APPELLANT CHARGED WITH BREACH OF DOMESTIC VIOLENCE ORDER QUESTIONS THE ADMISSIBILITY OF THE BREATH TEST CONDUCTED BY THE POLICE

Roy v O'Neill [2020] HCA 45 (9 December 2020)

This case involves the appellant questioning the admissibility of evidence against her contending that the police does not have the authority to enter their premises and conduct a breath test.

Facts:

In June 2017, a Domestic Violence Order (a "DVO") in order to protect the appellant's partner, Mr Johnson, from her in circumstances where she had consumed alcohol or another intoxicating drug or substance. In relevant part it restrained the appellant from being in the company of Mr Johnson or at a place where he lived when she was consuming alcohol or was under its influence.

In April 2018, the Northern Territory Police Force in Katherine conducted Operation Haven. This operation involved police activities designed to address concerns about domestic violence and alcohol-related crime.

As part of Operation Haven, Constable Elliott, and two other officers visited the unit where the appellant and Mr Johnson resides. The police in the Northern Territory were engaged in a wider operation that targeted domestic violence. This was referred to as "proactive policing", which may be understood to be directed to preventing such violence rather than dealing with it after it had occurred.

Constable Elliott knocked on the flyscreen door, looked in and saw Mr Johnson seated on a couch and the appellant lying on the floor. He called the appellant to the door for the purpose of a DVO check. As she approached, he observed indicia of intoxication. He required her to provide a sample of her breath to test and she complied. The machine he used gave a positive reading for alcohol.

In proceedings brought for breach of the DVO, evidence of the results of a breath test, which showed that the appellant had consumed alcohol, was excluded from admission into evidence on the ground that it was obtained unlawfully. It was held to have been obtained unlawfully because the police officer who administered the breath test was found to have no authority to be present on the premises, which is to say he was a trespasser.

Regulation 6 of the Domestic and Family Violence Act requires a defendant to comply with a reasonable direction by a police officer to submit to a breath test to assess whether the defendant may have had alcohol in his or her breath. For the direction to be reasonable, it is not necessary that the officer have a suspicion that the defendant has consumed alcohol. But it does not in terms authorise entry onto premises for that purpose.

Appellant contends that the breath test have been obtained unlawfully because the police officer who administered the breath test was found to have no authority to be present on the premises, which is to say he was a trespasser.

Issue: Did the police officers have an implied license to enter the unit occupied by the appellant and her partner that would justify the admissibility of the breath test as evidence?

Law:

• Domestic and Family Violence Regulations, reg 6.

Analysis:

The purpose for which the police officers had attended the unit of Ms Roy and Mr Johnson was to conduct a "check" in relation to compliance with the DVO. The very nature of Operation Haven, and the compliance checks that it involved, was to address the effects upon victims of domestic violence.

The finding of the Court of Appeal that the police officers had a purpose of enquiring about the welfare of Mr Johnson is sufficient foundation for the conclusion that the police had an implied licence to enter the curtilage of the premises, including walking down the common pathway and standing in the alcove at the main front door of the unit occupied by Ms Roy and Mr Johnson.

Because of this, any subjective intentions or motivations of the police related to their desire to communicate with the occupiers, such as to investigate an offence involving breach of the DVO or to direct Ms Roy to take a breath test, did not negate their implied licence to enter the curtilage.

Conclusion: The evidence of the results of the breath test is admissible. The appeal should be dismissed.

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