Police v Peek - [2007] SASC 56

Supreme Court of South Australia
(Magistrates Appeals: Civil)
POLICE v PEEK
[2007] SASC 56
Judgment of The Honourable Justice Sulan (ex tempore)
15 February 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Consideration of the elements required to be proved to establish a breach of s 38 of the Road Traffic Act 1961 which provides that a person must truly answer questions as to the identity of the driver of the motor vehicle - appeal allowed.
Road Traffic Act 1961 s 38, referred to.
Cavanagh v Galkowski (1979) 20 SASR 322; Roberts v Brebner [1963] SASR 40; Samuels v Broad (1974) 8 SASR 576, considered.

POLICE v PEEK
[2007] SASC 56
Magistrates Appeal

SULAN J: The respondent was reported for a breach of s 38 of the Road Traffic Act1961 (“the Act”). The section provides:
38 – Questions as to identity of drivers etc
A person must truly answer any question put by a member of the police force or an inspector for the purpose of obtaining information which may lead to the identification of the person who was driving, or who was the owner or operator of, a vehicle on any occasion.
On 7 July 2004, at approximately 8.20 pm a motor vehicle registered in the name of the respondent was detected on Grote Street, Adelaide, exceeding the speed limit. On 26 November 2004, Constable Short, a police officer, spoke with the respondent for the purpose of obtaining information which may have led to the identification of the driver of the vehicle. Constable Short asked the respondent the following questions:
Short said: “Scott I have spoken to you before about similar incidents with this car, would you state your full name for me please? ” The respondent said: “Scott Geoffrey PEEK.” Short said: “And your age and date of birth.” The respondent said: “Third of the tenth seventy two.” Short said: “And where are you living, in the flat here are you?” The respondent said: “Unit three twelve Hastings street.” Short said: “And the best number to get you on is 0407973030?” The respondent said: “Yes that’s correct.” Short said: “I am making enquiries into the Black Holden Ute that’s parked in the driveway there, WNH 005, are you the registered owner of the vehicle?” The respondent said: “Yep.” Short said: “Back on the 7^th of July 2004 at 20 minutes past 8 in the evening on Grote Street in Adelaide and there is the photograph I showed you earlier, WNH 005 activated a speed camera, were you driving at the time?” The respondent said: “I’m going to say no comment.” Short said: “OK, the registration expired on the 8^th of the 7^th 2003, were you aware of that?” The respondent said: “Probably not, no.” Short said: “Not aware of that.” The respondent said: “I am going to put no comment same as I did before.” Short said: “OK.” The respondent said: “Like I said I’ll just go and.” Short said: “Yep alright, I’ll just ask you, it is an offence to fail to truly answer questions put to you by a member of the Police Force.” The respondent said: “I know.” Short said: “to identify the driver of a motor vehicle on any occasion, so were you the driver of the Holden Utility WNH 005, The respondent said: “No comment.” Short said: “and like I said at about 8.20pm 7/7/2004.” The respondent said: “No comment.” Short said: “No comment ok.” Short said: “The vehicle was unregistered and uninsured at the time, were you aware of that?” The respondent said: “No comment.”
Then the conversation continued about some other matters not relevant to this matter.
At the hearing before the Magistrate there were a number of agreed facts. Those agreed facts were as follows:
1.That the alleged offence of failure to truly answer was relating to a conversation between the defendant (the respondent) and a police officer on 26 November 2004 at Glenelg South.
2. That Officer Short was in fact a member of the police force.
3.That a question was asked of the defendant by Officer Short for the purpose of obtaining information which may have lead (sic) to the identification of the driver of motor vehicle WNH 005 on Grote Street Adelaide at 8.20 p.m. on 7 July 2004.
4. That the vehicle WNH 005 was registered to the defendant Scott Peek.
5.That the whole of the conversation which constitutes the alleged offence appears in an affidavit of police officer Terry Short and it does relate to the conversation he held with the defendant on 26 November 2004 at Glenelg South.
The Magistrate dismissed the complaint. He referred to the authorities of Roberts v Brebner,[1] Samuels v Broad[2] and Cavanagh v Galkowski[3] and said:
Those authorities establish the elements of an offence under s.38. In proving the charge of “failing to truly answer”, it is necessary for the prosecution to prove (in the present context): -
[1] [1963] SASR 40.
[2] (1974) 8 SASR 576.
[3] (1979) 20 SASR 322.
1. That a specific question was asked by a police officer for the purpose of identifying the driver of a certain vehicle at a certain time.
2. That the defendant knew the answer to that question (my emphasis).
3. That the defendant refused to answer the question or that the defendant answered that question untruthfully.
…
The thrust of the questions by officer Short were limited to whether the defendant was the driver of the vehicle in question at the relevant time. The nature of the questions put to the defendant by officer Short did not provide the defendant with any scope other than to admit or deny that he was the driver. The questions were not framed as to allow the defendant to give some information, indeed, any information in his possession which might have led to the identification of the driver. For instance, the defendant was not asked, “Do you know who was the driver of the vehicle” or “Is there any way that you could find out who was the driver” or “Could you conduct any checks as to who you might have given permission to drive the vehicle at that time”. The answers to any of those types of questions might have led to the identification of the person who was driving. Furthermore, the court could draw the necessary inference from the answers to those types of questions, namely, whether he in fact knew the answers. However, the defendant was in essence only asked if he was the driver to which he answered “No comment”. The prosecution must prove that the defendant knew the answer to the question “Were you the driver?”. The driving incident in this case had occurred on 7 July 2004 and it was specific as to time and place. The questioning took place over 4 1/2 months later on 26 November 2004. In the present case, it cannot be inferred that the defendant knew the answer to the question, whether he was the driver of the vehicle on that date, at that time, at that place.[4]
