Halliday v Nevill

[1984] HCA 80

High Court of Australia|1984-07-01|Before: Deane JJ, Brooking J

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Source facts

Court

High Court of Australia

Decision date

1984-07-01

Before

Deane JJ, Brooking J

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Deane JJ. Halliday v Nevill [1984] HCA 80

[2]

This is an appeal by special leave from the decision of Brooking J. of the Supreme Court of Victoria in which his Honour made absolute orders nisi to review five decisions of a stipendiary magistrate dismissing five informations laid against the appellant. The informations charged the appellant with one offence of escaping from legal custody, two offences of resisting police in the execution of their duty and two offences of assault. These charges, together with a charge of driving a motor car while disqualified from obtaining a licence and driving a motor car whilst his blood alcohol content exceeded the prescribed maximum on each of which the appellant was convicted, all arose from an incident which occurred in West Heidelberg shortly after five o'clock one afternoon in January 1982. At that time two police officers named Nevill and Brida were on a motorized patrol of the area. As they drove along Liberty Parade they saw the appellant, who was known to Police Constable Brida as a disqualified driver, reversing a motor car out of the driveway of premises at 375 Liberty Parade. Having driven out into the street, the appellant apparently saw the police car approaching and immediately drove back into the driveway from which he had come. The police officers stopped their vehicle across the mouth of the driveway, alighted and entered the premises at 375 Liberty Parade by walking down the open driveway. There they engaged the appellant in conversation. He had been drinking. He was aggressive and denied that he had driven on the roadway. Police Constable Nevill then arrested the appellant for driving whilst disqualified; this happened while the three men were standing on the driveway inside the premises near the rear of the car that the appellant had been driving.

[7]

While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf. Edwards v. Railway Executive [1] . The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it: see, generally, Robson v. Hallett [2] ; Lipman v. Clendinnen [3] ; Lambert v. Roberts [4] . Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. To adapt the words of Lord Parker C.J. in Robson [5] , the law is not such an ass that the implied or tacit licence in such a case is restricted to stepping over the item of property or around the child for the purpose of going to the entrance and asking the householder whether the item of property can be reclaimed or the child led away. The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property.

[9]

The evidence indicates that the premises at 375 Liberty Parade were residential premises with an open driveway to the roadway. There is no suggestion that the driveway was closed off by a locked gate or any other obstruction or that there was any notice or other indication advising either visitors generally or a particular class or type of visitor that intrusion upon the open driveway was forbidden. That being so, a variety of persons with a variety of legitimate purposes had, as a matter of law, an implied licence from the occupier to go upon the driveway. The question which arises is whether, in those circumstances, the proper inference as a matter of law is that a member of the police force had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway. The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land. Any such occupier who desires to convert his path or driveway adjoining the public road into a haven for minor miscreants can, by taking appropriate steps, preclude the implication of a licence to a member of the police force to enter upon the path or driveway to effect an arrest with the result that a police officer's rights of entry are restricted to whatever overriding rights he might possess under some express provision or necessary implication of a statute (cf. Crimes Act, s. 459A and note generally Morris v. Beardmore [6] and the discussion in the judgment of Kennedy J. in Dobie v. Pinker [7] ) of the common law. All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it. It follows that Police Constable Nevill was lawfully upon the driveway of 375 Liberty Parade when he arrested the appellant.

[48]

