Director of Public Prosecutions v Moreno

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISOIN
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03639

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Stephen Mark Grey)	Plaintiff
v
JOSEPH MORENO (a pseudonym)	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

---

JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2018
DATE OF JUDGMENT:	26 November 2018
CASE MAY BE CITED AS:	Director of Public Prosecutions v Moreno
MEDIUM NEUTRAL CITATION:	[2018] VSC 675 Revised 30 July 2019

---

ADMINISTRATIVE LAW – Application by plaintiff (DPP) for judicial review of a decision of a County Court judge to quash a conviction under s 60(1) of the Road Safety Act 1986 (Vic) (‘Act’) – Charge against the defendant under s 60 of the Act dismissed on the grounds the request for information was not authorised by s 60(1) of the Act – The proper construction of the phrase ‘execution of duty’ in s 60(1) of the Act – Whether the judge erred in law by misconstruing s 60(1) of the Act – Whether the judge erred in finding that the power of a police officer to request information from the owner of a motor vehicle concerning the identity of a driver was restricted to circumstances where that police officer was investigating offences or possible offences under the Act - O’Reilly v Rooney (1989) 10 MVR 19, referred to – Kymantas v The County Court and Samantha Jane Jennings [2001] VSC 298, referred to – Meaning of phrase ‘execution of duty’ – Tester v the Police (1998) 71 SASR 251 applied -Whether the privilege against self-incrimination abrogated – Loges v Martin (1991) 13 MVR 405, referred to – Criteria to be satisfied for reading words into a statute when a literal interpretation of a relevant provision fails to achieve its purpose – DPP v Leys (2012) 44 VR 1 applied – Finding that the judge erred in reading words into the Act– Application allowed – Principle of legality – Lee v New South Wales Crimes Commission (2013) 251 CLR 196, referred to – Discretionary considerations

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Carr	John Cain, Solicitor for Director of Public Prosecutions
For the First Defendant	Mr P Tatti	WMB Lawyers
No appearance for the Second Defendant

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Background to the proceeding.................................................................................................... 1
The Ruling...................................................................................................................................... 8
Submissions................................................................................................................................. 19
Was it permissible to ‘read in’ words into section 60(1) of the Act?................................... 27
The proper construction of s 60(1) of the Act.......................................................................... 32
Disposition of the Proceeding................................................................................................... 49

HER HONOUR:

Introduction

This proceeding concerns a significant issue which has arisen regarding police powers under the Road Safety Act 1986 (Vic) (‘Act’). Under s 60(1) of the Act, an owner[1] of a motor vehicle is guilty of an offence if they fail to give a police officer acting in the execution of duty information which in their knowledge or power to give which may lead to the identification of a driver of that motor vehicle on a particular occasion. If a person is convicted of an offence of failing to comply with a police officer’s request for information under s 60(1) of the Act, the Court must cancel that person’s driving licence for two years. This provision, or variants of this provision, have been a feature of motor vehicle and road safety legislation since 1909. It is apparent from the parliamentary materials before me that a key rationale for this provision and its predecessors was to facilitate police investigation of, among other things, ‘hit and run’ incidents. The question which arises in the current proceeding is whether the power conferred upon police under this provision extends beyond enabling police to investigate offences involving the driving of a motor vehicle to enabling police to investigate other offences not immediately or obviously connected with the driving of a motor vehicle.
[1]There is an extended definition of ‘owner’ in s 60(3) of the Act to include those who are in effective control of a motor vehicle.

In my view, for the reasons which follow, the implied power under s 60(1) of the Act is not confined to circumstances where the relevant offence is an offence under the Act, or, for that matter, a driving related offence not contained within the Act. Accordingly, subject to consideration of discretionary matters peculiar to the first defendant (‘Mr Moreno’[2]), the plaintiff, the Director of Public Prosecutions (‘DPP’) is entitled to the relief sought in this proceeding.
[2]A pseudonym.

Background to the proceeding

The DPP seeks judicial review of a decision made by her Honour Judge Morrish of the County Court on 14 July 2017.[3] Her Honour heard an appeal from the Magistrates’ Court in respect of a sentence imposed upon Mr Moreno concerning, among other things, an offence he was said to have committed under s 60(1) of the Act. This offence was said to have been committed when he was being interviewed with respect to his alleged involvement in a shoplifting incident at Chadstone Shopping Centre on 30 November 2013. During an interview at Moorabbin Police Station, the informant asked Mr Moreno (who was the ‘owner’ of the vehicle within the meaning of s 60(1) of the Act) about the driver of a motor vehicle which was seen to have departed Chadstone Shopping Centre after Mr Moreno and other family members were apprehended by David Jones security staff on suspicion of shoplifting. The informant warned Mr Moreno that any failure on his part to provide information about the driver of the car would result in Mr Moreno being charged with an offence under s 60(1) of the Act, and the possible consequences of such a charge. Mr Moreno refused to answer the informant’s questions, and the charges laid against him subsequently included charges of theft, and for breach of s 60(1) of the Act. On 22 December 2015, a Magistrate convicted him on all charges,[4] fined him $3,000 and ordered that Mr Moreno’s licence be cancelled for two years, as provided for by s 60(2) of the Act.
[3]Moreno (a pseudonym) v Grey (Ruling) [2017] VCC 942 (‘ruling’).
[4]Which included two further charges of shoplifting relating to two subsequent unrelated incidents.

The circumstances under which Mr Moreno was charged were summarised in the statement of alleged facts tendered by the informant, as follows:

On Saturday 30/11/2013, the accused attended the David Jones store located inside the Chadstone Shopping Centre, 1341 Dandenong Rd, Malvern East. The accused attended the store in the company of the co-accused and an unknown female.
At approximately 2:53PM, upon entering the store the accused, co-accused and unknown female attended the woman’s clothing section where they selected 9 items of woman’s clothing valued at $2203 from clothes racks and placed them into a large empty bag which the accused brought into the store.
Loss Prevention Officer Edward DITTMAN observed the accused and co-accused placing the clothes into the bag via CCTV and notified plain clothes Loss Prevention Officers Francis MCMASTER and Alison MAGUIRE of their suspicious behaviour.
At approximately 3:06PM, after browsing the store for a short time, the accused, co-accused and female exited David Jones via the ground level car park without attempting to pay for any of the items. [Charge 1.]
Proximity alarms located at the store exit activated upon the accused passing through them due to security tags placed on the stolen items.
Once outside the store the accused, co-accused and female entered vehicle xxx-123, a black Mercedes 4WD. Before the co-accused was able to exit the car park, MCMASTER and MAGUIRE approached the vehicle and requested the accused and co-accused return to the security office.
A short time after attending the security area, the co-accused decamped from the security staff where he returned to the ground level car park, re-entered vehicle xxx-123 and decamped from the shopping centre whilst leaving the accused with security staff.

The transcript of the interview conducted by the informant at Bayside Police Station on 10 December 2013 was in evidence. During the interview the informant told Mr Moreno that he intended to interview him in relation to a theft. The informant cautioned Mr Moreno that he did not have to say or do anything, but that anything that he did say or do may be given in evidence. He was also told that he had a right to communicate or attempt to communicate with a friend or relative or with a legal practitioner. Mr Moreno gave ‘no comment’ responses to questions about the alleged shoplifting. During the course of the interview, the informant stated as follows:

Q.‘Alright alright. Now since we’ve been made aware of the incident we’ve, obviously run checks on the vehicle, which its alleged that you were driving. Now, checks have shown that vehicle – xxx-123 – is registered to xxx Clothing, or xxx Jeans, in Chadstone, to be specific. Police have spoken with the head office of xxx Jeans and they have nominated yourself as the – the vendor or owner of xxx Jeans in Chadstone. So as such, you are required under the Road – I’ll tell you exactly. The Road Safety Act section 6 so that offences and legal proceedings of the Road Safety Act of 1986. You are required to nominate the driver of that vehicle at the time, so the time I have just spoken about.
A.No comment.
Q.Alright. Well, if you choose to not nominate the driver of a vehicle, it’s a – the penalty is a loss of licence for two years. Alright? So I’ll put it to you again – and just know that if you fail to nominate the driver of the vehicle, you’ll lose your licence for two years. Alright? And if – if your caught driving within that time, you’ll be charged with – with the relevant offences. Alright? So, again I’ll ask you, who was the – who was driving vehicle xxx-123 just before 3 o’clock on the afternoon of 30^th of November this year?
A.No audible reply.
Q.Do you understand the – the question I’ve asked you?
A.Already answered no comment.

Later during the course of the interview Mr Moreno was asked for his reasons for committing the offence of theft and for failing to nominate the driver of the vehicle, and again gave a ‘no comment’ response.

Following the interview, Mr Moreno was charged on summons with one charge of theft, and one charge of failing to respond to the informant’s request for information concerning the driver of a motor vehicle. Mr Moreno was also later charged with theft in relation to two separate incidents. All four charges were heard before the Magistrates’ Court at Moorabbin on 22 December 2015. As noted above, Mr Moreno pleaded guilty to each charge, and was fined an aggregate amount of $3,000, had his licence cancelled, and was disqualified from driving for two years.

On the same day, Mr Moreno lodged an appeal to the County Court against his sentence. Mr Moreno made two subsequent applications to bring an appeal against conviction out of time, each of which were dismissed. The appeal against sentence came before her Honour on 6 March 2017, when she raised the issue which is the subject matter of this proceeding, querying whether there was a legal basis for the charge under s 60(1) of the Act. The matter returned for submissions on 20 June 2017.

On 14 July 2017, her Honour delivered the ruling. She dismissed the charge under s 60(1) of the Act, heard a plea on the remaining charges, and sentenced Mr Moreno, without conviction, to an adjourned undertaking to be of good behaviour, and made a compensation order.

In the ruling, her Honour identified the issue before her as follows:[5]

The request for information under cover of s 60(1) of [the Act] about the identity of the driver had nothing to do with any investigation of an alleged breach of the Act.
The informant’s sole purpose in making the request was to circumvent the appellant’s expressed wish to exercise his right to remain silent in response to police questioning about indictable offences – the alleged thefts.
The issue to be determined is whether, in these circumstances, the request for information as to the identity of the driver was a valid exercise of power under s 60(1). That is to say, whether, when issuing the request, purportedly under cover of s 60(1) of the Act, the informant was ‘acting in the execution of duty’ as that phrase should be construed in the context in which it appears.

[5]Ruling [12]-[14].

Her Honour found that the request for information as to the identity of the driver was not a valid exercise of power under s 60(1) of the Act, in that the informant was not acting in the execution of duty as that phrase should be construed in the context in which it appears. Her Honour stated as follows:[6]

For the reasons explained hereunder, I rule that the request made by the informant in the circumstances of this case was not valid because, when made, the informant was not acting in the execution of any duty under [the Act]. I find that the informant’s true purpose for making the request under cover of s 60(1) of [the Act] was to force the appellant to answer questions about the alleged thefts despite the appellant’s express statement that he intended to exercise his right to silence. In my judgment, s 60(1) was not designed to achieve such a purpose. Asking questions about the alleged thefts of garments serves no purpose under [the Act]. I consider that the phrase ‘member of the police force who is acting in the execution of duty’ contained in s 60(1) of [the Act] should be construed as if the words ‘under this Act’ were included at the end of the phrase.

