The Common Law !!!

"In all cases when the King is party, the sheriff (if the doors be not
open) may break the party's house, either to arrest him , or to do other
execution of the [King]'s process, if otherwise he cannot enter. But before
he breaks it, he ought to signify the cause of his coming, and to make
request to open doors".

The scope of the third rule in Semayne's Case is stated in Tomlins'
Law-Dictionary (4th ed, 1835), vol I tit Execution, III 3:

"It is laid down as a general rule in our books, that the sheriff, in
executing any judicial writ, cannot break open the door of a
dwelling-house; this privilege, which the law allows to a man's habitation,
arises from the great regard the law has to every man's safety and quiet,
and therefore protects them from the inconveniences which must necessarily
attend an unlimited power in the sheriff and his officers in this respect;
hence, every man's house is called his castle.

Exceptions

Yet in favour of executions, which are the life of the law, and especially
in cases of great necessity, or where the safety of the king and
commonwealth are concerned, this general case has the following exceptions:

That whenever the process is at the suit of the king, the sheriff or his
officer may, after request to have the door opened, and refusal, break and
enter the house to do execution, either on the party's goods, or take his
body, as the case shall be.

But

Forced entry is justified when the purpose of the person making the entry
is either "to arrest ... or to do other execution of the [King}'s process".
It is not suggested that the defendant police officers proposed to arrest
Mr Plenty's daughter. They had no authority to do so. The magistrate had
power to issue a warrant for her arrest (Juvenile Courts Act, s 61(2), but
he did not do so. So the question is whether the police officers were
engaged in "execution of the [King}'s process".

Other Considerations

The cases draw a distinction between execution of the King's process and
the execution of process sued out for a litigant's private benefit. The
distinction is based on the difference between the public interest which is
served by execution of the King's process and the private interest which is
served by execution of other process. It is by no means clear that
proceedings under ss 8 and 15 of the Juvenile Courts Act are proceedings
"when the King is party". Assuming that the public interest in such
proceedings makes "the King ....party" for the purposes of the third rule
in Semayne's Case, the question remains whether the service of a summons
pursuant to s 27 of the Justices Act is an "execution of the [King}'s
process"? There is a surprising dearth of authority on this question.

We take the third rule's reference to execution of process to relate to the
enforcement of process which is coercive in nature, that is, to the
execution of process against person or property. That is how the rule was
understood in Tomlins' Law-Dictionary: "to do execution, either on the
party's goods, or take his body, as the case shall be." The service of a
summons is not an execution of process of that nature.

A Summons

A summons to appear before a court of summary jurisdiction to answer an
information or complaint does not itself compel a defendant to appear, Its
primary purpose is to ensure that natural justice is accorded to a
defendant by giving the defendant notice of the subject of the complaint
and an opportunity to be heard. Service of a summons, unlike the execution
of a warrant of arrest, does not coerce a defendant to appear, though a
failure to appear in answer to the summons may lead to the issue of a
warrant.

Conviction in Absentia

The essential nature of a summons as the means of according natural justice
has been established by long practice. In R v Simpson (1716) , when the
validity of summary convictions was challenged on the ground that the
defendant was not present, Lord Parker CJ, speaking for the Court of King's
Bench, said,

"The great objection against these convictions is, that the justices of the
peace have no authority to proceed against the party, and convict him of
the offence in his absence. As to this matter we are all of opinion, that
the conviction is a good conviction, though taken in the absence of the
party. And here it is to be observed, that the statute does not give the
justices any particular direction, or prescribe any particular form to be
observed in the convictions before them ; all that the statute requires is,
that this conviction be "by oath of one credible witness." So that the
justices are not obliged to the observance of any rules, unless those of
natural justice, which all man are bound to observe, One of those rules I
readily own is, That the offender should be heard before he be condemned.
But this rule must admit of this limitation, viz unless the party refuse to
appear. For as it would be unjust not to require the justices to summon the
party, and give him notice to appear and make his defence, so to require
more from the justices, would be to put it in the power of the offender to
elude justice, and render his conviction impossible, by wilfully absenting
himself."

