Roy v O'Neill

[2020] HCATrans 43

[2020] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D19 of 2019

B e t w e e n -

AILEEN ROY

Applicant

and

JULIE O’NEILL

Respondent

Application for special leave to appeal

BELL J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 2020, AT 9.45 AM

Copyright in the High Court of Australia

MR P.R. BOULTEN, SC:   If the Court pleases, I appear for the applicant.  (instructed by North Australian Aboriginal Justice Agency)

MR T.J. MOSES:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NT))

BELL J:   Yes, Mr Boulten.

MR BOULTEN:   Your Honours, this application concerns some issues that relate to the scope of the implied licence to enter a person’s property and especially in the context of police powers.  In the court below there was a decision which we criticise in the grounds of appeal with some quite specific contentions, but generally this is an issue that is going to become more and more of concern. 

EDELMAN J:  Mr Boulten, can I just ask you - I can appreciate from your submissions that there are courts across the world that are dealing with this issue and splitting as to the result and the manner in which it should be dealt with.  One point that is not clear to me from your submissions is precisely what your answer is to these two questions.  The first is whether you say the implied licence is to be determined objectively or subjectively, and the second is whether infringement of the implied licence is to be determined by reference to some objective characterisation of purpose or a subjective characterisation of purpose. 

MR BOULTEN:   It is an objective analysis of what the intention and action was, so if – we say there are a number of building blocks in determining the ultimate position.  It is a matter of inference, so it is an objective qualitative assessment ‑ ‑ ‑ 

EDELMAN J:  So the implied licence - when one determines what its scope is you look at the objective factors including signs that say “Trespassers Prohibited”, or whatever, but what about then the question of infringement of the implied licence, the reason why somebody might be present in the curtilage? 

MR BOULTEN:   Well, that is part of it.  We say that at the heart of determining the scope is determining the true purpose of the entry. 

EDELMAN J:  No, one must be anterior to the other.  Before one looks at the purposes of the entry you have to ask:  what is the implied licence to permit? 

MR BOULTEN:   That involves an assessment of commonsense issues and as we have said the common behaviour of people in the community, what would be expected normally when a policeman comes to the door.  In one respect there have been very clear statements that the infringement of private property by police officers is not necessarily dependent solely on their ability to investigate. 

I think the best answer that I can give to your Honour’s question is that the High Court in Kuru approached the same task using the reasoning of Justice Brennan in Halliday v Nevill.  It is objective but in determining the inferences to be drawn, you as the fact finder need to have regard to what is normal - what is normally acceptable would a person in their home be inviting, inferentially, police to come and arrest them, or police to come and investigate them without there being a reasonable suspicion to do so.  So whether that is entirely objective - I think it is but it might not be. 

BELL J:   Your contention is that in a circumstance in which there may be a dual purpose, one purpose of which is to investigate whether the occupier has or is in the process of committing a criminal offence, the implied licence, applying Justice Brennan’s reasoning adopted in Kuru, not inconsistent with the reasoning of the majority in Halliday v Nevill, is that the implied licence does not run so far.

MR BOULTEN:   That is it, yes, your Honour.

BELL J:   Really the essence of your challenge depends upon the conclusion of the Court of Appeal that there was a dual purpose here.

MR BOULTEN:   It does in part and we think that their assessment of the scope just goes too far, full stop.

BELL J:   Yes.

GORDON J:   As a matter of principle?

MR BOULTEN:   As a matter of principle.

GORDON J:   Putting aside the application of the principle to the facts here?

MR BOULTEN:   It goes too far in that sense, yes, your Honour.

BELL J:   Does it go beyond that where a purpose is the investigation of the occupier’s possible commission of a criminal offence the implied licence is taken to be revoked?

MR BOULTEN:   Yes, I think it does.  If they go uninvited, without any reasonable suspicion to simply determine whether someone is committing an offence, then objectively that is outside what would be implied properly from all of the facts and circumstances, including what people would normally wish to happen in their house or on their property.

EDELMAN J:   That does mean - as I understand then your answers, the answer to the first question, which is what is the content of an implied licence - before anyone even turns up, looking at all the circumstances, what is the content of the implied licence, I understand you to say effectively that is objective.

MR BOULTEN:   Yes.

EDELMAN J:   But then when one comes to determine whether that implied licence has been infringed by somebody coming in that there are subjective considerations, so that, for example, a police officer who walked in and objectively there is no indication as to whether the police officer is arriving to ask questions, to respond to an emergency or to try to investigate a person for commission of an offence, one must then ask what the subjective purpose of the police officer is.

MR BOULTEN:   I think I am agreeing with your Honour.

