Police v Dafov - [2008] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v DAFOV
[2008] SASC 247
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
17 September 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ENTRY
POLICE - ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS - GENERALLY
Appeal to Full Court against decision of single judge dismissing appeal from magistrate – defendant (respondent) failed to stop vehicle following his detection for speeding by hand-held laser gun – police followed defendant’s vehicle to a private residence – police approached defendant in driveway of premises – defendant ordered police to leave premises – police requested defendant to provide his name and address – defendant refused request – defendant arrested and allegedly resisted arrest – defendant charged with driving over the speed limit contrary to rules 20 and 21.1 Australian Road Rules (count 1), failing to truly answer questions as to his name and place of residence contrary to section 42 Road Traffic Act 1961 (SA) (count 2) and resisting police contrary to section 6(2) Summary Offences Act 1953 (SA) (count 3) – section 42(1)(b) Road Traffic Act empowers police or inspector to request driver of vehicle on road to stop vehicle and ask driver questions to ascertain name and address of driver – at trial, magistrate convicted defendant on first count, and dismissed second and third counts on ground of no case to answer – magistrate’s decision upheld on appeal to single Judge – whether section 42(1)(b) Road Traffic Act authorises police or inspector to enter and remain on private property where an implied right to enter has been expressly revoked – where a failure to truthfully answers police questions contrary to section 42(1)(b) Road Traffic Act is excused when at the time of asking questions, police are trespassing.
Held: appeal dismissed – police were trespassing at the time they purported to require defendant’s name and address – section 42(1)(b) does not authorise police or inspector to enter and remain on private property where an implied right to enter has been expressly revoked – defendant was under no obligation to answer police questions while they were trespassing.
Australian Road Rules r 20 and r 21.1; Local Government Act 1999 (SA) s 260; Road Traffic Act 1934 (SA) s 99; Road Traffic Act 1961 (SA) s 5, s 6A, s 35, s 37, s 38, s 42, s 42(1)(b) and s 164A; Road Traffic Act 1972 (UK); Road Traffic Amendment Act (No 2) 1955 (SA) s 99; Summary Offences Act 1953 (SA) s 6(2) and s 75; Width of Tyres Act 1923 (SA) s 12, referred to.
Bunning v Cross (1978) 141 CLR 54; Christie v Leachinsky [1947] AC 573; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Coco v The Queen (1994) 179 CLR 427; Coleman v Power (2004) 220 CLR 1; Colet v The Queen [1981] 1 SCR 2; Davis v Lisle [1936] 2 KB 434; Dinan v Brereton [1960] SASR 101; Entick v Carrington (1765) 2 Wils. 275; Halliday v Nevill (1984) 155 CLR 1; Kuru v State of New South Wales [2008] HCA 26; Marcel v Commissioner of Police [1992] Ch. 225; McLiney v Minster [1911] VLR 347; Morris v Beardmore [1981] AC 446; Nevill v Halliday; Brida v Halliday [1983] 2 VR 553; Plenty v Dillon (1991) 171 CLR 635; Police v Dafov [2007] SASC 451; Police v Dafov [2008] SASC 26; R v Purdy [1975] 1 QB 288; R v Ryan (1890) 11 LR (NSW) 171; Robson v Hallet [1967] 2 QB 939; State of New South Wales v Corbett (2007) 230 CLR 606; Walker v Lovell [1975] 3 All ER 107; Wershof v Metropolitan Police Commissioner [1978] 3 All ER 540; Wheare v Police [2008] SASC 13; Wheeler v Leicester City Council [1985] AC 1054, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"whether on a road or elsewhere"

POLICE v DAFOV
[2008] SASC 247
Full Court Gray, Vanstone and White JJ
GRAY J

This is an appeal against the decision of a judge of this Court dismissing an appeal from a magistrate. Permission to appeal has been granted.[1]
[1] Police v Dafov [2008] SASC 26.
The defendant and respondent, Alexander Nick Dafov, was charged on complaint with three offences allegedly committed on 14 October 2006:
-travelling at 78 km/h in a 60 km/h zone, contrary to Rules 20 and 21.1 of the Australian Road Rules – Count 1;
-failing to truly answer questions as to his name and place of residence, contrary to section 42 of the Road Traffic Act 1961 (SA) – Count 2; and
-resisting police in the execution of their duty, contrary to section 6(2) of the Summary Offences Act 1953 (SA) – Count 3.
The defendant pleaded not guilty. The trial proceeded before a magistrate who, having found that there was no case to answer, dismissed the second and third counts. The defendant was convicted on the first count.
This appeal challenges the decision of a learned judge of this Court in upholding the order dismissing the second and third counts.
Factual Background
The second and third counts resulted from conduct that occurred after the defendant drove past two police officers on hand-held laser duties. The officers detected that the defendant’s vehicle was travelling at 78 kilometres per hour, 18 kilometres over the speed limit. They activated the warning lights and sirens of their police vehicle and followed the defendant, who drove a short distance into the driveway of a private dwelling. The police then approached the defendant in the driveway. The defendant ordered the police to leave the premises. They did not, and instead asked the defendant to provide his name and address. The defendant did not provide the information required by the police. He was then arrested and allegedly resisted that arrest.
Magistrate’s Findings
The Magistrate described the events leading to the entry of the police officers onto the property of the defendant:
On 14 October 2006 at about 8.14 p.m., Constable Dowsett and Senior Constable Petts were on hand-held laser duties directing the laser at vehicles travelling in an easterly direction along West Lakes Boulevard Hendon. Senior Constable Dowsett was operating a hand-held Ultra Light Laser bearing the numbers of the identification URL 10691. He had range tested the unit at 25 and 50 metres earlier that day. Constable Dowsett detected a Toyota Land Cruiser travelling at 78 km/h, the speed limit on that part of West Lakes Boulevard being 60 km/h. Constable Dowsett conveyed this information to Senior Constable Petts who was in an unmarked police vehicle. Senior Constable Petts manoeuvred the police vehicle on to West Lakes Boulevard activating the warnings lights and siren as the Toyota approached. As the Toyota passed the police vehicle Senior Constable Petts took up a position behind the Toyota Land Cruiser, which then turned right into Morley Road. The Toyota continued west on Morley Road and entered the driveway of number 44 Morley Road. Senior Constable Petts parked the police vehicle across the driveway of number 44. The driver of the vehicle, the defendant, alighted from the driver’s door and Constable Dowsett got out of the police vehicle and approached the defendant in the driveway.
The Magistrate noted the following conversation between Constable Dowsett and the defendant:
I said: “Do you have any reason for not stopping on the road when we directed you to stop?”
He said: “I wanted to go home.”
I said: “I have just detected your vehicle travelling at 78 km/h in a 60km/h zone, on West Lakes Boulevard at HENDON, with a laser device. Do you have any reason for travelling at this speed?”
He said: “I was not travelling at that speed. Get off my property. You are trespassing.”
I said: “You have committed an offence, namely exceed speed (78/60). You are also a person in charge of a motor vehicle. I now require you to give me your full name and address.”
He said: “No, I know my rights.”
I said: “You are required to give me your full name and address. What is it?”
He said: “Get off my property.”
I said: “You have one more chance to give me your name and address. It is an offence if you refuse to give me your full and correct name and address. You will be arrested if you don’t state your name and address now. What is it?”
He said: “Fuck off.”
I said: “You are under arrest for refusing to state your name and address.”
In the course of cross-examination, Constable Dowsett gave the following evidence:
Q Why didn’t you leave his property when he told you to get off.
AWell, we are there with the intention of him required to give his name and address and if he doesn’t provide the name and address we have the power to enter any premises, allowed to have the Commonwealth Power [presumably “common law” power], to kick his front door and go in and arrest him if we believe he’s inside and we are intending to arrest him.
Q You weren’t intending to arrest him.
AOnce he had refused to give his name and address and we have the power to be there and power to arrest.
