Q. Not in uniform. When you were hit, what happened then?
A. I fell back and I hit our fridge, then fell onto the kitchen floor. Again, it was the non-uniformed officer and another officer that were on top of me on the kitchen floor, and I was being punched." (Black, 18O-19P) [emphasis added]
58 The police account is that the respondent shoulder-charged them; I shall return to that shortly. But it is certainly common ground that the respondent made body contact with one of the officers, whether it was mere angry contact or a more violent collision. It follows that the respondent's aggression escalated from the verbal to the physical, though the degree of the latter is disputed.
59 According to the respondent's time estimate of these events, from the time he first said "get out of my house" to the point of time where he walked towards the police to usher them out was "perhaps" some five to eight minutes (Black, 19S). It appears undisputed that he asked the police to leave the flat on at least six occasions.
60 As to the events that followed immediately thereafter, the respondent was lying on the ground with his legs pulled up, held down by the police on his stomach, whereupon the respondent bit one of the officers, whose hands were across the respondent's face, on the finger and was then sprayed with capsicum spray (Black, 20W-21D). He was still wearing his boxer shorts at that time from when he had emerged from the bathroom. Subsequent to this event he was picked up off the kitchen floor, handcuffed, told he was under arrest, and was walked out the front door with his hands handcuffed. He said that he was punched in the face some 20 to 25 times as well as being hit a few times on the back of his head, then led down the stairs, in pain from the capsicum spray (Black, 23-25P). At one point while going down the stairs he fell and hit his head on the glass wall, still yelling and screaming at the police and very angry (Black, 25R-26G). He fell twice, not claiming that he was pushed but rather that he let go, his hands still handcuffed behind his back and still with his eyes partly shut from the capsicum spray (Black, 26-27). He was then put into the police paddy-wagon.
61 He was put into a police cell still wearing his boxer shorts (Black, 27M-T), spending the night there before being released at about 7 am (Black, 28F-M).
62 The foregoing evidence is taken from the respondent's account. There is some dispute about several items of evidence. First, there was a dispute as to whether he had ever handed over the piece of writing, though I do not consider anything hangs on that.
63 Second, there is a dispute as to whether he had jumped off the bench on the kitchen side, or instead over the splash-back into the lounge, the latter with a pen in his hand in what the police contended was a clearly aggressive act. While it is disputed as to whether he immediately or at all shoulder-charged Detective Sergeant Lindley, it is not disputed that he did come into contact with him.
64 The primary judge had this to say about the jump from the bench:
"40. Exhibit C shows the kitchen bench in question. It will be observed (photographs 4 and 5 on page 3) that the bench itself is relatively narrow, but has a splashboard of about 12 to 15 inches in height, facing towards the lounge/ dining room. The photographs show furniture in the lounge/ during room. It was suggested by police that after the Plaintiff jumped on to the bench, which he admitted doing, he then launched himself at them in some manner, they standing in the lounge/ dining room. In my opinion it would be a physical impossibility to do so. Drummond and Patterson in their statements say that when he jumped on to the bench he hit his head onto the ceiling. If he was to launch himself over the 12 to 15 inch splashboard without hitting his head again on the ceiling he would have to perform a swallow dive of Olympic proportions. I don't think he did this."
65 The appellant claims, in my respectful view with some justification, that the primary judge was unduly dogmatic in his finding that the respondent could not have jumped into the lounge/dining room by reason of the 12 to 15 inch splashboard. It is fair to say that, as Mr Temby QC put in argument, a man in his twenties who is clearly in fine physical shape and who had the physical capacity to jump onto the bench, necessarily had the physical capacity to jump from it into the lounge area, crouching if necessary and jumping over the splashback.
66 Significantly, Mr Guler when cross-examined supported the police account of the respondent jumping onto the kitchen bench and jumping in the direction of where the police were standing. That led to what I consider a fair complaint that the primary judge simply ignored Mr Guler's evidence on that matter (see Black, 103B "He jumped in the direction of where the police were standing, didn't he? A. Yes he did"). That supports the police account of an aggressive movement towards them if not the shoulder-charge.
67 I should add that Mr Guler affirmed that the respondent had asked the police to leave several times and he recalls the respondent saying "You got the phone number, and that is it. I want youse to go out" (Black, 92N).
68 Of some significance is the question whether the police, having been invited to inspect the house, stayed longer than they need have done to complete their inspection, in circumstances where it appears the police never did look into the bathroom. Detective Constable Lindley's account is that "I wanted to have a look in the bathroom to make sure that woman wasn't in there bleeding or bruised, or dead, for all I know" (Black, 122D).
