R v Dam & Nguyen - [2015] SASCFC 131

Supreme Court of South Australia
(Court of Criminal Appeal)
R v DAM & NGUYEN; CASE STATED ON QUESTIONS OF LAW (NO 2 OF 2015)
[2015] SASCFC 131
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
17 September 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
A judge of the District Court ruled that evidence obtained from a search of the appellant and the motor vehicle he was in should be excluded in the exercise of his discretion. The judge reserved questions for the Full Court going to the correctness of his decision and in particular:
- the entitlement of a police officer to ask questions of a person in charge of a motor vehicle with a view to establishing his personal particulars;
- whether such a person is obliged to answer such questions;
- whether the suspicion formed by the police officer after questioning the occupants was a reasonable one.
Held (Vanstone J, Kelly J and David AJ agreeing):
A police officer is entitled to ask another person questions - he does not need statutory authority to do so.
Section 40V(2)(a) Road Traffic Act 1961 (SA) entitles a police officer who suspects on reasonable grounds that a person may be a responsible person (as defined) to direct that person to provide his personal details - the police officer's purpose need not be related to road transport but the power must be used for legitimate policing of the law.
Section 74AB Summary Offences Act entitles a police officer to ask a person questions for the purpose of identifying a person who was driving, or who owned, a motor vehicle at a particular time - the police officer's purpose need not be related to road transport but the power must be used for legitimate policing of the law.
The suspicion of the police officer that he might have interrupted a drug transaction was reasonable - no occasion arose to exclude evidence of the ensuing searches.
Criminal Law Consolidation Act 1935 (SA) s 350(1); Road Traffic Act 1961 (SA) s 5A, s 38, s 40V, s 42; Summary Offences Act 1953 (SA) s 74A, s 74AB, s 79A; Controlled Substances Act 1984 (SA) s 50(6), s 50(9), s 52; Motor Vehicles Act 1921 (SA) s 22, s 23; Statutes Amendment (Road Traffic Compliance and Enforcement) Act 2006 (No 13 of 2006) (SA), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Dam & Nguyen [2015] SADC 84; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) SASR 10; R v Prinse (1998) 196 LSJS 267; R v Hooper (1998) 196 LSJS 267; George v Rockett (1990) 170 CLR 432; Hussien v Chong Fook Cam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v Nguyen (2013) 117 SASR 432, considered.

R v DAM & NGUYEN; CASE STATED ON QUESTIONS OF LAW (NO 2 OF 2015)
[2015] SASCFC 131
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ
VANSTONE J:
The case stated

A judge of the District Court has reserved four questions for consideration and determination by the Full Court. The questions are reserved under s 350(1) of the Criminal Law Consolidation Act 1935 (SA).
The questions relate to a decision made by the judge after a voir dire hearing. The judge determined to exclude certain evidence that the prosecution proposed to tender upon an information charging Tuan Dam and Thi Dao Nguyen with offences of trafficking in a controlled drug and unlawful possession of cash in the sum of $212,660.
The judge heard evidence and made findings of fact. He ruled that a search of the vehicle in which Dam and Nguyen were found at Bowden was unlawful and the fruits of it fell to be excluded in the exercise of the judge’s discretion and that, consequently, the search of Dam and Nguyen’s home at Pooraka, leading to the discovery of methylamphetamine and the cash, was “tainted” and should also be excluded.
The questions reserved raise the issues of the power of police officers to approach and question persons and, not holding any reasonable suspicion of commission of an offence, to require such persons to answer certain questions. Powers given to the police under s 40V of the Road Traffic Act 1961 (SA) and s 74AB of the Summary Offences Act 1953 (SA) are considered.
As will be seen I consider that the conduct of the police officer was justified under either of the sections I mention and that no discretion arose to exclude the evidence revealed by the respective searches. Consequently, evidence of the drugs and other items found should not have been excluded.
The facts and the judge’s findings
The following facts are taken from the judge’s findings.
