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Plenty v Dillon (1990-1991) 171 CLR 635

Pringle v Everingham [2006] NSWCA 195

Thompson v Vincent (2005) 153 A Crim R 577

R v Bass [1953] 1 QB 681

R v Howell (Errol) [1982] QB 416

Southam v Smout (1964) 1 QB 308

Thomas v Sawkins [1935] 2 KB 249

Todd v O’Sullivan (1985) 122 LSJS 403

PARTIES: STATE OF NEW SOUTH WALES (Appellant)

Murat KURU (Respondent)

FILE NUMBER(S): CA 40051/06

COUNSEL: I D TEMBY AO QC/ P R STERNBERG (Appellant)

M L D EINFELD QC/ M SNEDDON (Respondent)

SOLICITORS: I V Knight, Crown Solicitor (Appellant)

Carroll & O’Dea (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1640/04

LOWER COURT JUDICIAL OFFICER: Murray QC ADCJ

LOWER COURT DATE OF DECISION: 5 October 2005

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL CA 40051/06

DC 1640/04

MASON P

SANTOW JA

IPP JA

15 JUNE 2007

STATE OF NEW SOUTH WALES v Murat KURU

Judgment

1. MASON P: I have had the benefit of reading in draft the judgments of Santow JA and Ipp JA.

2. I perceive that the only difference in substance between the two judgments, with which I agree, relates to whether it should be inferred that the police searched the bathroom before matters erupted in the kitchen. On this point I agree with Ipp JA.

3. Regrettably, this is the third occasion in which appellate review of a case involving allegations of police trespass and assault has been hampered by reason of poor pleading practice on the part of the State. The two earlier decisions are referred to by Ipp JA and they contain clear admonitions to those representing the police in this State as to the way to formulate the issues. Correct pleading ensures that matters are not overlooked and also guides the court and litigants as regards the onus of proof on particular matters.

4. I therefore agree with the orders proposed save that the State should, in my view, bear its own costs of the appeal.

5. SANTOW JA: INTRODUCTION This appeal concerns the police powers under statute and common law to enter premises. The police entry in this case was by reason of a radio call designated “ violent domestic ” whereby the police had an apprehension that domestic violence had occurred and could be continuing. That call was from a neighbour who reported hearing screaming and raised voices, from the occupier Murat Kuru (plaintiff below and respondent in this appeal) and his girlfriend, now wife, Janette Kuru. That there was much yelling and screaming in the course of an argument between them is not in issue; there was however no physical violence in fact. But this could only be ascertained after police entry on to the premises.

6. The police entry when first effected was without the express consent or invitation of the occupier, Mr Kuru, though it was through an open door. However, shortly after Mr Kuru emerged from the bathroom, he permitted the police to inspect the premises. The police, having inspected the sitting room and bedrooms and finding no-one injured had, I infer, still to inspect the bathroom. The inspection was therefore not complete at that point. Nor was the police investigation such that the police could yet be reliably satisfied that no violence had occurred even if they had inspected the bathroom. Mr Kuru at that point became increasingly aggressive and sought to withdraw his earlier invitation. There followed an altercation with Mr Kuru involving some physical aggression on his part, its degree only being a matter of dispute. That led to his arrest and subsequent detention overnight. Soon after leaving the premises, the police were able to verify, by speaking to Mr Kuru’s girlfriend nearby, that in fact no violence had occurred.

7. After the police arrested the respondent, they charged him in the Local Court for assault against a police officer and resisting arrest. The respondent successfully contended at trial that the police were not legally permitted to enter or remain on the premises and were liable to him for very substantial damages as follows: (i) for trespass to property $85,000, (ii) for trespass to person, general damages $150,000 plus out of pocket expenses $8,265, (iii) for false imprisonment $20,000, (iv) for aggravated damages $35,000, and (v) for exemplary damages $120,000. The foregoing adds up to $418,265, there being no award of damages for negligence. The police, as the State of New South Wales, challenges both those findings of liability and damage.

8. Specifically, the issues arising in this appeal from the police entry and the respondent’s subsequent arrest and imprisonment overnight can be summarised as follows: (a) in the events that happened, whether police entry and the continued presence of the police were permitted by s357F of the Crimes Act 1900 (NSW) (“the Act”) and, to the extent applicable, s357H of the Act, or by the common law, or by a combination of these, so as to obviate any trespass to person or property or false imprisonment, and (b) whether, if liability for trespass were made out, the damages awarded were excessive; such challenge extends to the award of aggravated and exemplary damages.

SALIENT FACTS

9. Many of the salient facts are not in dispute. I discuss the disputed facts in more detail under “Disposition” below.

10. As at 15 June 2001, the respondent and his girlfriend Janette (now his wife) were living at 7/30 Britten Crescent, Hillsdale (“the premises”).

11. On the evening of 15 June 2001, the respondent and Janette attended a housewarming barbeque at the respondent’s sister’s home, approximately 4-5 minutes’ walk from the premises. The respondent consumed approximately six beers during the course of the evening.

12. Upon arriving home from the barbeque around midnight, an argument developed between the respondent and Janette, involving much yelling and screaming, but not involving any physical violence.

13. As a result of the yelling and screaming, a neighbour called the police. The police radio alert, to which a number of units responded, was designated as a “violent domestic” as opposed to a “normal domestic”.

14. In the meantime: (a) The respondent and Janette had concluded their argument and settled down; (b) The respondent’s sister, and Mr Mustafa Yavuz and Mr Yasser Guler (father-figure to and friend of the respondent respectively) had arrived at the premises; (c) Janette had left the premises with the respondent’s sister; (d) Mr Yavuz and Mr Guler had gone into the premises and spoken with the respondent, who had explained that he and Janette had argued; (e) The respondent had gone to have a shower, with Mr Yavuz and Mr Guler remaining in the premises; (f) The front door of the premises had been left open.

15. Early in the morning on 16 June 2001, six police officers (as listed under dramatis personae below) entered the premises.

16. The primary judge Murray ADCJ relates in some detail the events surrounding the police officers’ entry into the premises. The respondent, Messrs Yavuz and Guler, and the six police officers who attended the alert gave various versions of events.

17. Basic facts common to each of the various versions of events are as follows: (a) The six police officers entered the premises while the respondent was in the shower; (b) Mr Yavuz and Mr Guler were in the living room with the police officers when the respondent emerged from the bathroom; (c) Verbal exchanges took place between the respondent, the police officers and Messrs Yavuz and Guler, in relation to: (i) The argument between the respondent and Janette; (ii) The whereabouts of Janette, including the address of the respondent’s sister’s home, where the housewarming had been taking place; (iii) Repeated requests by the respondent to have the police leave the premises, made with some emphasis;

(d) When the police did not leave, the respondent jumped onto the bench in the kitchen of the premises, and then jumped off that bench (according to the police by jumping over a splash-board into the lounge, but according to the respondent by jumping down into the kitchen, the latter being accepted by the primary judge but challenged on appeal); (e) The respondent, after making further angry demands that the police leave, “took a few steps forward with his arms still in the air, and he made contact with one of the police officers and at that moment he said he received a punch to the left side of his face” (Judgment, [22]);

(f) The respondent was thereupon arrested;

(g) The respondent was then punched by one of the plain clothes police officers; while the extent of that punching of the respondent is unclear (Judgment [23], [26]) there was evidence of some injury both physical and psychological.

