Moffitt v The Queen

[2020] NSWDC 486

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moffitt v R [2020] NSWDC 486

Hearing dates:

16 July 2020, 30 July 2020, 7 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

The appeal is upheld the conviction and other order of the Magistrate are set aside.

Catchwords:

APPEALS - District Court - Appeal against conviction in Local Court

APPEALS - Nature of appeal - Appeal by rehearing - Error of law - Admissibility of evidence

CRIME – not paying for petrol – in what circumstances is this by deception dishonestly obtaining property belonging to another

EVIDENCE - Admissions - Criminal proceedings -Improperly obtained evidence - Exclusion of evidence - Requirement for recording admissions in s 281 Criminal Procedure Act 1986 not met - Notice of Demand - does s 14 Law (Enforcement Powers and Responsibilities) Act 2002 Notice of Demand require electronic recording if evidence is to be admitted in Table 1 Criminal Procedure Act 1986 offence proceedings – Whether evidence should be excluded - other discretions considered

EVIDENCE - Identification evidence - Visual identification from CCTV – comparison with appellant in court – necessary cautions

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Criminal Procedure Act 1986

Criminal Procedure Act 1986

Evidence Act 1995

Law Enforcement (Powers and Responsibilities) Act 2002

under Crimes (Appeal and Review) Act 2001

Cases Cited:

Carr v Western Australia [2007] HCA 47;(2007) 232 CLR 138

Charara v The Queen (2006) 164 A Crim R 39

Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208 A Crim R 146

Director of Public Prosecutions v AG [2015] NSWCA 218

Dyason v Butterworth [2015] NSWCA 52

Edwards v Ddin (1976) Crim App R 218

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Gianoutis v Glykis (2006) 65 NSWLR 539

Kelly v The Queen [2004] HCA 12; (2004) 19 CLR 216

NSW v Robinson [2019] HCA 46

R v Barakat [2016] NSWSC (No 2) 1255

R v Coady (1996) WL 1092390

R v Collis-Smith (1971) Crim L R 717

R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117

R v Reid [1999] NSWCCA 258

R v Schiavani [1999] NSWCCA 165

Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

Texts Cited:

Legislative Assembly Hansard, 12 /11/1998 - Police Powers (Vehicles) Bill 1998

Uniform Evidence Law 15th Ed, S Odgers.

Category:

Principal judgment

Parties:

Chloe Moffitt (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Solicitors:
Mr T McKenzie, Legal Aid NSW
Ms A Bird, Director of Public Prosecutions

File Number(s):

2018/00279840

Judgment

Introduction

1. December 6^th 2019 was a busy morning at Wollongong Local Court. Among many other matters Magistrate Douglass heard a defended hearing that alleged that on 28 July 2018 Chloe Moffitt had dishonestly obtained a benefit by deception: s 192E (1)(a) Crimes Act 1900. The hearing took much longer than His Honour was given as an estimate. A number of questions of law and the admissibility of evidence were raised. His Honour was not assisted by submissions that ranged widely and did not identify with precision or clarity the sections or authorities relied on or the objections taken. His Honour reserved his decision until 9 April 2020 but list pressure meant only a rushed oral judgment was given. That decision was eventually supplemented by written reasons in note form. Ms Moffitt was convicted and later sentenced to a Community Release Order for 12 months.

2. The prosecution of Ms Moffitt relied on oral admissions made by the appellant, and answers made by her to a s14 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) demand, including a signed copy of the Form of Demand and those questions and answers. The defence objected to any admission made relying on s 281 Criminal Procedure Act 1986 (CPA), which requires any admissions be audio, or audio and visually, recorded if they relate to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. Section 192E(1)(a) Crimes Act is such an offence: Schedule 1,Table 1 CPA.

3. Ms Moffitt has appealed that conviction and sentence.

District Court power on rehearing

4. The District Court’s appellate powers are exercised under Crimes (Appeal and Review) Act 2001. Appeals against conviction are to be by way of rehearing on the evidence given in the original Local Court proceedings, except as provided by s 19 Crimes (Appeal and Review) Act 2001 (CARA): s18 CARA.

5. A District Court Judge is permitted to have regard to the evidence presented to and the transcript of the Local Court proceedings and to the Magistrate’s reasons for judgment: Charara v The Queen (2006) 164 A Crim R 39 at [23].

