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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v DAFOV

Details

AGLC: Police v DAFOV [2007] SASC 451
Case: [2007] SASC 451
Decision Date: 18 December 2007

CaseChat Overview and Summary

The case of Police v DAFOV involves an appeal by the police against the dismissal of charges against the respondent, who was charged with speeding, failing to truly answer and resisting arrest. The respondent pleaded not guilty to all charges and the matter went to trial. The magistrate dismissed the charges of failing to truly answer and resisting arrest, finding that there was no case to answer in relation to those charges. The police appealed against that decision. The central legal issues in the appeal were whether the police had lawful authority to enter the respondent's property without his consent, and whether the magistrate erred in finding that there was no case to answer on the charges of failing to truly answer and resisting arrest. The court found that section 42 of the Road Traffic Act 1961 (SA) did not allow police to enter private property without the consent of the owner/occupier, and that the magistrate was correct to find that there was no case to answer with respect to the charges of failing to truly answer and resisting arrest. The court concluded that the presumption that the legislature did not intend to authorize entry onto a property where consent is absent, had not been rebutted. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

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.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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