Police v Dafov

[2008] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

POLICE v DAFOV

[2008] SASC 26

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

12 February 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT

Application for permission to appeal - whether Judge erred in approach to interpretation of s 42 of the Road Traffic Act 1961 (SA). Held: permission to appeal granted - s 42 of the Road Traffic Act 1961 (SA) now repealed but general relevance of point raised by proposed appeal warrants grant of appeal.

Road Traffic Act 1961 (SA) s 42; Summary Offences Act 1953 (SA) s 6(2); Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Supreme Court Civil Rules 2006 (SA) r 291, referred to.

POLICE v DAFOV
[2008] SASC 26

Full Court:  Doyle CJ, Bleby and Gray JJ

1. THE COURT:  Police have applied for permission to appeal against a decision of a Judge of this Court.

2. The Judge dismissed an appeal by Police against a decision by a Magistrate. The Magistrate had found no case to answer on two charges against Mr Dafov, and had dismissed those two charges. The charges were failing to truly answer questions contrary to s 42 of the Road Traffic Act 1961(SA) (“the RTA”) and resisting arrest contrary to s 6(2) of the Summary Offences Act 1953 (SA).

3. Central to the decision of the Judge was the Judge’s interpretation of s 42 of the RTA. Section 42 requires the driver or person apparently in charge of a vehicle to answer truthfully questions put by a member of the police force under certain circumstances. It was Mr Dafov’s refusal to answer certain questions, purportedly asked under s 42, that led to the arrest that he was charged with resisting.

4. The Judge held that s 42 does not authorise a police officer to enter private property, when the owner or occupier refuses permission to enter, for the purpose of asking questions under s 42 of the RTA. Accordingly, the Judge concluded that in the circumstances in question the relevant police officer was trespassing on Mr Dafov’s property. This appears to have led the Judge to conclude that Mr Dafov was not obliged to answer the questions that were put to him, and accordingly he could not be guilty of a breach of s 42, and to conclude that the purported arrest was not a valid arrest.

5. Permission to appeal is sought to enable police to challenge the Judge’s interpretation of s 42. The submission is that the Judge erred in his approach to s 42.

6. Although s 42 has now been repealed, the submission is that the approach of the Judge is relevant to the interpretation of other similar legislation conferring powers on members of the police force, and other public officials.

7. Permission to appeal is required by virtue of s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).

8. The application for permission has been considered by the Court pursuant to r 291 of the Supreme Court Civil Rules 2006 and pursuant to Practice Direction 6.1.4.

9. For these purposes the Court comprised Doyle CJ, Bleby J and Gray J.

10. The Court has considered the application for permission without hearing any party, and on the basis of the summary of argument provided by the applicant.

11. The Court is unanimously of the opinion that permission to appeal should be granted.  The Court considers that the appeal raises a question of law of some general importance, and a question that has potential relevance to other like provisions.

12. Were it not for the more general relevance of the point raised by the proposed appeal, the Court might have refused permission to appeal, bearing in mind that s 42 has been repealed. Having regard to that, it may be appropriate for the Court to require police to meet Mr Dafov’s costs of the appeal in any event. That is a matter that can be decided by the Court that hears the appeal.

13. Accordingly, the Court orders that permission to appeal be granted.

14. The Court directs that a copy of these reasons be provided to each of the parties.