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Moreno (a pseudonym) v Grey (Ruling) [2017] VCC 942 (13 July 2017)

Last Updated: 19 September 2017

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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 v Grills [1910] HCA 68; (1910) 11 CLR 400; R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Graham v R [1998] HCA 61; (1998) 195 CLR 606; R v McDermott (1948) 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133; R v Hartwick (Ruling No 1) [2002] VSC 422; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; Alexander v R [1981] HCA 17; (1981) 145 CLR 395; R v Alexander [1994] VicRp 58; [1994] 2 VR 249; R v Shannon (1987) 47 SASR 347; R v Szach (1980) 23 SASR 504; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Warburton v Loveland (1832) 2 D. & Cl. (HL) 480; Baini v R [2012] HCA 59; (2012) 246 CLR 469; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193; Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138; Director of Public Prosecutions for Victoria v Le [2007] HCA 52; (2007) 232 CLR 562; Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619; Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529; Combet v Commonwealth of Australia [2005] HCA 61; (2005) 224 CLR 494; Hilder v Dexter [1902] AC 474; Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Heydon’s Case [1584] EngR 9; (1584) 3 Co Rep 7a; Singh v Commonwealth [2004] HCA 43; (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] HCA 26; (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] HCA 63; (1908) 7 CLR 277; Coco v R [1994] HCA 15; (1994) 179 CLR 427; Benning v Wong [1969] HCA 58; (1969) 122 CLR 249;. Director of Public Prosecutions v Leys & Leys [2012] VSCA 304; (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] VSCA 144; (2010) 28 VR 60; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681; MacAlister v The Queen [1990] HCA 15; (1990) 169 CLR 324; R v Di Maria [1996] SASC 5882; (1996) 67 SASR 466; Coysh v Grimwade [1926] ArgusLawRp 5; [1926] VLR 178; Kymantas v County Court of Victoria and Jennings [2001] VSC 298; Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; Nicholson v Avon [1991] VicRp 15; [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] HCA 39; (2004) 220 CLR 1; Nguyen v Elliott (Unreported, VSC, 6 February 1995); McLiney v Minster [1911] ArgusLawRp 59; [1911] VLR 347; Cintana v Burgoyne [2003] NTSC 106; (2003) 13 NTLR 130; Perkins v County Court of Victoria & Ors [2000] VSCA 171; (2000) 2 VR 246; Innes v Weate [1984] TASRp 3; [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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TABLE OF CONTENTS

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).

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]

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]

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:

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).”

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]

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.

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.

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:

29 Mr Tatti tendered the following exhibits:

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]

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]

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]

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]

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]

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.

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:

“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:

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.”

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.

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]

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]

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.”

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]

(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.”

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).

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]

(4) The principle of legality

60 In Momcilovic v R,[51] French CJ explained the principle of legality this way:

“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]

(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:

“[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]

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] HCA 15; (1990) 169 CLR 324 at 330; R v Di Maria [1996] SASC 5882; (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. ... .”

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]

“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).

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 of Legislation 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]

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.

(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 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).

81 The penalty for failing to give information identifying the driver was prescribed by s21.

82 As with the previous version, the 1915 Act did not contain express purposes, but again, it is clear 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.[66]

83 Again, the words “in the execution of duty under this Act” did not appear in this section and there is nothing to be found in extrinsic material to indicate any new parliamentary intent to that evinced in respect of the earlier version.

Motor Car Act 1928

84 The Act was now 29 pages in length. Section 10 was in similar terms to the previous versions:

“10. (1) Every 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 an identifying number, as required by section four of this Act.

(3) Every driver of a car who 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 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 is within his power to give and which may lead to the identification and apprehension of the driver, and every owner who fails to do so shall also 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) Every person who during the period of his disqualification as aforesaid drives a motor car shall be guilty of an offence against this Act.”

(Emphasis added).

85 At the end of ss(3) there was a footnote – reference “(a)”, which states:

“In order to impose on the owner of a car a duty under this sub- section ‘to give any information which is within his power to give and which may lead to the identification and apprehension of the driver’ the fact that it is alleged that the driver has committed an offence against this section must be communicated to the owner.

It is not a condition precedent to the liability of the owner of a motor car to give the information required under this sub- section that the driver of the car must have ‘refused to give his name or address’ or otherwise evaded identification as described in the sub-section, when called upon to do so by a member of the police force – Coysh v Grimwade, [1926] ArgusLawRp 5; (1926) V.L.R., 178.”

(Emphasis added).

86 In Coysh v Grimwade,[67] the driver of a vehicle was alleged to have committed an offence against s10(3), in that he drove the car at a speed and in a manner dangerous in all the circumstances. The driving was witnessed by a member of police who noted the registration details. He requested the owner of the vehicle to provide information about the identity of the driver, in response to which the owner indicated that a number of people had access to the car. The informant did not tell the owner that the information was required because the driver was suspected of having committed an offence under that section. Schutt, J, with whom the other members of the Court agreed, considered that as a matter of statutory construction, the section implied that the member of police was obliged to inform the owner of the fact that it was alleged that the driver had committed an offence against the section. His Honour stated:

“The validity of this ground, however, depends upon the construction of sec. 10 (3) of the Motor Car Act 1915. ... The second ground [for review] is¾ ‘That there was no evidence that the defendant had been informed that it was proposed to lay an information against the driver of the car in respect to an offence under sec. 10 of the ... [Act].’ This ground has been submitted to some verbal criticism, and that criticism, was, I think, justified, but really the ground in substance presents the view that in a case of this kind some communication should be made to the owner of the car of the fact that it is alleged that the driver of the car has committed an offence against the section. Treating the ground as raising that point, it seems to me that we should give effect to it. The sub-section does not in so many words require that any such communication should be made to the owner of the car, but I think it is to be implied from its language. It would, I should say, be a remarkable state of affairs if that were not so, because then the owner of the car would be practically compelled to give information such as is suggested without knowing the purpose for which the information would be required. The sub-section says that the owner must give information ‘if required’. I think those words imply that the information must, to his knowledge, be required for the purpose of the identification and apprehension of a driver who has committed an offence against the section. If the owner of the car is not told the purpose of the inquiry, if he is not informed that the driver is alleged to have committed an offence, he would then be placed in this position : He would be under an obligation to give information likely to lead to the identification and apprehension of the driver, although he would have no opportunity to decide in his own mind whether he was in possession of any such information or not. In these circumstances it is, in my opinion, clear that the fact that it is alleged that the driver has committed an offence against sec. 10 must be communicated to the owner of the car.”

87 This case was later to be distinguished by Gobbo J in O’Reilly v Rooney.[68] I shall refer to that case later.

88 As is evident, the duty on the owner of the vehicle imposed by this section was linked to the purpose of making the driver of a vehicle who has allegedly committed the offence created by s10(1) responsible for the breach.

89 The words “in the execution of duty” did not appear in the section, but, in my view, they would be superfluous given the clear and limited purpose for which the power to require the information from the driver was conferred.

90 The Act also reproduced the obligations imposed upon a driver to stop and render assistance after an accident and to state his/her name and address.[69]

Motor Car Act 1930

91 The Act was now 23 pages in length. The Parliamentary debates manifest the legislature’s intention that safe road use was a predominant purpose, as was the need to protect the revenue:

“The original Motor Car Act was passed in the year 1909, and during the nineteen years that have elapsed since then, practically no alteration of any importance has been made in the Act, ... .

The original Motor Car Act was passed mainly with the object of securing the safety of road users, whether they were motorists, cyclists, pedestrians, drivers of horse-drawn vehicles, or riders of horses. The present Bill has been drafted with the same object¾to secure the better safety of the public¾and also to safeguard the revenue of the State. ...”^[70]

“There are three aspects from which motor legislation has been dealt with by Parliament. The first was dealt with in the 1909 Act, and provided principally for public safety. The next was the financial aspect, when the motor vehicle became a serious competitor with our railways and tramways, and was required by Parliament to contribute towards the maintenance of the roads ... The third material part of our motor legislation is the protection of the roads ... The present Bill deals with all these three factors, and proposes to amend the law in the directions which experience has shown to be necessary to maintain the principles laid down by Parliament in previous legislation... Many of the questions which will naturally arise are at present dealt with, or should be dealt with, under the Police Offences Act, or under some traffic legislation other than this measure, which aims at dealing purely with the motor car itself.”^[71]

(Emphasis added).

92 Section 17 amended s10, and for the first time the phrase “a member of the police force acting in the execution of his duty” appeared:

“17. (1) Any owner of a motor car who when required to do so by a member of the police force acting in the execution of his duty fails to give any information which it is within the power of such owner to give with respect to any person (other than such owner himself) who was the driver of the motor car on any occasion and which may lead to the identification of such person shall be guilty of an offence against the Principal Act.

(2) For the purposes of this section ‘owner’ means the person in whose name the motor car was registered at the time when the person with respect to whom the information is sought was the driver of the motor car and also includes any person who at such time was the hirer of the motor car under a hire purchase agreement.”

(Emphasis added).

93 The Parliamentary debates show that s17 was introduced in response to a number of serious accidents in which the drivers concerned fled without rendering assistance and without leaving their names and addresses, contrary to the specific duties to do so under the Act:

“... Clause 16 [which became s17 of the Act as passed] requires the owner of a car to assist the police in giving information if he possesses it, as to the driver of his car on a particular occasion. It may be pointed out that all the owner is required to do is to give such information as he has as to the driver, other than himself. The police, having obtained such information, have still to prove the case against the driver. Recently a case occurred in Clifton Hill where a boy was killed in a motor car accident. The person who drove the motor car disappeared, and the owner refused to reveal the name of the person to whom the vehicle had been loaned, and the police were handicapped in making their inquiries. The amendment will compel the owner to give such information. An owner may wish to protect his wife or a friend who had used the car and met with an accident. We feel that any information possessed by the owner should be made available to the police. It may be pointed out that all the owner will be required to do is to give such information as he has in regard to the driver of his car other than himself. The police having obtained such information have still to prove the case against the driver. We do not desire that the owner of the car shall be required to give evidence that can be used against the individual who has made use of the car. All that the owner should be required to do is to give the police the actual facts in his possession.”^[72]

94 There is no reference in the relevant debates evincing parliamentary intent to confer any power on police greater than that which might be necessary to give effect to the Act and the regulations made thereunder. Indeed, one of the express purposes was to promote road safety, a purpose consistent with previous forms of the legislation.

95 What is clear, in my view, is that Parliament was drawing an important distinction between investigation of driving offences on the one hand, and prosecution of persons who have committed driving offences on the other. It was expressly intended that an owner providing such information would not be compelled to give evidence in any prosecution of a driver – the police would still “have to prove the case against the driver”. If the distinction between investigation and prosecution is relevant to the present form of this provision, then, in the present appeal, there was no case to prove against the driver. There was no relevant investigation about which the information about the driver was sought. What the informant attempted to do was to compel the appellant to give evidence against himself about the alleged thefts in the Record of Interview.

