R v Barakat; R v Younes

Supreme Court of NSW|2016-09-07|Before: Adams J

Solicitors: Elie Rahme and Associates (Accused Younes) Kiki Kyriacou Lawyers (Accused Barakat) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/00239166; 2013/00327619

Judgment Introduction

The applicant David Younes ("the accused") was arraigned before me on 7 September 2016 and pleaded not guilty to one count of being an accessory after the fact to the murder of Ali Jammas ("the deceased") on 12 July 2013 at Abbotsbury. His co-accused Mahmoud Barakat ("Barakat") is charged with the murder of the deceased.
I have summarised the Crown case, as contained in the Crown case statement, in my earlier decision of R v Barakat; R v Younes (No 1) [2016] NSWSC 1152 and do not repeat that summary herein. Briefly, the deceased was shot four times in the chest in his driveway in Thorpe Place, Abbotsbury at 10am on July 2013. The Crown case is that two men waited in a silver Subaru WRX with registration BU51NU outside the home of the deceased on the day of the shooting. One of those men was Barakat and the identity of the other man is unknown. The Crown case is that one of the two men, most likely Barakat, ran from that vehicle, shot the deceased, returned to the car and left the scene. The Crown case is that, at the relevant time, the accused was the owner of the silver Subaru described by eyewitnesses and seen on CCTV footage. It is not the Crown case that he was complicit in the murder itself in any way.

