Pitt v Baxter

[2007] WASCA 104

PITT -v- BAXTER [2007] WASCA 104

Reported Decision:	(2007) 34 WAR 102
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 104
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:10/2006	Heard:	14 FEBRUARY 2007
Coram:	WHEELER JA BUSS JA MILLER AJA	Delivered:	18/05/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
Category:	A
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Parties:	CHRISTOPHER JAMES GEOFFREY PITT TIMOTHY BAXTER
Catchwords:	Criminal law Resisting arrest and hindering police Implied licence for police to enter common property Tenant in common unilaterally purporting to revoke implied licence granted by all tenants in common
Legislation:	Nil
Case References:	Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811 Coco v The Queen (1994) 179 CLR 427 Halliday v Nevill (1984) 155 CLR 1 Pitt v Baxter [2006] WASC 4 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PITT -v- BAXTER [2007] WASCA 104 CORAM : WHEELER JA

BUSS JA
MILLER AJA

HEARD : 14 FEBRUARY 2007 DELIVERED : 18 MAY 2007 FILE NO/S : CACR 10 of 2006 BETWEEN : CHRISTOPHER JAMES GEOFFREY PITT

Appellant

AND

TIMOTHY BAXTER
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HASLUCK J

Citation : PITT -v- BAXTER [2006] WASC 4

File No : SJA 1104 of 2005

Catchwords:

Criminal law - Resisting arrest and hindering police - Implied licence for police to enter common property - Tenant in common unilaterally purporting to revoke implied licence granted by all tenants in common

(Page 2)

Legislation:

Nil

Result:

Leave to appeal granted

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr C L J Miocevich
Respondent : Mr A J Sefton

Solicitors:

Appellant : Aboriginal Legal Service
Respondent : State Solicitor's Office

Case(s) referred to in judgment(s):

Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811
Coco v The Queen (1994) 179 CLR 427
Halliday v Nevill (1984) 155 CLR 1
Pitt v Baxter [2006] WASC 4
State of New South Wales v Koumdjiev (2005) 63 NSWLR 353


(Page 3)

WHEELER JA:

The facts

1 The appellant was convicted on 16 September 2005 in the Magistrates Court of hindering police and resisting arrest, contrary to s 20 of the Police Act 1892 (WA). He was fined $300 and $200 respectively in relation to the offences.

2 The appellant's appeal against those convictions was heard by Hasluck J, who dismissed the appeal on 11 January 2006. The appellant seeks to appeal the decision of Hasluck J, and on 28 June 2006 Roberts-Smith JA ordered that the application for leave be heard together with the appeal.

3 The relevant circumstances are set out by Hasluck J in his reasons (Pitt v Baxter [2006] WASC 4):

"8 It seems that on 2 January 2005 Constables Baxter and Brown were patrolling the Cannington area when their attention was drawn to a Ford Falcon vehicle being driven at the time by Scott Matthews, a cousin of the accused. Matthews drove his car into the driveway of a group of units at 157 Sevenoaks Street, Queens Park. The evidence was that there were five units at the location, each unit having its own driveway which adjoined or led on to the central communal driveway.

9 The evidence bearing upon the status of the communal driveway was somewhat scant. However, I note from the evidence given by the appellant at pages 29 to 31 of the transcript that he lived in premises controlled by a strata corporation which apparently had responsibility for communal areas.

10 It seems to have been accepted at the hearing before the learned Magistrate, and it was common ground at the hearing before me, that the communal driveway was common property which could not be regarded as property in the exclusive possession of any of the owners of the subject units.

…

(Page 4)

12 The prosecution evidence was that the police officers followed the vehicle being driven by Matthews and found the vehicle to be parked in unit 4; that is, the driveway to unit 4. There was a male person standing outside in front of the vehicle. The police officers left their vehicle and attempted to speak to the male person.

13 The appellant emerged from his residence, being unit 4, and on several occasions demanded that the police leave his property. The police did not leave. After persisting with his demand that the police leave and using profane language, the appellant was arrested for hindering the police.