During cross-examination Constable Dowsett also acknowledged that the purpose of following the defendant to his premises was to follow up on the excessive speed offence. The police did not intend to arrest him for excessive speed, but rather they intended to issue an expiation notice. Constable Dowsett agreed that the defendant told the police to leave his property at a point in time before he was asked for his name and address.
The Magistrate concluded that section 42 of the Road Traffic Act did not authorise a police officer to remain on private property after being requested by the occupier to leave. The Magistrate reasoned:
I am unable to find anything in the Common Law or Statutes that permits a police officer to remain on property for the purpose of putting an allegation of speeding or requiring a driver’s particulars pursuant to section 42 of the Road Traffic Act as it then was after being requested to leave … by the occupier. In the absence of such authority Constable Dowsett became a trespasser when he failed to leave the defendant’s premises and was therefore no longer acting in the lawful execution of his duty. I should add, Constable Dowsett’s evidence was clear that when he entered the defendant’s premises it was not with the intention of arresting the defendant.
In my view therefore the charge of resisting arrest must fail as the conduct said to constitute the resist occurred after the defendant had demanded Constable Dowsett leave the property. He was no longer acting in the lawful execution of his duty. In my view the same applies to Constable Dowsett’s request to the defendant to provide his name and address. At the time that request was made he had no lawful right to remain on the premises and was therefore acting outside the lawful execution of his duty.
The Magistrate also concluded that in the event that he was wrong and that there was a case to answer on counts 2 and 3, he would exclude the police evidence from the time when the defendant first demanded that the police leave the property. The Magistrate said that he would do so in the exercise of his discretion to exclude the evidence as being tainted by illegality.
The appeal before the learned Judge turned primarily on the question of whether or not the police officers had lawful authority to enter and remain on private property in order to ask questions pursuant to section 42(1)(b) of the Road Traffic Act. A further question arose as to whether a failure to answer questions asked by a member of the police force for the purposes of ascertaining the name of a driver of a vehicle is excused if the member of the police force was trespassing at the time the questions were asked.
When determining these questions, the Judge observed:[2]
In this case, the [defendant] clearly revoked any express or implied authority for the police to be on the property. Shortly after the police approached the [defendant] he said, “get off my property. You are trespassing”. In the circumstances there could not have been any express or implied authority.
…
Statutory authority to enter a person’s property without consent must be clearly expressed in unmistakable and unambiguous language. In the absence of clear language, there is a presumption that the legislature did not intend to authorise otherwise tortious conduct, such as trespass. However, this presumption is rebutted where, although not expressed in clear language, it is apparent that the legislation was intended to provide authorisation to enter onto a property, for example where “it is necessary to prevent the statutory provisions from becoming inoperative or meaningless”.
The appellant argues that s 42 of the Act clearly expresses authority for police to enter a person’s property without the owner’s consent. The appellant argues that s 42(1)(b) allows a police officer to ask the driver of a vehicle questions, whether that person is on a road or elsewhere. The appellant submits that the word “elsewhere” is clear language allowing the police to go onto a person's property to ask them questions. My view is that this is a misinterpretation of s 42(1)(b). An ordinary, grammatical reading of the section appears to allow the police to ask questions of the driver of a vehicle, whether the vehicle is on a road or elsewhere, not whether the driver is on a road or elsewhere. This is because the words “whether on a road or elsewhere” are related to the word vehicle, not to the words driver or person.
...
My view is that the presumption, that the legislature did not intend to authorise entry onto a property where consent is absent, has not been rebutted.
Section 42 of the Act does not allow police officers (or inspectors) to enter a property when the owner or occupier of the property does not consent to that entry. As the charges of failing to truly answer and resisting arrest occurred in circumstances where the police were trespassing on the respondent’s property, the magistrate was correct in finding that there was no case to answer and in dismissing counts two and three on the Complaint.
[Emphasis in original]
[2] Police v Dafov [2007] SASC 451 at [10],[13]-[14], [23] (footnotes omitted).
The Full Court Appeal
On appeal the appellant submitted that the Magistrate and the Judge erred in their interpretation of section 42(1)(b) of the Road Traffic Act. It was said that on its proper construction, the subsection authorises police to enter and remain on private property, even where an implied right to enter has been expressly revoked. In the alternative, it was contended that a failure to truthfully answer questions put for the purpose of ascertaining the matters referred to in section 42(1)(b) is not excused by reason of the fact that the police officer is, at the time of asking the questions, trespassing.
Entry by Police Onto Private Property
The common law position was recently addressed by the High Court in Kuru v State of New South Wales,[3] where Gleeson CJ, Gummow, Kirby and Hayne JJ observed:
As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable.
…
In Halliday v Nevill, this Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the person or property of the occupier, or the occupier’s guests. But as Brennan J pointed out in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings”.
[3] Kuru v State of New South Wales [2008] HCA 26 at [43], [45] (footnotes omitted).
Consent to an entry is implied if the person concerned enters for a lawful purpose, including entry to the driveway of a dwelling house. However, except in cases provided for by common law or statute, the police have no special rights to enter land. A police officer who enters or remains on private property, without the implied or express licence of the person in possession of the property or entitled to that possession, commits a trespass unless his or her entering or remaining on the premises is authorised or excused by law.
The common law permits entry onto land without the consent of the occupier in certain circumstances and various statutes confer power to enter premises without the consent of the occupier.
There is a presumption that in the absence of an express provision or a clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct. An example of a rebuttal of the presumption by statute may be found in Dinan v Brereton,[4] where section 75 of the Summary Offences Act, giving a general power of arrest to the police, was found by necessary implication to permit a police officer to enter on private land to effect an arrest.
[4] Dinan v Brereton [1960] SASR 101. See also Wheare v Police [2008] SASC 13.
In Halliday v Nevill,[5] Plenty v Dillon,[6] and Coco,[7] the High Court had occasion to consider this fundamental principle. The position was summarised in Coco: [8]
Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right[9]. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law[10]. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct[11]. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon:[12]
“[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.”
In England, Lord Browne-Wilkinson has expressed the view that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required[13]. That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorization by statute of any abrogation or curtailment of the citizen’s common law rights or immunities. ...
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights[14].
[5]    Halliday v Nevill (1984) 155 CLR 1.
[6]    Plenty v Dillon (1991) 171 CLR 635.
[7]    Coco v The Queen (1994) 179 CLR 427.
[8]    Coco v The Queen (1994) 179 CLR 427 at 435-437.
[9]    Entick v Carrington (1765) 2 Wils. 275, at 291 [95 E.R. 807, at p.817]; Halliday v Nevill (1984) 155 CLR 1 at 10 (Brennan J); Plenty v Dillon (1991) 171 CLR 635 at 639 (Mason CJ, Brennan and Toohey JJ), 647 (Gaudron and McHugh JJ). See also Colet v The Queen [1981] 1 SCR 2 at 8; (1981) 119 DLR (3d) 521 at 526.
[10] Halliday v Nevill (1984) 155 CLR 1 at 10 (Brennan J); Plenty v Dillon (1991) 171 CLR at 639 (Mason CJ, Brennan and Toohey JJ), 647 (Gaudron and McHugh JJ).
[11] Plenty v Dillon (1991) 171 CLR at 648 (Gaudron and McHugh JJ); Morris v Beardmore [1981] AC 446 at 455, 463; Colet [1981] 1 SCR at 9-10; (1981) 119 DLR (3d) at 527-528.
[12] Plenty v Dillon (1991) 171 CLR at 654.
[13] Wheeler v Leicester City Council [1985] AC 1054 at 1065; see also Marcel v Commissioner of Police [1992] Ch. 225 at 234; Lord Browne-Wilkinson, “The Infiltration of a Bill of Rights” [1992] Public Law 397 at 404-408.
[14] See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12 (Mason CJ).

In Kuru,[15] the High Court had occasion to consider whether a provision of the Crimes Act 1900 (NSW) authorised police to enter and remain on private property, notwithstanding a direct request that they leave. Gleeson CJ, Gummow, Kirby and Hayne JJ confirmed the need for clear words to erode the common law protection. In that respect their Honours observed:[16]
[15] Kuru v State of New South Wales [2008] HCA 26.