Lord Scarman's speech [29] contains a passage to the same effect. And in Swales v. Cox [30] , Donaldson L.J. said that Parliament, in enacting the Criminal Law Act 1967 "was intending to provide a comprehensive code on the rights of a constable to enter a place in circumstances in which a constable with reasonable cause suspected that an arrestable offence had been committed or a constable, again with reasonable cause, suspected that an arrestable offence was about to be committed." The same observations cannot be made with respect to the Crimes (Powers of Arrest) Act 1972 of Victoria. These cases do not answer the question whether the statutory powers to arrest created by ss. 458 and 459 in 1972, being unaccompanied at that time by any express power of entry and search, might be exercised as of right on private property. At that time, it would have been absurd to impute to the Parliament of Victoria an intention so to restrict the statutory power to arrest that they could not be exercised on private property without the permission of the person in possession of that property or entitled to possession of it. In Canada, where the powers to arrest conferred by s. 450 of the Criminal Code were unaccompanied by any express power of entry and search for the purpose of arrest, the Supreme Court held that a fugitive could not obtain sanctuary by residing with a friend: Eccles v. Bourque [31] . A right to enter for the purpose of arrest was admitted, but the court insisted on the common law restrictions on the use of force to effect entry. Dickson J., with the concurrence of the other members of the court, said [32] : I would wish to make it clear, however, that there is no question of an unrestricted right to enter in search of a fugitive. Entry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry. 1. [1981] A.C. 446. 2. [1981] A.C., at pp. 454-455. 3. [1981] 1 W.L.R. 837; [1981] 2 All E.R. 267. 4. [1981] 1 W.L.R., at pp. 841-842; [1981] 2 All E.R., at p. 270. 5. [1981] 1 W.L.R., at p. 842; [1981] 2 All E.R., at p. 270. 6. [1981] 1 Q.B. 849, at p. 854. 7. (1974) 50 D.L.R. (3d) 753. 8. (1974) 50 D.L.R. (3d), at pp. 756-757.

[57]

In England, after Morris v. Beardmore and before additional powers of entry were conferred by amending legislation (see s. 7(6) of the Road Traffic Act inserted by the Transport Act 1981 U.K. s. 25(3), Sch. 8), the validity of a requirement to provide a sample of breath was upheld in a line of cases by resort to the notion of an implied licence. There is, of course, no general licence implied by law permitting police officers on police business to enter on private property. It is clear from what Atkin L.J. said in Great Central Railway Co. v. Bates [40] that a police officer has no right to enter merely because most reasonable householders "would not as a rule object if the matter was done bona fide and no nuisance was caused". Is some licence to be inferred in fact, at least in the generality of cases? The circumstances of each case determine whether it is reasonable to infer that the person in possession of the premises has given permission to the police officer to enter and remain. However legitimate or even laudable from the public viewpoint the business of a police officer may be, it cannot be inferred that in general the police officer has an implied licence to enter and remain on private property to transact that business, at least where the business is of no benefit to the person in possession. Permission to enter to transact the business may be sought, but permission cannot be assumed. A police officer, in common with any other person on legitimate business, has an implied licence from the occupier of a dwelling-house "to come through the gate, up the steps, and knock on the door of the house": per Lord Parker C.J. in Robson v. Hallett [41] . That, as Lord Widgery C.J. explained in Brunner v. Williams [42] , "means that anyone who has any genuine reason for wishing to enter the house or the garden has implied licence from the occupier to approach the front or nearest door and ask whether he may be given permission for what he wishes to do". Now a licence in the terms thus discussed is fairly to be implied in the generality of cases as an incident of living in society. Unless a notice says "Keep Out" it is, generally speaking, reasonable to imply a licence to come up and ask "May I come in?" In the line of cases between Morris v. Beardmore and the insertion of s. 7(6) into the Road Traffic Act, however, the implied licence to enter on the curtilage of a dwelling to get permission to do something on the premises was treated as a licence to the police to perform their functions under s. 8 of that Act on any part of the premises between the entrance to the curtilage and the front door without seeking the permission of the person in possession. It then became a question of deciding whether the implied licence to perform those functions - on a path or driveway - had been revoked before the requirement to provide a sample of breath for the breathalyzer had been made. Perhaps the most extreme examples of these cases were Snook v. Mannion [43] and Gilham v. Breidenbach [44] where vulgar and vigorous injunctions to depart were construed as mere abuse falling short of an express withdrawal of a licence to be on the premises. With great respect, I am unable to adopt the reasoning in these cases. To imply that a police officer who is pursuing a fugitive on to his home ground has te fugitive's permission to enter and remain there until the police officer's work is done is, in my opinion, contrary to the inference ordinarily to be drawn from those facts. To hold that a licence impliedly given by the person in possession (who might or might not have been the fugitive) endures until it is revoked in unmistakable terms reverses the onus which Entick v. Carrington [45] places upon the person entering. Such an implied licence could be distinguished from a legal right of entry only by its revocability.