Bennett v Police - [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; Nolan v Clifford (1904) 1 CLR 429; Hume v R (1999) 106 A Crim R 411; Louis v Attorney-General for the State of Tasmania [1997] TASSC 8; R v Long (2002) 137 A Crim R 263; R v Conley (1982) 30 SASR 226; Police v Williams (2014) 246 A Crim R 317, considered.

BENNETT v POLICE
[2016] SASC 139
Magistrates Appeal.
DOYLE J:

In the early hours of 12 January 2015, the police attended the appellant’s unit and asked her to turn down the volume of the music that was emanating from her unit. The situation soon escalated and resulted in the appellant being charged with three offences, namely:
1. Using abusive language to an authorised officer, contrary to s 90(1)(b) of the Environment Protection Act 1993 (SA) (EPA).
2. Resisting police in the execution of their duty, contrary to s 6(2) of the Summary Offences Act 1953 (SA) (SOA).
3. Assaulting an authorised officer in the exercise of powers under the EPA, contrary to s 90(2) of the EPA.
After a trial before a Magistrate the appellant was found guilty of all three offences. The Magistrate rejected the contention that by entering the appellant’s unit to effect an arrest the police officers were acting beyond their authority under the SOA and EPA and hence were trespassers.
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.
Under s 6(2) of the SOA:
A person who hinders or resists a police officer in the execution of the officer’s duties is guilty of an offence.
Turning to the EPA, under s 85(2) of that Act all members of the police force are “authorised officers” for the purposes of that Act.
The police attended the appellant’s residence in response to a complaint of excessively loud music. As the Magistrate explained, causing or failing to prevent the emission of excessively loud music is capable of constituting an offence under s 82(2) of the EPA.
Section 87 of the EPA sets out the powers of authorised officers. Section 87(1) relevantly provides:
(1) Subject to this Division, an authorised officer may—
(a)enter and inspect any place or vehicle for any reasonable purpose connected with the administration or enforcement of this Act;
(b)with the authority of a warrant issued under this Division or in circumstances in which the authorised officer reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on any place or vehicle;
…
(m)give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above or otherwise in connection with the administration or enforcement of this Act.
Section 3 of the EPA defines “place” to include “any land, water, premises or structure”.
An authorised officer’s power of entry and inspection of any place pursuant to s 87(1) is curtailed in respect of “premises” by s 87(2) of the EPA, which relevantly provides:
(2)An authorised officer may not exercise the power of entry under this section in respect of premises except where—
…
(b) the authorised officer reasonably suspects that—
(i)a contravention of this Act has been, is being, or is about to be, committed in the premises; or
(ii)something may be found in the premises that has been used in, or constitutes evidence of, a contravention of this Act; or
…
As the Magistrate noted, “premises” is not defined in the EPA. The Magistrate noted that in some contexts the word carries a narrower meaning of a building, but in other contexts a broader meaning of a property, site or place. Her Honour held that in the context of the EPA, “premises” was used in the narrow sense of a building (here the appellant’s unit) and in contradistinction to the broader term “place” used elsewhere in the EPA.
Section 90 of the EPA relevantly provides:
(1) A person who—
(a)hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or
(b)uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or
…
is guilty of an offence.
Penalty: Division 4 fine.
(2) A person who assaults an authorised officer, or a person assisting an authorised officer in the exercise of powers under this Act, is guilty of an offence.
Penalty: Division 4 fine or division 5 imprisonment, or both.
The Magistrate’s reasons
The Magistrate’s reasons dealt in a thorough manner with the factual and legal issues that arose for consideration. The essential steps in her Honour’s reasoning as to the legal issues were as follows.
The police officers entered the appellant’s property for the purposes of investigating a complaint as to excessive noise. In so doing, and in the absence of any indication that entry was forbidden, they entered the appellant’s property (i.e. the driveway to the unit block) for a lawful purpose and pursuant to an implied licence or consent, and hence not as trespassers. However, when told by the appellant to leave, that implied licence or consent was revoked. Accordingly, the officers would at that time have become trespassers unless they were otherwise authorised by law to remain on the property.
The Magistrate held that on revocation of the appellant’s licence or consent, the officers were authorised by s 87(1)(a) of the EPA to remain on the external land of the property. Her Honour construed s 87(1)(a) as authorising the officers to enter and remain on the external land of the unit block for any reasonable purpose connected with the administration or enforcement of the EPA, without the appellant’s consent. Her Honour reasoned that the power of entry was explicit, and that the right to remain was necessarily implied.
In this case, the reasonable purpose connected with the administration or enforcement of the EPA that authorised the officers to remain on the external land of the unit block under s 87(1)(a) was their purpose of administering and enforcing s 82(2) of the EPA, and in particular in order to issue directions to the appellant to reduce the volume of the music from an excessively loud level to an acceptable level. Further, once the appellant began using abusive language towards the officers, they were entitled to remain on the external land of the unit block for a similar purpose connected with the administration and enforcement of s 90(1)(b) of the EPA.
The Magistrate held that as the officers entered the external land of the unit block via an open and unobstructed path, and remained on the external land of the unit block without the use of physical force to break into or open any part of, or anything in or on, the external land, the requirements of s 87(1)(b) did not apply.
The Magistrate observed that the evidence may have established grounds for entry of a premises under s 87(2)(b) of the EPA. However, her Honour reasoned that until and unless the officers attempted to enter the premises, being the unit itself, s 87(2) did not operate to constrain their powers of entry and therefore that was not a matter which needed to be determined. The Magistrate concluded that between the time the appellant asked the officers to leave and the point at which they entered the unit, their authority to remain on the external property of the unit block was found in s 87(1)(a) of the EPA.
The Magistrate next reasoned that once the officers forcibly entered the appellant’s unit (the premises), they either needed to meet the greater requirements for entry in s 87(1)(b) and s 87(2) of the EPA, or have authority to enter the unit pursuant to some other statutory or common law source. The Magistrate noted her earlier finding that the officers used only reasonable and necessary force to enter the unit. Her Honour had also found beyond reasonable doubt that Browne did not cross the threshold of the appellant’s unit until he had formed the intention to arrest her for the offence of abusive language contrary to s 90(1)(b) of the EPA, and that he entered the unit as he effected, and, in order to complete, the arrest.
The Magistrate held that in those circumstances Browne had authority to enter the unit in the manner that he did and remain in the unit for the purpose of arresting the appellant, without the appellant’s consent, pursuant to s 75 of the SOA. Her Honour reasoned that she therefore did not need to determine whether the officers were also authorised to enter the unit pursuant to s 87(1)(b) or s 87(2) of the EPA.
