R v Ridge No. Sccrm-98-178 Judgment No. S6877
[1998] SASC 6877
•25 September 1998
25 SEPTEMBER 1998
R v RIDGE
[1998] SASC 6877
Court of Criminal Appeal: Prior, Lander, Wicks JJ
PRIOR J
The appellant has been convicted of shop breaking and larceny committed at Tailem Bend on 12 September 1996. The prosecution alleged that on that occasion he broke and entered a supermarket, stealing cigarettes to the value of about $3330.
In this appeal it is complained that the trial judge erred in admitting parts of a record of interview. It is said that the trial judge erred in finding questions put to the appellant were properly authorised by s38 of the Road Traffic Act 1961. It is also said that the trial judge erred in finding that there was no duty on the police to clearly identify the power by which an accused must answer questions pursuant to s38 of the Road Traffic Act, where an accused has sought such clarification.
The prosecution’s case at trial was that the appellant stole 90 packets of cigarettes from the United Supermarket in Tailem Bend early in the morning of Thursday, 12 September 1996. Constable Oates was telephoned at 3.35 am that day to be informed that an alarm at the supermarket had been activated. Ten minutes later, he received a telephone call from the manager of the supermarket. A nearby resident informed police that he was disturbed by the sound of the alarm at about 3.40 am. Standing in his front yard, he noticed a male person on the grass area opposite the supermarket, putting something into a bag, throwing the bag over his right shoulder and walking in an easterly direction towards the nearby railway platform. Constable Oates conducted a search in his police vehicle. He followed the light of a vehicle for some distance until losing it about Moorlands, on the Mallee Highway. Shortly afterwards, he discovered an abandoned Mitsubishi sedan, a short distance off the highway. The vehicle was then unoccupied. The engine was warm. The boot of the vehicle was open. It contained a large bag containing cigarettes. Also recovered from the vehicle were some five TAB tickets. Forensic examination revealed the appellant’s fingerprints on four of those tickets, which had been purchased at Clarence Gardens on 11 September. One of the tickets had been purchased at 7.44 am that morning. Police inquiries with respect to the vehicle resulted in a car rental agreement being produced.
The appellant was interviewed by a detective in the afternoon of 13 September 1996. The appellant was first advised of his rights under s79A of the Summary Offences Act 1953 and then asked where he was between 3.00 am and 6.30 am on the morning of Thursday, 12 September. The appellant asked the police officer to explain to him what he had to answer legally. The officer said he did not have to answer the question he had asked about where he was between 3.00 am and 6.30 am on the Thursday morning, to which the appellant then said he was not saying anything about anything and that, as far as he was concerned, that was the end of the interview. The officer then said:
“No, it’s not quite, because there are some questions which you have to answer that I haven’t got to yet.”
The appellant asked what those questions were, to which the officer replied, “Alright. Did you hire a Magna sedan from Thrifty Rent-A-Car?”. The appellant admitted that he had done that about nine days before, from the Adelaide Airport. He was then shown the rental agreement. The appellant admitted that his signature appeared at the bottom of the agreement. A little later, the appellant was asked when the last time was that he had seen the car. The effect of his answers was, Wednesday afternoon in Wright Street, Adelaide. The appellant then said that was all that he was saying, to which the officer replied,
“No, you have to tell me who the person was in charge of the car after you saw it”.
The officer said,
“Right, you’re obliged under the Road Traffic Act”.
The appellant queried this saying,
“Under the Road Traffic Act, I’m supposed to tell you the name of”.,
with the officer then saying,
“The person in charge of that motor vehicle. Alright, particularly the person who was driving that vehicle on Lime Kiln Road and the Mallee Highway at about 4.00 AM on Thursday the Twelfth of September 1996”.
The appellant’s reply was to the effect that he had no idea who that person was because the car was given to him “on the Thursday, on the Wednesday”. The officer then asked who was in charge of the vehicle at that time. The appellant gave a name and said that the person came down from Brisbane but the appellant thought he was going back to Melbourne.
S38 of the Road Traffic Act provides:
“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 of, a vehicle on any occasion.”
In R v Hooper[1], this Court held that questions asked for the purpose of obtaining information that might lead to the identification of the person driving a motor car that is reasonably suspect of having been used to commit any offence are questions authorised by s38[2]. The court acknowledged that the power conferred by that section must be used bona fide for the purpose stated in the section.
[1] (1995) 64 SASR 480
[2] (1995) 64 SASR 480 at 485
With respect to the first ground of appeal, it was submitted that the driving identified to the appellant was that observed by Constable Oates and that that was incapable of being connected with the vehicle hired by the appellant. Questions about the driver, on the appellant’s version of events, were justified as was that with respect to Lime Kiln Road and the Mallee Highway against the information the police then had. The questions put were for the purpose of obtaining information which might lead to the identification of the person driving the vehicle on the occasion the subject of the information.
