The protection of individual rights and civil liberties is a fundamental tenet of our society. If the police overstep their powers and breach a person’s rights without reasonable cause, a civil claim for compensation may be possible.
Cases against the police are hard-fought by the State of NSW. We recommend engaging an experienced defence lawyer before deciding to sue the police.
There are many different types of claims that can be made against the police, including:
- Malicious prosecution.
- Wrongful arrest and false imprisonment.
- Assault or battery (police brutality or excessive force).
- Trespass to property.
- Misconduct/malfeasance in a public office.
Examples of civil claims against the police
Malicious prosecution
Malicious prosecution can be claimed when legal proceedings have terminated in your favour, and were brought against you without reasonable grounds or for an improper purpose with malicious intent. Proceedings are terminated in your favour if charges are withdrawn, dismissed, you are found not guilty of the offence/s, or in other circumstances where section 32 submissions are made in defence.
An example of malicious prosecution might include a police officer charging and prosecuting you without any real evidence, or to harass you, with a malicious motive.
Wrongful arrest and false imprisonment
Wrongful arrest and false imprisonment can be claimed when your liberty is restrained without lawful justification for any period of time. Examples include where you have been:
- Wrongfully or unlawfully arrested.
- Unjustifiably detained beyond the legal investigative period.
- Arrested for breaching bail conditions which should have been removed.
- Held in prison beyond the length of your sentence.
Assault or battery
Assault or battery can be claimed when the police cause or threaten deliberate physical contact without consent or other legal justification. The police have the right to use reasonable force, so a claim will have to show that the force used was excessive and went beyond what was necessary under the circumstances.
Malfeasance in a public office
Misconduct in public office is an offence under the common law. If a public officer engages in conduct that is invalid or beyond power, and deliberately abuses their power dishonestly, a claim for malfeasance in public office may be brought.
Standard of Proof
Claims against the police are some of the most difficult civil claims to win because of a principle known as the “Briginshaw Standard” found in the case of Briginshaw v Briginshaw (1938) 60 CLR 336.
Under the common law, there are two “standards of proof”:
- “Beyond reasonable doubt” – applies in criminal matters.
- “Balance of probabilities” – applies in civil matters.
Yet, under the Briginshaw Standard, for a serious allegation of misfeasance or improper conduct, a court must be more than satisfied on the balance of probabilities – they must be “comfortably satisfied”.
Claims against the police fall into this category, and the more serious the claim of the police misconduct, the more “comfortably satisfied” the court must be. This means that a strong case with compelling evidence, particularly documentary evidence, is needed to support the claim.
Harm suffered
For some claims such as assault, false imprisonment, and malicious prosecution, the plaintiff does not need to prove that they sustained any injury or damage from the actions of the police. For others, such as personal injury, it is necessary to show that an injury was suffered in order to prove the claim.
In both types of claims, the harm suffered, whether an injury or not, is still an important factor in determining damages. Usually, the greater the injury or harm suffered, the more substantial the award for compensation will be.