6. A Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the “natural limitations” of an appellate court); those inferences may, or may not be, contrary to any inferences drawn by the Magistrate. The Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate’s evaluation of evidence. After hearing an appeal may determine an appeal against conviction:

1. by setting aside the conviction, or

2. by dismissing the appeal: s20 CARA.

7. Here the appellant submits that errors of both law and fact were made by Magistrate Douglass. The submissions of both parties also require I make a thorough examination of the evidence and its admissibility and make my own determinations. Accordingly here, I do not have to resolve any issue about whether the appellant must demonstrate that the order the subject of the appeal is the result of a legal, factual or discretionary error or whether I should conduct a rehearing without the necessity to find error: Gianoutis v Glykis (2006) 65 NSWLR 539; Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG [2015] NSWCA 218; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290.

Evidence before the Court

8. It was, with respect, no easy task to determine what evidence was before the Local Court when it made its determination of guilt. It is essential this be determined as there was no application here that I receive fresh evidence and the rehearing proceeds on the basis of the evidence given in the original Local Court proceedings: s18 Crimes (Appeal and Review) Act 2001 (CARA).

9. There is some tension in the words of s 18 CARA. Am I determining the appeal on the basis of only the material before the Magistrate when he determined guilt or should I rehear and determine admissibility issues on the basis of all the material put before the Local Court? It was agreed that in the interests of justice all material put before Magistrate Douglass should be put before me in order to determine what was and was not admissible in proof of the prosecution case on appeal. Once those issues were determined I could then apply the usual directions to the evidence I found was admissible and reach a decision as to whether or not to dismiss the appeal.

10. The following material is now before this Court:

1. Transcript of the hearing of the voir dire and substantive case against the appellant: Wollongong Local Court - 6/12/2019.

2. Transcript of Magistrate Douglass’s oral reasons - 9/4/2019

3. Magistrate Douglass’s written reasons or notes.

4. Statement and notebook entry by the console operator

5. CCTV Caltex Service Station Gerringong 28 July 2018 of a car, registration CJH22R (NSW), pulled up at a bowser.

6. The Form of Demand and other questions and answers administered to appellant and signed by her at Lake Illawarra Police Station.

7. Evidence of Senior Constable Bush on voir dire 6/12/1219 setting out the conversation between Senior Constable Williams and the appellant at Lake Illawarra police Station 4 August 2018.

8. The Appellant was in court on 7 August 2020 so that if necessary I could, as the tribunal of fact, make my own in court observation and identification: Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650.

Foundational Facts

11. For the purpose of the appeal the following matters are not in serious dispute. What was put in issue is whether any admissions allegedly made by the appellant are admissible in evidence, and, if not, whether the remaining evidence can prove the prosecution case against the appellant beyond reasonable doubt.

12. On 28 July 2018 a car, registration CJH22R (NSW), pulled up at a bowser at a Caltex Service Station at Gerringong. A woman exited the passenger side of the car. She operated the petrol pump and filled the car with 46.5 litres of petrol. She re-entered the car through the front passenger door. Soon after the car drive off. No one paid for the petrol; valued at $73.44.

13. On 4 August 2018, Ms Moffitt, the appellant, while driving CJH22R (NSW), was pulled over by police for a roadside breath and illicit drug test. She returned a positive result to an illicit drug. She was arrested and taken to Lake Illawarra Police Station so that an oral fluid sample could be taken from her.

14. At the Police Station Senior Constable Walker told Senior Constable Bush that the appellant was also wanted for a “fail to pay” offence: TT 6 /12/19, p 3 & 5.

15. After the oral fluid procedure was completed, and while the appellant was still in the testing room, she was spoken to Senior Constable Walker in the presence of Senior Constable Bush.

16. Senior Constable Walker said “I’m going to ask you some questions about a fail to pay that happened at a Caltex service station in Gerringong on 28 July 2018. You do not have to say anything if you do not want to. Do you understand that? TT p. 11. The appellant answered “Yes that was me:” TT p. 12.

17. Senior Constable Walker continued “Anything you do say will be recorded and will be used as evidence in court. Do you understand that?” The appellant replied: yes.”

18. Senior Constable Walker said “Can you tell me about the incident?” The appellant said, “I was going to see my son. I didn’t have enough money.”

