Keane J & Edelman J 1.

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE AND EDELMAN JJ

AILEEN ROY APPELLANT

AND

JULIE O'NEILL RESPONDENT

Roy v O'Neill
[2020] HCA 45
Date of Hearing: 8 September 2020
Date of Judgment: 9 December 2020
D2/2020

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Northern Territory

CATCHWORDS

Roy v O'Neill

Evidence – Admissibility – Trespass – Where appellant charged with breach of

Domestic Violence Order ("DVO") – Where DVO included condition that
appellant not remain in her partner's presence while intoxicated – Where police
attended unit occupied by appellant and her partner for purpose of DVO check –
Where police engaged in wider proactive policing operation – Where police
knocked on front door and asked appellant to come to door for DVO check –
Where police observed signs of intoxication and requested appellant submit to
breath test – Where breath test positive for alcohol – Whether evidence of breath
test lawfully obtained – Whether police trespassed – Whether common law
implied licence permitted police to approach unit and knock – Whether lawful
purpose to attend unit.
 Keane J & Edelman J 2.

Words and phrases – "breath test", "coercive powers", "common law implied
licence", "Domestic Violence Order", "implied licence to enter private property",
"interference with an occupier's possession", "lawful communication with an
occupier", "lawful purpose", "police", "proactive policing", "trespass".

Police Administration Act (NT), s 126(2A).

Domestic and Family Violence Regulations (NT), reg 6.

{NF: editorial note- this decision was a 3-2 decision upholding the decision of the NT Court
of Appeal that the arrest in this case was valid as there had been no trespass to land committed.
Kiefel CJ agreed in the outcome with Keane and Edelman JJ, though with slightly different
reasoning. Bell and Gageler JJ dissented. It seems that the ratio of the decision will be that
expressed in the following extracted judgment of Keane and Edelman JJ.)

KEANE AND EDELMAN JJ.

Introduction

51 In ordinary circumstances, background social norms imply that every member of

the public has a licence to enter the curtilage of a property to knock on a front door or ring a
front doorbell in order to communicate with an occupier. A member of the public who has
concerns about the welfare of an occupant can knock on the door to ask if the person is all
right or to ask if the person is safe. This appeal concerns the authority of the police to engage
in the same conduct in order to address a plague of domestic violence in Katherine in the
Northern Territory.

52 The appellant's primary argument is that the police have no power merely to knock
on the door of an abused occupier living with the abuser simply to ask "Are you ok?".
The alternative argument is that our social norms deprive the police of a licence to do so
in the very circumstance in which the occupier might desperately hope for the police to
enquire about their welfare: where the occupier is known by the police to have been
abused by a co-habitant in the past so that the police intend, if the enquiry or
circumstances reveal it to be necessary, to exercise a protective power.

53 The broad context in which the issue arises is a visit by the police to the unit
occupied by the appellant, Ms Roy, and her co-habiting partner, Mr Johnson. Mr Johnson
suffered from a medical condition and was a vulnerable person. Ms Roy described herself
as his carer. She was subject to a domestic violence order ("DVO") protecting Mr Johnson
but the police suspected Ms Roy of abusing and manipulating Mr Johnson, particularly
when alcohol was involved, and they were aware that she had previously stabbed him.
The unchallenged police evidence was that "one of the main reasons" for their visit was
their concern for Mr Johnson's welfare. The police never entered the unit occupied by
Ms Roy and Mr Johnson. Ms Roy answered the door in a state of intoxication and was
requested to take a breath test. The breath test was positive for alcohol, suggesting a
violation of a condition of the DVO which required her not to remain in Mr Johnson's
presence while intoxicated.
 Keane J & Edelman J 3.

54 Ms Roy's central submission is that although members of the general public have
an implied licence to enter the curtilage of a property for the purpose of knocking on the
front door to communicate with the occupier, the police have no implied licence to do so
if their purpose for communicating is related to investigating a crime, such as domestic
violence, that one of the occupiers is suspected of committing, even if the other occupier
is a suspected victim of the crime. Ms Roy also submitted that the police have no licence
to enter the curtilage of the premises if the purpose of enquiry is accompanied by an
intention, however contingent or speculative, that the police might exercise coercive
power. In other words, the police would lose their licence to enter the curtilage to enquire
about the welfare of a victim of domestic violence in the circumstances in which such an
enquiry would be of the greatest value to a victim of abuse.

55 Neither of these submissions should be accepted. The background norms of our

society do not imply that a home is a sanctuary from which to abuse an occupier behind
closed doors. Nor do they provide sanctuary from police knocking on the door, to make
the same enquiry that would be made by any decent and moral person who is concerned
that the occupant might be abused, with the intention of exercising any powers if it is
necessary to protect that occupant. The appeal must be dismissed.

