Phillips v Police - [2020] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2020] SASC 212
Judgment of The Honourable Justice Stanley
3 November 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
REAL PROPERTY - LICENCES - TERMINATION - GENERALLY
The appellant was convicted by a magistrate of failing to give way pursuant to r 69(1) of the Australian Road Rules (count 1) and driving a motor vehicle with a prescribed concentration of blood alcohol pursuant to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (count 2). The appeal is from the conviction in relation to count 2 only.
The appellant complains that the magistrate erred in admitting into evidence a breath analysis certificate.
At issue was whether the police, in administering an alcotest to the appellant, acted unlawfully in circumstances where the test was administered while she was sitting in the driver’s seat of her motor vehicle which was parked in the driveway of her place of residence. The police had entered the property through the driveway gates which the appellant had closed using a remote control device in her car. The police had followed the appellant’s vehicle to her residence with the police vehicle’s flashing lights activated. She had driven into the driveway. The police pulled up outside the property boundary with the police car facing the rear of the appellant’s vehicle.
The appellant’s case at trial and on appeal was that the only lawful basis upon which police could enter onto her property in these circumstances was pursuant to an implied licence. The appellant contended that by closing the driveway gates she had revoked the implied licence and, accordingly, the police were trespassing on her property when she submitted to the alcotest. In those circumstances, the Court should have excluded the evidence of the breath analysis certificate as having been unlawfully obtained.
At trial and on appeal the police contended that the implied licence had not been revoked and, accordingly, the evidence had not been unlawfully obtained but, if it had, there was no error in the magistrate declining to exclude the evidence of the certificate in accordance with the public policy discretion in Bunning v Cross.
Held:
1. The magistrate did not err in in admitting into evidence a breath analysis certificate. The magistrate’s finding that the appellant’s conduct in closing the driveway gates did not constitute the giving of notice to the police that the implied licence was revoked should not be interfered with.
2. The appellant has failed to demonstrate an error in the exercise of the Bunning v Cross discretion to exclude the evidence.
3. The appeal is dismissed.
Australian Road Rules r 69(1); Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391, applied.
Halliday v Nevill (1984) 155 CLR 1, discussed.
Police v Dafov (2008) 102 SASR 8; Kuruv v New South Wales (2008) 236 CLR 1; Maynes v Casey [2011] NSWCA 15; Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499; R v Golja [2017] SASCFC 61; Ghamrawi v The Queen [2019] SASCFC 108; R v Swaffield (1998) 192 CLR 159; Ridgeway v The Queen (1995) 184 CLR 19, considered.

PHILLIPS v POLICE
[2020] SASC 212
Magistrates Appeal: Criminal
STANLEY J:
Introduction

The appellant was convicted by a magistrate of failing to give way pursuant to r 69(1) of the Australian Road Rules (count 1) and driving a motor vehicle with a prescribed concentration of blood alcohol pursuant to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (count 2).
The appeal is from the conviction in relation to count 2 only.
The appellant complains that the magistrate erred in admitting into evidence a breath analysis certificate.
At issue was whether the police, in administering an alcotest to the appellant, acted unlawfully in circumstances where the test was administered while she was sitting in the driver’s seat of her motor vehicle which was parked in the driveway of her place of residence. The police had entered the property through the driveway gates which the appellant had closed using a remote control device in her car. The police had followed the appellant’s vehicle to her residence with the police vehicle’s flashing lights activated. She had driven into the driveway. The police pulled up outside the property boundary with the police car facing the rear of the appellant’s vehicle. Officer Lang, who was driving, flashed his high beam.
The appellant’s case at trial and on appeal was that the only lawful basis upon which police could enter onto her property in these circumstances was pursuant to the implied licence considered by the High Court in Halliday v Nevill.[1]The appellant contended that by closing the driveway gates she had revoked the implied licence and, accordingly, the police were trespassing on her property when she submitted to the alcotest. In those circumstances, the Court should have excluded the evidence of the breath analysis certificate as having been unlawfully obtained.
[1] [1984] HCA 80, (1984) 155 CLR 1.
At trial and on appeal the police contended that the implied licence had not been revoked and, accordingly, the evidence had not been unlawfully obtained but, if it had, there was no error in the magistrate declining to exclude the evidence of the certificate in accordance with the public policy discretion in Bunning v Cross.[2]
[2] [1978] HCA 22, (1978) 141 CLR 54.
