Can the Police enter my property if I revoke implied consent?

Tuesday , 5, April 2016 Leave a comment


CASE : Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 (7 March 1991)

trespass

Facts : Consent was revoked for the Police to enter a property.  The police entered anyway to serve a Summons.  Mr Plenty the owner of the property told them to leave and that he would not accept service of the Summons.  The police placed the Summons in his car seat through the window.  Mr Plenty then got a piece of wood and assaulted the Police officer which resulted in his arrest and criminal charges for assault.  Mr Plenty challenged these charges on the basis that the police were trespassing and unlawfully on his property (so he had the right to use some force to evict them when they refused to leave).

HELD : The Police Trespassed onto his property.  There can be no criminal charges against Mr Plenty.  Police to Pay Damages.

We start on the basis that there is always an Implied licence granted to enter a property.

This comes from our Common Law :

“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.” Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J. said (at p 95)

However, in this case, Mr Plenty explicitly revoked such licence to the Police.

” However, the licence may be withdrawn by giving notice of its withdrawal.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.

In Davis v. Lisle (1936) 2 KB 434, police officers who had lawfully entered a garage for the purpose of making enquiries were held to have become trespassers by remaining in the garage after they were told by the proprietor to “get outside”

The High Court Said and Cited :

At [4] “By the laws of England, every invasion of private property,
be it ever so minute, is a trespass. No man can set his
foot upon my ground without my licence, but he is liable to
an action, though the damage be nothing … If he admits
the fact, he is bound to shew by way of justification, that
some positive law has empowered or excused him.”

“‘The poorest man may in his cottage bid defiance to all
the forces of the Crown. It may be frail – its roof may
shake – the wind may blow through it – the storm may
enter – the rain may enter – but the King of England cannot
enter – all his force dares not cross the threshold of the
ruined tenement.’ So be it – unless he has justification
by law.”

“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.”

 

 



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