Seek advice first
If you have been wronged by a police officer(s) (e.g. assaulted or wrongly detained), you may wish to take legal action by initiating civil proceedings for police misconduct. To do this, seek advice from a community legal centre or from a private A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. (see Chapter 2.4: Legal services that can help).
Suing for police misconduct: A case in tort law
Suing the police is one way of holding Victoria Police accountable. It is also a way for people who have been harmed by police misconduct to obtain significant redress for their injuries (both physical and psychological).
To To take legal action in a civil case. for police misconduct, you must have a ‘cause of action’, which is a legally recognised category of wrongdoing. Police misconduct claims are usually made under an area of the law called ‘A civil wrong that causes harm, intentionally or otherwise. A person affected by a tort can take action in court to claim compensation for damage caused by the wrong, or an injunction to stop the wrong continuing. law’. These claims commonly include:
- Assault and battery: this is generally defined as the unlawful application of force. Force is unlawful if it is excessive.
- Without lawful authority, keeping someone locked up or confined, preventing them leaving against their will. A common law action challenging the legality of someone’s imprisonment seeks a writ of habeas corpus (Latin for ‘have the body’, meaning ‘bring the person before the court’).: this is any total restraint of a person’s liberty (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.
- Malicious The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown.: this occurs where criminal charges have been brought or maintained for an improper basis and without reasonable or proper basis. For example, charges that are initiated to discredit a person because they lodged a police misconduct complaint.
- Misfeasance in public office: this is where a police officer commits an Not valid; with no legal effect and not enforceable at law. For example a legal provision or document may be invalid because it is not in proper legal form. or unauthorised A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. in the purported (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. of their duties and this causes a person loss or harm.
- An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort.: this is a failure to exercise due care when damage is reasonably foreseeable. It is clear that police officers owe a An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. to people in Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds.. Police officers may owe a duty of care in other circumstances, but this is not yet settled law in Australia. However, note that the law is being pushed to recognise that police officers owe a duty of care to victims of family violence.
- Breach of confidence: this is where your confidential information has been unlawfully released by a police officer to a public source.
You have three years from the date the ‘cause of action’ accrued (i.e. the date of the incident) to issue An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. proceedings. This time frame can be extended, but only in certain circumstances.
The State of Victoria is liable for torts (i.e. wrongs) committed by police officers while performing their duties (s 74 Victoria Police Act 2013 (Vic)). This means that if you initiate civil proceedings for police misconduct, the State of Victoria would be the A person who has been charged with a criminal offence or against whom a civil action has been brought..
An individual police officer can only be the defendant if the State of Victoria argues that:
- the conduct did not occur during the police officer’s performance of his or her duties; or
- the conduct constitutes serious and wilful misconduct.
As the A person who begins a civil action against another person., you must prove your case on the More likely than not. The plaintiff in a civil case (a non-criminal case) must prove that what they are arguing is more likely to be true than false. This is called the standard of proof. See also beyond reasonable doubt.. Independent Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. (e.g. evidence from witnesses, photographs and medical reports) is very important. Evidence usually makes or breaks a case.
Many cases settle at A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation. or before a court The time and place at which a court or tribunal hears the parties argue their case and makes a decision.. If the matter proceeds to a hearing, it A document that sets out what a person wants to happen to their money and other property after they die. either be heard by a A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases. of six people or by a judge.
If you are successful at court, the court will order the State of Victoria to pay you compensation. This would come from the State of Victoria, and not from the individual police officer(s). The court will not make any other types of orders (e.g. the court will not order that the police officer(s) involved be disciplined). Although, if you have Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. that your human rights were breached, and the court agrees, the court may declare that the police officer’s actions were an unlawful violation of your human rights.
If you lose a A court case in which one person or organisation sues another for compensation, or for some other court order. This is different from a criminal case, where the police bring criminal charges and the court may give the defendant a penalty, such as time in prison, if they are found guilty. Also called a lawsuit, a civil claim, a civil matter or a proceeding., the court will order you to pay the State of Victoria’s legal The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.; these costs can be substantial.
Complaints about discrimination by police officers can be made, in some circumstances, to the Victorian Equal Opportunity and Human Rights Commission or to the Australian Human Rights Commission (see ‘Contacts’ at the end of this chapter).
These complaints go through a A form of alternative dispute resolution. The parties negotiate with the help of an independent person called a conciliator. The aim is to sort out the dispute by mutual agreement, rather than having a decision made by a court or tribunal. See also arbitration; mediation; negotiation. phase at the commission. If they are not resolved, they can then be referred to the Victorian Civil and Administrative A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. or to the Federal Court for adjudication. This process is outlined in Chapter 11.1: Discrimination and human rights. Note that you have six months from the time of the incident to make a complaint to the AHRC.
You can ask Victoria Police for an ex-gratia payment. This is an amount of money paid in recognition that the behaviour of a police officer was improper. Note that Victoria Police do not have to pay you just because you have requested an ex-gratia payment. An ex-gratia payment will usually be less than a payment you would receive if you successfully sued the police officer(s) in court. You should seek legal advice before requesting an ex-gratia payment (see Chapter 2.4: Legal services that can help).
In certain circumstances, an application can be made to the Victims of Crime Assistance Tribunal (VOCAT) for compensation – even if a complaint does not result in a police officer being charged. The criminal act causing injury must be reported to the police for you to be eligible for compensation from VOCAT (www.vocat.vic.gov.au). (See also Chapter 10.6: Assistance for victims of crime.)
If the police officer has been convicted of a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., you can seek compensation under the Sentencing Act 1991 (Vic) (‘Sentencing Act’). It is important to seek legal advice quickly because you usually only have 12 months from the date of conviction to make an application. The same judge or magistrate that heard the criminal charges hears the Sentencing Act application. If successful, the police officer would be ordered to personally pay your compensation.