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December 2010

Access to Your Property

A recent, well publicised, traffic law case has highlighted that there is no absolute right by police officers to enter and remain on your property.

In the particular case, the driver was sighted driving erratically after having consumed alcohol. The Police did not follow the driver but merely arrived at the driver's home sometime later to request a breath test. The driver refused.

The two important issues we have to consider when this type of scenario arises for a client are:

Fresh Pursuit

The Land Transport Act provides that a police officer may, in the course of a "fresh pursuit", enter any premises which a person (whom the officer has good cause to suspect has committed a serious traffic offence) has entered, for the purpose of exercising such power as if the person were still in a motor vehicle on a road. There are a number of aspects to this provision, but for the purposes of this article the emphasis is on "freshly pursuing that person". The officer has to be directly and actively participating in the event from the time the officer sees (or suspects) a law is being broken up to and including the entering of any premises. If there is a break in that chain of events then there is no fresh pursuit.

Implied Licence to be on the land

"No one is permitted to set foot on the land of another unless they can show lawful justification for doing so." There will be justification and thus no trespass if:

  • the entry is authorised by statute (such as "fresh pursuit")
  • the entry is expressly authorised by or on behalf of the landowner (such as inviting someone onto your property);
  • the entry is impliedly authorised by or on behalf of the landowner ("implied licence" or entitlement);
  • the entry is justified by necessity or on some other basis recognised by law.

So for traffic law, if an officer is to be on private land the officer must be there lawfully on the basis of one of the above criteria. In most cases, it will be by way of implied licence.

However, the occupier can revoke that implied licence so long as the revocation is "clear and unequivocal" and is actioned at as earlier stage as possible. If that is done then the officer would become a trespasser to the land at that point. There have been a number of cases over the years that highlight the failure of the occupier to "clearly and unequivocally" revoke the implied licence:

"Conditional Revocation"

In this case, the occupier said to the Police that if they were not going to arrest him then he wanted them to leave the property. Whereupon the Police did immediately arrest him and the arrest was held to be valid.

"Clear and Specific"

In this case, the occupier only refused to co-operate. He said that he was "home" and the officer was "powerless. The Court held that there was no "clear and specific revocation" of the implied licence and so the officer was entitled to pursue his investigations on the property.

"Verbal refusal to come out"

In this case, the occupier drove into his garage and closed the automatic door. The occupier refused to come out of the garage. The officer indicated that if the door was not opened then he might have to use force to enter. The occupier then opened the door, at which point he was subjected to a breath screening test. The Court held that the verbal refusal by the occupier/ driver to come out of the garage constituted a clear and unequivocal revocation of the officer's implied licence to remain on the driver's property. The Court observed:

"I consider an analaguous situation. An elderly person hears a knock on the front door. That person, without opening the door, goes to it and asks "who is there?" The caller replies "I would like to show you my carpet shampoo/ religious pamphlets/ girl guide biscuits". The elderly occupier says "No!" At that point I believe the caller's implied licence to remain on the property is revoked. A failure to turn around and leave the property would render the caller a trespasser."

The conviction was quashed and the sentence set aside.

The implied licence to enter private property is limited to approaching the main entrances (usually the front door and garage door). The licence does not give entitlement to wander around the whole of the outside of the property or to enter inside the buildings.

Conclusions

Once a driver is on his/ her own property the driver has some protection from Police officers. The legal provision of "fresh pursuit" will only operate if the conditions of the Land Transport Act are strictly adhered to by such officers.

If it is NOT a "fresh pursuit" situation, then the officer is legally entitled to be on the private property (by virtue of the implied licence) until that licence is revoked "clearly and unequivocally" by the owner or occupier of the land concerned. At that stage your home becomes your castle.