Suing the New South Wales Police
Unlawful arrest, battery and malicious prosecution
New South Wales Police are provided with a wide range of powers to assist them in enforcing the law and maintaining public safety. If the police use these powers contrary to law and without reasonable cause, whether deliberately or recklessly, a civil claim for compensation may be available to the affected person.
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“ There are limitations that apply to the exercise of police powers to ensure that the civil rights and liberties of the community are protected. When the police overstep these boundaries, we are here to ensure that you are properly compensated for any loss or injury incurred. ”
BEN WILLCOX
Princiapl Lawyer
Unlawful Arrest
Being under arrest does not necessarily mean that you have been handcuffed and placed into the rear of a police vehicle. Police can make an arrest by words or actions, or a combination of both. For an arrest to effected, it is necessary that either:
a) some physical restraint is placed upon you, or
b) you submit to being arrested.
Essentially, an arrest can be any conduct that makes clear that you are no longer free to leave.
Arrest without warrant
New South Wales may arrest someone without a warrant. The power to do so depends on the circumstances. Generally, a police officer who arrests someone without a warrant done so by exercising a power given to them from one of the following pieces of legislation:
- Section 99, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Section 77, Bail Act 2013 (NSW)
Both sections place limitations on the use of the power of arrest.
Section 99 of the Law Enforcement (Powers and Responsibilities) Act requires a police officer to suspect, on reasonable grounds, that a person is committing or has committed an offence and that the arrest is reasonably necessary for one of nine reasons provided at section 99(1)(b) of the Act.
Section 77 of the Bail Act requires a police officer to believe on reasonable grounds that a person has failed to comply, or is about the fail to comply, with their bail conditions. The arresting officer also has to consider the circumstances of the breach and whether it is ‘trivial’ in nature, whether there is a reasonable excuse for the failure, personal attributes and circumstances of the subject person and whether an alternative course of action to arrest is appropriate in the circumstances.
It is important to remember that the powers of arrest under section 99 of LEPRA and section 77 of the Bail Act do not override the principle at common law that an arrest should be carried out only when necessary and only as a last resort.
If you believe you have been unlawfully arrested by a member of the New South Wales Police, you should record the circumstances of that arrest immediately, when they are still fresh in your mind. Information you should consider recording includes:
- The location, date and time of arrest,
- The police officers name and what police station they work from,
- Any reason provided to you by them as to why you are being arrested,
- Any witnesses who might have seen the arrest,
- Whether you sustained any injuries as a result of the arrest,
- How long you were placed under arrest for.
Any civil claim for unlawful arrest or false imprisonment will be vigorously defended by the State. It can be a complex and lengthy process. If you believe you have a civil claim you should contact us for a free consultation. We will assess your matter and explain your legal options, including whether you are eligible for representation on a no win, no fee basis.
Assault or battery (excessive force)
Police are required to use their own expertise and judgment when using any level of force. They must be able to explain the reasons why force was used and why it was reasonable, appropriate and proportionate to the situation. When doing this, the police must consider the following:
a) The threat they are facing, including the presence of any weapons,
b) The age of the person they are dealing with,
c) The number of persons they are dealing with,
d) The number of police officers present at that time,
e) Whether the person they are dealing with is under the influence of alcohol or other drug,
f) Whether the person they are dealing with has a mental illness,
g) The persons size and gender.
Beyond the officers individual expertise and judgment, section 231 of LEPRA places a limitation on the level of force to be used by police when arresting somebody. Section 231 also states that an arrest must be for a specific purpose. If the force used by police exceeds what is considered ‘reasonable’ then they are using excessive force. If it is not for a specific purpose, it is an unlawful arrest.
It’s important to remember that assault (or excessive force) doesn’t have to involve any actual violence either. Assault is any intentional act which makes an individual fear unlawful violence. An example of this may include when an officer points their firearm at you and directs you to get on the ground. If the police officer that does this has no reasonable basis to suspect you are in the possession of a weapon, and there are no other reasons that justify this conduct, this may be an example of assault.
Any civil claim concerning assault or excessive force will be vigorously defended by the State. It can be a complex and lengthy process. If you believe you have a civil claim you should contact us for a free consultation. We will assess your matter and explain your legal options, including whether you are eligible for representation on a no win, no fee basis.
Malicious Prosecution
When prosecuting somebody for a criminal offence, New South Wales Police must have reasonable grounds to believe that that person has committed an offence. If the police charge someone only to punish them, without having sufficient evidence to justify criminal proceedings, that person may wish to consider a civil claim on the basis of malicious prosecution.
Any person that brings a civil claim on the basis of malicious prosecution needs to prove each of the following:
Proceedings were maintained by the prosecution
This includes both the New South Wales Police and the Department of Public Prosecutions (DPP).
Proceedings were dismissed in the plaintiff’s favour
If the state fails to prove their case against you following a hearing or trial, the proceedings are dismissed.
The prosecution acted with malice
To prove ‘malice’ you must demonstrate that the police intended to do harm. In other words, you may show that the prosecution was driven by motives other than seeking justice.
Examples of this may include:
- To punish someone for personal reasons,
- To subject the person to bail conditions knowing that the charge will never succeed,
- To put pressure on the person to cooperate with them in other, unrelated matters,
In other words, malice requires some intention by the prosecution to do harm.
