Recently a female client of mine who is a mother of 4 children (all under the ages of 11 years old) was paid a visit by the local police at 10:30pm under the justification of a “bail compliance check.”
The police claimed they were conducting a ‘curfew check’. During this, she was also questioned about whether she had been drinking alcohol in her own home.
This intrusion was despite the fact that my client was not and never subject to any curfew condition or alcohol abstention.
This so-called justification was later varied as a check and confirmation as to whether she resided at the address as per her bail condition. This version was changed a week later to an “AVO compliance check” to ensure she was not breaching her AVO by having the PINOP at her address. This was despite the fact that the police knew the history of the matter and that the parties were currently subject to other orders, were divorced, was in fear of the PINOP (and scheduled to be a witness against the PINOP in a criminal matter), and the PINOP had remarried.
The explanation provided was that the police have the “right to enter private property to conduct compliance checks”.
Unfortunately, this is a misrepresentation and erroneous expression of their powers to enter into private property.
As a result, my client felt intimidated, and her privacy felt intruded upon. She expressed that she now fears the police randomly turning up at her door at any time of the day or night.
Police officers do not have unfettered special powers to enter upon private property to make random checks unless they have a common law or statutory power. This might include, for example, via a bail enforcement condition, emergency or exigent circumstances that require entry, a breach or imminent breach of the peace, warrant, or by express or implied consent.
The Law regarding the Tort of Trespass
This issue of police entering the private property when their licence has been revoked is well settled.
This issue was most recently dealt with in the NSW Supreme Court in Romani v State of NSW [2023] NSWSC 49
Facts
On 24 August 2021, police attended a NSW property, based on information speculating that the owner (Sachia Romani) might be organising a public gathering or protest on 31 August 2021.
Police were concerned that if a public gathering or protest were held as it would be in breach of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) that was in force at the time. Attempts to contact Romani on her mobile telephone were unsuccessful.
As a result, Detective Inspector Greenwood telephoned Senior Constable Fahey. He tasked him with attending Romani’s address to question her about her intentions to organise a public gathering or protest.
When the police arrived, the gate to the property was shut and secured with a chain and a locked padlock. On the gate was a sign which displayed, among other things, the following:
“PRIVATE PROPERTY
TRESPASS NOTICE
- TRESPASS APPLIES WITHOUT PRIOR CONSENT OR PRIOR INVITATION.
- ADMITTANCE TO THIS PROPERTY IS STRICTLY BY INVITATION OR APPOINTMENT ONLY OR TRESPASS APPLIES.
- ADMITTANCE TO THIS PROPERTY IS CONSENT TO THIS NOTICE.
- PENALTIES FOR TRESPASS START AT 330 OZ OF SLIVER…”
In addition, 2 metres inside the property near the gate was another sign which contained, among other things, the following:
“LEGAL NOTICE
NO TRESPASSING
ADMITTANCE BY INVITATION ONLY
Exclusion Notice – Private Property
To all men, women, persons and entities including
POLICE/GOVERNMENT /SHERIFF/ BAILIFF/ PROCESS SERVER/ COUNCIL/ RSPCA/ PRIVATE INVESTIGATORS/ CORPORATIONS
TRESPASS DAMAGES shall apply upon one step onto land property
Minimum Penalty: Ten Thousand Australian Dollars
(AUD $10,000)
Per Person, Per Entry – …”.
While Romani was not at her NSW property, her two children were.
The two police officers drove to the property in a fully marked police Ford Ranger with a pod on the back, arriving at about 9.15 am. They parked the vehicle near the locked gate.
Notwithstanding the locked gate, the sign on the gate, and the no trespassing sign near the gate, the two police officers jumped over the gate and walked up the driveway towards the house. The police officers did not have any warrant that would have entitled them to enter the property.
Their evidence asserted they were making enquiries concerning the possible organisation of a public gathering or protest which might contravene the COVID-19 public health order, and they were lawfully entitled to enter the property
The police (Fahey) asserted that they attended in good faith to make inquiries and did not think that the no-trespass notice applied to them. The other police officer (Rankin) said that he believed it was “common law that police can enter a property to speak to the resident and make inquiries regarding an unlawful act” and that “common law gives us the right to enter a property to speak to the resident”.
On 25 August 2021, Romani sent an email to the Police Complaints/Customer Assistance Unit explaining what had occurred and seeking the names, badge numbers and contact details of the two officers who attended the property the previous day. She also requested no “further repeats and visitations of the like”.
