Can Police Enter Your Home or Private Property in NSW? What the Law Says

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Poppy Morandin.

Image credit: Petar B photography

Three men have been charged following an altercation in Auburn, when an officer ended up deploying pepper spray.

It is reported that around 11.10pm on 31 July 2021, officers from the Auburn Police Area Command’s Proactive Crime Team were patrolling Mclean Street, Auburn.

They approached a car which was allegedly parked illegally with two men sitting inside and the internal light on.

Both the 29-year-old driver, and 28-year-old passenger, exited the vehicle before the younger man allegedly fled on foot.

One officer detained the older man, who was issued with two $1,000 Penalty Infringement Notices for breaches of the Public Health Orders.

Another officer pursued the younger man on foot, running into the backyard of a house on Mary Street.

When the officer attempted to speak to the 28-year-old, two male occupants of the house, aged 31 and 60, also approached the officer.

Police claim that they did so in: “an aggressive manner and threatened him.”

The officer requested the men back away on multiple occasions, and deployed pepper spray after they allegedly failed to do so.

During this altercation, the officer exited the property, while the gate was closed on him by the occupants.

The gate was forced back open by police a short time later.

It is alleged that during this time the 28-year-old man fled the property.

All men involved have since been arrested and charged in relation to the incident.

The 28-year-old was charged with resist officer in execution of duty, not comply with noticed direction re section 7/8/9 – COVID-19 and fail to comply with any other wear face covering directive.

The 31-year-old man was charged with intimidate police officer in execution of duty, resist officer in execution of duty and resist or hinder police officer in the execution of duty.

The 60-year-old was charged with intimidate police officer in execution of duty and resist or hinder police officer in the execution of duty.

A video of the altercation has since circulated on social media.

The men are seen asking the officer why he has entered the premises and asking him to leave.

One of the men in close proximity to the officer is then pushed by the officer, who then raised his can of pepper spray in the direction of the men.

The officer begins to back away out of property as the men order him to get out, with the officer stating: “you’re going to get sprayed; you’re going to get sprayed.”

The officer then sprays pepper spray at the men, who close the gate on the officer.

Other officers are then seen breaking down the gate and reopening it, with one of the men stating: “stay outside my f*cking house…. bring your warrant.”

After a few minutes, the 31-year-old man is then grabbed by two police officers who tackle him to the ground and arrest him.

A woman is heard screaming in the background, as two officers restrain the man.

The interaction has caused concerns regarding mounting tension between communities and police officers.

The Lebanese Muslim Association (‘LMA’) released a statement detailing that they would be: “holding a meeting with members of the state police force, striving to reach a memorandum of understanding.”

“The LMA also requests that all interactions between the police force and community members are based on the language of dialogue, understanding, and respect.” it continued.

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), police can legally enter your property or the premise you reside in if you give them permission to enter by an invitation/ ‘consent’.

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Can Police Enter Your Home or Private Property in NSW? What the Law Says

Can Police Enter Your Home or Private Property in NSW? What the Law Says

There are a few limited ways that a police officer can lawfully enter your home or private property in NSW, according to law, namely, if you provide consent, secondly, if police have a valid warrant to enter and search your property, Thirdly, under section 9 of LEPRA as a power to enter in emergencies, and fourthly, under section 10 of LEPRA as a power to enter to arrest, or detain a person, or to execute a warrant.

Power of Police to Enter in Emergency

Pursuant to section 9 of the Act, police can enter a private property without a warrant or invitation if they believe on reasonable grounds that:

a person has suffered significant physical injury or there is imminent danger of such, and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person,
the body of a person who has died, otherwise than as a result of an offence, is on the premises and there is no occupier on the premises to consent to the entry, or
a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace.

A breach of the peace can encompass a wide variety of situations, including violent or threatening behaviour, and other disruptive activities, or a realistic apprehension of self-harm (Nicholson v Avon [1991] 1 VR 212).

What constitutes ‘breach of the peace’ will be fact dependant, according to the case of NSW v Bouffler [2017] NSWCA 185. The mere making of noise in public does not constitute a breach of the peace.

Power of Police to Enter to Arrest or Detain or Execute Warrant

Section 10 of LEPRA allows police to enter and stay in your home or private property for a reasonable period of time to arrest or detain a person, or to arrest a person named in a warrant.

This power can only be used by police if the police officer believes on reasonable grounds that the person to be arrested is in the private property.

Once police have entered under the above basis, the police are then permitted to search the premises for the person they intend to arrest.

When police use the above mentioned powers, they must also comply with certain safeguards outlined in Part 15 of LEPRA. This includes the requirement of the police officer to provide evidence that he/she is a police officer (unless in police uniform), disclose his/her name, place of duty and the reason for the exercise of the power to enter and/or arrest.

Questions? For any questions around this technical area of criminal law, don’t hesitate to call our friendly team of criminal lawyers Sydney office.

Published on 09/08/2021