From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Wednesday 9 December 2020 01:09

To: obligations@uwo.ca

Subject: ODG: HCA on trespass to land and police intent

Dear Colleagues;

The High Court of Australia today handed down an interesting decision with implications for the tort of trespass to land. In Roy v O'Neill [2020] HCA 45 (9 Dec 2020) http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/45 the question was whether a police officer had implied authority to enter land and knock on someone s door when they had 2 purposes for doing so, one of which was a contingent purpose of exercising compulsory power against the occupier (the other one of which was just to check on the welfare of another occupier thought to be at risk of harm.) A 3-2 majority of the bench (Kiefel CJ in one judgment, Keane and Edelman JJ in a separate joint judgment) held that the police did have such implied authority. The joint judgment of Bell and Gageler JJ disagreed.

The facts are a bit complicated. Ms Roy lived with Mr Johnson. Ms Roy had an Domestic Violence Order (DVO) against her which made it unlawful for her to be in Mr Johnson s presence while intoxicated (she had previously harmed him in those circumstances.) They were together in their flat when three police officers came to the door. To do so, they entered the curtilage, which included the yard and the common area of the unit dwellings, and walked up one of the common pathways which led to an alcove within which was the main front door of the unit occupied by Ms Roy and Mr Johnson ([59].) Having knocked on the door one of the officers observed through the flyscreen Ms Roy near Mr Johnson, and called out to her. When she came to the door the officer concluded she was intoxicated and directed her to take a breath test (which he was empowered to do.) Later she was charged with having breached the DVO, but the magistrate excluded the evidence of the breath test on the basis that it had been obtained as a result of an unlawful trespass to land, holding that the officers had no implied authority to go onto the land.

In broad terms, of course, it has been well settled previously (most clearly in the HCA decision in Halliday v Nevill (1984) 155 CLR 1) that entry onto land contrary to the permission of the occupier is unlawful, but that permission to come onto land and up to the front door is implied, unless clearly excluded prior to entry (through a sign or some other act). But the question is, what sort of limits are there on the implied permission for police to enter land when they end up executing some form of compulsory power?

The decision of Kiefel CJ gives the widest scope for police entry to land. Entry will be impliedly authorised, not simply for the purpose of communicating with the occupier, but for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property (at [13], quoting Halliday v Nevill). This would not, however, authorise an entry onto land for the sole purpose of exercising coercive powers [17]. In this case her Honour thought that the officers were entitled to enter onto the land and come to the front door for purposes which included observing Ms Roy and determining whether she was breaching her DVO. They also had another purpose, which was to check on the welfare of Mr Johnson, and this was also a legitimate reason for entry. While lawfully on the premises, and having then observed Ms Roy s intoxication, they had grounds for the coercive breath test.

Keane and Edelman JJ, writing separately, seem to take a slightly narrower view of the relevant justifications. But they are concerned that too narrow a view of the justifications will undermine the power of the police to inquire about the welfare of possible victims of domestic violence. They agree with Kiefel CJ that entry need not be solely for communication with the occupier- see [70]. (After all, in Halliday, the court had held that it was legitimate for police to enter property to question or arrest someone, not the occupier, who they had observed committing an offence in the street outside the property.)

However, their Honours say that it is not a legitimate reason to enter land to exercise coercive power against the occupier or his or her guests. See [81]:

The recognition of a common law implied licence to enter private land to assert any coercive power against the occupier or the occupier's guests would disturb the proper balance between public authority and the security of private dwellings.

In this case, however, the police entry was justified by a legitimate concern for the welfare of Mr Johnson. See [88]:

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. That implied licence would not have been negated by any other subjective motivation for the enquiry such as to investigate Ms Roy, whether or not that motivation was certain or uncertain, and whether or not it was contingent upon other events such as Ms Roy being present at the unit. 

Hence the fact that there may have been other motives or purposes (such as investigation) did not make the entry unlawful. It will be seen that this is slightly narrower than justifications accepted by Kiefel CJ, who seemed to fully accept that investigation was a legitimate purpose.

The dissenting judgment of Bell and Gageler JJ takes the view that any purpose beyond communication is unlawful. See [40]:

The preferable view is that a police officer who walks up my path, stands at my doorstep and knocks on my door exceeds the limits of the permission granted by the implied licence, and is therefore a trespasser, if the police officer has any conditional or unconditional intention of ordering me to do anything. (emphasis added)

The above is a broad brush summary. Both majority and minority judgments are concerned not to draw fine lines and produce a rules which are unworkable, but with respect I think the complexity of these situations means that any rules will have difficulties. Still, on balance, I think the majority are correct and their views will make it easier for the police to provide help to vulnerable domestic violence victims.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, LLB(Hons)

Faculty of Business and Law

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