East v The Queen [2009] HCATrans 157 (25 June 2009)

Last Updated: 2 July 2009

[2009] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B42 of 2008

B e t w e e n -

NEIL FRANK EAST

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 12.24 AM

Copyright in the High Court of Australia

MR N.V. STUBBINS: May it please the Court, I appear for the applicant. (instructed by Locantro Lawyers)

MS W.J. ABRAHAM, QC: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions (Brisbane Office))

KIEFEL J: Yes, Mr Stubbins.

MR STUBBINS: Thank you, your Honour. Your Honour would note from the application book in respect of the applicant and respondent’s outlines of argument the points raised in the applicant’s summary of argument as to trespass were not argued at the trial and I concede, after speaking to my learned friend, they were not argued at the appeal either. So this is a situation, your Honour, that those points in respect of the applicant’s summary of argument come before the Court for the first time.

KIEFEL J: How do you overcome what some regard as a rather insurmountable hurdle?

MR STUBBINS: It is certainly a difficult hurdle, your Honour. I am relying on Fingleton v The Queen. Firstly, as a general proposition of law, your Honour is going to be well aware there is no constitutional inhibition for your Honours to entertain an appeal under the Constitution upon grounds raised for the first time in Court that special leave to appeal on such grounds is to be granted only in exceptional circumstances. Your Honour, in that particular case – that was a case where being one - - -

KIEFEL J: Do you have the citation for Fingleton’s Case?

MR STUBBINS: Yes, your Honour, I do.

KIEFEL J: Perhaps you could read it into the record.

MR STUBBINS: Yes, your Honour. [2005] HCA 34; (2005) 227 CLR 166.

KIEFEL J: Thank you.

MR STUBBINS: Your Honour, for the sake of brevity I am reading from a headnote summary as far as that particular case being one in which the appellant may have had available to her a point of law which was a complete answer to the changes against her. The point could be raised for the first time in the appeal. I am submitting, your Honour, in respect of this case simply that if any of the points of law in the present appeal were available to the applicant and they were a complete answer to any of the charges against him then those points can be raised for the first time in this application.

Secondly, your Honour, in respect of the matter being of general principle and of exceptional public importance, I am submitting this matter is of general importance and exceptional public interest in that it is the right of a private individual to, in the quaint words of Lord Denning:

bid defiance to all the forces of the Crown . . . all his force dares not cross the threshold of the ruined tenement. So be it - unless he has justification by law.

BELL J: I do not know that there was legislation in England, the equivalent of section 19 of the Police Powers and Responsibility Act.

MR STUBBINS: That is true, your Honour, but the basis of section 19 of the Police Powers and Responsibility Act goes back to the Criminal Proceeds Act which was the original legislation giving rise to a right to serve written notice, give written notice, in the terms of that section. My argument, your Honour, is going to be to the effect that we have to go back to the original legislation and that has to be unambiguous in unmistakable terms.

KIEFEL J: Why do you have to back to the original legislation?

MR STUBBINS: Your Honour, because I am relying on the proposition that – and that was what I was going to raise in the case of Plenty v Dillon, which is where their Honours came to the view, and it was by majority, that any provision in legislature that intends to authorise what would otherwise be tortious conduct must be expressed in unmistakable and unambiguous language. Your Honour, my proposition and my submission is that the actions of the police officers to AFP officers after they were told to leave the applicant’s premises was trespass and in those circumstances, in order for them to be justified in staying on the premises in those circumstances, that the language of the legislation has to be express or clear and unambiguous.

KIEFEL J: What is unclear about section 19(4) of the Act which says:

a police officer may enter and stay for a reasonable time on a place to serve a document.

MR STUBBINS: Your Honour, dealing specifically with – you are talking about the Police Powers and Responsibilities Act, your Honour?

KIEFEL J: Yes.

MR STUBBINS: Your Honour, that refers to “serve a document”. Your Honour would note the facts in Plenty v Dillon were specifically in relation to authority under the Justices Act in that case, where they were able to serve a document. It was held, your Honour, there was no dispute that to serve a document did not entitle police officers to enter property. They entered property under an implied licence, to go there until such time as the owner of the property told them that they could not stay and from that point in time, your Honour, if they remained on the property they were trespassers. So in respect of section 19 of the Police Powers and Responsibilities Act, your Honour, that refers only and gives police officers only the right to serve a document. Your Honour, the original Act only gave the AFP a right to give written notice - - -

KIEFEL J: Is that not what the officers were trying to do, serve an order of the District Court?

