Roy v O'Neill [2020] HCATrans 135 (8 September 2020)

Last Updated: 8 September 2020

[2020] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D2 of 2020

B e t w e e n -

AILEEN ROY

Appellant

and

JULIE O’NEILL

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON TUESDAY, 8 SEPTEMBER 2020, AT 10.00 AM

Copyright in the High Court of Australia
MR P.R. BOULTEN, SC: May it please your Honours, I appear with my learned friend, MR P.D. COLERIDGE, for the appellant. (instructed by North Australian Aboriginal Justice Agency)

MR J.T. GLEESON, SC: May it please the Court, I appear with my learned friend, MR T.J. MOSES, for the respondent. (instructed by Director of Public Prosecutions (NT))

KIEFEL CJ: The record will show that Justices Keane, Edelman and I are physically present in Brisbane, and Justices Bell and Gageler in Sydney and we are sitting through the medium of courtroom 2 in Canberra. Yes, Mr Boulten.

MR BOULTEN: The central issue in the case concerns whether or not the police officers were trespassing or whether or not they had an implied licence to be there for the purpose that they were carrying out. The Court of Appeal’s decision is encapsulated by paragraphs [37] and [38] of their decision, which is in the core appeal book, pages 75 and 76. In paragraph [37] the court decided that the police officers were present for a lawful purpose because they had an implied licence to be there from the occupier.

We suggest that that was an error. That is caught up by the first ground of appeal in our notice of appeal, which is on page 88 of the core appeal book. The court also concluded at paragraph [37] that the police were there for a lawful purpose, the lawful purpose being:

for the purpose of lawful communication -

They concluded that there was a dual purpose, namely:

to determine whether the terms of a DVO were being honoured and to check on the well-being of the protected person -

We say that the former of those reasons was the true reason they were there. There was no dual purpose. Alternatively, the purpose which was to check on the protected person was a complete consequence of the real purpose. The court’s reasoning is an error that we pleaded by way of ground 2 in our notice of appeal. We say also that paragraph [37] contains another error towards the bottom of page 75 of the core appeal book. The court said that the police officers’ actions:

did not involve interference with the occupier’s possession, or injury to the person or property of either occupier.

It was, we say, an error to conclude that. We contend that the police officers’ actions and their purpose in being present was essentially to investigate the appellant’s criminal liability. By doing so, they exposed the appellant to real risks of further entry into the premises, to a mandatory breath test, to arrest, to detention, to imprisonment if convicted in criminal proceedings.

It is necessary for the Court to consider whether this appeal is questioning the decision in Halliday v Nevill or not. It is our submission that our argument is completely consistent with the Court’s decision in Halliday v Nevill and that, as a consequence, the correct conclusion is that the police officers were trespassing. They were not there for a lawful purpose. Can I take your Honours to Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, which is in the joint bundle of authorities at page 168. Can I take your Honours to the book of authorities, page 175?

KIEFEL CJ: Which page of the report is that, Mr Boulten?

MR BOULTEN: That is page 8.

KIEFEL CJ: Thank you.

MR BOULTEN: I wish to highlight a number of critical facts in Halliday v Nevill which are important in determining its scope. The first is that the arrest target in Halliday v Nevill was not the occupier of the premises, he was a trespasser or lawful visitor. So, at page 8 of the report, towards the bottom of the page, the plurality said:

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.

The constables concerned were lawfully on the driveway. We submit, secondly, that it was relevant that the police in that case actually saw an offence committed and the offence was committed by somebody who was not the occupier of the premises. If I could take your Honours to page 5 of the judgment at about two‑thirds of the way through that first paragraph, their Honours noted the facts, that the constables drove along Liberty Parade:

they saw the appellant, who was known to [one of them] as a disqualified driver, reversing a motor car out of the driveway . . . 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.

So, the factual setting of this case is that the police actually witnessed a crime being committed.....the perpetrator of the crime retreat into premises. They were not his premises. They then followed him into the premises and undertook investigations into the offence that they had witnessed. That is not what was happening in this case.

EDELMAN J: Did the police in Halliday know that the premises were not the offender’s premises?

MR BOULTEN: I do not know. It is not clear, I do not think. Maybe they did, maybe they did not. It is not clear from the reports, your Honour.

EDELMAN J: Is it your submission then that a person who claims an implied licence needs to know who the occupier, or perhaps more accurately, the owner or lessee of the premises is?

MR BOULTEN: No, we do not say that. In fact, had they seen the occupier do what the appellant did in this case they would have been perfectly justified to do what they did in relation to the occupier. It is not necessary for the police to know who owns the premises or who is the occupier. The licence which is implied is deduced from the point of view of the putative occupier, not from the subjective viewpoint of the police who are investigating.

The third issue that is necessary to understand, we say, with respect, is that in Halliday v Nevill the officers concerned did not need to approach the premises to communicate with the occupier or to knock on the door or to exercise the lawful communication which was the subject of the ratio in the case. At page 8, again of the judgment, their Honours said that the question that arose in the case – and this is at about a quarter of the way down the page:

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.

The ratio of the decision is that:

The path or the 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 -

That much flows from the bottom of page 7 to the top of page 8. That is clearly stating that determining whether or not the police were trespassing focuses on a purposive set of considerations. The other premise is that it is legitimate for an officer to enter onto the driveway to question or arrest a person whom they had observed committing an offence on a public street where they had not a reasonable cause to do that.

With all of that in mind, we say that the general statements from the bottom of page 6 to the top of page 7 to the effect that the question whether an occupier has granted a licence to enter upon it is essentially a question of fact and the 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 the conclusion that any such implied or tacit licence was agreed or revoked is an important consideration.

The essence of the decision that the law will imply a licence in favour of a member of the public going upon the path or the driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to any person in the house is being used against us to, in effect, justify something much more than what was described here in this judgment as being lawful communication.

There never was a case where the police simply intended to knock on the door and to communicate, there was something more directed and purposive about the reason for being in the premises that day. So we submit that the statement that is relied upon by my learned friends as being the real essence of why the police were not trespassing is not dispositive in principle nor in the facts of this case. The majority in Halliday v Nevill were simply identifying what is lawful communication and delivery as to legitimate purposes, but neither lawful communication nor delivery arose on the facts of that case and neither does this case hang on that concept.

Secondly, in that case it was simply not argued or necessary to consider whether there was any greater scope to the licence than that which was identified at page 7 of the judgment. The thrust of the appellant’s argument in Halliday was essentially that the implied licence was limited to the case where the entrant’s business is with the occupier of the house and the facts of the decision were being attacked on the basis that the business was with a third person, not the occupier. And that is clear from Mr Merkel’s argument, which is summarised on pages 3 and 4 of the report, down the bottom of page 3, up to the top of page 4 where it was argued that:

In the absence of a locked gate or some other notice, the occupier of a dwelling‑house gives an implied licence to any member of the public, including a police officer, who has any lawful reason for doing so, to go through the gate and up to the door in order to enquire whether he may be admitted to the house or may perform some act on the land. But such a licence has always been limited to the case where the entrant’s business is with the occupier of the house.

That was the point of distinction that was being sought to be made in that case.

EDELMAN J: Mr Boulten, by “implied licence” do you mean a freedom from liability or trespass?

MR BOULTEN: In the absence of an express revocation of licence or some other obvious sign, literally a sign or practical step taken to exclude, then the implied licence is the only basis upon which someone can enter the curtilage and not be trespassing. So essentially, yes, your Honour.

EDELMAN J: If the trespass would be a trespass against the rights of an owner or a lessee, then does the term “occupier”, that you are using, extend beyond owners and lessees to other occupants of the premises?

MR BOULTEN: I do not think it does, your Honour. I think the whole thinking in all of the decisions is about somebody who is present as an occupier. It is about somebody who lives in a premises, lives in a house, it is where they normally reside. It is somebody who, whether for years or days, is lawfully in position of premises and what flows from their ability to be able to control who comes and goes ‑ so somebody who is not able to control who comes and goes, who might just be there for quite temporary reasons as a visitor may not have the same protections.

BELL J: Mr Boulten, you devote some focus in your written submissions to the contention that the reference in Halliday v Nevill to Robson v Hallett, while evidently approving that decision, the issue had not been agitated in Halliday v Nevill. If Robson v Hallett is accepted as stating the principle, namely, the police, like any other persons, have an implied licence to walk through the gate and knock on the door of the house, does that take away your argument?

MR BOULTEN: No, far from it, your Honours. If the ratio of Robson v Hallett is carefully considered it is a very limited licence which is implied. I might take your Honours to what Lord Justice Diplock said in Robson v Hallett to demonstrate exactly what it was that was being discussed and considered. In the book at page 364 you will find Robson v Hallett. Lord Justice Diplock’s judgment commences on page 953 of the judgment, and at the bottom of the page, page 378 of the book, his Lordship said:

There is no authority because no one has thought it plausible up till now to question them. The first is this, that when a householder lives in a dwelling‑house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business. Such implied licence can be rebutted -

But the licence is simply to knock on the door to seek permission to conduct business. It is a conditional licence, as it were.

KIEFEL CJ: Limited rather than conditional.

MR BOULTEN: Limited, yes. That has work to do when understanding exactly what the police did in this case and whether or not the appellant really did have the ability to be able to grant permission for them to continue with their business or not. When I get to point 5 of the outline I will just deal a little further with this point, Justice Bell. But we submit that the implied licence that would normally apply is a very narrow one, but it was not what the police were doing in this particular case.

BELL J: Mr Boulten, can I just clarify this. If a police officer knocks on the door of a person whom the police officer suspects may have committed an offence in order to ask that person whether he or she is willing to speak to the police officer, is it essential to your argument that that is an improper purpose or not?

MR BOULTEN: No, it is not essential to the argument. We do put the argument as high as that at times. But if that is wrong we say that there is a limit to what the officer can do, once having knocked on the door. If it goes past a question such as where were you yesterday, or do you mind if I ask you questions, then it is likely that it is going to be outside the scope of the implied licence if, for instance, it is investigating through the use of special powers reserved for the police under statute such as was contemplated or undertaken here.

