Pitt v Baxter
[2006] WASC 4
•11 JANUARY 2006
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 notice. I will turn to the grounds of appeal and supporting particulars in due course.
However, in the meantime it will be useful to look at the circumstances giving rise to the charges and the learned Magistrate's reasons for decision.
The circumstances
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.
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.
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.
I note in passing that the usual rule concerning tenancy in common is set out in Bradbrook's Australian Real Property Law (2nd ed) at par 10.13. The relevant passage reads as follows:
"A tenant in common is said to hold a distinct yet undivided share in the land. Each tenant in common is deemed to own an individual share, a part of all the rights involved in ownership. It is this reference to 'shares' which distinguishes the tenancy in common from the joint tenancy. Although a tenant in common holds a distinct share, the land itself is not divided physically and no one tenant in common can claim any particular portion of the land as her or his own. Each tenant in common is entitled to physical possession of the whole of the land. If this were not the case separate ownership, not co‑ownership would exist."
The findings
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.
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.
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.
At par 3(i) of the respondent's submissions, it was asserted that the Magistrate's finding included a finding that at the material time the police officers were on the communal driveway, as appears from the reasons for decision referred to at pages 75 and 77 of the affidavit of C L J Miocevich sworn 26 October 2005. Counsel for the appellant accepted at the hearing before me that this finding had been made. It therefore emerges that the police officers were not on the appellant's private property when the crucial events occurred.
The learned Magistrate observed in the course of his reasons for decision that the driveway upon which the police were standing was a communal one used by all five units. The driveway in which the Matthews' car was positioned was for the exclusive use of the appellant and he was entitled to refuse entry into that area.
However, in the view of the learned Magistrate the appellant could not simply of his own volition revoke the licence for the main communal driveway without the express or implied consent of the other unit holders.
The learned Magistrate went on to state that as there were no signs which purported to exclude the entry of the police or others on to the communal driveway, a reasonable commonsense view was that there was no consent to exclude the police by other tenants of the units. The learned Magistrate was therefore satisfied that the police were lawfully in the driveway and that the prosecution case had been made out.
Reasons for decision
In the course of his reasons the learned Magistrate referred to certain decided cases to the effect that a police officer who was doing his duty in investigating an offence has no right to enter another person's premises without consent.
However, in the final analysis, the learned Magistrate gave considerable weight to the reasoning of the High Court in Halliday v Nevill (1984) 155 CLR 1. In that case, a police officer pursuing a disqualified driver entered the open driveway of premises in which the driver had taken refuge and arrested him while he was standing on the driveway. The officer did not seek permission of the owner of the premises before entering and making the arrest.
It was held by Gibbs CJ, Mason, Wilson and Deane JJ, with Brennan J dissenting, that the officer had an implied licence from the owner of the premises to be on the driveway and, accordingly, the arrest was lawful.
The members of the High Court comprising the majority indicated that if a path or driveway leading to the entrance of a suburban dwelling house 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 any legitimate purpose that in itself involves no interference with the occupier's possession or injury to the occupier, his guests or his or their property.
It was held further that there being no dispute about the underlying objective facts and no suggestion that the occupier had done anything to negate or rescind any implied licence, the question whether those facts gave rise to an implied licence in favour of a police officer was a question of law for the purpose of reviewing the decision of the Magistrate in question.
Legal principles
In dealing with legal principles bearing upon the appeal before me, it will be useful if I look briefly at those statutory provisions and principles governing an appeal of this kind. Appeals from the courts of summary jurisdiction were formerly governed by the Justices Act 1902 but are now covered by Pt II of the Criminal Appeals Act 2004 (WA).
By s 4 of the latter Act, the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant. By s 39 an Appeal Court must decide the appeal on the evidence and material that were before the lower Court.
If the appellate Court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt and that is a doubt which the primary Court ought to have had, then the appellate Court will usually provide relief, especially where findings depend on credibility.
The relief may take the form of remitting back to the Court below unless the appellate Court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest and the conviction of a wrongdoer, the interests of an accused person and the pragmatic considerations of cost and efficiency in the administration of justice.
Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.
Grounds of appeal
In the present case, the appellant asserted in his grounds of appeal that the learned Magistrate erred in law by finding that the appellant could not revoke the licence for the police officers to be on the main or communal driveway without the express or implied consent of the other tenants.
Particulars in support of this assertion included that the appellant was a tenant in a block of five units which had a communal driveway, the police were dealing with a third party in relation to a traffic matter and had pulled over into the communal driveway to deal with that party, the police were expressly told by the appellant to leave the property.