Background

56 On 1 June 2017, on the application of a third party, the Local Court of the
Northern Territory, sitting at Katherine, made a DVO against Ms Roy. The protected
person was her partner, Mr Johnson. The order imposed five conditions upon Ms Roy for
a period of 12 months. Conditions 1, 2, 4 and 5 restrained her from doing the following,
directly or indirectly: (1) approaching, contacting or remaining in the company of
Mr Johnson when consuming alcohol or another intoxicating drug or substance or when
under the influence of alcohol or another intoxicating drug or substance; (2) approaching,
entering or remaining at any place where Mr Johnson is living, working, staying, visiting
or located if consuming alcohol or another intoxicating drug or substance or when under
the influence of alcohol or another intoxicating drug or substance; (4) causing harm or
attempting or threatening to cause harm to Mr Johnson; and (5) intimidating or harassing
or verbally abusing Mr Johnson. Condition 3 provided that Ms Roy must "submit to a
breath test and/or breath analysis when requested by police in relation to this order". The
order was made with the consent of Ms Roy.

57 In 2018, a police officer, Constable Elliott, was concerned for the welfare of
Mr Johnson. He knew from speaking to Ms Roy previously that Mr Johnson suffered
from seizures and that she was Mr Johnson's carer. He had seen Ms Roy with Mr Johnson
at a bottle shop where Ms Roy was in charge of Mr Johnson's "BASICs card" and money.
He believed that Mr Johnson might be the subject of economic abuse1. He became
suspicious and, upon making enquiries, discovered that there had previously been eight
"incidents". No evidence was given about the nature of those incidents but
Constable Elliott learned that on a previous occasion Ms Roy had stabbed Mr Johnson.

1 See Domestic and Family Violence Act (NT), s 8.

 Keane J & Edelman J 4.

In late March 2018, Constable Elliott had seen Ms Roy involved in what he described as
"social order offences". He had warned her about possible breaches of her DVO and had
taken her to a sobering up shelter. In the weeks before April 2018, Constable Elliott had
observed antisocial behaviour coming from the unit that Ms Roy shared with Mr Johnson.

58 In April 2018, the Northern Territory Police Force in Katherine conducted

Operation Haven. This operation involved police activities designed to address concerns
about domestic violence and alcohol-related crime. The trial judge described domestic
violence in the Northern Territory as a "plague ... especially in a place like Katherine".
The police activities included proactive "compliance checks" at the premises of persons
subject to a DVO. Members of the Police Force were aware that most of the domestic
violence in the Northern Territory occurs "in the home behind closed doors".

59 On 6 April 2018, as part of Operation Haven, three police officers visited the unit
that Ms Roy shared with Mr Johnson. The police officers were Constables Elliott and
Dowie and Senior Sergeant Evans. The unit was part of multi-dwelling units of public
housing, which units were side by side or facing each other. Entries through the external
fence led to common pathways through the yard outside the high density unit dwellings.
The police officers entered the curtilage, which included the yard and the common area
of the unit dwellings, and walked up one of the common pathways which led to an alcove
within which was the main front door of the unit occupied by Ms Roy and Mr Johnson.

60 The main front door was open but a fly-screen door in front of it was closed.
Constable Elliott knocked on the fly-screen door. He looked through the fly-screen and
saw Mr Johnson sitting on a couch and Ms Roy lying on the floor. Although there is no
finding as to the precise words he used, he called upon Ms Roy to come to the door for a
DVO check. Constable Elliott noticed that when she got up from the floor she was very
lethargic. When she approached him, Constable Elliott could smell a very strong odour
of liquor on her breath. He saw that her eyes were bloodshot and she was slurring her
speech a lot more than on past occasions when he had spoken with her. He asked her to
submit to a breath test. She agreed. The test was taken in the alcove or on the step outside
the front door. The test gave a positive reading for alcohol. Ms Roy was taken to the
watch-house, where five attempts were made to take a breath sample from her for
analysis. It was thought that a sufficient sample could not be obtained due to her state of
intoxication.

The trial and the appeals

61 Ms Roy was charged by the respondent, Sergeant O'Neill, with one count of
contravention of s 120(1) of the Domestic and Family Violence Act (NT). That section
provides that a person commits an offence if the person engages in conduct that results in
a contravention of a DVO. The conduct relied upon was not particularised but the trial
was apparently conducted on the implicit basis that the offence was a breach of either
condition 1 or 2 of Ms Roy's DVO by Ms Roy remaining in the presence of Mr Johnson
while intoxicated.

62 The trial was held before Judge Woodcock in the Local Court of the Northern
Territory. The trial judge held that the police officers did not have the power under the
 Keane J & Edelman J 5.

Domestic and Family Violence Act or the Police Administration Act (NT) to enter private
property so that there was no basis for their request for a breath test. The trial judge
observed that Constable Elliott "did not extend his state of mind to an endeavour [to
justify the direction for a breath test] by s 126 of the Police Administration Act", which
would have empowered him to enter the premises if he believed on reasonable grounds
that a contravention of a DVO had occurred or was occurring. The evidence from the
breath test was excluded. The trial judge found Ms Roy not guilty.

