(High Court of Australia) Criminal Law – Arrest – Police officer pursuing disqualified driver into driveway of private dwelling – Arrest in driveway – Occupier’s permission not required – Whether implied licence to enter driveway – Lawfulness of arrest.
Trespass – Access to premises – Implied licence to enter path or driveway of private premises for legitimate purpose – Police officer pursuing disqualified driver into driveway – Whether implied licence to enter and make arrest in driveway.
Brennan J said: ‘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.’ and ‘The common law presumes that when Parliament creates a novel power, it does not intend thereby to authorize the commission of a trespass to facilitate its exercise: Morris v Beardmore [1981] A.C. 446; Colet v The Queen (1981) 119 DLR (3d) 521 . The general protection which the common law accords to persons in possession of private property is undiminished by the creation of the novel power unless Parliament expressly provides otherwise.’
ibbs CJ, Mason, Wilson, Brennan and Deane(1) JJ
(1984) 155 CLR 1, [1984] Aust Torts Reports 80-315, (1984) 57 ALR 331, (1984) 2 MVR 161, (1984) 13 A Crim R 250, (1984) 59 ALJR 124
Austlii
Australia
Cited by:
Cited – Gillies v Procurator Fiscal, Elgin HCJ 1-Oct-2008
The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.276519