[6]Ruling [15].

Her Honour concluded that, in order to give effect to her proper construction of s 60(1) of the Act, the following words should be ‘read in’ to s 60(1) of the Act, so that it should read as follows:

… [a person] is guilty of an offence if, when required to do so by a police officer who is acting, in the execution of duty under this Act …

The practical effect of reading these words into the Act is that the recipient of any request by a police officer for information which might lead to the identification of a driver of a motor vehicle could refuse to provide that information if the police officer was not investigating an offence under the Act. One, perhaps unintended, consequence of this formulation of the provision is that police would not be able to utilise the implied power under s 60(1) to investigate driving related offences which are not offences under the Act, such as more serious driving offences which are offences under the Crimes Act 1958 (Vic) (‘Crimes Act’), and indeed, might include ‘hit and run’ incidents. Another, more practical, difficulty with this formulation is that, before making a request under s 60(1) of the Act, a police officer would need to be satisfied that he or she was investigating an offence under the Act, in circumstances where there may be some uncertainty as to whether the driver of a motor vehicle might have committed an offence under the Act, such as careless driving,[7] or dangerous driving,[8] or an offence under another Act, such as recklessly causing serious injury.[9]
[7]Section 65 of the Act.
[8]Section 64 of the Act.
[9]Crimes Act 1958 (Vic) s 24.

On 7 September 2017, the DPP filed and served an originating motion in this Court which seeks:

(1)An order in the nature of certiorari or of mandamus bringing up and quashing the order made by her Honour Judge Morrish of the County Court of Victoria, the second defendant, sitting at Melbourne on 14 July 2017 in proceeding no. AP-15-3253, whereby in dismissing charge 2 (fail to nominate driver under s 60 of the Road Safety Act 1986 (Vic) the defendant committed an error of law upon the face of the record; and
(2)An order in the nature of mandamus that the charges preferred [sic] against the first defendant in proceeding no. AP-15-3253 be remitted to the County Court of Victoria for hearing and determination according to law as an appeal against sentence.

The ground of review relied upon by the DPP is that her Honour erred in law on the face of the record by misconstruing s 60(1) of the Act, and in particular by restricting the application of that section to requirements for information which are given to officers acting in the course of their duty ‘under this Act’.

Section 60 of the Act provides as follows:

60 Duty of owner of motor vehicle to give information about driver
(1)An owner of a motor vehicle, or a relevant nominated person in relation to a motor vehicle, is guilty of an offence if, when required to do so by a police officer who is acting in the execution of duty, the person fails to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on any occasion or had possession or control of the motor vehicle on any occasion or fails to make all reasonable enquiries in order to obtain that information.
(1A)For the purposes of subsection (1) a relevant nominated person means a person nominated in an effective known user statement (within the meaning of Part 6AA) or sold vehicle statement (within the meaning of that Part) as being the responsible person (within the meaning of that Part) in relation to a motor vehicle at the time when the motor vehicle was involved in an offence that is an operator onus offence for the purposes of that Part.
(1B)A police officer who is acting in the execution of duty may require any person whom the police officer believes on reasonable grounds to have had possession or control of a motor vehicle on a particular occasion to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on that occasion or had possession or control of the motor vehicle on that occasion.
(1C)A person who, without reasonable excuse, refuses or fails to comply with a requirement made under subsection (1B) is guilty of an offence.
(2)A person guilty of an offence under this section is liable—
(a)if the requirement is made by a police officer who is investigating an accident involving a motor vehicle that resulted in a person being killed or suffering serious injury—to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than 4 months or to both;
(b)in any other case—to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than 2 months or to both—
and on conviction the court must cancel all driver licences and learner permits held by that person and, whether or not that person holds a driver licence or learner permit, disqualify that person from obtaining a driver licence or learner permit for, in the case of a first offence, at least 2 years and, in the case of a subsequent offence, at least 4 years.
…..

(4) A requirement under this section may be made orally or in writing.

In the ruling, her Honour undertook a thorough survey of the history of the Act and its predecessor legislation, commencing with the Motor Car Act 1909 (Vic). She considered in some detail the principles of statutory interpretation, including the principle of legality, and the test concerning whether it is open to a court to read words into a statute in order to give effect to an ascertained legislative purpose. The parties were in agreement that her Honour correctly identified the relevant principles of statutory interpretation and the relevant test for ‘reading in’ words into a statute. Rather, the DPP submits that her Honour was in error in finding that the power of a police officer to request information from the owner of a motor vehicle concerning the identity of a driver was restricted to circumstances where that police officer was investigating offences or possible offences committed under the Act. The DPP submitted that no such limitation is apparent from the express words of the provision, and the requirements for reading words into the Act were not met. Restricting the operation of the s 60(1) in this manner amounted to an error, which would have a substantial adverse impact on the investigative powers of police.

In summary, Mr Moreno submits that her Honour was correct in both her approach to the task before her and in the result, save that Mr Moreno contended that, on the proper construction of the phrase ‘execution of duty’, it was not necessary for her Honour to read in the words she did.

The Ruling

The charge before her Honour (which was amended during the course of the hearing) was as follows:[10]

The accused at Bayside on 10 December 2013, being the owner of motor vehicle ###‑123 within the meaning of s 60(3)(b) of the Road Safety Act 1986, when required to do so by a police member in the execution of duty, did fail to give information which it was within his power to give and which may have led to the identification of any person who was the driver of the motor vehicle on the occasion specified in the requirement, namely just before 3 o’clock in the afternoon on 30 November 2013.

[10]Ruling [27].

As referred to in paragraph 10 above, her Honour identified the following question of law arising out of her concerns regarding the validity of this charge, being whether the phrase ‘member of the police force who is acting in the execution of duty’ in s 60(1) should be construed narrowly – as meaning acting in the execution of a duty conferred by the Act, or whether the phrase should be given a broader construction – as meaning acting in the execution of any duty that a member of police may perform, whether under any legislative provision or under common law. Her Honour stated:[11]

In other words, should the words be interpreted as conferring power on a member of police to make a request for information about the identity of a driver only in circumstances where police are investigating the alleged commission of an offence under [the Act], or is the element satisfied upon mere proof that a member of police is acting in the execution of any duty according to law?

[11]Ruling [17].

Her Honour noted that the parties agreed that the elements of the offence under s 60(1) are as follows:[12]
[12]Ruling [30].

1. That a member of the police force required the relevant information.
2. That the police officer was acting in the execution of his duty.
3.That the police officer must identify the motor vehicle and the occasion, the subject of his requirement.
4.That the police officer must indicate that he or she is seeking information as the driver of such vehicle on such occasion.
5.That there was a failure to provide the information requested and that it was within the owners power to provide such information.
6.That such information might have led to the identification of the driver of such vehicle on each occasion.[13]

[13]O’Reilly v Rooney (1989) 10 MVR 19, 23.

The only issue before her Honour was whether the informant was acting ‘in the execution of his duty’. Her Honour provided a brief summary of the submissions of the parties, as follows:[14]
[14]Ruling [33]–[35].

The respondent’s submissions
After referring to a number of authorities, Mr Wilson submitted that the words ‘a member of the police force who is acting in the execution of duty’ should be given their literal interpretation, unconstrained by any requirement for a connection with an investigation into an offence under [the Act]. Those words, he submitted, are in clear and unambiguous terms. In short, Mr Wilson submitted that there is no occasion to read words into the provision that would limit the performance of the duty referred to, other than to say the duty must be exercised for a lawful purpose. For example, so he submitted, the provision could not be used to elicit information to satisfy a police member’s personal curiosity about the identify of a driver if the request is unconnected with an investigation or legitimate police business.
The appellant’s submissions
Mr Tatti also referred to authorities. He submitted that having regard to context and legislative purpose, the words ‘a member of the police force who is acting in the execution of duty’ should be interpreted as if they contained these extra words ‘arising from this Act, the regulations made thereunder or relating to the investigation of a driving related offence’.
Mr Tatti drew attention to the distinction between police ‘acting in the course of duty’ and ‘acting in the execution of duty’ and argued that whilst the informant may well have been acting in the course of his duty when he made the relevant request of the appellant, he was not acting in the execution of duty for any legitimate purpose associated with the driving of a motor vehicle.

The submissions made by the parties before her Honour were substantially similar to the submissions made before this Court.

Her Honour went on to refer to s 464A of the Crimes Act, which specifies what must occur and what warnings must be provided when a suspected offender is taken into custody. Her Honour noted that the only crimes that Mr Moreno was suspected of committing at the time of the interview were the crimes about which he was cautioned, being the alleged theft. She stated that the interview was conducted under Part III, subdivision 30A of the Crimes Act, and that the informant, in acting in the execution of duty under that subdivision, had no authority to induce or coerce Mr Moreno to answer any question, including one that might tend to incriminate him regarding the alleged thefts. Her Honour stated:[15]

Instead of leaving the questioning in such a form, and respecting the appellant’s right to silence, the informant threatened the appellant that he would lose his licence if he did not answer the questions. That constituted a blatant attempt to extract an admission by including the appellant to answer questions that might have incriminated him in the commission of the thefts. The appellant was legitimately entitled to decline to answer those questions. Section 464J of the Crimes Act expressly protected the appellant’s right to silence.

[15]Ruling [41].

Her Honour noted that neither party could point to any authority in which s 60 of the Act, or any similar provision elsewhere, had been used as a lawful justification to elicit information from a driver on an occasion where no driving related offence was alleged to have been committed.

Her Honour then went on to consider the principles of statutory construction, including those authorities which emphasise the paramount significance of the text, but also the potential relevance of the context and purpose of the relevant legislation.[16]
[16]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27.

Her Honour also referred to the ‘principle of legality’ described by French CJ in Momcilovic v R[17] as being:

a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language … [18]

[17](2011) 245 CLR 1.

[18]Ibid, [43].

Further, her Honour noted that, provided the relevant conditions are satisfied, it may be appropriate to read words into a statute when a literal interpretation of the relevant provision fails to achieve its purpose. Referring to the decision of the Court of Appeal in Director of Public Prosecutions v Leys (‘DPP v Leys’),[19] her Honour stated these prerequisites as follows:[20]

(i)The Court must be able to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy;
(ii)It must be apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of the Act was to be achieved;
(iii)The Court must be able to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law; and
(iv)The modified construction must be reasonably open.

[19](2012) 44 VR 1.

[20]Ruling [62].

Her Honour considered the language of s 60 of the Act as a whole, noting that the phrase ‘member of the police force who is acting in the execution of duty’ is not defined in the Act, and appears only four times in the Act. She stated that this phrase was capable of conveying both meanings contended for by the parties, such that the scope of the provision could not be determined by an examination of the text of the provision alone. Her Honour referred to the purposes of the Act as set out in s 1 of the Act, and went on to say as follows:[21]

But as will be demonstrated by an examination of the history of the relevant legislation going back more than one hundred years, no express purpose to confer power on police to aid in the investigation or prosecution of any offences other than those created by [the Act] or the regulations made thereunder can be found either in [the Act], or in any previous versions of the Motor Car Act which [the Act] repealed and replaced. Nor is there reference in any extrinsic material to which I was referred or to which I could find that evinces such a legislative intent or purpose. History will show that the purposes of [the Act] and its predecessors have remained generally consistent ever since 1909 when the Motor Car Act was first enacted.