[16] Kuru v State of New South Wales [2008] HCA 26 at [37] (footnotes omitted).
To the extent that, in the end, there was any ambiguity about the meaning and ambit of the authority provided to police by ss 357F and 357H to remain in the appellant’s flat after he had made it clear that he was requiring them to leave, such ambiguity must be resolved in favour of the foregoing construction. This is because of the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence. That principle has been recognised and upheld by this Court on numerous occasions. It derives from the principles of the common law of England. Indeed, it appears to be a principle against which the provisions of ss 357F and 357H of the Act were written. It defends an important civil right in our society. If Parliament were to deprive persons of such a right, or to diminish that right, conventional canons of statutory construction require that it must do so clearly.
In the course of this discussion, their Honours drew on the judgment of Kirby J in State of New South Wales v Corbett.[17] Although the observations of Kirby J were made in the context of a challenge to a search warrant, the reasons that lie behind the Court’s approach are equally relevant to statutory powers of entry. In that respect Kirby J observed:[18]
[17] State of New South Wales v Corbett (2007) 230 CLR 606.
[18] State of New South Wales v Corbett (2007) 230 CLR 606 at [22]
What are the reasons that lie behind this rule of strictness? They include:
(1)The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people;
(2)The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures;
(3)The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures;
(4)The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and
(5)The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.
Section 42(1)(b) of the Road Traffic Act 1961 (SA)
Section 42 of the Road Traffic Act, at the relevant time, provided:
Power to stop vehicle and ask questions
(1)     A member of the police force or an inspector may—
(a)     request the driver of a vehicle on a road to stop that vehicle;
(b)     ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner or the operator of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2)     A person must forthwith—
(a)     comply with a request made under subsection (1) to stop a vehicle;
(b)     truthfully answer any questions put under subsection (1).
It is relevant to observe that section 42 authorised a member of the police force or inspector to act under the section. Section 5 of the Road Traffic Act defines “inspector” to mean a person appointed or holding office as an inspector under or by virtue of the Road Traffic Act. Section 35 of the Road Traffic Act is in the following terms:
(1)     The Minister may, by instrument in writing, appoint—
(a)     a specified person to be an authorised officer; or
(b)     persons of a specified class to be authorised officers.
(2)An authorised officer may but need not be an employee in the public service or an employee of a government or government body.
(3)An authorised person as defined in the Local Government Act 1999 is an authorised officer under this Act for the purposes of—
(a)     enforcing prescribed provisions of this Act in the area of the council for which he or she is an authorised person; or
(b)     exercising the powers of an authorised officer under prescribed provisions of this Act in the area of the council for which he or she is an authorised person.
(4)Every person for the time being in charge of a ferry established by a council or established, maintained or operated by the Commissioner of Highways is an authorised officer under this Act.
(5)Without limiting the above, an authorised officer as defined in a corresponding road law may be appointed as an authorised officer under this section.
The provisions of the Local Government Act 1999 (SA) define an “authorised person” to be an authorised person under the Local Government Act. Section 260 provides:
(1)A council may, by instrument in writing, appoint a person (other than a member of the council) as an authorised person.
(2)An appointment may be subject to conditions or limitations specified in the instrument of appointment.
(3)     The council must issue to an authorised person an identity card—
(a)     containing a photograph of the authorised person; and
(b)     identifying any conditions or limitations imposed under subsection (2).
(4)An authorised person must, on demand by a person affected by an exercise or proposed exercise of a power under this Act, produce his or her identity card for inspection by that person.
(5)A council may, at any time, revoke an appointment under this section, or vary or revoke a condition or limitation, or impose a further condition or limitation.
(6)No civil liability attaches to an authorised person for an honest act or omission in the exercise, performance or discharge, or purported exercise, performance or discharge, of powers, functions or duties under this or other Acts.
(7)A liability that would, but for subsection (6), attach to an authorised person attaches instead to the council.
It can be seen that the persons who may be empowered under section 42(1)(b) of the Road Traffic Act are of a wide class, and presumably could include such persons as parking inspectors and car parking attendants.
There is nothing in the terms of section 42(1)(b) that would authorise a member of the police force or an inspector to enter onto private property in circumstances where that entry is specifically excluded. There is nothing in the section that, on its terms, would justify an erosion of the protection provided by the common law. This much was accepted by the Solicitor-General, whose primary contention was that it is implicit in the section that the common law protection had been eroded.
The Solicitor-General contended that the words “whether on a road or elsewhere” in section 42(1)(b) allow police to ask questions, regardless of whether the vehicle is on a road or elsewhere, and that the words are not concerned with whether the driver is on a road or elsewhere. He argued that, as a matter of grammar, the words relate to the location of the vehicle. It was said that, as a matter of fact, in order for a person to be properly described as either “the driver” or “the person apparently in charge of the vehicle”, they must generally be either in the same location as, or close to, the vehicle.
It was further submitted, as a matter of practicality, that a police officer asking a question pursuant to section 42(1)(b) would need to be in the same location as both the vehicle and the person identified as either “the driver” or “the person apparently in charge of the vehicle” if the police officer were to have any capacity to properly identify the person as a driver or as apparently in charge of the vehicle, or to communicate with that person so as to ask the question and receive an answer.
As a consequence of this, it was contended by the Solicitor-General that it followed, by necessary implication, that section 42(1)(b) authorises a member of the police force to ask questions for the purpose of ascertaining the name and place of residence of a driver or person apparently in charge of a vehicle, whether the vehicle, or the driver or person, or the officer themselves, is on a road or elsewhere. It was asserted that the power to ask the relevant questions was accompanied by the power to go wherever it was necessary to ask the questions. This, it was said, would include going anywhere that the person who is driving, or who is apparently in charge of a vehicle is, in order to put the questions.
The Solicitor-General drew attention to section 5 of the Road Traffic Act, and in particular to the definition of a “road”. By virtue of section 6A a reference to a “road”, also includes a “road-related area”:
road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;
road-related area means any of the following:
(a) an area that divides a road;
(b) a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals;
(d)an area that is not a road and that is open to the public for driving or parking vehicles;
(e)any other area that is open to or used by the public and that has been declared by regulation to be a road-related area…
The Solicitor-General contended that the words “or elsewhere” in section 42(1)(b) were therefore intended to mean anywhere other than a road or road-related area as defined in section 5. Given the extended scope of the definition of a “road”, the words “or elsewhere” must have been intended to include private property that was not generally “open to the public”.
In my view, section 42(1)(b) should not be construed in the way suggested by the Solicitor-General. The words “or elsewhere” do not, in my view, extend to private property where permission to enter is refused or revoked by the owner of the property. They have work to do when picking up other places to which the public may have access that are not otherwise covered by the statutory definitions, but do not form private property. They also have work to do in empowering officers to question a person who is on private property, in circumstances where the owner of the property has given the officer permission to enter and remain on the premises.
Had Parliament wished to empower members of the police force and inspectors to have the right to enter onto private property in circumstances precluded by the common law, an express provision would be required, or at the very least, such a construction would be called for by way of necessary implication.
In my view, it is clear that Parliament did not intend such an erosion of common law rights. The earlier observations concerning the reach of the definition of inspector render it highly improbable that Parliament had intended that such a wide class of persons would be empowered to enter onto private property, against the owner’s wishes, to ascertain the name, place of residence and place of business of a driver, or a person in charge, or the owner or operator of the vehicle.
As the learned Judge pointed out:[19]
Even if I am wrong in this interpretation, the fact that the section refers to “elsewhere” does not clearly and unambiguously indicate that the legislature intended to allow entry onto private property without consent. A review of the Act shows that where the legislature intended to provide this power, it is expressed very clearly. An example of this is found in s 37 of the Act, which states:
A member of the police force may, if he or she has reasonable cause to suspect that a vehicle has been involved in a collision, or has been driven on a road recklessly or at a speed or in a manner which is dangerous to the public, or has been stolen or used without the consent of the owner, and is on any land or premises, enter that land or those premises and search for the vehicle and examine it if found.[20]
[19] Police v Dafov [2007] SASC 451 at [15].
