R v Mohammadi, Daye, Mohammadi and Nezhad
[2014] SADC 95
•8 May 2014
District Court of South Australia
(Criminal: Application)
R v MOHAMMADI, DAYE, MOHAMMADI AND NEZHAD
[2014] SADC 95
Reasons for Ruling of His Honour Judge Tilmouth (ex tempore)
8 May 2014
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Held 1: After making clear that the accused did not wish to answer any questions, the record of interview was inadmissable.
2. The prosecution should not be entitled to prove the exercise of the right to silence in any event.
3. Although portions of the interview were otherwise authorised by s74AB of the Summary Offences Act, they ought to be excluded, as the requirement that he 'must honestly answer our questions' mistated the effect of the section which contained no such requirement.
4. The purported exercises of the right to silence is not a 'reasonable excuse' to answer questions authorised by s74AB.
Summary Offences Act s 74AB; Road Traffic Act 1961 (SA) s 38, referred to.
The Queen v Ireland (1970) 126 CLR 321; Harris v Samuels (1973) 5 SASR 439; Petty and Maiden VR (1991) 173 CLR 95; R v Hooper (1995) 64 SASR 480 , applied.
R v MOHAMMADI, DAYE, MOHAMMADI AND NEZHAD
[2014] SADC 95The issues
Seyed Nezhad is before the court jointly charged with three other men with a number of serious offences, including a count of false imprisonment. The offence is alleged to have occurred by forcing the victim to remain under threat in a blue Holden Commodore sedan during the late evening of Saturday 23 and the early morning of Sunday 24 February 2013. Just after 3.00pm that day, a number of Detectives attended the home occupied by Nezhad, where they observed the subject Holden Commodore in the carport. He was placed under arrest, taken to the Port Adelaide Police Station, and escorted into an interview room where the Legal Services Commission was contacted so that he could speak to a solicitor.
He has made a pre-trial application for exclusion of the subsequent interview with him as a whole, and in the alternative of a certain portion thereof. That interview commenced at about 3.33pm that afternoon. Following the formalities, including giving the statutory rights upon arrest, it became clear that he did not wish to answer any questions, an intention which crystallises most clearly in this exchange:
AOkay I’m not going to answer
QUntil you actually see a lawyer face to face
to which he then nodded his head affirmatively.
That being so, the record of interview was simply inadmissible. In The Queen v Ireland,[1] Barwick CJ said this:
In R v Evans (1962) SASR 303 referred to in the judgment delivered in the Supreme Court, the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v Curran (1933) SASR 248 and Bailey v R (1958) SASR 301 decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation.
In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant.
[1] (1970) 126 CLR 321, 330.
The subsequent decision of the Full Court in Harris v Samuels,[2] is to like effect. In any case, as I apprehend the law, the prosecution should not be entitled to prove the exercise of the right to silence anyway: R v Petty and Maiden.[3] Four Justices of the High Court wrote in that case:
That incident·of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply.
[2] (1973) 5 SASR 439, 452, 464-465.
[3] (1991) 173 CLR 95, 99. See also R v Barr (2004) 14 NTLR 164, [27], R v Hartwick VSCA, 20 December 1995, unreported: BC9502674, p.6.
There was however, a further basis upon which some questions were said by the prosecutor to be justified. These appear in that portion of the interview when Mr Nezhad was asked certain questions regarding the motor vehicle seen in his carport shortly before he was arrested. The exchange in question, (which occurred through an interpreter) was this:
QOkay, but this is the home address of the person you know as Roy Day
ITOkay
QOkay Seyed do you, do you understand what I have said in relation to the charges?
IT
QWhich is not an admission of your guilt
IT
QDoes, do you understand?
ITYeah these are not mine
QOkay, the victim in relation to these matters
IT
QIs in a serious condition, medically
IT
QBut it is my intention when we are able to speak to him
IT
QThat in relation to the motor vehicle
IT
QYou must honestly answer our questions
IT
QIn relation to who had possession of that vehicle
IT
QAt a particular time
IT
QDo you agree with that?