Evidence on the voir dire

In an application to exclude evidence under s 138 of the Evidence Act, the onus lies on the accused to establish the impropriety or illegality on the balance of probabilities before any onus is placed upon the Crown to persuade the court that the evidence should be admitted: Regina v Coulstock (1998) 99 A Crim R 143 at 147; Robinson v Woolworths Limited (2005) 64 NSWLR 612 at 621; [2005] NSWCCA 426.
In seeking to negate the allegation of impropriety, the Crown Prosecutor tendered a statement of Detective Sergeant Christian Olivares dated 7 October 2013, a four-page document headed "Form of Demand - Section 14 Law Enforcement (Powers and Responsibilities) Act 2002" with handwritten questions and answers, relevant extracts from Detective Sergeant Olivares' notebook, a note provided by the accused on 14 August 2013, and a copy of the search warrant notice served on the accused on 6 August 2013
Detective Sergeant Olivares gave evidence on the voir dire and was cross-examined. His evidence was that, as at 6 August 2013, he suspected that the vehicle used in the shooting of the deceased was the vehicle owned by the accused. He based that belief on descriptions of the silver Subaru provided by eyewitnesses and on CCTV footage of Thorpe Place, as well as on his knowledge that Barakat and the accused were friends or associates. On 6 August 2013, he executed a search warrant at the home of the accused with the specific aim of locating and seizing the accused's vehicle. When Detective Sergeant Olivares attended the accused's home to execute the search warrant, the vehicle was not there. The accused was arrested in relation to being in possession of a weapon that was located and seized in the course of the execution of the search warrant. He was taken to the Burwood Police Station in relation to that charge. That fact is irrelevant to the trial, but explains why he came to be at Burwood Police Station at the time the request was placed on him.
While the accused was at the police station in the company of his solicitor Mr Tabchouri, Detective Sergeant Olivares placed a "Form of Demand" on him under s 14 of LEPRA. The form used was a pro forma document available to police in which Detective Sergeant Olivares had completed certain details prior to speaking with the accused. The document was in the following terms: "I am Detective Sergeant Olivares attached to the New South Wales Police Force Homicide Squad. Do you understand that? A. Yes. Are you David Younes? A. Yes I am. I am going to request that you supply identification information under section 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 as I reasonably suspect that vehicle with New South Wales Registration BU51NU a 2005 silver Subaru W RX sedan was or may have been used in the commission of an indictable offence, that being the murder of Ali Jammas on Friday 12 July, 2013. I warn you that failure to comply with this request may be an offence under the Law Enforcement (Powers and Responsibilities) Act 2002. About 9pm on 16 June, 2013 in Greenacre you were stopped by police and told them you were the owner of this vehicle which was electronically recorded. Do you understand that? A. Yeap [sic] I now request you as the owner of the vehicle to disclose the name and address of the driver of, and any passenger in or on the vehicle between 5:30am and 11am on Friday 12 July, 2013, being the time the offence was committed. A I could not tell you who the driver was at that time officer a lot of people drive my car." [emphasis in original]
There is then a line of hash symbols below, under which the following words appear: "I now request you as the driver of the vehicle to disclose your name and address and the name and address of any passenger in or on the vehicle between 5:30am and 11am on Friday 12 July 2013, being the time the offence was committed".
There is no suggestion on the Crown case that the accused was the driver. The police officer was not asked any questions about those words appearing at the bottom of page 1. I infer that it was an oversight on the part of the police officer not to remove that option from the document in circumstances where he gave evidence that he was working from a pro forma document.
The document continues overleaf in these terms: "Q Who are the people who drive your car? A There are a lot of people who drive my car. Like my work van, my workers drive my work van. Keys are left in the letterbox in front of my house. Q You have a responsibility as the owner of a motor vehicle to know who is driving or using your motor vehicle. DYUT. A Yeah I understand that clearly. Q Are you refusing to supply to me the names and addresses of the persons who use your car? A No. I'm not. I don't know the addresses of the person, I can find out for you. Q Who can you nominate as using your car during the past four weeks. A Past four weeks, names Danny who was my driver as you know you took the car off his wife Jocelyn today. My neighbour across the road Goerks, he's unlicensed but he knows the keys are in the letterbox, he had the keys a couple of times to do some work on it [Q] And who else? [A] My worker Mehmet, he borrowed the car a couple of times, on the weekends, I can get his surname for you [Q] Who else? [A] I'm trying to think."
The Crown Prosecutor asked him the following questions about the second and fourth questions above: "Q. Sergeant, why did you ask that? What was the basis for you putting that, rather than asking, putting that proposition to him at that point? A. Number one, I wanted to remind him of his obligations to tell me who was driving his motor vehicle; and, number two, I thought that his answers to the previous questioning were being evasive. … Q. When Mr Younes answered in the paragraph that commences "Past four weeks' names", what was happening? How was he answering? How was he responding to that request of yours? A. Like I said before, I thought he was being evasive. He was conferring with Mr Tabchouri. I didn't hear what conversations they were having. But, at the same time, he wasn't telling me."
Detective Sergeant Olivares also gave evidence, that after the words "I'm trying to think" in the relevant document, he had a conversation with the accused's solicitor Mr Tabchouri outside the room in which he had been speaking with the accused.
The document goes on to state: "Q Your solicitor Mr Tabchouri has suggested that you will provide a list. Is that what you are willing to do? A Yes. I'll do some research and find out who's been driving the car. Q When will you make that list available? A Within a week. Q Will you supply the list by end of business 14/8/13? A Yeah no problems. Q Will you now read and sign these sheets for correctness of our conversation A Yes."
On 14 August 2013, the accused returned to the police station with his solicitor Mr Tabchouri and met with Detective Sergeant Olivares. The officer said, "Thanks for coming in. Do you have something for me?" The accused then produced a torn piece of paper with handwritten notes on it and gave that piece of paper to the officer. That document was in the following terms "Josclyn Younes Dany The accused - associates Gorgkahn Gegobacken - associates done ???? in my car they know password Mehmit onac (old worker) (myself) haven't driven since lost my licence"
Detective Sergeant Olivares gave evidence that the accused was not a suspect at the time that he made the request under s 14 of LEPRA on 6 August 2013. Mr Stanton did not challenge that assertion. Detective Sergeant Olivares also stated that he seized CCTV footage at the accused's premises during the execution of the search warrant on 6 August 2013, but said that he had not had an opportunity to view it prior to issuing the request on the accused.
In cross-examination, Mr Stanton put to Detective Sergeant Olivares that he did not have power to question the accused beyond the first question set out on page 1 of the "Form of Demand". He suggested that to ask the accused who had been driving the vehicle in the previous four weeks and to persist in questioning him was beyond the scope of s 14. He asked the officer whether the he considered the initial request to be still on foot as at 14 August 2013. Detective Sergeant Olivares agreed that he did. Although the officer initially indicated that he thought the relevant offence provision for failing to comply with s 14 of LEPRA was to be found in traffic legislation, he later agreed that it was to be found in LEPRA, consistent with what was contained on page 1 of the "Form of Demand" he prepared.
On 30 October 2013, the accused was arrested and charged with being an accessory after the fact to the murder of the deceased. He was also charged on that day with one count of concealing a serious offence contrary to s 316 of the Crimes Act as well as an offence contrary to s 17 of LEPRA.

