Criminal Law - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Entry - Entry by police officer on private premises to require a person to undergo a breath test for the purposes of the Road Safety (Alcohol and Drugs) Act 1970.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), s7A(1).

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635; Garwood v Schultz [1982] Tas R 120; Tasmania v Lee [2005] TASSC 117; (2005) 15 Tas R 213, referred to.

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Illegally obtained evidence - Generally - Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.

Evidence Act 2001 (Tas), s138.

R v Camilleri [2007] NSWCCA 36; (2007) 169 A Crim R 197; Tasmania v Salter [2007] TASSC 33, referred to.

Judgment Number: [2007] TASSC 106

1 The applicant seeks a review of his conviction on a charge of driving a motor vehicle whilst exceeding the prescribed alcohol limit in breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). He contends that his conviction should be quashed as the result of a breath analysis taken from him, which is the basis for his conviction, should not have been admitted into evidence.

2 The learned magistrate's findings included the following. On the night in question, 27 March 2006, Pamela Stingel, a constable in the Tasmania Police Force who was driving a marked police vehicle, was travelling along Holmes Road, Roland behind the applicant, who was riding a motorcycle. Constable Stingel endeavoured to intercept the applicant and, to that end, activated the hazard lights on her police vehicle and followed the motorcycle for about 200 metres. The applicant did not stop and turned into the driveway of his residence at 109 Holmes Road. The applicant had seen the police vehicle and was aware he was being directed to stop. To avoid Constable Stingel, the applicant rode his motorcycle into his garage, alighted and went into his residence. Constable Stingel stopped her vehicle outside the residence, walked up the driveway behind the applicant and then went to the front door of the residence. She knocked on the door and called for the applicant to come out. The applicant's wife opened the door. Constable Stingel stood at the open door and repeatedly requested that the applicant come outside; he responded by turning and walking away from her. Without any invitation to do so, Constable Stingel entered the residence and went to the applicant. He initially refused her further requests that he accompany her outside, but did so when she took hold of his arm and led him to the door. When outside, Constable Stingel required the applicant provide a breath test; he resisted for some time but ultimately did so. The test was positive. Following the test, Constable Stingel conveyed the applicant to a police station where he provided a breath analysis that returned a reading of .160 grams of alcohol in 210 litres of breath. That reading is the basis for his conviction.

3 The background by way of legislation for the sequence of events that resulted in that breath analysis being obtained is the following provisions in the Act:

"7A (1) A police officer may require any person who is driving a motor vehicle on a public street to undergo, at or near the place where the requirement is made, a breath test and, for the purpose of enabling him to make such a request, may, if necessary, direct that person, by signal or otherwise, to stop his vehicle.

(2) ...

(3) Where under subsection (1) a police officer requires a person to undergo a breath test, that person shall comply with the requirement in the presence of that officer or another police officer and in accordance with such directions as may be given by that officer or that other officer.

(4) Where, after requiring a person to undergo a breath test in accordance with this section, a police officer reasonably believes that alcohol may be present in that person's breath or blood, whether as a result of such a test or not, that person becomes liable to submit to a breath analysis.

...

10 (1) A police officer may require a person who is liable under this Part to submit to the taking of a sample of blood for analysis or submit to a breath analysis or a medical examination to proceed to such place or into such vehicle by such means and with such person as the officer may indicate and there submit himself or herself to the taking of that sample or to that analysis or that examination.

(2) If a person fails or refuses to comply with a requirement made under subsection (1), or is in such a condition or behaves in such a manner as to give reasonable grounds for believing that he will not comply with the requirement, a police officer may take him into custody and convey him or cause him to be conveyed to some appropriate place, and there detain him or cause him to be detained, for so long as is necessary to enable a direction to be given to him under subsection (4).

...

(4) Where a person who is liable to submit to the taking of a sample of blood for analysis or submit to a breath analysis or a medical examination is at a place where, or in a vehicle in which, that sample can forthwith be taken or that analysis or medical examination can forthwith be carried out, a police officer may direct him or her there to submit to the taking of the sample or to the analysis or examination."

4 The learned magistrate found that in the course of the events that culminated with the applicant providing a breath analysis, Constable Stingel entered the applicant's residence uninvited, and applied force, albeit not any significant force, to him when she took hold of his arm and guided him outside. The learned magistrate expressly found that Constable Stingel trespassed when she entered the residence, and in finding that she applied force to the applicant when she took him outside, the learned magistrate recognised that Constable Stingel also assaulted the applicant. Against this background, the learned magistrate accepted that the admissibility of the evidence of the breath analysis was governed by the Evidence Act 2001, s138, which relevantly provides:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."

