However, a recent case provides a timely reminder not only of the requirement to administer a caution to such persons, but also of the requirement to advise such persons of their other statutory rights, prior to questioning commencing.

Background

The City of Greater Dandenong (COGD) brought 152 identical charges pursuant to the Food Act 1984 (Vic) (“Food Act”) against three defendants, being:

1. L & A Bakery Pty Ltd, on the basis it was registered with the COGD as the owner and operator of a food business operating at 43 Douglas Steet Noble Park and trading as L & A Bakery. An ASIC search confirmed the registered office and principal place of business of L & A Bakery Pty Ltd was 43 Douglas Street Noble Park;
2. Mr Tran, on the basis he was a person concerned in the management of L & A Bakery. An ASIC search confirmed that Mr Tran was the sole director and secretary of the company and he had previously acknowledged to Council officers that he was involved in the running of the food business; and
3. Ms Tran, on the basis she was a shareholder in L & A Bakery Pty Ltd. An ASIC search confirmed Ms Tran held 50 shares of the 100 shares issued.  Ms Tran had also identified herself to Council officers investigating alleged breaches of the Food Act during multiple inspections by Council officers at the food business as the person who both served customers and updated the food safety program records for the food business.

Upon hearing the matter on an ex parte basis, His Honour found the charges proven beyond reasonable doubt against L & A Bakery Pty Ltd and Mr Tran.  However, his Honour dismissed all 152 charges brought against Ms Tran on the basis that he concluded Ms Tran was not a proprietor of a food business as defined under the Act and because his Honour held that an interview conducted by Council officers with Ms Tran during an inspection of the food business on 10 August 2021 was inadmissible.

Admissibility of field interview

His Honour was not satisfied that the admission evidence obtained during an interview with Ms Tran was admissible because its prejudicial effect outweighed it’s the probative value.  In exercising his discretion to exclude the admission evidence contained in the record of interview, such that the prosecution was unable to rely upon it, his Honour considered the record of interview was misleading and confusing, and given Ms Tran was not aided by an interpreter, the admission evidence it contained was unfairly prejudicial to her. Accordingly, his Honour had no regard to the record of interview and ultimately all 152 charges against her were dismissed.

The circumstances of the interview were:

1. The interview was conducted at the food premises at 43 Douglas Street, Noble Park;
2. Ms Tran was in attendance at the food premises when Council officers arrived;
3. Ms Tran had broken English and was not assisted by an interpreter;
4. Council officers issued a caution to Ms Tran before asking her any questions; and
5. After the caution was issued, Ms Tran stated that her role in the food business was: “I control a little bit… I do something here….I serve customer”. Ms Tran also stated she had worked at the bakery for nearly two years.

Critically, his Honour noted that although a caution had been administered, Ms Tran was not advised of her right to communicate with a lawyer, friend or relative prior to the interview taking place. His Honour held that the right to communicate with a third party must be administered to the interviewee contemporaneously with the commencement of the interview. His Honour was also critical of Council for failing to obtain the assistance of an interpreter when interviewing Ms Tran as he had concerns about how much of the conversation Ms Tran understood based on his reading of both the record of interview and the Informant’s statement.

Where does the need to caution arise from?

Sections 464A (2) and (3) of the Crimes Act 1986 (Vic) (“Crimes Act”) creates the caution which must be administered by an investigating official if a person is suspected of having committed an offence.  Section 464A(2) provides:

“If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—

1. inform the person of the circumstances of that offence; and
2. question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.”

His Honour was satisfied that the reference to ‘in custody’ in section 464A(2) referred to a person who was under investigation and being questioned by a Council officer because the phrase ‘in custody’ is defined in section 464(1) of the Crimes Act as including a person in the company of an investigating official and is being questioned or is to be questioned, or a person who is otherwise being investigated to determine their involvement in the commission of an offence.

His Honour was also satisfied that Council officers were ‘investigating officials’ as defined under s 464(1) of the Crimes Act, as: “a police officer or a person appointed by or under an Act (other than a police officer or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences”.  In this case, His Honour was satisfied that the officers questioning Ms Tran were investigating officials whose functions or duties included investigating alleged breaches of the Food Act on behalf of Council pursuant to delegated powers and functions.

The specific terms of the caution which is routinely administered by Council officers is contained in section 464A(3) of the Crimes Act, which provides: “Before any questioning (other than a request for the person’s name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.”

What else is required?

What was missed in this case was the requirement to inform Ms Tran that she had a right to communicate with a friend, relative or legal practitioner, as created by s 454C(1) of the Crimes Act, which provides:

“(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she—

1. may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
2. may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)— and, unless the investigating official believes on reasonable grounds that—
3. the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
4. the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed— the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

His Honour noted that the only exception provided in s 464C(1) is in the case of offences suspected of being committed under the Road Safety Act 1986.  There is no exception in respect of offences under the Food Act (or any other Act administered by Council, for that matter) and as such, Ms Tran was required to be advised of this right, prior to questioning.

Key takeaways

1. Go back to basics: Council officers investigating statutory breaches should refresh their knowledge of the Crimes Act and appropriately administer cautions and advise of other statutory rights. Consider formulating standard wording for Council officers to recite in the course of their investigative duties.
2. Consider the use of an interpreter as part of standard operating investigation procedures: whilst not always practical, there will be situations where the use of an interpreter during questioning is justified and which may assist the Magistrate in favourably determining the admissibility of crucial evidence relied upon by the prosecution, particularly when the evidence is likely to be used at an ex parte hearing.