Evans v Powell

[2012] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation:

Evans v Powell [2012] NSWSC 1384

Hearing dates:

19 September 2012

Decision date:

19 November 2012

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. The appeal is upheld.

2. His Honour's orders are set aside.

3. The matter is remitted to the Local Court for rehearing.

4. Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:

APPEAL - appeal against Local Court decision against dismissal of five court attendance notices - appeal upheld - failure to give adequate reasons - whether his Honour erred in excluding disputed evidence - whether his Honour erred in dismissing 5 court attendance notices - residential centres - power of entry - construction of s 25 of the Youth and Community Services Act 1973 - exclusion of the disputed evidence - orders - costs

EVIDENCE - admissibility - discretionary exclusion of evidence

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Fisheries Act 1905-1964
Youth and Community Services Act 1973
Youth and Community Services Regulation 2010

Cases Cited:

Carmichael v McGowan [1967] WAR 11
DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227
DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262
R v Glossop [2001] NSWCCA 165
R v Harker [2004] NSWCCA 427
R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Sykes v The Director of Public Prosecutions [1961] 3 ALL ER 33
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181

Texts Cited:

Pearce and Geddes, Statutory interpretation in Australia, 7TH ed, at [9.9] - [9.10]

Category:

Principal judgment

Parties:

Tim Evans (Plaintiff)
(Department of Family and Community Services)
Adrian Powell (Defendant)

Representation:

Counsel:
Mr L Fernandez (Plaintiff)
Mr A Scotting (Defendant)
Solicitors:
IV Knight, Crown Solicitor (Plaintiff)
Yardy Legal (Defendant)

File Number(s):

2012/88536

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9109

Before:

Lucas LCM

Judgment

1. The Department of Family and Community Services appeals from orders made by Lucas LCM dismissing five court attendance notices issued to Adrian Powell, the sole director and shareholder of Avibin Pty Ltd. The company is the licensee of two residential centres located at Millthorpe, together known as Grand Western Lodge. They are licensed premises under the Youth and Community Services Act 1973 ('the Act'). Mr Powell is the licensed manager of the centres. The centres operate as a boarding house for people who suffer mental illness and intellectual disabilities.

1. The proceedings below involved a summary criminal trial in relation to five breaches of the Act alleged to have occurred between March and May 2011, when Mr Powell wilfully obstructed officers of the Department from inspecting resident's bedrooms at the Lodge, contrary to s 25(6)(b) of the Act.

1. At the trial the Department sought to lead evidence as to the circumstances in which the officers attempted to enter the bedrooms. His Honour excluded evidence of certain conversations between the officers and Mr Powell, by which the Department sought to establish the alleged breaches. Mr Powell had asked his Honour to exclude the evidence under s 90 or s 138 of the Evidence Act 1995. Instead, without hearing from the parties, he excluded the evidence under s 137.

1. On appeal it was common ground that his Honour erred in so deciding the question of the admissibility of the evidence. It was also agreed that he had failed to give adequate reasons for his decision as to the admissibility of that evidence and for his dismissal of the five court attendance notices. Other alleged errors were also conceded.

1. In the result, it was Mr Powell's case that unless the matters he raised by way of a notice of contention were accepted, the appeal would have to be upheld and the matter returned to the Local Court to be heard.

The Appeal must be upheld

1. While the penalties fixed by the Act for the alleged offences in question are not large, the appeal raises important questions as to the proper construction of the Act, as well as in relation to the conduct of the trial and the obligation to give reasons. In the circumstances there is no question that the appeal must be upheld and the matter remitted to the Local Court for rehearing.

1. Section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 gives a prosecutor the right to appeal an order made by the Local Court dismissing a matter the subject of any summary proceedings. Mr Powell's various concessions as to his Honour's errors of law, provide a proper basis upon which this appeal should be upheld.

1. It was, however, submitted for Mr Powell that the complaint advanced in relation to the exclusion of evidence under 137 of the Evidence Act, was an aspect of the appeal in respect of which the Department required leave, under s 57(1)(c) of the Act, because it was an aspect of the appeal relating to an interlocutory order.

1. I do not accept this submission. This aspect of the appeal certainly concerns an evidentiary ruling. If the appeal is upheld, a separate order setting aside the ruling is unnecessary. Had there been an appeal brought from the ruling during the course of the trial, leave would plainly then have been required under s 57. It would have been unusual so to fragment a summary criminal trial such as this, but had there then been an appeal, leave may have been given, in the circumstances which had arisen at the trial.

1. Now an appeal has been brought against the dismissal of the five court attendance notices, in circumstances where, on any view, the appeal must be upheld. The ruling as to the admission of the excluded evidence is an appropriate matter to raise on this appeal, which does not now require separate leave. Even if this view were wrong, in the circumstances, were leave necessary, it would be given.

His Honour failed to give adequate reasons

The exclusion of the disputed evidence

1. The common ground as to his Honour's failure to give adequate reasons is well founded.

1. The parties provided written submissions as to the question of whether the disputed evidence ought to be received. That debate turned on the question of whether the evidence amounted to admissions. The parties addressed their submissions to that question, in the context of the provisions of s 90, s 138 and s 139 of the Evidence Act.