During the morning of 20 February 2013 Senior Constable Graham went to the home of a Ms Yen and another at Bowden. Graham had attended the house on the day before and had located drug paraphernalia and some cannabis. He went on this day to deliver documents relating to the previous day’s findings. Ms Yen was present. She was heavily pregnant. Graham had information that Ms Yen was dealing in small quantities of methylamphetamine and heroin on a daily basis. She was also a heavy user of both substances. His information was that her supplier was an Asian male.
Upon leaving, Graham, who was in uniform, drove his marked police car around the block. He then observed Ms Yen walking along a nearby street. He followed her for about four blocks, at a distance. He did so “out of curiosity”. When she arrived at Hawker Street, Bowden, Ms Yen got into the front passenger seat of a white Hyundai van, which was legally parked.
Graham drove past the van and parked in front of it, partly in a “No Standing” zone and otherwise on the roadway. Because of the vehicle’s position Graham activated his flashing lights.
Graham approached the driver’s side of the van. He saw a man in the driver’s seat (the accused Tuan Dam) who was unknown to him. He noticed a bar code on the window of the van, leading him to suspect that it was a hired vehicle. It bore Victorian plates. Graham’s purpose was to gather intelligence about Ms Yen’s associates. He thought this would be a good opportunity to identify a potential supplier of Ms Yen’s drugs and he intended to determine the driver’s identity. He did not suspect the commission of any offence as he approached the van. Graham asked the driver for his name and personal particulars and about the van. His inquiries were not directed to the regulation of road transport or drivers generally. He said in evidence he was proceeding pursuant to s 40V of the RTA.
Dam gave Graham his particulars. He confirmed that the van was hired and said he was using it in the course of his work as a self-employed tiler.
During the course of the conversation either Ms Yen or Dam volunteered that Dam had come to Bowden to collect Ms Yen and take her to the Arndale Shopping Centre.
During this period Graham made a number of observations. He noted that Dam was a male of Asian appearance, that the van was clean despite the stated use of it, and that although he could see most of the rear interior no tools could be seen in it. In the rear Graham saw a bag which was marked as “Tiling Cement” showing a small tear. The tear was small enough for packaging a drug and had been re-sealed with adhesive tape. The two occupants appeared nervous. Ms Yen’s nervousness was in contrast to her presentation at her house and her presentation during Graham’s several earlier encounters with her. Graham thought it odd that, having ostensibly come from Pooraka to take the heavily pregnant Ms Yen to Arndale, Dam would meet her four blocks from her home.
On the basis of all this information Graham formed a suspicion that he might have interrupted a drug transaction. He radioed for assistance. Another officer arrived and the van and the occupants were searched. Inside the tongues of each of Dam’s shoes were located small plastic bags containing methylamphetamine and heroin. Dam was arrested. In relation to the bags Dam was charged on information with:
Count 1, trafficking in methylamphetamine, and
Count 2, trafficking in heroin.
As a result of this, police then searched a house at Pooraka occupied by Dam and the co-accused, Ms Nguyen. There police located 11.73 grams of crystals containing methylamphetamine and cash in the sum of $212,660. Dam and Nguyen were jointly charged with:
Count 3, trafficking in methylamphetamine, and
Count 4, unlawful possession of $212,660.
Graham told the judge that he regularly utilised s 40V RTA to ask questions of a driver to establish identity in circumstances such as these.
In determining whether Graham’s actions were justified the judge first considered s 40V Road Traffic Act 1961 (RTA). He held that “from its terms [it appears] to relate to investigations into people involved in the commercial transportation of goods or people by road”: R v Dam & Nguyen [2015] SADC 84 at [22]. His Honour contrasted s 40V with the repealed s 42 RTA which, he said “gave police power to stop vehicles and to ask questions of drivers to ascertain the identity of a driver at a particular time”. His Honour then stated that s 42 was repealed in 2007 and “replicated in s 74AB of the Summary Offences Act 1953 (SOA)”. (As will be seen, I consider that conclusion was erroneous and that s 40V is the successor of s 42 RTA, although its terms are not identical.)