Police remain on the private property and say they will keep returning
From the veranda of the house, the owner’s daughter, Maia observed the police officers’ jumping the gate and met them about halfway up the driveway.
She asked the officers to hop back over the fence and said they could talk from there. Fahey asked, “Why is that?” and she responded, “I don’t feel comfortable with you being on the property.” She asked if they could please stay on the other side of the fence.
The police officers did not go back to the other side of the fence. After establishing that Sanchia was not the property, Fahey asked if the owner was home. Maia said “not at that moment”.
Fahy then asked when she would be home, and the daughter said that she was not comfortable answering his questions. She had her hands behind her back and was holding her mobile phone.
Fahey asked, “Are you hiding something?” This question made her feel intimidated and uncomfortable, but Maia showed him her mobile phone. She then asked if the police officers minded her starting to record the conversation.
At this point, Fahey said, “If she’s not here, then we’ll come back another time.”
Maia said they were not to come back onto the property next time.
Rankin asked whether there was a phone number they could contact the owner on or if she could come to the police station if they did not want them on the property. Maia said that she was not comfortable answering that question.
Fahey said, “We’ll keep coming back until we speak to her.”
As a result of that last comment, the daughter felt very uneasy, uncomfortable, and distressed because she perceived it to be intimidating.
Maia indicated that Romani could telephone them, but Fahey said that she would have to come into the police station so that he would know to whom he was talking.
Fahey said that they would need to come back, and the two police officers then walked back to the gate, climbed over and left.
Findings
The Supreme Court found that the gate opening from the road onto the driveway was locked with a chain and padlock, there was a sign on the gate itself that indicated that trespass would apply in the absence of prior consent or invitation and there was a further sign in the vicinity of the gate which indicated that there was to be no trespassing, that admittance was by invitation only and that that the police were specifically excluded in the absence of an invitation or consent.
In these circumstances, even if the two police officers attended the property with the lawful purpose of making enquiries concerning the possible organisation of a public gathering or protest, their implied licence for the police officers to enter the property for the purpose of such lawful communication was impliedly refused or withdrawn by the locked gate and expressly revoked or precluded by the signs. There being no other authority for their entry, the police officers, therefore, committed the tort of trespass.“
The tort of trespass is committed whenever there is interference with the possession of the land that is held exclusively by a person. Interference includes physical entry onto and remaining on the land without the licence or consent of the person in possession or other lawful authority: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [23]-[24] (Spigelman CJ, Mason P and Grove J agreeing).
In Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Mason CJ, Brennan, Gaudron and McHugh JJ held, at 435-6:
“Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right”
Also see Entick v. Carrington (1765) 2 Wils KB 275 at 291 (95 ER 807 at 817); Halliday v. Nevill (1984) 155 CLR 1 at 10 per Brennan J; Plenty v. Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ also see also Colet v. The Queen (1981) 119 DLR (3d) 521 at 526.].
As such, any police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law: see Halliday v. Nevill (1984) 155 CLR at 10 per Brennan J; Plenty v. Dillon (1991) 171 CLR at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ].”
So any person who enters private property of another must justify that entry by showing that they entered with the consent of the occupier or otherwise had lawful authority to enter: see Plenty v. Dillon (1991) 171 CLR 635 at 647 (Gaudron and McHugh JJ); [1991] HCA 5.
Police officers have no special rights to enter private land, except in cases provided for by the common law and by statute: Kuru v State of New South Wales(2008) 236 CLR 1; [2008] HCA 26 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
There was no evidence that the police officers had any lawful right to enter the property other than by the consent or licence of the occupier.
As such, unless a police officer or any other person can demonstrate they have express or implied consent, common law or statutory power of entry, they are committing a civil trespass.
Damages, Aggravated Damages, and Exemplary Damages Awarded
Having considered the outcomes of other trespass cases, the Court on 7 February 2023 determined to award Sanchia $17,500 in compensation: $7,500 for the breach of her right to have exclusive possession, $5,000 for aggravated damages and $5,000 in relation to exemplary damages.
In calculating the interest over the interim period, the compensation amount rose to $18,334.69. And no order on costs was resulting, which left each party to cover their own.
So if you do not want the police to enter upon your private property, then perhaps erect a sign similar to the one, in this case removing their implied consent to knock on your door.
This simple sign and notice may just prevent an unjustified and likely unlawful intrusion into your private space by police at 10:30pm or at any time.