospital by other units, and I heard this occur over the radio, and then from there I was there when the vehicle was removed. At that point I was not the investigating officer, so until Constable Carr had left the district, I did not have control of the investigation."

19           Constable Young gave evidence that once Constable Carr left the district, he took over the investigation by following up with witnesses who had been there on the night, obtained statutory declarations from people, CCTV and warrants for medical records. It was after those enquiries that he spoke with the applicant. This occurred at the Burnie Police Station on 22 July. The conversation that took place was captured on Constable Young's body worn camera.

20           The body worn camera footage was tendered during the hearing. The interaction with the applicant captured on the footage included service of the notice of demand. Constable Young gave evidence that he did not receive a response on any contact from the applicant after 22 July 2023 and that the requirements of the notice were not met within the seven day period provided to the applicant. A copy of the notice was also tendered on the hearing.

21           Under cross-examination, Constable Young gave evidence that "we had received information who [the driver of the car] was likely to be". It was put to him that he had received information about the registered owner of the vehicle and he answered "yes". He confirmed that no one could identify the driver at that time. Again, it was put to him that it was correct to say that he had received information about the registered owner but not the driver and he answered "I guess so, yeah". As to issuing the driver demand notice, he indicated he believed the applicant was the driver but could not prove it was him. He confirmed he had reviewed CCTV footage from inside the Wynyard Golf Club but that there was no footage outside the Wynyard Golf Club that he had reviewed. He accepted that he did not have any footage to determine who the driver was. He accepted he "never had any ID of the driver". He accepted that as a result he would not know whether the driver was under the influence of alcohol or not. He confirmed his intention was for the applicant to provide the details of the driver of the car rather than those of an occupant. He was cross-examined as to the potential for the notice to be confusing. It was also put to him that the notice was pre-prepared and issued in an attempt to abrogate the applicant's right to silence. Constable Young stated "there's always the potential that the applicant will either speak or he won't speak".

Body worn camera footage

22           Given the importance of this evidence to the magistrate's decision and the applicant's grounds of review, it is necessary to set out what transpired on 22 July 2023 as captured in the body worn camera footage in some detail.

23          The interaction between Constable Young and the applicant commenced with Constable Young cautioning the applicant. Constable Young then asked the applicant the following:

"Firstly, what happened on the 18th March with your car?"

The applicant responded:

"Well, I'm not one hundred per cent sure and I'm yet to seek legal advice so I

probably don't really want to answer any questions at the moment."

The applicant went on to say that he wanted to get a bit of advice first.
Following that exchange, Constable Young stated the following:

7   No 18/2025

"Um, if that's the case, what I will do – is this is a driver demand, which is essentially us trying to find out…well, to give you this to say, 'cos you're the registered owner,…"

The applicant responded:

"Yep".

Constable Young continued:

"…we give you to find out who the registered owner or who was the driver who was
driving the vehicle at that particular point in time."

24           Throughout that portion of the exchange, the applicant said "yep", "yep", "yep". Constable Young was holding a form which he then provided to the applicant. He invited the applicant to read it to himself. The applicant appeared to read it, spending some time doing so. Constable Young then read the form out to the applicant. The document he read out to the applicant is the notice of demand that was tendered at the hearing. The applicant nods at times while the notice is being read. Its contents are set out later in these reasons.

25           After reading the notice to the applicant, Constable Young told him to bring the form back to the Burnie Police Station by "Saturday next week", with it filled out. Constable Young explained how to fill out the form and advised that a failure to comply with the notice would result in a fine being imposed. The applicant nodded and stated "yep" on multiple occasions during the course of that explanation being given. After a further exchange concerning the applicant's desire to obtain legal advice and not wanting to participate in an interview, Constable Young stated the following:

"What essentially – I am 99.99 percent sure you are the driver. But, like I said, I've got to prove that you are the driver regarding all these offences. I don't know if you remember what the other officer said, like there are witnesses and other stuff pointing to you as the driver at the time."

26           There was then a discussion about charging and the length of time that it would take for the matter to resolve. The exchange ended with the applicant stating he would "get this all sorted out" as he left the room.

Notice of demand

27 The notice tendered on the trial is a standard form headed "Requirement on the Registered Operator or Owner of a Motor Vehicle". It is a form used not only for a notice of demand under s 37GA of the Police Offences Act, but also for demands under s 51(3) of the Traffic Act 1925 and s 37N of the Police Offences Act. The form sets out the applicant's name and address in full. It then sets out the following information:

"At (time): 20:55 On (date): 18 March 2023 The person who was the driver or occupant (s37GA only) of a motor vehicle, registration number: F76GH In (public street): Golf Links Road At (suburb) in Tasmania: Wynyard Committed an offence in that (he or she) did on the said date, against: Road Safety (Alcohol and Drugs) Act 1970.

Offence details:

On the 18th of March 2023 police attended a single vehicle crash on Golf Links Road, Wynyard. The driver of the vehicle was not present at the secene (sic) when police arrived. CCTV footage and statements obtained by police indicate that the driver of the vehicle was under the influence of alcohol when driving."

The notice then sets out the following instructions:

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"I now direct you, pursuant to the powers conferred upon me by Section 51(3) of the Traffic Act 1925 or Section 37GA of the Police Offences Act 1935 to provide me with the following information so that proceedings may be taken against the driver or occupant for the offence as so stated.