18. As a result of the events at the premises, police commenced proceedings against the respondent in the Local Court for assault against a police officer and resisting arrest. Dramatis Personae

19. For convenient reference, some key figures in the events that happened are briefly described below: Abbreviation Full name and title Details Respondent Murat Kuru Respondent and occupant of the premises Janette Janette Kuru Then girlfriend of the respondent and occupant of the premises; now wife of Murat Kuru Mr Yavuz Mr Mustafa Yavuz “Uncle”/father-figure to the respondent, though not a blood relation Mr Guler Mr Yasser Guler Friend of the respondent of about his own age Lindley Detective Sergeant Dean Joseph Lindley (then a Detective Senior Constable) Police officer attending the premises on the night in question; Hughes’ partner Hughes Detective Senior Constable Adrian David Hughes (then a Plain Clothes Constable) Police officer attending the premises on the night in question; Lindley’s partner Moore Senior Constable Jason Robert Moore Police officer attending the premises on the night in question; Drummond’s partner Drummond Probationary Constable Drummond (as she then was) Police officer attending the premises on the night in question; Moore’s partner Hill Senior Constable Joel Anthony Hill Police officer attending the Premises on the night in question; Paterson’s partner Paterson Probationary Constable Paterson (as she then was) Police officer attending the premises on the night in question; Hill’s partner

First Instance Judgment

20. The primary judge formed the impression that both Mr Yavuz and Mr Guler had attempted to give their evidence in as reliable a fashion as possible. He found that both men had given answers that were “cryptic” to some degree, but that Mr Yavuz “was genuinely trying to assist the court in recounting the events as he saw them” and Mr Guler was “fundamentally accurate” in his evidence.

21. The primary judge preferred the respondent’s evidence that he had written his sister’s telephone number on a piece of paper in an endeavour to satisfy the police officers’ enquiry concerning Janette.

22. The primary judge made generally adverse findings as to the credibility of the police witnesses

23. It was clear to the primary judge that the police had “put their heads together” in the compilation of the statements they gave in the Local Court proceedings (those statements coming before the primary judge as exhibits during the District Court proceedings). The primary judge cited the remarks of Sheller JA in Day v Perisher Blue [2005] NSWCA 110 regarding what the primary judge referred to as the impropriety of such conduct.

24. The primary judge formed a poor impression of the credit of Detective Sergeant Lindley on a number of grounds: (a) Lindley obfuscated during cross-examination in the District Court proceedings (Judgment [32]); (b) Lindley provided inconsistent accounts in relation to whether the plaintiff had attempted to provide the address and phone number of Janette’s sister so that the police could contact Janette and make sure she was alright. His eventual evidence in cross-examination was that the plaintiff had been writing something down, whereas no mention of this was made in his or any other police statements, which had instead characterised the plaintiff as emerging from the bathroom and immediately commencing to yell and scream, lunging towards Moore and then Lindley (Judgment [33] – [34]); (c) Lindley and Hughes “coloured” their evidence in their statements by omitting to mention, when describing there being a hammer on the floor of the premises upon their first arriving, that renovation works were taking place at the premises (Judgment [35]-[36]); (d) The primary judge found that the omission by Lindley and the other officers to mention the respondent’s having written at least the phone number of his sister down, was necessarily to be considered in the context of their descriptions of: (i) The respondent’s allegedly having emerged from the bathroom and immediately started to yell and scream; and (ii) The respondent’s allegedly having threatened to stab one of the police officers with a pen.

25. The primary judge found that the accounts of the police officers as to the respondent’s having launched himself at them from atop the kitchen bench were absurd (Judgment [39]-[41]).

26. The primary judge made various findings of law. First he found that s357F(2) of the Crimes Act did not authorise the police officers to enter the premises because they were never invited by the respondent, the occupier, to come in. Rather the respondent had been in the shower at the time of entry. The primary judge concluded that Messrs Yavuz and Guler had no authority to invite the police onto the premises on behalf of the respondent, nor were they occupiers able to do so in their own right (Judgment [55]).

27. The primary judge likewise concluded that “the plaintiff by his words and actions expressly refused the officers permission to enter or remain on the premises”. This was subject to two matters: (a) whether an invitation from the respondent subsequent to entry could be said to invoke the provisions of s357H of the Act after the entry had taken place so as to authorise the continued presence of the police; and (b) whether such entry and continuance on the premises was authorised by the common law.

28. As to (a) above, the primary judge rejected s357H as a source of authority, on the basis that s357H applied on its terms only “[W]here a member of the police force enters a dwelling house in pursuance of an invitation (as referred to in s357F) …”. There not having been an invitation to enter, the primary judge concluded that s357H on its terms could not apply. The primary judge noted that the police did not purport to enter in pursuance of a warrant, the other basis which invokes s357H.

29. As to (b) above the primary judge concluded that no authority to enter was to be derived from the common law, citing Plenty v Dillon (1990-1991) 171 CLR 635 and in particular the joint judgment of Gaudron and McHugh JJ at 647. The passage which the primary judge quoted is as follows: “The policy of the law is to protect the possession of property and the privacy and security of its occupier …"

"A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises ..."

"Except in cases provided for by the common law and by statute, constables of police and those acting under the Crown have no special rights to enter land ... "

"Consent to an entry is implied if the person enters for a lawful purpose ... However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”

30. The primary judge then referred to a number of exceptions cited in the joint judgment, concluding none applied to this case. His Honour concluded with these observations: 63. The Judges go on to state " but no public official, police constable or citizen, has any right at common law to enter a dwelling house merely - because he or she suspects that something is wrong ." In my opinion these principles apply in this case.

31. The constables in this case merely suspected that something was wrong. They entered the premises without first obtaining the Plaintiff occupier's permission. There is some faint evidence that one of the officers may have announced at the time of entry that they were police, and explained to Mr. Yavuz and Mr. Guler why they were there, but neither Mr. Yavuz nor Mr. Guler was in a position where they could give the officers permission to enter the premises.

32. Furthermore whilst it may be implied that the Plaintiff, albeit reluctantly, allowed the officers, they having entered the premises, to look around, certainly he withdrew any permission that may have been implied by that-for them to remain on the premises. He expressed his withdrawal of permission vehemently, and repeated it at least six or more times.

33. In my opinion the police officers acted in a highhanded manner. They were responding to a supposed "violent domestic." They ought to have borne in mind that the instigator of the call may have been acting maliciously. Prudence demanded that they approach the premises with some caution. By all accounts, when they did arrive, the situation, whatever it had been previously, was quiet. The door of the premises was open, and the living room was occupied by the mature gentlemen Mr. Yavuz and Mr. Guler. There was no sign of the domestic violence as they arrived. Prudence demanded that they make enquiry of the original complainant, if known, and approach the scene with some caution. I have no doubt that the Plaintiff, when confronted with the police in his living room, quickly-became agitated when they refused to leave. However, he was entitled to do so, especially after he had given the police a reasonable opportunity to inspect the premises. In evidence, the police maintained that they had not inspected the bathroom, but they made no effort to do so, either before or after they arrested the Plaintiff. In my opinion it was the attitude of the police, particularly Lindley, which led to an escalation of the situation were the Plaintiff was entitled to defend the integrity of his property, whereupon he became the victim of the assault by the officers concerned.”

34. In dealing with the allegation that the respondent had resisted the police officers in their entry on to his premises, the primary judge did not accept that the respondent shoulder-charged the police as alleged.

35. The trial judge concluded that the observations in the joint judgment in Plenty v Dillon at 655 applied equally here: "Although the First and Second Respondents were acting honestly 'in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the Appellant and in circumstances likely to cause him distress. It is not to the point that the Appellant was uncooperative or even unreasonable. The First and Second Respondents had no right to enter his land. The Appellant was entitled to resist their entry.”

