Ali v SA Police No. SCGRG 95/792 Judgment No. 5160 Number of Pages 4 Criminal Law and Procedure

[1995] SASC 5160

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences - offences against the person - Assaulting police officer in execution of his duty - domestic dispute - wife, who had decided to leave matrimonial home owned by husband and his sister, wished to recover her possessions inside house - whether constable justified in attempting to enter house to make a path for her against expressed will of occupants - whether constable had reasonable cause to apprehend breach of peace and so acting in execution of duty when entering house.

HRNG ADELAIDE, 24 May 1995 #DATE 13:7:1995 #ADD 7:9:1995

Counsel for appellant:     Mr M Agar

Solicitors for appellant:    Michael Agar

Counsel for respondent:     Mr K Soetratma

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 COX J The appellant was convicted in the Elizabeth Magistrates Court on a complaint that alleged that on 9 October 1994 at Parafield Gardens he assaulted Michael Paul Klose, a member of the police force in the execution of his duty: contrary to s6 of the Summary Offences Act 1953. He now appeals against that conviction.

2. The charge arose out of a domestic dispute at a house at 74 Morgan Street, Parafield Gardens. The evidence of the witnesses was confusing and at times contradictory, but fortunately it is not necessary to go into it in detail for the purpose of this appeal.

3. The house at 74 Morgan Street was, at least until the day of these events, the matrimonial home of Shaheed Ali and his wife Sharina (Mr and Mrs Ali). The registered proprietors of the house were Shaheed Ali and his sister Farida Jezierski. The appellant was their brother. They had another sister, Abida Dajani, and another brother Naushad Ali. Naushad Ali had been living at 74 Morgan Street but on October 9 he was in the process of moving out. It appears that the appellant and his sisters Abida and Farida lived elsewhere. Mr and Mrs Ali had two children. The younger was born only a few days before October 9.

4. On the morning of October 9 Mr and Mrs Ali had an argument over the attitude and behaviour of Mr Ali's sisters and his brother Naushad. Mrs Ali said that Naushad was violent and that she was in fear of him. She left the house and took refuge with friends at 50 Morgan Street. Someone at no.74 told the police that Mrs Ali had a knife. The police went to 50 Morgan Street and spoke with her. After the police had left, Mr Ali visited his wife at 50 Morgan Street and they had another argument. Mr Ali took one of the children away. The police were called again and they went to 74 Morgan Street and spoke to Mr Ali. Later that day Mrs Ali went back to no.74 in order to collect her baby's clothes. She was refused admission. The police were called again. One of them was Constable Klose. It is obvious that Constable Klose wanted to assist Mrs Ali to enter the house in order to collect the baby's clothes. The alleged assault took place when he attempted to enter the house and the appellant (as the learned Magistrate found) shut the door on him, so that he was jammed between the edge of the door and the door frame. The case was fought on the facts - the appellant said that it was his brother Shaheed who shut the door on Klose - and also on the question whether Klose was acting at the time in the execution of his duty. Rather, it was said, Klose was a trespasser and the appellant was entitled to exclude him.

5. Evidence was given at the trial for the prosecution by Mrs Ali and Constable Klose and a number of other police officers who were there when the alleged assault took place. The appellant gave evidence in his defence and called his sisters Abida and Farida. Mr Ali did not give evidence. As I have indicated there was much confusion and contradiction in the witnesses' accounts of what happened. Generally speaking the learned Magistrate preferred the evidence of the prosecution witnesses. Two or three things are clear. Constable Klose believed that Mrs Ali had the legal right to go into the house. He understood that she lived there. It is plain that he thought in any event that it was only reasonable that she should be able to collect her things. He said in evidence that he decided to "go in and speak to the occupants and ask to come in peacefully and collect property and leave." Then the appellant came out of the house and began arguing with Mrs Ali. Mrs Ali's husband, Shaheed, was outside the house also. The appellant walked off towards the house saying that Mrs Ali would not be allowed in. Klose followed the appellant. He asked him to calm down and said that they wanted to go into the house to collect some property for Mrs Ali. The appellant told Klose that he could not come into the house. Then followed the incident at the door and the appellant's arrest. It is clear that Klose had resolved to enter the house and, indeed, was in the process of entering it when the door was shut, notwithstanding his having been told by the appellant that he might not enter. Klose said that he was entering to prevent a breach of the peace.