The proceedings lacked reasonable and probable cause
Reasonable and probable cause at its core requires a reasonable belief, founded upon admissible evidence in the possession of the prosecutor, that a crime has been committed.
It has been defined to exist when:
- The prosecutor believes that the accused is probably guilty of the offence;
- This belief is founded upon information and/or evidence in the possession of the prosecutor;
- The prosecutor must believe the information and/or evidence, whether it consists of things observed by the prosecutor or things told to them by others, to be true;
- There must be reasonable grounds for the prosecutor’s belief; and
- In considering the above, an objectively prudent person would also believe that the accused is probably guilty of the offence
Any civil claim concerning malicious prosecution by the New South Wales Police or Department of Public Prosecutions will be vigorously defended by the State. It can be a complex and lengthy process. If you believe you have a civil claim you should contact us for a free consultation. We will assess your matter and explain your legal options, including whether you are eligible for representation on a no win, no fee basis.
Proceedings were maintained by the prosecution
This includes both the New South Wales Police and the Department of Public Prosecutions (DPP).
Proceedings were dismissed in the plaintiff’s favour
If the state fails to prove their case against you following a hearing or trial, the proceedings are dismissed.
The prosecution acted with malice
To prove ‘malice’ you must demonstrate that the police intended to do harm. In other words, you may show that the prosecution was driven by motives other than seeking justice.
Examples of this may include:
- To punish someone for personal reasons,
- To subject the person to bail conditions knowing that the charge will never succeed,
- To put pressure on the person to cooperate with them in other, unrelated matters,
In other words, malice requires some intention by the prosecution to do harm.
The proceedings lacked reasonable and probable cause
Reasonable and probable cause at its core requires a reasonable belief, founded upon admissible evidence in the possession of the prosecutor, that a crime has been committed.
It has been defined to exist when:
- The prosecutor believes that the accused is probably guilty of the offence;
- This belief is founded upon information and/or evidence in the possession of the prosecutor;
- The prosecutor must believe the information and/or evidence, whether it consists of things observed by the prosecutor or things told to them by others, to be true;
- There must be reasonable grounds for the prosecutor’s belief; and
- In considering the above, an objectively prudent person would also believe that the accused is probably guilty of the offence
Any civil claim concerning malicious prosecution by the New South Wales Police or Department of Public Prosecutions will be vigorously defended by the State. It can be a complex and lengthy process. If you believe you have a civil claim you should contact us for a free consultation. We will assess your matter and explain your legal options, including whether you are eligible for representation on a no win, no fee basis.
Section 10
A Section 10 is one of the sentencing options available to the court.
An order under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to dismiss the matter without recording a conviction, despite the offence being proven.
Appeals
Two appeal types exist: conviction appeals and severity appeals.
A conviction appeal challenges the finding of guilt following a disputed hearing, a severity appeal challenges the sentence imposed by the court after a guilty plea or finding of guilt. If you appeal both your conviction and your sentence this is called an ‘all grounds appeal.’ An appeal must then be lodged within 28 days of sentencing.
Legal Aid
Legal Aid NSW provides legal advice and representation to the community.
Legal Aid NSW is a government organisation and is contingent upon certain eligibility criteria. In some cases, Legal Aid will assign criminal matters to private solicitors who are on the relevant Legal Aid Panel. If you are eligible for a Legal Aid grant, you may ask to have your case assigned to us
Section 14
Section 14 allows dismissal of charges with mental health treatment.
A section 14 order allows a defendant charged with a criminal offence, who suffers from a mental health condition, to apply to have their matter dismissed upon entering into an agreement to undertake mental health treatment.
Frequently Asked Questions
No. You do not need to be charged by the police in order to sue them for assault or unlawful arrest. (You do need to be charged by the police however to bring a claim of malicious prosecution).
Generally speaking, you must bring a claim against the police within three years of the incident. Speak to us about your matter. If we think a different statute of limitation applies, we will help you understand why, and how long you have to bring a claim.
The legal costs for suing the police depends on the circumstances of the case. Speak to us about your matter. In certain cases we may be able to represent you in your claim against the police on a ‘no win, no fee’ basis.
You can lodge a complaint against the police in NSW with the Law Enforcement Conduct Commission.
If you are found not guilty at hearing or trial, you may have a claim against the police for malicious prosecution. You would need to prove that the police acted with malice and without reasonable and probable cause.
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Testimonials
Here are some of the reviews left by our esteemed clients.
Excellent Result
“Your efforts in negotiating with the police on my behalf made all the difference, and I’m extremely grateful for the excellent result you were able to achieve. Your approach gave me confidence throughout the process, and I truly felt supported every step of the way. I can’t thank you enough for your hard work, and l’m beyond appreciative of how you both handled everything with care and expertise. Thanks heaps.”
- Tim, NSW
Testimonials
Here are some of the reviews left by our esteemed clients.
Highly Professional
“I recently used the services of Ben at Wilcox Criminal and Civil Lawyers for my case, and I couldn’t be more satisfied with the outcome. Ben managed to secure a result with no conviction recorded, which was exactly what I was hoping for. The team was professional, thorough, and communicated clearly throughout the process. They understood the nuances of the legal system and knew how to navigate it to achieve the best possible outcome for my situation. I highly recommend their services to anyone in need of skilled criminal defence representation.”
- Chris, NSW