36. The primary judge, having given verdicts for the respondent on the count of trespass to land, assault, false imprisonment and negligence, though in the latter case awarding no damages, then outlined his assessment of damages, summarised as follows: (i) Trespass to property: $85,000.00 (ii) Trespass to person (assault):

· general damages $150,000.00

· out-of-pocket expenses $8,265.00 (iii) False imprisonment: $20,000.00 (iv) Aggravated damages: $35,000.00

(v) Exemplary damages: $120,000.00

TOTAL: $418,265.00

RELEVANT STATUTORY PROVISIONS

34. The relevant statutory provisions are set out below: Crimes Act 1900 (NSW) Part 10B Powers of search, powers of entry and discharge of persons in custody Division 3 Powers of entry in cases of domestic violence 357F Entry by invitation (1) In this section, occupier , in relation to a dwelling-house, means a person immediately entitled to possession of the dwelling-house. (2) A member of the police force who believes on reasonable grounds that an offence has recently been or is being committed, or is imminent, or is likely to be committed, in any dwelling-house and that the offence is a domestic violence offence, may, subject to subsection (3): (a) enter the dwelling-house, and (b) remain in the dwelling-house, for the purpose of investigating whether such an offence has been committed or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, if invited to do so by a person who apparently resides in the dwelling-house, whether or not the person is an adult. (3) Except as provided in subsection (4), a member of the police force may not enter or remain in a dwelling-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 otherwise authorised (whether under this or any other Act or at common law) to so enter or remain. (4) The power of a member of the police force to enter or remain in a dwelling-house by reason of an invitation given as referred to in subsection (2) by the person whom the member of the police force believes to be the person upon whom a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed in the dwelling-house may be exercised by the member of the police force notwithstanding that an occupier of the dwelling-house expressly refuses authority to the member of the police force to so enter or remain. …… 357H Provisions relating to powers of entry under sections 357F and 357G (1) Where a member of the police force enters a dwelling-house in pursuance of an invitation (as referred to in section 357F), or in pursuance of a warrant granted under section 357G, for the purpose, in either case, of investigating whether an offence which the member of the police force suspects or believes to be a domestic violence offence has been committed, or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, the member of the police force: (a) is to take only such action in the dwelling-house as is reasonably necessary: (i) to investigate whether such an offence has been committed, (ii) to render aid to any person who appears to be injured, (iii) to exercise any lawful power to arrest a person, and (iv) to prevent the commission or further commission of such an offence, and

(a1) must inquire as to the presence of any firearms in the dwelling-house and, if informed that there is a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize the firearm or firearms, and

(b) is to remain in the dwelling-house only as long as is reasonably necessary to take that action.

(2) Nothing in subsection (1) or in section 357F or 357G limits any other power which a member of the police force may have under this or any other Act or at common law to enter or remain in or on premises.

DISPOSITION

35. The appellant challenges the primary judge’s finding of trespass. This challenge extends to trespass on initial entry, to whether the police were invited to remain inside the premises once they had entered, and generally as to the finding of trespass to the respondent’s person and property. There is likewise a challenge to the finding of false imprisonment. There is no challenge pressed to the primary judge’s finding of negligence, as no damages were awarded for it.

36. The damages awarded were challenged on the ground that the amounts allowed in respect of trespass to the property and to the respondent’s person were said to be excessive. There is also a challenge to the award of aggravated damages and exemplary damages. In the alternative a new trial is sought. Trespass to respondent’s property

37. I turn first to the question of the trespass to the respondent’s property.

38. There were clearly some contested matters but what occurred at the inception was not in issue. The first step in the sequence of events was the police alert signalled by “two beeps”. As Senior Constable Moore explained, the gradation of three levels of messages meant that the two beeps here was for “anything that’s serious, like … violent domestics”, as compared to “all other jobs, like verbal arguments, domestics, would just get broadcast without a beep” (Black, 338F).

39. Senior Constable Moore continued his evidence, again not in dispute, that, “This job came over with two beeps. It said, “Male and female fighting. Female heard screaming” and then it said – there were three messages, I can’t recall them all word for word, but the final message was, “The female had been screaming. Now it’s all quiet.” (Black, 338G).

40. I consider that there was significance in the fact that the squad cars called to intervene had clearly had cause for concern that the female in question, Janette Kuru, was at risk of physical violence. When it transpired that the female had been screaming but all had gone quiet, the police were clearly faced with the potential of a very serious act of violence which they were duty bound to investigate. They could not be certain that violence had occurred. But the police had every reason to investigate to find out the true position and to do so with urgency. I respectfully consider that the primary judge was applying hindsight, and was not being entirely fair, when observing: “66. In my opinion the police officers acted in a highhanded manner. They were responding to a supposed "violent domestic." They ought to have borne in mind that the instigator of the call may have been acting maliciously. Prudence demanded that they approach the premises with some caution. By all accounts, when they did arrive, the situation, whatever it had been previously, was quiet. The door of the premises was open, and the living room was occupied by the mature gentlemen Mr. Yavuz and Mr. Guler. There was no sign of the domestic violence as they arrived. Prudence demanded that they make enquiry of the original complainant, if known, and approach the scene with some caution. … “

41. That there was “no sign of the domestic violence” in no way dispels the legitimate cause for police concern from the earlier circumstances. For all the police knew, the woman concerned could have been lying battered and unconscious or at risk of further violence. The police had acted in the precautionary way the community would expect where violence was apprehended. “Prudence” and “caution” cut both ways. In my view prudence and caution called for the police to act urgently to see if someone was indeed seriously injured and possibly at risk of further injury following the female screams and what was described as “fighting” between a man and a woman. That there were those screams, and in a fight between the respondent and Janette, is not in dispute.

42. Nor in fact did the police burst in. They simply entered, later to encounter a clearly agitated occupier who behaved with some aggression. From his viewpoint he may well have been affronted by the police presence. But even if he knew he was in fact innocent of violence, he also knew he had been in a fight that elicited screams from his girlfriend so that the police presence should not have been an unexpected outcome. From the police viewpoint they were at risk of failing to intervene when someone lay injured. Mr Kuru’s verbal aggression towards them later that evening made it more not less credible that there had been a physical incident involving violence. It was not for the police to assume innocence without first investigating in a manner proportionate to the apprehended danger.

43. Reverting to the events of entry, the “violent domestic” call serves to explain why the police, at 1 am, rushed to the scene in three police cars travelling from different locations and comprised six police officers in all. They did not seek a warrant and one can again understand why that was so, given the circumstances.

44. They “ran straight up to the unit” (Black, 120X) found the door to the unit wide open, and after Constable Moore called out a couple of times and received no answer, he and several other police officers, probably four of them in total, entered the unit whilst the two female officers remained for the time being outside at the door. That so far was acting with appropriate caution and not high-handedly.

45. I pause here to deal with the respondent’s account. The respondent and Janette Kuru gave evidence that they resided at the premises. Janette was then his girlfriend or fiancée and is now his wife. On 15 June 2001, they had attended the respondent’s sister’s house-warming party, about four or five minutes’ walk from their house and attended by some six or seven families. The respondent and Janette left the party at about midnight. After arriving home it is common ground that an argument developed between them (concerning the perceived selfishness of each of them). The respondent had wanted to stay at the party while Janette had wanted to go home because she was tired. By the time the police arrived, the respondent and Janette had settled down. Janette had telephoned the respondent’s sister at the party. As a result the respondent’s father-figure (so described) Mr Yavuz and the respondent’s friend Mr Guler and, it appears, the respondent’s sister attended the flat. Janette however went back to the party (presumably with the respondent’s sister) while Mr Yavuz and Mr Guler went upstairs to see the respondent. After a short discussion, the respondent had a shower.

46. It was whilst the respondent was in the shower and Mr Guler and Mr Yavuz were in the lounge-room of the unit that the six police walked into the unit. This was through the open door, as Detective Sergeant Lindley explained and was not disputed (Black, 154E). Detective Sergeant Lindley readily conceded that when he walked in he was not invited (Black, 154G). But nor was he asked to leave.

47. He then describes how the two gentlemen (Messrs Guler and Yavuz) came out to speak to the now six officers in the premises. Detective Sergeant Lindley stated that from memory he was told “they were not the lawful occupants of the premises”.

48. It is then Detective Sergeant Lindley’s evidence that they proceeded to search the bedrooms, identified by a rough sketch, having earlier walked into the lounge-room. They did not see a lady there or any blood or any things knocked over. He answered in the affirmative when asked, “Would it also be fair to say you were probably not going to leave until you got some answers?” (Black, 154P-155K).

49. Then, according to Detective Sergeant Lindley’s evidence, not disputed, they were told by Messrs Yavuz and Guler that, “there was another person in the bathroom”, being the respondent (Black, 155O).

50. When Detective Sergeant Lindley was pressed about whether he would enter premises unannounced without a warrant, his response was “when I have been informed there is a violent domestic taking place and the front door is wide open, yes” (Black, 156R).

51. A fair summation of the evidence of what followed thereafter was that the respondent emerged from the bathroom, queried the presence of the police officers as to why they were there, was informed as to the reason for their presence, and, again undisputed, agreed to the police having a look around the flat, which they did by looking into each of the two bedrooms of the flat but not, I infer, the bathroom, for reasons I explain below.