[21]Ruling [72].

Her Honour then went on to undertake a detailed and extensive survey of the legislative history of s 60(1) of the Act and its predecessor legislation, including the parliamentary debates leading into the passage of various iterations of road safety legislation, commencing with the Motor Car Act 1909 (Vic). I shall not repeat that survey here, save to note as follows:

(a) her Honour referred to the purpose and object of the Motor Car Act 1909 (Vic) and the Motor Car Act 1915 (Vic) as being to provide safe, efficient and equitable road use, to set out obligations of road users, and to establish a system of registration;

(b) the phrase ‘member of the police force acting in the execution of his duty’ first appeared in the Motor Car Act 1930 (Vic) (‘1930 Act’),[22] in a provision in substantially similar terms to s 60(1) of the Act. The parliamentary debates at the time show that when s 17 of the 1930 Act was introduced, Parliament was responding to a number of incidents in which the drivers fled without rendering assistance or leaving their names and addresses. Her Honour stated as follows:[23]
[22]Section 17.
[23]Ruling [94].

There is no reference in the relevant debates evincing parliamentary intent to confer any power on police greater than that which might be necessary to give effect to the Act and the regulations made thereunder. Indeed, one of the express purposes was to promote road safety, a purpose consistent with previous forms of the legislation;

(c) she stated:[24]
[24]Ruling [96].

I consider it is apparent that in s 17 of the 1930 Act, there is an inextricable nexus between the requirement to provide information as to driver (sic) and the commission of a driving related offence;

(d) her Honour referred to the Motor Car Act 1951 and the Motor Car Act 1958, and stated as follows:[25]

her Honour referred to the Motor Car Act 1951 and the Motor Car Act 1958, and stated as follows:[26]

[25]Ruling [110].

[26]Ruling [110].

Her Honour then undertook a detailed review of the Act, and amendments to the Act made in 2003, 2006 and 2010. First, her Honour identified the legislative purpose of the Act, as identified in s 1 of the Act, and the purpose of particular parts of the Act, observing that the informant’s preferred construction of s 60(1) of the Act ‘finds no direct or incidental legislative purpose’.[27]
[27]Ruling [112].

Her Honour referred to amendments made in 2003 to confer additional powers upon inspectors, and to require people to give assistance or information to inspectors to exercise their duties under the Act. No amendments were made to s 60 of the Act. She stated:[28]

Significantly, each power so conferred was limited to the purpose of enforcement or compliance with [the Act].

[28]Ruling [115].

In 2006, amendments were made to s 60 of the Act to give effect to other amendments of the Act, which established an ‘operator onus’ scheme in place of the ‘owner onus’ scheme in place prior to that time. The purpose of the amendments, as set out in the relevant explanatory memorandum, was to extend the obligations imposed upon owners of vehicles to identified operators of vehicles, including users of fleet vehicles, where the usual driver of the vehicle is not the owner of the vehicle. In particular, the new operator onus scheme was designed to assist with the detection and enforcement of traffic offences, parking offences, and tolling offences. Her Honour noted that operator onus provisions reflect the general purpose of the Act to ensure that persons who are responsible for breaches of the Act are held accountable for those breaches. She referred to that part of the explanatory memorandum which referred expressly to the proposed amendments, where the amendments were made to:[29]

… assist police in the prosecution of offences to which operator onus applies (such as offences detected by traffic cameras). It may also assist in the investigation of other matters, such as identifying the driver involved in a ‘hit and run’ accident.[30]

[29]Ruling [122].

[30]The Explanatory Memorandum, Road Legislation (Projects and Road Safety) Bill 2006 (Vic), Clause 21.

Her Honour stated:[31]

Nowhere in the extrinsic material is there to be found any express or implied purpose for the amendment to s 60(1) to justify the broad interpretation urged upon me on behalf of the [informant]. To the contrary, the amendment seeks to facilitate the identification and prosecution of drivers for relevant road or traffic related offences, particularly in cases of ‘hit and run’.

[31]Ruling [123].

Her Honour referred to further amendments made to the Act in 2010 to confer additional powers upon police to enable seizure, impoundments, forfeiture or immobilisation of certain vehicles, noting that the powers conferred were limited to ‘specified purposes in connection with the Act’.

Her Honour made the following observations concerning the history and development of the Act:[32]

Apart from a few modifications, the substance of s 60(1) is essentially the same as s 17(1) of [the 1930 Act]. It would appear that over the years, the 1930 version was merely modified and inserted into the new Act. As mentioned earlier, the purpose of the original section was established long ago, yet never since then has any new parliamentary intent or purpose to s 60(1) has been evinced to replace it.

[32]Ruling [128].

Her Honour referred to a number of other provisions of Part 6 of the Act in addition to s 60, including the duties imposed upon drivers where there has been an accident,[33] provisions creating the offences of dangerous driving and careless driving,[34] and s 76 of the Act, which confers upon members of the police force power to arrest certain persons without a warrant. She concluded as follows:[35]

There are other duties and offences created in other parts of [the Act]; too many to mention here, other than to note that the powers conferred are generally limited to achieve the purposes of the Part or Division in which they appear or for enforcement or compliance purposes associated with same.

[33]Sections 61 and 61A of the Act.

[34]Sections 64 and 65 of the Act.

[35]Ruling [146].

Under the heading ‘Conclusions about legislative purpose and intent’, her Honour stated as follows:[36]

The context in which s 60(1) of [the Act] is set cannot be ignored. If a driver has breached any of the duties imposed by virtue of the relevant Part referred to above, it stands to reason that the driver should be held accountable for such breach. In the event that the driver has not been identified, it is logical that s 60 would be available to assist in achieving that purpose.
Examination of the history of s 60(1) of [the Act] and of the evolution of the various Motor Car and Road Safety Acts demonstrates that more than one hundred years ago, Parliament sought to ensure that our roads were safe for all who used them. It sought to regulate the use of motor vehicles and to ensure that those drivers who committed driving‑related offences were accountable for their breaches. In order to achieve this result, as early as 1909, owners of cars were obliged to identify drivers who had committed the offence created by s 10(1) of the Act.
The phrase ‘a member of the police force acting [in] the execution of his duty’ first appeared in the 1930 Act, but context admits of the requirement for a nexus to a driving-related offence. Every other relevant duty conferred on members of the police under the various enactments was linked or incidental to an express statutory purpose.

[36]Ruling [147]-[149].

Her Honour also stated that ‘the principle of legality is of considerable importance in the present appeal’, concluding as follows:[37]

It is inherent in the [informant’s] argument that in the unique circumstances that have arisen in this case, the right to silence has been abrogated, or at least modified by s 60(1) of [the Act]. For this argument to succeed, a legislative intention to abrogate or modify that right when an accused is questioned about thefts and not about a driving offence must be manifest. Taking into account the matters already referred to, I find no such legislative intent. To the contrary, because Parliament specifically turned its mind to the right of an individual not to incriminate himself or herself for the purposes of two provision in [the Act], namely s 84GB and s 138, it could not be said in the absence of clear and unambiguous language, that such a modification or abrogation should be implied in s 60(1). I consider it inherently unlikely that so significant an abrogation of or modification to part III, Subdivision 30A of the Crimes Act would be buried in [the Act] in such an obscure way.

[37]Ruling [154].

Her Honour then turned to the question of whether it was permissible to read words into s 60(1) of the Act to give effect to the legislative purpose of the Act, finding, in summary, as follows:

(a) referring to the parliamentary materials over the past century, and the decision of Kymantas v The County Court and Samantha Jane Jennings (‘Kymantas’),[38] that the mischief the Act was seeking to remedy was ‘holding drivers responsible for offences they have committed under [the Act]’,[39] particularly hit and run collisions;
[38][2001] VSC 298.
[39]Ruling [157].

(b) in relation to the question of whether an eventuality that was required to be dealt with if the purpose of the Act was to be achieved been inadvertently overlooked, her Honour stated as follows:[40]
[40]Ruling [158]-[159].

As mentioned earlier, save for s 84GB and s 138, no express or implied purpose can be found in [the Act] to justify an implied conferral of power on police to either circumvent the provisions of Part III, Subdivision 30A of the Crimes Act, or to abrogate or modify an accused person’s fundamental right to remain silent when questioned about an offence unconnected to driving. Nor have counsel have been able to point to any case in which curial approval was given to the invocation of s 60(1) to achieve such a purpose. I have also been unable to find any authority that justifies such a proposition.
It is understandable that Parliament did not foresee the eventuality that arose in this isolated and somewhat unusual case. Such a perverse use of a provision like this had never arisen, apparently, in more than one hundred years in the history of Victorian motor traffic law. It would appear that it has never occurred to any other responsible member of police to invoke s 60(1) for a purpose unconnected with [the Act]. Every authority to which the parties referred concerned cases where police were conducting investigations into driving offences, usually of the ‘hit and run’ variety. Not one case was turned up in the section or its predecessors was invoked to lawfully further investigations into non‑driving‑related offences. By inadvertence, when reproducing the essence of s 17 of the Motor Car Act 1930 as s 60(1) of [the Act], Parliament failed to manifest an intention to limit any power conferred on police to the execution of a duty under [the Act]. Had the legislature appreciated the oversight that resulted in the eventuality that occurred in this case, I am convinced the omission would have been remedied by adding words to achieve this purpose.

(c) her Honour noted that the ‘eventuality’ referred to above has been expressly catered for in corresponding legislation in the ACT, New South Wales, South Australia, Western Australia and Queensland;

(d) in her view, had attention been drawn to the omission before the Act passed into law, the words ‘under this Act’ would have been added after the phrase ‘acting in the execution of duty’; and

(e) in relation to the question of whether reading the above words into s 60 of the Act was reasonably open, her Honour stated as follows:[41]

For the reasons explained earlier, not only do I consider the modified construction reasonably open, but I consider it to be the most compelling interpretation available in all of the circumstances.

[41]Ruling [169].

Her Honour then went on to identify other matters considered by her in arriving at her interpretation of the phrase ‘execution of duty’. Her Honour noted that the phrase is capable of both a broad and a narrow interpretation. She concluded that the broad approach applies when the purpose of enacting such a provision is to protect a defined class of persons, such as police officers or emergency service workers, and a narrow interpretation to be favoured to protect infringement of common law rights. Applying that approach to the factual situation before her, her Honour observed as follows:[42]

In order to determine whether a member of police has exceeded power, it is necessary to examine what the officer was doing at the relevant time. I have focussed attention on what the informant was doing at the time he issued the request to the appellant under cover of s 60(1) of [the Act]. As I stated, the informant was conducting a formal interview in order to determine the appellant’s involvement in the commission of the thefts. He was not pursuing any investigation of a driving-related offence. The informant’s attempt to force the appellant into answering questions about the alleged thefts in the face of the appellant’s expressed intention to exercise his right to remain silent was not lawful. Disguising the relevant questions as a request for identity of driver under cover of s 60(1) of [the Act] did not alter the true character of the informant’s request, or mask his unlawful conduct. The informant was not make a bona fide request of the appellant to achieve any purpose under [the Act].