19. Senior Constable Walker then said, “Because you were the owner of the vehicle I have to place a form of demand on you, basically, formally ask you to disclose who it was, because it was your car.” To the officers present it appeared as if the appellant nodded in acceptance.

20. Senior Constable Walker produced a form of demand under s 14 of LEPRA. Senior Constable Walker read from the form displayed on a computer screen. He said, “I’m Senior Constable Walker of Lake Illawarra police. I’m going to request that you supply identification under section 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 as I reasonably suspect the vehicle CJH 22R, New South Wales registration, was or may have been used in the commission of an Indictable offence, and that the driver of that vehicle on 28 July 2012 at the Caltex Service Station to Belinda Street, Gerringong failed to pay for 46.51 litres of premium 98 petrol to the value of $73.44.

21. The accused replied, “Well I didn’t have enough money to get down the coast to watch my little one play football, but I was adamant I was going to watch him play. Yeah, I got fuel and didn’t pay for it.”

22. Senior Constable Walker typed this response as the appellant answered the questions. Senior Constable Walker said, “I warn you that failure to comply with this request may be an offence under section 15 of the Law Enforcement (Powers and Responsibilities) Act 2002. I now require you, as the driver of the vehicle, to disclose your name and residential address.

23. The accused replied, “It was me. I live at [an address], Mount Kembla.” Senior Constable Walker typed this response.

24. Senior Constable Walker asked, “Did you make any other attempt to return to pay for the fuel?” The appellant replied, “No”. Again senior Constable Walker typed this response. Senior Constable Walker printed the form of demand and the typed answers. Senior Constable Walker asked the accused to read and sign the form of demand. At 9:00 pm, the appellant signed her signature, and dated the Form of Demand: Local Court Exhibit 4.

Other evidence

25. The Caltex Service Station’s CCTV recorded the car, registration CJH22R (NSW), pull up at a bowser. I have seen the CCTV recording. It shows two people in the car; a driver and a front seat passenger. The driver is obscured by glare on the windscreen. A woman exits the passenger side. She uses the bowser and then returns to the passenger side and re-enters the vehicle. After a short pause the car drives away. The driver does not exit the car. No one went to the cashier in the Service Station’s office and paid for the petrol.

26. The console operator saw what was happening. On 8 August 2018, in a police notebook statement, he described the events shown on the CTTV. He said there were two people in the car and described a passenger who used the bowser as “female, obese, shoulder length hair.”

27. The CCTV does show this event although there may be room to question the precision of the descriptions “obese” and “shoulder length hair.”

The Magistrate’s reasons

28. His Honour dealt with objections both before and after proceeding to the hearing of the substantive matter. He held that any evidence before the administration of the form of demand was inadmissible: TT p. 21-23. The police prosecutor had said it was “knocked out by s 86:” TT p.12. This was reference to s 86 Evidence Act 1995 (EA), which excludes records of oral questioning not otherwise acknowledged in writing by the defendant. His Honour then, after considering s 138 Evidence Act, allowed evidence from ‘the form of demand down and only questions and answers in relation to the form of demand.” With respect it isn’t entirely clear what was meant by that ruling.

29. A copy of the operator’s note book and formal statement adopting the contents of the notebook were tendered without objection as Local Court Exhibits 1 and 2.

30. The CCTV was tendered without objection as Local Court Exhibit 3.

31. The Form of Demand was tendered over objection as Local Court Exhibit 4.

32. In his oral reasons given on 9 April 209, His Honour held;

1. That there was a reasonable excuse not to comply with the CPA as “It was a form of demand that is required and enforceable with other legislation.”

2. The admissions made prior to the Form of Demand were not admissible “because of the nature of the custody.”

3. There was, regardless a strong circumstantial case and the prosecution had excluded all reasonable hypotheses consistent with innocence.

33. In his written notes His Honour set out the formal matters required of him relating to the elements and onus of proof. He noted a legislative tension between s281 CPA and s14 LEPRA. He noted that s14 relates to obtaining information about a vehicle reasonably suspected of being involved in an indictable offence, not an individual. He noted that s281 did apply to the admission in the Form of demand as any admissions fell within the ambit of that section. And, apparently at odds what he had said in his oral judgement, while it was reasonable to make the demand, not recording the answers was not. Having excluded the admissions he then went on to consider the circumstantial case against the appellant. He then took into account that:

1. The appellant owned CJH22R (NSW); because Senior Constable Walker had said to the appellant without contradiction “because you’re the owner of the vehicle, I have to place a form of demand on you because it was your car.”