96 I consider it is apparent that in s17 of the 1930 Act, there is an inextricable nexus between the requirement to provide information as to driver and the commission of a driving related offence. If the words “under this Act” had been added to the phrase “a member of the police force acting in the execution of his duty”, those words would have been superfluous in all the circumstances, since there was no other duty to be exercised.

97 The phrase “member of the police force acting in the execution of his duty” also appeared in s6 of the 1930 Act. That section imposed a duty on manufacturers of, or dealers in, motor cars to keep certain records. These persons were now required to –

“6. (1) ....

(b) on demand produce such record for inspection by any member of the police force acting in the execution of his duty under the Motor Car Acts.”

(Emphasis added).

98 The Parliamentary debates shed light on the need for this new provision that was designed to assist in the identification of drivers abusing certain identification marks in order to avoid obligations under the Act:

“Clause 7 [which became s6 in the Act] provides for better control of identification marks issued to motor traders. The practice is to issue to motor firms what are known as identification numbers. Honourable members, no doubt have seen cars moving about the streets with the letter ‘A’ prefixed to the number. That shows that the car is under the control of a proprietor of a garage or a dealer in motor cars. The use of these registration marks has been abused by certain dealers, who, with their employees, have used cars bearing these numbers for ordinary business purposes. The idea of issuing these identification marks is that they shall be used only when a prospective purchaser is in the car or when a car is being taken from a garage to a factory or something of that sort. It was not intended that they would be used on a car for ordinary business purposes. It is now proposed to provide that dealers and sub-agents shall have their own registration garage numbers, and pay a fee accordingly. Honourable members will realize that a firm dealing in motor cars in a large way may have agents all over the country. It takes out a number of registration plates and sends them to its agents, who use them on cars in the ordinary course of business as well as for demonstration purposes. We propose to ask the House to agree that each dealer or sub-agent must get his own registration mark. The present practice is causing a good deal of trouble to the police. Suppose, for instance, a car bears a registered mark ‘A000’ ... If it is necessary for the police to make inquiries to find out who was using a car bearing that mark, they go to the firm in whose name it has been issued, but they are immediately told that it is impossible to identify the particular driver. The firm may say that they have 50 persons driving and cannot say which one was in charge of a particular car. In this way the police are hampered in making necessary inquiries. But under the scheme now proposed, every sub-agent, as well as the proprietor of a garage, will have to obtain an identification mark.”^[73]

99 In later debates, there was further reference to the need for such a provision, again, to prevent drivers from escaping a liability created by the Act:

“Clause 6 requires the garage-keeper, &c., to whom a special identification number is issued, to keep a record of the persons using cars carrying such number. The garage number is issued to a garage-owner, and that number¾so the police say¾is used to-day indiscriminately by the employees and friends, or otherwise, of the owner. He may take it out on his car on a Sunday when he goes for a trip into the country, and so escape liability, and his employees may take the same number out on their occasional joy rides. This clause requires that a record shall be kept of the use to which the number is put so that no improper use can be made of it to the detriment of the revenue.”^[74]

100 Section 20 reproduced the obligation on “the person driving” to stop and render assistance after an accident and to provide name and address.

101 Section 22 conferred power on police to give reasonable directions to drivers:

“22. (1) Any member of the police force may give such reasonable directions to persons driving motor cars upon any public highway as are in his opinion necessary for carrying into execution the provisions of the Motor Car Acts or any regulations thereunder.

(2) Any person who disobeys any lawful direction of a member of the police force given as aforesaid shall be guilty of an offence ... .”

(Emphasis added).

102 The Parliamentary debates indicate that the purpose of the provision was to empower members of police to give reasonable directions to drivers to ensure safe road use:

“... Clause 21 [which became section 22] gives power to a member of the Police Force to give reasonable directions to any person driving a motor car on any public highway. There is a penalty for disobedience. It often happens that a policeman on traffic duty gives directions to motorists, and the directions are disobeyed. ‘Safety first’ is to obey the policeman in these cases.”^[75]

103 Similar powers and duties have continued to appear in the various reproductions and reincarnations of the legislation.

104 Having regard to the purpose of these provisions, as evinced by the Parliamentary debates and the specific reference to the execution of duty “under the Motor Car Acts” contained in s6(1)(b), I consider it most likely that the phrase “a member of the police force acting in the execution of his duty” as contained in s17 was meant to be given a meaning consistent with s6(1)(b). Such a construction is consonant with the principle of statutory interpretation that words and phrases used more than once in any Act are presumed to have the same meaning unless the contrary intention is expressed.[76] It does not appear that any contrary intention was expressed. In any event, no power was conferred on members of police by the Act to do anything other than exercise the specific duties and powers expressed in the Act.

The Motor Car Act 1951

105 The Act had grown to 70 pages in length. Section 75 replaced s17 of the 1930 Act. The Act was divided into Parts and Divisions. Part VI, Division 1, created general duties and obligations, and Division 2 covered offences and legal proceedings. Section 75, which appeared in Part VI, Division 1, provided:

“75. (1) Any owner of a motor car who when required so to do by a member of the police force acting in the execution of his duty fails to give any information which it is within the power of such owner to give with respect to any person (other than such owner himself) who was the driver of the motor car on any occasion and which may lead to the identification of such person shall be guilty of an offence against this Act.

(2) For the purposes of this section ‘owner’ means the owner or the person in whose name the motor car is registered at the time when the person with respect to whom the information is sought was the driver of the motor car.”

(Emphasis added).

106 The duty to stop and render assistance, and to provide name and address was reproduced in s77.

107 There is nothing that emerges from any extrinsic material to evince any fresh legislative purpose to s75.

The Motor Car Act 1958

108 The next major consolidation of the Motor Car Act occurred in 1958. The Act was now 78 pages in length. Section 78 replaced s75 of the 1951 Act. The new section was in identical terms to s75 of the 1951 Act.

109 Again, there is nothing that emerges from any extrinsic material to evince any fresh legislative purpose to s78.

110 To this point, every reincarnation of what was originally s10(3) of the Motor Car Act 1909 and was, by 1958, s78, contained no express or implied purpose to confer any power on police greater than that which was necessary to achieve the purposes of assisting in the investigation of driving related offences contrary to the Act and of prosecuting those who had committed them. Moreover, no fresh legislative purpose or intent was expressed or implied on any occasion when a new manifestation of the provision was enacted.

The Road Safety Act 1986

111 The 87-page Road Safety Act repealed and replaced the Motor Car Act. The new Act contained specified purposes, not only at the beginning of the Act, but also at the beginning of a number of its Parts. The purposes of the Act generally were set out exhaustively in s1. The purposes of relevant Parts were set out exhaustively in s5, s17, s34 and s47. I shall set out the purposes relative to the applicable Parts:

“PART 1–PRELIMINARY

Purposes

1. The purposes of this Act are¾

(a) to provide for safe, efficient and equitable road use; and

(b) to improve and simplify procedures for the registration of motor vehicles and the licensing of drivers; and

(c) to provide for the safe use of recreation vehicles; and

(d) to ensure the equitable distribution within the community of the costs of road use.

...

PART 2–REGISTRATION

Purposes of registration

5. The purposes of registration are¾

(a) to ensure that the design, construction and equipment of motor vehicles and trailers which are used on a highway meet safety and environmental standards; and

(b) to enable the use of motor vehicles and trailers on highways to be regulated for reasons of safety, protection of the environment and law enforcement; and

(c) to provide a method of establishing the identity of each motor vehicle or trailer which is used on a highway and of the person who is responsible for it.

...

PART 3–LICENSING OF DRIVERS

17. Purposes of licensing

The purposes of licensing are¾

(a) to ensure that people who drive motor vehicles on highways are competent drivers; and

(b) to ensure that drivers are aware of safe driving practices and road law; and

(c) to ensure that people who are, or who become, unsuited to drive are not permitted to drive on highways; and

(d) to enable the identification of drivers for the purposes of law enforcement and accident investigation.

...

PART 4–RECREATION VEHICLES

34. The purposes of this Part are¾

(a) to ensure that the design, construction and equipment of recreation vehicles which are used in a public place meet safety and environmental standards; and

(b) to enable the use of recreation vehicles to be regulated for reasons of safety, protection of the environment and law enforcement; and

(c) to ensure that people who drive recreation vehicles in public places are old enough to do so; and

(d) to provide a method of establishing the identity of each recreation vehicle and of the person who is responsible for it.

...

PART 5–OFFENCES INVOLVING ALCOHOL OR OTHER DRUGS

Purposes of this Part.

47. The purposes of this Part are to¾

(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are a cause; and

(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs; and

(c) provide a simple and effective means of establishing that there is present in the blood of a driver more than the legal limit of alcohol.”

112 The interpretation of s60(1), for which the respondent contends, finds no direct or incidental associated legislative purpose.

113 I note that s66 of the Act created a regime to identify drivers who had been detected of certain driving offences by means of “photographic detection devices” in order to facilitate their prosecution.

114 I shall later refer in some detail to the duties and obligations imposed upon drivers referred to in Part 6 – Offences and Legal Proceedings.

2003 amendments to the Road Safety Act 1986

115 In 2003, the RSA was amended[77] to confer additional powers on “inspectors”[78] to require production of documents and related items,[79] to direct a “responsible person” to provide reasonable assistance,[80] to direct an individual to state his/her name, home address and business address,[81] and to provide certain information.[82] The directions could be given orally or in writing.[83] Significantly, each power so conferred was limited to the purpose of enforcement or compliance with the RSA:

“132 Power to require production of documents and related items

(1) An inspector may, for compliance purposes ...

133. 133 Direction to provide reasonable assistance

(1) An inspector may direct ... [a relevant person] to provide assistance to the inspector to enable the inspector effectively to exercise power under this Part ...

135. 135 Direction to state name and address

(1) An inspector may, for compliance purposes, direct ...

136. 136 Direction to provide certain information

(1) An inspector may direct, for compliance purposes, ... .”

(Emphasis added).

116 In making these amendments, Parliament can be taken to have appreciated the impact such a power might have on the right to silence, because it specifically modified that right by virtue of s138. In so doing, the provision however limited the circumstances in which any evidence so obtained could be used:

“138. Self-incrimination not an excuse

(1) A person is not excused from complying with a direction made under this Division on the ground that complying with the direction may result in information being provided that might incriminate the person.

(2) Any information obtained from a natural person under this Division is not admissible in evidence against the person in criminal proceedings other than in proceedings in respect of the provision of false information.

(3) Despite sub-section (2), any information obtained from a person under section 135(1) is admissible in evidence against the person in criminal proceedings.

(4) Despite sub-section (2), any information obtained from a person under this Division that is contained in any document or item¾

(a) that the person is required to keep by any law or approved road transport compliance scheme; or

(b) that was obtained without the direct assistance of the person¾

is admissible in evidence against the person in criminal proceedings.

