Riley, Aloma v David John Brooks

[1998] TASSC 7

7/1998

PARTIES:  RILEY, Aloma
  v
  BROOKS, David John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 30/1997
DELIVERED:  10 February 1998
HEARING DATE/S:  3 December 1997
JUDGMENT OF:  Crawford J

CATCHWORDS:

Police - Rights, powers and duties - Entry upon premises - To search for wildlife taken - Statute forbidding officer to enter "any premises ... used as a principal residence" except pursuant to "a warrant ... or the permission of the occupier to enter the residence" - Whether entry on to driveway of suburban house prohibited without warrant or permission.

National Parks and Wildlife Act 1970 (Tas), s42(8).

Aust Dig Police [18]

REPRESENTATION:

Counsel:
             Applicant:  C M Robinson and B C R Reilly
             Respondent:  M P Bugg
Solicitors:
             Applicant:  Beeton & Mansell
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  7/1998
Number of pages:  3

Serial No 7/1998

File No LCA 30 /1997

ALOMA RILEY v DAVID JOHN BROOKS

REASONS FOR JUDGMENT  CRAWFORD J

10 February 1998

The applicant was convicted on a complaint of wilfully obstructing a police officer in the execution of his duty, contrary to the Police Offences Act 1935, s34B(1)(a)(i), in that on 10 January 1996 at Deloraine she wilfully obstructed Darren Lee Hill, a police officer in the execution of his duty, by laying across a vehicle and refusing to move and allow officers to search the vehicle.

Unusually there was no oral evidence, the parties submitting a statement of agreed facts which included the following.  On 10 January 1996 at about 12.45am police intercepted a Toyota sedan on the Bass Highway just east of Deloraine.  The driver, Robert Patrick Kennedy, was asked to open the boot, after he had stated that he had been shooting and that he had his guns, a wallaby and a duck in there.  He agreed he did not have a gun licence or permits for wildlife.  The boot could only be opened with a key and the key could not be located.  The police lifted the side of the boot slightly and could see a firearm in there.  Following a conversation Mr Kennedy agreed to take the police officers to the owner of the vehicle so that a key could be obtained.  The police then followed the vehicle to 8 Bonney Street, Deloraine where it was parked in the driveway.  The applicant was the owner of that property and of the vehicle.  A check was then made for a spare key but none was forthcoming.  It was then decided to force open the boot but before that was done the applicant "exited the house and came downstairs".  She was asked to furnish a key and told that otherwise the boot would be forced.  She requested that a warrant be produced but was told by the police officers that a warrant was not necessary.  She then stated that there was not a key and she laid across the boot on the lock, stating that the police could not open it.  She was asked to move out of the way on a number of occasions and told that otherwise she would be arrested for obstructing police.  She again refused to move and was then informed that she was under arrest.  She was removed from the boot and placed in the police vehicle.  Subsequently she was taken to a police station where she was charged and bailed.

On the hearing of the motion to review it was agreed by counsel that I should assume and proceed on the basis that the facts before the learned magistrate included that the applicant's principal residence was at 8 Bonney Street, Deloraine, that the driveway was next to the house and that the property at that address was a typical suburban block of land with a house on it.

The applicant seeks to review her conviction upon one ground only, that being that the learned magistrate erred in law in finding that the police were lawfully entitled to be present on that part of the applicant's premises external to the house, that is on her land, without a warrant.

The prosecution needed to prove that the police officers were acting in the lawful execution of their duty.  It was the defence case that the police had no lawful right to be on the applicant's land and that they were therefore not acting in the lawful execution of their duty.  The National Parks and Wildlife Act 1970, s3(1), deems police officers to be authorized officers for the purposes of that Act.  By s41 authorized officers may seize wildlife or equipment used to take wildlife, where the officer has reasonable grounds for believing an offence under the Act has been committed.  By subs(6) any person who, when required to do so by an authorized officer, refuses to deliver to that officer anything the officer is entitled to seize under the Act, is guilty of an offence.  By s42 powers of entry and search are given to authorized officers with respect to any premises, conveyance or container for relevant purposes under the Act.  Until a 1992 amendment, subs(5) empowered an authorized officer to enter any premises or conveyance or to open any container for the purpose of exercising any of the powers contained in ss41 or 42.  However by the National Parks and Wildlife Amendment Act 1992 that provision was omitted and replaced by new subss(5),(8),(9) and (10).  Subsection (5) now provides that in exercising the powers conferred, or in performing the duties imposed, by s41 or s42, an authorized officer may, without warrant, at all reasonable times enter any premises, conveyance or container.  In this case, if the legislative provisions stopped there, the police officers would have been clearly authorized to do what they did.  However s42(8) provides that in exercising the powers conferred, or in performing the duties imposed, by s41 or s42, "an authorized officer must not enter any premises or any part of any premises used as a principal residence except where the officer has obtained a warrant under subsection (9) or the permission of the occupier to enter the residence".  It was common ground in this case that the police officers had not obtained a warrant nor did they have the express permission of the occupier to enter her property.