[20] While this section may provide authority to enter a property in certain circumstances, it is clear that the facts of this case do not come within the ambit of this section, as the respondent was merely speeding, not driving in a manner dangerous to the public.
I also agree with the Judge’s observations with respect to the analogy drawn between section 75 of the Summary Offences Act and section 42(1)(b) of the Road Traffic Act:[21]
The appellant argues that s 75 of the Summary Offences Act is analogous to s 42 of the Act. The appellant submits that as s 75 of the Summary Offences Act has been interpreted to allow entry onto a property without consent,[22] even though this is not clear from the wording of the section, and that s 42 of the Act should also be interpreted to allow entry without consent.
Section 75 of the Summary Offences Act states:
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
I do not find this section to be analogous to s 42 of the Act. First, the power to enter property provided by s 75 of the Summary Offences Act is limited to police officers. By comparison, s 42 of the Act, if interpreted to give powers of entry, would give those powers to police officers and inspectors. Inspectors include parking inspectors, council workers and ferry operators, among others.[23] It is highly unlikely that the legislature intended that these people would be given the power to enter onto a person’s property without consent. Second, s 75 of the Summary Offences Act can only be used by the police where there is reasonable cause to suspect that a person has committed, is committing, or may commit an offence. On the other hand, s 42 of the Act allows the police (and inspectors) to ask questions under any circumstances. There is no requirement that there be any connection between the asking of questions and the commission of an offence. For these reasons, I do not find that s 42 of the Act is analogous to s 75 of the Summary Offences Act.
[21] Police v Dafov [2007] SASC 451 at [18]-[19].
[22] Dinan v Brereton [1960] SASR 101.
[23] Road Traffic Act 1961 (SA) s 35.
As was pointed out in the joint judgment in Kuru:[24]
We are mindful of the difficulties of police in responding to apparent complaints about domestic violence. Such difficulties obviously lay behind the conferral of police powers in terms of ss 357F, 357G and 357H. Properly, those difficulties, and the importance of effective police intervention in response to suspected cases of domestic violence, were referred to by the Court of Appeal. However, the powers there granted were not unlimited. They were granted, relevantly, subject to the provisions of the Act. Those provisions reserved the right to the occupier to withdraw an invitation to police to enter and remain on the premises. If, in the present case, the police considered that it was necessary to re-enter the premises, the remedy was in their hands. They could seek a warrant from a magistrate, and this could be sought and provided by telephone.
[24] Kuru v State of New South Wales [2008] HCA 26 at [38] (footnotes omitted).
There were other avenues readily available to the police officers to obtain the information being sought. In that respect the Judge observed:[25]
My view is that s 42 of the Act does no more than allow a police officer or an inspector to request that a vehicle be stopped and to require the driver, or person in charge, of the vehicle to answer questions. The fact that it does not allow entry onto a person’s property does not make the provision inoperative, it merely makes the obtaining of information more onerous, in certain circumstances. It means that if a person is on private property and does not consent to police presence, and the police wish to use this provision to obtain information, they need to wait until the person leaves the property to question him. However, one would think that in the circumstances of this case, the police could have used the vehicle’s registration number to obtain the details of the vehicle’s owner. An expiation notice could then have been issued to the vehicle’s owner. If the respondent was not the owner of the vehicle, there are statutory provisions that allow the owner of the vehicle to identify who was driving the vehicle at the time of the alleged offence. In circumstances where an alleged offence is more serious, the police could either enter the property pursuant to a warrant or s 37 of the Act.
I respectfully agree.
[25] Police v Dafov [2007] SASC 451 at [22].
The Alternative Submission
As earlier observed, the Magistrate concluded that the third count, the charge of resisting arrest, should be dismissed, as the conduct said to constitute the resist occurred after the defendant demanded that Constable Dowsett leave the property. The Magistrate also dismissed the second count, that is, the charge of failing to truly answer questions, on the basis that at the time the request was made, Constable Dowsett had no lawful right to remain on the premises and was therefore acting outside the lawful execution of his duty.
On appeal, the Solicitor-General did not challenge the dismissal of count 3, the resist arrest charge. However, it was submitted that the Judge was in error in upholding the Magistrate’s dismissal of the second count, the failure to truly answer questions. It was accepted that a failure to answer questions put by a police officer acting in a purely personal capacity was not an offence, because a member of the police force, in section 42(1)(b), must mean a member of the police force acting in his capacity as such. However, it was contended that a police officer, even while trespassing, may be acting in his or her capacity as a police officer. As a consequence, it was said that there was an obligation to answer. It was contended that any illegality or impropriety as a result of being a trespasser could be addressed by a consideration, and if necessary, exercise, of the Bunning v Cross[26] discretion.
[26] Bunning v Cross (1978) 141 CLR 54.
Counsel for the defendant supported the ruling of the Judge. It was submitted that having regard to the trespass by Constable Dowsett, the defendant was under no legal obligation to comply with his request. It was pointed out that if there remained an obligation to answer the Constable’s question, the common law protection of private property against trespass would be rendered nugatory.[27] As observed by Lord Diplock in Morris v Beardmore:[28]
I have considered whether even if it must be accepted in accordance with this presumption that Parliament did not “authorise” a constable to enter a person’s home against his will in order to require him to take a breath test, it nevertheless intended the requirement made in such circumstances to be a lawful one; so that non-compliance with it would constitute a criminal offence, leaving as the sole remedy for the unlawful conduct of the constable a civil action for tort [against] him.
My Lords, if this be right it must apply not only to comparatively venial trespasses such as that committed in the instant case, but also to cases where entry to the private house of the person sought to be breathalysed has been obtained by the police by forcing doors or windows or overcoming reasonable force lawfully exerted by that person or on his behalf to remove them from the premises. I find it quite impossible to suppose that Parliament intended that a person whose common law right to keep his home free from unauthorised intruders had been violated in this way, should be bound under penal sanctions to comply with a demand which only the violation of that common law right had enabled the constable to make to him. In my opinion, in order to constitute a valid requirement the constable who makes it must be acting lawfully towards the person whom he requires to undergo a breath test at the moment that he makes the requirement. He is not acting lawfully if he is then committing the tort of trespass on that person’s property, for section 8(2) gives him no authority to do so.
It is not disputed that the superintendent was trespassing on Beardmore’s property when Beardmore was required to undergo the breath test. For this reason I feel compelled to allow this appeal.
Lord Edmund-Davies took the same view and observed:[29]
Nor can I accept that adequate satisfaction of the wrong due to a person in the position of the appellant is provided by his entitlement to institute civil proceedings for trespass, recovering, as Cumming-Bruce L.J. thought, trifling damages in most cases, but possibly punitive damages if the constable was guilty of “substantial oppressive behaviour” over and above the fact of the trespass itself. For if the police (above all people) are seen to flout the law and are yet to be regarded as lawfully exercising powers granted to them by Act of Parliament, diminished respect for the law and for the officers of law enforcement must inevitably follow.
That, my Lords, is why I regard this as a case of great gravity and why I hold that the magistrates were right. I would answer the certified question in the negative and allow the appeal.
[27] Morris v Beardmore [1981] AC 446 at 455-456, 461-462, 469.
[28] Morris v Beardmore [1981] AC 446 at 455-456.
[29] Morris v Beardmore [1981] AC 446 at 462.

In my view the reasoning of the Judge is correct. There was no obligation to answer the questions of Constable Dowsett. He was at the time a trespasser and as such was not entitled to exercise section 42(1)(b) powers. Further, the Magistrate was entitled to exclude the evidence as a matter of discretion.
Conclusion
I would dismiss this appeal.
VANSTONE J: This appeal arises from a magistrate’s ruling that there was no case for the respondent to answer on charges of failing to truly answer questions and resisting arrest. It raises the question of interpretation of the now repealed s 42 Road Traffic Act 1961 (SA) (the RTA) which, considered with s 164A of the RTA, provided the summary offence of failing to truthfully answer questions relating to the identity of a driver of a vehicle. It incidentally raises questions as to the entitlement of police under the general law to go onto private land for the purpose of asking such questions, and of the obligations of an occupier to comply with police actions in those circumstances.
