To lodge or not to lodge a complaint

 

Complaints should be made promptly but after consideration. Difficulties include police investigating police, gathering evidence, and police courtroom expertise. When police ask if you have a complaint you can decline to answer, or gain time by stating that you have a complaint but will get advice first. This is important particularly if charges are being laid by police.

Considering whether to make a complaint

Lodging a complaint can have its problems. Making statements to investigators about your complaint can be stressful; some people have described the investigation process as hostile and traumatic.

Also, in rural areas and in some suburbs it can be uncomfortable, and frightening, to be in close proximity to police members about whom one has lodged a complaint.

Some police investigators inappropriately excuse police misconduct and focus on the complainant’s actual or suspected wrongdoing. (In addition, a small number of unscrupulous police endeavour to harass complainants. Such behaviour is itself a disciplinary offence, but that does not stop some police members.) While this does not occur in all police investigations, it is certainly true that as serving officers, police members approach the investigation and adjudication of complaints from the perspective of being members of the police force. This issue of independence in perspective plays a role in the low substantiation rates of police complaints.

Two further issues also need to be considered (these are discussed in the following sections):

1 Obtaining evidence of the police member’s misconduct may be difficult.

2 If charges are laid against you that are related to the incident you are complaining about, you might be better off to delay making the complaint (seeWhen charges are laid or anticipated”).

Problems of proof

Complaints often arise from incidents in police interview rooms, in police cells, during police raids, and during arrests. Often in these situations, there are no witnesses (or no independent or reliable witnesses). Sometimes people who are witnesses to (or the victim of) such incidents are intoxicated by alcohol or drugs, are seriously traumatised by what happens, have themselves recently committed a criminal offence, are physically or mentally unwell, or are intellectually disabled. These factors can make using such witnesses to prove allegations of police misconduct more difficult.

Often the police will admit the allegations are true, but will claim that their actions were justified; for example, that it was necessary to use force against the complainant because the complainant assaulted them or was resisting arrest. Police generally work in pairs, and often in larger groups. It is therefore typical for more than one police member to provide a sworn statement, or to give evidence in court, in relation to the incident. However, it is rare for police to give evidence against other police in the context of a complaint by a citizen. Thus, what they say may be contrary to the version of the event put forward by the person complaining. In addition, it is worth bearing in mind that police are accustomed to giving evidence and responding to questions. You, probably, are not.

Almost certainly the police will have written records about what happened between you and them, especially if the incident resulted in you being charged with a criminal offence.

When charges are laid or anticipated

As noted above, promptly lodging a complaint improves the chances of your complaint being substantiated. However, if you have been charged with an offence, lodging a complaint can have negative consequences.

When a complaint is made, it is not unknown for charges, or additional charges, to be laid by the police involved. In addition, there tends to be less room for negotiation (i.e. the police are less likely to withdraw charges or proceed with lesser charges).

It is also common for prosecutions to be pursued more aggressively when a complaint has been made against an informant, a corroborator or another police member who is involved in the police investigation.

In addition, while it is a disciplinary offence for a PSC member to release statements of complaint to prosecuting police, there have been many occasions when this has happened.

All these reasons make it advantageous for a person who has been charged with criminal offences either not to make a complaint against the police or to delay lodging it until after criminal proceedings brought by the police have concluded.

If the police have charged, or are likely to charge, you with an offence related to the incident you are complaining about, you should always get legal advice before providing details of your complaint to police, including the PSC.

Delaying lodgement

If you decide not to lodge a complaint until after your court case, and your defence to the charges against you includes allegations of improper behaviour by police, the fact that you have not yet lodged a complaint may well be used against you in court to suggest that you are making up allegations just to help your court case.

In addition, the fact that you have delayed lodging your complaint will be regarded by some police investigators as affecting your credibility. Also, the chances of your complaint being substantiated are reduced because the police members about whom you are complaining will have had the opportunity to collaborate, and for tracks to be muddied with the passage of time.

If you do decide to delay lodging your complaint, you should still follow all the steps in “Supporting your complaint”. These measures will enhance your credibility and increase the chances of your allegations being substantiated.

Complaining at the station

If you have spent time at a police station (either in custody or voluntarily) you are entitled to make a complaint there and then. The officer-in-charge (usually a senior sergeant) is required to take note of the complaint or refer it to a duty inspector. The complaint can be made at any time while you are at the police station or in police custody.

Before releasing anyone (who has been questioned or charged) from the police station, the officer in charge is required to enter that person’s name into an attendance register. The person is customarily asked whether they have any complaint about the quality of treatment while in police custody. Anyone who does have a grievance about their treatment should be asked to provide further details or to await the arrival at the station of the duty inspector. This can take some time.

Many people who have a complaint tell the officer in charge that they have no complaint because they are keen to leave the station or because they are scared of making the complaint to the immediate superior of the person they are complaining about, or to the very person about whom they have a grievance. However, failure to complain at the station is routinely used by police to attack the credibility of the complainant when they later make their complaint.

One option is to tell the officer in charge that you do have a complaint, but that you intend to make your complaint after being released and after obtaining legal advice. If you are not sure that you will lodge a complaint, ask the person filling in the attendance register to write under your name, “Yes, but I wish to seek legal advice before making a formal complaint”. This way, you are not committed to any course of action, but the option is available for you to complain later if that is your wish, and you have indicated your early intention to complain.

Another option, but a less comfortable one, is for you to refrain from answering the question about whether or not you have a complaint about the quality of treatment while in police custody. Legally, you are under no obligation to answer this question or to sign the attendance register. The police are not entitled to detain you for declining to answer this question or for not deciding not to sign the attendance register.