1. His Honour's reasons for excluding the evidence were shortly given, but not completely recorded. It is sufficient to refer to the succinctly given conclusion, after reference had shortly been made to the issue which had arisen. His Honour concluded:

"Throughout statements there is if you do not comply in the objection or you accept that this was the objectionable part, if you do not comply, well, you will be in breach of s 25. I paraphrase that Act and the parties - that is my interpretation prior to the luncheon adjournment. In my view they were investigating officials. Once that has been made open, are they required to grant the caution as argued under s 139, and should the Court admit such evidence under 138? I am of the opinion that there was nothing that transpired in those sections in the objections that would certainly rule out those matters, however turning to 137, "In criminal proceedings a court must exclude such evidence." As such I uphold the objection and that evidence is excluded."

1. In the result, not only did his Honour decide the objection to the evidence on a basis which neither party had advanced, he did not invite them to address him on the matter on which his decision rested. That approach was contrary to the obligation to give the parties procedural fairness. His Honour clearly ought to have heard the parties, before deciding the objection on a basis which neither of them had advanced.

1. The obligation to give reasons was again recently explained in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [56]:

"Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding "which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning."[ (1995) 184 CLR 348 at 394.] Heydon J in AK v Western Australia[(2008) 232 CLR 438 ; [2008] HCA 8.] described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as "well-established". His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ [(2008) 232 CLR 438 at 470 [89], citing Gleeson, "Judicial Accountability", (1995) 2 The Judicial Review 117 at 122]:

"First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions."

The duty does not apply to every interlocutory decision, however minor. Its content - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision."

1. The obligation to give reasons for an evidentiary ruling is not the same as the obligation to give reasons for the decision disposing of the proceedings. When the effect of an evidentiary ruling is that it will effectively dispose of a case, however, the obligation is to give sufficient reasons for both the parties and an appellate court to understand the basis of the ruling. That obligation was not met.

1. The explanation given shed no real light on the reasons for the decision reached. His Honour did not reveal what it was that led him to the view which he reached, or why the arguments which the parties had addressed, did not persuade him.

1. His Honour's approach was contrary to that discussed in R v Harker [2004] NSWCCA 427, where it was observed as to a ruling in relation to s 137, at [47]:

"... adequate reasons for the rejection of evidence will hardly be found in a simple statement that s137 applies or in a bare finding that the probative value of the evidence is outweighed by the unfairly prejudicial effect of the evidence. The reasons for judgment must make clear what the unfair prejudice is and why it is of such a kind that the evidence must be rejected despite its probative value."

1. The parties had not relied on s 137 of the Evidence Act, which requires that in a criminal trial evidence adduced by a prosecutor must not be admitted if 'its probative value is outweighed by the danger of unfair prejudice to the defendant'. His Honour did not refer to this requirement.

1. Exclusion under s 137 does not depend on an assessment as to the reliability or credibility of the evidence (see DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262 at [8]). Just because particular evidence will make it more likely that a defendant will be convicted, does not make it unfairly prejudicial to admit it. It is matters such as the possible misuse of the evidence by a jury, which arises for consideration under s 137 (see R v Glossop [2001] NSWCCA 165 at [51] for example). Necessary to be considered in this case was thus that it was not a jury but a magistrate who was hearing the matter, who was unlikely to misuse the evidence, or give it undue weight, once received. His Honour does not appear to have considered matters of this kind. Had his Honour invited the parties to address him, they would no doubt have been raised and considered, as they ought to have been.

1. The reasons given by his Honour for his ruling were thus clearly inadequate. What his Honour intended by his observations is not apparent. It follows that this ground of appeal was established.

The dismissal of the Court Attendance Notices

1. The reasons given for the final decision were also briefly given. It is convenient to quote them:

"The matter before the Court today, Mr Adrian Powell, the defendant to these proceedings, has pleaded not guilty to the five court attendance notices alleging a breach of s 25(2) of the Youth and Community Services Act 1973. These allegations from the perspective of the prosecution are that on the dates specified in the court attendance notices Mr Powell did wilfully obstruct the powers of an officer exercising powers under s 25 of the Act. The allegations centre around Mr Powell and his being the licensee of the premises to which the Act applied.

The substantial sections creating the offence are found within s 25(6) that being the definition - well, not the definition, but wilfully obstruct officers in the proceedings. For the purpose of these proceedings I formally find that Mr Wyatt and the other persons acting on his delegated responsibility were officers for the purposes of the legislation. Secondly, Mr Powell was a person licensed under the legislation and that the premises as set out within the interpretation section inspected were those that under the legislation the powers s 25 applied.

I proposed to read out s 25 at this stage but on reflection I am well aware that the parties are well and truly aware of what s 25 says in its legislative view, so I shall continue. It is conceded that the only issue for the Court to consider in these proceedings is the issue of wilful obstruction. I thank the parties for their discussion in relation to the law on wilful obstruction and in particular Mr Fernandez for his written submissions as to the applicable law, which were most helpful. Whilst much of the evidence has been ruled inadmissible by this Court for the reasons stated, in particular the application of the Evidence Act, I note the discussion of case law on wilful obstruction and I note para 12 of Mr Fernandez's submission regarding the Youth and Community Services Act.