Relevant legislation
The various statutory provisions which were considered in the course of argument on these questions are as follows:
Road Traffic Act 1961 (relevant provisions of the Act as then in force)
5.     Interpretation
…
road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;
road-related area means any of the following:
(a)an area that divides a road;
(b)a footpath or nature strip adjacent to a road;
(c)an area that is not a road that is open to the public and designated for use by cyclists or animals;
(d)an area that is not a road and that is open to or used by the public for driving or parking vehicles
(e)any other area that is open to or used by the public and that has been declared by regulation to be a road-related area;
…
* * * *
37.     Power to examine vehicles involved in offences
A member of the police force may, if he or she has reasonable cause to suspect that a vehicle has been involved in a collision, or has been driven on a road recklessly or at a speed or in a manner which is dangerous to the public, or has been stolen or used without the consent of the owner, and is on any land or premises, enter that land or those premises and search for the vehicle and examine it if found.
38.     Questions as to identity of drivers etc
A person must truly answer any question put by a member of the police force or an inspector for the purpose of obtaining information which may lead to the identification of the person who was driving, or who was the owner or the operator of, a vehicle on any occasion.
* * * *
42.Power to stop vehicle and ask questions
(1)     A member of the police force or an inspector may –
(a)request the driver of a vehicle on a road to stop that vehicle;
(b)ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner or the operator of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2)     A person must forthwith –
(a)    comply with a request made under subsection (1) to stop a vehicle;
(b)    truthfully answer any questions put under subsection (1).
* * * *
164A.Offences and penalties
(1)     A person who contravenes or fails to comply with –
(a)    a provision of this Act; or
(b)a condition or restriction specified in a permit or exemption granted under this Act,
is guilty of an offence.
(2)     a person who is guilty of an offence against this Act for which no penalty is specifically provided is liable to a penalty not exceeding $1 250.
Summary Offences Act 1953
Assaulting and hindering police
6.     (1) …
(2)A person who hinders or resists a police officer in the execution of the officer’s duty is guilty of an offence.
…
75.     Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
Background
The respondent, Alexander Dafov, was charged on complaint with three offences. Count 1 alleged that he drove a motor vehicle at a speed exceeding the speed limit. Count 2 alleged the offence against s 42 RTA and count 3 alleged that the respondent resisted a police officer in the execution of his duty, contrary to s 6(2) Summary Offences Act 1953 (SOA).
The police evidence given before the magistrate included the following. On 14 October 2006 Constable Dowsett and Constable Petts were on “hand held laser duties” on West Lakes Boulevard, at Hendon. Dowsett observed that a vehicle driven on that road by the respondent travelled at a speed of 78 kph, being 18 kph above the speed limit. The officers attempted to stop the driver using warning lights and a siren as he approached their position, but the vehicle continued along its path. The vehicle was followed to a nearby street where it was seen to enter the open driveway of a home. The officers parked the police vehicle across the driveway and Dowsett left the police car and approached the respondent in the driveway. There a conversation in the following terms took place:
A.I said, ‘Do you have any reason for not stopping on the road when we directed you to stop?’
He said ‘I wanted to go home.’
I said ‘I’ve just detected your vehicle travelling at 78 km/h in a 60 zone on West Lakes Boulevard Hendon with the laser device. Do you have any reason for travelling at this speed?’
He said ‘I was not travelling at that speed. Get off my property you are trespassing.’
I said ‘you’ve committed an offence namely exceed speed 78 in a 60. I now require you to give me your full name and address.’
He said ‘No, I know my rights.’
I said ‘you are required to give me your full name and address. What is it?’
He said “I’m not telling you anything until my solicitor is here.’
I said ‘you are required to give me your full name and address now. What is it?
He said ‘Get off my property.’
I said ‘you have one more chance to give me your name and address. It is an offence if you refuse to give me your full and correct name and address. You’ll be arrested if you don’t state your name and address now. What is it?’
He said ‘Fuck off.’
I said ‘you’re under arrest for refusing to state your name and address.’
Constable Dowsett described the way in which the respondent, upon being advised that he was under arrest, went to get back into his car. The officers then took hold of him and he began kicking and struggling. Eventually the police produced capsicum spray, which subdued the respondent.
Dowsett related that at the time he entered the respondent’s driveway his intention was to obtain the respondent’s name and address and to view his driver’s licence. Had events proceeded in that way he would then have issued an expiation notice and left the premises. However, due to the respondent’s failure to co-operate, he had no other choice but to arrest him.
Before the magistrate, counsel for the respondent argued that there was no case to answer on counts 2 and 3. In considering the submission the magistrate was obliged to take the prosecution case at its highest. I shall proceed on the same basis.
It was submitted by the respondent that on each occasion when the respondent was asked to provide his name and address, Constable Dowsett was a trespasser, having been told by the respondent to leave the property. It was suggested that in these circumstances the respondent was not required to answer the questions and further, that being unlawfully on the respondent’s property, Dowsett was acting other than “in the execution of [his] duty” (s 6(2) SOA). It followed, it was said, that the charge of resisting arrest must also fail.
On behalf of the informant it was argued that s 42 RTA gave statutory authority to Constable Dowsett to ask questions of the respondent, as the driver of a vehicle, for the purpose of ascertaining his name and address. It was said that, on the plain terms of the section, such questions could be asked of him either on a road, or anywhere else, including on private property. It followed that the questioning of the respondent was lawful and his failure to answer constituted an offence. Further, his arrest was lawful and resistance of it amounted to the commission of another offence.
The learned magistrate accepted the respondent’s argument. He contrasted the right of police officers, pursuant to s 75 SOA, to enter premises for the purpose of effecting an arrest, with the power given by s 42 RTA. He noted that when Constable Dowsett entered the premises it was not with the intention of arresting the respondent. Finding no explicit permission to enter or remain on private land in the terms of s 42 RTA, he concluded that Dowsett became a trespasser when he failed to leave the premises at the respondent’s direction. It is implicit in what he said that the magistrate found that, up to that point, Dowsett had an implied licence to be on the property. Therefore, neither in requiring the respondent to provide his name and address, nor in arresting him, was Dowsett acting in the execution of his duty. Accordingly, the magistrate found no case to answer on counts 2 and 3 of the complaint.
The magistrate added that even if Dowsett’s status as a trespasser merely enlivened a discretion under Bunning v Cross (1978) 141 CLR 54 he would have exercised that discretion to exclude the police evidence of events following the wrongful refusal to leave.
The police appealed against the magistrate’s decision and the matter came before a single judge of this court. Before the judge, the appellant conceded that there was no common law right for police to be on the respondent’s property after they were told to leave. The judge considered the terms of s 42 RTA and the appellant’s argument that the words “or elsewhere” were express authority for police to go onto private property to make the enquiries authorised by s 42. The judge held that the words “or elsewhere” referred to the vehicle, rather than the driver and that, in any event, the expression did not unambiguously indicate an intention to authorise entry onto and remaining on private property without consent. The judge contrasted the wording of s 42 RTA with that of s 37 RTA, the latter section expressly authorising entry onto “any land or premises”. The appeal was dismissed.
Arguments in this court
Before this court the Solicitor-General appeared for the appellant. In addressing the words of s 42 RTA, he pointed to the wide definition of “road” in the RTA. He submitted that since “road” encompassed areas open to the public, the words “or elsewhere” in s 42 could only refer to private property. He contrasted sections 38 and 42 of the RTA, pointing out that while s 38 could be utilised by a police officer wishing to obtain information about historical acts of driving, and gave no right of entry onto private land, the operation of s 42 was confined to the more immediate situation in which a police officer observed an act of driving and was, thereupon, empowered, then and there, to interrogate the driver. He submitted that the power only continued so long as the person retained the status of “the driver” or “the person apparently in charge of” the vehicle and that, therefore, the ambit of the section was limited both in terms of time and distance. It would, for example, not permit police to break into a garage or other buildings, as once the driver was out of sight he would no longer be apparently in charge of the vehicle. And so, although the Solicitor-General acknowledged that s 42 would, in some cases, justify a police officer in what would otherwise be a trespass, he suggested that the infringement of rights was a narrow one.