63 An appeal was brought by Sergeant O'Neill to a single judge of the Supreme Court
of the Northern Territory 2. The grounds of appeal all focused upon the finding by Judge
Woodcock that the police officers had no power to enter the curtilage of a private
residence to check compliance with the conditions of a DVO, although such entry would
necessarily have involved the purpose of lawful communication with the occupiers,
Ms Roy and Mr Johnson. The appeal was dismissed by Mildren A-J. His Honour held
that the police do not have an implied licence to enter private property for the "mere
purpose of investigating whether a breach of the law has occurred" 3. Despite the absence
of any finding to this effect by Judge Woodcock, and despite the lack of any such assertion
in a notice of contention, Mildren A-J referred with apparent approval to Ms Roy's
submission that the sole purpose that the police had in knocking on Ms Roy's door was to
submit her to a breath test. His Honour rejected the police's submission that the purpose
of the compliance check was concern for the welfare of Mr Johnson, asserting that if
Constable Elliott had that purpose then it would have been expected that he would have
enquired about the welfare of Mr Johnson.

64 Sergeant O'Neill brought a further appeal to the Court of Appeal of the Supreme
Court of the Northern Territory. The Court of Appeal (Southwood and Kelly JJ and
Riley A-J) held that the police had a dual purpose in entering the curtilage of the premises.
The first purpose was "to determine whether the terms of a DVO were being honoured"
and the second was "to check on the well-being of the protected person under the Order" 4.
The Court of Appeal held that the police officers had an implied licence to enter the
curtilage of the property because these purposes involved lawful communication with the
occupier of the unit and did not involve an interference with the occupier's possession, or
injury to the person or property of either occupier. The appeal was allowed.

65 Ms Roy has two grounds of appeal to this Court. One ground asserts a specific
error by the Court of Appeal in what was said to be its conclusion that an implied licence
entitled the police officers to enter upon the curtilage of Ms Roy's premises for the
purposes of investigating Ms Roy for a criminal offence because they did so with the
additional purpose of communicating with another occupant of the same dwelling. The
other ground of appeal asserts a general error by the Court of Appeal in its conclusion
that the police were not trespassers on the curtilage of the premises. The grounds of

2 See Local Court (Criminal Procedure) Act (NT), s 163(3).

3 O'Neill v Roy (2019) 345 FLR 8 at 26 [44].

4 O'Neill v Roy (2019) 345 FLR 29 at 39 [37].

 Keane J & Edelman J 6.

appeal, as presented in submissions, raise essentially two issues. First, did the police
officers commit a trespass when they entered the curtilage of the unit occupied by Ms Roy
or did they have an implied licence to enter and to approach the front door to communicate
with Ms Roy and Mr Johnson? Secondly, if the police officers had such an implied
licence, did that licence terminate, with the effect that the police became trespassers, when
Constable Elliott asked Ms Roy to provide a sample of her breath?

Legal principles concerning implied licences

An implied licence to enter onto land

66 A person who enters the land of another must justify that entry by lawful authority
including consent or licence of the person with the right to immediate possession,
generally described as the occupier 5. If a licence to enter is not express then it can be
implied from the particular factual circumstances.

67 The implication upon which Ms Roy relies on this appeal is an implication in law,
not an implication in fact. The two are closely related. An implication in law is based
upon background facts and conventions rather than reasons of desired public policy. It is
akin to a presumption and it is based upon "an incident of living in society" 6, "the
reasonable requirements of society"7, "the habits of the country"8, or "background social
norms"9. A licence will only be implied as a matter of law if there is nothing "in the
objective facts which is capable of founding a conclusion that any such implied or tacit
licence was negated" 10. And this implied licence can be revoked at any time 11, which will
require the invitee to leave the land as soon as is reasonably practicable 12.

5 See Halliday v Nevill (1984) 155 CLR 1 at 10; Kuru v New South Wales (2008) 236
CLR 1 at 15 [43].

6 Halliday v Nevill (1984) 155 CLR 1 at 19.

7 Tararo v The Queen [2012] 1 NZLR 145 at 172 [15].

8 McKee v Gratz (1922) 260 US 127 at 136.

9 Florida v Jardines (2013) 569 US 1 at 9.

10 Halliday v Nevill (1984) 155 CLR 1 at 7.

11 Halliday v Nevill (1984) 155 CLR 1 at 7.

12 Kuru v New South Wales (2008) 236 CLR 1 at 15 [43]. See also Davis v Lisle [1936]
2 KB 434 at 438-439, 441; Lambert v Roberts [1981] 2 All ER 15 at 19; Dobie v
Pinker [1983] WAR 48 at 59.
 Keane J & Edelman J 7.

68 In Halliday v Nevill13 the joint judgment of Gibbs CJ, Mason, Wilson and
Deane JJ described the core, or most common, instance of a licence implied by law to
enter land as follows:

"The most common instance of such an implied licence relates to the means of access, whether
path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the
path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance
gate unlocked and there is no notice or other indication that entry by visitors generally or
particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour
of any member of the public to go upon the path or driveway to the entrance of the dwelling for
the purpose of lawful communication with, or delivery to, any person in the house."

