Where police act outside their powers, it may be possible to bring civil proceedings for damages arising from assault, false imprisonment or malicious prosecution.
In these types of cases, it is often helpful – although not always necessary – for evidence to be ventilated during criminal proceedings for which the defendant was ultimately acquitted and adverse findings made by a Magistrate or Judge about the conduct of police, or for the case to otherwise be terminated by police before it reaches a hearing.
Intentional torts require that the civil defendant (eg police) possessed the intention to do the act that caused the plaintiff’s (ie the person harmed) injuries. The most common intentional tort claims against police are those that involve interference to the person. These are as follows:
A) Assault/Battery
These two terms are often used interchangeably as they can arise from the same conduct.
The distinction at law is that battery requires the application of physical contact; whereas an assault may occur with just the apprehension, or fear, of immediate unlawful contact.
Battery
Battery occurs when the defendant directly and deliberately causes offensive physical contact to the person of the plaintiff; without the plaintiff’s consent or other legal justification.[1]
A battery commonly arises in the following circumstances:
– in the context of an arrest made by police, where police have used excessive force;
– where police or Corrective Services officers have used excessive force whilst conducting forensic and other procedures; or
– where security guards or ‘bouncers’ have used excessive force in removing patrons from bars and clubs.
The plaintiff must demonstrate the following elements, to establish that a battery has occurred:
1) There was an intentional or negligent act of interference (physical contact with the plaintiff’s body).
The defendant’s act caused physical interference, or contact with the plaintiff’s body.[2] This can also include contact with the plaintiff’s clothes, spitting in someone’s face, causing a person to be touched with another object or throwing a person out of a chair by touching only the chair, and not the person.
2) The interference was direct or immediate upon the defendant’s act.
The interference to the plaintiff must be direct and immediate upon the defendant’s act, and not consequential. This issue may not arise in cases involving physical contact, however can be more difficult to identify in cases involving mental harm.
For example, in a recent Victorian case, it was held that witnessing injuries resulting from a domestic violence incident where police were involved could not be sufficiently linked to the conduct of police, and the actions of police were not sufficiently direct enough to cause the plaintiff’s harm[3], and
3) Such contact was offensive, likely to cause injury or affront.
There is a requirement that the defendant’s act must be ‘angry, revengeful, rude, insolent or hostile.’ Physical contact resulting from the exigencies of daily life will not amount to battery. For example, a casino employee touching a patron on the shoulder in order to get his attention is not enough to amount to a battery.[4]
The presence of hostility in an act is what distinguishes a battery from contact in the ordinary course of daily life.[5]
The above elements must be proved on the balance of probabilities, to the Briginshaw Standard (discussed below).
Once offensive physical contact has been established, it will be for the defendant to establish that they did not possess the necessary intention. In the context of police conduct, it is often argued that the defendant was using force necessary to perform an arrest.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA), police officers are able to use “such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”[6] so the plaintiff must demonstrate that the conduct went beyond what was necessary in the circumstances. Even where there has been a lawful arrest, there may have been excessive force used by the arresting officer, for example where a baton has been used unnecessarily.[7]
Assault
An assault occurs where the defendant deliberately causes the plaintiff to apprehend imminent unlawful physical contact; although it is not necessary that such contact actually occur. Often where a battery has occurred (ie physical contact), an assault has also occurred and the two actions can be pleaded together.
The following elements must be established in order to establish an assault:
1) There was an apprehension of imminent physical contact with the body of the plaintiff.
To satisfy this element, there must have been a threat of imminent physical contact, which the plaintiff was aware of. Without knowledge of the threat, the plaintiff cannot apprehend that physical contact was about to occur.
