Hooper v The Queen

[1995] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A19 of 1995

B e t w e e n -

GRANTLEY JAMES HOOPER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 3.23 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   If the Court pleases, I appear with MR N.M. VADASZ for the applicant.  (instructed by N. Vadasz)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MR S.K. McEWEN, for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   Could I take the Court immediately to page 11 of the appeal book to demonstrate the factual basis on which this question is sought to be raised?  Page 11 is where the formal interview which is being videoed and audio recorded occurs between the applicant and Detective Anderson.  I should tell your Honours that he was earlier arrested, and I use that word deliberately, he was arrested on suspicion of the robbery the day before.  He was given his statutory rights to have a solicitor present, have a friend present, and the caution by the police officer in the car on the way to the police station, and where this interview picks up at page 11 is in fact at the police station.

The applicant indicated that he wanted a solicitor to be present.  Eventually, a solicitor was contacted and the applicant indicated, at line 16, that he did not wish to say anything until the solicitor “gets here”; that is my paraphrase, of course, but that is what the effect of it was.  The formal interview stopped while the solicitor came and the interview then picks up the arrival of the solicitor at page 13 of the application book, and at the top of that page, if the court pleases, my learned junior indicated, lines 2 and 3, that he had given advice that the applicant not answer questions. That was acknowledged by the police officer Anderson at line 5:

‘Okay, so I take it, Grant, you don’t wish to discuss this matter at all?’

‘No.’

‘And I believe you don’t wish to hear any further allegations about this matter that we’ve arrested you for?’

‘No, I don’t see any point in it.’

And then the difficulty arises with respect to this application for special leave to appeal, by invoking the Road Traffic Act.  Before I come to that next portion of the material, might I make this submission about the interview to that point?  In my submission, putting aside the question of the statute, what next followed would ordinarily have been excluded as irrelevant under Ireland’s case.  Indeed, under the decision of this Court in Petty and Maiden, even the conversation exercising the right to silence would normally not be led because the only basis for leading it would be to give rise to an adverse inference.

Also, I would submit, that ordinarily - in fact, in every case - the accused person could not have been cross-examined on the reason for the exercise of the privilege against self-incrimination.  In other words, if the Court pleases, at common law, any further conversation would have been plainly inadmissible for a variety of reasons.  Now, what happened then, of course, as the Court can see from line 15 and what follows, is that the officer, who was faced squarely with the exercise in plain and unequivocal terms of the right to silence, purports to invoke section 38 of the Road Traffic Act, to which I will come in a moment, but which provided, for a relatively minor summary offence, with a maximum fine of $1,000 if the question was not truly answered under the Act.

What the officer did, to paraphrase it, if the Court pleases, line 17, was to require the applicant in the face of his express claim to the privilege against self-incrimination, to state that the driver of the vehicle, being the second car said to be involved in the robbery - there was a Kingswood sedan which was driven to the car park and then the second car, which is the Valiant Charger, line 23 described, was used as the second car, on the Crown case, for the purposes of the escape from the robbery.

Now, if the Court pleases, in my submission, what has happened here is that the mechanism of the relatively minor offence for failing to truly answer under the Road Traffic Act has been invoked for the only purpose of securing evidence against the applicant in the major and serious crime of armed robbery which carried life imprisonment.  In my submission, the special leave point in those circumstances is not really whether the section authorised the asking of the questions but, more particularly, whether it authorised their receipt into evidence on the charge of armed robbery in the face of what would otherwise have been plainly an inadmissible line of questioning.

Now, could I add, if the Court pleases, what the applicant then went on to state at the bottom of pages 13 and 14 were lies under the direction of the officer, and those lies, if I could put it this way, feature prominently in the summing up.  There is no question that the use of this material, once admitted, was minor or incidental.  It was, in my submission, clearly an important part of the summing up and was left to the jury on the basis of an Edwards’ direction.

TOOHEY J:   Mr Tilmouth, could you be more specific?  Are you arguing that section 38 of the Road Traffic Act did not authorise the asking of the questions in these circumstances?

MR TILMOUTH:   It would authorise the asking of the questions only for the purposes of section 38 itself, and to put the question another way, it would not have authorised anyway the receipt into evidence for an offence under other than section 38 of the answers.

TOOHEY J:   Well, you say that is putting it another way.  It is really a different proposition though, is it not?

MR TILMOUTH:   Well, it could be, with respect, but, in my submission, it comes to the same thing.  The question is always allowable if it is a proper invocation of section 38, but its use is quite another matter, in my submission, and its use can only go to an offence under section 38 as ‑ ‑ ‑

TOOHEY J:   But it may be one thing to use section 38 for the purpose of establishing whether or not an offence has been committed under the Road Traffic Act.  It is another thing altogether to ask whether section 38 authorises the asking of the particular question for purposes other than establishing the commission of an offence under the Road Traffic Act.

MR TILMOUTH:   Yes, I agree with that.  In fact, in my submission, there are three tiers.  Does the section only authorise the asking of the questions for the purposes of the section itself?