ITYes she just told me to answer this question
QI won’t be a moment
IT
QOkay Seyed can you please tell me who had possession
IT
QOf your blue 2000 Holden Commodore sedan
ITDo you mean, do you mean whose the, who was the driver
QWho was the driver
ITOr…, I went there and I sat waiting for my papers, 1 guy who was there told me
QOkay Seyed before you continue the only question I’m asking you is in relation to who had the vehicle
IT
QAt a particular time
ITI don’t know. I don’t know
QSeyed can
ITI don’t know him
QOkay Seyed can you please tell me who had the vehicle at midnight being Saturday the 23rd?
ITWhat time?
QAt midnight, 12
ITUntil, until, yeah, until 12 o’clock I was the driver
QYes
ITBut between 12 o’clock and, between 1.30 it was parked there
QAnd when you say parked there do you mean 29 Bollingbroke Avenue?
IT
QWhere….
ITI’m not familiar with the address because just once somebody showed me
This line of questioning was said to be authorised by reason of s 74AB of the Summary Offences Act 1953 (SA) which provides:
74AB – Questions as to identify of drivers etc
(1)A police officer may ask a person questions for the purposes 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 all questions under sub-s.(1), or
(b) in response to a question under sub-s.(1) gives an answer that is false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $1250 or imprisonment for three months.
I do not accept Mr Henchliffe’s submission that the exercise of the right to silence would amount to a reasonable excuse under sub-s.(2)(a), largely for the reasons explained by Cox J in R v Hooper:[4]
Permitting a person lawfully to decline to answer questions … on the ground that his answers might tend to incriminate him would severely limit the section's apparent usefulness: cf Mortimer v Brown (1970) 122 CLR 493
[4] (1995) 64 SASR, 480, 486.
Nor do I accept his submission that the question ‘Who had the vehicle at midnight?’ is not a question falling within ‘a question that may lead to the identification of the person who was driving or was the owner of the motor vehicle’. I can accept that in terms it does not amount to such a question, but the section is less demanding than that. It simply requires questions that ‘may lead to the identification of the person who was driving the vehicle or of ownership’. Seen in that way, the question, although perhaps framed a little indirectly, fell within the section.
However, the police officer in the prelude to the above sequence of questions, told Mr Nezhad ‘You must honestly answer our questions’. In R v Hooper,[5] a question arose for the determination whether certain questions requiring answers relating to motor vehicles, could be admitted in evidence as admissions with respect to other offences. The Court of Criminal Appeal held that they could. The court was considering the predecessor of this s 74AB, namely s 38 of the Road Traffic Act 1961 (SA). This read:
[5] Referred to above.
Questions as to the identity of drivers
A person must truly answer any questions put by a member of the Police Force or in respect of ... for the purposes of obtaining information which may lead to the identification of the person who was driving or who was the owner of a vehicle on any occasion.
By s 164A of the Road Traffic Act it was an offence punishable by a fine not exceeding $1,000 to contravene s 38.
It can be seen, when returning to s 74AB of the Summary Offences Act, that it comprises quite a different construct in statutory language. The gist of the offence under the previous s 38, was the obligation to answer. There is no such obligation in s 74AB. The pith and substance of an offence under s 74AB is the refusal or failure to answer questions, or upon answering them, doing so falsely or misleadingly. There is no direct obligation to answer as such. It is therefore quite a different situation than under the statutory regime considered in Hooper.
In that respect, the questioning officer, no doubt inadvertently, and perhaps even based on police procedures developed under the previous regime, advised Mr Nezhad that he ‘must honestly answer our questions’. To that extent it misled him as to the precise statutory terms of the obligation were.
In Hooper, Cox J said this:[6]
[6] Above 487-488.
I agree with Mr Peek that if Anderson misstated the position under s.38 to the appellant, the evidence should have been excluded at the trial as having been unfairly obtained.
There are not dissimilar comments made by White J in Bain v The Police.[7] What Cox J said is both clear and intended. For that reason I exclude the extract from the interview quoted above as having obtained answers upon a basis which misstated the legal obligation erected by s 74AB of the Summary Offences Act.
[7] (2011) 112 SASR 111, para 18.
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