2. The CCTV gave him an opportunity to observe the person at the bowser for over 3 minutes.

3. The CCTV gave him an opportunity to observe her vehicle and the movements of other vehicles at the Service Station;

before concluding the elements of a s 192E offence had been proved beyond reasonable doubt.

Appellant’s case

34. Mr McKenzie, Solicitor Legal Aid NSW, who did not appear in the Local Court, put a number of propositions to the Court, in comprehensive written and oral submissions:

1. Section 281 CPA applies to the questions asked by Senior Constable Walker including those relating to the Form of Demand and the signed Form.

2. No reasonable excuse has been advanced as to why the admissions were not tape or electronically recorded.

3. Where a s 14 LEPRA Form of Demand is administered in a situation where s 281 CPA applies the questions asked and answers given must be recorded or a reasonable excuse for not recording them shown, if the evidence is to be admitted.

4. If a s 14 demand need not be recorded any questioning here that went beyond s 14 was beyond power, unlawful and improper and unfair and any admissions made should not be allowed in evidence: s 90 and s138 EA

5. The appellant was under arrest or being unlawfully detained at the time of the questioning and had not been afforded her Part 9 LEPRA rights. Accordingly, the questioning was unlawful, improper and unfair and any admissions should not be allowed in evidence. The following provisions were referred to: s 110 LEPRA (arrest without warrant), s 122 LEPRA (safeguards for detained persons), s90 EA (discretion to exclude unfair admissions) and 138 EA (exclusion of improperly or illegally obtained evidence).

6. The evidence before the Magistrate was insufficient for him to make an in court identification that the appellant was beyond reasonable doubt the person at the bowser depicted in the CCTV.

7. If the admissions are excluded and identification can be established the prosecution’s circumstantial evidence is insufficient to exclude beyond reasonable doubt all reasonable hypotheses other than guilt: R v Collis-Smith (1971) Crim L R 717; R v Coady (1996) WL 1092390; Edwards v Ddin (1976) Crim App R 218.

Respondent Prosecution case:

35. Ms Bird, Solicitor, for the DPP in comprehensive written and oral submissions submits:

1. The evidence “Yes it was me was” was wrongly excluded by the Local Court. Section 86 EA (Exclusion of records of oral questioning) does not require exclusion of the admission.

2. The answer “yes it was me” was admissible as it was a spontaneous remark not made in response to any question let alone in the course of official questioning and was not made in a situation that required a tape recording be made: Kelly v The Queen [2004] HCA 12; (2004) 19 CLR 216.

3. Even if the words “that was me” were excluded, the answers recorded in Form of Demand (Exhibit 3) were admissible. Section 14 LEPRA gives police the power to require certain information from the owner of a motor vehicle. The provision (and its predecessor) was introduced specifically to equip police with power to investigate serious crime: Legislative Assembly Hansard, 12 /11/1998 - Police Powers (Vehicles) Bill 1998. The safeguards for the exercise of this power are contained in s202 and s 203 LEPRA, no others need or do apply

4. Section 14 LEPRA is not subject to the operation of rights, other powers or evidentiary provisions such as s281 CPA.

5. There is nothing in the statutory language of s 14 LEPRA that specifically conditions the scope of the power, nor is there anything confining a police officer to asking only one question. The provision is analogous to s11 LEPRA, which abrogates the right to silence to the extent that it requires a person to comply with a request for identity particulars.

6. Section 281 CPA did not apply to the questions asked and if it did, it could not and did not apply to the s 14 Form of Demand; as Magistrate Douglass held, “it is required and enforceable with other legislation: TT 9/4/20.

7. Section 281 was not applicable to these proceedings as.

1. The answers provided to the questions in the Form of Demand are first and foremost particulars as to identity which the appellant, as the owner of the relevant vehicle, was compelled to provide.

2. While the identity particulars may, in some circumstances, be inculpatory – similar to fingerprints, DNA samples, voice recordings, handwriting etc. taken under compulsion – they are not, on that basis only, admissions.

