O'Neill v Roy

Case [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:

  1. 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

  2. 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”.

  3. 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…

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AGLC
O'Neill v Roy [2019] NTCA 8
Case
[2019] NTCA 8
Decision Date

CaseChat Overview and Summary

In the case of O'Neill v Roy, the appellant, O'Neill, sought to appeal the admissibility of evidence obtained by police officers during a proactive Domestic Violence Order (DVO) compliance check at the private residence of the respondent, Roy. The case originated from the Local Court and was heard in the Supreme Court of Australia. The primary issue before the Court was whether the police had the lawful authority to attend the threshold of Roy's property to ensure compliance with the DVO, and whether their actions constituted a legitimate purpose under the law.

The Court considered the legal principles surrounding the implied licence for police officers to approach the threshold of private property for lawful purposes. The Court examined whether the police had a legitimate purpose in attending at Roy's property, specifically to check compliance with the DVO and to ensure the well-being of the protected person under the Order. The Court determined that the police officers' dual purpose was lawful and did not involve any interference with the occupier's possession or injury to the person or property of either occupier. The Court concluded that the police officers had an implied licence from the occupier to approach the door for lawful communication, which is a legitimate purpose. The Court found that the Supreme Court Judge had erred in concluding that there was no implied invitation for the police to approach the threshold of Roy's home to undertake lawful communication with someone within the dwelling.

The Court allowed the appeal, finding that the evidence obtained by the police officers was admissible. The Court did not consider it necessary to make any further orders as no further orders were sought by either party.

Orders

Orders of the court

The appeal is allowed.

Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.-------------------------