[42]Ruling [191].

Finally, her Honour referred to two decisions of this Court which were relied upon by the informant before her, and by the DPP before me, being the decision of Gobbo J in O’Reilly v Rooney (‘O’Reilly’),[43] and the decision of Nathan J in Loges v Martin (‘Loges’).[44] Her Honour noted that these decisions pre‑dated the amendments to the Act made in 2006, and that they did not deal directly with the issue before her. However, she accepted that these decisions support the proposition that s 60(1) of the Act is cast in wide terms. Her Honour noted, however, that both of these decisions concerned the investigation of driving related offences, and neither decision was concerned with the proper construction of the phrase ‘execution of duty’,[45] and:

in neither case was the request made for information when the occasion of driving was irrelevant or incidental to the true purpose underlying the request.

[43](1989) 10 MVR 19.

[44](1991) 13 MVR 405.

[45]Ruling [199].

Her Honour also referred to the following extract of Kymantas[46] concerning the legislative purpose of s 60 of the Act:

The section is concerned, primarily if not wholly, with the investigation of hit‑run incidents. It is inevitable that there will often be limited information available to the investigating police when the occasion arises to use s 60. It is quite likely that such information as may then be held by the investigators will be sketchy, and that details which are then held may later prove to have been wrong. In my opinion, it is significant that the section simply speaks of the driver of the motor vehicle on any ‘occasion’, and does not use words which might suggest, at all, that the inquiry need be precisely identified. In my opinion, the whole scheme of s 60 is concerned with incidents in which unidentified drivers have been involved, and as to which information is limited.[47]

[46][2001] VSC 298, [30].

[47]Ibid, [30].

Her Honour noted that the parliamentary debates lent support to the apparent legislative purpose identified in Kymantas[48] above.
[48][2001] VSC 298.

Her Honour concluded as follows:[49]

I have endeavoured to explain why the decisions in O’Reilly v Rooney and Loges v Martin are distinguishable from the case before me. I do not wish to be taken as having ruled that s 60(1) of [the Act] is invalid because it runs counter to the right to silence. My ruling is that the request in this case, not the section, was invalid. If a member of police, executing a duty under [the Act] requires the owner to provide information about the identity of a driver on any occasion, the owner must comply, otherwise he commits an offence. Nathan J held in Loges v Martin that the right to silence has been modified to that extent. I have found that at the relevant time of making the request of the appellant, the informant was not acting in the execution of duty, as that phrase should be construed. Moreover, none of the cases to which I have referred stand as authority for the proposition that a member of police may abuse the section to otherwise circumvent the right to silence as enshrined in Part III, Subdivision 30A of the Crimes Act. (emphasis in original)
[49]Ruling [202].

Submissions

The DPP submitted that there is no reason why s 60(1) should not be given its ordinary and literal meaning. Further, the criteria for reading in words into a statute were not satisfied. Finally, the principle of legality does not justify a restrictive construction of s 60(1) of the Act, or reading the words ‘under this Act’ into s 60(1) of the Act.

The DPP submitted that it could not be in issue that the words in s 60(1) of the Act have anything other than a sensible and comprehensible meaning. There is no grammatical error, and no suggestion that the literal meaning of the words used produces some absurd or irrational result. Rather, it would be an absurd outcome if the powers conferred upon police by s 60(1) of the Act could not be utilised to investigate the most serious driving related offences, which are offences under the Crimes Act, not the Act. Further, such a construction is productive of uncertainty, because on many occasions, it will be unclear as to whether police are investigating offences under the Act. In many cases, the nature of the offence will turn upon the condition of the relevant driver, which will often not be known at the time police make their enquiries.

The DPP submitted that her Honour was bound by the decisions of this Court in O’Reilly[50] and Loges[51] to find that the request made by the informant concerning the identity of the driver of the vehicle was valid. In O’Reilly, Gobbo J observed that the terms of s 60(1) were not restricted to the investigation of driving related offences.[52] In Loges, Nathan J held that a concomitant of the privilege of owners to drive a vehicle on public roads is the extinguishment of the privilege against self‑incrimination.[53] His Honour referred to s 60(1) being available to police investigating in circumstances where the use of a motor vehicle may have involved murder, manslaughter, or grievous bodily harm, that is, offences which are not offences under the Act.[54] For substantially the same reasons, the DPP submitted that the strict criteria for reading words into a statute have not been met. To recapitulate, these criteria (which were correctly identified by her Honour) are as follows:[55]

(i)The Court must be able to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy.
(ii)It must be apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of the Act was to be achieved;
(iii)The Court must be able to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law; and
(iv)The modified construction must be reasonably open.

[50](1989) 10 MVR 19.

[51](1991) 13 MVR 405.

[52](1989) 10 MVR 19, 22.

[53](1991) 13 MVR 405, 410.

[54]Ibid.

[55]Ruling [62].

Counsel for the DPP noted that each of the above criteria must be met. He submitted that in the current case, none of these criteria were met.

In relation to (i) above, the DPP submitted that, contrary to the view of her Honour, it was not the intention of Parliament to restrict the operation of s 60(1) to the investigation of offences under the Act. Rather, in enacting s 17 of the 1930 Act (where the phrase ‘in the execution of duty’ was first used), it is apparent from the second reading speech[56] in relation to the 1930 Act that s 17 (and, by extension, its successor provisions) was intended to be used in aid of investigations which involved the need to identify the driver of a motor vehicle, with the example given being the investigation of a hit and run collision. At that time, such an incident, if resulting in death, might have been investigated as a murder or manslaughter (the offence of culpable driving not having been introduced until 1967). Parliament clearly intended that s 17 be available to police in such a case. Further, there are a number of offences which may involve or be connected with the driving of a motor vehicle, but are not investigated pursuant to any duty under the 1930 Act, or the Act, but rather pursuant to the ordinary common law duties of a police officer, those duties being:
[56]Victoria, ‘Parliamentary Debates’, Legislative Assembly, 16 September 1930, 2544 (Mr Tunnecliffe, Chief Secretary)

(a) keeping the peace;

(b) preventing crime;

(c) protecting property from criminal injury;

(d) detecting crime; and

(e) bringing offenders to justice.[57]

[57]See Rice v Connelly [1966] 2 QB 414; Tester v Police (1978) 71 SASR 251; DPP v Zierk (2008) 184 A Crim R 582.

Accordingly, to the extent that the operation of s 60(1) was confined by Parliament, in order for a request under s 60(1) to be valid, it must have been made by a police officer in the execution of duty. However, that ‘duty’ was not confined to a police officer’s duty under the Act, or an investigation of an offence under the Act, but to any duty imposed upon police officers by statute or common law.

In relation to (ii), the DPP submitted that, by reason of the above, it could not be said that Parliament had overlooked the need to confine the operation of s 60(1) to the investigation of offences under the Act. If the purpose of the Parliament was to facilitate the investigation of offences involving the use of a motor vehicle, the plain language of s 60(1) enabled that purpose to be achieved, without any modification.

Further, even if the legislative purpose of s 60(1) was found to be more confined than that expressed in s 60(1) of the Act, the DPP submitted that it is not possible to state with any certainty what additional words would have been inserted had Parliament been alerted to the omission or anomaly prior to the passage of the Act. Given the express parliamentary intention to facilitate investigation of ‘hit and run’ collisions, no Court would be able to state with certainty that the words ‘under this Act’ would be used. Further, the alternative suggested by Mr Moreno, being that the power which may be exercised by police under s 60(1) be limited to ‘where investigating an occasion in which an offence related to road safety or other driving related offence has occurred’ lacks precision, and departs even further from the statutory text than the formulation preferred by her Honour.

Finally, given that it is apparent that Parliament intended to facilitate the investigation of offences other than offences contained within the Act, the DPP submitted that the insertion of the words ‘under this Act’ was not reasonably open to her Honour.

Accordingly, in summary, the DPP submitted as follows:

(a) given the mischief to which s 60(1) is directed, its operation should not be confined to the investigation of contraventions of the Act;

(b) a perceived need to restrict the operation of s 60(1) was not overlooked in the drafting of the provision;

(c) this Court can by no means be certain that the words ‘under this Act’ would have been inserted by the draftsperson had their omission been pointed out; and

(d) the construction of s 60(1) by her Honour was not reasonably open.

The DPP also submitted that the principle of legality did not justify the construction of s 60 adopted by her Honour. First, the second reading speech introducing the Act (‘1986 Second Reading Speech’)[58] expressly referred to s 60(1) removing the privilege against self-incrimination. Second, there are other provisions of the Act and the Crimes Act which to some extent abrogate the right to silence, such that the removal of the privilege against self‑incrimination in s 60(1) of the Act is unremarkable.
[58]Victoria, ‘Parliamentary Debates’, Legislative Assembly, 11 September 1986, 231 (Mr Roper, Minister for Transport).

Further, in response to Mr Moreno’s submission that the scope of s 60(1) of the Act is qualified by the phrase ‘execution of duty’, the DPP submitted that Mr Moreno has not explained how and to what extent the scope of the section was to be so confined. There is no basis for construing the section in any other way other than as described in Tester v Police,[59] being that a police officer acting in the execution of duty must be carrying out one of the recognised duties of a police officer.
[59](1998) 71 SASR 251.

Finally, the DPP submitted that her Honour’s use of the legislative history of the Act to arrive at her construction of s 60(1) of the Act was problematic, as evidenced by the reference in the ruling to there being no evidence of displacement of the legislative intention of s 17 of the 1930 Act. The DPP submitted that it was not permissible or appropriate for her Honour to retrospectively construe a provision in the 1930 Act, and then go on to apply that construction to s 60(1) of the Act by reason of the presumption of re‑enactment.

As noted above, Mr Moreno submitted that, in order for her Honour to reach a conclusion that the informant’s request was invalid, it was not necessary for her Honour to ‘read in’ the words that she did. He submitted:

If Her Honour erred in ‘reading in’ words to the statute, the canons of statutory construction nevertheless dictated the ultimate result that the power was not available to police in the present circumstances.

Mr Moreno submitted that the finding of her Honour ought not be disturbed, on the basis that the purpose of the Act, the legislative history of the Act, and the extrinsic materials means that the proper construction of the term ‘execution of duty’ operates as a qualification to the implied power conferred upon police officers under s 60(1) of the Act. He submitted that the harsh consequences imposed upon a person convicted of breaching s 60(1) of the Act pointed to a narrow, rather than a broad construction of the provision.

Mr Moreno submitted that her Honour was correct in concluding that the purpose of the Act and its predecessor legislation was:

to ensure that our roads were safe for all who used them. [Parliament] sought to regulate the use of motor vehicles and to ensure that drivers who committed driving related offences were accountable for their breaches.[60]

[60]Ruling [148].