69 An implied licence to enter land, and to remain on the curtilage of the property
outside the front door, for the purpose of communicating with the occupier of premises is
reinforced by the presence of a bell or knocker on the door: "The knocker says, 'Come
and knock me'; the bell says, 'Come and ring me'" 14. Contrary to the submissions of
Ms Roy on this appeal, where the implied licence concerns entry for the purpose of
communication with the occupier of a premises, the communication need not be one that
is desired by, or for the benefit of, the occupier. For instance, as Dixon J said in Lipman
v Clendinnen15, a customer who returns to a shop to complain about the quality of goods
purchased or the change received has an implied licence to enter the shop "during this
accessory visit, though it might not be for the shopkeeper's benefit, as during the principal
visit, which was".

70 The circumstances in which a licence to enter land will be implied in law are not
limited to the common instances of lawful communications with, or deliveries to, the
occupants of a premises. As the joint judgment in Halliday explained, the path or
driveway is "held out by the occupier as the bridge between the public thoroughfare and
his or her 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,
his or her guests or his, her or their property" 16. Other examples of a licence implied in
law include entry upon a driveway for the purposes of recovering an item of property or
an errant child17. In Halliday it was also held that a member of the police force, acting in
the ordinary course of his duties, had an implied licence to enter an open driveway for the
purpose of questioning or arresting a person who was not the occupier of the property but

13 (1984) 155 CLR 1 at 7.

14 Smith v London and Saint Katharine Docks Co (1868) LR 3 CP 326 at 331, quoted
in Lipman v Clendinnen (1932) 46 CLR 550 at 557.

15 (1932) 46 CLR 550 at 559, quoting from Indermaur v Dames (1866) LR 1 CP 274
at 287.

16 Halliday v Nevill (1984) 155 CLR 1 at 7-8.

17 Halliday v Nevill (1984) 155 CLR 1 at 7.

 Keane J & Edelman J 8.

whom the officer had observed committing an offence on a public street in the immediate
vicinity of that driveway18.

When trespass occurs despite an implied licence

71 If an implied licence to enter is limited to a particular purpose and if the sole

purpose of entry is entirely outside that particular purpose, then the entrant will be a
trespasser. Thus, in Barker v The Queen 19, although Mr Barker had an express licence to
enter the property to look after it while the owner was away, it was open to the jury to
conclude that he entered as a trespasser if his sole purpose was to commit theft so that his
entry "was quite unrelated to the invitation or licence which he had". In TCN Channel
Nine Pty Ltd v Anning20, an employee of the appellant who had an implied licence to enter
the curtilage of the property to ask the occupier for permission to film was a trespasser
because her purpose of entry was not to communicate. It was solely to make a film
recording, irrespective of any communication with the occupier.

72 On the other hand, a person who enters for one or more of the purposes within an
implied licence will not usually be a trespasser even if they have some other purpose that
falls outside the scope of the licence: a person's entry to a premises for an authorised
purpose "is not made unlawful because he enters with another and alien purpose in
mind"21. For this reason, in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd 22, Barwick CJ
and Menzies J held that an entry onto land was not a trespass even though it involved both
a lawful and licensed purpose of removing display plan goods and an unlawful and
unlicensed purpose of removing the plaintiff's own goods. And in Barker v The Queen23,
Mason J gave an example of a person who enters a shop for the purpose of stealing, saying
that the person is not a trespasser at the moment of entry if the entry is accompanied by
another purpose within the ambit of the shopkeeper's implied invitation. This implication
in law of a licence in instances of mixed purposes reflects the realities and incidents of
social life. The realities and incidents of social life do not require the drawing of
imperceptible, jurisprudential distinctions based upon whether a purpose within a licence
is or is not accompanied by other subjective motivations or purposes that might lie outside
the licence, especially where the other subjective motivations or purposes might be
conditional, subservient, or uncertain, or might never be acted upon. If such distinctions

18 Halliday v Nevill (1984) 155 CLR 1 at 8.

19 (1983) 153 CLR 338 at 348.

20 (2002) 54 NSWLR 333 at 348 [69], 349 [75], [78].

21 Barker v The Queen (1983) 153 CLR 338 at 347.

22 (1968) 121 CLR 584 at 598-599, approving the approach of Sugerman J in Inglis
Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR (NSW) 311 at 330-331.
See also Barker v The Queen (1983) 153 CLR 338 at 365.

23 (1983) 153 CLR 338 at 348. See also at 361-362.

 Keane J & Edelman J 9.

were drawn the operation of an implied licence would be practically unworkable. Of

course, as will be seen below, once the invitee acts upon any such motivation in a manner
inconsistent with the licence the invitee will become a trespasser.

73 The only, rare, exception to this principle concerning mixed purposes is where the
occupier, expressly or impliedly, makes clear that the licence is for an exclusive purpose
and does not extend to entry for a mixed purpose. In those unusual circumstances,
described by Brennan and Deane JJ in Barker v The Queen as circumstances permitting
entry only where it is "exclusively for the particular purpose" 24, a person who enters also
with an alien purpose will be a trespasser. For instance, no implied licence will arise for
entry for the purpose of communication with the occupier, even when that purpose is
accompanied by the purpose of delivering a parcel, if a sign is hung on a front gate saying
"Entry is permitted only for the delivery of parcels. Parcels must be left on the doorstep
without knocking on the door."