Evidence
At the trial the two police officers, Lang and Schmidt, gave evidence as did the appellant. In addition, there was evidence of a video recording made by the police officers during the course of their attendance at the appellant’s place of residence. The video depicts the police car pulling up at the entrance to the driveway as the driveway gates are closing. The video depicts the police having to alight from their vehicle and rush through the gates in order to enter the property before the gates closed. The video then records a conversation between officer Lang and the appellant. Officer Lang said to the appellant words to the effect that she had cut off another car. He said that they had tried to stop her further down the street. The appellant said, “Sorry I didn’t see you”. Officer Lang then referred to them having pulled up behind the appellant’s car which was stationary in the driveway and the gates started closing when he and officer Schmidt had entered the driveway. Officer Lang asked if the appellant would open the gates so that officer Schmidt could return to the police car and obtain a testing kit so an alcotest could be performed. The appellant acceded to this request. He then said to the appellant words to the effect that “You’ve now closed the gate on police even though we had our red and blue lights on”. The appellant replied that, “Sorry I didn’t realise. It is just like a habit”.
The video records officer Schmidt administering the alcotest and notifying the appellant that it had returned a positive result. The appellant is then directed to accompany the police to the Norwood Police Station for the purposes of conducting a breath analysis test. She agrees.
Officers Lang and Schmidt gave evidence. They described being on mobile patrol when driving along Cross Road at Unley Park at approximately 1:30 a.m. Officer Schmidt observed a vehicle turning onto Cross Road from Whistler Avenue which cut off another vehicle driving east along Cross Road. Officer Schmidt advised officer Lang that he wished to follow the vehicle that had failed to give way to speak to the driver of that vehicle with respect to the offence that he believed had just been committed. He said he also wanted to conduct an alcotest. The police observed the vehicle turn right into Denning Street. They followed the vehicle about 100 metres behind. Officer Lang activated the red and blue flashing lights of the police vehicle. The vehicle they were following did not stop and turned into Devonshire Street. They continued to follow vehicle until it turned right into the driveway entrance of 44 Devonshire Street, Hawthorn. They gave evidence of turning into the entrance to the driveway, the driveway gates commencing to close, the two of them alighting from the police car and entering the driveway, the subsequent discussion with the appellant, the conduct of the alcotest, the positive result and the appellant accompanying them to the Norwood Police Station where a breath analysis test was conducted.
They were cross-examined about their understanding of their rights and powers in relation to entry onto private property. Officer Lang gave evidence that he understood that if he was asked to leave private property he had to do so. Officer Schmidt said that he understood he had tacit consent to enter private property to undertake an inquiry. In cross-examination officer Lang said that he thought the driver was shutting the gates to try and exclude police from the property. Officer Schmidt gave evidence that he did not consider that the appellant, by her conduct, had revoked their implied licence to enter the property although he subsequently gave evidence that in closing the gate the appellant signalled an intention to exclude police from the property. In any event, officer Schmidt gave evidence that he considered he had power to enter the property, even if the licence had been revoked, for the purpose of effecting an arrest for the driving offence he considered had been committed.
Before the magistrate, the appellant gave evidence that she had not asked the officers to leave the property nor did she refuse the request that she undertake the alcotest. The appellant said that as she approached the entrance to her driveway she used the remote control to open the gate. She entered the driveway and stopped the car. When she did so she was unaware of the police. She then gave the following evidence-in-chief:
QYou said you had started to close the gates when you saw the police.
ACorrect, yes.
QDid you see police before you pressed the remote controller or as you were - or after.
AI would say it all happened at the same time. I had seen them, I was closing it. I’d already closed them before they got there so it was all happening at once, yeah.
QCould you have stopped the closing of the gates with the remote controller by pressing it.
AYes, I could have.
QSo the gates were not completely closed by the time you saw police with flashing lights.
ACorrect, yes.
QYou didn’t press the remote controller to stop the gates.
ANo, I did not.
QWas there any reason for that.
AI didn’t want police on my property. I didn’t think they were authorised to be there. As I said before, in relation to the give way I didn’t think I had committed any prior offence to warrant them turning up on the property.
[emphasis added]
The appellant gave evidence that as the police ran towards her car she felt quite scared. She gave evidence of the conversation with officer Lang. She said:
ASo he asked me why I was still seated in my vehicle, why I had shut the gates on police and I said along the lines of I didn’t mean to, it was a reflex. That is not a true depiction of how I was actually feeling. I was feeling scared. I felt like I had to say that based upon the manner that he had entered the property, the suddenness of it. I felt if I didn’t say it was a reflex I would get into more trouble by the police.
