Legal action against police

Always seek legal advice before taking action against police. Possible actions beyond lodging a complaint include pressing charges and suing for damages for a range of wrongful conduct. However, the case must be carefully prepared and a failed legal action can result in costs.

Seek advice first

A person who has been assaulted, wrongly detained or otherwise wronged by police members may wish to take legal action. It is wise to seek advice from a community legal centre, Victoria Legal Aid, or a private solicitor about initiating criminal and/or civil proceedings against the police (see How legal aid can help, and Legal services that can help).

Pressing charges against the police

A variety of criminal actions can be taken against members of the police. Lately, it has become more common for police to be charged with criminal offences. For instance, because of the conduct of some members of the now disbanded Drug Squad, a number of police faced serious charges in relation to their allegedly criminal behaviour.

Usually criminal actions are initiated by police informants although summary criminal actions can be instituted by a private citizen. Serious charges will not progress beyond the committal stage unless the Director of Public Prosecutions is prepared to take on the case. Criminal prosecutions against police, or anyone else, need to be proven beyond reasonable doubt.

If you bring a charge against the police in the Magistrates’ Court and are unsuccessful, the successful defendant will usually be entitled to have their legal costs paid by the unsuccessful informant in a private prosecution. Costs can be substantial, so caution needs to be exercised before embarking on such an action.

Suing the police

Suing the police has emerged as an important means of making the Victoria Police accountable, and as a means for people who have been harmed by police misconduct to obtain significant redress for their injuries (both physical and psychological). An increasing number of actions against the Victoria Police has been successful in recent times.

Civil action may be taken in the following instances:

1 Civil assault and battery: The definition of assault is much the same as for criminal assault. Battery is unlawful physical contact.

2 False imprisonment: This is any total restraint on the liberty of a person (for even a short period) by the use of force, or the threat of force, or the threat of confinement, without lawful justification. Once imprisonment is proved, it is up to the police to establish that it was lawful.

3 Malicious prosecution: This is an abuse of the court process by wrongfully setting the law in motion on a criminal charge. The police action must be proved, on the balance of probabilities, to have been done without reasonable cause and instituted or continued maliciously. This tends to be very difficult to prove.

4 Negligence: Negligence is a failure to exercise due care when damage is reasonably foreseeable. For example, failure to care properly for a sick or injured prisoner could result in an action for negligence.

5 Criminal acts: If a police officer is prosecuted for criminal behaviour against you and found guilty, you are able to seek compensation from the officer under the Sentencing Act 1991 (Vic). It is important to seek legal advice about such an application before the police officer is sentenced.

6 Victims of Crime Assistance Tribunal (VOCAT) applications: In certain circumstances, an application can be made for compensation – even if your complaint does not result in charges being brought against the police.

Compensation is now primarily for economic loss (e.g. medical expenses, damaged clothes or days missed from work). Compensation for pain and suffering is available in the form of “special financial assistance”, but only in limited amounts; this is available from VOCAT or from a court if a police member is found guilty of injuring you. The criminal act causing injury must be reported to police for you to be able to proceed with your claim (see also Assistance for victims of crime).

7 Discrimination: Complaints about discrimination by police can be made to the Victorian or Australian Human Rights Commission (seeDiscrimination”). These complaints can go through a conciliation phase at the commission and if they are not resolved, can then be referred to the Victorian Civil and Administrative Tribunal or to the Federal Court for adjudication.

Note that points 1 to 4 above are complex areas of civil law and are only sketched briefly here. More information can be found in text books on the law of torts. (See also Arrest, search, interrogation and your rights.)

Although points 1 to 4 above are distinct civil actions, they have the following characteristics in common.

1 It is up to the person making the allegations to prove their case on the balance of probabilities (i.e. that it is more probable than not that what they say happened actually occurred).

2 When an allegation is denied, civil actions often boil down to the private citizen’s word against the version put forward by the police. The importance of independent evidence (e.g. evidence from witnesses, photographs, medical reports) cannot be overstated. Its presence or absence from the case will generally tip the case one way or the other.

3 The result of a successful civil case is the payment of money as compensatory damages. The amounts awarded are usually not very large, unless the injuries inflicted on the civilian victim are very serious.

4 If you lose a civil action, the court will order you to pay the costs of the police. These costs can be substantial.

The difficulties of mounting a successful civil action against the police, together with the danger of a costs award if the action fails, mean that many people decide not to proceed with civil actions. However, it is clear that the number of actions has increased in recent years and some well-publicised actions have been successful.