Baker v Smith [2025] TASSC 43

Baker v Smith [2025] TASSC 43 | Case summary | Zoe

[9]

The preconditions for the making of a demand pursuant to s 37G(1) and the service of a notice pursuant to s 37GA are distinct. That there is an option to make a demand pursuant to s 37G(1) by way of a notice served in accordance with s 37GA, and an obligation (albeit one that is directory rather than mandatory)[1] to serve a notice in accordance with s 37GA following the making of an oral demand, squarely raises the question whether the s 37GA(1) precondition is ever relevant to proof of a s 37G(1) offence. This is particularly so where ss 37G(2) and (3) refer to service of a notice of demand in accordance with s 37GA in circumstances where the only reference to service in the latter provision is in s 37GA(1), which also prescribes the precondition for service undertaken pursuant to that provision.
In my view, a construction which imports the s 37GA(1) precondition into the s 37G(1) offence is not open for the following reasons:
- The preconditions of each provision are entirely different. A demand pursuant to s 37G(1) may be made where it is "alleged" that a person has committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle. By contrast, the precondition under s 37GA(1) requires satisfaction that a driver or occupant of a motor vehicle has committed an offence. The latter precondition is not limited to offences committed "as the driver or an occupant" of a motor vehicle, although can encompass such an offence.
- Section 37GA, like s 37G(1), is a penal provision. It creates a standalone offence where an owner or registered operator fails to comply with a notice of demand. The penalty available for a breach of s 37GA is different to that for a breach of s 37G(1): s 37GA(3). Section 37GA does not include an express defence analogous to that provided by s 37G(4). Distinct offences are, therefore, created by each provision, each with their own discrete elements.
- A demand made pursuant to s 37G(1) encompasses the possibility of the requirement being made orally in dynamic circumstances. A s 37GA demand does not have that character, hence the different nature of the precondition.
- A demand made pursuant to either section is an investigatory tool. The terms of s 37GA(1) are such that the police officer who serves the notice is personally required to be satisfied that the driver or an occupant of the relevant motor vehicle has committed an offence of any type. Section 37G(1), by contrast, enables a police officer to make a demand of an owner or registered operator in circumstances where there is an allegation a person has committed an offence as the driver or occupant of the relevant vehicle. It does not require the police officer who makes the demand to be the one who made the allegation. This reflects, again, the dynamic circumstances in which such a demand can be made. A police officer may, for example, be tasked with making the demand pursuant to s 37G(1) in circumstances where they are not necessarily personally satisfied that an offence has been committed by a driver or occupant of the relevant vehicle.
- If the precondition for service of a notice pursuant to s 37GA was incorporated as a precondition for the making of a demand pursuant to s 37G(1), this would render the condition of the power provided by s 37G(1) otiose as a notice is ultimately required to be issued in all circumstances: s 37G(1). The words setting out the condition of power in s 37G(1) must have been intended to have work to do.
In my view, proof of an offence contrary to s 37G(1) requires that there be an allegation that a person has committed an offence of the kind described in the subsection as a precondition to the making of the demand, whether it be one that is oral or by way of s 37GA notice.
It is unnecessary to decide whether s 37G(1) can be breached on the basis of an oral demand prior to the service of a s 37GA notice as the issue does not arise in this case. What is clear, however, is that when a demand is made in the first instance by notice or is followed by such a notice where the demand is made orally, it is one that is to be in accordance with s 37GA. The phrase "is to" is directory, not mandatory: see s 10A(b) of the Acts Interpretation Act. Accordingly, a police officer is obliged to provide a notice which conforms with the matters set out in s 37GA(2) (which itself is directory in its terms). However, consistent with the directory nature of the obligation, not every failure to comply will result in invalidity: see Bob Brown Foundation v Barnett (No 2) [2023] TASSC 6 per Blow CJ at [14]-[16] and E v Jordan [ per Crawford J at [26]-[34].
In my view, an offence contrary to s 37G relating to a demand made by way of s 37GA notice (as is the case in this matter) is made out where it is proved beyond reasonable doubt that:

[15]

Constable Young gave evidence that once Constable Carr left the district, he took over the investigation by following up with witnesses who had been there on the night, obtained statutory declarations from people, CCTV and warrants for medical records. It was after those enquiries that he spoke with the applicant. This occurred at the Burnie Police Station on 22 July. The conversation that took place was captured on Constable Young's body worn camera.
The body worn camera footage was tendered during the hearing. The interaction with the applicant captured on the footage included service of the notice of demand. Constable Young gave evidence that he did not receive a response on any contact from the applicant after 22 July 2023 and that the requirements of the notice were not met within the seven day period provided to the applicant. A copy of the notice was also tendered on the hearing.
Under cross-examination, Constable Young gave evidence that "we had received information who [the driver of the car] was likely to be". It was put to him that he had received information about the registered owner of the vehicle and he answered "yes". He confirmed that no one could identify the driver at that time. Again, it was put to him that it was correct to say that he had received information about the registered owner but not the driver and he answered "I guess so, yeah". As to issuing the driver demand notice, he indicated he believed the applicant was the driver but could not prove it was him. He confirmed he had reviewed CCTV footage from inside the Wynyard Golf Club but that there was no footage outside the Wynyard Golf Club that he had reviewed. He accepted that he did not have any footage to determine who the driver was. He accepted he "never had any ID of the driver". He accepted that as a result he would not know whether the driver was under the influence of alcohol or not. He confirmed his intention was for the applicant to provide the details of the driver of the car rather than those of an occupant. He was cross-examined as to the potential for the notice to be confusing. It was also put to him that the notice was pre-prepared and issued in an attempt to abrogate the applicant's right to silence. Constable Young stated "there's always the potential that the applicant will either speak or he won't speak".

[35]

Defence submits that on the hearing, the court did not receive any evidence regarding the registration and ownership of F76GH. It is clear on the body worn camera footage that the officer asserts that the defendant is the registered owner of the car in question, to which he replies 'yes'. The form is then gone through, including statements that the car in question is F76GH and it is asserted that the defendant is the registered owner. He does not dispute this. Both the body worn camera and the notice in question were tendered into evidence with no challenge as to this. I am satisfied that the defendant was the registered owner of F76GH.
Defence further submits the notice is invalid as it refers simply to the Road Safety (Alcohol and Drugs) Act, without specifying an offence. With respect, I disagree. The section referred to states 'Committed an offence in that (he or she) did on the said date, against' and then leaves a line. To my mind, this is clearly to state the piece of legislation as it then goes on to state, in the next section, 'Offence details'. In this section it is detailed the offence alleged is driving under the influence of alcohol. While it may not specifically identify the section of the Act, the offence alleged is clear.
Defence further submits the notice is invalid due to ambiguity, in requesting details of the driver or occupant. It is a pro-forma notice which clearly can be tailored to either a demand for information of a driver or occupant, whoever is alleged to have committed an offence. The detail that has been filled in, in the notice, makes it abundantly clear that, in this instance, it is the driver of the vehicle who is alleged to have committed the offence and that is the information being sought. I reject the submission that it is ambiguous.
Overarching a number of these submissions is reference to the matters espoused by Wood J, in the case of Arnesto v Hickman [2016] TASSC 26, which dealt with section 55A(1) of the Police Offences Act and the right to require a person give their name and address, once certain other factors are met. In circumstances where a statutory requirement impinges on a fundamental right to silence, clearly the principal of statutory construction falls in favour of the least infringement of the common law right and requires clear words and basic reasons as to the infringement on that right.
Here the language of the section clearly and expressly states that the person must give the information. This is also clear in the notice that is given. The notice states the direction, the reasons for it and what must occur. The requirements are met.
Defence challenge that the officer held a reasonable belief as to the offence alleged having been committed. They state, in their written submissions that the officer agreed under cross-examination that the footage was from inside the Wynyard Golf Club and did not depict the motor vehicle or any evidence of the driver being under the influence. They further argue that officer agreed that the witness statements obtained did not demonstrate that the driver was under the influence.
The officer was asked under cross-examination whether the CCTV was from inside the Wynyard Golf Club, to which he agreed. He also agreed that there was no footage outside. He agreed with the proposition that the footage did not determine who the driver was, but nothing more than that. He did not assert or agree that it did not depict the motor vehicle, the crash or the driver itself, even if they could not be identified.
The office was cross-examined on the statements taken and agreed they did not help identify who the driver was. He also agreed he did not 'know' that the driver of the vehicle was under the influence of alcohol. I note that my determination is based on whether the officer is satisfied an offence has been committed, that is, he reasonably believed the driver, whoever that may have been, was driving under the influence.
The term satisfied seems to be akin to the need for the officer to hold a reasonable belief. It is not based on the mere fact of an accident, but rather an aggregate of all the information received leads to the belief; including CCTV, medical and witness statements and surrounding circumstances, including inferences such as that which could be drawn from the driver leaving the scene. It seems clear that information did not help him determine 'who' the driver was, hence the notice of demand being issued, but I am satisfied he was satisfied the driver, whoever it may be, had committed an offence.
The information gathered clearly founded a reasonable basis for satisfaction that an offence had occurred. It can clearly be inferred from the evidence gathered and the specific details put into the notice."
The magistrate determined that the notice of demand was issued validly by the officer and was not complied with. As a consequence, she found the charge proved.