As the police officer’s entry into the appellant’s unit was authorised under s 75 of the SOA, there was no occasion for the Magistrate to consider exercising the Bunning v Cross[1] discretion to exclude the evidence of what occurred in the unit. Her Honour proceeded to conclude that the prosecution had proven all essential elements of the charges beyond reasonable doubt, and in particular that the appellant:
1.   intentionally used abusive language towards Browne, who was an authorised officer under the EPA;
2.   intentionally resisted Browne and then Parker, who were police officers acting in the lawful execution of their duties, by resisting arrest; and
3.   intentionally and unlawfully assaulted Browne, an authorised officer under the EPA, without his consent, by kicking him with her right leg, making contact with Browne’s left upper leg.
[1]    Bunning v Cross (1978) 141 CLR 54.
The Magistrate accordingly entered a verdict of guilty in respect of all three offences.
The appeal
The appellant relies upon two grounds of appeal.
The first is a challenge to the conviction on count 2, and rests on the contention that the officers’ power of arrest under s 75 of the SOA did not authorise their entry into the appellant’s premises such that Browne was a trespasser, and not acting “in the execution of [his] duties” at the time the appellant resisted his arrest of her.
The second is a challenge to the conviction on count 3, and rests on the contention that it was an element of an offence under s 90(2) of the EPA that Browne, as an authorised officer, was acting “in the exercise of powers under this Act”, and that this element was not made out.
Ground 1: the power of arrest
By way of context for my consideration of the breadth of the power to arrest in s 75 of the SOA, the starting point is the principle that every unauthorised entry upon private property is a trespass, the right of a person in possession of premises to exclude others from those premises being a fundamental common law right.[2] Further, this principle applies in the same way to police officers as it does to private citizens. Thus, as with private citizens, a police officer who enters or remains on private property without the leave or licence of the person in possession commits a trespass, unless the entering or remaining is authorised or excused either under the common law or by statute.[3]
[2] Coco v The Queen (1994) 179 CLR 427 at 435; Halliday v Nevill (1984) 155 CLR 1 at 10; Plenty v Dillon (1991) 171 CLR 635 at 639.
[3] Coco v The Queen (1994) 179 CLR 427 at 435-436; Halliday v Nevill (1984) 155 CLR 1 at 10; Plenty v Dillon (1991) 171 CLR 635 at 639; Kuru v New South Wales (2008) 236 CLR 1 at [43].
At common law, a licence or consent to enter and remain on private property for a particular purpose may be inferred. If the entrance is not locked or obstructed, and there is no other indication (for example, by notice) that entry by visitors is forbidden, then a licence will be implied to enter the property for any legitimate purpose that does not interfere with the occupier’s possession of the property.[4] Such an implied licence may be precluded or revoked at any time by an express or implied refusal or withdrawal of the licence.[5]
[4] Halliday v Nevill (1984) 155 CLR 1 at 6-8; Plenty v Dillon (1991) 171 CLR 635 at 647; Kuru v New South Wales (2008) 236 CLR 1 at [45]; Wheare v Police (2008) 180 A Crim R 396 at [22].
[5] Halliday v Nevill (1984) 155 CLR 1 at 7.
In addition to authority at common law, a person might be authorised by statute to enter and remain on private property for a particular purpose. However, there is a rebuttable presumption that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct.[6]
[6] Coco v The Queen (1994) 179 CLR 427 at 436; Plenty v Dillon (1991) 171 CLR 635 at 648.
In Coco v The Queen,[7] a case often cited as authority for this last proposition, the issue was whether s 43 of the Invasion of Privacy Act 1971 (Qld) implicitly conferred power on a judge to authorise entry onto premises for the purposes of installing and maintaining a listening device in circumstances where the entry would otherwise have constituted a trespass.
[7] Coco v The Queen (1994) 179 CLR 427.
In holding that s 43 did not implicitly confer this power, Mason CJ, Brennan, Gaudron and McHugh JJ said:[8]
Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v. Dillon:
"[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights."
[8] Coco v The Queen (1994) 179 CLR 427 at 435-436 (omitting citations).

Their Honours continued:[9]
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
[9] Coco v The Queen (1994) 179 CLR 427 at 437 (omitting citations).
Their Honours added:[10]
The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.
[10] Coco v The Queen (1994) 179 CLR 427 at 438 (omitting citations).
In this case, the Magistrate held, and the appellant now accepts, the police officers initially entered and remained on the appellant’s property pursuant to an implied common law licence, and separately as authorised under s 87(1)(a) of the EPA. The common law licence was revoked by the appellant’s request that the officers leave. However, as the Magistrate held, and the appellant again now accepts, their presence remained authorised at this time under s 87(1)(a) of the EPA.
After being repeatedly abused by the appellant, and having formed an intention to arrest the appellant for an offence under s 90(1)(b) of the EPA (namely, using abusive language to an authorised officer), Browne forcibly entered the appellant’s premises to complete his arrest of the appellant.
Once Browne formed an intention to arrest the appellant, the power of arrest in s 75 of the SOA was engaged. The first issue on this appeal is whether, as the Magistrate held, the power of arrest in s 75 of the SOA implicitly authorises an arresting police officer to enter and remain on private property without the occupier’s consent (including, in this case, forcible entry into a person’s home), in order to exercise the power of arrest.
The appellant’s contention is that s 75 does not authorise such conduct, and that the police officers in this case thus became trespassers, and were therefore not acting in execution of their duties under the SOA at the time of the conduct constituting the second offence. In so contending, the appellant relies upon the principle in Coco v The Queen, as expounded in the passages from that decision extracted above. She contends that the power to forcibly break into premises is not a necessary implication of the general arrest power, particularly in respect of minor or summary offences. She cites in support of this contention the decisions of the House of Lords in Clower v Chaplin; Finnigan v Sandiford,[11] and of the Supreme Court of Tasmania in Garwood v Schultz.[12]In support of this contention the appellant also notes that at common law, prior to the enactment of s 75 of the Police Offences Act 1953 (SA) (the predecessor to s 75 of the SOA), the power to arrest without warrant, and to do so by forcing entry into private property or premises, was confined to felonies (and misdemeanours involving a breach of the peace).
[11] Clowser v Chaplin; Finnigan v Sandiford [1981] 1 WLR 837.
[12] Garwood v Schultz [1982] Tas R 120.
The appellant acknowledges that her submission on appeal is contrary to the decision of Napier CJ in Dinan v Brereton.[13] However, the appellant contends that this decision is plainly wrong, because it overlooks the historical positon at common law in relation to offences other than felonies, and is in any event contrary to the principle in Coco v The Queen.
[13] Dinan v Brereton [1960] SASR 101.