69 The explanation for not checking the bathroom, which Mr Temby QC pressed, I would accept. It is a matter of inference from uncontested evidence. The primary judge did not make any contrary inference. Essentially it was that after the bedrooms were inspected there was an eruption of violence starting with the respondent becoming agitated and leaping on the bench followed by his arrest and then his being taken downstairs. Downstairs the police were told by Mr Yavuz or Mr Guler that the police could be taken to the place where the woman was. The police evidently accepted that offer, went to that place, met Janette Kuru and ascertained that she was alright, she being then back at her sister-in-law's place four minute's away from the respondent's flat. We do not know whether the police used the phone number from Mr Kuru and first ascertained she was there, though that is not unlikely.
70 This account is borne out by Janette Kuru's evidence that she was in fact visited by two police officers at around 1 o'clock (Black, 109V). I accept that this explains why the police did not feel the need to persevere with a search of the flat. They had no need to once they had spoken to Janette Kuru, who, if she was where Mr Kuru said she was, was known to be nearby.
71 The primary judge formed an adverse view of the credit of the police, probably all of them, but certainly Detective Sergeant Lindley and Detective Senior Constable Hughes. The basis for that adverse view was based on several matters:
(a) the supposed physical impossibility of the respondent jumping from the kitchen bench into the lounge-room area, a basis which Mr Guler's evidence and common sense indicates that, with respect, the primary judge should not have given any weight;
(b) the fact that the statements prepared by the police in August 2001, some two months after the events, made mention of there being a hammer lying on the lounge-room floor but made no mention of the presence of building materials as a perfectly valid explanation for the presence of a hammer (Red, 29U). As against that it was never suggested to Detective Sergeant Lindley nor put to any police officer that he had referred to the hammer in order to colour his evidence in any way, beyond the assertion in cross-examination that the reference to the hammer was "a means to bolstering the police case" (Black, 226W);
(c) failure by the police officers to "have borne in mind that the instigator of the call [which caused them to attend] may have been acting maliciously" (Judgment [66]). Again, that proposition was never put to any of the police officers and is to my mind outweighed by the real threat of domestic violence from the reported screaming of the woman, and what might well have been a sinister silence thereafter; and
(d) the similarities between the police officers' statements, leading to what the primary judge concluded was a "putting of heads together" (Judgment [28]), in circumstances where the trial judge sought to characterise the police evidence as a "single unified version of a police officer's" evidence as against that of the respondent (Judgment [49]).
72 As to the last matter, Mr Temby QC demonstrated a degree of divergence between the various written statements by the police, though an examination of the statements also showed some degree of verbal similarity. I refer by way of example to use of the expression "lunged" when referring to the respondent jumping from the kitchen bench.
73 Detective Sergeant Lindley did concede that he had read Constable Moore's statement in preparing his own.
74 However, Detective Sergeant Lindley emphasised that while he had use Constable Moore's statement as an aid he had not cut and pasted verbatim, asserting that there was no legal bar to using someone else's statement to create his own (Black, 143R).
75 The appellant relied upon the principle that a witness may refresh memory from not only his or her own note but from notes made by another which the witness has read and found to accord with his or her recollection. See "Cross on Evidence", 5th edition by J D Heydon at [17200] and the authorities there cited including R v Bass [1953] 1 QB 681 to the effect that "there is no objection to police officers refreshing their memory from … statements prepared by them in collaboration".
76 To this the respondent contends that these statements go no further than saying that the practice is not unlawful and that this matter goes to admissibility rather than weight, so as to leave unqualified Sheller JA's observations in Day v Perisher Blue Pty Limited (2005) 62 NSWLR 731 at 746 [30], quoted below:
"[30] It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's case. …"
77 I would accept the primary judge was entitled to draw the conclusion that Detective Sergeant Lindley's evidence and that of the other officers did suffer accordingly. But I do not consider that the evidence had to be rejected on that account, given the differences that existed and the fact that full opportunity was taken to test that evidence in cross-examination.
