The prosecution relied on sections 45 and 48 of the Police Powers and Responsibilities Act as authorising the respondent to enter the house in the way he did. The Magistrate agreed. Section 46(2)(d) of the Police Powers and Responsibilities Act may also have been relevant but, if it was, it would not alter the result in the appeal. Section 47 was not relevant because there was no "relevant vehicle incident" as such an incident is defined in schedule 4 of the Act.

The "detection of offenders" is a function of the police service, see section 2.3(d) of the Police Service Administration Act 1990. Prima facie and generally the consent of the occupier is required before a police officer can enter a dwelling; section 17(5) of the Police Powers and Responsibilities Act. I think that in the present case section 48 provides a more extensive right of entry to a police officer acting as the respondent was, or at least provides the power of entry applicable for such an investigation or inquiry.

Notwithstanding that there is a separate definition in schedule 4 of the Police Powers and Responsibilities Act for "dwelling", I think a dwelling, as the applicant's house was, is a "place" as that term is defined in schedule 4.

The garage and gate to the house are shown in the photographs exhibit 2, numbers 2, 5, 6, 9 and 11. The gate is in the nature of a door. No force was required to enter the garage. The question argued on the appeal was whether force was used to open the gate through which entry was gained to the house.

Section 48 of the Police Powers and Responsibilities Act is in the following terms:

(1) For sections 45 to 47, a police officer may enter a place and stay on the place for the time reasonably necessary for the purpose of the entry.

(2) However, the police officer may use reasonably necessary force to enter the place only if the entry is authorised by a police officer of at least the rank of inspector.

By analogy the example stated for section 17(6) of the Police Powers and Responsibilities Act of "minimal force" is "turning a door handle to open an unlocked door and opening the door." This suggests that "force" is involved in doing that.

In my view force was required to enter the applicant's residence through the gate. The force used was only that which was "reasonably necessary" to enter the place, but for the purpose of section 48(2), that is all that is required. The use of such force was not authorised by a police officer of at least the rank of inspector and therefore the respondent's entry was, in my view, unlawful. No consent to entry had been given. On the contrary, it had been refused in no uncertain terms.

The respondent described his entry in this way, the gate being closed:

"I was trying to get through the gate, but I was unable to get through effectively. The gate forms the front of the house. The person inside then yelled back at me, 'I don't care who you are, you can just fuck off.' At that time I managed to get through the gate and inside."

He said in cross-examination he "opened the gate up, which was closed." As to his powers of entry, he gave the following evidence in cross-examination, at page 43:

"You got the call to go to the residence at 2.20, didn't you?-- Yes.

The - you had plenty of time to make an application for a warrant, didn't you?-- Well, there's - again, there's two things, one, I don't believe we had time to apply for a warrant-----

Mmm?-- -----and two, it - it wasn't necessary. There was no reason to obtain a warrant.

When you got to a house and you were - you were told to 'Fuck off'-----?-- Well-----

-----you knew then and there you had no permission to go in there?-- Well, two things there, you just backed up and said now I'm at the house when I don't have permission, which isn't 2.20 obviously. It's 2.50. And two, I don't believe I needed a warrant, regardless of whether I was told to 'Fuck off'.

Do you believe that you can walk into a person's home?-- Under those circumstances, I know I can.

Where does that power come from?-- Police Powers Act.

Doesn't give you that power at all?-- Yes, it does.

So you thought you were operating under the Police Powers and Responsibilities Act. Is that right?-- In the detention side, yes."

The Magistrate referred to the act of the respondent as "technically an offence of breaking into the dwelling" and found there was a "use of force in opening the latch of the gate".

The Magistrate expressed his conclusion as follows:

"Upon consideration, I am prepared to accept the submissions on behalf of the prosecution, and I reject those of the defence. I reject the view that in the situation in which the officers were in, that the proper course for them to do was to apply, and have granted, a warrant before entry to the dwelling. I find the police, to all intents and purposes, can be said to have acted lawfully, and within their authority when they entered the property with a view to making some inquiries about the driving of the motor car, observed by them to be parked outside the residence, with car bonnet still warm to the touch."