The appellant requested that I refer this matter to the Full Court for reconsideration of Dinan v Brereton in its application to summary offences. I decline to do so on several bases. First, I am not persuaded there is sufficient merit in the submission that Dinan v Brereton is wrong to warrant that step. It has been applied in several other decision of this Court, as well as being referred to with apparent approval in decisions of other courts. There is no apparent tension or inconsistency between judgments of this Court as to its correctness, or as to the principle for which it is authority. Secondly, the issue was not addressed in detail by the Magistrate and I consider that if the matter is to go further, it would be of assistance to the Full Court to have a more detailed first instance consideration of the issue. Thirdly, the appeal raises other issues in relation to the construction of the EPA which require determination and which do not warrant direct reference to the Full Court. Fourthly, the appellant is not in custody and there is no reason to think that any delay associated with the matter being dealt with in the ordinary way will occasion any significant prejudice.
Legal principles
Before considering the proper construction of s 75 of the SOA, and the effect of authorities such as Dinan v Brereton and those which have applied or considered it, it is appropriate to summarise the common law position in relation to arrest without warrant, and the authorities relied upon by the appellant in support of her contentions.
At common law, a police officer could arrest, without a warrant, any person whom he or she suspected on reasonable grounds of having committed a felony. However, he or she could not do so in the case of a misdemeanour, or an offence punishable on summary conviction, unless under the authority of some Statute. The only qualification to this was in the case of a misdemeanour involving a breach of the peace.[14]
[14] Nolan v Clifford (1904) 1 CLR 429 at 444-445.
In Halliday v Nevill,[15] Brennan J summarised the common law position in these terms:[16]
The common law power to arrest on a criminal charge can be exercised as of right on private as well as on public property, in the home of a fugitive offender or in the homes of his friends. No leave or licence is necessary to enter if no force be needed, and in some cases force may be used.
…
Of course, a constable's power to arrest without warrant is limited. At common law, a constable is empowered to arrest without warrant any person whom he suspects on reasonable grounds of having committed a felony, but he is not empowered to arrest a person guilty or suspected of misdemeanours except where an actual breach of the peace by an affray or by personal violence occurs and the offender is arrested while committing the misdemeanour or immediately after its commission: Stephen, History of the Criminal Law of England (1883), vol. 1, p. 193; Hale's Pleas of the Crown (1800), vol. 2, p. 85. And so it was held that a constable could not lawfully arrest an offender who, having assaulted the constable an hour earlier, retires to his house and closes and fastens his door: Reg. v. Marsden. At common law, a constable is entitled to enter on private property to effect an arrest within the limits of his common law power to arrest without warrant, although he would be a trespasser if he entered or remained on the property for any other purpose.
[15] Halliday v Nevill (1984) 155 CLR 1.
[16] Halliday v Nevill (1984) 155 CLR 1 at 11-12.
It follows that the common law recognised a power to enter private property or premises, including forcibly, in respect of an arrest without warrant for a felony, but not for a misdemeanour (other than one involving a breach of the peace).[17]
[17] While Brennan J was in dissent, the majority decided the case on a basis that accepted there was an implied licence and hence no trespass. The majority therefore did not need to consider the breadth of the common law power to arrest. There is nothing in the majority reasons that contradicts or undermines Brennan J’s statement of the common law principles as to arrest without warrant.
In Clowser v Chaplin,[18] the House of Lords considered the power, under s 8(5) of the Road Traffic Act 1972 (UK), to arrest without warrant a motorist who is suspected of having alcohol in his body and refuses or fails to submit to a breath analysis. When the defendant in that case failed to submit to a breath analysis, and retreated into the hallway of his private residence, a constable entered the hallway to effect an arrest. In holding that this arrest was unlawful, Lord Keith said:[19]
It may be confidently stated as a matter of general principle that the mere conferment by statute of a power to arrest without warrant in given circumstances does not carry with it any power to enter private premises without the permission of the occupier, forcibly or otherwise.
[18] Clowser v Chaplin [1981] 1 WLR 837.
[19] Clowser v Chaplin [1981] 1 WLR 837 at 841.
However, this apparently broad statement of principle, relied upon by the appellant in this case, needs to be understood in its context. Their Lordships were concerned with a specific power of arrest, which existed merely in support of the breath analysis provisions in the Road Traffic Act. Indeed, immediately after the passage extracted above, Lord Keith noted that there existed a more general power to arrest without warrant in respect of all “arrestable offences” in s 2 of the Criminal Law Act 1967 (UK), and that it expressly empowered a constable to “enter (if need be, by force) … any place where that person is or where the constable, with reasonable cause, suspects him to be” for the purpose of arresting a person.
Further, Lord Keith went on to note that apart from this general power of arrest in respect of the category of “arrestable offences”, there existed a considerable number of instances where a specific power of arrest without warrant was conferred in relation to particular statutory offences. In respect of those specific powers of arrest, his Lordship said:[20]
In some instances power of entry is also conferred, for example by section 50(2) of the Firearms Act 1968. In a great many others, no power of entry is conferred. The proper inference, in my opinion, is that where Parliament considers it appropriate that a power of arrest without warrant should be reinforced by a power to enter private premises, it is in the habit of saying so specifically, and that the omission of any such specific power is deliberate. It would rarely, if ever, be possible to conclude that the power had been conferred by implication.
[20] Clowser v Chaplin [1981] 1 WLR 837 at 842.
Having concluded that s 8(5) of the Road Traffic Act did not evince an intention to confer a power to enter for the purpose of effecting an arrest, his Lordship added:[21]
This conclusion is consistent with the principle upon which the decision in Morris v Beardmore [1980] 3 WLR 283 proceeded, namely that in this particular piece of legislation Parliament cannot be taken to have authorised any further inroads upon the rights of individual citizens than is specifically enacted. The conclusion does, however, have a wider significance, in respect that it must be of general application in cases where a statute has conferred a power of arrest without warrant, but no specific power of entry on private premises for the purpose of effecting the arrest.
[21] Clowser v Chaplin [1981] 1 WLR 837 at 842.
Garwood v Schultz[22] also involved consideration of a specific power, namely the power under s 10(2) of the Road Safety (Alcohol and Drug) Act 1970 (Tas), to take into custody and detain a motorist who refused to submit to breath analysis under s 10(1) of that Act. Applying the decision of the House of Lords in Clowser v Chaplin, Cox J held that the power of a police officer to take a person into custody under s 10(1) did not include, either expressly or by implication, a power to enter onto private property against the express wishes of the occupier. However, his Honour also made several observations of significance to the present case.
[22] Garwood v Schultz [1982] Tas R 120.
First, his Honour emphasised that the power under consideration was a power confined to taking into custody persons who had failed to comply with a request under s 10(1). As the failure to comply with such a request was not an offence, the power to take into custody and detain was not only a specific one, but also a power in respect of persons who were not offenders.[23]
[23] Clowser v Chaplin [1981] 1 WLR 837 at 125, 127-128.