14 The learned Magistrate found that the police officers were seeking to pursue their inquiries about the driving of the vehicle they had followed at the time the appellant hindered them. I pause to note also that it appears to be common ground and clearly established that at the time of the material exchanges, the police officers were on the communal property."

The issue in dispute

4 The main issue at trial was the legality of the police remaining on the communal driveway after being told by the appellant to leave. Hasluck J agreed with the Magistrate that there was an implied licence for the police to enter onto the common driveway of the units, and that the appellant could not unilaterally revoke that licence without the consent of the other unit holders. This finding forms the basis of the present appeal. It is common ground between the parties that if the appellant had successfully revoked the implied licence held by the police officers, then the officers would have been trespassing at the time of the arrest. Conversely, it was accepted that if the police were not trespassing at the time of the arrest, the appellant would be guilty of the charges. The ambit of the dispute, therefore, is materially confined to whether one tenant in common can revoke an implied licence granted by all tenants in common.

Implied licences

5 Apart from the special powers of police to enter premises by way of warrant or arrest, police have the same rights as ordinary citizens to enter onto premises by way of a licence, express or implied. It is well established that there is an implied licence for any member of the public

(Page 5)

to go upon the path or driveway of private premises for any legitimate purpose, unless steps have been taken inconsistent with such a licence including, for example, placing signs forbidding entry of persons onto the property: Halliday v Nevill(1984) 155 CLR 1 at 7. In Halliday's case, police officers pursued a disqualified driver onto the open driveway of premises belonging to a person known to the driver, and subsequently arrested him on that driveway. The driver argued that his arrest was unlawful as the police did not have the consent of the occupier to enter onto the premises. It was held by Gibbs CJ, Mason, Wilson and Deane JJ (Brennan J dissenting) that the officers had an implied licence from the occupier of the premises to be on the driveway and, therefore, the arrest was lawful. The majority stated (at 7 - 8):

"[I]f 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 unauthorised, the law will imply a licence in favour of any member of the public to go upon the path or driveway … 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."

6 I would note in passing that the Court in Halliday spoke in terms of the consent of the "occupier", and of the question of the "occupier's" right to possession. In the present case, some of the appellant's oral submissions were concerned with the difficulties which would be faced by persons such as police officers if they had to enquire into the legal interest held in the premises by a person who either invited or purported to exclude them. It was submitted that a more practical rule would be to require them to leave if told by anyone to do so. It may be that the simple answer to the supposed dilemma is that a licence may be granted by an occupier; ie by any person entitled to possession or in actual possession (see the cases referred to by Brennan J at Halliday 10 - 11). However, it is not necessary to explore that issue in the present case.

7 There is no evidence in the present case that any steps had been taken to preclude police or other members of the public from entering onto the property. Both the learned Magistrate and Hasluck J accepted that the police had an implied licence to enter onto the premises.

8 An occupier of premises has, of course, the right to exclude others from their property (see, for example, see Coco v The Queen (1994) 179

(Page 6)

CLR 427). Accordingly, the decision in Halliday also established that such an implied licence to enter onto property can be revoked at any time by the owner or person in lawful possession of the property (per Gibbs CJ, Mason, Wilson and Deane JJ at 7). The appellant relies on this proposition, and states in his ground of appeal that there is nothing in the reasoning of Halliday to support a conclusion that the appellant could not unilaterally revoke the implied licence to enter. The difference, of course, between the situation in Halliday and the present case, is that the arrest in the present case took place on common property. In this respect, it is necessary to look at the nature of common property.

Common property

9 Common property, such as the communal driveway in the present case, is deemed by s 17(1) of the Strata Titles Act 1985 (WA) to be held by the proprietors of all the units as tenants in common in proportion to the unit entitlements of their respective lots. The nature of the interest of a tenant in common is that each tenant holds a distinct yet undivided share of the property, with each tenant in common being entitled to physical possession of the whole land, but no tenant able to exclude any other tenant from the enjoyment of any part of it: Bradbrook & Ors, "Australian Real Property Law" 2nd ed, 1997, at [10.13].