EDELMAN J:   Yes.  I am just trying to understand your submission.

MR BOULTEN:   I think that is what it is.  Of course, the whole issue only crystallises once there is an entry and that is when the thinking and the assessment of the scope really is focused.

GORDON J:   They may be inextricably linked but the identification of the principle is just as important as the application to the facts.

MR BOULTEN:   Yes, your Honour, I accept that and we say that the principle is not simply that one can go to the front door for any purpose that is associated with lawful communication.  Lawful communication cannot be used as a catch‑all for any police activity that is normally the appropriate duty for a police officer to carry out.  We say that there is a more narrow scope to the implied licence than that and that the legitimate purpose that is spoken about must involve no interference with the occupier’s possession of the property or injury to them. 

It is when the occupier’s point of view putatively and objectively is considered then the question arises, is it a lawful purpose to infringe upon the occupier’s privacy and their property to their detriment in the course of a proactive, as it were, or any step that is something that they would not wish upon themselves.  The offence here is a serious offence.  It carries two years maximum penalty and, in certain circumstances, a mandatory
sentence.

BELL J:   I think, Mr Boulten, we might be assisted by hearing from Mr Moses now.

MR BOULTEN:   Yes, your Honour.

MR MOSES:   Your Honours, the application for special leave is put for your Honours on the foundation that this case is a suitable vehicle to examine the limits of the principle recognised in Halliday v Nevill.

BELL J:   Yes.

MR MOSES:   The case which my friend wants special leave to develop is that there are certain textual explicit statements in that judgment – the judgment of the majority in Halliday v Nevill which create limits on the scope of that principle and that those limits are material here.  We say they are not.  The main argument that my friend has developed, particularly in writing, is that the police entry – pursuant to an implied licence – as he puts it in submissions at paragraph 8:

for purposes connected to an occupier –

by which he means the investigation and prosecution of an offence against the occupier, is outside of the principle recognised in Halliday v Nevill.

A fallback position, assuming that argument is not accepted, is that if police can enter for some purposes connected to the occupier – some form of investigation – it must, nevertheless, cohere with or be similar to the scope of the common law power for police to prevent a breach of the peace.  That is the Kuru in New South Wales point.  That is really the fallback if the broader proposition is not accepted.  

EDELMAN J:   Do you disagree with either of the approaches that was put by the applicant in terms of, first, the content of the implied licence being determined objectively and, secondly, that the question of infringement being determined by reference to matters including subjective purpose of the party that is entering the premises?

MR MOSES:   Only to this extent.  Certainly we agree that the content of the implied licence is determined objectively.  As to the second question – and this may be not so much a difference but we think that inquiry, in terms of looking at whether there has been contravention, is also objective, but it does introduce some subjective elements in this sense, that one is only within the implied licence if one is within the function which it serves which is lawful communication and business with the occupier. 

So there are the sorts of cases like Rockford and others where police are entering on to private property and skulking around the property actively trying to avoid the occupier or simply just conducting searches and not seeking to make contact.  In those cases, the subjective intention, if you like, to avoid the occupier certainly comes in and takes them outside of the implied licence.  But it is, if you like, an objective ‑ ‑ ‑

GORDON J:   But there is also objective evidence that the person is skulking.

MR MOSES:   Yes.  So, it is objective in the sense that a court needs to characterise the officers’ conduct and why they are there.  So that is why we say it is an objective inquiry but there are going to be elements of ‑ ‑ ‑

EDELMAN J:   But if the answer to the first question, for example, might be that the implied licence is only for members of a person’s family or for the police and emergencies to enter the premises and a police officer walks on to the premises why would not one then have to ask what the subjective purpose of the police officer is?

MR MOSES:   We would say that – and maybe this is not answering your Honour’s question – but that situation, we would say, does not arise in the context of the implied licence because as his Honour Justice Dixon, I think, recognised very early on in Lipman v Clendinnen, it is necessarily a general licence.  It cannot be calibrated with that sort of finesse. 

GORDON J:   But is that not the question for us – for the Court to look at, that is, what are the limits of this licence?  Are there limits?  How is it prescribed?  We have seen from the international authorities that there is not any unanimity in what is to be decided and how it is to be looked at.

MR MOSES:   Insofar as there is disagreement amongst the international authorities, there is certainly no disagreement in the United Kingdom, Australia and New Zealand.  The only places where there is disagreement and where there is disagreement supporting the contentions that the applicant makes here is in Canada and the US where they have constitutionally protected rights to be free from search.

EDELMAN J:   Just so I understand your submission, your submission is that you accept, do you, that an express licence could be given by a sign on the gate which says police may enter these premises only for the following four purposes.