KIEFEL CJ: At a practical level, Mr Boulten, if the purpose of the police officer was to inquire, as Justice Bell asked you, whether a person is willing to speak to that officer, or the other police with them, if the person says, no, that is the end of the implied licence, is it not?

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: So that, in a practical level, it is just up to the occupier or other person having control of the premises to say that the implied licence is revoked, effectively.

MR BOULTEN: If they can, your Honour. If it is possible, yes, but this was not such a case. The manner in which a licence is determined is the subject of some of the decisions that are in the book. We say that determining the scope of the licence involves ascertaining, as a matter of common sense, what it was that the occupier is agreeing to. We say that it is reinforced by public policy but not subordinated to or dictated by public policy. So, if I could take your Honours back to Halliday v Nevill at page 8, just before the halfway down the page point, their Honours said:

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 is, whether or not there was an implied or tacit licence to allow the police to set foot on the driveway, et cetera.

Now, common sense directs attention to the expectations of ordinary occupiers. There are various ways that the courts have put this and one way which might shed some light on the process of drawing of the inferences is the concept of customary invitation which Justice Scalia had regard to in his judgment in Florida v Jardines.

Can I take your Honours to Florida v Jardines? Your Honours should have received the authorised version today. A different version appears in the joint book of authorities. In this case, Justice Scalia delivering the judgment of the court, spoke about how the stroke of the licence is determined. If I could take your Honours to page 8 of the report. His Honour quoted from McKee v Gratz in the second paragraph:

“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” . . . We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” -

a quote from Breard v Alexandria. Then, on the next page, page 9, or perhaps at the bottom of page 8, his Honour having considered the ease with which the implied licence can be identified in various circumstances said at the bottom of the page:

Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”

But, at the top of page 9:

But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.

At the bottom of the paragraph:

Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.

Then, on the next page, page 10, halfway through the paragraph at the top of the page:

Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered.

In a similar way, the idea of what is customary, has been picked up here in this Court’s consideration of the way in which you imply the scope of the licence. As we have said in our written submissions, paragraph 23, Justice Brennan in Halliday used the term that the scope:

“is fairly to be implied. . . as an incident of living in society” –

Or according to Justice Dixon in Lipman v Clendinnen, that the licence:

“arise[s] from the known habits of city life.”

It is the putative occupier’s consideration, which is central to the process, as to whether or not it would be customary to invite someone to the house for the purpose that they are exercising.

It is put against us that in Tararo – a New Zealand case – it was determined that public policy considerations dictate what the nature and scope of the licence is. With due respect, that is not correct. It is not what the English cases seem to be saying and this Court has never said such a thing. Giving effect to public interests – such as the public interest in investigation and prosecution – is not a customary purpose that occupiers would normally consider to be something that they would contemplate.

EDELMAN J: Is that right, Mr Boulten? If there are a number of occupiers of one house, could it not be said that a customary understanding, or a social norm, is that one, two, maybe three of the occupiers, would have an interest in, say, the police knocking on the door to investigate one of the other occupiers? Or, at least, to ask questions – whether they can make inquiries about one of the other occupiers?

MR BOULTEN: Well, if there is no reasonable grounds to suspect or believe that any of the occupiers had committed any crime, I think it is reasonable to conclude that the occupiers would not normally hold out an invitation to the police to come around to check whether any of them have been committing any offences, whether there are offences committed elsewhere or in the premises, we submit.

Going back to Halliday v Nevill, where the Court did consider the manner in which the inference is to be drawn in determining the scope – I have lost track of the majority judgment’s consideration of that. If necessary, I will come back to it. We say, though, in an ordinary case lawful communication with the occupier is a legitimate purpose, but lawful communication does not mean any communication. Lawful communication is the communication that is necessary to make the occupier aware of the business on which the entrant comes and to seek the permission which is sought.

Finally, on that point, the facts of Robson v Hallett show that the officer in that particular instance, the sergeant concerned, did actually seek permission to enter the house. That is clear from the recitation of the facts at joint book of materials 366, page 941 of the judgment, where Sergeant McCaffrey explained why he had come and asked if he could come into the house and one of the defendants invited him in but not the other police who were present. It is in that context that Lord Justice Diplock made the statement of principle that he did at pages 953 and 954.

I can also take your Honours to Halliday v Nevill again in Justice Brennan’s judgment at page 19, where his Honour referred to Lord Chief Justice Widgery’s explanation in Brunner v Williams that lawful communication in this instance:

“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, to paragraph c of our outline of argument. Police actually are not normal members of the public. They do not enter the premises as if they are ordinary members of the public. The legitimacy of their purpose in entering is not determined on the fiction that they are just ordinary people. There is, in a very real sense, every time a police officer comes to a person’s house a real tension between their office and their purpose on the one hand and the person’s security on the other, as recognised by both Justice Brennan in Halliday and by the majority in Kuru.

So if I could take your Honours to Kuru, which is page 188 of the joint book of authorities. At page 15 of the judgment of the majority, they said, at the bottom of the page:

But as Brennan J pointed out in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings”.

That was the point that his Honour Justice Brennan made at page 20 of Halliday v Nevill in the second‑last paragraph on page 20. His Honour said:

The contest is not to be resolved by too ready an implication of a licence to police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for enlarging police powers of entry and search, but that is a matter for the legislature.

That is at the heart of our argument – those comments. Investigation has a special status in our law. Once the police embark upon an investigation, the accusatorial process has commenced. The investigation has a distinct significance. Unlike ordinary people, police have significant powers that include searching, arresting, seizure and compelling people to provide particulars or to submit to procedures. Once those powers are approved and attempted to be used, they may frustrate or nullify the utility of an occupier’s right to revoke a licence. They might render someone powerless to halt the process.

We say that it is contrary to the inference ordinarily to be drawn from the facts to conclude that there is a customary invitation to enter private residential premises for the purpose of investigating the occupier for criminal offence. That is particularly so if the investigation is intended to go past question and involves the use, or intended use, of coercive powers such as ‑ ‑ ‑

KIEFEL CJ: Mr Boulten, do you put – what is here being called “proactive policing” – on the same basis as investigation, in the traditional sense?

MR BOULTEN: Yes, your Honour, because the investigation was starting earlier than the crystallisation of a reasonable suspicion or a belief. But it was, nevertheless, an investigation. It was an investigation to determine, one way or the other, as to whether or not there had been the commission of a crime.

KIEFEL CJ: Is it a preliminary to an investigation then ‑ ‑ ‑

MR BOULTEN: It is an investigation – sorry, your Honour.

KIEFEL CJ: Is it a preliminary inquiry before an investigation, or is it part of it?

MR BOULTEN: Not in this instance it was not, your Honour. There might be cases where proactive policing is nothing more than something that happens before any investigation starts. But, where the proactive police operation itself revolved around the contemplated and intended use of mandatory breath tests, this was not a preliminary move towards an investigation.

KIEFEL CJ: Mr Boulten, I suppose one feature of this case that may set it apart somewhat from others is that it involves domestic violence orders and domestic violence is something which, experience shows, requires a certain level of policing beyond that which is ‑ what is also said here to be simply reactive. It requires supervision, to some extent.

MR BOULTEN: Even so, it does not follow that there is an understanding or a customary expectation or invitation that police will come to your house to supervise.

KIEFEL CJ: That is the question, is it not? Does your case really come down to this, your argument, that if there is a question about whether or not the mores of society have moved towards some supervisory role for the police in relation to domestic violence, the question is whether it is a question for the Court to determine that as a matter of legal principle or whether it is a matter for the legislature.

MR BOULTEN: Yes, and we say that it is not one of those cases, your Honour. It is not a matter for the Court to extend the common expectation of householders. It is not a time for an extension of the common law. If there are good reasons ‑ ‑ ‑

EDELMAN J: Mr Boulten, how could the Court do otherwise than state what the community expectations are? That is, on your case, entirely what founds the implied licence.

MR BOULTEN: The Court is entitled, of course, to have regard to what the public would normally expect. But it is what they would expect of their own home, not what they would expect of other’s homes, that is pertinent. It is the occupier’s expectation that needs to be the focus and it may well be that there are excellent reasons to allow police a supervisory power of people who are the subject of domestic violence orders that go well past what people would ordinarily expect otherwise but ‑ ‑ ‑

EDELMAN J: Mr Boulten, just on that point, can I just ask you when you say the “occupier’s expectation”, which occupier do you necessarily mean? If you have a domestic violence situation between, say, a perpetrator say by a husband upon a wife, is it the wife’s expectation or the husband’s expectation?

MR BOULTEN: It is the person who is the subject of the investigation.

KIEFEL CJ: What about the other person, Mr Boulten, who is sought to be protected by a court order, would that person perhaps having sought and obtained such an order be taken to imply a licence so that the police could come and check to see if the order has been complied with?

MR BOULTEN: That may well be possible but that is not the foundational facts in this case that would allow that conclusion to be drawn. In this case, the person who was protected by the order did.....the order. It was sought by somebody else. Secondly, it may well be the case that a husband living in the same house as a person, their carer, their partner, who is the subject of an order, might have very similar interests in the police not coming on a regular basis to check what was happening in their house.

It is a matter for a court to draw the necessary inferences from the foundational facts and it does not follow that in every instance that somebody is the subject of a domestic violence order that a court would draw the inference, necessarily, that the person getting the benefit of the order would welcome police to come to the house. In fact, many, many people the subject – who receive the benefit of such orders are either ambivalent to the police coming to the house or would be hostile to the police coming to the house and it would depend very much on the facts of the case before there could be an inference drawn.

BELL J: Mr Boulten, coming back to this question of an investigative purpose held by the police, if one were to posit an offence such as the kidnapping of someone and the police had information that the person was last seen in, say, a silver Ford utility, on your argument would it be open to the police to enter upon the front path, assuming that there is no notice to the contrary, and approach the entry and knock on the front door of every household of a list identified by the police of owners of Ford utilities of the kind described, in order to see if the occupant would agree to speak to the police concerning that man? Looking at it, if one accepts for the present the authority of Robson v Hallett, would that be, on your argument, an illegitimate purpose or would that be within a legitimate purpose?

MR BOULTEN: We accept, on our more narrow argument, that it would be a legitimate purpose if they went seeking permission to seek the information.