Secondly, and relatedly, Cox J cautioned against an assumption that the approach taken by the House of Lords in Clowser v Chaplin was applicable in respect of more general powers of arrest. His Honour said:[24]
The observations of their Lordships concerning the limitations on a statutory power of arrest without warrant should not, with respect, be taken as directly applicable to a number of powers of arrest without warrant given by Australian legislation. In Dowling v Higgins [1944] Tas S.R. 32, Morris C.J. held that a police officer’s power of arrest without warrant under the Criminal Code, s. 27, entitled him to enter the offender’s premises for the purpose of effecting such an arrest and drew attention to the duty imposed on the officer to effect an arrest which he was empowered by that section to make (s. 27(9)).
It is true that at common law a constable had no general right of entry into private property for the purposes of effecting an arrest without warrant … Nevertheless some Australian judges seem to have been less hesitant than their Lordships may appear to be in construing “an enactment conferring a power of arrest without warrant as impliedly authorising a power of entry into private premises for the purposes of effecting the arrest” … The existence of the express duty to effect the arrest adverted to by Morris C.J. in Dowling v Higgins (supra) was no doubt a basis on which his Honour in that case considered such a power existed, although he considered the constable had common law rights in any event. A like duty under the Police Offences Act 1935, s. 55, may imply the existence of a power of entry in respect of arrests without warrant under that section.
[24] Garwood v Schultz [1982] Tas R 120 at 125-126.
Cox J then referred to Dinan v Brereton[25] and Kennedy v Pagura[26] as two illustrations of where Australian Courts have held that a general power of arrest has, by necessary implication, conferred a right to enter private premises to effect the arrest.
[25] Dinan v Brereton [1960] SASR 101.
[26] Kennedy v Pagura [1977] 2 NSWLR 810.
In Dinan v Brereton,[27] Napier CJ addressed s 75(1) of the Police Offences Act 1953 (SA). That section was in relevantly identical terms to s 75 of the SOA, save that the final two words in the former section were “any offence” whereas in the latter section they are “an offence”. Nothing turns on this difference in wording.
[27] Dinan v Brereton [1960] SASR 101.
The defendant in that case was charged with resisting a member of the police force in the execution of his duty, contrary to s 6(2) of the Police Offences Act. A police constable had followed the defendant onto private premises for the purposes of arresting him for a drink driving offence. Napier CJ explained that the question which arose was whether s 75(1) authorised the constable to follow the suspected person into their house or premises, or whether the constable became a trespasser, and hence no longer in the execution of his duty, if he entered or remained on the premises when he was denied admission or requested to leave. His Honour answered the question in terms that confirmed the existence of authority under s 75(1):[28]
But under s. 75 of our Act any member of the police force is authorized to apprehend any person whom he finds committing or has reasonable cause to suspect of having committed any offence. I think that the plain intention of the enactment is to give the constable such authority as would be given by a warrant for the apprehension of the suspected person. I am, therefore, unable to accept the suggestion that this gives the member of the police force no right or authority to follow the suspected person on to private property for the purpose of effecting the arrest.
[28] Dinan v Brereton [1960] SASR 101 at 104.
In McDowell v Newchurch[29] Muirhead J applied Dinan v Brereton in construing the general power of arrest without warrant in s 123(1) of the Police Administration Act 1978 (NT). His Honour held that it conferred power to enter private property to effect an arrest.
[29] McDowell v Newchurch (1981) 53 FLR 55.
In Kennedy v Pagura[30] the issue was whether a police officer had power to enter private premises for the purposes of effecting an arrest pursuant to ss 352(1) and (2) of the Crimes Act 1900 (NSW). Those sections provided a general power of arrest without warrant where a person was committing, had just committed, or was reasonably suspected of having committed an indictable or summary offence under any Act. The constable had pursued the defendant into his garage to effect an arrest for a driving offence. In answer to a charge of resisting arrest, the defendant claimed the arrest was unlawful.
[30] Kennedy v Pagura [1977] 2 NSWLR 810.
Taylor CJ at CL rejected this submission:[31]
The plain language of the section would cover the instant case. The defendant had committed an offence punishable on summary conviction, that is, he had driven a vehicle in a manner dangerous, and the constable was, therefore, entitled to arrest him without warrant in terms of the section.
[31] Kennedy v Pagura [1977] 2 NSWLR 810 at 811.
His Honour added:[32]
There are no words in s. 352 which would warrant any reading down of the section to exclude persons on private premises or in their homes. The words are perfectly plain. The obvious purport of the section is to give police officers the right to arrest people who have committed offences or whom they suspect of having committed an offence, the suspicion being on reasonable grounds, with reasonable cause, to apprehend them wherever they may be. The results that would follow, if the decision of the learned magistrate was correct, would indeed be curious.
[32] Kennedy v Pagura [1977] 2 NSWLR 810 at 812.
In reaching this conclusion, Taylor CJ at CL drew support from both the decision of Napier CJ in Dinan v Brereton, and the decision of the Canadian Supreme Court in Eccles v Bourque.[33]
[33] Eccles v Bourque [1975] 2 SCR 739.
In Eccles v Bourque,[34] the court reached a similar conclusion to that reached in Dinan v Brereton and Kennedy v Pagura in relation to the exercise by a police officer of the power of arrest without warrant conferred by s 450 of the Canadian Criminal Code, albeit by a slightly different process of reasoning. A bench of nine Justices sat, and eight of them agreed with the reasons of Dickson J on the issue of relevance to this case, namely whether an officer exercising the power of arrest under s 450 had a right to enter, including by force, and if so, whether there were any conditions on that power. Dickson J concluded that there was nothing in the section which conferred a power to commit a trespass and that therefore the authority must be found in the common law. His Honour concluded that a person exercising a statutory power to arrest had power to enter a house against the will of the householder, but only if (a) there were reasonable and probable grounds for the belief that the person was within the premises, and (b) proper announcement was made prior to entry.
[34] Eccles v Bourque [1975] 2 SCR 739.

The New South Wales Court of Appeal considered s 352 of the Crimes Act 1900 (NSW) in Lippl v Haines.[35] Hope AJA began by considering the power to arrest without warrant at common law, referring inter alia to the passage from Brennan J’s reasons in Halliday v Nevill[36] (set out above) as to the limited power at common law to enter premises to effect an arrest without warrant. After then setting out the terms of s 352, Hope AJA said:[37]
The section does not explicitly give any power to a constable or other person to enter, and in particular to enter with force. The question thus arises whether the section is to be construed as importing a power to enter to effect an arrest, that is, to make an arrest anywhere, and if that involves entering premises or breaking the door of any premises in order to enter to effect the arrest, to do so. In the alternative, powers conferred by the section being to arrest without warrant, does a person acting pursuant to the section have the same powers of entry which the common law gave to a person holding a warrant to arrest?
[35] Lippl v Haines (1989) 18 NSWLR 620.
