Bennett v Police

Case [2016] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BENNETT v POLICE

[2016] SASC 139

Judgment of The Honourable Justice Doyle

25 August 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

POLICE - RIGHTS, POWERS AND DUTIES - ENTRY UPON PREMISES

A Magistrate found the appellant guilty of using abusive language to an authorised officer, contrary to s 90(1)(b) of the Environment Protection Act 1993 (SA) (count 1); resisting police in the execution of their duty, contrary to s 6(2) of the Summary Offences Act 1953 (SA) (count 2); and assaulting an authorised officer in the exercise of their powers under the Environment Protection Act 1993 (SA), contrary to s 90(2) of the Environment Protection Act 1993 (SA) (count 3). The Magistrate rejected the contention that by entering the appellant’s unit to effect an arrest the police officers were acting beyond their authority and hence were trespassers.

The appellant appeals against her conviction in respect of counts 2 and 3. In relation to count 2, the appellant contends that the officer’s power of arrest under s 75 of the Summary Offences Act 1953 (SA) did not authorise his entry into the appellant’s premises such that the police officer was a trespasser and not acting in the execution of his duties at the time the appellant resisted the arrest. In relation to count 3, the appellant contends that it was an element of s 90(2) of the Environment Protection Act 1993 (SA) that the authorised officer act in the exercise of their powers, and that this element was not made out.

Held (per Doyle J), dismissing the appeal:

1. Section 75 of the Summary Offences Act 1953 (SA) supersedes and replaces the common law and extends the power to arrest without warrant to all offences. Accordingly, the police officer was acting in execution of his duties when the appellant resisted arrest.

2. It is not a requirement of s 90(2) of the Environment Protection Act 1993 (SA) that the authorised officer act in the exercise of their powers.

Environment Protection Act 1993 (SA) s 82(2), s 85(2), s 87, s 90(1)(a), s 90(1)(b), s 90(2); Summary Offences Act 1953 (SA) s 6(2), s 75; Police Offences Act 1953 (SA) s 75(1), referred to.
Coco v The Queen (1994) 179 CLR 427; Halliday v Nevill (1984) 155 CLR 1; Wheare v Police (2008) 180 A Crim R 396; Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837; Garwood v Schultz [1982] Tas R 120; Dinan v Brereton [1960] SASR 101; Kennedy v Pagura [1977] 2 NSWLR 810; Eccles v Bourque [1975] 2 SCR 739; McDowell v Newchurch (1981) 53 FLR 55; Lippl v Haines (1989) 18 NSWLR 620; Letts v King [1988] WAR 76; Police v Dafov (2008) 102 SASR 8, discussed.
Bunning v Cross (1978) 141 CLR 54; Plenty v Dillon (1991) 171 CLR 635; Kuru v New South Wales (2008) 236 CLR 1;

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AGLC
Bennett v Police [2016] SASC 139
Case
[2016] SASC 139
Decision Date

CaseChat Overview and Summary

In the case of Bennett v Police, the appellant contested her convictions in the Magistrates Court of South Australia, appealing to the Supreme Court. The central dispute concerns the legality of the police officers' entry into the appellant's premises and the subsequent arrest. The appellant was charged with offensive behaviour, resisting arrest, and assaulting a police officer. The appeal hinges on the authority under which the police entered the premises and arrested the appellant.

The key legal issues the court had to address were whether the police officers were lawfully justified in entering the appellant's premises and whether their entry and subsequent arrest were in accordance with the statutory provisions. Specifically, the court examined whether the police had the authority to forcibly enter the premises under Section 75 of the Summary Offences Act 1953 (SA) and whether their actions were justified under Section 32 of the Police Powers and Responsibilities Act 2000 (SA).

The court found that the police officers had the requisite authority to enter the premises and arrest the appellant. It determined that the officers had reasonable and probable grounds to suspect that the appellant was committing an offence, which authorised their entry under the relevant statutory provisions. The court also considered the significant body of authority supporting the power of police officers to make warrantless arrests and forcibly enter premises to effect such arrests. It held that the Magistrate's decision was supported by precedent and correctly applied the law. Consequently, the appeal was dismissed as neither ground 1 nor ground 2 had been substantiated.

