Moreno (a Pseudonym) v Grey (Ruling)
[2017] VCC 942
•14 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| JOSEPH MORENO (A Pseudonym) | Appellant |
| v | |
| STEPHEN MARK GREY (INFORMANT) | Respondent |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2017, 19 May 2017 and 20 June 2017 | |
DATE OF RULING: | 14 July 2017 | |
CASE MAY BE CITED AS: | Moreno (A Pseudonym) v Grey (Ruling) | |
| MEDIUM NEUTRAL CITATION: [First revision 21 July 2017] | [2017] VCC 942 | |
RULING
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Subject: CRIMINAL APPEAL
Catchwords: Statutory interpretation – appeal against conviction and sentence imposed by the Magistrates’ Court – request for information under cover of s60(1) of the Road Safety Act about the identity of the driver (appellant) had nothing to do with any investigation of an alleged breach of the Road Safety Act – 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 – whether, in these circumstances, the request for information as to the identity of the driver was a valid exercise of power under s60(1) of the Road Safety Act – whether, when issuing the request, purportedly under cover of s60(1) of the Road Safety Act, the informant was “acting in the execution of duty” as that phrase should be construed in the context in which it appears.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Criminal Procedure Act 2009; Evidence Act 2008 (Vic); Motor Car Act 1909; Motor Car Act 1915; Motor Car Act 1928; Motor Car Act 1930; Motor Car Act 1951; Motor Car Act 1958; Interpretation of Legislation Act 1984; Acts Interpretation Act 1928 (Vic); Victoria Police Act 2013; Sentencing Act 1991; Police Powers and Responsibility Act 2000 (Qld); Evidence Act 1995 (NSW); Road Transport (General) Act 1999 (ACT); Road Transport Act 2013 (NSW); Road Traffic Act 1961 (SA); Road Traffic Act 1974 (WA); Transport Operations (Road Use Management) Act 1995 (Qld); Police Regulation Act 1958; Australian Federal Police Act 1979 (Cth); Summary Offences Act 1966; Criminal Code 1899 (Qld); Trespass Act 1987 (NT); Police Offences Act 1935 (Tas).
Cases Cited:O’Reilly v Rooney (1989) 10 MVR 19; R vGrills (1910) 11 CLR 400; R v Ireland (1970) 126 CLR 321; Graham v R (1998) 195 CLR 606; R vMcDermott (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133; R v Hartwick (Ruling No 1) [2002] VSC 422; Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; Alexander v R (1981) 145 CLR 395; R v Alexander [1994] 2 VR 249; R v Shannon (1987) 47 SASR 347; R v Szach (1980) 23 SASR 504; Williams v Spautz (1992) 174 CLR 509; Warburton v Loveland (1832) 2 D. & Cl. (HL) 480; Baini v R (2012) 246 CLR 469; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; Carr v The State of Western Australia (2007) 232 CLR 138; Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562; Northern Territory v Collins (2008) 235 CLR 619; Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529; Combet v Commonwealth of Australia (2005) 224 CLR 494; Hilder v Dexter [1902] AC 474; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Heydon’s Case (1584) 3 Co Rep 7a; Singh v Commonwealth (2004) 222 CLR 322; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292; Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363; Momcilovic v R (2011) 245 CLR 1; Potter v Minahan (1908) 7 CLR 277; Coco v R (1994) 179 CLR 427; Benning v Wong (1969) 122 CLR 249;. Director of Public Prosecutions v Leys & Leys (2012) 44 VR 1; Wentworth Securities Ltd v Jones [1980] AC 74; Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1970] 2 All ER 871; R v PLV (2001) 51 NSWLR 736; Pravidur v Scental Pacific Pty Ltd (2010) 28 VR 60; R v Young (1999) 46 NSWLR 681; MacAlister v The Queen (1990) 169 CLR 324; R v Di Maria (1996) 67 SASR 466; Coysh v Grimwade [1926] VLR 178; Kymantas v County Court of Victoria and Jennings [2001] VSC 298; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Nicholson v Avon [1991] 1 VR 212; R v Waterfield [1964] 1 QB 164; Donnelly v Jackman [1970] 1 WLR 562; Collins v Wilcock [1984] 1 WLR 1172; Coffin v Smith (1980) Cr App R 221; R v Westlie [1971] 2 CCC (2d) 315; Director of Public Prosecutions (NSW) v Gribble (2004) A Crim R 256; R v K (1993) 118 ALR 596; Director of Public Prosecutions v Hamilton (2011) 33 VR 505; Coleman v Power (2004) 220 CLR 1; Nguyen v Elliott (Unreported, VSC, 6 February 1995); McLiney v Minster [1911] VLR 347; Cintana v Burgoyne (2003) 13 NTLR 130; Perkins v County Court of Victoria & Ors (2000) 2 VR 246; Innes v Weate [1984] Tas R 14; Loges v Martin (1991) 13 MVR 405.
Ruling: Request made by informant in the circumstances of this case was not valid because, when made, informant was not acting in the execution of any duty under the Road Safety Act. The phrase “member of the police force who is acting in the execution of duty” in s60(1) of the Road Safety Act should be construed as if the words “under this Act” were included at the end of the phrase. Conviction and sentence imposed in respect of Charge 2 quashed and the charge dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent/Informant | Mr M Wilson | Solicitor for the Office of Public Prosecutions |
| For the Appellant | Mr C Kilias on 6 March 2017 Mr P Tatti on 20 June 2017 | Vassis & Co WMB Lawyers |
Table of Contents
Background........................................................................................................................................ 1
The issue for determination........................................................................................................... 5
Summary of Ruling........................................................................................................................... 5
The course of the hearing after the question of law is raised............................................... 5
Two preliminary issues are raised................................................................................................ 6
Is there jurisdiction to entertain the appeal against conviction?..................................... 6
Application to amend Charge 2......................................................................................... 7
Charge 2.............................................................................................................................................. 8
Hearing on the question of law..................................................................................................... 9
The elements of the offence........................................................................................................... 9
The parties’ submissions............................................................................................................. 10
The respondent’s submissions.................................................................................................. 10
The appellant’s submissions...................................................................................................... 10
Circumstances in which the request was made..................................................................... 11
Principles of statutory interpretation......................................................................................... 16
The “Golden/Cardinal Rule”.............................................................................................. 16
Interpretation that promotes the purpose or objects underlying the Act...................... 17
Interpretation of Legislation Act 1984............................................................................ 17Meaning and context......................................................................................................... 18
The principle of legality..................................................................................................... 20
Reading words into a statute in order to promote legislative purpose........................ 20
Analysis – Application of the principles of statutory interpretation.................................. 24
The “Golden/Cardinal Rule”.............................................................................................. 24
Section 60 of the RSA..................................................................................................... 24
Interpretation of Legislation Act; and............................................................................. 26
Interpretation that promotes the purpose or objects underlying the RSA.................... 26
The evolution of s60(1).................................................................................................... 27
2003 amendments to the Road Safety Act 1986.......................................................... 41
2006 amendments to the Road Safety Act 1986.......................................................... 44
2010 amendments to the Road Safety Act 1986.......................................................... 50
The Road Safety Act 1986 as in force at the date of the offence................................ 52
Conclusions about legislative purpose and intent......................................................... 64The principle of legality..................................................................................................... 66
Reading words into a statute to give effect to legislative purpose............................... 67
(i) What was the mischief that it was the purpose of the Act to remedy?................ 67
(ii) Has an eventuality that was required to be dealt with if the purpose of
the Act was to be achieved been inadvertently overlooked?.............................. 68
(iii) What words would have been inserted had attention been drawn
to the omission before the Bill passed into law?................................................... 72
(iv) Is the modified construction reasonably open?.................................................... 72
Conclusions.................................................................................................................................. 73
Should words be read into the statute to give effect to legislative purpose?........................ 73
Other factors to be considered................................................................................................... 73
Conferral of power....................................................................................................................... 73
Interpretations of “execution of duty” arising in other circumstances...................................... 74
Broad interpretation is given when legislative purpose is to protect a defined
class of persons................................................................................................................ 74
Narrow interpretation is given to protect against infringement of common law
rights 78
The authorities referred to by the parties involving driving cases under either the
RSA or its predecessors............................................................................................................ 84
Conclusion....................................................................................................................................... 90
HER HONOUR:
Background
1 On 22 December 2015, the appellant, Joseph Moreno,[1] pleaded guilty in the Magistrates’ Court at Moorabbin Justice Centre to three charges of theft contrary to s74 of the Crimes Act 1958 (Charges 1, 3 and 4) and one charge of failing to give information as to driver contrary to s60(1) of the Road Safety Act 1986 (“the RSA”) (Charge 2).