[36] Halliday v Nevill (1984) 155 CLR 1 at 12.
[37] Lippl v Haines (1989) 18 NSWLR 620 at 632.
Hope AJA considered several authorities relevant to this issue, including Dinan v Brereton, Kennedy v Pagura, McDowell v Newchurch, Halliday v Nevill (per Brennan J) and Eccles v Bourque. While each of these decisions supported a power to enter to effect arrest without warrant, his Honour noted that a different view had been taken by the Western Australian Full Court in Letts v King.[38] His Honour noted that on this issue the majority (Burt CJ and Smith J; Brinsden J dissenting) held that s 43 of the Police Act 1892 (WA), which allowed for an arrest without warrant, did not carry with it the express or implied power to enter premises without the permission of the occupier. It followed on the majority view that because the police officer had forcibly entered the respondent’s premises without permission, it could not be said that the respondent had resisted an officer “in the exercise of his duty”.
[38] Letts v King [1988] WAR 76. See also Hume v R (1999) 106 A Crim R 411, where the Western Australian Court of Appeal referred to Letts v King with apparent approval, but without any elaboration.
However, Hope AJA disagreed with the conclusion reached by the majority in Letts v King. Hope AJA concluded:[39]
It is true that s 352 enlarges the common law power to arrest to some extent and that it was not simply a codification of the common law. However a significant part of its provisions simply restates the common law. It is difficult to imagine that Parliament intended that a constable, in the exercise of these powers, did not have the same right to enter that he would have had had he been exercising his common law power to arrest. … Again it is not to be imagined that Parliament intended to confer on constables intending to effect an arrest without warrant wider powers of entry than those they would have if they held a warrant for the arrest. It follows that the powers of entry are subject to the important qualifications which were described in Eccles v Bourque.
[39] Lippl v Haines (1989) 18 NSWLR 620 at 635.
Gleeson CJ and Meagher JA agreed with Hope AJA. In some brief additional reasons of his own, Gleeson CJ agreed that the law on the relevant issue in New South Wales reflected the approach adopted by the Supreme Court of Canada in Eccles v Bourque. His Honour added:[40]
Section 352 of the Crimes Act 1900 does not, either by its terms or of its own force, authorise forcible entry upon land for the purposes of making an arrest. However, upon certain conditions stated in the section, it authorises arrest without warrant. If a police officer is authorised by s 352 to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making, or endeavouring to make, such an arrest. His conduct will be lawful where the entry is reasonably necessary for the purpose mentioned, but always provided two conditions are satisfied. First, he must believe on reasonable and probable grounds, prior to entry, that the person he is seeking to arrest is on the premises. Secondly, save in what the Supreme Court of Canada described as “exigent circumstances”, there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
[40] Lippl v Haines (1989) 18 NSWLR 620 at 622.
In Louis v Attorney-General for the State of Tasmania,[41] Crawford J addressed the power of arrest for a failure or refusal to state one’s name and address in s 55A(1) of the Police Offences Act 1935 (Tas). Citing Kennedy v Pagura, Dinan v Brereton and Lippl v Haines, his Honour concluded that arrest without warrant was authorised by the relevant section, and that the mere act of stepping into the defendant’s house to effect the arrest was justified and did not amount to an actionable trespass.
[41] Louis v Attorney-General for the State of Tasmania [1997] TASSC 8.
Turning to the authorities in this Court addressing the construction of the power to arrest without warrant in s 75 of the SOA, the decision of Dinan v Brereton was referred to by Doyle CJ (with whom Lander and Bleby JJ agreed) in R v Long.[42]His Honour described it as authority to the effect that a police officer exercising the power of arrest without warrant under s 75 of the SOA has authority to enter on private property for the purpose of effecting an arrest under that provision.
[42] R v Long (2002) 137 A Crim R 263 at [32].
Dinan v Brereton was applied by Gray J in Wheare v Police.[43] In that case, while the police were searching for someone near the appellant’s residence in connection with property offences (including an offence of wilful damage), they saw the suspect enter the appellant’s house. The appellant abused the police, refused them entry and demanded they leave his property. The police retreated to the footpath and the appellant continued to abuse and threaten them. They entered his house and physically restrained him, arresting him for hindering police, using abusive language and failing to provide his name and address.
[43] Wheare v Police (2008) 180 A Crim R 396.
The appellant argued that the police had no right to enter onto his property with the result that the arrest was unlawful. In rejecting this argument, Gray J held that s 75 of the SOA implicitly authorised entry onto private property, even in circumstances where the appellant had demanded that the police officer leave, and where the arrest was for summary offences.
Gray J commenced his analysis by referring to the passages from Coco v The Queen set out earlier in these reasons. His Honour then extracted the passage from the reasons of Brennan J in Halliday v Nevill,[44] also set out earlier in these reasons, summarising the common law power to arrest.
[44] Halliday v Nevill (1984) 155 CLR 1 at 11-12.
Gray J added:[45]
The felony and misdemeanour dichotomy has been abolished by statute. Offences are now characterised as indictable – major and minor – and summary. The implications of the abolition of the characterisations, felony and misdemeanour, and its impact on the common law, are unclear. Counsel for the defendant accepted that the offence of wilful damage was an indictable offence and for the purposes of the common law, the modern statutory equivalent of a felony. If this concession is legally correct, then it follows that the police, in their pursuant of Nathan, were in pursuit of a person who was suspected of having committed the modern equivalent of a felony. Later in these reasons reference is made to the observations of King CJ that suggests that section 75 may have codified the common law. If this observation is correct, then there would be no need to further consider the common law powers of the police. However, this question is unresolved.
[45] Wheare v Police (2008) 180 A Crim R 396 at [21].
Gray J then turned to consider the statutory power to arrest in s 75 of the SOA, and whether this abrogated or curtailed the appellant’s common law right to control who entered his property. His Honour referred to King CJ’s observation in R v Conley[46] that this section applied to all criminal offences:
I think, however, that s. 75, covering, as it does, all offences, is intended to be a code as to the powers of police officers to arrest on suspicion without warrant. I think that the common law rule has been superseded, that the power to arrest without warrant in South Australia on suspicion of felony as well as on suspicion of other offences is found in s. 75, and that the requirements of s. 78(1) therefore apply whether the arrest is for felony, for misdemeanour or for a simple offence.
[46] R v Conley (1982) 30 SASR 226 at 239.
Gray J then considered the reasons of Napier CJ in Dinan v Brereton. His Honour observed that since Dinan v Brereton, a number of authorities have held that general statutory powers of arrest may be exercised on private property, citing Eccles v Bourque,[47] Kennedy v Pagura,[48] McDowell v Newchurch,[49] Lippl v Haines[50] and R v Long.[51]Gray J added that “[s]ubject to the satisfaction of two prerequisites, such arrest powers may also justify forcible entry into a person’s home.”[52] The two prerequisites were those identified by Gleeson CJ in Lippl v Haines.[53]
[47] Eccles v Bourque [1975] 2 SCR 739.
