Roy v O'Neill

Case [2020] HCA 45

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE AND EDELMAN JJ

AILEEN ROY  APPELLANT

AND

JULIE O'NEILL  RESPONDENT

Roy v O'Neill

[2020] HCA 45

Date of Hearing: 8 September 2020
Date of Judgment: 9 December 2020

D2/2020

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation

P R Boulten SC with P D Coleridge for the appellant (instructed by North Australian Aboriginal Justice Agency)

J T Gleeson SC with T J Moses for the respondent (instructed by Director of Public Prosecutions (NT))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Roy v O'Neill

Evidence – Admissibility – Trespass – Where appellant charged with breach of Domestic Violence Order ("DVO") – Where DVO included condition that appellant not remain in her partner's presence while intoxicated – Where police attended unit occupied by appellant and her partner for purpose of DVO check – Where police engaged in wider proactive policing operation – Where police knocked on front door and asked appellant to come to door for DVO check – Where police observed signs of intoxication and requested appellant submit to breath test – Where breath test positive for alcohol – Whether evidence of breath test lawfully obtained – Whether police trespassed – Whether common law implied licence permitted police to approach unit and knock – Whether lawful purpose to attend unit.

Words and phrases – "breath test", "coercive powers", "common law implied licence", "Domestic Violence Order", "implied licence to enter private property", "interference with an occupier's possession", "lawful communication with an occupier", "lawful purpose", "police", "proactive policing", "trespass".

Police Administration Act (NT), s 126(2A).
Domestic and Family Violence Regulations (NT), reg 6.

  1. KIEFEL CJ.   In June 2017 a Domestic Violence Order (a "DVO") issued out of the Local Court of the Northern Territory of Australia at Katherine against the appellant. Its evident purpose was to protect the appellant's partner, Mr Johnson, from her in circumstances where she had consumed alcohol or another intoxicating drug or substance. In relevant part it restrained the appellant from being in the company of Mr Johnson or at a place where he lived when she was consuming alcohol or was under its influence. In proceedings brought for breach of the DVO[1], evidence of the results of a breath test, which showed that the appellant had consumed alcohol, was excluded from admission into evidence on the ground that it was obtained unlawfully. It was held to have been obtained unlawfully because the police officer who administered the breath test was found to have no authority to be present on the premises, which is to say he was a trespasser. The appellant was found not guilty of the charge.

    [1]Domestic and Family Violence Act (NT), s 120(1).

  2. At the time of the visit by the police officer, Constable Elliott, and two other officers to the dwelling unit where the appellant and Mr Johnson resided, the police in…

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Roy v O'Neill [2020] HCA 45
Case
[2020] HCA 45
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Ms Roy against a decision of the Northern Territory Court of Appeal. The dispute arose from a police attendance at Ms Roy's unit, where she was subject to a Domestic Violence Order (DVO). The police, engaged in a proactive policing operation, sought to check compliance with the DVO, which included a condition that Ms Roy not remain in her partner's presence while intoxicated. Following a knock on the door, Ms Roy was observed to be intoxicated, and a subsequent breath test indicated the presence of alcohol. Ms Roy was charged with breaching the DVO.

The central legal issues before the High Court were whether the evidence of the breath test was lawfully obtained and whether the police had trespassed on Ms Roy's property. Specifically, the court had to determine if a common law implied licence permitted the police to approach the unit and knock on the door, and whether their attendance at the unit was for a lawful purpose. The appellant contended that the police's purpose was solely to use coercive powers to obtain a breath sample, irrespective of her condition.

The High Court reasoned that the common law implies a licence for members of the public, including police, to approach a dwelling and knock for lawful purposes. This implied licence balances the occupier's right to privacy with the practicalities of social interaction and the need for lawful communication. The court found that Constable Elliott had a dual purpose in attending the unit: to check on Ms Roy's compliance with the DVO and, importantly, to ascertain the welfare of Mr Johnson, the protected person. This latter purpose was considered a lawful purpose sufficient to engage the implied licence. The court rejected the argument that the police's intention was solely to obtain a breath sample regardless of circumstances, finding instead that the intention to require a breath test was contingent on Ms Roy's condition.