The Solicitor-General also argued that if s 42 is given a narrow construction, it is likely to lead to a more ready use by police of their right under s 75 Summary Offences Act to go onto the premises and effect an arrest, even for a fairly minor summary offence.
Mr Lang, for the respondent, argued that s 42 did not expressly confer any right to remain on private property after any implied licence to enter had been revoked. Such an entitlement, he said, was not necessary in order to save the provision from becoming inoperative or meaningless. He submitted that whether the words “on a road or elsewhere” in s 42(1) were broad enough to include private premises did not determine the question whether the legislation should be construed as conferring an entitlement to remain on private land after being told to leave. Any such construction would have to be based on express words.
Referring to the facts of the case, Mr Lang suggested that when Constable Dowsett stood his ground in the face of being directed to leave and, wrongly, asserted his right to remain, he could not, any longer, be seen as acting in the execution of his duty. He referred to Davis v Lisle [1936] 2 KB 434.
Accordingly, two questions appear to arise. First, did s 42 RTA entitle Constable Dowsett to remain on the respondent’s property, after he had been told to leave, for the purpose of obtaining the respondent’s name and address. Secondly, if not, then how should evidence of the respondent’s refusal to answer and the arrest and resistance, which allegedly followed, be characterised.
Interpretation of s 42
Unless authorised by common law or statute, police have no special entitlement to enter land. However, absent any indication that entry is forbidden, consent to go onto the driveway or pathway to the front door, for example, may be implied when a person enters for a lawful purpose: Halliday v Nevill (1984) 155 CLR 1, 7-8 per the majority; Plenty v Dillon (1991) 171 CLR 635, 647 per Gaudron and McHugh JJ. (Of course there is no such implied licence to enter buildings.) Entry to land, either by express or implied authority, may be revoked at any time: Halliday v Nevill at 7. In that event, the licensee has a reasonable time to leave the property: Robson v Hallett [1967] 2 QB 939 per Lord Parker CJ at 953. Put differently, he “must leave as soon as reasonably practicable”: Kuru v State of New South Wales [2008] HCA 26, per the majority at [43]. A police officer who enters or remains on private property without the express or implied licence of the person entitled to possession commits a trespass, unless the entry or remaining on premises is authorised or excused by law: Halliday v Nevill at 8, 10.
In construing a provision of a statute suggested to confer the power to enter land without consent, there is a presumption that, in the absence of an express provision or clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct: Plenty v Dillon at 648; Morris v Beardmore [1981] AC 446, 455 per Lord Diplock.
An example of what has been held in this court to be a clear implication to the contrary is found in s 75 SOA (earlier set out) which gives to police a general power of arrest. In Dinan v Brereton [1960] SASR 101 it was found, by necessary implication, to permit a police officer to enter onto private land to effect an arrest. Napier CJ held (at 104) that the “plain intention” of the provision was to give the officer “such authority as would be given by a warrant” of apprehension. In contrast to the common law power of arrest without warrant, which, apart from situations of imminent breach of peace and the like, was confined to arrest for felony, the s 75 power extends to “any offence”.
Turning to s 42 RTA, it was contended that the words “whether on a road or elsewhere” demonstrated an intention on the part of Parliament to compel answers to questions as to the identity of the driver in circumstances where the vehicle (and consequently the driver or person apparently in charge) as well as the police officer, are located on private property.
It is true that the definition of “road” provided by the Act is a wide one. By virtue of s 6A RTA, a reference to “road” also includes a “road-related area”. Both definitions are set out in [40]. It is noteworthy that what is encompassed by the combination of the definitions remains, in effect, roadways and areas used as such, bicycle tracks (and the like) and areas that abut them. All the areas so defined are open to the public. It is in this context that the reach of the expression “or elsewhere” needs to be considered.
Section 42, in its various forms, has its local genesis in s 12 Width of Tyres Act 1923. That section was introduced into the Road Traffic Act 1934, in almost identical terms, as s 99. That section relevantly provided as follows:
99. (1) Any member of the police force, any inspector, or any authorised officer may require the person in charge of any vehicle on any road to stop, and may request such person to state his name and address and the name and address of the owner of the vehicle.
(2) Any person in charge of any vehicle on any road who –
(a) upon being requested to stop as aforesaid, refuses or fails to stop; or
(b)upon being requested to stop as aforesaid, refuses or fails to state his name or address, or the name or address of the owner of the vehicle, or states a false name or address,
shall be guilty of an offence.
(3) Any member of the police force may, without any warrant other than this Act, apprehend any person who is guilty of any offence under this section.
The Road Traffic Act Amendment Act (No 2) 1955 enacted a new s 99 which, for present purposes, was in similar terms.
The phrase “or elsewhere” was first introduced into this provision by the Road Traffic Act 1961. That Act repealed and replaced the 1934 Act. Section 42(1) of that Act is nearly identical to the final iteration of s 42(1), now under consideration.
There are two particular observations to be made of the 1961 Act which throw light on the reason for the introduction of the words “or elsewhere”. First the definition of road was, at that time, narrower. It was:
road means –
(a) a road, street or thoroughfare; and
(b) any other place commonly used by the public or to which the public are permitted to have access.
The other matter is that by s 35 of the 1961 Act, the Parliament constituted a person who was in charge of a ferry, an “inspector” under the Act. Then, as now, “an inspector” was a person entitled to exercise the powers given by s 42. However, having regard to the then more narrow definition of “road”, it is unlikely that a driver whose vehicle was positioned on a ferry would have been obliged by s 42, in its original form, to answer those questions. It is likely that the words “or elsewhere” were incorporated to extend the powers and obligations given by s 42 to situations where a vehicle was located on a ferry.
That this was the reason for the amendment to the section at that time would appear to be reinforced by passages in the Parliamentary Debates, in particular the second reading speech of the Road Traffic Bill, South Australia, Parliamentary Debates, House of Assembly, 10 November 1960, 1771 (Sir Thomas Playford, Premier and Treasurer); and the second reading speech of Road Traffic Bill (further amended), South Australia, Parliamentary Debates, House of Assembly, 17 August 1961, 457 (Sir Thomas Playford, Premier and Treasurer).
The fact that persons other than police officers were to exercise powers under s 42 is, of itself, a factor telling against an interpretation which would entitle entry onto private land.
Having considered all these matters I have concluded that s 42 does not expressly authorise what would otherwise be tortious conduct and neither is there a clear implication that this was Parliament’s intention. I have reached that conclusion for several reasons. In my view the words “or elsewhere” in s 42 must logically be read in the context of what precedes them. All of the areas covered by the definition of road and of road related area refer to public areas. Had the legislature intended to entirely remove the restriction on the ambit of the section imposed by use of the word “road”, then it could have removed “road” altogether. If the provision is read in accordance with the interpretation given it by the respondent it remains a meaningful provision. The words “or elsewhere” have utility even if they are interpreted to involve no diminution of the common law rights of an occupier.

Therefore I find that s 42 at no time authorised what would otherwise have been tortious conduct. While a police officer might ask the driver of a vehicle on a road to stop, and the vehicle might stop on private land adjacent to the road and while the police officer might there seek the information contemplated by the section, I do not think, if told by the occupier to leave, the police officer could, by authority of this section, remain on that land and insist on being given answers. That is not to say that, absent a directive to leave, an offence against s 42 could not be committed.
Could a s 42 offence be committed even if police were trespassers?