His Honour then observed that s 74AB SOA could be “further contrasted with s 74A of the SOA which provides police with a wider and different power to seek personal details of people whom they reasonably suspect of being involved in offending …”. The judge then differentiated the three sections on the basis that s 40V was “directed towards the regulation of road transport”, s 74AB “towards the regulation of drivers more generally” and s 74A SOA “directed towards people suspected of offending.” His Honour found that Graham’s inquiries had nothing to do with road transport or drivers more generally and that, because s 74A required a reasonable suspicion relating to an offence and Graham’s suspicion did not arise until after the questioning commenced, Graham had “no legal authority to ask the accused for his personal particulars”: [31].
The judge also noted that Dam must have felt as if he had to answer the questions, because of Graham’s uniform and the positioning of the vehicle. The judge went on to say that, in any event, having had the conversation, the facts available to Graham “[were] not sufficient to found a reasonable suspicion that Dam had drugs in his possession”: [45]. In determining that the Bunning v Cross (1978) 141 CLR 54 discretion should be exercised to exclude the evidence, the judge relied on what he found to be a “wider misuse of police powers” and “a widespread erroneous practice”, as opposed to a single inadvertent misuse of power: [51].
The questions reserved
The questions reserved are as follows:
1.Was I correct to rule that section 40V of the Road Traffic Act 1961 did not give the police officer the power to ask the defendant about his personal particulars?
2.Alternatively, was I correct to rule that section 74AB of the Summary Offences Act 1953 did not give the police officer the power to ask the defendant about his personal particulars?
3.If I was correct about s 40V and s 74AB then in light of my finding that Tuan Dam must have felt obligated to answer the questions asked by the police officer was I correct to rule that the police officer required a specific statutory power to approach the van and ask those questions?
4.Was I correct to rule that the police officer’s suspicion was not reasonable in light of the circumstances as he knew them?
I set out s 40V RTA as it appeared in February 2013:
40V—Direction to give name and other personal details
(1)     In this section—
personal details, in relation to a person, means—
(a)    the person’s full name; and
(b)     the person’s date of birth; and
(c)    the address of where the person is living; and
(d)     the address of where the person usually lives; and
(e)    the person’s business address.
(2)     If an authorised officer or police officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a)    is or may be a responsible person; or
(b)has committed or is committing or is about to commit an Australian road law offence; or
(c)may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d)is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident,
the officer may direct the person to give the officer then and there any or all of the person’s personal details.
(3)     If an authorised officer or police officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(4)     A person commits an offence if—
(a)the person is subject to a direction under subsection (2) or (3); and
(b)     the person—
(i)engages in conduct that results in a contravention of the direction; or
(ii)gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii)produces any evidence that is false or misleading in a material particular in purported response to the direction.
Maximum penalty: $5 000.
(5)     Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.
(6)     In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—
(a)the person did not have a business address; or
(b)the person’s business address was not connected (directly or indirectly) with road transport involving vehicles.
I now set out s 74AB SOA:
74AB—Questions as to identity of drivers etc
(1)     A police officer may ask a person questions for the purpose of obtaining information that may lead to the identification of the person who was driving, or was the owner of, a vehicle on a particular occasion or at a particular time.
(2)     A person who—
(a)refuses or fails, without reasonable excuse, to answer a question under subsection (1); or
(b)in response to a question under subsection (1) gives an answer that is false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
(3)     A police officer who has asked a person a question under this section is required to comply with a request to identify himself or herself, by—
(a)producing his or her police identification; or
(b)stating orally or in writing his or her surname, rank and identification number.
