Police v Dafov

Case [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…

Continue reading Police v Dafov

Sign in free to access the full text

Details
AGLC
Police v Dafov [2008] SASC 247
Case
[2008] SASC 247
Decision Date

CaseChat Overview and Summary

In Police v Dafov, the appellant sought to appeal against the decision of a single judge, who upheld the order dismissing the second and third counts against the respondent. The second and third counts related to the defendant's failure to truthfully answer police questions and his resistance to arrest. The background of the case involved the defendant being detected for speeding by two police officers, who followed him to a private residence where he was arrested after refusing to provide his name and address. The Magistrate dismissed the second and third counts on the ground of no case to answer, and this decision was upheld by the single judge on appeal.

The legal issues in this appeal centred on the interpretation of section 42(1)(b) of the Road Traffic Act 1961 (SA) and whether it authorised police or an inspector to enter and remain on private property where an implied right to enter had been expressly revoked. Additionally, the court needed to determine whether a failure to truthfully answer police questions contrary to section 42(1)(b) of the Road Traffic Act was excused when, at the time of asking questions, police were trespassing.

The Full Court found that the police were trespassing at the time they purported to require the defendant's name and address, and therefore, section 42(1)(b) did not authorise police or an inspector to enter and remain on private property where an implied right to enter had been expressly revoked. Consequently, the defendant was under no obligation to answer police questions while they were trespassing. The appeal was dismissed.

The court concluded that the reasoning of the single judge was correct and that there was no obligation to answer the questions of Constable Dowsett, as he was a trespasser and not entitled to exercise section 42(1)(b) powers. Furthermore, the Magistrate was entitled to exclude the evidence as a matter of discretion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 offencesA 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 etcA 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 1953Assaulting and hindering police6. (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 arrestA 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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.