[51]

The respondent submitted that the definition of "owner" pursuant to s 37A of the Police Offences Act was relevant to the determination of these grounds. As a consequence, the applicant is the owner of the motor vehicle in question if the police officer reasonably believes that he is the owner. The respondent submits that Constable Young's assertion, as captured on the body worn camera, that the applicant is the registered owner, is evidence which establishes his belief that the applicant was the "registered owner" of the motor vehicle to which the allegation set out in the notice related. The respondent also referred to the evidence that Constable Young gave during the course of the hearing, including under cross-examination, where it was put to him that he had received information about the registered owner of the vehicle.
The respondent acknowledges that the magistrate did not rely on the extended definition of "owner" in her reasons for decision. The magistrate did, however, determine that she was satisfied the applicant was the registered owner of F76GH which the respondent submits was a higher standard than required. The respondent submits that no miscarriage of justice has resulted to the applicant as a consequence.
As to the magistrate's reliance on that part of the body worn camera footage where the applicant responded affirmatively to Constable Young's assertion that he was the registered owner, the respondent submits that there can be no doubt that the applicant knew at that point that the motor vehicle in question bore the registration number F76GH. In support of that submission, the respondent referred to the earlier part of the interaction where Constable Young asks the applicant "what happened on 18 March with your car?".
The respondent also submits that the magistrate was entitled to rely on other aspects of the interaction between the applicant and Constable Young, including the fact that the applicant did not dispute that he was the owner. In this respect, the respondent relies on Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529 where Kitto J said at 536:

[58]

