Case Name: Andrea v Clarence
To determine if the arrest of Clarence was lawful, one must first determine if the police officers were trespassing at the time of the arrest.
Did the police officers trespass on another’s land in order to arrest Clarence?
The police officers would be found to have trespassed if it was established that;
• The action was direct and intentional
• The police officers entered and/or remained on another’s land
• The police officers were present on the land without consent or lawful justification
In this particular case, it is evident that the police officers intentionally entered and remained on another’s land in order to arrest Clarence. Thus, the only remaining question of law is whether or not the police officers
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As there is “no general licence implied by law permitting police officers to enter on private property to effect an arrest”, “it was held that the power to arrest did not authorize a constable to enter private premises to carry out an arrest”. Thus, one could argue that the police had exceeded the scope of any implied licence they could have argued to have held, resulting in their trespass upon the body corporate’s land, making Clarence’s arrest unlawful. However, Brennan J’s argument is the dissenting opinion and as such carries less weight than the majority and is not …show more content…
In this case, there was “indication”, that “appropriate steps” were taken to revoke any implied licence. Moreover, any implied licence granted could be believed to extend only to the front door, where they may engage in “lawful communication” with the body corporate, which according to the material facts was not even attempted. On the other hand, the majority decision stated that “the law is not such an ass that the implied…license…is restricted to…stepping over the item of property or around the child”, so long as the “passer-by” holds “a legitimate purpose that in itself involves no interference with the occupier’s possession nor injury to the occupier...or their property” (pg8). Overall, a court would probably conclude that any licence the police held did not extend to the lawful apprehension of