When an implied licensee later becomes a trespasser

74 At any point in time a person is either a trespasser or is not a trespasser in relation

to the same land25. If a person's licence to be present on land concludes, is exceeded, or
is revoked then the person will be a trespasser unless the person has some independent
legal authority to be present on the land. Therefore, a person who is not a trespasser upon
entry to land can become a trespasser if the purpose of their licence is exhausted, if the
licence is revoked, or if the person performs acts that are beyond the scope of their
licence26.

75 The most common instance where a right to enter or remain on land by implied
licence will cease, making the entrant a trespasser from that point in time, is where the
implied licence is revoked. An example is Davis v Lisle27. In that case, police officers
entered a garage to make an enquiry of the occupier about the presence of a motor lorry
that had been responsible for an earlier obstruction. The occupier of the garage told the
officers to leave but they did not do so. Even if the officers had an implied licence to enter
the garage the licence would have terminated when they were told to leave. As Lord
Hewart CJ said28:

"It is one thing to say that the officers were at liberty to enter this garage to make an inquiry, but
quite a different thing to say that they were entitled to remain when, not without emphasis, the

24 (1983) 153 CLR 338 at 365.

25 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 at 598-599,
606.

26 Barker v The Queen (1983) 153 CLR 338 at 357. See also at 345.

27 [1936] 2 KB 434.

28 Davis v Lisle [1936] 2 KB 434 at 437-438.

 Keane J & Edelman J 10.

appellant had said: 'Get outside. You cannot come here without a search warrant.' From that
moment on ... the officers ... were trespassers".

76 An example where a person becomes a trespasser by performing acts beyond the

scope of the licence was colourfully given by Scrutton LJ, who said that when "you invite
a person into your house to use the staircase, you do not invite him to slide down the
banisters"; at the point of sliding down the banisters the invitee becomes a trespasser 29.
Thus, in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd 30, Kitto J held that the
defendant's servants became trespassers when they took physical steps for the
unauthorised purpose of taking goods that were not subject to display plan agreements.

Implied licences for the police to enter or remain on land

77 Unless there are specific circumstances indicating otherwise, such as a notice

saying "Police keep out" 31, the implied licence to enter land applies to all members of the
public, including police officers, who "reasonably think that they have ... legitimate
business with the occupier"32. The police have the same implied licence as other members
of the public to approach and knock on a front door, or ring a front doorbell, for the
purpose of lawful communication with an occupier. The licence implied in law for all
members of the public with a purpose of communicating with an occupier is not negated
by the presence of some additional, perhaps contingent, subjective motivation. So too, the
implied licence for police to communicate with an occupier is not negated by a subjective,
perhaps contingent, motivation for the communication to investigate an occupier for the
commission of a criminal offence.

78 The case that establishes that police do not lose the implied licence to
communicate where the motive for communication is to investigate the occupier for an
offence is Robson v Hallett33. This decision, or the principle recognised in it, has been
acknowledged or applied for more than half a century34. In Robson v Hallett, three police
officers, without a warrant, entered the curtilage of premises occupied by people

29 The Carlgarth; The Otarama [1927] P 93 at 110, quoted with approval on this point
in Hillen and Pettigrew v ICI (Alkali) Ltd [1936] AC 65 at 69.

30 (1968) 121 CLR 584 at 606.

31 See Halliday v Nevill (1984) 155 CLR 1 at 19.

32 See Lambert v Roberts [1981] 2 All ER 15 at 19; Dobie v Pinker [1983] WAR 48 at
59.

33 [1967] 2 QB 939.

34 Halliday v Nevill (1984) 155 CLR 1 at 19; Barbaro v Spyrou (1991) 13 MVR 449
at 455; R v Bradley (1997) 15 CRNZ 363 at 368; Arnold v Police [2004] SASC 74
at [9]; Tararo v The Queen [2012] 1 NZLR 145 at 149-150 [18]-[20], 154 [33], 171
[11]-[12]; R v Daka [2019] SASCFC 80 at [76].
 Keane J & Edelman J 11.

including Dennis and Thomas Robson. The police were investigating a misdemeanour
that had happened that night. When Thomas Robson opened the door, Constable Paxton
asked him where he had been that night. In the events which followed, Dennis and
Thomas Robson committed various assaults, including upon Constable Paxton. Their
convictions for the assault of Constable Paxton were upheld at the Durham Quarter
Sessions. They appealed to the Divisional Court on the ground that the police officers had
trespassed when they entered the curtilage of the premises. Their appeal was dismissed.
Diplock LJ considered that "no one has thought it plausible up till now to question" the
existence of an implied licence for any person "who has lawful reason for doing so" to
proceed from the gate to the front door of a premises "to inquire whether he may be
admitted and to conduct his lawful business"35.