[1]Joseph Moreno is a pseudonym
2 The appellant was convicted and sentenced on all charges to pay an aggregate fine of $3000. On Charge 2, the learned Magistrate ordered that the appellant’s drivers licence be cancelled and that he be disqualified from driving in the State of Victoria for a period of two years effective from 22 December 2015. The cancellation and period of disqualification that the learned Magistrate imposed was the minimum mandatory period prescribed for that offence.
3 The appellant lodged a Notice of Appeal against sentence the same day, namely 22 December 2015.
4 On two separate occasions when the matter came before this Court, the appellant applied unsuccessfully for leave to appeal out of time against his convictions.
5 The appeal was listed to commence before me on 6 March 2017. On that day, Mr C Kilias appeared on behalf of the appellant. Mr M Wilson appeared on behalf of the respondent/informant.
6 After detailing the nature of the appeal and the sentences imposed in the court below, by consent, Mr Wilson handed up the police summaries outlining the facts alleged against the appellant. I understood that these summaries would be tendered in due course. After Mr Wilson read the summary relevant to Charges 1 and 2, I raised with counsel whether, on the facts as asserted, Charge 2 could be sustained as a matter of law.
7 At the relevant time, s60(1) provided:
“(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 member of the police force 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.”
8 The agreed police summary of facts for Charges 1 and 2 is contained in one document and is in the following terms:
“On Saturday 30/11/2013, the accused attended the David Jones store located inside the Chadstone Shopping Centre … . The accused attended the store in the company of the co-accused [daughter of the accused] and an unknown female.
At approximately 2:53 PM, 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 co-accused brought into the store.
Loss Prevention Officer [E.D.] observed the accused and co-accused placing the clothes into the bag via CCTV and notified plain clothes Loss Prevention Officers [F.M.] and [A.M.] of their behaviour.
At approximately 3:06 PM, 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 ###-123,[2] a black Mercedes 4WD registered to ZOOTZ CLOTHING,[3] a retail store owned by the accused. [F.M.] and [A.M.] stopped the vehicle whilst in the car park and requested the accused and co-accused exit the vehicle and return to the security office.
A short time after returning to the David Jones security area, the accused decamped from the security staff and returned to the ground level car park where he re-entered vehicle ###-123 and decamped from the shopping centre, leaving the co-accused with security staff.
At approximately 3:34 PM, [the informant] and Constable Amanda Jones attended the David Jones store where they liaised with Loss Prevention Officers. [The informant] arrested the co-accused and conveyed her to the Prahran Police Station for a recorded interview.
The accused was identified via CCTV footage as a suspect to the theft and [was] arrested by [the informant]. The accused was conveyed to the Bayside Police Station for a recorded interview. During the recorded interview [the informant] requested the accused [to] provide details of the person driving vehicle ###-123 on 30/11/2013. The accused failed to provide these details. Charge 2.
The accused made a no comment interview and was released pending summons.”[4]
[2]###-123 is a pseudonym
[3]Zootz Clothing is a pseudonym
[4]Exhibit A
9 As can be seen from this summary, there is no suggestion that the appellant was arrested for, much less that he was suspected of, having committed any offence under the RSA, the Regulations made thereunder, or of having committed any offence associated with driving a motor vehicle. Mr Wilson conceded that the sole purpose for requesting the information under cover of s60 of the RSA was to further the investigation into the alleged thefts committed on 30 November 2013. In particular, s60 of the RSA was invoked in the hope of establishing the identity of one of the thieves. As he put it:
“6. … in the course of his record of interview (on 10 December 2013) in relation to the shoplifting offence that occurred on 30 November 2013, the police sought information from the appellant as to the identity of the driver of the car which was driven away from the shopping centre at which the appellant and his daughter had engaged in shoplifting. There was no suggestion that the driver of the car had committed an offence under the RSA, nor any other driving offence. It may reasonably be inferred that the police suspected that the driver was also involved in the shoplifting and wished to investigate further, and hence asked the appellant who the driver was.”[5]
[5]Exhibit C, Respondent’s written submissions
10 At the beginning of the Record of Interview,[6] the informant told the appellant that he was being interviewed “in relation to a theft”[7] and he administered the requisite cautions in accordance with s464A(3) of the Crimes Act 1958 before questioning him further about the alleged thefts. At no time was the appellant told that police were investigating any offence related to the driving of vehicle registration ###-123. After outlining some of the allegations regarding the alleged thefts, these questions were then asked and these answers were given:
[6]Exhibit B
[7]Exhibit B, Question 3
Q30:“…. Now, since we’ve – we’ve been made aware of the incident, we’ve, obviously, run checks on the - the vehicle, which it’s alleged that you were driving. Now, checks have shown that that vehicle – ###-123 – is registered to Zootz Clothing, or Zootz Clothing, in Chadstone, to be specific. Police have spoken with the head office of Zootz Clothing, and they have nominated yourself as the – the vendor or the owner of Zootz Clothing in Chadstone. So as such, you’re required under the Road – I’ll tell you exactly. The Road Safety Act, section 6 (sic), so the Offences and Legal Proceedings of the Road Safety Act of 1986. You’re required to nominate the driver of that vehicle at the time, so the time that I’ve just spoken about.[8]
A:No comment.
Q31:All right. Well, if you choose to not nominate the driver of the vehicle, it’s a – the penalty is a loss of license for two years. All right? 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 license for two years. All right? And if – if you’re caught driving within that time, you’ll be charged with – with the relevant offences. All right? So, again, I’ll ask you, who was the - who was driving vehicle ###-123 just before 3 o’clock in the afternoon on 30 November this year?
A:(NO AUDIBLE REPLY)
Q32:Do you understand the – the question that I’ve asked you?
A:Already answered. No comment.
Q33:All right. As I said, there’s – penalties apply to failing to answer that. Do you wish to – to tell us the – the other people that you were in company with at the time that you were at the David Jones – or at Chadstone shopping centre?
A:(NO AUDIBLE REPLY).”
[8]For the sake of this Ruling it is to be assumed that this question constituted an oral request purportedly made under s60 of the RSA
11 Following further questioning, the informant advised the appellant that he may be charged with the offence of theft.[9] No further questions were asked about the alleged breach of s60. Nor was the appellant told that he may be charged with any offence under the RSA.[10]
[9]Exhibit B, Question 56
[10]The parameters of the question of law to be determined by this appeal do not include the form of the request made. The sole question is whether the informant was acting in the execution of relevant duty when he made the request.
The issue for determination
12 The request for information under cover of s60(1) of the RSA about the identity of the driver had nothing to do with any investigation of an alleged breach of the RSA.
13 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.
