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…
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- AGLC
- Police v Dafov [2008] SASC 247
- Case
- [2008] SASC 247
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CaseChat Overview and Summary
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.
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