Was the arrest of Tara lawful?
One characteristic of trespass to land is that the defendant does not have the plaintiff’s consent to enter their land. In this case, it can be contended whether or not the police officers had the implied consent of the property owner to enter her land.
Did obstruction of an open path revoke implied consent?
This matter was considered in Halliday v Nevill [1984] 155 CLR 1. The majority decision stated that implied consent can be given to the public to enter a private property if the dwelling is ‘left unobstructed and with entrance gate unlocked’ under certain conditions. In this case, the entrance to the property was a “generous open gateway”. However, there were two cases of obstruction in this scenario …show more content…
door and ask whether [they] may be given permission for what he wishes to do.’ In this case, the police officers entered the private property to “knock on the front door” but, as there was “no answer”, the property owner was unable to give the officers permission to do what they intended to do. This means that no consent was given beyond the implied consent that allowed the police officers to approach the front door and knock. As explored in Halliday v Nevill, “a police officer who has no right to remain on premises must leave if the licence is revoked” and, in this case, the police officers had no consent or licence to remain on the property once they had knocked on the front door. They, however, had travelled “50 metres” after knocking on the front door when they arrested Tara meaning that they did not have the consent of the property owner to remain on the land. It may be concluded that the police officers were committing trespass at the time of Tara’s arrest as their implied licence did not extend beyond approaching and knocking on the front …show more content…
In this case, Tara was arrested for “previous minor… driving offences” meaning that her arrest was, arguably, within the police officer’s course of duty. However, Halliday v Nevill involved an arrest occurring on an ‘open driveway’ rather than a location “along a dirt track towards a nearby shed” as was stated in this case. As the arrest did not occur on an ‘open path or driveway’ , it may be concluded that the police officers were acting outside of their duty and, therefore, were committing trespass at the time of the arrest as there was no implied licence for them to remain on the property beyond said open path or driveway.
It may be determined that Tara’s arrest was not lawful as the police officers were committing trespass at the time of the arrest. The officers acted beyond their implied licence by remaining on the property after there was no answer at the front door and venturing further than the driveway and path to the front door in order to arrest Tara. As they may have committed trespass at the time of the arrest, Tara’s arrest may be deemed
One characteristic of trespass to land is that the defendant does not have the plaintiff’s consent to enter their land. In this case, it can be contended whether or not the police officers had the implied consent of the property owner to enter her land.
Did obstruction of an open path revoke implied consent?
This matter was considered in Halliday v Nevill [1984] 155 CLR 1. The majority decision stated that implied consent can be given to the public to enter a private property if the dwelling is ‘left unobstructed and with entrance gate unlocked’ under certain conditions. In this case, the entrance to the property was a “generous open gateway”. However, there were two cases of obstruction in this scenario …show more content…
door and ask whether [they] may be given permission for what he wishes to do.’ In this case, the police officers entered the private property to “knock on the front door” but, as there was “no answer”, the property owner was unable to give the officers permission to do what they intended to do. This means that no consent was given beyond the implied consent that allowed the police officers to approach the front door and knock. As explored in Halliday v Nevill, “a police officer who has no right to remain on premises must leave if the licence is revoked” and, in this case, the police officers had no consent or licence to remain on the property once they had knocked on the front door. They, however, had travelled “50 metres” after knocking on the front door when they arrested Tara meaning that they did not have the consent of the property owner to remain on the land. It may be concluded that the police officers were committing trespass at the time of Tara’s arrest as their implied licence did not extend beyond approaching and knocking on the front …show more content…
In this case, Tara was arrested for “previous minor… driving offences” meaning that her arrest was, arguably, within the police officer’s course of duty. However, Halliday v Nevill involved an arrest occurring on an ‘open driveway’ rather than a location “along a dirt track towards a nearby shed” as was stated in this case. As the arrest did not occur on an ‘open path or driveway’ , it may be concluded that the police officers were acting outside of their duty and, therefore, were committing trespass at the time of the arrest as there was no implied licence for them to remain on the property beyond said open path or driveway.
It may be determined that Tara’s arrest was not lawful as the police officers were committing trespass at the time of the arrest. The officers acted beyond their implied licence by remaining on the property after there was no answer at the front door and venturing further than the driveway and path to the front door in order to arrest Tara. As they may have committed trespass at the time of the arrest, Tara’s arrest may be deemed