Trespass case #5
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.
After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”
S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.
The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
The High Court also said clearly that, while police (or a member of the public) might have power to enter premises to prevent a breach of the peace, no-one could do so for merely investigating a breach, or for finding out if there was a threat of one. (underline – but not the italics – added)
In the Kuru case, when the police arrived, the action was over. Except that the police then caused the real action.
“…but for the police officers not leaving the flat when asked to do so, any further breach of the peace was (not) threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant’s flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant’s arrest."
“It follows that the continued presence of police officers in the appellant’s flat, after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. No other form of common law justification for remaining in the appellant’s flat was suggested.” (underline added)
In management terms, the police weren’t part of a solution, so they became the problem. The High Court says the same thing, but in different words:
“For these reasons, the question treated by the parties as dispositive of liability (were the police officers trespassers when the appellant first came into physical contact with one of them) should be resolved in the appellant’s favour.”
The judgement above was jointly agreed by Chief Justice Gleeson and Justices Gummow, Kirby and Hayne. They basically ordered the NSW Supreme Court to reverse its decision, and awarded costs for all the earlier hearings in Mr Kuru’s favour. The High Court also highlighted that it was “not necessarily a great burden” for police to quickly get a warrant, if one was needed.
KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.
After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”
S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.
The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
The High Court also said clearly that, while police (or a member of the public) might have power to enter premises to prevent a breach of the peace, no-one could do so for merely investigating a breach, or for finding out if there was a threat of one. (underline – but not the italics – added)
In the Kuru case, when the police arrived, the action was over. Except that the police then caused the real action.
“…but for the police officers not leaving the flat when asked to do so, any further breach of the peace was (not) threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant’s flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant’s arrest."
“It follows that the continued presence of police officers in the appellant’s flat, after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. No other form of common law justification for remaining in the appellant’s flat was suggested.” (underline added)
In management terms, the police weren’t part of a solution, so they became the problem. The High Court says the same thing, but in different words:
“For these reasons, the question treated by the parties as dispositive of liability (were the police officers trespassers when the appellant first came into physical contact with one of them) should be resolved in the appellant’s favour.”
The judgement above was jointly agreed by Chief Justice Gleeson and Justices Gummow, Kirby and Hayne. They basically ordered the NSW Supreme Court to reverse its decision, and awarded costs for all the earlier hearings in Mr Kuru’s favour. The High Court also highlighted that it was “not necessarily a great burden” for police to quickly get a warrant, if one was needed.