14 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 s60(1). That is to say, whether, when issuing the request, purportedly under cover of s60(1) of the RSA, the informant was “acting in the execution of duty” as that phrase should be construed in the context in which it appears.
Summary of Ruling
15 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 RSA. I find that the informant’s true purpose for making the request under cover of s60(1) of the RSA 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, s60(1) was not designed to achieve such a purpose. Asking questions about the alleged thefts of garments serves no purpose under the RSA. I consider that the phrase “member of the police force who is acting in the execution of duty” contained in s60(1) of the RSA should be construed as if the words “under this Act” were included at the end of the phrase.
16 Accordingly, the conviction and sentence imposed in respect of Charge 2 must be quashed and the charge must be dismissed.
The course of the hearing after the question of law is raised
17 As mentioned earlier, having heard the summary of facts for Charges 1 and 2, I identified the question of law, namely whether the phrase “member of the police force who is acting in the execution of duty” contained in s60(1) should be construed narrowly – as meaning “acting in the execution of a duty conferred by the Road Safety Act” (for example for a driving or motor vehicle related offence), 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 legislative provision or under common law”. 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 RSA, or is the element satisfied upon mere proof that a member of police is acting in the execution of any duty according to law?
18 I adjourned the further hearing of the appeal to enable the parties to prepare written submissions on the question of law that I raised. On 19 May 2017, the parties requested a further adjournment and an extension of time to comply with the directions I had given previously regarding the filing of submissions. I adjourned the further hearing to 20 June 2017 and I extended time to allow the appellant to file written submissions before 9 June 2017. The appellant was in the process of engaging different legal representation.
19 On 20 June 2017, the matter returned before me for further hearing. On that day, Mr Tatti appeared on behalf of the appellant. Mr Wilson appeared on behalf of the respondent.
Two preliminary issues are raised
20 Before addressing the principal issue, Mr Wilson raised two preliminary points: first, whether there was jurisdiction to entertain the appeal, and, second, if the appeal proceeded, whether the respondent could have leave to amend the form of Charge 2.
(1) Is there jurisdiction to entertain the appeal against conviction?
21 Mr Wilson noted that the appellant had lodged an appeal against his sentence, not against his conviction. Any application to appeal against conviction is out of time. In any event, he submitted, the appellant had twice sought and been refused leave from another judge of this Court to appeal against his conviction. After hearing evidence from the appellant, that judge was not persuaded that exceptional circumstances had been established to justify granting any such leave. Accordingly, Mr Wilson submitted that it was not open to revisit an application in respect of which judgment had been given.
22 The question of law that I raised was not a matter raised before the first judge. The applications before that judge concerned questions of fact – whether the appellant could introduce fresh evidence that might exculpate him.[11] This Ruling in no way seeks to disturb the first judge’s findings of fact or the judge’s ruling that the appellant should be refused leave to appeal against conviction on the grounds of fresh evidence.
[11]See transcript of proceedings before the County Court, 8 August 2016, exhibit D
23 Mr Tatti submitted that the refusals by the first judge to grant leave to appeal against conviction notwithstanding, if I considered that as a matter of law Charge 2 could not be sustained, I should quash the conviction.
24 I treated Mr Tatti’s application as a further application to appeal against conviction out of time, confined to Charge 2, only on the specific question of law and then only on the accepted facts contained in the relevant police summary set out above, and on the Record of Interview.
25 I deferred ruling on this preliminary issue until after hearing and determining the parties’ submissions of law about Charge 2.
(2) Application to amend Charge 2
26 Mr Wilson sought leave to amend Charge 2. Over Mr Tatti’s objection, I granted leave to amend the charge, finding that all of the prerequisites for amendment as set out in s8 of the Criminal Procedure Act 2009 were met.[12] I should add that I was satisfied that the proposed amendment would not cause injustice to the appellant. The appellant had pleaded guilty to that charge in the court below and that conviction would have stood had I not raised the question of law. The charge as amended is not significantly different to the original in that it substitutes “owner of vehicle”[13] for “nominated person”,[14] and the charge includes further particulars not previously pleaded. The penalties are the same for “owner of vehicle” and “nominated person”. The question of law arises regardless of whether the accused is described as the owner of the vehicle or as the relevant nominated person.
[12]Section 8 of the Criminal Procedure Act 2009 provides:
“(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.”
[13]“Owner” is defined in s60(3) set out above
[14]Section 60(1A)of the Act provides:
“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.”
Charge 2
27 Charge 2, as amended, is in this form:
“The accused at Bayside on 10 December 2013, being the owner of motor vehicle ###-123 within the meaning of s60(3)(b) of the Road Safety Act 1986, when required to do so by a police member acting 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.”
Hearing on the question of law
28 Mr Wilson tendered the following exhibits:
Exhibit
Description
A
Police summaries of facts supporting the charges
B
Transcript of Record of Interview conducted between the informant and the appellant at Bayside Police Station on 10 December 2013
C
Written submissions filed on behalf of the respondent dated 2 May 2017
D
Transcripts of proceedings in:
· The County Court on 8 August 2016;
· The County Court on 3 October 2016; and
· The County Court on 10 October 2016
29 Mr Tatti tendered the following exhibits:
Exhibit
Description
One
Written submissions filed on behalf of the Appellant dated 14 June 2017
The elements of the offence
30 The parties agree that the elements of the offence are:
“(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 to 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 owner’s power to provide such information.
(6) That such information might have led to the identification of the driver of such vehicle on such occasion.”[15]
[15]O’Reilly v Rooney (1989) 10 MVR 19 at 23 per Gobbo J
31 Elements (1), (3), (4), (5) and (6) are not in issue. They are established by the relevant police summary cited above and by Questions 30 to 33 in the Record of Interview.[16]
[16]Exhibit B
The parties’ submissions
32 The parties agree that the question of law must be resolved by application of the principles of statutory interpretation.
The respondent’s submissions[17]
[17]Exhibit C
33 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 RSA. 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 identity of a driver if the request is unconnected with an investigation or legitimate police business.
The appellant’s submissions[18]
[18]Exhibit 1
34 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”.
35 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.
36 Before turning to the principles of statutory interpretation, I shall elaborate upon the circumstances in which the informant purported to invoke s60(1) of the RSA:
Circumstances in which the request was made
37 I have already summarised the circumstances in which the request was made. It is worth restating some of the principles that govern police questioning of a suspect in order to determine his/her involvement in the commission of an indictable offence.
38 Section 464A of the Crimes Act 1958 provided:
“464A Detention of person in custody
(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a) released unconditionally; or
(b)released on bail; or
(c)brought before a bail justice or the Magistrates’ Court—
within a reasonable time of being taken into custody.
(2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a)inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
… .”
(Emphasis added).
39 The appellant was a person “in custody” as defined by s464 of the Crimes Act, in that he was in the company of an investigating official,[19] namely the informant, and he was being questioned or otherwise investigated to determine his involvement in the commission of an offence.[20]
[19]“Investigating official” is also defined in s464 to include a member of police
[20]Crimes Act 1958, s464(1)(c)
40 The only crimes the appellant was suspected of having committed at the time of interview were the crimes about which he was cautioned, namely the thefts. The questioning of the appellant in accordance with s464A of the Crimes Act should have been confined to those offences – the informant was authorised by the section to “question the person … in order to determine the involvement … of the person in that offence”.[21] If the informant wished to interview the appellant about other offences, he was required to inform the appellant of that fact and he was obliged to re-caution him.
