The Law Handbook 2024

1142 Section 12: Government and the individual witnesses. Also, people who may have witnessed the incident(s)may be unable or unwilling to give evidence to support your claim; for example, witnesses may fear self-incrimination, may be traumatised, have memory loss, or have a physical or mental illness. Sometimes the police officer(s) 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 resisted arrest. Also, as police officers usually work in pairs (and often in larger groups), it is typical for more than one police officer to provide a sworn statement, or to give evidence in court, about an incident. It is rare for police officers to give evidence against other police officers in the context or a complaint by a citizen. Thus, what other police officers say may be contrary to the version of events put forward by the complainant. Note that police officers are accustomed to giving evidence and responding to questions in court; whereas you may not be. 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. Timing your complaint Overview There are several things to consider when deciding when to lodge your complaint. Lodging a complaint as soon as possible after an incident improves the chances of your complaint being substantiated as evidence can be collected that may be lost if the complaint is lodged later. However, if you have been charged, or may be charged, with an offence relating to the incident(s) about which you are complaining, then lodging a complaint can have negative consequences (see ‘Lodging a complaint when charges are laid or anticipated’, below). Before lodging a complaint, get the advice of a lawyer who is experienced in dealing with police misconduct complaints about the best time to lodge your complaint. A community legal centre can advise you or help you find an appropriate lawyer (see Chapter 2.4: Legal services that can help). Lodging a complaint when charges are laid or anticipated When a complaint is made, it is not unknown for the complainant to be charged, or charged with additional offences, by the police officer(s) named in the complaint. Police officers are also more reluctant to withdraw charges or proceed with lesser charges when the alleged offender has made a complaint of police misconduct. It is also common for police officer(s) to pursue a prosecution more aggressively when a complaint has been made against the informant, a corroborator, or another police officer involved in the police investigation. In addition, while it is a disciplinary offence for PSC officers to release statements of complaint to other police officers, this has happened. These are all factors to consider when you are waiting for your criminal charge(s) to be finalised and before making a complaint about police misconduct relating to the same incident. If you have been charged, or are likely to be charged, with an offence that is related to the incident you are complaining about, you should get legal advice before making a complaint (see Chapter 2.4: Legal services that can help). Note that if police officer(s) charge you with a criminal offence, or add charges, after you lodge a complaint about police misconduct, you may be able to claim malicious prosecution in a future civil case. However, you will only be able to do this if the charges resolve in your favour. Consequences of delaying lodging a complaint Your complaint about police misconduct can be negatively affected if you decide to not lodge a complaint until after your court case, and your defence to the charges against you includes allegations of improper behaviour by police officers. The fact that you have not yet lodged a complaint can be used against you in court to suggest that you are making up the allegations just to help your court case. In addition, some police investigators consider complaints that are not lodged straightaway to be less credible that those lodged quickly after an incident. Also, the chances of your complaint being substantiated may be reduced because the police officer(s) about whom you are complaining will