(5) For the purposes of sub-section (4), a person provides direct assistance in the obtaining of a document or item if the person is required to identify, to reveal the location of, or to explain the contents of, the document or item.”

(Emphasis added).

117 The Second Reading Speech confirms this legislative intent and purpose:

“The main purpose of this bill is to amend the Road Safety Act and the Transport Act to enable effective enforcement of road transport ‘chain of responsibility’ laws. To this end, the bill will introduce enhanced investigatory and enforcement powers in relation to compliance with road transport and road safety laws.

The aim of the chain of responsibility principle is to ensure that everybody who bears responsibility for conduct that affects a person’s compliance with road transport law should be made accountable for any failure to discharge that responsibility. This principle has been used to extend liability beyond the driver by introducing offences for employers, consignors and other parties in the transport chain where their actions lead to a breach of road transport legislation.

The chain of responsibility principle is a cornerstone of the national compliance and enforcement reforms being developed by the National Road Transport Commission and has wide support from industry and government.

...

One of the difficulties in enforcing road transport laws is gathering evidence of breaches. Another common difficulty is ascertaining who is responsible for the management of a particular vehicle or transport business. Under this bill inspectors will have the power to direct a person associated with road transport to provide documents and other items relating to heavy vehicle compliance. They may also require a driver or other responsible person to provide reasonable assistance to the inspector and to state the person’s name, home address and business address. If requested, the person will also be required to provide similar details regarding any other person who is associated with the vehicle or its load and to give information to help identify who was the driver.

The bill also clarifies the scope of existing inspection powers that may be used in relation to heavy vehicles ... .

The chain-of-responsibility laws are designed to sheet home responsibility for breaches of road safety laws to all parties in the transport chain who contribute to those breaches through their acts or omissions. However, if the enforcement of these laws is to be effective, improved inspection and search powers are needed. This bill will provide those powers. At the same time, the bill contains appropriate protections and safeguards for people and businesses affected by chain-of-responsibility investigations.”^[84]

(Emphasis added).

118 The Explanatory Memorandum stated:

“The reason why sections 138 (2) to 135 (5) only apply to natural persons is that it is already a principle of the common law that the privilege against self-incrimination does not apply to bodies corporate (Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 477).”^[85]

(Emphasis added).

2006 amendments to the Road Safety Act 1986

119 A number of significant amendments were made to the RSA in 2006.[86] Section 60(1) was retained, but to overcome an apparent “casus omissus”, it was modified and new subsections were added. These amendments are relevant to the present appeal. The 2006 amendments also introduced Part 6AA, designed to create “operator onus” provisions in place of the previous “owner onus” provisions. The new “operator onus” regime introduced in proposed Part 6AA replaced the original regime contained in s66, which rendered owners responsible for certain offences under the RSA unless they nominated the driver responsible. When the Bill was introduced, the Explanatory Memorandum made its purpose clear:

“PART 5--OPERATOR ONUS AMENDMENTS

The main purpose of Part 5 is to establish a new ‘operator onus’ enforcement system in respect of certain traffic, parking and tolling offences, which will replace the existing ‘owner onus’ systems. The new system will determine who is held responsible where the identity of the offender is not established at the time the offence is detected.

...

What is the existing system?

The new ‘operator onus’ system will replace three existing ‘owner onus’ systems in existing legislation and establish one consistent system for dealing with such offences under a new Part 6AA to be inserted into the Road Safety Act 1986. The existing owner onus provisions that will be replaced are--

• traffic offences detected by automatic detection devices and processes, such as speed and red light cameras--currently dealt with under section 66 of the Road Safety Act 1986;
• parking offences--currently dealt with under section 86 of the Road Safety Act 1986;
• tolling offences on the Melbourne City Link--currently dealt with under sections 80 and 87 of the Melbourne City Link Act 1995.

The common element in all three is that the identity of the offender is not established at the time an offence is detected. For example:

• ...
• In the case of a speed or red light offence, if a Police officer sees the offence being committed, the officer can intercept the driver, establish his or her identity and issue an infringement notice or summons to the offender. However, if the offence is detected by the traffic camera, the identity of the offender is not known.

...

In each of these cases, successful enforcement action depends, in the first instance, on the use of vehicle registration records to establish the identity of the person registered as the operator of the vehicle and, if necessary, by the registered operator subsequently identifying the driver.

The three existing owner onus regimes are very similar in operation.

They are based on the principle that the registered operator has an obligation to ensure that his or her vehicle is operated responsibly and in accordance with the law. Accordingly, when an offence involving the use of the car is detected and the identity of the person who committed it is not established, the registered operator is held liable for the offence as if he or she were the driver unless they nominate the actual driver. There are exceptions where it can be shown that the vehicle was stolen, or that the identity of the driver cannot be ascertained for a good reason.

What are the difficulties with the existing system?

Serious difficulties have been encountered in enforcing the current owner onus laws.

First, only the registered operator is required to identify the actual driver, if able to do so. The registered operator may nominate the person last known to have had the vehicle on the assumption that that person was the driver. If that person was not the driver, they may nominate another person as driver but are not required to do so. Persons further down the chain of control may avoid liability by establishing that they themselves were not the driver without the need to make a further nomination, even if they know the identity of the actual driver. If this happens, the offender may escape liability. Given the complexity of modern fleet management and vehicle leasing practices, it is increasingly common to find possession and control being passed from person to person so that the registered operator may not know, and not be able to establish, the identity of the actual driver on any particular occasion. Examples:

• A vehicle has changed hands by sale or repossession but the acquirer has not notified the registration authorities.
• A vehicle is leased or rented and the owner knows the identity of the person or company that hired it, but not who was driving it. This is a particular problem where possession has been passed to a company, because a company cannot be a ‘driver’.
• A company car is made available for the personal use of an employee as a condition of employment.

Another cause of enforcement failure is that the registered operator may technically comply with the requirement to provide a name and address without providing enough information to enable that person to be identified with sufficient certainty for enforcement purposes. The name and address details of the person nominated may be incomplete or out of date, or may be insufficient to distinguish the person nominated from another person who has a similar name. Or the details may be simply incorrect. In this way, a registered operator may avoid responsibility without having effectively identified the person who was responsible for the offence.

How is the proposed operator onus system intended to work?

The Bill extends the existing ‘owner onus’ principle down the chain of control, so that each person to whom control of the vehicle is passed will be held responsible for the offence unless they identify another person to whom they had passed control, and so on until the actual offender is ultimately identified. This system will be known as ‘operator onus’.

As with the existing ‘owner onus’ system, a person may avoid liability under operator onus by demonstrating that the vehicle was stolen, or that the next person in the chain of control cannot be identified for a legitimate reason.

The system will allow a person who receives an infringement notice to make one of 5 kinds of statements to avoid liability--

• ... .

To be effective, nominations have to meet certain requirements, such as containing sufficient information to identify and locate a nominated person.

If a statement is not accepted as effective by the Police officer or other enforcement official, the person will have an opportunity to defend the matter in Court on the basis that the statement ought to have been accepted.

At each stage, once it is established that a person had acquired possession or control of the vehicle prior to the offence, then that person will be assumed to have been the driver and responsible for the offence. However, that person may, in turn, shift the onus to another person by making a statement nominating the person to whom they passed the vehicle. A chain of such nominations may be made until a responsible person is identified or until it is established that, for some adequate reason, the identity of the person ultimately responsible cannot be identified.”^[87]

(Emphasis added).

120 As can be seen, operator onus obligations reflect the more general purpose of the Act to ensure that those persons who are responsible for relevant breaches of the Act are held to account for those breaches.

121 Regarding s60, similar deficiencies in the driver identification provision were noted by Parliament. Hence s60(1) was modified and new subsections were inserted. I have earlier set out the whole of s60 as it applied at the time of the offence, but for convenience, I shall set it out again and then refer to the relevant extrinsic material:

“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.

... .”

122 The Explanatory Memorandum for the amending legislation states:

“Clause 21 amends section 60 of the Road Safety Act 1986, which deals with the duties of the owners of motor vehicles to give information about the driver of the motor vehicle.

Sub-clause (1) amends section 60(1) so that the duty that a Clause (sic) vehicle owner currently has to assist Police in identifying the driver of a vehicle will also be imposed on persons who have been nominated as a ‘responsible person’ in relation to a vehicle under the proposed Part 6AA. The nomination processes under the proposed operator onus arrangements may indicate that possession or control of a particular vehicle had been passed to a person (whether an individual or a corporation) prior to the time of an offence involving the use of that vehicle. In this situation, the person to whom possession or control of the vehicle was passed may be required to assist Police in identifying the driver at a particular time.

This will assist Police in the prosecution of offences to which operator onus applies (such as offences detected by traffic cameras). It may also assist in the investigation of other matters, such as identifying the driver involved in a ‘hit and run’ accident. Currently, only the ‘owner’ of the vehicle is required to provide such assistance, but if control of the vehicle had been passed to another person some time before the accident then the owner may be able to provide little or no relevant information. Under the amendments, the person who has been nominated under operator onus as the person to whom possession or control of the vehicle had been passed will also be required to assist Police.

Sub-clause (2) inserts a new sub-section (1A) into section 60 of the Road Safety Act 1986, which will define ‘a relevant nominated person’ for the purposes of the amended section 60(1). A relevant nominated person is a person who has been nominated under a "sold vehicle statement" or ‘known user statement’ under the new Part 6AA. It should be noted that, although the definition refers to a person who has been nominated at the time of an offence, the purposes for which the information may be sought or used are not limited to that offence.

Sub-clause (3) inserts new sub-sections (1B) and (1C) into section 60 of the Road Safety Act 1986.

Under new sub-section (1B), if a Police officer believes on reasonable grounds that a person may have had possession or control of a vehicle at a relevant time, the Police officer may require the person to provide any information that it is within their power to give which may lead to the identification of the driver (or person in charge) of the vehicle at a particular time.

For example, say a hit and run accident has occurred and a witness recorded the vehicle’s registration number, and that the vehicle is registered in the name of a company. Under the current section 60, only that company would be under a duty to provide information to Police. Under the amendments, however, if the company had provided the vehicle to an employee for his or her personal (sic), a Police officer could, on the basis of information provided by the company, form a reasonable belief that the employee may have had possession or control of the vehicle prior to the offence. On this basis, the Police officer could require that employee to provide information that would assist in identifying the driver at the time of the hit and run accident, and the employee would be under a duty to provide any information that was in his or her power to give. And if the employee indicates that the vehicle had been passed to another person, then the Police officer could seek information from that person, and so on.

New sub-section (1C) will make it an offence to fail, without a reasonable excuse, to comply with a requirement made in accordance with new sub-section (1B) to provide information to Police to assist in the identification of a driver or person in charge of a vehicle.

Sub-clause (4) inserts new sub-sections (4) to (7) into section 60 of the Road Safety Act 1986.