It is an element of an offence contrary to s 37G(1) that a demand be made of an owner or registered operator either orally or by way of service of notice of demand. Pursuant to s 37A of the Police Offences Act, proof that a person is registered in the record of motor vehicles kept in accordance with s 41 of the Vehicle and Traffic Act as the owner, is capable of establishing this element of the offence. In this case, the magistrate found the applicant was the "registered" owner of the motor vehicle. She did not rely on the extended definition of owner.
An evidentiary certificate signed by the Registrar pursuant to s 67(3) of the Vehicle and Traffic Act certifying an entry in the register kept under s 41 of that act, "is evidence in legal proceedings of facts recorded in the entry and, in the absence of evidence to the contrary, as proof of those facts". The applicant is right to identify that this would be an acceptable way to prove that a person was an owner of the relevant motor vehicle within the meaning of s 37A of the Police Offences Act. It is not correct to say that such a certificate is required in order to prove that fact. There is nothing in the definition of s 37A of the Police Offences Act or s 67 of the Vehicle and Traffic Act to support such a proposition. Indeed, the terms of s 67 of the Vehicle and Traffic Act contemplate that other evidence may be capable of displacing the evidence contained in such a certificate.
Whether the applicant was the "owner" of the relevant motor vehicle was a question of fact to be determined by the magistrate. As such, the applicant is required to establish that the magistrate could not reasonably have come to the conclusion that the complaint was proved beyond reasonable doubt: Aviation Consolidated Holdings Pty Ltd v McMullen [2025] TASFC 6, Porter AJ at [18].
In my view, it was open to the magistrate to conclude beyond reasonable doubt that the applicant was the owner, and, more particularly, the registered owner of the motor vehicle. During the exchange between the applicant and Constable Young, which was captured on the body worn camera footage, Constable Young asserts that the applicant is the registered owner of the vehicle. In fact, he told the applicant he was giving him the notice because he was the registered owner of the vehicle. The applicant responds 'yes'. While Constable Young's assertion was not accompanied by or preceded by any reference to the registration plates or description of the motor vehicle in question, it was not made in a vacuum. Prior to that part of the exchange, Constable Young asked the applicant "what happened on 18 March with your car?". The applicant stated he was not "100% sure", would like to get some legal advice and probably did not want to answer any questions at that moment. Constable Young also gave evidence that the applicant had been picked up on the night of the crash and taken to the hospital by "other units" based on information that he was the driver of the vehicle at the time of the crash. Based on this context, it was open for the magistrate to be satisfied beyond reasonable doubt that the applicant was well aware that the discussion with Constable Young concerned the car involved in the crash on 18 March 2023 and that it was asserted he was the registered owner. It was also open for the magistrate to conclude that the applicant's affirmative response to the proposition he was the registered owner of the car in question was an admission of that fact. The applicant continued to nod and respond 'yep' when the notice was read to him which included an express reference to the registration plate and a description of the incident that gave rise to the notice. The magistrate did not err in reaching that conclusion.
As to the allegation that the magistrate made the finding based on the applicant not disputing being the registered owner, it is clear that was not the only basis for doing so. The alleged error in ground (b) asserts this is an erroneous finding of fact. The argument in this Court went down a slightly different route, suggesting the magistrate made a positive finding the applicant was the registered owner because he did not deny it, and by doing so, ignored the applicant's right to silence. I do not consider that to be a fair reading of the magistrate's reasons. As I have pointed out, the applicant's absence of denial was not the sole basis for the finding. The magistrate at [15] of her reasons notes that the form was gone through, that it included statements that the vehicle in question is F76GH and it was asserted he is the registered owner and he did not dispute this. This is in the context of the magistrate identifying the applicant had earlier responded affirmatively to the proposition that he was the registered owner. What the magistrate did not say, but is quite apparent on viewing the footage, is that the applicant continues to nod and say 'yep' when the form is read to him. In my view, the comment that the applicant did "not dispute" he was the registered owner is not a reference to the applicant remaining silent in the face of the assertion he was the registered owner; he patently did not. The reference to the applicant not disputing he was the registered owner is clearly a reference to his conduct generally throughout the course of the form being read to him. As the High Court made clear in Woon, "an accused person's words, conduct or demeanour at a time a statement is made may amount to an acceptance of it", even where he or she does not intend to manifest agreement with it. An accused person's reaction has evidential value when considered in light of the circumstances: Kitto J at 537.
Accordingly, grounds (a) and (b) are not made out.

[63]

