Phillips v Police

Case [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At trial and on appeal the police contended that the implied licence had not been revoked and, accordingly, the evidence had not been unlawfully obtained but, if it had, there was no error in the magistrate declining to exclude the evidence of the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…

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Phillips v Police [2020] SASC 212
Case
[2020] SASC 212
Decision Date

CaseChat Overview and Summary

The case of Phillips v Police involved an appeal against a conviction for driving under the influence of alcohol. The appellant, Ms Phillips, was arrested and charged following a police pursuit and subsequent entry onto her property to conduct a roadside alcohol test. The crux of the appeal was whether the evidence obtained by the police during their entry onto the appellant's property should have been excluded under the public policy exception, as it was obtained in a manner that breached her privacy and the implied licence for police to enter her property. The appeal was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the evidence obtained by the police through their entry onto the appellant's property, without explicit permission and in the process closing the driveway gates, was admissible. This involved determining whether the implied licence for police to enter private property had been revoked, and if so, whether this constituted an unlawful entry under s 24 of the Evidence Act 1929 (SA). The court was also required to consider whether the admission of this evidence would contravene public policy, as per the common law public policy exception articulated in Bunning v Cross.

The court found that while the police officers may have technically trespassed by entering the property without explicit permission, the unlawfulness of their conduct was not as clear or self-evident as in cases like Rockford, where police had forcibly entered a property. The court emphasised that the police officers understood the limits of their powers and that the implied licence could be revoked. The court held that the evidence obtained was highly probative of the appellant's guilt and that excluding it would not serve the ends of justice. Consequently, the appeal was dismissed, and the conviction was upheld.

The Supreme Court of South Australia dismissed the appeal and upheld the conviction. The court ordered that the parties would be heard as to the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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