Defences to Trespass

Question 1

What is the statutory authority?

Answer 1

Statutory Authority - - There is no trespass if the interference is authorised by statute, this isn’t the same as a warrant

Eg, the police have various statutory powers to enter land

Question 2

What are the four defences of Trespass

Answer 2

Statutory authority, ‘Ex Turpi Causa, expressed licence, implied licence

Question 3

What is ‘Ex Turpi Causa’?

Answer 3

‘Ex Turpi Causa’

Question 4

What is expressed licence?

Answer 4

Expressed Licence - There is no trespass if someone has an expressed licence to enter. Eg “yes, please come in”
- The licence only extends to the terms of the licence, otherwise they must rely on an implied licence.

For example, a contract for a technician may include a term for entry to the premise to service.

For example, a tradesperson cannot use that access to undertake some activity wholly removed from the licence.

Question 5

What is implied licence

Answer 5

Implied licence

Question 6

Robson v Hallet 🥊 facts and rule

Answer 6

Facts: Police came through the gate and up the door, knocking on the door. The owner’s son let one of the police in, and the other two stayed outside.

“The first is this, that when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front or back door, and to inquire whether he may be admitted and to conduct his lawful business.”

Question 7

TV3 Network Services v Broadcasting Standards Authority 🎥 facts and rule

Answer 7

Facts: A reporter goes to the door to interview a person; the person does not know she is simultaneously being filmed from outside of the property. They did this because they knew that the person wouldn’t want to be filmed and wouldn’t give consent.

• Implied licence is contextual.
• The licence only extends to that which ordinarily “falls] within the normal implied licence.” – eg to talk to them not to film them
• “Purposes for which it is known or understood that the occupier would not give consent will be outside the ambit of implication.”

Question 8

Hamed v R: 🪖 facts and rule

Answer 8

• The Police suspected the presence of “quasi-military training camps taking place in forest land, associated with Tuhoe iwi, around Ruatoki in the Urewera Ranges”
• Police accessed a forest block, in order to install cameras
• The land was a forestry block, accessible to the public for recreational purposes
• The Police had a warrant for visual surveillance but not to enter the forest block

Just because there is open access to the forest block then it doesn’t mean that you have permission to film

Question 9

Roy v O’Neil 🍻 facts and rule

Answer 9

Facts: A domestic violence order was made against Ms Roy. She was ordered not to be intoxicated in the presence of her partner.
An officer entered the curtilage (the area not enclosed within a building) and approached Ms Roy. The officer noted Ms Roy was intoxicated and requested her to undertake a breath test – she was drunk.

(Ms Roy wanted to exclude the evidence on the basis that the Police had no right to go to the door and ask for a breath test)

• In most circumstances mixed purpose is acceptable.

“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…”

AKA an implied licence is not defeated by having more than one purpose, having a mixed purpose (even if it is a nefarious purpose)

• Except where: “The occupier… Makes clear that the licence is for an exclusive purpose and does not extend to entry for mixed purposes”