BELL J: In that case, can you explain how you distinguish the facts of this case if you are arguing – if the line cannot be drawn at whether the purpose is something broadly described as investigative, or not, how do you distinguish the present case from the case that I pose?

MR BOULTEN: To answer your Honour’s question ‑ we are now at paragraph 8 of the outline ‑ we say that in the circumstances of this case the entry was for the purpose of exercising the power to investigate a particular type of offence when the person to be investigated was identified and identifiable and where there was going to be a particular form of compulsion put into operation.

So it might be a good idea if I took your Honour to the regulation. It is regulation 6, which is in the respondent’s supplementary book of materials. The Domestic and Family Violence Regulations 2008 contain regulation 6, which provides that:

(1) A defendant must comply with:

(a) a reasonable direction . . . to submit to a breath test ‑

That was the regulation that the police were going to put into operation when they went to the premises. If I could take your Honours to the judgment of Judge Woodcock in the Katherine Local Court, which is in the core appeal book at page 7. If I could take your Honours to page 8, which is the second page of the document, at line 22 his Honour found that the officers, Constables Elliott and Dowie, were:

conducting proactive domestic violence prevention duties. To that end, they attended at –

the address:

for the purpose of conducting a check, in relation to compliance of that order.

So, the finding of the Court – not in dispute, really – is that the purpose of attending was the purpose of conducting a check. Then, on the next page, at line 9, his Honour found that Constable Elliott:

did not endeavour to . . . confect the state of mind that he had into something more. She –

the appellant:

was merely a person of interest to him. And he purported to exercise reg 6 of the Domestic and Family Violence Act –

It should be regulations:

in undertaking his activities that day.

Then, if I could take your Honours to the evidence of the officers, which is included in the appellant’s further book of materials. Firstly, to Constable Elliott’s evidence, which is at page 12 of the book and page 9 of the transcript. At line 20, he was asked in‑chief:

Sir, what power were you exercising when you went to the property that day, to check . . . What power were you exercising on that occasion, when you went to the residence?

He said:

Your Honour, we are – going to the residence, there’s actually a court order in place for domestic violence, in relation to a non‑intox condition but states that the defendant –

which is Ms Roy:

is required to provide a sample of breath or testing for analysis to a police officer upon request. One of the powers that I use for that is using regulation 6, where you can request someone to provide a breath test, which is basically to determine whether there’s a presence of alcohol in the person’s breath –

And, indeed, it is a condition of the domestic violence orders that the appellant had to comply with that request but did not need to do so.

KIEFEL CJ: Mr Boulten, how did the domestic violence order come about - not through the actions of Ms Roy’s partner, I take it, but was it the authorities – the authorities brought it about or ‑ ‑ ‑

MR BOULTEN: We do not know. It is not clear from the materials and it was not clear from the evidence.

BELL J: Mr Boulten, if a person is on a bail that is conditioned on abiding by a curfew and a police officer calls to the person’s house and knocks on the door and asks whether the person is at home, is that an improper purpose, rendering a police officer a trespasser?

MR BOULTEN: It is a problematic issue and the answer might depend on whether there was a condition of the bail that allowed the police officer to go and do that or more particularly required the occupier to comply with a request or demand to present himself at the door. But, normally, police officers going around to check if somebody is at home would not be something that a normal occupier would expect the police to be doing.

KIEFEL CJ: I thought most members of the community would be happy if bail conditions were enforced and supervised. Is that not an expectation we can assume?

MR BOULTEN: They might not be so happy.....they were thinking about their own. If it is somebody else’s they might more readily accept someone might want to do it but if the focus is on what they would do, would they invite the police to do that, they might not readily be inferred to do that, in my submission. Can I just go back to the evidence there, though, in this case ‑ ‑ ‑

KEANE J: Mr Boulten, just going back to your last answer, even in a case where the likely outcome of a failure to co‑operate on the part of the bailed person might lead to an application for the revocation of bail.

MR BOULTEN: Sorry, I just missed the last bit of your Honour’s question.

KEANE J: In relation to your last answer, would you give the same answer if one were to suggest that a failure on the part of the person with the benefit of the bail order to co‑operate in relation to meeting his or her bail conditions might lead to an application to revoke the bail?

MR BOULTEN: Yes, your Honour, even more so. Returning, if I might, to the evidence in this case, back on page 12 of the appellant’s book of further materials and Constable Elliott’s evidence, at line 38 he described what he did when he got to the premises. He knocked on the door and he could see Mr Johnson at the back.

There was a couch right against the wall. And, Ms Roy appeared to just sort of laying on the ground. So, I called upon her to come to the door, for the purposes of a domestic violence order check.

So I interpolate, there was no permission sought, no question “Do you mind if I ask you a few questions?” or “Would you mind telling me whether you have had anything to drink today?” She was summonsed, as it were, to the door and told it was for the purpose of a domestic violence check. She got up from the ground, went to the door. She opened the door and then she was advised:

I would like to conduct a domestic violence order check.

She was told that part of her conditions was to provide a breath test upon request. The request was actually a demand. It was a requirement under regulation 6, which is clear from the top of the next page, when he was asked:

Did you require her to do anything, as a result of your observations ?---Yes. I required her to provide a breath test, your Honour, in relation to the domestic violence order.

In a similar vein the other police officer who was there, Constable Dowie, gave evidence. At page 13 of the transcript, 16 of the book, at the bottom of that page the prosecutor asked in‑chief:

And, when you went to the unit that what power were you exercising to go to that area?---We weren’t exercising any power to attend that specific address. We were just using tacit consent to enter the complex and approach the front door.

Then, at line 11:

What was it that you did, as a result of that?‑‑‑I observed Constable Elliott speaking with Ms Roy. I observed him to ask her to submit to a breath test on a handheld breath test device, as per her domestic violence order conditions.

So his description is of Constable Elliott requiring the appellant to submit to a breath test as a result of being told that is what the officers were checking. In cross‑examination, on page 15 of the transcript, the last question at line 27 suggested to Constable Dowie that he was there to conduct proactive domestic violence order compliance checks as part of Operation Haven. He answered:

Yes, at that complex, that’s the only reason why we had attended that address.

So it is submitted that the evidence justified the judge’s finding that the purpose essentially was to attend for the compliance check and that would involve the exercise of power under regulation 6. We submit that this was not the type of lawful communication which was envisaged in Robson v Hallett or in Halliday v Nevill. It is something quite different.

The appellant was obliged to comply with the request. If she had refused, then that would have given rise to the officer’s use of another power, which is in the Police Administration Act. If I could take your Honours to that Act, which is in the joint book of authorities, page 118.

Refusing to undergo the breath test would itself have been an offence under section 120 of the Domestic and Family Violence Act and under 121 it would have been punishable by a term of imprisonment with a maximum penalty of two years and, in some instances, where there is a record of a conviction and sentence of a previous similar type of offence, a mandatory sentence of at least seven days, albeit rebuttable. Under the Police Administration Act, section 126(2):

a member of the Police Force may, without warrant, arrest –

somebody or:

may enter, by force if necessary . . . for the purpose of arresting the person if the member believes on reasonable grounds that the person has committed an offence punishable by a term of imprisonment exceeding 6 months -

So that the appellant would have been liable to entry and arrest under that provision or, alternatively, under section 126(2A), which allows police to:

by reasonable force if necessary, enter a place if he believes, on reasonable grounds, that –

among other things, (b):

a contravention of an order under the Domestic and Family Violence Act has occurred -

and upon entry they can undertake a number of actions, including (c), (d), (e) and (f), which are set out there. Further, under section 123 of the Police Administration Act the officer, seeing the offence having been committed, may arrest and take into custody a person if the officer believes they have committed an offence, on reasonable grounds.

So, we say that the appellant had no ability to revoke any licence and that any attempt to refuse would have led to even more drastic action, indeed, the same action that was taken as a consequence of her being required to undergo the breath test.

EDELMAN J: Is that right, Mr Boulten? Is there no ability to revoke a licence or is there an ability to revoke a licence but once the powers under the Police Administration Act come in to play, there is no ability to revoke or to negate those powers?

MR BOULTEN: We say the latter, but it is practically disempowering of the appellant in those circumstances. The right to control who is at the front door becomes nugatory, essentially. It evaporates. Moving to paragraph 9 of this outline we say, and I might need to remember this, in paragraph 9, I have referred to “[6](a)‑(c)” – it should read “paragraphs 8(a) and (b)” that appear immediately above it.

We say, for those reasons, the purpose of the entry interfered with the appellant’s right to control access by others. That, we say, is a fundamental breach of her right to occupy her own home and we call in aid time‑honoured principles that his Honour Justice Gageler referred to in paragraph 120 of Smethurst and we will not take your Honours to it, but we say, therefore, the police officers were trespassing.

KIEFEL CJ: Mr Boulten, that might be a convenient time for the Court to have its morning break.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ: Yes, Mr Boulten.

MR BOULTEN: The final topic concerns the contention that there were dual purposes for the police officers’ entry. We say that there truly was only one purpose. The concern for Mr Johnson was not a separate purpose. It was what motivated one of the officers to be interested in checking on the appellant’s compliance. That was what the original trial judge found. So any purpose that related to the welfare of the person being protected by the orders was purely consequential upon the officers undertaking the check that they went there to undertake.

The evidence does not suggest that either of the officers said anything to the person being protected by the order. There was no inquiry made of him or about him. True it is that it is in his interests that the orders be complied with, but the focus was a singular focus. If, though, we are not correct in that argument, we say that the actual purpose – the dominant purpose, or the motivating purpose was a prohibited purpose and that the welfare purpose was subsidiary to that. We say that in those circumstances one purpose being a prohibited purpose cannot be remedied by one purpose being not prohibited.

If the scope of the licence is such as to exclude, putatively, police attending for the purpose that we say is prohibited, the problem is not remedied by that purpose being accompanied by a second or secondary purpose. That seems to be what has been decided previously.