New sub-section (4) allows a Police (sic) to require information from a person under section 60 either orally or in writing. New sub-sections (5) to (6) deal with the service of written notices by post and establish similar rules to those applying to the service of infringement notices by post under the Infringements Act 2006. It is envisaged that, where a traffic offence is detected by a traffic safety camera and the registered operator of the vehicle is a company or other organisation rather than an individual, the Police Traffic Camera Office would usually issue a written notice requiring that operator to identify the responsible person. This will assist in identifying the person responsible for the offence and holding them accountable including, where applicable, through the imposition of demerit points. Under the Road Safety (General) Regulations 1999, an infringement penalty of 6 penalty units applies to a company which does not provide information in accordance with section 60 when required.” ^[88]

(Emphasis added).

123 Nowhere in the extrinsic material is there to be found any express or implied purpose for the amendment to s60(1) to justify the broad interpretation urged upon me on behalf of the respondent. To the contrary, the amendment seeks to facilitate the identification and prosecution of drivers for relevant road or traffic related offences, particularly in cases of “hit and run”.

2010 amendments to the Road Safety Act 1986

124 In 2010, the RSA was further amended to confer additional powers on police to enable seizure, impoundment, forfeiture or immobilisation of certain vehicles. The powers so conferred were limited to specified purposes in connection with the Act:

“84GB Direction to provide location of motor vehicle

(1) For the sole purpose of locating a motor vehicle to be seized under this Part, a member of the police force may direct a person to provide information concerning the location of that motor vehicle if¾

(a) the person is of or over the age of 18 years; and

(b) both the person and the member of the police force are present at the garage address of the motor vehicle or at premises where the member reasonably believes that the motor vehicle is present (either at that time or from time to time).

(2) A person of or over the age of 18 years must not¾

(a) knowing the location of the motor vehicle referred to in a direction under subsection (1), fail to comply with the direction; or

(b) in purported compliance with a direction under subsection (1), give information that the person knows to be false or misleading in a material particular.

Penalty: 5 penalty units.

(3) A person is not excused from complying with a direction given under subsection (1) on the ground that complying with the direction may result in information being provided that¾

(a) might incriminate the person; or

(b) may make the person liable to a penalty.

(4) Any information, document or other thing obtained as a direct or indirect consequence of a person complying with a direction given under subsection (1) is admissible in evidence against the person in¾

(a) a proceeding for making a false or misleading statement; or

(b) any proceeding under this section¾

but is not otherwise admissible in evidence against that person.”

(Emphasis added).

125 The Explanatory Memorandum regarding s84GA and s84GB stated:

“... New section 84GA provides members of the police force with additional search powers. A member of the police force may, for the purpose of seizing a motor vehicle so that it can be impounded, immobilised or forfeited, without consent and without warrant, enter and search the garage address for that motor vehicle and any other land or premises where the member reasonably believes that the motor vehicle is present. This search power is subject to the limitations set out in new section 84GA(3).

New section 84GB provides members of the police force with the power, for the sole purpose of locating a motor vehicle so that it can be impounded, immobilised or forfeited, to direct an adult person to provide information concerning the location of that motor vehicle. It will be an offence to fail to comply with such a direction if the subject of the direction knows the location of the motor vehicle. It will also be an offence to respond to such a direction with information that the subject knows to be false or misleading in a material particular.

A person subject to a direction under this provision is not excused from complying with it by the privilege against self-incrimination. Any information, document or other thing obtained as a consequence of a person complying with a direction under this provision is inadmissible in evidence against the person except in proceedings under this provision or proceedings for making a false or misleading statement.”^[89]

(Emphasis added).

126 In the Second Reading Speech, the Minister responsible stated:

“In recent years, the police have encountered attempts by persons to conceal the location of vehicles to prevent them from being impounded, immobilised or forfeited to the Crown. Such behaviour threatens to frustrate the operation of the scheme and also threatens the important road safety outcomes that the scheme provides. The bill therefore provides police with limited powers to question adult persons as to the whereabouts of a vehicle for the specific purpose of locating a vehicle of interest so that it can be impounded, immobilised or forfeited to the Crown.

The information provided by questioned persons will be kept in the strictest confidence and protections will be enshrined in the legislation to ensure that the information provided during police questioning cannot be used to the detriment of the questioned person in any civil or criminal proceedings (except where the person has provided false or materially misleading information). This reform will allow the police to do their work more effectively and help to prevent persons from thwarting the law by actively concealing the location of vehicles or refusing to cooperate with the police.”^[90]

(Emphasis added).

The Road Safety Act 1986 as in force at the date of the offence^[91]

127 By September 2013, the RSA had grown to a length of some 1,046 pages. The “Table of Provisions” alone was more than twice the length of the original Act that had been introduced more than a hundred years before. Yet in these more than one thousand pages, there is no express legislative purpose to lend support to the interpretation of s60(1) advanced by the respondent.

128 Apart from a few modifications,[92] the substance of s60(1) is essentially the same as s17(1) of the Motor Car Act 1930.[93] It would appear that over the years, the 1930 version was merely modified and inserted into the new Act. As mentioned earlier, the purpose of the original section was established long ago, yet never since then has any new parliamentary intent or purpose to s60(1) been evinced to displace it.

129 Section 60 appears in Part 6 “Offences and legal proceedings” (sections 59 – 84BAA).

130 Section 59 imposes a “general duty” upon a driver or person in charge of a motor vehicle:

“Part 6—OFFENCES AND LEGAL PROCEEDINGS

59 General duty of driver or person in charge of motor vehicle

(1) The driver or person in charge of a motor vehicle on a highway has the following duties¾

(a) to stop the motor vehicle, produce for inspection his or her driver licence document or learner permit document and state his or her name and address if requested or signalled to do so by¾

(i) a member of the police force or an officer of the Corporation or of the Department of Transport (being an officer authorised in writing by the Corporation or the Secretary of the Department of Transport, as the case requires, in that behalf); or

(ii) an officer of or person authorised in writing in that behalf by any municipal council who has reasonable grounds for believing that any provision of the regulations relating to the mass or dimensions of a motor vehicle or trailer or to the number of hours during which a person may drive a motor vehicle or to the carrying of a log book on a motor vehicle is being contravened; and

(b) to obey any lawful direction given to him or her by a member of the police force under subsection (5); and

(c) if requested or signalled to do so by a member of the police force or an officer of the Corporation (being an officer authorised in writing by the Corporation in that behalf), to stop the motor vehicle, produce for inspection his or her log book, permit any entry in the log book to be copied and permit the person inspecting it to make any entry in it and to search the motor vehicle if that person has reasonable grounds for suspecting that more than one log book is carried on the vehicle; and

(d) if requested or signalled to do so by a member of the police force or an officer of the Corporation (being an officer authorised in writing by the Corporation in that behalf) or by an officer of or person authorised in writing in that behalf by any municipal council, to stop the motor vehicle and allow it together with its load and any trailer attached to the motor vehicle and the load of the trailer (whether those loads are goods or passengers or both) to be weighed or to be taken to be weighed at a weighbridge or weighing machine that is agreed on by the driver or person in charge of the motor vehicle and the person making the request or, if there is no agreement, at the weighbridge or weighing machine that is nominated by the person making the request.

(1A) The driver or person in charge of a motor vehicle that is in, or being driven from or into, a railway car park or municipal council controlled car park at or in the vicinity of a designated place has the following duties¾

(a) to stop the motor vehicle, produce for inspection his or her driver licence document or learner permit document and state his or her name and address if requested or signalled to do so by a protective services officer; and

(b) to obey any lawful direction given to him or her by a protective services officer under subsection (5A).

(2) Subject to subsections (3) and (4), a person who fails to do anything that he or she is required to do under subsection (1) or (1A), or who when required to state his or her name and address states a false name or address, is guilty of an offence and liable¾

(a) if the offence consists of failing to obey any lawful direction given by a member of the police force or a protective services officer or failing to produce for inspection his or her driver licence document or learner permit document, to a penalty of not more than 5 penalty units;

(b) if the offence consists of failing to produce for inspection his or her log book or failing to state his or her name or address or stating a false name or address or failing to permit an entry in his or her log book to be copied or failing to permit an entry to be made in his or her log book or failing to permit his or her vehicle to be searched for another log book, to a penalty of not more than 5 penalty units or imprisonment for a term of not more than 1 month;

(c) if the offence consists of failing to stop the motor vehicle or failing to allow it together with its load to be weighed, to a penalty, in the case of a first offence, of not more than 10 penalty units or, in the case of a subsequent offence, of not more than 20 penalty units or imprisonment for a term of not more than 4 months.

(3) A person, other than a person who holds a probationary driver licence or who is driving or in charge of a large vehicle in respect of which section 19(5) applies or who has been issued with a driver licence under an order of the Magistrates' Court made on an application for a licence eligibility order, who fails to produce for inspection his or her driver licence document or learner permit document is not guilty of an offence if that person¾

(a) gives a reasonable excuse for the failure; and

(b) provides a specimen of his or her signature; and

(c) within 7 days produces his or her driver licence document or learner permit document at the police station (if any) specified by the member of the police force or other person who requested its production.

(4) A driver or person in charge of a motor vehicle who fails to stop when required to do so in accordance with subsection (1)(a) or (1A)(a) is not guilty of an offence if¾

(a) the person making the request or signal is not in uniform; and

(b) the driver or person in charge believed that that person was not¾

(i) a member of the police force, a protective services officer or an authorised officer of the Corporation or of the Department of Transport, as the case requires; or

(ii) an officer of or person authorised in writing in that behalf by a municipal council.

(5) A member of the police force may give such reasonable directions to a person driving or in charge of a motor vehicle on a highway as are, in the opinion of that member, necessary¾

(a) for carrying into execution the provisions of this Act or the regulations; or

(b) for the purposes of any traffic survey being carried out in the vicinity of the highway.

(5A) A protective services officer may give to a person driving or in charge of a motor vehicle that is in, or being driven from or into, a railway car park or municipal council controlled car park at or in the vicinity of a designated place such reasonable directions as are, in the opinion of the officer, necessary for carrying into execution the provisions of this Act or the regulations.

(6) If a driver or person in charge of a motor vehicle who is requested under subsection (1)(d) to allow his or her motor vehicle together with its load to be weighed fails to allow it to be so weighed, the person making the request may impound the vehicle and its load, together with any trailer attached to the vehicle and the load of the trailer, and may cause the vehicle to be driven or towed onto a weighing device or to a weighbridge or weighing machine that is agreed on by the driver or person in charge and the person making the request or, if there is no agreement, to the weighbridge or weighing machine that is nominated by the person making the request, to be weighed.

(7) If a motor vehicle that is used on a highway and its load, together with any trailer attached to the motor vehicle and the load of the trailer, exceeds the prescribed maximum weight or any prescribed maximum dimension, a member of the police force or an officer of the Corporation (being an officer authorised in writing by the Corporation in that behalf) may require the driver or person in charge of the motor vehicle to unload any part of the load that is necessary to bring the motor vehicle, trailer or load within the prescribed maximum weight or dimension.

