COMPLAINTS AGAINST VICTORIA POLICE

As law enforcement officers, police have powers to investigate, question, search, arrest, detain, use reasonable force, and lay charges. With these powers come special responsibilities, and opportunities for abuses of power.

Pursuing accountability mechanisms can be challenging. However, it is important that genuine grievances against police are reported so that they can be properly investigated. This can result in serious disciplinary procedures being initiated against police members and potentially the institution of criminal charges and viable civil actions against them.

Role of the OPI and ESD

The two main entities responsible for investigating complaints are the Office of Police Integrity (OPI) and the Ethical Standards Division (ESD). Both OPI and ESD accept and investigate complaints, and are broadly concerned with maintaining the professionalism of Victoria Police, and with detecting, investigating and preventing corruption or misconduct by members. The Police Integrity Act 2008 (Vic) sets out the OPI’s functions and powers.

An important difference to be aware of is that OPI is an independent statutory body, whilst ESD is an arm of Victoria Police. Subject to considerations set out below, it will generally be preferable where serious allegations of misconduct are being made to lodge at first instance with OPI. However, it is important to be aware that the vast majority of complaints will be transferred for investigation purposes to ESD. This is because OPI tends to focus its resources on ‘high end’ corruption, prosecution, and systemic changes to Victoria Police practice.

Another important factor to be aware of is the low rate of ‘substantiation’ of allegations of police misconduct once investigation is finalised Ã‚– for example, only around 5% of alleged assaults are treated as proven following investigation. This is connected by some to the fact that almost all complaints lodged against police are investigated by police, a systemic issue that could perhaps be addressed with improved resources and infrastructure to provide independent complaints review as a matter of course.

Nevertheless recording a complaint may provide the basis for further OPI or Victoria Police activity to enhance accountability and improve service provision. OPI has extensive investigative powers in cases deemed appropriate - for example, surveillance, phone tapping, search and seizure without warrant, and powers to conduct public hearings. Additionally OPI retains an important oversight function over ESD investigations, and is committed to complying with any direction from a complainant to put investigations ‘on ice’ until court proceedings are finalised.

Complaints lodged will also factor as a professional performance issue for those members affected. Further information regarding the OPI and ESD and lodging complaints online can be accessed through the links below (refer to ‘Contacts’). If you have any concerns, it is a good idea to discuss your circumstances with a lawyer experienced in dealing with police complaints. The Federation of Community Legal Centres may be a useful starting point (see ‘Contacts’ below for details).

Making a complaint

Where to direct your complaint and how will depend on the nature of your grievance.

Complaints about rudeness or failures to respond can often usefully be made to the officer in charge of the station where the incident occurred. Alternatively you could complain to another police station in the same police district. You have a right to speak to the Duty Inspector, who is always on call. The police member taking your complaint should note, or be requested to note, in writing, the details or your complaint.

Complaints about police failing to follow procedures or legal requirements can be made to the OPI, but are most frequently made to the Duty Officer of the police district concerned. Your choice should depend upon the seriousness of the police failure and whether you believe the police procedure is in need of substantial review. If it does, lodging your complaint with the OPI makes good sense.

If you decide to lodge a complaint regarding serious police misconduct, such as assault, theft of property, or failures to respond appropriately to violence or sexual assault, you should complain to OPI (see 'Contacts'). The OPI prefers complaints to be in writing. If attending the OPI office in person, call first to make an appointment. Alternatively you can make a complaint to ESD (see 'Contacts').

People of Aboriginal or Torres Strait Islander Descent who have a complaint about the police can contact the OPI Aboriginal Liaison Officer (see 'Contacts').

Supporting your complaint

Whether your complaint is oral or in writing, it is important to be as accurate as possible, and not to 'adlib' where your recollection fails. You need to be especially careful of any complaint that is in writing, particularly if you swear that it is true and correct, because you could render yourself liable to perjury if you make significant mistakes or if you contradict yourself in other statements made earlier or later. Include as much detail as you are able.

In appropriate cases, you may also wish to make your version of events as credible as possible by taking the following steps:

Written records & witness details: Make a detailed written record of the event as soon as possible, and have that record signed, dated, and witnessed. Include the names and/or descriptions of any persons involved or witnesses, and recount any words spoken as accurately as possible. See if you are able to request any witnesses of the events to do the same.
Evidence of any injuries: Photograph any injuries carefully and over time to show any bruising that may come out. Identify anyone who may have seen you before and after the incident and ask them to record their observations. If you attend the OPI quickly, they may arrange for a forensic doctor to examine you. Otherwise you may need to attend your local doctor and ask them to record all your injuries.
Contact a lawyer: It may be useful to contact a lawyer experienced in dealing with police complaints. Discuss the appropriateness of lodging a complaint with OPI, ESD or local senior police. As mentioned above, contacting the Federation of Community Legal Centres may be a good first step provided you are able to avoid delays in gathering evidence as outlined above.