The Police Prosecutor had submitted that force would not have been involved in the opening of the door, see at page 217.

It is probably implicit in the Magistrate's reasons that he accepted this submission. I cannot. No reasons of any substance were given by the Magistrate for his view.

In my view, the respondent's entry to the house was not authorised by section 48 of the Police Powers and Responsibilities Act. It was not authorised by section 17 because the appellant did not give consent. It was therefore an unlawful entry and the subsequent detention of the appellant for the purposes of undergoing a breath test and the breath test itself were also unlawful. On the other hand, the appellant was justified in resisting or obstructing the respondent following the unlawful entry and his unlawful detention. The conviction on the charge of obstruction must therefore be quashed. That offence would not have been committed but for the unlawful entry.

The same result does not automatically follow for the driving under the influence conviction, because the evidence of the breath test is admissible, notwithstanding the unlawfulness, unless it is excluded in the exercise of the discretion in accordance with the principles stated in cases such as The Queen v. Ireland [1972] HCA 14; (1970), 126 CLR 1, Merchant v. The Queen [1971] HCA 22; (1971), 126 CLR 414, and Bunning v. Cross [1978] HCA 22; (1978), 141 CLR 54. If it is excluded the respondent concedes that there is no sufficient indicia evidence to justify the conviction.

The Magistrate considered this question in the alternative and only very briefly. He said:

"I consider that in my discretion, that indiscretion was minor and most technical one, and in accordance with the Bunning and Cross principle, that the evidence flowing from that act is admissible."

The respondent concedes that this is not a proper exercise of the Bunning v. Cross discretion. The Magistrate has not referred to or considered the various factors which are relevant to the exercise of the discretion and in these circumstances his discretion has miscarried. It was incumbent on the Magistrate to consider the competing public and other requirements and weigh them against each other. I am accordingly asked to exercise the discretion afresh and that is what I will do.

The Magistrate described the unlawful entry as a "minor and most technical indiscretion". I cannot agree. It was at least a trespass and at worst, a criminal offence. In Coco v. R [1994] HCA 15; (1994), 179 CLR 427, Chief Justice Mason and Justices Brennan, Gaudron and McHugh said at pages 435 to 436:

"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."

It was an entry into a house. Consent was not merely not obtained; it was refused. Force, admittedly minimal, was used. The respondent did not know until after he had effected entry that the appellant, the man he was looking for, was inside the house. It would have been a simple matter for the respondent to have sought authorisation from a police officer of at least the rank of inspector, but on the other hand it is not certain that such authorisation would have been given or what matters such an officer would consider in deciding whether or not to grant authorisation. The use of force was therefore circumscribed to a degree.

In Bunning v. Cross the appellant, admittedly the driver of the vehicle, was spoken to at the roadside, not in his house, and he voluntarily accompanied the police and voluntarily submitted to the breathalyser test. Chief Justice Barwick said at page 64:

"There is, in my opinion, nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it.

Of course, a fine line divides such a willingness from a willingness the product of coercive conduct: and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been 'taken' to the police station. But, in this case, there is no finding of any coercive conduct on the part of the patrolman or authorized person: nor, in my opinion, ought there to have been. Rather, the impression the magistrate's notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him."

Here the appellant was forcibly and against his will taken from his house to the police station and told to submit to the breathalyser. At all times he denied he had driven a vehicle at the time relevant to the respondent's inquiries. For the purposes of section 80(15G) of the Transport Operations (Road Use Management) Act 1995 that aspect required separate consideration by the Magistrate and additional findings as the

question of driving by the appellant was not accepted and could not be said to have been a non-issue. In fact the Magistrate worked back from the breath analysis certificate for that purpose.

