Police Abuse of Power….What Can Be Done?

It may come as a surprise to some people, but except for a few necessary exceptions the police are subject to the same rules and obligations as every other citizen. When they exceed their powers or act outside their authority and other citizens are harmed the courts will provide an avenue for redress and in appropriate cases award compensation or damages.

The case of Hamilton v State of NSW, [2016] NSWSC 1311, is a good example of how the courts will uphold citizens rights against overzealous exercise of police power and grant significant damages.

Mr Hamilton’s night of pain started out as a Christmas Party Sydney Harbour cruise with friends and colleagues. When the cruise finished, he and several others took a taxi from the King St Wharf to their accommodation in the Rocks. The passengers were in high spirits and a bit boisterous. An argument broke out with the taxi driver in respect of the route he was taking. In George St the driver got out of the taxi to get assistance from some nearby police officers. The driver claimed he was racially vilified and assaulted by Mr Hamilton pushing him in the back of the head. Whilst this was happening Mr Hamilton got out of the taxi, leaving his friends and started to walk away.

Two police constables pursued Mr Hamilton forcibly grabbed him forcing him against a wall.

There was a significant dispute between what the police alleged happened and Mr Hamilton version of the events. Mr Justice Campbell largely preferred Mr Hamilton’s version. The Judge found that he was grabbed from behind without any prior warning by the police, swung forced into the wall before having his feet swept out and falling to the ground with a police office falling on top of him. He was arrested and taken to hospital for treatment for his injuries.

Mr Hamilton was charged with common assault (on the taxi driver) and resist arrest. These charges were ultimately withdrawn and dismissed.

Mr Hamilton’s claim against the police was that he was falsely imprisoned as a result of his arrest being unlawful, suffered injury due to unjustified battery by the arresting offices and later unjustifiably prosecuted, for resisting arresting arrest, in circumstances that amounted to a malicious prosecution. He also claimed damages against the police for misfeasance in public office, presumably for their conduct in maintaining the prosecution for resisting arrest but his claim was not successful.

In determining the unlawful arrest issue the Judge found;

I am also not satisfied that either officer genuinely believed the force exerted was necessary. Rather, in my judgment what was done to Mr Hamilton was done out of indifference to his right to be at liberty and to have the integrity of his person preserved. I am also of the view that the officers were labouring under a misconception about what may be justified in the case of any suspect they believed was attempting to evade arrest

His Honour found the arrest unlawful and so the tort of false imprisonment was made out. The same reasoning applied to the issue of battery which was similarly successful and led to a substantial award of damages.

On the issue of malicious prosecution His Honour found;
On the findings I have previously made, the materials put forward to support this prosecution were false. I have found that neither officer had any genuine belief in Mr Hamilton offering violence to the officers to resist his arrest. I accept the argument on behalf of Mr Hamilton that S/Cst Mildenhall charged Mr Hamilton with resisting an officer to justify his conduct in unlawfully arresting and assaulting the plaintiff.

The tort was therefore made out and damages followed.

The judge accepted that Mr Hamilton had suffered serious physical and psychological injury causing him to incur ongoing medical cost and loss of income. In addition, His Honour awarded aggravated and exemplary damages. The total damages award was for $582,000.00 plus costs.

This case highlights the issues surrounding police interaction members of the public and carefully analyses the circumstances where police action may lead to claims by those affected. It also usefully summarises the circumstances where the tort of malicious prosecution may be relied upon to the advantage of a person charged by the police with an offence for tactical reasons.

Persons being prosecuted for offences such as ‘Assault Police’ or ‘Resist Arrest’ in circumstances where a person submitted to the arrest without issue may be indicators of malicious prosecution and should be investigated. People who suspect that their arrest was unlawful, or that the manner in which the arrest was carried out was excessive should seek legal advice as soon as possible.