The Expert

Thus Blackstone wrote (Commentaries on the Laws of England, (1769),
upon which The American Law was established also !!!
"The process of these summary convictions, it must be owned, is extremely
speedy. Though the courts of common law have thrown in one check upon them,
by making it necessary to summon the party accused before he is condemned.
This is now held to be an indispensable requisite, though the justices long
struggled the point; forgetting that rule of natural reason expressed by
Seneca,

'Qui statuit aliquid, parte inaudita altera,

Aequam licet statuerit, haud aequus suit.'

A rule, to which all municipal laws, that are founded on the principles of
justice, have strictly conformed: the Roman law requiring a citation at the
least; and our own Common Law never suffering any fact (either civil or
criminal) to be tried, till it has previously compelled an appearance by
the party concerned. After this summons, the magistrate, in summary
proceedings, may go on to examine one or more witnesses, as the statute may
require, upon oath; and then make his conviction of the offender, in
writing: upon which he usually issues his warrant, either to apprehend the
offender, in case corporal punishment is to be inflicted on him; or else to
levy the penalty incurred, by distress and sale of his goods."

The Magistrates Obligated and liable

In Burn's Justice of the Peace (30th ed, 1869) volI, p1126, the author states:

"It was before [the Summary Jurisdiction Act 1848] absolutely requisite in
all cases, unless where the legislature has in express terms dispensed
therewith, that the defendant should be summoned, in order that he may have
an opportunity of being heard and making his defence. This is but natural
justice, and if a magistrate should proceed against a person without
summoning or hearing him, he would be guilty of a misdemeanour, punishable
either by information or indictment.

A Summons is not Binding but to Not Attend is Not Sense

In Munday v Gill, Dixon J (at 86) distinguished trial on indictment from
summary proceedings by pointing, inter alia, to the bringing of the
prisoner to the bar of the court "in his own proper person" to stand trial
on indictment while, in summary proceedings, the defendant is given a
sufficient opportunity to appear which (unless he be in custody because it
is considered that he will abscond) he may exercise or not at his choice,
and, whether he avails himself or not of his right to be present, he is
dealt with by those assigned to keep the peace, who judge both law and
fact". The service of a summons is not the execution of coercive process
against either person or property. As Lord Goddard CJ said in R v
Holsworthy Justices; Ex parte Edwards [1952] 1 All ER 411 at 412:

Serving a Summons:

"Serving a summons is not an 'execution under the process of any court of
justice'; it is simply the commencement of process. The Common Law authority
tends against the proposition that the third rule in Semayne's Case applies
to service of a summons on premises entry onto which has been forbidden by
the person in possession and entitled to possession thereof. It follows
that the Common Law gave no authority to Constables Dillon and Will to go
onto Mr Plenty's farm in an attempt to serve the fresh summons on Mr. Plenty's daughter.

Right of Entry:

Next, it is submitted that the statutory power to serve a summons, either
personally or non-personally, carries with it the right to make such entry
on land as is necessary to effect service. This argument, which had the
support of the courts below, would construe the statute as conferring a
right to enter private premises without consent even though the person in
possession has no connection with the matter to which the summons relates.
Some statutes which confer a power to arrest have not been construed as
carrying a right to enter on private property (see per Lord Keith of Kinkel
in Clowser v Chaplin [1981] although, in other cases, a statutory power of
arrest has been held to carry a qualified right to enter: see Eccles v
Bourque [1975]. But a statute which confers a power to arrest is of a
different order from a statute which prescribes the manner of service of a
summons and which confers no power on a person to do a thing that person is
not free to do at The Common Law. Section 27 of the Justices Act is merely
facultative, giving to the process-server an option as to the manner of
service. It confers no relevant power. The option of personal or
non-personal service for which s 27 provides relates simply to the
sufficiency of the giving of notice to a defendant after which the justices
may proceed to hear and determine the matter in the exercise of their
jurisdiction. In truth, the provisions of s 27 do nothing to create an
implication that a process-server availing himself of either of the options
acquires a power to enter upon private land without the leave or licence of
the person in possession or entitled to possession thereof.

