Kuru v State of New South Wales

[2008] HCATrans 152

[2008] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S649 of 2007

B e t w e e n -

MURAT KURU

Appellant

and

STATE OF NEW SOUTH WALES

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 APRIL 2008, AT 10.05 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR M.W. SNEDDON, for the appellant.  (instructed by Carroll & O’Dea)

MR I.D. TEMBY, QC:   May it please the Court, I appear for the respondent with my learned friend, MR P.R. STERNBERG.  (instructed by Crown Solicitor’s Office – Sydney)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the overturning in the Court of Appeal of the verdicts and judgment ordered by Acting District Court Judge Murray in favour of my client was described as following from what Justice Santow called a “novel” interpretation of the statute - I think “novel” there means simply for the first time – but also a novel understanding of the common law.  That use of the word “novel” is found in volume 2 of the appeal book, page 601, paragraph 98.

We seek to address, criticise and persuade this Court to restore the approach of the learned trial judge in both respects.  We say as to the statutory question that understood together the perhaps divergent reasons of the two judges who delivered reasons both misread the nature of the statutory authority in such a way as to deprive it of its cardinal feature in the scheme in question, namely, one of the chief limitations on police power being the degree of control exercised by the existence or not of the householder’s permission.  That is the statutory point.

The second matter concerns the common law, which by the statute is expressly left to operate, along with other statutory possibilities that do not apply in this case.  The common law left to operate has been found by the court in this case, we say in a truly novel way, to extend to a kind of investigative task as justifying the continued presence without warrant on a householder’s residential premises, notwithstanding revocation of an earlier permission to remain.  That will include reference in particular to the 1935 decision which one can truly describe as being in England and Wales, Thomas & Sawkins, and the way in which it has been taken up in the authorities and, indeed, has been commented upon.

Your Honours, one striking thing about the outcome between first instance and Court of Appeal was that the events that occurred in and just outside my client’s home on 16 June 2001, very early on that day, led to criminal charges being laid against him.  You will see the nature of the charges set out in volume 2 of the appeal book at page 407.

They are, in short, four counts of resisting an officer in the execution of his or her duty, two counts of assaulting an officer in the execution of his or her duty and one count of occasioning actual bodily harm.  Those charges were heard.  They were dismissed.  Indeed, evidence given, particularly by the police officers in question, during those proceedings was deployed, as one might expect, by the cross-examiner on behalf of my client as plaintiff at first instance.  An important example of that, to which I will be coming shortly, is to be found in volume 2 of the appeal book, pages 534 to 535, paragraph 34.

GUMMOW J:   Where do we see an indication of these proceedings?

MR WALKER:   Page 407 is a list of the charges in what is called a fact sheet, your Honour.  Now, one thing that your Honours may have noticed, particularly by reason of the ‑ ‑ ‑

GUMMOW J:   Where do we see the outcome?

MR WALKER:   Your Honour, the outcome is admitted on the pleadings and one sees that on page 5.  Paragraphs 25 and 26 are admitted in the defence at page 15.  There is no doubt they were dismissed on the merits after a hearing.

HAYNE J:   What do you say we are to do with these pieces of information?

MR WALKER:   Your Honour, I was about to come ‑ ‑ ‑

HAYNE J:   You were about to come to it.

MR WALKER:   I was about to come to that.  The short answer to your Honour’s question though is alas not much, but it does highlight an important aspect of what has been held by the Court of Appeal from the point of view of the facts, which were found by the trial judge, which sufficed for the inferences he drew and which, in our submission, have not been subject to any appropriate appellate overturning.

Now, the striking feature is this, that although my client has the benefit, such as it is, of having had those criminal charges dismissed against him, in effect the Court of Appeal has held that the police were in the course of their duty, my phrase, not theirs, when he went to conduct them out of the premises.  The trial judge uses the word “usher”.  Other words used in the findings and evidence include “contact”.  Interestingly, no‑one says “hit” or “punched” in a way that led to a finding by a court against us. 

KIRBY J:   It is not of course unique to have a different view taken in civil proceedings to that which is taken in criminal proceedings with their different onus of proof. 

MR WALKER:   Quite so, your Honour, which is why the short answer to Justice Hayne’s question.  It is, however, a remarkable consequence, in our submission, bearing in mind the facts which were proved and were not proved or not held in the civil proceedings. 

HAYNE J:   Why?  There is nothing remarkable about it at all, Mr Walker.  Criminal proceedings are conducted according to one standard, civil proceedings according to another standard.  What are we to make of all this other than, have a little bit of poison in the well? 

MR WALKER:   Your Honour, the question of in the course of duty is a mixed question of fact and law and it was a legal question upon which it went off in the Court of Appeal and that is what I want to draw to attention.  The way in which the issues fell out, both at trial and in the Court of Appeal, included reliance upon statutory authority, as well, indeed, as on common law authority to remain on the premises at the critical time in a way which, as your Honours will have seen from the decision as to costs in the Court of Appeal, had not been pleaded, not a complaint here.  I draw it to attention because it explains the absence, both at first instance and in the Court of Appeal, of references to the way in which the issues have been framed between the parties.  The trial judge decided the statutory question in a way, for example, which led to departure from that set of issues in the Court of Appeal, the statutory authority being construed quite differently.

GLEESON CJ:   There is a difference between your formulation of the issues in your written submission and your opponents.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Paragraph 1, you say the first issue is whether the police officers were authorised to enter and remain in the absence of any invitation or warrant.  Your opponent treats that as a non‑issue and says the issue is whether the police were entitled to remain.

MR WALKER:   Yes.

GLEESON CJ:   Does that turn on the pleadings or ‑ ‑ ‑

MR WALKER:   That is raised to an extent on the pleadings but, no, that difference is not fully propounded and on that issue it has to be said the plaintiff as well as the defendant is deficient on the pleadings.

GLEESON CJ:   There is that fairly striking difference between the parties’ respective formulations of the issues.

MR WALKER:   In many ways that falls away, we think, for the reasons I will come to, that is, the initial entry, though it is dealt with in a way that we criticise in the Court of Appeal, we think, that is, tentatively we advance the view that that is not decisive in their Honours’ reasoning.  It is unclear but we think it is not decisive, that remaining is the key thing.

GLEESON CJ:   The outcome of the appeal will turn not on the view we take of the lawfulness of the initial entry into the premises, but on the view we take of the lawfulness of remaining on the premises after being invited to leave.

MR WALKER:   Yes.  At page 603 in paragraph 107 there is one of the several formulations of the way in which the issues presented themselves in the Court of Appeal and it is clear from the passage between lines 40 and 50 on page 603, paragraph 107 – these are Justice Ipp’s reasons – that the issue presented itself so that if the police were authorised to remain on the premises at the critical time, then my client was not entitled to act as he did in ushering them out coming into contact with one of them but, conversely, if they were not authorised, he was entitled to do so.  Even more importantly, if the police had been authorised, then the force they exerted in turn, which includes the punching, was force which, as the case was fought, was treated as justified because his contact was not justified.

GLEESON CJ:   So we are not going to have to decide the interesting question whether, if a person walks through an open door and says, “May I come in?”, and somebody in the kitchen says, “Yes, come in”, there has been a technical trespass committed between the point of the door and the kitchen?

MR WALKER:   Your Honour, our only quibble is whether or not that really is interesting.  If that is all that ever happens in a narrative, it is never interesting because it never comes to the attention of the law.  It does not matter.  That is attended to in the reasons of Justice Ipp.  It is not critical for any of the outcome of this case.

As it happens, we submit is wrong, there is a trespass in such a case but it is not one the law cares about because the householder does not care about it if the householder never objects.  If the householder objects, then the person is taking their risk.  Walk through an open door and you walk into the space protected by the common law, unlike walking through a gate left available to be opened to the front door up a path which invites just that, as authorities have held.  But an open door into enclosed space, that is the difference.  The common law should proceed on sharp lines.  That is the sharp line in such a case.  It does not arise in this case and it is not interesting for the purposes of this case.  Your Honours, in particular we do not get into, in this case, the question of the proportionality of the response by the police. 

GUMMOW J:   Why is that, Mr Walker?  Just explain it again. 

MR WALKER:   The way in which the case was fought meant that there was not before the court, to use my predecessor’s words in the Court of Appeal, quoted at the foot of page 603, there was not a “discrete, excessive zeal case”, a neat way of putting the point.  There was not an argument that said, “Even if I was not justified in trying to remove the police, even if they were justified in using force, given my actions, nonetheless their force did not answer the common law requirement of reasonable force.  It was more than reasonable”.  That is not in this case.

That is how the issue came down at first instance and comes down on appeal, both below and in this Court, to the question of the legal authority of the police to be on the premises at the critical time, the critical time being when the action was taken which we pleaded as the commission of the tort of assault.  That involves, as an anterior finding, that they were then trespassing on the premises, the other tort.  The false imprisonment follows of course.

Your Honours, a consideration of the written submissions and of the, in this respect, disparate reasons of the judges in the Court of Appeal, throws up as perhaps a critical matter of fact, just where the police were up to in the tasks they were performing on the premises at the critical time.  Now, in our submission, that will not be material, for reasons I am about to come to concerning both the statute law and the common law.  But there is no doubt that it was decisive for Justice Ipp and may have played a decisive role in Justice Santow’s reasons, Justice Mason agreeing with each of them, that there was an unanswered question that had been asked of one of the friends present, Mr Guler, as to the address of my client’s fiancée, where she was to be found.

Now, I will come to the facts a little later, in just a little more detail.  The detail is not necessarily exhaustively, but in summary the position had been reached at the stage in question where my client had certainly invited them to look around.  The police had acted on that invitation.  They had asked where the woman who had been here was to be found, an inquiry which indicates that the police correctly understood she was no longer on the premises as, indeed, they had been told.  My client had agreed to, perhaps volunteered to, the difference does not matter, supply both a telephone number and a street address, but alas without the number and the street.

At that stage the question which Justice Ipp places such weight on in terms of ascertaining where the police were up to in their performance of their task, for the purpose of ascertaining where they were in the discharge of their duties, it was asked of Mr Guler in the way that your Honours will find it, set out first of all at page 618, there is a reference there – I am sorry, at 618, paragraph 161, your Honours see the importance of the question at line 35, the questions the police asked of Mr Kuru and Mr Guler - Mr Guler is the one in question - as to the woman’s whereabouts, which had not been answered to their satisfaction and were part of their investigations.  That is why it is part of his reasoning.  It is really only the question to Mr Guler that is being referred to there, in our submission, which one can see from page 607, paragraph 124: 

The police then asked Mr Guler, “[w]here’s Janette?  Where’s his sister’s house?”

This is after the phone number and the address has been given by my client, at that point Mr Kuru, and then the fracas commences.  At page 619 one can equally see the importance of the matter in Justice Ipp’s reasoning, paragraph 166, about line 50:

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.

So it is the question to Mr Guler.  Now, at first instance one can note first of all the evidence noted at page 529, paragraph 22.  This is a recitation of evidence given.  I am not able to find a passage which makes this into a finding, but it is significant perhaps that it is part of the evidence narrated.  The plaintiff says, my client says:

the police) addressed Yasser –

that is Mr Guler –

and said:

“Where is his sister’s house?”

At which the Plaintiff jumped -

One needs, however, importantly to go to what appears to be a finding by his Honour below, page 534, paragraph 34.  Lindley is the leading policeman, the policeman in charge.  He was asked:

Did you see the Defendant –

that is, my client, the criminal defendant then –

speaking to police and writing down the address on a piece of paper?

A         No – somebody did ask him for a phone number, I think it might actually have been myself, said to him ‘Look, we’re happy to leave, but [c]an you at least give us a phone number of where [s]he is so we can call her to make sure she is fine?’  At which point in time he did . . . 

Q:       Did he write down an address –

that is a mistranscription; it is Rhodes Street –

and say that he didn’t know the number of the street?

And then it peters off.  Judge Murray says:

Lindley agreed that that evidence appeared –

that is, in the transcript –

and was true.

Then he goes on to deal with what that does for the credibility of the police.  One can turn to page 539, and in paragraph 48 there is a reference about line 40 to that evidence in a way that clearly implies his Honour’s acceptance of it.  He after all had noted Lindley’s acceptance of it as being true.  So that is what the evidence was and the findings so far as they went at first instance.  Your Honours have seen how Justice Ipp dealt with it.  There is an interesting contrast to be noted, pages 595 to 596, in paragraph 80 of Justice Santow’s reasons.  On page 596 his Honour is reasoning concerning the bathroom, a matter to which I will come soon very briefly, and during the course of that reasoning said, at line 18:

Second, they –

the police –

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.

They left, to be conducted – or intending to leave, to be conducted – to the place where they had been told she was now.  That is rather different, we respectfully suggest, from the way Justice Ipp dealt with the same matter at paragraph 161.  There is in fact no evidence of either of two things occurring after the police, as we put it, assaulted and wrongly arrested my client and they are important things, we submit, for the attention required to be given to the somewhat different reasons in the Court of Appeal.

There is no evidence whatever of the unsearched bathroom having any importance for the police thereafter.  Justice Santow is dealing with that, in part, in paragraph 80.  There is no evidence whatever of Mr Guler or anyone else present being asked anything about the whereabouts or the telephone number in a way that supplied the answer to the question apparently left hanging, according to Justice Ipp’s approach to the case - that being the thread upon which hung the police authority still to be on the premises at that point.

The implications of those two propositions are these.  As to the bathroom question, there had been more than a suggestion given in the police attempt at justification of their position that there may after all have been an injured woman in extremis, perhaps, somewhere in the premises.  That can be completely dismissed.  It is impossible to understand how six police would be diverted from a view that that was a possibility real enough to require exploration and further investigation in an emergency, how that would be swamped, entirely superseded, by the civil disorder occurrence, which was my client’s conduct on the police view of things.  There is no explanation of that and it goes nowhere, the bathroom matter.

Indeed, the inquiry about where is the woman that was here rather suggests that in this small flat they were quite satisfied that not only was she not in the bedrooms they had checked, they were not in the living area that they were in, she was not in the bathroom from which my client had come.  So that is the bathroom matter.

As to the question of the unanswered question to Mr Guler plainly did not play an important part at first instance and, in our submission, plays an important part only in Justice Ipp’s reasons in the Court of Appeal.  Its importance can be gauged from the fact that nowhere is there any explanation of what was the missing piece of information and whether they pursued it later and, if so, how?  It is important, in our submission, then to appreciate the way in which the judges in the majority actually described the tasks which they said justified the police being on the premises. 

Before doing so, because that requires going to their reasons in some detail, may I take your Honours to the statute, which is primarily the setting in which their findings of fact and their characterisations of the police tasks are important.  I do not mean to deprecate the importance of the common law, it is at least equally important here, but their Honours’ analyses start by attention to the statute.  That is the proper starting place because the common law complements expressly by statutory provision that which the statute authorises.  Your Honours will find attached to our submissions the provisions as they ‑ ‑ ‑

GUMMOW J:   We have Reprint No 18 as in force 11 May 2000.  Would that be right?

MR WALKER:   That will be correct for this case, yes.  As your Honours have seen from our submissions, these have been repealed and re‑enacted in materially similar form.  It is 357F where we start and where, we submit, the analysis should remain centred.  In subsection (2), in language, much of which is familiar from common law discourse, there is reference to:

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 we, for the purposes of this argument, just concede all of that?  Then comes the words of authorisation; that police officer “may, subject to subsection (3)”.  That phrase, in our submission, has been given insufficient weight by, in particular, the reasons of Justice Santow, to which we will come.  So:

may, subject to subsection (3):

(a)      enter . . . and

(b)      remain –

and for once the typography, in our submission, carries an important message.  This is not a combined or portmanteau phrase.  These are two different species of conduct.  One might be called instantaneous, that is, there is a point of entry, and the other is a continuum, that is, you can remain for a period.  For each of those the first of the limitations emerges in the following words:

for the purpose of investigating whether such an offence has been committed –

May I dwell on that phrase, your Honours, because that, in our submission, represents a statutory expansion of power beyond what the common law allowed.  It is a legitimate purpose to enter or remain to investigate whether a completed offence has been committed –

or, as the case may be, for the purpose of taking action to prevent the commission –

That is where the statutory authority, taken at this point in the provision, echoes or reflects the common law –

or further commission of such an offence –

Probably, given imminence, that would also parallel the common law.

Then comes the next critical part, the limitation on authority.  This is a grant of authority on terms.  Every part of the limitation, the conditions, is part of the statutory authority.  The critical expression is, “if invited to do so, by a person who apparently resides in the dwelling‑house, whether or not the person is an adult”.  So that the authority to do these things, some of which parallel a common law power or duty ‑ ‑ ‑

GUMMOW J:   The ambiguity perhaps is in the words “to do so”.

MR WALKER:   Yes.  We submit that the phrase “to do so” involves not just entry, not just remaining, but for the purpose. 

GLEESON CJ:   Is the expression “domestic violence offence” defined? 

MR WALKER:   Yes, it is.  It is defined in terms which – I will give the provisions as they were ‑ ‑ ‑

GUMMOW J:   Section 4. 

MR WALKER:   Yes.  There are at least two dimensions to the definition.  There is what I will call the relationship between alleged perpetrator and alleged victim, and there is also the nature of the tasks – sorry, the conduct which is proscribed.  In section 4, you are immediately thrown off to what a personal violence offence is, in the definition of “Domestic violence offence”.  But you see in “Domestic violence offence” that there is a list of what I will call the personages, which amount to the relevant relationship that makes it a domestic violence offence.  “Personal violence offence” means an offence, or the offence of attempting to commit a number of designated matters; they include assault.

GLEESON CJ:   That would cover that English case where the child said to the policeman, “Daddy’s throwing apples at Mummy.”

MR WALKER:   I think throwing fruit is an assault.  Yes, your Honour, it would.  To do so, in our submission, that phrase ought to be interpreted as involving the invitation, being one where there is no possibility of trick or mystery as to why the police want to come in.  We want to find out what is going on.  That accords with what appears to be the common law, in our submission, is certainly good practice terms of the balance between private space and public order, namely that the four officers of the police come in, without a warrant, that is, and otherwise than in hot pursuit, that they come in explaining why they wish to do so.  That allows an invitation to be meaningful. 

HAYNE J:   How does that work with a child because this invitation to enter can be offered by a child? 

MR WALKER:   Your Honour, the fact that by some potential invitors, the person making the decision to invite is a child, has been explicitly contemplated by Parliament with everything that is carried in its train, just as people who are perhaps infuriated or intoxicated as adults are contemplated by Parliament as able to give an invitation.  This is not equity at work here in terms of fully informed consent.  How it works is, more or less imperfectly, as it will with impaired adults as well.  Some children of course will be in an excellent position, perhaps in some cases the only sober person, in order to give such an invitation.  In our submission, that is no reason to read down the importance of the limitation of permission which subsection (2) incorporates in what includes an expansion of what would otherwise have been common law powers.  It includes, without warrant, the purpose of investigating whether such an offence has been committed, or, and that means that that first purpose is one that need not be accompanied by threat or any imminent recurrence. 

HAYNE J:   Does it mean that if invited to do so, given its potential application to the case of the child going to the door, is to be read as limited to inviting the police to come in, and what then follows is they have the various powers given by (2), limited as we are shortly to see by (3), and the capacity of the occupier?

MR WALKER:   Yes, but entry is not the only point.

HAYNE J:   I understand that.

MR WALKER:   I will rephrase that.  I am really saying entry is the only thing that is a point, but it is not the only form of police position.  There is the police position of initial entry and then there is the police position of continuing remaining.  That is what is dealt with by subsection (3) in a way which, whatever awkwardness there may be in language, plainly falls to be interpreted in favour of the permission control, which in our submission is the evident purpose of the phrasing of subsections (2) and (3).  We can leave aside subsection (4), which is the exception with which subsection (3) opens, as not casting any light interpretatively in this case and having no factual application.

HAYNE J:   Why not?  Why does it not assist in the construction of 357F as a whole to indicate that its scheme is that (2) contemplates the case of the child going to the door?

MR WALKER:   It does.

HAYNE J:   That gets the police in.

MR WALKER:   Yes.

HAYNE J:   Subsection (3) gets the police out if the occupier says, “Go”, ‑ ‑ ‑

MR WALKER:   And (4) says ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ but (4) says, whoever the occupier is does not matter if the victim, apparent victim, of the offence says, “Stay, I want to talk to you”.

MR WALKER:   Yes, quite.  There is no suggestion ‑ ‑ ‑

HAYNE J:   Now, why is it more complex than that scheme?

MR WALKER:   It is not.  I am sorry, your Honour, I do not suggest that is not the scheme.  There is a complexity in – or not a complexity – there is a matter I have to confront in subsection (3).

GLEESON CJ:   There is a further complexity that I think is of present irrelevance, and that is that houses can have two occupiers and one might be saying, “Come in,” and the other might be saying, “Get out”.

MR WALKER:   Yes.  The word ‑ ‑ ‑

HAYNE J:   Which gives emphasis to (4) ‑ ‑ ‑

MR WALKER:   Quite.