MR MOSES:   Yes, that could certainly be ‑ ‑ ‑

EDELMAN J:   But, you say that no implied licence – no implication – could ever be made in any circumstances that resulted in the same licence.

MR MOSES:   I am unable to conceive of how that might arise.  So, one can take steps like locking a gate but that seems to signal to everyone - short of condensing that to writing in the case of the sign – in which case we are not dealing with an implied licence, we are dealing with an express licence in the content prescribed – I am unable to see how a set of facts could give rise to that.  But I do not know that it necessarily – that I want to suggest that my imagination is ‑ ‑ ‑

EDELMAN J:   But that is the question that the applicant is raising, is it not?  The applicant is saying, in all of the circumstances here one would not generally expect the implication that one would draw is that the licence would only be given to police to enter for particular purposes and not for any purpose such as very broadly characterised, lawful communication.

MR MOSES:   The first difficulty with that is that there are no facts on which that can be based.  So, insofar as those might be issues, they are issues which arise, perhaps, on the facts in the New South Wales Court of Appeal decision of Dargin where they are some interesting questions about what police were doing when they were going around ‑ ‑ ‑

EDELMAN J:   In a way, that makes this a much better vehicle not a worse vehicle because without any particular facts from which a very particular implied licence might be drawn, the question of the general circumstances makes a general implied licence of much wider and broader importance.

MR MOSES:   To the extent that it is a general proposition rather than a fact‑specific inquiry, we would say the answer to that is that my learned friend is not seeking to reopen Halliday and that Halliday has already decided that question when it adopted and embraced Robson v Hallett which is precisely the situation here.

BELL J:   Mr Moses, you have here, as I understand it, a police officer attending at a premises within the curtilage in connection with a proactive policing initiative concerning domestic violence offences.  In that connection, you have the conclusion of the Court of Appeal that one of the purposes of Constable Elliott, when he knocked on the front door of the premises, was to determine whether the terms of an order were being honoured, that is, to determine whether the occupier had breached a provision of the legislation giving rise to criminal sanction. 

Now, that raises an issue quite discrete from the determination in Halliday v Nevill of the implied licence in relation to pursuing, as it were, a trespasser reasonably suspected of committing a driving offence.  Why, in the context of, as I understand it, an acknowledged policing practice, would it not be relevant to consider the application of the principle, which is not challenged in Halliday v Nevill, to circumstances such as these? 

MR MOSES:   My answer to your Honour is that one needs to separate the facts of Halliday v Nevill which were, in my submission, novel in the sense that your Honour just put to me, that it was not the occupier.  All of the previous authorities, like Robson v Hallett and Lambert v Roberts, were where police were investigating the occupier and an implied licence was recognised in all of those cases. 

So what was, in fact, argued in Halliday v Nevill was that because it was not the occupier it was outside of the implied licence and that is the way the issues were framed in Halliday v Nevill and their Honours were saying, no – or the majority found the implied licence is not so narrow that it only applies to the occupier.  It extends to where inquiries and investigation is occurring in relation to a trespasser or guest and they did not know which.

So, we would say, it is misunderstanding that case to suggest now that the implied licence recognised in Halliday v Nevill is, in fact, confined to the very thing that made it potentially an outlier and potentially outside of the principle. 

GORDON J:   Confined or extended more broadly, that is the question?  Even if you are right about Halliday, the question for this Court is whether one takes it and uses it in circumstances giving rise to the earlier authorities and the facts here.  That is the first question. 

MR MOSES:   In my submission, that could have been the question.  But, if that was going to be the question, what my friend needed to face at the outset was that he was asking for this Court to review and revise the principle that had been recognised by the majority in Halliday v Nevill. 

GORDON J:   It is not review or revise, it is just to consider its application to the facts here and whether or not it extends to the facts here.

MR MOSES:   Their Honours in Halliday v Nevill, in accepting Robson v Hallett and Lambert v Roberts, accepting a law – they accepted that the law covered the facts here at the general level.  So, their Honours accepted – and that was essential to their reasoning – so we would be reopening that, in my submission, if this Court were to embark on a course of considering whether it applies in the Robson v Hallett circumstances which are these.

EDELMAN J:   But Halliday is not concerned with a lawful communication‑type characterisation.

MR MOSES:   In my submission, it is.  That is precisely the function which their Honours accepted was the whole reason for the implied licence.  It is so you can make communication with an occupier or guest.  They accepted and proceeded on the foundation that approaching someone to arrest them fell within that broad function of communication or lawful business.