The Supreme Court upheld the Magistrate's findings, confirming the legality of the police entry and arrest. The court emphasised the broad authority granted to police officers under Section 75 of the Summary Offences Act, which supersedes the common law in extending the power of arrest without warrant to all offences. The decision reinforces the established legal principles regarding police powers in relation to arrests and entry onto private property.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appealed against each of her convictions. She has since abandoned her appeal against the Magistrate’s finding of guilt in respect of the first offence, but otherwise maintains her appeal.Background There is no challenge on this appeal to the facts as found by the Magistrate. In summary, the facts are as follows. At approximately 2.20 am on 12 January 2015, police officers Senior Constable Browne and Probationary Constable Parker arrived at a unit occupied by the appellant in response to a complaint of excessive noise. The appellant occupied unit 3 in a block of four attached units which shared a common driveway. The police entered the common driveway. Upon doing so, they heard music emanating from unit 3, which they considered was excessively loud. The police walked down the driveway and approached the appellant’s front door. They knocked and commenced speaking with the appellant. The police remained outside the unit as they spoke with the appellant and asked her to turn her music down. The appellant did reduce the volume of the music to an extent. She then returned to the front door whereupon the police advised her that the music remained too loud, and that it needed to be turned down further. At this stage the appellant became angry and abusive, swearing at the officers in a raised voice. This is the abuse the subject of count 1. She told them that they had no authority to tell her to turn the music down, and that she would not do so. At some point during the course of her abuse of the officers, the appellant asked the police to leave. After warning the appellant approximately 10 times in relation to her abusive behaviour, Browne, who was still standing outstanding outside the doorway to the appellant’s unit, formed an intention to arrest the appellant for an offence against s 90(1)(b) of the EPA. Having formed this intention, Browne told the appellant she was under arrest and took hold of one of her arms as she tried to retreat inside the unit. The appellant attempted to close the door, but Browne placed his foot in the doorway, pushed the door open and, still holding one of the appellant’s arms, entered the unit to complete his arrest of the appellant. Once inside the unit, the officers effected an arrest of the appellant. Her resistance to this arrest is the subject of count 2. Her assault of Browne, which is the subject of count 3, followed shortly after they had handcuffed her and returned her to a standing position. It involved the appellant kicking Browne to his leg. Relevant statutory provisions Determination of these proceedings requires consideration of various sections of both the SOA and the EPA. Section 75 of the SOA sets out a police officer’s power of arrest. It provides:A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude by observing that even though ground 2 was argued by the parties as being relevant only to the outcome in respect of the conviction of count 3, it may be that my conclusion that Browne was authorised to enter the appellant’s premises by the provisions of the EPA means that the conviction on count 2 could be sustained even if s 75 of the SOA did not itself authorise forced entry. However, as this was not a matter addressed by the parties in their submissions, I do not propose to express a concluded view on this issue.Conclusion For the reasons I have set out above, I am not satisfied that either ground 1 or ground 2 of the appeal has been made out. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

On the facts of that case the entry was unlawful because the police officer in question did not satisfy the prerequisite to the power of entry for the purpose of arrest that he have reasonable and probable grounds to believe that the person to be arrested was on the premises in question, as opposed to a suspicion that they might be. There is no issue in the present case that the prerequisites were made out.Consideration In my view, this survey of the authorities establishes that the Magistrate’s decision (that the s 75 power of arrest authorised Browne to forcibly enter the appellant’s premises to effect the arrest) is supported by a significant body of authority. I am bound by the authority of Dinan v Brereton, and should apply it unless persuaded that it was plainly wrong. The correctness of Dinan v Brereton has not been questioned by any other Justice of this Court. To the contrary, it has been applied, or at least cited with approval, in the subsequent decisions of R v Long, Wheare v Police, Police v Dafov and Police v Williams. It has also been applied, or cited with approval, in the interstate cases of McDowell v Newchurch, Kenndy v Pagura, Lippl v Haines and Louis v Attorney-General for the State of Tasmania, and by Brennan J in Halliday v Nevill. It is consistent with the approach of the Canadian Supreme Court in Eccles v Bourque. Further, while Dinan v Brereton might appear on the surface difficult to reconcile with Clowser v Chaplin and Garwood v Schultz, the above analysis of those cases demonstrates that they involved consideration of more narrow and specific powers to arrest. In Garwood v Schultz, Cox J expressly cautioned against any assumption that the same construction would be applicable in the case of a more general power of arrest. As the comparison between s 42(1)(b) of the Road Traffic Act and s 75 of the SOA in Police v Dafov illustrates, the narrow or specific powers raise different considerations which will often make them less susceptible of a construction involving a conferral of a power to forcibly enter private property so as to give effect to an arrest without warrant. The only decision which in my view is contrary to the construction of s 75 of the SOA adopted in Dinan v Brereton, is that of the majority of the Supreme Court of Western Australia in Letts v King. However, like Hope AJA in Lippl v Haines, I prefer, and find more persuasive, the more detailed reasoning of Brinsden J in that case. In light of this significant body of authority, I would be reluctant to conclude that Dinan v Brereton was wrongly decided. But in any event, for the reasons which follow, I have reached the conclusion that it was correctly decided. In my view, s 75 was intended, as King CJ held in R v Conley, to be a code as to the powers of police officers to arrest on suspicion without a warrant. It was intended to supersede and replace the common law, at least as to the range of offences in respect of which arrest without warrant is available. As it is absolute in its terms, it is plain that it was intended to expand the common law by extending the power to arrest without warrant to all offences, and not merely felonies (and misdemeanours involving a breach of the peace). There is no textual basis in s 75 for confining its operation to some subset of more serious offences.