HAYNE J:   ‑ ‑ ‑ where the victim says, “No, I want you to stay”.

MR WALKER:   The invitation has to be by someone who apparently resides in the dwelling house.  That copes with the exigencies of quarrels about whether my 16‑year‑old son lives with me or not, for example.  Subsection (4) has the indefinite article before “occupier”, “an occupier of the dwelling‑house”.  As the Chief Justice, with respect, has pointed out, it is notorious that many dwelling houses have more than one occupier, however strictly you construe the word “occupier”.

What I was saying about subsection (4) was that it has no application in this case, it is not being called in aid, that is of some significance but only in a negative way clearing the road for our argument, and it does not, in our submission, cast any light on the all important matters in subsection (3) because subsection (4) is a carve out from subsection (3).  Subsection (4) applies even if what would otherwise be effective to terminate authority under subsection (3) is given by an occupier in the special case covered by subsection (4).  It leaves unaltered the plenitude of the control given to the permission of what I am calling the householder in subsection (3).

GLEESON CJ:   Am I right in thinking that children can themselves be the victims of domestic violence offences?

MR WALKER:   You are.

GLEESON CJ:   So you could have a situation in which the victim is a child and the occupiers are the parents of the child?

MR WALKER:   They say, “No, nothing to see here, everything is all right, go away, officer”, and the child weeping at the door says, “I am being beaten”.  I am not sure how often that it would present itself in such a simple fashion, but ‑ ‑ ‑

GLEESON CJ:   It does, however – and this may assist your argument – it is curious when you think of the range of factual situations that could arise that so much turns on this concept of invitation.

MR WALKER:   Yes.  Now, the reason ‑ ‑ ‑

GLEESON CJ:   The child who is the victim of a domestic violence offence might not be issuing any kind of invitation.

MR WALKER:   Your Honours, one thing that needs to be made clear is that these provisions could not have been regarded by the legislature as anything like a complete, let alone completely efficacious, code of power to deal with domestic violence.  It is just a small part of an overall endeavour in that regard.  The circumstance that the Chief Justice has drawn to attention is just one part of it.  This is that small part of the overall endeavour which deals with, in particular, entries without warrant and entries without the authority given by common law in what I am going to call in a general paraphrase, emergency.

HAYNE J:   What it reveals is that the legislative balance struck between rights of property and rights of entry turns in a critically important respect on the police having contact with the apparent victim, because ‑ ‑ ‑

MR WALKER:   No, your Honour.

HAYNE J:   No, because the occupier can always say “Go”.

MR WALKER:   Quite.

HAYNE J:   And it is the apparent victim, and only the apparent victim, who can say, “Despite what the occupier is telling you, I need you to remain”.

MR WALKER:   Your Honour, my respectful disagreement with that proposition is that it is too general because it needs to recognise that subsection (4) applies only when there has been a subsection (2) invitation by the supposed victim.  In cases such as the Chief Justice has drawn to attention, and they unfortunately may be many, the victim may never have given an invitation and may not be in a position to do so.

GLEESON CJ:   The victim may not be able to talk.

MR WALKER:   Quite.  So that it is not correct to say that this 357F is a provision that bespeaks the importance of contacting the victim.  I mean, decency, charity and pity, as well as the duty of the police officer may do so, and we will come to the common law in a moment, but so far as 357 authority, which I stress is entry without warrant and not only in a common law emergency to prevent an imminent breach of the peace, has been granted on terms which involve the all important step of an invitation.

Subsection (4) which, as Justice Hayne has pointed out, raises the self‑evident importance of protection, the protective power, preventative power and protective power, is nonetheless tied to that invitation.  In other words, there cannot be a trumping by someone of an invitation given by someone 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.  That is not something which, in our submission, involves some freestanding authority to look for a victim who has not given that invitation.  That may or may not come under other provisions to which I am about to come, in H, it may or may not come under common law but it does not come in F.

GLEESON CJ:   So what is the situation if a neighbour says to the police, “Those parents are behaving brutally towards the infant child and I fear for the safety of the infant child”?  The police need to get a warrant, do they?

MR WALKER:   A telephone warrant would be the obvious solution in that case.  There are common law powers as well to which I will come.  I think I need only add this to my answer to the Chief Justice, the evident poignancy of that position, the social imperative to protect such victims, does not or cannot affect the way in which one must construe 357F.

KIRBY J:   I mean, if you look at Part 10B in which 357F appears, it seems to have been or be a bit of a ragbag of modern sort of problems and would we be entitled to infer that one of the reasons of enacting 357F to deal with domestic violence offences was a disquiet in the community that in the past the police had tended to ‑ ‑ ‑

MR WALKER:   Pass by, yes.

KIRBY J:   - - - opt out of these things and say, “Well, you sort them out and go to the Family Court, don’t trouble us”.

MR WALKER:   Well, without any facetiousness at all, one has to remember that it is not long since that there were serious views held about the right to chastise, including physically, both female spouses and children.  So, yes, it is understandable.  There needed to be a legislative shift over and above what the common law might permit.  We would quibble, with respect, with the proposition that this is a modern problem, domestic violence.

KIRBY J:   The problem was that social attitudes changed and the law had remained and, more importantly, the police practice had remained the same and this was designed to facilitate to some extent responsiveness.

MR WALKER:   This gives them more power and, particularly by subsection (4), gives them power notwithstanding what I will call the head of the household, a big strong man, stereotypically, says, “No, you cannot come in”.

KIRBY J:   That is what I have in the back of my mind, Mr Walker, in this case looking at, as it were, the big issues that are involved.  How does one  uphold the traditional common law respect and protection for the integrity of the household when a person says to police officers, “Leave”, as against the enactment by the Parliament responding to a new perception of need of a law which facilitates the entry of police into the private premises of a person?

MR WALKER:   I would not seek by a syllable to dissuade your Honour from seeing that as the area in which the argument is placed, yes. 

KIRBY J:   Do we have the second reading speech of the Minister in support of this part or the section? 

MR WALKER:   I do not have it with me. 

KIRBY J:   Maybe at some stage they can be just given to us.

MR WALKER:   Having looked at it, I can assure your Honours that in orthodox mischief grounds what Justice Kirby has said is correct. 

GLEESON CJ:   But it is correct, is it not, that we can proceed on the basis that it would be a mistake to think of domestic violence only in terms of conflict between adults? 

MR WALKER:   Quite, absolutely.  When there are adults of course, there are disparities of physical capacity including before an assault that also have to be borne in mind.  It would also be a mistake, I suppose, to think of it in terms of always involving at least one adult. 

KIRBY J:   As against what I have just said, the principle of the defence of the integrity and privacy of the individual home is a very deep principle of the common law. 

MR WALKER:   Yes.

KIRBY J:   If it is to be intruded upon it has to be done with very clear provisions, as far as I am concerned.

MR WALKER:   That is of course, as your Honours appreciate, part of our argument.  In subsection (3), the dual positions of entry and remaining are referred to.  You see the expression “may not enter or remain”. We submit, that again that is not portmanteau.  It is, as subsection (2) indicates, two distinct positions.  Then one sees that what happens thereafter maintains the control given in this warrantless non‑common law emergency position, the control still given to the permission.  The provisions say that they “may not enter or remain…by reason” only “of an invitation given as referred to in subsection (2)”.  Just pausing there, your Honours will see that the language contemplates that there can be “an invitation given as referred to in subsection (2) to enter”.  But they may not enter “if authority to so enter…is expressly refused”.

GUMMOW J:   It does not say “or revoked”.

MR WALKER:   No, it does not.  That is the point to which I am coming.  The notion that Parliament has said there may be an invitation given under subsection (2) to enter, but you may not enter if that is all you have got as the police officer if authority is “expressly refused”, that must mean revoke because you cannot have an invitation given and then refused so as to deny authority to enter unless there can be the sequence of initial giving, subsection (2), and then, to use the statutory language, an express refusal. 

Ordinary experience of the world would indicate that people can and do change their mind about whether they want members of the police force, or for that matter, anyone official, to cross their threshold or to enter their house.  You may revoke either before the first policeman has come in, or only after only the first one has come in and started behaving in a way with which you disapprove. 

GUMMOW J:   What is the temporal connection between entering and entering and remaining?  When would one enter but not remain, even for a scintilla?

MR WALKER:   That is on the face of the language momentarily raised as a logical possibility but it has to be rejected immediately, your Honour.  In order to ‑ ‑ ‑

GUMMOW J:   Is it not a portmanteau expression in that sense?

MR WALKER:   In that sense it is, but after somebody has entered – and if they have done that with an invitation, not revoked – it is no longer sensible to talk about their permission to enter being refused because they were given the permission and they have entered; they entered with authority.  Thereafter all the weight is on remaining.  But I draw to attention this notion of an invitation to enter being “expressly refused” – those are the words of subsections(2) and (3) – to show that as to that position, which occurs in more or less a point in time, although if there is more than one there would be more than one entry, to show that revocation is what subsection (3) attends to, as well as revocation is what subsection (2) attends to, because ‑ ‑ ‑

HAYNE J:   The language might be a little more comfortable if it is seen as coping, amongst other things, with the case of dual occupancy.

MR WALKER:   Yes, it does.

HAYNE J:   It might be a little more comfortable.

MR WALKER:   Your Honour, I embrace that entirely.  Your Honour anticipates my next but one point.  My next point was that remaining, being a continuum of time, again one can go through the same sequence of thought.  Subsection (3) supposes there has been an invitation to remain, so a member may not remain:

by reason only of an invitation given as referred to in subsection (2) –

that includes an invitation to remain –

if authority to so enter or remain is expressly refused –

Again, in the nature of things that must include revocation.  Now, that comes to the next point, which is in answer to Justice Hayne’s question, that will include revocation not necessarily by the person who made the subsection (2) invitation but also by somebody, the status of whom is for the first time spelled out in subsection (3).  It is no longer just a person who apparently resides in the dwelling-house, whether or not an adult; it is now an occupier of the dwelling-house.

I am somewhat at a loss, your Honours, to give a legally exhaustive answer as to what is the difference between those two, but apparently there is an obvious distinction factually between that person in subsection (2) and an occupier in subsection (3).  But it means, particularly with the indefinite article in subsection (3), the refusal ‑ ‑ ‑

GLEESON CJ:   I am sorry, which are the two that you have trouble distinguishing?

MR WALKER:   Someone who apparently resides in the dwelling‑house and an occupier.

GLEESON CJ:   Well, a child.  If two parents are jointly entitled to possession of the house they are both occupiers, but presumably their children are residents.

MR WALKER:   No, unquestionably that is the case which is being addressed by subsection (2).  Subsection (2) is also seeking to grapple with what might be called the urgent nature of the decision by the police whether they have statutory authority.  They have to make up their mind whether somebody apparently resides in the dwelling house.  Now, that is different from deciding whether somebody is an occupier, which after all happens after they have an invitation under subsection (2).  It is because subsection (3) by its very terms operates in positions after there has been an invitation under subsection (2) that it includes revocation, either by the same person or by another person who is an occupier, subject, of course, to the special position in subsection (4).

Now, if that is the case, thus construed, 357F is a very important statutory authority critical as to one way in which we were held to fail in the Court of Appeal, and in our submission it is in 357F that you find the whole of the balance struck by the legislature between police authority to enter and the rights of what I will call the householder here spelled out by the interplay of invitation and refusal; that is, invitation and revocation.

KIRBY J:   Does that mean that your contention is that the common law in this area has been completely replaced by the specific and particular provision of 357F dealing with domestic violence entries by police?

MR WALKER:   No, and may I come to that in about a minute, I think, your Honour.  No, not at all.  Section 357G is, of course, the obvious alternative which provided the basis for part of my answer earlier to the Chief Justice.  There is the radio or telephone warrant possibility.  It does not apply in this case.  It is part of the same scheme because both it and the invitation authority under 357F are then subject to or lead to the application of 357H.

Now, in a nutshell, we say that particularly Justice Santow gave to 357H a function which evidently according to its terms it does not have.  Section 357H, in our submission, in no wise expands the authority to enter or remain, and what matters for this case, that none of its words, in our submission, properly understood, possibly expand or extend beyond 357F in this case the authority to remain.  That is sufficiently demonstrated ‑ ‑ ‑

GUMMOW J:   Well, these are restraints or limitations or qualifications.

MR WALKER:   Yes, yes, and far from being seen or described as restraints by Justice Santow and Justice Ipp, these were at various places described – and I shall take your Honours to this reasoning – as being in the nature of a requirement placed upon the police as to what they should do.  Well, in one sense of the word “requirement” it is, but only in the restraint or limitation or restriction sense.  In short, the decision against us in the Court of Appeal involves construing 357H as an authority to do things which carry ‑ ‑ ‑

GUMMOW J:   Well, they latched on the notion of investigation, did they not?

MR WALKER:   Yes - which carries with it an authority to remain on the premises to do those things through to what is called completion.  Now, it is highly significant that on that reasoning no time is set to the completion of the task other than by what is reasonable according to the police perception, whereas 357F clearly in subsection (3) truncates the authority to be on the premises regardless which of the tasks or purposes contemplated by 357F is in train and some of those are highly significant purposes.  They did not apply in this case, but they include offences imminently in train.  That is why it is going to be important to explain my answer to Justice Kirby about the common law to which we are about to come.

But 357H starts in subsection (1) with words that make it clear that the premise of its operation is either 357F having operated or 357G.  Significantly, there are words in parentheses which are unmistakable in their meaning after the phrase “in pursuance of an invitation”, that is, an invitation “as referred to in section 357F”, not, for example, such as or by way of non‑exhaustive illustration such as, an invitation as referred to in 3457F.  In our submission, your Honours will detect error in the passages I will come to in Justice Santow’s reasons where those words in parentheses and their important descriptive content are ignored.

GLEESON CJ:   I know you submitted earlier that if the police had believed there was any serious possibility that there was a battered woman in the bathroom, they would not have been standing there taking cheek from Mr Kuru.

MR WALKER:   And they would not have, all of them, combined in taking him down the stairs.

GLEESON CJ:   I understand the force of that, but did they suggest that they did think that there might have been a battered woman in the bathroom?

MR WALKER:   I am bound to say there are suggestions to that effect, but they are not the subject of any favourable findings, that is, findings favourable to the police.

GLEESON CJ:   That kind of investigation you say can be dismissed from the facts of this case?

MR WALKER:   We say so, but I need to qualify or add to my answer to the Chief Justice.  It may be that the reasoning of Justice Santow, upon which I have already for another purpose touched and to which I will come back, should be read as an appellate finding on appeal by way of rehearing to that effect, but it is by no means clear that that is so.  Not at all. 

Now, 357H, as I say, is premised on in this case 357F having operated.  That is critical because it is, we think, common ground that there was not a common ground that there was not an invitation for the initial entry.  Your Honours will forgive me if I keep saying “initial entry”, though it might appear tautologous, that is because there is a retroactivity found by Justice Santow, in particular, to which I shall come and there is also a position reached by Justice Ipp about being able to come in through an open door without invitation.

GLEESON CJ:   But that does not matter on your presentation of the issues, does it?

MR WALKER:   Quite.  Because we say regardless of the position that had been reached after the co‑operation by my client, there had been in terms unmistakable and in the vernacular a refusal of an invitation to remain.  That expression “refusal of an invitation to remain” is the awkwardness of language I referred to earlier.  Of course it is awkward in subsection (3) but the only way to make it work is the way in which we have addressed, namely, that it must involve revocation after a first grant of permission by an invitation.  Perhaps it would have been better if the word “permission” rather than invitation had been used, but nonetheless.

Back to 357H(1).  The premise of what follows in paragraphs (a), (a1) and (b) are that in the case of 357F the member of the police force has entered, so where a member enters, though it is in present tense, it means has entered, for the purpose of investigating whether an offence has been committed, we draw to attention the past tense, the completed act, or prevention or further commission, so that picks up the common law breach of peace authority, the member, and then the words follow which are plainly restrictive “is to take only”, and the placement of the word “only” is correct, emphatic and plain in its meaning, this and this only is the list of matters for actions which you may take for those purposes.

Those actions include, very importantly for this case, 357H(1)(a)(i), namely, “to investigate whether such an offence has been committed”.  So there it is, a very plain expansion, as we would put it, beyond the common law power and no doubt the voters would say “and a good thing too”.

One sees subparagraph (ii):

to render aid to any person that appears to be injured -

That does not operate in this case, notwithstanding the odd wishful suggestion by the respondent to that effect because there is no suggestion that there was any person who appeared to be injured, and there was no suggestion of rendering aid.

KIRBY J:   Well, it said in the respondent’s submission that the police had heard a message and heard a woman screaming in the background ‑ ‑ ‑

MR WALKER:   Quite so, your Honour, that ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ so why would that not possibly be a source of concern that a person might have been injured?

MR WALKER:   That is why I said we concede everything which is the premise of 357F.  There is no doubt about it, they got the call, they reasonably formed a view that they had to go there and quickly; that is the two red lights.  But this is after you have entered, this is after you have entered, all was calm, no screaming, no person who appears to be injured.  Similarly, subparagraph (iii):

to exercise any lawful power to arrest a person -

Well, they cannot use that in this case, that would be a bootstraps argument.  The arrest came only after he contacted them.  Then:

To prevent the commission or further commission of such an offence -

Now, in answer to Justice Kirby, that would have been par excellence, their motivation as they sped to the scene, without any doubt, but no one has ever called in aid in this case the availability of (iv) in any realistic way.  They were not doing anything to prevent commission or further commission of such an offence, they were getting phone numbers and addresses of somebody off the premises, as they then evidently believed.

So it all comes down to 357H(1)(a)(i).  Now, one notices, and you will have seen a reference to this in the Court of Appeal, paragraph (a)(i) about the mandatory inquiry as to the presence of any firearms.  I think I am going to correctly suffer strictures from Justice Hayne when I say that I cannot do much with that except that it is notable that that was not done, which rather places and perhaps is just a prejudice point, places a certain light on the hindsight presentation of the police case as to the dire emergency that was obtaining.

Paragraph (b) might be seen to be redundant in this sense, that if you are only allowed to take those actions, then surely by implication you are not allowed to string them out an unreasonable length in order to remain longer for other purposes.  But the legislature made it crystal clear, not by redundancy but by express requirement, that the length of time reasonably necessary to take the action in question was the limit of the authority to remain.  So, the scheme of subsection (1) moves from where you have entered pursuant to an invitation to the remaining only as long as necessary.

What has happened in the reasoning of the Court of Appeal is that 357H appears to have extended the authority to remain notwithstanding truncation pursuant to express refusal under 357F(3), and there is a difference in the way in which their Honours reason that.  It would appear that Justice Ipp accepts the efficacy of the revocation, but construes 357H in a way similar to Justice Santow, namely, that it permits one to go on and finish.

Now, can I draw your Honours’ attention to the great generality, no doubt also the great importance, of the task as described in 357H(1)(a)(i)?  It is “to investigate whether such an offence has been committed”.  That is the description of the investigative task in criminal law carried out by the police.  It can go on, as your Honours know, for weeks, months or years.  No one is suggesting that they are going to camp in someone’s residence for such a length of time but the statute simply says:

to investigate whether such an offence has been committed.

Leaving aside matters of convenience, commonsense and practicality, which means there is not going to be camping out, what Parliament has provided to prevent that absurd imposition, which itself would be oppressive when practiced by the forces of authority, what is provided is the truncation by 357F(3), in an invitation case I stress that is a case without a warrant, a case which does not depend solely on police perception.

Then we come to subsection (2) which is very, very important.  Your Honours will note that in its saving provisions there is an express encompassing, not only of 357H(1) itself, but also of 357F.  Nothing in those provisions limits any other power, so this is very opposite of a code.  I have sought to demonstrate it is a little bit extra, but certainly not a code.  One sees in particular the reference critical to this case, to the power at common law to enter or remain in or on premises.  Your Honours, against that background, which in our submission ‑ ‑ ‑

KIRBY J:   That is an enhancement of police power, is it not? 

MR WALKER:   Yes.

KIRBY J:   It is not a subtraction from it. 

MR WALKER:   It is an enhancement, and on terms which involve a trade‑off or compromise with the rights of property and privacy, by privacy I mean the right not to be ‑ ‑ ‑

KIRBY J:   You say that if it falls outside the provisions of the sections, the Crimes Act, and you are in the field of common law, then you – it is like love and marriage, you do not get it without the restrictions that the common law imposes. 

MR WALKER:   That is right.  Subsection (2) has it all in there, if invited.  Subsection (3), you cannot do it, even if invited.  It is “expressly refused”.  Subsection (4), special case, does not apply here. 

Can I take your Honours now to the way in which the matter is dealt with first by Justice Santow.  At page 594, paragraph 78, subparagraph (b), his Honour had reached the position that:

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”.