(8) If a driver or person in charge of a motor vehicle fails to comply with a requirement under subsection (7) to unload¾

(a) the driver or person in charge is guilty of an offence and is liable for a first offence to a penalty of not more than 5 penalty units and for a subsequent offence to a penalty of not more than 10 penalty units; and

(b) the person making the requirement may drive the motor vehicle and the trailer, if any, to a police station or other convenient place and the vehicle, trailer and load may be impounded there by any member of the police force.

(9) A reference in this section to a driver licence document or learner permit document includes a reference to any other document which evidences the authorisation of the driver to drive the motor vehicle.

(10) Neither the Crown nor the person making a request under subsection (1)(d) or a requirement under subsection (7) nor any other person is liable for any loss or damage occasioned by or arising out of anything done in the exercise or purported exercise in good faith of the powers conferred by this section.”

(Emphasis added).

131 Section 60A mirrors, with necessary modification, s60 to impose a duty on the owner of a trailer to give information. Also note the inclusion of the requirement that the police member must be acting in the execution of duty in s60A(1B).

132 Of significance, s61 and s61A impose a duty on a driver when there has been an accident:

“61 Duty of driver etc. of motor vehicle if accident occurs

(1) If owing to the presence of a motor vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the motor vehicle¾

(a) must immediately stop the motor vehicle; and

(b) must immediately render such assistance as he or she can; and

(c) must at the scene of the accident as soon as possible give his or her name and address and also the name and address of the owner of the motor vehicle and the identifying number of the motor vehicle¾

(i) to any person who has been injured or to the owner of any property which has been damaged or destroyed; or

(ii) to a person representing the injured person or the owner of the property; and

(d) must at the scene of the accident as soon as possible give those names and addresses to any member of the police force who is present; and

(e) if any person is injured and no member of the police force is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station; and

(f) if any property is damaged or destroyed and neither the owner of the property nor any person representing the owner nor any member of the police force is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station.

(2) If a motor vehicle which has been left standing on a highway moves of its own accord from the position in which it was left and is involved in an accident whereby any person is injured or any property (including any animal) is damaged or destroyed, the person who left the motor vehicle so standing must as soon as possible after becoming aware of the accident comply as far as the circumstances permit with the requirements of subsection (1).

(3) If¾

(a) as a result of an accident involving a motor vehicle a person is killed or suffers serious injury; and

(b) the driver of the motor vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the motor vehicle does not comply with the requirements of paragraph (a) or (b) of subsection (1) in relation to the accident¾

the driver is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum).

(4) If¾

(a) as a result of the accident a person is killed or suffers serious injury then a person who contravenes paragraph (c), (d) or (e) of subsection (1) is guilty of an offence; or

(b) as a result of the accident a person is otherwise injured then a person who contravenes any provision of this section is guilty of an offence¾

and liable for a first offence to a penalty of not more than 80 penalty units or to imprisonment for a term of not more than 8 months and for a subsequent offence to a penalty of not more than 240 penalty units or to imprisonment for a term of not less than 4 months and not more than 2 years.

(5) If no person is killed or suffers injury as a result of the accident then a person who contravenes any provision of this section is guilty of an offence and liable for a first offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not more than 14 days and for a subsequent offence to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than 1 month.

(6) On conviction of a person for, or finding a person guilty of, an offence against this section, if a person is killed or suffers serious injury as a result of the accident, the court must cancel all driver licences and permits held by the convicted person and, whether or not that person holds a driver licence, disqualify him or her from obtaining one for¾

(a) in the case of a first offence, at least 4 years if a conviction is recorded and at least 2 years in any other case; and

(b) in the case of a subsequent offence, at least 8 years if a conviction is recorded and at least 4 years in any other case.

(7) If a person who is convicted or found guilty of an offence against any provision of this section has at any time been convicted or found guilty of an offence against another provision of this section or any previous enactment corresponding to any of those provisions, the conviction for, or finding of guilt of, the offence against that provision is to be taken to be a conviction for, or finding of guilt of, a subsequent offence.

(8) The specifying by subsection (3) of fault elements for an offence against that subsection is not intended to affect the question of whether fault elements are required for any other offence against this section or any other provision of this Act.

61A Duty of driver etc. of vehicle that is not a motor vehicle if accident occurs

(1) If owing to the presence of a specified vehicle an accident occurs whereby any person is injured or any property (including any animal) is damaged or destroyed, the driver of the vehicle¾

(a) must immediately stop the vehicle; and

(b) must immediately render such assistance as he or she can; and

(c) must at the scene of the accident as soon as possible give his or her name and address and also the name and address of the owner of the vehicle and the identifying number of the vehicle (if any)¾

(i) to any person who has been injured or to the owner of any property which has been damaged or destroyed; or

(ii) to a person representing the injured person or the owner of the property; and

(d) must at the scene of the accident as soon as possible give those names and addresses to any member of the police force who is present; and

(e) if any person is injured and no member of the police force is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station; and

(f) if any property is damaged or destroyed and neither the owner of the property nor any person representing the owner nor any member of the police force is present at the scene of the accident, must as soon as possible report in person full particulars of the accident at the police station that is most accessible from the scene of the accident if that station is open and, if it is not open, at the next most accessible station.

(2) If a specified vehicle, which has been left standing on a highway, moves of its own accord from the position in which it was left and is involved in an accident whereby any person is injured or any property (including any animal) is damaged or destroyed, the person who left the vehicle so standing must as soon as possible after becoming aware of the accident comply as far as the circumstances permit with the requirements of subsection (1).

(3) If¾

(a) as a result of an accident involving a specified vehicle a person is killed or suffers serious injury; and

(b) the driver of the vehicle knows or ought reasonably to have known that the accident had occurred and had resulted in a person being killed or suffering serious injury; and

(c) the driver of the vehicle does not comply with the requirements of subsection (1)(a) or (1)(b) in relation to the accident¾

the driver is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum).

(4) If¾

(a) as a result of the accident a person is killed or suffers serious injury then a person who contravenes subsection (1)(c), (1)(d) or (1)(e) is guilty of an offence; or

(b) as a result of the accident a person is otherwise injured then a person who contravenes any provision of this section is guilty of an offence¾

and liable for a first offence to a penalty of not more than 40 penalty units or to imprisonment for a term of not more than 4 months and for a subsequent offence to a penalty of not more than 120 penalty units or to imprisonment for a term of not less than 2 months and not more than 1 year.

(5) If no person is killed or suffers injury as a result of the accident then a person who contravenes any provision of this section is guilty of an offence and liable for a first offence to a penalty of not more than 2·5 penalty units or to imprisonment for a term of not more than 7 days and for a subsequent offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not less than 7 days and not more than 14 days.

(6) If a person who is convicted or found guilty of an offence against any provision of this section has at any time been convicted or found guilty of an offence against another provision of this section or any previous enactment corresponding to any of those provisions, the conviction for, or finding of guilt of, the offence against that provision is to be taken to be a conviction for, or finding of guilt of, a subsequent offence.

(7) The specifying by subsection (3) of fault elements for an offence against that subsection is not intended to affect the question of whether fault elements are required for any other offence against this section or any other provision of this Act.

(8) In this section, specified vehicle means a vehicle that is not—

(a) a motor vehicle; or

(b) a non-motorised wheel-chair; or

(c) a motorised wheel-chair that is not capable of a speed of more than 10km per hour.”

133 Section 62 confers power on members of the police and protective services officers on duty at a designated place to prevent certain persons from driving in limited circumstances:

“62 Power to prevent driving by incapable persons

(1) A member of the police force, or a protective services officer on duty at a designated place, who is of the opinion on reasonable grounds that a person, driving or about to drive a motor vehicle, is by reason of his or her physical or mental condition incapable of having proper control of the motor vehicle may do all or any of the following things, namely¾

(a) forbid that person to drive the motor vehicle while so incapable;

(b) require that person to deliver up forthwith all ignition or other keys of the motor vehicle in his or her actual possession;

(c) take such other steps as may in the opinion of the member or officer be necessary to render the motor vehicle immobile or to remove it to a place of safety.

(1A) ... .

(2) Nothing in subsection (1) authorises the detention of any keys or the immobilization or detention of any motor vehicle for any longer period than is necessary in all the circumstances of the case in the interest of the person driving or about to drive it or of any other person or of the public.

(3) Subject to subsection (4), a person who contravenes any prohibition or requirement made by a member of the police force or a protective services officer under subsection (1) or in any manner attempts to obstruct any member of the police force or any protective services officer in the exercise of any power conferred on that member or officer by this section is guilty of an offence and liable for a first offence to a penalty of not more than 5 penalty units and for any subsequent offence to a penalty of not more than 8 penalty units or to imprisonment for a term of not more than 1 month.

(4) A court may only find a person guilty of an offence under subsection (3) if the court is satisfied that the member of the police force or the protective services officer had reasonable grounds for believing that in all the circumstances of the case the action taken by him or her under subsection (1) was necessary in the interest of that person or of any other person or of the public.”

(Emphasis added).

134 Section 63 confers power on members of the police force “for the purpose of establishing the identity of the driver of a motor vehicle or arresting a person or carrying out the provisions of sections 53, 54, 55 or 55A” to enter a motor vehicle, if necessary using reasonable force if the driver refuses or fails to obey any lawful direction given.

135 Section 63A confers power on members of the police force to remove vehicles obstructing rights-of-way, passages or private drives in limited circumstances. To give effect to this provision, incidental power is conferred on members of the police to enter the vehicle, with force if necessary.

136 Section 64 reflects and expands s10 in the Motor Car Act 1909:

“64 Dangerous driving

(1) A person must not drive a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case.

(2) A person who contravenes subsection (1) is guilty of an offence ...

(2A) A person must not drive a vehicle, other than a motor vehicle, at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case.

...

(3) If on a prosecution for an offence under this section the court is not satisfied that the accused is guilty of that offence but is satisfied that the accused is guilty of an offence against section 65, the court may convict the accused of an offence against section 65 and punish the accused accordingly.

... .”

137 Section 64A created the offence of driving a motor vehicle contrary to a direction to stop.

138 Section 65 created the offence of careless driving:

“65 Careless driving

(1) A person who drives a motor vehicle on a highway carelessly is guilty of an offence and liable for a first offence to a penalty of not more than 12 penalty units and for a subsequent offence to a penalty of not more than 25 penalty units.

(2) A person must not drive a vehicle, other than a motor vehicle, on a highway carelessly.

... .”

139 Section 65A dealt with improper use of a motor vehicle in such a manner as to cause loss of traction by any one or more of the vehicle’s wheels.

140 Section 65B prohibited drivers of heavy vehicles exceeding any speed limit by 35 kilometres an hour or more.

141 Section 66 dealt with “operator onus offences”:

“66 Certain prescribed offences to be operator onus offences

A prescribed offence that is detected by a prescribed road safety camera or by a prescribed process or the detection of which involves the use of a prescribed road safety camera is an operator onus offence for the purposes of Part 6AA.”

