O'Neill v Roy - [2019] NTCA 8

CITATION:O’Neill v Roy [2019] NTCA 8
PARTIES:O’NEILL, Julie
v

ROY, Aileen

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 6 of 2029 (21815687)
DELIVERED:  4 September 2019
HEARING DATE:  30 August 2019
JUDGMENT OF:  Southwood and Kelly JJ and Riley AJ

CATCHWORDS:
APPEAL – Admissibility of evidence obtained from ‘pro-active policing’ – Whether police have powers to attend the threshold of private property to ensure compliance with a Domestic Violence Order – Whether implied licence to knock – Whether legitimate purpose to attend – Whether communication with occupier is lawful purpose – Whether police had any basis to request to submit to a breath test – No challenge to police from the occupier – Appeal allowed.

Domestic and Family Violence Act 2007 (NT)
Family Violence Regulations 2008 (NT)
Police Administration Act 1978 (NT)

Barker v The Queen (1983) 153 CLR 338, Evans and Evans v The Queen [1996] SCR 8, Halliday v Nevill and Another (1984) 155 CLR 1, Howden v Ministry of Transport [1987] 2 NZLR 747, Kuru v New South Wales (2008) 236 CLR 1, Lambert v Roberts (1980) 72 Cr.App.R 223, Lipman v Clendinnen (1932) 46 CLR 550, O’Connor v Police [2010] NZAR 50, O’Neill v Roy [2019] NTSC 23, Police v McDonald [2010] NZAR 59, R v Daka [2019] SASCFC 80, Robson v Hallett [1967] 2 QB 939, Tipa v Ministry of Transport [1989] NZCA 7, referred to.
REPRESENTATION:
Counsel:
Appellant:T Moses
Respondent:  P Boulton SC and J Murphy
Solicitors:
Appellant:Solicitor-General for the Northern Territory
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Number of pages:  19

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
O’Neill v Roy [2019] NTCA 8

No. AP 6 of 2019 (21815687)

BETWEEN:

JULIE O’NEILL

Appellant

AND:

AILEEN ROY

Respondent

CORAM: Southwood and Kelly JJ and Riley AJ
REASONS FOR JUDGMENT
(Delivered 4 September 2019)
THE COURT:

The focus of this appeal is the admissibility of evidence obtained in the course of what was described as pro-active Domestic Violence Order (DVO) compliance checks undertaken by police officers in Katherine.
The Facts
The respondent, Aileen Roy, was named as the defendant in a DVO made by the Local Court in June 2017. The protected person under the Order was her partner, Toby Johnson. The DVO contained various conditions including that the respondent was restrained from remaining in the company of Mr Johnson when she was “consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance”.
In April 2018, the Northern Territory Police Force conducted Operation Haven which was designed to address issues concerning domestic violence and alcohol related crime. As part of the operation three police officers attended at Unit 6/41 Victoria Highway in Katherine on 6 April 2018. The unit was part of a block of units and was the residence of the respondent and Mr Johnson. One of the officers, Constable Elliott, gave evidence in the Local Court hearing that the reason for their visit was that he had observed antisocial behaviour coming from the property over the weeks prior to the operation. He had previously observed the respondent there in an intoxicated state and she had been intoxicated on every occasion he had dealt with her. Further, Constable Elliott had spoken to a number of residents who identified her as having “been a continuous alcohol-related offender and affecting the amenity and public safety at that location”. He was aware of eight other incidents at the location. He was also concerned about the welfare of Mr Johnson who had a “medical condition”. There was no current complaint made to the police regarding the conduct of the respondent. Constable Elliott was intending to obtain a sample of the respondent’s breath for analysis. He described his attendance as “proactive policing” which was encouraged as part of Operation Haven and involved attendance at identified residences to check compliance with DVOs.
While there is a perimeter fence around the property, the fence does not obstruct access to the unit which is obtained by a footpath running from the street to the front door. The unit is readily accessible by the public. The police used the footpath, which traversed the common area of the unit block, to approach the front door of the unit. Constable Elliott knocked on the fly screen door and through that door the officers were able to see both the respondent and Mr Johnson inside the dwelling. The respondent “appeared to be just sort of laying on the ground” and Constable Elliott called her to come to the door “for the purposes of a domestic violence order check”. As she approached the door, Constable Elliott observed that her eyes were bloodshot and he could smell “a very strong odour of liquor on her breath”. The respondent was also “slurring her speech a lot, which is more than usual for Ms Roy when I’ve dealt with her”.
Constable Elliott conducted a breath test which proved positive for alcohol and the respondent was then taken to the Katherine Watch House for further breath analysis.
There was no evidence of any challenge to the entry of the police upon the property. They were not asked to leave. There was no evidence of any signage or other suggestion that police, or indeed any visitors, were not welcome to approach and knock on the front door of unit 6.
The Proceedings
The matter came before the Local Court in Katherine on 13 November 2018 when there was a challenge to the admissibility of the evidence of the arresting police officers. On 16 November 2018, the Local Court determined that the officers did not have power under either the Police Administration Act 1978 (NT) or the Domestic and Family Violence Act 2007 (NT) to attend the residence and check that the respondent was complying with the terms of the DVO. The Local Court determined that the police exceeded their powers in so doing. There was no consideration as to whether the officers’ entry was permitted pursuant to an implied license. The evidence of the police officers having been excluded, the respondent was found not guilty.
The prosecution appealed the decision of the Local Court and the matter was heard in the Supreme Court on 29 March 2019. The appeal was dismissed on 12 April 2019 for reasons which were then published.[1] The focus of the reasons was the issue of whether the Local Court ought to have been satisfied that the police approach to the premises was pursuant to an implied license. The reasons canvassed numerous decisions which led his Honour to the following conclusion:[2]
The conclusion that I have reached is that, consistently with the decisions of the High Court of Australia, the Court of Appeal of New Zealand and the Supreme Court of Canada, absent a clear and express statutory power to do so, neither the police nor anyone else has an implied invitation to enter private property, or the threshold of a person’s home, for the mere purpose of investigating whether a breach of the law has occurred or for the purpose of gathering evidence of criminal activity by the occupier, in circumstances where there is no basis for believing or even suspecting that an offence has been or is in the process of being committed, absent an express invitation by the occupier to do so. To hold otherwise would be an Orwellian intrusion into the fundamental rights of privacy that the common law has been at great pains to protect and would amount to a new exception to the common law rule. It is not for judges to create such an exception. That is the province of the elected legislators who are responsible to the people for their decisions.
The Appeal
The appellant argued that his Honour erred in so concluding and submitted that this was a straight-forward implied license case. On the other hand, the respondent contended that the question to be asked was: did police have an implied license to attend upon the respondent’s individual walkway, step into her doorway alcove, and knock on her door for the purposes of investigating whether she had committed, or was committing, a criminal offence? The respondent submitted that the answer to that question was that no licence could be implied in the present case because the officers’ purpose for attending the respondent’s threshold was for investigation or gathering evidence of criminal activity by the occupier.
The parties referred to and relied upon a number of decisions of the High Court.
The first in time was Lipman v Clendinnen[3] which related to the scope of an occupier’s duty of care towards a person entering residential premises. The occupier argued that the plaintiff was an unlawful trespasser at the time of suffering injury and was not owed any duty of care. This case differed from the present case in that, in Lipman v Clendinnen, police officers were not involved and the plaintiff attended upon a walkway common to a block of flats rather than an individual threshold. The case was argued on the basis that there was no distinction between that circumstance and the case of entry onto the pathway leading to the door of a single private dwelling. It was argued, on behalf of the occupier, that the precise purpose of entry was relevant to the question whether or not the entrant entered under an implied license. That argument was rejected and, in his reasons for decision, Dixon J observed:
I think a general consent upon the part of the defendant should be inferred to the use of the ramp and side door as a means of access by anyone desiring to communicate with the caretaker for any proper purpose.