6. Whatever the rights or wrongs may have been in the dispute between Mr and Mrs Ali, it was quite unreasonable, to say the least, that Mrs Ali was being prevented from collecting the clothing of her week-old child. However, that does not necessarily dictate the legal position. The learned Magistrate took the view that this was Mrs Ali's matrimonial home and, while she had left it, she was nonetheless entitled to return and collect her property and to have the police present to ensure her safety while she did so. She granted the police a licence to enter and that licence could not be unilaterally revoked by her husband. It certainly could not be revoked by the appellant, he considered, even though he had a legal interest in the property. His Honour referred to Todd v O'Sullivan 122 LSJS 403 and Panos v Hayes 44 SASR 148. He found that Klose entertained on reasonable grounds an apprehension that there would be a breach of the peace, and that the appellant assaulted him while he was carrying out the duties occasioned by that state of mind. Accordingly he convicted the appellant.

7. There were several grounds set out in the appellant's notice of appeal but not all of them were argued. The main submission of Mr Agar, for the appellant, was that Mrs Ali lived at the house by the licence or permission of her husband that could be revoked at any time. On October 9 she separated from her husband who accepted the situation and revoked her permission to enter his house. There was no dispute or possible breach of the peace that could support Constable Klose's attempt to enter the house. Any unlawful attempt by Mrs Ali to enter to property of another could not be used to justify the police taking the very action that was likely to lead to a breach of the peace. Mr Soetratma, for the Crown, submitted that Mrs Ali, as an occupier of the property, had given Klose a valid licence to enter it although, he said, that was not essential to the prosecution's case.

8. There is authority for the view that the position of a wife, certainly a deserted wife, in the matrimonial home that is legally owned by her husband is not that of a mere licensee. She is lawfully there as his wife; the situation is sui generis. See National Provincial Bank Ltd v Hastings Car Mart Limited
(1965) AC 1175 at 1232. The common law position has been largely superseded in practice in Australia by s114 of the Family Law Act which entitles the Family Court to issue, at the instance of a party to a marriage, an injunction relating to his or her occupancy of the matrimonial home. Of course, it was a matter of complication here that the house at 74 Morgan Street was jointly owned by Mr Ali and Mrs Jezierski. So far as Mr Agars' licence argument is concerned, it is to be observed that even a bare licensee is entitled to reasonable time to leave the premises after his licence has been revoked, and that would ordinarily mean, I should suppose, being given enough time to get his things together and take them with him. There is a question whether and on what conditions the remedy of self-help may be available to a disgruntled licensee whose licence has been terminated but who is not actually on the premises. The interaction of notions of this sort and their application to this appeal were not really debated before me. It would be unwise, therefore, to say any more about the law than is necessary to decide this particular case.

9. Mrs Ali had left the house that morning and she told her husband shortly before the door incident that she did not intend to return. She said in evidence that she believed that she was entitled to enter the house and get her baby's clothes. However, she was refused entry by the appellant, and it is likely on the evidence that his brother and sister, who were the registered proprietors and were present at the time, acquiesced in his decision. As I have indicated, the question whether the possible remedies available to Mrs Ali in those circumstances included a right of forcible entry was not argued before me. Probably on the evidence it does not matter. Mrs Ali was obviously very dissatisfied about being excluded from the house, but her evidence does not indicate that she would have attempted to break down the door that had been shut against her or take any other threatening action. Mr Ali was outside on the lawn at all relevant times and, if there was any question of a breach of the peace on his part - and there was no evidence of it - it was not going to be inside the house. Certainly those who were inside were not well disposed towards Mrs Ali, but there was no reason to think that they would do anything about it as long as the door remained shut. So there was a stalemate. It was only Constable Klose's determination to get into the house, notwithstanding the appellant's inhibiting words and actions, that created a crisis. He decided to enter the house in order to clear a path for Mrs Ali. I am not persuaded, on the submissions I heard, that he was entitled to do that. Certainly it was not established, in my view, that the Constable had reasonable grounds for believing that such action was necessary to prevent a breach of the peace. He could not create such a situation by his own well-meaning but unnecessary, if not unlawful, action. If that is right, it means that Klose was not acting in the course of his duty when the appellant was resisting his entry.

10. I may say that I have every sympathy for the police in their handling of these difficult domestic disputes. However, the issue that was provoked by their charging the appellant in this case is not whether Klose had done his best to achieve a sensible solution in the interests of everyone, including Mrs Ali and her baby, but whether the appellant had committed an offence. I am not satisfied, on the evidence and the learned Magistrate's findings, that he had.

11. For these reasons the appeal must be allowed and the conviction set aside.