10 The Strata Titles Act also governs, in some respects, the use of common property. By way of example, s 35(1) confers on the strata company a duty to control and manage the common property for the benefit of all the proprietors and to enforce the by-laws, and s 42(1) provides that the strata company may make by-laws for, inter alia, matters relating to the management, control, use and enjoyment of any common property. There was no evidence in this case of any relevant by-law. The respondent submits that if the appellant could unilaterally revoke an implied licence to enter the common property, that would be inconsistent with the statutory conferral on the strata company, rather than the individual owners, of those duties.

11 Counsel for the appellant, however, submitted that the right of the strata company to control and manage the common property does not extend to licences to enter the property, but only governs the behaviour of people once on the property. It is not necessary to consider this proposition.

12 Counsel for the appellant submitted that the revocation of the implied licence by the appellant was lawful, however, as it was "not inconsistent with the rights and use of the common property by the other tenants in

(Page 7)

common, as in this instance the police had no business with any of the other tenants". The significance of who the police 'had business with' stems from a case on which the appellant placed considerable reliance, namely State of New South Wales v Koumdjiev (2005) 63 NSWLR 353. An application for special leave to appeal that decision was refused on 3 February 2006.

Applicability of Koumdjiev's case

13 In Koumdjiev's case, police officers sought to enter an apartment block to deliver an intoxicated woman (Ms Docherty) to one of the units therein. Access to the building's entrance foyer, which was common property, was prevented by a secured door. By placing such a door, the strata company had revoked the implied licence of members of the public generally to enter for any lawful purpose. There was an intercom buzzer for each individual unit. The police attempted to contact someone at Ms Docherty's unit but there was no response. At some point Mr Koumdjiev, who owned a unit in the apartment block, entered the foyer and the police instructed him to let them in. Ms Docherty told Mr Koumdjiev not to open the security door and he did not do so. Another unit holder in the apartment block electronically unlocked the security door, at the request of the police, and the police attempted to enter the building. Mr Koumdjiev pushed against the doors but the police eventually gained entry to the foyer and subsequently arrested him for resisting police and assault. He was acquitted of the charges on the basis that the entry of the police into the foyer was unlawful and therefore the arrest was also unlawful. The State's subsequent appeal against that decision was dismissed by the Court of Appeal.

14 In his judgment, Hodgson JA (with whom Beazley JA and Hislop J agreed) discussed the principles of the competing interests of two tenants in common in relation to a licence to enter common property. The passage particularly relied upon by the appellant is contained in [41] of that judgment:

"That is, in my opinion, any licence in excess of what is reasonable and incidental to one tenant in common's possession and use and enjoyment of the property, and which prejudices the other tenant in common's possession and use and enjoyment of the property, is a licence terminable by the other tenant in common. Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property."

(Page 8)

The appellant submits that this test should be applied in the present case. Consequently, it is said, the question of whether the police were required to leave depends upon the circumstances in which the licence to enter was given.

15 Hasluck J held (at [41] - [42] of his reasons) that Koumdjiev was not applicable as the facts of that case "involved a physical encounter involving two tenants" and that it followed that Koumdjiev was "not directly applicable to the situation in the present case where an express licence had not been granted by any of the tenants in common". I agree that Koumdjiev is not relevant to the present case.

16 The principal distinction between the present case and Koumdjiev is that in that case there was no implied licence granted by all tenants in common for the police to enter the foyer of the building. The only licence that Mr Koumdjiev had revoked was the one granted by the unit holder who had electronically unlocked the security door. The combination of the locked door and the individual buzzers for each unit suggest that: (1) there was no general implied licence to enter; and (2) that each of the tenants in common could authorise a member of the public to enter the common property, by activating the buzzer. The question which then arose in Koumdjiev concerned the ability of one tenant in common to grant a licence to enter for purposes unrelated to that tenant in common's use or enjoyment of the property, and in the face of a denial of such a licence by another tenant in common. Those questions do not arise here. In the present case, the status of the common property is property to be regarded as relevantly identical with that of the doorstep outside the front door in Koumdjiev, as to which Hodgson JA noted:

"Indeed, I think that the implied licence to the police to go to the front door for legitimate purposes granted by all tenants in common, was not in any event revokable by one tenant in common." (at [51])

That is, the implied licence for the police to enter upon the path or driveway of the apartment building for a legitimate purpose would have been irrevocable by Mr Koumdjiev alone. In my view, it is sufficient to dispose of this case to conclude that there was no ability in the appellant to revoke the implied licence granted by all the other tenants in common. That conclusion is consistent with Koumdjiev.