His Honour then said:
Of necessity the consent was general. A tacit permission could not be given to strangers to use the ramp if they came to see the caretaker on the defendant’s own business, but not if they came upon their own or upon the caretaker’s business. At any rate no such discrimination was attempted either by overt act or by private reservation.
There followed reference to Barker v The Queen[4] where the High Court dealt with a case in which the appellant had been asked to look after the house of his victim while the victim was away. The appellant entered the house and removed certain items. He was convicted of burglary. The High Court held that the consent to enter was limited by reference to the identified purpose and that a person who enters premises for a purpose alien to the terms of a licence given to him to enter does so as a trespasser. In that case, Brennan and Deane JJ said:[5]
Unless the consent to enter is limited by reference to purpose, an entry which is otherwise lawful does not become trespassory because it is effected for a purpose of which the person giving the consent is ignorant and of which he would not have approved.
In the present case, the appellant relied heavily upon the High Court decision in Halliday v Nevill and Another[6] which involved police officers observing the appellant, who was known to them as a disqualified driver, reversing a car out of a driveway. When the appellant saw the police car he drove back into the driveway. The officers walked down the driveway and arrested him. Whilst being escorted back along the driveway to the police car he broke free and ran across the road into his own house. Police eventually arrested him at that house. The majority (Gibbs CJ, Mason, Wilson and Deane JJ) made the following observations:[7]
While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other direction that entry by visitors generally or particularly designated visitors is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done or said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it.
….
The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession nor injury to the occupier, his or her guests or his, her or their property.
….
[I]n the absence of any indication to the contrary, the implied or tacit license to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it.
In so concluding their Honours relied generally upon the earlier decisions of Robson v Hallett,[8] Lipman v Clendinnen[9] and Lambert v Roberts.[10]
In Robson v Hallett[11] Lord Parker said:
I am quite satisfied that these three police officers, like any other members of the public, had implied leave and licence to walk through that gate up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling-house, but the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling-house gives implied license to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.
The appellant submitted that it is clear from the judgment in Halliday that the licence is implied as a matter of law and exists irrespective of the unexpressed subjective intentions of any particular occupier. As their Honours observed, the licence is in favour of “any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house” and the occupier will not be heard to say that “it should not be implied because subjectively he or she had not intended to give it.”
Brennan J dissented in Halliday v Nevill and, in so doing, said:[12]
There is, of course, a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence in police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for enlarging police powers of entry and search, but that is a matter for the legislature.
In the present case, in the Supreme Court, Mildren AJ relied upon that dissenting opinion and observed that in the later case of Kuru v New South Wales,[13] Gleeson CJ, Gummow, Kirby and Hayne JJ adopted what had been said by the majority in Halliday v Nevill in the following terms:
[T]his Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupiers possession or injury to the person or property of the occupier or the occupier’s guests.
Their Honours went on to say:
But as Brennan J pointed out at (32) in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings”.
It is apparent that their Honours were not resiling from what had been said in Halliday but, rather, drawing attention to considerations that may apply in other circumstances.[14]
The respondent submitted that in Kuru v New South Wales[15] in the passage set out above at [18], the majority emphasised that a licence will only be implied where attendance upon the property was for a “legitimate purpose”. However, that was to distinguish the situation from an entry for an illegitimate purpose.[16] It was not expressed in terms of a qualification upon what had otherwise been said in Halliday.
It is to be noted that in Kuru v New South Wales[17] the High Court was dealing with a situation different from the present matter in that the implied license to knock was not in issue. Any implied license had been expressly revoked prior to the relevant events. There, police officers had gone to a flat in suburban Sydney after a report of fighting. The front door was open and the police entered the flat, presumably pursuant to an implied license to do so. They asked the occupier if they could “look around” and he consented. The occupier later asked the officers to leave thereby revoking any continuing implied or express license. The police refused to leave and a fight ensued. The issue for the Court was whether at common law, in those circumstances, the police officers having lawfully entered the flat had continuing powers of entry in the absence of any continuing or threatened breach of the peace. Dealing with that issue the majority said:
Whatever may be the ambit of the power of police (or a member of the public) to enter premises to prevent a breach of the peace, that power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened.
In our opinion, this case does not assist in the circumstances of the present matter.
The appellant referred to a number of interstate examples of the application of the principles discussed in Halliday. One such case was R v Daka[18] where the Court of Criminal Appeal in South Australia dealt with a case in which police targeted a syndicate that allegedly engaged in trafficking commercial quantities of cannabis. Simultaneous police raids were conducted on various premises in a number of States including at Mawson Lakes in South Australia. The raid on those premises was led by a Detective Sergeant who walked to the front door and knocked on it. As the door opened he immediately noticed an overwhelming smell of cannabis. On that basis he formed the view that there were offences being committed within and he executed his general search warrant to conduct a search of the premises. On appeal the appellant contended that police were not entitled to enter onto the land surrounding the premises or to knock on the front door. The Court of Criminal Appeal rejected that submission and observed that:
The evidence of Detective Sergeant Santucci was that he simply walked up the path to the front door of the house and then knocked. There was no barrier to his entry. In that respect, the circumstances are indistinguishable from those considered by the High Court in Halliday v Nevill. Detective Sergeant Santucci entered the front yard for the lawful purpose of conducting police enquiries. His purpose in knocking on the door was to communicate with the occupant or occupants who answered the door.