That purpose was said to have confined the scope of the phrase ‘execution of duty’. This phrase is to be contrasted with the phrase ‘course of duty’. Mr Moreno submitted that the term ‘execution of duty’ should be given a broad construction when the purpose of the relevant provision is protective (for example, in legislation creating specific offences for assaulting or otherwise impeding police officers and paramedics), and a narrow construction where the effect is to intrude upon established common law rights. The phrase ‘execution of duty’ imposes a condition upon the exercise of power under s 60(1) of the Act: as such, it is possible to ascertain a legislative purpose which invalidates any act which fails to comply with the condition.

Mr Moreno relied upon the decisions of this Court in DPP v Kaba (‘Kaba’)[61] and DPP v Hamilton (‘Hamilton’).[62] In Kaba,[63] Bell J stated as follows:[64]

At common law, without statutory authority police do not have power to stop a person riding a bicycle for the purpose of obtaining his or her name and address nor to remain on private premises after being told to leave. Police do have power to arrest on reasonable suspicion of offending. Police do not have power to arrest for questioning or facilitating an investigation and such conduct is ‘unlawful’. Police are not acting in the course of their duties when executing, and a person may use reasonable force when resisting, such an arrest. Statutory power to arrest a person on reasonable suspicion until taken without delay before a court must, like the equivalent common law power, be exercised strictly according to the condition and no power to engage in questioning is conferred. It follows that the magistrate was right to conclude that, at common law, police had no authority to stop the vehicle or subject the driver or Mr Kaba to compulsory questioning. That authority had to be found in statute.

[61](2014) 44 VR 526.

[62](2011) 33 VR 505.

[63](2014) 44 VR 526.

[64]Ibid, 545.

In Hamilton,[65] Kaye J stated as follow:

The authorities to which I have just referred make it clear that, at common law, and in the absence of specific legislation to the contrary, the respondent in this case was not required to stop when he was requested to do so by the police. I have no doubt that, in requesting the respondent to speak to them, the police were acting in the course of their duties as police constables. However, they were not, at that point, acting ‘in the execution’ of their duties as police members for the purpose of [the provision]. It follows that, in the absence of any specific legislative provision of imposing on the accused an obligation to remain and speak to the police, he would not be guilty of any offence under s 52(1) of the Act.[66]

[65](2011) 33 VR 505.

[66]Ibid, 513.

Mr Moreno submitted that the relevant test is as set out in Tester v Police,[67] being, what was the police officer doing, and how does that conduct fall within the scope of any duty? In the current case, the informant was investigating a dishonesty offence under the Crimes Act. At common law, a request of the nature made under s 60(1) of the Act could not be made. He submitted the DPP has not identified any duty which the informant was performing, and the terms of s 60 itself do not impose any duty. If the DPP’s construction of s 60(1) of the Act is to be preferred, the phrase ‘execution of duty’ would be superfluous.
[67](1998) 71 SASR 251, 253.

Mr Moreno also relied upon the principle of legality to support his preferred construction of s 60(1) of the Act, and submitted that the DPP’s reliance upon other provisions of the Act and provisions in other legislation which abrogate the right to silence was misconceived. For example, the qualifying phrase ‘execution of duty’ is not to be found in s 59 of the Act, which enables a police officer to compel the driver of a motor vehicle to produce a driver’s licence at any time.

Mr Moreno relied upon the following statement of Bell J in PJB v Melbourne Health and Anor:[68]

Applying this principle to legislation which unmistakably intends some interference to be authorised but the scope of the permitted interference is in issue, it is first necessary to identify the right or freedom which is said to be infringed and consider the importance of the interests which it protects in the particular circumstances. Then it is necessary to identify the nature and extent of the interference by, and the purposes of, the statutory provision in question. If the interference complained of goes beyond what is shown to be reasonably necessary to meet a substantial and pressing need or legitimate aim, the proper interpretation will be that the interference is beyond the scope of the provision. In that regard, the more substantial is the infringement with the right of freedom, the more is required to show that the interference is necessary to meet the aims postulated and the interference should be the least necessary for that purpose.[69]

[68](2011) 39 VR 373.

[69]Ibid, 434.

Accordingly, Mr Moreno submitted as follows:

There is no unmistakeable and unambiguous intention and use of language which supports the provision abrogating well established and fundamental rights. Such an interpretation is also consistent with the common law canon that penal statutes, in cases of any ambiguity or doubt, should be read down and resolved in favour of the court refusing to extend the application of the provision.

As noted earlier in these reasons, Mr Moreno submitted that it was not necessary to ‘read in’ words into s 60(1) in order to achieve the legislative purpose ascertained by her Honour. However, he submitted that it was permissible for her to do so, given the mischief the Act was intended to remedy, the purpose of the Act as a whole, which is concerned only with road safety, and because it was apparent that the draftsman inadvertently overlooked the need to impose a further qualification upon the power in s 60(1) of the Act.

Mr Moreno submitted that the authorities relied upon by the DPP do not support the construction of s 60(1) advanced by the DPP. The decision in Loges merely confirmed that s 60(1) abrogated the right to silence. O’Reilly was concerned with the elements of an offence under s 60(1) of the Act. The decision in Kymantas made it clear that the purpose of the Act was to promote road safety. In each case there was a clear nexus between the request for information and a driving related offence.

Was it permissible to ‘read in’ words into section 60(1) of the Act?

In my view, her Honour erred in law by reading the words ‘under this Act’ into s 60(1) of the Act, as none of the preconditions laid down in DPP v Leys[70] has been satisfied.
[70](2012) 44 VR 1.

Prior to turning to the specific preconditions referred to in DPP v Leys,[71] I would make a number of observations regarding the position of a court contemplating reading words into a statute. As stated by Maxwell P in a decision of the Court of Appeal delivered while judgment was reserved, Ian Street Developer v Arrow International:[72]

there is a very high hurdle before judicial intervention is permissible.[73]

[71]Ibid.

[72][2018] VSCA 294.

[73]Ibid, [57].

His Honour also noted (omitting citations):

On ordinary principles, however, words cannot be implied into a statute unless those words are essential to make the express provisions workable. Axiomatically, to read words into any statute ‘is a strong thing and, in the absence of clear necessity, a wrong thing’.[74]

[74]Ibid, [56].

His Honour also referred to the decision of the High Court in Taylor v The Owners-Strata Plan (‘Taylor’),[75] a decision which post‑dated DPP v Leys, and the following statement of the majority in Taylor:

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[76]

[75](2014) 253 CLR 531.

[76]Ibid, 548.

Maxwell P also referred to the following statement by Gageler and Keane JJ expressing similar views about the limits of statutory construction:
Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.’ Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.[77]
[77]Ibid, 556-7.
Accordingly, a court must approach the question of whether it is permissible to read words into a statute with extreme caution.

I accept that it is apparent from the extrinsic materials and the relevant authorities that the primary purpose of the Act is to promote road safety and assist in the enforcement of driving related offences. However, I consider that inclusion of the words ‘under this Act’ in s 60(1) does not adequately give effect to this purpose, because it would preclude the power conferred by that section being used to investigate more serious driving related offences, which are the subject of the provisions of the Crimes Act. Similarly, while such a legislative intent is not so clearly discernible from the extrinsic materials or the stated purposes of the Act, one also can infer that the Parliament intended that s 60(1) could be utilised by police to investigate offences which would not necessarily be considered as ‘driving related offences’, such as the use of a motor vehicle as a weapon in ‘running down’ cases, which may lead to charges of murder or manslaughter, or where the use of a motor vehicle is ancillary to the commission of an offence, such as armed robbery, drug trafficking, or, as in the current case, theft.

The current case is not one where it could be said that the usual and literal meaning of the words do not give effect to the intention of Parliament. Indeed, even if the purpose of the provision is limited to the purpose identified by her Honour, the words used enable this purpose to be achieved, that is, the power is available to police officers to investigate offences under the Act. Effectively, her Honour held that the purpose of the provision was not achieved because the terms of s 60(1) went beyond what was necessary to achieve the legislative purpose ascertained by her.

However, contrary to the submissions of the DPP, it is permissible for a court to read in words into a statute if the words used achieve a purpose beyond what was intended by the legislature. In DPP v Leys,[78] the Court of Appeal stated as follows:

Where an alternative construction may be required, there will ordinarily be some level of disconformity between the literal meaning of the words used and the statutory scheme. The literal meaning of the words used will either be too narrow to cover an intended purpose or too broad thereby effecting an unintended purpose. In either case, the reading in of additional words may be justified if the modification brings the language into conformity with the intended purpose and the modification can be accommodated with the additional words used.[79] (emphasis added)

[78](2012) 44 VR 1.

[79]Ibid, 33.

However, as stated above, the words read into the Act by her Honour do not enable the purpose of the legislature to be given effect. And, as can be seen later, even if the legislature’s purpose was more confined than that contended for by the DPP, it is difficult to identify the precise scope of a more confined purpose, particularly given the breadth of the phrase ‘execution of duty’.

I also cannot be satisfied that the omission of the qualification ‘under this Act’ was inadvertent. In the ruling, her Honour relied upon equivalent provisions to s 60(1) of the Act in other Australian jurisdictions (‘equivalent provisions’) to support her conclusion that:

[b]y inadvertence, when reproducing the essence of s 17 of the [1930 Act] as s 60(1) of [the Act], Parliament failed to manifest an intention to limit any power conferred upon police to the execution of a duty under [the Act]. Had the legislature appreciated the oversight that resulted in the eventuality that occurred in this case, I am convinced the omission would have been remedied by adding words to achieve the purpose.[80]

[80]Ruling [159].

It is true that the equivalent provisions are cast in substantially narrower terms than s 60(1) of the Act. Not only is the power under the equivalent provisions confined to the investigation of offences against what is variously described as ‘road transport legislation’, ‘an Australian road law offence’, or by reference to specific legislation, the power is also pre‑conditioned upon the knowledge or the belief on the part of a police officer that the driver of the motor vehicle had committed an offence.

In my view, the existence and the terms of the equivalent provisions does not assist one way or another. I accept that s 60(1), read literally, confers very broad powers upon police compared with those conferred upon police in other Australian jurisdictions. However, I do not consider that automatically leads to a conclusion that the legislature made an error, or, indeed, two errors, by failing to confine the subject matter of the offence that may be investigated, and also by failing to impose a threshold requiring a belief that an offence had been committed. Indeed, the existence of the equivalent provisions could equally lead to a conclusion that the legislature’s failure to impose such pre‑conditions upon the exercise of the power under s 60(1) of the Act was deliberate, rather than inadvertent. Accordingly, the first two requirements for reading words into a statute have not been met.

The importance of the third requirement, being that the Court must be able to state with some certainty what words would have been inserted into s 60(1) of the Act if the anomaly or omission was known to the draftsman, cannot be overstated. As noted above, the authorities recognise that, in reading words into a statute in order to give effect to an ascertained legislative purpose, the judiciary is travelling uncomfortably close to the boundary between the role of the judiciary and the role of the legislature. Such circumstances warrant a great deal of certainty on the part of the Court that the particular words identified by it would have been used by the draftsman and approved by Parliament had their attention been drawn to the omission or anomaly.

