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 451Magistrates 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…
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