High Court upholds trespass claim against New South Wales police

The recent High Court decision in Kuru v New South Wales [2008] HCA 26 throws light on when a trespass damages claim might succeed in cases where a member of the police force is asked to leave a premises by an occupier after they have entered the premises on reasonable belief (as opposed to a warrant).

Background

Mr Kuru commenced proceedings against the State of New South Wales for trespass to land, trespass to person and false imprisonment.  The proceedings arose out of an incident in which two police officers attended a flat in which Mr Kuru and his then fiancée (now wife) resided.  Police attended the flat after receiving a report of a 'violent domestic' requiring officers to attend as quickly as possible.

When the officers arrived, the front door of the flat was open and they entered.  Two of Mr Kuru's friends who did not live in the flat were in the living room and Mr Kuru was showering.

When Mr Kuru came out of the bathroom the officers asked if they could 'look around' and he agreed to the request.  They then asked to see 'the female that was here'.  Mr Kuru advised the officers that she had gone to his sister's house and he asked the officers to leave.

The officers asked for Mr Kuru's sister's address and telephone number and Mr Kuru informed them that he did not know the address, but he wrote down a telephone number on a piece of paper and repeated his demand that the police leave.  However, the officers did not leave the premises.

Mr Kuru subsequently jumped onto the kitchen bench, which he later explained was to obtain the attention of all the persons in the flat.  After jumping down from the bench, he moved towards the police with his arms outstretched and made contact with one of the officers.  A violent struggle followed and he was punched, sprayed with capsicum spray and handcuffed before being taken to a police station and placed in a cell wearing nothing but his boxer shorts.  He was released from custody a number of hours later.

The decisions

At first instance, Mr Kuru was successful in his claim and judgment was entered for him for $418,265 plus costs. 

The State of New South Wales successfully appealed to the Court of Appeal and Mr Kuru then appealed to the High Court. 

The majority of the High Court (Gleeson CJ, Gummow, Kirby & Hayne JJ) noted that section 357H of the Crimes Act 1900 (NSW) (Crimes Act) was relevant to the entry of police officers onto private property when they suspected or believed a domestic violence offence had been committed.  Section 357H(1)(a) provided that officers were to take only such action as was reasonably necessary to investigate whether an offence had been committed, to render aid to injured persons and to exercise any lawful power to arrest a person or prevent the commission of an offence.

Section 357H(1)(b) provided that officers were to remain in a dwelling house for only as long as was reasonably necessary to take that action.

The High Court also considered section 357F of the Crimes Act which provided for officers to enter premises by invitation but for only so long as the relevant invitation remained unrevoked, although  section 357F(4) provided that officers could remain on the premises, despite the occupier's revocation, if the suspected victim of a domestic violence offence invited them to do so.

The High Court noted that:

• Section 357F recognised that an invitation to enter or remain in premises may be revoked by an occupier although, in interpreting the legislation, it is necessary to consider provisions which would permit officers to remain on the premises after the invitation is revoked.
• Section 357H specified what a police officer could do if they entered a dwelling to investigate a domestic violence offence but it did not grant a power to enter or a power to remain, which powers were regulated by section 357F or 357G.
• Any ambiguity about the extent of the authority provided to police by sections 357F and 357H had to be resolved in favour of Mr Kuru in light of the strong principle of Australian law which defends an occupier's right to quiet enjoyment of their residence.  If Parliament intended to deprive persons of this right, this should be clearly expressed in the relevant statute.

The Court also considered whether there was a common law justification for the officers to remain on the premises. 

The High Court accepted that the officers were bound to 'keep the peace' but, by the time they attended Mr Kuru's flat, there was no continuing breach of the peace that would entitle them to remain on the premises. 

Consequently, the officers' decision to remain on the premises after being asked to leave could not be justified on the basis of preventing a breach of the peace and there was no justification of common law for remaining in Mr Kuru's flat.

In a dissenting judgment, Justice Heydon expressed his view that the interpretation favoured by the majority was impractical - as the mere fact that Mr Kuru's fiancée had not been found in the unit did not put an end to the investigation as to whether or not a domestic violence offence had been committed. This was due to fact the police had not had an opportunity to verify Mr Kuru's fiancée's location or account of relevant events.

His Honour stated that the conduct of the police was, in his view, reasonably necessary to investigate whether a domestic violence offence had been committed. He also suggested that, to conclude that the police enquiries were complete once Mr Kuru had said his fiancée had gone to his sister's house and was contactable on a certain telephone number, lacked all practical merit.

Potential implications

The decision has an apparently narrow application as it focused on the interpretation of the NSW Crimes Act and did not disturb the common law principle that police officers may not enter premises without express or implied consent and that an authorisation to enter may be revoked by an occupier of the premises.

Section 3ZB of the Crimes Act 1914 (Cth) authorises members of the Australian Federal Police (AFP) to enter premises using necessary and reasonable force at any time of the day or night to search the premises or arrest a person under a warrant, or if they believe on reasonable grounds that the person is on the premises.

Section 3ZB does not contain any express provisions addressing the situation where an occupier of premises requests that AFP members who have entered the premises without a warrant leave the premises.

Given the absence of express provision to remain on the premises in section 3ZB and the common law principles discussed by the High Court in Kuru, in cases where members of the AFP enter premises on the basis of a reasonable belief (as opposed to a warrant) but are asked to leave the premises by an occupier, they could be exposed to a claim for damages for trespass if they remain on the premises after being requested to leave.

In light of the decision in Kuru, police forces in all jurisdictions should review their operating procedures and the statutory provisions governing their right of entry to premises to reduce the risk that an entry to premises or failure to leave on request could give rise to a claim for damages for trespass.

For more information, please contact:

James McIntyre, Senior Associate
Tel +61 7 3246 4138
james.mcintyre@dlaphillipsfox.com

Richard Garnett, Partner
Tel +61 2 6201 8735
richard.garnett@dlaphillipsfox.com