17 If it were necessary to consider the ability of one tenant in common to revoke a licence expressly granted by another, the respondent's submission would be that, in preference to Koumdjiev, this Court should
(Page 9)

follow Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811. In the latter case, the Court of Appeal of Hong Kong took the view that, since one tenant in common could lease his or her interest to a third party, notwithstanding the objection of other tenants in common, it would be open for one of a number of tenants in common to grant a licence of non-exclusive possession over commonly owned property to a third party, despite the opposition of the others (at [30] - [35]). For the reasons which follow, however, it would not be necessary to resolve this question even if the present case were thought to be analogous to Koumdjiev.

18 Even if the test which was applied in Koumdjiev to the situation of a competing express licence and express revocation were to be applied in the present case, the appellant would need to satisfy both limbs of that test. The Court in that case held that for a licence to be revocable by one tenant in common unilaterally, the licence must be: (a) in excess of what is reasonable and incidental to one tenant in common's possession and use and enjoyment of the property, and (b) prejudicial to the other tenant in common's possession and use and enjoyment of the property (Koumdjiev at [41]).

19 As to the first limb, counsel for the appellant submitted that, as the police "had no business" with any of the other unit holders, any implied licence granted by those unit holders would be in excess of what was reasonable and incidental to their possession and use of the property. As an implied licence of this kind (unlike the express licence in Koumdjiev) presumably arises only in circumstances where it is a reasonable or usual incident of the possession of property, it is difficult to see how a finding could be made that such a licence was, at the same time, not reasonable and incidental to the use of the property. However, it is unnecessary to address that issue at length because, in my opinion, the appellant would fail the second limb of the test.

20 As to the second limb, there is no evidence that having the police on the property prejudiced the appellant's possession and use of the property. The appellant argued that it was the mere presence of police on the land which caused the prejudice to the appellant, in the sense that he did not want the police on the premises, and that he was concerned that his neighbours would think that the police were inquiring about a matter relating to him. Neither of these factors would affect his use and enjoyment of his property, however, as distinct from simply irritating him.

21 Counsel for the appellant also attempted to demonstrate prejudice in the following way. The appellant's evidence was that he had told

(Page 10)

everyone, including his cousin Matthews, to leave. Matthews had parked in the appellant's driveway, and it was open on the evidence to conclude that the police car, which was on the communal driveway, was blocking the exit path of Matthews' car. However, even if this were accepted, there was no evidence to suggest that the position of Matthews' car interfered with the appellant's ability to exercise a right in relation to the property. In any event, the appellant did not request that one of the officers move the vehicle; he simply told them to leave altogether. Even if the reasoning in Koumdjiev were to be applied to the facts of this case, the appellant would be unable to demonstrate the requisite prejudice to satisfy the relevant test.

Conclusion

22 In this case it was not disputed that there was an implied licence for the police to enter onto the premises in order to conduct enquiries. If the officers had been on the appellant's private property, including his private driveway, the appellant could have expressly excluded them. However, as they were on common property, I would agree with Hasluck J's conclusion that:

"I am of the view, having regard to the reasoning in Halliday v Nevill (supra) that the accused could not revoke the implied licence granted by all tenants in common by his unilateral conduct. If the appellant was able to revoke an implied licence granted by all tenants in common, such a power would be inconsistent with the rights of use or enjoyment of the common property of those other tenants in common. Further, such a power would be inconsistent with the nature of a tenant in common's interest in respect of the common property." (at [44])

23 The police officers in the present case were lawfully in the communal driveway at the time the offences occurred.

24 I would grant leave to appeal, but dismiss the appeal.

25 BUSS JA: I agree with Wheeler JA.

26 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA. I am in full agreement with her Honour's reasons and in my opinion leave to appeal should be granted but the appeal should be dismissed.