[21]Crimes Act 1958, s464A(2)(b)
41 There is no doubt that at the time the informant questioned the appellant he was doing so under Part III, subdivision 30A of the Crimes Act and that he was acting in the execution of his duty under that subdivision. He had no authority under that subdivision to induce or coerce the appellant to answer any question,[22] let alone one that might tend to incriminate him in respect of the very offences about which he was being questioned under caution. The informant was not executing his duty under subdivision 30A or under any other provision of the Crimes Act to question the appellant about any offence under the RSA, nor was he purporting to do so. Had he simply asked the appellant “were you the driver of vehicle registered number ###-123 on 30 November 2013 in the Chadstone carpark just before 3.00 o’clock in the afternoon”, the appellant was entitled to decline to answer, and that answer could not be used against him.[23] In fact the “no comment” answers that the appellant did give to police were of no probative value to the investigation then being conducted and they could have been excluded as irrelevant.[24] 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 inducing 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:
[22]The appellant was obliged to state his name and address by virtue of s456AA of the Crimes Act 1958
[23]Evidence Act 2008, s89
[24]R vGrills (1910) 11 CLR 400 at 413. See also the discretion to exclude improperly obtained evidence under Evidence Act 2008, s138
“464J Right to remain silent etc. not affected
Nothing in this subdivision affects—
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.”
42 It is well established that police should not offer any inducement to a suspect in order to extract an admission or a confession.[25] Improper questions may be excluded from a record of interview in the exercise of discretion.[26] The discretion may be exercised in favour of exclusion where a trick or deception has been used to circumvent the provisions of Part III, subdivision 30A of the Crimes Act. The case of R v Hartwick (Ruling No 1)[27] serves as a useful example for present purposes:
[25]See for example R v Ireland (1970) 126 CLR 321
[26]See for example Graham v R (1998) 195 CLR 606; R vMcDermott (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133. See also Evidence Act 2008, s90
[27][2002] VSC 422
43 In Hartwick, Smith J had to consider the admissibility of evidence obtained by police using a trick or deception, the sole purpose of which was to overcome the accused’s stated wish to exercise her right to silence during questioning. She was a suspect in a murder investigation. Police had informed the suspect of her right to remain silent, but when it became apparent that she chose to exercise that right, police determined to continue questioning her. They engaged the suspect in conversation, which they secretly recorded. This conversation constituted questioning about the very serious offence in respect of which the suspect had exercised her right to silence. Application was made at trial to exclude the recording on the grounds that it breached s464A(3), s464G and s464H(3) of the Crimes Act. The trial judge was faced with competing public policy interests.[28] His Honour stated:
“[9]If the only evidence was that there had been the foregoing breaches [of s464A(3), s464G and s464H(3)], and there being no evidence as to whether the accused would have acted differently if there had been compliance, the competing considerations would in my view weigh in favour of admission and not exclusion. The situation, however, is complicated by the fact that the breaches relating to the caution issue were accompanied by deliberate deception that appears to have been designed to get around Lisa Hartwick’s stated intention to exercise her right to silence. The police purported to recognise her wishes and purported not to be attempting to formally interview her and to do that concealed the fact that the interview was being recorded. I have also come to the conclusion that it was no accident that she was not re-cautioned.
[10]I accept that the investigation of crime is not a game ‘governed by a sportsman's code of fair play’ and that ‘fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation …’.[29] In this instance, however, on the evidence before me, the police set about by deliberate deception to get around the accused’s stated intention to exercise the fundamental right of all citizens, the right to silence. This right is one which the Act expressly protects.[30] In my view that is behaviour that the Court should be slow to condone. Weighing up the competing public policy considerations, I am satisfied that the evidence should be excluded.”
[28]As expressed in Bunning v Cross (1978) 141 CLR 54 at 74-75
[29]R v Swaffield (1998) 192 CLR 159 per Brennan CJ at 185-6
[30]Crimes Act 1958, s464J
44 The present case does not involve the question of admissibility of evidence that was raised in Hartwick, although if I were to exclude the relevant questions in the Record of Interview, there would be no other evidence of any request for information under s60(1) of the RSA, and the charge would be foredoomed to fail. Although the parameters of the question of law are confined to the interpretation of the phrase “member of the police force who is acting in the execution of duty” as it appears in s60(1) of the RSA, the above principles illustrate the courts’ reluctance to give curial approval to blatant abuses of power committed by those entrusted to uphold the law.
45 When questioning the appellant about the alleged thefts, police were trying to identify him as the offender. In my view, when identification of an offender is a critical matter to be determined, police should, as a matter of correct procedure, conduct an identification parade.[31] Further, they should search for other evidence that will prove who committed the crime, such as footage from a closed-circuit television, or from a photograph depicting the alleged offender at the relevant time. In the present case, police had no fewer than three eye-witnesses – ED, AM and FM – who could have potentially identified the appellant as the offender. In addition, they had CCTV footage that was used to identify the appellant’s car. There is no suggestion that the informant attempted to arrange any form of visual identification of the appellant as the offender. Instead, he elected to bypass correct police procedure and opt for the s60(1) request.
[31]Alexander v R (1981) 145 CLR 395 at 401
46 As with exclusion of admissions, confessions and other evidence obtained by unlawful or unfair means, identification evidence obtained by trick or deception is also susceptible to exclusion in the exercise of discretion.[32] I hasten to add that although the attempt to elicit the information about the identity of the driver in this case was unsuccessful, it should not be forgotten that an abuse of process may occur where a power conferred is employed predominantly for an improper purpose.[33]
[32]R v Alexander [1994] 2 VR 249 at 257; R v Shannon (1987) 47 SASR 347; R v Szach (1980) 23 SASR 504 at 582-583
[33]Williams v Spautz (1992) 174 CLR 509 at 529
47 I return to the critical question – was the informant “acting in the execution of duty” when he made the request under cover of s60(1) of the RSA? As I stated earlier, the question must be resolved by application of the principles of statutory interpretation. I now turn to those principles:
Principles of statutory interpretation
48 Neither party was able to point to any authority in which s60, or any similar provision elsewhere, had been used as lawful justification to elicit information from the owner of a car about the identity of a driver on an occasion during which no driving-related offence was alleged to have been committed. As I shall later explain, in corresponding legislation enacted in other States and Territories, power similar to that conferred by s60(1) is expressed to be limited to purposes associated with such legislation.
49 All of the authorities to which I was referred involved requests made by members of police who were investigating the commission of offences connected with driving. Accordingly, I agree with Mr Tatti that the authorities do not deal directly with the point raised in the present appeal.
50 I now turn to the applicable principles.
(1) The “Golden/Cardinal Rule”
51 A classic statement explaining the cardinal rule of statutory interpretation was made by Tindal CJ in Warburton v Loveland:[34]
“Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.”[35]
[34](1832) 2D & Cl (HL) 480
[35](ibid) at 489
52 In Baini v The Queen,[36] the High Court considered the interpretation of the phrase “substantial miscarriage of justice” as those words appeared in s276 of the Criminal Procedure Act 2009 (Vic). The Court stressed the paramount significance of the text:
“[14] Whether there has been a ‘substantial miscarriage of justice’ within the meaning of s 276(1)(b) requires consideration of the text of the statute. As the court said in Fleming v R, ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘[t]here is no substitute for giving attention to the precise terms’ in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.”
