In a recent Supreme Court case, SA Police have been ordered to pay a man $40,000.00 damages for simply going to his front door and knocking on it.  The Court found that the officers had trespassed on private property on four occasions in May and July of 2015, despite the fact that their reason to go there was to serve him legal documents.

 

 

What is the implied licence to enter property?

For a person to lawfully enter a private residence, there must be an invitation or permission from the occupier; otherwise, a trespass is committed. It is up to the person who entered the property to establish that they had some form of permission. The Courts have previously held that if the path or driveway leading to the entrance of the house is left unobstructed, with any entrance gate unlocked and without indication by a notice or otherwise that entry is forbidden, then it is implied that people have permission to go along that path or driveway to get to the front door if they are doing so for a lawful purpose.  Nevertheless, the occupier may negate that permission by sufficiently indicating that entry is not permitted and can also revoke permission to be on the premises at any time by requiring the visitor to leave.

In this case, there had been longstanding issues between police and the resident who had made considerable efforts to communicate his withdrawal of the implied right for police to enter his property.  The Court noted, “By May 2015, not only had significant correspondence passed between the parties but the applicant had already instituted an action against [the police] for trespass. The applicant could not have been any clearer about his desires for police to not attend at his property.”  The man had erected a sign on his property stating that entry was forbidden and had also written letters to the police force expressing his revocation of the implied licence.

 

Signs Revoking the Implied Licence to Enter

The man gave evidence that, having learned of a High Court decision during the course of his legal studies of Plenty v Dillon*, he created a website from which he gave advice and sold books and signage. His evidence was that in 2011, he put up a sign at his house on a pillar of a low wall at the front adjacent to the driveway. The sign was made of UV-resistant plastic and was attached to the pillar by glue and adhesive. By 2015, he had attached a second sign to a pillar on the other side of the driveway.

Based on the evidence, the court concluded that although running along the front of the man’s property there was a low wall with a wrought iron gate in front of the footpath leading up to the front door of the house, this gate was generally left open. There was another double gate leading to the driveway into the front yard of the house, and since all photographs and videos that were made available to the court showed the gates as open, the court concluded that they were generally left open at all times.

There was quite some disagreement as to what signage was in place on the occasion that the police officers went to the man’s home to serve the summons. While the man maintained that there were at least two signs, the court found that there was inadequate evidence upon which to reach that conclusion but did find it most likely that there was at least one sign in place.

 

The Four Separate Trespasses

Despite these measures, police officers attended the property on four occasions to serve him with a Court summons.  They entered through the open gates, walked up the pathway, and knocked on the front door.  The officers were unaware of the resident’s revocation of the implied licence, but the Court found that the police force was on notice of the revocation, stating, “It was incumbent upon [the police force] to ensure that information was passed on to its officers.”

The first incident occurred on 1 May 2015.  The man’s evidence was that he became aware of the presence of the police at his house when he heard banging on a window at the front of the house, followed by the ringing of the doorbell. It was daytime, and when he went to the front door, he could see through the glass that there was a police officer standing there, and he called out, “You’re trespassing; get off the property, please.” His evidence was that the police officer did not respond and continued to knock, but at no stage did the police officer identify himself or leave a calling card.

He said that the next incident was the following day when, late in the morning, a police officer was knocking on his window in an apparent attempt to get his attention. The doorbell was then rung, and he approached the door and told the police officer, “Get off the property; you’re trespassing,” to which the police officer did not respond but instead continued to knock. The man estimated that the police officer remained at his house for between 30 seconds and a minute and left a police calling card.

The third attendance at his home by police was on 11 May at around 9:20 in the evening when the man’s mother was also present. She was sitting in the lounge watching television, and he was in a back room when he heard her calling his name and telling him that someone was banging on the window. He went to the front door, and his mother told him that there was someone with a torch at the front of the house. He gave evidence that his dogs were barking, and when he looked outside, he saw that there was someone standing near the garage door, but he could not tell if it was a male or female. According to the man, the person was trying to lift the roller door and then went to his car and looked inside using the torch before attempting to open the car door. The person then walked up to the front door of the house and started banging on it, at which time a sensor light came on, and he could then see that it was a police officer. When he realized that this was the case, he said two or three times that the person was to get off the property as he was a trespasser, but the police officer did not respond, identify himself, or leave a calling card.

The last police attendance was during the day on 21 July 2015 when the man was alerted to the presence of an officer after the doorbell had been rung and there was banging on the door. He opened the door on this occasion and saw that it was a female police officer who was holding what he assumed to be a summons. His evidence was that he repeatedly told her to leave by saying, “Please get off the property; you’re trespassing.” He said that eventually she left but that she did not say anything.

 

The Police Evidence

The male police officer who had attended on the first three occasions gave evidence that he believed he was attempting to serve the man with a summons, although his memory of the three occasions was vague. The court noted that it appeared as though his evidence was a combination of, “[A] skerrick of memory, a degree of reconstruction, and a fallback position of relying on his usual practice at that time.”  The officer’s evidence was that on three occasions, two of which were during the day and one at night, he either knocked or rang the doorbell once or twice and waited a couple of minutes before leaving.  Nevertheless, there were differences between what the man said had occurred and the police officer’s evidence.  The Constable said that on none of these occasions had he seen or heard the man, and he denied that he banged on the windows or attempted to open the garage door or search through the man’s car.