Page 595, paragraph 78(c), my client invited the police officers, after he had emerged from the bathroom, to remain for the purpose of inspecting it.  That is a judge’s language, can we look around, yes.  Then, (d):

the respondent sought to withdraw that invitation . . . but had not (I infer) inspected the bathroom –

There is no suggestion whatever, there is nothing in the record to suggest any dealing by which the police either suspected or my client acted in such a way as to give grounds for such a suspicion that he was seeking to prevent them from going into the bathroom.  I do not think (d) is intended to suggest that as it were my client had thought, “Goodness, next will be the bathroom, I must stop them before then”.  If it is read that way, there is nothing to support that.  The respondent does not argue that here.  His Honour then says in (e) that means:

their investigation was therefore incomplete –

and the question arises as to whether that matters.  We put that it simply does not matter, because under the statutory regime, it does not matter whether the investigation was complete, express refusal terminates the authority to remain for that purpose. 

KIRBY J:   What turns on the words “sought to withdraw”?

MR WALKER:   His Honour doubts the efficacy, unlike Justice Ipp, although it is not clear exactly how that reason by Justice Ipp concludes as it does, but I will come to that.  So the “yet to inspect the bathroom” is referred to again at paragraph 79.  In 79(a) his Honour says:

they were not satisfied as to their inquiries of the whereabouts of the woman –

I am not quite sure what “in circumstances” refers to.  I think it may be (b).  Can I ask your Honours to compare that reference at 595, line 45 to 596, 18 where his Honour in fact says, as I earlier drew to attention:

Second, they had by then been given sufficient information –

It may be different times are being talked of but that is not clear at all from paragraphs 79 and 80.  Now, 79(c) refers to “five to eight minutes, not a very long time”.  In our submission, it is crystal clear that where there is no physical obstacle to policemen walking out a door, five to eight minutes matters.  That is not de minimis of which lex non curat.

Paragraph 80, your Honours will see there a reference to the shoulder charge.  That is a complete red herring.  Certainly the respondent’s reference in their written submission to a finding in the alternative, that he either shoulder charged or did something else, is not supported by paragraph 80 which is the citation given in our friend’s written submission.  Justice Santow simply says:

It was not established finally whether the respondent shoulder‑charged –

In one sense that may not matter because the issues were not framed as the plaintiff being, as it were, alleged to have used excessive force in vindication of his entitlement to ask the police to leave.

KIRBY J:   I may be wrong, but I thought the primary judge decided that he did not shoulder charge.

MR WALKER:   He did, page 549, paragraph 75.  Whatever else is happening in paragraph 80 ‑ ‑ ‑

GUMMOW J:   Just a minute, 549?

MR WALKER:   Page 549, paragraph 75 he does not accept, and that is not overturned by paragraph 80.  In paragraph 80 there is then an explanation given for why the police did not thereafter inspect the bathroom.  With great respect to his Honour, it is unconvincing there being no presence of any material tested in the evidence and therefore capable of supporting an inference that in the ordinary way of police investigation and reflection on what they were learning, there had been, as it were, a countermanding of a previously formed determination to look in the bathroom as well.

GLEESON CJ:   Was the idea involved in this process of reasoning that because they had not yet looked in the bathroom, they were still investigating?

MR WALKER:   Yes.

GLEESON CJ:   And therefore the ‑ ‑ ‑

MR WALKER:   Therefore the revocation was not operative under the statute.

GLEESON CJ:   As a matter of construction of the statute.

MR WALKER:   Yes.  Now, that is why I opened by saying we say it does not matter if the investigation was not complete.

GUMMOW J:   But they had sought and been given a telephone number, had they not?

MR WALKER:   They had sought and been given a telephone number.  Justice Ipp, perhaps Justice Santow as well, I will come to the passages, seems to suggest the ‑ ‑ ‑

GUMMOW J:   It suggests they were more concerned with a telephone number than looking in the bathroom.

MR WALKER:   Of course they were because they were content with the proposition – in fact, they themselves described the lady as the woman who is not here.

KIRBY J:   Yes, but people do tell fibs to police.  It has been known to happen.

MR WALKER:   Your Honour, they do, but it is of great significance that we do not either have a common law or under the statute a premise for the authority of police to enter that they are entitled to disbelieve everything everybody tells them.  That is why “reasonably” is inserted in the common law.  It would be intolerable if our rights of privacy and property were ‑ ‑ ‑

KIRBY J:   So your construction of the statute is the entry, once entered, is over but that thereafter remaining can be revoked at any minute and once that is revoked, the fact that they are in the middle of an investigation is not a protection, they have to have a warrant, which interposes the judicial branch or administrative decision of an independent officer to decide whether they can remain?

MR WALKER:   They can step outside onto the footpath and get a radio warrant, there and then.

KIRBY J:   But we do not want to minimise the importance of the step of a radio warrant.  It ought not to be simply a formality.

MR WALKER:   No, it would not be and, if at that point, they thought that they did require to be on the premises, given what 357G speaks of, then that is what they would have done.  Parliament has provided ‑ ‑ ‑

KIRBY J:   They said, “We’ve heard a woman screaming.  We want to go into a bathroom.  They won’t allow us to go into a bathroom.  We want to stay there for that purpose”.  You say it is unbelievable that a warrant would not issue?

MR WALKER:   They were plainly solely devoted to the task of dragging my man off, not looking for a woman.

KIRBY J:   But was Justice Santow’s reasoning warranted by the authority that he got as a fact finder in the Court of Appeal that the trial judge had plainly made a mistake by suggesting the only inference was that your client had done a shallow Olympic-style dive from the bench, because that was not the only possible way of descending from the bench into the presence of the police?

MR WALKER:   Your Honour, I cannot begin to imagine the number of ways – it all sounds impossible to me.

KIRBY J:   But why did the trial judge introduce this Olympic‑style dive?

MR WALKER:   Your Honour, this does not matter.  It does not matter at all.

KIRBY J:   I mean, I know nothing about sports and so on but I can imagine that it is a much more ‑ ‑ ‑

MR WALKER:   I know enough, your Honour, to I think know that there is no such thing as the swallow dive in the Olympics, but leave that aside.  Your Honours, the picture painted by the respondent at first instance and in the Court of Appeal was of my client being very aggressive and doing things which alarmed them, and you see that in their defence, which at that stage in their thinking about the case, in effect said he is committing an offence – civil liability act, you cannot get damages, et cetera.  Part of that was the shoulder charge or part of that, first of all, believe it or not, was the slapping down of the paper with the information they had asked for.

GLEESON CJ:   I think jumping up on the bench in the first place was part of it.

MR WALKER:   Jumping on the bench.  It is his bench - one can interpolate - but slapping down the paper, jumping on the bench, jumping off the bench in their direction and shoulder charging.  Now, what is all that ‑ ‑ ‑

KIRBY J:   In the air too.

MR WALKER:   Hands parallel like this – “ushering”, as the trial judge found, and how else does one get six police out of your flat, when you are entitled to do so, than this?  I am not suggesting they are sheep, but it is a very similar exercise, surely and it is perfectly proper and no one ever said in this case that was unreasonable.  That is why the issue came down to were we entitled to ask them to leave?  If so, the force we administered was fine and did not justify the police in doing what they did and that is how the issues come down as they do. Your Honours, the shoulder charge was a red herring and so was the ‑ ‑ ‑

KIRBY J:   Well, not really because, if accepted, it would have been a foundation for the police having an apprehension for their own safety and could amount to an assault.

MR WALKER:   But there is not a finding of fact ‑ ‑ ‑

KIRBY J:   But it was found against the police, so that matter is decided in your favour and there has to be ‑ ‑ ‑

MR WALKER:   It was found against the police and the written submission against us here says there is, as it were, an alternative finding.  Well, there is not.  Paragraph 80 – I have referred to that.  So that goes out of the case.  We then are left with this jumping off the counter.  Now, on any view of it he jumped off the counter – he says back into the kitchen, his friend, Mr Guler, says in the direction of the police.  That is the point made by the respondent.  The short answer is, “And so?”  If he is on the counter he has got to get off.  There is no tort involved, nor offence involved, and no one said there was an assault committed ‑ ‑ ‑

KIRBY J:   You are making it sound all very innocent, but ‑ ‑ ‑

MR WALKER:   It is innocent for a householder, your Honour.

KIRBY J:   - - - if a person, with his hands out, flayed, jumps down in the middle and with eyes wild, then that can be threatening.

MR WALKER:   Your Honour, this is not a case which has been fought on the basis, as one sees from the way in which Justice Ipp set out the issues in the passage I took you to at opening - this is not a case where it is said, regardless of the rights and wrongs of trespass, there is the offence committed.  You will see that in the pleading; it is not how it worked out.  The State is surely bound by the way in which it was worked out by the hearings because that is how they get to rely upon 357H at all.

GLEESON CJ:   Did the evidence show whether any of these police were the same police that he had had a run-in with the year before?

MR WALKER:   No.

GLEESON CJ:   The ones who had put him in the paddy wagon the year before?

MR WALKER:   No.  I think your Honours can proceed on the basis that if I had that material in the appeal book you would have heard about it and it would have been in the findings.  Your Honours, the position about the jumping is therefore neither here nor there and there is an entire absence in the argument against us in writing at least as to how that affects the rights and wrongs.

KIRBY J:   Well, it is a question of how the law under the statute and the common law requires a householder in this circumstance to “usher” six policemen out of their home when they have withdrawn their consent.

MR WALKER:   Yes, and “ushering” means ‑ ‑ ‑

KIRBY J:   What do the cases say about it?  There must have been many cases, reasonable force.

MR WALKER:   But that was not an issue in this case.

KIRBY J:   Was it not an issue?

MR WALKER:   You will see it on the pleadings but it is not an issue as the case was fought, and I stress the State relies upon the way in which the case was fought as opposed to the way it was pleaded because that is how they get into 357H at all.  A complaint was made by us about the pleadings in the Court of Appeal.  That argument was rejected and it is not pressed in this Court.  This is one of those cases, most unfortunately, where largely, but not entirely on the defendant’s side, there is a deficiency of the pleadings. 

KIRBY J:   Justice Mason refers to that defect.

MR WALKER:   Yes.  They suffered a costs penalty as a result.

KIRBY J:   It is not unique. 

MR WALKER:   Could I then take your Honours to page 596, very important, paragraph 82 in Justice Santow’s reasoning.  Your Honours will see what we respectfully submit is a slide or error committed in the very first sentence.  Section 357H does not provide a statutory basis for entry at all, it is 357F that will do that.  Then your Honours see there is a reference to a provision referring “to the case of a member of the police force who “enters . . . in pursuance of an invitation”.  That quotation, truncated as it is to omit the words in parentheses is repeated in paragraph 84 on the next page, 597, about line 44.  That may also be the source of error.  Then the next step in the reasoning is to go to an incongruous result.  In our submission, the incongruous result is one that has no substance whatever in the two cases that his Honour supposes. 

KIRBY J:   What is the incongruity? 

MR WALKER:   The incongruity is, he says:

that the statutory licence to enter with its associated statutory constraints –

that appears to be 357F –

would only apply to invitations made at the point of entry and not to invitations subsequently made to remain.

That is wrong, for the reasons I have already put.  The restrictions are indifferently applied to either form of invitation under 357F(2). 

GLEESON CJ:   I thought your argument was that this was a non‑issue anyway. 

MR WALKER:   Quite. 

GLEESON CJ:   When your client emerged from the shower, he did invite them to remain. 

MR WALKER:   He said, look around, can we look around, yes.  There is that plain invitation to remain ‑ ‑ ‑

GLEESON CJ:   What this case turns on is the withdrawal of the invitation, five minutes later.

MR WALKER:   Yes. 

KIRBY J:   You say that statute does permit withdrawal expressly.

MR WALKER:   Quite.  Subsection (3), we only ‑ ‑ ‑

KIRBY J:   Is there a dispute, as you understand it, between the right of the householder to withdraw the consent under the statute? 

MR WALKER:   I am not sure, particularly when I come to Justice Ipp I am not quite sure.  I think our learned friends, well they do, expressly embrace Justice Ipp’s reasoning.  It appears at least in one passage that that involves the right and efficacy of the householder to withdraw the permission. 

KIRBY J:   In terms of principle, one would think at common law there would be the right to withdraw.

MR WALKER:   There is. 

KIRBY J:   If that is the common law, and if that is a very ancient common law, talking about Englishmen’s castles, then it has to be very clear in the statute to withdraw or override that common law principle.  On the contrary, although the statute is a little bit garbled, it does appear to envisage withdrawing the right to remain. 

MR WALKER:   Yes.  The way we put it is, how else can one read express refusal in the position explicitly set out in section 357F(3), namely where there has been permission, invitation given for entry or remaining.  How else can one construe express refusal than what would be available under common law, namely, a revocation?  Now, as Justice Hayne points out, the words have to also serve the obvious possibility that there is more than one person apparently residing, or indeed more than one occupier.  That is why subsection (4) has to deal with the socially important protective purpose by way of exception, by way of exception, otherwise subsection (3) says, an occupier says, get out, then you get out even if the purpose which authorised your entry for which you were – to use the words – you were invited to do so even if that is unaccomplished, and then you go and get a warrant if you want to persist.

GLEESON CJ:   Well, presumably in practice what would often lead people to want to revoke an invitation to remain and investigate is the turn that is taken by the investigation.  The police might say, “Well, now I would like you to get all your children out of bed and I would like to ask them some questions”, to which the occupier might say, “Well, out”.

MR WALKER:   “I will ask you to leave now and we can do this in the morning”, or something like that.  There is another, it may be distressing to contemplate but it is an obvious possibility raised by the facts of this case, the householder does not like the way the police are conducting themselves or talking to him or her.  He does not wish to continue in their own home to have the kind of dealing with one’s furniture, belongings, without a warrant that is being engaged in.  The notion that Parliament would have prevented you from saying, “I know I let you in but I really do not like the way you are carrying on, I want you to go now”, the notion that Parliament has abolished that common law possibility is, in our submission, unthinkable.

KIRBY J:   As to incongruity that follows, you say that the answer is they can always go out and get a telephone warrant ‑ ‑ ‑

MR WALKER:   Quite.

KIRBY J:   ‑ ‑ ‑and that that interposes an independent decision‑maker and allows for an element of cooling?

MR WALKER:   Yes, all of that.  That is why there is none of the incongruity or arbitrariness which is identified by Justice Santow in paragraph 82.  That is a serious misreading of 357F in particular, importantly, no doubt, committed in a paragraph which does not refer to that all important provision.  Paragraph 83, his Honour is not always speaking about the same time.  The time in question for this case is after they have arrived to find no woman, no shouting, et cetera.

KIRBY J:   No apparent woman.  They did not get into the bathroom.

MR WALKER:   They did not find a woman and there was no shouting, et cetera, and there were other people present.  The second sentence of paragraph 83 on page 597:

They were concerned also to ensure that no further offence was committed should the domestic violence be still in train.

That, of course, is talking about a much earlier time, as it were, before they entered.  We do not complain about that as a finding of fact but it is immaterial to the legal issues in this case:

It could be expected that they would wish to render aid were an injured woman found on the premises.

Well, everyone hopes so, but again that is not something which, by the time in question, is relevant.  If so, what on earth can one think about the sudden swerve in their sense of duty by the police then all concerned in taking my client away? 

Paragraph 84, there is a contrast posed by his Honour between 357H and 357F.  They are not contrasts.  Section 357H operates by way of a restriction of actions possible when you are remaining pursuant to invitation given by 357F.  It has no other function.  Subsection (2), of course, has the all important function of saving the common law.  Then his Honour repeats the truncated reference to the phrase “in pursuance of an invitation” to which I have already referred.  It should, of course, be followed by “as referred to in section 357F”. 

He then refers, in line 52, to an “anomalous distinction”.  That is the paragraph 82 matter which, in our submission, is a serious error.  Then with some confessed hesitation his Honour construes:

the later invitation to investigate –

that is the look around –

as necessarily implying in the circumstances retroactive permission to have entered where, as here, there is –

and then there is “no suggestion of violent or opposed entry”.  Violent or opposed entry, that is, entry by force which is very important both at common law and under warrant, has nothing to do with this case.

GLEESON CJ:   This reasoning on pages 597 to 598 seems directed at what you say is a non‑issue.

MR WALKER:   Yes.

GLEESON CJ:   As I understand what your opponent says is a non‑issue, because the question is whether they were entitled to remain, not whether they were entitled to get in there in the first place.

MR WALKER:   Yes.  For what it is worth, we say they were not entitled to enter, but that is not what we are suing for, we are suing them for failing to leave when we asked them to, the remaining.

KIRBY J:   The only question therefore would be, leaving aside whether this was properly before the Court of Appeal, whether the permission to enter necessarily carries an implication enter for what?  Enter to do police purposes as provided by the statute?

MR WALKER:   That is right.

KIRBY J:   It is hard to reconcile a view that that can stand against a withdrawal of the permission to remain.

MR WALKER:   Yes.  The initial entry did not matter as a matter of dispute between my client and the State because after that he had said to the police who were in, “Yes, you can look around”.

KIRBY J:   Did your client say expressly he did not like the turn of events, the language the police were using to him, he felt six people there.  Was there any expression of why he, as it were, changed his mind?

MR WALKER:   I do not know - when your Honour says “changed his mind”, he expressly refused an invitation to remain, that is, revoked ‑ ‑ ‑

GUMMOW J:   At page 68, line 30:

Q.       Why did you jump up onto the kitchen bench?
A.       Because I wanted to get everyone’s attention.

MR WALKER:   No one was listening to him, yes.  He did not like the fact that his repeated requests to leave were being ignored.

GUMMOW J:   He said:

it’s quite annoying.  No, I haven’t been in that situation before.

MR WALKER:   Yes.  When your Honour Justice Kirby says “changed his mind”, it is to be recalled that the invitation, which is characterised by judicial statements far more grandly than the words support, “Can we look around?” “Yes”, one well available view of the facts is that, so far as he is concerned, that had been done, furthermore he had given extra, he had given them the telephone number and his best attempt at the address where he might find the woman he said was no longer there, a fact that they evidently accepted.

GUMMOW J:   It also seems the bathroom door was open.  Is there any other evidence of that?  It is at the top of page 69.

MR WALKER:   Yes.  There is, I stress, no evidence in this case that the bathroom was, as it were, left unsearched in a way that was actuating the police determination to remain.  That is a construct in particular of Justice Santow’s reasoning, in our submission, no doubt as tribute to my friend’s eloquence.  In our submission, there is nothing in it factually.  If it were true, there is indeed a dire reflection on the police suddenly changing their mind about the importance of that.  We do not make that dire reflection.  It just makes it terribly ‑ ‑ ‑

KIRBY J:   Does the trial judge make findings on the allegation that your client had bitten Constable Lindley’s finger and that he had threatened to stab one of them in the temple?

MR WALKER:   He certainly rejects that allegation.  In fact, that is the subject of a lively part of his Honour’s reasoning, most scathing of the credibility of the police – most scathing.

KIRBY J:   It all got a bit out of hand really, as often happens.  What was your client’s ‑ ‑ ‑

MR WALKER:   Most of these cases are of somebody who resents police presence and requires a retrospective judicial determination as to whether the police were in the course of their duty, that is, for criminal purposes, or whether the police were trespassers for civil purposes.  The fact that things get out of hand simply demonstrates a truism, not modern – ancient – that there is a tension between private citizens and officers of the law.

KIRBY J:   I just have in the back of my mind, and I have to put it out if it is irrelevant, that police may say as a consequence of the reinforcement of these principles that you are urging on us, “Well, there you go.  We kept out of these domestics all these years.  Parliament said we had to get into them.  We went in there.  We tried to do the thing and look what happens - we end up with all these problems.  Who would be bothered?”

MR WALKER:   I hope not, your Honour, because the place of a warrant in the adjustment of rights between private interests and public interests is not unimportant.  Page 598, paragraph 87, in that first sentence there is the characterisation by Justice Santow of the invitation to see if there was an injured woman on the premises.

In fact, the epithet “injured” is pushing rather far the “take a look round” authority.  We do not doubt for a moment, let me make it clear, that the police would have been actuated by concern that somebody was injured.  It is quite clear that they were well and truly satisfied with the state of affairs before the critical moment.  I have already drawn to attention the important passage at 535, line 20 in relation to that.  The leading policeman said – sorry, 534, line 50 to 535, line 20:

‘Look, we’re happy to leave, but [c]an you at least give us a phone number of where [s]he is so we can call her to make sure she is fine?’

So that is the very opposite of, can we continue to look round to make sure she is not in the bathroom, the very opposite.  At page 599, Justice Santow again goes back to an earlier time, not material to the question because we concede the propriety of them seeking to enter, that is, seeking an invitation, and one sees that in the last sentence of paragraph 89, page 599, lines 18 to 22.

Again, in paragraph 90 there is a somewhat different characterisation by Justice Santow of the invitation.  It is an invitation permitting “the police to carry out their investigative purpose to completion”.  That I think should be read, with respect, as his Honour’s interpretation of 357H as it operated rather than a factual characterisation of the terms of the invitation.

Then when one looks at the tasks in question, the notion of remaining on the premises in this case appears more and more odd.  At about line 38:

The police were entitled to complete their task either by further inspection on the premises –

I have said what I want to say about that –

or (as occurred) by making contact with Janette Kuru outside the premises.