TOOHEY J:   Well, I thought you had rather left that one to one side, if not abandoned it.

MR TILMOUTH:   No, that is our first line of defence, so to speak.  The second is, it only allows the questions and the answers for the purposes of Road Traffic Act offences and correspondingly, of course, it would not allow it for offences going beyond the Act at large, but if ‑ ‑ ‑

BRENNAN CJ:   Now, take those propositions one by one, Mr Tilmouth.  The first question is:  does section 38 empower or authorise a police officer to ask the question specified in section 38?

MR TILMOUTH:   Yes, it does.

BRENNAN CJ:   Did it authorise this police officer to ask that question?

MR TILMOUTH:   In terms, yes.

BRENNAN CJ:   The next questions is:  if he did exercise the power, did that impose an obligation statutorily to answer?

MR TILMOUTH:   It did, for the purposes of section 38.

BRENNAN CJ:   For the purposes of section 38.  The next question then is:  what are the purposes of section 38?

MR TILMOUTH:   The purposes of section 38 are to gather information at the investigation stage which may lead to the identification of a driver of a vehicle concerned.  The section is not for the purpose of allowing evidence to be given which would otherwise be inadmissible.

BRENNAN CJ:   But the section itself states its purpose, namely, the purpose of obtaining information which may lead to the identification of the driver.

MR TILMOUTH:   Indeed.

BRENNAN CJ:   On any occasion.

MR TILMOUTH:   That is true.  It is, in that respect, in wide terms.  Your Honours, by the way, the section is reproduced in the application book at page 64.  It is important, in further answer to your Honour the Chief Justice, to note that the section occurs in the Road Traffic Act under Part II, headed ”Administration”, and under a subheading in which only sections 37 and 38 occur, which are entitled, “Powers of Search - An Inquiry”.  Now, those headings give some clue, in my submission, to the purpose that the section was intended, and that is, if the Court pleases, the purpose of investigation rather than for the purpose of gathering admissible evidence.

BRENNAN CJ:   Well, those are the same thing.  The question is investigation of what offences, is it not?

MR TILMOUTH:   Well, that is true but, in my submission, any words qualifying this section, or sections like it - and there are analogues; as the Court know it is in all the other States - simply confine the circumstances in which a police officer may invoke the provision, but they do nothing to indicate whether Parliament intended that the answers given under compulsion of the section were meant to be admissible at large.  But the really important point, in my submission, in this case, and what unifies the argument under all the interstate provisions, is the fact that the direction here was in the face of the claim to silence.

BRENNAN CJ:   But that is the whole problem, it seems to me.  You have got to start with the proposition that here is a provision which truncates or impairs the right to silence.  If the power to require an answer is validly exercised, it seems to me that all else follows.  The right to silence has been abrogated; the duty to answer is there; the use that can be made of evidence obtained lawfully and not in breach of the obligation not to compel an answer is available for tendering.  The question simply is:  can the section be used for a purpose alien to the purposes of the Traffic Act?

MR TILMOUTH:   Well, in one respect, in my submission, that is the question, but the real question is whether there is a sufficiently clear intention in the section itself to indicate that Parliament not only authorised the asking of the questions, but also that those answers be admissible at large for any offence, quite apart from the offences under the Act and quite apart from an offence under section 38 itself.

BRENNAN CJ:   But you would not need a parliamentary authority for that.  If the evidence is there obtained pursuant to section 38, there is no rule of the common law which would exclude them.

MR TILMOUTH:   Well, with respect, there is.

BRENNAN CJ:   What is it?

MR TILMOUTH:   Well, they are the principles which have been outlined in Sorby’s Case and Hammond’s Case and so on in this Court, and Pyneboard v Trade Practices Commission that, prima facie, it is not intended to abrogate the privilege against self-incrimination and, to put it generally, that fairly clear or express words are required for that purpose.  I acknowledge, of course, that it may be impliedly abrogated, but that implication must clearly appear.

BRENNAN CJ:   But that simply means that there is no obligation under 38 to answer.  My proposition to you is that once you get an answer under section 38, assuming it is under section 38, there is simply no rule which prevents it being tendered.

MR TILMOUTH:   Well, could I test that this way, if the Court pleases?  Under section 38, if the applicant said, “I refuse to answer that question”, that would be the end of the matter, except for the fact he would have committed an offence, but it says nothing about the admissibility or otherwise for any other purpose and, in my submission, all that the section is intended to do is to be facultative for speedy police inquiries about the drivers of motor vehicles before they get away.  It was for that purpose, in my submission, enacted in 1950, by the way, as it turns out, this provision has prevailed.

Now, if the Court pleases, in my submission, the error in the Court of Appeal appear from page 65 and those which follow, and if I could quickly deal with the submissions here about the errors?  At about line 35, Justice Cox, who wrote for the three judges of the Full Court, pointed out that:

there was no suggestion in the wording of the new s140 of its use being confined to the investigation of traffic offences.

