Pitt v Baxter - [2006] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: HASLUCK J

HEARD: 11 JANUARY 2006

DELIVERED : 11 JANUARY 2006

FILE NO/S: SJA 1104 of 2005

BETWEEN: CHRISTOPHER JAMES GEOFFREY PITT
Appellant
AND
TIMOTHY BAXTER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE F CULLEN
File No  :PE 05933 of 2005, PE 05934 of 2005

Catchwords:

Criminal law - Resisting arrest - Power of police officer to enter private property - Nature of implied licence - Whether implied licence to enter communal property can be revoked by unilateral action of one co-owner

Legislation:

Police Act 1892 (WA) s 20

Strata Titles Act 1985 (WA) s 17, s 18, s 19, s 20

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Mr T C Russell

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Solicitor for Western Australia

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

Halliday v Nevill (1984) 155 CLR 1
State of New South Wales v Koumdjiev [2005] NSWCA 247
Verhoeven v Ninyette (1998) 101 A Crim R 24

Case(s) also cited:

Dobie v Pinker [1983] WAR 48
Hume (1999) 106 A Crim R 441
Letts v King [1988] WAR 76
Plenty v Dillon (1991) 171 CLR 635

HASLUCK J:

Introduction

The appellant, Christopher James Geoffrey Pitt, was charged pursuant to a complaint issued under the Justices Act 1902 (WA) that on 2 January 2005 at Cannington he resisted one Timothy Baxter, a member of the Western Australian Police Force, then acting in the execution of his duty contrary to s 20 of the Police Act 1892 (WA), that being charge number 05/05934.
The appellant was charged also that on the same date and at the same place he hindered Timothy Baxter then acting in the execution of his duty contrary to s 20 of the Police Act, that being charge 05/05933.
I note in passing that by s 20 of the Police Act, as it stood at the material time, if any person shall disturb, hinder or resist any member of the police force in the execution of his duty or shall aid or incite any person thereto, every such offender being convicted is to be liable for the penalty prescribed by the provision.
It is immediately obvious that in order to secure a conviction in respect of the matters of complaint in the present case, it was necessary for the prosecution to establish that at the relevant time the police officer was acting lawfully in the execution of his duty.
On 16 September 2005 the appellant was convicted of hindering police and resisting arrest, contrary to the statutory provision mentioned earlier, and was fined $300 and $200 respectively in respect of the subject offences.
By an appeal notice dated 27 October 2005 the appellant applied for leave to appeal against the conviction. Leave to appeal was granted in respect of the grounds set out in the appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pitt v Baxter

Details

AGLC: Pitt v Baxter [2006] WASC 4
Case: [2006] WASC 4
Decision Date: 11 JANUARY 2006

CaseChat Overview and Summary

The case involved an appeal by the respondent against a conviction for resisting an arrest by a police officer. The arrest took place on private property, specifically within a shared driveway of a unit block. The respondent argued that the police officer's entry onto the property was unlawful and that there was no implied licence for the officer to enter. The respondent contended that an implied licence for the police to enter could not be revoked by the unilateral action of one co-owner. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether a police officer could lawfully enter private property to effect an arrest if one co-owner had revoked an implied licence for such entry. The court needed to determine the nature and scope of an implied licence for police officers to enter private property and whether it could be revoked unilaterally by one co-owner. The respondent argued that the police officer's entry onto the property without explicit consent was unlawful and that the implied licence, if it existed, could not be revoked unilaterally by one co-owner.

The court found that police officers have an implied licence to enter private property in certain circumstances to effect an arrest, but this licence is not absolute. The court held that while an implied licence may exist, it could be revoked by one co-owner if done in a manner that effectively communicates the revocation to the police. The court emphasised that the implied licence is not a blanket permission but rather a conditional one that can be altered by the co-owners. The court concluded that the police officer's entry onto the property was lawful as the respondent had not effectively communicated the revocation of the implied licence to the police. The appeal was dismissed, and the conviction for resisting arrest was upheld.

The final orders of the court were that the appeal was dismissed and the conviction for resisting arrest was upheld. The court found that the police officer's entry onto the property was lawful and that the respondent's actions in resisting the arrest were unjustified. The court's decision clarified the legal principles surrounding the implied licence for police officers to enter private property and the conditions under which such a licence could be revoked.

Orders