That is, after all, what they said they were off to do, but they refused to leave when asked.

GLEESON CJ:   What is the basis of the next sentence?

MR WALKER:   There is no authority for that next sentence.  I will come to that in the common law argument.  But obviously there is neither statutory nor common law authority given by a need to contact someone outside the premises, but there is no authority given to stay on the premises, particularly as the evidence of the leading policeman is that they were ready to leave, they had what they needed.  It is not seriously suggested that they had to stay on the premises to use his phone or in order to make their own phone call, there is no evidence about that.  They needed to ring her but they did not need to stay in his home for that purpose.

It is to be recalled that he had co‑operated in a way that the law did not require him to.  He had given information which enabled them to form the view that there is no woman here, we are going to check that she is okay somewhere else.  Your Honours, if I can quickly bundle up Justice Santow’s findings on the common law while I am ‑ ‑ ‑

KIRBY J:   What if this had been a drug investigation and the householder says, “No, I don’t give my consent, you go and get a warrant” and pushes them out, shut the door, then puts the drug down the toilet?  I mean, what is your answer to that situation?

MR WALKER:   If there is one thing that is absolutely critical that there is no right for police to come in and to stay beyond the permission to stay without a warrant to look for evidence.

KIRBY J:   You say all the more reason to get a warrant to intrude into a household?

MR WALKER:   Absolutely.

KIRBY J:   Which is what would normally happen, I would think, in a drug investigation.

MR WALKER:   And is for this Court to, in our submission, apply the bright lines of the common law and that has to do literally with the threshold of the dwelling-house, in our submission, pace Justice Ipp’s probably immaterial conclusion concerning no trespass, if I can use the colloquialism, coming in down the hall and saying “Yoo‑hoo”.  That happens all the time but if you are asked to leave, you have to leave. 

Particularly when it comes to criminal investigation, there are established common law and now stipulated statutory rights of entry and seizure and it is a cardinal feature of this aspect of the law that they be not only construed in favour of liberty, no doubt purposively in terms of prevention and detection of crime, but also applied strictly once they have been construed.  Particularly that is so where the time‑honoured way of vindicating the limits to be observed by the actions of officials, namely, actions in tort which turn upon questions of authority and thus the existence or not of trespass to place or person when they are being argued, as in this case. 

Your Honours, in relation to the common law, Justice Santow, pages 599 to 601, largely adopts an approach, we think, similar to Justice Ipp to which I will come.  See paragraph 92, page 600, line 28.  In our submission, none of those cases supports the proposition with which paragraph 92 opens, not a single one.  He says:

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.

The “or nearby” is an off-premises exercise dealt with entirely by their contentment which he has already observed himself with the sufficiency of the information they needed.  In our submission, there is no common law authority and there is nothing in policy or principle at common law which, in relation to the purpose of investigating whether an offence has been committed – I stress not the in course, threatened or imminent offence, but the one that is completed – there is no common law authority suggesting that the very indefinite duration of an investigation into its commission provides the duration of authority to remain on private premises notwithstanding revocation of permission to be there.

His Honour returns to the question of statutory interpretation.  In paragraph 94 could I draw to your Honours’ attention that ‑ ‑ ‑

HAYNE J:   You passed 93.  Paragraph 93 seems to be invoking notions of defences of necessity.  Was that in play in this litigation?

MR WALKER:   No, not when, as here, we concede all the grounds for seeking the invitation required by 357F.  No.

HAYNE J:   There seems to be a degree of elision of notions of the defence of necessity, the authority of police to enter in connection with breaches of the peace and somehow that is also read as informing the content of the word “investigate” in the statutory context.  I would have thought they are three radically different notions.

MR WALKER:   They are.  Breach of the peace is very important to the common law argument in relation to which Justice Ipp’s reasons are my point of departure.  It is to be recalled that 357F and thus 357H to which it is appended concerns a species of breach of the peace in some of the circumstances contemplated by – but, of course, it being domestic violence, it is only a species of a very large genus.

Those statutory terms cannot, with respect, be construed by reference to the matters referred to in paragraph 93, unless one identifies phrases or words, the interpretation of which may legitimately be carried out purposively, as your Honour says in paragraph 94, so as to produce the result for which the respondent contends.

GLEESON CJ:   A defence of necessity would have some role to play if there were some serious suggestion that there might have been a dying woman in the bathroom. 

MR WALKER:   That is right. 

GLEESON CJ:   But it would not have any role to play, would it, if there were some suggestion that, in the bathroom there might have been a woman who just did not want to talk to the police? 

MR WALKER:   That is right. 

HAYNE J:   The necessity is the necessity to preserve life or property, is it not?

MR WALKER:   Yes, not evidence.

HAYNE J:   You go from Maleverer v Spinke in 73 English Reports through Cope v Sharpe 1910, 1911, 1912 in the King’s Bench Reports, all about preserving the property of a shoot and authorities of that kind, but they seem to be offstage left, do they not?

MR WALKER:   They do not have a role in this case, with respect, except there may be a flavour of that in paragraph 93.  I do not mean by any means to deprecate the importance of the social problems perceived to be the mischief aimed at by 357F and the other provisions, but the first sentence of 93 is expressed as if is a new and modern phenomenon.  There is nothing to support that at all, with respect. 

KIRBY J:   It is modern in the sense that in previous times people ‑ ‑ ‑

MR WALKER:   Bashed people without any resort.

KIRBY J:    ‑ ‑ ‑talk about it and the police kept out of it, and what husbands did was thought to sometimes be within their lawful powers. 

MR WALKER:   Your Honours, there is no suggestion whatever ‑ ‑ ‑

KIRBY J:   It is new in that sense. 

MR WALKER:    ‑ ‑ ‑that in 1300 ‑ ‑ ‑

KIRBY J:   People stand up for their rights now. 

MR WALKER:   Yes.  But there is no suggestion that in 1300 domestic violence was not an everyday event.

GLEESON CJ:   I think at times, in the days when husbands were thought to have a right to chastise their wives, there was not an organised police force. 

MR WALKER:   Quite.  Your Honours, can I now turn to Justice Ipp.

GUMMOW J:   Just before you do that, in the cross‑examination of your client, it was put to him - I am looking at page 61, line 50 - that at the beginning of the encounter with the police, he started to call out to them in, his “native language, Turkish”. 

MR WALKER:   Yes. 

GUMMOW J:   He seems so be saying, “No, I did not, I said it was okay”, and he seems to be saying, “I said it in English”.  Did that go any further? 

MR WALKER:   No, I am not quite sure how to interpret, if I can use that word, at line 52 on page 61, the words “that is okay”.  I am not quite sure what the antecedent of that is, whether he is saying, “No, I agree, I did call out in Turkish”, having started saying an answer, “No, no”.  But then, he is cross‑examined:

And the police officer said, “All I need to know is –

and that is not agreed with.  This passage - it does not go any further, I do not think, your Honour. 

GUMMOW J:   Is there any indication that your client spent the whole of his life in Australia?  What is the situation?

GLEESON CJ:   That appears from the medical reports, does it not, Mr Walker?

MR WALKER:   I do not think there is evidence of that, your Honour. 

GLEESON CJ:   I thought saw in a medical report the statement that he lived the whole of his life in Australia, that he was of Turkish background. 

MR WALKER:   In which case, I do not know what “native” means in the cross‑examination, your Honour.  I just do not know.  There is no doubt that the dealings between householder and police were in English, no doubt about that at all. 

GLEESON CJ:   Idiomatic English. 

MR WALKER:   Forceful, plain, unmistakable English, at least on my client’s side and Old English. 

GUMMOW J:   His friends and relatives seem to have regarded him as a hot‑tempered individual, though, and that is why they came round, to try and calm him down.

MR WALKER:   Yes, yes.

GUMMOW J:   One of them told him, “You had better go and have a shower,” which is a very ordinary statement in that situation.

MR WALKER:   The only response I can sensibly say on the issues in this case to that comment, which respectfully is understandable, is that one is entitled to be hot tempered, you do not have to be phlegmatic when you are exercising your right to expel police whom you no longer wish to have on your house.  Now, whether or not an offence is committed, as once upon a time in Sydney it would have been – well, not just in Sydney, particularly throughout rural New South Wales, it would have been regarded as being committed – by the way in which you speak to them, depending upon where you did it, leaving that aside, there is, in our submission, no legal relevance to the fact that one reads these facts and thinks, perhaps soft words would have been a better way to deal with this.

One is entitled to speak heatedly, and, indeed, to use reasonable force to remove people, and we would submit especially police, who are not entitled to be there.  I do not mean that there is more force they are going to use with police than with a private individual, I mean that the rights as against officials of the State do have a special – are a special concern of the common law, hence all the perhaps rhetorical flourishes that one finds in the authorities that your Honours have seen sufficiently in writing in this case for me not to have to repeat them from the Bar table.

Your Honours, Justice Ipp at paragraph 102 correctly, with respect, about line 45 says of my client:

He thereupon agreed to the police looking around the apartment.  Thereafter, however, he withdraw his permission.  The police did not leave and a fracas ensued.

With great respect, boiled down, devoid of all the colour and movement and human interest, that is the sequence upon which the legal issues turned.  Paragraph 103 notes the criminal outcome.  Paragraph 107, I have already drawn to attention in its middle the correct statement of the issues.  It is all about justification, to use the common law term.

Page 604, I should draw to attention in paragraph 111, there is a reference to the factual challenges, which as your Honours will have seen from the written submissions, we complain about the way in which some of the facts were dealt with in the Court of Appeal.  One way of reading the Court of Appeal’s findings is that there is not ultimately concluded departure from the findings of the trial judge, particularly as to whether you should – whether he was entitled to prefer my client to the six police who gave the same evidence against him.

GLEESON CJ:   Did your opponent ever get a decision on those grounds of appeal complaining about the damages?

MR WALKER:   No, and that is why you will see that we accept that if we succeed it has to go back to the Court of Appeal for damages to be dealt with.  I should draw to attention, there was the reference by Justice Santow at page 601 in paragraph 96, second sentence, which ‑ ‑ ‑

GUMMOW J:   Well, your notice of appeal is inadequate then.  The orders sought at page 632 just talk about dismissing the appeal.

MR WALKER:   Yes, I am very sorry, your Honour.  Since then, that having occurred to me - I think in our written submissions we tried to spell out, and I need to seek leave to amend accordingly, to render my appellate relief in this Court more modest than is presently sought.

GLEESON CJ:   Do you oppose that application, Mr Temby?

MR TEMBY:   No, your Honour.

MR WALKER:   You will find that in paragraph 58.

GLEESON CJ:   You have that leave, but you will need to file formally an amended notice of appeal.

MR WALKER:   Yes, thank you, your Honour.  Could I then go back in Justice Ipp to page 606.

GUMMOW J:   I thought there were decisions in which we encouraged intermediate courts of appeal to avoid this situation.

MR WALKER:   Yes.

GUMMOW J:   It did not use to fall on deaf ears.  Anyhow, it will have to be said again, as far as I am concerned.

MR WALKER:   Yes.  Page 606, paragraph 119, can I draw to attention, because of what we submit respectfully are contradictions in these reasons on the facts, to what Justice Ipp there says in the recitation of events relevantly undisputed.  Line 40, “He” – that is my client – “asked them” – that is the police – “what they were doing there”.  Now, that is going to have some significance when one comes to paragraph 142.  Then here comes the invitation which came after the initial entry.  Paragraph 120, “He said, “can we take a look around?”, and this is my client’s evidence, “I said, ‘sure’.”  Now, those are the words upon which all the other characterisations hang.  Paragraph 121 on page 607 at about line 15:

An officer then asked, “[w]here is the female –

This is after they have inspected bedrooms and had a look round the apartment, it took about a minute or a minute and a half, it is a small flat –

that was here?  Where is she now?

Now, the “here” is referring obviously to the apartment, not to the particular piece of floor the officer was standing on.  It is clear that there was no question of going to the bathroom, there was no question of thinking there was anything in course, or imminent or threatened by way of occurrence.  This was all about investigating something that had already happened, if it had happened at all.  Paragraph 122, the name of the street where his sister lived, she having just moved, is supplied.  Paragraph 123, he gives the telephone number, slamming the piece of paper down.  No one could seriously suggest that has any legal relevance, the fact that he displayed his impatience, dislike or even disapproval of the police. 

KIRBY J:   You are probably right about the fact that the law does not require people to be polite in the defence of their basic freedoms, but ‑ ‑ ‑

MR WALKER:   That is my only point, your Honour.

KIRBY J:   I am sorry?

MR WALKER:   That is the only point I make by those submissions.

KIRBY J:   I do not know how I express this, but I feel that when one is looking at the proportionality of the response in the demand of rights and assertion of rights and whether the response is reasonable to the circumstances, jumping up and slapping things down and using strong expletives and then jumping down from a bench, in the relationship between citizens and law enforcement officers who have to do very difficult things on behalf of society, I just wonder if there is not some restriction on the proportionality of the way you assert your rights.

MR WALKER:   If there were, no doubt, sauce for the goose, sauce for the gander, which might lead to the need to wonder whether there is another kind of tort or something about proportionate response when police are not polite.  In our submission, it is of the first importance that the common law not require that the insistence on the observance of a right of a most fundamental kind, elementary kind, be couched in language which is polite or courteous.  It is easy enough for me to say from a Bar table, of course it would be better were it so, but even that may be an impractical piece of hypothesising by me.  Very often, the best way to get a message through is with the expletives, is with the tone of voice. 

HAYNE J:   The common law’s response to aggression begetting aggression is to be found only in the law of assault and the law of self‑defence. 

MR WALKER:   Yes, yes. 

GUMMOW J:   Is there any exploration here as to why six police turned up?

MR WALKER:   Because it was one of the two ‑ ‑ ‑

GUMMOW J:   Because there were two beeps, rather than one beep.

MR WALKER:   Because it was a two‑beep alarm.  I make, notwithstanding my reference to six police from time to time - that is not to say there are too many, no doubt the resources were available, given other competing priorities, I hope.  In any event, we do not complain there were six.  We do say it is remarkable there being six, that there is still talk about wanting to look in the bathroom to find out whether there is a bleeding woman, and all six go outside, some to go off to find her, and some attending to my client. 

GLEESON CJ:   The fact that two of the six were women, I presume, is related to the fact that there was the possibility there was a woman victim. 

MR WALKER:   Yes.  I imagine so.  There may be a more general, I was about to say, man in question involved.  There may be a more general question of the way in which officers are deployed, your Honour.  I do not know.  I am certain that women police constables are no longer restricted to those sorts of cases. 

GLEESON CJ:   That question of the degree – a person who is suspected of having been violent recently, then behaves very aggressively ‑ ‑ ‑

MR WALKER:   That will go to reasonableness of response by the police. 

GLEESON CJ:   It could make, depending on what the issues are, the so‑called “shoulder‑charge”, very important. 

MR WALKER:   Yes, because it would most certainly be an important part, and properly so, of any vindication by the police of the degree of force they applied in a lawful arrest without any doubt. 

KIRBY J:   I just do not see how the Court of Appeal can reverse the decision of the primary judge on that matter. 

MR WALKER:   No, they cannot.  With respect, they did not.  Paragraph 80, which is relied upon by our friends in that regard, does not contain a reversal.  It says it is not finely established.  That is not an appellate overturning on a rehearing.  Paragraph 124 is one I have called the unanswered question, that I opened with, with respect.  Paragraph 124:

The police then asked Mr Guler –

after my client has given information –

“[w]here’s Janette?  Where’s his sister’s house?” 

That is made much of by Justice Ipp in what follows.  In our submission, there is nothing in the evidence to support the proposition in the face of the leading policeman’s evidence, to which I have drawn attention, which produced a finding by that learned trial judge.  There is nothing in that to suggest that they were there on the premises in order to speak to Mr Guler in order to get his answer to that question.  That is very much an afterthought in the State’s defence.

In our submission, not only can I find no trace of it in the pleading whatever, it is difficult to see, given the way in which the trial was fought and decided, how it should properly have been raised on appeal.  Page 608, here comes the jumping, there are critical comments made of the trial judge, but there is not a finding made, we think - line 19, on page 608.

KIRBY J:   It goes to show the danger of using metaphors or excessive descriptions.  How could you possibly say it was a shallow dive “of Olympic proportions”? 

MR WALKER:   No, that is because of the ceiling height. 

KIRBY J:   I am sorry?

MR WALKER:   This was not an 18th century mansion.  He hit his head.

GLEESON CJ:   No, it is not an 18th century mansion, but what it is is a professional footballer.  For a professional footballer to get himself down off that bench that he jumped up to ‑ ‑ ‑

MR WALKER:   Which he did. 

GLEESON CJ:   It is not much of a feat, I would have thought. 

MR WALKER:   The only question is - I am sure your Honour will understand it is a matter of how high you have to lift your feet in order to clear, what on one side was a splashboard and on the other side was not.  He had already hit his head going up on the non‑splashback side.  In any event, his friend, Mr Guler, said he had done it.  The judge had the benefit, as it is put, of having seen everybody, heard everybody, and in our submission ‑ ‑ ‑

GLEESON CJ:   What he had to get down off appears on page 415.

MR WALKER:   Yes.

KIRBY J:   But is not Justice Ipp entitled to say, and it is sufficient to say, that the evidence does not justify these findings, and is that a key that permits him to substitute his own findings for those of the trial judge in this respect?

MR WALKER:   Well, no, because it involves resolving the testimonial difference that the respondent in this Court refers to, and that is what Justice Ipp says he is not going to do in the last sentence, the last line, of paragraph 125.  Yes, is it within the power of the Court of Appeal on appeal by way of rehearing?  Of course, subject to the usual strictures.  But he did not do it, we do not think.  It is difficult to know, bearing in mind the passage that one finds at the top of page 608.  The shoulder charge is dealt with, paragraph 129.  “It is unnecessary to resolve it”, says the judge in the last line of page 608.

GUMMOW J:   We can spend ages worrying about this.  What I want to know at the moment is to what extent was the Court of Appeal basing its decision in an alternative, not simply upon the statute but upon the common law and, if so, what did they say was the content of common law and what do you say the content of common law is if you disagree with them?

MR WALKER:   We say that the content of the common law in the circumstances of this case went no further than to enter and remain, without invitation, for the purpose of preventing a breach of the peace apprehended to be in the course of being committed or imminently to be committed, and that is it. 

GUMMOW J:   Now, are there any common law ‑ ‑ ‑

MR WALKER:   And it does not include investigative purposes ‑ ‑ ‑

GUMMOW J:   That is right.

MR WALKER:   - - - of past offences - investigation of those which are in course, yes.

GUMMOW J:   Okay, but the reference to “investigation” poses this question.  Has the common law, in any principled way, accommodated the existence of modern police forces?  Now, at the time in the middle 18th century, the case that the trial judge referred to was decided, it was not a modern police force.

MR WALKER:   Your Honour, I do not think one can say the common law has, because during the period of the ‑ ‑ ‑

GUMMOW J:   I mean either in England or Australia.  In other countries it becomes infused with notions of unreasonable search and seizure.

MR WALKER:   In all the cases that we have read for this case, there is some statute or other, either operating or not operating as the case may be, leaving common law or not. 

HAYNE J:   In England the common law is left intact in this respect, is it not?

MR WALKER:   Yes, your Honour.

HAYNE J:   Thus, what, if anything, do we see from what has happened there?

MR WALKER:   We do not see what Justice Ipp perceived.  We do not see what Justice Santow found in the negative way he found it at page 600, paragraph 92.  Can I embark on an answer to Justice Gummow’s question in this fashion (a) to remind you what Justice Santow said about it, and (b) then to concentrate on what Justice Ipp said about it.  I wonder if your Honours will forgive me if during the course of that, so I go just the once through Justice Ipp, I will also note his statutory determination as well.

Justice Santow commenced consideration of the common law on page 598, paragraph 85.  There is a reference in paragraph 86 to Plenty v Dillon and to a possible distinguishing of it in paragraph 91.  I will come back to that. 

KIRBY J:   I will just ask you to pause at this moment.  This Court has said over the last decade in countless cases if the statute has entered into the field, you have to apply the statute.

MR WALKER:   Yes. 

KIRBY J:   This is a suspected domestic violence case.  Therefore, the statute attached, and therefore you have to apply the statute.  My question is, what room is left?  What room is left for the common law in this particular case?  There may be another ‑ ‑ ‑

MR WALKER:   There is the room left explicitly by Parliament, subsection 357H(2), in relation to police power. 

KIRBY J:   I know that.  It is acknowledged that it exists, but once you have the categories of the statute attaching, clutching to these facts, I just do not really see what room there is to have general broad common law power.

MR WALKER:   In the upshot, that is our position.  We do it, I suppose, in two stages.  We say first the authorities do not show that is the common law.  Second, the Court should not hold it is.  The second step in particular observes that we live in an age of statute, and that the Parliament, who can engage in the compromises and trade‑offs, which are political in nature has done it.

KIRBY J:   I may be wrong, but the only relevance that I see of the statute is that because of the very strong common law principles, the statute has to be very clear in taking away the common law rights of an accused person or a suspect. 

