This assignment will analyse whether Officer Luxton or Mrs Smith were trespassers at any time in the scenario provided. The analysis will be based on the principles of the implied licence to enter property as established in the English case of Robson v Hallett and applied in New Zealand law by Howden v Ministry of Transport. The ILAC (Issue, Law, Application, Conclusion) method will be used to structure the response.
Officer Luxton
The central question regarding Officer Luxton is whether her presence on the property at 123 Morningside Road was lawful at all times, or if she became a trespasser at any point. This requires analysing her entry, her interaction with Harriet, and her final interaction with Nathan and Matt.
Issue 1: Was Officer Luxton’s initial entry onto the property lawful?
The first issue is whether Officer Luxton was legally entitled to walk up the path to the front door of the property.
Law
The law on this issue comes from the case of Robson v Hallett (1967). This case established that any member of the public has an "implied licence" to go from the boundary gate to the front door of a private dwelling. The purpose of this licence is to conduct lawful business with the occupier, such as making an enquiry. This principle was adopted and applied in New Zealand by the Court of Appeal in Howden v Ministry of Transport (1987). In Howden, the court confirmed that police officers, like any other citizen, can use this implied licence to approach a house for a legitimate purpose. However, the licence is limited to a reasonable and lawful purpose.
Application
In this scenario, Officer Luxton and Officer Hipkin saw a car driving poorly and noted its licence plate. They decided to call on the owner, Matt, to investigate. This is a legitimate and lawful purpose for a police officer. Officer Luxton proceeded up the path towards the front door. Her actions fall directly within the scope of the implied licence described in Robson v Hallett. She was on the property to conduct lawful business with the occupier.
Conclusion
Officer Luxton’s initial entry onto the property was lawful and was not a trespass. She was acting under the authority of the implied licence.
Issue 2: Did Harriet’s instruction for Officer Luxton to leave make her a trespasser?
The next issue is whether the instruction to leave from Harriet, a visitor, was effective in revoking Officer Luxton’s implied licence.
Law
The implied licence can be revoked by the occupier of the property (Robson v Hallett, 1967). An occupier is a person who has control and possession of the premises. If the licence is revoked, the person must be given a reasonable amount of time to leave the property. A person who is not an occupier does not have the authority to revoke the licence on behalf of the occupier.
Application
Officer Luxton was met on the path by Harriet. When asked if she lived there, Harriet said "No… I’m just here to visit my friend Nathan". Harriet then told Officer Luxton, "You need to leave". Because Harriet explicitly stated she was only a visitor, she is not an occupier of the property. She is a licensee herself and does not have the legal authority to grant or revoke entry to others. Therefore, her attempt to revoke Officer Luxton’s licence was not legally effective. Officer Luxton was entitled to ignore Harriet’s instruction and continue towards the front door to speak with an actual occupier.
Conclusion
Harriet’s instruction did not revoke Officer Luxton’s implied licence. Officer Luxton did not become a trespasser by continuing up the path after her conversation with Harriet.
Issue 3: Did Officer Luxton become a trespasser before she was pushed?
The final and most important issue is whether Officer Luxton became a trespasser after her licence was revoked by Nathan.
Law
As established in Robson v Hallett (1967), an occupier has the right to revoke the implied licence at any time. Once the licence is revoked, the person is no longer a lawful visitor but is not immediately a trespasser. They have a reasonable time to leave the premises by the most direct route. If they do not leave within a reasonable time, or if they do something other than leaving, they will become a trespasser. An officer who is trespassing is not acting in the execution of their duty.
Application
Officer Luxton knocked on the door and it was answered by Matt. Matt did not revoke her licence. However, his flatmate, Nathan, then came to the door. As a flatmate, Nathan is an occupier and has the authority to revoke the licence. He did this clearly when he told Officer Luxton that "she is not welcome". At this exact moment, Officer Luxton’s implied licence was revoked. Her legal status changed. She was now obliged to leave the property within a reasonable time.
The facts state that instead of leaving, Officer Luxton "tries to explain why she is there". This action is not consistent with leaving the property. She was attempting to continue the conversation or re-engage after her right to be there was terminated. It was at this point, by failing to begin the act of leaving, that she exceeded the reasonable time allowed. She became a trespasser on the doorstep. When Matt pushed her, she was arguably trespassing and therefore not acting in the execution of her duty, which would be a defence to the charge of assaulting a police officer.
Conclusion
Officer Luxton became a trespasser when she failed to leave the property after her licence was explicitly revoked by an occupier, Nathan. Her attempt to explain her presence, rather than immediately departing, meant she was no longer on the property lawfully.
Mrs Smith
The analysis for Mrs Smith also involves the implied licence, but for different reasons. We must consider her initial entry and her subsequent decision to remain on the property.
Issue 1: Was Mrs Smith’s initial entry onto the property a trespass?
The first issue for Mrs Smith is whether her act of running onto the property to retrieve her daughter constituted a trespass.
Law
The implied licence in Robson v Hallett (1967) is generally for the purpose of communicating with the occupier. However, the law of trespass also allows for entry in cases of necessity. It is unlikely that entering a property to ensure the safety of a child who has run away would be considered an unlawful trespass. It is a reasonable and necessary action for a parent to take.
Application
Mrs Smith’s three-year-old daughter ran up the path and onto the property. Mrs Smith ran after her to pick her up. Her purpose was not to communicate with the occupier, but to ensure her child’s safety and retrieve her. This is a very reasonable and justifiable purpose. It is highly unlikely that a court would find this brief and necessary entry to be a trespass.
Conclusion
Mrs Smith’s initial entry onto the property was not a trespass. She was acting out of necessity to retrieve her young child.
Issue 2: Did Mrs Smith become a trespasser by remaining on the path?
The second issue is whether Mrs Smith became a trespasser by staying on the property after she had picked up her daughter.
Law
A person’s licence to be on a property is tied to their purpose for being there. If the lawful purpose ends, the person should leave. Lingering on a property for a purpose not covered by the licence can make that person a trespasser. In Howden (1987), the officer’s purpose was to conduct a breath test, which the court found was not covered by the implied licence to make enquiries. Similarly, a licence for one purpose does not extend to all purposes.
Application
Mrs Smith’s lawful purpose for being on the property was to retrieve her child. Once she picked her daughter up, that purpose was complete. She was told by Officer Luxton to "carry on with her evening," which was a clear signal she should leave. Although Officer Luxton is not an occupier and cannot revoke a licence, this indicates that Mrs Smith’s original reason for being there was over. Instead of leaving, Mrs Smith retreated only "a metre or two" and stayed, and then began recording the events on her phone. Her purpose changed from retrieving her child to being a spectator. This new purpose of watching and recording a police interaction is not covered by any implied licence to be on private property. By remaining for this new purpose, she exceeded any justification for her presence.
Conclusion
Mrs Smith became a trespasser when she remained on the path after her lawful purpose of retrieving her daughter was complete. Her decision to stay and record the incident made her presence on the property unlawful. Therefore, Officer Hipkin’s later statement that she was trespassing was correct.
References
Howden v Ministry of Transport [1987] 2 NZLR 747 (CA).
Robson v Hallett [1967] 2 QB 939.