The Solicitor-General argued, by way of notice of contention, that even if s 42 RTA did not authorise what would otherwise be tortious conduct, that would not render evidence in this case inadmissible, but, rather, would enliven a Bunning v Cross discretion. It was accepted by the appellant that the words “member of the police force” in s 42(1) contemplate a member of the police force acting in his capacity as such. In my mind that amounts to an acceptance that the member of the police force must be acting in the execution of his duty. As to whether a police officer who is a trespasser may be acting in the course of his duty, the two authorities referred to by the respondent are of assistance.
In Davis v Lisle two police officers, one in plain clothes and the other in uniform, passed by a lorry causing an obstruction in the highway outside a garage. Two men were repairing it. Some minutes later they returned and saw that the lorry had been moved into the garage. They entered the garage to enquire as to the person responsible for the obstruction. When one asked to see the person in charge of the vehicle, the appellant told them to go outside, telling them that they could not be there without a search warrant. One of the police was in the act of producing his warrant card, when the appellant rushed at him and struck him. He was convicted of assaulting and obstructing a police officer in the execution of his duty. Upon appeal both convictions were quashed. Lord Hewart CJ held that by the act of producing his warrant card, the respondent was asserting a right to remain on the premises, which right he did not have. Therefore he could not be acting in the execution of his duty. Lord Hewart specifically reserved the question of whether a charge of assault simpliciter might be sustained against the appellant. Goddard J agreed. He held that although the officers, in entering the premises, were not trespassers, they became so as soon as they were told to leave and claimed a right to stay. From that time they were acting other than in the execution of their duty.
To similar effect is Morris v Beardmore [1981] AC 446. There, officers investigating a traffic accident went to the defendant’s house. They were invited in by his son and asked to see the defendant. They intended to subject him to a breathalyser test, which they were entitled to do under the Road Traffic Act 1972, believing he was involved in the accident about 90 minutes earlier. However, the defendant, who remained upstairs, declined to see the police, passing a message via his son that they were trespassing and that he wished them to leave. The officers then attended upstairs and asked the defendant to supply a specimen of breath. Upon his refusal he was arrested and he was later charged for that refusal.
The matter came to the House of Lords. Lord Diplock held, at 456, that in order to constitute a valid requirement under the relevant provision, the constable making it must be acting lawfully. He would not be acting lawfully if he was at that time committing the tort of trespass on the person’s property. The section empowering him to require the breath test was silent as to the grant of any authority to trespass. In separate reasons, the other members of the House found similarly. At 454 Lord Diplock contrasted the power to detain and restrain the liberty of movement of the person required to be tested, as against the power, to arrest. He described the two powers as being of “a wholly different legal nature”. At 455 Lord Diplock referred to the presumption that “in the absence of express provision to the contrary Parliament did not intend to authorise tortious conduct”.
The force of those authorities has been accepted by the High Court of Australia: Halliday v Nevill; Plenty v Dillon. I conclude from them that if Constable Dowsett was a trespasser at the time he purported to require the respondent’s name and address, then he could not be taken to be acting in the course of his duty, or, to put it as did Lord Diplock in Morris v Beardmore, acting lawfully. In that event I would find that there was no obligation on the respondent to answer the questions. A discretion under Bunning v Cross would never arise.
Did police become trespassers?
The question remains whether Constable Dowsett’s presence on the respondent’s property after being told to leave could be justified by reference to any other statutory provision.
In my view this turns on Constable Dowsett’s state of mind and intentions at the time he was first told to leave the property. I take as a starting point the magistrate’s implicit finding that Dowsett entered the land with an implied licence. As I have already observed, on the basis of common law principles he was allowed, upon being told to get out, a reasonable time to leave. It will be remembered that his evidence was that when he first entered the land his intention was to ascertain the name and address of the respondent and issue him with an expiation notice for the speeding offence. He was not asked what he planned to do if the information he sought was not forthcoming. However, he did say that his intentions changed when the information he sought was not provided. Importantly, it appears that he only then formed the intention to arrest, and for the s 42 failure, rather than for the speeding offence.
It is clear that Constable Dowsett had, at all times, a sufficient basis upon which to arrest the respondent for speeding. That is, he had reasonable grounds to suspect that the respondent had committed the offence of driving at a speed over the speed limit, contrary to the Australian Road Rules. As observed earlier, concomitant with that power of arrest went the right to enter and remain on private property for that purpose: Dinan v Brereton. Upon entering the property, or upon being told to leave, he would have been entitled to exercise that power of arrest, even if it would have been undesirable to do so. Rather than doing so, he advised the respondent that he had committed the speeding offence and asked for his full name and address. He reiterated that request three more times. It is noteworthy that, being met with refusals, he did not arrest for the speeding offence.
The situation is, then, that it was open to the magistrate to find that:
·Dowsett entered with the benefit of an implied licence, not at that stage having any intention to arrest;
·upon being told to leave he asserted a right to remain for the purpose of obtaining the respondent’s name and address;
·he enjoyed no such right;
·his determination to stay and indeed his assertion of an entitlement to stay meant that he became a trespasser;
·he was at that point not acting in the execution of his duty;
·there was for that reason no obligation upon the respondent to answer Dowsett’s questions.
These were very much the findings made by the magistrate. Accordingly, I consider the charge against s 42 was correctly dismissed.
If no s 42 offence was committed, was the arrest unlawful?
The Solicitor-General did not mount any separate argument in justification of the resisting arrest charge. I took his position to be that it would stand or fall with the s 42 RTA charge. I have reached the conclusion that different considerations might apply to it. I shall set out what I see as the relevant matters. However, because none of these issues was raised by either counsel, or the court, at any stage, the respondent has had no opportunity to address them. Bearing in mind that this is an appeal by police against the dismissal of charges – indeed a second appeal – I think in the circumstances that it would be unfair to decide the matter on the basis of a new analysis. Accordingly, because these matters are important, I propose to express only a tentative view on them.
I consider that the status of Dowsett’s presence on the property could conceivably have changed upon Dowsett deciding to arrest the respondent. I have reached that position notwithstanding my finding that there was no case to answer on the s 42 charge.
I do not consider that the fact that Dowsett was a trespasser immediately prior to the arrest determines this question of the lawfulness of the arrest. The decision of Halliday v Nevill at first instance is of some assistance here: Nevill v Halliday; Brida v Halliday [1983] 2 VR 553.
There, police officers, including Constable Nevill, observed Mr Halliday reverse a motor vehicle from a driveway into the roadway, whilst he was known to them as a disqualified driver. Seeing the police, he drove back into the driveway. The officers walked into the open driveway and there arrested him. Shortly afterwards he broke away and entered his own home, which was across the road. The police followed him into the house and there overcame him. He was charged with escaping custody, resisting police in the execution of duty, assault, and driving offences. A magistrate dismissed all charges, holding that the arrest was unlawful. In the Supreme Court, Brooking J found that although police were trespassing on the property of a third person at the time of the arrest, the arrest itself was lawful. His Honour came to that conclusion after a comprehensive analysis of the development of the law of arrest. Distinguishing cases where an arrest is not authorised by law, or is positively prohibited by law, he said (at 561) as to cases where it was suggested that the unlawfulness of some act (for example, a trespass to land) made unlawful what would otherwise be a lawful arrest:
I know of no authority requiring me to hold that an arrest is unlawful if the arrester was at the time acting unlawfully, or if the arrester was at the time committing an unlawful act which made the arrest possible, or if the arrester was at the time trespassing on land. Any such wide and unqualified rule is not sensible.
Since Brooking J found that the arrest in the neighbour’s driveway was lawful, it followed that the offence of escaping lawful custody could be made out. It should be noted that under the Crimes Act 1958 (Vic) ss 458, 459 and 459A, police were only entitled to go onto private property to make an arrest if the offence for which they were intending to arrest was an indictable one. Whilst driving disqualified was not such an offence, escaping from custody was. Therefore, the re-arrest in Mr Halliday’s own home was also lawful.