1            The name and address of the driver or occupant of such vehicle driven as aforesaid and if known, the date of birth and drivers license number of driver or occupant of the motor vehicle at the time the offence was committed.

2            If you are unable to ascertain the details of such driver or occupant, you are directed to specify any information that may lead to the identification of the driver/occupant, including all the reasonable steps you have taken to ascertain the information required.

3            You have (7) seven days to comply with these directions and report the results to me via the attached declaration, within that period, or sooner if practicable to:

Name of Officer: Constable J. Young Station: Burnie"

28           The form includes a section titled "Registered Operator/Owner Declaration" where the details of the driver or occupant of the motor vehicle may be provided. It also provides space to include information of the reasonable steps taken to ascertain the information sought by the notice. It is required to be completed as a statutory declaration.

29           No further evidence was called on the trial. At the conclusion of the prosecution case, the applicant submitted he had no case to answer. On 5 July 2024, the magistrate ruled the applicant had a case to answer. No issue is taken with that ruling. The applicant advised that he did not wish to give or adduce evidence.

Magistrate's decision

30           The magistrate provided her decision in writing on 23 August 2024. She first noted there was no challenge to the evidence that the notice had never been returned to the police once issued. The magistrate observed the defence case, in essence, challenged the validity of the issuing of the driver demand notice.

31   After setting out the evidence and relevant provisions, the magistrate's decision proceeded as

follows:

"ARGUMENT

15          Defence submits that on the hearing, the court did not receive any evidence regarding the registration and ownership of F76GH. It is clear on the body worn camera footage that the officer asserts that the defendant is the registered owner of the car in question, to which he replies 'yes'. The form is then gone through, including statements that the car in question is F76GH and it is asserted that the defendant is the registered owner. He does not dispute this. Both the body worn camera and the notice in question were tendered into evidence with no challenge as to this. I am satisfied that the defendant was the registered owner of F76GH.

16          Defence further submits the notice is invalid as it refers simply to the Road Safety (Alcohol and Drugs) Act, without specifying an offence. With respect, I disagree. The section referred to states 'Committed an offence in that (he or she) did on the said date, against' and then leaves a line. To my mind, this is clearly to state the piece of legislation as it then goes on to state, in the next section, 'Offence details'. In this section it is detailed the offence alleged is driving under the influence of alcohol. While it may not specifically identify the section of the Act, the offence alleged is clear.

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17          Defence further submits the notice is invalid due to ambiguity, in requesting details of the driver or occupant. It is a pro-forma notice which clearly can be tailored to either a demand for information of a driver or occupant, whoever is alleged to have committed an offence. The detail that has been filled in, in the notice, makes it abundantly clear that, in this instance, it is the driver of the vehicle who is alleged to have committed the offence and that is the information being sought. I reject the submission that it is ambiguous.

18          Overarching a number of these submissions is reference to the matters espoused by Wood J, in the case of Arnesto v Hickman [2016] TASSC 26, which dealt with section 55A(1) of the Police Offences Act and the right to require a person give their name and address, once certain other factors are met. In circumstances where a statutory requirement impinges on a fundamental right to silence, clearly the principal of statutory construction falls in favour of the least infringement of the common law right and requires clear words and basic reasons as to the infringement on that right.

19          Here the language of the section clearly and expressly states that the person must give the information. This is also clear in the notice that is given. The notice states the direction, the reasons for it and what must occur. The requirements are met.

20          Defence challenge that the officer held a reasonable belief as to the offence alleged having been committed. They state, in their written submissions that the officer agreed under cross-examination that the footage was from inside the Wynyard Golf Club and did not depict the motor vehicle or any evidence of the driver being under the influence. They further argue that officer agreed that the witness statements obtained did not demonstrate that the driver was under the influence.

21          The officer was asked under cross-examination whether the CCTV was from inside the Wynyard Golf Club, to which he agreed. He also agreed that there was no footage outside. He agreed with the proposition that the footage did not determine who the driver was, but nothing more than that. He did not assert or agree that it did not depict the motor vehicle, the crash or the driver itself, even if they could not be identified.

22          The office was cross-examined on the statements taken and agreed they did not help identify who the driver was. He also agreed he did not 'know' that the driver of the vehicle was under the influence of alcohol. I note that my determination is based on whether the officer is satisfied an offence has been committed, that is, he reasonably believed the driver, whoever that may have been, was driving under the influence.

23          The term satisfied seems to be akin to the need for the officer to hold a reasonable belief. It is not based on the mere fact of an accident, but rather an aggregate of all the information received leads to the belief; including CCTV, medical and witness statements and surrounding circumstances, including inferences such as that which could be drawn from the driver leaving the scene. It seems clear that information did not help him determine 'who' the driver was, hence the notice of demand being issued, but I am satisfied he was satisfied the driver, whoever it may be, had committed an offence.

24          The information gathered clearly founded a reasonable basis for satisfaction that an offence had occurred. It can clearly be inferred from the evidence gathered and the specific details put into the notice."

32          The magistrate determined that the notice of demand was issued validly by the officer and was not complied with. As a consequence, she found the charge proved.