Paragraph 12 indicates:

"For the purposes of this Act the plaintiff admits that a person wilfully obstructs an officer for the purposes of the Youth and Community Services Act 1973 if, (a), the person acts intentionally or deliberately; (b), the person's conduct prevents an officer from carrying out his or her duty or makes it more difficult for the officer to do so; and (c), the motive for which the act is committed is irrelevant unless"-

and I emphasise this -

"constitutes a lawful excuse for that obstruction."

Now, having accepted the prosecution's submissions contained in para 12 I formally make the following findings, that Mr Powell did act deliberately in refusing the officers power to search the residents' rooms in accordance with the action plan exhibited in these proceedings, secondly, the conduct of Mr Powell did prevent or make it more difficult for the officers to do their inspection by his refusal, three ..(not transcribable).. motive was committed unless such motive was lawful, the motive was irrelevant unless such motive was of a lawful cause.

I note particularly the regulations of the Youth and Community Services Act 2010. Regulation 15 outlines protection of the interests of the residents. It sets out a number of requirements for the protection of the residents' rights and in concert with these Mr Powell told officers that they would have to arrange access through the residents' committee. In the statement of Mr Wyatt at para 124 and following there is discussion as to the requirement of officers to inspect residents' wardrobes, et cetera.

Mr Powell refuses on the basis he tells the officers something something something, "I'm not in charge, you need to speak to the residents' committees." He then goes on in some colourful language as to what occasioned and what he thought of various Acts of Parliament. I digress. The Court asks the question, does the power to inspect under s 25 apply to the areas of the individual residents? I am of the view that it does not within general common law provisions of entry. I determine this firstly on the basis of the pre-mentioned reg 15 being established some seventeen years or brought into law some seventeen years after the primary Act from which it gains its legislative force ..(not transcribable).. as was raised a couple of times in relation to these proceedings what the various police powers are in relation to that power of entry.

Discussion was had as to the LEPRA. In s 83, entry by warrant:

"Where entry is denied a police officer may apply to an authorised officer for a warrant if the police officer, (a), has been denied entry to a specified dwelling, and (b), the police officer suspects a number of things."

I only say that on the basis - compare that to the basis that has been before the Court today in relation to police powers and secondly that it gives exactly what my reading of the s 25, the legislation where officers of the authorised type are found to be not able to enter premises or refused entry in a suspected contravention of the Act. Clearly subs (7) applies equally to them as it would to members of the police force.

I note at this stage that the department officers should have been aware that there may very well have been contraventions of the Act. This Act specifically in my outlines the procedure where such officers may apply to a magistrate on oath for a warrant in the circumstances that there is a suspicion of a contravention of the Act to give them the forcible ..(not transcribable).. entry as opposed to the general power, in my view ambiguous power under s 25 of the 1973 Act. Taking into account all the evidence, and accepting that the Act is more powerful than regulations, taking into account all of the evidence, the Court must, as in any criminal matter, be satisfied beyond reasonable doubt as to the proof of the prosecution case.

QUITE SIMPLY I AM NOT SATISFIED BEYOND REASONABLE DOUBT IN THIS MATTER AND DISMISS ALL THE COURT ATTENDANCE NOTICES."

1. The decision was given ex tempore, but clearly did not give adequate reasons for the conclusions reached about the questions over which the parties had joined issue. They included not only the proper construction of s 25, but also whether Mr Powell had obstructed the officers as alleged and if he had, whether such obstruction was wilful.

The construction of the Act

1. While it was not in issue that the Departmental officers called to give evidence had attended the centres on a number of occasions, in order to inspect various things, exercising powers given them under the Act, the proper construction of s 25 was in issue.

1. Its construction had to be approached in a context where it is plainly protective legislation, designed to protect the interests of handicapped people who reside in the residential centres regulated by the Act. Its meaning has to be considered in light of the definition of 'handicapped person' in s 3, which sheds light on the people who reside in centres licensed under the Act, in respect of which the power to inspect granted by s 25 arises. The definition provides:

"a person who is senile, temporarily or permanently incapacitated for work, mentally ill, intellectually handicapped, physically handicapped, sensorily handicapped, chronically ill, of advanced age or suffering from any medical condition prescribed by the regulations, or any combination of those disabilities, and who requires supervision or social habilitation."

1. The power of entry being exercised was given by s 25(2). The section provides:

"25 Power of entry

(1) In this section, officer means an officer or a temporary employee of the Department or an officer or a temporary employee or member of the Health Commission of New South Wales.

(2) Subject to subsection (5), for the purposes of:

(a) making an inquiry under section 11 (2) in respect of any premises,

(b) ensuring that this Part and the regulations are being complied with on licensed premises, together with the conditions of the licence or permit for the premises,

(c) ensuring that the conditions, if any, of an exemption in force under section 23 are being complied with, or

(d) ascertaining whether a breach of this Part or the regulations is being committed with respect to unlicensed premises,

any officer may, at any time, enter the premises and inspect them and observe and converse with any person apparently residing at the premises.