As observed above, the notice does not specify the owner or the registered proprietor and simply says to 'the applicant' and his address.
As argued before the learned Magistrate, the notice is ambiguous at best to the extent that it refers to 'driver' or 'occupant'. If the notice was validly issued, it had to state whether it was the driver that committed an offence or it had to state whether it was the occupant that committed the offence. It did not do either but referred to both 'driver' and 'occupant'.
For the notice to be validly issued, the police officer issuing the notice of demand had to be satisfied on a reasonable basis that an offence is being committed. The evidence given did not support a reasonable belief for the driver, who remained unidentified, as committed an offence and was not founded on any factual basis reasonably open on the evidence."
During the review hearing, the applicant expanded on this ground. The first aspect of ambiguity alleged is the failure to comply with s 37GA(2)(a) which provides that a notice of demand is to indicate the offence to which it relates. The applicant complains that the form issued to the applicant just refers to an entire act. The applicant submits that s37G is a coercive piece of legislation impinging on the fundamental right to silence. Consequently, certainty is required when seeking to undermine such a right. The basis upon which that right is being undermined is required to be highlighted to the recipient of the notice without ambiguity. The applicant particularly relied on the decision of Arnesto v Hickman [2016] TASSC 26 in support of this proposition. I understood the applicant to argue that this decision is authority for the proposition that the notice requires full articulation of the offence to which it relates including the name of the legislation and the specific offence provision said to have been breached.
The applicant also argues that the notice should be specific as to whether it is alleged that the occupier or the driver of the car has committed the offence. If the notice fails to do so, the applicant argues it does not give sufficient or accurate notice to the recipient of the basis for it being issued and is, therefore, invalid.
The respondent submitted that the notice specified the act of parliament said to have contained the alleged offence. It also stated that the allegation was that the driver was "under the influence of alcohol when driving". The respondent submits that this information provided a clear indication that the offence to which the notice referred is found in s 4 of the Road Safety (Alcohol and Drugs) Act, namely driving under the influence of alcohol. The respondent submits that s 37GA(2)(a) does not require the precise offence provision to be specified on the notice of demand. The respondent argues the word "indicate" was a deliberate choice made by parliament and can be contrasted with the word "specify" used in subsections (2)(b) and (2)(c) of s 37GA. The respondent relied on the Macquarie Dictionary definition of "indicate" which means "to be a sign of" or "to point out or to point to". The respondent argues the information in the notice of demand, therefore, satisfied the relevant requirements of s 37GA.
As to the applicant's assertion that the form failed to make clear whether it was the driver or the occupant of the car who was said to have committed an offence, the respondent argues that the particulars of the offence set out in the notice made it clear that it was the driver of the car who was the subject of the allegation. Further, the respondent submits there is no requirement that the notice contain the information at the level of detail which the applicant asserts should be provided. The respondent also relied on the decision of Arnesto v Hickman, and particularly [47] of that decision where Wood J held:

[68]

The context and purpose of the provision also supports the proposition that something less than specificity is required. Taking a version of the circumstances involved in this case way of example, it would be impossible to specify with particularity the precise alcohol related offence that a person is alleged to have committed as a driver until such time as the identity of the driver is known. The Road Safety (Alcohol and Drugs) Act provides for different blood alcohol limits depending on the licence status or prior convictions of the driver: see, s 6(1) and (2). This is but one example of why it would be impractical to advise of the precise offence a person is alleged to have committed when driving a car.
In this case, the magistrate concluded at [16] of her decision that while the notice did not "specifically identify the section of the [Road Safety (Alcohol and Drugs)] Act, the offence alleged is clear". In my view, there is no error demonstrated in that conclusion. Section 37GA(2)(a) does not require a precise identification of the alleged offence. It is sufficient that the notice express in a general way the offence or offences alleged to have been committed by the driver or occupant of the vehicle as the driver or occupant of that vehicle. The notice did that, and more. It notified the act of parliament which was said to have been breached. The particulars described how that act of parliament was said to have been breached with sufficient detail to enable the recipient to understand that it was alleged the driver was driving the vehicle whilst under the influence of alcohol at the time of the crash. Such conduct can constitute a number of different offences contrary to the Road Safety (Alcohol and Drugs) Act, including driving under the influence of alcohol contrary to s 4 of that Act.
The second issue arises from the terms of s 37G(1) and the requirements of a notice as set out in s 37GA(2)(c). Section 37G(1) provides that the power to make a demand and the obligation to comply with it arises "where a person is alleged to have committed an offence against any State or Commonwealth legislation as the driver or an occupant of a motor vehicle". A demand made by way of a s 37G notice is required to "specify" that the owner of the motor vehicle is to provide a statutory declaration stating "the name, address and, if known, the date of birth and driver licence number of the driver or occupant of the motor vehicle at the time the offence was committed", or alternatively, where they do not know the details, information that may lead to the identification of the driver or occupant of the motor vehicle or the reasonable steps taken to obtain such information.
The contents of the form utilised for the purpose of a s 37GA notice is such that it may be issued in order to obtain identifying details of a driver or occupant of a car. The applicant asserts that the form did not expressly state whether information was sought as to the driver or the occupant of the relevant vehicle and that a failure to do so means it was not validly issued.
In my view, there is no substance to this argument. First, when the content of the notice is considered as a whole together with what Constable Young said to the applicant, it could not be said that the demand was ambiguous as to whether information was being sought regarding the driver or occupant of the car. Constable Young expressly told the applicant the notice was being issued so they could "find out who ... was the driver who was driving the vehicle at that particular point in time". He later made it clear the demand was directed at assisting them prove that the applicant was the driver at the relevant time. In addition, the particulars of the offence alleged to have been committed as set out in the form were clearly related to the driver of the car, not the occupant. The notice expressly referred to seeking information "so that proceedings may be taken against the driver or occupant for the offence as so stated". The offence "so stated" was one alleged to have been committed by the driver. There was no error in the magistrate concluding that the notice "makes it abundantly clear that, in this instance, it is the driver of the vehicle who is alleged to have committed the offence and that is the information being sought". Nor did the magistrate err in rejecting the submission the notice was ambiguous and finding the statutory requirements were met.
This ground is not made out.