[36](2012) 246 CLR 469
53 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[37] the High Court observed however, that text must also be read in context:
“[47]This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[38] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[39] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[40] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[41] in particular the mischief[42] it is seeking to remedy.”[43]
[37](2009) 239 CLR 27
[38]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ, 89 [46] per Kirby J; [2001] HCA 49; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 206 [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 240-241 [167]-[168] per Kirby J; [2005] HCA 58; Carr v Western Australia (2007) 232 CLR 138 at 143 [6] per Gleeson CJ; [2007] HCA 47; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562 at 586 [85] per Kirby and Crennan JJ; [2007] HCA 52; Northern Territory v Collins (2008) 235 CLR 619 at 642 [99] per Crennan J; [2008] HCA 49
[39]Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 555-556 [82]-[84] per Kirby J; [2006] HCA 11. See also Combet v The Commonwealth (2005) 224 CLR 494 at 567 [135] per Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 61; Northern Territory v Collins (2008) 235 CLR 619 at 642 [99] per Crennan J
[40]Hilder v Dexter [1902] AC 474 at 477-478 per Earl of Halsbury LC
[41]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27, quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ
[42]Heydon’s Case (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638]
[43]Per Hayne, Heydon, Crennan and Kiefel JJ
(2)Interpretation that promotes the purpose or objects underlying the Act
Interpretation of Legislation Act 1984
54 Section 35 of the Interpretation of Legislation Act 1984 provides:
“35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument¾
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b) consideration may be given to any matter or document that is relevant including but not limited to¾
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.”
55 Section 39 provides:
“ Parts of speech and grammatical forms
Where a word or phrase is given a particular meaning in an Act or subordinate instrument, other parts of speech and grammatical forms of that word or phrase have, unless the contrary intention appears, corresponding meanings.”
56 Section 40 provides:
“Exercise of powers and performance of duties
Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed¾
(a) from time to time as occasion requires; … .”
(3) Meaning and context
57 In Singh v The Commonwealth,[44] the primary issue to be determined was whether the plaintiff was an “alien” within the meaning of s51(xix) of the Constitution. Gleeson CJ stated:
“Meaning is always influenced, and sometimes controlled, by context. The context might include time, place, and any other circumstance that could rationally assist understanding of meaning. I referred above to the meaning of ‘aliens’ in s 51(xix). That is a brief description of the immediate context in which ‘aliens’ appears, but the context is much wider than that. It includes the whole of the instrument, its nature and purpose, the time when it was written and came into legal effect, other facts and circumstances, including the state of the law, within the knowledge or contemplation of the framers and legislators who prepared the Constitution or secured its enactment, and developments, over time, in the national and international context in which the instrument is to be applied.”
[44](2004) 222 CLR 322 at 332 at paragraph [12]
58 In CIC Insurance Ltd v Bankstown Football Club Limited,[45] the High Court drew attention to the need to consider context and the mischief that the statute is seeking to address:
“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”[46]
(Footnotes omitted).
[45](1997) 187 CLR 384
[46](1997) 187 CLR 384 at 408. See also Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth) (1981) 147 CLR 297 at 304-305 per Gibbs CJ
59 More recently, in The Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop,[47] the Court of Appeal stated:
“The principles of statutory interpretation that are presently relevant were authoritatively stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[48]The Court stated that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined by reference to the language of the statute viewed as a whole. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[49] The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, the legal meaning will correspond with the grammatical meaning of the provision. However, 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 legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”[50]
[47][2014] VSCA 292
[48](1998) 194 CLR 355 (‘Project Blue Sky’)
[49]Project Blue Sky at 381
[50]per Neave and Kyrou JJA and Ginnane AJA at paragraph [31]; See also Project Blue Sky at 384
(4) The principle of legality
60 In Momcilovic v R,[51] French CJ explained the principle of legality this way:
[51](2011) 245 CLR 1 at paragraph [43]
“The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective ‘fundamental’. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted ‘rights’ and ‘freedoms’. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.”[52]
[52]Citations omitted. See also Potter v Minahan (1908) 7 CLR 277 at 304; Coco v R (1994) 179 CLR 427 at 437; Benning v Wong (1969) 122 CLR 249 at 256
(5)Reading words into a statute in order to promote legislative purpose
61 Subject to certain prerequisites, it may be appropriate to read words into a statute when a literal interpretation fails to promote its legislative purpose. In Director of Public Prosecutions v Leys & Leys,[53] the Court of Appeal had to consider whether, under the Sentencing Act 1991, a community correction order could be made as part of a sentence that included the imposition of an immediate term of imprisonment in excess of three months. In a seminal judgment tracing the relevant authorities, the Court of Appeal applied the three prerequisites identified by Lord Diplock in Wentworth Securities Ltd v Jones,[54] to which the Court added a fourth:
[53](2012) 44 VR 1
[54][1980] AC 74
“[54]In Kingston v Keprose Pty Ltd,[55] McHugh JA dealt at length with the principles applicable to reading words into legislation.[56] His Honour spoke of a need for the court clearly to identify the mischief or purpose at which the provision is aimed. If purpose or context show that Parliament did not intend the grammatical meaning of the words to apply, a court may be entitled to depart from that meaning. He observed that a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved. His Honour adopted the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones[57] concerning the three conditions which must be satisfied before a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said:[58]
My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible 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; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible 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. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.
…
[109]In our view the question whether a construction should be adopted that departs from the literal meaning of the words used in a statutory provision to give effect to the purpose of the provision, and the purpose of the Act, is not one that should be answered by reference to whether or not the construction will ‘confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest’.[59] The question should rather be answered by reference to the three conditions set out by Lord Diplock together with the additional requirement that the modified construction is reasonably open. That is to say, it must be possible to ‘read in’ or imply the additional words into the relevant statutory provision without giving to the provision an unnatural, incongruous or unreasonable construction and the provision as modified must produce a construction that is in conformity with the statutory scheme.
[110] We are mindful that our constitutional role in this field is interpretative and that we should abstain from any course that might have the appearance of judicial legislation. A construction which departs from the literal meaning of a provision in order to give effect to the legislative purpose is available even where the words used are clear and unambiguous if the purpose of Parliament is manifest, the error in drafting is plain (be it an omission or mistaken inclusion) and is contrary to the legislative purpose, and the words to be supplied are identifiable with sufficient exactitude.[60] It will not often be the case that these conditions can be satisfied. But when they are, there should emerge a comprehensive understanding of parliamentary intent and the drafting error. We consider that on the basis of the authorities we have discussed, the prevailing view is that, if those conditions are satisfied, then so long as the words of the section, as modified by the words ‘read in’, are reasonably open to the alternative construction, that is, if the construction of the provision as modified is not unnatural, incongruous or unreasonable and is consistent with the statutory scheme, the modification to the literal meaning by the reading in of words may be undertaken.”[61]
[55](1987) 11 NSWLR 404
[56](ibid) at 421-424
[57]ibid
[58](ibid) at 105–106 (citation omitted)
[59]R v PLV (2001) 51 NSWLR 736, 743 at paragraph [88] per Spigelman CJ
[60]See for example Pravidur v Scental Pacific Pty Ltd (2010) 28 VR 60, 79 [76] where such matters could not be established
[61]Wentworth Securities Ltd v Jones (ibid) per Redlich and Tate JJA and T Forrest AJA
62 Thus, there are four prerequisites that must be established before words may read into a statute. They are:
(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.
63 “Casus omissus” can occur where, contrary to legislative purpose, either too narrow a meaning appears from the literal words of the statute, or where too broad a meaning appears from those words. To give effect to legislative purpose, and provided the four prerequisites referred to are met, courts may read words in to either broaden or narrow the scope of the words actually used.
64 In R v Young,[62] the New South Wales Court of Criminal Appeal was concerned with the interpretation of Division 1B of the Evidence Act 1995 (NSW) which governed the use that may be made of confidential communications disclosed in cases of sexual assault. In determining whether the operation of the Division should be read down so as to confine it to limited circumstances, the Court held that a narrow interpretation should be applied to what was an apparent “casus omissus”. Spigelman CJ observed:
“[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: M[a]cAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text — using consequences to determine which meaning should be selected — then the process remains one of construction.