[48] Kennedy v Pagura [1977] 2 NSWLR 810.
[49] McDowell v Newchurch (1981) 53 FLR 55.
[50] Lippl v Haines (1989) 18 NSWLR 620.
[51] R v Long (2002) 137 A Crim R 263.
[52] Wheare v Police (2008) 180 A Crim R 396 at [28].
[53] Lippl v Haines (1989) 18 NSWLR 620 at 622.
Gray J then referred again to the reasons of Brennan J in Halliday v Nevill,[54] and in particular his Honour’s statement that:
In South Australia, Napier C.J. held that a statutory power conferred on a police officer to arrest a person reasonably suspected of having committed an offence gave the police officer authority to follow the person on to private property for the purpose of effecting the arrest: Dinan v. Brereton. In New South Wales, Taylor C.J. at C.L. held that a similar statutory power gave a right to police officers to arrest suspected persons “wherever they may be”: Kennedy v. Pagura. In the Northern Territory, Muirhead J. held a statutory provision which conferred a power to enter “into or upon any premises, vehicle or vessel, by force if necessary” did not restrict a general statutory power to arrest so as to preclude its exercise on private property in cases that did not fall within the terms of the particular provision: McDowell v. Newchurch.
In principle, a statute which creates a general power to arrest in substitution for the common law power to arrest ought not to be read down to preclude the exercise of the statutory power on private property. Whether the person seeking to arrest another for a criminal offence is exercising a common law or statutory power, the case is one “when the King is party” and when the public interest in the prosecution of crime prevails over private possessory interests in land.
[54] Halliday v Nevill (1984) 155 CLR 1 at 16 (citations omitted).
Gray J also referred to the reasons of the High Court in Plenty v Dillon.[55] In that case the Court was concerned with the right to access premises for the purposes of serving a summons. Mason CJ, together with Brennan and Toohey JJ, referred to Dinan v Brereton with apparent approval, going on to observe:[56]
Some statutes which confer a power to arrest have not been construed as carrying a right to enter on private property (see per Lord Keith of Kinkel in Clowser v Chaplin) although, in other cases, a statutory power of arrest has been held to carry a qualified right to enter: see Eccles v Bourque; Halliday v Nevill. But a statute which confers a power to arrest is of a different order from a statute which prescribes the manner of service of a summons and which confers no power on a person to do a thing that that person is not free to do at common law.
[55] Plenty v Dillon (1991) 171 CLR 635.
[56] Plenty v Dillon (1991) 171 CLR 635 at 644-645 (citations omitted).
Gray J concluded:[57]
The defendant submitted that s 75 of the Summary Offences Act did not authorise entry onto private premises to effect an arrest. This submission should be rejected. The above authorities establish that police officers may, if the statutory prerequisites are satisfied, enter onto private property to pursue a suspected person to effect an arrest. The police may remain on the premises as necessary to effect that purpose. They may do so in the absence of the owner’s permission and in the event of an express direction that they are not to enter the property or must leave the property.
[57] Wheare v Police (2008) 180 A Crim R 396 at [40].
In Police v Dafov[58] the issue was whether s 42(1)(b) (which authorised a member of the police force or an inspector to ask a driver of a vehicle certain questions) authorised police to enter and remain on private property where an implied right to enter has been expressly revoked. The Court held that s 42 did not expressly, or by clear or necessary implication, authorise such conduct. However, in reaching this conclusion that Court made several observations reinforcing the correctness of the opposite conclusion in Dinan v Brereton in respect of the general power of arrest in s 75 of the SOA.
[58] Police v Dafov (2008) 102 SASR 8.
Gray J referred to the presumption that in the absence of an express provision or a clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct, citing Coco v The Queen as authority for this great fundamental principle.[59] However, his Honour gave Dinan v Brereton as an example of a rebuttal of the presumption, noting that it was held in that case that the general power of arrest without warrant in s 75 of the SOA by necessary implication permitted a police officer to enter on private land to effect an arrest.[60]
[59] Police v Dafov (2008) 102 SASR 8 at [15]-[16].
[60] Police v Dafov (2008) 102 SASR 8 at [15].
In concluding that the presumption was not rebutted in respect of the power in s 42(1)(b), Gray J noted several salient distinctions between the power in s 75 of the SOA and the power in s 42(1)(b) of the Road Traffic Act. The former was confined to police officers, whereas the latter extended also to inspectors. The former was only able to be exercised where an officer reasonably suspected an offence was being, or had been committed, whereas the latter need not be connected to the commission of any offence.[61] Having rejected any analogy between s 75 of the SOA and s 42(1)(b) of the Road Traffic Act, Gray J held that the latter did not authorise entry in circumstances that would otherwise constitute trespass.[62]
[61] Police v Dafov (2008) 102 SASR 8 at [31].
[62] Police v Dafov (2008) 102 SASR 8 at [33].
Vanstone J reasoned similarly. Her Honour said:[63]
In construing a provision of a statue suggested to confer the power to enter land without consent, there is a presumption that, in the absence of an express provision or clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct: Plenty v Dillon (at 648); Morris v Beardmore [1981] AC 446 at 455 per Lord Diplock.
An example of what has been held in this Court to be a clear implication to the contrary is found in s 75 of the SOA (earlier set out) which gives to police a general power of arrest. In Dinan v Brereton [1960] SASR 101 it was found, by necessary implication, to permit a police officer to enter onto private land to effect an arrest. Napier CJ held (at 104) that the “plain intention” of the provision was to give the officer “such authority as would be given by a warrant” of apprehension. In contrast to the common law power of arrest without warrant, which, apart from situations of imminent breach of peace and the like, was confined to arrest for felony, the s 75 power extends to “any offence”.
[63] Police v Dafov (2008) 102 SASR 8 at [57]-[58].
In respect of s 42(1)(b) of the Road Traffic Act, Vanstone J considered that the fact that persons other than police officers were to exercise powers under that section was, of itself, a factor telling against an interpretation which would entitle entry onto private land. Her Honour thus concluded that the section did not expressly authorise what would otherwise be tortious conduct, and that there was no clear implication that this was Parliament’s intention.[64]
[64] Police v Dafov (2008) 102 SASR 8 at [65]-[66].
White J agreed with the reasons of both Gray J and Vanstone J on this issue.
The power of arrest under s 75 of the SOA, and the reasons of Napier CJ in Dinan v Brereton, were recently considered by Peek J in Police v Williams.[65] The police entered premises to arrest the defendant for various driving offences. In considering the lawfulness of the police entry, Peek J cited Dinan v Brereton as authority for the power of a police officer to follow a person onto private property in order to effect an arrest. Peek J said:[66]
That power is now accepted to be a particular specie of a somewhat broader power which (in the South Australian context) may be stated as follows. If a constable has the present power to arrest a particular person (pursuant to a warrant or statutory power) and intends to do so and has reasonable and probable grounds to believe that that particular person is then in a particular premises, the constable may enter upon those premises and arrest that person.