(3) In exercising his or her powers under subsection (2), an officer may be accompanied by a medical practitioner or medical practitioners or a member or members of the police force and any such medical practitioner or medical practitioners may inspect the premises and observe, examine and converse with any person apparently residing at the premises.

(4) Nothing in this section authorises the examination of a person against his or her will.

(5) A person may not enter or inspect unlicensed premises pursuant to the power granted him or her by subsection (2) or (3) unless the person does so:

(a) for the purpose of making an inquiry under section 11 (2), or

(b) under the authority of a warrant issued under subsection (7).

(6) A person shall not:

(a) refuse or fail to admit an officer or other person exercising his or her power of entry under subsection (2) or (3),

(b) wilfully obstruct or delay an officer or other person exercising any of his or her powers under subsection (2) or (3).

Penalty: $500.

(7) Upon complaint made on oath by an officer that the officer suspects on reasonable grounds that a provision of this Part or the regulations has been or is being contravened within any premises, a Magistrate may issue a warrant authorising an officer or officers named in the warrant, together with any medical practitioner or medical practitioners so named (each of whom may, if the warrant so provides, be accompanied by any member or members of the police force) at any time or times within 14 days from the date of issue of the warrant to enter, if need be by the use of reasonable force, the premises described in the warrant, and to inspect the premises for evidence of such a contravention.

(8) (Repealed)"

1. The power of entry granted by s 25 is clearly an important aspect of the regulation of centres licensed under the Act. At common law, a person in possession of premises has the right to exclude others. Mr Powell accepted that the statutory power granted by s 25 was necessarily inconsistent with the occupier's common law right to exclude Departmental officers from the premises. Interfering with the exercise of that statutory power was at risk of the criminal sanctions imposed by s 25(6).

1. Considerable light is shed on the circumstances to which the power of entry granted by the section is directed in this statutory scheme, by the provisions made in the section itself.

1. By s 25(2), there is express power given to inspecting officers to 'observe and converse with any person apparently residing at the premises'. By s 25(3) it is provided that inspecting officers may be accompanied by a medical practitioner, or by a member of the police force. Those provisions reveal what the Legislature contemplated might be involved in the exercise of such a power of entry, given the handicapped persons who reside at such premises.

1. Further light is shed on this by the offences created by s 25(6), of refusing or failing to admit an officer exercising this power of entry, or wilfully obstructing or delaying an officer exercising that power. Thereby a powerful incentive is provided, to ensure that the power granted may be effectively exercised.

1. Whether such an offence has been committed is of course a question of fact, necessary to be proven by a prosecutor, to the criminal standard, at a trial.

1. Section 25(7) also expressly contemplates that circumstances may arise, where an officer has been prevented from exercising the power granted by s 25(2) and where steps need to be taken, to pursue an inspection, even by the use of force. That s 25(7) expressly contemplates such circumstances, demonstrates not only that the Legislature considered that it was necessary to make provision in this statutory scheme to deal with such a situation, but also that without the issue of a warrant there provided for, officers are not entitled to use force, when exercising the power of entry granted them by s 25(2).

1. It does not follow, however, from the provision made in s 25(7), that an offence under s 25(6) is not committed, if an officer has not sought the issue of a warrant under s 25(7), before seeking to exercise the power granted by s 25(2). As s 25(6) expressly provides, it is an offence either to refuse or fail to admit an officer or other person exercising his or her power of entry under subsection (2) or (3), or to wilfully obstruct or delay such an officer or other person exercising any of those powers.

1. The question of whether or not a s 25(7) warrant has been sought, or issued, is irrelevant to the exercise of the power under s 25(2) or to the question of whether an offence under s 25(6) has been committed.

1. It follows, contrary to the view reached by his Honour, that s 25 is not ambiguous. By s 25(2), Departmental officers are given a power to enter licensed premises, for the purposes there specified, unrestricted by the need to suspect any breach of the Act, prior to the exercise of the power.

1. In this case, whether Mr Powell's words and acts on the occasions which are the subject of the charges he faces, were such as to constitute the offences he has been charged with, was a matter of fact to be determined on all of the relevant evidence led at the trial. His Honour's view, that in order for the inspecting officers to exercise their s 25(2) power of entry in relation to the resident's bedrooms, it was necessary for them to first obtain a warrant under s 25(7) was clearly wrong. The section imposes no such requirement.

1. The inspecting officers had the right to exercise the power granted by s 25(2), without such a warrant. If they had the suspicions on which the right to seek a warrant under s 25(7) rested, they could certainly have sought that such a warrant be issued and if it was granted, could then have entered the bedrooms, using force, if necessary.

1. In the absence of such a warrant, however, Mr Powell had no right to prevent them exercising the power of entry granted by s 25(2). If by his words or acts he wilfully obstructed or delayed their entry, when they sought to exercise that power, he committed the offence specified by s 25(6)(b).

Mr Powell's contentions

1. There was no issue between the parties that on each occasion the officers sought to inspect the centres, they were doing so for the purpose of a function arising under the Act. It was also accepted by Mr Powell, that there would be an obstruction, if someone made the officers' job more difficult. The only elements of the offences in contention between the parties appear to be firstly, whether Mr Powell obstructed the inspecting officers and secondly, if there was such obstruction, whether it was wilful.