In the present case, the respondent made reference to legislation in the Northern Territory including the Police Administration Act, the Domestic and Family Violence Act and the Domestic and Family Violence Regulations2008 (NT) and submitted that the legislature had created a comprehensive framework for the enforcement of DVOs. It was pointed out that nowhere in that framework is there a power to attend upon private premises for the purposes of requiring a person to submit to a breath test. Reference to the legislation reveals that it is concerned with entry of a place and powers of arrest rather than an implied license to knock. Whilst the legislation may deal with DVOs and their enforcement there is nothing in the legislation to suggest that it interferes with or derogates from the common law rights or licenses otherwise available to police and other members of the public.
It was also submitted on behalf of the respondent that this Court would be dismantling significant common-law privacy protections if it were to recognise the general implied license proposed by the appellant. With respect, the issue is to apply the law as determined by the High Court cases to which reference has been made and are binding upon this Court. This is not a novel development.
The Canadian and New Zealand Authorities
The Court below placed reliance upon decisions of the Court of Appeal of New Zealand and the Supreme Court of Canada in support of the conclusion that the officers did not have an implied invitation to approach and knock on the door of the respondent’s home. Of course, care must be taken when relying upon foreign jurisprudence.
The first case referred to was the New Zealand case of Howden v Ministry of Transport,[19] where the issue was whether a police officer could conduct a random breath test of a driver in circumstances where the driver had driven home and parked in his driveway. The issue was whether, in the circumstances, the police officer had implied permission to enter on the driver’s land. The Court of Appeal acknowledged that random breath testing was one thing and went on to say:[20]
Entering private property for random checking of a driver whose driving or other prior behaviour has given no cause for suspicion is quite a different thing. It is a very considerable intrusion into privacy. In my opinion it would not be reasonable to hold that an occupier gives an implied license to police officers or traffic officers to enter for those purposes.
In New Zealand Howden was followed in O’Connor v Police[21] where Fogarty J approached the matter by enquiring whether or not the occupier would consent to entry for the purpose of police investigating the conduct of the occupier or a guest.
In the subsequent case of Police v McDonald[22] the New Zealand High Court dealt with a case where police had received a report of a person driving under the influence of alcohol. Police went to the address registered in relation to the vehicle, walked down the driveway and knocked on the door of the residence. They spoke to the respondent who admitted driving and, thereafter, was administered a breath test. Dobson J concluded that police were within the scope of the implied license. In so doing his Honour refused to follow O’Connor[23] and distinguished Howden on the basis that in Howden the breath test was random (the “conduct so disapproved of in Howden”)[24] whereas in McDonald it was targeted.[25] Enquiring whether the occupant who answered the door had been driving “must come within the form of lawful communication for a police officer directed to investigate”. His Honour went on to say:
The existence of the implied license is not contentious. It permits a police officer to enter private property so far as is necessary to engage an occupier, in the course of any lawful enquiry. Generally, that would involve going to the threshold of the premises on the property. Going further, typically into the premises, depends upon either consent being given by the occupier to the officer to do so, or the dialogue from the threshold reaching the point where the officer can justify exercising coercive powers.[26]
The New Zealand Court of Appeal revisited its decision in Howden in Tipa v Ministry of Transport[27] where the Court (which included Cooke P and Somers J from Howden) said:
In Howden the traffic officer entered private property for the sole purpose of conducting a random breath check. In this case, on the other hand, the officer entered for the purpose of enquiring about an accident in which a vehicle belonging to the householder had shortly beforehand apparently been involved. That entry to enquire about the accident, and no doubt to consider the possibility of a breath screening test if reasonable grounds emerge to suspect the consumption of alcohol, falls well within the kind of implied license exercisable by law enforcement officers and established by such cases as Robson v Hallett.
The implied license to enter private property was also considered by the Supreme Court of Canada in Evans and Evans v The Queen[28] where the Court dealt with a situation in which police had received an anonymous tip that the accused had grown marijuana in their home. The police approached the door to the home and knocked with the intent of sniffing for marijuana when the door was opened. They smelled marijuana and they arrested the accused. They then obtained a search warrant and, upon searching the premises, found marijuana plants and other drug-related paraphernalia.