Here, the lack of certainty of what words would have been and to confine the terms of s 60(1) of the Act is illustrated by the difference between the formulation adopted by her Honour and the formulation contended for by Mr Moreno. I agree that, notwithstanding any deficiencies in Mr Moreno’s proposed formulation, that Mr Moreno’s formulation comes closer to giving effect to the legislative purpose as ascertained by her Honour than the formulation actually adopted by her, in that it provides scope for police officers to utilise the investigative powers under s 60(1) of the Act to investigate driving related offences under the Crimes Act, such as culpable driving.

Mr Moreno contended that the legislative purpose identified by her Honour was, if not available as a matter of statutory construction, could be best achieved by reading into s 60(1) of the Act, after the phrase ‘execution of duty’, the following words:

where investigating an occasion in which an offence related to road safety or other driving related offence has occurred.

There are a number of difficulties with this proposal. First, it illustrates the difficulties involved in identifying the precise words need to give effect to the legislative purpose ascertained by her Honour, given that her Honour adopted an alternative formulation. Secondly, there is a lack of precision in the phrase ‘related to road safety, or other driving related offence’. Finally, the formulation could be said to be ‘too big, or too much at variance with the language in fact used by the legislature’.[81]
[81]Taylor (2014) 253 CLR 531, 548.

Accordingly, given that there can be no certainty about whether the words ‘under this Act’ would have been inserted into s 60(1) of the Act had in fact the issue been drawn to the attention of Parliament (and, I consider the better view is that such words would not have been chosen), the third prerequisite is not satisfied. For substantially similar reasons, the proposed formulation is not reasonably open, in that limiting the scope of s 60(1) of the Act to the investigation of offences under the Act would have the anomalous result of enabling the power to be used for relatively minor traffic offences such as parking and tolling offences, but not more serious offences such as culpable driving.

The proper construction of s 60(1) of the Act

My findings in relation to whether it would be permissible to read in the words ‘under this Act’ into s 60(1) is probably sufficient to entitle the DPP to the relief sought in this proceeding. However, for completeness, it is appropriate to address the construction issue raised by Mr Moreno: that is, whether the phrase ‘execution of duty’ should be broadly or narrowly construed.

The starting point of the task of statutory construction is the literal words of the relevant provision. Here, subject to further discussion of the meaning of the phrase ‘execution of duty’, the ordinary meaning of the words used in s 60(1) of the Act confer very broad powers upon police officers to obtain information regarding the driver of a motor vehicle. However, that is not the end of the matter. As stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’),[82] a Court is required:

… to give the words of a statutory provision the meaning that the legislation is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a provision to be read in a way that does not correspond with the literal or grammatical meaning.[83]

[82](1998) 194 CLR 355.

[83]Ibid, [78].

Accordingly, consideration must be given to:

(a) the grammatical meaning of the words;

(b) the context in which the words are used;

(c) the consequences of a literal or grammatical construction;

(d) the purpose of the statute; and

(e) the canons of statutory construction.

Each of the above matters are relevant to the task at hand.

Reading s 60(1) literally, the only qualification to the power of the police to request information concerning the identity of the driver of a vehicle is that the police officer must be acting ‘in the execution of duty’. The ordinary dictionary meaning of the word ‘execute’ is ‘to carry out: accomplish’,[84] and the ordinary meaning of the word ‘duty’ is ‘action required by one’s position or occupation: office: function:’.[85]
[84]Macquarie Dictionary, 7^th edition.
[85]Ibid.

Accordingly, the ordinary meaning of the words ‘a police officer acting in the execution of duty’ requires that the police officer must be carrying out the functions of a police officer. Further, there is authority which has considered the meaning of the phrase ‘execution of duty’.

There is a distinction between a police officer ‘acting in the course of duty’ and ‘acting in the execution of duty’. That distinction is helpfully explained by Duggan J in Tester v Police,[86] a decision of the Full Court of the Supreme Court of South Australia. In his survey of the relevant authorities, his Honour stated as follows:

The cases draw a distinction, at least by implication, between the many and varied tasks which might be performed by a police officer in the course of employment and the performance of duties recognised by the law as being integral to the unique role of a police officer. In my view the drafter of s 40(1)(c) had that distinction in mind when the words ‘execution of duty’ were employed. I think that in order to attract the exemption referred to in the section the driving of the vehicle must relate to one of the core duties of a police officer such as the protection from crime or control of traffic;[87]

Bleby J added as follows:
Furthermore, if the phrase meant no more than a police officer being on duty, it would be unduly restrictive of a police officer said to be ‘off duty’ who nevertheless may have an obligation to exercise powers uniquely committed to police officers in an emergency whilst off-duty. The phrase extends to occasions other than periods when a police officer is on duty pursuant to a roster or some other arrangement.[88]

[86](1998) 71 SASR 251.

[87]Ibid, 254.

[88]Ibid, 255.

Indeed, the facts in Tester v Police[89] assist in determining the meaning of ‘execution of duty’ in the current case. The appellant in that case was a police officer who was detected speeding while travelling to meet witnesses for the purpose of taking statements in relation to an offence. The police officer sought to rely upon an exemption in the South Australian equivalent of the Act applicable to, among others (such as ambulance drivers attending to an emergency), offences committed by a police officer while driving a motor vehicle in the ‘execution of duty’. The Court held that the term ‘execution of duty’ was not equivalent to ‘on duty’, and that the driving must be related in some way to the performance of a duty recognisable by law. The police officer was ‘on duty’ and indeed was carrying out duties relevant to his responsibilities as a police officer. But he was not acting in execution of his duty when driving his vehicle at an excessive speed, as he might have been, say, had he been pursuing a suspected offender.
[89]Ibid.

In the current case, there was no dispute that the informant, in requesting information from Mr Moreno about the driver of the vehicle, was acting in the execution of well‑established common law duties: that is, detecting crime and bringing an offender to justice. Rather, it was put that because the power under s 60(1) of the Act, if read literally, was too broad, the informant could not have been acting in the execution of duty, because in questioning Mr Moreno, the informant was exercising a power he did not have.

The flaw in this argument is that, given that the informant was, as a matter of fact, clearly acting in the execution of duties recognised by law as being the duties of a police officer when questioning Mr Moreno, the informant’s request could have only been invalid if s 60(1) is to be read as meaning something other than what is conveyed by the literal words of the provision. I have already found that it was not permissible to ‘read in’ words into the provision to confine its operation. Mr Moreno’s reliance upon the phrase ‘execution of duty’ does not assist: while the phrase does confine the right of a police officer to request information concerning the driver of a vehicle, arguably, all that simply means is that a police officer must be performing a recognised duty, and not be acting out of idle curiosity. While the phrase ‘execution of duty’ confines the circumstances in which the power under s 60(1) of the Act may be exercised, it does not define the scope of the power.

The authorities relied upon by Mr Moreno, being Kaba[90] and Hamilton,[91] do not support the proposition that a further qualification be imposed upon s 60(1) in addition to the phrase ‘execution of duty’. Rather, both of these decisions stand for the unremarkable proposition that a police officer is not acting in the execution of duty if they are purporting to exercise powers they do not have at statute or common law, such as compelling a suspected offender (not being the driver of a motor vehicle) to answer questions. In my view, they do not stand for the proposition that the phrase ‘execution of duty’ somehow confines the nature of the offences which might be investigated using the power in s 60(1) of the Act simply because the power is contained in the Act rather than some other act, contrary to the literal meaning of the words in the s 60(1) of the Act.
[90](2014) 44 VR 526.
[91][2011] 33 VR 505. See also R v Waterfield [1964] 1 QB 164.

Accordingly, the literal words of s 60(1) of the Act indicate that the power conferred upon a police officer under that section is a broad one. The question remains as to whether any of the other considerations identified in Project Blue Sky[92] operate to confine the ordinary meaning of the words ‘execution of duty’ to a greater extent than what might be understood from the grammatical meaning of the words, as illustrated by judicial consideration of the meaning of these words, and the established common law duties of police officers.
[92](1998) 194 CLR 355.

Turning first to the purpose of the Act as a whole, s 1 of the Act provides that the purpose of the Act is as follows:

(a) to provide for safe, efficient and equitable road use; and
(ab)to set out the general obligations of road users in relation to responsible road use; and
(b)to improve and simplify procedures for the registration of motor vehicles and the licensing of drivers; and

(c) to prevent the rebirthing of stolen vehicles; and
(d)to ensure the equitable distribution within the community of the costs of road use.

The purposes specified above do not assist greatly one way or another in resolving the question of whether the phrase ‘execution of duty’ is to be given a broad or confined construction.

There is no definition of ‘offence’ in the Act which would assist in the purpose of s 60(1) of the Act. In s 3 of the Act, the definition of ‘road or transport law offence’ means an offence against ‘road or transport law’. ‘Road or transport law’ means –

(a)       this Act;
(aa)     the Bus Safety Act 2009;
(b)       the Transport (Compliance and Miscellaneous) Act 1983;
(c)any regulation made under this Act or the Transport (Compliance and Miscellaneous) Act 1983;

(d) any rule.

It is noteworthy that, given her Honour’s preferred construction of s 60(1) of the Act, it would have been open for the legislature to add the words ‘with respect to any road or transport law offence’ after ‘execution of duty’, but did not do so.

To the extent that the purpose of s 60(1) of the Act is discernible from extrinsic materials, such as the 1986 Second Reading Speech, that material is not conclusive, but leans towards supporting a broader construction of the Act, albeit not in a conclusive way. On the one hand, the relevant Minister stated that:

The primary purpose of all of this legislation is to ensure the safety of those who use our roads.[93]

and also:

Part 6 defines a number of specific offences connected with the driving of motor vehicles and sets out procedures for the apprehension and prosecution of offenders.[94]

[93]Victoria, ‘Parliamentary Debates’, Legislative Assembly, 11 September 1986, 227 (Mr Roper, Minister for Transport).

[94]Ibid, 227-228.

Both of the above statements are consistent with the view adopted by her Honour that s 60(1) was limited to facilitating the investigation of driving offences.

However, the following statement of the Minister supports a broader construction of s 60(1) of the Act:

The driver who fails to stop or leaves the scene of an accident in the hope of avoiding detection of a drink-driving offence will face substantially increased penalties.
The owner of a vehicle will be required to provide information to identify the driver, notwithstanding that the owner was driving at the time. The removal of the privilege against self-incrimination is justified by the current difficulties being encountered by the police in identifying hit-run drivers. For example, following the recent hit-run incident involving a fatality, the registered owner of the vehicle attended at the police station but when interviewed refused to provide any information other than his name.
The need for measures such as these is evidenced by the cases of irresponsible drivers with very high blood alcohol concentrations detected by the police. By way of example, in 1984 a driver was detected with a blood alcohol concentration of .245 per cent. Approximately 24 hours later, the same driver was involved in a fatal accident and when tested had a blood alcohol content of 0.25 per cent.[95]

[95]Ibid, 231.

In the example referred to by the Minister above, the driver of the vehicle may well have committed a number of offences, being offences under the Act (driving while intoxicated, leaving the scene of an accident, and so on), but also offences under the Crimes Act, such as culpable driving. Further, and this is relevant to the operation of the principle of legality, the Minister expressly refers to s 60(1) removing the privilege against self‑incrimination.