The nature of the review

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33 The notice to review asserts the magistrate "erred in fact and in law in finding that the charge of failing to comply with a driver demand notice, contrary to Section 37G(1) of the Police Offences Act 1993 (sic), was proven beyond reasonable doubt" on five grounds. The nature of a review pursuant to s 107 of the Justices Act 1959 (Tas) is well-settled. Relevantly, a notice to review shall allege "an error or mistake on the part of a magistrate on a matter or question of fact alone, or of law alone, or of both fact and law": s 107(4). As explained by Crawford CJ in Phillips v Arnold (2009) 19 Tas R 21 at 31, [46] (Blow and Porter JJ agreeing):

"A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

Grounds (a) and (b) – the finding the applicant was the registered owner of the vehicle

34           These two grounds are related in that they attack the magistrate's finding that the applicant was the registered owner of the motor vehicle. The grounds assert error on the part of the magistrate as follows:

"a By finding that there was sufficient evidence before the Court that the Applicant was the registered owner of the vehicle, registration number F76GH, on the basis that on Body Worn Camera footage, when the Police Officer asserted that the Applicant was the registered owner of the vehicle, he responded 'yes' when in fact, the Body Worn Camera footage did not depict the same.

b By finding that the Court was satisfied beyond reasonable doubt that the Applicant was the registered owner of the vehicle, registration number F76GH, on the basis that on that Body Worn Camera footage, the Application (sic) did not dispute being the registered owner, however, he did not confirm the same therefore the Court could not be satisfied beyond reasonable doubt as to who the registered owner of the vehicle was. "

35           By these grounds, the applicant attacks the factual finding that the applicant responded 'yes' when the police officer asserted he was the registered owner of the vehicle, together with the magistrate's alleged reliance on the applicant's failure to dispute the assertion he was the registered owner.

Applicant's submission

36   The applicant's submissions in respect of these grounds are set out in his outline of

contentions as follows:

"9

Her Honour refers to the Body Worn Camera footage and to the moments after the Applicant exercised his right to silence. The issuing Officer indicated, prior to handing the form to the Applicant, that he was issuing the notice to the Applicant as the registered owner. The issuing Officer had not asserted the registration of the vehicle and the Applicant had not commenced to read the form. There was no confirmation in the footage that the registration of the vehicle was, in fact, the vehicle that belonged to him.

10

The learned Magistrate also found that, during the course of going through the questions on the form, there was a statement that the car in question was vehicle registration number F76GH. Contrary to what was captured, the following finding that "it is asserted that the defendant is the registered owner." did not occur. The form itself does not meet the requirements of the Act and does not refer to the Applicant as the registered owner in any form.

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11          Her Honour then observed that the applicant did not dispute that he was the registered owner when, in fact, it was not stated to him. In any event, that comment misunderstands the burden of proof and the Magistrate erred in fact and in law in being satisfied that the Applicant was the registered owner of vehicle F76GH when there was no evidence to support that finding."

37   During the course of the review hearing, counsel for the applicant argued that:

"…the fact the form was read and he didn't object or didn't say, 'that's not my vehicle' is not evidence to suggest beyond reasonable doubt the vehicle was his. The normal practice… in regards to proof of these sorts of matters is to produce a certificate or registration. That was not produced. That the evidence that the prosecution will required to present to the Court… to evidence the ownership, but the Court never received that."

As to the asserted error in ground (a), counsel for the applicant stated:

"…the fact that [the applicant] just comments about a yes before receiving the form is not beyond reasonable doubt satisfaction who the registered owner is and that is an element of the offence required by prosecution services to prove and they did not prove that".

As I understand it, the applicant argues that his affirmative response to the proposition he was the registered owner of the car was not capable of supporting the finding he was the registered owner of the car in circumstances where Constable Young's assertion had not been preceded by notification of the registration number or a description of the vehicle.

38           As to ground (b), the applicant notes he was under no obligation to make any objection to the assertion he was the registered owner. He had previously indicated he wished to exercise his right to silence. By extrapolating an admission from his failure to dispute he was the owner, the applicant says the magistrate was in error.

Respondent's submissions

39 The respondent submitted that the definition of "owner" pursuant to s 37A of the Police Offences Act was relevant to the determination of these grounds. As a consequence, the applicant is the owner of the motor vehicle in question if the police officer reasonably believes that he is the owner. The respondent submits that Constable Young's assertion, as captured on the body worn camera, that the applicant is the registered owner, is evidence which establishes his belief that the applicant was the "registered owner" of the motor vehicle to which the allegation set out in the notice related. The respondent also referred to the evidence that Constable Young gave during the course of the hearing, including under cross-examination, where it was put to him that he had received information about the registered owner of the vehicle.

40           The respondent acknowledges that the magistrate did not rely on the extended definition of “owner” in her reasons for decision. The magistrate did, however, determine that she was satisfied the applicant was the registered owner of F76GH which the respondent submits was a higher standard than required. The respondent submits that no miscarriage of justice has resulted to the applicant as a consequence.

41           As to the magistrate's reliance on that part of the body worn camera footage where the applicant responded affirmatively to Constable Young's assertion that he was the registered owner, the respondent submits that there can be no doubt that the applicant knew at that point that the motor vehicle in question bore the registration number F76GH. In support of that submission, the respondent referred to the earlier part of the interaction where Constable Young asks the applicant "what happened on 18 March with your car?".