142 Section 68 created the offence of using a motor vehicle in a race or speed trial.

143 Section 68B dealt with the offence of deliberately or recklessly entering a level crossing when a train or tram is approaching, and like offences.

144 Significantly, s76 conferred power on members of the police to arrest certain persons without warrant:

“76 Arrest without warrant

(1) A member of the police force may arrest without warrant any person who within his or her view commits an offence against any regulation made under clauses 42 to 49 in Schedule 2 and who on being requested to give his or her name and address refuses or fails to do so or gives a name or address which the member of the police force reasonably suspects to be false.

(2) If a person who is arrested for an offence under this Act was in charge of a motor vehicle, any member of the police force may drive or convey the motor vehicle to a police station and keep it there pending the admission of the arrested person to bail or, if that person is not the owner of the motor vehicle, pending a demand for the vehicle by its owner.”

(Emphasis added).

145 Sections 78 to 84B cover facilitation of proof of certain evidentiary matters.

146 There are other duties and offences created in other parts of the RSA; too many to mention here, other than to note that the powers conferred are generally limited to achieve the purposes of the Part or Division in which they appear or for enforcement or compliance purposes associated with same.[94]

Conclusions about legislative purpose and intent

147 The context in which s60(1) of the RSA is set cannot be ignored. If a driver has breached any of the duties imposed by virtue of the relevant Part referred to above, it stands to reason that the driver should be held accountable for such breach. In the event that the driver has not been identified, it is logical that s60 would be available to assist in achieving that purpose.

148 Examination of the history of s60(1) of the RSA and of the evolution of the various Motor Car and Road Safety Acts demonstrates that more than one hundred years ago, Parliament sought to ensure that our roads were safe for all who used them. It sought to regulate the use of motor vehicles and to ensure that those drivers who committed driving-related offences were accountable for their breaches. In order to achieve this result, as early as 1909, owners of cars were obliged to identify drivers who had committed the offence created by s10(1) of the Act.

149 The phrase “a member of the police force acting the execution of his duty” first appeared in the 1930 Act, but context admits of the requirement for a nexus to a driving-related offence. Every other relevant duty conferred on members of the police under the various enactments was linked or incidental to an express statutory purpose.

150 By 1986, when the RSA was introduced, the legislation expressed its purposes. A phrase similar in terms to the 1930 phrase “a member of the police force acting in the execution of his duty” found its way into the new Act – “a member of the police force who is acting in the execution of duty”. No new legislative purpose or intent was expressed or implied from what was essentially the same provision as that found in s17 of the 1930 Act. The only relevant amendments later made to s60 of the RSA tend to confirm, in my view, that the purpose of that section and of Part 6AA, introduced at the same time, was to hold drivers who had committed relevant driving-related offences accountable for their crimes. Furnishing information required by police under those provisions was, in my judgment, designed to achieve that purpose.

151 As with previous legislation, every other duty conferred on police by the RSA was connected to a specific purpose under the Act. Where Parliament sought to interfere with a common law right, it did so expressly, and then only modifying the right to the extent necessary to give effect to an express purpose under the RSA.

152 Having regard to the history of the legislation, parliamentary intent and purpose as gleaned from extrinsic materials dating back to 1909, and applying s35 of the Interpretation of Legislation Act, the respondent’s proposed interpretation does not, in my judgment, promote any identified purpose or object underlying the RSA. On the other hand, I consider the interpretation advanced by Mr Tatti does promote the purpose or object of the provision, the Part and the whole of the RSA.

(4) The principle of legality

153 The principle of legality is of considerable importance in the present appeal. Earlier, I described the circumstances in which the request under cover of s60(1) of the RSA was made. I pointed out that it was not in controversy that the informant issued the request for the sole purpose of furthering his investigation into the appellant’s suspected involvement in the thefts. The appellant had exercised his right to remain silent, but the informant was determined to force a response. The informant refused to respect that fundamental right, instead preferring to pursue a course calculated to extract an admission.

154 It is inherent in the respondent’s argument that in the unique circumstances that have arisen in this case, the right to silence has been abrogated, or at least modified by s60(1) of the RSA. For this argument to succeed, a legislative intention to abrogate or modify that right when an accused is questioned about thefts and not about a driving offence must be manifest. Taking into account the matters already referred to, I find no such legislative intent. To the contrary, because Parliament specifically turned its mind to the right of an individual not to incriminate himself or herself for the purposes of two provisions in the Act, namely s84GB and s138, it could not be said in the absence of clear and unambiguous language, that such a modification or abrogation should be implied in s60(1). I consider it inherently unlikely that so significant an abrogation of or modification to Part III, Subdivision 30A of the Crimes Act would be buried in the RSA in such an obscure way.

(5) Reading words into a statute to give effect to legislative purpose

155 I shall now turn to the four prerequisites that must be established before a court may read words into a statute.

(i) What was the mischief that it was the purpose of the Act to remedy?

156 I have examined the provisions of the RSA and paid regard to extrinsic materials dating back over one hundred years in order to determine the legislative purpose of the section, Part and the whole of the Act.

157 Holding drivers responsible for offences they have committed under the RSA was a significant mischief that the RSA was seeking to remedy. In particular, “hit and run” collisions was a problem that s60 sought to address. Kymantas v The County Court of Victoria and Samantha Jane Jennings[95] involved a “hit and run” where a pedestrian had been struck by a car that was driven erratically. The driver performed “burnouts” in the middle of the Geelong Mall. The vehicle braked suddenly and heavily, then skidded into the pedestrian. The driver fled the scene. The owner of the car was not the driver on the occasion of driving. Under s60(1), a member of police required the owner to provide information about the identity of the driver. The owner’s responses were tantamount to a failure or refusal to provide the information. Eames J identified the mischief that s60(1) sought to address. His Honour observed the legislative purpose of s60(1):

“[30] In my opinion, her Honour was plainly right to regard the ‘occasion’ inquired of pursuant to s. 60(1) as being the occasion of the incident in which a pedestrian had been injured on 24^th September 1999. Whether that occasion happened at noon or 1.30 pm on that day was a mere detail which might or might not raise a reasonable doubt, in the circumstances of a given case, as to whether the owner had failed to comply with the request made of him or her. 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. To give the section the interpretation for which counsel contends would be artificial in the extreme. That is not to say that the manner in which the request is couched is unimportant. It may be couched in a way which causes there to be reasonable doubt as to whether the owner committed an offence by failing to respond to the request. The occasion, in this case, was properly identified by the learned Judge, however, as being the occasion of the incident in Geelong Mall on 24^th September 1999. Just as was the case in Loges v Martin, the question whether the vehicle had been driven on that occasion was one of fact. The inquiry in Loges v Martin was about an occasion which had occurred within a period of some hours on a given date when an accident occurred; the magistrate had a reasonable doubt as to that, in that case.”

(Emphasis added).

(ii) Has an eventuality that was required to be dealt with if the purpose of the Act was to be achieved been inadvertently overlooked?

158 As mentioned earlier, save for s84GB and s138, no express or implied purpose can be found in the RSA to justify an implied conferral of power on police to either circumvent the provisions of Part III, Subdivision 30A of the Crimes Act, or to abrogate or modify an accused person’s fundamental right to remain silent when questioned about an offence unconnected to driving. Nor have counsel been able to point to any case in which curial approval was given to the invocation of s60(1) to achieve such a purpose. I have also been unable to find any authority that justifies such a proposition.

159 It is understandable that Parliament did not foresee the eventuality that arose in this isolated and somewhat unusual case. Such a perverse use of a provision like this had never arisen, apparently, in more than one hundred years in the history of Victorian motor traffic law. It would appear that it has never occurred to any other responsible member of police to invoke s60(1) for a purpose unconnected with the RSA. Every authority to which the parties referred concerned cases where police were conducting investigations into driving offences, usually of the “hit and run” variety. Not one case was turned up in which the section or its predecessors was invoked to lawfully further investigations into non-driving-related offences. By inadvertence, when reproducing the essence of s17 of the Motor Car Act 1930 as s60(1) of the RSA, Parliament failed to manifest an intention to limit any power conferred on police to the execution of a duty under the RSA. Had the legislature appreciated the oversight that resulted in the eventuality that occurred in this case, I am convinced the omission would have been remedied by adding words to achieve this purpose.

160 As can be seen from legislation passed in other States and Territories, such an eventuality has been catered for in the respective corresponding Acts:

161 Section 60 of the Road Transport (General) Act 1999 (ACT) is found in Part 4 – Enforcement of Road Transport Legislation, Division 4.1 – Production of licenses and identification of people. Section 60 provides:

“Police officer or authorised person may require people to disclose identity of driver

(1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation—

(a) the responsible person for the vehicle, or the person in possession of the vehicle, must, when required to do so by a police officer or authorised person, give information (which must, if so required, be given in the form of a written statement signed by the person) about the name and home address of the driver at the time of the offence; and

(b) anyone else must, when required to do so by a police officer or authorised person, give any information that the person can give that may lead to the identification of the driver.”

(Emphasis added).

162 Section 177 of the Road Transport Act 2013 (NSW) is found in Part 7.2 “Identity Powers”, and provides:

“177 Requirement for responsible person to disclose driver identity

(1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation:

(a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and

(b) any other person must, if required to do so by an authorised officer, give any information that it is in the person’s power to give and that may lead to the identification of the driver. ... .”

163 Section 40V of the Road Traffic Act 1961 (SA) is found in Part 2, Division 5 – General enforcement powers of authorised officers, Subdivision 5 – Other directions. Section 40V provides:

“40V—Direction to give name and other personal details

(1) In this section¾

‘personal details’, in relation to a person, means¾

(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 suspects on reasonable grounds that a natural person whose personal details are unknown to the officer¾

(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.”

164 Section 53 of the Road Traffic Act 1974 (WA) provides:

“53. Driver failing to give name and address to member of the Police Force, failing to stop etc.

...

(4) Where a member of the Police Force has reasonable grounds for believing that a person has committed an offence against this Act, he may require that person to furnish him with particulars of his name and place of abode, and a person who, when so required, refuses to furnish those particulars or furnishes particulars which are false or untrue in any respect commits an offence.”

(Emphasis added).

165 Section 48 of the Transport Operations (Road Use Management) Act 1995 (Qld) provides:

“48 Power to require name and address

(1) This section applies if¾

(a) an authorised officer finds a person committing an offence against a transport Act; or

(b) an authorised officer finds a person in circumstances that lead, or has information that leads, the officer to reasonably suspect the person has just committed an offence against a transport Act; or

Example of an offence against a transport Act—

an offence against the Queensland Road Rules, section 154(1) or 156(1)

(c) a vehicle is stationary on a road or has been stopped under section 32.

