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UNSW LAW
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Kuru vs State of New South Wales (2008) 236 CLR 1
Meenal Janjua
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Prue Vines
Laws1052: Introducing Law & Justice
Word Count: 1502
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I INTRODUCTION
In Kuru v State of New South Wales, the key issue considered by the High Court of Australia
is whether Police Officers trespassed on the plaintiff’s property whilst performing their duty.1
The parties in this case were, Murat Kuru (appellant) and the State of New South Wales
(NSW) (respondent).2 Kuru highlights the ambiguity of statute law in determining
parliamentary intention, exemplifying the errors committed by the executive body whilst
performing their duties, exposing them to civil liability, as well as exploring the principle of
“breach of peace”.
II FACTS AND PROCEDURAL HISTORY
On 16th June 2001, 6 police officers attended Kuru’s residence in response to a patrol alert
designated as “violent domestic”, after neighbours heard a commotion between him and his
partner.3 The police officers entered Kuru’s dwelling through the open front door,
subsequently being informed that he was in the shower by a male visiting the dwelling. When
Kuru exited the bathroom, he was informed of the police’s reasoning for visiting, allowing
them to look around the property. Murat informed the officers that his partner was not present
and asked the police to exit his premises. However, police continued to question him about
the whereabouts of his partner, ignoring his multiple requests that they exit the premises. 4
The appellant then jumped onto kitchen bench, to demand the police’s exit, contacting one of
the officers. Kuru was arrested for assault with police using force and capsicum spray to
restrain him in the ordeal. 5
Murat initiated legal proceedings in the NSW District Court in 2001 claiming damages for
trespass. In which the Trial Judge upheld his claim awarding Kuru $ 418,2656 in damages
including aggravated and exemplary.
NSW appealed the decision to the Court of Appeal of the Supreme Court of New South
Wales, on 2 main points:
1. That their continued presence was permitted by s357F7 and s357H of the Crimes Act
1900 (NSW) (TCA), or by the common law.8
2. If liability for trespass was established, the damages awarded were excessive.9
The NSWCA unanimously agreed that the appeal should be allowed, therefore setting aside
the District Court’s Decision.10
The appellant subsequently appealed to the High Court (HCA), which upheld the plaintiff’s
appeal in a 4 to 1 majority. However, the case was remitted to the NSWCA on the grounds of
excessive damages.11
1
(2008) 236 CLR 1.
Kuru v New South Wales (2008) 236 CLR 1.
3
Ibid [2].
4
Ibid.
5
Ibid [3].
6
Ibid [4] - [5].
7
Crimes Act 1990 (NSW) (‘TCA’).
8
New South Wales v Kuru (2007) NSWCA 141 [8a].
9
Ibid [8b].
10
Ibid [97] [184].
11
(n 2) [55].
2
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III LEGAL ISSUE + JUDGEMENTS
The main issue of concern in the HCA was determining whether officers had committed
trespass when Kuru first made physical contact with the officer, uncompliant to s 357F to 357I12
of TCA.13 Section 357(2) of the TCA recognises to entry by invitation into a dwelling may be
revoked by the occupier.
“if authority to so enter or remain is expressly refused by an occupier of the dwellinghouse and the member of the police force is not otherwise authorised to so enter or
remain.”14
However, s 357H (1) regulates the powers it the event where police may remain in the
dwelling-house as long as it is “reasonably necessary”15 to prevent the commission or further
commission of a [domestic violence] offence.16 The HCA ruled in disagreement to the
NSWCA, that these provisions would permit the respondents to remain on the premises,
stipulating the ambiguity of the law in favour of the principle of quiet enjoyment of the
appellant.17 Hence the majority concluded that the police “remained on the premises for
longer than it would reasonably have taken them to leave”.18
NSW also argued that there was common law which justified their continued presence on the
premises to “keep the peace” as established by Thomas v Sawkins19. The majority sceptical to
this argument retained that the respondents do not have authority to “investigate whether a
breach of peace has occurred” or is imminent, rather only prevent it.20 The HCA concluded
that “there was no continuing breach of peace” or evidence of thereafter21, besides the
police’s refusal to leave.
Hence, the majority judgement ruled in favour of the appellant, as there was no statutory or
common law justification for the officers to remain on the dwelling.
12
(n 2) [13].
Crimes Act 1900 (NSW). Section 357 provisions were repealed by the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW).
14
(n 2) s 357 F.
15
(n 7) s 357H(1)(b).
16
Ibid s 357H(1)(a)(iv).
17
(n 2) [37].
18
Ibid [24c].
