NSW Police guilty of Trespass.

During the COVID-19 pandemic on the 24 August 2021 police attended a NSW property based information received at Lismore Police Station which suggested that the owner might be seeking to have pamphlets printed in relation to organising a public gathering or protest on 31 August 2021.

Police were concerned that if a public gathering or protest were held as suggested by the pamphlets it would be in breach of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), which was in force at that time. Attempts to contact the owner on her mobile telephone were not successful. As a result, Det Insp Greenwood telephoned Sen Const Fahey and tasked him with paying Sanchia a visit at her property to attempt to get further information about any intentions she might have of organising a public gathering or protest. This was confirmed in an email sent to Sen Const Fahey that day.

The gate to the property was shut and secured with a chain and a locked padlock. On the gate was a sign which contained, among other things, the following wording:

 

“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.

…”.

 

15. In addition, approximately 2 m 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 INTVESTIGATORS/ CORPORATIONS

TRESPASS DAMAGES shall apply upon one step onto land property

Minimum Penalty: Ten Thousand Australian Dollars

(AUD $10,000)

Per Person, Per Entry - …”.

 

On the morning of 24 August 2021, the owner was not at her NSW property but her 2 children were home.

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 gate. Both Sen Const Fahey and Sen Const Rankin noticed that the gate was locked with a chain and padlock and observed near the gate the no trespassing sign which made explicit reference to police. 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, without touching the padlock, 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 was to the effect that they thought that, because they were making enquiries concerning the possible organisation of a public gathering or protest which might contravene the COVID-19 public health order, they were lawfully entitled to enter the Warrazambil Creek property notwithstanding the locked gate, the sign on the gate and the no trespassing sign near the gate. Indeed, Sen Const Fahey said  that he attended the property in good faith to make inquiries and did not think that the no trespass notice applied to him at the time and Sen Const Rankin said in his evidence 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, the owner sent an email to the Police Complaints/Customer Assistance Unit explaining what had occurred and seeking the names, badge numbers and contact details for the two officers who attended the Warrazambil Creek property the previous day. She also requested that there be no “further repeats and visitations of the like”.

From the veranda of the house, the owners daughter observed the police officers’ actions and she went to meet them. They met when the police officers were about half way up the drive way.

She said “Hi” and asked the officers to hop back over the fence and said they could talk from there. Sen Const 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 at that time. After establishing that she was not the property owner in question, Senior Constable Fahey asked if the owner was home and the daughter said that she was not at that moment. He 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. Sen Const 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, Sen Const Fahey said “If she’s not here, then we’ll come back another time.” She said that they were not to come back onto the property next time. Sen Const Rankin asked whether there was a phone number they could contact the owner on or could she come to the police station if they did not want them on the property and she said that she was not comfortable answering that question. Sen Const Fahey then 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. she then  indicated that the owner could telephone them but Sen Const Fahey said that she would have to come into the police station so that he would know to whom he was talking. Sen Const Fahey said that they would need to come back and the two police officer then walked back to gate, climbed over it and left. While on the property, the police officers did not at any point draw or point their service revolvers or any other weapons nor did they give any indication that they considered using them.

The court found that the gate opening from the road on to the driveway was locked with a chain and padlock, there was a sign on the gate itself which 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 at the Warrazambil Creek property with the lawful purpose of making enquiries of Sanchia concerning the possible organisation of a public gathering or protest, the 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 possession of land, including physical entry onto and remaining on the land, without the licence or consent of the person in possession or without 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 unauthorized 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 [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 See also Colet v. The Queen (1981) 119 DLR (3d) 521 at 526.]. In accordance with that principle, a 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 authorized or excused by law [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].”

Thus, any person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises: Plenty v. Dillon (1991) 171 CLR 635 at 647 (Gaudron and McHugh JJ); [1991] HCA 5.

Police officers have no special rights to enter 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 suggestion in the present case that the police officers had any lawful right to enter the property absent the consent or licence of the occupier.

This precedent cements the principles of trespass in stone and one can rely upon the below case law to protect their property against unwanted encroachment, a mans or woman's home truly is their castle!