Accordingly, the extrinsic material regarding the purpose of the Act, tends to support a broader construction of the term ‘execution of duty’, albeit not overwhelmingly.

The limited authority available tends to support the proposition that the purpose of s 60(1) extends beyond empowering police to investigate offences committed under the Act. There are three relevant decisions, being O’Reilly,[96] Loges,[97] and Kymantas.[98] As each of these cases considered s 60(1) of the Act in the context of where the police were investigating incidents involving the driving of motor vehicles, her Honour was correct in saying that these authorities were not directly concerned with the issue before her. But, in my view, they are clearly relevant to the question of the construction of s 60(1) of the Act.
[96](1989) 10 MVR 19.
[97](1991) 13 MVR 405.
[98][2001] VSC 298.

In O’Reilly,[99] an owner of a motor vehicle appealed against her conviction for failing to give police information about the driver of her motor vehicle. The police had told her that her vehicle had been involved in an accident when being driven by a man with a beard. The owner told the police that the vehicle had been parked and had not been involved in any accident. She refused to answer a question about any member of her family having a beard. At trial she gave evidence that her husband did wear a beard.
[99](1989) 10 MVR 19.

Gobbo J dismissed the owner’s appeal, holding that:

(a) for the purposes of s 60 of the Act it was not necessary that the owner be informed that a driving offence is being alleged;

(b) as the information sought by the police was information which was in the owner’s power to give, there was evidence capable of sustaining the charge; and

(c) the issue of the competence and compellability of a spouse to give evidence in criminal a proceeding was not an issue in that proceeding, as the owner’s husband had not been charged with a driving related offence.

Gobbo J noted that s 60(1) of the Act, unlike previous iterations of the Act, did not contain any reference to any offence having been committed by the driver. His Honour stated as follows:[100]

It is clear that this section is in quite different terms to the legislation that was considered in the three cases that I have just referred to. Section 60(1) does not contain any reference to any offence being alleged to have been committed by the driver. By contrast, its predecessor, s 10(3) of the Motor Car Act of 1915, begins by referring to the driver committing an offence and refers to the owner of the car, being the car earlier referred to. In Roser v Fagg at 43, the section under which the owner was charged expressly refers to identification of a person driving such vehicle: ‘when an offence under this Act or any regulation is alleged to have been committed, and if such owner fails to do so he shall be guilty of an offence under this Act.
It was submitted that there was a reference to an offence by the driver in s 60(2)(a) of the Road Safety Act but that does not in my view assist the argument, for the language in sub-s (2)(b) namely: ‘… any other case’ is quite unlimited and does not restrict the case to an alleged driving offence. … (emphasis added)

[100]Ibid, 22.

Accordingly, while his Honour was not required to address the question of whether the inquiry under s 60(1) would be valid in circumstances where the offence being investigated was not a driving related offence, it is apparent from the above that his Honour’s view was that the scope of s 60(1) was quite broad in operation.

In Loges,[101] a police officer asked the owner of a van if his vehicle was involved in an apparent motor vehicle collision and who the driver of the van was at that time, as the debris at the site of the apparent collision matched the description of the van. The owner refused to answer the questions, and was charged under s 60 of the Act. The charge was dismissed for the reason that the van may not have been driven on the occasion. Nathan J dismissed the appeal, for substantially the same reasons, but stated as follows:

In my view, a purpose of this Act is to ensure the safe use of roadways. The law compels the conclusion that the identity of the drivers of registered vehicles be made available to law enforcement officers. The privilege to decline to answer has necessarily been extinguished.
In most cases no question of self-incrimination will arise. Under s 60 the inquiry made by the police member as to the driver will not involve the owner incriminating himself. Equally it would be churlish not to assume there would be few circumstances where the owner could provide material for his own prosecution.
In my view a thorough reading of the section entrenches these conclusions: sub‑s (2) escalates the penalty in respect of those persons who decline to answer where the driving has involved a person being killed or suffering serious injury. Even in circumstances where the use of the motor vehicle may have involved murder, manslaughter or grievous bodily harm, the member investigating such an incident is entitled to ask the owner of the vehicle the identity of the driver and a response must be given. That response may involve the owner identifying himself. The Act is clear that even in such serious and grave circumstances the privilege has been expunged.
I accept the admonitions in the authorities I have referred to, and to which I might add Sorby v R (1983) 152 CLR 281; 46 ALR 237. A court should be reluctant to conclude there is a necessary intendment to abrogate the common law privilege. I have approached this section accordingly. I am satisfied it should be strictly construed, as indeed was held by Gobbo J of this court in O’Reilly v Rooney (1989) 10 MVR 19, where he set out the criteria which must be satisfied before a conviction under s 60(1) can be recorded. There is no need for me to repeat them except point 4 which he identified as follows: that the police officer must indicate that he or she is seeking information as to the driver of such vehicle on such occasion.
…
The Act is in substantially different terms from the companion New South Wales legislation considered by the Court of Criminal Appeal in R v Davis [1976] 1 NSWLR 84. The legislation there referred to required an offence to have been established before the obligation to answer arose. With the legislation before me, it is not necessary that an offence, or indeed, an accident occurred, all that is required is that there be an occasion at which the car, owned by the person questioned, was being driven.[102] (emphasis added)

[101](1991) 13 MVR 405.

[102]Ibid, 409-410.

In Kymantas,[103] the plaintiff had been convicted by a magistrate of an offence under s 60 of the Act. The conviction was upheld by a judge of the County Court. The plaintiff applied to this Court for relief in the way of certiorari. The ground of review concerned the proper construction of the word ‘occasion’, in circumstances where the police officer questioning the owner of the vehicle made a mistake as to the time at which an incident occurred (a driver performing a ‘burnout’ in the Geelong Mall). The plaintiff was questioned about who was driving the relevant motor vehicle at 12 noon on a particular day, when in fact the relevant incident occurred at 1.30pm on that day. Eames J dismissed the application for review, and held that:

There is good reason why the section does not state, in terms, that the police officer was obliged to specify the occasion of driving with any particularity, at all.[104]

[103][2001] VSC 298.

[104]Ibid, [26].

It was in this context that his Honour made the remark that:

The section is concerned, primarily if not wholly, with the investigation of hit‑run incidents.[105]

[105]Ibid, [30].

This statement was relied upon by Mr Moreno (and her Honour) as support for the proposition that s 60 of the Act should be narrowly construed. However, his Honour qualified the word ‘primarily’ with ‘not wholly’. Further, his Honour also stated:

… it does not follow that the section must be construed so narrowly as to deny its efficacy in situations where it was intended that by the legislature that it should apply, and where its terms so permit its application.[106]

[106]Ibid, [14]. In a footnote to this paragraph, his Honour stated ‘As observed in O’Reilly v Rooney, 10 MVR 19, by Gobbo J, s 60 was couched in deliberately wide terms.

His Honour also stated as follows:

It is inevitable that there will often be limited information available to the investigating police when the occasion arises to use s 60. It is quite likely that such information as may be held by the investigators will be sketchy, and that details which are then held may later prove to be wrong. In my opinion, it is significant that the section simply speaks of the driver of the motor vehicle on any ‘occasion’, and does not use words which might suggest, at all, that the inquiry need be precisely identified. In my opinion, the whole scheme of s 60 is concerned with incidents in which unidentified drivers have been involved, and as to which information is limited.[107]

[107]Ibid, [30].

The above statement is consistent with the following submission of the DPP:

if … s 60(1) is designed to aid investigations where information is limited, it must follow that it is designed to operate in circumstances where police may not be able to identify a particular offence … which has been committed.

Accordingly, while Kymantas lends some support to the proposition that the purpose of s 60(1) of the Act is to facilitate the investigation of driving related evidence, that support is equivocal. Taken together, the three decisions of this Court which have considered s 60(1) of the Act support an expansive, rather than confined, construction of the Act. While these decisions predate the amendments to the Act in 2003, 2006 and 2010, my review of these amendments made does not lead me to alter my conclusion regarding the relevance of these decisions to the proper construction of s 60(1) of the Act. While substantial amendments were made to s 60 in 2006,[108] they did not materially affect the obligation of an owner of a motor vehicle to provide information about the driver of a motor vehicle. Rather, the amendments made in 2006:
[108]Road Legislation(Projects and Road Safety) Act 2006 (Vic), s 21.

(a) extended the obligations upon owners of vehicles to operators of motor vehicles;

(b) allows police to make requests for information orally or in writing; and

(c) established a process for service of notices under s 60 of the Act.

None of the above amendments detracts from the currency of the authorities which have considered the terms and operation of s 60(1) of the Act.

What are the consequences of giving effect to the literal words of s 60(1) of the Act, as contended for by the DPP? Precisely what has happened in the current case: that is, police officers executing the range of functions and duties conferred upon them may utilise the power under s 60(1) to identify suspected offenders where the relevant offence is not a driving related offence, but rather, where a motor vehicle is used in connection with the commission of an offence, such as where a suspected offender uses a motor vehicle to abscond from the scene of a crime. I can see how the use of such powers for this purpose, particularly when police are investigating a relatively minor offence such as shopstealing, might be seen by some to be an abuse on the part of police officers.

However, the question might also be asked, what are the consequences of s 60(1) being given a confined operation? There are a number of very serious offences which may be committed which may involve the use of a motor vehicle (kidnapping, drug trafficking, armed robbery and so on) which do not necessarily involve the commission of a driving related offence. The DPPs’ submissions referred to an example where if a getaway car used in an armed robbery swerved towards pedestrians as it left the scene of a crime, police could utilise s 6(1) to investigate the offence of dangerous driving (s 64 of the Act), but could not if the driver did not commit any driving offence. Viewed that way, the conferral of a very broad power upon police to enable the identification of a driver of a vehicle seems less remarkable.[109]
[109]Just over two weeks prior to delivery of this judgment, a now deceased man left a motor vehicle parked in a busy street in the central business district of Melbourne on a Friday evening packed with gas cylinders, set it alight, left the vehicle and attacked a number of passers-by, one fatally. If events had turned out differently, and he had absconded instead of having been apprehended, upon a narrow construction of s 60(1) of the Act, police officers investigating the incident could not have used their powers under s 60(1) of the Act to identify the driver of the vehicle, as no driving related offence had been committed (save perhaps for parking in a no‑standing zone). This is an extreme, but very real, illustration of why Parliament is likely to have intended s60(1) of the Act to have a broad, rather than a narrow, operation.

Context is important too. The Act confers upon police officers a number of coercive powers in relation to motor vehicles and drivers of motor vehicles and enables them to do things which otherwise would be offences. By way of example, Part 5 of the Act makes it an offence for a driver of a motor vehicle to refuse to undergo testing for alcohol and/or drugs, and enables a police officer to immediately suspend the driver’s licence of a driver who has failed a breath test. Section 59 of the Act imposes a duty upon drivers of motor vehicles to stop, produce a driver’s licence, and state their name and address if required to do so by a police officer. Section 62 of the Act empowers a police officer to take steps to prevent an apparently incapacitated driver from driving, including confiscating their car keys.