In that case the Court consisted of seven judges three of whom held that the police conduct fell within the scope of the implied license, three held that it did not and the remaining judge held that the search was unlawful under statute and it was not appropriate for the Court to alter that fact through the common law. Much of the discussion in the judgments was influenced by reference to the Canadian Charter of Rights and Freedoms which, in s 8, provides that “everyone has the right to be secure against unreasonable search”.
Sopinka J (with whom Cory and Iacobucci JJ agreed) concluded that the conduct did not fall within the implied license. His Honour acknowledged that the common law recognised an implied license for all members of the public, including police, to approach the door of the residence and knock.[29] His Honour went on to say:[30]
In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation goes no further than is required to effect this purpose …. Although I accept that one objective of the police in approaching the Evans’ door was to communicate with the occupants of the dwelling in accordance with the implied invitation to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans’ door was to attempt to “get a whiff or smell” of marijuana. As a result the police approached the Evans’ home not merely out of a desire to communicate with the occupants but also in the hope of securing evidence against them…. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock.
Major J (with whom Gonthier and L’Heureux-Dube JJ agreed) accepted that police officers, like any other citizen, are not prohibited from entering onto an individual’s property to knock on the door. His Honour noted the long common law recognition of an implied license to approach and knock for a lawful purpose. He cited with approval Robson v Hallett,[31] which is the decision upon which the High Court of Australia also relied in Halliday v Nevill. Major J referred to a scenario where police officers came to the door to ask for directions or to use the telephone and then said:[32]
The only difference between that situation and the circumstances of the case on appeal is the underlying purpose of the police officers in approaching the door. That different purpose does not affect the right to knock on the door. The right to knock on a door of a residence in today’s society is an implied right that arises at common law and continues unless the occupier acts in a way to prohibit it.
The circumstances of Evans and Evans v The Queen differ from the matter before this Court in that, in this case, the officers did not approach the home of the respondent with the intention of gathering evidence against her. Whilst they were in a position to gather such evidence if necessary, the primary enquiry was to ascertain whether the terms of the DVO were being honoured. Any subsequent enquiry or action would be entirely dependent upon the result of the primary enquiry.
The Court below considered that the approach it adopted was consistent with the decisions of the High Court of Australia, the Court of Appeal of New Zealand and the Supreme Court of Canada. We do not agree. In relation to Canada, the position appears to be that the Judges in Evans and Evans v The Queen were evenly divided on the issue. In New Zealand, the most recent decision of the Police v McDonald does not support the view and, at most, the law would appear to be unsettled as to the approach to be adopted in relation to such matters in light of the decision in Howden. We have discussed the decisions of the High Court of Australia above.
Consideration
This is not a case where the implied license was for a specific purpose of the kind found in Barker v The Queen.[33] This is a case similar to Halliday v Nevill[34] as it involves an implied license from the occupier of the premises for visitors to be on the footpath and approach the door of the unit. There was nothing in the facts to suggest that the occupier did anything to negate or rescind any implied license. The dual purpose of the visit by the police was to determine whether the terms of a DVO were being honoured and to check on the well-being of the protected person under the Order. The police officer gave evidence that, for reasons which he outlined, “I felt that there may have been an issue and I started making further enquiries as to the nature of their relationship and what was going on at the address for his own welfare.” That is not an unlawful purpose. In the words of the High Court the approach was for the purpose of lawful communication[35] which is a legitimate purpose.[36] The police officers did not seek to go beyond the threshold of the premises or to enter the premises. Their actions did not involve interference with the occupier’s possession, or injury to the person or property of either occupier. It was open to one or other occupier to revoke or negate the implied license by telling the police to leave. They did not do so.
In our opinion, the learned Supreme Court Judge erred in concluding that, in the circumstances of this matter, there was no implied invitation to these visitors (albeit police officers) to walk up the path leading to the entrance to the dwelling (the threshold of the home) in order to knock on the door and undertake lawful communication with someone within the dwelling.
The appeal is allowed. In light of the circumstances of the matter no further order is sought by either party.
-------------------------