19
[1935] 2 KB 249 (‘Thomas v Sawkins’)
20
(n 2) [46] – [47]
21
(n 2) [53]
13
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IV COMMENTARY
A Statutory Interpretation
The construction of the legislation often reveals ambiguity of parliamentary intention, leaving
it open to judicial interpretation which results in procedural inconsistencies. This undermines
a key concept of the Rule of Law – that the law is applied to everyone equally and fairly.22
The construction of the s 35723 includes the words “as long as is reasonably necessary”. The
qualitative nature of “reasonably” opens the door to different statutory interpretations which
may lead to differing judicial opinions as seen by the ruling of the dissenting Judge Dyson
Heydon in comparison to the majority ruling in Kuru vs New South Wales. The majority
ruling argues that police had reached past the point of “reasonably necessary” in favour of an
individuals’ right to quiet enjoyment, whilst Judge Heydon argues it was in the “reasonable”
parameters of a domestic violence investigation.
In recognising that both the executive police and judicial body, maintain powers not granted
to the public, Judge Heydon and the NSWCA’s affirmation of police activity highlights a
conflict between the separation of powers, tilted in favour of authoritative bodies. This has
numerous social consequences, as it opens to door to misconduct and misuse of power as
demonstrated through the Adam Salter Case24, as police demonstrate their ability to threaten
the safety of individuals and the community. The qualitative nature of the law creates
loopholes that may elevate police responsibility, increasing the chance of arbitrary use and
abuse of power, hence undermining the rule of law.
In the specific case of Kuru vs New South Wales25 the majority ruling of the High Court in
favour of the appellant recognising the statutory interpretation of 357F to 357I26 as to
maintain an individual’s right to consent to police presence, upholds judicial responsibility to
the public. However, as mentioned, the qualitative nature of the law, exemplifies how this
ruling may undermine the authority of the police with Judge Heydon recognising that “the
mere fact that no person had been found in the unit did not put an end to the investigation of
whether a domestic violence offence had been committed”. 27 Nevertheless, the majority
decision recognises that the continuation of police investigations is not relevant to the
application of ss 357F and 357H in the present matter. 28
Hence, Kuru maintains an individual’s right to consent, in alignment with parliamentary intention
through judicial intervention, however, also recognises how public interest can be undermined through
authoritative bodies as seen by the ruling of the NSWCA.
22
Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3rd ed,
2013)
23
Crimes Act 1900 (NSW).
24
Lucy McNally, ‘Adam Salter shooting: Police agreed to lie about what happened, court hears’, ABC News
(online, 24th May 2016) <https://www.abc.net.au/news/2016-05-24/adam-salter-shooting-lakemba-courtpolice-lied/7439750>
25
26
(n 2) [13].
(n 2) [6] (Heydon J).
28
(n 2) [23]
27
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B A Breach of Peace due to Social Implications
Breach of Peace is conduct is conduct that involves, or is the trigger of, interpersonal
violence. It includes actual violence and the preconditions for violence.29 Professor Stone
refer to it as:
The obligation to keep the peace is not an obligation to refrain from annoying
neighbours with loud music or other rowdy behaviour, but to refrain from fighting or
other violent conduct, or behaviour that is likely to provoke such conduct … what is
required it actual or potential violence … mere disturbance is not enough.30
Regarding legal police authority to enter a premise, there are legislative provisions or
common law provisions. As discussed, legislative provisions did not suffice for the police
presence in the case of Kuru. In common law, provisions are granted in which consent or
warrant (implied licensing) is not required for police presences. These cases mainly involve:
1. Preserving life or property;31
2. Exercising lawful authority;32
3. Preventing or terminate breach of peace.33
Domestic violence (DVA) has been a been a major issue plaguing NSW, breaching its peace.
During the period of Kuru, domestic violence related assault had risen from 36% (2001) to
39% (2010). 34 During the early two-thousands, police we likely hyper-aware of this fact, highly
influencing their conduct as well as affecting the decision of the NSWCA. The New South Wales
Bureau of Crime Statistics and Research also recorded that over 85% of DVAs happened on
residential property, with a large percentage during midnight to 3am. These facts closely
aligned with the fact of the Kuru case, which may justify the intensive actions of the police,
under the premise that they were attempting to prevent a breach of peace.
However, the overall ruling that police were not preventing a breach of peace, instead most
likely the cause of it, lessens executive authority to tackle potential DVA cases. Although,
common law attempts to prioritise victims through this principle, it is extremely limited in its
ability, similar to legislation due to its qualitative nature.
V Conclusion
Overall, in relation to the issue of police trespass on Kuru’s property, The High Court ruled in
favour of the appellant. Kuru vs New South Wales highlights the issues of judicial ambiguity
and the social implications of the “breach of peace” principle’s involvement in the
aforementioned case.
Brendon Murphy, ‘Retaining and Expanding Breach of Peace’ (2017) 41(4) Criminal Law Journal 222, 225
R Stone, “Breach of the Peace: The Case for Abolition” [2001] Web Journal of Current Legal Issues
<http://webjcli.ncl.ac.uk/2001/issue2/stone2.html>
31
(n 29)
32
(n 29)
33
(n 29)
34
Katrina Grech and Melissa Burgess, Trends and patterns in domestic violence assaults: 2001 to 2010 (Bureau
Brief, No 61, May 2011) 3.
29
30