The appeal was dismissed. The High Court upheld the decision of the Northern Territory Court of Appeal, finding that the police's attendance at the unit was lawful by reason of the common law implied licence, and that the evidence obtained from the breath test was therefore lawfully obtained.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Neither of these submissions should be accepted. The background norms of our society do not imply that a home is a sanctuary from which to abuse an occupier behind closed doors. Nor do they provide sanctuary from police knocking on the door, to make the same enquiry that would be made by any decent and moral person who is concerned that the occupant might be abused, with the intention of exercising any powers if it is necessary to protect that occupant. The appeal must be dismissed. Background On 1 June 2017, on the application of a third party, the Local Court of the Northern Territory, sitting at Katherine, made a DVO against Ms Roy. The protected person was her partner, Mr Johnson. The order imposed five conditions upon Ms Roy for a period of 12 months. Conditions 1, 2, 4 and 5 restrained her from doing the following, directly or indirectly: (1) approaching, contacting or remaining in the company of Mr Johnson when consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance; (2) approaching, entering or remaining at any place where Mr Johnson is living, working, staying, visiting or located if consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance; (4) causing harm or attempting or threatening to cause harm to Mr Johnson; and (5) intimidating or harassing or verbally abusing Mr Johnson. Condition 3 provided that Ms Roy must "submit to a breath test and/or breath analysis when requested by police in relation to this order". The order was made with the consent of Ms Roy. In 2018, a police officer, Constable Elliott, was concerned for the welfare of Mr Johnson. He knew from speaking to Ms Roy previously that Mr Johnson suffered from seizures and that she was Mr Johnson's carer. He had seen Ms Roy with Mr Johnson at a bottle shop where Ms Roy was in charge of Mr Johnson's "BASICs card" and money. He believed that Mr Johnson might be the subject of economic abuse[42]. He became suspicious and, upon making enquiries, discovered that there had previously been eight "incidents". No evidence was given about the nature of those incidents but Constable Elliott learned that on a previous occasion Ms Roy had stabbed Mr Johnson. In late March 2018, Constable Elliott had seen Ms Roy involved in what he described as "social order offences". He had warned her about possible breaches of her DVO and had taken her to a sobering up shelter. In the weeks before April 2018, Constable Elliott had observed antisocial behaviour coming from the unit that Ms Roy shared with Mr Johnson.[42]See Domestic and Family Violence Act (NT), s 8. In April 2018, the Northern Territory Police Force in Katherine conducted Operation Haven. This operation involved police activities designed to address concerns about domestic violence and alcohol-related crime. The trial judge described domestic violence in the Northern Territory as a "plague ... especially in a place like Katherine". The police activities included proactive "compliance checks" at the premises of persons subject to a DVO. Members of the Police Force were aware that most of the domestic violence in the Northern Territory occurs "in the home behind closed doors".

Evidence

Evidence Before The Court

The Court of Appeal was correct to hold that Constable Elliott had another purpose when he entered the premises of the dwelling unit. That purpose was to ascertain whether Mr Johnson's welfare was being compromised. This was undoubtedly a purpose of Constable Elliott according to his unchallenged evidence, which was generally accepted by the trial judge, who regarded the police officer as an honest witness and not prone to exaggeration about his state of mind. The two purposes – to observe and enquire of the appellant and Mr Johnson – go hand in hand. But this is not to negate that the purpose respecting Mr Johnson is itself a lawful purpose for the implied licence. Constable Elliott's expectation that the appellant might be intoxicated in the company of Mr Johnson might have been the cause for his concern about Mr Johnson, but he had a dual purpose in attending at the dwelling unit. He was checking on both of them.Evidence relating to purpose The appellant's argument denies these purposes. It is her contention that Constable Elliott's purpose in attending at the dwelling unit was to use the coercive powers under reg 6 to obtain a sample of the appellant's breath for testing. It is to be inferred that the appellant contends Constable Elliott intended to do so when he first entered the premises, regardless of how she presented when he came to the door of the dwelling unit. No finding to this effect was made by the trial judge or by Mildren A-J. True it is that the Court of Appeal's reasons contain a statement that Constable Elliott "was intending to obtain a sample of the [appellant's] breath for analysis"[17]. This statement does not accurately reflect the evidence and should be understood, in the wider context of the reasons, to refer to an intention to require a breath test if the appellant's condition made that necessary. [17]O'Neill v Roy (2019) 345 FLR 29 at 31 [3]. It will be recalled that Constable Elliott's evidence was that it was his experience that the appellant was invariably intoxicated. Arguably this was a sufficient basis for a belief that a contravention of the DVO would be occurring when he entered the premises. Had that view of his evidence been taken, s 126(2A) would have authorised his entry and the requirement for a breath test. But the trial judge did not accept that the police officer had a sufficient basis for that belief and, on appeal, Mildren A-J found that he could only have had a suspicion after the appellant went to and opened the door. That finding was not challenged. It was in connection with the powers provided by s 126(2A) and reg 6 that counsel for the appellant submitted to the trial judge that it was unclear what specific purpose the police officers had in mind when they went to the dwelling unit or what power was being exercised by them. The submission was understandable not the least because the appellant's counsel had not put any questions to Constable Elliott on those topics. The findings referred to above did not affect the evidence of Constable Elliott that he expected the appellant to be intoxicated when he arrived. The question which then arises is whether it may be inferred that he intended to require her to undertake a breath test regardless of her condition when he first observed or spoke to her.