[65] Police v Williams (2014) 246 A Crim R 317.
[66] Police v Williams (2014) 246 A Crim R 317 at [290].
His Honour added by way of footnote that although not applicable in that case, it may be added that the police officer satisfying the above conditions may also use force to enter, but only if he first makes proper demand of entry.
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.
While thus expanding the field of operation of the power of arrest without warrant, in my view the section should nevertheless be construed as intending to give effect to the common law notion of that power. That is, while the field of operation for arrest without warrant has been statutorily extended, I consider that the content of the power is intended to remain as it was at common law, namely encompassing a power to enter premises, including forcibly, to give effect to the arrest provided that there has been compliance with the two prerequisites recognised by the common law.
This is not to say that the common law power to arrest without warrant still exists. Rather, the work of the common law is confined to informing the content of the statutory power to arrest without warrant, which now exists in respect of all offences.
Understood in this way, there is no occasion to give effect to the common law distinction between felonies and misdemeanours. The statute ignores that distinction by extending the availability of arrest without warrant to all offences. There is no reason to read in a limitation referable to some set of offences such as misdemeanours or (given the statutory abolishment of the distinction between felonies and misdemeanours by s 5D of the Criminal Law Consolidation Act 1935 (SA)) summary or minor offences. More importantly, there is no textual basis for doing so.
Assuming there is no proper basis in construing s 75 to distinguish between categories of offences, then the only alternative to a construction which permits entry into premises to effect an arrest without warrant would be to conclude that Parliament intended that there no longer be any power to forcibly enter so as to effect an arrest without warrant, even in respect of the most serious of offences. As Hope AJA observed in Lippl v Haines,[67] it is difficult to imagine that this was the intention of Parliament. It would, in my view, be a surprising limitation upon the power of arrest, enabling the frustration of arrests without warrant for serious offending through the simple expedient of retreating to one’s home, or any other private property or premises in respect of which there is no licence to enter (or in respect of which any such licence has been revoked or withdrawn).
[67] Lippl v Haines (1989) 18 NSWLR 620 at 635.
It is relevant to bear in mind that in respect of misdemeanours (other than those involving a breach of the peace) there was at common law no power at all to arrest without warrant. It was not the case that there was a power to arrest without warrant for such offences, as long as it did not involve trespassing. There is therefore no basis in my view to consider an approach to s 75 of the SOA which accepts a power to arrest without warrant for all offences (including misdemeanours) but which only permits entry onto private property in the case of felonies (or some other category of serious offences). There is no basis in either the text of s 75, or the content of the common law, for such an approach.
In giving effect to a construction of s 75 which expands the circumstances in which there will be an intrusion upon a person’s usual common law right to restrict entry upon their property and into their premises, I bear in mind the conditions upon, or qualifications to, the exercise of the power of arrest without warrant under s 75 of the SOA.
First, it is a right exercisable only by a police officer. Secondly, the terms of s 75 require that the police officer have reasonable cause to suspect the person to be arrested of having committed, or being about to commit, an offence. Thirdly, the two common law prerequisites to the exercise of the power to arrest must be met, namely the police officer must believe on reasonable and probable grounds prior to entry that the person to be arrested is on the premises, and there must (save for exigent circumstances) be a proper announcement prior to entry.
In my view, adopting this construction does not involve overlooking, and is not contrary to, the principle in Coco v The Queen. True it is that the decisions of this Court which have given s 75 the more general operation contended for by the respondent have not given detailed consideration to this principle. However, Coco v The Queen was cited in both Wheare v Police[68] and Police v Dafov,[69] and so it cannot be said that the case, or the principle which it illustrates, was overlooked.
[68] Wheare v Police (2008) 180 A Crim R 396 at [18].
[69] Police v Dafov (2008) 102 SASR 8 at [16].
In applying the principle in Coco v The Queen, it is relevant that the power is conditioned or qualified in the ways I have mention. It is also relevant that s 75 expressly contemplates some intrusion upon, and abrogation of, people’s rights and liberties. The issue in construing s 75 is therefore the extent of that intrusion, and not whether there is any intrusion at all. The common law had already permitted an intrusion to the extent of permitting forcible entry to effect an arrest without warrant in respect of felonies and some misdemeanours. The issue of construction is thus merely whether s 75 should be construed as extending this intrusion to all offences.
While the principle in Coco v The Queen still has a role to play in this construction exercise, it operates less sharply in circumstances such as the present, and in my view does not stand in the way of the construction adopted in Dinan v Brereton. Put another way, in circumstances where the issue is the extent of the intrusion upon common law rights, where the common law already recognised the power to forcibly enter premises to arrest in respect of certain offences, and where the power comes with the limitations or conditions upon its exercise set out above, it is my view that the construction of s 75 adopted in Dinan v Brereton and subsequent cases conforms to the approach required by Coco v The Queen.
I consider that the approach I have articulated reflects both the statutory construction based approach in Dinan v Brereton and the references to the common law in Eccles v Bourque and Lippl v Haines. It involves a conclusion that the absolute and unqualified terms of s 75 extend the power of arrest without warrant to all offences, and thus do away with the common law limit upon the availability of this power in respect of most misdemeanours. While the absolute and unqualified terms of s 75 also support an implication that the power was not intended to be confined to circumstances that would not otherwise involve a trespass upon private property, this is better seen as the consequence of an implication that the content of the power to arrest without warrant was intended to reflect the content of the common law power (albeit within a statutorily expanded field of operation). It is thus a power that permits entry onto private property, but only when the common law prerequisites are satisfied.
For these reasons, I consider Dinan v Brereton, and the subsequent authorities of this Court which have considered and applied it in construing the breadth of the power to arrest in s 75 of the SOA, were correctly decided. Certainly, I am not persuaded that these decisions are plainly wrong, and it is thus appropriate that I apply them in determining the outcome in this case.
Accordingly, I am not satisfied that ground 1 of the appeal has been made out. It follows that Browne was acting lawfully, and in execution of his duties, when the appellant resisted arrest, with the result that the challenge to the appellant’s conviction on count 2 must fail.
Ground 2: assaulting an authorised officer
The appellant challenges her conviction of count 3 on the bases (i) that it was an element of the offence of assaulting an authorised officer under s 90(2) of the EPA that the officer in question be acting “in the exercise of powers under this Act”; (ii) that the Magistrate erred in not considering whether Browne was acting in the exercise of his powers under the EPA, and in particular in conformity with the requirements under ss 87(1)(b) and 87(2); and (iii) that in any event this element was not made out.