1. In the event the identity particulars provided by the appellant are capable of amounting to an admission, it would be antithetical to the operation of s14 LEPRA, including the nature of the power and the negation of consent of an accused person, to place a proviso on the use and admissibility of that information: Carr v Western Australia [2007] HCA 47;(2007) 232 CLR 138 at [74] - [78]. The purpose behind s281 does not require such a finding.

2. The absence of a proviso in s14 LEPRA, similar to that which appears in Part 9 s113 (2) implies that any evidentiary provisions relating to admissions do not apply to the s14 power.

8. If the contentions advanced by the appellant were upheld, it was submitted that the statutory power contained in s14 LEPRA would be deprived of its intended operation, and would lead to absurd and inconsistent results, including:

1. Police could rely upon identity particulars obtained where a person identified someone else as having driven a vehicle at the relevant time, but not if that person identified themselves;

2. If a person was interviewed electronically after making ‘admissions’ in response to a Form of Demand, but did not adopt or confirm the admissions (similar to the situation in Kelly v The Queen at ]22] to [37]), the identity particulars provided would be inadmissible and the s14 power would be rendered futile;

3. If a Form of Demand were placed on an owner who could not reasonably have been considered a suspect at that time, and that person identified themselves as a driver or passenger, this ‘admission’ would not be caught by s281 and Police would then be able to rely upon such identity particulars.

9. Overall, the respondent submitted that the s14 LEPRA power would be fettered unnecessarily if it were found that answers in response to a Form of Demand were required to be electronically recorded before Police could to rely upon those answers as admissions.

10. The Appellant’s reliance on Part 9 LEPRA was misconceived, as the appellant did not fall within the very clear ambit of Part 9. The appellant was not under arrest and was not a protected suspect. Further, the police officer was authorised by law to proceed with the Form of Demand irrespective of Part 9.s 113(1)(b) LEPRA. The evidence was therefore not improperly obtained. But even if a Court found that was the case, the desirability of admitting the evidence well outweighs the undesirability of admitting evidence that has been obtained in response to the Form of Demand. As here the appellant was cautioned in circumstances where there was no requirement for Police to do so.

11. If the admissions were excluded there still remained a strong circumstantial case. The appellant is implicated in the offence through the use of her car (identified by registration) and the CCTV footage. I should accept and follow Magistrate Douglass’ finding that that the person using the bowser captured on the CCTV footage was the appellant.

Relevant law and principle

LEPRA

36. Section 14 LEPRA facilitates the investigation of indictable offences. It reads relevantly”

(1)    A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may do any one or more of the following—

(a) require the driver of the vehicle to disclose his or her identity and the identity of any driver of, or passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle,

(b)…

(c) require any owner of the vehicle (who was or was not the driver or a passenger) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used …

.

37. Section 14 allows for abrogation of the right to silence where a person is questioned about a vehicle reasonably suspected of being involved in indictable offences. It allows for certain questions to be asked of and answers compelled from the driver, passenger or owner of the suspect vehicle. The only nominated safeguards are those in sections 202 and 203 LEPRA, which relate respectively to information that must be provided and warnings that must be given; ‘A police officer who exercises a power …that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.’

38. As with any provision that unambiguously takes away rights s14 LEPRA must be strictly construed and applied: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 - 438. This construction appears consistent with Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; (2009) 78 NSWLR 32; (2009) 208 A Crim R 146, where Fullerton J held, so far as s11 LEPR Act is concerned that:

“Parliament has intervened to deprive a person of an important common law right privilege or immunity… Parliament intended to abrogate the right to silence to the extent that a person is required to provide their identification details to police in the circumstances provided for the section.”

39. Part 9 LEPRA rights apply to a person “who is under arrest by a police officer for an offence or who is a protected suspect in connection with an offence.” Section 113(2) LEPRA notes that Part 9 LEPRA does not prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do. Section14 LEPRA authorises a police officer to ask a person to do something.

40. Part 9 LEPRA applies to a “protected suspect.” That is; “a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if (a) the person has been informed that he or she is entitled to leave at will, and (b) the police officer believes that there is sufficient evidence that the person has committed the offence.”

Section 281 CPA

41. Section 281 CPA is an evidentiary not an investigative provision. It limits the opportunities for a police officer to fabricate the making of an admission and for an accused to challenge evidence of the making of an admission: R v Horton (1998) 45 NSWLR 426; R v Sharp [2004] NSWSC 1117 at [17].