We rely in this instance on Chief Justice Spigelman’s judgment in TCN Channel Nine v Anning (2002) 54 NSWLR 333. It is in the joint book of authorities, commencing at page 412. His Honour’s judgment was the leading judgment. President Justice Mason agreed. So did Justice Grove. If I could take the Court to paragraphs 50 and 51 on page 344 of the judgment. There, his Honour referred to Halliday v Nevill and then to Justice Young in Lincoln Hunt Australia v Willesee. Quoting Justice Young:

most implied invitations will be held to be for limited purposes and in such cases an entry unrelated to those purposes will be a trespass right from the moment of entry”.

I would add that such “limited purposes” will generally only confer permission to enter “exclusively for the particular purpose”, to use the terminology of Brennan J and Deane J in Barker v The Queen . . . for the resolution of the issue of multiple purposes.

We say that is consistent with the majority judgment in Kuru, at page 17 of that judgment, which is on page 204 of the joint book of authorities. In paragraph 51 the majority said, halfway through the paragraph:

Further, the State’s submission that police may enter for “preventative and investigative purposes” would, by its reference to “investigative purposes”, extend the power much further than any description of common law power given in the English cases. There is no basis for making that extension. Whatever may be the ambit of the power of police (or a member of the public) to enter premises to prevent a breach of the peace, that power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened.

We say, by analogy, the same thing applies to the general position of police investigating crimes, as opposed to breach of the peace and, in particular, it applies to the facts and circumstances of this case.

The last thing that I wish to submit is to return to the effective heart of our argument. The scope of the licence is to be implied from the point of view of the person occupying the premises. It is not to be implied from the point of view of the general public or someone else not directly interested in maintaining the peace and the privacy of their own home, nor is it to be drawn from any public policy role, apart from how that might affect the drawing of inferences from the putative position of the person who is at the centre of the operation of the implied licence.

KEANE J: Mr Boulten, why would we take that perspective, given that it would make trespassers of people who are perfectly innocent entrants and given that it is obviously in the power of the occupier to negate the implied licence just by putting up a sign?

MR BOULTEN: Well, your Honour, if the person has the power to revoke and is given an opportunity to do so, that is one thing. It may well be that our less‑expansive argument is a better argument, but the fact of the matter is where police go to a house with no intention of seeking permission to do anything, and with every intention of requiring somebody to comply with a mandatory power, that is a trespass.

KEANE J: Yes, but I am just asking you, in point of principle – you contend that, in point of principle, you should address the problem from the perspective of the occupier. What I have suggested to you is that that would seem to be the wrong way to look at it, given that the occupier has all the power that the occupier needs to ensure that a potential entrant does not, through no fault of their own, commit a trespass.

MR BOULTEN: Well, your Honours, to regard the scope of the licence from any other perspective would be a major change in the common law. In my respectful submission, the Court should not venture down that path. It might be that there is a need for statutory amendments but it would not, in my respectful submission, be in conformity with the prior decisions of this Court and English courts to have regard to what powers police have in entering a person’s house from the point of view of anybody else than the person who has the power to set the scope of the invitation, namely, the occupier.

GAGELER J: Mr Boulten, can I ask you a question that goes back to your factual submissions and it is really just a structural question? Can you tell us the nature of the appeal from the Local Court to the Supreme Court? Is it an appeal by way of rehearing or by way of hearing de novo?

MR BOULTEN: Sorry, your Honour, the appeal to the Supreme Court is on a question of law.

GAGELER J: I see. So where does that – that is really – I did not know it would be so confined but where does that leave your factual contention then? Is it something you can raise?

MR BOULTEN: Yes, it is, your Honour. We succeeded in the Local Court. It was the prosecutor who appealed to the Supreme Court. It was not our appeal to the Supreme Court. We were successful in the Supreme Court on the facts as found by the initial judge at the Local Court.

BELL J: So we are to approach the matter upon Judge Woodcock’s finding at page 8 of the appeal book line 23:

They were conducting proactive domestic violence prevention duties. To that end, they attended at [the premises] . . . for the purpose of conducting a check, in relation to compliance of that order.

MR BOULTEN: Yes, your Honours.

BELL J: Do we have a finding in relation to the submission you made respecting Officer Elliott’s evidence of his intention to carry out a breath test?

MR BOULTEN: The closest it gets is page 9 of the appeal book, lines 9 to 12. It did not confect his state of mind, that he had something more:

And he purported to exercise reg 6 ‑ ‑ ‑

GAGELER J: Justice Mildren addressed that finding or, at least, that statement in substance at paragraph [45] of the judgment and says that the learned judge really means no finding of the kind that you would have us understand. So, the question is what is to be found in the primary judge’s judgment, is it not, on a question of law? It is not what is to be made of the evidence.

MR BOULTEN: It is the judgment, your Honour. There was no finding by Judge Woodcock that there was a dual purpose.

GAGELER J: Thank you.

MR BOULTEN: That is all I wish to submit.

KIEFEL CJ: Thank you, Mr Boulten. Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Your Honours will see from our outline that I propose first to make some submissions in paragraphs 2 and 3 about the implied licence in general, in particular to deal with Mr Boulten’s submission that the licence is to be implied solely from the viewpoint of the person occupying the premises and no wider considerations are in play. I then, in paragraph 4, propose to deal with the licence as it applies to police and then in paragraphs 5 and 6 deal with the two grounds of appeal, if that is convenient.

Could I start with Halliday v Nevill, which is in Part C at the foot of page 6 of the Commonwealth Law Report or page 173 of the book. For these five propositions, the first being that the licence is implied as a matter of law, where a particular circumstance exists, namely the means of access to the private dwelling is left unobstructed or unlocked, we emphasise there that, while the ultimate question is one of fact, the law raises the licence when those circumstances exist unless – which is the second point – the occupier engages in an advance negation of the licence or a subsequent revocation.

Accordingly, consistently with the approach taken in the Supreme Court in New Zealand in Tararo, this licence is quite distinct from a licence implied purely in fact in the sense that it is a response to the dealings of the particular occupier and a particular visitor. It is no such licence. It is a licence arising, as a matter of law, as a generality to respond to certain circumstances.

As to negation, your Honour Justice Keane raised in argument, there is the clearest ability of any particular occupier if they do not wish the licence to arise in general for the particular visitors to take the steps to negate it, whether that be to have a locked gate or an appropriate sign. We would submit that in the balance of interests being reflected by the licence, the autonomy of the occupier is respected in the first place by this ability to negate the licence and none of Mr Boulten’s submissions about revocation address the anterior question that it was always open to the particular occupiers to negate the licence in the first place.

Your Honours, the third proposition we would draw from page 7 of Halliday is the first statement by the Court about the scope of the licence – which is that where the conditions for it are met:

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.

We would respectfully submit that that is the licence at its core, involving lawful communication or delivery – although it does not fully exhaust the scope of the licence, as the Court goes on to deal with, on the balance of page 7 and on page 8.

Your Honours, we submit that the concept of “lawful communication” is one to be applied broadly and generally and in a practical way that it produces little difficulty for a proposed visitor to understand whether they are within or without the licence. Communication could involve speech, of course, but could also involve wider forms of human interaction – such as making observations and responding to them by further human interchange. No narrow view should be taken of lawful communication.

Your Honours, we emphasise here that it is a licence to knock only – to use that shorthand. It allows the member of the public to move onto the open path or driveway and move up to the means of entry – usually the front door – for the core purpose of enabling the proposed business to be stated with any member of the household. The implied licence does not confer any permission to enter the household – and that is true whether it is police or any other member of the public.

When the entrant comes up to the front door, in the core case, those in control in the household, who may or may not be the occupier in law, have the ability to decide what happens further. On the one hand, they might simply say, please leave my premises or they may say, you may conduct your business further at the doorway but not enter, or they may provide a permission for the visitor to enter to carry out the business. All those possibilities are facilitated by the licence. How the particular circumstances will play out will, of course, depend on a case‑by‑case approach.

Your Honours, the fourth proposition, on page 7 is the ability of what is described as “the occupier” to revoke the licence – expressly or impliedly. At this point, the Court cites Robson v Hallett and gives particular references to pages 950 to 952, which is Lord Parker, and to page 953 to 954, which is Lord Diplock, for the proposition that if you are to revoke the licence you must do so expressly and not rely upon subjective intent.

Your Honours, our submission is that on a fair reading of these very carefully and compressed reasons it is quite clear that the plurality is approving Robson v Hallett in its entirety. The Court is not simply referring to it for the proposition that you will find something in Robson v Hallett of assistance on the topic. The Court is saying, we would submit, the decision in Robson v Hallett is correct. It is good law and it has been followed as part of the common law of Australia.

Your Honours, at that point could I ask you to go to Robson v Hallett, which is in Part D at page 364, to see exactly what it decided. The facts of the case are on page 366 of the book or 941 of the Queen’s Bench report. The three constables were making inquiries about a possible offence. Two of them used the open garden gate to proceed up to the front steps to knock on the front door. At that point, one of them, Constable Paxton, indicated he was making inquiries and asked a question about the whereabouts of one of the sons that night.

After certain discussion, a Sergeant McCaffrey requested entry and was granted it. The other officers were directed to remain outside the house, and they did so. The father, who appears to be the tenant, directed Sergeant McCaffrey to leave. He did so promptly but before he could complete his exit he was assaulted by one of the sons and a scuffle ensued.

Against those facts, when Lord Parker approached the matter at pages 950 to 952, as cited by the Court in Halliday, he commenced at the foot of page 950 with the proposition that the three officers, like any other members of the public, had implied leave and licence to walk up through the gate, up those stairs and to knock on the front door of the house.

At that point, his Lordship emphasised it was a licence to knock only. The concern was only with the position between the gate and the front door and he expressed the scope of the licence in terms of implied licence to come up on lawful business, through the gate, up the steps and knock on the door of the house.

We would emphasise that no narrow view should be taken of the concept of “lawful business”. His Lordship then, on page 952, dealt with the second and third stage of the analysis, including on page 952, that Sergeant McCaffrey entered by express permission and, when the licence was revoked, he had a reasonable time to depart.

Your Honours, in respect to Lord Justice Diplock, Mr Boulten made a submission that his statement of the scope of the licence at the foot of 953, top of 954, should be read narrowly and it was a licence, he suggested, to go to the front door to inquire whether the person may be admitted, that is, admitted into the house and to conduct his lawful business. We would submit on a fair reading, Lord Justice Diplock is not limiting the licence to an inquiry as to whether one can be entered to conduct the business. In many cases, the business may well conveniently be conducted simply at the doorstep.