Relevant legislation

Section 14 of LEPRA is relevantly in the following terms: "14 Power of police officer to request disclosure of driver or passenger identity 1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may do any one or more of the following: … (c) require any owner of the vehicle (who was or was not the driver or a passenger) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle."
Section 14 of LEPRA commenced on 1 December 2005, the same date as that Act commenced. A similar power was previously contained in s 6 of the Police Powers (Vehicles) Act 1998 (NSW), which was in the following terms: "6 Power of police officers to request disclosure of driver or passenger identity (1) A police officer who reasonably suspects that a vehicle was or may have been used in the commission of an indictable offence may request: (a) the driver of the vehicle to disclose his or her identity and the identity of any passenger in or on the vehicle at or about the time the offence was or may have been committed, or (b) any owner of the vehicle (who was not the driver) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the offence was or may have been committed, or both. (2) A police officer may make a request under subsection (1) only if, before making the request, the police officer: (a) provides evidence to the person that he or she is a police officer (unless the police officer is in uniform), and (b) provides his or her name and place of duty, and (c) informs the person of the reason for the request, and (d) warns the person that failure to comply with the request may be an offence."
Section 17 of LEPRA relevantly provides: "17 Failure of owner to disclose identity (1) An owner of a vehicle who is required in accordance with section 14 by a police officer to disclose the identity of the driver of, or a passenger in or on, the vehicle must (unless the owner has a reasonable excuse for not doing so): (a) disclose the identity of any person the owner knows or has reason to suspect was the driver or a passenger, or (b) if the owner does not know the full and correct identity of the person - disclose such information about the person's identity (such as any alias used by the person or the general location of his or her residential address) as is known to the owner. Maximum penalty: 50 penalty units or 12 months imprisonment, or both."
Section 138 of the Evidence Act is in the following terms: "138 Discretion to exclude improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
Section 90 of the Evidence Act is in the following terms: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
The Dictionary to the Evidence Act defines "admission" for the purposes of the that as: "…a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding."

Submissions on behalf of the accused

The primary submission made on behalf of the accused is that the power conferred under s 14 of LEPRA was confined to asking one question only regarding the identity of the driver or passenger. The questions asked by Detective Sergeant Olivares, such as who was "using your car during the past four weeks", are therefore outside the purview of the section. Mr Stanton submitted that there was no power or right for him to question the accused beyond requiring disclosure of the identity of the driver or passenger. Once the accused met the request by his first response, there was no basis for him to be further questioned. The appropriate course for the police officer to take at that stage was either to charge him with being in breach of s 14 or to give him a caution before continuing to question him.
Mr Stanton relied upon the fact that the accused was warned that a failure to comply with the request "may be an offence" as a basis to infer that the accused believed he was under an obligation to participate in the questioning in circumstances where he was not.
It was submitted that the failure to provide a caution meant that the evidence should be excluded under s 138 of the Evidence Act on the basis that it had been improperly obtained.
In his written submissions, Mr Stanton relied upon the observations made by Nicholson DCJ in R v Abuquta, Haytham [2011] NSWDC 12 at [10] that: "Section 14 of the Law Enforcement (Powers and Responsibilities) Act is about facilitating the investigation of traffic matters. It is not a back door to forcing those being investigated for serious criminal offences to incriminate themselves."
In his oral submissions, Mr Stanton conceded that Nicholson DCJ appears to have misstated the words of the statute and, this being a decision of the District Court, it is of no precedential value. Despite this, Mr Stanton relied upon the analogy of this being a "back-door" investigation of the accused which forced him to provide answers that would ultimately be used against him.
As for the paper provided to Detective Sergeant Olivares by the plaintiff in the presence of his solicitor on 14 August 2013, Mr Stanton submitted that the first request was answered on 6 August 2013. In those circumstances, the attendance by the accused on 14 August 2013 could not be a continuation or extension of the first request. The request should either have been renewed or made again, but it never was. In circumstances where the first request was exhausted, there was no power for police to receive the note from the accused on 14 August 2013. Mr Stanton also relied upon the same argument as pertains to the earlier questioning; namely, that there should have been a caution as what occurred was akin to questioning in the nature of an ERISP.
In response to questioning by me, Mr Stanton conceded that it was open to Detective Sergeant Olivares to make the request under s 14 of LEPRA on the accused and that therefore the first answer extracted at [8] above is admissible. It was the questioning thereafter to which he objected. Mr Stanton also referred in the alternative to it being improper for the prosecution to be able to rely upon the same evidence to sustain both a charge of being an accessory after the fact to murder, which carries a maximum penalty of 25 years' imprisonment, and a summary charge under s 17 of LEPRA that carries a maximum penalty of 50 penalty units or 12 months' imprisonment.
With respect to Mr Stanton's submission that a caution was required, he conceded that the accused was not a suspect at the relevant time and that there was accordingly no need to caution him in relation to any particular offence. Despite this, it was submitted, Detective Sergeant Olivares was required to indicate to the accused that he was not obliged to answer questions beyond the first question asked of him.
Finally, Mr Stanton submitted in the alternative that the evidence was also inadmissible under s 90 of the Evidence Act. He submitted that the question and answers pertaining as to who was driving the car were "admissions" within the meaning of the Evidence Act and that it would be unfair for the prosecution to be able to rely on those answers in the circumstances as stated above.