QWhy did you think you would get into trouble if you didn’t tell them the truth, that you were attempting to stop them get on.
AYeah I thought maybe they would think that I was evading them potentially.
QDid you have any understanding at all of the powers the police have to enter property in order to ask you to submit to an alcotest or anything like that.
AI was a bit unsure about it. I did think that they weren’t allowed to enter the property. I thought that I had the right as the home owner to revoke that.
…
QYou watched the video obviously in court on a number of times now and Brevet Sergeant Lang can be heard to say to you, ‘So you are saying that you have now closed the gate on police even though we had our red and blue lights on?’ and your response was ‘Sorry I didn’t realise. It is just like a habit.’ Is that a truthful answer.
ANo. As I said before, in part it is a habit. Whenever I get home I do shut the gates pretty much instantly but as I said before I was scared. I didn’t want to say the real reason which was that I intentionally meant to close the gates on police. I did not want police on my property.
In cross-examination it was put to the appellant that her evidence in this regard was untruthful. That, contrary to what she told the magistrate, the true position was that, as she said to the police, she did not close the gate with the intention of excluding the police from the property but, rather, she closed the gate in accordance with her habitual practice. She denied this.
The magistrate’s reasons on the voir dire
The magistrate set out the evidence he had heard and the submissions of the parties and the law relevant to police powers to stop vehicles and enter property. He cited the authority of the Full Court in Police v Dafov.[3]
[3] [2008] SASC 247, (2008) 102 SASR 8.
The magistrate reasoned as follows in support of his ruling that the evidence of the breath analysis certificate should not be excluded:[4]
[4] Police v Phillips, Reasons of Magistrate Millard delivered 11 December 2019 at 14-17.
Section 75 of the Summary Offences Act provides circumstances in which a police officer may affect an arrest. Section 75 can only be used where a police officer has reasonable cause to suspect that a person has committed an offence. In this case notwithstanding Brevet Sergeant Lang’s evidence that he did not propose on entering the property to immediately effect an arrest on the driver it [sic] he clearly would have had reasonable grounds for a suspicion that an offence of failing to stop a vehicle under s40H or s40V had been committed. It is clear from the video that while he did not find it necessary to do so because the defendant appeared to cheerfully comply with his request to open then [sic] gates, to submit to an alcotest and accompany the officers for the subsequent breath test.
I note that in Dafov - at paras 77 to 91 inclusive - Vanstone J explores the issue as to complimentary powers that a police officer may be [sic] exercise if a lawful arrest were to first occur. In this case the defendant had failed to stop her motor vehicle despite obvious direction of the occupants of the following police car - with flashing red and blue lights and flashing high beam used on the police vehicle. On the defendant’s evidence, she deliberately sought to evade police presence. She says she did so as she genuinely believed she did nothing wrong and was entitled to deny police access to her land. I reject her evidence. I find that it is a reconstruction tailored to meet the police case. I accept that Brevet Sergeant Lang had ample grounds upon which to enter the property to speak to the defendant and if necessary to arrest her. In my view, the officers were entitled to enter on the property, they were entitled to apprehend the defendant and they were entitled to request that she undertake an alcotest. I find that they lawfully exercised their powers under s47E of the Road Traffic Act.
If I am wrong in that respect., [sic] and the officers were trespassers, because they entered the land when the gates were closing, then I would find that it is appropriate to exercise a discretion not to exclude the evidence of the breath analysis. The Court of Criminal Appeal has had recent opportunity to reflect upon the circumstances in which evidence albeit obtained by improper conduct of police officers should nonetheless be admitted. (See Ghamrawi v The Queen [2019] SASCFC 108).
In that case, police officers parked a vehicle across a driveway, effectively blocking a defendant from leaving in his vehicle. The vehicle was then searched. The issue was the lawfulness of the search. Kourakis CJ said this
‘I wish to emphasise that the statutory provision set out a judgement [sic] of David J and the Parliament’s and therefore the community’s resolution of the proper balance between the individual liberty and privacy and the enforcement of the criminal law. Police officers should be guided by a good working knowledge of those powers and their limits. They should not act their [sic] subjective view of what ought to be free and [sic] to do and then hope, after the event, that they observed the limits of the law.
In this case however, the balance of the competing consideration weighs strongly against excluding the evidence of what was discovered by this unlawful search.’
