O'Neill v Roy

The appellant, O'Neill, appealed against a decision of the Local Court which dismissed his appeal against conviction and sentence. The appellant was charged with being an occupant of a private property in breach of a Domestic Violence Order and for contravening a notice to submit to a breath test. The respondent, Roy, sought to have the appellant removed from the property, and upon police attending, the appellant was asked to submit to a breath test, which he refused. The appellant argued that the police had no lawful authority to enter the property and therefore any evidence obtained, including his refusal to submit to the breath test, should be excluded.

The central legal issue before the court was whether the police had the authority to enter private property to ensure compliance with Domestic Violence Orders and whether the evidence obtained during the trespass was admissible. The court considered whether the police had an implied licence to enter the property for the purpose of ensuring compliance with the Domestic Violence Order, or if their entry was a trespass which rendered any evidence obtained inadmissible. The appellant argued that there was no clear and express statutory power authorising the police to enter private property to investigate whether an offence has been committed. The respondent argued that the police had an implied licence to enter the property for the legitimate purpose of ensuring compliance with the Domestic Violence Order.

The court found that the police did not have an implied licence to enter the private property to investigate whether an offence had been committed. The court held that the police could only enter private property if there was a clear and express statutory power authorising such entry or if the occupier had expressly invited the police to enter. The court found that the police had no reasonable belief that an offence was occurring or may be occurring at the time of entry and therefore did not have the authority to enter the property. The court further held that the evidence obtained during the trespass was unlawfully obtained and therefore inadmissible. The appeal was dismissed as the evidence obtained during the trespass was the only evidence against the appellant and without it, there was insufficient evidence to sustain the conviction.

The court did not make any orders as the appeal was dismissed. The conviction and sentence of the appellant stood as determined by the Local Court.