5 In concluding that the evidence was admissible as the desirability of admitting it outweighed the undesirability of admitting it, the learned magistrate:

• noted that it was conceded on behalf of the applicant that the probative value and importance of the evidence was high, s138(3)(a) and (b);

• said that the offence was serious, with potentially very serious consequences, s138(3)(c);

• said that in trespassing, Constable Stingel had caused no damage to the residence and that in escorting the applicant outside, she had caused no physical harm to him. The learned magistrate found that in acting as she did, Constable Stingel did not deliberately contravene the law, but had misunderstood her powers, as she believed she was entitled to pursue the applicant into his residence. The learned magistrate said that Constable Stingel's impropriety "was not at the high end of the scale", s138(3)(d) and (e); and,

• said that the right of a person inside his or her residence was well entrenched and ought not be arbitrarily impinged upon, s138(3)(f).

6 The learned magistrate's acceptance that the evidence of the breath analysis was obtained in consequence of an impropriety, or a contravention of an Australian law, was consistent with decisions such as Garwood v Schultz [1982] Tas R 120 and Tasmania v Lee [2005] TASSC 117; (2005) 15 Tas R 213, and this acceptance has not been challenged by the respondent. The impropriety flows from the absence of any entitlement in a police officer to enter private premises without consent to require the provision of a breath test for the purposes of the Act, s7A(1).

7 As to the approach to be taken to s138, the decision of the Court of Criminal Appeal in New South Wales in R v Camilleri [2007] NSWCCA 36; (2007) 169 A Crim R 197 underlines the importance of focusing on the balancing exercise called for, without being distracted by considerations of prejudice. That authority relates to the Evidence Act 1995 (NSW), s138, which is in the same terms as s138 in the Tasmanian legislation. In that case, the evidence relied on to establish a driver's blood alcohol content was derived from a blood sample taken from the driver in question by a nursing sister who told the driver that she had a legal obligation to take the sample. In fact, she was not so obliged, although it was found that she was acting subject to a misunderstanding that she was required to take the sample. In taking the sample, she was in breach of the law, and what she did was an invasion of the driver's personal rights. In the course of concluding that the evidence in dispute was not admissible by reason of s138, the trial judge placed reliance upon the significant prejudice that would flow to the driver from the admission of the evidence. On appeal, this was found to be an error. At par31, McClellan CJ at CL, agreed with by Bell and Howie JJ, said:

"In my view the approach which his Honour took was not appropriate. As Howie J made plain in R v EM [2003] NSWCCA 374 at [74]- [78] s 138 is concerned with balancing public interests. The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM Howie J said at [74]:

'The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.'"

The Court held that the evidence was admissible.

8 In the case before me, in his approach to the assessment to be made pursuant to s138, the learned magistrate did not place any inappropriate reliance on prejudice to the applicant. In the above quote from R v EM, Howie J refers to the assessment to be made pursuant to s138 as the exercise of a discretion. Whilst at common law such an assessment was categorised as a discretion, I do not consider that this categorisation is correct for the purposes of s138. As I explained in Tasmania v Salter [2007] TASSC 33 at par15, the requirement that the evidence is not to be admitted unless the desirability of admission outweighs the undesirability of admission, gives the judge no discretion. It requires an evaluation and comparison of these matters and a determination of whether the desirability outweighs the undesirability. This is much the same balancing exercise as arises under ss97(1), 98(1) and 101(2) which relate to the admission of tendency evidence and coincidence evidence (R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 and L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at pars52 - 53 and 79 - 82), and s137, which relates to the exclusion of prejudicial evidence (Director of Public Prosecutions v Lynch [2006] TASSC 89 at par18).

9 For present purposes, I do not find it necessary to embark on a consideration of the issue of whether a review of a decision of the nature of that in contention is subject to House v The King [1936] HCA 40; (1936) 55 CLR 499 or not. As to that issue, see L v Tasmania (supra) at pars52 - 55 and pars84 and 85. The fundamental concern raised by s138 is the need to address the competing interests of obedience to the law in the gathering of evidence and the enforcement of the law in respect of offenders. In this case, the learned magistrate found that Constable Stingel did not deliberately contravene the law, and misunderstood her power. These are important factors in tipping the balance in favour of admitting the evidence in contention. Against the background of these findings, I agree with the learned magistrate that Constable Stingel's impropriety and breaches of the law were not at the high end of the scale. In saying this I am mindful that, at the time of this incident, the application of the law governing the right of, indeed obligation of, a police officer to enter private property in the execution of the officer's duty was not straightforward. This is not to say that a person who was astute to the intricacies of the law in this area would not, upon checking, have established that a police officer was not entitled to enter private property without consent in order to require a person to undergo a breath test for the purposes of the Act, s7A(1), and that an officer was not entitled to arrest a person without warrant for failing to comply with a direction or a request made pursuant to that provision. As to such a person, that power only arises if the person refuses to state his name and address, or states a name and address that the police officer reasonably believes to be false, s15(3). The Act, s5(1), (1AA) and (1A) confer powers of arrest without warrant in a variety of other circumstances that are not directly related to s7A(1). Nevertheless, as the learned magistrate found, Constable Stingel was acting as she believed she was entitled to and, in my view, her circumstances did not afford her the time to review that entitlement.

