Civil liberties have taken a beating in Australia in recent years with governments of all hues consistently legislating to strengthen police powers. But yesterday the High Court struck back with a judgment that confirms there are limitations on the right of the police to stay on premises after the occupier has told them to leave.

In a 4-1 judgement, Chief Justice Murray Gleeson and Justices Bill Gummow, Michael Kirby and Ken Hayne upheld the finding of a New South Wales court that police were liable for damages after failing to leave the flat of a Sydney man Murat Kuru in 2001 when requested to do so by Mr Kuru.

Six police officers had answered a radio call in the early hours of 10 June 2001 to attend Kuru’s apartment because of a domestic violence situation. When they arrived at Kuru’s apartment, he was in the shower, and his fiancée, with whom he had been having a rowdy argument, had fled to her sister’s place in the next street. The police asked Kuru if they could look around his apartment and he allowed them to do so.

But after he told them his fiancée had gone to her sisters and provided them with the sister’s phone number he asked the police to leave but they didn’t. He then got aggressive in his demands that they leave and a struggle followed in which Kuru was sprayed with capsicum spray, punched, handcuffed and led in only his boxer shorts to the police vehicle and then to the police station. Kuru was released from custody a few hours later.

Kuru sued the New South Wales Police for false imprisonment; trespass to his premises and for trespass to his person. He won his case and was awarded $418,265 and his legal costs.

The High Court was not impressed by an argument from the New South Wales government’s legal representatives that police officers may enter someone’s home or premises for the purpose of investigating and preventing a breach of the peace. Breach of the peace is a well known concept in the law and it can include situations such a drunken party, a domestic violence situation or similar types of disturbances.

While there is no doubt that the police have a duty to act if there is a breach of the peace, the High Court said, once the situation causing the breach of the peace has been defused or has ceased, then you have the right to ask the police to leave the premises and if they do not do so in a reasonable time they are trespassing on your property.

The situation that Murat Kuru found himself in back in June 2001 is unfortunately not an uncommon one. But yesterday the High Court sent a salutary and powerful reminder to police forces around the nation that the all too common practice of ignoring requests by people to leave the premises in circumstances when there is no justification for remaining there, is a gross infringement of civil liberties.