MR WALKER:   We are neither of those.  Parliament has taken away an immunity or liberty in 357F(2).  It has taken it away on terms which have the control mechanism of what I call the householder’s permission, that is the invitation via the person apparently resident, et cetera, subject to express refusal in subsection (3), itself subject to exception in subsection (4), where ‑ ‑ ‑

GUMMOW J:   The question comes down to this in a way.  The question comes down to this.  If you are developing the common law, to what extent would you develop it in a way that was contrary to the statute?

MR WALKER:   Particularly the controls shown in the statute in a tension or balance or compromise between the public interest of the prevention and detection of crime on the one hand, and the public interest felt privately by everyone to be left alone.  Now, that is the balance. 

GUMMOW J:   But what worries me then is paragraph 86 seems to be talking about some principle developed in the common law that is directed particularly to policemen.

MR WALKER:   Yes.

GUMMOW J:   Well, that is not what the common law talks about.

MR WALKER:   No, and the breach of peace common law is not special to policemen.  They are referred to expressly in inclusive phrases, just as they are referred to expressly in inclusive phrases that police like everyone else cannot do X, Y and Z, or police like anyone else can do A, B and C.

GLEESON CJ:   Mr Walker, there is something that is puzzling me about the emphasis in this case on the trespass to property.  Your client received about twice as much by way of damages for trespass to the person as he received for trespass to property, and you have said that the Court of Appeal disagreed with the trial judge’s finding about the leap off the bench and so forth but then did not make any findings of their own.  The finding of the, or the conclusion, of the trial judge about trespass to property in his award of damages appears, for example, at page 555, and then he deals with trespass to the person, and the basis of the conclusion that there was a trespass to the person was that the police set upon, to use his expression, Mr Kuru.

MR WALKER:   Yes.

GLEESON CJ:   Well, whatever be the position in relation to the lawfulness of the police remaining on the premises after the revocation of permission to be there, what is the finding of the Court of Appeal in relation to the conclusion of the trial judge that the police set upon Mr Kuru?

MR WALKER:   There is none that overturns it.  I have drawn that to attention particularly in Justice Ipp’s observations at page 608.

GLEESON CJ:   Why is it assumed then that the decisive issue in the case is that relating to trespass to property?

MR WALKER:   They are trespassing if they do not have authority under statute or at common law.  If they are trespassing they are not in the course of their duty and may not use reasonable force to resist his commission or defence, being the offence for which he was charged.

GLEESON CJ:   He also was awarded damages for false imprisonment.

MR WALKER:   Yes.

GLEESON CJ:   He was imprisoned for assault, was he not?

MR WALKER:   Yes.

GLEESON CJ:   Once again ‑ ‑ ‑

MR WALKER:   Having been, we submitted, unlawfully arrested.

KIRBY J:   And overnight in his boxer shorts straight from the shower.

GLEESON CJ:   It does not seem to me self-evident that a conclusion that the police should have gone when they were told to leave necessarily requires a conclusion that they set upon and assaulted Mr Kuru.

MR WALKER:   Your Honour, with great respect, I accept that.  That is why I said in relation to the way in which the case was fought at both levels below the issues fell out as summarised by Justice Ipp, page 603, paragraph 107, because the way in which it was fought it did just turn on justification of the police, there not being the logical possibilities that the Chief Justice has referred to pursued.

On our side, we did not pursue what was called the “discrete excessive zeal case”, and on their side to judge from the record they did not say, though we were trespassers not authorised to be where we were for the following reasons what we did to him is either not actionable or not causative in whole of the loss claimed.

There was, for example, a contributory negligence claim, but you will find no traces of that in the findings.  So we accept, with respect, that analysis of the matter in the abstract, as the Chief Justice has raised for my comment, is, with great respect, sound and at the beginning of everything, particularly had the pleadings been as they should have been, no doubt would have swum into better focus than it apparently ever did during the hearing or the appeal.  But we suffer from this as much as gain from it.

The parties are bound by the way they conducted their case, with the qualification that applies even in this Court, but that qualification, particularly bearing in mind the admonition in Suttor v Gundowda, does not permit the State now to move off to raise the possibilities left open, correctly with respect, by the analysis suggested by the Chief Justice.  It was not fought that way and, in our submission, it is for parties, particularly where the State is a party defending police conduct, to strip the matter down to were the police justified in being where they were, doing what they do, responding as they did.

GUMMOW J:   Now, the question of common law that I was putting to you was really what we were talking about in Esso v Taxation Commissioner (1999) 201 CLR 49 at 62, paragraph 24 and thereabouts. Someone at some stage had better look at it if we are going to be invited to start expanding or contracting the common law in the light of this carefully thought out statutory scheme.

MR WALKER:   Yes.  May I say this.  Our position is this, that it is at the first stage that the matter fails, that is, the common law does not already say that in the materials in which one might find that, decided cases including by analogy and persuasive force from England and Wales.  That is the first point.  The second stage is should this Court say that the common law in Australia does extend thus far ‑ ‑ ‑

GUMMOW J:   It seems to me that is what Justice Santow was doing – he was expanding it in some way.

MR WALKER:   But not self-consciously, if I may so.

GUMMOW J:   All right, I will not go into that.

MR WALKER:   And the respondent does not say, “Granted the authorities don’t go this far, but this Court should”.  They did not say that in the Court of Appeal, they have not said it so far in this Court, but my friend has not been heard yet.

GUMMOW J:   We cannot react to whispers and murmurs, you see.

MR WALKER:   No, and in our submission ‑ ‑ ‑

GUMMOW J:    . . . can only respond to some submissions.

MR WALKER:   - - - the principal reason why the Court would not dream of going there is precisely because this has been now for over a century in all the jurisdictions that are relevant for this country, this has been mostly ours of course, have been subject of statutory balancing, and alterations of statutory balance, as you have seen in this case, for a particular kind of offending.

Your Honours, I would like to adumbrate what it is that Justice Santow held in relation to the common law.  Having said it arose as an issue, paragraph 85, having put Plenty v Dillon to one side, 86,
we ask your Honours to note in paragraph 91, page 599, that the authoritative statement of principle in Plenty v Dillon is accepted by his Honour, notwithstanding he considered a distinguishing which he did not carry out.

The thing to be said about Plenty v Dillon is of course it is different from this case.  That was about entering in order to serve a summons.  This is quite different in that regard, but the authoritative statement of principle, to use Justice Santow’s expression, is of course the exposition of the common law as seen by their Honours.  We would accept that that is not an exposition which ought to be seen as exhaustive of the possible exceptions to what is otherwise the common law rule, you may prevent anybody, including the King, from coming onto your land and if you have permitted them to come onto your land, you may revoke that permission without cause, just revoked.

It is highly significant that there is nothing in Plenty v Dillon to give comfort to the argument of the respondent and Justice Santow does not call it in aid to support an expansion.  Paragraph 87 then turns to what might be called the common law of trespass only.  Nothing to do with police.  But the common law of trespass does not contain any authority that a person who is entitled to grant or not permission loses an entitlement to revoke permission if one is granted.

GUMMOW J:   What do you say about paragraph 86:

an interpretation of the common law that would permit ‑ ‑ ‑

MR WALKER:   It is negative, your Honour.

GUMMOW J:  

a member of the police to enter upon premises in circumstances like these, though without an invitation ‑ ‑ ‑

MR WALKER:  

and certainly when there has been as here an invitation to search the premises.

Your Honours, at common law people are entitled to enter premises that they are invited to enter.  That is just the law of ownership and - possession and trespass.  It is nothing more than that.  His Honour does not appear in 86 to be going beyond that.  In what his Honour calls the interpretation or an interpretation of the common law, there are no authorities that are special to police in this respect. 

Naturally enough, most of the authorities in relation to police have to do with the absence of an invitation, particularly entry by force and particularly without warrant.  That is what the common law has been concerned with when police are explicitly their focus because as officers of the peace they have responsibilities in relation to breaches of the peace which fall into different species, completed, in course, imminent, likely to recur.  And for completed, there is no authority that says there is common law authority to enter notwithstanding revoked permission to do so or to remain notwithstanding revoked permission to do so in order to investigate a completed offence.

GUMMOW J:   What role does Thomas v Sawkins play in all of this, if any?

MR WALKER:   It plays this role, that it has been seen, wrongly, we submit, entirely wrongly, as a source of a common law rule justifying what happened in this case.  I am answering Justice Gummow’s questions in layers, as it were.  Might I go straight to Thomas v Sawkins [1935] 2 KB 249. It has been cited in the authorities noted in the Court of Appeal’s reasons. It has been ‑ ‑ ‑

GUMMOW J:   Is one of them Nicholson v Avon [1991] 1 VR 212?

MR WALKER:   Yes, Justice Marks.  Now, the facts, of course, are important.  One commentator, Professor Goodhart, it might be understood as suggesting that it was odd that the authorities at the time confessed they did not have the capacity for police to enter meetings held by fascists but that Thomas v Sawkins was a meeting held by Welsh communists.  Now, there are issues in the case which have nothing to do with the present matter such as whether it being a public meeting advertised, including by chalk on the footpath, the police were entitled to be there simply as members of the public.

Commentary has effectively demonstrated that even if that be the case, the common law of trespass would permit the persons in control of those private premises to ask them to leave, as indeed was the case, and that would have been an end of their attendance as a member of the public, there being no contract involved, it was a free meeting.  However, what it has been taken in the present context to stand for is a common law right to enter and remain on premises in relation to an aspect of the police’s duty as preventive duty as officers of the peace in relation to breaches of the peace.

The Chief Justice, whose reasons start at page 253, on page 254 point 3 notes the argument of Sir Stafford Cripps that:

it is an unheard‑of proposition of law, and that in the books no case is to be found which goes the length of deciding, that, where an offence is expected to be committed, as distinct from the case of an offence being or having been committed, there is any right in the police to enter on private premises –

Pausing there, as one will find from the note of the argument, in particular the respondent’s argument at page 253, that was the main issue.  It has nothing to do with this present case.  Then Lord Hewart refers to some of the authorities and holds at point 6:

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 as the justices have found here –

That has to do with the fact that the meeting was reasonably supposed to be one of which seditious utterances would be made, including a call for the chief constable to be dismissed.  I am sorry, I am not saying that is seditious, but there was also going to be a call for the chief constable to be dismissed.  The reasoning continues at page 255, about point 2 or 3:

it seems to me that a police officer has ex virtute officii full right so to act when he has reasonable ground for believing that an offence is imminent or is likely to be committed.

That has to be read in the context of the first sentence of that paragraph:

I am not at all prepared to accept the doctrine that it is only where an offence has been, or is being, committed, that the police are entitled to enter and remain on private premises.

His Lordship cannot possibly be read as meaning there that wherever an offence has been committed there is, at common law, at large, an entitlement for police to enter and remain on private premises.  He did not so hold.  It is a passing comment in an unreserved judgment.

GUMMOW J:   The matter I was taking up with you, to some extent, is reflected in Sir Horace Avory’s judgment in the last paragraph on 256.

MR WALKER:   Yes.

GUMMOW J:   He died two weeks later, I think.  That is immaterial, I suppose.

MR WALKER:   His Honour refers to statutes, and makes a comment about that:

Those have all been cases in which a breach of the peace was not necessarily involved –

in other words, his Lordship is referring to the common law in relation to the prevention of breach of peace –

and it, therefore, required express statutory authority -

Quite so.  This is a very poor foundation for an argument that where there is not an apprehended breach of the peace you are entitled to remain on premises that you have been permitted to enter on and that permission has been revoked.  Then one finds repeated in these reasons the statement of the case from the justices.  Your Honours will see in the last line on page 256 the unfortunate usage “and/or”:

I am satisfied that the justices had before them material on which they could properly hold that the police officers in question had reasonable grounds for believing that, if they were not present, seditious speeches would be made and/or that a breach of the peace –

Professor Goodhart wrote an article, copies of which we will supply to your Honours, which proclaimed consternation at the implication of that “and/or” that this was a power to prevent seditious speeches as opposed to breaches of the peace that might follow from a seditious speech:

To prevent any such offence or a breach of the peace the police were entitled to enter and to remain on the premises –

That was the controversial holding of the case.  It has nothing to do with this case.  Your Honours will see not a word in that decision about remaining for the purposes of investigating a completed offence.

HAYNE J:   You see nothing about purposes, do you?  It is simply enter, it is said, “To prevent . . . a breach of the peace”.  How?  Enter for the purpose of effecting arrests, enter for the purpose of simply proving a baleful presence?

MR WALKER:   It must be – it is almost certainly – your Honours have read the facts.  There had been a sequence of meetings.  The speaker had several times said, “I could tell you more if they weren’t here”.

HAYNE J:   “I could tell you more, if only”.

MR WALKER:   And they are occupying the front row, all in uniform.  It was, in our submission, not surprising that ‑ ‑ ‑

HAYNE J:   There was a subtle presence.

MR WALKER:   Yes.  It is not surprising that the case was fought as it was.  In our submission, it has nothing to do with the present case, even assuming it be regarded ‑ ‑ ‑

HAYNE J:   But the underpinning principle, if there be one, would surely require identification of purpose of entry rather more precisely than to prevent a breach of the peace.

MR WALKER:   Quite.  Now, in Justice Santow’s reasoning, page 598, paragraph 87, to repeat, that is just about the law of trespass, consent to enter for particular purpose.  That has nothing to do with being able to remain after the consent had been revoked, nothing at all.  When his Honour refers at paragraph 87, line 45, on that page 598, to:

sudden violence erupted while the police were still engaged upon that investigation -

there is a mixture of concepts at work, in our submission.  His Honour is finding, holding, without any reference to case law, let alone to the occasion of an appellate court, intermediate appellate court, extending the common law, his Honour refers to this notion of:

completing an inspection of the promises in fulfilment of that investigative purpose.

Now, your Honours will recall that was his reasoning in relation to the statutory interpretation of 357H, wrong for the reasons I have already argued.  It has no place in the common law reasoning at all if the right to enter depended upon consent, which is what the beginning of 87 suggests, and at common law the right ceases when the consent is revoked, full stop.  There has never been an authority that says, if you grant a consent then you have to grind your teeth and wait, what, in the presence of the police or are you entitled to leave while they complete what they want to do.

GUMMOW J:   There does not seem to have been quoted to the Court of Appeal some relatively recent English cases ‑ ‑ ‑

MR WALKER:   Your Honours will have ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ one of which is McLeod v Commissioner of Police [1994] 4 All ER 553 and ‑ ‑ ‑

MR WALKER:   We have drawn these to your Honours’ attention.  Could I go to the ‑ ‑ ‑

GUMMOW J:   Justice Hayne has identified a case note in 111 LQR 562.

MR WALKER:   Sorry, what volume of Law Quarterly Review?

GUMMOW J:   Volume 111, page 562.  Then there is a case of McQuade [2002] 1 WLR 1347.

MR WALKER:   Yes, we have drawn some of those to attention in paragraph 49(b) of our written submissions.  We have supplied a copy of Friswellv Chief Constable of Essex Police [2004] EWHC 3009 in the Queen’s Bench Division, a decision of Justice Cox, which canvasses a lot of these authorities. It has to be noted at the outset that this is a statutory case and unlike New South Wales the statute ousted the common law. You will see that on page 4 of the print we have supplied, quoted in paragraph 25, right‑hand column. The abolition of the common law with the preservation of the breach of peace power is seen in subsections (17)(5) and (6) of the Police and Criminal Evidence Act, which are there quoted.

Could I draw to attention the following matters in the report?  On page 2, paragraph 12, right‑hand column, there is the report by the boy of:

“Dad throwing apples at mum” -

and –

The officer considered that there had been a problem at the claimant’s house and that he needed to investigate.

Now, that bears some resemblance to the present case.  Page 3, right‑hand column, paragraph 20, he concluded that:

Mrs Friswell had been assaulted, and that a breach of the peace had occurred –

That is to be taken as a reasonable opinion to that effect.  Paragraph 21:

a duty to ensure that no breach of the peace recurred . . . he suspected that a further breach might occur.

So those were matters, none of which applied in this case, by the time in question arrives.  The time in question is after we have revoked the permission to look around.  Page 5, paragraph 29, left‑hand column, your Honours will recall he opens the door – that is force that was present in that case, not in our case – he opens the door without invitation from anyone, Mr or Mrs:

given that his evidence was that he was entering only to talk to Mr Friswell and not at this stage to arrest him, any implied licence to enter by Mrs Friswell was, as the officer accepted in cross‑examination, expressly revoked by the claimant once he was inside the kitchen.

Then her Ladyship notes the evidence of the policeman, the subjective opinion of the policeman that “he felt he was duty bound to investigate the matter”.  So this is a case about investigation of a past offence, because there is no question that, in terms of throwing apples, what he saw meant that that was not in course and was not imminently about to recur.

Page 5 there is reference to McQuade in paragraphs 32 and 33 and following.  There is McQuade referred to, McConnell, McLeod and – I do not know what that says about the Scots – and Thomas v Sawkins.  Foulkes and Howell on the next page and then after consideration of the case law which most particularly focuses on the imminence of a threatened breach or breach of peace being in course, none of which matters for this case, her Ladyship notes on page 6 in paragraph 37, right‑hand column a quotation from McQuade [2002] 1 WLR 1347 at 1352:

“Keeping the peace is concerned with the prevention of violence and damage wherever they may occur, public or private.”

There had been an issue, as your Honours appreciate, as to whether breaches of the peace could occur on private premises.  Then her Ladyship notes at page 7, paragraph 38 in McGrogan, yet another Scottish surname, there is an observation about, as it were, the tension between statute and common law and to the common law rights and the common law entrenchment on rights:

“It is plain that the concept of a breach of the peace, including the power to arrest in order to prevent it, is something of an anomaly in English law.

In other words, it stands against the expectation that the criminal law and the ancillary powers of police are there for the detection of offences rather than to punish people for merely intending without actually attempting to commit an offence.  There is a reference to human rights matters which do not directly arise in this case in the same passage.

HAYNE J:   But does the passage to which you have just referred suggest that the entry is an entry for the purpose of arrest?

MR WALKER:   In order to prevent, yes.

HAYNE J:   The arrest may be to prevent ‑ ‑ ‑

MR WALKER:   Yes, your Honour.  Yes, it does.

HAYNE J:   - - - or on account of past, but it is enter to arrest.

MR WALKER:   Now, in our submission, none of this would matter.  It is extraordinary that the efforts to distinguish between cases of right and no right would have been argued or decided in this fashion, in fact, that there is simply a power at common law to enter and remain and remain as long as you, the police, regard it as reasonably necessary in order to carry out an investigation.  I stress the investigation of whether an offence has been committed notoriously extends beyond a few hours, one hopes.

Page 7, paragraph 42, right-hand column, a conclusion:

It follows that, as a matter of law –

your Honours understand these are reasons for taking an issue from a jury –

a police constable does not have the power to enter a private dwelling house in order merely to carry out an investigation –

and then follow interesting words –

as to whether there might, in the future, be a further breach of the peace.

That was what was in question in that case.  Was he going to hurt himself more or hurt others more?  In fact he had already taken the overdose.  Now, we say ours is a fortiori case - there is nothing preventive or protective in the sense the cases use it about investigating what you regard as being a completed offence.

KIRBY J:   But can the view that was taken by Justice Santow be supported by the fact that the Act, curiously, preserves any powers that the police have at common law?  It is difficult for those powers to live with 357F, but Parliament has preserved them ‑ ‑ ‑

MR WALKER:   Quite, and that is why the ‑ ‑ ‑

KIRBY J:   - - - and therefore you bring in the powers that constables have at common law to prevent breaches of the peace.  The police come, they are allowed in, they are then told to go ‑ ‑ ‑

MR WALKER:   That is the common law.

KIRBY J:   - - - they want to have a look at the bathroom to make sure ‑ ‑ ‑

MR WALKER:   No, they do not.

KIRBY J:   - - - that the woman is not in there ‑ ‑ ‑

MR WALKER:   No, they do not.

KIRBY J:   - - - and the fear is that if they leave then, without having completed their look around, that she may be there or that the breach of the peace may continue.

MR WALKER:   They do not, your Honour.  There is no finding of fact that they wanted to look at the bathroom.  What a terrible reflection on the police if they did in fact have that view and the image of a bleeding woman that they did nothing about it?  That is just impossible.  You would reject that.  If they were actuated by those motives they had nothing to explain why they did nothing about it.  There is no finding to that effect.  They said they wanted to investigate where she is, off the premises.  They had that, they had the sufficient information.  In one place Justice Santow makes that finding and in other places ‑ ‑ ‑

KIRBY J:   Why did they want to continue to look around?

MR WALKER:   Your Honour has an assumption in that question to me that they did want to continue to look around.  They did not want to be told to leave is the inference I would ‑ ‑ ‑

KIRBY J:   I did not hear your words.