10 With reference to the difficulty, at the time of the incident in question, of establishing the rights of a police officer to enter premises in the execution of the officer's duty, I mention the following. Except where provided for by the common law or by statute, police officers have no special rights to enter private land; Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at 10 and Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 647. Police officers, like other members of the public, have a revocable implied licence to enter private land for a legitimate purpose. In the case of a police officer, this licence has been held to extend to entering private land in order to effect an arrest on a driveway leading to a residence, Halliday v Nevill (supra) at 8. At common law, a police officer is empowered to enter private property to effect an arrest without warrant. This right of arrest is a right to arrest without warrant any person the officer suspects on reasonable grounds of having committed a crime. The right does not extend to the arrest of a person who is guilty of, or suspected of being guilty of, a non-indictable offence, except where an actual breach of the peace involving violence has just been, or is, occurring, Halliday v Nevill (supra) at 12. A police officer's common law powers of arrest are largely reflected in the Criminal Code, s27, which does not however expressly authorise a police officer to enter private property to effect an arrest. Nevertheless, in Dowling v Higgins [1944] Tas SR 32 Morris CJ held that concomitant with a police officer's right and obligation pursuant to the Code, s27(6) and (9), to arrest without warrant any person seen committing a breach of the peace, or who is believed on reasonable grounds to be about to commit or renew a breach of the peace, that there is a non-expressed entitlement to enter private property to effect the arrest. Whilst this authority clarified the law for the purposes of the Code, s27, that section is far from being the sole source of a police officer's powers of arrest.

11 The incident in question occurred on 27 March 2006. The Tasmanian Law Reform Institute's Issues Paper No 10 "Consolidation of Arrest Laws in Tasmania" ("the Institute's report") was issued in July 2006. As noted in the Institute's report, par2.21, at that time, in addition to the arrest powers in the Code and the Police Offences Act 1935, there were more than 70 legislative powers of arrest without warrant in over 30 different statutes. With occasional exceptions such as the Poisons Act 1971, s90E(1), the Misuse of Drugs Act 2001, s32, the Family Violence Act 2004, s10(4) and (7), and the Justices Act 1959, ss106I(2) and 106L(2), legislative provisions that conferred a power of arrest without warrant were rarely accompanied by an express right to enter private property to effect the arrest. Nevertheless, that right could be implied. Some statutes had been construed as containing such a right, whilst others had not; Halliday v Nevill (supra) at 14 - 16, Plenty v Dillon (supra) at 644 and (supra) at 124 - 127. As pointed out by Cox J (as he then was) in (supra) at 125, Australian judges had on a number of occasions construed an enactment conferring a power of arrest without warrant as impliedly authorising a power to enter into private premises for the purposes of effecting the arrest. Accordingly, at the time of Constable Stingel's impugned conduct, there was room for conjecture about when a police officer, entitled to arrest an offender without warrant, could enter private property to do so. This was because the existence of a right of entry was dependent upon what could be implied from the statute conferring the power of arrest. It seems inevitable that this would have caused some uncertainty amongst police officers about their entitlement to enter premises in the course of their duties. Fortunately, the legislature has addressed a significant aspect of this cause for uncertainty by enacting the Code, s26A, which provides that a police officer may enter (using reasonable force if necessary), remain on, and search premises, including a conveyance for the purpose of making a lawful arrest, without a warrant. That section came into force on 1 November 2006, which is subsequent to the incident in question. The enactment of that provision is in line with proposal 10 of the Institute's report. Unfortunately, the potential for confusion that arises from the many and varied legislative sources of a police officer's powers of arrest without warrant, and the different tests to be applied in the exercise of those powers, remains. The Institute's report included a proposal that the various arrest powers be consolidated into one statute, but this proposal has not been acted on. This outcome appears to have been anticipated by the Institute, as in its report at par2.3.1 it said:

"In 1977 the Law Reform Commission of Tasmania prepared and published a report on the consolidation of powers of arrest, search and bail. In making the reference to the Law Reform Commission, the Attorney-General of the day sought an inquiry and report 'as a matter of urgency'. The Report reviewed the existing law in Tasmania, which even then, scattered the powers of arrest amongst various acts, regulations and by-laws. The report recommended that the law in relation to arrest and search be codified in a new statute. ... Despite the 'urgency' for reform expressed at the time of the Report, the recommendations for codification were never adopted."

12 I have digressed more than is necessary in explaining why I agree with the learned magistrate's decision. I agree with his assessment of the gravity of Constable Stingel's impropriety and her breaches of the law in the course of obtaining the breath analysis evidence in contention, and I agree with the weight he gave to these matters in determining that the desirability of admitting the evidence so obtained outweighed the undesirability of admitting evidence obtained in the way Constable Stingel did.

13 The appeal is dismissed.