BELL J:   It is one thing to consider that an implied licence for people to enter upon one’s premises is not rescinded if a police officer comes on to those premises and arrests a trespasser.  It is another thing to consider that an implied licence is not rescinded if a police officer comes on to a person’s premises in order to assess whether they are committing a criminal offence, notwithstanding that no complaint of that nature has been made.

MR MOSES:   Yes, there is a difference.  The second category – which is both this case – and precisely what occurred in, for example, in Robson v Hallett where police knew that there had been a speeding incident, they did not know who it was and they turned up at the residence in order to make inquiries and find out whether this occupier ‑ ‑ ‑

GORDON J:   But that is not this case.  This case is someone turning up and undertaking a breath test in circumstances where they do not know.  They are proactive.  They are going looking for it.

MR MOSES:   Yes.  So, there is – and my friend points to this and we adopt this – there has been a shift in the policing approaches, particularly in the areas of domestic violence orders and bail.  Under the statutes which create those schemes generally police are given powers to enforce these which means, at times, being proactive.

EDELMAN J:   You are making a very good case for the necessity to explore the boundaries of Halliday v Nevill.

MR MOSES:   Save that, if we were to open that Pandora’s box and reconsider that there are - all of the authorities which have gone to date are called into question.

EDELMAN J:   There is no necessity – no one is suggesting – the applicant is not suggesting we reopen it or reconsider it.  The applicant is saying that the boundaries of it remain quite unclear.

MR MOSES:   The submission – which certainly will not get better for repetition – is that Halliday v Nevill – the way the majority judgment is framed proceeding from a broad principle – as accepted in those earlier UK cases – to the narrow facts scenario, is essential ‑ ‑ ‑

EDELMAN J:   Except no one in Halliday had challenged general application of Robson, had they? 

MR MOSES:   No.  It was accepted to be the law.

EDELMAN J:   As applicable to the facts in Halliday.   

MR MOSES:   The issue was whether it was applicable, yes.  It was disputed that it was because it was not the occupier.  The precise inverse of what we have here ‑ ‑ ‑

EDELMAN J:   Yes.

MR MOSES:   ‑ ‑ ‑ where, in a sense ‑ ‑ ‑

GORDON J:   We are now looking at conduct rather than the person.

MR MOSES:   If your Honour means conduct of the police, it is precisely the point – this comes back to the facts – that we do not have the kinds of facts relating to conduct.  There is no complaint about the conduct of the police on this occasion ‑ ‑ ‑

GORDON J:   It is not a complaint.  It is a factual inquiry as to what the police did or did not do. 

MR MOSES:   There is no, as I understand it, issue with what the police did or did not do which is not solely a function of where they did it.  So, there is no issue that they could have done precisely this somewhere else.

BELL J:   Where they did it is the very essence of the issue that is raised and notable, perhaps, is that Acting Justice Mildren came to a different view in relation to the application of the principles in Halliday v Nevill – difficult to submit that there is not a question raised in that respect.

MR MOSES:   His Honour only went to the facts of Halliday and the reasons of Justice Brennan in dissent.  He did not consider any of the reasons which we say tell against this.  But can I – I am conscious of the time.  The New South Wales Court of Criminal Appeal in Dargin, the Western Australian Court of Appeal in Pitt v Baxter and the South Australian Court of Criminal Appeal in Daka have all unanimously taken approaches which either explicitly or implicitly reject these broad propositions which my friend wants to advance here.  We would say – at least in those four jurisdictions which are the only intermediate appellate

court authorities – the authorities are of one voice and they are against the applicant’s position. 

BELL J:   Thank you. 

MR MOSES:   If the Court pleases.

BELL J:   Mr Boulten, the Court is minded to grant special leave in this matter.  I just wonder whether you might direct your attention to the grounds of appeal.

MR BOULTEN:   Yes. 

BELL J:   It seems to me, perhaps, the challenge could be identified with ‑ ‑ ‑

MR BOULTEN:   More precisely ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ with more precision.

MR BOULTEN:   Yes, all right.

BELL J:   Yes.

MR BOULTEN:   Could we have some time to do that – a week or so?

BELL J:   Indeed, Mr Boulten, yes.

MR BOULTEN:  Thank you. 

BELL J:   There will be a grant of special leave to appeal in this matter.  What is the estimated length?

MR BOULTEN:   More than half a day, but not more than a day.

BELL J:   But not more than a day. 

MR BOULTEN:   Yes.

BELL J:   I think the parties are agreed.  That grant is subject to noting that the proposed grounds of appeal might be reframed to express the point with greater precision.

MR BOULTEN:   If the Court pleases, thank you.

BELL J:   Thank you.

AT 10.14 AM THE MATTER WAS CONCLUDED