It was said further in the particulars that the police refused to leave and warned the appellant to desist with his behaviour or he would be arrested for hindering the police. The appellant did not desist and the appellant was arrested for hindering police.
It was said further that the legality of the police remaining on the communal driveway after being told to leave by the appellant was the main issue at trial. The learned Magistrate found that the appellant could not revoke the licence for the police to be on the communal driveway without the express or implied consent of other tenants.
The appellant's submissions
Counsel for the appellant on the hearing of the appeal acknowledged that the police would have an implied licence to enter both the common property and the driveway of the appellant to conduct their inquiries, having regard to decided cases such as Halliday v Nevill (supra).
Counsel referred to what was said by the majority of the High Court in Halliday v Nevill (supra) at 6 to the effect that while the question of 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.
However, counsel submitted that the implied licence to enter could relate only to unit 4; that is, the appellant's unit, as the police had no business with any other tenant. Accordingly, the implied licence of the other tenants for the police to enter the property to make inquiries would not override the express revocation of the licence by the appellant when the only business the police had on the property related to inquiries at the appellant's unit.
Counsel relied upon the reasoning of the Court of Appeal in State of New South Wales v Koumdjiev [2005] NSWCA 247, especially at par 41 and par 49. Reliance was placed upon this passage at par 41 of the principal judgment which was written by Hodgson J:
"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."
To my mind, Hodgson J's reasoning, as reflected in that final sentence, envisages that there must be a reasonable reconciliation of the rights of the tenants in common.
Conclusion
In dealing with the grounds of appeal that I mentioned a moment ago, I proceed from the premise reflected in Halliday v Nevill (supra) that there is an implied licence for persons, including police officers, to enter the path or driveway of private premises for legitimate purposes. Such a licence can be negated by taking appropriate steps inconsistent with such a licence including, for example, by placing signs forbidding the entry of persons on to the property.
Further, an implied licence to enter can be revoked by an owner or person in lawful possession of the property the subject of entry. However, as I have indicated in earlier discussion, common property the subject of a strata scheme is generally regarded as being held by all proprietors as tenants in common in proportion to their relevant unit holding and cannot be disposed of or dealt with without the consent of other unit holders, as appears from s 17 to s 19 of the Strata Titles Act 1985 (WA).
It is true that in Koumdjiev's case (supra) the Court had regard to the competing interests of the relevant tenants. The Court determined the matter in accordance with the notion that a licence in excess of what is reasonable and incidental to one tenant in common's interest and which prejudices the other tenants in common's interest is a licence terminable by the other tenant in common.
However, the facts of that case concerned a physical encounter involving two tenants. To my mind, the ruling in that case is not directly applicable to the circumstances of the present case. Moreover, as I have noted, the reasoning of Hodgson J certainly envisages that there must be a reasonable reconciliation of the rights of the various tenants in common.
It follows that, in my view, the decision in Koumdjiev (supra) is 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. The issue in the case before me is whether the implied licence granted by all tenants in common in respect of the communal driveway was revoked by the conduct of the appellant as the unit holder or occupier of unit 4.
The findings of the learned Magistrate were to the effect that the incidents said to constitute the acts of hindering police and resisting arrest occurred on the communal driveway of the units. It is apparent from the evidence and from the learned Magistrate's findings that there was nothing about the communal driveway or the unit complex that otherwise negated the implied licence to enter on the communal driveway or suggested that any one of the various unit holders was to be regarded as having a power by unilateral action to negate any such implied licence.
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.
I noted in earlier discussion that the reasoning of Hodgson J in Koumdjiev's case (supra) indicated that there must be a reasonable reconciliation between the rights of the tenants in common. This suggests that it is not really open to one tenant in common to negate or revoke the implied licence to enter by unilateral action. This view is underpinned by Hodgson J's proposition at par 51 of his judgment that the implied licence to go to the front door for legitimate purposes granted by all tenants in common was not in any event revocable by one tenant in common.
Put shortly then, at the material time I consider that the police officers were not on the appellant's private driveway and were not seeking to enter his residence. They were on the communal driveway pursuant to an implied licence to enter. The police officers had no interest in the appellant until he involved himself with their inquiries.
It follows from what I have said that the police officers were lawfully in the communal driveway and acting in the execution of their duty at the time the subject offences occurred.
In my view, it was not open to the appellant to revoke or purport to revoke the implied licence by unilateral action as that would override the rights of the other tenants in common. A reasonable reconciliation of the rights of the tenants in common to use the common property requires that the scope of the licence to enter not be defined or determined by the actions of any one tenant acting unilaterally.
It follows from this that, in my view, the appeal must be dismissed.
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