Decision

Reasons for decision

KIEFEL CJ BELL AND GAGELER JJ KEANE AND EDELMAN JJ
Section 126(2A) of the Police Administration Act (NT) does authorise entry onto premises. It provides that a member of the Police Force of the Northern Territory may "enter a place" if he or she believes on reasonable grounds that a contravention of a DVO made under the Domestic and Family Violence Act (NT) has occurred, is occurring or is about to occur at the place. It authorises the police officer to remain at the place and take such reasonable actions as are considered necessary.The decisions below The trial judge, Judge Woodcock, held that neither provision gave the police power to attend at the premises to check the appellant's compliance with the DVO. So far as concerned s 126(2A), his Honour found that Constable Elliott did not have the requisite belief and that the appellant was merely a "person of interest" to him. It is to be inferred that his Honour took the view that when he entered the premises Constable Elliott could not have a belief, on reasonable grounds, that the appellant had consumed alcohol and thereby breached the DVO, rather he was ascertaining whether that was the case. This was also the view of Mildren A-J on the appeal to the Supreme Court of the Northern Territory[2]. His Honour found that the requisite belief arose only when Constable Elliott observed the appellant coming to and opening the door of the dwelling unit. Up until that time, his Honour said, the police officer could not suspect, reasonably or otherwise, that the appellant had consumed alcohol. The statutory authority of s 126(2A) therefore could not have been invoked when Constable Elliott and the other police officers arrived at the door from the footpath.[2]O'Neill v Roy (2019) 345 FLR 8. Mildren A-J then considered whether the implied permission, which the common law attributes to an occupier, for persons to enter the premises for lawful purposes applied. His Honour held that it could not arise where the purpose is to investigate whether a breach of the law has occurred or to gather evidence of a crime committed by the occupier[3]. His Honour rejected the argument that a purpose of Constable Elliott was to conduct a check on the welfare of Mr Johnson.[3]O'Neill v Roy (2019) 345 FLR 8 at 26 [44]. The Court of Appeal of the Northern Territory (Southwood and Kelly JJ and Riley A-J)[4] overturned the latter finding. The Court held that Constable Elliott had a dual purpose in entering the premises – to determine whether the terms of the DVO were being honoured and to check on the wellbeing of the protected person, Mr Johnson. It was sufficient for the permission which the common law implies that the officer had the latter, lawful, purpose.[4]O'Neill v Roy (2019) 345 FLR 29 at 39 [37].The implied licence and its limits It is well understood that the law of trespass requires that for a person lawfully to enter private premises there must be an invitation or permission from the occupier respecting that entry. The common law also recognises that such a rule would be unworkable in our society if it were strictly applied so as to render all visitors who did not have an express permission from the occupier, trespassers. It recognises that it is in the interests of the occupier, entrants and society more generally that there be a qualification to the law of trespass. It effects that qualification by implying a permission, on the part of an occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes. It balances its recognition of that implied permission by acknowledging that an occupier may negate the permission, by sufficiently indicating that entry is not permitted, and that an occupier may revoke the permission at any time, by requiring the visitor to leave the premises. The implied licence applies to members of the public and the police alike, albeit that the business which they may have with the occupier or those present on the premises may differ.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL AND GAGELER JJ, KEANE AND EDELMAN JJ

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