AFL Solicitors

Thank you and stay tuned for more Educational posts. Have a nice weekend!! (AFL Team)

It should be noted that police (across Australia) have numerous powers that can pierce the cases cited above and that is why you must seek assistance of a qualified lawyer so you can understand how the law will apply to your facts. You can start by placing a "NO TRESPASS SIGN out the front of home and make sure it is clearly visible. For example, in NSW The Law Enforcement (Powers and Responsibilities) Act 2002 (which rejoices in the acronym LEPAR) was introduced in 2001, in response to a Wood Royal Commission recommendation that NSW police powers be consolidated. - Police may enter premises if they believe on reasonable grounds that a breach of the peace is being or is likely to be committed and it is necessary to enter immediately to end or prevent this. Police are also empowered to enter to prevent significant physical injury to a person. Police are empowered to remain on the premises only as long as reasonably necessary in the circumstances.
It is uncertain whether this provision merely reflects the common law or extends it. There appears to be no High Court or NSW appellate court authority on power of entry to prevent a breach of the peace. In Lippl v Haines (1989) 18 NSWLR 620, the issue for consideration was the power of entry to effect an arrest. Hope AJA (at 630, citing Swales v Cox [1981] QB 849) enumerated the circumstances in which police had power of entry. This did not include breach of the peace. In Plenty v Dillon (1991) 171 CLR 635, the High Court held that police do not have power of entry merely to serve a summons. Gaudron and McHugh JJ (at 647) again listed the circumstances in which police had power of entry, and again, breach of the peace was not included. However, given that neither of these cases concerned an alleged breach of the peace, I would not interpret either case as authority that police do not have such a power.
There is appellate court authority from other Australian jurisdictions (eg Panos v Haynes (1987) 44 SASR 148, Nicholson v Avon [1991] 1 VR 212, Cintana v Burgoyne [2003] NTSC 106) that police do have power to enter premises to prevent a breach of the peace.
“Breach of the peace” is not defined in LEPAR, nor is its scope clearly defined by the relevant case law. For examples of conduct that has been held to constitute a breach of the peace, see R v Van Bao Nguyen [2002] NTSC 38, per Angel J at paras 10-12, and the commentary at para [2.33470] in Vol 1 of Watson, Blackmore & Hosking Criminal Law (NSW) looseleaf service. As stated earlier, each case is determined by the facts and evidence unique to that case and further each case will be determined by the laws of your particular state of territory. The posts on trespass (ABOVE) are not formal legal Advice and only produced as general Educational information - if you are arrested or have questions please Call our Office on (02) 8277-4556/0421 366 238.

Continued from previous Post above - - “Such a warrant may be sought by telephone…granted by a Magistrate. Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also a judicial officer enjoying independence from the Executive Government and hence from the police. This facility is thus an important protection, intended by Parliament, to safeguard the ordinary rights of the individual to the quiet enjoyment of residential premises.” Please remember the law is a changing environment and it is important to seek the assistance of a lawyer before you act. With regards to the cases cited above, most states and territories have implemented statutes that provide Police with powers to enter a home for specific reasons, and it is important that you seek legal advice.

Trespass case #5
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.

After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”

S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.

The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.

The High Court also said clearly that, while police (or a member of the public) might have power to enter premises to prevent a breach of the peace, no-one could do so for merely investigating a breach, or for finding out if there was a threat of one. (underline – but not the italics – added)

In the Kuru case, when the police arrived, the action was over. Except that the police then caused the real action.

“…but for the police officers not leaving the flat when asked to do so, any further breach of the peace was (not) threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant’s flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant’s arrest."

“It follows that the continued presence of police officers in the appellant’s flat, after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. No other form of common law justification for remaining in the appellant’s flat was suggested.” (underline added)

In management terms, the police weren’t part of a solution, so they became the problem. The High Court says the same thing, but in different words:

“For these reasons, the question treated by the parties as dispositive of liability (were the police officers trespassers when the appellant first came into physical contact with one of them) should be resolved in the appellant’s favour.”

The judgement above was jointly agreed by Chief Justice Gleeson and Justices Gummow, Kirby and Hayne. They basically ordered the NSW Supreme Court to reverse its decision, and awarded costs for all the earlier hearings in Mr Kuru’s favour. The High Court also highlighted that it was “not necessarily a great burden” for police to quickly get a warrant, if one was needed.

Trespass Case #4 - PLENTY v DILLON [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
Police entered a rural property to issue a summons. The owner told them to leave, a scuffle ensued, the owner was arrested for assault. His appeal to the High court won with costs for damages against the 2 constables.

“Common law authority tends against (allowing for entry re delivery of a summons when entry) has been forbidden by the person in possession and entitled to possession thereof.”

“Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service…..The grounds to justify to this fail. Police entry was wrongful.”

“Serving a summons is not an ‘execution under the process of any court of justice’; it is simply the commencement of the process.”“It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”

NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady, chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.

‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”

“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”

Trespass Case #3 - GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.

“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”

“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”

In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.

Suspicion without proof is not enough for a warrant to be issued.

Trespass Post #2 - HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property, the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed with costs, in the High Court.

BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”Notes from the case: “While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact…….The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, 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. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.

“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.” You should note that exceptions do exist and they generally relate to matters such as personal safety (Domestic Violence), Criminal Conduct, Medical Emergencies to name a few). That is is why we say each case must be determined on a case by case basis and you should seek the assistance of a qualified lawyer before making any decisions about legalities in this complex area of law.

THIS IS NOT SPECIFIC LEGAL ADVICE AND PLEASE SEE A LAWYER BEFORE TAKING OR DEFENDING AN ACTION - The law of trespass will be determined by the respective laws of your state or territory. But there are some Australian High Court cases that have looked into the law of trespass. I will address some of these points in the coming posts, but please note this NOT SPECIFIC LEGAL ADVICE rather general information for your education. High Court Rulings on Trespass
In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951):
"the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house." This implied licence extends to the driveway of a dwelling-house. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”

A sign at your front entrance clearly indicates that you do not give permission unless by invitation therefore entry is prohibited. Information from QLD has indicated that the police will enter through an open gate regardless of the sign, but cannot open one. Therefore, keep your gates closed. Police have also indicated that they cannot deliver a summons past a proper Trespass sign unless a felony has been committed under the Crimes Act and a warrant issued.

“The very limited nature of a constable's right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”

Lord Edmund-Davis in Morris v Beardmore stated: “If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official.”

Every Australian Parliamentary Act now states that, under that Act, public officials may enter your property for the purposes of that Act. I will turn to this question in subsequent posts.

And remember, Lord Coke’s quote “Common Law doth control Acts of parliament and adjudges them when against Common Right to be void.”

See your general rights below


https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/police-powers

Someone asked:
What if I am pulled over and asked question?

Answer:
1.There are many ways to respond, but I recommend you comply with request to provide your identity.

2. Never resist, and treat the police with utmost respect. There is no need to give them an excuse to arrest you.

3. Comply with orders but remember, there are occasions where exceptions may apply. If this relates to you, always stay calm and respectful.

The new Orders provide extraordinarily expansive powers, arguing and swearing at police will not yield a positive result. Many laws operate in conjunction with State Orders which we posted earlier

AFL Solicitors is receiving great feedback on the letter that we sent to government officials, but please note it is NOT a letter of advice.

We are working very closely with allied professionals and bodies from all over the world.

Please share this Telegram link to all Australians.

With issues reaching a fever pitch we are at the crossroads of protecting civil liberties .

Thankyou from the AFL team and stay close

Please share this page as it provides an empowering set of facts that is not in the mainstream.

It is NOT MEDICAL ADVICE.