The respondent, on the other hand, contends that this ground of appeal, and the challenge the conviction of count 3, should fail for each of the following alternative reasons:
1. It is not an element of the offence under s 90(2) that the authorised officer in question be acting “in the exercise of powers under this Act”.
2. Browne was acting “in the exercise of powers under this Act” within the meaning of s 90(2) at the time of the assault (regardless of whether the requirements of ss 87(1)(b) and 87(2) were made out).
3. The requirements of ss 87(1)(b) and 87(2) of the EPA were in any event established beyond reasonable doubt by the evidence in the present case.
Exercising powers under the EPA not an element of the offence
In contending that it is not an element of the offences created by s 90(2) of the EPA that the authorised officer be acting “in the exercise of powers under this Act’, the respondent emphasises the fact and placement of the two commas in that section. The submission is that when proper regard is had to this punctuation it is clear that the words “in the exercise of powers under this Act” are intended to apply or relate only to a person assisting an authorised officer, and not an authorised officer.
While the punctuation does support, if not require, this interpretation, it is curious that each of s 90(1)(a), s 90(1)(b) and s 90(2) adopts slightly different forms of punctuation and wording. On the respondent’s construction of these sections, and in particular having regard to the additional comma that appears in s 90(1)(a) between the references to a person assisting and the exercise of powers, the consequence would seem to be that the qualifying requirement that the person be acting in the exercise of powers “under the Act” applies to both authorised officers and persons assisting in relation to the offence of hindering or obstructing under s 90(1)(a), to neither an authorised officer nor a person assisting in relation to the offence of using abusive, threatening or insulting language under s 90(1)(b), and to a person assisting but not an authorised officer in respect of the offence of assault under s 90(2). It is difficult to discern a coherent rationale for distinguishing in this way between these three offences, and between the position of authorised officers and persons assisting in respect of each.
In relation to s 90(1)(a) it makes sense that the offence requires that both the authorised officer and person assisting be acting in the exercise of their powers under the Act because the concept of hindering or obstructing assumes the interference with some conduct or exercise of power. It might be said that there is no equivalent need to specify that the person be acting in the exercise of their powers in s 90(2) because the concept of an assault does not require or assume that the victim is in engaging in any particular conduct or exercise of power. One assaults people, whereas one hinders or obstructs their conduct or exercise of power. It would follow, on this reasoning, that the reference to “exercise of powers” in s 90(2) is merely descriptive of the person assisting such that there is no logical difficulty with the equivalent wording having no application to an authorised officer. While there is some merit in this analysis, its force is undermined to some extent by the omission of the reference to “exercise of powers” in respect of not only authorised officers but also persons assisting in s 90(1)(b). If the reference to “exercise of powers” in s 90(2) is descriptive of the person assisting under that section, it is curious that the same description has not been included with the reference to the person assisting in s 90(1)(b).
The respondent suggested that the explanation for s 90(2) requiring that the person assisting be assisting an authorised officer in the exercise of their powers might lie in the inability to identify a person assisting (as opposed to an authorised officer such as a police officer) except in circumstances where they are assisting an authorised person. While there is again some merit in this analysis, it fails to explain the different wording in s 90(1)(b).
Ultimately I am left unable to discern a clear rationale for the differing syntax in these sections. However, I do not consider it appropriate to ignore the clear effect of these differences in construing s 90(2), and in particular the positioning of the two commas in s 90(2), and the absence in that subsection of any comma in the equivalent position to the second comma in s 90(1)(a). To the contrary, I consider that effect must be given to the fact and placement of the commas in s 90(2).
It follows, in my view, that it is not an element of the offence under s 90(2) that Browne, as an authorised officer, was acting in the exercise of powers under the EPA. The respondent’s primary contention on this ground of appeal should be accepted, with the result that the appellant’s challenge to her conviction of count 3 must fail.
As a result of this conclusion it is not necessary for me to address the remaining two limbs of the respondent’s submissions on this issue. However, I do so briefly for the sake of completeness.
Browne was exercising powers under the EPA at the time of the assault
Even if it had been an element of s 90(2) that Browne was acting in the exercise of powers under the EPA at the time of the assault, I consider that this element was established.
A power being exercised by Browne was his s 87(1)(m) power to “give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs above [being a reference to s 87(1)(a) – (l)] or otherwise in connection with the administration or enforcement of this Act.”
Here, Browne was at the relevant time exercising his power to give directions to the appellant to cease contravening the EPA through the playing of excessively loud music. In my view, it would be to take an artificially and unnecessarily narrow construction of the s 90(2) reference to “exercise of powers” to require that Browne be uttering a direction at the very moment the assault occurred. It was enough that Browne was in the lead up to the assaults generally engaged in an attempt to give directions to the appellant to comply with the EPA, and otherwise enforce compliance with the EPA.
The potential qualification relevant in the circumstances of this case is that by the time of the assault, Browne had forcibly entered the appellant’s premises. The issue which arises is whether, upon forcing entry, Browne ceased to be acting in the exercise of his powers under the EPA. The argument would be that even if (as I have concluded) a broad approach to “exercise of powers” was intended, it cannot extend to circumstances of a purported exercise of powers in circumstances not contemplated or permitted by the EPA.
In my view, this contention of the appellant should be accepted. In other words, the second contention of the respondent’s argument (namely that Browne was acting in the exercise of powers under the EPA regardless of whether forced entry was empowered by that Act) should be rejected. It becomes critical then to examine whether the EPA did authorise entry into the appellant’s premises in the circumstances of this case. This requires consideration of the power of entry under s 87(1)(b) and 87(2) of the EPA.
There is little doubt that s 87(2) was satisfied. The evidence supported a finding beyond reasonable doubt that Browne reasonably suspected that a contravention of the EPA was being committed in the premises.
The more controversial issue is whether the s 87(1)(b) requirement that Browne “reasonably believe[d] that immediate action [was] required” was made out. In my view the evidence did warrant a finding beyond reasonable doubt to this effect. The police officers who attended the appellant’s unit had made significant efforts to have the appellant cease contravening the EPA prior to forcing entry. The appellant had refused to comply with their directions and had become abusive. In the absence of immediate action it is likely that the excessive noise in contravention of the EPA would have continued. While not the most serious of contraventions, and not involving any threat to people’s health or safety, it was the middle of the night and there had been a complaint. There was no good reason for the appellant to refuse to comply with the police request that she reduce the volume of her music. In my view, Browne was reasonably entitled to conclude that immediate action was required by him to ensure compliance by the appellant with the provisions of the EPA.
It follows that even if it was an element of the s 90(2) offence that Browne was acting in the exercise of his powers under the EPA at the time of the assault, this element was out.
Accordingly, ground 2 of the appeal has not been made out.
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.