52. As Mr Temby, QC for the appellant acknowledged, there is some doubt as to the exact order of events. That is to say, there may have been an inspection only before, or both before and after the respondent emerged from the bathroom. But whatever the case, I would infer that the search was only of the bedrooms and not the bathroom, there being no evidence or submission to the contrary from either side. The reason the police did not inspect the bathroom before the respondent emerged is that he was showering there. The reason the police did not inspect the bathroom after the respondent emerged I deal with below.

53. What is clear, from the respondent’s own evidence, is that he did give consent to an inspection of the flat to see whether there was a female on the premises, in the following passage of evidence. “Q. I know it’s difficult, do you remember – was there one particular male speaking mostly, or-- A. Yes.

Q. --did they all speak?

A. It was – as far as I remember, I think it was Lindley. It was the officer with no uniform.

Q. No uniform on, and after he said, “We’re investigating a domestic violence dispute” or something of that nature, what did you say?

A. I said, “Well, there’s no female here.”

Q. What did he say after that?

A. He said, “Can we take a look around?”

Q. What did you say?

A. I said, “Sure”

54. The respondent then explained that what then happened was that two of the male officers went through both the bedrooms, came back to the kitchen and asked the respondent where Janette was, to which he said he replied “She’s at my sister’s house around the corner” and then asked “can you now go” (Black, 16N-R).

55. The respondent then stated that the police wanted the address of his sister’s house. This he did not know fully (he did not know the door number as they had only moved in some two weeks before) leaving him to attempt to explain where the house was (Black, 16V-17J).

56. His evidence then indicated a rising level of verbal aggression on his part, as in the following passage, culminating in the respondent writing down the phone number and the address in “Rhodes Street” but without the street number: “A. Okay. They said, after I was trying to explain when I was – they asked me for the phone number and the address, I then said, “When the fuck are youse going to get out of my house? What’s it—“

Q. No.

STERNBERG: Don’t cut him off.

SNEDDON: Q. Sorry, no. Finish what you were saying.

A. And this was as I was going to the bedroom to get a pen and paper to write down the phone number and the address. Then I came back to the kitchen, and I put the piece of paper down on the bench, and I started writing. I wrote the phone number. I wrote “Rhodes Street”, and then I slammed it down. I slammed the piece of paper down on the bench and said, “Right, can youse go now? I want everyone to get the fuck out of my house.”

……

A. Okay. They said to Yasar. “Where’s Jeanette? Where’s his sister’s house?” It was at this stage, I jumped onto the kitchen bench, and I yelled. I said, “I want everyone to leave my house. I want everyone to get the fuck out.” Then I jumped back off the bench, onto the kitchen side, and I walked-- (Black, 17N18C)

57. Then followed the respondent’s evidence as to how he claims he was assaulted: “A. Then I said, “Right. I’ve had enough,” and I walked straight up to my main entrance of my home, straight up to the main door, and I slammed the door open, then I walked back into the kitchen, and I raised my arms to the side of me, and I said, “Right, that’s it.” I said, “I want everybody out.” Then I took a few steps forward, with my arms still in the air, and I made contact with my left arm to one of the police officers, and then I was punched .

Q. Where were you punched?

A. On the left side of my face.

Q. When you said you “made contact” to one of the police officers, would you please just show his Honour where your arms were.

A. I said, “Right. I want everybody out,” and I stood there for a second or two, and then I stepped forward. I started walking forward, because between my main entry door to the lounge room and the kitchen was all the officers. When I went back to the kitchen, I lifted my hands. I said, “Right. Out,” and I just proceeded to walk forward.

Q. Where were the officers? How far away, firstly, from where you were standing to the front door of your house? About how many metres, do you think? Even somewhere on the bar table – can you--

A. Yes, say you were standing at my front door, this could be the kitchen bench.

Q. Where were the officers, male and female?

A. The two female officers were standing closer to the door, and there was two male officers to the left side of the hall, and two male officers to the right-hand side.

Q. So six in total?

A. Yes.

Q. When you walked towards them with your arms out, how hard did you touch one of the officers ?

A. It would have been at walking pace, because when I did make contact, my hands didn’t go forward. They just stayed adjacent to my side .

Q. You say you were struck by one of the officers. Were you struck before, immediately upon contact or after?

A. Just on contact. I heard, “Right. That’s it. You’re under arrest,” and I was hit at the same time as hearing those words.

Q. Do you know which officer hit you?

A. I think it was Lindley.

Q. Was it one of the – one with uniform police--

A. Not in uniform.

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. Conclusion

94. I conclude that the police were entitled at common law, if not by a purposive reading of s357H of the Act, to remain on the premises after the invitation had been withdrawn. This was in order to complete that which the invitation permitted, namely to ascertain whether there was an injured person on the premises, the victim of domestic violence, or otherwise to ascertain the whereabouts of the person concerned. DAMAGES

95. Given my conclusion that the police were not trespassers on the premises, and given that the reaction of the police to the respondent’s aggressive and ultimately violent behaviour was not pursuant to any trespass, the only question that remains is whether the police did exceed what was appropriate in the circumstances to restrain the respondent. I am not satisfied that there was such conduct as would amount to a trespass on the person when the police acted as they did to restrain the respondent and take him to the cells overnight.

96. It is therefore not necessary for me to consider whether the damages in question were excessive since I conclude that no damages lay in the circumstances. In saying this, I would not wish to be understood as endorsing the very large quantum of damages awarded, were my conclusion otherwise as to liability. OVERALL CONCLUSION

97. I consider that the appeal should be allowed.

98. Ordinarily costs should follow the event. Here, though, there was a genuine issue based upon the proper interpretation of both the applicable provisions of the Crimes Act and the common law which was novel and in the public interest to resolve. Nor did the Crown assist matters by the way its case was pleaded, as Mason P points out. The Crown have had the benefit of a judgment which has clarified police powers for the future. I thus agree that the State should pay its own costs of the appeal, and agree in the orders proposed by Ipp JA.

99. IPP JA: The principal issues in the appeal

100. There are two principal issues raised by this appeal. The first concerns the right of police to enter private property when they believe on reasonable grounds that a domestic violence offence has been committed on the property. The second concerns the right of police to remain on private property, despite being ordered to leave by the occupier, so that they can investigate whether a domestic violence offence has been committed.

101. These issues arose in proceedings before Murray ADCJ. The action before his Honour was brought by the respondent (Mr Kuru) against the State of New South Wales (the appellant) for damages for trespass to property, trespass to person, false imprisonment and negligence.

102. Mr Kuru’s action concerned an incident that occurred after midnight one evening when six police officers entered his apartment. Earlier, Mr Kuru had had an argument with his then fiancée (now his wife – Mrs Janette Kuru). This led to some unknown person calling the police. By the time the police entered the apartment, Mr Kuru’s fiancée had left and Mr Kuru was having a shower. When he came out of the shower, he discovered the police presence. He thereupon agreed to the police looking around the apartment. Thereafter, however, he withdrew his permission. The police did not leave and a fracas ensued. The police arrested Mr Kuru and took him to the Maroubra police station where he was detained until after 7.00 AM.

103. Later, Mr Kuru was charged with counts of resisting a police officer in the execution of his duty, assault upon a police officer in the execution of his duty and assault occasioning actual bodily harm. These charges were heard in the local court and dismissed.

104. Murray ADCJ held that the police were trespassers in Mr Kuru’s apartment and had no lawful justification for being there. He held that they had wrongfully arrested him, assaulted him, and falsely imprisoned him. He made no findings in respect of the negligence claim.

105. The judge awarded Mr Kuru damages of $85,000.00 for trespass to property; agreed out of pocket expenses of $8,265.00; general damages for trespass to person of $150,000.00; $20,000.00 for false imprisonment; $25,000.00 for aggravated damages (which his Honour said were called for by reason of “the circumstances of the incident”); and $120,000.00 as exemplary damages. These awards totalled $418,265.00 and his Honour ordered judgment for Mr Kuru in that amount.