The female police officer who attended on the last of the four occasions told the court that she had gone to the man’s home in an attempt to serve a summons upon him. She said that she initially pulled up in front of a neighbour’s house and made her way up to the front door by passing through the entry gate and walking up the pathway.  The officer then knocked on the front door, and when she received no response, she knocked on a window in an attempt to raise someone. She went back to the front door and saw that it had been opened, but the screen remained shut with a man standing behind it.  According to the officer, she attempted to explain who she was and what she was there for, but the person behind the door started to become belligerent.  According to the officer, the male was yelling at her, telling her that she was not welcome and that she was being videoed.  So when she realized that she was getting nowhere, the police officer left the property.

On assessing the evidence of the various witnesses, the Court concluded that where there was any conflict between what the police officers were saying and the evidence of the occupant, then the evidence of the officers was to be preferred. In fact, the court was not persuaded that the man was even home on the three occasions that the male officer went to the house.

 

Police Unaware of Revocation

The next issue was the fact that the two police officers were unaware of the man having revoked this implied licence. They’d had no previous dealings with him and did not know about the entry on the police computer system.  One officer told the Court that after she left the man’s premises, she conducted checks on the police computer system and noted the warning that he had removed his consent for police to attend his property.  She conceded that she could have undertaken that search before she had entered onto his property.  It was also inferred that neither officer had seen the sign at the front of his property for whatever reason.   The Court found that the man could not have been any clearer about his desires for police not to attend at his property and that it was incumbent upon SAPOL to ensure that information was passed on to its officers.

The Court found that the officers’ actions constituted trespass.  It was held that “the applicant through his communications with [the police] had clearly and unequivocally revoked the implied licence to enter his premises.”  As a result, the resident was entitled to damages for each of the four trespasses.

 

What are the Damages for Trespass?

In most cases, a civil action requires that the person making a claim has suffered loss or damage in order to be compensated. Trespass is different because it involves the interference with basic interests rather than actual harm. An application to bring a claim to vindicate those interests can be made regardless of whether the conduct has left the property owner any worse off. Compensation or damages are not only available to compensate for any negative physical, psychological, emotional, or economic effects actually suffered by the applicant, but damages may also be given for interference with basic interests irrespective of whether actual loss was suffered. The court noted that even a minor interference with basic interests shall be met with a remedy to mark the wrong.

On the other hand, the court noted that the sign that the man had placed on his premises was relatively small and positioned in such a way that only people entering the property from a particular direction and angle would necessarily see it. More significantly, he did not take the easy and obvious step of closing the driveway gates or securing any of the gates leading onto the property to ensure that his intentions were known. While there was no obligation on him to do anything more than convey his revocation of the implied licence, the court said that his relatively feeble attempts to communicate that intent to any member of the public called into question how genuine his motives were.

In assessing damages, the Court considered the impact of the trespass on the resident.  While recognising the legitimacy of the police purpose, the Court emphasised the resident’s right to withdraw consent for entry.  It noted that, “The applicant had made significant efforts to convey to [the police] that he had withdrawn the implied licence and he had received a response that would have given him some comfort in that members of [the police] had been put on notice of his attitude towards their entry onto his property.”

The Court awarded the man $10,000 for each trespass, totalling $40,000.00, however, claims for aggravated and exemplary damages were rejected.  The judge noted that the officers conducted themselves appropriately during their brief visits and that there was no evidence of malice or improper conduct.

This case underscores the importance of property rights and the legal principle that anyone, including police officers, must respect a property owner’s explicit instructions regarding entry.  As the case highlighted, “It is clear … that in order for a person to revoke an implied licence to enter a residential premise there must be effective communication of that decision.”

For members of the public and authorities alike, this case serves as a reminder that even commonplace actions, such as approaching a front door, can have legal consequences if prior consent has been explicitly withdrawn.

There is no question that police have a difficult and challenging job and the majority of our Police Force do it well.  Sadly, all too often we see instances involving police conduct that gives rise to a right to claim damages.  Any person who feels aggrieved by the conduct of police on or with respect to their property can obtain legal advice in an obligation free telephone consultation with Websters Lawyers by calling 8231 1363.

 

Consenza v State of South Australia [2024] SASC 97

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2024/97.html

 

* The Plenty v Dillon Trespass Case

The Plenty v Dillon trespass case relates to an incident in 1978 when two police officers went to the home of Mr Plenty to serve a summons. Before this, there had been earlier efforts to serve the summons, and Mr Plenty was uncooperative and ordered the police officers off his land. Mr Plenty had written to a chief inspector enclosing a copy of a letter to the premier, the gist of which was that he wanted any summons to be served by mail. The chief inspector and another constable went to his property to serve the summons, on which occasion there was an acrimonious exchange between Mr Plenty and the police in which he made clear that he would not accept service. Mr Plenty argued that the police were trespassers on his land because they knew that his implied or tacit licence to come onto the land had been expressly revoked.

As a result of this case and others, it has been established that for a person to revoke an implied licence to enter a residential premises, there must be effective communication of that decision. Mere intent is not sufficient, nor is the doing of some nominal act that was unlikely to put the relevant member of the public on notice. In this case, the man had both written to the police and placed a prominent sign adjacent to his driveway. The court concluded that through his communications with both SAPOL and the Police Complaints Authority, he had clearly and unequivocally revoked the implied licence to enter his premises.