Further, the apprehension must be of imminent contact; the defendant must appear to have the present ability to carry out the threat. This factor can vary significantly between cases. For example, protestors making threats of violence from the other side of the gates of a colliery did not amount to an assault, as they did not have the present ability to carry out the threats against the plaintiffs,[8] however, the future threat of taking a woman back to a house in order to ‘fix her up’ was seen to amount to an assault, although it was a future threat.[9]
Words alone can constitute an assault. In Barton v Armstrong[10] a politician made threats over the telephone and the plaintiff was successful in proving an assault. Similarly, in Slaveski v Victoria[11], a police officer was held to have assaulted a home owner by saying over the phone, ‘anybody can get shot these days, anywhere’.
2) The defendant intended to cause such fear in the plaintiff.
To establish an assault, it must be demonstrated that there was an ‘objective intention on the part of the Defendant that the threat will create an apprehension in the mind of the Plaintiff that the threat will be carried out. It is not necessary to prove that the defendant in fact intends to carry out the threat’[12], and
3) The apprehension of fear by the plaintiff was reasonable.
This element requires an objective test of the plaintiff’s state of mind, and not an assessment of their bravery. The defendant’s act only needs to create a reasonable apprehension of physical contact, not fear of such contact.
In terms of actions against police, an assault may arise in a number of situations, including during arrests, when police are accessing property and conducting other procedures, or through other contact in a public or private place.
In the case of New South Wales v Ibbett[13], plain clothes police officers trespassed onto a woman’s property while chasing her son, pointed a gun at her and demanded she open her garage door. This amounted to an assault.
B) False Imprisonment
This is another type of intentional tort, involving a wrongful, intentional act causing restraint on the liberty of another person, for any period of time.
Common applications in relation to police conduct include arrests for breach of bail conditions, for example; where a person is arrested in relation to bail conditions that have previously been varied, dispensed with or are no longer in place. Also, arrests for the purposes of questioning or investigation, for which police have no power.
The elements that need to be proved are:
1) The defendant intentionally caused the total restraint of the plaintiff’s liberty.
The restraint of liberty must be total and not merely a partial constraint of movement. However, the deprivation of liberty can be actuated by non-physical boundaries and does not require physical contact. The element will be made out where it can be demonstrated that the plaintiff felt obliged to submit to the instructions of the defendant[14]. Where a person is arrested and taken into custody by police, an issue regarding this element will not arise.
2) The restraint was not lawfully justified.
The only defence to an action in false imprisonment is that the restraint was performed pursuant to lawful authority. Once the restraint of liberty has been proved, it is up to the defendant to show it was justifiable or lawful.[15]
The power of Police to affect an arrest is outlined in Section 99 of the LEPRA:
99 Power of police officers to arrest without warrant
(1) A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the offence,
(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.
(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
The most common civil claims against police arise out of wrongful arrests, where police have acted outside their powers in performing an arrest. However, actions may also arise where the initial arrest was lawful, but the plaintiff was detained beyond a reasonable time.[16]
C) Malicious Prosecution
These cases arise from legal proceedings being brought without reasonable and probable cause and with malice.
The elements that must be proved for a malicious prosecution to be established are:
(1) Proceedings were initiated or maintained against the plaintiff by the defendant;
In general, only criminal prosecutions can form the basis of an action for malicious prosecution – civil proceedings do not normally apply.[17]
Essentially, the plaintiff must show that police were prosecuting the case, rather than another body.
The prosecutor is not limited to just the ‘informant’ (ie the officer in charge), but anyone responsible for initiating proceedings.[18] A claim can also be made against a person who made a complaint to police that was deliberately false, if proceedings were brought based upon that complaint (this would only be advantageous if the complainant has the means to pay damages, of course).
In some cases, it may have been reasonable for the prosecutor to initiate proceedings against the plaintiff, but not maintain them. For example, if further (exculpatory) evidence comes to light during the investigation and it is no longer reasonable to maintain the prosecution, yet they persisted in any event.[19]
(2) The proceedings were terminated (finalised) in favour of the plaintiff.