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42           The respondent also submits that the magistrate was entitled to rely on other aspects of the interaction between the applicant and Constable Young, including the fact that the applicant did not dispute that he was the owner. In this respect, the respondent relies on Woon v The Queen (1964) 109 CLR 529 where Kitto J said at 536:

"The accused person's reaction or failure to react to the making of the statement may, according to the circumstances, afford evidence that he admits that the statement or some part of it is true."

and at 537:

"The point here is that, whether or not an accused person's reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged."

43   The respondent notes that this proposition from Woon was accepted by Brett J in the case of

Bonde v De Bomford [2019] TASSC 12 at [12] where his Honour stated:

"A reasonable inference from the comments of the respondent at the scene, as reported by both police officers, is that she was admitting having been the driver of the motorcycle. It would also be relevant to assess what she said in the light of any failure by her to explain further that another person was in fact the driver of the motorcycle: see Woon v The Queen [1964] 109 CLR 529."

44           The respondent submits that the body worn camera footage indicates that there was a clear mutual understanding about the subject of the conversation and that it related to the car with the registration F76GH, which was the car that Constable Young observed in the aftermath of the crash. In relation to the submission that the evidence supports the conclusion that Constable Young held a belief that the applicant was the registered owner of the car, the respondent further submits that the evidence supported he also had a reasonable basis for the belief. This is because Constable Young gave evidence he conducted an investigation into the crash which culminated in him serving the driver demand on the applicant. The respondent submits the conversation cannot be considered in a vortex. Relevant to the reasonableness of Constable Young's belief is the fact he had arranged for the applicant to come and see him at the police station for interview.

45           On that basis, the respondent asserts the magistrate was entitled to draw an inference on the totality of the circumstances that the applicant was the owner of the vehicle on the basis that Constable Young referred to information he received which culminated in him serving the driver demand on the applicant and pre-filling the details on the form. The respondent submits the entry of that information into the driver demand notice is also something that can be taken into account as evidence of Constable Young's state of mind. In any event, the respondent submits that the applicant made a clear and express admission to the proposition that he was the registered owner.

It was open to find beyond reasonable doubt that the applicant was the owner

46 It is an element of an offence contrary to s 37G(1) that a demand be made of an owner or registered operator either orally or by way of service of notice of demand. Pursuant to s 37A of the Police Offences Act, proof that a person is registered in the record of motor vehicles kept in accordance with s 41 of the Vehicle and Traffic Act as the owner, is capable of establishing this element of the offence. In this case, the magistrate found the applicant was the "registered" owner of the motor vehicle. She did not rely on the extended definition of owner.

47 An evidentiary certificate signed by the Registrar pursuant to s 67(3) of the Vehicle and Traffic Act certifying an entry in the register kept under s 41 of that act, “is evidence in legal

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proceedings of facts recorded in the entry and, in the absence of evidence to the contrary, as proof of those facts”. The applicant is right to identify that this would be an acceptable way to prove that a person was an owner of the relevant motor vehicle within the meaning of s 37A of the Police Offences Act. It is not correct to say that such a certificate is required in order to prove that fact. There is nothing in the definition of s 37A of the Police Offences Act or s 67 of the Vehicle and Traffic Act to support such a proposition. Indeed, the terms of s 67 of the Vehicle and Traffic Act contemplate that other evidence may be capable of displacing the evidence contained in such a certificate.

48           Whether the applicant was the "owner" of the relevant motor vehicle was a question of fact to be determined by the magistrate. As such, the applicant is required to establish that the magistrate could not reasonably have come to the conclusion that the complaint was proved beyond reasonable doubt: Aviation Consolidated Holdings Pty Ltd v McMullen [2025] TASFC 6, Porter AJ at [18].

49           In my view, it was open to the magistrate to conclude beyond reasonable doubt that the applicant was the owner, and, more particularly, the registered owner of the motor vehicle. During the exchange between the applicant and Constable Young, which was captured on the body worn camera footage, Constable Young asserts that the applicant is the registered owner of the vehicle. In fact, he told the applicant he was giving him the notice because he was the registered owner of the vehicle. The applicant responds 'yes'. While Constable Young’s assertion was not accompanied by or preceded by any reference to the registration plates or description of the motor vehicle in question, it was not made in a vacuum. Prior to that part of the exchange, Constable Young asked the applicant "what happened on 18 March with your car?". The applicant stated he was not "100% sure", would like to get some legal advice and probably did not want to answer any questions at that moment. Constable Young also gave evidence that the applicant had been picked up on the night of the crash and taken to the hospital by "other units" based on information that he was the driver of the vehicle at the time of the crash. Based on this context, it was open for the magistrate to be satisfied beyond reasonable doubt that the applicant was well aware that the discussion with Constable Young concerned the car involved in the crash on 18 March 2023 and that it was asserted he was the registered owner. It was also open for the magistrate to conclude that the applicant's affirmative response to the proposition he was the registered owner of the car in question was an admission of that fact. The applicant continued to nod and respond 'yep' when the notice was read to him which included an express reference to the registration plate and a description of the incident that gave rise to the notice. The magistrate did not err in reaching that conclusion.