The Chief Justice - and Justice Nicholson – agreed with the decision of David AJ that the evidence of drugs located in a search be admitted because: -
‘the period of the time of illegality was short and in many ways technical and the ultimate offending was serious’
In this case Brevet Sergeant Lang did not recognise the fact he may have had a lawful reason to be on the property regardless as to whether [sic] licence had been impliedly revoked. While he could have immediately exercised his powers of arrest, within moments of commencing his conversation with the defendant he found her to be essentially cooperative and compliant. Unlike the officer in Dafov he was never asked to leave. Neither he or his partner forced entry onto the property. He went through a then open, but closing gate. He had every reason to be concerned as to the potential behaviour of the defendant given that he had been following her for 200 m with lights flashing with clearly no attempt on her part to comply with the direction to stop the vehicle. Both officers were also justified in their belief of an obvious intention on the part of the driver to evade them. In observing that they drove a not insubstantial distance with flashing lights immediately behind her vehicle without her pulling over they are supported by the scale map Exhibit P1.
While Brevet Sergeant Lang did not make observation of the defendant’s conduct causing the cutting off a vehicle by failing to give way, it is clear his partner did make that observation. The video recording supports the officers’ evidence that Schmidt brought it to Lang’s attention. The accusation is amongst the first things communicated by Lang to the defendant. Lang and Schmidt rightfully wanted to follow up with the driver who caused embarrassment to another driver. Hardly surprising - given the early hours of the morning and the limited amount of traffic on the road way that the apparent actions of a driver entering a road and causing embarrassment to another driver - would not be followed up by police.
I find the officers were entitled to be on the property. I reject the contention the defendant knowingly revoked such licence. If revocation was implicit I find he [sic] officers would have been justified in requesting the defendant to submit to an alcotest anyway by arresting the defendant for failing to stop. No issue could then have possibly have arisen. The fact that they did not need to exercise a power of arrest because the defendant willingly cooperated should not have the perverse outcome of a finding that the breath analysis certificate be excluded simply because the officers reasonably elected not to put the defendant through the indignity of an arrest.
This is a case where a defendant is charged with driving a motor vehicle at a time when a breath analysis reveals a reading of more than twice the legal limit. I decline the invitation by defence to exclude the breath analysis certificate.
The law

In Halliday v Nevill[5] the High Court considered the rights of a police officer to enter or remain on private property. In that case two officers were on patrol in a police car when they saw the appellant reversing a car out of the driveway. One of the officers knew the appellant to be disqualified from driving. The evidence suggested the appellant saw the approaching police car and decided to drive back into the driveway that he had been exiting. The police stopped their vehicle across the driveway and alighted from their car. They walked down the driveway entering the property. They spoke to the appellant. The appellant had been drinking. He denied that he had driven on the roadway. He was arrested. As the officers and the appellant walked down the driveway towards the police car the appellant broke away and ran across the street and into his own home. The police followed him. There was a struggle with the police finally subduing the appellant and taking him into custody. He was charged with driving while disqualified, escaping custody, hindering police, assault and driving a motor vehicle whilst his blood alcohol content exceeded the prescribed maximum. At trial a magistrate excluded the evidence of what had occurred after the police had arrested the appellant on the basis that the officers were trespassing. The charges were consequently dismissed.
[5] [1984] HCA 80, (1984) 155 CLR 1.
In the High Court Gibbs CJ, Mason, Wilson and Deane JJ held that the only conclusion that was open on the evidence was that the arresting officer had an implied licence from the occupier of the premises to be upon the driveway where the arrest first took place.[6] They said:[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: cf. Edwards v. Railway Executive. 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 suburban 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 indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, 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 nor 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: see, generally, Robson v. Hallett; Lipman v. Clendinnen; Lambert v. Roberts….
[citations omitted]
[6] [1984] HCA 80, (1984) 155 CLR 1 at 6.
[7] [1984] HCA 80, (1984) 155 CLR 1 at 6-7.
With respect to the ambit of an implied licence to enter, the joint reasons explained:[8]
Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. To adapt the words of Lord Parker C.J. in Robson, the law is not such an ass that the implied or tacit licence in such a case is restricted to stepping over the item of property or around the child for the purpose of going to the entrance and asking the householder whether the item of property can be reclaimed or the child led away. 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.
[citation omitted]
[8] [1984] HCA 80, (1984) 155 CLR 1 at 7-8.