78 I have dealt with the facts in some detail as they substantiate the following propositions:
(a) when the police entered the flat they had a reasonable apprehension that a woman may have been injured in domestic violence;
(b) though the door to the flat was open, it could not be said that the members of the police force who entered were invited to do so by "a person who apparently resides in the dwelling house" within the meaning of s357F(2) of the Act, by reason only that:
(i) the door was open; or
(ii) Messrs Yavuz and Guler who were present did not object, but did not profess to be residing in the dwelling house, rather making it clear rather that the occupier was the respondent;
(c) when the respondent emerged from the bathroom, he invited the police officers to remain in the dwelling house for the purpose of inspecting it to see whether there was a woman in the dwelling house who had suffered domestic violence;
(d) the respondent sought to withdraw that invitation after the police had inspected the two bedrooms, and earlier the lounge and kitchen but had not (I infer) inspected the bathroom; and
(e) their investigation was therefore incomplete at that point but it was reasonably open to the police to continue that investigation on or off the premises.
79 There are two questions which arise in that factual setting. The first is whether, either by statute or common law, the police were entitled to remain any longer on the premises once they had inspected the bedrooms (and earlier the kitchen and living room) but had yet to inspect the bathroom. This was when:
(a) they were not satisfied as to their inquiries of the whereabouts of the woman in circumstances;
(b) there was a reasonable apprehension that she may have suffered domestic violence, though in the events that happened it was later learned that she had not; and
(c) the duration of their further stay after being first told to "get out of my house" was some five to eight minutes, not a very long time.
80 It was not established finally whether the respondent shoulder-charged the police or simply jumped off the bench on the lounge side and walked aggressively towards them, culminating in less violent body contact. It is undisputed that the respondent raised his arms in the air as he did so, so there was some appearance of aggression if not threat. I accept the explanation that the reason the police did not thereafter inspect the bathroom was twofold. First, the police were then engaged with the repercussions of that collision or body contact. Second, they had by then been given sufficient information as to the whereabouts of the woman either from the piece of paper that was signed or else were told where to go when downstairs. Either way, the police were soon able to ascertain that Janette Kuru was not injured or the subject of domestic violence. This was shortly after, at around 1 am, when they found her at the respondent's sister's house. I turn now to the application of the law, statute and general, to these facts.
81 As Ipp JA points out in his judgment, which I have had the advantage of reading, it has long been established at common law that any unjustified entry on land or premises in the possession of another constitutes a trespass: Entick v Carrington (1765) 95 ER 807 at 817 per Lord Camden CJ; Morris v Beardmore [1981] AC 446 at 464 per Lord Scarman; Halliday v Nevill (1984) 155 CLR 1 at 10 per Brennan J; Plenty v Dillon (1991) 171 CLR 635 at 647 per Gaudron and McHugh JJ. The question here is whether that entry was unjustified, to which I shall return after dealing first with statute.
82 The primary judge declined to construe s357H of the Act as providing a statutory basis for entry in the present circumstances. This was because that provision refers only to the case of a member of the police force who "enters" a dwelling house "in pursuance of an invitation". That interpretation, while according with the literal words, produces an incongruous result. That result would mean that the statutory license to enter with its associated statutory constraints would only apply to invitations made at the point of entry and not to invitations subsequently made to remain. This carries the consequence that those constraints upon what can be done when on the premises in s357H(1)(a) to (b) would only be applicable when invited to enter, and not when merely invited to remain. Those constraints on the police require that no more be done than "is reasonably necessary". They limit what can be done as to:
(a) investigation of whether an offence has been committed;
(b) rendering any aid to a person who appears to be injured;
(c) exercising the lawful power to arrest a person; and
(d) preventing the commission or further commission of such an offence.
There seems no sensible reason for such an arbitrary distinction.
83 Here indubitably the police were investigating whether an offence had been committed. They were concerned also to ensure that no further offence was committed should the domestic violence be still in train. It could be expected that they would wish to render aid were an injured woman found on the premises.
84 It is clear that by contrast to s357H, s357F does distinguish in its terms between an invitation to enter a dwelling house and an invitation to remain in the dwelling house. Section 357H(1) uses language that refers only to "enters a dwelling house in pursuance of an invitation". It is arguable that an invitation at the first opportunity after uncontested entry implies permission not only to remain but to have entered in the first place. Such an interpretation furthers the evident purpose of s357H, namely to impose those statutory constraints and thereby qualify the license to enter. It avoids the anomalous distinction, to which I have earlier referred, between those who enter by invitation and those who merely remain by invitation. Thus I would, though with some hesitation, construe the later invitation to investigate as necessarily implying in the circumstances retroactive permission to have entered where, as here, there is:
(a) no suggestion of violent or opposed entry; nor
(b) any appreciable gap in time between the original unopposed entry and the subsequent invitation by the occupier permitting the police to be on the premises, once he was aware of them.