[16] The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court ‘supplying omitted words’ should be understood as a means of expressing the court’s conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context. … .”
[62](1999) 46 NSWLR 681
Analysis – Application of the principles of statutory interpretation
(1) The “Golden/Cardinal Rule”
65 I have earlier set out the terms of s60(1). It is now pertinent to set out the whole of s60 in order to assess whether ss(1) can be interpreted divorced from the remainder of the section, Part and Act:
Section 60 of the RSA
66 Section 60 of the RSA provided:[63]
[63]The Act was subsequently amended, but not in any material way for the purposes of this case
“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 member of the police force 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.
…
(1B)A member of the police force who is acting in the execution of duty may require any person whom the member of the police force 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 liable¾
(a)if the requirement is made by a member of the police force who is investigating an accident involving a motor vehicle that resulted in a person being killed or suffering serious injury¾to 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 case¾to a penalty of not more than 20 penalty units or to imprisonment for a term of not more than 2 months or to both¾
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.
(3) For the purposes of this section owner means¾
(a)the owner or the person in whose name the motor vehicle was registered at the time when the vehicle was being driven by the person about whom the information is sought or at the time when the requirement is made; or
(b)any person who had possession or control of the vehicle at either of those times; or
(c)if the motor vehicle displayed a number plate at either of those times¾
(i)the person who, at the time at which the registration number borne by that number plate was last assigned by the Corporation or the corresponding body under a corresponding Act, was the person in whose name the motor vehicle, to which that registration number was assigned, was registered under this Act or a corresponding Act of the Commonwealth or of another State or Territory of the Commonwealth, whether or not that motor vehicle is the same as the motor vehicle about which information is sought; or
(ii)the person whose name is disclosed in the records kept by the Corporation or the corresponding body under a corresponding Act as being entitled, or last entitled, to use or possess that number plate at the time when the vehicle was being driven by the person about whom the information is sought or at the time when the requirement is made.
(4)A requirement under this section may be made orally or in writing.
… .”
67 There are a number of curious aspects to the section when regarded as a whole:
(i) Section 60(1B) appears to expressly confer power on a member of police who is acting in the execution of duty to require any person to provide prescribed information;
(ii) Section 60(1) contains no express conferral of power. It applies only to “an owner” of a motor vehicle or to “a relevant nominated person”. I am inclined to the view that the power is conferred by necessary implication, given s60(1) has its roots in s17 of the Motor Car Act 1930, well before s60(1B) was inserted into the RSA in 2006.[64]
(iii) If the request is made under 60(1B), then the person to whom the request is made has a defence of “reasonable excuse” to refuse or fail to comply with a requirement under 60(1C). There appears to be no corresponding defence to a requirement made under 60(1).
[64]Inserted by Act No 81/2006, s21(3)
68 The phrase “member of the police force who is acting in the execution of duty” is not defined in the RSA. The phrase appears only four times in the RSA: in s60(1), s60(1B), s60A(1) and s60A(1B).
69 I do not consider that application of the “cardinal/golden rule” alone to be capable of resolving the issue. The phrase is capable of conveying both meanings contended for by the parties, therefore other canons of interpretation must be called in aid.
(2)Interpretation of Legislation Act; and
(3)Interpretation that promotes the purpose or objects underlying the RSA
70 It is convenient to group these topics together, since the relevant principle of statutory interpretation derives from both the Interpretation ofLegislation Act 1984 and from the common law.
71 The purposes of the RSA are set out exhaustively in s1, although they are elaborated upon in other Parts of the Act:
“1 Purposes
The purposes of this Act are¾
(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.”
72 I shall refer to the purposes set out in other Parts of the RSA later. 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 RSA or the regulations made thereunder can be found either in the RSA, or in any previous versions of the Motor Car Act which the RSA 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 RSA and its predecessors have remained generally consistent ever since 1909 when the Motor Car Act was first enacted.
73 I shall now trace some of the history of s60(1). In doing so, I do not propose to refer to every reincarnation of the Motor Car Act. Rather, I propose to draw attention to the major phases in the evolution of the provision specifically and also to the extrinsic materials that shed light on the context in which the provision evolved.
The evolution of s60(1)
The Motor Car Act 1909
74 The origins of s60(1) can be traced back to the first Act dealing with the registration and driving of motor cars, licensing of drivers, and use of highways: the Motor Car Act 1909.
75 The purposes of the Motor Car Act 1909 were not expressed in the ten-page Act, but it is evident from the Parliamentary debates that its purpose was to provide safe, efficient and equitable road use, to set out obligations of road users, and to establish a system of registration.[65]
[65]See Victoria, Parliamentary Debates, Legislative Assembly, 23 July 1908, 290-291: “Nevertheless, this is a very serious matter, and it requires attention at the hands of Parliament. This motor traffic is becoming a very great menace in the city, especially to elderly people who have to cross the streets, and whose lives are in jeopardy from day to day. I suppose that in the absence of a special Act of Parliament the matter rests with the Police Department, and stringent steps will have to be taken to prevent the occurrence of the accidents which now occur almost daily.” – at 291 per Mr Toutcher;
Victoria, Parliamentary Debates, Legislative Assembly, 14 September 1909, 1085-1087: “We have heard in the past a good deal of criticism about motor cars. It makes one indignant to see the careless way in which a car is occasionally driven, but I know that the great body of the motor car owners have no sympathy with those who drive in such a way as to endanger other people. Motor cars are numerous in this State, and the accidents from motor cars are comparatively rare. We do not hear of a great number of people being knocked over by motor cars.” – at 1086 per Mr Murray;
Victoria, Parliamentary Debates, Legislative Assembly, 16 September 1909, 1151-1161: “The owners and drivers of motor cars must not be subjected to penalties for the mere purpose of providing revenue for the municipalities. They should only be subject to penalties for genuine offences, and there should be no persecution of motorists merely for the purpose of getting money out of them.” – at 1153 per Mr Prendergast.
Victoria, Parliamentary Debates, Legislative Assembly, 3 November 1909, 1954-1963: Specific mention is made of clause 10 of the Bill. The ensuing discussion concerns whether a speed should be nominated for the offence (at 1955). There is further discussion about sub-clause (2) and the possibility that an accident may occur when no member of the police force is present. “The proper control of the motor car traffic will require a great addition to the police force. We had an instance the other night of a dreadful fatal accident near Elwood. Whether the car was being driven recklessly or not, I do not know, but there was no policeman there.” – at 1956 per Mr Toutcher.
76 The seeds of s60(1) can be found in s10 of the Motor Car Act 1909. That section created the offence of reckless or negligent driving and driving at a speed or in a manner dangerous. Other offences and obligations were also created by that section:
“10. (1) If any person drives a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature condition and use of the highway and to the amount of traffic which actually is at the time or which might reasonably be expected to be on the highway that person shall be guilty of an offence against this Act.
(2)Any member of the police force may without warrant apprehend the driver of any car who commits an offence under this section within his view if he refuses to give his name and address or if the motor car does not bear the identifying number.
(3)If the driver of a car commits an offence against this section and refuses to give his name or address or gives a false name or address or refuses or fails to stop his car when called upon to do so by any member of the police force he shall be guilty of an offence under this Act, and it shall be the duty of the owner of the car if required to give any information which it is within his power to give and which may lead to the identification and apprehension of the driver, and if the owner fails to do so he also shall be guilty of an offence against this Act.
(4) Where an accident occurs through the driving of a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public a court of petty sessions may on proof of such accident order that the driver of such car shall be disqualified from driving a motor car for such time as the court thinks fit from the date of such accident and his license shall be cancelled by the court.
(5)Whenever any person during the period of his disqualification as aforesaid drives a motor car he shall be guilty of an offence against this Act.”
