Paterson v Martin [1966] HCA 68; (1966) 116 CLR 506 (4 November 1966)

HIGH COURT OF AUSTRALIA

PATERSON v. MARTIN [1966] HCA 68; (1966) 116 CLR 506

Vehicles and Traffic - Evidence

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Vehicles and Traffic - Offence - Failure of vehicle to stop after accident - Refusal of owner to answer questions by police as to identity of driver - Whether inference should be drawn that owner of vehicle the driver at time of offence - Traffic Act, 1919-1964 (W.A.), s. 29 (1).

Evidence - Burden of proof - Refusal of owner of vehicle to answer questions by police as to identity of driver - Whether inference should be drawn that owner was the driver.

HEARING

Perth, 1966, September 19;
Sydney, 1966, November 4. 4:11:1966
APPLICATION for Special Leave to appeal from the Supreme Court of Western Australia.

DECISION

November 4.
The following written judgments were delivered:-
BARWICK C.J. The applicant was charged before a stipendiary magistrate that, failed to stop immediately after its occurrence: s. 29 (1), Traffic Act, 1919-1964 (W.A.). (at p508)

2. On Saturday, 10th April 1965, a pedestrian named Swaine was killed by a utility truck which, having struck him in Rokeby Road, Subiaco, did not stop. The magistrate was satisfied that the applicant was the owner of that vehicle but was not satisfied that he was its driver at the relevant time. (at p508)

3. There was no direct evidence before the magistrate of the identity of the driver of the vehicle at the time of the accident. But it was proved that on Monday, the 12th, after the publication of a newspaper article reporting the accident and saying that detectives were anxious to interview the driver of a vehicle of which a general description was given, the applicant, with a knowledge of the newspaper article and accompanied by his solicitor, brought his vehicle to the C.I.B. office. He handed to a police officer a written statement that he was its owner and that he desired to tender it for police inspection. When asked by the police officer, "What have you come to the C.I.B. office for and what do you want to see us for?", the applicant said, "I don't want to answer that or any other question". His solicitor then said, "He has told me that he desires to tender his vehicle for police inspection in connexion with the death of a man named Swaine at Subiaco on Saturday night - as requested in today's issue of the West Australian" - this being a reference to the said newspaper article. Thereafter, a series of questions were put to him by the police officer, including "Did you drive your vehicle along Rokeby Road about 11.45 p.m. on Saturday night?", to all of which he replied, "I do not wish to answer". (at p509)

4. The magistrate, as he says, was "invited to infer that the defendant" (applicant) "because of his ownership and refusal to give the information as to the driver and because he has failed to give evidence at the hearing should be found to be the driver". He thought that there were other explanations equally consistent with the unwillingness to answer questions as an inference that the applicant was the driver of the vehicle at the material time, and that, until a prima facie case was established, the failure to appear to give evidence did not become an element whereby an inference of guilt could be drawn. He finally said: "I decline the invitations. I will not draw the inference and I am not willing to arrive at the conclusion that the defendant (applicant) was the driver." Accordingly, he dismissed the complaint against the applicant. (at p509)

5. The prosecutor obtained an order to review upon the grounds that the magistrate was wrong in law in that he held:

"(a) That there was not sufficient proof of the identity of the driver of the motor vehicle as alleged to entitle him to

convict the respondent (defendant); and
(b) he refused to draw an inference from the evidence adduced
that the respondent (defendant) was the driver of the said
vehicle at the relevant time." (at p509)

6. The powers of the Supreme Court upon an order to review are to be found in s. 205 of the Justices Act, 1902-1965 (W.A.). No additional material was received in evidence by the Supreme Court. Having considered the evidence before the magistrate, the Full Court of the Supreme Court set aside the magistrate's order of dismissal and remitted the case to the magistrate with a direction to convict the applicant and deal with him according to law. The Court's reason for so doing is expressed in the following passage: " . . . when the defendant was asked, 'Who was the driver?' and he replied, 'I do not wish to answer', then having regard to the press item and the defendant's early call, I feel that there was evidence which clearly pointed to his being the driver - because if he had not been the driver one would have expected him naturally to say, 'I was not the driver'. Perhaps he might have stopped at that and refused to go any further. But when asked this very important question, to say, 'I do not wish to answer' seems to me to forge the final link which justified the Court in drawing the conclusion that he was in fact the driver." (at p510)

7. The power exercised by the Court was a power to remit the matter to the magistrate for rehearing with a direction of law. The passage I have quoted from its judgment must mean that the Full Court was of opinion that the magistrate upon the rehearing was bound to infer that the applicant was the driver of the car and that the magistrate had erred in law in not doing so at the original hearing: see the grounds upon which the order for review was granted. (at p510)

8. It is clear from the magistrate's reasons for dismissing the complaint that he had not held that no inference that the applicant was the driver could be drawn, but had said that he would not draw that inference. (at p510)

9. Even if the unwillingness of the applicant to answer questions could in the circumstances support an inference that he was the driver of the vehicle, a matter to which I shall return later, the magistrate, in my opinion, was not bound to draw that inference and could not properly be directed to do so. His refusal to infer that the applicant was the driver was not, even on that assumption, an error of law. It was submitted that the magistrate was in error in not holding that there was a prima facie case and thereafter using the failure of the defendant to give evidence as material upon which an order of conviction could be made. It may be that, on the assumption that it could be inferred that the applicant was driving the vehicle, the magistrate might have held that the possibility of such an inference together with the other evidence made out a prima facie case, leaving the question as to whether or not he would draw the inference till later in the proceedings. But, even so, in my opinion, he was not entitled, in considering whether he would draw that inference, to have regard to the failure of the defendant to give evidence. Of course, if he was prepared to draw that inference, he could regard the applicant's failure to give evidence as of some consequence. But if he was unwilling to draw the inference at the conclusion of the Crown case, he was entitled, in my opinion, to hold that a case, even prima facie, had not been made out against the applicant. Consequently, assuming that the unwillingness of the applicant to answer in the circumstances warranted an inference that the applicant was the driver of the vehicle, the Full Court, in my opinion, was in error in a radical respect in directing the magistrate to convict the applicant. That the magistrate had expressly indicated his unwillingness to draw the inference serves but to emphasize the incorrectness of the course taken by the Supreme Court. (at p511)

10. Consequently, for these reasons, upon the assumption I have so far made as to the availability of an inference that the applicant was the driver, I would grant special leave to appeal. (at p511)

11. But I desire to add that, in my opinion, the unwillingness of the applicant in the circumstances to answer any questions did not afford any ground for an inference that he was the driver of the car. I do not think he was called upon in those circumstances to disavow that he was the driver. He was entitled so far as the present charge is concerned to maintain his silence and in the circumstances no hostile inference could be drawn against him because he did so. This is not a case of what I might call a selective refusal to answer in circumstances where a person would be expected to answer a particular question. The applicant's unwillingness to answer questions was general and, further, was not evidenced at a time when, in my opinion, if he was not the driver, he would be expected, in the normal course of human affairs, to answer. (at p511)

12. Special leave should be granted and as the parties have fully argued the matter, the argument on this motion should be taken as the argument of the appeal. The appeal should be allowed, the order of the Supreme Court set aside and in lieu thereof the order of the magistrate should be confirmed. (at p511)

McTIERNAN J. The question involved in this motion is whether it is reasonable to draw from the conduct of the defendant, while the detective was interrogating him, an inference that in all probability he was, at the time the accident occurred, the driver of the motor vehicle involved in it. For my part I do not think the question is one deserving of special leave to appeal. The conduct of the defendant on that occasion is admissible against him. But the weight of the inference does not seem to me to be one that can be determined by reference to precedents. The circumstances of the interrogation are always important. It is useful to state what the circumstances were in the present case. (at p511)

2. As a consequence of a report on the accident published in a daily newspaper the defendant and his solicitor came to the detective office. The solicitor referred to the report in the presence of the defendant when they began their interview with the detective. The report stated that detectives are seeking the driver of an old model utility who was seen driving away from the scene of the accident and it was believed that the driver of this vehicle could help the police in their inquiries. The defendant brought to the detective office a motor vehicle answering the description published in the newspaper. He gave to the detective a statement admitting ownership and saying that he tendered it for police inspection. He did not admit or deny that it was the motor vehicle involved in the accident. (at p512)

3. On the hearing of the charge against the defendant, the magistrate found that it was in fact that motor vehicle. (at p512)

4. No evidence was called for the defence: the defendant did not give evidence. The evidence adduced by the prosecution included no direct evidence of the identity of the person driving the motor vehicle when the accident occurred. (at p512)

5. The prosecution offered as proof that the defendant was the driver, his replies to questions which the detective asked him after he tendered the motor vehicle for inspection. (at p512)

6. The questions and answers were as follows:

"Q. What have you come to the C.I.B. office for and what do you want to see us for?

A. I don't want to answer that or any other question."

The defendant's solicitor intervened by stating:

"He has told me that he desires to tender his vehicle for Police
inspection in connexion with the death of a man named Swaine
at Subiaco on Saturday night - as requested in today's issue of
the West Australian."

The questions to the defendant and his answers continued as follows:

"Q. Why do you in particular desire to tender your vehicle? Were you involved in this accident?

A. I do not wish to answer.
Q. Would you care to tell me of your movement on Saturday
night (the night of the accident)?
A. I do not wish to answer." (at p512)

7. The detective then asked the defendant questions designed to obtain from him an admission or denial that on the night in question he drove the motor vehicle in the street where the accident occurred and whether his vehicle struck any person near the pedestrian crossing in that street. The defendant's response to each of such questions was: "I do not wish to answer." (at p513)

8. Evidence was given at the trial by a witness who was at the scene of the accident and observed the motor vehicle involved in it. The witness said that its left headlight was not burning, but the right headlight was. The detective evidently had taken a statement from the witness beforehand. He said to the defendant: "Is the left headlight of your vehicle burning now and was it burning on Saturday night or prior to Saturday night?" The defendant said: "I do not want to answer any further questions at this stage." (at p513)

9. Other questions and answers were:

"Q. Did you strike anybody anywhere with your vehicle on
Saturday night?
A. I do not wish to answer.
Q. Have you wiped your vehicle down since Saturday night?
A. I do not wish to answer."

The next question and answer were of special importance. They were:

"Q. Was any person using your vehicle with your permission
on Saturday night?
A. I do not wish to answer." (at p513)

10. The detective, the defendant and the solicitor then went to where the motor vehicle, which had been tendered for inspection, was parked. The detective said that the defendant at his request got into the vehicle and operated the headlight switch: the result was that the "right headlight functioned, the left did not". The detective asked the defendant whether he could see that "the left headlight is not working". The defendant made no answer. (at p513)

11. The detective pointing to the motor vehicle said to the defendant: "Would you care to tell me how this apparent fresh damage occurred?" The detective said that he indicated a small dent above the windscreen, the radiator grille and the left and right headlights. The defendant repeated: "I do not wish to answer." The detective then said to him: "The damage appears quite fresh?" The defendant made no answer. The evidence of eye witnesses of the accident was that a pedestrian was struck with great force by a motor vehicle travelling at a fast speed. The defendant's motor vehicle fitted the description which the eye witnesses gave of the vehicle responsible for the accident. (at p513)

12. The detective further said to the defendant: "What do you use the vehicle for?" He said: "I am a landscape gardener. I use it in my work." The detective then asked another question of special importance. He said to the defendant: "Do you refuse to say who was driving the vehicle on Saturday night?" His response was: "I do not wish to answer." (at p514)

13. The detective subsequently visited the defendant at his home. He said to the defendant: "We are continuing inquiries into the matter I spoke about to you previously. - Was your tail light burning on April 10th (the date of the accident)?" The defendant said: "I am not answering any questions." The detective said:
"Do you still refuse to tell me who was driving your vehicle on 10th?" The defendant repeated: "I am not answering any questions." (at p514)

14. In order to explain why the defendant was irresponsive to the detective's inquiries and statements the magistrate made a supposition which he expressed in these words: "The man's friend, his wife, his son, might have been driving. The desire to protect the person might have been present." There is no evidence to suggest that this was the case. In my opinion this supposition has no weight or validity at all. The magistrate decided, in effect, that the defendant's irresponsiveness was as consistent with his desire to protect some other person as it was with his consciousness of being the driver. For this reason the magistrate felt he could not draw the inference. Accordingly he dismissed the complaint "for lack of proof" that the defendant was the driver, although he was satisfied that the evidence adduced for the prosecution proved all other ingredients of the offence under s. 29 (1) of the Traffic Act with which the defendant was charged. (at p514)

15. The case was brought before the State Full Court by an order nisi to review the decision of the magistrate. The order was granted by a judge of the Supreme Court, pursuant to s. 197 of the Justices Act, on the ground of prima facie error of law on the part of the magistrate. The error was stated to be that the magistrate declined to convict because he did not consider the evidence was sufficient in law to support the allegation that the defendant was the driver of the vehicle in question at the material time. On the return of the order nisi it was the duty of the Court to make its own consideration of the evidence which was before the magistrate. It had the advantage that the evidence adduced for the prosecution was uncontradicted and there was no question of credibility. The Court had jurisdiction under s. 205 to form its own conclusion as to the true effect of the defendant's conduct throughout the interrogation by the detective. (at p514)

16. The learned Chief Justice of Western Australia, who gave the judgment of the Full Court, said: (at p514)

17. "Now the magistrate found that there was sufficient evidence (and I think there was very strong evidence) to prove that the defendant's vehicle was involved in the accident. But he considered that the evidence was not sufficient to point to the conclusion that the defendant was the driver. (at p515)

18. "I am of the opinion that the magistrate was wrong in this view. It is said that 'self-preservation is one of the first laws of nature' and when the defendant was asked, 'Who was the driver?' and he replied, 'I do not wish to answer', then having regard to the press item and the defendant's early call (at the detective office), I feel that there was evidence which clearly pointed to his being the driver - because if he had not been the driver one would have expected him naturally to say, 'I was not the driver'. Perhaps he might have stopped at that and refused to go any further. But when asked this very important question, to say, 'I do not wish to answer' seems to me to forge the final link which justified the Court in drawing the conclusion that he was in fact the driver." (at p515)

19. "In my view, there was a strong case pointing to the defendant being the driver and the magistrate should have convicted him. The case should be sent back to the magistrate with a direction to convict and deal with the defendant according to law." (at p515)

20. It seems to me that there is no occasion to discuss these reasons. In my opinion they are correct in substance. It does not seem to me that they give rise to a point warranting special leave to appeal. (at p515)

21. In my view a tacit admission by the defendant that he was the guilty driver wanted by the police can and should be reached by inference from the defendant's evasiveness. (at p515)

22. The order of the Full Court is in all respect within the powers conferred by s. 205. The order that the case be remitted to the Court of Petty Sessions and the direction attached to the order may be enforced by the machinery of s. 206 (f). The order of the Full Court is not the determination of the complaint. The order of dismissal having been set aside the determination of the complaint has to be completed. As the Full Court decided that the magistrate ought in the first instance to have convicted the defendant, the complaint cannot otherwise be determined than by the conviction of the defendant. I think that the whole direction is of the nature of a "direction in law". The motion should, in my opinion, be dismissed. (at p515)

MENZIES J. I agree that we should grant special leave to appeal and set aside the order of the Supreme Court directing a magistrate to convict the applicant of the offence charged under s. 29 (1) of the Traffic Act, 1919-1964 (W.A.). The order, if it stands, would require the magistrate to find that the applicant was the driver of his motor vehicle at the time that it was involved in an accident. (at p516)

2. Had the magistrate convicted the applicant of this offence, it would have been a question - although not, I think, a question for special leave - whether there was sufficient evidence to warrant the finding that the person charged was the driver of the vehicle at the time that it was involved in an accident. As to this, I express no concluded opinion but I would observe that a man volunteering some information to the police is not readily to be regarded as admitting, sub silentio, more than he volunteers although, of course, he may by his conduct admit more than he intends. As the matter comes to us, however, the question is merely whether the magistrate was bound to come to the conclusion, free from reasonable doubt, that the applicant was driving his motor vehicle upon the occasion in question. I am satisfied that the magistrate was not so bound, and I do not wish to add to what has been said on this point by the Chief Justice. A direction to a magistrate - who has plainly and not unreasonably said that he is not satisfied beyond reasonable doubt - to convict on the footing that he is so satisfied is not, I think, an order that we should allow to stand. (at p516)

3. I agree, therefore, with the order proposed. (at p516)

WINDEYER J. I agree with the Chief Justice that this application should be allowed and in the order that he proposes. (at p516)

2. Section 34 of the Traffic Act, 1919-1964 (W.A.) provides that the owner of a motor vehicle must, when required by a police officer, give any information which it is in his power to give which may lead to the identification of any person who was driving the vehicle when an offence under the Act is alleged to have been committed. Therefore the owner cannot say that he has a right to remain silent when asked who was the driver. He is bound to answer, for he is liable to a penalty of ten pounds if he does not. Nevertheless if, in defiance of the law and its sanction, he refuses to answer any question, I cannot think that the necessary and only inference is that he was himself the driver at the time. It may be that in some circumstances such an inference might be drawn from his silence. But the circumstances of this case do not I think reasonably lead to such an inference. Still less is it one that must be drawn. The direction to the magistrate to convict the applicant cannot be upheld. (at p516)

OWEN J. I agree with the order proposed by the Chief Justice. During the argument I was disposed to think that in all the circumstances the appellant's refusal to answer the questions asked of him by the police officer could justify an inference that he was the driver of the truck at the relevant time and place. Upon consideration, however, I am of opinion that such an inference was not open. But even if it was, it is plain that the magistrate was not prepared to draw it. Other inferences were certainly open and, with all respect to the members of the Supreme Court, I can see no justification for the direction to the magistrate that he should convict the appellant. (at p517)

ORDER

Special leave to appeal from the order of the Full Court of the Supreme Court of Western Australia granted. Appeal allowed with costs (including costs of motion for special leave). Order of Supreme Court set aside and in lieu thereof order that the order nisi to review be discharged and the order of dismissal of the magistrate be confirmed.