So, if the Court could then return please to Halliday at page 7, we would submit that the Court has approved the police utilising the implied licence to come up to the front door including if they wish to make inquiries about a possible criminal offence of any person in the residence. There is no suggestion in Robson that distinctions are being drawn between inquiries about the occupiers’ compliance with the criminal law and inquiries about other persons’ in the residence compliance with the law.

Your Honours, our final proposition about Halliday which is on the foot of page 7 over to page 8 is that when the Court then restated the scope of the licence at the foot of page 7, it did so in even broader terms than what I have suggested is the core of the licence stated earlier on the page. In the broadest terms, the licence invites a person to go upon it for a legitimate purpose involving no interference with the occupier’s possession nor injury to the occupier, guests, or his or her or their property.

Mr Boulten placed some emphasis on the particular facts of Halliday and it is no doubt true that the ratio of Halliday viewed at its very narrowest could be found at the foot of page 8. We would submit that the ratio should not be read that narrowly. It more broadly involves the acceptance of the correctness of Robson and the statement of principle at the foot of page 7 and the top of page 8.

GAGELER J: Mr Gleeson, can I ask you about the qualification that appears in that statement of principle that itself involves no interference with possession or injury to the occupier. Is the qualification directed only to unlawful interference?

MR GLEESON: No, your Honour, it is expressed more generally than that.

GAGELER J: So it covers a proposed exercise of coercive power, does it?

MR GLEESON: A proposed exercise of coercive power, in our submission, is not caught by the qualification as being a relevant interference with the occupier’s possession nor a relevant injury to the occupier. What the Court, we submit, is doing in that second statement of the principle is, without undermining the core statement of principle found earlier on page 7, the Court is recognising that there can be cases where the visitor goes upon the open path or driveway, not for the core purpose of a communication with or delivery to the occupier or persons in the residence, but for some other purpose. On the facts of the case, the other purpose was to question or arrest a trespasser or lawful visitor upon the driveway and so that was regarded as being no interference with the occupier’s possession.

GAGELER J: You will probably come to it, but how do you.....in Florida v Jardines on the Halliday test?

MR GLEESON: I just missed the end of your Honour’s question. Was it how do we grapple with Florida ‑ ‑ ‑

GAGELER J: On your interpretation of the Halliday test, how do you deal with the facts in Florida v Jardines?

MR GLEESON: I will deal with that now, your Honour, if I might. In Florida v Jardines the facts were that the officers intended no communication with or delivery to any person in the premises. They came upon the open pathway, it is found, solely for the purpose of using a police dog to search for incriminatory real evidence. So it was a case falling outside the core licence, as per Robson and Halliday, and it was a case where the police were conducting a purely investigative activity in the sense of searching for real evidence on the property. The question which divided the majority and the minority was not the general statement of principle but how it responded to that very particular circumstance.

If your Honours have the report in 569 US 1 (2013), Justice Scalia stated the scope of the licence on page 8 in terms which would sit comfortably with Halliday v Nevill. In particular, in a passage that may not have been emphasised this morning, at the foot of page 8 Justice Scalia said:

a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do –

citing Kentucky v King from 2011. On page 9, the distinction Justice Scalia saw was in a case where the only purpose of the entry was to introduce a trained police dog to explore the area around the home in the hopes of discovering incriminatory evidence. Your Honours might night that footnote 4 captures where the majority disagreed with the dissent and in particular, in footnote 4, Justice Scalia said, referring to Kentucky v King:

The mere “purpose of discovering information,” . . . in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment –

that is, involve a trespass and an unlawful search, but he says:

no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.

That is the point upon which the case was decided. In Justice Alito’s dissenting opinion between pages 18 and 22, the general principles of the licence are stated, we submit, in similar terms to Justice Scalia and in similar terms to Halliday v Nevill. In particular, on page 19, Justice Alito makes a point with some resonance for the present case, at about point 2:

The law might attempt to draw fine lines between categories of welcome and unwelcome visitors, distinguishing, for example, between –

and then some examples are given, including:

police officers on agreeable and disagreeable missions (gathering information about a bothersome neighbour versus asking potentially incriminating questions). But the law of trespass has not attempted such a difficult taxonomy.

That, we submit, consistent with Justice Scalia, consistent with Halliday v Nevill, is a firm foundation for concluding that where the police enter, as any member of the public would, and they come up to the front door because they wish to ask questions, including questions about the criminal law, they are acting within the scope of the implied licence.

EDELMAN J: Is it really the same distinction as drawn by Chief Justice Spigelman in Anning between the difference between coming to the front door to ask if you can film and going into the curtilage to film itself?

MR GLEESON: It is very similar, your Honour. Chief Justice Spigelman in Anning, which is found in Part D, commencing at page 412, saw that the critical problem in the case was exactly that. In particular, those defending the trespass, at paragraph 38, sought to set up two purposes of entry covered by the licence. The first was that they wanted to do business with the tyre dump or the racing track and that was rejected on the facts at 43. The second was the right to enter for lawful communications.

At paragraph 69, his Honour said that the law would imply a licence to enter in order to ask for permission to film, but the problem in this case - see the following paragraphs - was that there was no intent to ask for permission. There was simply an intent to turn up and film, use the curtilage to conduct a film, exercised without any request for permission. There is some similarity between those distinctions.

BELL J: Mr Gleeson, is the approach to the front door and the knocking on the door, if the purpose is the proposed exercise of coercive power, a communication within the statement of the test that we find in Halliday?

MR GLEESON: Your Honour, our answer to that would be yes but as well as that we would say it will be important in most cases including this one not to collapse the intended communication solely into an intent to exercise coercive power. What I mean by that is that we have the finding at first instance that the purpose was to conduct a DVO check. I will come to this in a bit more detail further on in our submissions.

If one thinks about what that involves and one focuses on the critical period where the licence was purported to be activated, which was stepping off the common property which governed all units on to the alcove and then taking the short step up to the front door, that is where the licence was being utilised.

The range of communications which were in play in respect to a DVO check were various. They were multifaceted and much would depend upon what happened when they got to the front door. There was no inevitability and there is certainly no finding of an inevitability that coercive power would be exercised over the appellant. A whole range of circumstances, clearly enough, could have played out.

At one extreme, had the occupiers kept their main door closed and it was not possible for any visitor to see through the fly screen, then when the police knocked on the door it would have been open to an occupier, if desired, to simply say “Please leave” and that would have been the end of the inquiry. Another possibility, of course, is that only Mr Johnson was home in which event the DVO check might involve making inquiries of Mr Johnson as to whether there were any breaches of the conditions of the DVO.

Again, he might either allow or refuse those inquiries and he might allow that to happen on the doorstep or inside the premises or not at all. Closer to the facts as they played out, of course, it turned out that because there was no closed door other than the fly screen and both the appellant and Mr Johnson were in the premises and the appellant could quickly be seen to be in a condition which suggested intoxication, that led to a situation where it became reasonable within the scope of regulation 6 to request and, indeed, require the breath sample to be taken.

So, to come back to our answer to your Honour’s question, in many cases, including this one, lawful communications will have a range of possible workings out to do which may or may not result in coercive powers being exercised and even if they do result in coercive powers being exercised as events play out, we submit that does not take the case outside the licence in the first place.

Your Honour Justice Bell asked a number of questions of Mr Boulten – and it might be convenient if I deal with those now as they may relate to this topic. One example your Honour asked about was a person on bail where a condition was attached to the bail that the person remain the subject of a curfew. Our answer would be, could the police use the implied licence to come up to the front door and make inquiries about compliance with that condition? Yes. If the person on bail does not wish those inquiries to occur – and they want to be certain about it – they should negate the licence. They should keep the gate locked or they should put up a very clear sign.

If they do not negate the licence, then they have the protections – albeit they may be lesser in practice - of revocation because it may well be that, on coming to the front door, the inquiries which are made may very quickly lead to the police being able to reasonably suspect that the person is in breach of the condition and they may use that as a foundation, for example, to arrest the person when they find out where the person is. So, we no doubt accept, in a practical world – and this is governed by practicality – coercive powers might in some, or, indeed, many cases, fall to be exercised consequent upon the communications. But, we submit, that does not take the case outside the licence in the first place.

Your Honour raised another example which was the position of the police with reason to suspect that a person with a particular make of vehicle had committed an offence, would the police be entitled to use the licence to knock upon a range of premises which might contain such a person? We would submit, yes. and that be so, irrespective of how those communications might subsequently play out.

Your Honour the Chief Justice asked about the particular position of proactive policing and where that fits into this case. We would submit that reactive policing will, of itself, ordinarily attract the implied licence and proactive policing will, a fortiori, attract the implied licence. Where the law – as in bail or domestic violence – has established that there are conditions which a person is expected to comply with, on an ongoing basis, it is perfectly permissible within the licence for those enforcing the law to come up to the front door of the premises to seek to make inquiries about compliance and that may be so even if those inquiries may quickly or slowly lead to coercive powers being exercised.

KIEFEL CJ: Mr Gleeson, are there any particular relevant powers given by the Domestic and Family Violence Act? I know that they.....been relied upon here but ‑ ‑ ‑

MR GLEESON: There is no express power in the Act which deals with the question of entry onto the curtilage. Those that there are are essentially to be discerned through the provisions which Mr Boulten took you to, and that is the establishment of the relevant offences under section 120.

We would also draw attention – this is in Part A of the authorities at page 90 – to section 124A which creates an offence of failing to report reasonably suspected domestic violence. That is relevant because one could think of a very practical situation where a neighbour hears noises coming from the next-door premises which, given background circumstances, leads the neighbour to believe there could be domestic violence being committed. On our approach, the neighbour would be perfectly permitted to use the implied licence to come up to the front door, to knock and seek to make inquiries. Indeed, it may be highly appropriate for the neighbour to do that in the light of the provision in section 124A.