The Police Case Fails

The grounds advanced by the defendants to justify their entry fail. Their
entry was wrongful, and the plaintiff is entitled to judgement and an award
of some damages. The vicarious liability of the third and fourth defendants
was not argued and that question may require further consideration. At
first instance, Mohr J said that , even if a trespass had occurred, the
trespass was "of such a trifling nature as not to sound in damages". But
this is an action in trespass not in case and the plaintiff is entitled to
some damages in vindication of his right to exclude the defendants from his
farm.

In a Nut Shell, Second case

Gaudron and McHugh JJ. The question in this appeal is whether a police
officer has the right under the law of South Australia to enter private
property for the purpose of serving a summons after the occupier of the
property has notified the officer that he or she has no permission to enter
the land.

Factual Background

The first and second respondents, who are police officers, went to the
appellant's farm on 5 December 1978 in order to serve a summons on his
daughter and notices on the appellant and his wife. The summons and the
notices were issued pursuant to the provisions of the Juvenile Courts Act
1971 (SA) (the Act). It was common ground in this Court that the officers
did not have any express or implied consent to go onto the appellant's
land. In earlier statements and correspondence, he had made it plain that ,
if the summons was to be served, it had to be served by post.

The officers found the appellant, his wife and two other persons having a
conversation in a double garage, some distance from a dwelling-house on the
farm. The garage had no door, the opening on each side being separated by a
"pillar' of galvanised iron four feet in width. The appellant and his wife
refused to accept the summons and the notices. The first respondent placed
them on the car seat in which the appellant was sitting. As the first and
second respondents were leaving the farm, the appellant attempted to strike
the first respondent with a piece of wood. After a struggle, the appellant
was arrested. He was subsequently convicted of assaulting the first
respondent in the execution of his duty.

As a result of the incident, the appellant sued the respondents in the
Supreme Court of South Australia for damages for assault and trespass. The
trial judge gave judgement for the respondents. His judgement was upheld by
the Full Court. This appeal concerns only the question whether the
respondents are liable for trespass the appellant's land.

The Common Law Right of Entry

The policy of the law is to protect the possession of property and the
privacy and security of its occupier. A 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. Except in the cases provided for by the Common Law and by
statute, constables of police and those acting under the Crown have "no
special rights" to enter land.

Right of Entry

In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951):

"the occupier of any dwelling-house gives implied licence to any member of
the public coming on his lawful business to come through the gate, up the
steps, and knock on the door of the house." This implied licence extends to
the driveway of a dwelling-house. However, the licence may be withdrawn by
giving notice of its withdrawal. A person who enters or remains on property
after the withdrawal of the licence is a trespasser. In Davis v Lisle
[1936] 2 KB 434, police officers who had lawfully entered a garage for the
purpose of making inquiries were held to have become trespassers by
remaining in the garage after they were told by the proprietor to "get
outside".

