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Date: Fri, 13 Jun 2008 00:27 From: Neil Foster Subject: HCA on police and defences to trespass
Dear Colleagues I post the following on behalf of Harold Luntz:
*** In Kuru v State of New South Wales [2008] HCA 26 (12 June 2008) the High Court, by a majority of four (joint judgment by the four most senior members of the court) to one (Heydon J), upheld an appeal from State of New South Wales v Kuru [2007] NSWCA 141 (15 June 2007). In this case the police had been called to a "domestic". The occupier allowed them in, but then withdrew permission. The alleged victim was not there. An altercation occurred during which the occupier was assaulted and arrested. The case was fought entirely on the basis of whether the police were or were not trespassing at the relevant time. The majority hold that the police had neither common law nor statutory power to remain on the premises for the purposes of investigating an alleged offence once the occupier's permission had been withdrawn. The evidence did not justify reliance on preventing a breach of the peace. The statute relied on by the police was described as "long and dense" and had to be construed in the light of "the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person's residence". If Parliament wanted to derogate from this principle, it had to do so clearly. The joint judgment was "mindful" of the importance of intervention in domestic disputes, but the police could obtain a warrant, if necessary by phone, before entering, if they had grounds for one. ***
NF: I add briefly - of most interest to colleagues in other jurisdictions will be the comments of the majority from [40]ff on the common law, and the question whether a police officer has power at common law to enter and remain in premises to "prevent a breach of the peace", as suggested in Thomas v Sawkins [1935] 2 KB 249. Two points emerge from the discussion - (1) In this case the alleged common law defence was a power of police to enter and remain in premises in circumstances of a previous or "imminent" breach of the peace "for preventative and investigative purposes" - [42]. The majority were clear that whatever the scope of Thomas, it did not extend to mere "investigation", and hence on that ground alone the defence was rejected - see [51]. On the facts here at the time of the police refusal to leave there was no suggestion of any further breach of the peace, even if one had previously occurred. (2) However, the majority took the opportunity to suggest that there was much to be said for academic commentary which suggested that in any event the Thomas principle was stated in "unnecessarily wide terms", that applying it was a matter of great difficulty, and a hint that a principle allowing entry into premises to "prevent" a breach of peace was too broad - [48]-[50]. It is encouraging to see the High Court affirming the importance of individual rights to "quiet enjoyment of residential premises" ([43]-[44]) in the absence of a clear statutory or common law power on the part of police to enter.
Regards Neil Foster
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