The objective facts from which an implied licence to enter was inferred were listed in the joint judgment as a residential premises with an open driveway to the roadway, no suggestion that the driveway was closed off or blocked by a locked gate or any other obstruction, and no notice or other indication advising visitors generally, or any particular class of visitor, that entry was forbidden.[9] Their Honours considered that it was implicit that “a variety of persons with a variety of legitimate purposes” had an implied licence to enter the property and walk down the driveway.[10] The question, however, was whether the class of person and purpose extended to police officers entering the premises for the purpose of questioning or arresting a person committing an offence on the street in the immediate vicinity of the premises. The joint reasons concluded:[11]
The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land. Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer's rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute (cf. Crimes Act, s. 459A and note generally Morris v. Beardmore and the discussion in the judgment of Kennedy J. in Dobie v. Pinker) of the common law. All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence 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. It follows that Police Constable Nevill was lawfully upon the driveway of 375 Liberty Parade when he arrested the appellant.
[citations omitted]
[9] See Kuruv v New South Wales [2008] HCA 26 at [45], (2008) 236 CLR 1 at 15.
[10] [1984] HCA 80, (1984) 155 CLR 1 at 8.
[11] [1984] HCA 80, (1984) 155 CLR 1 at 8.
There is an obvious factual distinction to be drawn between Halliday v Nevill and this case. In Halliday v Nevill there was an open driveway to a public road instead of automatic gates which, it can be inferred, are intended to prevent or impede access to the property. Nonetheless, I do not consider that factual distinction undermines the force of the reasoning in Halliday v Nevill. While it is the case that Constable Nevill reasonably suspected that Mr Halliday had committed an offence when he entered the driveway, the joint reasons do not limit the implied licence to situations where a statutory power to arrest has been enlivened. The joint reasons include in the ambit of the implied licence entry to question a lawful visitor. By parity of reasoning that extends to an occupier of the premises.
Was the implied licence revoked?
Central to the appellant’s case is the proposition that in closing the driveway gates on the police officers she was revoking their implied licence to enter her premises.
For the implied licence to be revoked, the licensee must first have notice of the revocation. That requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence.[12] This requires in turn that the communication must be understood both as being given by a person with authority to revoke the licence and the terms of the notice being sufficiently clear as to constitute a revocation.
[12] Maynes v Casey [2011] NSWCA 156 at [27]-[30] citing Wilson v State of New South Wales [2010] NSWCA 333 at [51], (2010) 207 A Crim R 499 at 524.
The proposition that the appellant revoked the implied licence in respect of officers Lang and Schmidt first depended on acceptance of her evidence that what she said at the time did not reflect the truth of the situation. Before the magistrate she accepted that she told officer Lang when he spoke to her in the driveway that she closed the gate out of habit and did not realise the police were there when she did so. She said she said this because she was scared. She gave evidence that, in fact, she deliberately closed the gates to prevent the entry of the police onto the premises. She said she did not think the police were authorised to enter her property. She gave evidence that she thought the police were not allowed to enter the property and that she had the right as the homeowner to “revoke that”. She told the magistrate that because she was scared she did not tell the police the real reason why she was closing the gates on them and did not tell them that she wanted them to leave the property.
The difficulty for the appellant, however, is that the magistrate rejected her evidence in this regard and found that it was a reconstruction tailored to meet the police case.
Even allowing for the nature of an appeal from a magistrate, this Court is at a disadvantage in evaluating the credit of a witness compared to the magistrate who had the benefit of hearing and seeing the appellant give evidence.[13] The appellant has not demonstrated that the magistrate has misused the advantage he enjoyed in doing so. His rejection of her evidence is not inconsistent with incontrovertible facts, uncontested testimony or glaringly improbable.[14] On the contrary, the appellant in giving her evidence-in-chief gave evidence that she had already closed the driveway gates before the police arrived on the scene. That is entirely consistent with what she told officer Lang during the course of the initial interview in the driveway. The appellant could not have revoked the implied licence of the police to enter her property by closing the gates in circumstances where when she did so she was unaware of the presence of the police.
[13] Fox v Percy [2003] HCA 22 at [23], (2003) 214 CLR 118 at 125-126.
[14] Fox v Percy [2003] HCA 22 at [28]-[29], (2003) 214 CLR 118 at 128.