Exceptions

The Common Law has a number of exceptions to the general rule that a person
is a trespasser unless that person enters premises with the consent,
express or implied, of the occupier. Thus, a constable or citizen can enter
premises for the purpose of making an arrest if a felony has been committed
and the felon has been followed to the premises. A constable or citizen can
also enter premises to prevent the commission of a felony, and a constable
can enter premises to arrest an offender running away from an affray.
Moreover, a constable or citizen can enter premises to prevent a murder
occurring. In these cases there is power not only to enter premises but,
where necessary, to break into the premises. However, it is a condition of
any lawful breaking or premises that the person seeking entry has demanded
and been refused entry by the occupier: see Swales v Cox [1981] QB 849 at
853. Furthermore, a constable, holding a warrant to arrest, may enter
premises forcibly, if necessary, for the purpose of executing the warrant
provided that the constable has first signified "the cause of his coming,
and ....[made] request to open doors": Semayne's Case, at 91b [195];
Burdett v Abbot (1811) 14 East 1 at 158, 162-163 [104 ER 501 at 561, 563];
Lippl v Haines (1989) 18 NSWLR 620 at 631. But no public official, police
constable or citizen has any right at common law to enter a swelling-house
merely because he or she suspects that something is wrong: Great Central
Railway Co v Bates [1921] 3 KB 578 at 581-582. Nor, except in the instances
to which we have referred, can any person enter premises, without a
warrant, to apprehend a fugitive who may be on the premises: Lippl v
Haines, at 636. Another exception to the general rule that a person who
enters premises without the express or implied consent of the occupier is a
trespasser is the rule that the sheriff can enter premises, by force if
necessary, for the purpose of executing process in cases where the
Sovereign is a party to the action: see the third resolution Semayne's Case
at 91b [195]. Moreover, if the door of premises is open the sheriff may
enter " and do execut[ion] at the suit of any subject, either of the body,
or of the goods" (at 92a[197]).

The Courts and Parliament MUST Obey The Common Law !!!

YOUR Dwelling is YOUR Castle

But the right to execute at the suit of a subject does not extend to
breaking open the outer doors of a dwelling-house: Semayne's Case at 92a,
92 [197, 198]; Burdett v Abbot, at 154-155 [560]; Southam v Smout, at
322-323, 326, 329; Tomlins' Law-Dictionary (4th ed, 1835), Vol 1, tit
Execution, III 3. It has been held, however, that, for the purpose of
executing process at the suit of any subject, the sheriff may break open a
barn or outhouse which is not part of a dwelling-house: Penton v Brown
(1664).

Search for Guns

A number of statutes also confer power to enter land or premises without
the consent of the occupier. But the presumption is that , in the absence
of express provision to the contrary, the legislature did not intend to
authorise what would otherwise be tortuous conduct: Morris v Beardmore, per
Lord Diplock, at 455. Thus, in Colet v The Queen [1981] 1 SCR 2, the
Supreme Court of Canada held that legislation which authorised the issue of
a warrant for "the seizure of any firearm" in the possession, custody or
control of a person did not authorise entry onto and the searching of the
premises of the person named in the warrant. In Clowser v Chaplin [1981] 1
WLR 837; [1981] 2 All ER 267, the House of Lords held that a legislative
power, authorising a constable to arrest without warrant a person who had
refused to provide a specimen of breath, did not authorise him to enter
private premises, without the permission of the occupier, for the purpose
of making the arrest.

Semayne's Case

In Semayne's Case, the judges of England resolved that, while "the house of
every one is to him as his castle and fortress, as well for his defence
against injury and violence, as for his repose" , there were cases where
the sheriff might enter private property without the consent of the
occupier. The third resolution of the judges provided:

"In all cases when the King is party, the sheriff (if the doors be not
open) may break the party's house, either to arrest him, or to do other
execution of the [King]'s process, if otherwise he cannot enter. But before
he breaks it, he ought to signify the cause of his coming, and to make
request to open doors; and that appears well by the stat of Westm 1 c 17
(which is but an affirmance of the common law) as hereafter appears, for
the law without a default in the owner abhors the destruction or breaking
of any house (which is for the habitation and safety of man) by which great
damage and inconvenience might ensue to the party, when no default is in
him; for perhaps he did not know of the process, of which, if he had
notice, it is to be presumed that he would obey it...."

The Police Excuse

The respondents submitted that the service of the summons and the notices
in the present case constituted the execution of process for the purposes
of the third resolution in Semayne's Case. Consequently, so it was
contended, no trespass had occurred notwithstanding the refusal of the
appellant to allow the first and second respondents to enter his land.

