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O'Neill v Roy

O'Neill v Roy

Case [2019] NTSC 23 12 April 2019

Appeal

Jurisdiction

Admissibility of Evidence

Administrative Law

Criminal Law

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CITATION:O’Neill v Roy [2019] NTSC 23
PARTIES:O’NEILL, Julie
v

ROY, Aileen

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 70 of 2018 (21815687)
DELIVERED:  12 April 2019
HEARING DATE:  29 March 2019
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

APPEAL – LOCAL COURT APPEAL
Whether police have the power under the Police Administration Act (NT) and the Domestic Violence Act (NT) to enter private property to ensure compliance with Domestic Violence Orders - existence of implied licence - legitimate purpose of implied licence - whether entry onto private property merely to investigate whether an offence has been committed falls within legitimate purpose of implied entry - held absent a clear and express statutory power to do so there is no authority to enter private property of the occupier merely for investigating if a breach has occurred by the occupier or for gathering evidence of criminal activity by the occupier, in circumstances where the police have no reasonable belief that an offence is occurring or may be occurring, without an express invitation by the occupier.
Admissibility of evidence -whether police had any basis to request to submit to a breath test while trespassers at a private property - held evidence unlawfully obtained - appeal dismissed.
Evans and Evans v The Queen (1996) 104 CCC (3^rd) 23; Harvey v Bofilios [2017] NTSC 68; Howden v Ministry of Transport [1987]2 NZLR 747; Kuru v New South Wales [2008] HCA 26, applied
Barker v The Queen [1983] HCA 18; 153 CLR 338; Fisher v Ellerton [2001] WASCA 315; Halliday v Nevill [1984] HCA 80; 155 CLR 1; 246 ALR 260; Morris v Beardmore [1981] AC 446; Munnings v Barrett [1987] Tas R 80; 5 MVR 403; Plenty v Dillon and Others [1991] HCA 5; 171 CLR 635; Semayne’s Case (1604) 77 ER 194; Tasmania v Crane [2004] TASSC 80; 148 A Crim R 346; Thomas v Sawkins [1935] 2 KB 249; Transport Ministry v Payne [1977] 2 NZLR 50, referred to
O’Connor v Police [2010] NZAR 50; Police v McDonald [2010] NZAR 59, distinguished
Domestic and Family Violence Act (NT) s5(e), s8, s21, s21(1A), s22(1), s22(2), s22(3),s120(1)
Domestic and Family Violence Regulations (NT) s6, 7(3)
Evidence (National Uniform Legislation) Act s138
Police Administration Act (NT) s126(2A), s116

REPRESENTATION:
Counsel:
Appellant:D Dalrymple
Respondent:  J Murphy & R McCarthy
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    A
Judgment ID Number:  Mil19552
Number of pages:  31

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
O’Neill v Roy [2019] NTSC 23

LCA 70 of 2018 (21815687)

BETWEEN:
JULIE O’NEILL

Appellant
AND:
AILEEN ROY

Respondent

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 12 April 2019)
[1]This appeal from the Local Court raises important questions about the admissibility of evidence relating to an alleged breach of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Neill v Roy

Details

AGLC: O'Neill v Roy [2019] NTSC 23
Case: [2019] NTSC 23
Decision Date: 12 April 2019

CaseChat Overview and Summary

The appellant, O'Neill, appealed against a decision of the Local Court which dismissed his appeal against conviction and sentence. The appellant was charged with being an occupant of a private property in breach of a Domestic Violence Order and for contravening a notice to submit to a breath test. The respondent, Roy, sought to have the appellant removed from the property, and upon police attending, the appellant was asked to submit to a breath test, which he refused. The appellant argued that the police had no lawful authority to enter the property and therefore any evidence obtained, including his refusal to submit to the breath test, should be excluded.

The central legal issue before the court was whether the police had the authority to enter private property to ensure compliance with Domestic Violence Orders and whether the evidence obtained during the trespass was admissible. The court considered whether the police had an implied licence to enter the property for the purpose of ensuring compliance with the Domestic Violence Order, or if their entry was a trespass which rendered any evidence obtained inadmissible. The appellant argued that there was no clear and express statutory power authorising the police to enter private property to investigate whether an offence has been committed. The respondent argued that the police had an implied licence to enter the property for the legitimate purpose of ensuring compliance with the Domestic Violence Order.

The court found that the police did not have an implied licence to enter the private property to investigate whether an offence had been committed. The court held that the police could only enter private property if there was a clear and express statutory power authorising such entry or if the occupier had expressly invited the police to enter. The court found that the police had no reasonable belief that an offence was occurring or may be occurring at the time of entry and therefore did not have the authority to enter the property. The court further held that the evidence obtained during the trespass was unlawfully obtained and therefore inadmissible. The appeal was dismissed as the evidence obtained during the trespass was the only evidence against the appellant and without it, there was insufficient evidence to sustain the conviction.

The court did not make any orders as the appeal was dismissed. The conviction and sentence of the appellant stood as determined by the Local Court.

Orders