50           As to the allegation that the magistrate made the finding based on the applicant not disputing being the registered owner, it is clear that was not the only basis for doing so. The alleged error in ground (b) asserts this is an erroneous finding of fact. The argument in this Court went down a slightly different route, suggesting the magistrate made a positive finding the applicant was the registered owner because he did not deny it, and by doing so, ignored the applicant's right to silence. I do not consider that to be a fair reading of the magistrate's reasons. As I have pointed out, the applicant's absence of denial was not the sole basis for the finding. The magistrate at [15] of her reasons notes that the form was gone through, that it included statements that the vehicle in question is F76GH and it was asserted he is the registered owner and he did not dispute this. This is in the context of the magistrate identifying the applicant had earlier responded affirmatively to the proposition that he was the registered owner. What the magistrate did not say, but is quite apparent on viewing the footage, is that the applicant continues to nod and say 'yep' when the form is read to him. In my view, the comment that the applicant did "not dispute" he was the registered owner is not a reference to the applicant remaining silent in the face of the assertion he was the registered owner; he patently did not. The reference to the applicant not disputing he was the registered owner is clearly a reference to his conduct generally throughout the course of the form being read to him. As the High Court made clear in Woon, "an accused person's words, conduct or demeanour at a time a statement is made may amount to an acceptance of it", even where he or she does not intend to manifest agreement with it.

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An accused person's reaction has evidential value when considered in light of the circumstances: Kitto

J at 537.

51   Accordingly, grounds (a) and (b) are not made out.

Ground (c) – the finding the driver demand notice was not ambiguous and was validly issued

52   This ground alleges as follows:

"By finding the driver demand notice was validly issued despite the ambiguity in its form and the ambiguity of representations made by the Investigating Officer at the time of issuing the driver demand notice to the Applicant."

Submissions

53          The relevant ambiguity is not particularised in the ground. The applicant's outline of contentions in respect of this ground are as follows:

"12	Section 37GA(2) directs the contents of the notice (citing Acts Interpretation Act s 10A(1)(b)).
13	As observed above, the notice does not specify the owner or the registered proprietor and simply says to 'the applicant' and his address.
14	As argued before the learned Magistrate, the notice is ambiguous at best to the extent that it refers to 'driver' or 'occupant'. If the notice was validly issued, it had to state whether it was the driver that committed an offence or it had to state whether it was the occupant that committed the offence. It did not do either but referred to both 'driver' and 'occupant'.
15	For the notice to be validly issued, the police officer issuing the notice of demand had to be satisfied on a reasonable basis that an offence is being committed. The evidence given did not support a reasonable belief for the driver, who remained unidentified, as committed an offence and was not founded on any factual basis reasonably open on the evidence."

54 During the review hearing, the applicant expanded on this ground. The first aspect of ambiguity alleged is the failure to comply with s 37GA(2)(a) which provides that a notice of demand is to indicate the offence to which it relates. The applicant complains that the form issued to the applicant just refers to an entire act. The applicant submits that s37G is a coercive piece of legislation impinging on the fundamental right to silence. Consequently, certainty is required when seeking to undermine such a right. The basis upon which that right is being undermined is required to be highlighted to the recipient of the notice without ambiguity. The applicant particularly relied on the decision of Arnesto v Hickman [2016] TASSC 26 in support of this proposition. I understood the applicant to argue that this decision is authority for the proposition that the notice requires full articulation of the offence to which it relates including the name of the legislation and the specific offence provision said to have been breached.

55           The applicant also argues that the notice should be specific as to whether it is alleged that the occupier or the driver of the car has committed the offence. If the notice fails to do so, the applicant argues it does not give sufficient or accurate notice to the recipient of the basis for it being issued and is, therefore, invalid.

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56 The respondent submitted that the notice specified the act of parliament said to have contained the alleged offence. It also stated that the allegation was that the driver was "under the influence of alcohol when driving". The respondent submits that this information provided a clear indication that the offence to which the notice referred is found in s 4 of the Road Safety (Alcohol and Drugs) Act, namely driving under the influence of alcohol. The respondent submits that s 37GA(2)(a) does not require the precise offence provision to be specified on the notice of demand. The respondent argues the word "indicate" was a deliberate choice made by parliament and can be contrasted with the word "specify" used in subsections (2)(b) and (2)(c) of s 37GA. The respondent relied on the Macquarie Dictionary definition of "indicate" which means "to be a sign of" or "to point out or to point to". The respondent argues the information in the notice of demand, therefore, satisfied the relevant requirements of s 37GA.

57           As to the applicant's assertion that the form failed to make clear whether it was the driver or the occupant of the car who was said to have committed an offence, the respondent argues that the particulars of the offence set out in the notice made it clear that it was the driver of the car who was the subject of the allegation. Further, the respondent submits there is no requirement that the notice contain the information at the level of detail which the applicant asserts should be provided. The respondent also relied on the decision of Arnesto v Hickman, and particularly [47] of that decision where Wood J held:

"The interpretation argued on behalf of Ms Arnesto does not necessitate that police officers, in requiring a person to state their name and address, communicate a complex or comprehensive level of detail."

The notice was not invalid

58 The applicant relies on two alleged instances of ambiguity in the notice which are said to offend the requirements of s 37GA. The applicant asserts the notice is invalid as a consequence.

59 As noted above, the requirements of a notice of demand set out in s 37GA(2) are expressed in directory rather than mandatory language: see s 10A(b) of the Acts Interpretation Act. Pursuant to s 37GA(2)(a), a notice of demand is required to "indicate" the offence to which it relates. I agree with the respondent's observation that the choice of language here is significant. The other matters required to be set out in the notice pursuant to s 37GA(2)(b) and (c), which relate to the registration number of the motor vehicle, the content and form of the information to be provided and the time frame for doing so, are to be "specified" rather than "indicated". The ordinary and natural meaning of the word "indicate" according to the Macquarie Dictionary, Eighth Edition, 2020 is, relevantly:

"1.To be a sign of,… imply; 2. To point out or point to; direct attention to… 3. To show, or make known…; 4. To state or express, especially briefly or in a general way."