79 Like other members of the public, and without any other specific powers, police
officers will be trespassers if (i) the sole purpose for their entry onto the premises is
outside the scope of any implied licence, (ii) they remain on the land after the licence is
revoked, or (iii) they act in a manner inconsistent with the licence. An example of the
police entering premises with a sole purpose that is outside the implied licence is Florida
v Jardines36. In that case, a majority of the Supreme Court of the United States reiterated
that although the implied licence to approach the front door was not negated by the "mere
'purpose of discovering information'", the sole purpose in that case was to search the
premises: "no one is impliedly invited to enter the protected premises of the home in order
to do nothing but conduct a search" 37. An example of trespass when police act outside the
scope of the licence is Tasmania v Crane38. In that case the police were held to have an
implied licence to enter a property in order to make enquiries of the occupier concerning
a poppy crop being grown on nearby land, which the landowners had alleged to be grown
by somebody without the landowners' consent. When the police officers began to walk
around the building to investigate they exceeded their licence and became trespassers.

80 Apart from the licence which is implied in law by the common law, there are cases
"provided for by the common law and by statute" where police officers have "special
rights to enter land" 39. In those special cases, a balance is struck "between public authority
and the security of private dwellings"40. Examples of those special cases include the
common law power for a police officer to enter a home to arrest a person at or
immediately after the time of commission of a misdemeanour or who is suspected on

35 Robson v Hallett [1967] 2 QB 939 at 953-954. See also at 951 (Lord Parker CJ).

36 (2013) 569 US 1.

37 Florida v Jardines (2013) 569 US 1 at 9 n 4.

38 (2004) 148 A Crim R 346.

39 Kuru v New South Wales (2008) 236 CLR 1 at 15 [43].

40 Kuru v New South Wales (2008) 236 CLR 1 at 15 [45], quoting Halliday v Nevill
(1984) 155 CLR 1 at 9.
 Keane J & Edelman J 12.

reasonable grounds of being the offender of a felony41, and arguably also in some cases
of breach of the peace or apprehended breach of the peace 42.

81 An example of an implied licence possessed by police officers which ordinary

members of the public do not possess is the licence recognised in Halliday to enter the
curtilage of a property to question or arrest a person who is not an occupier of the property
and whom the officer had observed committing an offence 43. However, that circumstance,
described as "hedge-hopping", was said by Lord Diplock to involve "very different
considerations" from those where the person to be subject to coercive process is the
occupier44. The recognition of a common law implied licence to enter private land to
assert any coercive power against the occupier or the occupier's guests would disturb the
proper balance between public authority and the security of private dwellings. It would
cut across the common law regime of special cases, described above, which license the
entry onto land for the purpose of exercising only particular coercive powers and only in
particular circumstances. It would also be inconsistent with the foundation of the implied
licence in the habits and reasonable expectations of social life if the common law were to
extend the licence in Halliday to permit a police officer to enter the curtilage of a property
for the sole purpose of asserting any coercive power over the occupier or the occupier's
guests.

82 On the other hand, statutory provisions can build upon the common law implied
licence, extending it by implication in limited circumstances such as where it is
"necessary to prevent ... statutory provisions from becoming inoperative or
meaningless"45. An example is Pringle v Everingham46. In that case, the Court of Appeal
of the Supreme Court of New South Wales held that even after the revocation of the
implied licence of police officers to be present in a car park on the private property of a
hotel, the police officers were entitled to remain in order to complete a breath test that
was in progress. As Hunt A-JA said, the issue was whether the police officers were
entitled to remain in the car park to complete a breath test after any implied licence had

41 Halliday v Nevill (1984) 155 CLR 1 at 12; Plenty v Dillon (1991) 171 CLR 635 at
647. See also Nolan v Clifford (1904) 1 CLR 429 at 444; Hale, History of the Pleas
of the Crown (1800), vol 2 at 85; Stephen, History of the Criminal Law of England
(1883), vol 1 at 193.

42 Stephen, History of the Criminal Law of England (1883), vol 1 at 193; Halsbury's
Laws of England, 5th ed (2019), vol 84A at 113. Compare the discussion in Kuru v
New South Wales (2008) 236 CLR 1 at 17 [50]-[51].

43 Halliday v Nevill (1984) 155 CLR 1 at 8.

44 Morris v Beardmore [1981] AC 446 at 456.

45 Coco v The Queen (1994) 179 CLR 427 at 436.

46 (2006) 46 MVR 58. See also Lambert v Roberts [1981] 2 All ER 15; Dobie v Pinker
[1983] WAR 48 at 50, 68-69; Fisher v Ellerton [2001] WASCA 315 at [30]-[31].
 Keane J & Edelman J 13.

been revoked47. The purpose of the legislation 48 which authorised a police officer to
require a driver to undergo a breath test on a "road or road related area" was held to require
that the test be able to be completed 49.

83 Any necessary implication from the conferral of a statutory coercive power of

authority to remain on private land will depend upon the text and purpose of the
legislation. However, the greater the intrusion into a person's rights the more clarity of
expression that will be required 50. Other than statutory powers to arrest a person
reasonably suspected of having committed an offence, which have often been held to
provide a police officer with power at least to follow the person onto private property,
including the person's own property, in order to effect the arrest 51, a statutory implication
will not usually extend further than to permit a police officer to remain on the curtilage
of land in order to exercise a coercive power where the police officer was already lawfully
present. Hence, it will be very difficult to imply a power to enter the curtilage of a property
for the sole purpose of exercising a coercive power, and even more difficult to imply a
power to enter a dwelling house on the property to do so52.