1. It was argued, however, for Mr Powell, that what was interposed between the officers and Mr Powell on each inspection, was a request on their part for his consent to their entry to the bedrooms and that a failure so to co-operate, would not necessarily amount to an obstruction, unless there was a legal duty to co-operate. It was submitted that there was no such obligation imposed by s 25, nor was a duty to consent to entry imposed and accordingly, his refusal of those requests, could not constitute any offence.

1. Mr Powell contended that when the officers sought his consent to inspect the bedrooms, what he had done was to inform them of the residents' concern, that this was an invasion of their privacy. While he refused to give his consent to their entry to the bedrooms, such consent was not necessary to be given by him, in order for the bedrooms to be inspected by the officers. Refusal of the consent sought could not amount to an offence under s 25(6).

1. The Department's case was that the evidence which it sought to rely on showed that there was no request for, or refusal of, any such consent, but rather repeated refusals to give access to the bedrooms, for reasons which Mr Powell repeatedly gave. This amounted to obstruction.

1. An example of the evidence to which this debate referred, appeared in the statement of Mr Benjamin David Wyatt, an Acting Manager Performance and Quality Improvement, who inspected the centre on 21 March 2011. What occurred on this inspection became the subject of the first charge. Mr Wyatt said in his statement, for example:

"92. We returned at approximately 10:55am. Mr Powell met us at the door, allowed us entry and showed us to a table, which was set up in the lounge room. He said words to the effect of:

"Why are there three of you here?"

And words to the effect of:

"This is intimidating and borders on harassment. I will be making a complaint"

93. We sat down at the table. Present also was Mr Powell, and Mr Gary Skerritt, a staff member at GWL.

94. I said:

"We need to go through the items noted in the full service review action plan."

95. We addressed the breaches in turn. In relation to the breach under Clause 5 of the Regulation, I said to Mr Powell:

"We need access to the rooms to determine compliance with the Regulation and licence conditions."

96. Mr Powell said:

"The licence conditions are 'ultra vires.'"

And words to the effect of:

'This is a breach of the Privacy Act. The residents have said 'no, you're not going in' These people have every right and you are not going into their rooms."

97. I said:

"Refusing to grant us access to the rooms is a breach under section 25 of the Act. You are required to grant us full access."

98. Mr Powell said:

"You will have to take my word on the number of beds in each room because I will not grant you access."

99. In relation to a breach under Clause 6 of the Regulation, which requires that residents have sufficient clothing, toiletries' and personal effects, I said to Mr Powell:

"We will need access to the bedrooms to sight these items. If we do not have access, we cannot determine you have complied with the Regulation."

100. Mr Powell said words to the effect of:

"This is a breach of the residents' privacy and I will not let you in."

101. In relation to a breach under Clause 9 of the Regulation, I said:

"We need access to determine whether residents have sufficient storage space."

102. Mr Powell said words to the effect of:

"It is a breach of their privacy and there will be no access to their rooms."

103. In relation to licence conditions 1.1A and 1.3, I said:

"Section 25 of the Act gives us a right of access for the purposes of determining compliance with licence conditions."

104. Mr Powell said words to the effect of.

"Your right of entry applies to the front door only. Where in the Act does it say you have unfettered access to all areas?"

105. Mr Powell also made several references to privacy legislation and the United Nations Charter with words to the effect of.

"The UN Convention overrides the [Youth and Community Services] Act."

108. We spend some time in general conversation with some of the residents at GWL. At all times, we were in the company of Mr Powell and the residents' committee.

109. We finished the inspection at approximately 2:35pm."

1. Because this evidence was objected to and excluded, the officers were not cross-examined. It was explained for Mr Powell that if it had been received at the trial, this evidence would have been the subject of challenge. It was also explained that reliance would have been placed on the provisions of Regulation 15, which requires licensees such as Mr Powell to ensure that each resident's need for privacy and confidentiality is met. Regulation 4 makes it an offence for a licensee who fails to comply with this requirement 'with respect to the licensed premises'. In the result, on his case, there could have been no offence.

1. What transpired when the officers sought to exercise their power of entry on each occasion, is a question of fact to be determined on the evidence. Only when that has been established, can it be determined whether or not the acts in question amounted to obstruction and if it did, whether or not it was wilful.

1. It is apparent, as I have explained, that the officers were not entitled to use force, when exercising their power of entry under s 25(2). That required a warrant to be obtained, in accordance with the s 25(7) procedure. The absence of such a warrant did not, however, permit Mr Powell to wilfully obstruct the officers in the exercise of their power. Whether or not what Mr Powell did amounted to such wilful obstruction, can only be determined on the evidence.

1. For their part the parties did not debate what these words mean. They are not defined terms and so must be given their ordinary meaning, understood in the statutory context in which they are used, that is in the context of a penal provision which makes it an offence to 'wilfully obstruct or delay an officer or other person exercising any of his or her powers' of inspection under s 25(2) or (3).

1. The words are defined in the Macquarie Online Dictionary as:

"Obstruct:

1. to block or close up, or make difficult of passage, with obstacles, as a way, road, channel, or the like.