In this Court, counsel for Dam, Mr Anders, supported the judge’s rulings. He noted that the prosecution relied on s 40V(2)(a) RTA, asserting for this purpose that Dam was a “responsible person”. Paying attention to the terms of s 40V and the definition of “responsible person” in s 5 RTA, including the words “a role or responsibilities associated with road transport”, he argued that the sub-paragraph was “directed towards a commercial context”, being the industry associated with road transport: Outline of Submissions [4]. He drew support from the definitions of “transport documentation” and “journey documentation” in s 5.
Mr Anders argued that s 74AB SOA was concerned with investigations about the identity of persons who were driving a vehicle at a particular time, a purpose linked to regulating road use. Dam was not the driver (as defined in s 5) because he was merely sitting in the stationary van at the time he was approached and Graham’s inquiry was not related to regulating road use. Therefore, s 74AB could not justify the questioning.
Furthermore, Mr Anders argued that the approach to Dam was not based on a reasonable suspicion of any offence having been committed and, in the manner it was done, amounted to an “unlawful apprehension of Dam”, or at the least “an authorised approach”. Dam should have been given his rights in accordance with s 79A SOA. I note that this submission went beyond the facts found by the judge.
Consideration
The questions reserved require the restatement of some general principles, as well as an examination of the relevant statutory provisions.
A police officer, like any other member of the community, is entitled to ask another person questions. He does not need any statutory authority, or any reasonable suspicion of an offence, to do so. I repeat what I said in Police v Moukachar (2010) 107 SASR 450 at 453:
^[13]A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A and 74AB of the SOA and s 96(1) Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.
The judge quoted this paragraph in his reasons, but sought to distinguish that principle by reason of the fact that, there, police had pulled over the defendant’s car after a traffic infringement. That is so, but, with respect to the judge, it is not to the point. That fact merely gave rise to the occasion for asking questions as to the defendant’s identity and his ability to prove his identity.
The judge went on to discuss the inference he drew that Dam must have felt as if he had to answer. Dam did not give evidence to that effect and to that extent the assertion is speculative. But even if he had so felt, that would not make the questioning unlawful. Graham neither said nor did anything to mislead Dam. In Bain v Police (2011) 112 SASR 10 at 13 White J said:
^[18]A police officer is not of course entitled to mislead a person who is the subject of the exercise of police powers as to the nature or extent of those powers or as to the person’s obligations in relation to such powers. Conduct of that kind would be reprehensible and may give rise to an occasion for the exercise of the Bunning v Cross discretion.
There was no misleading here nor, contrary to Mr Anders’ suggestion, was Dam apprehended. There is no basis for that submission in the facts. In any event, as will be seen, I consider Graham was not only entitled to ask the questions, but was authorised by statute to require answers.
Section 40V(2)(a) (RTA) entitles a police officer who suspects on reasonable grounds that a person may be a responsible person, as defined, to direct that person to provide his personal details. A person sitting in the driver’s seat of a vehicle parked at the roadside is plainly a responsible person.
Section 5A of the RTA provides that this Act applies to vehicles and drivers, riders, passengers and pedestrians on roads. Nothing in s 40V derogates from that broad application. The expression “responsible person” is defined to mean “a person ... having … a role or responsibilities associated with road transport”. That concept is then given content by the subparagraphs which follow describing roles or responsibilities which are associated with road transport. These include “(d) a person in charge or apparently in charge of a vehicle”.

In R v Prinse (1998) 196 LSJS 267 Bleby J discussed s 42 RTA which was the predecessor of s 40V. It additionally contained the power to stop a vehicle, as well as requiring a driver to answer questions as to his residence or business place, the owner of the vehicle and as to its load. (The power to stop is now found in s 40H.) However, the previous iteration of the section applied to any vehicle and the second reading speech of the Bill introducing s 40V makes it clear that there was no wish to narrow its reach: South Australia, Parliamentary Debates, House of Assembly, 11 May 2006, 260 (The Hon P F Conlon, Minister for Transport). In Prinse Bleby J noted that the only limit upon the power contained in s 42 RTA was that it must not be used “capriciously or for an identifiable purpose not connected with legitimate policing of the law”: at 272.