In terms, the third resolution in Semayne's Case does not deal with the
question of entry onto land; it deals with the right to "break the party's
house". However, by necessary implication, t he right to break the house
carries with it the right to enter the land on which the house is situated.
Nevertheless, nothing in the third resolution supports the entry of the
first and second respondents onto the appellant's land in the present case,
for the service of the summons and notices was not the "execution of the
[King]'s process".

The Police Lose

First, the Sovereign is not a party to the present proceedings. In Munday v
Gill (1930)

"There is, however, a great distinction in history, in substance and in
present practice between summary proceedings and trial upon indictment.
Proceedings upon indictment, presentment, or ex officio information are
pleas of the Crown. A prosecution for an offence punishable summarily is a
proceeding between subject and subject."

The summons addressed to the appellant's daughter was the product of a
complaint laid by an assistant police prosecutor.

With a Warrant

"In all cases when the door is open the sheriff may enter the house, and do
execut[ion] at the suit of any subject, either of the body, or of the goods
; as so may the lord in such case enter the house and distrain for his rent
or service."

"Serving a summons is not an 'execution under the process of any court of
justice'; it is simply the commencement of process".

The Summons

Service of a summons is the first step towards achieving procedural
fairness in the litigation. It fulfils a basic requirement of the rules of
natural justice. But it is not concerned to compel the attendance of the
defendant to answer the charge. If the defendant fails to appear at court
on the return date, the magistrate or justice may issue a warrant for the
apprehension of the defendant but is not required to do so. He or she may
proceed to hear the charge even though the defendant does not appear.

Thus, the object of serving a summons is different from the object of an
arrest or an execution against the goods or body of a person.

There is no logical basis for extending a rule whose object is to ensure
the satisfaction of a judgement or obligation or the attendance of a person
before a court to the case of the service of a document whose object is the
provision of information. The very limited nature of a constable's right to
enter private property for the purpose of arrest is by itself a compelling
argument for holding that, without making major changes to the law, the
common law cannot logically recognise the service of a summons as a ground
for entering premises against the will of the occupier. It would be
incongruous for the common law to permit entry for the purpose of arrest in
a few cases only but to permit entry for the purpose of serving a summons
in every case whatsoever.

Raising Revenue Top Priority

The policy behind the third resolution is that the public interest in
securing the Crown revenues and apprehending alleged offenders is greater
than any consequential interference to the private rights of the occupiers
of property. Serving a summons does not facilitate or promote this policy.
The object of the service is not to bring the defendant before the court or
to secure the revenues of the Crown but to apprise the defendant of the
nature of the case which is alleged against him or her. Whether or not the
defendant appears in answer to the summons is a matter entirely for that
person.

Summons is for the Benefit of the Accused not an Order

Failure to make an arrest or issue execution may frustrate the
administration of justice. But failure to serve a summons does not mean
that the administration of justice is frustrated. When the defendant
deliberately refuses to accept or evades service of the summons, judgement
against him or her may still be entered. The defendant cannot complain in
those circumstances that the rules of procedural fairness have been
breached. Nor can he or she complain if execution subsequently issues. Of
course, in most cases, a justice prefers to have a defendant, who evades
service, apprehended and brought before the court by warrant. He or she
will prefer to do so not merely for the purpose of ensuring that the
defendant does not evade the penalties imposed by law but because of the
deep reluctance of those trained in The Common Law System to permit a
charge to be heard against a person in his or her absence. Nevertheless, in
such cases it is the warrant and not the summons which secures the
defendant's presence.

Government Officials DON'T Have Right to Enter

At this late stage in the development of the common law, it seems
impossible to declare that, for the purpose of serving a summons, a
constable has a Common Law Right of entry upon private property without the
consent of the occupier. The general policy of the law is against
government officials having rights of entry on private property without the
permission of the occupier, and nothing concerned with the service of a
summons gives any ground for creating a new exception to the general rule
that entry on property without the express or implied consent of the
occupier is a trespass.

The Courts and Parliament MUST Obey The Common Law !!!

The contention that the respondents are not liable for trespass to the
appellant's land because of the third resolution in Semayne's Case must be
rejected.