Crown submissions

It was submitted on behalf of the Crown that s 14 of LEPRA provides an investigatory tool to police and that this tool was used appropriately in the present case. The police were seeking information to assist in the investigation of the murder of the deceased. They suspected Barakat to have been involved in the shooting; the accused was not a suspect, but a potential witness. In those circumstances, there was nothing improper in the accused being asked to comply with the request. The Crown submitted that there was no offence in relation to which the accused could have been cautioned. Further, requiring a caution to be given would render the section "of no utility whatsoever".
The Crown Prosecutor went through the questions asked by Detective Sergeant Olivares of the accused on 6 August 2013 and submitted that all of them were efforts by that officer to elicit answers after the initial evasive answer provided by the accused. The officer was attempting to focus the attention of the accused on the relevant date and time. The Crown Prosecutor submitted that, in the absence of a prescribed procedure or time limit for requests under s 14, it could not be said that the section did not countenance the questions asked by Detective Sergeant Olivares.
The Crown Prosecutor indicated that it was the fact of not providing the name of Barakat per se that constituted the actus reus of the offence. In combination with other evidence, it was said that the jury would be entitled to infer that that the accused assisted Barakat by positively deflecting police attention away from him. For that reason, the Crown did not necessarily need to rely upon the "minutiae" of the questions and answers as contained in the "Form of Demand".
In all the circumstances, it was submitted, I would not conclude that the evidence was illegally or improperly obtained. If there were any impropriety, it would be of a low order. The balancing exercise that I am required to undertake would favour the admission of the evidence.