(Emphasis added).
77 The penalty for failing to give information identifying the driver was prescribed by s20.
78 Section 14 imposed an obligation on the driver of a vehicle involved in a collision to stop and render assistance and to provide his name and address. This obligation has continued to evolve through the various reincarnations of the Motor Car Act 1909 and subsequently, the RSA.
79 The words “in the execution of duty under this Act” did not appear in this section, but from the actual words used in the section and having regard to context, it is clear, in my view, that the purpose of conferring power on police to require information about the identity of drivers was to enable police to investigate offences committed contrary to the section by the persons who committed them.
The Motor Car Act 1915
80 A similar provision was contained in s10 of the ten-page Motor Car Act 1915:
“10. (1) Any person who drives a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature condition and use of the highway and to the amount of traffic which actually is at the time or which might reasonably be expected to be on the highway shall be guilty of an offence against this Act.
(2) Any member of the police force may without warrant apprehend the driver of any car who commits an offence under this section within his view if he refuses to give his name and address or if the motor car does not bear the identifying number.
…
(b)assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer's duty, or any person acting in aid of a police officer while so acting
...
is guilty of a crime, and is liable to imprisonment for 7 years.’
[114]Carter’s Criminal Law of Queensland[112] identifies the elements of this offence as:
[112]Shanahan, Carter’s Criminal Law of Queensland, 14th ed (2004) at 591
‘The accused:
assaulted, resisted or wilfully obstructed; a police officer or any person acting in aid of a police officer;
while the police officer was acting in the execution of his or her duty.’
[the underlined portions indicate the elements relied on by the Crown in the present case]
[115] Section 120(1) of the Police Powers Act provided:[113]
[113]The Police Powers Act was repealed by the Police Powers and Responsibilities Act 2000 (Q) (“the 2000 Act”), s572 (now s460). The provision was re-enacted in the same terms as s356 (now s444) of the 2000 Act
‘A person must not assault or obstruct a police officer in the performance of the officer’s duties.’
[116]Sub-section (2) provided that ‘assault’ had the meaning given by the Queensland Criminal Code.
[117]Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said:[114]
[114](1993) 46 FCR 336 at 340-341 per Gallop, Spender and Burchett JJ
‘The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.’
[118]An officer who unlawfully arrests a person is not acting in the execution of his or her duty. In Nguyen v Elliott,[115] the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. The accused was approached by two constables who believed that he might have been involved in drug dealing. The accused attempted to walk away but was detained by the first officer who wished to search him. The accused became aggressive and kicked the first officer. The second officer crossed the street to assist the first officer to control the accused. The accused was forced into the police vehicle and continued to protest. He was then taken out and handcuffed during which the accused bit the second officer on the hand. Before the magistrate, the first officer acknowledged that he did not reasonably suspect that the accused was in possession of drugs but was merely curious about whether the accused possessed drugs. The charges relating to the first officer were dismissed. The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer. Hedigan J held that the conviction for resisting arrest could not stand. His Honour said:
[115]Unreported, [VSC], 6 February 1995
‘… it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases.’
[119]In setting aside the conviction, Hedigan J applied the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minster where Madden CJ said:[116]
[116][1911] VLR 347 at 351
‘… it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and get out of his custody.’
[120]Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to effect an unlawful arrest.
…
[His Honour then referred to cases in which an alternative charge of assault might be laid when the principal charge cannot be established]
[124]These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the ‘execution of duty’ or ‘performance of duty’.
[His Honour then considered whether an alternative charge of assault could have been maintained in the circumstances of the case]
…
[127]None of those considerations apply in this appeal because assault was not charged independently of the element of an officer executing or performing his or her duty. If the arrest is not made while executing or performing the duty, the authorities establish that the ‘assault’ on the officer is irrelevant because the prosecution has failed to prove an essential element of the offence – that the officer was acting in the execution or performance of his or her duty when or after the ‘arrest’ was made.”[117]
[117](Supra) at 56-59
188 In Cintana v Burgoyne,[118] Mildren J had to consider whether a member of police was acting in the execution of duty at the time he was allegedly assaulted (by a bite). The accused had not committed any offence. She was lying on a shop floor having a convulsive fit. No arrest had taken place when the police officer decided to carry the accused from the store. It was just before the officer arrested her and placed her in a cage that the accused bit him. Mildren J held that at the relevant time, the officer was not acting in the execution of duty since he had failed to comply with the s10 of the Trespass Act 1987 (NT) and there was no other lawful justification for his conduct.
[118](2003) 13 NTLR 130
189 In Perkins v County Court of Victoria & Ors,[119] the accused had been charged with, inter alia, resisting police contrary to s17(1)(d) and s52(1) of the Summary Offences Act. Members of police handcuffed the accused. Although the Court of Appeal found that handcuffing the accused was justified in all the circumstances, Charles JA observed:
“[44]As to these propositions I require no persuasion that there is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner’s escaping; or committing some further offence; or endangering the safety of persons or property. If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.”[120]
[119](2000) 2 VR 246
[120]Perkins v County Court of Victoria & Ors (ibid) at 267-268 (citations omitted)
190 In Innes v Weate,[121] Cosgrove J had to consider whether a protestor who had attempted to board a barge after being ordered not to do so by a member of police could be found guilty of the offence of obstructing a police officer in the execution of duty contrary to the Police Offences Act 1935 (Tas). His Honour found that the police officer had no authority to proscribe the act of boarding the barge and no duty to prevent it. Therefore, the police officer was acting in excess of his duty, and disobedience of the order did not constitute obstruction of justice under the Act.
[121][1984] Tas R 14
191 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 s60(1) of the RSA. 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 s60(1) of the RSA did not alter the true character of the informant’s request, or mask his unlawful conduct. The informant was not making a bona fide request of the appellant to achieve any purpose under the RSA.
The authorities referred to by the parties involving driving cases under either the RSA or its predecessors
192 There are two authorities to which the parties referred; both cases decided before 2006 when the relevant amendments were made to s60. I have stated earlier that these authorities did not deal directly with the question of law to be determined in the present appeal. They do however stand for the proposition that the section is cast in wide terms.
193 In O’Reilly v Rooney,[122] the appellant was charged with failing to give information to identify the driver of a vehicle that had been involved in an accident, contrary to s60(1) of the RSA. Gobbo J referred to Coysh v Grimwade,[123] distinguishing it from the case before him, because Coysh was concerned with s10(3) of the Motor Car Act 1915 which was in different terms to s60 of the RSA. As mentioned earlier, Coysh was authority for the proposition that police were required to inform an owner of a car that the vehicle was allegedly involved in an accident when requiring information as to identity of the driver. In O’Reilly v Rooney,[124] his Honour stated:
[122](1989) 10 MVR 19
[123]supra; I have referred to this case earlier in this Ruling
[124]ibid
“It is clear that [s60(1)] is in quite different terms to the legislation that was considered in the three cases [including Coysh] 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, s10(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 … .
It was submitted that there was a reference to an offence by the driver in s60(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. Further, it is clear on a study of the decision of the Full Court in Coysh v Grimwade that in that case the section contained explicit reference to the commission of an offence and it is in that context that that decision should be viewed. Moreover, in Coysh v Grimwade it could validly be said in that case that the owner being interviewed would be unaware of the purpose for which the information was being sought. Even if those dicta from that case were applied to the present case, it could not in my view be said that this owner, when given a description of the person said to be the driver of the vehicle at the relevant time, and asked if such a person was part of her family, would have realised that the purpose of the inquiry was to ascertain whether the person so described was the driver of the vehicle and might be part of her family.
