Can a man clad only in boxer shorts order six police officers, who fear domestic violence may have occured, from his home? Yes, in certain circumstances, says the High Court, confirming nearly $0.5m in damages and proving that The Castle was a documentary, not a comedy.
Screams for help result in High Court
ruling a man’s flat is ‘The Castle’
Sin City is where the blunt end of policing sometimes runs into the front end of the law. On this night, the noisome city was being kept awake by the sound of raised voices…
Early AM, 16 June 2001, in a Sydney suburban flat, a man and his fiancee are having a blazing row. A neighbour pots them by an emergency call to 000, and the police radio crackles out: "Male and female fighting. Female heard screaming"…and later: "…female had been screaming. Now it’s all gone quiet."
Six police in three cars race to the scene, fearing ‘domestic violence’. They rush upstairs and find two men sitting calmly and quietly in the main room, waiting for the man who lives there to finish his shower. Soon after, Murat Kuru appears from the bathroom in just boxer shorts, toweling down his hair, and invites the police to “look around” to check there’s no-one in danger. He and his fiancee had been arguing, but she’s gone, with his own sister, around the corner to the sister’s place, he tells the police.
A few minutes later, after police have checked the bedrooms, the man is irked by the continuing police presence, and asks them – several times – to leave.
A dispute erupts, then a struggle. Mr Kuru is punched, capsicum sprayed, and handcuffed. Herded down a flight of stairs to a police vehicle, he twice falls on the stairs. At the police station, he’s locked in a cell wearing only his boxers, where he remains for some hours before they release him.
Mr Kuru sues the State of New South Wales in the District Court claiming damages for trespass to land, trespass to the person, and false imprisonment, under the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW).
He is awarded $418,265 in the District Court, but in June 2007 the NSW Supreme Court reverses the judgement on appeal, meaning Mr Kuru is about $0.5m of out of potential pocket, facing huge court costs.
He appeals to the High Court to restore both the dignity lost when carted off clumsily in his underwear, and the cash. By special leave, the High Court hears his case and hands down its 4-1 decision in June 2008.
The High Court judges find for Mr Kuru. The NSW Supreme Court is ordered to re-think its decision, and to re-allocate costs that have probably by now risen into the million dollars-plus range.
…all because the NSW Police wouldn’t take ‘No’ for an answer when they suspected ‘domestic violence’, even though – after ‘subduing’ Mr Kuru, they didn’t undertake any further searches for the elusive fiancee.
What it’s all about
The seminal case revolves around trespass, the power of police to enter and remain on private property, and whether a man is king in his own castle, as the Australian movie, The Castle, says he is (The Castle is a 1997 Australia comedy movie in which the High Court itself stars).
The High Court in the Kuru case also says a man is ‘king’ in his own castle, under both statutory and common law…at least if he tells police to leave, and they refuse when there is no obvious, immediate threat to someone’s life or limb, and the police don’t have a warrant.
Everyone in the appeal process agreed that the case turned on whether the police had a right to stay in the flat after Mr Kuru ordered them to leave.
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CAUTION: Please do not try this in your own home: do not tell Police to P Off from your premises unless you are very sure of your statutory and common law rights.
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The High Court said there is a strong principle in Australian law which defends your right to quietly enjoy your home. “That principle has been recognised and upheld by this Court on numerous occasions,” the High Court said. “It derives from the principles of the common law of England (and) defends an important civil right in our society. If Parliament were to deprive persons of such a right, or to diminish that right, conventional canons of statutory construction require that it must do so clearly.”
In terms of the statutory issue, the High Court said:
“There are only three facts that are critical to the application of ss 357F and 357H in the present matter. Those facts are not disputed. They are:
(a) an "occupier" of the dwelling-house (the appellant) had invited the police to "look around" the flat;
(b) an occupier of the dwelling-house (again, the appellant) had then asked the police to leave; and
(c) the police officers did not leave and remained on the premises for longer than it would reasonably have taken them to leave.
“Their remaining upon the premises after the appellant had asked them to go, and a reasonable time for their immediate departure had elapsed, was not authorised by the provisions of ss 357F and 357H.” (of the relevant police powers act)
Clauses in NSW law that gave police power to ‘enter premises’ in ‘domestic violence situations did not clearly say they had over-riding powers.
“It follows that the police officers who entered the appellant’s flat had no statutory justification for remaining on the premises after he asked them to leave,” was how the High Court put it. (underline added)
“As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable.”
The High Court also highlighted that it was “not necessarily a great burden” for police to quickly get a warrant, if one was needed.
“Such a warrant may be sought by telephone…granted by a Magistrate. Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also a judicial officer enjoying independence from the Executive Government and hence from the police. This facility is thus an important protection, intended by Parliament, to safeguard the ordinary rights of the individual to the quiet enjoyment of residential premises.”
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.
Justice Heydon dissented.
B W Walker SC with M W Sneddon appeared for Mr Kuru (instructed by Carroll & O’Dea), while I D Temby QC with P R Sternberg appeared for the State of NSW (instructed by the NSW Crown Solicitor).
There’s always a moral to a tort case: here, the moral is:
Live near your sister.
There’s usually irony, too: The vocal Mr Kuru and his then-fiancee are now married.
The name of the dobbing neighbour was not mentioned in the various courts, though the names of all police officers were and it was observed that they might have ‘caucused’ on some of their evidence. One police officer’s evidence, in particular, was not highly regarded by the judiciary.
For the full report:
This summary report by Bill Rowlings, CEO of CLA
CLA Civil Liberties Australia A04043
Box 7438 Fisher ACT 2611 Australia
Email: secretary@cla.asn.au
Web: www.cla.asn.au
The Castle movie: http://en.wikipedia.org/wiki/The_Castle_(film)