There is further support for this interpretation in the more distant legislative history of s 40V, as well as s 74AB SOA. In R v Hooper (1995) 64 SASR 480 Cox J (with whom Olsson and Mullighan JJ agreed) traced the history of these provisions back to sections 22 and 23 of the Motor Vehicles Act 1921 (SA). These sections were the original predecessors of s 40V of the RTA and s 74AB of the SOA respectively. The particular section under consideration in Hooper’s case (s 38 RTA) was a successor to s 23 Motor Vehicles Act. Cox J noted that in a 1936 amendment words of limitation which might have restricted the ambit of the former s 23 (and the later s 46 Road Traffic Act 1934 (SA)) were omitted. The purpose of the questioning was no longer restricted to establishing the identity of the driver on an occasion when “an offence under this Act” was alleged to have been committed: s 23 Motor Vehicles Act 1921 (SA). Cox J said at 485:
In the light of this history, including the discarding of earlier words of restriction and the extension of the Act's other coercive or punitive provisions to include offences under other Acts or at common law, I do not think that the use of s 38 should be confined to the investigation of suspected breaches of the Road Traffic Act as the appellant proposes. Of course the power s 38 confers must be used bona fide for the purpose stated in the section.
Section 46 RTA 1934 became s 140 RTA 1934 which in turn became s 38 RTA, which by the Statutes Amendment (Road Traffic Compliance and Enforcement) Act 2006 (No 13 of 2006) became s 74AB SOA.
In Hooper’s case the offence being investigated was armed robbery and illegal use, both being offences under the Criminal Law Consolidation Act. The Court held that the use of s 38 RTA (the statutory predecessor of s 74AB SOA) was not to be confined to suspected breaches of the RTA.
Having regard to these principles I consider that the judge erred in finding that Graham had “no legal authority” to ask Dam for his personal particulars. I find that, like any person, he was entitled to approach Dam and to ask him questions; but more, pursuant either to s 40V RTA or to s 74AB SOA he was entitled to require Dam to answer. That is so provided only that his use of the powers he had was for a legitimate policing purpose, as it was found to be. Therefore, the questioning was not unlawful and Dam was required to answer truthfully.
I turn to the search of the van and its occupants. The powers of police given under s 52 Controlled Substances Act 1984 (SA) (CSA) to stop and search a vehicle, and to seize evidence of an offence against that Act, are given where the police officer reasonably suspects that a substance or equipment that would afford evidence of an offence against that Act is in the vehicle: s 50(9) CSA. In addition a police officer may search any person whom he reasonably suspects has in his possession any substance or equipment in contravention of the Act: s 50(6) CSA.
The concept of reasonable suspicion was discussed by the High Court in George v Rockett (1990) 170 CLR 104 at 115. It was pointed out that suspicion and belief are different states of mind. The Court referred to the statement by Lord Devlin in Hussien v Chong Fook Cam [1970] AC 942 at 948 that suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”. The Court observed that facts capable of grounding a reasonable suspicion might be quite insufficient to reasonably ground a belief. The Court also quoted with approval the statement of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
This Court discussed the same concept in R v Nguyen (2013) 117 SASR 432. The Court consisting of Kourakis CJ, Blue and Stanley JJ said at [21]:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
The Court then discussed the requirement that the suspicion be reasonable. It said at [22]:
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information.