By contrast, the ordinary and natural meaning of "specify" in the same dictionary is, relevantly, "to mention or name specifically or definitely; state in detail".

60           The context and purpose of the provision also supports the proposition that something less than specificity is required. Taking a version of the circumstances involved in this case way of example, it would be impossible to specify with particularity the precise alcohol related offence that a person is alleged to have committed as a driver until such time as the identity of the driver is known. The Road Safety (Alcohol and Drugs) Act provides for different blood alcohol limits depending on the licence status or prior convictions of the driver: see, s 6(1) and (2). This is but one example of why it would be impractical to advise of the precise offence a person is alleged to have committed when driving a car.

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61           In this case, the magistrate concluded at [16] of her decision that while the notice did not "specifically identify the section of the [Road Safety (Alcohol and Drugs)] Act, the offence alleged is clear". In my view, there is no error demonstrated in that conclusion. Section 37GA(2)(a) does not require a precise identification of the alleged offence. It is sufficient that the notice express in a general way the offence or offences alleged to have been committed by the driver or occupant of the vehicle as the driver or occupant of that vehicle. The notice did that, and more. It notified the act of parliament which was said to have been breached. The particulars described how that act of parliament was said to have been breached with sufficient detail to enable the recipient to understand that it was alleged the driver was driving the vehicle whilst under the influence of alcohol at the time of the crash. Such conduct can constitute a number of different offences contrary to the Road Safety (Alcohol and Drugs) Act, including driving under the influence of alcohol contrary to s 4 of that Act.

62 The second issue arises from the terms of s 37G(1) and the requirements of a notice as set out in s 37GA(2)(c). Section 37G(1) provides that the power to make a demand and the obligation to comply with it arises "where a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle". A demand made by way of a s 37G notice is required to "specify" that the owner of the motor vehicle is to provide a statutory declaration stating "the name, address and, if known, the date of birth and driver licence number of the driver or occupant of the motor vehicle at the time the offence was committed", or alternatively, where they do not know the details, information that may lead to the identification of the driver or occupant of the motor vehicle or the reasonable steps taken to obtain such information.

63 The contents of the form utilised for the purpose of a s 37GA notice is such that it may be issued in order to obtain identifying details of a driver or occupant of a car. The applicant asserts that the form did not expressly state whether information was sought as to the driver or the occupant of the relevant vehicle and that a failure to do so means it was not validly issued.

64           In my view, there is no substance to this argument. First, when the content of the notice is considered as a whole together with what Constable Young said to the applicant, it could not be said that the demand was ambiguous as to whether information was being sought regarding the driver or occupant of the car. Constable Young expressly told the applicant the notice was being issued so they could "find out who … was the driver who was driving the vehicle at that particular point in time". He later made it clear the demand was directed at assisting them prove that the applicant was the driver at the relevant time. In addition, the particulars of the offence alleged to have been committed as set out in the form were clearly related to the driver of the car, not the occupant. The notice expressly referred to seeking information "so that proceedings may be taken against the driver or occupant for the offence as so stated". The offence "so stated" was one alleged to have been committed by the driver. There was no error in the magistrate concluding that the notice "makes it abundantly clear that, in this instance, it is the driver of the vehicle who is alleged to have committed the offence and that is the information being sought". Nor did the magistrate err in rejecting the submission the notice was ambiguous and finding the statutory requirements were met.

65   This ground is not made out.

Ground (d) – the finding that Constable Young held a reasonable belief that an offence had been committed.

66   This ground reads as follows:

"The learned Magistrate erred in fact and in law in determining that the officer held a reasonable belief that an offence had occurred giving the paucity of information available to the office (sic) as to who was driving and as a consequence, the Driver Demand Notice was invalidly issued."

Applicant's submissions

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67   The applicant's outline of contentions addresses this ground as follows:

"16	As her Honour agreed in her decision, for the issuing Officer to be so satisfied that an offence had occurred, the Officer had to hold a reasonable belief that an offence had been committed, that offence being driving under the influence.
17	Her Honour found that the information gathered by the police officer clearly found (sic) the reasonable basis for satisfaction of the Officer that an offence had occurred. That finding, it is respectfully submitted, does not stand up to scrutiny on the evidence that the Officer had given and the information received.
18	It is clear from the evidence of the issuing officer, Constable Young, whilst under cross-examination, he did not have any information that the driver was under the influence of alcohol or not. When that question was put to him, he agreed it was true.
19	In these circumstances the issuing Officer could not hold reasonable belief that the driver was under the influence of alcohol when driving as the information was clearly devoid of that fact and the Officer admitted the same.
20	It is submitted, in these circumstances, the notice was invalidly issued and as a result, the Applicant was not obliged to comply with that notice, even if the Court was satisfied the Applicant was the registered proprietor."