MR WALKER:   They did not want to be told by a householder to leave his premises.  That is the inference we would seek in this Court for your Honours to draw.  They were people in authority.  He was just a private citizen.  It does not matter he was in his home; he told them to leave and they were not going to take that from him.  That is what we would ask you to infer.  That is what the contest was.  Now, in that context the common law’s function, the Court’s duty, in my submission, is clear.  It sides with citizens.

KIRBY J:   You say that though his background was in Turkey he hit upon a correct statement of the principles of the Australian law inherited from England?

MR WALKER:   Quite so, in a straightforward way, just before Anzac week, yes.

GLEESON CJ:   Mr Walker, you told us earlier that the Court of Appeal did not deal with the grounds of appeal concerning damages.  Did the Court of Appeal deal with ground of appeal number 3 which appears on page 563 of the appeal book, or was that ground not pressed in the Court of Appeal?

MR WALKER:   It was certainly pressed.  They dealt with it, but with the unfavourable outcome – I am sorry, I am quibbling.  I have drawn to attention already the way in which Justice Ipp, I think, I would have to say expressly did not deal with the matter on page 608, or at least some of those matters.  At the foot of paragraph 126, about line 19:

however, it is not necessary for me to say more about this factual dispute –

that is, what side of the counter that he jumped down.  That is the first one.  Then, at the foot of that page, 129, “shoulder‑charged”.  Justice Ipp says:

What precisely occurred was in issue.

Quite.  At trial there was a finding made it did not happen.  It was in issue again in an appeal by way of rehearing.  Having heard the argument, which was pressed, his Honour says, “unnecessary to resolve it”.  I think that means they did not deal with it.

GLEESON CJ:   That is the only ground of appeal that deals with trespass to the person and trespass to the person was the subject of the largest award of damages.

MR WALKER:   Yes.

GLEESON CJ:   The explanation may appear in paragraph 107 on page 603, but if that is the explanation it is curious because that is a proposition put by your predecessor, Mr Einfeld.

MR WALKER:   Yes.  We do not understand that to be in question.

GLEESON CJ:   But implicit in that proposition is that it was common ground that what Mr Kuru did involved no more than the use of reasonable force to evict the police.

MR WALKER:   Yes, it is.

GLEESON CJ:   I cannot reconcile that with ground 3 of the grounds of appeal.

MR WALKER:   Neither can we, your Honour.

GLEESON CJ:   I can understand why it would have suited Mr Einfeld’s purposes to assert that.

MR WALKER:   Yes.  Can I take your Honours to paragraph 17 of our learned friend’s written submissions in this Court on page 5:

What matters is whether the police were trespassers at the time the appellant, following up his demand that they leave, initiated physical contact with them.  If they were, he was entitled to use reasonable force to evict them.

We do not find at that point an assertion, but even so we dispute that is what happened.  Then it goes on:

If not, his conduct was an assault and the arrest that followed was lawful.

The next sentence really is the continuation into this Court of what I said earlier, that is the way the parties chose to run the case, I think I can say regardless of the pleadings.

GLEESON CJ:   Do you mean that, “and regardless of the notice of appeal”?

MR WALKER:   And regardless of the pleadings in the Court of Appeal, too, yes.

GLEESON CJ:   Does this mean that notwithstanding ground 3 of the notice of appeal the case in the Court of Appeal was conducted on the conventional basis that Mr Kuru in fact used no more than reasonable force to evict the police?

MR WALKER:   That is the only way I can read the record.

GLEESON CJ:   That is only another way of saying that ground 3, the only ground of appeal in relation to trespass of the person, was not pursued.

MR WALKER:   Except I know from the record that it was argued, and strenuously, but it did not produce a favourable finding and there is no notice of contention in this Court.  Matters do narrow from trial to first appeal to High Court appeal.  There is certainly no syllable of argument in writing against us in this Court that suggests that the Socratic dialogue between Justice Ipp and Mr Einfeld perpetrated ‑ ‑ ‑

GUMMOW J:   Why is poor Socrates always dragged into this?

MR WALKER:   It is a cliché of questioning designed to elicit truth, your Honour.

GUMMOW J:   Yes.

HAYNE J:   There is a bowl available for you at lunch, Mr Walker.

GLEESON CJ:   Again, the second part of that equation in paragraph 107 seems to assume that the police, for their part, if they were not committing a trespass by being n the premises at the time, did no more than use reasonable force against Mr Kuru.

MR WALKER:   Yes.  That is, the case “was not run . . . as a “discrete excessive zeal case”.

GLEESON CJ:   That is odd because I thought part of the suggestion was that they threw him or tripped him down the stairs.

MR WALKER:   Your Honour, all I can say is yes, but we are here to argue an issue thrown up by the way in which the case is presented here.  In the absence of a notice of contention it would appear that what is recorded in paragraph 107, corroborated to the extent it is by the speech and silence in paragraph 17 of their written submissions here, that it is the simple choice, Mr Kuru or the police, depending upon whether the police were justified in being there at the relevant time because everything, apparently, flows from that.  I should not be taken as submitting that that was the only or inexorable logical analysis flowing from these facts.  That is not so.  The parties can and do narrow issues beyond the potential ones.  Your Honours, I note the time.

GLEESON CJ:   We are going to adjourn at 1 o’clock and resume at 2.00, Mr Walker.

MR WALKER:   Thank you.  Your Honours, may I go back then to the way in which Justice Ipp dealt with the matter of common law, in our submission, Justice Santow having dealt with it in a way that does not explain either the rule, its source or the justification for making a new one.  The first reference to the common law in Justice Ipp’s reasons starts at paragraph 609 but it is the background against which the statute has been construed.  May I quickly deal with the statute so as just to deal with that once only.  On page 610, his Honour, correctly, in the last sentence of paragraph 132 applies the statute, namely:

if the police were invited by Mr Kuru to enter the apartment for the purpose of investigating . . . they were lawfully entitled to do so.

Paragraph 135, page 610, the open door as an invitation is rejected.  That is not the subject of a contention in this Court.  Paragraph 136, “take a look around”, that is the invitation and the argument of constituting the requisite invitation is there noted.  Your Honours will recall that is speech that happened after the police had already entered on any view of that word, legal or factual.

There is reference to the second reading speech by Mr Wran at page 611, paragraph 138, but nothing emerges from that.  Then paragraphs 139 and 140 constitute, in our submission, with unsatisfactory reasoning, a holding that the agreement that they could look round his apartment, that is when he first saw the police, they having already entered, was an invitation to enter and remain.  In our submission, the separation of entry and remaining, note seen in section 357F(2) is not sufficiently observed by that holding, paragraph 140.

Paragraph 141 seems to be a different strand of reasoning.  There is a reference to something technically constituting a trespass.  In our submission, that is not a concept that should be encouraged.  It is either a trespass or not in the sense that it may be that the court will award very little damages and will express a view by the discretion as to costs concerning certain actions in trespass, but it is critical when deciding issues between police and citizen that there be no notion of a technical trespass.  It is a trespass or not. 

Then the metaphor of curing, “such trespass was cured by Mr Kuru’s later invitation for them to enter”.  No doubt in ordinary dealings between police and citizens, if the last dealing between them is, “by all means, now you’re in, stay in and do something”, then there will not any case.  In that sense, the problem is cured.  But if that is not the last dealing and they refuse to leave when that permission has been revoked, then there is no reason to ignore, if it is relevant to the causes of action sued on, the initial trespass.  It is not relevant in this case.

Then paragraph 142 there is, in our submission, a serious factual contradiction or error by his Honour in the last sentence in attributing things to my client:

These matters explain why Mr Kuru, when emerging from the bathroom and agreeing to the police looking around –

it is some form perhaps of consciousness of guilt that is being referred to by his Honour, he –

did not both to ask the police why they were there.

But that is not correct.  At page 525, paragraph 16; page 527, paragraph 20 and, indeed, in the reasons of Justice Ipp himself, at page 606, paragraph 119 there are findings to the contrary of that.  As Justice Ipp paraphrases the facts, he asked them what were they doing there?  Now, that cannot live with the last sentence of paragraph 142.  Paragraph 143 has, in our submission, an unfortunate expression, “Thus, in my view, Mr Kuru, in effect, invited the police”. 

Now, it is certainly true that factually the look around dialogue meant that they were authorised to remain, but it is also true that that was then subject to the 357F(3) express refusal, or revocation, as I have put it.  Thus far, to paragraph 143, Justice Ipp’s reasons to an authorisation to enter, but that is not going to answer the issues in this case, he then turns to the question of common law.  In paragraph 147 he refers to Thomas v Sawkins as authority for the proposition that:

any person, including a police officer, is entitled to enter private premises to prevent a breach of the peace from occurring.

That will not answer the necessities of this case for the ‑ ‑ ‑

GUMMOW J:   The question is, what is the baggage of the phrase “to prevent”?

MR WALKER:   Yes, quite.

GUMMOW J:   By arrest, I suppose.

MR WALKER:   Quite.  It will involve physical intervention, and ultimately, in relation to the suspected miscreant, arrest, presumably pulling people apart and then arrest.  In our submission, none of that has to do with investigation after the event, for which a warrant can and should be obtained, or an arrest made upon information which justifies an arrest and a person’s rights upon official questioning would then descend.

Page 615, his Honour turns to the question of this Court’s exposition of the matter in the two judgments in Plenty v Dillon.  In our submission, it is plain that his Honour was not seeing in Plenty v Dillon any support for what he was holding.  In paragraph 151, an obvious point of distinction between this case and Plenty v Dillon is made. His Honour notes there, if I can note, at 151 his Honour is talking about the power to prevent a breach of the peace from occurring. It said that the observations are thus not binding. That is different from the way Justice Santow approached the statement of principle. In our submission, they are binding in relation to the right to enter or remain.

Paragraph 152, again noting it is not referring to preventing a breach.  Bates, 616, paragraph 154, is sought to be distinguished but in the course of doing so, in our submission, there is a slide by his Honour, and your Honours will see that slide at about line 25:

Gaudron and McHugh JJ . . . were not referring to the situation where a police officer has reasonable grounds for apprehending that a breach of the peace has –

and presumably one is meant to read there the word “being” –

or will be, committed.

Now, that is a slide away from the prevention that his Honour had correctly earlier seen as being Thomas v Sawkins.

GLEESON CJ:   Is that a convenient time, Mr Walker?

MR WALKER:   It is, your Honour.

GLEESON CJ:   We will adjourn until 2 o’clock.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, I took the liberty of supplying to your associates copies of the commentaries which were cited by Lord Justice Neill in McLeod v Commissioner of Police of the Metropolis [1994] 4 All ER 553 at 560 concerning Thomas v Sawkins.  I have supplied as well a copy of the further note by Feldman, one of the authors concerning Thomas v Sawkins on McLeod itself.  In relation to the interplay, if it be such, of the common law, particularly when consideration has been given to its extension and statute, it needs to be borne in mind, of course, that each State and Territory has its own legislative adjustment from time to time of police powers and there is but one common law in this country, so that there cannot or ought not to be, as it were, an express truncation of what might otherwise be a common law decision by reference only to the New South Wales legislation.

On the other hand, we do submit that where a subject matter, namely, the balance of the public interest in police entry for certain purposes and on certain conditions, the private interest felt largely among the public in privacy and being left alone, where that has been addressed for so long by various and different forms of statute, it is not, in our submission, an obvious way of common law innovation to proceed to do something of a kind that a Parliament could do, particularly when a Parliament has not done it.  If a Parliament had done it, common law should not do it.  If it is the kind of thing that Parliament has been doing in this particular area, that is a reason for it to be in the nature of a deterrent against the common law innovating.

We would add a further disincentive to innovation, namely, that the common law rules are salutary in their plainness and generality in relation to the necessity for permission or express authority of law for anyone, including a police officer, to enter private premises.  Could I conclude our submissions by briefly turning to those passages remaining to be noted ‑ ‑ ‑

HAYNE J:   Before you depart to that conclusion, can I take you back to where the so‑called right of entry to prevent a breach of the peace properly should sit.

MR WALKER:   Yes, your Honour.

HAYNE J:   Is it, regardless of what was said in the 1920s case, properly seen as a power of police to arrest to prevent an anticipated breach of the peace and for the purpose of effecting that arrest, to enter upon land, that is, is it right to identify a separate principle about entry of police officers onto land in connection with breaches of the peace separate in the sense that it is cut off from arrest to prevent anticipated breach?  I have in mind discussion of the kind found in Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 and following.

MR WALKER:   Yes.  If one goes to Thomas v Sawkins itself, the prospect of arresting people in the course of committing an offence, which also has the effect of preventing them continuing that offence if it is continuing in nature or committing other like offences, is more implicit than explicit in the reasoning.

HAYNE J:   It is an ex tempore judgment and hedged about by being a stated case and all of those difficulties.  Leave out exactly what we find in the words in the judgment, where is the principle properly founded?

MR WALKER:   I was about to say that is implicit rather than explicit in the reasons but, in our submission, to be gathered from the phrases which are found, namely, where an offence is expected to be committed or such reasonable grounds of apprehension or reasonable ground for believing that an offence is imminent or is likely to be committed or “a breach of the peace would take place” and then, finally – and the last of those is from Mr Justice Avory – and at the top of page 257 I then quote from his reasons:

To prevent any such offence or a breach of the peace the police were entitled to enter and to remain –

and no one is suggesting that that ought to be read as meaning that the common law was committing the idiocy of suggesting that offences are prevented by a policeman being present.  That is not what is on.  Implicit is they are there then to apply the main force which they are entitled to apply to pull people apart, to arrest, if and when the expected offence occurs.

GLEESON CJ:   That right to arrest people to prevent a breach of the peace is not a right that belongs only to policemen, is it?

MR WALKER:   No, quite.

GLEESON CJ:   Are there any rights that belong specially to policemen that are not to be found in some statute?  In other words, does the common law confer on police officers any rights that are not the rights of citizens generally?

MR WALKER:   In relation to breaches of peace apprehended to be in course, no, there is no difference; there is no special position for police.  In relation to entry without permission or warrant on premises where that is apprehended, on our reading of the authorities there is no difference.  I am sorry, I cannot answer the Chief Justice’s question as to whether, in the case of a breach of the peace feared to recur – that is, as opposed to apprehended to be in course – there is a difference.  There is at the back of my mind, your Honours, one reference in an authority where I think, as officers of the peace, which does distinguish them from anybody else, they have powers in that regard different from everyone else.  There is reference, clearly not directed to this subject matter so far as the issues to be decided were concerned, to the role of officers of the peace in Plenty v Dillon, but I stress that is not a breach of the peace case in itself.  Your Honours, if I could turn to ‑ ‑ ‑

KIRBY J:   Could you just tell me the name of that recent case that came before the Court within the last year about the search warrant of a former policeman?

HAYNE J:   Is it Ibbett? No, that was damages.

MR WALKER:   I am not able to contribute to this except to relay Corbett.

KIRBY J:   I will track it down.

MR WALKER:   I am sorry, your Honour.  The passages I wanted to briefly go to in conclusion from Justice Ipp’s reasons start, or resume, at page 616.  In paragraph 156 one finds the holding, which seems to be different from Justice Santow’s approach, that the invitation had been, to use his Honour’s words “no longer, on its own, authorised” the police to remain in the apartment because Mr Kuru had ordered the police to leave.  As Justice Ipps puts it:

Section 357F(3) thereby became operative.

To cut a long story short, it is 357H which, as a matter of statute, his Honour finds, the outcome being the same as Justice Santow, with the reasoning being slightly different.  The rejection of an argument that 357H could not be called in aid is found, starting at page 617, paragraph 159, and the reasoning is found on page 618, paragraph 161, on the basis similar to that of Justice Santow, namely, that there was an investigation in train which the revoked permission did not prevent under 357H as if it stood freestanding of 357F, notwithstanding subsection (3), as an authority.

Your Honours will see what, in our submission, are the speculative and counter-factual suggestions which do not justify remaining on the premises offered by Justice Ipp for that supposed authority.  Paragraph 161, page 618, line 30:

desirable to interview the woman who had been heard screaming -

Well, that had gone, they were going elsewhere –

but who was no longer present.

So that has nothing to do with it.  Then there is a reference to the questions the police asked of Mr Kuru and Mr Guler.  I have already noted that it is really only the question to Mr Guler and nobody has shown that that was something for which the police were staying.  Then there is the slightly puzzling reference at line 39 to not having had an “opportunity of verifying the telephone number”.  There is no suggestion of any doubt being held or why one would have to remain on the premises to do so; presumably, one tries, rings it.

On page 619 an important passage at the foot of that page commencing at paragraph 167, the holding that remaining on the premises:

was reasonably necessary to investigate whether a domestic violence offence had been committed.

That goes, in our submission, well beyond any of the authorities to which his Honour had by then referred.  One sees, of course, that his Honour places that as a matter of statutory interpretation for the reasons I have put in relation to Justice Santow’s reasons they ought to be rejected.  They may be summarised as ignoring the limitations of 357F(3).

Page 621 in paragraph 174, reference is made to Kay v Hibbert [1977] Crim LR 226.  That is the burglar alarm case.  I note it now only because at the top of page 622, line 10, there is a reference to investigation.  There is a similar reference to investigation of that kind in the Ledger decision noted at paragraph 177.  That is not investigation of whether an offence has been committed, that was investigation as to whether the person telling them to leave was the burglar who had set off the alarm that had gone off at the police station.  That is the only investigation in question there.  That is why when the man who was not the burglar but the owner in fact, before the police had been able to ascertain his identity by the investigation in question, when he ushered them off the premises he was committing an offence in relation to constables in the course of their duty, but the line would have been drawn once he said, “Well, I am the owner”.  Now, in our submission, that provides no authority for the investigation of a committed offence in the circumstances of this case.

Page 623, paragraph 178, his Honour reasoning, we think, in relation to the “common law” because that is the heading at page 620, says similarly in the present case there is no material similarity for the reasons we have already put.  They were, his Honour holds, entitled at common law to stay until they had taken reasonable steps to satisfy themselves that no offence had been committed.  There is no authority to that effect, unless it be this one.  Then he refers, in parentheses, to matters for which in our submission either a warrant would be appropriately required or they could do only by permission.

The closer inspection of the premises we have already sufficiently addressed on.  That was not in question at the time.  Telephoning the fiancée or speaking to the sister or the fiancée, they do not require to be on the premises at all.  This is about a right to remain on the premises.  The

threads are pulled together in paragraphs 180 and 181.  His Honour understood, we think correctly, though we may be wrong, that:

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.

I draw to attention the past completed tense.  In our submission, it is that for which none of the cited cases stands as authority and no principle or policy of the common law has been offered by these reasons to find it in the absence of authority.  At page 624, paragraph 181 there is repetition of the completed matter:

had been committed.  They were therefore entitled to enter Mr Kuru’s apartment and to investigate what had occurred.

That is not correct.  There is no authority to that effect.  There is no discussion of any authority to that effect, once one puts to one side the superficial but misleading resemblance of the investigation in question in this case of a completed offence and the investigation in cases where the person who might be the burglar suggests the police leave after an alarm has been sounded.

In our submission, it is for those reasons that the analysis which the way the parties fought the case rendered dispositive noted at the foot of paragraph 181 on page 624 has been wrongly determined by Justice Ipp.  It follows that the Court of Appeal was in error in allowing the appeal.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Temby.

MR TEMBY:   There are two preliminary matters.  Firstly, in the course of discussion this morning there was a question raised concerning the second reading speeches for the Bill which led to the amendments to the Crimes Act raised principally by your Honour Justice Kirby.  We looked at the second reading speeches and they did not seem to advance the matter very greatly.  A manifest purpose of the legislation was to discourage domestic violence and the perpetrators of it and to encourage victims and in certain respects strengthen the hand of the police but we do have copies of the second reading speeches which I will provide to the Court.

I just give this quote from the second reading speech of Mr Landa, the Minister for Energy and other things in the Legislative Council on 24 November 1982.  He said:

The evil against which this bill is directed is now well documented and there can be no dispute as to the prevalence of domestic violence in contemporary society, nor of its consequences, which range from the infliction of bodily injuries, to the psychological scarring of women and children.

There is a good deal more in a similar vein.  The second reading speech in the Assembly was given by Premier Wran on 9 November 1982. As I say, I provide copies to the Court.

GLEESON CJ:   Thank you.

MR TEMBY:   The other preliminary matter which arose from discussion this morning is that a query was raised concerning Mr Kuru’s place of birth.  At 466 there is to be found a medical report at about line 45, “Mr Kuru was born in Australia of Turkish parents”, and at about line 60, if it matters, “Mr Kuru’s parents now live in Turkey”.  He is fairly clearly bilingual.  I do not attach any great significance to that, but I just point it out because the query was raised.

Coming to the main argument, the learned trial judge proceeded on the basis, as he put it at page 522 in paragraph 6:

The case involves a legal question, as, if the officers’ entry was “justified by law,” the Plaintiff’s actions (with the possible exception of negligence) fail.

The appeal was argued on that same basis, as appears from the passage at page 603 to which my learned friend has taken the Court on more than one occasion.  The appeal was argued on the basis that either the police were lawfully present, in which event the proceedings would be dismissed, or they were not lawfully present, in which event the plaintiff, the present appellant, had an entitlement to damages.

GLEESON CJ:   Yes, but did he have an entitlement to damages for trespass to the person and for false imprisonment?  You have stated on the front page of your submissions two issues and I do not wish to diminish the importance of those issues, they are important, but at the moment I am having difficulty understanding why the resolution of those issues is dispositive of the outcome of this case in relation to the damages which were most of the damages awarded for trespass to the person and false imprisonment.

MR TEMBY:   Yes.  Well, I should I say this, that the case has certainly been argued until now on the basis that the plaintiff either has no entitlement to damages if the officers were lawfully present because when he first – when violence – I am sorry, when force was first applied – it is not a question of violence – when force was first applied, it was clearly applied by him in the course of at least ushering the officers out of his premises and it is in response to that force that he was arrested and subdued.

GLEESON CJ:   But was it the case of the State that the force that he used was no more than reasonably necessary to evict a policeman?

MR TEMBY:   The State did not ‑ ‑ ‑

GLEESON CJ:   Ground 3 of the grounds of appeal in the Court of Appeal, which is the only ground of appeal as far as I can see relating to the trespass to the person aspect of the case, which is the aspect of the case in which he got the big damages, seems to call in question the force which Mr Kuru used to get the police out of there and their response to it.  Now, he got over $400,000 in damages and he did not get that because they were trespassers to land.  He got that because they kicked him down the stairs and put him in a cell with hardly any clothes on and did a whole lot of other things to him.

MR TEMBY:   Yes, it is true to say that he got a whopping award of damages, $410,000 in general aggravated and exemplary damages and about $8,000 in special damages, and your Honour is right as to how those damages were allocated.  Certainly we argued in the Court of Appeal, when I first became involved in the matter, that the findings which had been made at first instance with respect to the interplay between the plaintiff and the police officers were simply wrong, at least so far as the jumping off the bench into the lounge area towards the officers was concerned, which I suggest is not critical to the disposition of this appeal, but it certainly does strengthen our hand because it is far closer to the shoulder charge matter which was dismissed.

The reasoning at first instance was there was not a shoulder charge; there was not a jumping over the splashback into the lounge area – that is an impossibility.  I accept that he simply climbed down and there is no evidence, other than police evidence, to the contrary.  The Court of Appeal was surely right in saying that impossibility is nonsensical - clearly a fit young man like this who had managed to jump up on the bench could jump down from it into the area of the lounge - and that is what Mr Guler said that he did.

That is the main area that we were debating so far as ground of appeal 3 is concerned.  But in the end, I do suggest, and as to this my learned friend and I speak with, I think, one voice, what matters is whether at the time force first came to be applied, which was clearly by the appellant, the police were or were not lawfully on the premises.  If they were not, he was entitled to use reasonable force to evict them, and it is clear that he was using force in the course of evicting them.  If they were then lawfully on the premises then he was not entitled to use such force, and accordingly they were entitled to arrest, as they did, and when he resisted, to use necessary force to subdue him.

So we do suggest that the critical question is not, as the learned trial judge put it in paragraph 6, was the entry justified by law, but rather the question is whether the officers were lawfully on the premises at that critical moment.  Now, I wish to start by ‑ ‑ ‑

KIRBY J:   Not so much whether they were on it, but whether they were remaining within the statute.

MR TEMBY:   I am obliged to your Honour because the word “remaining” does assume importance, in particular so far as the statutory approach is concerned.

KIRBY J:   In particular after he had said that he wanted them all to go, and that was realised by them and was repeated at least six and up to 10 times.

MR TEMBY:   Yes.  Now, coming to the statute, the starting point is, of course, section 357F(2) of the Crimes Act, which needs to be taken, we suggest, in stages.  The first stage is that a member of the police force who believes on reasonable grounds that a domestic violence offence has recently been committed in any dwelling house, or is being committed or is imminent - our case is has recently been committed - may do certain things subject to a qualification as to invitation which I will come to shortly.

My learned friend accepts that the initial requirements of 357F(2) were satisfied and, accordingly, I think I need not take your Honours to the relevant passages, but findings were made by Justice Ipp in the terms of the statute in paragraph 132 at page 610 and by Justice Santow, in effect, as to the statutory requirements in paragraph 40 at page 582.  So the initial requirements as to belief on reasonable grounds were met.

Now, the next point to be made as to 357F(2) is that in such circumstances police were entitled to enter the dwelling house and remain in it for the purpose of investigating whether an offence had been committed if invited to do so by a person resident in the dwelling house and the question is, invited to do what?  We submit that the invitation which suffices for section 357F(2) purposes is an invitation either to enter the dwelling house or to remain in the dwelling house, that is to say, an invitation to remain suffices.

Suppose this case.  Police are called by neighbours because there is a ruckus and threats being audibly uttered.  They are invited to come into the premises by a person resident there but not the victim - say an 18-year-old son - they are told to get out by the wife, they are then asked to stay by the apparent victim – let it be supposed that is a six-year-old child on the floor close to the father who is in an apparently furious state, the child perhaps adding, although I suppose it is not necessary, “Please don’t go, he might thump me again”.  Now we have there an invitation by a resident which enables the entry, then we have a revocation or a refusal, then we have a further invitation which is ‑ ‑ ‑

KIRBY J:   This picture is one of apprehension of a breach of the peace, an ongoing and continuing breach of the peace.

MR TEMBY:   Yes.

KIRBY J:   But what is put to us is that that is not the situation in the present case.

MR TEMBY:   No, but, with respect, what I am presently addressing on is the question whether “enter and remain” necessarily connotes a continuum or whether it suffices that there should be either an invitation to enter or an invitation to remain once upon the premises.  We urge that it is the latter.  We urge that it is the latter because it is consistent with the statutory purpose of furthering protection of individuals against domestic violence.  It would be, we suggest, a strange and inconvenient outcome if there had to be an invitation before entry of any sort, and it is far more consistent with the apparent legislative purpose for it to suffice that there should be an invitation to remain on premises once there.

That, we suggest, tends to be supported by the fact that in each of subsections (3) and (4), in the opening line of each, your Honours see the words “may not enter or remain” in the first case and “the power. . .to enter or remain” in the second case.  The use of the disjunctive “or” in subsections (3) and (4) is consistent with the construction of the statute which we are urging, which is that it suffices to satisfy the invitation requirement in subsection (2) that there should be an invitation made by a resident for police either to enter upon the premises or to remain upon the premises.

KIRBY J:   If we have an ambiguity, and I am not necessarily embracing that, would one not construe the ambiguity in a way that is conformable to the traditional common law principle, respectful of the rights of people to have the quiet of their residences protected by the law and recognise that there are two stages, the entry and the remaining, and that Parliament has actually been quite careful to protect the remaining and the right of the citizen to object to the remaining, which would have been the position at common law?

I mean, just imagine what is put in this case.  I am not saying it was the fact, but the police come in, legitimate, they have heard crying on the phone, you paint it very vividly in your written submissions, and then once they get there and after they have been given an opportunity to walk around, he feels that they have been disrespectful to him in his own home and there are six of them and he does not like it and he tells them to leave.  That is a very Australian thing for people to do.

MR TEMBY:   Your Honour, the statute which is now being construed is conferring powers of entry and it is not a section which creates an offence.  Indeed, that is true with respect to Part 10B generally, that is to say, Part 10B is an enabling provision so far as the performance of police powers are concerned.  One certainly cannot construe it as if it was a penal statute, it does not have to be read down in that way, and it should be read, we submit, consistently with the manifest purpose which is to work towards the elimination of what was seen by the Parliament as a social evil.

KIRBY J:   Yes, but I would add to that, “. . .in the context of a legal system which has traditionally and still does protect the right of people not to be harassed in their own homes”.

MR TEMBY:   Yes, and, with respect, your Honours will not hear me suggest that the consideration to which you have just adverted is one which is not of relevance in working out the correct construction and interpretation of this statute.  But the starting point is that these are enabling provisions which are aimed at strengthening police powers in order to work towards elimination of a social evil.

KIRBY J:   Might I just say that I would add at the end of my dot, dot, as Lord Denning did, “, save where that is expressly provided by law”.  That is when you can harass people in their home.  It has to be pretty clear and it is important for this Court to uphold that principle, I would have thought.

MR TEMBY:   What we urge is that the invitation which is being spoken of in subsection (2) is an invitation to do either of two things, that is to say, to enter, what my learned friend has called the initial entry, or to remain upon the premises and, as I have already said, that tends to be supported by the fact that the disjunctive “or” is to be found between “enter” and “remain” in the two following subsections.  Now, there has to be a reason that is the case, and they could have been written as being “may not enter and remain” if the invitation is withdrawn but it is “enter or remain” that is being spoken of.

KIRBY J:   Well, why does that not mean “enter or remain” as is applicable?  “Enter,” that is at one point of time; “remain,” at a later point in time.

MR TEMBY:   It could mean that, your Honour, but our submission is ‑ ‑ ‑

KIRBY J:   That is an interpretation more protective of liberty.

MR TEMBY:   Well, yes, but our submission is that it will better achieve the clear statutory purpose if the expression is read on the basis that permission either to enter or to remain may be given under subsection (2).

KIRBY J:   But they are sequential.  First of all you enter and then you remain.  It is not an either/or, it is a sequence.  People can give a consent to entry and then they do not like how people are behaving and so they stop their consent and they say, well, you cannot remain, leave.

MR TEMBY:   But so far as subsection (3) is concerned, there may be a refusal either to enter or to remain upon the premises, and the present is a case in which there was an invitation to remain upon the premises which was given subsequent to the initial entry, and the question is why that should not be within the invitation of which section 357F(2) is speaking.

GLEESON CJ:   I had not understood there to be any dispute about that.  I thought the question was whether the invitation was revocable, and whether revocation is within the meaning of the words “expressly refused” in subsection (3).  That is what I thought the issue was.

MR TEMBY:   What I am submitting matters when we come to 357H, because ‑ ‑ ‑

GUMMOW J:   What is the relation between those two sections?  Section 357F seems to be conferring a power and then 357H imposes responsibilities, does it not?  What is the force of the word “must”?  Is that some duty of imperfect obligation?

MR TEMBY:   Yes.

GUMMOW J:   What happens if they do not?

MR TEMBY:   Yes, with respect, it must be a duty of imperfect obligation.  But one thing, it is submitted, is clear, which is that 357H cannot be read, as was urged by my learned friend, as simply limiting what can be done and for how long it can be done, and the reason for that is this, 357F(2) enables subject to invitation entry:

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.

But when we come to section 357H we find that police are told to only take such action as is reasonably necessary to investigate, which is the same as 357F(2) and to render aid to any person who appears to be injured, which finds no counterpart in 357F(2), and to arrest, which again finds no counterpart, and to prevent the commission or further commission of such an offence, which is part of 357F(2).

GLEESON CJ:   The opening words of section 357H(1) refer only to entering a dwelling house in pursuance of an invitation.  How does that section deal with remaining?

MR TEMBY:   Your Honour, our submission is this ‑ ‑ ‑

HAYNE J:   It deals with it in 357H(1)(b), does it not?

MR TEMBY:   That has to do with the question of how long they can remain, and they can remain as long as is reasonably necessary.  But for my purposes the submission is that, under 357F(2) the relevant invitation is to either enter or to remain – that is to say an invitation to remain once upon the premises suffices – and that where 357H speaks about an entry into a dwelling house in pursuance of an invitation, as referred to in 357F, that extends to the case of a person who is remaining in the dwelling house pursuant to such an invitation.

GUMMOW J:   I think, Mr Temby, it may be that if there is a drafting location problem it may be that 357H(1)(b) is misplaced in the sense that it is paragraph (b) that drives everything else.  It postulates someone who has entered, then you go straight to (b) and (b) then directs you back to (a) and (a1).  Do you see what I mean?

MR TEMBY:   Yes, I do.  But it surely suffices to engage section 357H that the person is there lawfully by invitation, which invitation we are urging can be either an invitation to make an initial entry or an invitation to remain upon the premises.

GLEESON CJ:   But it is common ground as I understand it in this case that, at the moment – when the police went and looked into the two rooms, for example, they were there pursuant to an invitation by Mr Kuru, an invitation, as it happens, to remain.  The question is whether when he then said, “Now, I am tired of this, I want you out of here”, or words to that effect, the invitation ceased and in consequence the entitlement of the police to be there came to an end.

MR TEMBY:   Yes, and, in our submission, once having been invited to remain upon the premises, police were given power under 357H to remain there for as long as was reasonably necessary.

HAYNE J:   That is a reading, is it not, that reads 357H(1)(b) as if it read “may remain in the dwelling‑house for as long as is reasonably necessary” and that is exactly what it does not read.  Is that not the linchpin of your argument?

MR TEMBY:   It is a necessary consequence of the fact that police are entitled to remain “as long as is reasonably necessary”, that they ‑ ‑ ‑

HAYNE J:   “Only as long as”, yes.

MR TEMBY:   It is a necessary consequence of the fact that they are to remain “only as long as is reasonably necessary” that they may remain as long as is reasonably necessary, just as in 357H(1)(a) it is a necessary consequence of the fact that police are only to take action including rendering aid to a person who appears to be injured that they may render aid to a person who appears to be injured.

HAYNE J:   But what they cannot do under (a) is turn the place over looking for drugs.

MR TEMBY:   Quite, we agree entirely with that.  The presence, the remaining has to be pursuant to an invitation and we are urging that that is not limited to a mere invitation to enter in the first instance, but extends to an invitation to remain and it must be purposive, which is to say, the continued presence is limited both as to purpose and as to the actions that can be taken during the presence and it is limited so far as time is concerned.

GLEESON CJ:   Do you accept that refusal in section 357F(3) includes revocation?  In other words, that you can change your mind.

MR TEMBY:   Yes, subject, however, to this.  In our submission, once being on the premises pursuant to an invitation, police, we urge, may remain for the purpose, to take the actions and for the period which is permitted by 357H.

GLEESON CJ:   I understand that, but that produces this odd result, does it not, that the occupier, no matter how unreasonably, may by his refusal, either initially or later, exclude the police – by his initial refusal may exclude the police altogether.  But although he has a capacity to change his mind, if he lets them in or lets them remain for a time, then it is up to them – they thereafter cannot be excluded until they have done everything reasonably necessary to investigate, et cetera.

MR TEMBY:   Yes, and with respect, that is not an odd outcome, and it is not for this reason.  It is easy to imagine circumstances which are precisely the circumstances which the police thought, and reasonably thought, faced them, namely, that there has been violence on the premises, and there is somebody there who is in need of aid.

Now, it is one thing to say that the door is completely barred, in which event it might be necessary for the police to go off and get a warrant, but once they are in the premises, it may well be that they find that there is a need for somebody to be given aid, which is one of the actions that is specifically permitted by 357H and not one of the purposes for which it is not a statutory purpose of entry under 357F.

In such circumstances, it is difficult to imagine that having got themselves into the premises, pursuant to an invitation either to enter or a subsequent invitation to remain, and finding a person who needed aid, they could not then continue to provide the aid or give the aid which they were about to embark upon.

So it makes, with respect, a difference whether we have got onto the premises and thus advanced our knowledge as to what might be necessary, the example I am giving, being aid, because that is an example which is enlivened by 357H but is not one of the purposes of entry under 357F, and it would be, we suggest, unthinkable that if there was a person there bleeding, perhaps dying, in clear need of aid, that having got themselves onto the premises police could not continue to provide that aid pursuant to the statutory right.

I will be saying something not entirely dissimilar, although somewhat different, when we come to the common law position, but at the moment I am confining my remarks to the statutory position.

GLEESON CJ:   Section 357H, when it uses the expression, “is to do this” and “is to do that” means, in effect, may do this and may do that, I take it.  It is not a command to the police officers.

MR TEMBY:   That is probably right, although I am not, with respect, certain as to 357H(a1) which is the searching for firearms.  It may be there is a duty to do that, the breach of which could attract criminal penalties under section 210 of the Police Act.

GLEESON CJ:   Subject to that possibility, if what I put to you is right, then you are reading 357H(1)(b) as though you deleted the word “only”?

MR TEMBY:   With respect, it is not a matter of reading (b) as if one deletes the word “only”.  It is rather a matter of saying that if the police are to remain only as long as is reasonably necessary to take the required actions, then it must be the case that they are permitted to remain for that period in order to take those actions.  So our submission is that in this case because there was an invitation, which was an invitation to remain, section 357H was engaged and accordingly, police were entitled, had a statutory right:

to investigate whether –

a domestic violence –

offence had been committed,

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

(iv)to prevent the commission or further commission of such an offence –

which is 357H(1)(a)(i), (ii) and (iv).

Now, it is clear that the purpose of the initial entry was to investigate whether a domestic violence offence had been committed.  We are at one as to that.  Having entered for that purpose, police, we submit, remained for that purpose, which is within the opening words of 357H(1).  They did not go beyond the actions permitted by 357H(1)(a).

Accordingly, our submission is that the four male police officers – and they are, the Court will appreciate, the officers with respect to whose conduct the appellant is sued, and I interpolate the comment arising from something said by your Honour the Chief Justice this morning, it happens that there were two female police officers.  They happen to have been the two most junior officers, both probationary constables, and there is no reason to think that there were female officers present because it was a domestic dispute.

The rule is if you are called to a normal domestic you go when you can.  If you are called to an urgent domestic signified by two beeps then you have got to go there - all available units have to go there as quickly as they can with sirens and flashing lights, and there happened to be three available units and there happened to be two female probationary constables who were along, and they are not – or we are not – …..with respect to their conduct.  They probably at some stage entered but they were certainly last in the premises.

GUMMOW J:   I think the reference is to section 201 of the Police Service Act.

MR TEMBY:   Yes, it is, your Honour.

GUMMOW J:   It makes it an offence for a police officer to neglect or refuse, amongst other things, to “carry out any lawful duty”.  Is that the one?

MR TEMBY:   Yes, that is the one.  Did I say 210?

GUMMOW J:   Yes.

MR TEMBY:   I am sorry, your Honour, it is 201.  While we are looking at the Police Service Act, we are taken back to section 6.  Section 6(2) talks about functions being to provide “police services” and 6(3) defines “police services” to include:

services by way of prevention and detection of crime –

and 6(3)(b), importantly –

the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way –

So there is a statutory – and I should also mention that under section 3(2), which deals with definitions:

a reference to a function includes a reference to a power, authority and duty –

They are the parts of the Act which are of relevance and were dealt with in ‑ ‑ ‑

GUMMOW J:   In Fahy, I think.

MR TEMBY:   - - - Fahy (2007) 236 ALR 406, by this Court, and I mention in particular what Justices Gummow and Hayne had to say. The relevant passages are to be found in the reasons of Justices Gummow and Hayne at 411 to 413 and at 425 in paragraph 77 and Justice Crennan at page 462.

As I was saying before I got distracted by the question of the female police officers, our submission is that the four male officers were lawfully on the premises, at least from the time the appellant invited them to look around; they were there pursuant to an invitation which comes within, as we submit, 357F; they were then entitled to remain under 357H for each of the three purposes I have mentioned, and each of those actions required that the other party to the reported domestic violence offence or incident be found, perhaps cowering injured in the bathroom or perhaps elsewhere.  To investigate the reported incident required that she be located and she had not been located at the time force began to be used.

Aid could not be rendered to her unless she was found, and a repetition could not be prevented unless she was found, whether injured or well, and none of these things had happened at the time force first came to be applied by the appellant in his efforts to evict the officers who were then, as we submit, lawfully upon the premises.

Now, what happened thereafter is that the application of force quickly led to a fracas and there was violence by the appellant in resisting arrest and by the officers in subduing him, in the course of which, as your Honours will be aware, one of them was bitten on the finger and had to go off for medical assistance, in the course of which capsicum spray was used.  He was then, it is fair to say, manhandled down the stairs, and when everyone was downstairs the attempt to ascertain just where the woman, the appellant’s fiancée, was, in order to check upon her wellbeing was satisfied because Mr Guler took them there, and we get that from page 110 of the appeal book, which is the end of his examination-in-chief, after:

they got to the police car did you see anything else happen between them?
A.       No, I didn’t see anything . . . 

Did you go anywhere after that?
A.       After that one of the police officers asked me, “Do you know where his sister lives?”

Q.       And what did you say?
A.       I told him, “I don’t know the address but I can show you”. 

Q.       And what happened then.
A.       And they take me with their car . . . 

A.       To Murat’s sister’s house.

He went with them, and at the house they talked to Janette and found out that she was all right, which was, with respect, the first time that the officers knew where she was and what her state was.  So until they had that knowledge they were still entitled to take the actions which were permitted by 357H.

The alternative but related argument is that the police had the right to be there at common law.  The steps are these.  Firstly, the initial entry was with a view to preventing recurrence of a recent breach of the peace, which recurrence was reasonably apprehended and that is a fair thing to say because we know that the call recorded, firstly, the screaming and later that the female had gone quiet.  So it was not known what state had been reached and a recurrence was clearly on the cards.

The second step is that the remaining on the premises was firstly at the invitation of the occupier and therefore lawful and, secondly and thereafter, in order to ascertain the whereabouts and wellbeing of the other party to the apprehended domestic violence offence.

The third step in the argument is that it is within a common law entitlement for police to remain for the purpose of taking reasonable steps to investigate whether an offence had been committed for so long as was reasonable to achieve that purpose or at least to ascertain the whereabouts and wellbeing of the woman concerned so that they could perform their role of safeguarding the community, looking after the safety and the wellbeing of the community represented in this case by an individual who would likely come to harm.

Now, the common law right to enter and remain on premises which is contemplated by 357H(2) exists even if it be the case that 357H(1) has not been engaged and we submit to recognise that such a right is within the common law accords with policy and principle.

GUMMOW J:   Is this a right, the enjoyment of which is exclusive to the police?

MR TEMBY:   Your Honour, with respect, it may be that police rights go beyond the rights of citizens by reason of the fact that police have duties which are not imposed upon citizens.  So as a citizen I can ‑ ‑ ‑

GUMMOW J:   The duties come from statute, do they not?

MR TEMBY:   It is certainly the case that most duties come from statute but it cannot be, I think, correct to say that the duty of police officers to uphold the law is a duty which is to be found only in statute.

GLEESON CJ:   One thing that the common law does not do is impose a duty of rescue upon citizens.

MR TEMBY:   No, that is right.

GLEESON CJ:   But statute may impose a duty of rescue upon a police officer.

MR TEMBY:   Just as statute may impose a duty of rescue upon citizens in defined circumstances.  I am agreeing with your Honour and taking it just one small step further.  So it is at the least an important consideration that police officers have duties which arise from the fact that they are sworn to uphold the law and which arise from the statutory provisions to which reference has been made which were dealt with in Fahy.  In Nicholson v Avon [1991] 1 VR 212 Justice Marks said at page 221 at line 36:

There is much authority to the effect that a police office has a duty at common law to prevent a breach or threatened breach of the peace -

and over the page 222 at about line 10 his Honour refers to an English case of Rice v Connolly [1996] 2 QB 414 and to what was said by Lord Justice Donaldson in Coffin v Smith (1980) 71 Cr App R 221:

“In a word a police officer’s duty is to be a keeper of the peace and to take all necessary steps with that in view.”

GLEESON CJ:   The next paragraph is interesting.  Lord Diplock says that a citizen has a right and duty to keep the peace but “except in the case of a citizen who is a constable, it is a duty of imperfect obligation”.  If a citizen sees a large, menacing man beating a small child, does the citizen have a legal duty to intervene?

MR TEMBY:   We submit not, your Honour.

GLEESON CJ:   But I can understand that a police officer may have a duty.

MR TEMBY:   Yes.

KIRBY J:   That comes about, does it not, by the Police Service Act with the definition of, I think, it is protection of persons, “police services” includes:

the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way –

So there is an affirmative duty of protection.

The police service has the following functions:

(a)      to provide police services for New South Wales -

So that picks that up.

MR TEMBY:   Yes.  Our submission is that Part 10B of the Crimes Act apart, in circumstance such as the present, where an emergency presented itself to the individuals concerned, who were police officers, they were duty bounden to pursue the matter with a view to at least securing the safety of the apparent victim and were entitled to enter, even had the door been closed, to achieve that end and were entitled to remain for that purpose.

The Court will understand that we are here not suggesting a right to enter private premises just to look around, just to see whether or not everything is all right; and we are not suggesting that they had the right to enter private premises just for the purpose of asking questions and certainly not for the purpose of asking questions with respect to a completed past offence.

These were circumstances of genuine emergency.  In such circumstances, public welfare, represented by the welfare of a particular member of the public, must be the paramount consideration.  It accords entirely with sound policy to recognise that the common law extends the right to enter and remain only for so long as is necessary to, as I am putting it, ascertain the whereabouts and wellbeing of the woman in question and to investigate whether an offence was in the course of being committed or had just been completed.

HAYNE J:   Is this a subset of the defence of justification of necessity?

MR TEMBY:   With respect, it had not occurred to me to put the matter on that basis, your Honour.

HAYNE J:   If you are not putting it on that basis, are you inviting us to carve out a new defence to an action of trespass, an action which goes beyond the defence of necessity to preserve life or property?

MR TEMBY:   Your Honour, the common law protects private property rights.  It does so subject only to the exceptions that arise under statute or at common law.  I heard my learned friend say this morning that Plenty v Dillon should not be read as exhaustively stating what the exceptions are and that, with respect, must surely be right.

The approach which is being urged upon the Court is that just as police officers have the right to enter premises for the purpose of preventing a breach of the peace which is, with respect, a very different thing from discouraging future crime, and accordingly, Thomas v Sawkins states a sound rule but a rule which was perhaps applied in an odd way in the circumstances of that case because in that case the purpose was apparently to quell any inclination towards criminality that might be present although the justices had not made a finding that there was a reasonable apprehension that breaches of the peace would occur.  So, at least Thomas v Sawkins recognises a right to enter upon premises to prevent an apprehended breach of the peace.  Perhaps it has to be an imminent breach of the peace.

There was discussion this morning, or perhaps early this afternoon, as to whether that could only be for the purpose of effecting an arrest.  In my submission, the answer to that is no, it is not so limited because a primarily obligation of police officers is to keep the peace and if presence is sufficient in order to achieve that desirable end and it is not necessary for an arrest to be effected, then the presence suffices and is lawful, absent arrest, it is submitted.

So, there is a party going on at 3.00 am which is noisy to the point of being almost riotous and the neighbours are getting restive and saying they are going to have to take steps.  In such circumstances, in order to keep the peace, to prevent a breach of the peace, our submission is that there is a common law right for officers to go on to premises to reason with those who might be about to start fighting and it is not necessary to take a step further and to actually arrest.  I know that is not precisely this case, but it is reasonably analogous.

It is not consistent with the public interest to insist upon arrest being the end point of an entry for preventative purposes to prevent a breach of the peace.  It is not desirable to insist upon that as the end point because if something less suffices that is desirable.  Officers should arrest only in circumstances where an arrest is essential.  You do not deprive people of liberty unless you have to, but the peace must be kept, just as in this case steps must be taken to ensure that an apparent victim is all right, as turned out to be the case, or help to obtain medical attention should that be necessary, either of which scenarios was perfectly, we would urge, equally open in the circumstances of this case, as the police officers knew it to be, and they can only act upon the circumstances as they knew them to be.

So we are not urging that there is a common law right to enter private premises just to poke around.  We are not urging that there is a right to enter private premises just to ask questions.  We are urging that there is a right to enter private premises to prevent breaches of the peace.  We are urging that Thomas v Sawkins states a correct rule even if one has some uneasiness about the factual circumstances out of which that rule emerged, and to recognise that the common law extends to the right of entry to prevent breaches of the peace and to render aid in a case such as this to ascertain the whereabouts and wellbeing of the apparent victim is but a slight derogation from private property rights, which is at least justified in circumstances of urgency.

KIRBY J:   It is not only private property rights, it is also human dignity and being left alone by government ‑ ‑ ‑

MR TEMBY:   Not being ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ unless there is a good and lawful reason to intrude in your life.

MR TEMBY:   Not being unnecessarily interfered with by government is indeed a consideration, your Honour.  That is entirely true.  The question is whether ‑ ‑ ‑

KIRBY J:   In Corbett 81 ALJR 1368, which is the case I was thinking of, I attempted in paragraph [22], which is at 1373, to list the reasons for the fairly strict approach of this Court over a series of cases in recent years and I got up to five. Reading through them, they still seem to me to be accurate and reasons why we have fairly strict approaches to this area of the law in Australia.

MR TEMBY:   Yes, and, with respect, we recognise that approach and I have tried to ensure that in what I have said there is nothing which denies that that is a strong general rule.  The question is whether what I am urging upon the Court represents a necessarily appropriate derogation from those rights and the considerations that lead to them.

KIRBY J:   What is wrong with Mr Walker’s hypothesis that the correct way to have handled this was when the appellant said, “I want youse all to leave” to just leave, and if they had some reason to stay, to go outside and get a warrant.  It would have had the advantage of cooling things down a bit and also interposing the decision of an independent officeholder who would require to be satisfied, and then if they come back with a warrant, well that is the way our law has normally permitted officials of the State to intrude in people’s homes and on their lives?

MR TEMBY:   The answer is, firstly, that we had a statutory right to be there, and that is Part 10B of the Crimes Act, and secondly ‑ ‑ ‑

KIRBY J:   I would have thought that would be read to be there in accordance with lawful authority.  It is not an open cheque?

MR TEMBY:   No, and we do not urge that it is.  We recognise that to come within the provisions of the Crimes Act we must come within 357F with the consequence that 357H is engaged, and we must then act in a manner consistent with the latter, and for no longer than is reasonably necessary, and no questions in those respects arise in this case.  The time involved was quite short on anybody’s account.  The police put it between a minute or two and it goes up to five to eight minutes for the whole thing.  So we are talking about a quite short period of time.

GLEESON CJ:   But the common law right that you assert in the alternative is a substantially more extensive right in the circumstances of this case than that conferred by the statute, is it not?  There is no opportunity – he could not have said, “You cannot come in, or get out”, at common law.

MR TEMBY:   No.  With respect, if the construction of Part 10B that we are urging upon the Court is right, then there is no significant gap between the 357H rights and the common law rights, and the Court will appreciate that the common law – at least in certain respects – certainly goes beyond Part 10B, because Part 10B speaks of being on premises by invitation or being on premises pursuant to a warrant, and it has nothing to do with the situation in which there is an entry upon premises not by invitation and not pursuant to a warrant, and such entries are undoubtedly permitted at common law.

I can, and a police officer very much can, go onto premises to arrest a felon and break the door for the purpose.  I mean, we know before we start that there are common law rights of entry upon premises which go very far beyond Part 10B, and that is true also in relation to domestic violence offences.  If there has been a murder of a spouse attempted, then there is a right of entry at common law; nothing to do with invitation, nothing to do with warrant.

With respect, that must be a given.  So whether in circumstances generally like the present, circumstances of emergency but not a known commission of a felony, what I am urging goes significantly beyond Part 10B depends, of course, upon whether or not the Court accepts the construction of Part 10B that we are arguing for.  If the Court does not accept it, then yes it goes further, and I suppose it goes significantly further.

But, with respect, it does not go beyond the preventative function, the prevention of crime function, which the police have which is recognised in cases such as Thomas v Sawkins and it does not go beyond the saving of life and limb function, the public wellbeing function, which surely must be recognised as a proper police function, and that is what we were there for.  For all we knew, the woman was cowering injured in the bathroom, although when we got downstairs Guler said that he would take us to where she was, away we went, there she was and she was all right and the crisis

was then over.  But it was not over until that stage.  They are the submissions for the respondent.  May it please the Court.

GLEESON CJ:   Thank you, Mr Temby.

MR WALKER:   Your Honours, the no doubt non‑exhaustive summary by Justices Gaudron and McHugh in Plenty v Dillon 171 CLR 635 at 647, to which reference has been made by my learned friend and me, is non‑exhaustive at least because of the absence of discussion of the breach of peace exception. We accept that there is such an exception. We have made observation of that in our written submissions. The Chief Justice asked my learned friend, as he had asked me, about whether those matters of common law power are restricted or have been expressed or reasoned to be restricted to police officers.

In his work The Law Relating to Entry, Search and Seizure, from which we have already handed up an extract, David Feldman in his Chapter 12 makes these observations.  First at 12.01, that is the very first sentence of the chapter entitled “Entry in respect of breach of the peace and sedition”:

It is part of a constable’s duty to preserve the peace and prevent crime.  In relation to breach of the peace, he has various powers which he shares with all citizens, including powers of arrest.

The next is at 12.11 under the heading “Anticipatory powers of entry”: 

The power to act preventively.  The police, justices and ordinary citizens have various powers recognised by law to prevent a reasonably apprehended imminent breach of the peace.

I do not need to read further.  Now, 12.23 is part of the long commentary by Mr Feldman on Thomas v Sawkins and in relation to Mr Justice Avory’s reasons note is made of what is said in the passage I am about to go to concerning the constable’s duty to “keep watch and ward”.  It would appear to follow that in the absence of any argument by the respondent, and we have not heard any, that the extended common law position for which they contend would be an extension of a body of doctrine that does not distinguish between constables and any of us.  If that be true, it would be odd if the extension, without an explanation or a reason in policy, was only for police and not for all of us.

In our submission, there are strong motives in favour of some maintenance of a semblance of order, including one’s private space, to resist or at least be sceptical of further extension of the capacity of anybody, police officer or a private citizen, to enter, without permission, your own space.  No such reason of policy has been expressed in the argument by the respondent either to make this extension only for police or to make available to everyone this power to enter for the purpose of the kind of investigation which my learned friend has now put forward.

The kind of investigation dances between finding out whether there has been a past completed offence which is advanced at first in our learned friend’s argument but has recently been disavowed as sufficient and the investigation as to whether there is an injured woman cowering in a shower stall, the matter which is utterly out of question in this case, bearing in mind the leading policeman’s protestation held true by the trial judge that they were ready to leave, they just wanted the phone number, et cetera.

In Mr Justice Avory’s reasons in Thomas v Sawkins there is picked up at the top of page 256 of [1935] 2 KB a reference which could be read as applying to constables, not to the rest of us, although for the reasons already pointed out by the Chief Justice in raising a matter with my learned friend, the word “duty” has been used for all of us and not just for police.  His Lordship refers there to the duty “to keep the King’s peace and to keep watch and ward” and we know that that phrase which, though I have come, I fear not fully equipped to put this with authority, does not apply to all of us, the duty “to keep watch and ward”, that was part of the argument that is recorded as the argument of Mr Vaughan Williams of King’s Counsel at page 253, point 3, an argument which throughout is rather permeated by something which would appear peculiar to police although we know that the duty of entry to prevent a breach of peace is not confined to police.

It is for those reasons that, in our submission, there is no warrant whatever – sorry, pun unintended – there is no reason consistent with common law reason for an extension in this case of a power to enter.  It would have to be by force if necessary, in the circumstances that obtained in this case, circumstances which in relation to the correlative right to remain which raises the critical common law question of revocation of permission, in our submission, go far beyond anything that any authority has ever mentioned.

As to the facts of this case, in answer to our learned friend, there is no necessity to remain on the premises to find out the whereabouts and welfare of the woman.  They had already decided they needed to go elsewhere from there to find out that.  “She was not here”, they said.  “We are ready to leave”, they said.  “Give us the phone number and address”, they said, not because they were sceptical of what they had been told, but because they wished to check it.  That does not mean they did not believe it.  If they did not believe it, they presumably would have stayed, precisely because then it would have been reasonable to look for the cowering woman.  They certainly did not need ‑ ‑ ‑

KIRBY J:   I have a certain degree of sympathy for the police.  It is 3.00 am, somebody in a female voice is screaming out.  The neighbours are ringing up complaining.

MR WALKER:   There is no one screaming, your Honour.

KIRBY J:   I am sorry?

MR WALKER:   There is no one screaming.

KIRBY J:   Well, I thought the sound of a women’s voice was heard on the ‑ ‑ ‑

MR WALKER:   Not when they arrived.

KIRBY J:   No, not when they arrived, but on the phone message to the police, calling the police to the scene.

MR WALKER:   If they thought that there was someone now unable to scream then it is unaccountable that they left.  They left because they accepted she was not there.  They were going to test that but they accepted it for the purposes of putting all their resources into testing it.  They did not need to remain on the premises in order to see if the woman was elsewhere.  They did not need to remain on the premises in order to see whether she could be spoken to by means of a telephone connection to another place.

Those are the two matters which are left to justify their remaining after they had been repeatedly asked to leave.  In the example my learned friend gave of the near riotous party in the early hours, which brings understandably police to the premises, if by the time the police arrive there is no music and no shouting, it surely cannot be suggested that because there may or may not have been some past committed offence of some kind that may not be straightforward to identify, that there is a power without permission to enter.  The analogy, in our submission, is entirely unavailable.

The Chief Justice asked my learned friend concerning the logical possibilities even if the police were not authorised, that is, were trespassers at the time that my client first came into physical contact with them, as we understand the position after my learned friend’s response to the Chief Justice’s questions, and in light of the lack of any notice of contention or application in relation to that, it is not available to the State in these proceedings to argue that there was anything excessive or otherwise disentitling concerning the conduct of my client if the police were trespassers and thus not authorised to remain.

Your Honours will recall that in volume 1 of the appeal book, page 4, paragraphs 6 to 10 which plead the “Trespass to Land” plead the entry but make it clear that the wrongful trespass is the remaining after a request to leave.  However, the initial entry, as I have called it, does continue to play the part possibly in the case that our learned friend has referred to.

I come now to what my friend called the disjunctive “or” in subsections 357F(3) and (4).  We would suggest it be compared to the conjunctive “and” in section 357F(2) because the way in which my learned friend puts it, with respect, raises this possibility.  It raises the possibility that the only kind of invitation that can be given under subsection (2) is one to enter and remain.  There is no need to worry about that because if you enter you are going to remain for some instant cognisable by the law. 

I have already put in‑chief my arguments why, bearing in mind the notion of express refusal of an invitation after it has been given in subsection (2) involves revocation as well as another person countermanding.  But, in our submission, there is another textual reason why one would see the important distinction between entering and remaining.  Why have “remain” in the provisions at all, particularly in subsection (3), if all that matters is a permission to enter? 

Then, in our submission, there is an oddity about the respondent’s position because in this case it must be well arguable – we do argue it – that there was never any invitation for the initial entry.  I realise there are findings or holdings against us in the Court of Appeal and we have addressed them and asked this Court to overturn them.  If there was no initial entry, surely it would be in the State’s interest, one would have thought, to permit of the initially unauthorised entry but the remaining being authorised.

I thought, with respect, that was the way in which they put the case about “Can we look around?”  “Yes”.  But it does raise this possibility, that if you can only give a subsection (2) invitation to enter and remain subject to the revocation or countermanding under subsection (3), then the premise of 357H(1) is never engaged.  That is the premise that says when a person enters in pursuance of a subsection (2) invitation and he is not initially entered pursuant to that, then 357H is never engaged at all and that is the argument that your Honours will have seen in paragraph 34 of our written submissions, which I need to correct, I notice.

In paragraph 34, the first line of subparagraph (a) it should read “the provisions of section 357H” and in two lines down the paraphrase is inaccurate.  It is not only someone who would answer the description of occupier, as your Honours have heard from our argument in-chief.  I apologise for that.

GUMMOW J:   Just explain that again, Mr Walker.

MR WALKER:   We talk about an invitation being necessary from an occupier, that is not true.  It is from a person apparently residing.

GUMMOW J:   Which paragraph?

MR WALKER:   Paragraph 34.  The first correction was to restrict the reference to 357H in the first line of (a) and the second correction was to note that the invitation from the occupier, two lines down, is wrong.  It is from a person apparently residing.  Occupier comes in at the point of possible countermanding a revocation.  I am sorry.

In answer to a question from Justice Kirby concerning the rule of lenity in interpretation, the penal provision, et cetera, my learned friend said, correctly, with respect, that section 357H does not create an offence, neither it does as such.  However, the combination of 357F in particular and H, but particularly F, that literally creates situations and occasions, both of them, when serious offences can be committed of the kind my client was charged with – that is, they will create a time and place during which officers may be in the execution of their duties during which what would otherwise be your justified force in removing them from your home is the criminal offence of resisting them.  So this is very much a provision which attracts that approach to interpretation.

It would appear, with respect, now, as argued in address, that the outcome, the conclusion, of the reading of 357F and H together, advanced by the State, is utterly to abolish the efficacy of a revocation of a licence – “revocation of licence” being the common law language for what would have been the position but for 357F and my friend’s reading of 357H.

Now, one would expect, if that were the case, and that the abolition is accomplished by this implied notion of completing the tasks to which you are limited under 357H(1), if it is to be done, you would expect there would have been reference to that in 357F and reference as well to that in 357H, but in the first of them you find no reference to the completion of a task of investigation and in the second of them you find no reference to the authority under 357F being cut down accordingly.  In our submission, that is a double indication that these statutory provisions are not to be interpreted in the way the State has advanced.

The purpose of the very important reference in paragraph 357H(1)(b), the temporal limitation in relation to remaining, is to

put a limit on the time, even when there has been no revocation.  It can be limited – truncated, as I have put it in‑chief, under 357F(3), but even without that you cannot stay longer, says Parliament to the police, than is reasonably necessary for the completion of this limited list of tasks.  That is a very important textual indication that the limitation on the right is to be found, as it was initially expressed, in 357F.  Nothing has been superseded by 357H in terms of the limitation on the right or the power.

We adopt, with respect, the proposition that the language “is to” do, found in 357H(1)(a), is different from “must” which one finds in paragraph (a1) – “must” is a duty, enforceable duty, and “is to” do is a prescription by way of limitation of actions that may be taken in the sense that they are the only ones that may be taken.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 3.53 PM THE MATTER WAS ADJOURNED