Justices Act 1921 (SA), s 27

Section 27 of the Justices Act provides in part:

"subject to the provisions of this or any other enactment specially
applicable to the particular case, any summons or notice required or
authorised by this Act to be served upon any person may be served upon such
person by -

(a) delivering the same to him personally; or

(b) leaving the same for him at his last or most usual place of abode or of
business with some other person, apparently an inmate thereof or employed
thereat, and apparently not less than sixteen years of age".

In terms, s 27 has nothing to say about the right to enter property. If
service of a summons could only be effected by entry on premises without
the permission of the occupier, it would follow by necessary implication
that Parliament intended to authorise what would otherwise be a trespass to
property. But a summons can be served on a person without entering the
property where he or she happens to be at the time of proposed service. Of
course, inability to enter private property for the purpose of serving a
summons may result in considerable inconvenience to a constable wishing to
serve the defendant. But inconvenience in carrying out an object authorised
by legislation is not a ground for eroding fundamental common law right.

The Courts and Parliament MUST Obey The Common Law !!!

As Woodhouse J said in Transport Ministry v Payn [1977] where the New
Zealand Court of Appeal had to deal with a similar problem:

" I am unable to accept the view that it is open to the courts to remedy a
'flaw in the working of the Act' by adding to or supplementing its
provisions....Nor am I able to think that in a matter of this importance
Parliament can have taken it for granted that basic rights of citizens were
inferentially being overridden".

In our opinion, s 27 of the Justices Act did not authorise the entry of the
first and second respondents onto the appellant's property after they were
informed that they did not have his consent to enter.

Why Discuss New Zealand?

THEIR law is OUR law and will remain so while we are subjects of the Queen.
When SHE goes it ALL goes. That is why flirting with an airy fairy republic
is national suicide.

The appeal should be allowed

The purported justification for the first and second respondents' entry
onto the appellant's land has failed. The first and second respondents were
trespassers. Judgement in favour of the respondents should be set aside and
judgement entered for the appellant against all respondents on the claim of
trespass, since the parties seemed to have accepted that the third and
fourth respondents were vicariously responsible for the acts of the first
and second respondents in entering the appellant's land.

The matter must be remitted to the Supreme Court for the purpose of
assessing the appellant's damages.

In his judgement, the learned trial judge said that, even if a trespass had
occurred, it was "of such a trifling nature as not to sound in damages".

However once a plaintiff obtains a verdict in an action of trespass, he or
she is entitled to an award of damages. In addition, we would
unhesitatingly reject the suggestion that this trespass was of a trifling
nature. The first and second respondents deliberately entered the
appellant's land against his express wish. True it is that the entry itself
caused no damage to the appellant's land. But the purpose of an action for
trespass to land is not merely to compensate the plaintiff for damage to
the land. That action also serves the purpose of vindicating the
plaintiff's right to the exclusive us and occupation of his or her land.
Although the first and second respondents were acting honestly in the
supposed execution of their duty, their entry was attended by circumstances
of aggravation. They entered as police officers with all the power of the
State behind them, knowing that their entry was against the wish of the
appellant and in circumstances likely to cause him distress. It is not to
the point that the appellant was uncooperative or even unreasonable. The
first and second respondents had no right to enter his land. The appellant
was entitled to resist their entry. If the occupier of property has a right
not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out
in another context, the "right must be supported by an effective sanction
otherwise the term will be just meaningless rhetoric":

Law v/s Anarchy

Cited by Lord Edmund-Davies in Morris v Beardmore, at 461.

If the courts of The Common Law do not uphold the rights of individuals by
granting effective remedies, they invite anarchy, for nothing breeds social
disorder as quickly as the sense of injustice which is apt to be generated
by the unlawful invasion of a person's rights, particularly when the
invader is a government official.

The appellant is entitled to have his right of property vindicated by a
substantial award of damages. The damages awarded amounted to $167,000.

The Common Law

And how it applies across borders

Dillon v/s Plenty: