By Julian R Murphy

On 8 September, the High Court will hear argument in Roy v O’Neill. The case is about whether police can approach a person’s front door to investigate them for a criminal offence. That question, in turn, entails consideration of whether such police are trespassers or whether they can claim the benefit of the common law implied licence normally extended to door-to-door salespeople and Jehovah’s Witnesses.

I have outlined some of the case’s comparative and constitutional dimensions in a ‘Before the High Court’ article in the Sydney Law Review. Here, I want to discuss the case’s potential implications for police practices, particularly during the pandemic. Before discussing those potential implications, it is helpful to provide an overview of the facts and proceedings in Roy.

‘An Orwellian intrusion’?

Aileen Roy and her partner resided in a public housing unit in Katherine in the Northern Territory. The unit complex had a perimeter fence but no locked gate. On 6 April 2018, three police officers attended the unit and knocked on the door. They were there to check whether Ms Roy was complying with a domestic violence order that prohibited her from being with her partner if she was intoxicated. The police had not received any complaint about Ms Roy’s behaviour that day, nor had they any other reasonable grounds to suspect that Ms Roy was committing an offence. Rather, police were attending the residence as part of a ‘proactive policing‘ operation to check compliance with domestic violence orders.

Having knocked on the door, the police could see through the flyscreen into the residence, where Ms Roy and her partner were together, apparently in the lounge room. The police called upon Ms Roy to come to the front door. When she did so, she was required to provide a breath test. Ms Roy returned a positive result for alcohol, was arrested and ultimately charged with the offence of breaching a domestic violence order. Continue reading →