Consideration

The first question for consideration is whether I am satisfied on the balance of probabilities that the answers provided to police on 6 August 2013 by the accused, as well as the further note provided by the accused to police on 14 August 2013, were "improperly obtained".
No authorities were provided to me pertaining to the meaning of the word "request" in s 14 of LEPRA, nor to the scope of the questioning that the section permits. The word "require" is not defined in LEPRA. The Macquarie Dictionary relevantly defines the word "require" as "calling on authoritatively, order, or enjoin (a person, et cetera.) to do something…; to call for authoritatively or imperatively; demand." Although the formal request placed upon the accused was described as a "Form of Demand' whereas s 14 refers to a "request", nothing turns on this in circumstances where Mr Stanton submitted that the word "request" in s 14 is analogous to a demand. The "Form of Demand" describes the request as "as request to supply identification information".
I brought to the attention of the parties the decision of Fullerton J in Director of Public Prosecutions (NSW) v Horwood (2009) 78 NSWLR 32; [2009] NSWSC 1447, which considered s 11 of LEPRA. Section 11 in different terms from s 14, but similarly provides a police officer with the power to require the identity of a person if the officer: "…suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at all near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred."
The decision of Director of Public Prosecutions (NSW) v Horwood is authority for the proposition that s 11 abrogates the right to silence to the extent that it requires a person to comply with a request for his her identity. The decision is also authority for the proposition that, unless and until a person is arrested and charged with committing an offence, the person is obliged under s 11 to provide his or her identification even if he or she might be regarded as a suspect or potential suspect. In circumstances where there is no contention that the accused was a suspect at the time he was questioned, that case is not of assistance.
Mr Stanton made passing reference to the decision of the High Court in X7 v Australian Crime Commission & Another (2013) 248 CLR 92; [2013] HCA 29 as being relevant to the question of whether police had obtained the answers from the accused "improperly" for the purpose of s 138. That case was concerned with the statutory construction of a provision of the Australian Crime Commission Act 2002 (Cth). The High Court held by a 3:2 majority that that Act did not authorise an examiner to require a person charged with an offence to answer questions about the subject matter of the charged offence. The majority also held that permitting compulsory examination of a person charged with an offence would fundamentally alter the accusatorial process of criminal justice.
In the more recent decision of R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8, the High Court declined to extend what is described as the "companion principle" (the principle that the prosecution cannot compel the accused to assist it to prove its case) to persons who are suspects but have not as yet been charged. As it is not suggested that the accused was a suspect at the time he was questioned, this line of authority does not assist.
I accept that there is nothing in the statutory language of s 14 that specifically conditions the scope of the police officer's power to "require" the owner of the vehicle to "disclose the identity of the driver of, and any passenger in or on, the vehicle." Nor is there anything in the language of the section that confines the police officer to asking only one question.
Mr Stanton did not submit that Detective Sergeant Olivares lacked the power to place a request on the accused in the first place. The evidence given by Detective Sergeant Olivares that he had reasonable grounds to suspect that the accused's vehicle may have been used in connection with the shooting of the deceased was not challenged on the accused's behalf. Rather, the challenge is to the scope of the questioning of the accused by Detective Sergeant Olivares after his initial demand and also to the propriety of being able to rely upon it at all. In order to address this submission, it is necessary to go through that document and the questions contained therein in some detail.
Turning to the questions and answers set out in the "Form of Demand" (as set out above at [9]-[10]), the complaint made is that the initial answer given by the accused, "I could not tell you who was the driver at the time officer. A lot of people drive my car," was a complete answer. It was submitted that no further questioning was permitted after the accused gave that answer. I do not accept that the accused's first response was a complete answer to the question asked. Nor was it necessarily a refusal to answer. Had the police officer charged the accused under s 17 of LEPRA for failing to identify the driver at that time, no doubt the charge would have been defended on the basis that the accused had not been afforded sufficient opportunity to consider the matter, having regard to the fact that the relevant time period was three weeks prior to the questioning. Detective Sergeant Olivares gave evidence that he considered the first question to be evasive and hence sought to obtain a direct answer by further questioning. There is nothing in the language of s 14 that would oblige the police officer to stop his or her questioning after an initial request yielded an incomplete answer.
Detective Sergeant Olivares' next question was "Who are the people who drive your car?" This was clearly in direct response to the question beforehand that the accused could not answer the request because "a lot of people" drive his car. In response to the officer's second question, the accused repeated that a lot of people drive his car and then went on to describe how many workers drive his work van. That answer was non-responsive.
Detective Sergeant Olivares then went on to explain what he described as the accused's "responsibility" as the owner of a motor vehicle to know who is driving or using his vehicle. It is not clear to me that such an obligation exists in the relevant traffic legislation. Neither Mr Stanton nor the Crown Prosecutor could identify that law with any precision. Mr Stanton's position was that it did not matter whether the statement of the law was a correct statement of the law; suggesting it to the accused was not permitted by s 14 of LEPRA. I note that when the officer informed the accused of that law, the accused replied that he "clearly" understood that.