The learned magistrate was of the view that the word "premises" in subs(8), coupled with the expression "used as a principal residence", signified an abode, which to his mind was equivalent to a reference to a house or part of a house.  His Worship concluded that the reference to "any premises or any part of any premises" was intended to be a reference to a house, or any part of a house, and not to any other part external to that which might be thought to be part of a house.  His Worship concluded that as the police were not in the house or any part of it, nor were they seeking to enter it, they were entitled under the provisions of the Act to be present on that part of the land external to the house, without a warrant or the permission of the occupier, while they were performing their duties under ss41 or 42.  Clearly the applicant was obstructing the police in the exercise of those duties, and accordingly the complaint was found proved and she was convicted.

The question in issue is a difficult one and I have hesitated in the course of determining it.  There is authority for the view that in the popular sense of the word, lands with no buildings on or near them, cannot be described as "premises".  See for example Bracey v Read [1962] 3 WLR 1194 at 1196. There is also authority for the proposition that the word "premises" extends to not only buildings but also includes at least the land on which a building is erected and the land immediately surrounding it. Whitley v Stumbles [1930] AC 544 at 547. However caution should be exercised when considering precedent in the course of determining the meaning of a word in a statute, for the context in which the word is used will often indicate the sense in which the word is intended.

Disregarding the provisions of subs(8) for a moment, I have no doubt that in subss(1),(2),(3),(5) and (6) of s42, the word "premises" extends not only to a building on land but also to the land on which the building is erected and the land immediately surrounding the building, in the sense referred to in Whitley's case. It might even extend to bare land, but it is unnecessary to determine that question here. It is sufficient to say that the word "premises" in those subsections encompasses the applicant's house and the land surrounding it, including the driveway, and the relevant events here occurred on the "premises" at 8 Bonney Street. It would be a strange thing indeed if the powers of authorized officers to enter and search "premises" for wildlife and plants (see subs(2)) were to be limited to the interior of buildings and not to their surrounds. Wildlife and plants are commonly to be found on land outside buildings and it is unlikely that Parliament intended to create an authority to enter and search buildings but not land itself. In many cases an authorized officer could not enter a particular building without first entering the land leading to it so plainly, a power to enter a building would require a power to enter the land leading to it. For these reasons it is my opinion that "premises" in s42(1),(2),(3),(5) and (6) extends to the land immediately surrounding a building and that, unless subs(8) provides the contrary, the police officers here were acting in the lawful execution of their duty when the applicant obstructed them by lying across the boot of the vehicle.

What then is the meaning and effect of subs(8)?  One comment I make is that obviously the subsection contemplates that in some cases part only of particular premises may be in use as a principal residence, and that entry without a warrant or permission of the occupier into a part not used as a principal residence is authorized by the Act.  The second comment I make is that it appears from the way in which the subsection is expressed that the term "any premises ... used as a principal residence" is synonymous with the term "the residence".  The closing words of the subsection provide an exception in the case of a warrant or the permission of the occupier authorizing entry to "the residence", and it is reasonable to infer that the prohibition against entry onto "any premises ... used as a principal residence" extends only to that for which entry may be authorized by a warrant or permission.  The question which remains is what is encompassed by the term "the residence".  On the facts of this case, I determine that it extends only to the house, that is to say the building, and not to the driveway alongside it.  In my opinion, the popular use of the word "residence" extends, in the case of a dwelling house, to the house only.  Generally speaking people live in a residence and not on a residence.  I note that in Stroud's Judicial Dictionary 4th Ed, Vol 4 at 2359, Gibson J in R v Fermanagh Justices [1897] 2 IR 563 is cited as having said that "residence" primarily means the dwelling and home where a person is supposed usually to live and sleep.

There is another reason why I have come to this conclusion.  "The house of everyone is to him as his castle and fortress".  Semayne v Gresham (1604) 77 ER 194. The privacy, security and integrity of a person's home and possessions are regarded by the common law as fundamental rights and one's home and possessions are not to be violated without compelling reasons. There are of course exceptions which allow, in limited circumstances, entry into a person's home or onto the land immediately surrounding it. One exception involves an "implied licence" under common law. In the absence of a locked gate or some other notice, the occupier of a dwelling house is regarded as having given an implied licence to any member of the public, including a police officer, who has any lawful reason for doing so, to go through the gate and up to the door of the house in order to inquire whether he may be admitted to that house or perform some act on the land. Nevill v Halliday [1983] 2 VR 553 at 556. I regard it as unlikely that it was intended by the enactment of s42(8) to remove from police officers that implied licence to enter as far as the door of a residence. That implied licence, in the usual case, to go as far as the door to seek the permission of the occupier to enter, ought not be regarded as having been excluded unless that clearly appears. It would be strange that a police officer could enjoy that implied licence for all purposes except when attempting to exercise powers or perform duties under ss41 or 42 of the National Parks and Wildlife Act 1970.

The only ground in the notice to review is that the learned magistrate erred in finding that the police were lawfully entitled to be present on the applicant's land external to her house without a warrant.  For the reasons I have expressed the ground has not been made out.  The motion will therefore be dismissed.