Kuru v State of New South Wales [2008] HCA 26

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

MURAT KURU APPELLANT

AND

STATE OF NEW SOUTH WALES RESPONDENT

Kuru v State of New South Wales

[2008] HCA 26

12 June 2008

S649/2007

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 15 June 2007 and, in their place, order that the respondent's appeal to that Court on grounds 1, 2, 3 and 4 of the respondent's Notice of Appeal to that Court be dismissed.

3. Remit the matter to the Court of Appeal of the Supreme Court of New South Wales for further consideration and determination of grounds 5, 6, 7 and 8 of the respondent's Notice of Appeal to that Court.

4. Respondent to pay the appellant's costs of the appeal to this Court and of the proceedings in the Court of Appeal of the Supreme Court of New South Wales up to and including the entry of the order of that Court made on 15 June 2007.

5. Costs of the further hearing in the Court of Appeal of the Supreme Court of New South Wales to be in the discretion of that Court.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with M W Sneddon for the appellant (instructed by Carroll & O'Dea)

I D Temby QC with P R Sternberg for the respondent (instructed by Crown Solicitor (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kuru v State of New South Wales

Torts – Trespass to land – Power of police to enter private premises – Police officers went to suburban flat after receiving report of male and female arguing – Police treated report as "violent domestic" – Occupier invited police to "look around the flat" – Occupier later asked police to leave premises – Police did not leave and remained on premises for longer than it would reasonably have taken them to leave – Whether statutory justification for police to remain on premises – Proper construction of Crimes Act 1900 (NSW) ss 357F and 357H – Whether express refusal by occupier immediately terminated authority of police "to so enter or remain" on premises, irrespective of fulfilment of purposes for which entry effected.