106. The State appeals against his Honour’s decision on grounds of both law and fact.

107. During the course of argument, Mason P put to Mr Einfeld QC (who together with Mr Sneddon appeared for Mr Kuru) the following propositions, to which Mr Einfeld, properly and correctly, acceded. First, were the appeal to fail in regard to the claim for trespass to property, the appeal on the assault cause of action would also, inevitably, fail. This consequence follows because the police would then not have been entitled to be in the apartment, Mr Kuru would have been entitled to use reasonable force to evict them, and the police would not have been entitled to arrest him and to use force in trying to do so. Secondly, were the appeal in regard to the trespass claim to succeed, the appeal against the findings in respect of the assault, also, would have to succeed. That is because, in the scenario postulated, the police would have been lawfully on the property, Mr Kuru would not have been entitled to evict them forcibly as - even on his own version - he attempted to do, the police would have been entitled to arrest him and use reasonable force in doing so, and Mr Kuru’s case at trial was not run (in Mr Einfeld’s words) as a “discrete excessive zeal case”. The determination of the facts relevant to the appeal

108. There are material factual disputes between Mr Kuru and his witnesses, on the one hand, and the police, on the other.

109. The witnesses of Mr Kuru, to whom I refer, are two friends of his, Mr Mustafa Yavuz and Mr Yasser Guler. They were both in Mr Kuru’s apartment when the police arrived. Murray ADCJ accepted that both Mr Yavuz and Mr Guler attempted to give their evidence in as reliable a fashion as possible. Mr Yavuz gave evidence through an interpreter and the judge described his answers as “cryptic and, in many cases, lacking in detail”. Mr Guler gave evidence without the assistance of an interpreter and, according to his Honour, his mode of expression was even more cryptic but “fundamentally accurate”.

110. There was evidence that some of the police witnesses had seen statements made by other police witnesses before preparing their own. Murray ADCJ observed that there was a “remarkable similarity” in the police statements compiled for the police brief in the local court. His Honour described the cumulative effect of the six police witnesses as being, in these circumstances, “a single unified version”. He remarked, “[i]t is clear to me that the police ‘put their heads together’ in the compilation of their statements for the local court proceedings”. His Honour referred to Day v Perisher Blue (2005) 62 NSWLR 731 and said that the methods by which the police statements were given “greatly impugned” the credibility of their evidence. His Honour’s approach to the police evidence has been challenged by the State and the State also challenges other factual findings made by his Honour.

111. In the light of the judge’s factual findings (including those concerning the credibility of the State witnesses), and the challenges to some of them, I shall proceed to set out the relevant facts by drawing largely on the evidence of Mr Kuru himself, that of Mr Guler and Mr Yavuz, and police evidence that is not challenged. I shall draw attention, expressly, to any evidence to which I refer which does not fall into any of the categories I have mentioned. The events leading to Mr Kuru’s arrest

112. The relevant events occurred after Mr Kuru and his fiancée had attended a house warming party at his sister’s home. Mr Kuru and his fiancée left the party at about midnight. He had had about six beers during the course of the evening. After they had returned to Mr Kuru’s apartment, an argument developed between them. The judge found that “there was much yelling and screaming”. This led to some unknown person telephoning the police.

113. As a result, the police radio transmitted a “violent domestic alert” to police patrol cars. Two “beeps” on the police radio denoted a “violent domestic”, as opposed to one beep, which denoted a “normal domestic”. Police protocol required that, when a violent domestic alert was broadcast, all units in the vicinity were to respond “under lights and sirens and get to the location as quickly and safely as possible”. According to the evidence of Senior Constable Moore: “Two beeps is anything that’s serious, like armed robberies, violent domestics … This job came over with two beeps. It said, ‘Male and female fighting. Female heard screaming’. And then it said – there was three messages, I can’t recall them all word for word, but the final message was ‘the female had been screaming. Now it’s all gone quiet’.”

114. Three police vehicles responded to the violent domestic alert. Two police officers were in each vehicle. This meant that six police officers arrived at Mr Kuru’s apartment. His apartment was on the second level of a block of units. The apartment consisted of a lounge room, two bedrooms, a bathroom and a kitchen.

115. Before the police arrived, Mr Kuru’s fiancée had telephoned Mr Kuru’s sister. This telephone call led to Messrs Yavuz and Guler arriving at the apartment, together with Mr Kuru’s sister. Mr Kuru’s fiancée then returned to the party with his sister. Mr Kuru went into the bathroom to have a shower. It was at this stage that the police arrived.

116. The judge found that when the police arrived the front door of the apartment had been left open. According to the evidence of Senior Constable Moore, as he approached the open door he “yelled out” and walked through the door. This evidence was not challenged.

117. When the police came in through the open door, Mr Kuru was still in the shower. According to Mr Guler, an officer asked him whether he lived in the apartment. Mr Guler replied in the negative. The officer explained that they had received a phone call about arguments in the apartment and that was why they were there.

118. According to Mr Yavuz, when the police came in, an officer asked him who had been fighting. Mr Yavuz went to the shower and asked Mr Kuru to come out.

119. Mr Kuru said that when he walked out of the bathroom door he saw four male police officers and two female police officers in his living room. He asked them what they were doing there. Detective Senior Constable Lindley replied that they were investigating a domestic violence complaint that had been made by one of Mr Kuru’s neighbours. Mr. Kuru said, “[w]ell there’s no female here”.

120. What occurred next, according to Mr Kuru, appears from the following exchange in the course of Mr Kuru’s evidence in chief: “Q. What did he say after that? A. He said ,’can we take a look around?’

Q. What did you say?

A. I said, ‘sure’.”

121. According to Mr Kuru, two officers inspected both bedrooms and had a look around the apartment. Mr Kuru testified that it took the police about a minute to a minute-and-a-half to look through the various rooms. An officer then asked, “[w]here is the female that was here? Where is she now?” Mr Kuru replied that she was at his sister’s house “around the corner” and then asked the police to leave.

122. According to Mr Kuru, after he requested the police to leave, they asked him for the address and phone number of his sister’s house where, according to him, the woman with whom he had been fighting had gone. He told them the name of the street where his sister lived, but could not remember the street number of the house. He tried to explain where the house was. In the course of this conversation he said: “[w]hen the fuck are youse going to get out of my house?”

123. Mr Kuru went to his bedroom to get a pen and paper to write down the phone number and the address. He came back to the kitchen and wrote his sister’s phone number on the piece of paper, as well as the name of the street where she lived. He slammed the piece of paper down on the bench and said, “[r]ight, can youse go now? I want everyone to get the fuck out of my house”.

124. The police then asked Mr Guler, “[w]here’s Janette? Where’s his sister’s house?” At this point, Mr Kuru jumped onto the kitchen bench and yelled. He shouted, “I want everyone to leave my house. I want everyone to get the fuck out”.

125. He then jumped back off the bench, according to him, onto the kitchen side. The police were standing on the lounge room side of the bench. The police testimony was to the effect that Mr Kuru jumped off on their side of the bench in an aggressive and threatening way. Murray ADCJ found that it would have been a physical impossibility for Mr Kuru to have jumped from the bench into the lounge room as the police alleged. He said that to do this Mr Kuru would have had to perform a swallow dive “of Olympic proportions”. It is sufficient to say, in my view, that the evidence did not justify this finding. It would have been relatively easy for Mr Kuru to jump off the counter on to the lounge room side. Mr Guler testified that this, indeed, is what occurred. The judge made no reference to this evidence of Mr Guler although he accepted him as an accurate witness. In the light of my conclusion as to the result of the appeal, however, it is not necessary for me to say more about this factual dispute.

126. Mr Kuru said that he jumped onto the kitchen bench to get everyone’s attention. He felt that he was not being heard. After he had jumped off the kitchen bench, Mr Kuru said (obviously loudly) that he had had enough. He said: “[r]ight, that’s it”. This was followed by: “I want everybody out”.

127. Mr Kuru said, “[t]hen I took a few steps forward, with my arms still in the air, and I made contact with my left arm to one of the police officers, and then I was punched”. He said that he made contact with the police officer while he was moving at walking pace.

128. According to Mr Kuru, a period of about five to eight minutes elapsed from the time he first asked the police to get out of the house to the time he made contact with the officers.