Bunning v. Cross did though proceed on the basis that the administration of the breathalyser test was unlawful in that it was taken under the coercion of an unauthorised demand, but it is difficult to ignore the background facts. It was clear there that the appellant was the driver of the vehicle and was, as the breathalyser result made clear, drunk at the time. The equivalent situation was disputed if not denied here. There was also evidence that a friend of the appellant had driven him home and parked his car where it was observed by the police.

Clearly there is a public interest in drunk drivers not driving, and if they do, being apprehended, but the discretion in the present case cannot be exercised from the starting point, as it was in Bunning v. Cross, that the appellant had, in fact, driven his vehicle and had, in fact, committed a criminal offence.

In my view, were the evidence of the breath test admitted here curial approval or even encouragement would be given to the unlawful conduct of the police and that would be undesirable. (See Bunning v. Cross at page 74). In addition, for the reasons I have given, there is a significant element of unfairness here.

I cannot conclude here that the respondent's non-compliance with section 48(2) was "isolated and merely accidental", (see Bunning v. Cross at page 78), rather, it was the product of deliberate intentional conduct as a result of an erroneous view (still existing) of powers of entry with no regard at all being had to the issue of "force". In this sense the belief of the respondent in his powers was not a mistaken belief, rather, it was a consciously formed view of what he believed he was entitled to do; it demonstrates, "a deliberate or reckless disregard of the law by those whose duty it is to enforce it." (Bunning v. Cross at page 78). There was no oversight or mistake.

Whilst evidence of the appellant's blood alcohol content from the certificate of analysis is helpful to the prosecution case, there was a body of other evidence of the condition of the appellant. On the other hand, there was also evidence of the consumption of alcohol by the appellant after 2 p.m. which had the potential to detract from the conclusiveness of the certificate. The prosecution case relied on the two hours relation back period in section 80(15G) of the Transport Operations Road Use Management Act 1995 and it was incumbent that care be taken, which did not happen, to ensure that proper procedures were followed.

Next, it cannot necessarily be said that it would have been easy or a simple matter for the respondent to have obtained the required authorisation to use "reasonably necessary force" to enter the house. As I have said, authorisation could have been easily sought, but I cannot, on the evidence, conclude that it would have been easily granted.

I recognise that in traffic terms the offence here is a serious one, but that is not the only factor to consider. The prosecution case was not based solely on the breath analysis certificate.

Finally, an examination of the Police Powers and Responsibilities Act suggests, to use the words of Justices Stephen and Aickin in Bunning v. Cross at page 80,

"that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power"

to enter a dwelling. I have already referred to relevant sections. In addition, a warrant to arrest the appellant could have been sought and if obtained, the premises could have been entered and the appellant arrested. (See, for example, section 19 of the Police Powers and Responsibilities Act). This factor favours rejection of the evidence.

For these reasons the discretion should be exercised to exclude the evidence of the breath analysis. That is also the conclusion I consider the Magistrate should have reached. The parties agreed that if I reached this conclusion the conviction, which was clearly based on that evidence, should be quashed. There is no point in rehearing the matter. It was also agreed that if the evidence of the breath test was excluded there was no need to consider the remaining grounds of appeal.

In the circumstances and for the reasons I have given the decision of the Magistrate to convict the appellant on each charge was wrong and will be set aside, the convictions and punishments will be quashed and findings of not guilty will be entered.

HIS HONOUR: I think it is proper that an order for costs in favour of the appellant be made in respect of the proceedings in the Magistrates Court, having regard to the various matters referred to in section 158A(2) of the Justices Act.

I think there was a failure to take appropriate steps to investigate the matter in the manner to which I have referred. I do not think the charges have been dismissed on technical grounds. They are, rather, grounds of substance.

The appellant does not seem to have conducted his defence in a way that prolonged the proceedings unreasonably and the appellant has succeeded in relation to both convictions, so I would be inclined to make an order for costs of both the appeal and the trial before the Magistrate.

HIS HONOUR: I order that the respondent pay the appellant's costs of the trial in the Magistrates Court and appeal to this Court fixed, by consent, at $6,682.20 within 28 days of today.