68           The applicant maintained that the relevant precondition for the issuing of the notice was whether the police officer was satisfied that the driver or occupant of the motor vehicle had committed an offence. The applicant submitted this required proof the issuing officer was so satisfied and that there was a reasonable basis for that state of satisfaction. Ultimately, the applicant submitted there was no evidence that Constable Young had a reasonable basis for being so satisfied.

Respondent's submissions

69 Consistently with their arguments concerning the construction of s 37G(1), the respondent submits it is not a precondition to making a demand pursuant to s 37G(1) that a police officer be satisfied that the driver or occupant of that vehicle has committed an offence. The respondent submits that what is sufficient is proof that a person is alleged to have committed an offence of the kind referred to in s 37G(1) as the driver or occupant of a motor vehicle. In any event, the respondent submits that the magistrate's finding was open and her conclusion that Constable Young reasonably believed the driver, who ever that may have been, was driving under the influence necessarily satisfied the precondition under s 37G(1). Having satisfied herself to a higher standard than required, the respondent submits that no substantial miscarriage of justice has resulted from any error in that regard.

70           The respondent submits that there was sufficient evidence on the hearing to justify the conclusion that a person was alleged to have committed an offence as the driver. In any event, there was sufficient evidence that Constable Young was satisfied that the driver of the vehicle had committed an offence. He gave evidence that he observed the aftermath of a crash, received information from witnesses and other police officers, and subsequently obtained statements, CCTV and medical records relating to the matter. In addition, Constable Young stated during the course of his interaction with the applicant, "I'm 99.99% sure you are the driver but like I said I have to prove you are the driver regarding all of these offences". The allegation was expressly set out in the notice which was provided to the applicant. That notice, together with Constable Young's statement, was sufficient to establish that: (a) Constable Young held a belief that an offence has been committed, in this case by the applicant; and (b) that belief was based on reasonable grounds in all of the circumstances.

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The precondition for issuing a notice was established beyond reasonable doubt

71 As I have already identified, the relevant precondition for the making of a demand pursuant to s 37G(1), whether orally or by way of a s 37GA notice, is an allegation that a person has committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle. This is similar to the preconditions for the making of demands for information pursuant to s 37N of the Police Offences Act and s 51(3) of the Traffic Act. I have been unable to identify any decisions in this jurisdiction concerning the operation of these provisions. There are, however, like provisions in other jurisdictions which are of some assistance in dealing with this issue.

72           In DPP (NSW) v Hammoud [2006] NSWSC 562, McClellan CJ at CL dealt with an appeal from a decision of a magistrate dismissing a charge of failing to comply with a demand for information contrary to s 21(1)(a) of the Road Transport (General) Act 1999 (NSW). That provision empowered an authorised officer to require information of the responsible person for a vehicle as to the name and home address of the driver "if the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation". The magistrate had dismissed the charge on the basis that the form of the demand made a general, rather than specific, allegation.

73           McClellan CJ at CL observed that the relevant law was the subject of a decision of the Court of Criminal Appeal in R v Davis [1976] 1 NSWLR 84 where Street CJ, with whom Begg and Ash JJ, agreed said at 87:

"The section is aimed, in a far more general context, at enabling the police to ascertain, from the owner of a vehicle, particulars of the driver of that vehicle at the time of the incident the subject of the allegation. The obligation on the owner or custodian arises merely in consequence of there being an allegation made that a driver of a stated vehicle was guilty of an offence. The truth of the allegation in any of its particular portions does not form a condition precedent to the arising of the statutory obligation under s. 5(3)(a) to furnish information. Specifically, this extends both to the portion of the allegation of guilt of an offence, as well as to the identity of the motor vehicle being driven. This is the single composite allegation which conditions the operation of the section."

With reference to this decision, McClellan CJ at CL held at [18] that:

"The section did not require an investigation of factual matters, and a determination of whether a prima facie case could be made out of an offence by the third party or indeed any assessment of the evidence in relation to that matter at all. All that the section required was that the respondent be informed that the police were alleging that an offence had been committed and sought information as to the driver of the vehicle at the time when that offence was allegedly committed." (emphasis added)

74 The magistrate was in error in determining that the exercise of the power pursuant to s 37G(1) was conditioned on the police officer being satisfied on reasonable grounds that the driver or an occupant of that motor vehicle has committed an offence. This should not be taken as a criticism. It is clear that both the prosecutor and counsel for the applicant made submissions to the effect that the relevant precondition for making the demand was to be found in s 37GA(1). The magistrate found that Constable Young was satisfied that the driver of the vehicle had committed an offence based on "an aggregate of all the information received…including CCTV, medical and witness statements and surrounding circumstances, including inferences such as that which could be drawn from the driver leaving the scene". In my view, that conclusion was readily open, albeit one that answered the wrong question. What is clear, however, is that there was an allegation that the driver of the motor vehicle the subject of the demand for information had committed an offence as the driver of the vehicle by driving under the influence of the alcohol which is an offence against State legislation, namely the Road Safety (Alcohol and Drugs) Act. That information was clearly set out in the notice.

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75 The error alleged by the applicant is not made out. To the extent the magistrate was in error in determining whether the condition of the power to make a demand was fulfilled based on an incorrect construction of s 37G(1), no substantial miscarriage of justice has occurred. The notice, which clearly evidenced the existence of the precondition for the exercise of the power, was tendered without objection. The magistrate's findings were also clearly sufficient to establish that there was a relevant allegation.

76   This ground is not made out.

Ground (e) – was the demand invalid because it was not necessary?

