Kuru v State of New South Wales

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby,Hayne JJ,Heydon J.
• Judgment Date: 12 June 2008
• Neutral Citation: [2008] HCA 26,2008-0612 HCA A
• Court: High Court
• Docket Number: S649/2007
• Date: 12 June 2008

[2008] HCA 26

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ

S649/2007

Murat Kuru

Appellant

and

State of New South Wales

Respondent

Representation

B W Walker SC with M W Sneddon for the appellant (instructed by Carroll & O'Dea)

I D Temby QC with P R Sternberg for the respondent (instructed by Crown Solicitor (NSW))

Kuru v State of New South Wales

Torts — Trespass to land — Power of police to enter private premises — Police officers went to suburban flat after receiving report of male and female arguing — Police treated report as ‘violent domestic’ — Occupier invited police to ‘look around the flat’ — Occupier later asked police to leave premises — Police did not leave and remained on premises for longer than it would reasonably have taken them to leave — Whether statutory justification for police to remain on premises — Proper construction of Crimes Act 1900 (NSW) ss 357F and 357H — Whether express refusal by occupier immediately terminated authority of police ‘to so enter or remain’ on premises, irrespective of fulfilment of purposes for which entry effected.

Torts — Trespass to land — Power of police to enter private premises — Whether common law justification for police to remain on premises — Whether entry could be justified as directed to preventing a breach of the peace.

Words and phrases — ‘enter or remain’, ‘expressly refused’, ‘breach of the peace’.

Crimes Act 1900 (NSW), ss 357F-357I.

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 15 June 2007 and, in their place, order that the respondent's appeal to that Court on grounds 1, 2, 3 and 4 of the respondent's Notice of Appeal to that Court be dismissed.

3. Remit the matter to the Court of Appeal of the Supreme Court of New South Wales for further consideration and determination of grounds 5, 6, 7 and 8 of the respondent's Notice of Appeal to that Court.

4. Respondent to pay the appellant's costs of the appeal to this Court and of the proceedings in the Court of Appeal of the Supreme Court of New South Wales up to and including the entry of the order of that Court made on 15 June 2007.

5. Costs of the further hearing in the Court of Appeal of the Supreme Court of New South Wales to be in the discretion of that Court.

1 Gleeson CJ, Gummow, Kirby, Hayne JJ In the early hours of 16 June 2001, police received a report of a male and female fighting in a flat in suburban Sydney. Police treated the report as a ‘violent domestic’ requiring available officers to attend as quickly as possible. Six police officers went to the flat. Mr Murat Kuru (the appellant) and his then fiancée (now wife) who lived there had had a noisy argument, but, by the time police arrived, the fiancée had left the flat with the appellant's sister. When police arrived, the front door of the flat was open. The police officers went into the flat. Two friends of the appellant, who did not live in the flat, were in the living room and the appellant was taking a shower in the flat's bathroom.

2 When the appellant came out of the bathroom, he found that the police were in the flat. The police asked if they could ‘look around’ and the appellant agreed. After the police had looked in the two bedrooms, they asked to see ‘the female that was here’. The appellant said that she had gone to his sister's house. He asked the police to leave the flat. The police asked for the sister's address and telephone number. The appellant said he did not know the address but at some point he wrote a telephone number (presumably his sister's number) on a piece of paper. The appellant repeated his demand that the police leave. He did this several times, very bluntly and with evident anger. Still the police did not leave.

3 At some point the appellant jumped onto the kitchen bench. He was later to say that he did this to get the attention of everyone in the room. Whether he then jumped off the bench towards the police, or jumped off in the opposite direction, was disputed. That dispute need not be resolved. There is no dispute that having got down from the bench, the appellant moved towards the police, with his arms outstretched, and made contact with one of the officers. A violent struggle followed. The appellant was punched, sprayed with capsicum spray, and handcuffed. As he was led to a police vehicle, he twice fell down stairs leading from his flat to the ground floor. He was taken to a police station and lodged in a cell wearing nothing but his boxer shorts. He was released from custody some hours later.