42. An admission means a previous representation that is—

1. made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

2. adverse to the person’s interest in the outcome of the proceeding: Dictionary EA.

43. For s 281 CPA to operate three conditions must be met. The admission:

1. must be made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

2. made in the course of official questioning, and

3. relate to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

Evidence Act

44. Section 85 Evidence Act relates to the reliability of admissions by defendants. The section was amended after Kelly v The Queen. The section applies, , only in a criminal proceeding and only to evidence of an admission made by a defendant to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. The section sets out matters that the court may take into account.

45. Kelly v The Queen concerned Tasmanian legislation in similar terms to the EA (NSW) and s 281 CPA. However, the High Courts’ consideration of terms that still remain in s 281 CPA, "in the course of official questioning" suggests that a confession, which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, falls within the exclusion provisions as: “The words do not require that there be any causal connection between the admission and the official questioning:” At [45].

46. Before s85 can operate the document containing the admission must be admitted into evidence. A representation made in a document is evidence and can be treated as an admission if it is adopted, signed or recognised by the defendant said to have made the admissions. Admissions can be made by adopting representations made by another. The Form of Demand was adopted and so recognised by the defendant.

47. A document containing an admission which fulfils the requirements for admission set out in the EA must still meet those stringent requirements before it can be admitted in evidence: R v Schiavani [1999] NSWCCA 165 at [16].

48. The appellant’s initial admissions were made orally but they were then put into the document headed Form of Demand and acknowledged as accurate and adopted by the appellant who signed the document.

49. Section 86 EA allows the tender of oral admissions only if the representations in them amounting to admissions are acknowledged as a true record by a defendant. The Form of Demand and the answers recorded were so signed. Section 86 is however subject to the additional requirements of s281, if the deponent fulfils the preconditions for its application as here the appellant does. Section 86 EA makes it clear that the EA is read subject to other legislative requirements and provisions.

Identification and resemblance

50. Magistrate Douglass held opinion that the woman in the CCTV using the bowser was the Appellant. There is a difference between evidence of a positive identification and circumstantial identification or resemblance or similarity: Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; S Odgers. Uniform Evidence Law 15^th Ed, at [116.120]; “identification evidence;” Dictionary EA. That said, in all the circumstances the prudent course here would be for a trier of fact to head the warnings in s116 and 165 EA before relying on such evidence. Such cautions are particularly relevant when comparing a CCTV image with an accused appearing in court. In a trial I would direct a jury in these terms:

“CCTV recordings can be notoriously difficult to interpret. Common experience shows the quality of the recordings can vary. Much can depend on the lighting available. Much can depend on how much money was spent on the recording device and how modern it is. What is recorded and able to be replayed depends on; the quality of the device used, the type of lens; the number of pixels and frame rate - modern videos capture a number of still images that are put together at a rate quicker than the human eye can detect- causing it to look like a constant flow. There are however sometimes jumps and gaps. Camera angles can at times lead to misperceptions. Further, people viewing CCTV recordings can at times be open to suggestion. Sometimes things suggested by counsel, for example, are on close examination not as apparent as first thought and may simply be trick of the light of defects in the recording; the act of suggesting itself can influence a viewer’s perception. You must decide what’s and who is depicted on the CCTV in this case- it’s your individual and collective perception of what is depicted that is important – but please be cautious in doing so.”

Section 192E Crimes Act 1900

51. Section 192E requires proof that “A person by any deception dishonestly obtains property belonging to another.”

52. Here there can be no dispute the petrol was the “personal property of another.” “Dishonesty” must be determined by the trier of fact: “Whether an act is dishonest is assessed according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people:” s4B Crimes Act 1900. There must be a causal link be proved between the dishonest act, deception or misrepresentation and the obtaining of the property.

53. The English cases to which I was referred by Mr McKenzie make this same point. If property is obtained without deception or a dishonest act or intent a later dishonest act after the property has passed does not make the obtaining of the property dishonest; For example; a social convention carries a clear implication that a person who orders a meal in a restaurant and eats it will pay for it. A later refusal to pay because of a legitimate dispute about the quality of the meal or a mistake whereby each patron presumes the other has paid and leaves does not make the failure to pay dishonest. Similar examples were proffered by Mr McKenzie whereas here the usual convention that petrol would be paid for was apparently flouted.