The appellant sought to place some emphasis on the fact that having closed the gates she did not reopen them until asked to do so by officer Lang. I do not consider that this casts doubt on the correctness of the magistrate’s finding that the appellant did not revoke the implied licence of the police. Once the magistrate found that what the appellant said to officer Lang in the driveway reflected the true position, her failure to open the gates before officer Lang asked her to do so cannot be consistent with the revocation of an implied licence, because the revocation depends on the closing of the gates. As the closing of the gates was found by the magistrate not to constitute a revocation of the implied licence, the subsequent failure to reopen them becomes irrelevant. Further, the appellant’s failure to ask the police to leave once they entered the premises is entirely consistent with her not having revoked the implied licence.
For these reasons I would not interfere with the magistrate’s finding that the appellant’s conduct in closing the driveway gates did not constitute the giving of notice to the police that the implied licence was revoked.
A reasonable person in the position of officers Lang and Schmidt would not have understood the implied licence to have been revoked. I am satisfied that is the position notwithstanding officer Lang’s subjective belief that the driver was closing the gates to exclude police from the property. The closing of the gates per se is either intractably neutral on the question of revocation or, at least, so ambiguous that it could not be effective notice of the revocation of the licence without more being said or done by a person with the authority to do so. Accepting that the appellant had such authority, in order to revoke the licence she had to do more than close the gates. Once the police had entered the premises she had to advise them in unequivocal terms that they were trespassing and that she required them to leave the premises. Her failure to do so is fatal to the success of the appeal.
This is sufficient to dispose of the appeal but in deference to the argument I address the alternative ground of appeal concerning the Bunning v Cross[15] discretion.
Bunning v Cross discretion
[15] [1978] HCA 22, (1978) 141 CLR 54.
In declining to exclude the evidence of the breath analysis certificate the magistrate was exercising a judicial discretion as identified by the High Court in Bunning v Cross.[16] As such, any appeal from the exercise of the discretion can only succeed in accordance with the principles in House v The King.[17]The appellant must persuade the Court that the magistrate’s discretion to refrain from excluding the evidence is erroneous, in the sense of being a decision that could not be reached in the proper exercise of the discretion.
[16] [1978] HCA 22, (1978) 141 CLR 54.
[17] [1936] HCA 40, (1936) 55 CLR 499 at 504-505.
I discussed the principles relevant to the exercise of the Bunning v Cross discretion and the appellate review of the exercise of that discretion in R v Rockford[18] in reasons with which Kourakis CJ and Sulan J agreed. In reviewing the exercise of the discretion the appellate court must weigh the competing considerations which focus on the tension between divergent aspects of the public interest. While the Court must be careful to protect the citizen from the abuse of police powers, the Court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of police power or the result of some systemic misunderstanding by police about the limits of that power.[19]
[18] [2015] SASCFC 51 at [29]-[36], (2015) 122 SASR 391 at 397-400 (Rockford).
[19] R v Golja [2017] SASCFC 61 at [35].
In my view the appellant has failed to demonstrate a House v The King error in the exercise of the Bunning v Cross discretion.
This is not a case such as Rockford, where police officers, undertaking a search for evidence of drug offending, climbed over or opened a gate locked with a chain to enter a property and subsequently broke into a locked shed.[20] In this case any trespass occurred in circumstances where the unlawfulness of the police conduct was neither as clear nor as self-evident as was the case in Rockford. The evidence of the officers demonstrates that any trespass was not as a result of any widespread misunderstanding on the part of police as to the nature and extent of their powers of entry onto private property. Neither was this a case of police acting in conscious disregard of the limits of the law and their powers. The officers understood that the law imposes limits on their right to enter private property and that implied right is subject to revocation. The police were not asked to leave at any stage. It was not a case of the police proceeding down a path hoping that, after the event, there would be lawful support for their position.[21] At issue was the question of whether effective revocation had occurred. If a trespass occurred it was the result of a mistake on the part of the police.[22] This was not a case of offending which would never have occurred but for the unlawful conduct on the part of police.[23] On the contrary, the unlawful conduct of the police resulted in obtaining evidence of offending which had already occurred. The evidence of the breath analysis certificate was highly probative.[24]
[20] [2015] SASCFC 51 at [16]-[17], (2015) 122 SASR 391 at 395.
[21] Ghamrawi v The Queen [2019] SASCFC 108 per Kourakis CJ at [2].
[22] R v Swaffield [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212-213.
[23] Ridgeway v The Queen [1995] HCA 66, (1995) 184 CLR 19.
[24] R v Swaffield [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212-213.
Conclusion
I would dismiss the appeal. I would hear the parties as to costs.