Your Honour the Chief Justice raised a question about the role of the Court as opposed to the Parliament in stating the appropriate rule in matters such as the present. We would submit that, given the nature of the licence, the Court is inevitably and properly given the task of stating the limits of community expectations. Whether you find for the appellant or the respondent in this matter, you will necessarily be doing that exercise. So it is not simply a matter of saying it is a task which would be better carried out by the Parliament. It is not a case, as Mr Boulten put it, of extending the existing law. It is simply a case of discerning whether lawful communication and exchange should bear the limitation that the appellant urges.

EDELMAN J: Mr Gleeson, are the notions of community expectations and the role of Parliament necessarily independent? For instance, on one view it might be thought that the provisions like section 124A of the Domestic and Family Violence Act to which you refer might in part be premised upon a view as to the scope of the implied licence and the community expectations based upon that.

MR GLEESON: Yes, your Honour, that is a submission we would put and, indeed, we tried to look more generally at other statutes on the book, either Commonwealth or State, which have either duties such as this provision or have express powers which are premised on the notion of the implied licence and in that sense we submit the parliamentary judgment can be taken into account.

One example we found, it is not in the materials, is the Biosecurity Act 2015 (Cth), an Act which contains a carefully calibrated regime including provisions which allow a biosecurity officer to enter a home with the consent of the occupier for particular purposes. Those provisions, 315 and following, could only operate on the assumption that the implied licence is an ordinary incident of the function of society, and we would submit that section 124A is in the same category.

Your Honours, could I move to paragraph 3 of our outline, and this is where there is something of a difference between the parties as to the jurisprudential inquiry being engaged in. Mr Boulten has staked his case on the proposition that the inquiry is, it seems, solely into whether the person occupying the premises.....not consent to a particular entry if they knew its precise purposes and perhaps its consequences.

We would submit that is far too narrow as to the inquiry being conducted. The common sense and public policy referred to in Halliday is in fact a requirement for the Court to consider a wide range of interests, including the interests of occupiers in general and in particular, including the interests of potential entrants, and including what we would describe as the public good, all of it directed to a rule which can be stated at a level of generality and allow for the convenient functioning of society.

From the perspective of the occupier, if we focus on that for one moment, it is tolerably clear that not all occupiers will have identical attitudes to particular forms of entry and some of your Honours’ questions this morning have exposed that topic. That in turn leads to a question what if there are multiple occupiers and the entry may be beneficial to one, whereas it may engage the criminal law for another?

It is extremely difficult, we suggest, for the Court to conduct an inquiry which the appellant urges into what they describe as whether most Australian householders would consent to entry for a particular purpose. That formulation of the inquiry, which we refer to in paragraph 3(b), is found in the appellant’s reply most strongly at paragraphs 7 to 9.

One might ask, how does a court conduct an inquiry into the views of the majority of Australian households? Evidence does not seem to be an appropriate basis for it. Judicial notice also would pose significant difficulties. So what we suggest is that, while the court takes into account the interests and views of occupiers, it does so only as part of a much larger consideration involving the interests of entrants and the public good and it does so always mindful of the matter which Justice Keane raised in argument, that the individual occupier has all the power he or she needs to ensure that unwanted entrants do not commit trespass.

So, the rules being stated in a manner which allows for advanced negation thereby recognises the fact that there may be differences of opinion even between occupiers about particular types of entry. That is the position from the occupier’s viewpoint but important also is the viewpoint of the visitor. This rule must be stated, we would submit, in terms which allow for convenient and practical and simple application. The rules should not require fine‑grained legal knowledge as Justice Scalia put it in Florida.

So, the rule as expressed in the generality of Halliday or Robson, we submit, amply complies with that task. It simply says you must have in the court case a broadly communicative intent to engage with one or more persons in the premises and you must otherwise be lawful in that communication. If you are and if the licence has not been negated in advance then you are protected by the licence but, of course, you are subject to revocation and you cannot enter the premises without a further express consent. That, we submit, balances appropriately the interests of the entrants with those of the occupiers.

BELL J: Mr Gleeson, that might be putting a very broad construction on Halliday. To the extent that the minority in Halliday spoke of common sense in forming the scope of the licence, it was to adopt Lord Parker’s observation that the law was not such an ass as to make a trespasser out of a person who crosses the curtilage of private premises to recover a ball that a child has thrown or something of that character. It is another thing to feed in to that the sort of considerations that you were adverting to a few moments ago as to broader public interest considerations that do not bear on a legitimate purpose that involves no interference with the occupier’s possession and no injury to the occupier. The focus, one might think, in Halliday was of the limits of the licence impliedly granted by the occupier.

MR GLEESON: I accept the force of your Honour’s question. Our answer would be that, nevertheless, public policy has a role to play in the exercise – as we are told on page 8 – even if it is a reinforcing role. So, it is a role in the exercise and it is not merely to be treated as subordinate or unimportant – if that is being suggested by the appellant. But, also, that the rule is being stated at a level of generality so that it can function in the practical working of society. So, the interests of entrance in having a clear and simply stated rule are, at least, relevant to the way the court formulates the scope of the rule.

No doubt, your Honour, when your Honour directs me to the statement at the foot of page 7 and the top of page 8, to the extent one is in that broader category, there is a question of what is involved with interference with the occupier’s possession. We submit that to come to the premises with questions which one seeks to ask of persons in the premises – whoever they might be – does not of itself involve interference with possession. Possession is protected, either by the ability to negate the licence in advance or to revoke the licence or, indeed, by the ability not to permit entry into the dwelling itself.

Your Honours, I will simply mention point 3(c) on the outline which is that, while we are dealing with the licence in respect to ordinary residential dwellings, some analogy and assistance, while imperfect, can be drawn from the analogous licence into business premises. We have given the example in our submissions of the decision in Byrne – which was the cinema inspector case which was approved by Justice Mason in Barker, at page 344 of the CLR and Justices Brennan and Deane at page 359. We submit that is a good example where the cinema inspectors came into the premises purchasing a ticket and the fact that they subsequently used that admission in order to obtain what was in evidence did not take the case outside the licence.

Your Honours, at that point could I move specifically to paragraph 4 which is the licence and the police which I have already partly commenced upon? Paragraph 4(a) contains our submission, expressed at a level of generality, that the concept of lawful communication exchange should be taken to cover any intended communications in the course of duty between the police and any person in the residence. That would include communications which could fall on the spectrum between proactive and reactive policing.

Could I ask your Honours to go to Tararo, which is found in Part D at page 401? The facts of the case are found at paragraph 5 on page 405 and so the open gate was used by the officer to come to the front door to seek to engage in a transaction of purchase of cannabis and the officer filmed the transaction, paragraph [6].

The.....of principle commences at paragraph [11] and we would submit that, at least in New Zealand, Robson has been followed as authority for the proposition that citizens generally, including police officers, are not trespassers if all they do is enter upon but not into private premises for the purpose of making inquiry of, that is communicating with, an occupier.

At paragraphs [11] and [12] the distinction is drawn between the licence implied in law and what is described as a quasi‑contractual licence which is more one implied in fact because of the dealings between the particular parties. We would submit that the New Zealand approach is consistent with Halliday in this respect. Then, the principles continue fairly consistently with Halliday and then the licence is formulated in paragraph [14]. The licence is to make an inquiry of the occupier for any reasonable purpose including taking photographs if:

reasonable in order to accomplish that purpose.

Of course, the communications that were used in the case ended up ultimately engaging the system of criminal justice. We would submit to your Honours that when regard is had to overseas authority, Robson, Florida, and Tararo, the common law has consistently allowed for the type of entry by police under the implied licence for which we contend.

Your Honours, could I then move to paragraph 4(c) of our outline, just noting paragraph 4(b), and deal with this distinction which the appellant is commending to you. The distinction emerged, first, in paragraph 33 of the appellant’s submissions in‑chief and it involved the proposition that there are many communications the police can utilise the licence for, including they can ask the occupier to provide information in relation to matters in which they are not criminally concerned.

The distinction, then, sought to be drawn in paragraph 34 is what they cannot use the licence for is communications with the occupier about the occupier’s compliance with the criminal law. That is somehow said to be fundamentally different. But in the reply submissions, at paragraphs 6 to 8, that is extended perhaps to say the licence cannot be used to communicate with one occupier about another occupier’s compliance with the criminal law.

Now, that appears to be at the heart of the distinction which the appellant is commending that you accept. We respectfully submit what rationale in principle or in authority could there be for such a distinction and what it would mean for the practical working of the licence? Your Honour Justice Edelman raised a question earlier this morning about what is really meant by “the occupier”? Is it the owner or the lessee? Normally, it would be in one of those categories.

If this distinction were adopted, it would seem that the police or any other person in authority would not know whether they could utilise the licence until they had ascertained, in advance, the person who was the legal occupier and had appropriately confined their intended questions so that they would ask about any other matter involving the criminal law other than compliance with it by an occupier.

Now, that, we submit, not only would be highly unworkable and impractical but would be unsupported by principle as in it is difficult to understand why the licence is recognised as a qualification to trespass if, in turn, one then seeks to draw this further distinction. Your Honours, none of the suggestions that follow in the appellant’s submissions, we would say, provide an answer in principle to support this distinction.

In paragraph 34 it is suggested that there is “a substantial conflict between the interests” – that could hardly be the touchstone for what is within and without the licence – there would equally be a substantial conflict between the police and other residents suspected of criminal law matters.

At paragraph 38, the proposition is said to be that the communications pursuant to the licence may lead to the exercise of coercive powers. I have accepted that is possible. But, again, how does that draw a distinction between questions being asked of the occupier and questions asked of other persons in the premises?

At 41, it is said that the problem might be that negation comes at too significant a cost to an occupier in possession. Who would want to put up a sign saying, “Police, stay away”? That simply runs counter to the basic principle of the licence which is for any category of visitors. If you do not wish them to enter, you keep the premises locked or you appropriately negate the licence.

Your Honours, at that point, I was going to move to the particular grounds of appeal which are 5 and 6. I am just having a check done that the nature of the appeals was on a question of law and the limitation which flows from that in terms of the facts. If I can, I will answer the question of Justice Gageler after the adjournment.

