Dealing with law enforcement can be tricky. Refusal to obey police when they are acting within their powers could end badly for you, but how do you know exactly what your rights are when dealing with the police?
Police certainly do have some extra powers but they can’t just exercise them in any way they want and they definitely can’t just come into your home without a good reason.
One man had his property trespassed on by police and he didn’t stand by. What followed was a dispute that ended up in the High Court.
One night in June, 2001, police were called to a flat in Sydney following a report of a male and a female fighting. Six officers went but by the time they had arrived, the woman had gone to his sister’s place and the male, Mr Kuru, was taking a shower. Two of Kuru’s friends were in the living room when the police arrived. They informed him that police were present and Kuru came out of the bathroom.
Police asked Kuru if they could look around and he consented. He told police that his fiancée, with whom he had been fighting earlier that night, had left and gave them her telephone number.
Kuru then asked the police to leave, several times, very bluntly and angrily. Police refused to leave, although from that time onward they had no legal justification for remaining in his home.
The reasons that justified their initial entry were no longer present: there was no need for them to “keep the peace”, or prevent a domestic violence offence.
After this point, an altercation broke out and it ended with Kuru being punched, handcuffed and sprayed with capsicum spray. He was dragged out of his apartment and down stairs, falling twice, and wearing only his boxer shorts. He was taken to the police station and held in custody for several hours.
The defence of self-defence extends not only to yourself or other people, but also to your property. You are entitled to use force to protect your property from trespass.
He then brought proceedings against the State claiming damages for trespass to land, trespass to person and false imprisonment.
After going through the District Court, Court of Appeal and the High Court, Kuru was successful and received damages. The State was also ordered to pay Kuru’s legal costs.
Whilst the law today is slightly different than when this case was decided, the principle still stands: police can’t just come onto your property for any reason and they can’t stay longer than necessary without your permission.
In order to come into your home, police need one of the following reasons:
- Your permission (which you can revoke at any point)
- A warrant
- Statutory authority
Police may come into your house if you give your consent. However this consent can be later withdrawn. Once you have asked them to leave and they refuse to do so, they are trespassing if they have no other lawful grounds for being on your property.
Police may enter your property with a warrant. This is an important protection of the right of individuals to enjoy their home free from unnecessary police intrusion.
It is a deliberate act of parliament to ensure that police would need to get permission from someone a little more distant from the situation.
If police have a warrant to enter your house, however, they cannot just barge in, unless they have a covert search warrant or immediate entry is necessary to prevent imminent danger.
They must announce their presence and allow the people on the property the time to let them in. However if this is not granted, the police may use any power reasonably necessary to get into the premises. This may include disabling security surveillance devices, cameras or alarms on the premises.
If asked to do so, they must produce their warrant. Police cannot act beyond the powers contained in the warrant. For example, if they have a warrant to search the bathroom or the garage, this does not mean they can search all your bedrooms too.
However, if on the way to the bathroom they find illegal substances in plain view, like a large amount of cannabis, they are permitted to seize it.
There are some situations identified in legislation where police do not need a warrant to enter your premises. This is where it is reasonably necessary to:
- Investigate whether a domestic violence offence has been committed
- Render aid to an injured person
- Exercise any lawful power to arrest someone
- To prevent the commission of a domestic violence offence
For example if police believe that a dangerous crime, for example domestic violence, was taking place in your home, they would be allowed in. However they could only stay for as long as it necessary. If the perpetrator or victim of domestic violence has fled or the situation has calmed down to the point where police presence is no longer necessary, police have no right to stay and you can ask them to leave.
During a search, police have the power to ask whether there are any firearms in the dwelling and seize them. But police can only stay for as long as is “strictly necessary” to take the actions permitted by law.
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