(2) The officer may require the following person to state the person’s name and address¾

(a) for subsection (1)(a) or (b)¾the person mentioned in the relevant paragraph;

(b) for subsection (1)(c)¾the person in control of the vehicle mentioned in the paragraph.

... .”

166 Similarly, s55 of the Police Powers and Responsibility Act 2000 (Qld) provides:

“55 Power to require information about identity of drivers of vehicles etc.

(1) This section applies if a person alleges to a police officer or a police officer reasonably suspects a contravention of the Road Use Management Act or the Heavy Vehicle National Law (Queensland) involving a vehicle or tram has been committed.

(2) A police officer may require any of the following to give to the police officer information that will identify or help identify the person who was in control of the vehicle or tram when the contravention happened—

(a) an owner of the vehicle or tram;

(b) a person in possession of the vehicle or tram;

(c) a person in whose name the vehicle is registered;

(d) a person who may reasonably be expected to be able to give the information.

... .”

(iii) What words would have been inserted had attention been drawn to the omission before the Bill passed into law?

167 In my view, to give effect to its legislative purpose, had attention been drawn to the omission before the Bill passed into law, the words “under this Act” would have been added to the end of the phrase “a member of the police force who is acting in the execution of duty” by the draftsman and approved by Parliament so that the section would provide:

“(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.”

168 It follows that had I been asked, I would have made a similar ruling about the use of the phrase “a member of the police force who is acting in the execution of duty” as contained in s60(1B), s60A(1) and s60(1B).

(iv) Is the modified construction reasonably open?

169 For the reasons explained earlier, not only do I consider the modified construction reasonably open, but I consider it to be the most compelling interpretation available in all the circumstances.

Conclusions

Should words be read into the statute to give effect to legislative purpose?

170 I have endeavoured to explain why I have arrived at the conclusion that, when enacting s60 of the RSA, Parliament did not intend to confer any power on police greater than that which was necessary to execute a duty arising under the RSA. In the circumstances of this case, and in order to give effect to what I have determined to be the purpose of the legislation and of the section in particular, it is necessary to read words in to the provision so as to confine its operation to the execution of a duty performed under the RSA.

171 Section 60(1) should be construed as if the underlined words appearing 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.”

Other factors to be considered

172 In arriving at my interpretation of s60(1) of the RSA, I also considered a number of other factors:

Conferral of power

173 It is trite, but I should mention briefly that police powers derive either from the common law[96] or under statute.

174 The respondent did not rely on any common law power to justify the request. The sole source of power relied upon was s60(1) of the RSA.

175 Section 11 of the Police Regulation Act 1958 provided:[97]

“(1) Subject to this section, every constable shall have such powers and privileges and be liable to all such duties as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Act of Parliament now or hereafter to be in force in Victoria, and any member of the police force of higher rank than a constable shall have all the powers and privileges of a constable whether conferred by this Act or otherwise.”

176 I have earlier referred to s40 of the Interpretation of Legislation Act 1984, which 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 performed—

(a) from time to time as occasion requires;

... .”

177 For the reasons explained above, I consider that in the circumstances of this case, the occasion to require the exercise of the power conferred by s60(1) of the RSA did not arise.

Interpretations of “execution of duty” arising in other circumstances

178 I have mentioned that the phrase “in the execution of duty” is capable of supporting both a broad and narrow interpretation. I have considered a number of authorities that support each such interpretation. I shall refer to some of the cases, to show that the apparently conflicting interpretations of the phrase are reconcilable when one has regard to the legislative purpose of the statute in which the phrase appears.

Broad interpretation is given when legislative purpose is to protect a defined class of persons

179 In cases where the purpose of the legislation is to protect members of the police, emergency workers, or other particular classes of persons from harm while at work doing their job, a broad interpretation of the phrase “in the execution of duty” is favoured. For example a simple assault may be aggravated because the victim is a member of such a class of persons,[98] but the aggravated form of the offence is only committed if the victim is acting in the execution of duty.

180 In R v K,[99] the Federal Court was concerned with the interpretation of s64(1) of the Australian Federal Police Act 1979 (Cth) which made it an offence to assault police (and others) in the execution of duty. The trial judge held that the evidence was incapable of establishing that at the time of the alleged assaults against police, the officers were acting in the execution of their duty, and the accused was acquitted. The Director of Public Prosecutions submitted a question of law for determination by the Federal Court, namely whether the trial judge “was entitled, as a matter of law, to hold that the evidence as it then was before the jury, was not capable of establishing the offences as charged?”[100] In answering this question in the negative, the Court noted:[101]

“The Commonwealth Director of Public Prosecutions referred to other authorities which demonstrate the need to examine what a police officer was actually doing to determine whether he was in the execution of his duty and decide whether such conduct falls within the general scope of any duty imposed by statute or recognised at common law, or outside that general scope of duty. Reference was made to 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; and the Canadian case of R v Westlie [1971] 2 CCC (2d) 315. In the last case, McFarlane JA expressed the view that in order to support a conviction on a charge of obstructing a police officer in the execution of his duty, it is not necessary to show that the officer was at the time of the obstruction engaged in the performance of a specific duty. McFarlane JA cited a number of authorities approved by the Supreme Court of Canada to that effect.

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.

It was submitted on behalf of the accused that the learned trial judge was correct in holding that the police officers had ceased executing their duty at the time the alleged assaults took place. The substance of the submission was that there has to be a start and a finish to a duty executed by a police officer, that the evidence at the trial established that the duty of crowd control and looking for incendiary devices or weapons had finished at the time the alleged assault took place and that, although the police officers at that time may be said to have been ‘on duty’, they were not acting ‘in the execution of their duty’.

In our judgment there was clearly evidence that at the time of the assaults the two police officers were still inspecting the carpark for incendiary devices and weapons and, at the very least, acting in the execution of a general duty as police officers to preserve the peace and detect crime, as well as a specific duty of returning from inspecting the carpark to report to their superior officer on what they had observed and receive further instructions. They were certainly not performing any unlawful activity that would have taken them out of the ambit of their general and specific duties.

Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: ‘in the execution of his duty’. That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as a carrying out of his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police: assault, resistance, obstruction, or hindrance, or aid incitement or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.”^[102]

(Emphasis added).

181 Similarly, when the Victorian Government introduced the Crimes Legislation Amendment Bill 2016 to include custodial officers in the class of persons to whom s51 of the Summary Offences Act 1966 applied, in the Second Reading Speech, the Minister responsible stated:

“The Crimes Legislation Amendment Bill 2016 introduces statutory minimum sentences for those who attack custodial officers, ...

The reforms in this bill will deter those in custody from assaulting and injuring a custodial officer on duty, by boosting protections for those people who look after prisoners and people in police cells on behalf of the Victorian community.

Custodial officers

Recent incidents at prisons, including the Metropolitan Remand Centre and Barwon Prison, have demonstrated the difficult and unique challenges faced by custodial officers. Intrinsic in their role is the supervision, monitoring and direction of offenders who pose a degree of risk to the community. Incidents involving occupational violence to prison officers are an increasing concern. Occupational violence usually occurs as either a result of a staff member intervening in assaults between prisoners or detainees, or because a staff member is attempting to manage a non-compliant person.

Like police officers and protective services officers, custodial officers are employed in a public-safety role and are entitled to a safe working environment. They are also entitled to be protected as far as is possible from violence in the conduct of their duties.

...

Sentencing provisions relevant to custodial officers will only apply when that custodial officer is on duty. This is consistent with the emergency worker provisions which only apply when the emergency worker is ‘on duty’. This bill specifies that a custodial officer is on duty when performing any relevant function or exercising any relevant power.

This bill imposes statutory minimum sentences to violent offences committed against custodial officers when they are on duty. ....

...

This bill will also amend the Crimes Act 1958 and the Summary Offences Act 1966 so that custodial officers will be explicitly included in assault provisions which apply to emergency workers on duty.

These changes will promote the safety of police custody officers and other custodial officers, and recognise the key role that they play in managing people who pose a degree of risk to the community.”^[103]

(Emphasis added).

182 Section 51 of the Summary Offences Act 1966 now provides:

“Assaulting, etc. emergency workers, custodial officers or local authority staff on duty

(1) In this section¾

custodial officer on duty and custodial officer have the same meanings as in section 10AA of the Sentencing Act 1991;^[104]

emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991.

(2) A person must not assault, resist, obstruct, hinder or delay an emergency worker on duty or a custodial officer on duty.

... .

(3) A person must not assault, resist, obstruct, hinder or delay a member of staff of a local authority in the execution of the member’s duty under this Act.

... .

(4) A person must not assault, resist, obstruct, hinder or delay a person lawfully assisting an emergency worker on duty or a custodial officer on duty.

... .”

183 The mischief sought to be addressed by the legislation referred to above is perpetration of violence, or acts of obstruction or interference, committed against police and other defined classes of persons while acting in the execution of duty. In my view, the authorities show that when the legislative purpose is to protect members of such a particular class of persons whenever they are at work performing their duties, it is necessary to impart a broad interpretation to the phrase “execution of duty” and “when on duty”.

Narrow interpretation is given to protect against infringement of common law rights

184 I have already addressed the principle of legality more fully above. Under that principle, there is a presumption against construing a statute so as to modify or abrogate a common law right where parliamentary intent to do so is not evident.

185 A narrow interpretation has been given to the phrase “in the execution of duty” when police constables, purporting to exercise a common law power to seize evidence (a car) without warrant, were held not to be acting in the execution of duty because no such common law power existed. Nor was there any statutory power permitting the constables to seize private property in the circumstances.[105] In R v Waterfield,[106] Ashworth J stated:

“In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such duty, involved an unjustifiable use of powers associated with the duty.

Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of those general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example, in Davis v Lisle [citation omitted], it was held that even if a police officer had a right to enter a garage to make enquiries, he became a trespasser after the appellant had told him to leave the premises, and that he was not, therefore, acting thenceforward in the execution of his duty, with the result that the appellant could not be convicted of assaulting or obstructing him in the execution of his duty.

In the present case it is plain that the police constables ..., no doubt acting in obedience to the orders of their superior officer, were preventing [the appellants] taking the car away and were thereby interfering with them and with the car. It is to be noted that neither of the appellants had been charged or was under arrest. ...