129. After Mr Kuru had made physical contact with the officer, the police arrested him. I make no comment at this stage as to whether that arrest was lawful or not. According to the police, Mr Kuru shoulder-charged them. The judge did not accept this (in a finding that is challenged). In the course of arresting Mr Kuru, the police punched him (on his evidence, several times). The police testified, in effect, that they used physical force to subdue Mr Kuru, who attempted to fight them off. What precisely occurred was in issue. In view of the conclusion to which I have come as regards the disposal of the appeal, it is unnecessary to resolve it. The lawfulness of the police entry and s 357F of the Crimes Act 1900 (NSW)

130. It has long been established 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.

131. Mr Temby QC who, together with Mr Sternberg, appeared for the State, submitted that the police were justified by s 357F of the Crimes Act 1900 (NSW) in entering Mr Kuru’s apartment. That section relevantly provides: “ (1) In this section, ‘ occupier ’, in relation to a dwelling-house, means a person immediately entitled to possession of the dwelling-house.

(2) A member of the police force who believes on reasonable grounds that an offence has recently been or is being committed, or is imminent, or is likely to be committed, in any dwelling-house and that the offence is a domestic violence offence may, subject to subsection (3):

(a) enter the dwelling-house, and

(b) remain in the dwelling-house,

for the purpose of investigating whether such an offence has been committed or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, if invited to do so by a person who apparently resides in the dwelling-house, whether or not the person is an adult.

(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a dwelling-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 otherwise authorised (whether under this or any other Act or at common law) to so enter or remain.

(4) …”.

132. It was not (and could not, reasonably, have been) disputed on Mr Kuru’s behalf that the police, when entering the apartment, believed on reasonable grounds that a domestic violence offence had recently been committed there. The information that had been relayed to the police about a male and female fighting, the female having been heard screaming, and that everything had “gone quiet”, amounted to ample grounds for suspecting or believing that a domestic violence offence had been committed. It followed that, by s 357F, if the police were invited by Mr Kuru to enter the apartment for the purpose of investigating whether such an offence had been committed, they were lawfully entitled to do so.

133. Murray ADCJ found that there had been no invitation as required by the section. His Honour said: “It is clear that s 357F(2) does not authorise the police officers in this case to enter the premises because they were never invited by [Mr Kuru] the occupier, to come in. He was in the shower”.

134. Mr Temby submitted that his Honour had erred and that Mr Kuru had invited the police into the apartment and, therefore, s 357F applied. This argument depends, to a degree, on the meaning of the word “invited” in the section.

135. Mr Temby first submitted that the open door was itself an invitation. I do not accept, however, that the mere fact that the door was open constituted an invitation to enter: cf Great Central Railway Company v Bates [1921] 3 KB 578 at 581 per Lord Sterndale MR (with whom Atkin LJ agreed).

136. Mr Temby then drew attention to the fact that, immediately upon seeing Mr Kuru, the police officers asked him whether they could “take a look around” his apartment, and he agreed. Mr Temby submitted that this conduct on the part of Mr Kuru, within two or three minutes of the police entering the apartment, constituted the requisite invitation.

137. I do not accept that an invitation to enter premises (within the meaning of s 357H) can only be made when a police officer is outside the premises. It is not unusual, where the door to a house, or a room, or any kind of premises, is open, for persons to walk through the door, make their presence known, and, while already inside, inquire of the occupant whether they may be permitted to enter. An affirmative response from the occupant would constitute, in every day parlance, an invitation to enter. The proposition advanced on Mr Kuru’s behalf is that an indication by an occupier to a person that he or she may enter premises, to which the door is open, is an invitation to enter if given when that person has not crossed the threshold, but is not an invitation if given when that person has taken a step or more into the premises through the open door. In my opinion, that proposition is contrary to ordinary usage and custom and bears no relationship to the reality of common human behaviour.

138. Section 357F (as well as ss 357G and 357H) was introduced into the Crimes Act by the Crimes (Domestic Violence) Amendment Act 1982 (NSW). In the Second Reading Speech, Mr Wran, the then Premier, stated: “The purpose of the Crimes (Domestic Violence) Amendment Bill is to further the government’s determination to eliminate the scourge of domestic violence in New South Wales”.

He stated that one of the objects of the bill was “to confirm the right of police to enter private premises to investigate a domestic violence complaint when invited …”.

139. It is apparent from the legislation itself that a purpose of s 357F was to facilitate police investigation of domestic violence offences and to protect persons who might be at risk because of domestic violence. It would be contrary to the objects and purpose of s 357F to give the phrase, “if invited to do so”, a technical and limited meaning. If the police could only be invited (for the purposes of s 357F) to enter premises when they were outside the premises, their ability to protect victims or potential victims of domestic violence and to investigate domestic violence offences would be hampered seriously. Such a construction could not have been intended by the legislature.

140. In my opinion, Mr Kuru, by agreeing (when he first saw the police) that they could look around his apartment, invited the police to enter and remain in the apartment within the meaning of the word “invited” in s 357F(2).

141. Even if the police officers’ entry through the open door technically constituted a trespass, such trespass was cured by Mr Kuru’s later invitation to them to enter.

142. It must have been obvious to Mr Kuru, when he agreed to the police looking around his apartment, that they were there to investigate a possible domestic violence offence. He must have known that people in the vicinity would have heard the screaming that had occurred, were likely to have thought that violence was being done to some person, and might have called the police. In any event, Mr Guler must have told Mr Kuru why the police were there when he went into the bathroom to call Mr Kuru. These matters explain why Mr Kuru, when emerging from the bathroom and agreeing to the police looking around, did not bother to ask the police why they were there.

143. Thus, in my view, Mr Kuru, in effect, invited the police to look around the apartment for the purpose of investigating whether a domestic violence offence had been committed. It follows, in my view, that the police were authorised by s 357F(2) to enter the apartment. The right of the police, at common law, to enter the apartment

144. Mr Temby submitted that, irrespective of s 357F(2), the police were entitled, at common law, to enter the apartment.

145. Mr Einfeld submitted that ss 357F, 357G (which governs entry into premises by warrant and which section is not presently relevant) and 357H constituted a code and the common law relating to the power of police officers to enter premises no longer applied.

146. I do not accept Mr Einfeld’s submission. It is inconsistent with the Second Reading Speech, according to which one of the objects of the legislation was “to confirm” the right of police to enter private premises to investigate a domestic violence complaint when invited. Further, it is inconsistent with s 357F(3), which expressly contemplates that the common law may authorise a member of the police force to enter or remain in a dwelling house even if authority to enter or remain is expressly refused by an occupier of the dwelling house. Importantly, s 357H(2) provides expressly that nothing in ss 357H(1), 357F or 357G limits any power which a member of the police force may have at common law to enter, or remain in, or on, premises.

147. There is much authority that, at common law, any person, including a police officer, is entitled to enter private premises to prevent a breach of the peace from occurring. A clear statement of the law appears in Thomas v Sawkins [1935] 2 KB 249 where Lord Hewart CJ said at 254: “I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension [of a misdemeanour or breach of the peace], to enter and remain on private premises. It goes without saying that the powers and duties of the police are directed, not to the interests of the police, but to the protection and welfare of the public”.

Avory J, in the same case, said at 256:

“In my opinion, no express statutory authority is necessary [to break open or to force an entrance into private premises] where the police have reasonable grounds to apprehend a breach of the peace…”

Lawrence J agreed.

148. See also Dowling v Higgins [1944] Tas SR 32 at 34 per Morris CJ; McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34; Todd v O’Sullivan (1985) 122 LSJS 403 at 409 per Legoe J; Panos v Hayes (1987) 44 SASR 148 at 154 to 155 per Legoe J; Nicholson v Avon [1991] 1 VR 212 at 222 per Marks J; McLeod v Commissioner of Police of the Metropolis [1994] 4 All ER 553 at 560 per Neill LJ (with whom Hoffman and Waite LJJ agreed); Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 at 711 per Beldam LJ (with whom Schiemann and Thorpe LJJ agreed); Friswell v Chief Constable of Essex Police [2004] EWHC 3009; Addison v Chief Constable of The West Midlands Police [2004] 1 WLR 29 at 32 per Ward LJ (with whom Saville and McCowan LJJ agreed).