Any termination that does not result in conviction is favourable to the plaintiff for the purposes of civil action… “the magistrate may not commit for trial; the director may not find a bill of indictment; the direct may direct that no further proceedings be taken or the Attorney General may enter a nolle prosequi.”[20]
To satisfy this element, it is simply necessary that no determination of guilt has been made against the plaintiff, and the proceedings have ended without such a determination.
It should be noted it has been held that where a charge had been dismissed, without conviction, pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999, this did not constitute a “termination of proceedings favourably to the plaintiff”. This was because the ultimate order had been preceded by a finding of guilt.[21]
(3) That the defendant acted without reasonable and probable cause.
This is often the most difficult element to prove in a claim against a prosecuting authority, as it involves both an objective and subjective assessment all of the evidence upon which proceedings were initiated or maintained, and will vary heavily from case to case.
The material to be considered is not limited to admissible evidence, or the prosecution’s consideration of whether a defence will be available.[22] It is, however, necessary for a prosecutor to make sufficient enquiries so as to inform himself or herself of the true state of the case.[23]
As discussed in the case of A v New South Wales, there are several considerations in determining if a person had reasonable and probable cause for prosecuting another for an offence:
“a) the prosecutor must believe that the accused is probably guilty of the offence; b) this belief must be founded upon information in the possession of the prosecutor pointing to such guilty, not upon mere imagination or surmise;
c) the information, whether it consists of things observed by the prosecutor himself, or things told to him, must be believed by him to be true;
d) this belief must be based upon reasonable grounds;
e) the information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.”[24]
The absence of one or more of these factors can establish that there was not reasonable and probable cause in initiating proceedings, although the list should not be considered exhaustive.
An in depth analysis of the evidence that was behind the initiation of proceedings will be essential before bringing any suit for malicious prosecution, and
(4) The defendant, in initiating or maintaining the proceedings acted maliciously.
In order to prove this element, the plaintiff must demonstrate that the defendant, in bringing the proceedings, was ‘acting for purposes other than a proper invocation of the criminal law.’[25]
This can include cases where some bias of the prosecuting authority can be demonstrated, or where an absence of reasonable and probable cause can be used infer malice.
In Houda v New South Wales[26] it was decided that a police officer had acted maliciously in bringing proceedings against a NSW solicitor where he knew that no offence had been committed, and the officer was acting out of spite after an altercation with Mr Houda that was provoked by police.
In A v State of New South Wales it was demonstrated that the defendant had initiated proceedings only because he had been pressured to do so by his superiors, rather than in the interests of justice.
It should be noted that the presence of malice alone will not be enough to establish a claim in malicious prosecution. It is essential that this element is accompanied by the absence of reasonable and probable cause.
Standard of Proof
The plaintiff in intentional tort cases must prove each element ‘on the balance of probabilities’; unlike in criminal matters where the required standard is ‘beyond reasonable doubt.’
The test is referred to as the Briginshaw standard and requires that the allegations are established to the reasonable satisfaction of the tribunal (eg court). Reasonable satisfaction should not involve inexact proofs, indefinite testimony or indirect references, however, it is referable to the seriousness of the fact being asserted.[27] Essentially, the more serious the allegation, the more probative or stronger the evidence needs to be.[28]
Defences
There are three main defences to intentional torts, which the defendant must establish to escape liability if the tort is made out.
(1) Justification
This defence may be raised by asserting that the defendant was acting lawfully in their conduct against the plaintiff.
In New South Wales, the LEPRA governs the power of police to make arrests, conduct searches, prevent public disorders, give move on directions, detain intoxicated persons and the use of reasonable force.
In cases of assault or battery where the plaintiff alleges excessive force, the defendant may plead that they were using reasonable force, or that the officer was acting in good faith.
As found in State of New South Wales v Williamson[29] “A lawful arrest can provide the legal justification for what would otherwise be the tort of false imprisonment. If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be an assault or battery.”