It was contended that the two police constables were acting in the execution of a duty to preserve for use in court evidence of crime, and in a sense they were, but the execution of that duty did not in the view of this court authorise them to prevent removal of the car in the circumstances. ... [I]n the view of this court the two police constables were not acting in the due execution of their duty at common law when they detained the car.”^[107]

186 In Director of Public Prosecutions v Hamilton,[108] the accused was charged with resisting arrest contrary to s52(1) of the Summary Offences Act 1966 when he fled a restaurant, allegedly without paying the bill. The informant suspected that the accused had committed the offence of obtaining property by deception and wanted to speak to him. The accused fled the scene. Police gave chase, apprehended and arrested the accused. At first instance, the Magistrate dismissed the charge. An appeal was brought by the Director of Public Prosecutions on behalf of the informant. In dismissing the Director’s appeal, Kaye J, as His Honour then was, found that at the relevant time when the informant was attempting to speak to the accused in the vicinity of the restaurant, the accused was not obliged to remain at the scene and/or to answer questions. His Honour stated:

“[32] It is not necessary for me to define, or determine the limits of, the phrase ‘in the execution of his duty’ under s 52(1) of the Summary Offences Act.^[109] The authorities to which I have just referred make it clear that, at common law, and in the absence of specific legislation to the contrary, the respondent in this case was not required to stop, when he was requested to do so by the police. I have no doubt that, in requesting the respondent to speak to them, the police were acting in the course of their duties as police constables. However, they were not, at that point, acting “in the execution” of their duties as police members for the purpose of s 52(1) of the Act. It follows that, in the absence of any specific legislative provision of imposing on the accused an obligation to remain and speak to the police, he would not be guilty of any offence under s 52(1) of the Summary Offences Act 1966.”^[110]

(Emphasis added).

187 In Coleman v Power,[111] McHugh J reviewed some of the authorities in which the phrase “in the execution of duty” was interpreted. In that case, the accused had been charged, inter alia, with two offences of assaulting a police officer in the execution of his duty contrary to s340(b) of the Criminal Code (Qld). Although his Honour was dissenting in the result, which turned on the lawfulness of the arrests, his Honour observed:

“The arrest offences

[111] The appellant contends that, if his conviction under s 7(1)(d) of the Vagrants Act is set aside – because that paragraph cannot constitutionally apply to his conduct – his arrest was unlawful and that the convictions relating to resisting or obstructing the respondents after he was arrested must also be quashed.

Resisting unlawful arrest

[112] As I have indicated, the appellant was convicted of two counts of serious assault under s 340(b) of the Queensland Criminal Code. He was also convicted of two counts of obstructing a police officer in the performance of the officer’s duties under s 120 of the Police Powers and Responsibilities Act 1997 (Q) (‘Police Powers Act’).

[113] Section 340(b) of the Criminal Code provides:

‘Any person who –

...

(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:

‘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]

‘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]

‘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:

‘... 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]

‘... 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]

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.

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]

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.

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:

“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).

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.

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]

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:

“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).

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]

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.

- - -

^[1] Joseph Moreno is a pseudonym

^[2] ###-123 is a pseudonym

^[3] Zootz Clothing is a pseudonym

^[4] Exhibit A

^[5] Exhibit C, Respondent’s written submissions

^[6] Exhibit B

^[7] Exhibit B, Question 3

^[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

^[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.

^[11] See transcript of proceedings before the County Court, 8 August 2016, exhibit D

12. ^[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. ^[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.”

^[15] O’Reilly v Rooney (1989) 10 MVR 19 at 23 per Gobbo J

^[16] Exhibit B

^[17] Exhibit C

^[18] Exhibit 1

^[19] “Investigating official” is also defined in s464 to include a member of police

^[20] Crimes Act 1958, s464(1)(c)

^[21] Crimes Act 1958, s464A(2)(b)

^[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 v Grills [1910] HCA 68; (1910) 11 CLR 400 at 413. See also the discretion to exclude improperly obtained evidence under Evidence Act 2008, s138

^[25] See for example R v Ireland [1970] HCA 21; (1970) 126 CLR 321

^[26] See for example Graham v R [1998] HCA 61; (1998) 195 CLR 606; R v McDermott (1948) 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133. See also Evidence Act 2008, s90

^[27] [2002] VSC 422

^[28] As expressed in Bunning v Cross [1978] HCA 22; (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

^[31] Alexander v R [1981] HCA 17; (1981) 145 CLR 395 at 401

^[32] R v Alexander [1994] VicRp 58; [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] HCA 34; (1992) 174 CLR 509 at 529

^[34] (1832) 2D & Cl (HL) 480

^[35] (ibid) at 489

^[36] [2012] HCA 59; (2012) 246 CLR 469

^[37] [2009] HCA 41; (2009) 239 CLR 27

^[38] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) [2001] HCA 49; (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] HCA 58; (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] HCA 47; (2007) 232 CLR 138 at 143 [6] per Gleeson CJ; [2007] HCA 47; Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562 at 586 [85] per Kirby and Crennan JJ; [2007] HCA 52; Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at 642 [99] per Crennan J; [2008] HCA 49

^[39] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (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] HCA 61; (2005) 224 CLR 494 at 567 [135] per Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 61; Northern Territory v Collins [2008] HCA 49; (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] HCA 27; (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] EngR 9; (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638]

^[43] Per Hayne, Heydon, Crennan and Kiefel JJ

^[44] [2004] HCA 43; (2004) 222 CLR 322 at 332 at paragraph [12]

^[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] HCA 26; (1981) 147 CLR 297 at 304-305 per Gibbs CJ

^[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

^[51] (2011) 245 CLR 1 at paragraph [43]

^[52] Citations omitted. See also Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437; Benning v Wong [1969] HCA 58; (1969) 122 CLR 249 at 256

^[53] [2012] VSCA 304; (2012) 44 VR 1

^[54] [1980] AC 74

^[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] VSCA 144; (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] [1999] NSWCCA 166; (1999) 46 NSWLR 681

^[63] The Act was subsequently amended, but not in any material way for the purposes of this case

^[64] Inserted by Act No 81/2006, s21(3)

^[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.

^[66] See Victoria, Parliamentary Debates, Legislative Assembly, 29 October 1913, 2185- 2187 (Mr Murray)

^[67] [1926] ArgusLawRp 5; [1926] VLR 178

^[68] supra

^[69] Motor Car Act 1928, s17(1)

^[70] Victoria, Parliamentary Debates, Legislative Assembly 17 October 1928, 2291 (Mr Webber)

^[71] Victoria, Parliamentary Debates, Legislative Assembly 16 September 1930, 2541 (Mr Tunnecliffe)

^[72] Victoria, Parliamentary Debates, Legislative Assembly, 16 September 1930, 2544 (Mr Tunnecliffe)

^[73] Victoria, Parliamentary Debates, Legislative Assembly 17 October 1928, 2294-2295 (Mr Webber)

^[74] Victoria, Parliamentary Debates, Legislative Assembly 16 September 1930, 2542 (Mr Tunnecliffe)

^[75] Victoria, Parliamentary Debates, Legislative Assembly 17 October 1928, 2298 (Mr Webber)

^[76] Interpretation of Legislation Act 1984, s39. A provision similar to s39 did not appear in the Acts Interpretation Act 1928 (Vic); however, the principle is consistent with authority to the effect that language in a statute may be changed without altering meaning – see generally Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8^th ed, 2014) 150-154

^[77] Inserted by Act 44/2003, s3

^[78] “inspector” means an authorised officer or a member of the police force; (s3)

^[79] Road Safety Act 1986, s132

^[80] Road Safety Act 1986, s133

^[81] Road Safety Act 1986, s135

^[82] Road Safety Act 1986, s136

^[83] Road Safety Act 1986, s137

^[84] Victoria, Parliamentary Debates, Legislative Assembly, 1 May 2003, pages 1291-1292 (Mr Batchelor)

^[85] Explanatory Memorandum,  Road Safety (Heavy Vehicle Safety) Bill 2003  (Vic) 12

^[86] Inserted by Road Legislation (Projects and Road Safety) Bill 2006 (Vic)

^[87] Explanatory Memorandum, Road Legislation (Projects and Road Safety) Bill 2006 (Vic) pages 42-45

^[88] Explanatory Memorandum, Road Legislation (Projects and Road Safety) Bill 2006 (Vic) pages 47-48

^[89] Explanatory Memorandum, Road Safety Amendment (Hoon Driving) Bill 2010 (Vic) 4

^[90] Victoria, Parliamentary Debates, Legislative Assembly, 2 September 2010, pages 3582-3583 (Mr Pallas)

^[91] Version 154, incorporating amendments as at 30 September 2013

^[92] The owner was no longer exempt from providing information as to driver if he was the driver, and the provision became gender neutral

^[93] Cf. O’Reilly v Rooney (supra) per Gobbo J at 22

^[94] For example in relation to obligations on drivers of heavy vehicles

^[95] [2001] VSC 298

^[96] For example the common law power to keep the peace; see Nicholson v Avon [1991] VicRp 15; [1991] 1 VR 212 for a comprehensive discussion about this common law power, per Marks J

^[97] This provision was repealed and replaced by the Victoria Police Act 2013, s51. Also note that the general functions of police are now set out in s9 of the same Act.

^[98] See Halsbury’s Laws of Australia (online service, Lexis Nexis, paragraph [130]-[1040]

^[99] Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596

^[100] R v K (ibid) at 597

^[101] R v K (ibid) per Gallop, Spender and Burchett JJ

^[102] R v K (ibid) at 600-601. Cited with approval in Director of Public Prosecutions (NSW) v Gribble (2004) A Crim R 256

^[103] Victoria, Parliamentary Debates, Legislative Assembly, 11 February 2016, 197-199 (Mr Pakula)

^[104] Under s10AA of the Sentencing Act 1991, a different penalty regime applies only if the court is satisfied beyond reasonable doubt that (a) a victim of the offence was an emergency work on duty or a custodial officer on duty (as the case may be); and (b), at the time of carrying out the conduct, the offender knew or was reckless as to whether the victim was an emergency worker or a custodial officer (as the case may be).

^[105] Earlier in this judgment, I referred to the power under the RSA that now permits police to seize vehicles for the purpose of impoundment or forfeiture

^[106] (supra). Note this is one of the cases cited in R v K (supra), and to which I have already referred

^[107] R v Waterfield (ibid) at 170-171

^[108] (2011) 33 VR 505

^[109] Cf. R v Waterfield (supra) at 170-171

^[110] Director of Public Prosecutions v Hamilton (supra) at 513

^[111] [2004] HCA 39; (2004) 220 CLR 1

^[112] Shanahan, Carter’s Criminal Law of Queensland, 14th ed (2004) at 591

^[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

^[114] (1993) 46 FCR 336 at 340-341 per Gallop, Spender and Burchett JJ

^[115] Unreported, [VSC], 6 February 1995

^[116] [1911] ArgusLawRp 59; [1911] VLR 347 at 351

^[117] (Supra) at 56-59

^[118] [2003] NTSC 106; (2003) 13 NTLR 130

^[119] [2000] VSCA 171; (2000) 2 VR 246

^[120] Perkins v County Court of Victoria & Ors (ibid) at 267-268 (citations omitted)

^[121] [1984] TASRp 3; [1984] Tas R 14

^[122] (1989) 10 MVR 19

^[123] supra; I have referred to this case earlier in this Ruling

^[124] ibid

^[125] O’Reilly v Rooney (ibid) at 22-23

^[126] ibid

^[127] (1991) 13 MVR 405

^[128] Loges v Martin (supra) at 410

^[129] (ibid) at 408

^[130] supra

^[131] (ibid) at paragraph [30]

^[132] ibid