In the High Court there was no consideration of the correctness of that aspect of Brooking J’s analysis of the situation because, there, as recorded at page 6 of the judgment, it was common ground that the appeal would fail unless Constable Nevill was, at the time he arrested the appellant in the driveway, a trespasser on that driveway. Had the appellant succeeded in making good its assertion that Nevill was trespassing, he would then have had to overcome the conclusion of Brooking J, that the arrest was lawful notwithstanding. However, the majority held that Nevill had an implied licence to enter the driveway, which had not been revoked at any time. An important factual difference between that case and the instant one is that s 75 SOA carries with it the power to go on to private land to effect an arrest, irrespective of the offence for which the arrest is to be made. Therefore, in Halliday v Nevill, the fact that an arrest was to be made for driving whilst disqualified did not afford to the police any right to be on private property. However, I would call in aid the analysis of Brooking J to support my conclusion that the arrest here was not necessarily rendered unlawful by virtue of the fact that it was immediately preceded by a trespass to land. It is necessary to examine the arrest itself.
I would also note that the leading English cases referred to earlier do not assist on this precise issue. In Davis v Lisle no arrest had been made by the trespassing police at the time when the appellant rushed at one of them and struck him. It will be recalled that there the prosecutions for assaulting a police officer in the execution of his duty and obstructing that officer in the execution of his duty failed. In Morris v Beardmore the charge for refusing to supply a specimen of breath failed because the request that the specimen be supplied was made while police were unlawfully on premises. However, the validity of the arrest made by the police officers did not call for specific consideration. Additionally, in the run of cases concerning provision of specimens of breath for analysis, the arrest power was given by the Road Traffic Act 1972 (UK) itself and was predicated upon there being a failure to provide such a specimen. The scheme of that legislation is somewhat different from that now under consideration.
As already observed, s 75 SOA entitles a police officer to arrest, without warrant, any person who he reasonably suspects has committed an offence.
The elements of a lawful arrest were described by Gilles P, The Law of Criminal Investigation (The Law Book Company, 1982) p 144 in the following terms:
At common law, an arrest will (assuming that it is made for an object sanctioned by the law) be lawful and thus validly made, provided that there is a sufficient act of arrest, the arrester communicates to the arrestee that the latter is under compulsion, the arrester notifies the arrestee as to the reason for his arrest, and the arrester possesses the state of mind required of one acting pursuant to the given power of arrest.
In a much earlier article Glanville Williams [1954] Crim LR 6 put the position slightly differently:
Assuming the legal power to make an arrest, there are certain general requirements of a proper and effective arrest.
(1)The person arrested must be deprived of his liberty; in technical language this is called an imprisonment.
(2)The imprisonment must be intended as a step in a criminal process, and this intention must be made known by the officer to the person arrested.
(3)Subject to some exceptions, the reason for the arrest must be communicated to the person arrested.
For present purposes and insofar as the constituent parts of an arrest are concerned, there will be no difference in these two statements of principle. Although there was direct evidence before the magistrate going to most of the requirements, in other respects a certain amount was assumed. I deal first with the preamble to each of the two statements referred to, namely, in Gilles’ terms, whether the arrest was made “for an object sanctioned by the law” or, as Glanville Williams put it, whether there was “legal power to make an arrest”.
I consider that it is plain that the object of Dowsett in arresting the respondent was indeed one sanctioned by the law. There is no doubt that the offence for which he arrested the respondent was one known to the law, being the one found within s 42 and s 164A RTA. This is not a case where the officer was under some sort of misapprehension as to there being an offence of the nature for which the arrest was made. Moreover, speaking generally, Dowsett was clearly empowered by s 75 SOA to make an arrest for such an offence.
There is no difficulty on Dowsett’s evidence about the act of arrest or the communication of the reason for it. The only question arises from the state of mind required of Dowsett: did he reasonably suspect the respondent of having committed the offence? His suspicion is not a matter of contest; only its reasonableness.
I think it is clear that the mere fact that the charge for an offence against s 42 was ultimately found to fail does not, of itself, have the effect of vitiating the arrest. There is a measure of protection for the constable to whom incorrect information is given and who acts upon it honestly and reasonably. Here, the critical thing is that the facts relating to the failure by the respondent to provide his name and address were not merely conveyed to Dowsett, but were all within Dowsett’s knowledge. In my view, his belief that the offence had been committed was unreasonable, in that he should have known, that since he was a trespasser at the time the s 42 requests were made, the obligation to answer did not arise, and therefore no such offence had been committed. Lord Diplock said in Dallison v Caffery [1965] 1 QB 348 at 371:
The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause.
To put it another way, if the facts, as believed by the person making the arrest, amount in law to the offence for which the arrest is made, or at least justify holding the relevant suspicion, then the arrest is valid and the person making the arrest is protected against a suit for false imprisonment: Walker v Lovell [1975] 3 All ER 107 at 116-7. (The discussion by McHugh J (in dissent) in the context of the situation where the statutory instrument creating the offence is invalid, in Coleman v Power (2004) 220 CLR 1 at 14-15, is instructive on this issue.)
It would seem that Dowsett’s mistake was as to whether, on the facts as he knew them to be, the respondent had committed an offence against s 42 RTA. This amounts to a matter of law. It follows that the arrest was unlawful. Whether liability in tort might have arisen at common law might raise additional issues.
I digress to examine the situation had police proceeded differently. Had Dowsett chosen to arrest for the speeding offence, rather than for the s 42 offence the position would likely have been otherwise. On the facts of the case there was no question as to the grounds of the reasonable suspicion. The arrest could have been seen as constituting the beginning of a new phase in Dowsett’s conduct and the legal relationship between the two men. What had gone before would not necessarily taint what followed. An arrest for speeding would, in my view, have been lawful. Had that occurred, then the respondent would plainly have been obliged to submit to Dowsett’s custody and his resistance would have amounted to the offence of resisting a police officer in the execution of his duty. However, that is not this case.
Nevertheless, a finding that the arrest was invalid might not yet be the end of the matter. There is still a question whether the respondent was entitled to resist Dowsett’s arrest of him. As Lord Du Parcq said in Christie v Leachinsky [1947] AC 573 at 599 officers and ministers of public justice “enjoy greater protection under the law than private persons”. He said:
The law does not encourage the subject to resist the authority of one whom he knows to be an officer of the law. In Mackalley’s case 9 Co. Rep. 65b, 66a, where it was a sergeant-at-mace who made the arrest, it was said that if the party knows the person arresting him to be an officer he must not offer resistance, “and if he has not a lawful warrant he ‘shall have his action of false imprisonment’”.
However, as a general rule, a person subject to an unlawful arrest is entitled to use reasonable force to free himself: R v Ryan (1890) 11 LR(NSW) 171; McLiney v Minster [1911] VLR 347. Moreover, where the officer is engaged in effecting an arrest for which there is no reasonable and probable cause, the prosecution will be in difficulty establishing that the officer was acting in the execution of his duty: Wershof v Metropolitan Police Commissioner [1978] 3 All ER 540 at 551 per May J; R v Purdy [1975] 1 QB 288, 298-9 (Court of Appeal); Davis v Lisle. Proof that Constable Dowsett was so acting is required for an offence against s 6 SOA.

It is unnecessary for present purposes to explore this aspect of the matter further. Having found that the arrest for the s 42 offence was unlawful, and the respondent not having set out to justify a finding of a case to answer on the resisting arrest charge on any basis additional to its contention that the arrest was lawful, it is appropriate to dispose of the matter.
Conclusion
I conclude that the magistrate was correct in finding that there was no case to answer upon the charge of failing to truthfully answer questions. The single judge was correct in dismissing that appeal.
For reasons already given, I would dismiss the appeal, both as to the s 42 charge, and insofar as it relates to the finding of no case to answer on the charge of resisting arrest.
WHITE J: I would dismiss the appeal.
Subject to one qualification, I agree generally with each of the separate reasons of Gray J and of Vanstone J.
As Vanstone J points out, the question of whether the arrest of the defendant in the circumstances of this case could have been justified on any alternative basis was not addressed on the appeal. Nor was it addressed before the magistrate or before the single judge. In those circumstances, I would prefer not to express any view at all about the matters raised by Vanstone J concerning a possible alternative basis of justification for the arrest of the defendant.