A close analysis of the provisions of LEPRA should be conducted before the initiation of proceedings.
(2) Self Defence
Like criminal cases, self defence is available in the context of intentional torts. For self defence to be made out, the defendant’s tortious conduct must have been reasonably necessary for the protection of their person. The elements to be established are:
a) The defendant believed the plaintiff was about to assault him;
b) The defendant believed that the force which he used was necessary in order to defend himself from the plaintiff’s attack; and
c) The defendant had reasonable grounds for those beliefs, in the circumstances perceived by him.[30]
In making the determination, the court will consider the proportionality of the response, whether the danger was imminent and whether there were other things the defendant could have done in the circumstances.[31]
(3) Necessity
This defence is available if the defendant was responding to a threat of imminent danger. In order to establish defence, the following must be demonstrated:
a) That there was a threat of imminent danger; and
b) The defendant’s act is reasonably necessary to avert that danger.[32]
(4) Consent
The issue of consent may arise if the plaintiff has given permission for the defendant to interfere with their person or rights. It has the effect of transforming unlawful conduct into acceptable conduct.[33]
Consent may be provided expressly (in words or writing), or by implication. Implied consent depends on the plaintiff’s conduct and surrounding circumstances. The defence will rarely arise in matters against the police, as the authority commanded by their position often means that consent cannot be voluntarily or freely given. In the case of Symes v Mahon, the plaintiff followed police back to the police station because he felt he had no choice, therefore his consent had not been freely given.[34]
[1] Secretary, Department of Health and Community Services v JWB (Marions Case) (1992) 175 CLR 218.
[2] Carter v Walker (2010) 32 VR 1; [2010] VSCA 340.
[3] Carter v Walker (2010) 32 VR 1; [2010] VSCA 340, at 215 and 216.
[4] Rixon v Star City Pty Ltd
[5] Hutchinson v Fitzpatrick [2009] ACTSC 43, at 54.
[6] Section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002.
[7] New South Wales v Koumdjiev
[8] Thomas v National Untion of Mineworkers (South Wales Area) [1986] 1 Ch 20.
[9] Zanker v Vartzokas (1988) 34 A Crim R 11, at 18.
[10] Barton v Armstrong [1969] 2 NSWR 451
[11] Slaveski v Victoria [2010] VSC 441
[12] ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274.
[13] New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
[14] Bird v Jones (1845) 7 A & E 742; 115 ER 668, at 751.
[15] TD v New South Wales [2010] NSWSC 368, at 49.
[16] Zaravinos v New South Wales [2004] NSWCA 320; Sadler and Victoria v Madigan [1998] VSCA 53.
[17] Clavel v Savage [2013] NSWSC 775, at 44.
[18] Young v NSW; Young v Young (No 2) 2013 NSW 330.
[19] Clift v Birmingham (1901) 4 WALR 20.
[20] Beckett v NSW (Beckett) [2013] HCA 17; 248 CLR 432, at 6.
[21] Clavel v Savage [2013] NSWSC 775.
[22] Herniman v Smith [1938] AC 305, at 319.
[23] Abrath v North-Eastern Railway Co (1883) 11 QBD 440, at 451.
[24] A v New South Wales [2007] HCA 10; 230 CLR 500, at 64.
[25] A v New South Wales [2007]HCA 10; 230 CLR 500, at 91.
[26] Houda v New South Wales [2005] NSWSC 1053.
[27] Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.
[28] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[1992] HCA 66; (1992) 110 ALR 449 at 449–50.
[29] New South Wales v Williamson [2011] NSWCA 183
[30] May v Thomas [2014] WASCA 176.
[31] Fontin v Kataposid (1962) 108 CLR 177.
[32] NSW v Riley [2003] NSWCA 208.
[33] Marions Case, at 233.
[34] Symes v Mahon [1922] SASR 447.
By Alicia Boehm
sydneycriminallawyers.com.au 26 Jul 2016
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