77   This ground of review is as follows:

"That the learned Magistrate erred in fact and in law in finding the issuing of the Notice of Demand whilst asserting 99% certainty that the Applicant was the driver, was validly issued in undermining the Applicant's common law rights against self- incrimination and his right to silence."

78          This ground alleges invalidity based on Constable Young's statement to the applicant when issuing the notice that he was 99.99% certain that the applicant was the driver.

Applicant's submission

79           The applicant submitted in his outline of contentions that consideration must be given to whether the issuing of the notice was a deliberate act directed at undermining the applicant's common law rights of silence and the right against self-incrimination. The applicant referred to the decision of Arnesto v Hickman where Wood J stated at [37] that the common law is part of the context to be taken into account when construing the provision she was then dealing with. Her Honour, in this context, referred to the High Court decision in Petty v The Queen [1991] HCA 34 where Mason, Toohey and McHugh JJ stated that a person's right "to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played" was "a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country."

80 While the applicant acknowledges that ss 37G and 37GA of the Police Offences Act plainly encroach on the right to silence and the privilege against self-incrimination, he argues the question is one of degree. The applicant submits these fundamental principles favour the least infringement of common law rights, and must not extend beyond the area of operation for which parliament has clearly provided.

81           Against this background, the applicant repeated his submissions that there should be no ambiguity and the reason for the demand must be based on reasonable evidence rather than supposition. The applicant further submits that the use of the driver demand notice should not occur in circumstances where a police officer is deliberately undermining common law rights by seeking that the applicant respond and incriminate himself. This argument was framed as follows:

"32 If, as the Officer believed that the driver was under the influence of alcohol, there was no evidence to support such an inference as there was no evidence to suggest any blood alcohol reading from any other individual that would result in a successful prosecution of the driver. In these circumstances, it would make the Notice of Demand futile in a prosecution."

82 The applicant explained further during the review hearing that although these rights were abrogated by ss 37G and 37GA, their utilisation was still amenable to curial supervision. Essentially, as I understood the argument, in circumstances where Constable Young said he was 99.99% certain

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that the applicant was the driver, the issuing of a notice of demand was not necessary and should not occur given the gravity of taking a step that undermines such fundamental rights. Further, the magistrate should not have found that the notice was validly issued in the circumstances of futility referred to at [81] above.

Respondent's submissions

83 The respondent submitted that there was no warrant to import what was described as "ceiling" as well as a "floor" as a condition of the exercise of the relevant power by a police officer. The respondent submits that ss 37G and 37GA are as clear as they could be, that is they are specific statutory modifications to the right to silence. The only relevant matters conditioning the powers are those outlined at the beginning of s 37G(1) or s 37GA(1), depending on which mechanism is utilised.

Notice not invalidly issued

84 This ground is without merit. The applicant correctly accepted that s 37G abrogated a person's right to silence and privilege against self-incrimination in the circumstances provided for by the provision. There is nothing in the terms of the section to suggest that it only operates in circumstances where the officer issuing the demand cannot prove the identity of the driver or occupant of a vehicle by other evidence. No part of the provision suggests that a demand may only be issued where it is necessary to do so in order to establish the identity of a driver or occupant of a vehicle at the relevant time. It also fails at a factual level as Constable Young's evidence during the hearing was that he utilised poor wording when issuing the demand, that he believed the applicant was the driver but "could not prove it was him". To import a requirement of necessity would undermine the clear language of the provision which only conditions the operation of the provision to circumstances were a person is alleged to have committed a relevant offence as a driver or occupant of a motor vehicle.

85 To the extent this ground asserts that issuing the notice was "futile" and thus invalid as the officer could not prove the driver was in fact driving under the influence, the submission misunderstands the evidence and, again, the operation of the provision. As I have already noted, the demand was made on the basis of an allegation that the driver of the motor vehicle was driving under the influence of alcohol at the time of the crash. The applicant relies on those parts of Constable Young's evidence in cross-examination where he agreed he "never had any ID of the driver" and "as a result, [he] wouldn't know whether the driver was under the influence of alcohol or not". The questions and answers relied upon, first, do not support the proposition that there was "no evidence to suggest any blood alcohol reading from any other individual …would result in a successful prosecution of the driver". There is also no warrant to limit the operation of s 37G to circumstances where there is evidence capable of resulting in a successful prosecution of the driver or occupant. There is no textual support for such a limitation. The condition of the relevant power is that there is an allegation that a relevant offence was committed, nothing more.

86           The authorities relied upon by the applicant also do not support importing such limitations on the exercise of the power. Cases such as Coco v The Queen [1994] HCA 15; 179 CLR 427 recognise that a statute will only be interpreted to have abrogated a fundamental right by the use of clear words to that effect. It is also accepted that a construction which interferes with such rights to a lesser extent is to be preferred to another: Arachchi v Orlowski [2003] VSC 161 per Nettle J at [26]. While the relevant principles of statutory construction demand close scrutiny and a strict reading of provisions such as s 37G (Commissioner of Taxation v Citibank Ltd (1988) 20 FCR 403 per French J at 433), they do not warrant the importation of limitations which derive no support from the clear language of the relevant provision.

87   This ground is not made out.

Conclusion

21   No 18/2025

88   For these reasons, the applicant's motion to review filed on 17 September 2024 is dismissed.