Section 63 of the Act provides as follows:

A police officer, or a protective services officer on duty at a designated place, may, for the purpose of establishing the identity of the driver of a motor vehicle or arresting a person or carrying out the provisions of section 53, 54, 55, 55A or 55BA, enter the motor vehicle using, if necessary, reasonable force, if the driver refuses to obey any lawful direction given to him or her by the police officer or the protective services officer. (emphasis added)

It is noteworthy that while s 63 of the Act enables a police officer to enter a motor vehicle (without the permission of the driver) for the purposes of conducting a preliminary breath test, blood analysis, or drug assessment, the power to enter a vehicle for the purpose of identifying a driver or arresting a person is not confined in any way to the investigation of road safety or driving related offences, or the apprehension of those suspected of committing road safety or driving related offences.

Section 63A of the Act empowers police officers to move stationary vehicles without the consent of the owner, and they may use reasonable force to do so.

Section 63B of the Act provides as follows:

(1)The Chief Commissioner of Police may authorise the use by police officers of a vehicle immobilising device—
(a)to prevent the use of the vehicle by a person for the purpose of escaping from lawful custody or avoiding arrest; or
(b)to stop or assist in stopping a vehicle in connection with the pursuit of the vehicle by police officers.

(2)A provision made by or under this or any other Act that would operate to prohibit or restrict the placement or deployment on or near a road or road related area of a vehicle immobilising device does not apply to the placing or deploying of a vehicle immobilising device by a police officer acting in the exercise of his or her duties.

(3) In this section—
‘vehicle immobilising device’ means a device capable of causing a vehicle to stop or preventing a vehicle from moving and includes a device designed for, or capable of, deflating tyres.

The provisions referred to above illustrate the extent of the coercive powers of police with respect to the use of motor vehicles. Again, there is nothing in s 63B of the Act which limits the ability of police to apprehend suspected offenders to people suspected of driving related offences.

There are other provisions of the Act that support the view that there was no inadvertence or oversight on the part of the legislature in failing to qualify the power conferred upon police under s 60(1) of the Act. Section 57(2) of the Act provides that a certificate of analysis with respect to the presence of alcohol or drugs in a person’s blood is admissible in proceedings concerning the following:

(a)on a trial for murder or manslaughter or for negligently causing serious injury out of the driving of a motor vehicle; or
(ab)on a trial for an offence against Subdivision (4) of Division 1 of Part I of the Crimes Act 1958 arising out of the driving of a motor vehicle;[110] or
(b)on a trial or hearing for an offence against s 318(1) or 319(1) of the Crimes Act 1958[111] arising out of the driving of a motor vehicle; or

(c) on a hearing for an offence against s 49(1) of the Act;[112] or
(d) in any inquest or investigation held by a coroner.

[110]Concerning offences against the person.

[111]Concerning culpable driving and dangerous driving causing death or serious injury.

[112]Concerning offences involving alcohol or other drugs.

Sections 57A and 58 of the Act contain equivalent evidentiary provisions with respect to urine tests and breath tests respectively.

If the legislature had intended to limit the scope of s 60(1) of the Act in the manner found by her Honour, and contended for by Mr Moreno, it would have been open to it to include qualifications of the nature set out in s 57(2) and its mirror provisions. That the legislature did not do so is strongly suggestive of a finding that it had no such intention. Similarly, as noted earlier in these reasons, s 60(1) of the Act made no reference to ‘road or transport law offence’, which is defined in the Act, the use of which would be consistent with the construction of s 60(1) adopted by her Honour.

Finally, one of the canons of statutory construction relied upon by her Honour and Mr Moreno is the principle of legality. This principle was first given judicial sanction in Australia in the decision of the High Court in Potter v Minahan,[113] where O’Connor J quoted the following statement from Maxwell’s ‘On the interpretation of Statutes’:[114]

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.[115]

[113](1908) 7 CLR 277.

[114]Sir Peter Benson Maxwell, ‘On the interpretation of Statutes’ (Sweet & Maxwell, 4^th ed, 1905), 122.

[115](1908) 7 CLR 277, 304.

In recent years, this proposition has not been universally endorsed. In Malika Holdings Pty Ltd v Stretton,[116] McHugh J stated:

Given the frequency with which legislatures now amend or abolish rights or depart from the general system of law, it is difficult to accept that it is ‘in the last degree improbable’ that a legislature would intend to alter rights or depart from the general system of law unless it did so with irresistible clearness’ … Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law.[117]

[116](2001) 204 CLR 290.

[117]Ibid, 299.

Later, in Gifford v Strang Patrick Stevedoring Pty Ltd,[118] his Honour stated as follows:

There is a presumption – admittedly weak these days – that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so. In Malika Holdings Pty Ltd v Stretton, however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non‑interferences is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the ‘presumption’ of non‑interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.[119] (citations omitted)

[118](2003) 214 CLR 269.

[119]Ibid, 284.

Later, in Lee v New South Wales Crime Commission,[120] which was concerned with whether, under asset forfeiture legislation, a court could order an examination of a person charged with criminal offences about the subject matter of those charges, a majority of the High Court found that the presumption of legality must yield to legislative judgments in the public interest. French CJ stated that:
[120](2013) 251 CLR 196.

The presumption of innocence, the privilege against self‑incrimination and the right to silence are important elements of the ‘accusatorial systems of justice which generally prevails in the common law world’,[121]

but that:

Where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.[122]

[121]Ibid, 202.

[122]Ibid, 203.

His Honour held that the intention of the legislature was sufficiently clear to abrogate the privilege against self‑incrimination. Crennan J agreed, stating that:

… the rule does not exist to protect such rights and immunities from specific, clear, and unambiguous alteration in pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. In some cases, a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity. An underlying legislative object is not necessarily to be achieved at any cost, but commonly by striking a balance between competing interests.[123]

[123]Ibid, 249-250.

In their joint judgment, Gageler and Keane JJ referred to the observation of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union,[124] that the principle of legality is to be applied recognising that ‘modern legislatures regularly enact laws that take away or modify common law rights’,[125] and went on to say as follows:

Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard‑edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representatives and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that ‘[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve’.[126]

[124](2004) 221 CLR 309.

[125]Ibid, 328.

[126](2013) 251 CLR 196, 310.

Accordingly, while the principle of legality must be considered when undertaking the construction of s 60(1) of the Act, it is not an inviolable or immutable principle.[127] There are particular difficulties with its application in the current case. First, it was accepted by her Honour that s 60(1), in its terms, abrogates the privilege against self‑incrimination. Secondly, the express terms of s 60 of the Act, which makes it an offence to refuse to provide a police officer with information concerning the driver of a motor vehicle, clearly abrogates the privilege. This is supported by the extrinsic materials, and the decision of Nathan J in Loges,[128] where, having expressly had regard to the presumption, he noted that ‘the privilege to decline to answer has necessarily been extinguished’.[129]
[127]Ibid, 408.
[128](1991) 13 MVR 405.
[129]See Lee v New South Wales Crime Commission (2013) 251 CLR 196, 313 per Gageler and Keane JJ.

In the current case, the principle of legality has been invoked not to challenge whether the privilege has been extinguished, but to narrow the range of circumstances in which the privilege has been extinguished to the investigation of driving related offences. There are a number of difficulties with this approach. First, there is the difficulty in drawing a precise line as between where the privilege has been extinguished, and where it has not, without reading in words into the statute, which I have already found is not permissible. Secondly, attempting to draw such a line is inconsistent with the decisions of O’Reilly and Loges. In O’Reilly,[130] Gobbo J stated that s 60(1) was not limited to driving related offences, and in Loges,[131] Nathan J noted that the privilege has been expunged ‘even in circumstances where the use of the motor vehicle may have involved murder, manslaughter, or grievous bodily harm’. Thirdly, as discussed earlier in these reasons, the phrase ‘execution of duty’ ought to be construed to encompass all of the recognised legal duties of police officers. Fourthly, the Act is replete with provisions which encroach upon traditional common law rights and freedoms, often without the use of express language, but their intent to do so is clear. Accordingly, in my view, while there is no express legislative purpose underlying s 60(1) of the Act, by ‘necessary implication’, including the express words of the provision itself, s 60(1) of the Act abrogates the privilege against self‑incrimination in all circumstances, not just where police are investigating offences under the Act, or other driving related offences.
[130](1989) 10 MVR 19.
[131](1991) 13 MVR 405.

Disposition of the Proceeding

Accordingly, the DPP is prima facie entitled to the relief sought by it. However, Mr Moreno submitted that, in the event that I were to find against him on the substantive issues in the proceeding, I should nevertheless exercise my discretion to leave the orders made by her Honour in place, and not remit the matter back to the County Court for the hearing of Mr Moreno’s appeal against sentence. Mr Moreno relied upon the decisions of this Court in Smith v County Court of Victoria and Primrose[132] and the Court of Appeal in Director of Public Prosecutions v Batich and Anor[133] as support for the proposition that a court exercising its judicial review jurisdiction in relation to criminal matters may decline to grant relief on discretionary grounds, including the personal circumstances of the offender and the nature of the offence. In the current case, Mr Moreno submitted that:
[132][2005] VSC 396.
[133](2013) 38 VR 554.

(a) this proceeding was brought by the DPP on public interest grounds, rather than grounds relevant to the conduct of Mr Moreno personally;

(b) by the time judgment was likely to be delivered, Mr Moreno’s twelve month undertaking will have expired, such that Mr Moreno will have in effect served his sentence;[134]

(c) the proceedings arising out of the relevant incident has had a history of delays; and

(d) the transcript of the hearing below shows that the prosecutor was not pursuing a conviction.

[134]This prediction has turned out to be correct.

Accordingly, Mr Moreno submitted, there is no utility in remitting the matter back to the County Court.

The DPP submitted that the submissions of Mr Moreno regarding the disposition of the proceeding do not raise matters relevant to the exercise of the Court’s discretion to grant relief upon review. First, the purpose of the proceeding may be relevant to the question of costs, but not to the nature of the relief sought by the DPP. Secondly, the bond imposed by her Honour related to the other offences with which Mr Moreno was charged, not his breach of s 60(1) of the Act. Thirdly, the concession made by the prosecutor below will no doubt be repeated upon any re‑hearing, which can be taken into account by the judge to whom the matter is remitted. Finally, to the extent there has been any delay, the responsibility for any such delay lies with Mr Moreno, at least in the County Court, where he made two unsuccessful applications for leave to bring an appeal against conviction out of time.

In my view, the orders made by her Honour on 14 July 2017 should be quashed, and Mr Moreno’s appeal against sentence should be remitted to the County Court for re‑hearing. The DPP’s motivation for bringing this proceeding may well be relevant to the question of costs, but the effect of these reasons is that Mr Moreno has breached s 60(1) of the Act. That the breach took place in what might be considered to be unusual circumstances, and his good behaviour since 2015, may well be relevant to the question of sentencing. However, it is important that the record be correct, and the question of what consequences should flow from Mr Moreno’s breach of the Act should be the subject of proper argument and consideration, and not be dealt with by way of a sidewind. The current case can be distinguished from the authorities relied upon by Mr Moreno: they were concerned with sentencing alone, not criminal liability, which is what the Court is concerned with here.

I shall hear further from counsel as to the appropriate form of orders and the question of costs.

---

[2018] VSC 675

26 November 2018