I am of the view that having regard to the width of the words in s 60 of the Road Safety Act, it is not necessary that the owner be informed that a driving offence by the driver is being alleged, much less has been committed. The decisions referred to in argument do not assist, for the legislation there in question was in quite different terms.
This makes it unnecessary to decide whether, if an allegation of a driving offence was necessary, this was able to be inferred from the evidence as the learned stipendiary magistrate in fact found was the case.
…
[His Honour then set out the elements of the offence created by s60(1) to which I have referred above, namely:]
(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 to 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 owner’s power to provide such information.
(6) That such information might have led to the identification of the driver of such vehicle on such occasion.
[His Honour then pointed out:]
Here the only debate was whether there was evidence as to the 5th and 6th ingredients. There was evidence that the description of the driver of the relevant vehicle on the relevant occasion was as follows — namely, a male with a beard and in his thirties. The information required was whether anyone of that description was a member of the owner’s family. That was plainly information which it was within the defendant’s power to give.”[125]
(Emphasis added).
[125]O’Reilly v Rooney (ibid) at 22-23
194 It must be noted first, that the enquiry in O’Reilly v Rooney[126] did in fact pertain to a driving related offence. Second, although his Honour found that the section was cast in wide terms, his Honour did not hold that such a request could be made if no relevant driving offence had been committed. It can be inferred that such a request is justified only when a driving offence has allegedly occurred. His Honour was merely pointing out that in making a request under s60(1) of the RSA, a member of police need not convey to the owner that such an offence has been committed. Third, his Honour was not asked to consider the interpretation of the second element, the question that is now before me. As his Honour noted, only elements five and six were in dispute in that case. Those elements are not in dispute here. It is only the second element that is in dispute in this appeal. In the present case, the real purpose of making the request had nothing to do with any relevant occasion of driving – the request under cover of s60(1) was the device that the informant employed to disguise the true purpose of his questioning. In truth, he was seeking to extract answers from the appellant that would place him at or in the vicinity where the thefts had occurred, and possibly demonstrate his consciousness of guilt in the thefts by his flight.
[126]ibid
195 O’Reilly v Rooney was decided in 1989, 17 years before the 2006 amendments to s60 that brought the section into the form it was in at the time of the offence alleged in the present case. Obviously enough, the Parliamentary debates to which I have referred regarding these amendments had not yet occurred. In fact, it does not appear that his Honour was referred to any extrinsic materials.
196 Loges v Martin[127] was also decided before the 2006 amendments to s60; however, it was subsequent to the decision in O’Reilly v Rooney. The informant had visited the scene of an apparent motor vehicle collision, noting the presence of debris. He later spoke to the accused owner of the vehicle, who stated that his vehicle had not been involved in an accident on the date and time nominated by the informant. Other than that, on solicitor’s advice, the accused declined to answer any questions. The magistrate at first instance was not satisfied that there was sufficient evidence to establish that the accused’s vehicle was in fact involved in the collision and dismissed the charge brought under s60(1) of the RSA. The evidence as accepted by the magistrate was that the informant agreed under cross-examination that he could not say how long the debris had been by the side of the road and that he had also inspected a similar vehicle belonging to another person. The informant appealed on the grounds that the magistrate erred in law in finding it was necessary for the prosecution to prove, pursuant to s60(1) of the RSA, that a motor vehicle owned by a defendant was at a particular place at a particular time “on any occasion” before the charge could be made out. Nathan J dismissed the appeal, finding the magistrate was correct, in that he had sufficient material before him to doubt whether the vehicle owned by the accused was involved in an occasion which entitled the informant to require answers to his questions. However, his Honour went on to state:
“I am satisfied that the use of the word ‘occasion’ in [s60] is used to indicate an event at or during which a car was driven. The words ‘any’ used in the context ‘any person who was the driver’, necessarily associates the definite article ‘any’ preceding ‘occasion’ with driving and thus the term must be understood as applying only to a ‘driving occasion’. The Magistrate having found the owner’s car may not have been driven on the occasion, he was entitled to dismiss the information.
…
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.”[128]
[127](1991) 13 MVR 405
[128]Loges v Martin (supra) at 410
197 Loges v Martin also raised the question whether s60(1) of the RSA should be construed so as to abrogate or modify an accused’s right to remain silent. After referring to the relevant principles of statutory construction, his Honour turned to the purposes of the RSA. He noted that by s1, the purpose of the RSA was “to ensure safety on the roads and to improve procedures for the registration of motor vehicles and their safe use”. By Part 2, s5, the purposes of registration are “to enable motor vehicles to be regulated for reasons of safety and law enforcement and to provide a method of establishing the identity of each motor vehicle which is used on a highway and the person who is responsible for it”.[129] His Honour observed:
[129](ibid) at 408
“The Act makes it an offence to drive an unregistered vehicle or for an unlicensed person to drive either a registered or unregistered vehicle. It has established a comprehensive code to ensure, so far as possible, the safe use of public roads and highways.
Accordingly, a person entitled by way of licence to use the roads accepts certain obligations and commitments, and in fact duties as set out in s59. Similarly, an owner who has a vehicle registered accepts certain duties and obligations by virtue of registration which carries with it permission to have the vehicle driven on public roads. S60 is entitled, ‘Duty of Owner of Motor Vehicle to Give Information About Driver’. This Act is phrased in the very terms of duties and obligations.
Accordingly, if a person submits to the registration of his ownership of a vehicle, he submits to the statutory obligations which are concomitant with it.
…
In my view, the Road Safety Act imposes … constraints upon those persons who obtain registration of a motor car pursuant to it. By virtue of registration, as owners they become entitled to have the vehicle driven upon the public roads, a privilege which would not ordinarily be available, and they accept obligations to their fellow citizens regarding its use.
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 s60 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.”
198 His Honour cited with approval the decision in O’Reilly v Rooney.
199 Neither O’Reilly v Rooney nor Loges v Martin went so far as to say that s60(1) of the RSA may be used when the purpose of the inquiry is unconnected with any occasion of driving. In fact both cases involved “hit and run” collisions and the legitimate purpose of the inquiries was to identify the drivers on those occasions. In neither case was the interpretation of the phrase “a member of the police acting in the execution of duty” considered, 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.
200 Finally, there is the later case of Kymantas v The County Court of Victoria and Samantha Jennings[130] to which I have already referred. It, too, was decided before the 2006 amendments that apply here. That case also involved a “hit and run”, but in construing whether an offence under s60 of the RSA could be established, as I stated earlier, Eames J noted the legislative purpose of the provision:
“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.”[131]
(Emphasis added).
[130]supra
[131](ibid) at paragraph [30]
201 After these cases were decided, the section was amended as indicated earlier. I have referred to the relevant Parliamentary debates. These debates lend support to the purpose of the provision as was earlier attributed by Eames J in Kymantas.[132]
[132]ibid
202 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 s60(1) of the RSA 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 RSA 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.
Conclusion
203 I have found that s60(1) should be construed as if the underlined words that appear hereunder are read in:
“(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 member of the police force who is acting in the execution of duty under this Act, 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.”
204 It is not in dispute that at the relevant time that the informant made the request of the appellant to identify the driver in the record of interview by asking:
“who was the - who was driving the vehicle ###-123 just before 3 o’clock in the afternoon on 30 November this year?”
the informant’s sole purpose was to induce the appellant to answer questions that might tend to incriminate him in the alleged thefts contrary to his express desire to exercise his right to silence. I find that such a purpose is beyond the scope of duty contemplated by s60 of the RSA.
205 At the relevant time, the informant was on duty, but he was not acting in the execution of any duty under the RSA. Accordingly, I rule that the conviction on Charge 2 must be quashed and that the charge be dismissed.
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