4 The appellant brought proceedings against the State of New South Wales in the District Court of New South Wales claiming damages for trespass to land, trespass to the person, and false imprisonment. The appellant alleged in his pleading, and the State admitted in its defence, that the action was brought against the State in accordance with ss 8, 9 and 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) and s 5 of the Crown Proceedings Act 1988 (NSW). The application of those provisions was examined by this Court in New South Wales v Ibbett1 and New South Wales v Fahy2. No issue was argued in this appeal about the operation of these provisions, or about the liability of the State for any wrongs done by the individual police officers 3, and it is not necessary to say more about them.

5 At first instance the appellant succeeded. Judgment was entered for him for $418,265 with costs to be assessed on a ‘solicitor and client’ basis.

6 The State appealed to the Court of Appeal of New South Wales. It alleged that it was not liable to the appellant and that, in any event, the damages awarded (which had included aggravated and exemplary damages) were excessive.

7 The appeal to the Court of Appeal was conducted on the basis that if the State's appeal against the finding that it was liable for trespass to land failed, its appeal against liability in respect of trespass to the person would also fail, and conversely, that if the appeal against the finding of liability for trespass to land were to succeed, the appeal in respect of liability for trespass to the person would also succeed. The claim for false imprisonment was treated as standing or falling with the claim for trespass to the person. That is, the parties conducted the appeal to the Court of Appeal on the footing that the single determinative issue between them was whether the police officers were trespassing in the appellant's flat when the appellant first made physical contact with one of their number.

8 Evidence given at the trial may well have permitted framing the issues between the parties differently. There was evidence that might have been understood as permitting, even requiring, examination of whether the appellant's conduct went beyond taking reasonable steps for the removal of trespassers, and whether the conduct of the police went beyond the application of reasonable force to arrest a person impeding them in the execution of their duty. But the parties having chosen to litigate the appeal to the Court of Appeal on the conventional basis that has been identified, neither sought in this Court to submit that any issue about the use of excessive force either by the appellant, if his ejecting the police officers was otherwise lawful, or by the police officers, if their restraining the appellant was otherwise lawful, should now be considered by this Court.

9 The Court of Appeal (Mason P, Santow and Ipp JJA) held 4 that the State's appeal should be allowed. All members of the Court of Appeal concluded that, despite the appellant's withdrawal of permission for police to remain in his flat, the police were not trespassers when the appellant first made physical contact with one of the officers. The judgment entered at trial was set aside and in its place judgment was entered for the State.

10 The principal reasons for the Court of Appeal were given by Santow JA and Ipp JA. Those reasons differed in some respects but it is not necessary to explore those differences. Immediately, it is sufficient to say that both Santow JA and Ipp JA held that the police had both statutory and common law justification for remaining on the appellant's premises, despite the appellant having withdrawn permission for them to remain in his flat.

11 By special leave the appellant appeals to this Court.

12 The appeal to this Court should be allowed. There was neither statutory nor common law justification for the police remaining on the appellant's premises. The matter must be remitted to the Court of Appeal for consideration of the outstanding issues about damages. That outcome means that this Court cannot make orders disposing finally of the dispute between the parties. This Court has said on a number of occasions 5 that, although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit the matter to the intermediate court for consideration of grounds of appeal not dealt with below.

Relevant statutory provisions

13 At the time of the events giving rise to these proceedings s 357F to s 357I of the Crimes Act 1900 (NSW) made provision for powers of entry in cases of domestic violence 6. Section 357F was directed to entry by invitation; s 357G concerned entry by warrant; s 357H made more particular provision in relation to the exercise of powers of entry under ss 357F and 357G; and s 357I dealt with entry and search for firearms.

14 It will be necessary to set out the text of s 357F. But because the...