I agree with what was put in the outline for the respondent:
“1..... Questions in the record of interview were asked for the purpose of obtaining information concerning the identity of the driver of a particular vehicle on a particular occasion; that is at about 4 in the morning of Thursday, 12 September 1996 in the vicinity of Tailem Bend. They were admissible by virtue of s38.
2...... There was no doubt that the vehicle was used in the commission of a breaking and entering at the supermarket at about 2.30 am on the day in question. It was located at about 4.00 am approximately 15 kilometres from the supermarket. The engine was warm. The boot contained cigarettes stolen in the breaking and entering.”
In the circumstances, there was an overwhelming inference that the Magna sedan was the vehicle which was seen by Constable Oates on Lime Kiln Road in the Mallee Highway a about 4.00 am as stipulated by Detective Quinn in the record of interview.
Some reference was made, in the course of the argument, to the fact that the police officer first spoke of a person, “in charge of a vehicle”, not a driver or owner. There seems to me to be nothing in that point given the exchange between the appellant and the police officer. By his latest questions, the officer made plain that, by that question, he was intending to refer to the driver. At that time, he knew of the rental agreement.
The first ground of appeal fails.
As for the second ground of appeal, absent misstatement of the relevant law and circumstances there is no specific duty on the police to “clearly identify the power” by which a person must answer questions authorised by s38 of the Road Traffic Act. The section does not have to be cited nor its precise terms. It is sufficient if the effect of that law is made plain by appropriate language. That occurred here.
The appeal should be dismissed.
LANDER J
The facts of this matter have been fully stated by Prior J.
At the time the appellant was interviewed on the afternoon of 13 September 1996, the police were aware of at least five matters.
First, that the appellant had hired a Magna sedan from Thrifty Rent-A-Car.
Secondly, shortly after the supermarket at Tailem Bend had been broken into, a vehicle had been followed by police.
Thirdly, that the Magna sedan was found abandoned near where the police officer had broken off contact with the vehicle which he was following.
Fourthly, when the Magna was found, the engine was warm, consistent with it being recently driven, and the boot, which contained a large bag containing cigarettes taken from the supermarket, was open.
Fifthly, the vehicle contained five TAB tickets and the appellant’s fingerprints were on four of those.
In those circumstances, the police could reasonably suspect that the appellant was the hirer of the vehicle; at some stage had either travelled in the vehicle or had given five TAB tickets to someone else who had travelled in the vehicle; that the vehicle had been driven very close to the time when the break and enter occurred at the supermarket; that the vehicle had been abandoned near where police had been following a motor vehicle; and that someone had put the proceeds of the crime of the break into the boot of the vehicle.
In my opinion, the police were entitled, in those circumstances, to call into aid the provisions of s38 of the Road Traffic Act and to require the appellant to truly answer any questions put to him for the purpose of obtaining information which might lead to the identification of the person who was driving the vehicle on that occasion.
The particular occasion in this appeal was at or about the time of the break and enter of the supermarket and very shortly thereafter.
I think the words used by the interviewing police officer were not entirely appropriate. He told the appellant that the appellant had to answer as to who was “in charge” of the motor vehicle. It would be preferable if a police officer, who was relying upon the provisions of s38, used the words of the section itself. A police officer would be wise to tell an interviewee that he must truly answer any questions put by him for the purpose of obtaining information which might lead to the identification of the person who was driving or, in the appropriate case, who was the owner of a motor vehicle. He should then identify, with some particularity, the occasion to which he is addressing the interviewee’s attention.
It would have been preferable if the police officer in this case had proceeded in that way but, in my opinion, the statement made by the police officer on that occasion did not mean that the answers to the questions put were inadmissible.
It cannot be said that the police officer misstated the provisions of s38 such that any answers should have been excluded as having been unfairly obtained. The most that could be said about the statement was the police officer mistakenly advised the appellant that he was obliged to answer questions, the purpose of which was to identify who was in charge of the motor vehicle, rather than who was the driver of the motor vehicle.
In any event, when the police officer identified the occasion immediately after that statement, he said:
“Alright, particularly the person who was driving that vehicle on Lime Kiln Road and the Mallee Highway at or about 4 am on Thursday, 12 September 1996.”
It is a matter of degree as to the amount of information that must be given by any police officer who is relying upon s38 to obtain information which might lead to the identification of the person who was driving, or the person who was the owner of the motor vehicle. A careful and prudent police officer would identify the section relied upon and the words used in the statute. However, it is not necessary for a police officer to expressly state that he is invoking the provisions of s38 of the Road Traffic Act and to read the section verbatim. It is enough if a police officer makes it clear that the source of the power to require the answer to the question is statutory and relates to the interviewee the true effect of the power given to that police officer by s38.
I agree with Prior J that the appeal should be dismissed.
WICKS J
I agree that this appeal should be dismissed for the reasons given by Prior J.
PRIOR J
The order of the court is appeal dismissed.
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