2. to interrupt, make difficult, or oppose the passage, progress, course, etc., of.

3. to come in the way of or shut out (a view, etc.). [Latin obstructus, past participle]

Wilful:

1. willed, voluntary, or intentional: wilful murder.

2. self-willed or headstrong; perversely obstinate or intractable"

1. The term used by the Legislature must be given a fair meaning in the statutory framework in which this penal provision appears (see the discussion in Pearce and Geddes, Statutory interpretation in Australia, 7TH ed, at [9.9] - [9.10]). It follows that in this statutory scheme, it must be concluded that the obstruction that s 25(6)(b) is concerned with words or acts willed, voluntary or intentional on Mr Powell's part, which made it more difficult for the officers to inspect the premises, they bring.

1. That conclusion accords with settled authority, for example, Carmichael v McGowan [1967] WAR 11, where the meaning of the term 'obstruct', where used in the offence created by s 44 of the Fisheries Act 1905-1964, was considered. The view taken was that the offence there in question was not confined to physical obstruction, as discussed by Lord Denning in Sykes v The Director of Public Prosecutions [1961] 3 ALL ER 33 at 41, where his Honour took the view that 'obstructing' in the offence he was considering, meant 'making it more difficult for the police to carry out their duties', in circumstances where the acts in question made it more difficult for the police to get certain entry into premises.

1. That is what here must be determined, whether Mr Powell's words and acts made it more difficult for the officers to exercise their power of entry to the resident's bedrooms. That must be determined on the evidence as to the whole of the factual circumstances alleged to have constituted each offence.

Did his Honour err in excluding the disputed evidence?

1. The evidence excluded was that sought to be called from various officers present at relevant times, as to what was said and done when they were seeking to exercise their power to inspect parts of the centres. It was as the result of these events that Mr Powell was charged with wilful obstruction under s 25. Evidence of what he did and said on those occasions was clearly relevant to the question of whether or not he had committed those offences.

1. The objection advanced for Mr Powell below was that the evidence of what he said involved admissions. It was argued that the officers were acting in an official capacity when they questioned him; and that what he was asked about constituted official questioning, in respect of which he ought to have been cautioned, as s 139 required. The failure to caution Mr Powell was also submitted to have removed his right to silence and his privilege against self incrimination. In the result it was argued that the evidence ought to have been excluded under s 90 of the Evidence Act as evidence of admissions by way of speech or conduct and because they were obtained improperly.

1. It was also Mr Powell's case that he had been making representations on behalf of residents, who were disabled and who had objections to the officers exercising some of their functions, rather than obstructing the inspecting officers. Again, this raises a question of fact.

1. The Department's case was that the disputed evidence established that the officers were seeking to exercise their s 25 power to inspect; that no caution was required in the circumstances; that Mr Powell was in fact cautioned; that what Mr Powell said did not constitute admissions, but were the acts which constituted the offences charged.

1. While the Department's contentions rest in part on factual matters which do not here arise to be determined, Mr Powell's contention that what he said when the officers were seeking to inspect the bedrooms amounted to admissions, may not be accepted.

1. An 'admission' is defined in the Dictionary to the Evidence Act to mean:

"a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person's interest in the outcome of the proceeding."

1. A 'representation' is defined to include:

"(a) an express or implied representation (whether oral or in writing), or

(b) a representation to be inferred from conduct, or

(c) a representation not intended by its maker to be communicated to or seen by another person, or

(d) a representation that for any reason is not communicated."

1. It follows that the words and acts which constitute a particular offence, or which establishes some fact relevant to establishing the person's guilt of the offence, as opposed to a representation which amounts to a confession that the offence was committed, is not an 'admission' as defined. Section s 90 of the Evidence Act, which gives a discretion to refuse to admit evidence of an admission, does not apply to such words and acts.

1. As James J discussed in DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227 at [88] - [94]:

"88 On the hearing of this appeal, counsel for the Director of Public Prosecutions relied particularly on the decision of Bryson J in Re A (a Child) (2000) 115 A Crim R 1 (another case concerning s 424A of the Crimes Act). In Re A the plaintiff on the appeal before Bryson J had been convicted in the Children's Court of an offence of robbing a bank. Two bank officers had identified the plaintiff as being the robber from photographs. Their evidence of identification was picture identification evidence within s 115 of the Evidence Act and under s 115(5) the picture identification evidence would not have been admissible, unless the plaintiff had refused to take part in an identification parade. A police officer gave evidence that he had interviewed the plaintiff and that, when the plaintiff had been asked "Do you wish to participate in a line-up?" the plaintiff had said, "No". In reliance on this evidence, the magistrate constituting the Children's Court admitted the picture identification evidence.

89 In Re A it was argued on behalf of the plaintiff, both before the magistrate and on the appeal before Bryson J, that the evidence of the plaintiff refusing to take part in an identification parade was evidence of an "admission". However, Bryson J held that the evidence of the plaintiff's refusal was not evidence of an admission.