Did the police officers have an implied licence to enter the curtilage of the unit
occupied by Ms Roy and Mr Johnson?

84 It is convenient to focus first upon Ms Roy's ground of appeal which alleges

specific error by the Court of Appeal in what is described as a finding of an implied
licence for the police officers to enter upon the curtilage of Ms Roy's premises for the
purposes of investigating whether she was committing a criminal offence. In support of
this ground of appeal, Ms Roy submitted that when Constable Elliott entered the curtilage

47 Pringle v Everingham (2006) 46 MVR 58 at 76-77 [77].

48 Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 13(1).

49 Pringle v Everingham (2006) 46 MVR 58 at 77 [79].

50 Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164 at 1200 [159]; 373
ALR 1 at 41-42; see also 93 ALJR 1164 at 1172 [4]; 373 ALR 1 at 4. See also
Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434 at 467-468
[102].

51 Dinan v Brereton [1960] SASR 101 at 104; Eccles v Bourque [1975] 2 SCR 739 at
744; Kennedy v Pagura [1977] 2 NSWLR 810 at 812; McDowell v Newchurch
(1981) 9 NTR 15 at 18; Halliday v Nevill (1984) 155 CLR 1 at 16; Lippl v Haines
(1989) 18 NSWLR 620 at 622, 632-633; R v Feeney [1997] 2 SCR 13 at 49-50 [47];
Wheare v Police (SA) (2008) 180 A Crim R 396 at 405-408 [28]-[37]; Police (SA) v
Williams (2014) 246 A Crim R 317 at 341-343 [287]-[291]; Bennett v Police (SA)
(2016) 261 A Crim R 80 at 89 and following.

52 Dobie v Pinker [1983] WAR 48 at 60-61. See also Clowser v Chaplin [1981] 1 WLR
837 at 841-842; [1981] 2 All ER 267 at 270.
 Keane J & Edelman J 14.

he did not have any purpose of checking the welfare of Mr Johnson. Ms Roy submitted
that Constable Elliott's only purpose was to direct her to take a breath test and that such a
coercive purpose was not within the scope of the implied licence.

85 If the factual foundation for Ms Roy's submissions on this ground were correct
then her submission should be accepted. As explained above, outside special
circumstances recognised by the common law, a police officer has no implied licence to
enter land for the sole purpose of subjecting an occupier to a coercive process. But the
factual assertion underlying Ms Roy's submission is contrary to the reasoning of the Court
of Appeal, which reasoning is directly supported by the unchallenged evidence of
Constable Elliott.

86 As Judge Woodcock found, and as the Court of Appeal held, the purpose for
which the police officers had attended the unit of Ms Roy and Mr Johnson was to conduct
a "check" in relation to compliance with the DVO. On this appeal, Ms Roy properly
accepted that this purpose was not in dispute. But, she submitted, contrary to the "dual
purpose" finding of the Court of Appeal, but consistently with the finding of Mildren A-
J, the police's purpose involved no concern for the welfare of Mr Johnson.

87 The second purpose in the dual purpose finding by the Court of Appeal, namely
the police's concern to check upon the welfare of Mr Johnson, followed almost inevitably
from the first, namely the purpose of conducting a "check". The very nature of Operation
Haven, and the compliance checks that it involved, was to address the effects upon
victims of domestic violence that Judge Woodcock described as a "plague" and much of
which, as the police were aware, occurred behind closed doors. Further,
Constable Elliott's evidence was that the welfare of Mr Johnson was "actually one of the
main reasons I went [to the unit] ... I had a pretty serious concern ... that there's been quite
a bit of manipulation going on in that relationship". He later added that a further reason
"as to why I actually went to this house on the day ... is [that] Ms Roy had actually stabbed
her partner, Mr Johnson, who is a vulnerable person". And in cross-examination he said
that he went to the unit because he believed "that there may have been domestic violence
occurring at that premises that we weren't aware of". That evidence was uncontradicted
and unchallenged at trial.

88 The finding of the Court of Appeal that the police officers had a purpose of
enquiring about the welfare of Mr Johnson is sufficient foundation for the conclusion that
the police had an implied licence to enter the curtilage of the premises, including walking
down the common pathway and standing in the alcove at the main front door of the unit
occupied by Ms Roy and Mr Johnson. That implied licence would not have been negated
by any other subjective motivation for the enquiry such as to investigate Ms Roy, whether
or not that motivation was certain or uncertain, and whether or not it was contingent upon
other events such as Ms Roy being present at the unit.