149. A breach of the peace occurs when an act “either actually harms a person, or in his presence, his property, or is likely to cause such harm, which puts someone in fear of such harm being done”: R v Howell (Errol) [1982] QB 416 at 427 per Watkins LJ, in delivering the judgment of the English Court of Appeal. This statement of the law was followed by the English Court of Appeal in Addison v Chief Constable of West Midlands Police [2004] 1 WLR 29 at 30 to 31. See also Nicholson v Avon [1991] 1 VR 212 at 222.

150. Mr Einfeld submitted that Plenty v Dillon (1990-1991) 171 CLR 635 was authority for the proposition that the police did not have authority at common law to enter Mr Kuru’s premises. He relied, in particular, on the following remarks of Gaudron and McHugh JJ at 647 to 648: “A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises: Entick v Carrington (1765) 95 ER 807 at 817; Morris v Beardmore [1981] AC 446 at 464; Southam v Smout [1964] 1 QB 308 at 320; Halliday v Nevill (1984) 155 CLR 1 at 10.

…

The common law has a number of exceptions to the general rule that a person is a trespasser unless that person enters premises without the consent, express or implied, of the occupier. Thus, a constable or citizen can enter premises for the purpose of making an arrest if a felony has been committed and the felon has been followed to the premises. A constable or citizen can also enter premises to prevent the commission of a felony, and a constable can enter premises to arrest an offender running away from an affray. Moreover, a constable or citizen can enter premises to prevent a murder occurring. In these cases there is power not only to enter premises but, where necessary, to break into the premises…But no public official, police constable or citizen has any right at common law to enter a dwelling-house merely because he or she suspects that something is wrong: Great Central Railway Co v Bates [1921] 3 KB 578 at 581-582.”

151. Plenty v Dillon concerned access to premises for the purposes of the service of a summons. The case did not concern the power of a police officer to enter the property of another to enter and remain on private premises to prevent a breach of the peace from occurring. Thus, the observations of Gaudron and McHugh JJ at 647 to 648 are not binding on this court, although, of course, they must be accorded great respect.

152. In the passage quoted, Gaudron and McHugh JJ made no mention of the right to enter premises to prevent a breach of the peace. As I have attempted to demonstrate, that right has been accepted by many courts for many years. Particularly in the light of the fact that their Honours made no reference at all to circumstances of that kind (either by way of exclusion or inclusion), and as their remarks were made obiter, I do not think that they were intending to give an exhaustive list of exceptions to the general rule that a person is a trespasser unless he or she enters the premises with the consent of the occupier.

153. Mr Einfeld sought to obtain some support from their Honours’ observation that a police constable does not have any right at common law “to enter a dwelling house merely because he or she suspects that something is wrong: Great Central Railway Company v Bates [1921] 3 KB 578 at 581 to 582”.

154. In Great Central Railway Company v Bates, a police constable, seeing the door of a warehouse open after dark, entered the warehouse in order to see whether everything was in order. It was held that he had no legal right to so enter. Gaudron and McHugh JJ, in making the observation in question, were not referring to the situation where a police officer has reasonable grounds for apprehending that a breach of the peace has, or will be, committed. That situation is very different from a mere suspicion that something might not be as it should be.

155. In my opinion, the submission that the police were entitled, at common law, to enter Mr Kuru’s apartment, is correct. Mr Kuru’s revocation of his invitation and the application of s 357H

156. Shortly after Mr Kuru agreed that the police could remain and look around in the apartment, he revoked that consent. He ordered the police to leave. Section 357F(3) thereby became operative. That is, the invitation that Mr Kuru had previously given to the police no longer, on its own, authorised them to remain in the apartment. Section 357F(4) had no application and, therefore, the authority of the police to remain in the apartment, if it existed, had to be found – as stated in s 357F(3) – “under this or any other Act or at common law”.

157. Mr Temby submitted, firstly, that s 357H of the Crimes Act had the effect of authorising the police to remain in the apartment. This section provides: 357H Provisions relating to powers of entry under sections 357F and 357G

(1) Where a member of the police force enters a dwelling-house in pursuance of an invitation (as referred to in section 357F), or in pursuance of a warrant granted under section 357G, for the purpose, in either case, of investigating whether an offence which the member of the police force suspects or believes to be a domestic violence offence has been committed or, as the case may be, for the purpose of taking action to prevent the commission or further commission of such an offence, the member of the police force:

(a) is to take only such action in the dwelling-house as is reasonably necessary:

(i) to investigate whether such an offence has been committed,

(ii) to render aid to any person who appears to be injured,

(iii) to exercise any lawful power to arrest a person, and (iv) to prevent the commission or further commission of such an offence, and

(a1) must enquire as to the presence of any firearms in the dwelling house and if informed that there is a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize the firearm or firearms, and

(b) is to remain in the dwelling-house only as long as is reasonably necessary to take that action.

(2) Nothing in subsection (1) or in section 357F or 357G limits any other power which a member of the police force may have under this or any other Act or at common law to enter or remain in or on premises.”

158. Mr Einfeld submitted that the State’s reliance on s 357H was misplaced.

159. He submitted, first, that the section was not engaged as Mr Kuru had not invited the police to enter the apartment. I have held against Mr Kuru on this issue.

160. Mr Einfeld then submitted that on the facts of the case there was nothing that the police could have wanted to investigate. They had searched the house and had either looked at the bathroom or did not think it worthwhile looking at the bathroom. They had completed the searches they wished to make and therefore it was no longer reasonably necessary for them to remain in the apartment. The corollary to this argument is that, after Mr Kuru told the police to leave, they stayed in the apartment for some reason having nothing to do with the investigation.

161. I do not accept that, after Mr Kuru told the police to leave, there was nothing to investigate. The fact that no person was found in the bathroom, or elsewhere in the apartment, did not put an end to an investigation whether an offence had been committed. There may well have been other signs present that might have suggested that an assault had been committed. Moreover, the police might have thought it desirable to interview the woman who had been heard screaming, but who was no longer present. Her testimony was an important element in establishing whether an offence had been committed. The questions the police asked of Mr Kuru and Mr Guler as to the woman’s whereabouts (and which had not been answered to their satisfaction) were part of their investigations. Moreover, the police had not had the opportunity of verifying the telephone number Mr Kuru had given them.

162. Mr Einfeld drew attention to the fact that the police did not attempt to comply with s 357H(1)(a1) as they did not inquire as to the presence of any firearms in the apartment. In my view, however, this omission on the part of the police does not mean that they remained in the apartment with a purpose other than to investigate whether an offence had been committed (as required by s 357H(1)(a)(i)).

163. In the course of the cross-examination of Senior Constable Lindley, the following exchange occurred: “Q It is fair to say you wanted to know though what happened with the lady or where she was? A Yes.

Q And would it … also be fair to say you were probably not going to leave until you got some answers?

A Yes.”

The conduct of the police, generally, throughout the incident, was in accord with Senior Constable Lindley’s reply.

164. I have previously noted that it was not, and could not, reasonably, have been disputed that the police, when entering the apartment, believed on reasonable grounds that a domestic violence offence had recently been committed there. The police entered the apartment for the purpose of investigating whether an offence, which they suspected or believed to be a domestic violence offence, had been committed. It follows that the elements of the chapeau of s 357H(1) that trigger the operation of s 357H(1)(a) were established. Accordingly, the police were required to take action of the kind set out in s 357H(1)(a) (subject to the limitation in s 357H(1)(b)).

165. Section 357H(1)(a) requires the member of the police force concerned “to take only such action in the dwelling house as is reasonably necessary” to perform the matters listed in s 357H(1)(a)(i), (ii), (iii) and (iv). Section 357H(1)(b) provides that the police are to remain in the dwelling-house only as long as is reasonably necessary to take that action.

166. Only a matter of a few minutes elapsed from the time that Mr Kuru asked the police to leave until he was arrested. In those few minutes the police asked Mr Guler whether he knew the address of Mr Kuru’s sister and had not received a reply from him. They had had no opportunity of calling the telephone number that Mr Kuru had told them was the telephone number of his sister. Before they could complete their inquiries, Mr Kuru jumped off the counter, came into contact with, or struck, one of the police officers, and the police commenced taking steps to subdue and arrest him.