90 At paragraph 28 of his judgment Bryson J said:

"The statement "No" in its context does not fall within any meaning of the word "admission" in ordinary usage, or in any usage known to me in evidence law or other law. If "admission" in s 424A is to be understood in the context of s 424A itself, in my opinion the statement was not an admission; it was a direct statement on the subject of the plaintiff's wishes about taking part in an identification parade, and was not in any sense an admission or (to search for illustrative analogies) a narration, a relation or a representation about whether some state of facts existed. Nothing in the definition of "admission" set out in s424A could lead to any qualification of this opinion".

91 At paragraph 29 of his Honour's judgment his Honour said:-

"The word "representation" in ordinary usage is in my understanding capable of several shades of meaning; it can refer to a narration of some fact, case or argument, to an assertion that some state of fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact".

92 Bryson J considered a submission made by counsel for the plaintiff, which was based on s 72 of the Evidence Act, that a statement by a person refusing (or granting) consent to an investigative procedure the police wish to carry out is a representation of the maker's contemporaneous state of mind within s 72. Bryson J rejected this submission. At paragraph 37 his Honour said:-

"This in my view is a highly artificial perception of what a representation is, and of what occurs when a person expresses a consent, a refusal or another state of mind. In my view what takes place is a consent or a refusal; the consent or refusal is an event itself, or it could be called a fact of itself, and it is only in an obscuring indirect way that it could be perceived as a representation about a state of mind, or that it could be supposed that the word "representation" was used in the Dictionary in a sense which included it".

93 I would generally adopt the reasoning of Bryson J. "Representation" is not defined in the Evidence Act, except in the circular way I have referred to. In ordinary usage the word "representation", even if it is not limited to an assertion of fact, nevertheless has an indirect quality; a representation is an assertion, stating, alleging, picturing or portraying of some matter other than itself. See the definitions of "representation" in the Oxford English Dictionary and the Macquarie Dictionary.

94 The uttering of words by a person giving or refusing consent is not a representation about something else, it is a fact or event in itself; it is not a representation that the person is consenting or refusing to consent, it itself constitutes the giving or refusing of consent. In the present case, the defendant, by uttering the words "Go for it. There is nothing in here, mate" and the word "Fine" was not representing that he was consenting to a search of his vehicle; by uttering those words he was actually consenting to a search of his vehicle. I agree with Bryson J that the making of such an utterance should not be characterised as a representation about the maker's then state of mind."

.

1. In this case, the offences alleged under s 25(6)(b) of wilfully obstructing or delaying an officer or other person exercising any of his or her powers under subsection (2) may be committed by words, or by acts, or by a combination of both. Such words and acts are not admissions and s 90 does not apply to them.

1. It is possible, of course, that by his or her words or acts, a person not only commits an offence under s 25(6), but also says or does something which amounts to an admission that another such offence was committed on an earlier occasion. Given that Mr Powell was charged with a series of offences allegedly committed on separate occasions, that is a theoretical possibility in this case, which depends on the words and acts in question.

1. If it is found that particular words and acts involve an admission that an offence was committed on a past occasion, rather than amounting to the commission of an offence under s 25(6)(b), then the provisions of s 90 of the Evidence Act, which gives a discretion to refuse to admit evidence of an admission, if it would be unfair to the defendant to use the evidence, may arise to be considered.

1. In that event, questions of voluntariness, reliability and the circumstances in which the admissions were made, will arise to be considered (see The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 194). The means by which a confession was elicited, if it was, will then be a relevant consideration, as will considerations of fairness, public policy and the protection of the rights and privileges of an accused. Such considerations will not apply in respect of words and acts which evidence the commission of an offence itself.

1. Section 138 of the Evidence Act permits a court to exclude improperly or illegally obtained evidence. Such evidence must not be admitted 'unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained' (s 138(1)). Section 138(2) is also concerned with admissions made during or in consequence of questioning, but again, this section does not apply to words and acts which themselves constitute the offence. Section 139 is likewise concerned with evidence of statements and acts done during questioning, rather than with words or acts which themselves constitute an offence.

1. It follows that some, at least, of the evidence in contention below could not be excluded on the basis that the words and actions in question amounted to an admission. Whether that was the view which his Honour took below, is not entirely clear. It may be that he concluded that none of the evidence as to Mr Powell's words or acts was evidence of any admission and that is why he turned to consider its exclusion under s 137, rather than dealing with it under s 90, s 138 and s 139. In so approaching the issues lying between the parties, he erred, as I have already explained.

1. In the result, this ground of appeal must also be upheld.

Did his Honour err in dismissing the five court attendance notices?

1. His Honour concluded that the Department had no statutory right to enter the resident's bedrooms. This conclusion rested, it seems, on the provisions of Part 2 Obligations of Licensees and Managers, Regulation 15 of the Youth and Community Services Regulation 2010, which provides:

"15 Protection of interests of residents

(1) Each resident's need for privacy and confidentiality must be met.

(2) Each resident must be given the opportunity to make decisions about daily events and activities that he or she participates in (provided that such decisions do not unreasonably infringe on the health, comfort, safety or proper care of other residents).

(3) A resident must be provided with information on support services, advocacy services or other service or information providers (such as legal service providers and disability rights and support organisations).