89 For these reasons, any subjective intentions or motivations of the police related to
their desire to communicate with the occupiers, such as to investigate an offence
involving breach of the DVO or to direct Ms Roy to take a breath test, did not negate their
implied licence to enter the curtilage. Nevertheless, in light of the focus upon the intention
of the police in Ms Roy's submissions, it is necessary to explain what must have been
 Keane J & Edelman J 15.

meant by a statement of the Court of Appeal concerning the intention of Constable Elliott.
In a separate part of the Court of Appeal's reasons from that which considered the purpose
of the police, the Court of Appeal said that Constable Elliott "was intending to obtain a
sample of [Ms Roy's] breath for analysis"53. That statement was made in the context of
describing Constable Elliott's belief that Ms Roy was "a continuous alcohol-related
offender". The statement was not based upon any direct evidence from Constable Elliott
that he intended to obtain a sample of Ms Roy's breath. It must have been derived from
his evidence that "I believe[d] ... she was going to be intoxicated because every time I've
dealt with her ... she has always been intoxicated". The finding of intention must mean,
and can only be justified as meaning, that Constable Elliott intended to obtain a sample
of Ms Roy's breath if circumstances so required, as he expected that they would. Plainly,
if Ms Roy had not been present at the unit then Constable Elliott could not have obtained
a sample of her breath; his only action could have been to communicate with Mr Johnson.
And there is also no basis to infer from the evidence that if, contrary to Constable Elliott's
expectation, Ms Roy were present and plainly sober then Constable Elliott would still
have sought a sample of her breath. Constable Elliott had an intention to obtain a breath
sample but it was a contingent, speculative intention.

90 These circumstances illustrate the unworkability of an approach which denies an

implied licence to any officer who might have a contingent intention to exercise coercive
power. A police officer could never be confident of having a licence to knock on the door
of a person suspected of domestic violence merely to enquire about compliance with a
DVO or the welfare of a co-habitant, since any police officer in those circumstances
would intend to exercise coercive power if it were required for protection of an occupier.
One possibility would be for the courts to develop, and police officers to act upon,
extremely fine philosophical distinctions between background conditional intentions and
conditional, speculative intentions. That would be hopeless in practice. The other
possibility is that proactive policing would be dead. The police could no longer knock on
the door of the very occupiers who might be in the most desperate need, to ask "Are you
ok?".

Did the police officers become trespassers when they asked Ms Roy for a
sample of her breath?

91 Ms Roy submitted, and the respondent did not dispute, that the request for a breath
sample by Constable Elliott was a direction under reg 6(1)(a) of the Domestic and Family
Violence Regulations (NT), which provides that a defendant "must comply with ... a
reasonable direction by an authorised person to submit to a breath test to assess whether
the defendant may have alcohol in his or her breath". For the purposes of that direction,
it is "not necessary that the authorised person suspects that the defendant has consumed
alcohol" 54. Ms Roy submitted that the implied licence to be on her property did not extend
to making a coercive direction.

53 O'Neill v Roy (2019) 345 FLR 29 at 30-31 [3].

54 Domestic and Family Violence Regulations (NT), reg 6(2).

 Keane J & Edelman J 16.

92 As explained above, the making of a coercive direction is beyond the scope of the
licence generally implied by law to enter the curtilage of a property. Unless that direction
were supported by a separate source of authority to be present upon the land, the making
of the direction would involve a trespass. One possible source of authority in this case
might be a necessary implication from reg 6(1)(a), permitting an authorised person to
remain on land which they entered with an implied licence. Such a necessary implication
would not merely arise from an asserted need to avoid stultification of the purpose of the
legislation. It might arguably also be supported by the need for coherence with
regs 7(1)(b) and 7(3), which permit a police officer to detain, and if necessary arrest, a
defendant for the purposes of conducting a breath analysis if the officer suspects on
reasonable grounds that the defendant may have consumed alcohol. If a police officer,
lawfully present upon the property of Ms Roy with an implied licence, has the power to
remain on the land to arrest her in order to conduct a breath analysis then it would border
on the bizarre to conclude that the officer does not have the power to remain on the land
to direct her to submit to a breath test in the event that she should decline to do so
voluntarily.

93 There is, of course, no suggestion that Ms Roy did not comply voluntarily with
the request for a breath test. No question of coercion would arise unless and until Ms Roy
refused to consent to provide a breath test, and Constable Elliott decided to invoke the
power conferred by reg 6(1)(a). Ultimately, it is unnecessary to consider the extent of any
necessary implication of authority to remain on the land that might arise from reg 6(1)(a).
In her submissions Ms Roy accepted that once the powers under s 126(2A)(b) of the
Police Administration Act were enlivened, those powers would provide an independent
source of authority for the police to remain on the land. Section 126(2A)(b) provides that
a member of the police force may "by reasonable force if necessary, enter a place if he
believes, on reasonable grounds, that ... a contravention of an order under the Domestic
and Family Violence Act has occurred, is occurring or is about to occur at the place".
Constable Elliott's observations of Ms Roy's lethargy, her bloodshot eyes, the slurring of
her speech, and the strong smell of alcohol plainly provided reasonable grounds for his
belief that she was intoxicated in the presence of Mr Johnson in contravention of her
DVO.

Conclusion

94 The appeal should be dismissed.