By Paul Gregoire and Ugur Nedim
Along with senior constable Rankin, then NSW police acting sergeant Fahey attended a NSW Northern Rivers region property at Warrazambil Creek on 24 August 2021, in relation to an email detective inspector Greenwood received suggesting a potential illegal gathering may take place.
The legality of the gathering or possible protest on the private property was under question as it likely contravened a public health order made under Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), which was in force at that time due to the pandemic.
Property owner Sanchia Romani had a sign on the gate and another erected two metres inside the property, both warning that it was private and those entering without permission would be trespassing. The inner sign specified that police were included and a fine would apply on trespass.
Despite seeing the signage and noting the fact the property’s gate was padlocked, the officers nevertheless jumped the fence and entered. Both claimed to believe they had a right to enter, and Rankin later specifically stating he was of the view the common law permitted police entry to make inquiries over a suspected illegal act.
A traumatising intrusion
Sanchia wasn’t home at the time, although her 19-year-old daughter, Maia Huxtable, was present and walked down the driveway to meet the officers. A discussion ensued, which involved Maia telling police her mother wasn’t home and asking them to go outside of the fence.
The young woman became increasingly uneasy as the officers asked about what she was holding behind her back, which turned out to be her phone, as well as when they told Maia that they’d be back repeatedly until they spoke to her mother.
After the interaction, the officers left the property, and Maia returned to the house, where her 14-year-old brother was also in a distressed state.
Sanchia later explained that her children experienced “great anxiety, distress, worry and trauma”, while she felt “grossly invaded”, as the family had experienced a violent home invasion in 2016, which involved two of her three children being chased by a man who was armed with a gun.
On returning to Kyogle police station, the officers filled detective Greenwood in on the visit, and he told them not to return. The more senior officer then noted in the logbook that the visit was spurred by an email from a shop where Sanchia had tried to print her protest pamphlets.
Sanchia then submitted a 25 August complaint to NSW police regarding the incident, in which she requested that no more repeat visits occur. And in September, the district inspector sent a message to her outlining that the police had attended the property, along with explaining why they had.
In November, Sanchia proceeded to file a claim for relief in relation to the tort of trespass with the NSW Supreme Court on behalf of herself and Maia. And in March 2022, Justice Mark Ierace ordered that the officers be removed as the defendants, and they be replaced by the NSW state.
The state of NSW then filed a legal defence on 16 May 2022, in which it admitting it was liable for the tort committed by the two officers, that their actions did constitute trespass “for a period of no more than three minutes”, and it denied the plaintiffs “suffered a personal injury as a result”.
The tort of trespass
During the 6 and 7 of December 2022 hearings, Justice Robertson Wright explained that Sanchia could raise the claim for compensation as she was the registered owner, but questions remained as to whether Maia could, as well as to whether the trespass occurred for more than three minutes.
A tort is a wrongful act that leads to legal liability. The tort of trespass occurs when there’s “interference with possession of land, including physical entry onto and remaining on the land, without the licence or consent of the person in possession or without other lawful authority”.
Justice Wright noted that the High Court found in 1994’s Coco versus The Queen that “any person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises”.
While the High Court of Australia further ruled in 2008’s Kuru versus the State of New South Wales that “police officers have no special rights to enter land, except in cases provided for by the common law and by statute”.
And his Honour added that there was nothing in the current case to suggest the officers involved had a “lawful right to enter” the property without the consent of the occupier.
According to the High Court ruling in 1984’s Halliday versus Nevill, in Sanchia’s case and in general, if a driveway or path to a dwelling is left open, with no signage indicating visitors aren’t welcome, any person is free to approach a residence for the purpose of lawful communication.
“In these circumstances… the implied licence for the police officers to enter the property for the purpose of such lawful communication was impliedly refused or withdrawn by the locked gate and expressly revoked or precluded by the signs,” Justice Wright ruled.
“There being no other authority for their entry, the police officers therefore committed the tort of trespass.”
Despite Maia, as a resident and a family member, having been disturbed on the property, Justice Wright explained that only Sanchia, as the registered proprietor with exclusive possession of the property, was able to seek compensation.
So, while the tort of trespass does extend the right to be free from invasion to family members living in a domestic relationship on a property, the disturbance of such a person aggravates the infringement of the right of the registered proprietor, rather than permitting that person to sue also.
And in terms of the period of time the officers were on the property, his Honour found it was likely between three to five minutes.
Sanchia was seeking $2.35 million in compensation. And Justice Wright outlined that even though the trespass lasted for a mere three to five minutes and nothing was damaged, the plaintiff was “entitled to some damages in vindication of her right to exclude the officers from her property”.
On learning of the trespass, Sanchia had stated that her family’s liberties in relation to peacefully living on their property had been “grossly infringed”, that the conduct of the officers was “intrusive” and that they’d acted “in a disturbing manner” as “they used their powers to intimidate”.
His Honour found the trespass had not, however, led to Sanchia experiencing physical, psychiatric or psychological injury, which, if had been the case, wouldn’t have led to a successful claim anyway, as the tort only permits damages for “natural and probable” consequences of trespass.
“Sanchia’s feelings of hurt or distress resulting from the trespass… are not in my view fully compensated for by the awarding of general damages for violation of the right of exclusive possession,” Justice Wright set out.
“Compensation for such feelings of hurt or distress caused by the circumstances and manner of the wrongdoing may, however, be achieved by way of aggravated damages, provided there is no double counting.”
And despite Sanchia not having expressly sought aggravated or exemplary damages in addition to general damages, his Honour allowed the civil case to proceed as if she had.
Orders of the day
Justice Wright explained that aggravated damages are a form of general damages warranted due to injury, which may be intangible. Although Sanchia’s injuries didn’t constitute this, as she was not present during the trespass, but she was due to such damages in relation to her kids’ trauma.
In terms of exemplary damages, these do not constitute compensation, rather they’re an expression of the court’s disapproval of a wrongdoer’s actions. And Sanchia was warranted such damages, as while the officers believed they weren’t doing wrong, they should’ve known they were trespassing.
In having considered the outcomes of other trespass cases, his Honour, on 7 February this year, determined to award Sanchia $17,500 in compensation: $7,500 for the breach of her right, $5,000 for aggravated damages and $5,000 in relation to exemplary damages.
In calculating the interest over the interim period, the compensation amount rose to $18,334.69. And no order on costs was resulting, which left each party to cover their own.