(4) A resident who wishes to access any such service must be assisted (and not obstructed in any way) in accessing those services (whether the service provider consults with the resident at the licensed premises or any other place outside of the licensed premises).

(5) Visits to the licensed premises by a resident's family and friends, and communications between a resident and his or her family and friends, must not be obstructed in any way (unless in compliance with a direction from a person who has authority to make such a direction or to protect the health or safety of a resident).

(6) Friendships between residents must not be obstructed in any way (unless in compliance with a direction from a person who has authority to make such a direction or to protect the health or safety of a resident).

(7) A resident must not be required to undertake tasks of a domestic nature that are included in the resident's board and lodging fee. A resident may, however, volunteer to undertake such tasks."

1. The Regulation is directed to licensees and managers. It was made under s 32(1) of the Act, which empowers the making of regulations not inconsistent with the Act. Section 32(2) provides:

"(2) Without prejudice to the generality of subsection (1), the Governor may make regulations for or with respect to:

(a) the procedures to be observed by councils, committees and other advisory bodies constituted by the Minister under this Act,

(b) standards to be observed and facilities to be provided to ensure the health, comfort, safety and proper care of handicapped persons residing at licensed premises,

(c) the qualifications and experience of persons employed at licensed premises,

(d) the making and keeping of records and the furnishing of returns in respect of licensed premises,

(e) the inspection of licensed premises, and

(f) the form of applications under this Act and of licences and permits."

1. While regulation 15(1) requires that licensees and managers must meet residents' needs for privacy, it does not allow residents, or licensees, to prevent or obstruct Departmental officers from exercising the statutory power of entry given by s 25(2), in relation to resident's bedroom.

1. The power to inspect licensed premises granted by s 25(2) is for the purposes there specified. There was no issue that the centres which comprised the Lodge were 'licensed premises' as defined in s 3 of the Act, that is premises licensed for the purpose of Part 3, Licensing of residential centres for handicapped persons. 'Premises' is defined in s 3 as 'any place, vehicle or vessel'. It follows that there can be no question that the residents' bedrooms at the two centres formed part of the licensed premises.

1. Nothing in either the Act or the Regulations restricts the power of entry given by s25 to any part of licensed premises. The Act establishes a scheme for the licensing of premises to be used as a residential centre for handicapped persons and to authorise specified persons to have the conduct of such a residential centre. Under s 16, conditions of such a license may be specified. Obligations are imposed on proprietors of such centres under s 21 and upon managers by s 22. Section 25 establishes a scheme whereby such centres may be inspected, to ensure that statutory and regulatory obligations, as well as licence conditions are being complied with at the centre.

1. The purpose of the Act is not expressly stated, but having regard to its provisions, it is obvious, namely, to ensure the care and protection of the handicapped persons who reside at the centres licensed under the Act.

1. It is apparent from the statutory scheme and the Regulations, including s 25 and regulation 15, that resident's bedrooms are not exempt from inspection. To the contrary, there is a clear inference from the express provisions made in s 25(2) that an inspecting officer may 'observe and converse with any person apparently residing at the premises' that a resident's bedroom may be entered. If it were otherwise, an officer would not be able to observe and converse with a resident confined to a bedroom, at the time of the inspection, whether as the result of that person's handicap, or otherwise.

1. Regulation 15 is concerned with resident's interests, including in relation to privacy and confidentiality. Inspecting a resident's bedroom, in order to enquire as to whether statutory and regulatory obligations and licence conditions are being complied with, may be concerned with the question of whether the resident is being given privacy, while in their bedroom, as Regulation 15 requires. It is not a provision which excludes an inspection being conducted for the purpose of s 25, but may itself become the subject of such an inspection.

1. Were the regulation to be otherwise construed, considerable practical difficulties would eventuate, inconsistently with this statutory scheme.

1. The suggestion that co-operating with an officer seeking to inspect a bedroom, would involve a licensee in an offence under regulation 15, may not be accepted. A licensee who gave a Departmental officer exercising a power of entry under s 25 of the Act, access to a part of a centre such as a bedroom, plainly would not be committing an offence in respect of the requirements imposed by regulation 15, by giving that access. Even if it were conceivable that giving such access could amount to such an offence, as was conceded for Mr Powell, in the event of any conflict between s 25 and regulation 15, the regulation would have to give way (see Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245).

1. In the result, Mr Powell's contentions may not be accepted. What the Department has to prove is that he committed the offences alleged. That depends on whether the evidence establishes the acts and words which it alleges constituted Mr Powell's offences, made it more difficult for the officers to exercise their power of entry. The requirements of Regulation 15 are not relevant to that question.

1. His Honour plainly erred in his construction of this aspect of s 25 and so this ground of appeal must also be upheld.

Orders and costs

1. The appeal must be upheld for the reasons given. The usual order as to costs is that they follow the event, with the result in this case, that Mr Powell must bear the Department's costs of the appeal, as agreed or assessed. If the parties wish to be heard as to that order, they should approach within 14 days. Otherwise that will be the Court's order as to costs.

1. Otherwise, I order that:

1. The appeal is upheld.

2. His Honour's orders are set aside.

3. The matter is remitted to the Local Court for rehearing.

4. Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

**********

Decision last updated: 21 November 2012