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 solicitor (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 sue 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 ‘tort 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.
- False imprisonment: 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 prosecution: 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 invalid or unauthorised act in the purported discharge of their duties and this causes a person loss or harm.
- Negligence: this is a failure to exercise due care when damage is reasonably foreseeable. It is clear that police officers owe a duty of care to people in custody. 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 court 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 defendant.
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 plaintiff, you must prove your case on the balance of probabilities. Independent evidence (e.g. evidence from witnesses, photographs and medical reports) is very important. Evidence usually makes or breaks a case.
Many cases settle at mediation or before a court hearing. If the matter proceeds to a hearing, it will either be heard by a jury 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 alleged 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 civil action, the court will order you to pay the State of Victoria’s legal 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 (AHRC).
These complaints go through a conciliation phase at the commission. If they are not resolved, they can then be referred to the Victorian Civil and Administrative Tribunal 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. (See also Chapter 10.6: Assistance for victims of crime.)
If the police officer has been convicted of a criminal offence, 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.