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Law Notes Litigation - Criminal Procedure Rules Notes

Police Entry And Search Of Premises Notes

Updated Police Entry And Search Of Premises Notes

Litigation - Criminal Procedure Rules Notes

Litigation - Criminal Procedure Rules

Approximately 238 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Criminal Procedure Rules Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Police Entry and Search of Premises

  • ss 9, 10 LEPRA – H&J 1649-1650

  • Seizure of property on premises s 22, LEPRA: H&J 1656

  • SM 60-76

5 Police Entry Search Seizure of Premises

Table of Contents

5 Police Entry Search Seizure of Premises 1

A Was there Power to enter premises ? 1

(i) Implied license? 2

(ii) power to enter if breach of peace, or imminent danger/ actual physical injury S 9 3

(iii) reasonable grounds to believe person to be arrested/detained is on premises s 10 5

B Power to search premises: can search for person s 10(3), LEPRA 9

CB: Plenty v Dillon 9

C Power to detain articles when lawfully in premises s 22 LEPRA and in vehicles s 36 11

D Common law search and seizure powers without arrest: Laurens v Willers 13

Appendix: LEPRA ss 9 and 10 15

Appendix: CB: Merritt (caravan entry without announcement) 16

A Was there Power to enter premises ?

Law

Unless police have warrant which allows them to enter specified premises, or unless there is an implied license to enter someone’s house or business, a PO can only enter a person’s property under a statutory power such as ss 9 or 10 LEPRA.

Overview –

  1. the person who enters land of another must justify that entry by showing either that entry was with consent, or had lawful authority.

  2. Either common law or statutory power to enter?

  3. Authority to enter land may be revoked? If revoked, then must leave as soon as is reasonably practicable.

ss 9 and 10 LEPRA: Police entry and search of premises

  • Also implied licence to enter: Halliday v Nevill (first class)

In exercising their powers under ss 9 or 10 the police must also comply with s 201 (safeguards relating to power) and ss 230 and 231 LEPRA.

(i) Implied license?

Law

Issue: Police went onto certain land for a certain purpose. Eg. If police tried to arrest a person on a driveway of another person, and then the accused broke away from the police, did the accused escape from lawful custody? If the police were trespassers then it would not have been lawful custody.

  • Whether occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked? Halliday v Nevill; Ibbett

Relevant facts:

  • Just up the driveway? The path up to the house is held out as the bridge between public and private dwelling upon which a passer by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession, nor injury to the occupier, guests or their property: Halliday

  • Any locks or signs? If door is locked probably no implied license. If path or driveway is left unobstructed and entrance ate unlocked and no sign forbidding entry by particular visitors then law will imply license in favor of anyone to go up to the house for purpose of lawful communication or delivery to any person in the house.

    • Wouldn’t be trespass to go and retrieve something that had blown over there: Halliday

    • Yes trespass No licence in Ibbett because police came under a garage door and stayed in their house despite being told to leave: - any licence given was removed -

(ii) power to enter if breach of peace, or imminent danger/ actual physical injury S 9

Law Circumstance: police has entered premises is an emergency.
Entry in emergencies: s 9.

Rule: In emergencies: two ways a PO can enter under s 10: A police officer may enter premises if the police officer believes on reasonable grounds that:

  1. Breach of peace: a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace: s 9(1)(a)

  2. Significant physical injury: a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person: s 9(1) LEPRA.

  • Scope of power limited to what is reasonably necessary: (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances: s 9(2) LEPRA

  1. What is a Breach of the Peace?

  • Test of harm/fear: Breach of the peace “occurs whenever harm is actually done or is likely to be a done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot unlawful assembly or other disturbance” R v Howell; Kuru

  • Power to enter to prevent a breach of the peace doesn’t extent to investigating whether there has been a breach of the peace or determining whether one is threatened: Kuru

    • In Kuru, at time POs went to the flat there was no continuing breach of the peace and nothing in the evidence suggested that but for the POs not leaving the flat when asked to do so, that any further breach was threatened let alone imminent.

    • Perhaps power to enter when thought that a breach had occurred but once information provided where the wife was, could have called to ask the wife, if unable to ascertain her location then get search warrant via telephone: legg on Kuru

Breach of the peace? Kuru v State of NSW

  • In Kuru, police were called to a violent domestic fight requiring available officers as quickly as possible. 6 POs went. The wife had left by the time they got there, and when appellant found the cops gave them permission to look around but then asked the police to leave the flat, police asked for more information about wife’s whereabouts and appellant gave some information and then asked them to leave several times. Eventually there was an altercation and the police punched and sprayed him with capsicum spray and handcuffed him, taken to police station in his boxers and released...

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