85 However, the inquiry does not end there, as there is the common law as an alternative basis of authority. Section 357H(2) expressly provides that "nothing in subs (1) or in s357F or 357G limits any other power which a member of the police force may have under this ... Act or at common law to enter or remain in or on premises".
86 I do not consider that Plenty v Dillon stands in the way of an interpretation of the common law that would permit a member of the police to enter upon premises in circumstances like these, though without an invitation to do so, and certainly when there has been as here an invitation to search the premises. Gaudron and McHugh JJ referred to the common law as having a number of exceptions (at 647). The general rule is explained. It is that a person is a trespasser unless that person "enters" premises with the consent, express or implied, of the occupier.
87 I would conclude that the occupier here did give implied consent to enter by inviting the police at the first opportunity to inspect the property to see if there was an injured woman on the premises. That invitation would have necessarily included what was entailed in completing an inspection of the premises in fulfilment of that investigative purpose. Here sudden violence erupted while the police were still engaged upon that investigation, interrupting it when the respondent aggressively came into body contact with one of the police.
88 One of the stated exceptions in Plenty v Dillon is that "a constable … can also enter premises to prevent the commission of a felony". I agree generally with what is said by Ipp JA in his judgment under the heading "The right of the police, at common law, to enter the apartment". I elaborate my own reasons below.
89 Here, the police did not need to break into the premises, their entry being uncontested. The door was wide open and the two men present conveyed no objection on behalf of the occupier to either their entry or their remaining there. The actual occupier Mr Kuru permitted them to be on the premises as soon as he first saw them, soon after their entry. The police were there to investigate whether, based on the strong indications they had received, there had been violence, to deal with its consequences and to prevent any further violence. In those circumstances I would conclude that the common law permitted entry without a warrant for these purposes.
90 The subsequent invitation from Mr Kuru permitted the police to carry out their investigative purpose to completion, including attending to any matters pursuant thereto. I am satisfied this remained so, notwithstanding withdrawal of that invitation when that process of investigation was not yet complete. This could however be only for such reasonable period as was needed to complete police investigation in fulfilment of that purpose, in accordance with the occupier's earlier permission. I am satisfied those conditions were fulfilled. The police were entitled to complete their task either by further inspection on the premises or (as occurred) by making contact with Janette Kuru outside the premises. At common law the police were thus authorised to stay to complete their task and there was no trespass. When Mr Kuru's aggressive behaviour interrupted them in carrying out that purpose and he withdrew his consent, they were still entitled to take all reasonable steps to complete the investigative task they had been earlier invited to carry out.
91 Moreover, even if the stated exception presupposed more than mere suspicion before a constable could enter premises to prevent the commission of a felony, here there was more than mere suspicion. One could distinguish Plenty v Dillon on the basis that the entry was not to serve a process but I prefer to treat it as an authoritative statement of principle, consistent with the view of the common law I would adopt. I should however emphasise that, had the police remained for reasons unrelated to that purpose, I agree with Ipp JA that they would not have been entitled lawfully to remain on the premises. I do not consider that any such finding would be warranted here. The most that could be said was that Mr Kuru interrupted the police in their permitted investigative task.
92 I do not consider that the common law entitles an occupier to withdraw an invitation when the invitation was originally to do that which the police were still in the course of doing, namely to investigate whether there was a victim of a violent domestic assault on the premises or nearby. It must not be forgotten that Lord Denning MR in Southam v Smout (1964) 1 QB 308 at 320 concluded his peroration against even the King of England entering a poor man's cottage with this important qualification: "unless he has justification by law". Here the police did have that justification, at common law at least. I would here apply, as does Ipp JA in his judgment, what is cited from McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34 (also reported at (1967) 117 NLJ 1138), Kay v Hibbert [1977] Crim LR 226 at 227 (also reported at (1977) 141 JPJo 157) and Ledger v Director of Public Prosecutions [1991] Crim LR 439 at 440 applying Kay v Hibbert.
93 Regrettably, domestic violence has become an every day event in our society. The police, acting reasonably and proportionately, should not be prevented at common law from entering premises in an emergency, where every minute may count, there being justified fear of domestic violence and its consequences. This is not altered by the possibility that the violence reasonably feared may not have in fact occurred, so long as the apprehension of it by the police was reasonable in the circumstances. So it was here.