Day police just went too far

A man who challenged the right of police to remain in his home - only to be sprayed with capsicum spray, handcuffed and locked in a cell wearing only boxer shorts - has won his case in the High Court.

Sydney man Murat Kuru sued police after six officers they came to his flat in 2001, alerted to a noisy argument between him and his then fiancee (now wife).

By the time they arrived, she had left, but Mr Kuru let them look around, talked to them, and gave them the phone number of her sister, with whom she had left.

After repeated requests that they leave, the officers refused. Eventually, a violent scuffle broke out - who caused it was a matter of dispute - and Mr Kuru was punched, handcuffed and sprayed with capsicum spay.

He fell down the stairs, twice, and was locked in a cell for hours with nothing to wear but his boxer shorts.

In the District Court, he won an action for trespass and false imprisonment, claiming police had no right to stay once he asked them to leave. He won, and was awarded $418,265 in damages.

The Court of Appeal overturned that, finding police were not trespassing when they were first called, and were justified in staying on the property to investigate domestic violence.

Today, the High Court allowed Mr Kuru's appeal, by a four-to-one majority. By the time Mr Kuru asked them to leave, police had already inspected the flat, and didn't need to stay to speak to the fiancee.

The majority found there was no authority for police to remain on the property, and they could have sought a warrant if they felt they needed to.

The law forgave trespassing in emergencies, but the court said there was no emergency and no ongoing breach of the peace when Mr Kuru asked them to leave, so police were trespassing on his property, and committed trespass to the person during the scuffle.

The case will now return to the Court of Appeal to assess damages.