MR STUBBINS: They were trying to serve a document.

KIEFEL J: A restraining order?

MR STUBBINS: Yes, your Honour, they were. They were attempting to give, under the Proceeds of Crime Act, written notice of that relevant restraining order to a corporation.

KIEFEL J: I am sorry, I just do not quite understand your argument about why they may not then fall within section 19(4).

MR STUBBINS: Your Honour, in order to fall within section 19(4) you have to follow – if I could go to the respondent’s outline of argument, your Honour, and if I refer your Honour to – as your Honour is well aware - paragraphs 47 to 52. Your Honour, to get to section 19 of the Police Powers and Responsibilities Act we have to go by way of a circuitous route from the Proceeds of Crime Act to the Australian Federal Police Act then down to the Police Powers and Responsibilities Act.

KIEFEL J: Why do you have to do that?

MR STUBBINS: Your Honour, on its own, without the other two Acts the Australian Federal Police would have no power to serve documents in Queensland on corporations - - -

KIEFEL J: Well, no, I understand why you have to refer to the legislation which gives the Australian Federal Police the same powers as Queensland police officers. But why do you have to read the Proceeds of Crime Act with it as well?

MR STUBBINS: Because that, your Honour, is the original legislation that gives rise to the right of the Australian Federal Police to even hold a written notice - - -

KIEFEL J: So, what difference do the provisions of the Proceeds of Crime Act make to the plain reading of the Police Powers and Responsibilities Act?

MR STUBBINS: Two points in respect to that. Firstly, your Honour, and that was my original argument your Honour picked up on that my submission is that we have to rely on the original legislation in light of the authority of Plenty v Dillon and Coco and going back to – we referred your Honours to.....Case, your Honour, that the language of the legislation that would authorise the Australian Federal Police officers to go on to those premises has to be unmistakable, unambiguous and in Plenty v Dillon, your Honour, express. My submission is, your Honour, by going through such a circuitous route to get to section 19 of the Police Powers and Responsibilities Act it is not express, it is not unambiguous and it is not unmistakable.

Secondly, your Honour, the second point I would make and I did make that before – your Honour may have misunderstood me – but it was a case that section 19 in its entirety only gives police officers – State police officers and hence from your Honour’s approach, Australian Federal Police officers – power to serve a document. Now, I go back again, your Honour, to Plenty v Dillon which, in fact, was on point, on a factual basis in that where the police officers in that case were going to serve a document that was held to be, in those circumstances, your Honour, a trespass. They trespassed on a property. So in this particular - - -

BELL J: But did Plenty v Dillon involve legislation, the equivalent of section 19 of the Police Powers and Responsibilities Act?

MR STUBBINS: It did, your Honour, analogous legislation. From my recollection that is the case.

KIEFEL J: I think you had better take us to Plenty v Dillon [1991] HCA 5; 171 CLR 635.

MR STUBBINS: That was my next point, your Honour. It is summarised to some extent – and I would be accepting the respondent’s outline of argument – on paragraphs 44, 45, 46 and 47. As you requested, I will take your Honour to page 648 – Justices Gaudron and McHugh - the last paragraph:

A number of statutes also confer power to enter land or premises without the consent of the occupier. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise be tortious conduct -

That, in my submission, is even stricter than the outline of argument of the respondent, who refers in paragraph 47 to “Such unmistakable and unambiguous language”. When that submission is made, that that unmistakable and unambiguous language is found in section 9, my submission is that it is not unmistakable and unambiguous.

My example, your Honours, would be that as far as unmistakable and express language – my example in respect of that would be that the DPP, if we went back to the original legislation – that is section 33 of the Proceeds of Crimes Act – must personally serve a restraining order covering property that a person owns on that person.

In my submission, that is express language. In my submission the language of section 33 as it is which is giving written notice that leads then on to the Australian Federal Police Act and then section 19 of the PPRA 2000 is not express language in terms of the authority of Dillon v Plenty.

KIEFEL J: I am sorry. I do not understand your point about section 33 of the Proceeds of Crimes Act.

MR STUBBINS: Your Honour, my original submission was that by way of a circuitous route we come to section 19 of the Police Powers and Responsibilities Act. Your Honour’s question was why does that not give express power to those two AFP officers who served that document on the premises.

KIEFEL J: Yes. What bearing does section 33 of the Proceeds of Crimes Act have on that, apart from obliging the Director of Public Prosecutions to serve a written order?

