Director of Public Prosecutions v Majok [2009] NSWSC 192 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: By summons dated 5 June 2008 and filed on 20 May 2008 the Director of Public Prosecutions on behalf of the State appeals the dismissal of proceedings by his Honour Magistrate Brown. 2 The judgment of the learned magistrate was made on 28 February 2008 at Blacktown Local Court. His Honour dismissed proceedings against the defendant Mr Joseph Lual Majok. The charges against Mr Majok were traffic offences alleging that Mr Majok did not keep wholly to the correct side of the road and did not stop at a red arrow. 3 The magistrate dismissed the charges on the basis that there was no prima facie case. The lack of a prima facie case was brought about by the magistrate rejecting evidence that was given by a constable who, for want of a better word, investigated the incident or alleged incident in question. 4 The rejection of that evidence came about in the following circumstances. Pursuant to the terms of s 173 of the Road Transport (General) Act 2005 the police officer, being an authorised officer under the Act, required Mr Majok, who is relevantly the responsible person for the vehicle in question, to disclose the identity of the driver who it was alleged committed certain offences. 5 On that requirement being made, Mr Majok, it is said, admitted that he, Mr Majok, was the driver of the vehicle. That admission is the only evidence of the identity of the driver in question. 6 The learned magistrate, during the course of the evidence of Constable Deborah Lamson, heard evidence that the constable had seen the vehicle commit the offences in question, or evidence of the fact which would give rise to such a conclusion, and evidence of the conversation with Mr Majok that occurred on 30 September 2007. The evidence to that effect was evidence of the demand made pursuant to the terms of s 173 and compliance therewith. 7 On hearing part of the evidence, as to the nature of the request and the admission made, his Honour determined to exercise his discretion under s 90 of the Evidence Act 1995 to exclude the admission. His Honour said: "So it seems to me that if the answer is given in a situation where (a) it's compelled and (b) there is nothing in the legislation that creates a compulsion that expressly makes it admissible, I should not admit it in a situation where a defendant is unrepresented." 8 It is not absolutely clear why the representation of the defendant during the course of the proceedings is relevant. Although, representation, if there be any, at the time that an admission is made, may well be relevant. The difficulty is that the provisions of s 173 of the Act make clear that a police officer, amongst others, is able to require a person, who is a nominated responsible person for a vehicle, to disclose the identity of the driver who has committed an offence. The provision is in the following terms: "173 Authorised officer may require responsible person for vehicle and others to disclose identity of driver who commits offence (1) If the driver of a motor vehicle is alleged to have committed an offence under 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. Maximum penalty: 20 penalty units. (2) It is a defence to a prosecution for an offence under subsection (1) (a) if the defendant proves to the satisfaction of the court that he or she did not know and could not with reasonable diligence have ascertained the driver's name and home address. (3) A written statement purporting to be given under subsection (1) (a) and to contain particulars of the name and home address of the driver of a motor vehicle at the time of commission of an alleged offence under the road transport legislation that is produced in any court in proceedings against the person named in the statement as the driver for such an offence is evidence without proof of signature that the person was the driver of the vehicle at the time of the alleged offence if the person does not appear before the court. (4) In this section, ' responsible person ' has the same meaning as it has in Chapter 3." 9 On the evidence of the constable, it is clear there was a driver who committed an offence. It is clear that a requirement was made and it was made of the responsible person. The terms of s 173 of the Road Transport (General) Act required Mr Majok to give the answer truthfully. He is to be commended for so doing. 10 There can be no purpose in the requirement in s 173 of the Road Transport (General) Act other than to obtain such information for the purpose of prosecuting the driver who has committed the offence. This is manifestly the purpose of the legislature. 11 As was made clear by the Court of Appeal in DPP v Attallah [2001] NSWCA 171, a judgment of the Court of Appeal given on 14 June 2001 in which the bench comprised their Honours Meagher JA, Ipp AJA and Fitzgerald AJA, that s 90 of the Evidence Act did not permit a court to hold: "that the use of the evidence in criminal proceedings against the accused would be unfair solely because of the manner in which and the purposes for which the evidence was obtained if (as was conceded) that manner and purpose was sanctioned by Parliament." 12 It is clear from the reasons of the learned magistrate that his Honour took the view that the answer of Mr Majok, required to be given by Mr Majok under the terms of s 173 was, because and only because of that requirement, unfair to the defendant. That, on the authority in Attallah, was an impermissible exercise of discretion and an error of law. 13 The fact that an admission is made under s 173 of the Road Transport (General) Act cannot of itself be the criterion by which the discretion under s 90 of the Evidence Act is exercised. 14 There can of course be no doubt that the learned magistrate had a discretion under s 90 to refuse to admit evidence. Nothing in this judgment detracts from the exercise of that discretion. 15 The kernel of the issue and the error of law relates to whether that exercise of discretion was vitiated by error. The error was the decision on the effect of the existence of a compulsion to answer, sanctioned by the law. Such a sanction cannot be the sole basis for the exercise of the discretion under s 90 of the Evidence Act. 16 I should add, as a matter of abundant caution, that an application for special leave to appeal to the High Court against the judgment of the Court of Appeal in Attallah was refused on 5 March 2002 and I draw some comfort from the statement of the High Court (Brennan CJ, Toohey and Gummow JJ) in Hooper v R [1995] HCA Trans 283 (23 August 1995). That transcript related to the issue of whether or not, as a rule of common law, evidence obtained by compulsion, sanctioned by the legislature, was excluded. 17 It is clear from the above that there is an error of law which has affected the result and caused the dismissal of the proceedings. The question that arises in relation to the matter is what orders ought to be made by the court sitting, as it is, on appeal on a matter of a traffic offence, and in circumstances where there is no suggestion that any action of Mr Majok was a threat to the safety of the public, albeit that the charges in question could, in certain circumstances, be extremely dangerous to the public. 18 This is an appeal against an acquittal. As such, it raises special issues relating to double jeopardy and the like. Those issues affect the kind of orders that ought to be made. In the circumstances, I do not consider it appropriate to force the defendant through another proceeding and I will not remit the matter or issue any order in the nature of mandamus. The issue of principle has been determined, and the matter should now cease. 19 In the circumstances, the Court makes the following orders:

Director of Public Prosecutions v Majok

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