54. Each case must be determined on its facts; in general commerce where petrol is obtained from a bowser the use of the bowser conveys an implied promise that the petrol will be paid for and that a failure to do so was a premediated act formed before transfer of the property but that implication is not of itself enough to prove dishonesty beyond reasonable doubt all the circumstances must be examined before that conclusion is the only an inevitable one.

Consideration

55. When police approached the appellant at Lake Illawarra Police Station on 4 August 2018, after she had completed the oral fluid test, they had information that suggested the same vehicle the appellant was driving that day was the connected with a complaint of failing to pay on 28 July 2018. It seems obvious they wanted to administer a s14 LEPRA demand in order to investigate a possible offence and obtain evidence about who was driving or a passenger in the vehicle. While there is no direct evidence of those facts from what then occurred the logic of events allows for the inescapable inference to be drawn that the police had enough necessary information to make the demand of the appellant.

56. When she was approached I presume the oral fluid test had been completed and the appellant was not at that point under still arrest or still being detained for the purpose of administering the Road Transport Act procedure; she was free to go even though she had not yet been told she was free to go.

57. If police had the necessary information linking her as a passenger, owner or driver to the motor vehicle involved in a possible offence there was no restriction on them placing a s14 Notice of Demand on her. There was no restriction on police compelling her to answer the questions the subject of the Notice, as the section unambiguously allows that to be done. As police were entitled to make s 14 LEPRA demand of her Part 9 LEPRA procedures are not required to be adopted in such circumstances: 113(2) LEPRA.

58. Here however, instead of immediately administering the Form of Demand police cautioned about her right to silence. A caution is not required for a Form of Demand; in fact LEPRA requires she be told she must answer the questions: s203 LEPRA.

59. If police suspicion fell on the vehicle not the individual there was no need to caution the appellant but the appellant was cautioned by Senior Constable Walker:

“I’m going to ask you some questions about a fail to pay that happened at a Caltex service station in Gerringong on 28 July 2018. You do not have to say anything if you do not want to. Do you understand that?

60. A caution would only have been required had she been suspected of committing the s192E offence. Once that caution was commenced, so too did a “course of official questioning about an Indictable offence.”

61. As the appellant was suspect, being officially questioned about an indictable offence (that was not one that can be dealt with summarily without her consent.) that questioning had to be audio and/or video recorded; s 281 CPA. If it was not any evidence gathered by that process whether a responsive answer, or not, was inadmissible. No reasonable excuse was or is put forward for that not being done. Given the appellant was questioned in a modern police station where it might be expected many recording devices were available, none could be. The initial response and the Form of Demand portion of the questioning cannot be excised from this course of official questioning.

62. Section 14 LEPRA is not an evidentiary provision. While a s14 demand is able to be made of any person who falls within its ambit for an investigatory purpose s 281 CPA limits the use, as evidence, of any answers that may be given to those who are not suspected of committing an indictable offence (that was not one that can be dealt with summarily without consent).

63. This does not produce an absurd result. Section 14 LEPRA is an investigation tool designed to obtain information about persons connected to a suspect vehicle not the person themselves. Further, not every question made pursuant to a s14 LEPRA demand must be tape recorded; only those to which s 281 CPA applies. Nothing prohibits the use of answers to a Form of Demand for an investigatory purpose and the Form can be administered on those who are not suspects. An example can be found in R v Barakat (No 2) [2016] NSWSC 1255. There a s14 Form of Demand in written form was admitted as evidence against an accused in a murder trial; importantly at the time the demand was made and answered he was ‘not a suspect.’ Where s 281 CPA applies to Forms of Demand that are issued in the field a reasonable excuse may be available for not recording but as most police and police cars now have personal or in-car recording equipment, that excuse may be of limited application.

64. If a Form of Demand is demanded of a person who falls into the protections allowed for restriction of the admissibility of admissions by suspects provided by s281 CPA that protection is not excluded by s14 LEPRA, despite its abrogation of the right to silence. As Spigelman CJ noted in relation to the predecessor of s281 CPA:

“Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s424A must be satisfied:” R v Reid [1999] NSWCCA 258, at [6].