MR STUBBINS: To give written notice. What bearing? I am sorry, your Honour.

KIEFEL J: What bearing does it have upon a reading of the power given by section 19, or that provision read as an excuse against – for what might otherwise be a trespass?

MR STUBBINS: Your Honour, I go back to my original argument, that we must go to the legislation that gives rise to the right of the DPP’s officers – the AFP – to go on to the premises. That is section 33 of the Proceeds of Crime Act. That is my submission, your Honour – that in order to get the result the respondent is seeking you have to read the three pieces of legislation chronologically.

KIEFEL J: Are you saying that makes it too difficult or it makes it confusing or something, do you?

MR STUBBINS: Your Honour, I am just saying it is not express. My second point in respect of that is that at the end, even assuming the case that it is unambiguous, it is unmistakable - - -

KIEFEL J: I think it is only section 19(4) read with section 9 of the Australian Federal Police Act that you have to be concerned with.

MR STUBBINS: It is, your Honour.

KIEFEL J: What you have to direct your mind to and address is why section 19(4) is not itself perfectly clear in its terms.

MR STUBBINS: Your Honour, it is perfectly clear in its terms. I accept that and I again go back to Plenty v Dillon, which was a case - - -

BELL J: I think, Mr Stubbins, your difficulty is that in Plenty v Dillon in the joint reasons of Justices Gaudron and McHugh, it was pointed out that police officers have no greater power than anyone else to enter upon land or premises without consent, absent a statutory foundation. So some years after the decision in Plenty v Dillon the Queensland Parliament legislated to provide that statutory foundation, making clear in subsection (1) that the purpose of the section was to ensure a police officer performing a function of the police service may enter and stay on a place in circumstances that may otherwise be trespass. That was the intention of the provision.

MR STUBBINS: I agree it specifically refers to trespass, your Honour. So that revision in those circumstances was enacted solely for this reason. But where my argument lies is the fact that the original legislation is not clear and unmistakable. The initiating legislation when we get to section 90 was not in in itself sufficiently express terms to then lead to section 19. That is my submission – that the original legislation is the one we have to look at and because it was ambiguous to the extent of giving a written notice, your Honour would note the point that the police officers indicated that they could easily just serve the notice by way of registered office, which they in fact did. It would be the case it is ambiguous in that original legislation that giving of written notice had to be done by way of personal service upon a director of the company. My argument, I suppose, is the fact that why did not the AFP just go and serve it on the registered office, which

they finished up doing in the end anyway, and not serving it personally upon the Director.

KIEFEL J: I am not sure how that bears on your argument.

MR STUBBINS: How that bears on the argument, your Honour, is the ambiguity of the original legislation.

KIEFEL J: I think you have said that a number of times.

MR STUBBINS: Yes, of course, your Honour. Your Honour knows where I am coming from, and that is my argument in respect of why section 90 of the PPR is not applicable, but my second argument, your Honour, in respect of that is the fact of service of a notice, the fact that it allows to serve a document, made a place to serve a document. Your Honour, it does not expressly say that giving written notice is analogous to serving a document. Your Honour, to be express and unambiguous and unmistakable really should not the original legislation say, give written notice and then a definition section saying, give or be able to serve a document by way of personal service? That is where I am saying that the power under section 19 is also restricted. It is restricted to the extent of the principle that a man’s home is his castle, it is his fortress, and unless it is unambiguous and unmistakable - - -

KIEFEL J: I was hoping you would not say that, I thought we would hear about the vibes.

MR STUBBINS: Yes, your Honour, I refrain from that angle obviously, your Honour. That is my point in respect of that. If I can assist your Honour any further on that point.

KIEFEL J: Thank you. We need not trouble you, Ms Abraham.

The applicant for special leave was found guilty of two counts of unlawfully obstructing a Commonwealth official and two counts of unlawfully confining two Australian Federal Police officers. The offences arose out of attempts by those officers to serve a restraining order upon the applicant and others.

The applicant argued before the Court of Appeal that the officers were trespassers. He wishes now to argue that they had no lawful authority to remain on the premises when requested to leave. He should not be permitted to do so, given that he did not do so at trial or on appeal. In any event, the argument has insufficient prospects of success to warrant special leave. Special leave is refused.

Adjourn the Court until 10.15 am on Tuesday, 28 July in Canberra.

AT 12.34 PM THE MATTER WAS CONCLUDED