[88]

This ground is without merit. The applicant correctly accepted that s 37G abrogated a person's right to silence and privilege against self-incrimination in the circumstances provided for by the provision. There is nothing in the terms of the section to suggest that it only operates in circumstances where the officer issuing the demand cannot prove the identity of the driver or occupant of a vehicle by other evidence. No part of the provision suggests that a demand may only be issued where it is necessary to do so in order to establish the identity of a driver or occupant of a vehicle at the relevant time. It also fails at a factual level as Constable Young's evidence during the hearing was that he utilised poor wording when issuing the demand, that he believed the applicant was the driver but "could not prove it was him". To import a requirement of necessity would undermine the clear language of the provision which only conditions the operation of the provision to circumstances were a person is alleged to have committed a relevant offence as a driver or occupant of a motor vehicle.
To the extent this ground asserts that issuing the notice was "futile" and thus invalid as the officer could not prove the driver was in fact driving under the influence, the submission misunderstands the evidence and, again, the operation of the provision. As I have already noted, the demand was made on the basis of an allegation that the driver of the motor vehicle was driving under the influence of alcohol at the time of the crash. The applicant relies on those parts of Constable Young's evidence in cross-examination where he agreed he "never had any ID of the driver" and "as a result, [he] wouldn't know whether the driver was under the influence of alcohol or not". The questions and answers relied upon, first, do not support the proposition that there was "no evidence to suggest any blood alcohol reading from any other individual ...would result in a successful prosecution of the driver". There is also no warrant to limit the operation of s 37G to circumstances where there is evidence capable of resulting in a successful prosecution of the driver or occupant. There is no textual support for such a limitation. The condition of the relevant power is that there is an allegation that a relevant offence was committed, nothing more.
The authorities relied upon by the applicant also do not support importing such limitations on the exercise of the power. Cases such as Coco v The Queen [1994] HCA 15; 179 CLR 427 recognise that a statute will only be interpreted to have abrogated a fundamental right by the use of clear words to that effect. It is also accepted that a construction which interferes with such rights to a lesser extent is to be preferred to another: Arachchi v Orlowski [2003] VSC 161 per Nettle J at [26]. While the relevant principles of statutory construction demand close scrutiny and a strict reading of provisions such as s 37G (Commissioner of Taxation v Citibank Ltd (1988) 20 FCR 403 per French J at 433), they do not warrant the importation of limitations which derive no support from the clear language of the relevant provision.
This ground is not made out.

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Baker v Smith [2025] TASSC 43 (18 September 2025)