Are Police Misusing their Power to Arrest?

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Arrested man

One of our previous blogs discussed the case of a Sydney criminal lawyer who successfully sued the NSW police service after being wrongfully arrested on a train.

There have been several other cases of wrongful arrest in NSW in recent years, raising concerns that certain police officers are misusing their powers of arrest.

One case of wrongful arrest in 2012 has taken a new turn, with the mother of the teenage girl involved now suing NSW Police after her attempts to make a formal complaint didn’t yield satisfactory results.

The case of Melissa Dunn

16-year-old Melissa Dunn was on a night out with friends when police arrested her and another girl for swearing on George Street in the Sydney CBD.

CCTV footage of the arrest shows police treating Melissa roughly and tackling her to the ground, then dragging her in a headlock to the police van. Melissa was knocked unconscious as her head hit the gutter, perhaps lucky not to have become yet another statistic of street crime.

At her court hearing in August 2012, Melissa was found not guilty of resisting and hindering police, and the magistrate criticised the police involved for using an “inordinate amount of force” against the girl.

An internal police investigation found that although the arrests were lawful, they were unnecessary and the girls should have been issued with court attendance notices instead of being taken into custody. The officers involved were counselled and retrained.

Melissa was tragically found dead in a Maroubra park three days after her court hearing, although her death is not believed to be linked to the hearing or the events around it.

Mother planning to sue

Melissa Dunn’s mother Judy Timbery is planning to sue police in the civil courts after having viewed footage of the way the police handled her daughter during the arrest.

This is after an attempt to pursue the issue through the police internal complaints process brought a ruling that the arrests, although unnecessary, were considered to be lawful and there was no criminal misconduct in the actions of the officer.

The treatment of Melissa Dunn was enough to shock Aboriginal Social Justice Commissioner Mick Gooda, who stated that the incident raised serious concerns as to the way the police handle teenagers who might get a bit rowdy and aggressive.

Are police too quick to arrest?

This case has highlighted the need for adequate training for police officers when dealing with situations where arrest may not be the most appropriate course of action.

In 2012, NSW Police were required to pay out over $5 million in compensation to people who had been falsely imprisoned and assaulted, a figure that had risen from previous years.

In WA, freedom of information documents have recently revealed that almost 200 children have been locked in police station cells while waiting to be flown to detention in Perth in an apparent serious breach of human rights.

The police power to arrest in NSW was changed in 2013 to give officers increased powers of arrest without a warrant. The changes raised concerns that this would lead to members of the public being wrongfully arrested or harassed by police officers.

How do you sue police for a wrongful arrest?

If you believe you have been wrongfully arrested or mistreated by police officers, you can lodge a formal complaint with the NSW Police Service. But don’t hold your breath for a favourable outcome – police aren’t known for having a great track record when it comes to finding against their own.

Another way is to make a complaint to the Ombudsman; but the NSW Ombudman’s office is inundated with thousands of complaints against police every year and has insufficient resources to investigate and make recommendations for each one of them. Even if there is an adverse finding, the Ombudsman has no independent power to discipline police officers.

For some people, like Judy Timbery, civil litigation may be the only viable option for seeking remediation for a harm or wrong done by members of the police force.

It is possible to sue the police for a number of harmful actions, including assault, wrongful arrest, false imprisonment and malicious prosecution. But as this can be a costly and lengthy process, it’s important to make sure you have sufficient evidence.

There is a time limit for commencing civil litigation, and depending on the circumstances and the nature of the offence, you will need to pursue the matter within three or six years of the original incident.

Evidence that is acceptable includes video footage, photographs, medical reports and witnesses who saw what happened.

In some cases, especially where the pursuit of a formal complaint and internal investigation has failed to yield satisfactory results, commencing a civil claim may be the only way to obtain compensation and bring the police officers involved to account.

If you are considering taking this path, always speak to an experienced lawyer beforehand to evaluate your evidence and decide whether it is worthwhile pursuing a civil claim.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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