Police within rights to breath test woman in breach of DVO at her front door, court rules

POLICE were within rights when they knocked on a Territory woman’s door and breath tested her, showing her to be in breach of a domestic violence order, the High Court has ruled

The High Court has ruled police were acting within their rights when they knocked on a Katherine woman’s door and breath tested her in 2018.

• High Court to rule on ‘proactive policing’ in the NT after cops breathalyse Katherine woman at home

NT POLICE were acting within their rights when they knocked on a Katherine woman’s door and breath tested her, showing her to be in breach of a domestic violence order, the High Court has ruled.

Police visited the woman’s property in 2018 to conduct a welfare check on her partner — whom she had previously stabbed — and upon noticing she appeared intoxicated, asked her to take a breath test before charging her with breaching the DVO.

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After multiple appeals on the admissibility of the breath test evidence in Territory courts, Australia’s highest court has now clarified the police were not trespassing on the woman’s property.

In her ruling, Chief Justice Susan Kiefel said the officers had an implied right to visit the woman at home to make sure she wasn’t breaching the DVO and check on her partner.

“It is difficult to imagine how police could go about their business and more particularly how they could be expected to prevent domestic violence in the public interest unless they were able to make such inquiries and observations of the subject of a DVO and the person it is intended to protect,” she said.

Justices Patrick Keane and James Edelman said allowing the appeal would have meant police would lose the ability to enter a property “to inquire about the welfare of a victim of domestic violence in the circumstances in which such an inquiry would be of the greatest value to a victim of abuse”.

“The background norms of our society do not imply that a home is a sanctuary from which to abuse an occupier behind closed doors,” they said.

“Nor do they provide sanctuary from police knocking on the door to make the same inquiry that would be made by any decent and moral person who is concerned that the occupant might be abused, with the intention of exercising any powers if it is necessary to protect that occupant.”

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Justices Kean and Edelman said one possible consequence of allowing the appeal would have been “that proactive policing would be dead”.

“The police could no longer knock on the door of the very occupiers who might be in the most desperate need to ask ‘Are you OK?’,” they said.

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