New South Wales Court of Criminal Appeal CITATION: Abreu v DPP [2007] NSWCCA 183 HEARING DATE(S): 21 June 2007 JUDGMENT OF: Beazley JA at 1, 17; Grove J at 2; Simpson J at 18 EX TEMPORE JUDGMENT DATE: 21 June 2007 DECISION: Remitted to District Court CATCHWORDS: CASE STATED - HEARING IN DISTRICT COURT ON APPEAL FROM LOCAL COURT - LIMITED NATURE OF PROCEDURE AFFIRMED - WHETHER ISSUES RAISED SHOULD HAVE BEEN CONSIDERED - AFFIRMATIVE ANSWER LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995 CASES CITED: R. v Madden [1995] 85 A Crim R 367 Thomas v The King (1937) 59 CLR 279 PARTIES: Jeffrey Antonio Abreu v New South Wales Director of Public Prosecutions FILE NUMBER(S): CCA 2007/689 COUNSEL: G. Jauncey (Applicant) P. Ingram (Respondent) SOLICITORS: T. Voros (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/22/0437 LOWER COURT JUDICIAL OFFICER: Bennett DCJ IN THE COURT OF CRIMINAL APPEAL 2007/689 BEAZLEY JA GROVE J SIMPSON J Thursday 21 June 2007 JEFFREY ANTONIO ABREU v NSW DIRECTOR OF PUBLIC PROSECUTIONS Judgment 1 BEAZLEY JA: The Court is in a position to answer the stated case. I will ask Grove J to give the first judgment. 2 GROVE J: Before the Court is a Case Stated by Bennett DCJ sitting at Parramatta District Court. Such is made available by s 5B of the Criminal Appeal Act 1912. The Court is limited to answering specific questions raised and should not refer to any other material which is not referred to in the Case Stated: Thomas v The King (1937) 59 CLR 279. The Court is not hearing an appeal against conviction and, as has been done in this instance, annexure of the reasons for judgment to the Case Stated does not alter the limitation. 3 No form is specified in the Act or Rules but it is appropriate for the judge to set out the findings of fact which have been made relevant to the questions of law which are posed. The Case Stated to which the judge appends his or her signature emerges from draft or drafts submitted by the parties. 4 The findings of fact are set out as follows: "3. I found the following facts. (i) At or about 5.50 am on 17 February 2006 in the Belfield area, Senior Constable Egner noticed Mazda motor vehicle, registered number MDZ 001. He made inquiries and was informed the owner of that particular vehicle had had his driver's licence suspended by 'the RTA' from 14 February 2006 to 14 May 2006. This fact was not disputed before me. (ii) Upon stopping the vehicle Senior Constable Egner had the following conversation with the Appellant, who was the driver of the vehicle at all relevant times:- a) Senior Constable Egner said to the Appellant, 'Hi there, you got your licence there? I'll just let you know you are being recorded on audio and video by the police car.' b) The Appellant replied 'yeah' and produced a NSW driver's licence no 13360980 in the name of the Appellant. c) Senior Constable Egner then said to the Appellant, 'The reason I stopped you is because the owner of this car is suspended. You're the owner of the car?' d) The Appellant replied, 'Yeah.' e) Senior Constable Egner then asked, 'You suspended?' f) The Appellant replied, 'I don't think I'm suspended yet.' g) Senior Constable Egner then asked, 'When do you think you're suspended from?' h) The Appellant replied, 'Thought it was the end of this month.' i) Senior Constable Egner then asked, 'This month? So you've received notification from the RTA then?' j) The Appellant replied, 'Yep.' k) Senior Constable Egner then stated, 'Your suspension started on the 14th.' l) The Appellant then asked, 'Of this month?' m) Senior Constable Egner replied, '14th of February.' 4. The substance of the conversation, set out in paragraph 3 above, was also not disputed before me. However, the legal representative of the Appellant objected to any of the conversation, set out after paragraph 3 (ii)(d) above, going into evidence, on the basis that the Appellant was not cautioned by Senior Constable Egner, after he stated he was the owner of the vehicle. The legal representative of the Appellant specifically relied upon the provisions of sections 139 and 138 of the Evidence Act 1995 in this regard. 5. The legal representative of the Crown submitted that the evidence of Senior Constable Egner before the Local Court (exhibit A before me) was that the Appellant was not under arrest when spoken to by Senior Constable Egner, Senior Constable Egner was simply making inquiries as to whether the Appellant had received notification of his licence suspension from 'the RTA'. And it was not until Senior Constable Egner formed the belief that the Appellant had received some notification of the suspension of his licence, that he understood there to be sufficient evidence for the offence to be made out." 5 His Honour set out his determination: "I determined that: 1. the defence of honest and reasonable mistake applies to the offence in question. Specifically, if the Appellant was unaware his driver's licence was suspended and that lack of knowledge was reasonable in all the circumstances, he would have a defence to the matter in question; 2. having considered the provisions of sections 138 and 139 of the Evidence Act there is no doubt that Senior Constable Egner was an investigating official who was questioning the Appellant in that capacity; 3. pursuant to section 139(5)(a) of the Evidence Act it was perfectly reasonable for that police officer to have taken the view that there was insufficient evidence for the offence in question to be made out until the point in time that the Appellant acknowledged having received notification of the suspension from 'the RTA'. However any conversation with the Appellant after that point in time, in the absence of a proper caution, would not be admissible. In other words, for the offence in question, a police officer would not be required to issue a caution prior to the Appellant acknowledging whether or not he had received notification from the 'the RTA'. I therefore excluded from my deliberations that part of the conversation commencing at paragraph 3(ii)(k) above with Senior Constable Egner asking the Appellant 'Your suspension started on the 14th', the Appellant then asking 'Of this month?' and concluding with Senior Constable Egner stating '14th of February'; I further determined that, on the facts found by me, the defence of honest and reasonable mistake was not made out and dismissed the appeal." 6 In the light of the final paragraph, it needs to be reiterated that the Case Stated procedure is not intended to amount to an appeal against the ultimate determination: R v Madden [1995] 85 A Crim R 367. 7 Upon those facts the questions of law were expressed in these terms: "1. Did I err in law in determining, for the purposes of sections 138 and 139 of the Evidence Act 1995, that it was reasonable for a police officer to believe it was not necessary to caution a driver, pursuant to the provisions of section 139(1)(c) of that Act, until the driver acknowledged whether or not he had received a notification of suspension of driver licence from 'the RTA'? 2. Having determined s.139(5)(a) of the Evidence Act 1995 did not apply and thus admitting into evidence certain parts of the conversation between the Appellant and Senior Constable Egner, did I err in law in not considering whether that same evidence should have been excluded pursuant to sections 139(5)(b) and 139(5)(c) of the Evidence Act 1995?" 8 Question 1 is defective on its face. It makes enquiry as to the belief of "a police officer" which seeks a broader opinion than emerges from the scope of the instant matter. It would appear that it was intended to focus upon the finding expressed in the first sentence of par 3 of the determination, which is above set out. His Honour's finding that it was "perfectly reasonable" for the police officer to have taken a particular view is a finding of fact concerning the belief of the police officer and, as this is not an appeal from his Honour's judgment, it is not open to the appellant by Case Stated to challenge a finding of fact. It does not transmute the issue into a question of law to incant at the beginning of the question "did I err in law". 9 I would decline to answer question 1. 10 Question 2 introduces references to ss 139(5)(b) and (c) of the Evidence Act 1995. There is nothing in the facts found which relates to those provisions. In Madden it was held that, if the appellant wants to reply on an expressed or implicit finding made by the judge, it should be set out in the Stated Case. The same would apply to an assertion that some issue had been omitted from being considered at all. 11 It may be that there was no evidence before his Honour to make a determination of the applicability of those subsections. The Case Stated is silent on the point. With some reluctance to venture beyond the Case Stated, I note the concession by the Crown Prosecutor in his submissions that there had been submissions relating to those provisions of the Evidence Act made in the District Court. If his Honour had been of a view that a ruling on those submissions was immaterial or irrelevant, this could have been stated. In that absence, it can only be said that there might be a presumptive error of law in failing to determine a material issue. 12 The focus of question 2 implies that his Honour did not consider any evidence which may have fulfilled the terms of the subsections, and, in the absence of a finding that there was no evidence or a finding of immateriality, the issue should have been considered. 13 Some submissions to this Court suggested that it should provide an answer to such consideration, but for the reasons adumbrated, that is not for this Court presently to resolve. 14 However, insofar as question 2 asks whether his Honour should have considered the matter, I would answer in the affirmative. 15 I would formally answer the questions posed: Question 1: Decline to answer. Question 2: Yes. 16 The Case Stated should be returned to the District Court to be dealt with accordingly. 17 BEAZLEY JA: I agree. 18 SIMPSON J: I also agree. 19 BEAZLEY JA: The orders of the Court are those proposed by Grove J. (Mr Jauncey applied for costs. The application was opposed. The Court considered the application over a short adjournment). 20 BEAZLEY JA: The application for costs in the matter of Abreu we will now deal with as well as another order in the principal proceedings. 21 GROVE J: In the application for costs by the successful appellant in the case stated, I should note that the Court has been referred to the decision of Robinson v Woolworths [2005] 158 A Crim R 546 and also to the decision of the Court in Proust v Blake (1989) 17 NSWLR at 267. Having taken those cases into consideration, I propose that we add to the orders already made an order that the respondent pay the appellant's costs of the case stated. 22 I would also add a further order, which should have been made initially, that an extension of time for lodging of the case stated be granted. 23 BEAZLEY JA: I agree with those orders and having considered the cases to which his Honour has referred with his reasons. 24 SIMPSON J: I also agree. 25 BEAZLEY JA: The orders of the Court are those proposed by Grove J. ********** 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.