Perhaps I can do it more directly now. The appeal was under sections 163(3) and (5) of the Local Court (Criminal Procedure) Act 1928. The ground for the appeal may involve error of law or question of both fact and law. That is under subsection (5). There is a restriction upon any new evidence being led on the appeal. That is subsection (6). Accordingly, it would appear to be an appeal in the strict sense but can allow matters of fact to be reviewed.

So, your Honours, in terms of the facts, the starting point would be the findings made at first instance and they are in the core book between pages 8 to 9. Your Honour Justice Bell drew attention to page 8, lines 20 to 30 which is that this was an example of proactive domestic violence prevention duties. It was a domestic violence check in relation to compliance with the order. So, we embrace that as a description of the purpose of the entry.

We submit immediately that a check as to whether a person is in compliance with an order necessarily invites a whole range of possible communications.....earlier some of the communications that might have played out depending how the facts occurred.

We would ask you to reject the appellant’s submission in paragraph 5 of the reply that no more than a “modicum of communication” was involved. It is tolerably clear, we submit, that under a domestic violence check the police will engage in such communications, with such persons on the premises as could be necessary or useful in ascertaining whether there is compliance with the order.

In our submissions in‑chief at paragraph 10 we have indicated that part of proactive policing is that the inquiries may well establish that the person is in excellent compliance with the order and so part of the proactive policing might in fact be to provide encouragement to the person to continue with good behaviour and might give the police the confidence that they do not need to devote further resources immediately to such a person. They can devote their inquiries more to other people.

Another possibility, which is demonstrated by the facts of this case, is that the appellant, two weeks earlier, had been the subject of a DVO check and on that occasion the police found her intoxicated and assisted her to a safety shelter. Now, all of that is done without coercive exercise of power. So it is another example of how, within the range of communications, within proactive domestic violence prevention duties, there is quite a spectrum and in no sense is it inevitable that coercive power will be exercised.

Could I just inquire of your Honour the Chief Justice whether that was the point at which you were proposing to adjourn.

KIEFEL CJ: Yes, that would be convenient. Thank you, Mr Gleeson. The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Could I continue with our submissions on ground 1 by first addressing the basis upon which you should deal with the facts in this case, a question raised by Justice Gageler and, I think, Justice Bell. Our ultimate submission is that you should adopt the facts set out by the Court of Appeal at paragraphs 2 to 6 and 37 of their judgment.

The basis for that submission is, if your Honours have the common appeal book, you have been to the decision of Judge Woodcock, the notice of appeal to Acting Justice Mildren is at page 13. The relevant ground of appeal is ground 1 which was whether the implied licence justified the police entry on to the alcove. That ground necessarily raised a question of fact and law as permitted by section 163(5) of the Local Court (Criminal Procedure) Act.

At pages 44 to 45 of the book in the judgment of Acting Justice Mildren at paragraph [45], it is apparent that he permitted both parties to raise additional factual arguments. On the appellant’s side, the argument was that the DVO check included a welfare purpose in respect to Mr Johnson and on the respondent’s side it was argued that the only purpose of knocking on the door was to submit the appellant to a breath test. It is fair to say what his Honour did was to make neither of those additional findings in the paragraph that follows.

When the matter went to the Court of Appeal, under section 54 of the Supreme Court Act, the court had a familiar power to have regard to the evidence below and had a power to draw its own inferences of fact. At pages 58 to 60 of the book, in paragraphs 2 to 6, the Court of Appeal exercised that power and made the appropriate findings of fact, including inferences, which are more comprehensive than those of Judge Woodcock.

I would observe that in paragraph 3, as well as making the more detailed findings about the nature of the DVO check and the background history which justified the check, amply we would say, the court made an express finding at lines 30 to 35 that as well as the concerns about the behaviour of the appellant, Constable Elliott was:

concerned about the welfare of Mr Johnson who had a “medical condition”.

He noted there was no current complaint. He made a finding that Constable Elliott intended to obtain a breath sample ‑ we would interpolate, if it were reasonable in the circumstances. Then he went on to make findings about the precise nature of the entry onto the curtilage, including in paragraph [4] that it was because the flyscreen was see‑through that, when Constable Elliott knocked at the same time he made the observation which any person would make in that circumstance of the condition of the appellant, which was what in turn led to him making the direction to administer the breath test. Consistent with those findings, you have the finding at paragraph [37], lines 20-30, that there was “dual purpose”:

to determine whether the terms of a DVO were being honoured and to check on the well‑being of –

Mr Johnson. Your Honours, while you have power, of course, under section 37 of the Judiciary Act, to draw different or additional inferences of fact, we submit that you should decide this appeal on the basis of the findings of the Court of Appeal. Nothing is raised by the appellants to suggest that there is any fundamental error in those findings which would justify you revisiting them. That is important because, if you have the appellant’s outline handy, it would appear, in paragraphs 8, 10 and 11, that the appellant is seeking to put a different characterisation on these facts.

Paragraph 8 – particularly as it is being advanced orally – appears to be a submission that the police entered for the sole purpose of exercising the power under regulation 6. Paragraph 10, expressly asks you to overturn the Court of Appeal’s finding that the:

“concern” for Mr Johnson was not a purpose of the entry –

and, alternatively, paragraph 11 asks you to find that it was merely a secondary – or as it was put this morning – a mere motive or consequential power. So, as far as the facts are concerned we would ask you to decide it on the basis of the Court of Appeal’s findings which are amply justified by the transcript of what occurred in the Local Court.

BELL J: Mr Gleeson, when one looks to the evidence that Officer Elliott gave in the appellant’s further materials at page 12 in answer to the question what power was he exercising, why would we add to the Court of Appeal’s findings in paragraph [3] on page 59 “if it was reasonable”? The officer refers to the power that he was using was regulation 6 where you can request someone to provide a breath test.

MR GLEESON: Your Honour, the reason for that is ‑ ‑ ‑

BELL J: .....qualify his answer in any way – why would it not be – why would the inference not be that the officer intended to exercise the power conferred by regulation 6 having regard to a proactive policing operation in circumstances in which the domestic violence order was conditioned relevantly on not being in the protected person’s company while intoxicated. One is checking compliance with such an order. It is not a leap to see that one would seek to determine whether the person, the subject of the order was, in fact, in breach by being intoxicated.

MR GLEESON: Your Honour, I accept that no doubt the intention was to exercise the power, assuming it was appropriate in the circumstances. The reason I have added the qualification is that, as a matter of law, on the proper construction of regulation 6, which I might take you to – it is in our book of further materials – the power was only open in circumstances where it was reasonable to administer the direction ‑ ‑ ‑

BELL J: But we are looking at a factual finding concerning the officer’s intention as distinct from the correct instruction of the regulation.

MR GLEESON: I would respectfully submit it is really both that are in play because the starting point is what were the powers? That is not the end of the inquiry, but if I could start at that point. The way in which the regulation works is that regulation 4 provides that the part applies where the DVO has a relevant testing condition as an ancillary order.

Now, what that tells us is that in terms of the DVO, which is also in those supplementary materials at page 3, whilst it is expressed in very summary form the DVO contains in paragraphs 1 and 2 relevant restraints which are concerning consumption of alcohol in the presence of the protected person. Then 4 and 5 are also more general restraints; 3 is an ancillary order, and the purpose of 3 is to support the workings of 1 and 2.

So, at least as a matter of what was legally available, when regulations 4 and 6 are added to that, the police did not have an unqualified power to require a breath sample. What they had to do was issue a direction which was reasonable in all the circumstances. All I am seeking to make by that qualification is to say that that was the legal constraint around the constable’s power. No doubt it proved reasonable to administer the test in the present circumstances and it very quickly proved reasonable to do so and no doubt the constable intended that he would, which is the Court of Appeal’s finding, provided the appropriate circumstances presented.

But I would submit that his evidence, given in short form, “I intended to administer the sample” should be read as that of an officer consistent with the legal constraints that sat around him. There is certainly no finding that he, in any way, intended to breach the legal constraints upon him.

BELL J: Just looking at the finding in the terms that the Court of Appeal made, it was.....to believe was intending to obtain a sample of the appellant’s breath for analysis.

MR GLEESON: Yes.

BELL J: There was no current complaint. So the inference from that finding is that in knocking on the door the communication, if we are to use that expression, that he had in mind did not involve any mutual exchange of information. It was to inspect the appellant and request her to provide a sample of her breath.

MR GLEESON: The submission I make to your Honours is that is no doubt a core and central part of the intended communications but at the point that he has stepped onto the alcove, one cannot confine the nature of a DVO check solely to such a communication. Much would depend on what happened as the communication played out.

I have given the example: if the only person there was Mr Johnson, the useful inquiries that could be made were, if Mr Johnson was willing to engage in them, whether he had any information relevant to compliance with the order. No doubt if the appellant was there and the conditions were appropriate, as they were, the matter might proceed very quickly in the manner your Honour has put to me. That is our submission on the appropriate facts, your Honour.

We would then ask you to approach ground 1 upon this basis. Firstly, there was a broadly communicative nature of the intended exchange, which was to conduct a DVO check in respect of the appellant. Secondly, to conduct such a check, by reason of the statute and the facts, was necessarily double-sided or two-facing. To check on the appellant’s compliance it was necessary to check on the welfare of the person protected by the order, namely, Mr Johnson. That is apparent from the Domestic Violence Act itself, which is in Part A, in the very conditions which justify the order, which your Honours will see in section 18 on page 26.

I should also add, your Honours, when I took you to the terms of restraints 1 and 2, they are of course not restraints upon consumption of alcohol generally; it is consumption in the presence of the protected person, Mr Johnson. So the purpose for administering the breath test would be to ascertain whether there was intoxication in the presence of Mr Johnson – that is, he was there or there was good reason to think he had been there recently or would be there in the very near future.

So, our third general submission is that, at the moment the constable stepped onto the alcove, there was a range of possible communications within the DVO check and while the intent to take the sample was at the core of the intended communications, it was not inevitable that such a power would be exercised. Finally, the reason that it quickly became reasonable to exercise that power was a combination of circumstances, namely, no negation of the licence, the flyscreen door being open and the police making observations which any other member of the public would be capable of making at that point.

Your Honours, could I make the specific submission in response to what is in paragraph 8a and b of the appellant’s outline? We would agree with that submission only in part. No doubt if the request were made and it were reasonable, the appellant was obliged to comply with the request. But the next part of the proposition which is if the appellant had attempted to revoke the licence she would have contravened condition 3 and committed an offence, we would dispute.