167. In my view, the conduct of the police in the crucial few minutes in question was reasonably necessary to investigate whether a domestic violence offence had been committed. In other words, in my view, the police remained in the apartment for a period reasonably necessary to take action of the kind they were required by s 357H(1)(a) to take. Thus, in my view, s 357H(1) authorised the police to remain in the apartment notwithstanding Mr Kuru’s revocation of his consent to their remaining.

168. At one point, Mr Einfeld referred to the fact that the State did not plead that the actions of the police were justified by s 357H and submitted that it should be precluded from doing so. This submission was subsidiary to his main arguments.

169. At trial, the State relied on s 357H, seemingly without objection. The argument the State so raised led his Honour to set out the terms of the section in the course of his reasons. The judge dealt with, and rejected, the State’s reliance on s 357H on the basis that the section did not apply “as there was neither an invitation given to the police, nor did they purport to enter in pursuance of a warrant”. There was no suggestion in his Honour’s reasons that Mr Kuru had objected to the State’s argument based on s 357H on the ground that it had not been pleaded.

170. This court has frequently stressed the importance of pleading matters that may take the opposite party by surprise or matters that make any claim or defence not maintainable. This has been said particularly in the context of claims against police officers for trespass: Pringle v Everingham [2006] NSWCA 195; Thompson v Vincent (2005) 153 A Crim R 577. Having regard to the way in which the case was run at trial, however, I consider it to be open to the State to raise its s 357H argument on appeal. The authority of the police, at common law, to remain in the apartment

171. I have referred above to the statement by Lord Hewart CJ in Thomas v Sawkins at 255 that, at common law, where there are reasonable grounds of apprehension of a misdemeanour or breach of the peace, the police are entitled to enter and remain on private premises. The rule, as Lord Hewart CJ noted, is derived from the preventive powers and duties of the police and is directed not to the interests of the police, but to the protection and welfare of the public. The rule has been applied in several cases.

172. In McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34, the police entered a private house because they suspected a danger of a breach of the peace. The Divisional Court of the Queen’s Bench (Lord Parker CJ, Widgery and O’Connor JJ) held (at 35) that the police “were justified in remaining [on the premises] because of their fear of a breach of the peace”.

173. McGowan v Chief Constable of Kingston upon Hull is also reported at (1967) 117 NLJ 1138. In that report, the following is stated: “[T]he circumstances were such that the police officers were justified in entering the appellant’s house to prevent a breach of the peace, whether invited to do so or not … Although the police conceded that when they arrived the appellant was calm, the situation rapidly became such that they were entitled to take the view that it was necessary for them to remain to prevent disorder or injury to the child”.

174. In Kay v Hibbert [1977] Crim LR 226, the Divisional Court of the Queen’s Bench (Lord Widgery CJ, Michael Davies and Robert Goff JJ) was concerned with a case where police officers went to a shop to investigate the sounding of a burglar alarm. The proprietor of the shop entered the premises while the police officers were present. He commenced to abuse the police officers verbally and told them to get out of the shop. As a police officer started to walk out, the proprietor struck him. The proprietor contended that, as he had told the police officers to leave the premises, they were trespassers at the time the assault took place and were therefore not acting in the execution of their duty. The Court held (at 227) that: “[T]he activation of the alarm in the police headquarters gave an implied authority to the police officers to enter the premises to investigate the matter, and their having thus entered as licensees, a reasonable time must be allowed to them to investigate before the licence was revoked. As the officers in the present case were given no time to satisfy themselves as to the identity of the defendant their investigations were incomplete and their licence unrevoked at the time of the assault”.

175. In a commentary in the report to the case (at 227), the following is stated: “It would seem … that a constable summoned to a building by a burglar alarm would be failing in his duty if he accepted without question the word of a person he found there (who might, after all, have been the burglar) that he was the owner. Even though told to go by the person who was in fact the owner, the constable, it seems, would be entitled to stay until he had taken reasonable steps to satisfy himself that it really was the owner who was instructing him to leave”.

176. Kay v Hibbert is also reported at (1977) 141 JP Jo 157. In that report, it is stated (at 157), as part of the holding of the Court, that: “[W]hen the respondent was assaulted his investigation was not complete because he was not satisfied as to the identity of the appellant; the appellant did not give the respondent reasonable opportunity to leave and the respondent was clearly still in the execution of his duty when the appellant struck him”.

177. In Ledger v Director of Public Prosecutions [1991] Crim LR 439, the police went to the appellant’s house to investigate a serious incident. The appellant refused to let the officer in and told him to leave. The appellant refused to give his correct name to the police. He was cautioned and arrested for obstructing the police. On appeal, the Divisional Court of the Queen’s Bench (Watkins LJ and Otton J) held that the police had an implied licence to enter the property to speak to the appellant. Although the appellant had purported to withdraw any permission given to the police to be on the premises, that withdrawal did not automatically terminate the licence of the police to remain on the premises. The Court cited Kay v Hibbert. Their Lordships stated at 440: “Here, as the officers were given no time to satisfy themselves as to [the appellant’s] identity, the investigations were incomplete and their licence unrevoked at the time of the arrest”.

178. Similarly, in the present case, even though the police were told to leave by Mr Kuru, they were, in my opinion, entitled, at common law, to stay until they had taken reasonable steps to satisfy themselves that no offence had been committed in the apartment (whether by making a closer inspection of the premises or by telephoning Mr Kuru’s fiancée or his sister and speaking to one, or other, of them).

179. In determining whether or not it was reasonable for the police officers to remain on Mr Kuru’s premises after the invitation was revoked, the purpose of the police officers in remaining is crucial. If they remained for reasons unrelated to their investigations, for example, on account of an enjoyment of the exercise of power, they would not be entitled lawfully to remain there. Murray ADCJ made no factual finding as to the police officers’ state of mind.

180. The State case was that at all times the police were on the premises for the purpose of investigating whether a domestic violence offence had been committed. The evidence of the police officers was to this effect. It is plain, on the undisputed evidence, that, at least until Mr Kuru told the police to leave, they were there for that purpose. I have noted that, in the few minutes that elapsed from that moment until the arrest, the police asked Mr Guler whether he knew the address of Mr Kuru’s sister and were awaiting a reply from him. It was not unreasonable for them to want to verify what Mr Kuru had told them. They had not had the time to ascertain whether the telephone number Mr Kuru had given them was the number of his sister. These matters are confirmatory of the State case that the police remained on the premises to complete their investigations. Counsel for Mr Kuru, at the trial, seemed, implicitly, to accept this as appears from the terms of the questions he put to Senior Constable Lindley in the exchange to which I have referred (see [65] above). The replies counsel received were consistent with the State case on this issue. Importantly, it was never put to the police officers at trial that they remained in Mr Kuru’s apartment for purposes unrelated to their investigations. I would, therefore, hold that the police remained on Mr Kuru’s premises so as to ascertain whether a domestic violence offence had been committed.

181. The police officers reasonably apprehended that a breach of the peace and a domestic violence offence had been committed. They were therefore entitled to enter Mr Kuru’s apartment and to investigate what had occurred. Although Mr Kuru revoked the permission he had given the police to enter, at the time he did so a reasonable time for completing their investigations had not elapsed. Thus, when Mr Kuru’s arm came into contact with one of the police officers, the police were not trespassers. Conclusion

182. As I have concluded that under ss 357F and 357H of the Crimes Act, and at common law, the police were entitled to enter Mr Kuru’s apartment and were entitled to be there at the time he made physical contact with one of the police officers, they were entitled to arrest him. In my opinion, the trial judge erred in finding to the contrary.

183. I agree with Mason P’s remarks (at [3]) as regards the way in which the State pleaded its case and accept that the consequence of that pleading is that the State should pay its own costs of the appeal.

184. I therefore propose the following orders: 1. The appeal is upheld.

185. The orders made by the trial judge are set aside.

186. There should be judgment and a verdict for the State.

187. Mr Kuru should pay the State’s costs of the trial.

188. Each party should pay their own costs of the appeal.

189. Mr Kuru should have a certificate under the Suitors’ Fund Act 1951 (NSW) for the costs of the appeal, incurred by him, if otherwise entitled.

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