In the present case the judge found that, after questioning Dam, Graham formed a suspicion that he might have interrupted a drug transaction. That suspicion was based on Graham’s observations, his knowledge, the information he had received about Ms Yen’s drug trafficking activities and what was known of her supplier as well as the answers Dam and Ms Yen gave him. The judge held that this suspicion was not reasonable and that the search which followed was therefore unlawful. The judge determined to exclude the fruits of the search. (Apparently it was agreed by counsel that if the search of the vehicle and occupants were excluded then the later search of the home of Dam would also go out on the basis it was “tainted”. I refrain from offering any opinion as to whether that was an appropriate concession by prosecuting counsel.) It is convenient to collect again the matters of fact and belief upon which Graham’s suspicion rested. They were:
1.the police officer was in receipt of information that Ms Yen was involved in daily lower-level dealing of methylamphetamine and heroin;
2.the police officer knew from Ms Yen herself that she was a user of methylamphetamine and heroin;
3.the police officer was in receipt of information that Ms Yen’s drug supplier was an Asian male;
4.Ms Yen was heavily pregnant and had walked from her home a distance of four blocks to get into the white van which was not familiar to the officer;
5.the driver of the white van was an Asian male;
6.the white van appeared to be a hire car, and Dam indicated that he used it for the purposes of employment as a tiler;
7.despite that fact, the van was very clean, and no work tools were in it;
8.a bag of cement in the back of the van had a tear that was “small enough for packaging a drug” that had been resealed with adhesive tape, but the bag had not apparently lost or gained any significant weight or been used in any way;
9.the volunteered explanation that Dam had come to collect Ms Yen to take her to the Arndale Shopping Centre was unconvincing given the long distance she had had to walk to meet him whilst heavily pregnant;
10.Dam seemed nervous;
11.Ms Yen also appeared nervous, and yet she had not been nervous when he was speaking to her minutes earlier at her house, or on a number of other occasions when he had spoken to her. On previous occasions, Ms Yen had bantered with the police officer about catching drug dealers, but on this occasion she did not make any “smart remarks”.
In my view, taken together, these facts were such as to amply justify Graham’s suspicion that a search of the van and its occupants would reveal evidence of an offence against the Controlled Substances Act. His suspicion was reasonable. Indeed, items 1 to 6 and 9 to 11 I find to have been particularly telling.
In determining that Graham’s suspicion was not reasonable, the judge referred to Nguyen as well as a later case of the same name, R v Nguyen [2015] SASCFC 7, in which police searches of the defendant and a motor vehicle were found to have been undertaken illegally.
Of course each case turns on its own facts but, importantly, in both cases, the suspicions expressed by the relevant officers were of a general nature only. In the earlier Nguyen case police determined to impede the movement of and to search a vehicle which was that of a known drug dealer in circumstances where they were not able to determine who was then driving it. In the later Nguyen case a Holden Commodore in which a police officer had previously located drugs, was seen to emerge from a house. The police officer did not recognise the driver, but she stopped and searched the Commodore and located some controlled substances. The searching officer failed to identify in evidence what it was she suspected that entitled her to stop and search the Commodore. The manner of her expression – that she had “enough suspicion to pull over the vehicle … and search” suggested that she had not applied her mind to the requirements of the section: [28].
Those cases are distinguishable from the present. Here, it was the actions and statements of the persons in the vehicle set against the background of matters already known to Graham, that he relied on in forming his suspicion.
I consider the judge erred in finding that the search was unlawful. In those circumstances no discretion to exclude the evidence arose.
Conclusion
For these reasons I would answer the questions reserved as follows.
1.The police officer did not need statutory power merely to ask Dam for his personal particulars. However, under s 40V RTA the officer had power to direct Dam to provide his personal details. Therefore the answer is no.
2.The police officer did not need statutory power to ask questions to obtain information leading to the identity of the driver and of the owner of the van. However, under s 74AB SOA Dam would have committed an offence had he failed to give that information. Therefore the answer is no.
3.The evidence was not sufficient to support an inference that Dam must have felt obligated to answer Graham’s questions. In any event, in accordance with the answers to questions 1 and 2, no statutory power was needed to approach the parked van and ask the questions which were asked.
4.No.
The orders I would make are as follows:
1.set aside the ruling made by the trial judge to exclude evidence of the search;
2.direct that the matter be referred back to the District Court for trial in accordance with the answers given to the questions reserved.
KELLY J: I agree with the reasons of Vanstone J and the answers and orders she proposes.
DAVID AJ: I agree with the reasons of Vanstone J and the orders she proposes.