Although I am of the view that informing the accused that he had this "responsibility" was unnecessary, I do not conclude that it was improper or beyond the scope of the request being made under s 14 of LEPRA to do so. The fact is that the accused had an obligation to comply with the request. The accused did not give evidence on the voir dire, so there is no evidence as to what he did in fact understand. I could not be satisfied on the balance of probabilities that the accused was misled by that statement in any way.
It was after the accused indicated that he understood his obligation as the owner of a vehicle that Detective Sergeant Olivares squarely asked him whether he was refusing to supply the names and addresses of the persons who use his car. Although the language in that question lacks some precision, I am satisfied that that question was permitted as, after having received two or three evasive of non-responsive answers, the officer was considering whether there was any point in continuing to attempt to ascertain the driver of the vehicle from the accused. It is to be inferred (although no questions were asked of the officer on this issue) that, had the accused answered that question in the affirmative, he may have been charged with failing to supply identity information at that time.
The accused indicated that he was not refusing; rather, he said that he just didn't know the addresses of the persons. He volunteered that he could find out their addresses for Detective Sergeant Olivares.
Specific complaint is made concerning Detective Sergeant Olivares' next question to the accused. That question was as to who had driven the car in the "last four weeks". The officer gave evidence that this related to the time period from the date of the offence until 6 August 2013. NSW Police only have the power under s 14 of LEPRA to request the relevant information as to who the driver or passenger was "at about the time" of the offence. Despite this, the police officer had a duty to ensure that the accused was either failing to comply with the section or complying with it in circumstances where a failure to comply constitutes an offence. The questioning being extended from the date of the offence to the date of questioning was directed at ascertaining whether the accused was being evasive rather than truly unable to remember.
It is difficult to see what impropriety attaches to the accused being asked who was driving his car from the date of the offence until 6 August 2013. The accused had given an answer to the effect that he could not remember who was driving it at the relevant time. Detective Sergeant Olivares' question could be considered an attempt to assist the accused with his recollection. In circumstances where the accused was not a suspect and that evidence could not have been used in relation to any other offence at that time, the fact that it does not fall squarely within the terms of s 14 does not lead me to conclude that it was improperly obtained.
The accused eventually nominated the names of persons whom he said had used his car during the past four weeks. That time period included the date of the offence. It was at a time when the accused indicated that he was "trying to think" about further names that the accused's solicitor Mr Tabchouri offered that his client provide a list to police at a later date. The accused indicated he would do some research to find out who was driving his car. He indicated he could supply such a list by close of business on 14 August 2013, about a week later.
I do not accept the contention advanced by Mr Stanton that the accused should have been cautioned part-way through this questioning. He was not suspected of having committed a criminal offence. Although it is to be accepted that, absent a statutory provision to the contrary, all individuals have the right not to be compelled on pain of punishment to answer questions by police, there is no requirement for a police officer investigating an offence to warn a witness that they have the right not to assist police with their enquiries.
As for the complaint that s 14 does not permit questioning at large, I do not accept that that is what occurred. The questions were all directed to the single topic permitted by the section; that is, ascertaining the driver at the relevant time. If the accused had not been so evasive, the questioning may not have persisted.
Mr Stanton relied upon the fact that the "Form of Demand" sought information as to the driver and passenger, but the questions only pertained to who was the driver. I do not see how the accused could have been expected to have known who the passengers might have been if he was not in the car, unless he made further enquiries of the person to whom he had given the car. Nothing turns on this in my consideration of the admissibility of the evidence.
I sought clarification from Mr Stanton as to which aspect of the "right to silence" he asserted his client was denied by reference to the six separate immunities enumerated by Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30-31 being: "(1) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies; (2) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them; (3) a specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind; (4) a specific immunity, possessed by the accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock; (5) a specific immunity possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority; (6) a specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by the accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial."
Mr Stanton indicated that it was the first two of these immunities that he sought to invoke. The Crown Prosecutor submitted that it was really confined to the first of them and that s 14 abrogated that first immunity.
The accused was warned that a failure to comply with the direction amounted to an offence. Despite this, complaint was made about a lack of a general caution. When I pressed Mr Stanton as to which offence the accused should have been cautioned in relation to, none was identified. Rather, Mr Stanton responded that Detective Sergeant Olivares had no power to question repeatedly to the extent that he did without a caution in circumstances where the accused's right to silence had been expressly abrogated by s 14.
Overall, the proper construction of s 14 makes it plain that the section provides police with the power to require owners of vehicles to assist police in their investigation of indictable offences by nominating, relevantly, the driver or passenger of their vehicle at a particular point in time. I am satisfied that there was nothing improper about police questioning the accused at the time that they did and in relation to the subject matter that they did.