In my submission, that is true, but as I put to the Court already, the confining words only confined the basis upon which the requirement can be invoked.  They do nothing to indicate whether the evidence may be received at large.  Next, if the Court pleases, at page 66, as Justice Cox points out at about line 25, this section appears under Administrative Provisions, it is line 24.  He also said that - and this is at line 27:

The quoted words do not describe offences under the Road Traffic Act.

The quoted words being:

or has been stolen or used without the consent of the owner.

If the Court pleases, those words, and indeed the offences of illegally using or interfering with a motor vehicle, were offences under the Road Traffic Act itself until 1992.  So for the 45 or so years that this provision has operated in this State, the words:

or has been stolen or used without the consent of the owner -

appeared as a separate offence under the Act, except that there is no discrete statutory offences in South Australia of larceny of a motor vehicle.  There is only an offence under section 131 of the Criminal Law Consolidation Act, line 30 of this page, which is simply an offence of simple larceny at common law.  There is no specific offence of larceny of a motor vehicle. 

Finally, if the Court pleases, at the bottom of page 66, his Honour indicated that the history of the legislation - this is lines 42 and 43 - which discarded the earlier words of restriction, which words, of course, had both versions, an offence under this Act or regulations or under this part, was also an indicator that it was not confined to offences under the Act.

Now, my point there, if the Court pleases, is simply that even in legislation, as this Court held in Sorby, where it is said that there is a requirement to answer the questions, but it shall not be admissible in any other proceedings, is still insufficient to clearly indicate Parliament’s intent that the evidence could be used at large.  If I could then take the Court to page 67.  His Honour deals specifically with the point that arises here about the abrogation of the privilege against self-incrimination and points out, at the bottom of page 67 that section 79A of the Summary Offences Act contains the express reference - and this is lines 46 to 7 if the Court pleases - that the caution must be given:

(unless required to answer the question under this or any other Act or law).”

Now, as to that, if the Court pleases, could I quickly hand up the Summary Offences Act, the relevant parts, and point out that there are two distinctions made in that Act about this issue.  If the Court pleases, I have isolated in what I have just handed up the whole of the arrest provisions and consequential provisions for the Court, but if the Court goes to section 79A, which is about three pages into those materials, the relevant provision that Justice Cox is referring to at page 67 is 79A(1)(b)(iii) where the Court can see the exceptive words in brackets, that the person who is apprehended on suspicion, subsection (iii):

is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).

But, if the Court pleases, if the Court turns over and goes to subsection(3), there is no similar qualification when it comes to the warning about the use of that material in evidence, and under section 79A (3)(b) it specifically says the police officer:

must warn the person that anything that he or she may say may be taken down and used in evidence.

So, if the Court pleases, the Parliament makes a distinction between the requirement to answer the question, which is qualified by the bracketed words, as opposed to the warning which must always be given.

TOOHEY J:   Mr Tilmouth, could I just ask you this?  Is the fact that these provisions are in the Summary Offences Act an indication that they relate only to summary offences situations, or do they have wider applications?

MR TILMOUTH:   No.  This is a code for the whole situation where persons are arrested, whether they are summary offences or major crimes.  This is the arrest code.  That is why I handed up all the provisions.  So this applies universally, if the Court pleases.  It is to be noticed, if the Court pleases, going back to Anderson’s questions, that when he invoked section 38 at page 13, he invoked it without again giving the warning, or any warning, that what might be said could be used in evidence against the applicant on the charge for which he is arrested, namely, the armed robbery.

In my submission, that is a distinction which needs to be made both in terms of the Act itself, because it divides up to two parts of the warning, and also it points, in my submission, to unfairness here, because a warning should have been given so that the applicant could have exercised a free choice to speak or remain silent subject to the penalty of section 38, namely, whether he had appreciated that what he was about to say would incriminate him in relation to the major offence itself.

If the Court pleases, I notice that the time is up, but could I point out that the Canadian authorities have dealt with this issue and the Court has read in my written outline that they still take the view that the voluntariness or the admissibility of the evidence must be established quite apart from the coercive provisions.  If the Court pleases.

BRENNAN CJ:   Yes, thank you.  We need not trouble you, Ms Abraham. 

The principal ground put forward in support of the application concerns the operation of section 38 of the Road Traffic Act 1961 (S.A.).  This section states:

“A person must truly answer any question put by a member of the police force or an inspector for the purpose of obtaining information which may lead to the identification of the person who was driving, or who was the owner of, a vehicle on any occasion.”

The South Australian Court of Criminal Appeal held that the application of section 38 is not limited to questions relating to suspected offences under

the Road Traffic Act itself.  This is a question of interpretation which, in itself, is not of sufficient public importance to warrant a grant of special leave.  In any event, the interpretation placed on the provision by the Court of Criminal Appeal of South Australia is tenable and, if the Parliament intends some other operation for section 38, it is open to the Parliament to amend section 38.

Once an answer is given in response to a valid requirement under section 38, there is no rule which requires the answer to be excluded from evidence.  That proposition takes the case outside the operation of section 79A(1)(b)(iii) of the Summary Offences Act 1953 (S.A.).  For these reasons, special leave should be refused.

AT 3.47 PM THE MATTER WAS CONCLUDED