What will happen to my complaint?

Where complaints are lodged with OPI or ESD, generally you can expect to be interviewed regarding your allegations. Those against whom the allegations have been made will generally be interviewed also, as well as any other relevant persons. You can recommend witnesses who should be contacted regarding the incident.

Formal investigation of complaints through OPI and ESD can take many months. A complaint will either be found 'substantiated' or 'not substantiated'. If a complaint is substantiated, or if investigation uncovers matters indicating impropriety on the part of a police member, the police will decide whether or not to initiate disciplinary proceedings, or to caution or counsel the member. The complainant will be notified.

Further complaints regarding investigation processes may be lodged with OPI, whilst your ESD file may be accessible under freedom of information laws.

Potential barriers to lodging a complaint

Making a complaint can have its problems. It is worth being aware that harassment of a complainant is in itself a disciplinary offence. Barriers will tend to be greater in cases where serious allegations of misconduct have been made.

Problems of proof: Often the alleged wrongdoing occurs in the absence of 'independent' or 'reliable' witnesses, for example, in police cells, interview rooms, in transit following arrest, and during police raids. Additionally police tend to work in teams, and it is extremely rare for police to give evidence against one another in the context of a complaint by a citizen.

Often police will admit the allegations, but will claim that their actions were justified – for example, that it was necessary to use force because the complainant assaulted them or was resisting arrest.

Police are quite experienced with court processes whereas many complainants will not be.

All these factors can make proof of allegations of police misconduct more difficult.

When charges are laid or anticipated

As noted above, prompt lodging of a complaint improves the chances of investigative success by OPI or ESD. However, there may be disadvantages to complaining if the police have charged you with offence.

When a complaint is made, it is not unknown for charges, or additional charges, to be laid by the police involved. In addition, there is a tendency when there has been a complaint, for less negotiation to be possible in seeking the police to withdraw charges or proceed with lesser charges, and for more aggressive prosecution of offences to occur.

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 ESD.

Lodging your complaint but delaying investigation

A useful option is to lodge a complaint with OPI promptly, accompanied by a written request that the investigation does not proceed, until you give the go-ahead. The OPI guarantee it will comply with such requests, and maintain the confidentiality of the written complaint. (The same procedure is not generally followed by the ESD, who will routinely investigate the complaints they receive.)

It is less useful to lodge a complaint after your criminal matter has finalised, as any tracks will have muddied substantially, and if your defence includes allegations of police misconduct, they may be seen as less credible than if a complaint had been lodged.

Some charges have to be laid by the police within a certain time frame, whilst others do not. You may wish to seek legal advice in relation to your position.

Complaining at the police station

If you have spent time in a police station, either voluntarily or in custody, you are entitled to make a complaint at any stage in the interview process or at any other time while you are at the police station or are in police custody.

Many people understandably don't want to make a complaint in these circumstances. This does not prevent you from making a complaint at a later stage, but your failure to record your complaint could be raised by police in the future.

Legal action against the police

Criminal charges can stand against police where there is sufficient evidence to prove beyond reasonable doubt the commission of offence.

However, suing police for compensation in civil actions 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 injuries, physical and mental, that they have suffered.

Civil action can be taken in the following instances:

Civil assault: definition of assault much same for criminal assault.
False imprisonment: any total restraint on liberty of person, even for a short period, by use of force or threat of force or confinement, without lawful justification. Once imprisonment proved, up to police to prove it was lawful.
Malicious prosecution: an abuse of the court process by wrongfully setting the law in motion on a criminal charge. Police action must be proved on balance of probabilities to have been done without reasonable cause and instituted or continued maliciously. This tends to be very difficult to prove.
Negligence: failure to exercise due care, where damage is reasonably foreseeable. Failure to care properly for a sick or injured prisoner could result in action for negligence.
Criminal acts: where police officer prosecuted for criminal behaviour against you and found guilty can seek order for compensation as part of proceedings.
Victims of Crime Assistance Tribunal: an application can be made for compensation in certain circumstances, even though your injury is caused by police and even if your allegation does not result in charges being brought against the police.
Applications can be made for compensation under the Sentencing Act where a police officer is found guilty of an offence of violence against you.

To Lodge or not to lodge

As stated above, making complaints and pursuing accountability in this context can be a challenging exercise. Allegations of poor service delivery should be distinguished from allegations of serious misconduct or corruption, where the challenge will be greater. In the former cases, complaints form a useful and important mechanism by which performance of individual members can be measured. In the latter cases, it will generally be advisable to proceed with the support of a lawyer experienced in dealing with police complaints.

It should be noted also that there is some capacity for anonymous complaints to be lodged. Your local community legal centre should be able to assist you to explore this option, which can be a useful approach in some cases.