Police v DAFOV - [2007] SASC 451

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DAFOV
[2007] SASC 451
Judgment of The Honourable Justice David
18 December 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY
Magistrates appeal - criminal law - appeal against dismissal of charges - offences of speeding, failing to truly answer and resisting arrest - offences of failing to truly answer and resisting arrest occurred on respondent's property after he had requested that the police leave the property - whether police were trespassing - whether s 42 of the Road Traffic Act 1961 (SA) allows police to enter private property without consent - whether magistrate erred in finding that there was no case to answer on the charges of failing to truly answer and resisting arrest.
Held: Appeal dismissed - s 42 of the Road Traffic Act does not allow police to enter onto private property without the consent of the owner/occupier - magistrate correct to find no case to answer with respect to the charges of failing to truly answer and resisting arrest.
Australian Road Rules r 21(1); Road Traffic Act 1961 (SA) s 35, s 37, s 42, s 174A; Summary Offences Act 1953 (SA) s 6(2), s 75, referred to.
Coco v The Queen (1994) 179 CLR 427; Plenty v Dillon (1991) 171 CLR 635, applied.
Davis v Lisle (1936) 2 KB 434; Dinan v Brereton [1960] SASR 101, discussed.

POLICE v DAFOV
[2007] SASC 451
Magistrates Appeal: Criminal
DAVID J.
Introduction

This is an appeal against a magistrate’s dismissal of two charges.
The respondent was charged on Complaint with three offences, namely:
1.driving at a speed over the speed limit (contrary to r 21(1) of the Australian Road Rules);
2.failing to truly answer (contrary to s 42 of the Road Traffic Act 1961 (SA) (“the Act”)); and
3.resisting arrest (contrary to s 6(2) of the Summary Offences Act 1953 (SA)).
The respondent pleaded not guilty to all charges and the matter went to trial. After the close of the prosecution case, the respondent made a submission that there was no case to answer. The magistrate found a case to answer with respect to count one, but found that there was no case to answer with respect to counts two and three, and dismissed those charges. The appellant appeals against that decision.
Background
On the evening of 14 October 2006, two police officers were on hand-held laser duties on West Lakes Boulevard, at Hendon. This road has a speed limit of 60 kilometres per hour, which is indicated to motorists by a speed limit sign.
It is alleged that at approximately 8.14 pm, the officers detected a Toyota Landcruiser travelling at a speed of 78 kilometres per hour, 18 kilometres per hour above the speed limit. The officers activated their vehicle’s warning lights and sirens, and followed the vehicle. The vehicle turned right onto Morley Road and then entered the driveway of a property located on that road. The officers parked across the driveway and got out of the police car. The respondent got out of his vehicle. The officers then approached the respondent in the driveway. The respondent requested that the officers leave the property. The officers then requested the respondent’s personal details. The respondent repeated his request that the officers leave the property. The officers then indicated that the respondent was under arrest for refusing to provide his name and address. They attempted to arrest the respondent and a struggle ensued.
The magistrate found that, after the time at which the respondent requested that the officers leave the property, the police were trespassing. He therefore dismissed the charges that arose out of the conduct occurring when the police were trespassing, ie counts two and three.
Appeal
The appellant argues that the police did have lawful authority to be on the respondent’s property at the relevant time and were not trespassers.
Generally speaking, a person entering private property without the owner’s consent is trespassing. With respect to police entry onto private property, the law was set out in Coco v The Queen,[1] where Mason CJ, Brennan, Gaudron and McHugh JJ said:
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. 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. 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. 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:
“[I]nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.”[2]
[1] Coco v The Queen (1994) 179 CLR 427.
[2] Ibid 435-436 (footnotes omitted).
This authority clearly states that, in the absence of express or implied consent by the owner or person in charge of a property, police entering, or remaining on, the property will be trespassing, unless their presence is authorised by common law or statute.
In this case, the respondent clearly revoked any express or implied authority for the police to be on the property. Shortly after the police approached the respondent he said, “get off my property. You are trespassing”. In the circumstances there could not have been any express or implied authority.
The appellant must therefore show that the police officers’ presence was authorised by law, despite there being a lack of consent. At the hearing of the appeal, the appellant conceded that there was no common law right for the police to be on the respondent’s property following his revocation of any implied authority.
However, the appellant argues that s 42 of the Act provides statutory authority for the officers to have been on the respondent’s property. At the relevant time, s 42 of the Act provided that:
(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).
Statutory authority to enter a person’s property without consent must be clearly expressed in unmistakable and unambiguous language.[3] In the absence of clear language, there is a presumption that the legislature did not intend to authorise otherwise tortious conduct, such as trespass.[4] 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”.[5]
[3] Ibid 427, 436.
[4] Ibid.
[5] Ibid.
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.
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.[6]
[6] 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 at a manner dangerous to the public.
This part of the appellant’s argument must therefore fail. The language of the section does not provide clear authority to enter onto a person’s property without consent, and a presumption that the legislature did not intend to authorise entry onto the property therefore arises.
The appellant argues that if this is the case, the presumption against authority to enter a property without consent can be rebutted. As already stated, the presumption can be rebutted where it is apparent that the legislation intended to authorise entry onto property.[7] The appellant argues that the presumption can be rebutted, either by applying authorities that deal with other legislative provisions, using analogy, or by showing that the section would otherwise be inoperable in certain situations.
[7] Coco v The Queen (1994) 179 CLR 427, 436.
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,[8] 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.
[8] Dinan v Brereton [1960] SASR 101.
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.[9] 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.
[9] Road Traffic Act 1961 (SA) s 35.
For this appeal to be successful, the appellant must therefore show that s 42 of the Act was intended to allow police and inspectors a statutory right to enter a property, absent consent. The appellant argues that it is desirable for the police to be able to readily obtain the identity of the driver, owner, or person in charge of a vehicle, and that if the section does not allow entry onto a property to obtain this information, in certain situations the section would become inoperative. To demonstrate this, the appellant used an example where police enter a crash repairer’s garage to ask questions of the proprietor as to the owner of a suspected hit and run vehicle under repair.[10] It was submitted that in those circumstances, if s 42 of the Act does not allow entry onto a property without consent, and the proprietor asked them to leave the property, the police would need to leave the garage and wait until the proprietor exited the property before being able to ask questions. It was therefore argued that the section must have been intended to allow entry onto a property without consent.
[10] The facts in Davis v Lisle (1936) 2 KB 434.
My view is that this illustration is unhelpful. It overestimates the role of s 42 of the Act. In the circumstances described above, given that the police believed the vehicle had been involved in the commission of an offence, the police could enter the property without consent pursuant to s 37 of the Act or a warrant.[11] The police could then use the vehicle’s registration details to determine its owner’s identity. Alternatively, the police could wait outside the garage and ask questions of the proprietor as he left the property. The need to wait outside the property does not make s 42 of the Act inoperative. It merely makes the police’s task of obtaining the driver’s/owner’s details more onerous. As explained in Plenty v Dillon,[12] inconvenience is insufficient to rebut the presumption that the legislature did not intend to authorise otherwise tortious conduct.
[11] Summary Offences Act 1953 (SA) s 67.
[12] (1991) 171 CLR 635.
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.[13] 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.
[13] Road Traffic Act 1961 (SA) s 174A.
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.
Conclusion
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.
I dismiss the appeal.