[1]O’Neill v Roy [2019] NTSC 23 per Mildren AJ.

[2] O’Neill v Roy [2019] NTSC 23 at [44].

[3] (1932) 46 CLR 550 at 557.

[4](1983) 153 CLR 338.

[5](1983) 153 CLR 338 at 359 and also at 361 – 362. See also Murphy J at 352.

[6](1984) 155 CLR 1.

[7](1984) 155 CLR 1 at 6-7.

[8][1967] 2 QB 939.

[9](1932) 46 CLR 550.

[10](1980) 72 Cr.App.R 223.

[11][1967] 2 QB 939 at 412.

[12](1984) 155 CLR 1 at 20.

[13](2008) 236 CLR 1 at 15 [45].

[14]For example the circumstances which applied in Kuru.

[15](2008) 236 CLR 1 at 15 [45].

[16]For example of the kind found in Barker v The Queen.

[17](2008) 236 CLR 1 at 17[51].

[18][2019] SASCFC 80 at [76].

[19][1987] 2 NZLR 747.

[20][1987] 2 NZLR 747 at 751 per Cooke P.

[21][2010] NZAR 50 at [17]-[19].

[22] [2010] NZAR 59 at [38]-[39].

[23][2010] NZAR 59 at [41].

[24][2010] NZAR 59 at [40].

[25][2010] NZAR 59 at [40].

[26][2010] NZAR 59 at [35]-[36].

[27][1989] NZCA 7.

[28][1996] SCR 8.

[29][1996] SCR 8 at [13].

[30][1996] SCR 8 at [4]-[16] and [20].

[31][1967] 2 QB 39.

[32] [1996] SCR 8 at [42].

[33](1983) 153 CLR 338.

[34](1984) 155 CLR 1.

[35] Halliday v Nevill (1984) 155 CLR 1.

[36]Kuru v New South Wales (2008) 236 CLR 1.