65. Section 281 CPA (and its predecessors) was not merely designed to deal with cases where there is a dispute as to what was said and done:

“[It] has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions. The method adopted is to make the recordings of admissions to police compulsory. … If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused:” R v Reid, Smart J at [63].

66. Here the Form of Demand was put in writing and signed by the appellant. It sets out the formal demand, the requirement answers be given and the responses to the demands. There was no evidence that the appellant was in any way prejudiced because of her personal characteristics from understanding or responding to the demand. The document can be examined as the truth of the admissions made must be shown by the circumstance in which they were made be shown to it was unlikely there truth was adversely affected. There is no ambiguity in what was said and recorded but certain questions were put and assented to that are at odds with the way the prosecution case put in the Court below- notably the admission in the document proceeds on an assumption the appellant was the driver, whereas the case below was she was the passenger. Section 86 EA applies but it must however be read subject to s281 CPA. Section 86 EA does not allow for the admission of the Form of Demand document Exhibit 4.

67. Ms Bird referred me to Carr v The Queen. There the High Court dealt with similar but not identical provision to s281 CPA. In response to arguments put to them the plurality noted that “it seems odd that the contents of an inadmissible document can be admitted into evidence simply by reciting its contents orally:” at [77]. Odd though it may seem if recording is what is required to make a Form of Demand response admissible then that is what is required.

66. One rationale for the s281 CPA protection is illustrated here.

67. The appellant was subject to two contradictory statements by Senior Constable Walker - first a caution about her right to silence and then a warning she must, on pain of penalty, answer questions. No question was asked of her to elicit whether or not she was the owner of the vehicle. A statement to that effect was made by Senior Constable Walker and his evidence she “nodded” accepting this. That subjective assessment as to an accused’s state of mind is classically a rationale for accurate video recording of police interviews. The demand was made of her as the driver of the vehicle and she purported to admit as much but the case against her in the Local Court was premised on her being the passenger at the bowser shown in the CCTV.

68. While Part 9 LEPRA applies to a “protected suspect” and while the appellant was in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence there is nothing before me to indicate a the police officer believed when the caution was administered that there was sufficient evidence that the appellant be arrested: NSW v Robinson [2019] HCA 46. Even had Part 9 LEPRA applied, given a caution was administered and the Form of Demand procedures were complied with I could not conclude any significant impropriety occurred here. I would not have excluded the evidence in written form applying ss 90 or s138 EA.

Determination

71. Section 14 LEPRA is designed to enhance police powers to investigate serious crime. Section 281 CPA is concerned with the admissibility of evidence.

72. Anything said by the appellant after she was cautioned and the course of questioning began is not admissible in these proceedings as apart from her residential address it could all be construed as admissions. Those admissions were not audio and or video recorded and there is no reasonable excuse why they were not. Accordingly, the questions and answers asked of the applicant in the room at the police station are not admissible in evidence on the appeal.

73. Similarly the written Form of demand is not admissible. While s 85 EA might be satisfied here as all the admissions made including those recorded were in writing. The admission of the document falls foul of s281. Section 85 EA does not save the evidence.

74. There is no direct evidence before the court that the appellant was the driver or owner of the vehicle. A second hand assertion that a nod was made in assent to an assertion “it was your car,” carries no evidentiary weight when documentary proof of ownership would have been readily available. In any event that evidence falls foul of s 281 CPA.

75. I have now seen the appellant; while she resembles and could be the passenger, I could not conclude the person shown of the CCTV was the appellant. My finding of fact accordingly differs from the Magistrate.

76. Further, absent any evidence of an admission, the logic of the events depicted on the CCTV does not remove all hypotheses consistent with innocence. Even presuming the woman at the bowser was the appellant there is nothing obviously furtive or dishonest in what the woman at the bower does. She has her back to the camera but so too does a man at another bowser. She returns to the passenger side and the car waits a few seconds before driving off. I am aware that people do fail to pay at service Stations and do so knowing that CCTV may detect the number plate of the car and they may be detected and arrested but I am also aware that a person could honestly obtain petrol and then realise they didn’t have the money or a passenger might honestly pump petrol from a bowser only to have the driver take of before there is an opportunity to pay.

Orders

77. The appeal is upheld. The conviction and other orders of the Magistrate are set aside.

**********

Amendments

28 August 2020 - Typographical errors only

Decision last updated: 28 August 2020