A person who has been assaulted, wrongly detained or otherwise wronged by police may wish to take legal action. It is wise to take advice from a community legal centre, Victoria Legal Aid or a private solicitor about the possibility of taking criminal and/or civil proceedings against the police (see: Chapters 2*3 Legal Aid and 2*4 Advice Directory).
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 difficulties in relation to the conduct of the now disbanded Drug Squad, a number of police are currently facing 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 committal stage unless the Director of Public Prosecutions is prepared to take them over. Criminal prosecutions against police, or anyone else, need to be proved 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 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 injuries, physical and psychological, that they have suffered. An increasing number of actions against the Victoria Police have been successful in recent times.
Civil action may be taken in the following instances:
- Civil assault and battery: The definition of assault is much the same as for criminal assault. Battery requires unlawful physical contact.
- False imprisonment: Any total restraint on the liberty of the person, for even a short period, by the use of force or threat of force or confinement, without lawful justification. Once imprisonment is proved, it is up to the police to establish that it was lawful.
- Malicious prosecution: 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.
- Negligence: A failure to exercise due care where damage is reasonably foreseeable. Failure to care properly for a sick or injured prisoner could result in an action for negligence.
- Criminal acts: If a police officer is prosecuted for criminal behaviour against you and found guilty, you are able to seek an order for compensation against the officer concerned under the Sentencing Act 1991 (Vic). It is important to seek legal advice about such an application before the police officer is sentenced.
- Victims of Crime Assistance Tribunal (VOCAT) applications: 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 police.Compensation is now primarily for economic loss, such as medical expenses, clothes damaged or days missed from work. Compensation is once again available for pain and suffering in the form of "special financial assistance", but only in very limited amounts, 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: Chapter 18*4 Assistance for Victims of Crime).
- Discrimination: Complaints about discrimination by police can be made to the Victorian or Australian Human Rights Commission (see further: "Discrimination", above). 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 the Federal Court for adjudication.
Note: Points 1 to 4 above are quite complex areas of civil law and are only sketched briefly here. Fuller treatment can be found in text books on the law of torts (see also: Chapter 3*2 Arrest and Interrogation).
Although (1), (2), (3) and (4) above are distinct civil actions, they have the following characteristics in common.
- 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.
- Where the allegation is denied, such civil actions often boil down to the private citizen's word against the version put forward by the police. The importance of independent evidence, such as that from witnesses, photographs, medical reports, etc., cannot be overstated. Its presence or absence from the case for the person making the allegations will generally tip the case one way or the other.
- 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.
- If you lose a civil action, the court will order you to pay the costs of the police. These can run into a substantial sum.
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.
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LEGAL ACTION AGAINST POLICE :: Last updated: Thu Jul 1st 2010