As your Honour Justice Edelman raised in argument, the question of revocation of the licence is a distinct question from the compliance with a notice issued under statutory power. The matter could be tested this way. Either appellant could have said to the constables, you are here as trespassers, please leave. Once that revocation took place, as a matter of the law of the trespass, the constables were duty bound to leave the premises as speedily as possible which would have involved them taking several steps back onto the common property.

If the constables continued to insist upon a breath sample being taken, they did not have a right to insist upon it occurring on the curtilage. They would have had to withdraw their demand and confine it to a request that the appellant leave her property and come into the common property – or the public space – to submit to the test. Whether that would have been a reasonable demand by the police and, if so, whether it must have been complied with, would be a separate question which.....for you.

But, we would respectfully suggest that one should not confuse revocation, which was clearly available, with the suggestion that there would be an offence under those provisions and, for similar reasons, paragraph 8b, it would not have led to a power of arrest under section 123 of the Police Administration Act, let alone a power of entry, if either occupier simply said, you are a trespasser, please leave.

Your Honours, could I move then to ground 2 of the appeal and, as you will see from our outline, we have two separate propositions we wish to make on this ground. The first is to focus on the licence flowing from Mr Johnson who was an occupier, to the constables to set foot on the alcove for the purpose of lawful communication or exchange with any person in the residence about Mr Johnson’s welfare as a protected person under the Act. We would submit that no limitation should be drawn on the concept of lawful communication so as to exclude or negate that licence flowing from Mr Johnson to the police, or indeed to any member of the public, who had reason to communicate about his welfare.

BELL J: No one in Mr Johnson had communicated about his welfare. Where is the evidence of Mr Johnson’s communication with any of the police?

MR GLEESON: I think I heard your Honour’s question. There is no evidence that Mr Johnson had engaged in a positive communication with the police asking them to come onto the property for his welfare. The proposition I am putting is that any occupier, including an occupier in Mr Johnson’s position, when they are taken to confer the implied licence absent negation or revocation for the purpose of lawful communication are doing so to invite communications which outsiders might choose to make concerned about his welfare.

BELL J: Why would we draw that conclusion?

MR GLEESON: Simply because it is really the reverse, that the Court would not limit the concept of lawful communication so as to exclude a communication coming from an outsider, including the police, concerned about the welfare of an occupant; for example, the next‑door neighbour hearing an incident of domestic violence may be occurring in the property.

BELL J: Yes.

MR GLEESON: So all we are seeking to say is, if lawful communication is our starting point and we are then asking whether it is to be confined to exclude particular communications, those coming, even if uninvited in advance from outsiders directed to the welfare of an occupier, would not in principle be excluded from lawful communication. If that is the first step, then the second step would be the licence which would ordinarily flow from an occupier to invite communications of that character, is that licence to be negated because the potential offender happens to be a co‑occupier?

We would submit in principle the answer to that question is no, and it raises a matter which your Honour Justice Edelman raised in argument this morning: how is the scope of the licence to be stated where one has co‑occupiers and it is possible that they could have different views or different interests in respect to particular categories of communications? Our answer to that question is that, because they are co‑occupiers, what would need to happen is for them as co‑occupiers together to negate or revoke the licence in respect to a particular category of communication.

Now, this problem, at least in a closely related context, has been addressed in the two cases I reference in paragraph 6. Could I ask your Honours to go to them, please – they are in part D. The first is New South Wales v Koumdjiev, which is found at page 340.

While the facts of the case are a little different to our problem, it raised an analogous problem. Your Honours will see from paragraph 5 that it was a common apartment block, which had a locked security front door, and the police were seeking to enter into the common areas to pursue inquiries of a certain Ms Docherty. She and the plaintiff did not open the common door.

At paragraph 9, after further police requests, another occupier let the police in, and a scuffle ensued. The issued framed at paragraph 31 is what is the position if:

one tenant in common of property purports to grant permission to another person to enter the property, and another tenant in common purports to refuse or revoke that permission.

The principle that Justice Hodgson established is found in paragraphs 40 and 41, and it seeks to draw certain distinctions between different categories of case. When his Honour came to apply those principles, he did so at paragraphs 45 and 46. But critically for our purpose at paragraph 51 he said that:

Because Ms Docherty did not have power to revoke a license given to the police to enter, the police were not trespassing when they went to the front door. Indeed, I think the implied licence to the police to go to the front door for legitimate purposes, granted by all tenants in common, was not in any event revocable by one tenant in common.

That principle we rely upon by analogy to suggest that in the present case, as there were two occupiers, they granted an implied licence to any member of the public, including the police, to come onto the premises for lawful communication, including communications about the welfare of Mr Johnson.

If that licence were to be negated or revoked by reason of a concern about the appellant being investigated, that was something which both co‑tenants needed to do together to the public, rather than it simply being suggested that the appellant’s interest trumps.

GAGELER J: Mr Gleeson, I occupy my family home with my wife as a joint tenant. If someone comes to the door, cannot I tell them to go away?

MR GLEESON: The answer to that is, of course, yes, your Honour can, and what is occurring at that point is that the occupier, or an occupier, is exercising authority on behalf of both to revoke the implied licence which has otherwise allowed the person to travel to the front door. So, I agree with your Honour’s question. The situation we are looking at here is what would be the position if different occupiers might possibly have different interests in respect to the single category of communication.

The Court of Appeal has held in paragraph [37] of the judgment that effectively what your Honour has put to me would also have been the situation here, namely, if there had been an express statement by one occupier, you must leave. That would have been an effective revocation on behalf of both occupiers and there would have been a duty to leave.

EDELMAN J: Mr Gleeson, why does it have to be on behalf of both occupiers? Considering an example where it is – perhaps even an express licence that has been given, both of the occupiers – both owners are present and one says I want you to leave and the other one says you can stay.

MR GLEESON: That is the very problem being addressed by these two cases and at least the reconciliation of Justice Hodgson in paragraphs 40 to 41 is that if the requested entry is within the range of purposes which would be reasonable and incidental to the enjoyment of the property by one occupier, the other occupier cannot unilaterally revoke or refuse the entry. The distinction his Honour draws is, however, there will be certain circumstances where one could revoke.

So, that problem is not quite the problem we are facing today, with respect, but what we seek to draw from these cases is that where there are tenants in common, at least so far as the implied licence is concerned, which is the licence to get you up to the front door, it is to be stated in common terms in respect to the multiple occupiers. Where the purpose of the communication is within the licence in respect to at least one occupier, it is difficult to see how the other occupier can assert trespass. In other words, the difficulty is can one assert trespass and one assert non‑trespass absent, at
least, some form of express negation or revocation which we did not have on the facts.

Your Honours, if I could just give the reference in the second decision, which is Pitt v Baxter. The equivalent passage is found at paragraphs 16 to 17 of the judgment of Justice Wheeler. Her Honour agreed that the implied licence for the police to enter upon the path for a legitimate purpose could not have been revoked by one tenant alone.

Your Honours, could I deal with one final matter on ground 2. Mr Boulten relied upon TCN v Anning. If I could go back to that, please, in part D, commencing at page 412. The passage which he relied upon was at paragraphs 50 and 51. He relied upon this for a proposition that generally, where the purpose has been limited, the entry will be exclusively for that particular purpose.

Could I make two observations about that. Firstly, the problem his Honour was dealing with was not our problem. It was not a case of co‑occupiers and his Honour’s discussion was not directed to our problem. Secondly, the passage in Barker v The Queen, which is found in Part C at page 365 of the CLR or page 157 of Part C, in fact is not to be collapsed simply to an inquiry into exclusive purpose.

In that passage, Justices Brennan and Deane are in fact first indicating that often there will not be a limitation as to particular purposes, but secondly, even if there is a limitation to purposes, that could in turn break down into a case where the permission extends to authorise every entry for the particular purpose, in which event it covers entry for both purposes or the permission might be construed as extending only to authorise an entry exclusively for the particular purpose.

So Chief Justice Spigelman and Justices Brennan and Deane are not laying down any general rule here. They are simply directing attention back to what are the limits of the entry and how do those limits accommodate the possibility of different purposes.

So, our ultimate submission to you is that in stating the terms of the licence you would not exclude from lawful communications, communications intended with one occupier about his welfare merely because the person who may be offending is a co‑occupier. Unless your Honours have questions, they are the submissions we wish to put.

KIEFEL CJ: Yes, thank you, Mr Gleeson. Do you have anything in reply, Mr Boulten?

MR BOULTEN: Yes, your Honours. We call in aid the Court of Appeal’s finding at page 59 of the appeal book that Constable Elliott was intending to obtain the sample of the respondent’s breath for analysis. This is consistent with the evidence that I have taken the Court to earlier. It is consistent with the findings of Judge Woodcock and it demonstrates the point that we have been making that when the constable went to the premises, he went there for a particular purpose that included and which focused on the administration of the Draeger test.

The purpose was not simply to go to the front door and communicate. Before he got there and when he was there, he always intended to check on the appellant. He did not go for the purpose of communicating with Mr Johnson. The purpose was focused on the appellant and any benefit to Mr Johnson was to flow as a consequence to the check that related to the appellant.

It was significant that my learned friend accepted that the use by the police of mandatory powers would be an interference with the occupier’s rights and expectations. To go there with that purpose in mind is a quite different purpose than going there for the purposes of making inquiries, asking questions, and so forth. The difference between general inquiries and the exercise of coercive powers is not a subtle distinction. It is not the fine type of distinction that Justice Alito had regard to in his judgment in Florida v Jardines. It is something that police officers would instinctively understand and which members of the public would well understand.

Relatedly, we adopt the distinction that Chief Justice Spigelman drew in TCN Nine v Anning where he made the point that the licence that was implied in that particular case was limited to a particular purpose, namely to enter the land to request permission to film rather than simply allowing filming. In all of the circumstances, we submit that the appeal should be upheld.

KIEFEL CJ: Yes, thank you, Mr Boulten. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 10.00 am.

AT 2.52 PM THE MATTER WAS ADJOURNED