Although the accused was under arrest on 6 August 2013 in relation to the alleged possession of a weapon, that evidence will not be led by the Crown in the trial. He was cautioned in relation to that matter and exercised his right to silence. His status as being under arrest for that matter is not relevant to the question of the scope of s 14 of LEPRA.
I turn to the handwritten note that the accused provided to Detective Sergeant Olivares on 14 August 2013 in the presence of his solicitor Mr Tabchouri. The accused's solicitor had arranged for him to provide the list to police. Mr Stanton submitted that the advice of the accused's solicitor in this regard was wrong. It was said to be improper that police accepted that note from the accused in the presence of his solicitor. Mr Stanton submitted: "One of the machinations that happened between Mr Tabchouri and Mr [sic] Olivares, even if the parties, they were clearly compliant with what was being mooted and what was agreed and what was executed, that didn't make it available, and therefore admissible under the section. There was no right in Mr Tabchouri to make that suggestion, and there was no right in Detective Olivares to agree to it…The business of providing a list of that process is novel, unsanctioned, and certainly not binding against my client."
I am not satisfied that it was improper or unfair for Detective Sergeant Olivares to receive the note in the circumstances. When Detective Sergeant Olivares accepted it from the accused in the presence of his solicitor, he was not to know what it contained. After he read its contents, it is clear that he took the view that the list was incomplete. He indicated that he would be continuing investigations. This was a comment by Detective Sergeant Olivares and does not constitute further official questioning. The questions on that occasion largely came from the accused.
No evidence was elicited on behalf of the accused in support of the application to exclude the evidence on the basis that it was obtained improperly. Nor was there any evidence from Mr Tabchouri about his role in making the offer that the accused provide a list of names to police at a later date. On the evidence before me I am not satisfied that he was not permitted to make that offer.
The next question is whether the evidence was obtained improperly because, even though the accused was not a suspect at the time he was questioned, he later became one. On this submission, the retaining of the evidence after the accused had become a suspect would amount to an improper "obtaining".
In order for evidence to be excluded under s 138 there has to be some improper or illegal conduct on the part of police. The weight of the authorities suggests that, for the purposes of s 138, there must be a causal connection between an impropriety or illegality and the "obtaining" of the relevant evidence: per Howie J in R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97 at 89, citing Simpson J (as her Honour then was) in R v Dalley [2002] NSWCCA 284 at [186].
No impropriety or illegality has been established. It was not suggested that Detective Sergeant Olivares had formed the view that the accused was a suspect and then used s 14 of LEPRA as a way to circumvent his right to silence. In such a case, an accused person may be able to demonstrate a causal link between improper conduct on the part of police and the evidence obtained as a result. That is not this case.
Mr Stanton's alternative argument was that, even if I were not satisfied that the accused's answers had been improperly obtained, it is "an abuse" for the prosecution to be able to rely upon the same evidence in support of a minor summary offence as in support of the serious charge before me. I inquired of Mr Stanton as to what relief he sought in relation to that alternative argument in circumstances where it did not rely upon an assertion of inadmissibility. He indicated that, if I were to rule the material admissible, he would consider his client's position but it may be that he would seek a stay of the indictment on the basis that the current prosecution amounts to an abuse of process. I will consider that application if and when it is made.
As for Mr Stanton's final submission that the material should be excluded under s 90 of the Evidence Act, that section provides that I may refuse to admit evidence of an admission to prove a particular act if "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." Putting to one side the question of whether the accused's representations come within the broad definition of "admissions" in the Dictionary to the Evidence Act, Mr Stanton was unable to point to anything unfair about the "circumstances" in which they were made beyond the submissions going to whether they were improper; namely, that the questioning went beyond what is permitted by the section.
I note for completeness that Mr Stanton did not seek exclusion of the evidence under s 137 of the Evidence Act. No doubt this was because he would have to establish "unfair prejudice" in the material being admitted into evidence in the sense that there is a real risk that the evidence would be misused by the jury in some unfair way: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at para [91]. I am unable to identify any such prejudice.
Finally, I am not of the view that the language of s 14 is ambiguous. It clearly states that police may, inter alia, require an owner of a motor vehicle to provide identity information in the circumstances set out in the section. In light of this finding there is no need for me to have regard to the relevant Second Reading Speech as an aid in the construction of the provision: see s 34 of the Interpretation Act 1987 (NSW). Despite this, it is of interest to note that the Second Reading Speech for the Police Powers (Vehicles) Bill 1998 (which included the predecessor to s 14) stated that the Bill "…overcomes gaps in the law which relate specifically to the use of vehicles in crimes." The Minister identified the relevant "gap" as the "…inability of police to demand that the owner of a vehicle identify who was driving the vehicle at the time a serious offence was committed." It was said that this gap "reinforced a strict code of silence" with respect to serious crime. The Minister acknowledged that the existing power to demand information from owners of vehicles in relation to traffic offences did not extend to serious crime.
For the reasons set out above, I refuse the application. ORDER
The application by the accused David Younes to have evidence of questioning pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) excluded is refused.

Amendments 18 January 2017 - Publication restriction note removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2017

Evidence Act 1900(NSW)

Police Powers (Vehicles) Act 1998(NSW)

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