[4] Police v Peek, Judgment of Mr J.M. Baldino SM, 22 November 2006, p 4-6.
The Magistrate concluded that the offence had not been proved and dismissed the complaint.
Mr Stratton-Smith, who appeared for the appellant, submits that there are three elements that need to be proved in order to establish the charge. First that a relevant question was asked, second that the purpose of the question was to identify the person driving, and third that the defendant did not answer truthfully.
Mr Stratton-Smith submits that in relation to the third element a person is required to answer a relevant question and is further obliged to give a truthful response. If the person refuses to answer or provides a non-responsive statement then he has failed to answer the question and the third element has been proved.
Mr Waye, who appeared for the respondent, submits that as to the third element, the prosecution must establish that not only was there a failure to answer, but that the defendant knew the answer and failed to answer the question truthfully.
Both counsel cited Roberts v Brebner,[5] Samuels v Broad,[6] and Cavanagh v Galkowski.[7] In Roberts, Hogarth J considered the elements that are required to be proved to establish a breach of s 38 of the Act. Section 38 of the Act, as it then stood, was in substantially the same terms as s 38 of the Act as it now stands. Hogarth J said:
[5] [1963] SASR 40.
[6] (1974) 8 SASR 576.
[7] (1979) 20 SASR 322.
In order to provide a basis for the question to which the section will apply, it is necessary for the prosecution to establish that there was an occasion on which the vehicle in question was driven. This may be established by any admissible evidence such as, of course, the evidence of an eyewitness. It may also be established by admission made out of Court by the defendant to a charge laid under the section. Once this foundation is established by admissible evidence, the offence is made out by proving that a question was asked by a member of the Police Force or an Inspector; that it was asked for the purpose of obtaining information which might lead to the identification of the driver of the vehicle on the occasion in question; and that the person charged did not truly answer the question. Although the section does not define in any way the type of question which may be asked it does define the purpose for which the question must be asked; and if a question is such that the answer (whatever it might be) could not reasonably be expected to lead to the identification of the driver of the vehicle on the occasion in question, then there is no obligation on the part of the person to whom the question is addressed to answer it.[8]
[8] Roberts v Brebner [1963] SASR 40, 43-44.
In the present appeal it is not contested that there was an occasion on which the vehicle in question was driven. Further it is not contested that a member of the police force asked the respondent a relevant question and that question was asked for the purpose of identifying the driver of the vehicle.
Hogarth J went on to say:
… If, however, a question is asked by a proper person, and the question is one to which an answer might reasonably be expected to give the information required, then there is an obligation on the person asked to answer it truly. If he fails to do so, either by answering untruly or by not answering at all, then the offence is made out.[9]
[9] Roberts v Brebner [1963] SASR 40, 44.
I emphasise that Hogarth J considered that a failure either to answer truly or a failure to answer at all is sufficient to make out the offence.
In a subsequent decision of Samuels v Broad[10] Hogarth J said:
[10] (1974) 8 SASR 576.
I had occasion to consider this section in Roberts v Brebner. It is not necessary for me to repeat here what I said there as to the facts which must be proved in order to establish the commission of this offence. I see no reason to reconsider what I said in that case.[11]
[11] Samuel v Broad (1974) 8 SASR 576, 579.
In Cavanagh v Galkowski,[12] Jacobs J said:
[12] (1979) 20 SASR 322.
Counsel for the appellant then submitted, with understandably faint heart, that the section does not prohibit a failure to answer, but only an untrue answer. I have no difficulty whatever in reading the obligation to “truly answer any questions” as an obligation both to answer, and to answer truthfully. That was the view taken by Hogarth J. in Roberts v Brebner and Samuels v Broad, with which I respectfully agree.[13]
[13] Cavanagh v Galkowski (1979) 20 SASR 322, 325.
Mr Waye’s submission is similar to the submission that was made by counsel in Cavanagh v Galkowski.[14] Mr Waye submits that in order for the offence to be established, not only must it be established that there was a failure to answer, but it must also be established that the defendant knew the answer and therefore the failure to answer was untrue.
[14] (1979) 20 SASR 322.
The question that was asked of the respondent could have resulted in one of three answers. He could have responded ‘Yes, I was the driver’; ‘No, I was not the driver’ or ‘I do not know who was the driver’. Any one of these three statements would have been responsive to the question. In those circumstances he could only be convicted of the offence if it were proved that his response was untrue.
The statement ‘No comment’ is not an answer to the question or questions that were asked. It follows that the third element of the offence has been proved. Whether the respondent knew or did not know who was the driver is not to the point. Once the respondent chose to make no response by saying ‘No comment’ he failed to answer the question.
The learned Magistrate was in error in considering that it was necessary for the prosecution to prove that the respondent knew the answer and that he had been untruthful. The appeal is allowed and I find the respondent guilty. A conviction is recorded.